425 1 tm218011d4_425.htm 425

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

 

 

FORM 8-K

 

 

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(D) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of report (date of earliest event reported): March 4, 2021

 

 

 

 

Bonanza Creek Energy, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

 

Delaware   001-35371   61-1630631
(State or other jurisdiction of
incorporation)
  (Commission File Number)   (I.R.S. Employer
Identification No.)

 

410 17th Street, Suite 1400        
Denver, Colorado       80202
(Address of principal executive offices)       (Zip Code)

 

Registrant’s telephone number, including area code: (720) 440-6100

 

 

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

x    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which
registered
Common stock, par value $0.01 per share   BCEI   New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

 

Emerging growth company       ¨  

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.   ¨

 

 

 

 

 

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

The information provided below under “Board Composition” in Item 8.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.02.

 

Item 8.01. Other Events

 

This Current Report on Form 8-K of Bonanza Creek Energy, Inc. (the “Company”) is filed to facilitate the incorporation by reference of the information filed in this report into the Company’s two Registration Statements on Form S-4 (Registration Statement Nos. 333-251401 and 333-251402), and also into the respective joint proxy statement/prospectus and prospectus, that the Company filed under the Securities Act of 1933 in connection with the Agreement and Plan of Merger dated November 9, 2020, among the Company, Boron Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of the Company, and HighPoint Resources Corporation (“HPR”).

 

The plan supplement (the “Plan Supplement”) for the joint prepackaged plan of reorganization for HPR and its subsidiaries pursuant to Chapter 11 of the bankruptcy Code (as amended, the “Prepackaged Plan”) and the notice of posting the Plan Supplement (“Notice of Posting Plan Supplement”) are attached hereto as Exhibits 99.1 and 99.2 and are hereby incorporated by reference into this Item 8.01.

 

The Plan Supplement includes supplemental information to the Prepackaged Plan included in the Company’s Registration Statements on S-4 described above and updates certain information in the Joint Proxy Statement/Prospectus and the Exchange Prospectus (each as defined below), including with respect to the composition of the Company’s board following the merger and with respect to the proposed amendment to the Company’s credit facility:

 

Board Composition

  

As previously announced, as of the effective time, the Bonanza Creek board will have seven members consisting of (i) two independent directors appointed by the HPR Consenting Noteholders who are acceptable to Bonanza Creek and (ii) five directors appointed by Bonanza Creek, consisting of Brian Steck as Chairman of the Bonanza Creek board and four other directors of the Bonanza Creek Board, which will include Eric Greager, immediately prior to the effective time. The two independent directors to be appointed by the HPR Consenting Noteholders upon closing are expected to be Audrey Robertson and James E. Craddock. Their biographies are included below.

 

Audrey Robertson has served as the co-founder and Chief Financial Officer of Franklin Mountain Energy, LLC, a privateÐil and gas company operating in the Permian Basin since September 2018. She also serves as a co-founder and ManagingÐartner of Copper Trail Partners, LLC, a private equity platform based in Denver since November 2017. From 2005 toÒ016, she served as a Partner and Senior Managing Director at Kayne Anderson Capital Advisors. Prior thereto, she was anÐnvestment banker with Goldman Sachs & Co. Ms. Robertson served on the board of directors of Extraction Oil and Gas,ÐLC from September 2019 to January 2021 and has served on the boards of several private companies and not-for-profitÐrganizations. She holds a Bachelor of Science Degree in Applied Economics and Management from Cornell University and a Master’s Degree in Accounting from the University of Southern California.

 

James E. Craddock served as the Chairman and Chief Executive Officer of Rosetta Resources, Inc. from February 2013Ðhrough July 2015, when Rosetta merged with Noble Energy, Inc. Mr. Craddock served on Noble’s board of directors fromÒ015 until Noble was acquired by Chevron in 2020. He joined Rosetta in April 2008 as Vice President, Drilling andÐroduction Operations, and was named a Senior Vice President in January 2011. From April 2006 to March 2008,Ðr. Craddock was Chief Operating Officer for BPI Energy, Inc., an exploration and production start-up company focusedÐn coal bed methane development. Mr. Craddock began his industry career with Superior Oil Company in 1981 and thenÐeld a broad range of technical, operational, and strategic roles with Burlington Resources Inc. and its predecessorÜompanies for more than 20 years. At Burlington, he held a series of positions of increasing responsibility. Mr. CraddockÐerves on the board of directors of Crescent Point Energy, Inc. He also serves as a member of the Advisory Board of theÝepartment of Engineering at Texas A&M University. Mr. Craddock received his Bachelor of Science Degree in Mechanical Engineering from Texas A&M University.

 

Proposed Second Amendment to Bonanza Creek Credit Facility

 

In connection with the Merger (as defined below), the Company, JPMorgan Chase Bank, N.A., as the administrative agent, and a syndicate of financial institutions, as lenders, have proposed to enter into a Second Amendment (the “Proposed Second Amendment”) to that certain Credit Agreement dated as of December 7, 2018 (as amended, restated, supplemented or otherwise modified, the “Bonanza Creek Credit Facility”) to, among other things: (i) increase the aggregate maximum commitment amount from $750,000,000 to $1,000,000,000; (ii) increase the available borrowing base from $260,000,000 to $500,000,000; (iii) increase (A) the LIBOR floor from zero to .50% and (B) the alternate base rate floor from zero to 1.50%; (iv) increase the maximum total debt, included in the calculation of the maximum permitted leverage ratio, from $25,000,000 to $35,000,000; (v) decrease (A) on or after April 1, 2021, the maximum permitted net leverage ratio from 3.50 to 3.0 and (B) the maximum permitted leverage ratio for purposes of making a restricted payment, investment or optional or voluntary redemption from 2.75 to 1.0; and (vi) amend certain other covenants and provisions. 

 

Under the Proposed Second Amendment, the Bonanza Creek Credit Facility will be guaranteed by all restricted domestic subsidiaries of the Company (each, a “Bonanza Creek Guarantor” and together with the Company, the “Bonanza Creek Credit Parties”) and by HPR and its subsidiaries (each a “New Obligated Party” and collectively, the “New Obligated Parties”), and will be secured by first priority security interests on substantially all assets, including a mortgage on at least 90% of the total value of the proved oil and gas properties evaluated in the most recently delivered reserve report prior to the Second Amendment effective date, including any engineering reports relating to the oil and gas properties of HPR and its subsidiaries, of each Bonanza Creek Credit Party and New Obligated Party, subject to customary exceptions. 

 

No Offer or Solicitation

 

This communication relates to the proposed business combination transaction (the “Merger”) between the Company and HPR, which includes the commencement by the Company and HPR of (i) exchange offers (the “Exchange Offers”) to effect the exchange of unsecured senior notes of HPR (the “HighPoint Notes”) for shares of the Company’s common stock, par value $0.01 per share (the “BCEI common stock”), or unsecured senior notes to be issued by the Company in connection with the Exchange Offer, (ii) consent solicitations (the “Consent Solicitations”) to certain proposed amendments to the indentures governing the unsecured notes of the HighPoint Notes and (iii) the simultaneous solicitation of the Prepackaged Plan. The Merger, the Exchange Offers, the Consent Solicitations and the Prepackaged Plan are collectively referred to herein as the “Transaction.” Communications in this document do not constitute an offer to sell or the solicitation of an offer to subscribe for or buy any securities or a solicitation of any vote or approval with respect to the Merger, the Exchange Offers and Consent Solicitations or other aspects of the Transaction, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933.

 

Important Additional Information

 

In connection with the Transaction, the Company and HPR have filed materials with the U.S. Securities and Exchange Commission (the “SEC”), including (1) a definitive joint proxy statement/prospectus (the “Joint Proxy Statement/Prospectus”), (2) a consent solicitation and prospectus with respect to the Exchange Offers and Consent Solicitations (the “Exchange Prospectus”), of which the Prepackaged Plan is a part, (3) a Registration Statement on Form S-4, Registration No. 333-251401, with respect to the Merger (the “Merger Registration Statement”), of which the Joint Proxy Statement/Prospectus is a part, and (4) a Registration Statement on Form S-4, Registration No. 333-251402, with respect to the Exchange Offers and Consent Solicitations (together with the Merger Registration Statement, the “Registration Statements”), of which the Exchange Prospectus is a part. The Registration Statements were declared effective by the SEC on February 9, 2021. On February 10, 2021, the Company filed the Joint Proxy Statement/Prospectus and the Exchange Prospectus and began mailing the Joint Proxy Statement/Prospectus to the Company’s stockholders and sending the definitive form of the Exchange Prospectus to the holders of the HighPoint Notes. This document is not a substitute for the Joint Proxy Statement/Prospectus, Exchange Prospectus or Registration Statements or for any other document that the Company or HPR has filed or may file with the SEC and send to the Company’s shareholders or HPR’s shareholders or debt holders in connection with the Transaction. INVESTORS AND SECURITY HOLDERS OF THE COMPANY AND HPR ARE URGED TO CAREFULLY AND THOROUGHLY READ THE JOINT PROXY STATEMENT/PROSPECTUS, REGISTRATION STATEMENTS AND EXCHANGE PROSPECTUS, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND OTHER RELEVANT DOCUMENTS FILED BY THE COMPANY AND HPR WITH THE SEC, WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY, HPR, THE TRANSACTION, THE RISKS RELATED THERETO AND RELATED MATTERS.

 

2

 

 

Investors will be able to obtain free copies of the Registration Statements, Joint Proxy Statement/Prospectus and Exchange Prospectus, as each may be amended from time to time, and other relevant documents filed by the Company and HPR with the SEC (when they become available) through the website maintained by the SEC at www.sec.gov. Copies of documents filed with the SEC by the Company will be available free of charge from the Company’s website at www.bonanzacrk.com under the “For Investors” tab or by contacting the Company’s Investor Relations Department at (720) 225-6679 or slandreth@bonanzacrk.com. Copies of documents filed with the SEC by HPR will be available free of charge from HPR’s website at www.hpres.com under the “Investors” tab or by contacting HPR’s Investor Relations Department at (303) 312-8514 or lbusnardo@hpres.com.

 

Participants in the Solicitation

 

The Company, HPR and their respective directors and certain of their executive officers and other members of management and employees may be deemed, under SEC rules, to be participants in the solicitation of proxies from the Company’s shareholders and HPR’s shareholders in connection with the Transaction. Information regarding the executive officers and directors of the Company is included in its definitive proxy statement for its 2020 annual meeting filed with the SEC on April 24, 2020. Information regarding the executive officers and directors of HPR is included in its definitive proxy statement for its 2020 annual meeting filed with the SEC on March 18, 2020. Additional information regarding the persons who may be deemed participants and their direct and indirect interests, by security holdings or otherwise, are set forth in the Registration Statements, Joint Proxy Statement/Prospectus and other materials when they are filed with the SEC in connection with the Transaction. Free copies of these documents may be obtained as described in the preceding paragraph.

 

Forward-Looking Statements and Cautionary Statements

 

Certain statements in this document concerning the Transaction, including any statements regarding the expected timetable for completing the Transaction, the results, effects, benefits and synergies of the Transaction, future opportunities for the combined company, future financial performance and condition, guidance and any other statements regarding the Company’s future expectations, beliefs, plans, objectives, financial conditions, assumptions or future events or performance that are not historical facts are “forward-looking” statements based on assumptions currently believed to be valid. Forward-looking statements are all statements other than statements of historical facts. The words “anticipate,” “believe,” “ensure,” “expect,” “if,” “intend,” “estimate,” “probable,” “project,” “forecasts,” “predict,” “outlook,” “aim,” “will,” “could,” “should,” “would,” “potential,” “may,” “might,” “anticipate,” “likely” “plan,” “positioned,” “strategy,” and similar expressions or other words of similar meaning, and the negatives thereof, are intended to identify forward-looking statements. The forward-looking statements are intended to be subject to the safe harbor provided by Section 27A of the Securities Act of 1933, Section 21E of the Securities Exchange Act of 1934 and the Private Securities Litigation Reform Act of 1995.

 

These forward-looking statements involve significant risks and uncertainties that could cause actual results to differ materially from those anticipated, including, but not limited to, the possibility that shareholders of the Company may not approve the issuance of new shares of BCEI common stock in the Transaction or that shareholders of HPR may not approve the Merger Agreement; the risk that a condition to closing of the Transaction may not be satisfied, that either party may terminate the Merger Agreement or that the closing of the Transaction might be delayed or not occur at all; potential adverse reactions or changes to business or employee relationships, including those resulting from the announcement or completion of the Transaction; the diversion of management time on Transaction-related issues; the ultimate timing, outcome and results of integrating the operations of the Company and HPR; the effects of the business combination of the Company and HPR, including the combined company’s future financial condition, results of operations, strategy and plans; the ability of the combined company to realize anticipated synergies in the timeframe expected or at all; changes in capital markets and the ability of the combined company to finance operations in the manner expected; regulatory approval of the Transaction; the effects of commodity prices; the risks of oil and gas activities; the risk that the requisite amount of HPR debt does not participate in the Exchange Offers and that HPR may need to reorganize in bankruptcy as a result; the risks and unpredictability inherent in the bankruptcy process; and the fact that operating costs and business disruption may be greater than expected following the public announcement or consummation of the Transaction. Expectations regarding business outlook, including changes in revenue, pricing, capital expenditures, cash flow generation, strategies for our operations, oil and natural gas market conditions, legal, economic and regulatory conditions, and environmental matters are only forecasts regarding these matters.

 

3

 

 

Additional factors that could cause results to differ materially can be found in (i) the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, which is on file with the SEC and available from the Company’s website at www.bonanzacrk.com under the “For Investors” tab, (ii) in other documents the Company files with the SEC and (iii) HPR’s Annual Report on Form 10-K for the year ended December 31, 2020 attached to the Company’s report on Form 8-K filed on March 1, 2021.

 

All forward-looking statements speak only as of the date they are made and are based on information available at that time. The Company does not assume any obligation to update forward-looking statements to reflect circumstances or events that occur after the date the forward-looking statements were made or to reflect the occurrence of unanticipated events except as required by federal securities laws. As forward-looking statements involve significant risks and uncertainties, caution should be exercised against placing undue reliance on such statements.

 

Item 9.01 Financial Statements and Exhibits.

 

(d)       Exhibits.

 

Exhibit
No.
  Description
     
99.1   Plan Supplement dated as of March 4, 2021.
     
99.2   Notice of Posting Plan Supplement dated as of March 4, 2021.
     
104   Cover Page Interactive Data File (embedded within the Inline XBRL document)

  

4

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  BONANZA CREEK ENERGY, INC.
     
Dated: March 5, 2021 By: /s/ Cyrus D. Marter IV  
    Cyrus D. Marter IV
    Executive Vice President, General Counsel and Secretary

 

5

 

 

Exhibit 99.1

 

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

 

  )  
In re: ) Chapter 11
  )  
HIGHPOINT RESOURCES CORP., et al.,1 ) Case No. 21-[_____] (___)
  )  
Debtors. ) (Joint Administration Requested)
  )  

 

Plan Supplement for the DEBTORS’ 

JOINT PREPACKAGED PLAN OF REORGANIZATION 

PURSUANT TO CHAPTER 11 OF THE BANKRUPTCY CODE

 

Table of Contents2

 

Exhibit A Form of New Organizational Documents
Exhibit B 1129(a)(5) Disclosure Regarding Directors and Officers
Exhibit C Schedule of Retained Causes of Action
Exhibit D Schedule of Assumed Executory Contracts and Unexpired Leases
Exhibit E Schedule of Rejected Unexpired Leases
Exhibit F Exit RBL Documents
Exhibit G New Take Back Notes Indenture
Exhibit H Registration Rights Agreement

 

 

1The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are: HighPoint Resources Corporation (0361); HighPoint Operating Corporation (0545); and Fifth Pocket Production, LLC (8360). The location of the Debtors’ principal place of business is 555 17th Street, Suite 3700 Denver, Colorado 80202.

 

2Capitalized terms used but not defined in herein have the meanings given to them in the Plan.

 

 

 

 

Exhibit A

 

Form of New Organizational Documents

 

Certain documents, or portions thereof, contained in this Exhibit A and the Plan Supplement remain subject to continued review by the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties. The respective rights of the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties are expressly reserved, subject to the terms and conditions set forth in the Plan, the Merger Agreement, and the TSA, to alter, amend, modify, or supplement the Plan Supplement and any of the documents contained therein in accordance with the terms of the Plan or by order of the Court; provided that, if any document in this Plan Supplement is altered, amended, modified, or supplemented in any material respect prior to the Confirmation Hearing, the Debtors will file a redline of such document with the Court.

 

The New Organizational Documents are not final and remain subject to negotiation among the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties. The drafts attached herein (the “Draft Organizational Documents”) are subject to material revision in all respects. The final form of the New Organizational Documents shall be subject to the terms and conditions of the Plan, the Merger Agreement, and the TSA, including all consent rights therein, and the Debtors and each interested party (solely to the extent such party has consent rights over such New Organizational Document) reserve all rights to amend (in whole or in part), revise, or supplement the Draft Organizational Documents, and any of the documents and designations contained therein, at any time before the Effective Date of the Plan, or any such other date as may be permitted by the Plan or by order of the Court.

 

This Exhibit A includes the Draft Organizational Documents for the Surviving Corporation (as defined in the Merger Agreement):

 

·Exhibit A(i): Certificate of Formation

 

·Exhibit A(ii): Bylaws

 

 

 

 

Exhibit A(i)

 

Certificate of Formation

 

 

 

 

Form of Certificate of Incorporation of the Surviving Corporation

 

 

 

 

SECOND AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION OF

HIGHPOINT RESOURCES CORPORATION

 

[●], 2021

 

1.                  Name. The name of the corporation is HighPoint Resources Corporation (the “Corporation”).

 

2.                  Address; Registered Office and Agent. The address of the Corporation’s registered office is c/o The Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 in New Castle County, Delaware; and the name of its registered agent at such address is The Corporation Trust Company.

 

3.                  Purposes. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).

 

4.                  Number of Shares. The Corporation shall have authority to issue 1,000 shares of Common Stock with the par value of $0.01 per share.

 

5.                  Election of Directors. Unless and except to the extent that the Bylaws of the Corporation (as amended, restated, supplemented or otherwise modified from time to time, the “Bylaws”) shall so require, the election of directors of the Corporation need not be by written ballot.

 

6.                  Limitation of Liability; Indemnification.

 

(A)             The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he, or a person for whom he is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (a “Covered Person”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all expenses, liability and loss (including, without limitation, attorneys’ fees, judgments, fines, Employee Retirement Income Security Act of 1974 excise taxes and penalties and amounts paid in settlement) reasonably incurred or suffered by such Covered Person in connection with such proceeding.

 

(B)              The Corporation shall, to the fullest extent not prohibited by applicable law as it presently exists or may hereafter be amended, pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition; provided, however, that to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article 6 or otherwise.

 

EXHIBIT A-1

 

 

(C)              The rights to indemnification and advancement of expenses under this Article 6 shall be contract rights and such rights shall continue as to a Covered Person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his heirs, executors and administrators. Notwithstanding the foregoing provisions of this Article 6, except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to a Covered Person in connection with a proceeding (or part thereof) initiated by such Covered Person only if such proceeding (or part thereof) was authorized by the board of directors of the Corporation.

 

(D)             If a claim for indemnification under this Article 6 (following the final disposition of such proceeding) is not paid in full within sixty (60) days after the Corporation has received a claim therefor by the Covered Person, or if a claim for any advancement of expenses under this Article 6 is not paid in full within twenty (20) days after the Corporation has received a statement or statements requesting such amounts to be advanced, the Covered Person shall thereupon (but not before) be entitled to file suit to recover the unpaid amount of such claim. If successful in whole or in part, the Covered Person shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by applicable law. In any such action, the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

(E)              The rights conferred on any Covered Person by this Article 6 shall not be exclusive of any other rights that such Covered Person may have or hereafter acquire under any statute, any provision of this Amended & Restated Certificate of Incorporation (as amended, restated, supplemented or otherwise modified from time to time, this “Certificate of Incorporation”), the Bylaws, any agreement or vote of stockholders or disinterested directors or otherwise.

 

(F)              This Article 6 shall not limit the right of the Corporation, to the extent and in the manner permitted by applicable law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

(G)             Any Covered Person entitled to indemnification and/or advancement of expenses, in each case pursuant to this Article 6, may have certain rights to indemnification, advancement and/or insurance provided by one or more persons with whom or which such Covered Person may be associated. The Corporation hereby acknowledges and agrees that (i) the Corporation shall be the indemnitor of first resort with respect to any proceeding, expense, liability or matter that is the subject of this Article 6, (ii) the Corporation shall be primarily liable for all such obligations and any indemnification afforded to a Covered Person in respect of a proceeding, expense, liability or matter that is the subject of this Article 6, whether created by law, organizational or constituent documents, contract or otherwise, (iii) any obligation of any persons with whom or which a Covered Person may be associated to indemnify such Covered Person and/or advance expenses or liabilities to such Covered Person in respect of any proceeding shall be secondary to the obligations of the Corporation hereunder, (iv) the Corporation shall be required to indemnify each Covered Person and advance expenses to each Covered Person hereunder to the fullest extent provided herein without regard to any rights such Covered Person may have against any other person with whom or which such Covered Person may be associated or insurer of any such person, and (v) the Corporation irrevocably waives, relinquishes and releases any other person with whom or which a Covered Person may be associated from any claim of contribution, subrogation or any other recovery of any kind in respect of amounts paid by the Corporation hereunder.

 

EXHIBIT A-2

 

 

(H)             A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

 

7.                  Certificate Amendments. The Corporation reserves the right at any time, and from time to time, to amend or repeal any provision contained in this Certificate of Incorporation, and add other provisions authorized by the laws of the State of Delaware at the time in force, in the manner now or hereafter prescribed by applicable law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation are granted subject to the rights reserved in this Article 7.

 

[Signature page follows.]

 

EXHIBIT A-3

 

 

IN WITNESS WHEREOF, the undersigned hereby signs this Second Amended and Restated Certificate of Incorporation as of the date first set forth above.

 

 

  HighPoint Resources Corporation
   
  By:                       
  Name:   
  Title:  

 

EXHIBIT A-4

 

 

Exhibit A(ii)

 

Bylaws

 

 

 

 

BYLAWS

 

OF

 

BORON MERGER SUB, INC.

 

 

A Delaware Corporation

 

 

Date of Adoption:

 

November 5, 2020

 

   
   

 

TABLE OF CONTENTS

 

    Page
     
     
  Article I  
  OFFICES  
     
Section 1. Registered Office 1
Section 2. Other Offices 1
     
  Article II  
  STOCKHOLDERS  
     
Section 1. Place of Meetings 1
Section 2. Quorum; Adjournment of Meetings 1
Section 3. Annual Meetings 2
Section 4. Special Meetings 2
Section 5. Record Date 2
Section 6. Notice of Meetings 3
Section 7. Stock List 3
Section 8. Proxies 3
Section 9. Voting; Elections; Inspectors 4
Section 10. Conduct of Meetings 5
Section 11. Treasury Stock 5
Section 12. Action Without Meeting 5
     
  Article III  
  BOARD OF DIRECTORS  
     
Section 1. Power; Number; Term of Office 6
Section 2. Quorum 6
Section 3. Place of Meetings; Order of Business 6
Section 4. First Meeting 6
Section 5. Regular Meetings 6
Section 6. Special Meetings 6
Section 7. Removal 7
Section 8. Vacancies; Increases in the Number of Directors 7
Section 9. Compensation 7
Section 10. Action Without a Meeting; Telephone Conference Meeting 7
Section 11. Approval or Ratification of Acts or Contracts by Stockholders 7
     
  Article IV  
  COMMITTEES  
     
Section 1. Designation; Powers 8
Section 2. Procedure; Meetings; Quorum 8
Section 3. Substitution of Members 8

 

 i 
   

 

  Article V  
  OFFICERS  
     
Section 1. Number, Titles and Term of Office 9
Section 2. Salaries 9
Section 3. Removal 9
Section 4. Vacancies 9
Section 5. Powers and Duties of the Chief Executive Officer 9
Section 6. Powers and Duties of the Chairman of the Board 9
Section 7. Powers and Duties of the President 9
Section 8. Vice Presidents 10
Section 9. Treasurer 10
Section 10. Assistant Treasurers 10
Section 11. Secretary 10
Section 12. Assistant Secretaries 10
Section 13. Action with Respect to Securities of Other Corporations 11
     
  Article VI  
  INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS  
     
Section 1. Right to Indemnification 11
Section 2. Right to Advancement of Expenses 11
Section 3. Contract Rights 11
Section 4. Right of Indemnitee to Bring Suit 12
Section 5. Non-Exclusivity of Rights 12
Section 6. Indemnification of Other Persons 12
Section 7. Corporation as Indemnitor of First Resort 13
Section 8. Insurance 13
     
  Article VII  
  CAPITAL STOCK  
     
Section 1. Certificates of Stock 13
Section 2. Transfer of Shares 14
Section 3. Ownership of Shares 14
Section 4. Regulations Regarding Certificates 14
Section 5. Lost or Destroyed Certificates 14
     
  Article VIII  
  MISCELLANEOUS PROVISIONS  
     
Section 1. Fiscal Year 14
Section 2. Corporate Seal 14
Section 3. Notice and Waiver of Notice 14
Section 4. Resignations 15
Section 5. Facsimile Signatures 15
Section 6. Reliance upon Books, Reports and Records 15
Section 7. Form of Records 15

 

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  Article IX  
  AMENDMENTS  
     
Section 1. Amendments 15

 

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BYLAWS

 

OF

 

BORON MERGER SUB, INC.

 

Article I
OFFICES

 

Section 1.          Registered Office. The registered office of Boron Merger Sub, Inc. (the “Corporation”) required by the General Corporation Law of the State of Delaware (the “DGCL”) to be maintained in the State of Delaware, shall be the registered office named in the original Certificate of Incorporation of the Corporation (as the same may be amended and restated from time to time, the “Certificate of Incorporation”), or such other office as may be designated from time to time by the Board of Directors of the Corporation (the “Board of Directors”) in the manner provided by law. Should the Corporation maintain a principal office within the State of Delaware such registered office need not be identical to such principal office of the Corporation.

 

Section 2.          Other Offices. The Corporation may have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or as the business of the Corporation may require.

 

Article II
STOCKHOLDERS

 

Section 1.          Place of Meetings. All meetings of the stockholders shall be held at the principal office of the Corporation, or at such other place within or without the State of Delaware as shall be specified or fixed in the notices or waivers of notice thereof.

 

Section 2.          Quorum; Adjournment of Meetings. Unless otherwise required by law or provided in the Certificate of Incorporation or these bylaws, the holders of shares of stock with a majority of the voting power entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at any meeting of stockholders for the transaction of business and the act of the holders of a majority of the voting power of such stock so represented at any meeting of stockholders at which a quorum is present shall constitute the act of the meeting of stockholders. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Shares of the Corporation’s stock belonging to the Corporation or to another corporation, if such shares of stock representing a majority of the voting power entitled to vote in the election of directors of such other corporation are held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation or any subsidiary of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

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Notwithstanding the other provisions of the Certificate of Incorporation or these bylaws, the chairman of the meeting or the holders of shares of stock with a majority of the voting power present in person or represented by proxy at any meeting of stockholders, whether or not a quorum is present, shall have the power to adjourn such meeting from time to time, without any notice other than announcement at the meeting of the time and place of the holding of the adjourned meeting; provided, however, if the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at such meeting. At any such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally called.

 

Section 3.          Annual Meetings. An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place, within or without the State of Delaware, on such date, and at such time as the Board of Directors shall fix and set forth in the notice of the meeting.

 

Section 4.          Special Meetings. Unless otherwise provided in the Certificate of Incorporation, special meetings of the stockholders for any purpose or purposes may be called at any time by the Chairman of the Board (if any), by the chief executive officer or by a majority of the Board of Directors, or by a majority of the executive committee (if any), and shall be called by the Chairman of the Board (if any), by the chief executive officer or the Secretary upon the written request therefor, stating the purpose or purposes of the meeting, delivered to such officer, signed by the holder(s) of at least twenty five percent (25%) of the issued and outstanding stock entitled to vote at such meeting.

 

Section 5.          Record Date. For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders, or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors of the Corporation may fix, in advance, a date as the record date for any such determination of stockholders, which date shall not be more than sixty (60) days nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action.

 

If the Board of Directors does not fix a record date for any meeting of the stockholders, the record date for determining stockholders entitled to notice of or to vote at such meeting shall be at the close of business on the day next preceding the day on which notice is given, or, if in accordance with Article VIII, Section 3 of these bylaws notice is waived, at the close of business on the day next preceding the day on which the meeting is held. If, in accordance with Section 12 of this Article II, corporate action without a meeting of stockholders is to be taken, the record date for determining stockholders entitled to express consent to such corporate action in writing, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is expressed. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

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Section 6.          Notice of Meetings. Written notice of the place, date and hour of all meetings, and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be given by or at the direction of the Chairman of the Board (if any) or the chief executive officer, the Secretary or the other person(s) calling the meeting to each stockholder entitled to vote thereat and shall be delivered not less than ten (10) nor more than sixty (60) days before the date of the meeting, personally, by electronic transmission or by mail. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his or her address as it appears on the records of the Corporation. The Corporation may provide stockholders with notice of a meeting by electronic transmission provided such stockholders have consented to receiving electronic notice.

 

Section 7.          Stock List. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock and showing the address of each such stockholder and the number of shares registered in the name of such stockholder, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either on a reasonably accessible electronic network, provided that the information required to gain access to the list is provided with the notice of the meeting, or during ordinary business hours, at the principal place of business of the Corporation. The stock list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.

 

Section 8.          Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to a corporate action in writing without a meeting may authorize another person or persons to act for him by proxy. Proxies for use at any meeting of stockholders shall be filed with the Secretary, or such other officer as the Board of Directors may from time to time determine by resolution, before or at the time of the meeting. All proxies shall be received and taken charge of and all ballots shall be received and canvassed by the secretary of the meeting who shall decide all questions touching upon the qualification of voters, the validity of the proxies, and the acceptance or rejection of votes, unless an inspector or inspectors shall have been appointed by the chairman of the meeting, in which event such inspector or inspectors shall decide all such questions.

 

No proxy shall be valid after three (3) years from its date, unless the proxy provides for a longer period. Each proxy shall be revocable unless expressly provided therein to be irrevocable and coupled with an interest sufficient in law to support an irrevocable power.

 

Should a proxy designate two or more persons to act as proxies, unless such instrument shall provide the contrary, a majority of such persons present at any meeting at which their powers thereunder are to be exercised shall have and may exercise all the powers of voting or giving consents thereby conferred, or if only one be present, then such powers may be exercised by that one; or, if an even number attend and a majority do not agree on any particular issue, each proxy so attending shall be entitled to exercise such powers in respect of the same portion of the shares as he or she is of the proxies representing such shares.

 

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Section 9.          Voting; Elections; Inspectors. Unless otherwise required by law or provided in the Certificate of Incorporation, each stockholder shall have one vote for each share of stock entitled to vote which is registered in his or her name on the record date for the meeting. Shares registered in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the bylaw (or comparable instrument) of such corporation may prescribe, or in the absence of such provision, as the Board of Directors (or comparable body) of such corporation may determine. Shares registered in the name of a deceased person may be voted by his or her executor or administrator, either in person or by proxy.

 

All voting, except as required by the Certificate of Incorporation or where otherwise required by law, may be by a voice vote; provided, however, that upon demand therefor by stockholders holding shares of stock representing a majority of the voting power present in person or by proxy at any meeting a written ballot vote shall be taken. All elections for directors shall be by written ballot unless otherwise provided in the Certificate of Incorporation. Unless otherwise provided in the Certificate of Incorporation or these bylaws, directors shall be elected by a plurality of the votes cast by the holders of shares of stock entitled to vote in the election of directors at a meeting of stockholders at which a quorum is present. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the Certificate of Incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the Corporation, or applicable law or pursuant to any regulation applicable to the Corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the Corporation which are present in person or by proxy and entitled to vote thereon. Every stock vote shall be taken by written ballots, each of which shall state the name of the stockholder or proxy voting and such other information as may be required under the procedure established for the meeting.

 

At any meeting at which a vote is taken by ballots, the chairman of the meeting may appoint one or more inspectors, each of whom shall subscribe an oath or affirmation to execute faithfully the duties of inspector at such meeting with strict impartiality and according to the best of his or her ability. Such inspector shall (i) ascertain the number of shares of capital stock of the Corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the Corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the Corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the Corporation, the inspectors may consider such information as is permitted by applicable law. The chairman of the meeting may appoint any person to serve as inspector, except no candidate for the office of director shall be appointed as an inspector.

 

Unless otherwise provided in the Certificate of Incorporation, cumulative voting for the election of directors shall be prohibited.

 

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Section 10.          Conduct of Meetings. The meetings of the stockholders shall be presided over by the Chairman of the Board (if any), or if he or she is not present, by the chief executive officer, or if neither the Chairman of the Board (if any), nor chief executive officer is present, by a chairman elected at the meeting. The Secretary of the Corporation, if present, shall act as secretary of such meetings, or if he or she is not present, an Assistant Secretary shall so act; if neither the Secretary nor an Assistant Secretary is present, then a secretary shall be appointed by the chairman of the meeting. The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seem to him in order. Unless the chairman of the meeting of stockholders shall otherwise determine, the order of business shall be as follows:

 

 

(a)Calling of meeting to order.

 

(b)Election of a chairman and the appointment of a secretary if necessary.

 

(c)Presentation of proof of the due calling of the meeting.

 

(d)Presentation and examination of proxies and determination of a quorum.

 

(e)Reading and settlement of the minutes of the previous meeting.

 

(f)Reports of officers and committees.

 

(g)The election of directors if an annual meeting, or a meeting called for that purpose.

 

(h)Unfinished business.

 

(i)New business.

 

(j)Adjournment.

 

Section 11.          Treasury Stock. The Corporation shall not vote, directly or indirectly, shares of its own stock owned by it or any other corporation, if a majority of shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly by the Corporation and such shares shall not be counted for quorum purposes.

 

Section 12.          Action Without Meeting. Unless otherwise provided in the Certificate of Incorporation, any action permitted or required by law, the Certificate of Incorporation or these bylaws to be taken at a meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than a unanimous written consent shall be given by the Secretary to those stockholders who have not consented in writing.

 

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Article III
BOARD OF DIRECTORS

 

Section 1.          Power; Number; Term of Office. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, and subject to the restrictions imposed by law or the Certificate of Incorporation, they may exercise all the powers of the Corporation.

 

The number of directors of the Corporation shall be determined from time to time by resolution of the Board of Directors, unless the Certificate of Incorporation fixes the number of directors, in which case a change in the number of directors shall be made only by amendment of the Certificate of Incorporation. Each director shall hold office for the term for which he or she is elected, and until his or her successor shall have been elected and qualified or until his or her earlier death, resignation or removal.

 

Unless otherwise provided in the Certificate of Incorporation, directors need not be stockholders nor residents of the State of Delaware.

 

Section 2.          Quorum. Unless otherwise provided in the Certificate of Incorporation, a majority of the total number of directors shall constitute a quorum for the transaction of business of the Board of Directors and the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

Section 3.          Place of Meetings; Order of Business. The directors may hold their meetings and may have an office and keep the books of the Corporation, except as otherwise provided by law, in such place or places, within or without the State of Delaware, as the Board of Directors may from time to time determine by resolution. At all meetings of the Board of Directors business shall be transacted in such order as shall from time to time be determined by the Chairman of the Board (if any), or in his or her absence by the chief executive officer, or by resolution of the Board of Directors.

 

Section 4.          First Meeting. Each newly elected Board of Directors may hold its first meeting for the purpose of organization and the transaction of business, if a quorum is present, immediately after and at the same place as the annual meeting of the stockholders. Notice of such meeting shall not be required.

 

Section 5.          Regular Meetings. Regular meetings of the Board of Directors shall be held at such times and places as shall be designated from time to time by resolution of the Board of Directors. Notice of such regular meetings shall not be required.

 

Section 6.          Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board (if any), the chief executive officer or, on the written request of any two directors, by the Secretary, in each case on at least twenty-four (24) hours personal or written notice or on at least twenty-four (24) hours’ notice by electronic transmission to each director. Such notice, or any waiver thereof pursuant to Article VIII, Section 3 hereof, need not state the purpose or purposes of such meeting, except as may otherwise be required by law or provided for in the Certificate of Incorporation or these bylaws.

 

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Section 7.          Removal. Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors; provided that, unless the Certificate of Incorporation otherwise provides, if the Board of Directors is classified, then the stockholders may effect such removal only for cause; and provided further that, if the Certificate of Incorporation expressly grants to stockholders the right to cumulate votes for the election of directors and if less than the entire Board of Directors is to be removed, no director may be removed without cause if the votes cast against his or her removal would be sufficient to elect him or her if then cumulatively voted at an election of the entire Board of Directors, or, if there be classes of directors, at an election of the class of directors of which such director is a part.

 

Section 8.          Vacancies; Increases in the Number of Directors. Unless otherwise provided in the Certificate of Incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, or a sole remaining director; and any director so chosen shall hold office until the next annual election and until his or her successor shall be duly elected and shall qualify, unless sooner displaced.

 

If the directors of the Corporation are divided into classes, any directors elected to fill vacancies or newly created directorships shall hold office until the next election of the class for which such directors shall have been chosen, and until their successors shall be duly elected and shall qualify.

 

Section 9.          Compensation. Unless otherwise restricted by the Certificate of Incorporation, the Board of Directors shall have the authority to fix the compensation of directors.

 

Section 10.        Action Without a Meeting; Telephone Conference Meeting. Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the Board of Directors, or any committee designated by the Board of Directors, may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee. Such consent shall have the same force and effect as a unanimous vote at a meeting, and may be stated as such in any document or instrument filed with the Secretary of State of Delaware.

 

Unless otherwise restricted by the Certificate of Incorporation, subject to the requirement for notice of meetings, members of the Board of Directors, or members of any committee designated by the Board of Directors, may participate in a meeting of such Board of Directors or committee, as the case may be, by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in such a meeting shall constitute presence in person at such meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

 

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Section 11.          Approval or Ratification of Acts or Contracts by Stockholders. The Board of Directors in its discretion may submit any act or contract for approval or ratification at any annual meeting of the stockholders, or at any special meeting of the stockholders called for the purpose of considering any such act or contract, and any act or contract that shall be approved or be ratified by the vote of the holders of shares of stock representing a majority of the voting power entitled to vote and present in person or by proxy at such meeting (provided that a quorum is present), shall be as valid and as binding upon the Corporation and upon all the stockholders as if it has been approved or ratified by every stockholder of the Corporation. In addition, any such act or contract may be approved or ratified by the written consent of the holders of shares of stock representing a majority of the voting power entitled to vote and such consent shall be as valid and as binding upon the Corporation and upon all the stockholders as if it had been approved or ratified by every stockholder of the Corporation.

 

Article IV
COMMITTEES

 

Section 1.          Designation; Powers. The Board of Directors may, by resolution passed by a majority of the whole board, designate one or more committees, including, if they shall so determine, an executive committee, each such committee to consist of one or more of the directors of the Corporation. Any such designated committee shall have and may exercise such of the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation as may be provided in such resolution, except that no such committee shall have the power or authority of the Board of Directors in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders an agreement of merger, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution of the Corporation, or amending, altering or repealing the bylaws or adopting new bylaws for the Corporation and, unless such resolution or the Certificate of Incorporation expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Any such designated committee may authorize the seal of the Corporation to be affixed to all papers which may require it. In addition to the above, such committee or committees shall have such other powers and limitations of authority as may be determined from time to time by resolution adopted by the Board of Directors.

 

Section 2.          Procedure; Meetings; Quorum. Any committee designated pursuant to Section 1 of this Article IV shall choose its own chairman, shall keep regular minutes of its proceedings and report the same to the Board of Directors when requested, shall fix its own rules or procedures, and shall meet at such times and at such place or places as may be provided by such rules, or by resolution of such committee or resolution of the Board of Directors. At every meeting of any such committee, the presence of a majority of all the members thereof shall constitute a quorum and the affirmative vote of a majority of the members present shall be necessary for the adoption by it of any resolution.

 

Section 3.          Substitution of Members. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.

 

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Article V
OFFICERS

 

Section 1.          Number, Titles and Term of Office. The officers of the Corporation shall be a chief executive officer and a Secretary and, if the Board of Directors so elects, a Chairman of the Board, one or more Vice Presidents (any one or more of whom may be designated Executive Vice President or Senior Vice President), a Treasurer and such other officers as the Board of Directors may from time to time elect or appoint. Each officer shall hold office until his or her successor shall be duly elected and shall qualify or until his or her death or until he or she shall resign or shall have been removed in the manner hereinafter provided. Any number of offices may be held by the same person, unless the Certificate of Incorporation provides otherwise. Except for the Chairman of the Board, if any, no officer need be a director.

 

Section 2.          Salaries. The salaries or other compensation of the officers and agents of the Corporation shall be fixed from time to time by the Board of Directors.

 

Section 3.          Removal. Any officer or agent elected or appointed by the Board of Directors may be removed, either with or without cause, by the vote of a majority of the whole Board of Directors at a special meeting called for the purpose, or at any regular meeting of the Board of Directors. Election or appointment of an officer or agent shall not of itself create contract rights.

 

Section 4.          Vacancies. Any vacancy occurring in any office of the Corporation may be filled by the Board of Directors.

 

Section 5.          Powers and Duties of the Chief Executive Officer. The President shall be the chief executive officer of the Corporation unless the Board of Directors designates the Chairman of the Board or any other officer as chief executive officer. Subject to the control of the Board of Directors and the executive committee (if any), the chief executive officer shall have general executive charge, management and control of the properties, business and operations of the Corporation with all such powers as may be reasonably incident to such responsibilities; he or she may agree upon and execute all leases, contracts, evidences of indebtedness and other obligations in the name of the Corporation and may sign all certificates for shares of capital stock of the Corporation; and shall have such other powers and duties as designated in accordance with these bylaws and as from time to time may be assigned to him by the Board of Directors.

 

Section 6.          Powers and Duties of the Chairman of the Board. If elected, the Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors; shall have such other powers and duties as designated in these bylaws and as from time to time may be assigned to him by the Board of Directors.

 

Section 7.          Powers and Duties of the President. Unless the Board of Directors otherwise determines, the President shall have the authority to agree upon and execute all leases, contracts, evidences of indebtedness and other obligations in the name of the Corporation; and, unless the Board of Directors otherwise determines, he or she shall, in the absence of the Chairman of the Board or if there be no Chairman of the Board, preside at all meetings of the stockholders and (should he or she be a director) of the Board of Directors; and he or she shall have such other powers and duties as designated in accordance with these bylaws and as from time to time may be assigned to him or her by the Board of Directors.

 

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Section 8.           Vice Presidents. In the absence of the chief executive officer, or in the event of his or her inability or refusal to act, a Vice President designated by the Board of Directors shall perform the duties of the chief executive officer, and when so acting shall have all the powers of and be subject to all the restrictions upon the chief executive officer. In the absence of a designation by the Board of Directors of a Vice President to perform the duties of the chief executive officer, or in the event of his or her absence or inability or refusal to act, the Vice President who is present and who is senior in terms of time as a Vice President of the Corporation shall so act. The Vice Presidents shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

 

Section 9.           Treasurer. The Treasurer, if any, shall have responsibility for the custody and control of all the funds and securities of the Corporation, and he or she shall have such other powers and duties as designated in these bylaws and as from time to time may be assigned to him or her by the Board of Directors. He or she shall perform all acts incident to the position of Treasurer, subject to the control of the chief executive officer and the Board of Directors; and he or she shall, if required by the Board of Directors, give such bond for the faithful discharge of his or her duties in such form as the Board of Directors may require.

 

Section 10.          Assistant Treasurers. Each Assistant Treasurer, if any, shall have the usual powers and duties pertaining to his or her office, together with such other powers and duties as designated in these bylaws and as from time to time may be assigned to him or her by the chief executive officer or the Board of Directors. The Assistant Treasurers shall exercise the powers of the Treasurer during that officer’s absence or inability or refusal to act.

 

Section 11.          Secretary. The Secretary shall keep the minutes of all meetings of the Board of Directors, committees of directors and the stockholders, in books provided for that purpose; he or she shall attend to the giving and serving of all notices; he or she may in the name of the Corporation affix the seal of the Corporation to all contracts of the Corporation and attest the affixation of the seal of the Corporation thereto; he or she may sign with the other appointed officers all certificates for shares of capital stock of the Corporation; he or she shall have charge of the certificate books, transfer books and stock ledgers, and such other books and papers as the Board of Directors may direct, all of which shall at all reasonable times be open to inspection of any director upon application at the office of the Corporation during business hours; he or she shall have such other powers and duties as designated in these bylaws and as from time to time may be assigned to him or her by the Board of Directors or the chief executive officer; and he or she shall in general perform all acts incident to the office of Secretary, subject to the control of the chief executive officer and the Board of Directors.

 

Section 12.          Assistant Secretaries. Each Assistant Secretary, if any, shall have the usual powers and duties pertaining to his or her office, together with such other powers and duties as designated in these bylaws and as from time to time may be assigned to him or her by the chief executive officer or the Board of Directors. The Assistant Secretaries shall exercise the powers of the Secretary during that officer’s absence or inability or refusal to act.

 

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Section 13.         Action with Respect to Securities of Other Corporations. Unless otherwise directed by the Board of Directors, the chief executive officer shall have power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of security holders of or with respect to any action of security holders of any other corporation in which the Corporation may hold securities and to otherwise exercise any and all rights and powers which this Corporation may possess by reason of its ownership of securities in such other corporation.

 

Article VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS

 

Section 1.          Right to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he, or a person for whom he is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (a “Covered Person”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, trustee, employee or agent, or in any other capacity while serving as a director, officer, trustee, employee or agent, against all expenses, liability and loss (including, without limitation, attorneys’ fees, judgments, fines, Employee Retirement Income Security Act of 1974 excise taxes and penalties and amounts paid in settlement) reasonably incurred or suffered by such Covered Person in connection with such proceeding.

 

Section 2.          Right to Advancement of Expenses. The Corporation shall, to the fullest extent not prohibited by applicable law as it presently exists or may hereafter be amended, pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition; provided, however, that to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined by final judicial decision from which there is no further right to appeal (hereinafter, a “final adjudication”) that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 3.          Contract Rights. The rights to indemnification and advancement of expenses under this Article VI shall be contract rights and such rights shall continue as to a Covered Person who has ceased to be a director, officer, trustee, employee or agent and shall inure to the benefit of his heirs, executors and administrators. Notwithstanding the foregoing provisions of this Article VI, except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to a Covered Person in connection with a proceeding (or part thereof) initiated by such Covered Person only if such proceeding (or part thereof) was authorized by the Board of Directors.

 

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Section 4.          Right of Indemnitee to Bring Suit. If a claim for indemnification under this Article VI (following the final disposition of such proceeding) is not paid in full within 60 days after the Corporation has received a claim therefor by the Covered Person, or if a claim for any advancement of expenses under this Article VI is not paid in full within 20 days after the Corporation has received a statement or statements requesting such amounts to be advanced, the Covered Person shall thereupon (but not before) be entitled to file suit to recover the unpaid amount of such claim. If successful in whole or in part, the Covered Person shall be entitled to be paid the expense of prosecuting such claim, or a claim brought by the Corporation to recover an advancement of expenses prior to the terms of an undertaking, to the fullest extent permitted by applicable law. In any such action, the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law. In (i) any suit brought by a Covered Person to enforce a right to indemnification hereunder (but not in a suit brought by a Covered Person to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the Covered Person has not met any applicable standard of conduct for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Covered Person is proper in the circumstances because the Covered Person has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel or its stockholders) that the Covered Person has not met such applicable standard of conduct, shall create a presumption that the Covered Person has not met the applicable standard of conduct or, in the case of such a suit brought by the Covered Person, be a defense to such suit. In any suit brought by the Covered Person to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Covered Person is not entitled to be indemnified, or to such advancement of expenses, under this Article VI or otherwise shall be on the Corporation.

 

Section 5.          Non-Exclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights that such Covered Person may have or hereafter acquire under any statute, any provision of the Certificate of Incorporation, these bylaws, any agreement or vote of stockholders or disinterested directors or otherwise.

 

Section 6.          Indemnification of Other Persons. This Article VI shall not limit the right of the Corporation, to the extent and in the manner permitted by applicable law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

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Section 7.          Corporation as Indemnitor of First Resort. Any Covered Person entitled to indemnification and/or advancement of expenses, in each case pursuant to this Article VI, may have certain rights to indemnification, advancement and/or insurance provided by one or more persons with whom or which such Covered Person may be associated. The Corporation hereby acknowledges and agrees that (i) the Corporation shall be the indemnitor of first resort with respect to any proceeding, expense, liability or matter that is the subject of this Article VI, (ii) the Corporation shall be primarily liable for all such obligations and any indemnification afforded to a Covered Person in respect of a proceeding, expense, liability or matter that is the subject of this Article VI, whether created by law, organizational or constituent documents, contract or otherwise, (iii) any obligation of any persons with whom or which a Covered Person may be associated to indemnify such Covered Person and/or advance expenses or liabilities to such Covered Person in respect of any proceeding shall be secondary to the obligations of the Corporation hereunder, (iv) the Corporation shall be required to indemnify each Covered Person and advance expenses to each Covered Person hereunder to the fullest extent provided herein without regard to any rights such Covered Person may have against any other person with whom or which such Covered Person may be associated or insurer of any such person, and (v) the Corporation irrevocably waives, relinquishes and releases any other person with whom or which a Covered Person may be associated from any claim of contribution, subrogation or any other recovery of any kind in respect of amounts paid by the Corporation hereunder.

 

Section 8.          Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any person who is or was serving as a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.

 

Article VII
CAPITAL STOCK

 

Section 1.          Certificates of Stock. Except as provided in this Section 1 of Article VII, the certificates for shares of the capital stock of the Corporation shall be in such form, not inconsistent with that required by law and the Certificate of Incorporation, as shall be approved by the Board of Directors. The Chairman of the Board (if any), chief executive officer or a Vice President shall, subject to the last sentence of this Article VII, Section 1, cause to be issued to each stockholder one or more certificates, under the seal of the Corporation or a facsimile thereof if the Board of Directors shall have provided for such seal, and signed by the Chairman of the Board (if any), chief executive officer or a Vice President and the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer certifying the number of shares (and, if the stock of the Corporation shall be divided into classes or series, the class and series of such shares) owned by such stockholder in the Corporation; provided, however, that any of or all the signatures on the certificate may be facsimile. The stock record books and the blank stock certificate books shall be kept by the Secretary, or at the office of such transfer agent or transfer agents as the Board of Directors may from time to time by resolution determine. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature or signatures shall have been placed upon any such certificate or certificates shall have ceased to be such officer, transfer agent or registrar before such certificate is issued by the Corporation, such certificate may nevertheless be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. The stock certificates (if any) shall be consecutively numbered and shall be entered in the books of the Corporation as they are issued and shall exhibit the holder’s name and number of shares. The Board of Directors may deem that any outstanding shares of the Corporation will be uncertificated and registered in such form on the stock books of the Corporation.

 

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Section 2.          Transfer of Shares. Subject to the provisions of the Certificate of Incorporation and any other applicable agreements regarding the transfer of stock, the shares of stock of the Corporation shall be transferable only on the books of the Corporation by the holders thereof in person or by their duly authorized attorneys or legal representatives upon surrender and cancellation of certificates for a like number of shares. Subject to the provisions of the Certificate of Incorporation and any other applicable agreements regarding the transfer of stock, upon surrender to the Corporation or a transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

 

Section 3.          Ownership of Shares. The Corporation shall be entitled to treat the holder of record of any share or shares of capital stock of the Corporation as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.

 

Section 4.          Regulations Regarding Certificates. The Board of Directors shall have the power and authority to make all such rules and regulations as they may deem expedient concerning the issue, transfer and registration or the replacement of certificates for shares of capital stock of the Corporation.

 

Section 5.          Lost or Destroyed Certificates. The Board of Directors may determine the conditions upon which a new certificate of stock may be issued in place of a certificate which is alleged to have been lost, stolen or destroyed; and may, in their discretion, require the owner of such certificate or his or her legal representative to give bond, with sufficient surety, to indemnify the Corporation and each transfer agent and registrar against any and all losses or claims which may arise by reason of the issue of a new certificate in the place of the one so lost, stolen or destroyed.

 

Article VIII
MISCELLANEOUS PROVISIONS

 

Section 1.          Fiscal Year. The fiscal year of the Corporation shall be such as established from time to time by the Board of Directors.

 

Section 2.          Corporate Seal. The Board of Directors may provide a suitable seal, containing the name of the Corporation. The Secretary shall have charge of the seal (if any). If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by the Assistant Secretary or Assistant Treasurer.

 

Section 3.          Notice and Waiver of Notice. Whenever any notice is required to be given by law, the Certificate of Incorporation or under the provisions of these bylaws, said notice shall be deemed to be sufficient if given (i) by electronic transmission or (ii) by deposit of the same in a post office box in a sealed prepaid wrapper addressed to the person entitled thereto at his or her post office address, as it appears on the records of the Corporation, and such notice shall be deemed to have been given on the day of such transmission or mailing, as the case may be.

 

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Whenever notice is required to be given by law, the Certificate of Incorporation or under any of the provisions of these bylaws, a written waiver thereof, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the grounds that the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in any written waiver of notice unless so required by the Certificate of Incorporation or these bylaws.

 

Section 4.          Resignations. Any director, member of a committee or officer may resign at any time. Such resignation shall be made in writing or by electronic transmission and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the chief executive officer or Secretary. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

 

Section 5.          Facsimile Signatures. In addition to the provisions for the use of facsimile signatures elsewhere specifically authorized in these bylaws, facsimile signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors.

 

Section 6.          Reliance upon Books, Reports and Records. Each director and each member of any committee designated by the Board of Directors shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or reports made to the Corporation by any of its officers, or by an independent certified public accountant, or by an appraiser selected with reasonable care by the Board of Directors or by any such committee, or in relying in good faith upon other records of the Corporation.

 

Section 7.          Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

 

Article IX
AMENDMENTS

 

Section 1.          Amendments. If provided in the Certificate of Incorporation of the Corporation, the Board of Directors shall have the power to adopt, amend and repeal from time to time bylaws of the Corporation, subject to the right of the stockholders entitled to vote with respect thereto to amend or repeal such bylaws as adopted or amended by the Board of Directors.

 

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Exhibit B

 

1129(a)(5) Disclosure Regarding Directors and Officers

 

Certain documents, or portions thereof, contained in this Exhibit B and the Plan Supplement remain subject to continued review by the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties. The respective rights of the Debtors, BCEI, the Consenting Noteholders, and the Consenting Shareholders are expressly reserved, subject to the terms and conditions set forth in the Plan, the Merger Agreement, and the TSA, to alter, amend, modify, or supplement the Plan Supplement and any of the documents contained therein in accordance with the terms of the Plan or by order of the Court; provided that, if any document in this Plan Supplement is altered, amended, modified, or supplemented in any material respect prior to the Confirmation Hearing, the Debtors will file a redline of such document with the Court.

 

The 1129(a)(5) Disclosure Regarding Directors and Officers is not final and remains subject to negotiation among the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties. The draft attached herein (the “Draft 1129(a)(5) Disclosure Regarding Directors and Officers”) is subject to material revision in all respects. The final form of the 1129(a)(5) Disclosure Regarding Directors and Officers shall be subject to the terms and conditions of the Plan, the Merger Agreement, and the TSA, including all consent rights therein, and the Debtors and each interested party (solely to the extent such party has consent rights over such 1129(a)(5) Disclosure Regarding Directors and Officers) reserve all rights to amend (in whole or in part), revise, or supplement the Draft 1129(a)(5) Disclosure Regarding Directors and Officers, and any of the documents and designations contained therein, at any time before the Effective Date of the Plan, or any such other date as may be permitted by the Plan or by order of the Court.

 

 

 

 

1129(a)(5) Disclosure Regarding Directors and Officers

 

To the extent known, the identity of the members of the New BCEI Board and officers of the Reorganized Debtors and BCEI will be disclosed in this Plan Supplement to be filed prior to the Confirmation Hearing. Except as set forth in this Plan Supplement, as of the Effective Date and except to the extent that a member of the board of directors of a Debtor continues to serve as a director of such Reorganized Debtor on the Effective Date, the members of the board of directors of each Debtor prior to the Effective Date, in their capacities as such, shall have no continuing obligations to the Reorganized Debtors on or after the Effective Date and each such director will be deemed to have resigned or shall otherwise cease to be a director of the applicable Debtor on the Effective Date. Commencing on the Effective Date, each of the directors and officers of each of the Reorganized Debtors shall serve pursuant to the terms of the applicable New Organizational Documents of such Reorganized Debtor and may be replaced or removed in accordance with such New Organizational Documents.

 

Pursuant to Article IV.E.11 of the Plan, on the Effective Date, Unless otherwise provided in the Plan and in the Merger Agreement, and subject to Article V of the Plan, the Reorganized Debtors shall: (a) assume all employment agreements, indemnification agreements, or other agreements providing for compensation and benefits with current and former members of any Governing Body, employees, officers, directors, or managers of the Debtors; or (b) enter into new agreements with such persons on terms and conditions acceptable to the Reorganized Debtors and BCEI, and such person. Except as provided in the Merger Agreement, none of the consummation of the Plan, the Restructuring Transactions, or any assumption of compensation agreements under the terms herein shall be deemed to trigger any applicable change of control, vesting, termination, or similar provisions for purposes herein. Notwithstanding the foregoing, (i) pursuant to section 1129(a)(13) of the Bankruptcy Code, from and after the Effective Date, all retiree benefits (as such term is defined in section 1114 of the Bankruptcy Code), if any, shall continue to be paid in accordance with applicable law, and (ii) immediately prior to the Effective Date, the Debtors’ Executive Nonqualified Excess Plan (the “Excess Plan”) shall be terminated and the Debtors shall distribute to each participant in the Excess Plan, such participant’s account balance under the Excess Plan in accordance with Section 409A of the Internal Revenue Code of 1986, as amended (including Treasury Regulation Section 1.409A-3(j)(4)(ix)(A)).

 

 

 

 

I.             Disclosure Regarding the New BCEI Board

 

The following table identifies the current members of the BCEI board of directors:

 

Name Biography and Affiliations

Brian Steck

 

Brian Steck joined the Bonanza Creek board of directors in April 2017.

 

Mr. Steck has served as a Partner, Senior Analyst at Mangrove Partners, an investment management firm, where he has worked since 2011. Through early 2011, Mr. Steck managed The Laurel Capital Group, LLC, the general partner of a hedge fund he founded in 2009. From 2006 until 2008, Mr. Steck was Head of US Equities at Tisbury Capital where he built and managed a team focused on event- and fundamentally-driven investment opportunities. From 2000 until 2005, Mr. Steck was a partner at K Capital where he focused on European and U.S. opportunities that included special situations, merger arbitrage, deep value and shareholder activism. Prior to K Capital, Mr. Steck spent 10 years at UBS and its predecessors Swiss Bank Corporation and O'Connor & Associates, where he focused on equity derivative trading and risk management, built equity derivative and event-driven client businesses and was Global Co-Head of Equity Hedge Fund Coverage. Mr. Steck serves on the board of directors of Penn Virginia Corporation.

 

Mr. Steck received a Bachelor's of Science, with highest honors, from University of Illinois at Urbana Champaign.

Eric T. Greager

Eric T. Greager, joined Bonanza Creek in April 2018 as President, CEO and member of the board of directors.

 

Mr. Greager has 20 years of management experience in the oil and gas industry and previously served as a Vice-President and General Manager at Encana Oil & Gas (USA) Inc. until his departure in 2018. Mr. Greager joined Encana, an oil and natural gas exploration and production (“E&P”) company, in 2006 and served in various management and executive positions, including leading engineering, geoscience and A&D functions, as well as field operations teams from D&C through production. Most recently, Mr. Greager led Encana's Western Operating Area, which includes Eagle Ford, San Juan and Wind River assets and served as a member of the boards of directors of Encana Procurement Inc. and Encana Oil & Gas (USA) Inc. In addition, Mr. Greager previously served on the board of directors of Western Energy Alliance, the board of trustees of the Texas Parks and Wildlife Foundation, and the board of managers of Hunter Ridge Energy Services.

 

Mr. Greager received his Master's Degree in Economics from the University of Oklahoma and his Bachelor's Degree in Engineering from the Colorado School of Mines. He is a licensed Professional Engineer.

Carrie L. Hudak

Carrie L. Hudak joined the Bonanza Creek board of directors in October 2019.

 

Ms. Hudak served as Vice President of DJ Basin Development for Anadarko Petroleum Corporation, an oil and natural gas E&P company, from May 2017 to September 2019. Prior to that, Ms. Hudak served in various management positions at Anadarko, including General Manager of DJ Basin Development and Execution from March 2016 to May 2017, and Director, Rockies Business Development from November 2014 to March 2016. Ms. Hudak previously served the non-profit organization, Coloradoans for Responsible Energy Development, as its Chairperson from 2018 to 2019, and as a Board Member from 2017 to 2018. Ms. Hudak also served as Treasurer and Executive Board Member for the Colorado Oil and Gas Association from 2017 to 2019.

 

Ms. Hudak received her Master's Degree in Geology from Duke University and her Bachelor's Degree in Geology from Miami University.

 

 

 

 

Paul Keglevic

Paul Keglevic joined the Bonanza Creek board of directors in April 2017.

 

Mr. Keglevic served as the Chief Executive Officer of Energy Future Holdings Corp. ("EFH"), an electric utility company, from October 2016 until his retirement in March 2018. Previously, Mr. Keglevic served as Executive Vice President and Chief Financial Officer for EFH from June 2008 until October 2016. Mr. Keglevic also served as the Chief Restructuring Officer for EFH beginning in April 2014. Mr. Keglevic was a partner at PricewaterhouseCoopers ("PWC"), where he worked from July 2002 to July 2008. At PWC he was a member of the US leadership team. Prior to PWC, Mr. Keglevic served on the US leadership team for Arthur Andersen, where he was a partner for 15 years. Mr. Keglevic serves on the board of directors of Stellus Capital Investment Corp., Frontier Communications Corporation, and Ascena Retail Group, Inc. He previously served as a member of the board of directors of Philadelphia Energy Solutions LLC, Cobalt International Energy, Inc., Clear Channel Outdoor Holdings, Inc., PetSmart, and several subsidiaries of EFH. He has also been on the boards of the Dallas and State of California Chambers of Commerce and several other charitable and advisory boards.

 

Mr. Keglevic received his B.S. in accounting from Northern Illinois University and is a certified public accountant.

Jack E. Vaughn

Jack E. Vaughn joined the Bonanza Creek board of directors in April 2017.

 

Mr. Vaughn has served as the Chairman and Chief Executive Officer of Peak Exploration and Production, LLC, an oil and natural gas E&P company, since March 2011, where he is responsible for executive management of all operational activity, including drilling, completion, and facility construction in all operating areas, as well as all gas and crude oil transportation and marketing, regulatory and environmental compliance activities. Mr. Vaughn serves on the Board of Directors of Saddle Butte Pipeline II, LLC and was the co-founder and a member of the Board of Directors of Momentum Midstream, LLC from 2007 to 2011. In addition, Mr. Vaughn has held several senior management positions at energy companies in the United States, including Peak Energy Resources, Inc., EnerVest Management Partners, LP and Emerald Gas Operating Company.

 

Mr. Vaughn received his B.S. in Petroleum Engineering from the University of Texas at Austin.

Scott D. Vogel

Scott D. Vogel joined the Bonanza Creek board of directors in April 2017.

 

Mr. Vogel has served as the Managing Member at Vogel Partners LLC, a private investment and advisory firm, since July 2016, after serving as Managing Director at Davidson Kempner Capital Management investing in distressed debt securities from 2002 to July 2016. Previously, he worked at MFP Investors, investing in special situations and turnaround opportunities for the private investment firm of Michael F. Price, and at Chase Securities in its investment banking group. Mr. Vogel has served on numerous boards during his career, including Arch Coal, Inc. from October 2016 to May 2019; Key Energy Services, Inc. from December 2016 to April 2019; and Seadrill from July 2018 to February 2020. He currently serves as a member of the board of Contura Energy and Avaya, and several private companies. Mr. Vogel is a member of the Olin Alumni Board of Washington University and a member of the Advisory Board of Grameen America.

 

Mr. Vogel received his M.B.A. from The Wharton School at the University of Pennsylvania and his B.S.B.A. from Washington University.

Jeffrey E. Wojahn

Jeff E. Wojahn joined the Bonanza Creek board of directors in November 2014.

 

Mr. Wojahn served as Executive Vice President of Encana Corporation, an oil and natural gas E&P company, from 2003 to 2013, and was President of Encana Oil & Gas (USA) Inc. from 2006 to 2013. Beginning in 1985, Mr. Wojahn held senior management and operational positions in Canada and the United States and has extensive experience in unconventional resource play development. He has served as the Executive Chairman of MiddleFork Energy Partners since March 2017 and served as a Strategic Advisory Board member for Morgan Stanley Energy Partners from October 2014 until April 2017. Mr. Wojahn serves on the board of directors of Penn Virginia Corporation.

 

He received his B.S. in Geophysics from the University of Calgary in 1985.

 

 

 

 

On and as of the Effective Date, consistent with the terms of the Plan and the Merger Agreement two members of the current BCEI board of directors, such members’ identities to be disclosed prior to the Confirmation Hearing, shall resign, and the New BCEI Board shall consist of the remaining directors and the following individuals:

 

Name Biography and Affiliations
Audrey Robertson

Audrey Robertson has served as the co-founder and Chief Financial Officer of Franklin Mountain Energy, LLC, a private oil and gas company operating in the Permian Basin since September 2018. She also serves as a co-founder and Managing Partner of Copper Trail Partners, LLC, a private equity platform based in Denver since November 2017. From 2005 to 2016, she served as a Partner and Senior Managing Director at Kayne Anderson Capital Advisors. Prior thereto, she was an investment banker with Goldman Sachs & Co. Ms. Robertson served on the board of directors of Extraction Oil and Gas, LLC from September 2019 to January 2021 and has served on the boards of several private companies and not-for-profit organizations.

 

She holds a Bachelor of Science Degree in Applied Economics and Management from Cornell University and a Master’s Degree in Accounting from the University of Southern California.

James E. Craddock

James E. Craddock served as the Chairman and Chief Executive Officer of Rosetta Resources, Inc. from February 2013 through July 2015, when Rosetta merged with Noble Energy, Inc. Mr. Craddock served on Noble’s board of directors from 2015 until Noble was acquired by Chevron in 2020. He joined Rosetta in April 2008 as Vice President, Drilling and Production Operations, and was named a Senior Vice President in January 2011. From April 2006 to March 2008, Mr. Craddock was Chief Operating Officer for BPI Energy, Inc., an exploration and production start-up company focused on coal bed methane development. Mr. Craddock began his industry career with Superior Oil Company in 1981 and then held a broad range of technical, operational, and strategic roles with Burlington Resources Inc. and its predecessor companies for more than 20 years. At Burlington, he held a series of positions of increasing responsibility. Mr. Craddock serves on the board of directors of Crescent Point Energy, Inc. He also serves as a member of the Advisory Board of the Department of Engineering at Texas A&M University.

 

Mr. Craddock received his Bachelor of Science Degree in Mechanical Engineering from Texas A&M University.

 

 

 

 

II.Disclosure Regarding Officers of Debtor HighPoint Resources Corporation

 

The Debtors’ existing officers, R. Scot Woodall (President and Chief Executive Officer), Paul Geiger, (Chief Operating Officer), William M. Crawford (Chief Financial Officer), and Kenneth A. Wonstolen (Senior Vice President and General Counsel) will continue with the Debtors until the Effective Date in their current roles and receive compensation consistent with current practices. Their professional history can be found at https://www.hpres.com/about/senior-leadership/. On and as the Effective Date, the Debtors’ existing officers shall resign and the appointment of officers and executives of the Reorganized Debtors shall be governed by the organizational documents to be adopted on or after the Effective Date, subject to the Plan, the Merger Agreement, and TSA.

 

III.Disclosure Regarding New Officers of the Reorganized Debtors

 

On and as of the Effective Date, consistent with the terms of the Merger Agreement, the Reorganized Debtors’ officers shall consist of Eric Greager (President and Chief Executive Officer), Brant Demuth (Executive Vice President and Chief Financial Officer), Cyrus “Skip” Marter (Executive Vice President, General Counsel, and Secretary), Dean Tinsley (Senior Vice President), and Sandra K. Garbiso (Vice President and Chief Accounting Officer). Their professional history can be found at http://www.bonanzacrk.com/about-bonanza/leadership/executives/.

 

 

 

 

Exhibit C

 

Schedule of Retained Causes of Action

 

Certain documents, or portions thereof, contained in this Exhibit C and the Plan Supplement remain subject to continued review by the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties. The respective rights of the Debtors, BCEI, the Consenting Noteholders, and the Consenting Shareholders are expressly reserved, subject to the terms and conditions set forth in the Plan, the Merger Agreement, and the TSA, to alter, amend, modify, or supplement the Plan Supplement and any of the documents contained therein in accordance with the terms of the Plan or by order of the Court; provided that, if any document in this Plan Supplement is altered, amended, modified, or supplemented in any material respect prior to the Confirmation Hearing, the Debtors will file a redline of such document with the Court.

 

The Schedule of Retained Causes of Action is not final and remains subject to negotiation among the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties. The draft attached herein (the “Draft Schedule of Retained Causes of Action”) is subject to material revision in all respects. The final form of the Schedule of Retained Causes of Action shall be subject to the terms and conditions of the Plan, the Merger Agreement, and the TSA, including all consent rights therein, and the Debtors and each interested party (solely to the extent such party has consent rights over such Schedule of Retained Causes of Action) reserve all rights to amend (in whole or in part), revise, or supplement the Draft Schedule of Retained Causes of Action, and any of the documents and designations contained therein, at any time before the Effective Date of the Plan, or any such other date as may be permitted by the Plan or by order of the Court.

 

 

 

 

Schedule of Retained Causes of Action

 

Article IV.E.12 of the Plan provides as follows:

 

In accordance with section 1123(b) of the Bankruptcy Code, but subject to Article VIII of the Plan, the Reorganized Debtors shall retain and may enforce all rights to commence and pursue, as appropriate, any and all Causes of Action, whether arising before or after the Petition Date, including any actions specifically enumerated in the Schedule of Retained Causes of Action, and the Reorganized Debtors’ rights to commence, prosecute, or settle such Causes of Action shall be preserved notwithstanding the occurrence of the Effective Date, other than the Causes of Action released by the Debtors pursuant to the releases and exculpations contained in the Plan, including in Article VIII.

 

The Reorganized Debtors may pursue such Causes of Action, as appropriate, in accordance with the best interests of the Reorganized Debtors. No Entity may rely on the absence of a specific reference in the Plan, the Plan Supplement, or the Disclosure Statement to any Cause of Action against it as any indication that the Debtors or Reorganized Debtors, as applicable, will not pursue any and all available Causes of Action against it. The Debtors or Reorganized Debtors, as applicable, expressly reserve all rights to prosecute any and all Causes of Action against any Entity, except as otherwise expressly provided in the Plan, including Article VIII of the Plan. Unless any Causes of Action against an Entity are expressly waived, relinquished, exculpated, released, compromised, or settled in the Plan or a Court order, the Reorganized Debtors expressly reserve all Causes of Action, for later adjudication, and, therefore, no preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable, or otherwise), or laches, shall apply to such Causes of Action upon, after, or as a consequence of the Confirmation or consummation.

 

The Reorganized Debtors reserve and shall retain such Causes of Action notwithstanding the rejection or repudiation of any Executory Contract or Unexpired Lease during the Chapter 11 Cases or pursuant to the Plan. In accordance with section 1123(b)(3) of the Bankruptcy Code, any Causes of Action that a Debtor may hold against any Entity shall vest in the Reorganized Debtors, except as otherwise expressly provided in the Plan, including Article VIII of the Plan. The Reorganized Debtors, through their authorized agents or representatives, shall retain and may exclusively enforce any and all such Causes of Action. The Reorganized Debtors shall have the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes of Action and to decline to do any of the foregoing without the consent or approval of any third party or further notice to or action, order, or approval of the Court.

 

 

 

 

Notwithstanding and without limiting the generality of Article IV.E.12 of the Plan, the Debtors and the Reorganized Debtors, as applicable, expressly reserve all Causes of Action, including the following types of claims:

 

I.Claims Related to Ordinary Course Business Dealings and Payments

 

Unless otherwise specifically released by the Plan, the Debtors expressly reserve the claims or Causes of Actions, based in whole or in part upon any and all contracts and leases, including without limitation oil and gas leases, joint operating agreements, and similar instruments, to which any Debtor or Reorganized Debtor is a party or pursuant to which any Debtor or Reorganized Debtor has any rights whatsoever, regardless of whether such contract or lease is included herein, including without limitation all contracts and leases that are assumed pursuant to the Plan or were previously assumed by the Debtors. The claims and Causes of Actions reserved include, without limitation, claims and Causes of Action against vendors, suppliers of goods or services, customers, or any other parties: (a) for overpayments, back charges, duplicate payments, improper holdbacks, deposits, warranties, guarantees, indemnities, recoupment, or setoff; (b) for breach of contract, wrongful or improper termination, suspension of services or supply of goods, or failure to meet other contractual or regulatory obligations; (c) for failure to fully perform or to condition performance on additional requirements under contracts with any one or more of the Debtors before the assumption or rejection, if applicable, of such contracts; (d) for payments, deposits, holdbacks, reserves, or other amounts owed by any creditor, utility, supplier, vendor, insurer, surety, factor, lender, bondholder, lessor, or other party; (e) for any liens, including mechanic’s, artisan’s, materialmen’s, possessory, or statutory liens held by any one or more of the Debtors; (f) for environmental or contaminant exposure matters against landlords, lessors, environmental consultants, environmental agencies, or suppliers of environmental services or goods; (g) for counterclaims and defenses related to any contractual obligations; (h) for any turnover actions arising under section 542 or 543 of the Bankruptcy Code; and (i) for unfair competition, interference with contract or potential business advantage, breach of contract, infringement of intellectual property, or any business tort claims.

 

II.Claims Related to Insurance Policies

 

Unless otherwise released by the Plan, the Debtors expressly reserve all claims and Causes of Action based in whole or in part upon any and all insurance contracts and insurance policies to which any Debtor or Reorganized Debtor is a party or pursuant to which any Debtor or Reorganized Debtor has any rights whatsoever, regardless of whether such contract or policy is specifically identified in the Plan, this Plan Supplement, or any amendments thereto, including, without limitation, Causes of Action against insurance carriers, reinsurance carriers, insurance brokers, underwriters, occurrence carriers, or surety bond issuers relating to coverage, indemnity, contribution, reimbursement, or any other matters.

 

III.Claims Related to Deposits/Prepayments, Adequate Assurance, and Other Collateral Postings

 

Unless otherwise released by the Plan, the Debtors expressly reserve all claims and Causes of Action based in whole or in part upon any and all postings of a security deposits, adequate assurance payment, or any other type of deposit, prepayment, or collateral, regardless of whether such posting of security deposit, adequate assurance payment, or any other type of deposit, prepayment or collateral is specifically identified herein.

 

 

 

 

IV.Claims Related to Liens

 

Unless otherwise released by the Plan, the Debtors expressly reserve all claims and Causes of Action based in whole or in part upon any and all liens regardless of whether such lien is specifically identified herein.

 

V.Claims, Defenses, Cross-Claims, and Counter-Claims Related to Litigation, Possible Litigation, and Administrative Actions

 

Unless otherwise released by the Plan, the Debtors expressly reserve all claims and Causes of Action against or related to all Entities that are party to or that may in the future become party to any litigation, arbitration, administrative proceeding, or any other type of adversarial proceeding or dispute resolution proceeding, whether formal or informal or judicial or non-judicial, regardless of whether such Entity is specifically identified in the Plan, this Plan Supplement, or any amendments thereto.

 

VI.Claims Related to Accounts Receivable and Accounts Payable

 

Unless otherwise released by the Plan, the Debtors expressly reserve all claims and Causes of Action against or related to all Entities that owe or that may in the future owe money to the Debtors or Reorganized Debtors, regardless of whether such Entity is expressly identified in the Plan, this Plan Supplement, or any amendments thereto. Furthermore, the Debtors expressly reserve all Causes of Action against or related to all Entities who assert or may assert that the Debtors or Reorganized Debtors, as applicable, owe money to them. The claims and Causes of Action reserved include Causes of Action against vendors, suppliers of goods and services, or any other parties: (a) for overpayments, back charges, duplicate payments, improper holdbacks, deductions owing or improper deductions taken, deposits, warranties, guarantees, indemnities, recoupment, or setoff; (b) for wrongful or improper termination, suspension of services or supply of goods, or failure to meet other contractual or regulatory obligations; (c) for failure to fully perform or to condition performance on additional requirements under contracts with any one or more of the Debtors before the assumption or rejection, if applicable, of such contracts; (d) for payments, deposits, holdbacks, reserves or other amounts owed by any creditor, utility, supplier, vendor, insurer, surety, factor, lender, bondholder, lessor or other party; (e) for any liens, including mechanics’, artisans’, materialmens’, possessory or statutory liens held by any one or more of the Debtors; (f) for counter-claims and defenses related to any contractual obligations; (h) for any turnover actions arising under section 542 or 543 of the Bankruptcy Code; and (i) for unfair competition, interference with contract or potential business advantage, breach of contract, infringement of intellectual property or any business tort claims.

 

VII.Claims Related to Taxing Obligations

 

Unless otherwise released by the Plan, the Debtors expressly reserve all claims and Causes of Action based in whole or in part upon any and all tax obligations to which any Debtor or Reorganized Debtor is a party or pursuant to which any Debtor or Reorganized Debtor has any rights whatsoever, including, without limitation, against or related to all Entities that owe or that may in the future owe money related to tax refunds to the Debtors or the Reorganized Debtors, regardless of whether such Entity is specifically identified herein.

 

 

 

 

Exhibit D

 

Schedule of Assumed Executory Contracts and Unexpired Leases

 

Certain documents, or portions thereof, contained in this Exhibit D and the Plan Supplement remain subject to continued review by the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties. The respective rights of the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties are expressly reserved, subject to the terms and conditions set forth in the Plan, the Merger Agreement, and the TSA, to alter, amend, modify, or supplement the Plan Supplement and any of the documents contained therein in accordance with the terms of the Plan or by order of the Court; provided that, if any document in this Plan Supplement is altered, amended, modified, or supplemented in any material respect prior to the Confirmation Hearing, the Debtors will file a redline of such document with the Court.

 

The Schedule of Assumed Executory Contracts and Unexpired Leases is not final and remains subject to negotiation among the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties. The draft attached herein (the “Draft Schedule of Assumed Executory Contracts and Unexpired Leases”) is subject to material revision in all respects. The final form of the Schedule of Assumed Executory Contracts and Unexpired Leases shall be subject to the terms and conditions of the Plan, the Merger Agreement, and the TSA, including all consent rights therein, and the Debtors and each interested party (solely to the extent such party has consent rights over such Schedule of Assumed Executory Contracts and Unexpired Leases) reserve all rights to amend (in whole or in part), revise, or supplement the Draft Schedule of Assumed Executory Contracts and Unexpired Leases, and any of the documents and designations contained therein, at any time before the Effective Date of the Plan, or any such other date as may be permitted by the Plan or by order of the Court.

 

 

 

 

Schedule of Assumed Executory Contracts and Unexpired Leases

 

Article V.A of the Plan provides as follows:

 

Each Executory Contract and Unexpired Lease shall be deemed assumed, unless it is the subject of a motion to reject that is pending on the Effective Date or has been rejected pursuant to an order of the Court, without the need for any further notice to or action, order, or approval of the Court, as of the Effective Date, under sections 365 and 1123 of the Bankruptcy Code. The assumption of Executory Contracts and Unexpired Leases hereunder may include the assignment of certain of such contracts to Affiliates. The Confirmation Order will constitute an order of the Court approving the above described assumptions and assignments.

 

Except as otherwise provided herein or agreed to by the Debtors and the applicable counterparty, each assumed Executory Contract or Unexpired Lease shall include all modifications, amendments, supplements, restatements, or other agreements related thereto, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests. 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.

 

To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto.

 

 

 

 

 

HighPoint Resources
Contract Cure Schedule
Prepared on March 3, 2021

 

Contract ID Debtor Entity Counterparty Name Contract Date Contract Description Contract Cure Amount
1 HighPoint Operating Corporation 1776 Energy Services 3/16/2020 Master Service Agreement For Flowback Services  $                                      -   
2 HighPoint Operating Corporation 4X Industrial 6/22/2018 Master Service Agreement For Reclamation Services  $                                      -   
3 HighPoint Operating Corporation 5251 DTC Parkway, LLC 2/25/2015 Lease Agreement  $                                      -   
4 HighPoint Operating Corporation 5251 DTC Parkway, LLC 12/1/2015 1st Amendment To Lease Agreement  $                                      -   
5 HighPoint Operating Corporation 5251 DTC Parkway, LLC 1/15/2017 2nd Amendment To Lease Agreement  $                                      -   
6 HighPoint Operating Corporation 5251 DTC Parkway, LLC 8/1/2017 3rd Amendment To Lease Agreement  $                                      -   
7 HighPoint Operating Corporation 5251 DTC Parkway, LLC 11/28/2017 4th Amendment To Lease Agreement  $                                      -   
8 HighPoint Operating Corporation 5251 DTC Parkway, LLC 4/1/2020 5th Amendment To Lease Agreement  $                                      -   
9 HighPoint Operating Corporation 555 17th Street Investors 4/27/2018 Lease Agreement  $                                      -   
10 HighPoint Operating Corporation 555 17th Street Investors 11/8/2018 1st Amendment To Lease Agreement  $                                      -   
11 HighPoint Operating Corporation Aaron's Water Service Inc. 11/11/2011 Master Service Agreement For Water And Trucking Services  $                                      -   
12 HighPoint Operating Corporation ACME Oilfield Services 4/17/2018 Master Service Agreement For Oilfield Services  $                                      -   
13 HighPoint Operating Corporation Advanced Contracting Group, LLC 5/10/2006 Master Service Agreement For Reclamation Services  $                         4,279.06
14 HighPoint Operating Corporation Advanced Technologies Industrial Insulation Inc. 3/20/2012 Master Service Agreement For Industrial Insulation  $                                      -   
15 HighPoint Operating Corporation Aggreko, LLC 3/24/2011 Master Service Agreement For Temporary Power Control, And Compressed Air Systems  $                                      -   
16 HighPoint Operating Corporation Alliance Source Testing, LLC. 4/23/2018 Master Service Agreement For Environmental & Regulatory Services  $                                      -   
17 HighPoint Operating Corporation American Cementing LLC 5/16/2018 Master Service Agreement For Cementing And Acidizing Services  $                                      -   
18 HighPoint Operating Corporation Applied Control Equipment, LLLP 10/21/2008 Master Service Agreement For Meter & Meter Run Services  $                                      -   
19 HighPoint Operating Corporation ARB Midstream, LLC 7/17/2019 Midstream Agreement  $                                      -   
20 HighPoint Operating Corporation Archrock 2/1/2006 Master Service Agreement For Compressors  $                                      -   
21 HighPoint Operating Corporation Atlas Drilling and Services 2/15/2019 Master Service Agreement For Directional Drill & Survey Services  $                                      -   
22 HighPoint Operating Corporation Atlas Energy Services 3/29/2016 Master Service Agreement For Pumping/Well Watching Services  $                                      -   
23 HighPoint Operating Corporation Atlas Oil Company 10/5/2015 Master Service Agreement For Fuel Supply And Distribution  $                                      -   
24 HighPoint Operating Corporation ATP Oilfield Services LLC 8/23/2018 Master Service Agreement For Separators And Other Products And Services  $                                      -   
25 HighPoint Operating Corporation Automation-X Corporation 4/24/2017 Master Service Agreement For Meter & Meter Run Services  $                                      -   
26 HighPoint Operating Corporation Awards Network 1/1/2021 Contractual Agreement To Provide Employees Service Awards  $                                      -   
27 HighPoint Operating Corporation B & C Quick Test, Inc. 5/15/2008 Master Service Agreement For Freight Shipping And Trucking  $                                      -   
28 HighPoint Operating Corporation B & J Hot Oil Service 8/20/2012 Master Service Agreement For Oil Transfer/Hot Oil Services  $                         3,611.25
29 HighPoint Operating Corporation B&L Pipeco Services, Inc. 9/25/2019 Master Service Agreement For Production Casing Products And Services  $                                      -   
30 HighPoint Operating Corporation Bachman Services Inc 6/3/2014 Master Service Agreement For Oilfield Services  $                                      -   
31 HighPoint Operating Corporation Badger Daylighting Corp. 2/24/2012 Master Service Agreement For Hydrovac, Hydro-Excavation, Potholing And Vacuum Truck Services  $                                      -   
32 HighPoint Operating Corporation Baker Hughes Company 5/5/2014 Amendment No. 1 To Master Service Agreement For Contractor Services  $                                      -   
33 HighPoint Operating Corporation Bar S Services Inc. 3/21/2012 Master Service Agreement For Trucking & Transportation Services  $                                      -   
34 HighPoint Operating Corporation Basic Energy Services 8/17/2007 Master Service Agreement For Completion Unit  $                                      -   
35 HighPoint Operating Corporation Bass Corrosion Services, Inc., DBA Bass Engineering Company 3/1/2018 Master Service Agreement For C/G Permits & Environmental Compliance Services  $                                      -   
36 HighPoint Operating Corporation Bedrock Petroleum Consultants LLC 8/31/2017 Master Service Agreement For Consulting Engineers And Services  $                                      -   
37 HighPoint Operating Corporation Bentley Welding Inc 4/30/2020 Master Service Agreement For Welding And Fabrication Services  $                                      -   
38 HighPoint Operating Corporation Berry Lubrication Service Inc 11/30/2020 Master Service Agreement For Surface Equipment Maintenance & Repairs  $                                      -   
39 HighPoint Operating Corporation Big Sky Energy Equipment Inc. 8/20/2012 Master Service Agreement For Downhole Equipment Maintenance & Repairs  $                                      -   
40 HighPoint Operating Corporation Bison Oilwell Cementing Inc. 10/2/2002 Master Service Agreement For Oil Well Services  $                                      -   
41 HighPoint Operating Corporation Blue Jet Inc 2/2/2007 Master Service Agreement For Wireline And Cabling  $                                      -   
42 HighPoint Operating Corporation Brand X Hydrovac Service Inc. 1/19/2018 Master Service Agreement For Hydro Excavation  $                                      -   
43 HighPoint Operating Corporation Brenntag Pacific Inc. 10/16/2008 Master Service Agreement For Chemical/Inject/Treating Services  $                                      -   
44 HighPoint Operating Corporation Brigade Energy Services LLC 1/29/2018 Master Service Agreement For Downhole Equipment Maintenance & Repairs  $                                      -   

 

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HighPoint Resources
Contract Cure Schedule
Prepared on March 3, 2021

  

Contract ID Debtor Entity Counterparty Name Contract Date Contract Description Contract Cure Amount
45 HighPoint Operating Corporation Buckshot Trucking LLC 6/5/2017 Master Service Agreement For Tubulars And Casing Products And Services  $                                      -   
46 HighPoint Operating Corporation Bullseye Testing, Inc. 1/14/2019 Master Service Agreement For Flowback Services  $                                      -   
47 HighPoint Operating Corporation C&J Well Services, Inc. 2/12/2018 Master Service Agreement For Workover And Well-Servicing Rigs  $                                      -   
48 HighPoint Operating Corporation Cactus Wellhead, LLC. 11/30/2018 Master Service Agreement For Tubing Heads  $                                      -   
49 HighPoint Operating Corporation Cade Drilling, LLC 4/19/2017 Vendor Agreement For Drilling Services  $                                      -   
50 HighPoint Operating Corporation Canamera Coring (USA) Ltd. 4/9/2014 Master Service Agreement For Downhole Coring Services  $                                      -   
51 HighPoint Operating Corporation Cartel Drilling LLC 9/14/2018 Vendor Agreement For Drilling Services  $                                      -   
52 HighPoint Operating Corporation Cathedral Energy Services Ltd. 4/1/2019 Master Service Agreement For Directional Drilling Services  $                                      -   
53 HighPoint Operating Corporation CB Services LLC 11/4/2019 Master Service Agreement For Reclamation Services  $                                      -   
54 HighPoint Operating Corporation Certarus (USA) Ltd. 1/1/2020 Master Service Agreement For Fracturing  $                                      -   
55 HighPoint Operating Corporation Champion Oilfield Service, Inc. 11/27/2018 Master Service Agreement For Mechanical Contract Labor  $                                      -   
56 HighPoint Operating Corporation Champion Technology Services, Inc. 3/13/2007 Master Service Agreement For Meter & Meter Run Services  $                                      -   
57 HighPoint Operating Corporation Chemical Weed Control, Inc. 7/1/2014 Master Service Agreement For Location & Road Services  $                                      -   
58 HighPoint Operating Corporation Cigna 12/31/2020 Contractual Agreement To Provide Employees Dental Coverage  $                                      -   
59 HighPoint Operating Corporation Cimarron Energy Inc. 5/15/2017 Master Service Agreement For Combustors/Flares  $                                      -   
60 HighPoint Operating Corporation Clear Water Products, LLC 2/13/2017 Master Service Agreement For Rental Equipment  $                                      -   
61 HighPoint Operating Corporation Coastal Chemical Co. L.L.C. 5/31/2017 Master Service Agreement For C/G Chemicals & Lubricants  $                                      -   
62 HighPoint Operating Corporation Coil Tubing Partners LLC 8/30/2018 Master Service Agreement For Rig Services  $                                      -   
63 HighPoint Operating Corporation Colter Energy Services (GP) Ltd. 8/12/2015 Master Service Agreement For Flowback Services  $                                      -   
64 HighPoint Operating Corporation Columbine Corporation 4/14/2009 Master Service Agreement For Mud Logging, Geosteering And Advanced Services  $                                      -   
65 HighPoint Operating Corporation Consolidated Resource, LLC 10/23/2017 Master Service Agreement For Surface Equipment Maintenance & Repairs  $                                      -   
66 HighPoint Operating Corporation Contreras Field Services, LLC 8/9/2017 Master Service Agreement For Water Hauling & Disposal Services  $                                      -   
67 HighPoint Operating Corporation Core Laboratories, LP 10/1/2007 Master Service Agreement For Reservoir Description, Production Enhancement And Reservoir Management Services  $                                      -   
68 HighPoint Operating Corporation Covenant Testing Technologies, LLC 6/6/2014 Master Service Agreement For Pumping/Well Watching Services  $                       24,786.00
69 HighPoint Operating Corporation Crossfire, LLC 3/11/2011 Master Service Agreement For Pipeline And Facilities Solutions  $                                      -   
70 HighPoint Operating Corporation CTAP, LLC 10/3/2019 Master Service Agreement For Production Casing Products And Services  $                                      -   
71 HighPoint Operating Corporation Cudd Pressure Control, Inc. 2/19/2008 Amendment To The Master Service Agreement For Hydraulic Pressure Services  $                                      -   
72 HighPoint Operating Corporation Cureton Front Range LLC 7/26/2018 Gas Gathering Agreement  $                                      -   
73 HighPoint Operating Corporation Cureton Front Range LLC 11/1/2019 Natural Gas Liquids Purchase Agreement  $                                      -   
74 HighPoint Operating Corporation Cureton Front Range LLC 4/15/2020 1st Amendment to the Gas Gathering Agreement  $                                      -   
75 HighPoint Operating Corporation Cureton Front Range LLC 9/1/2020 Letter agreement to the Gas Gathering contract  $                                      -   
76 HighPoint Operating Corporation Cureton Front Range LLC 1/1/2021 Surplus Volume agreement  $                                      -   
77 HighPoint Operating Corporation Custom Environmental Services. Inc. 8/1/2011 Master Service Agreement For Asbestos Testing Services  $                                      -   
78 HighPoint Operating Corporation Daley Land Surveying, Inc. 8/21/2017 Master Service Agreement For Permits & Surveys  $                                      -   
79 HighPoint Operating Corporation DCP Midstream 8/20/1985 Marketing Contract Brief  $                                      -   
80 HighPoint Operating Corporation DCP Midstream 10/8/1985 Gas Purchase and Processing Agreement  $                                      -   
81 HighPoint Operating Corporation DCP Midstream 12/30/1985 Marketing Contract Brief  $                                      -   
82 HighPoint Operating Corporation DCP Midstream 2/3/1986 Gas Purchase and Processing Agreement  $                                      -   
83 HighPoint Operating Corporation DCP Midstream 1/21/1991 Gas Sales and Purchase Contract  $                                      -   
84 HighPoint Operating Corporation DCP Midstream 7/6/1992 Gas Purchase and Processing Agreement  $                                      -   
85 HighPoint Operating Corporation DCP Midstream 7/21/1992 Gas Purchasing Agreement  $                                      -   
86 HighPoint Operating Corporation DCP Midstream 9/11/1992 2nd Amendment to the Gas Gathering and Processing Contract  $                                      -   
87 HighPoint Operating Corporation DCP Midstream 12/10/1992 Indemnification Agreement  $                                      -   
88 HighPoint Operating Corporation DCP Midstream 12/22/1992 3rd Amendment to the Gas Gathering and Processing Contract  $                                      -   
89 HighPoint Operating Corporation DCP Midstream 12/22/1992 Release of Acreage  $                                      -   
90 HighPoint Operating Corporation DCP Midstream 6/17/1993 4th Amendment to the Gas and Purchasing Agreement  $                                      -   
91 HighPoint Operating Corporation DCP Midstream 7/29/1993 Letter to add acreage to the Gas Purchasing Agreement  $                                      -   

 

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HighPoint Resources
Contract Cure Schedule
Prepared on March 3, 2021

 

Contract ID Debtor Entity Counterparty Name Contract Date Contract Description Contract Cure Amount
92 HighPoint Operating Corporation DCP Midstream 8/4/1993 Letter to add acreage to the Gas Purchasing Agreement  $                                      -   
93 HighPoint Operating Corporation DCP Midstream 8/23/1993 Letter to add acreage to the Gas Purchasing Agreement  $                                      -   
94 HighPoint Operating Corporation DCP Midstream 9/14/1993 Letter to add acreage to the Gas Purchasing Agreement  $                                      -   
95 HighPoint Operating Corporation DCP Midstream 9/30/1993 Letter to add acreage to the Gas Purchasing Agreement  $                                      -   
96 HighPoint Operating Corporation DCP Midstream 10/8/1993 Letter to add acreage to the Gas Purchasing Agreement  $                                      -   
97 HighPoint Operating Corporation DCP Midstream 10/26/1993 Letter to add acreage to the Gas Purchasing Agreement  $                                      -   
98 HighPoint Operating Corporation DCP Midstream 10/29/1993 5th Amendment to the Gas Gathering and Processing Contract  $                                      -   
99 HighPoint Operating Corporation DCP Midstream 10/29/1993 6th Amendment to the Gas Gathering and Processing Contract  $                                      -   
100 HighPoint Operating Corporation DCP Midstream 11/29/1993 Letter to add acreage to the Gas Purchasing Agreement  $                                      -   
101 HighPoint Operating Corporation DCP Midstream 12/1/1993 Letter to add acreage to the Gas Purchasing Agreement  $                                      -   
102 HighPoint Operating Corporation DCP Midstream 12/30/1993 Amendment to the Gas Purchasing and Processing Agreements  $                                      -   
103 HighPoint Operating Corporation DCP Midstream 11/1/1994 Amendment to the Gas Purchase and Processing Agreement  $                                      -   
104 HighPoint Operating Corporation DCP Midstream 12/5/1994 7th Amendment to the Gas Gathering and Processing Contract  $                                      -   
105 HighPoint Operating Corporation DCP Midstream 12/5/1994 8th Amendment to the Gas Gathering and Processing Contract  $                                      -   
106 HighPoint Operating Corporation DCP Midstream 12/15/1995 Marketing Contract Brief  $                                      -   
107 HighPoint Operating Corporation DCP Midstream 1/13/1997 Gas Purchase and Processing Agreement  $                                      -   
108 HighPoint Operating Corporation DCP Midstream 5/19/1997 Amendment to the Gas Purchasing and Processing Agreements  $                                      -   
109 HighPoint Operating Corporation DCP Midstream 10/31/1997 Amendment to the Gas Purchasing and Processing Agreements  $                                      -   
110 HighPoint Operating Corporation DCP Midstream 9/1/2004 Marketing Contract Brief  $                                      -   
111 HighPoint Operating Corporation DCP Midstream 12/21/2006 Gas Purchasing Agreement  $                                      -   
112 HighPoint Operating Corporation DCP Midstream 2/23/2009 OPPL Connection Agreement  $                                      -   
113 HighPoint Operating Corporation DCP Midstream 4/28/2009 Amendment to the Gas Purchase and Processing Agreements  $                                      -   
114 HighPoint Operating Corporation DCP Midstream 12/31/2009 Master Amendment to Bypass Gas Agreement  $                                      -   
115 HighPoint Operating Corporation DCP Midstream 12/31/2009 3rd Amendment to the Gas Gathering and Processing Contract  $                                      -   
116 HighPoint Operating Corporation DCP Midstream 1/8/2010 OPPL Connection Agreement  $                                      -   
117 HighPoint Operating Corporation DCP Midstream 8/2/2012 Gas Purchase Amendment  $                                      -   
118 HighPoint Operating Corporation DCP Midstream 3/1/2013 Master Amendment to Bypass Gas Agreement  $                                      -   
119 HighPoint Operating Corporation DCP Midstream 3/1/2013 Amendment to the Gas Purchasing and Processing Agreements  $                                      -   
120 HighPoint Operating Corporation DCP Midstream 7/22/2013 Assignment, Conveyance and Sale Agreement  $                                      -   
121 HighPoint Operating Corporation DCP Midstream 10/31/2013 Amendment to Gas and Purchasing Agreement WEL0025000  $                                      -   
122 HighPoint Operating Corporation DCP Midstream 5/1/2014 Amended and Restated Gas Purchase Contract  $                                      -   
123 HighPoint Operating Corporation DCP Midstream 7/21/2015 Well Ranch Gathering Systems agreement  $                                      -   
124 HighPoint Operating Corporation DCP Midstream 1/11/2016 Amendment to the Shrinkage and Fuel, Loss and Unaccountable agreement  $                                      -   
125 HighPoint Operating Corporation DCP Midstream 9/1/2016 Watusi LLP System Agreement  $                                      -   
126 HighPoint Operating Corporation DCP Midstream 9/1/2016 Gas Purchase Contract Amendment  $                                      -   
127 HighPoint Operating Corporation DCP Midstream 9/1/2016 Gas Purchase Contract  $                                      -   
128 HighPoint Operating Corporation DCP Midstream 10/6/2016 1st Amendment to the Bypass Gas Agreement  $                                      -   
129 HighPoint Operating Corporation DCP Midstream 3/1/2018 Amendment to Gas Purchase Contract  $                                      -   
130 HighPoint Operating Corporation DCP Midstream 9/10/2018 Amendment to Gas Purchase and Processing agreement dated 3/1/2008  $                                      -   
131 HighPoint Operating Corporation DCP Midstream 11/27/2018 Letter Agreement for Amendment Gas Purchase and Processing  $                                      -   
132 HighPoint Operating Corporation DCP Midstream 4/4/2019 Amendment to Gas Purchase and Processing agreement dated 7/21/1992  $                                      -   
133 HighPoint Operating Corporation DCP Midstream 4/4/2019 Amendment to Gas Purchase and Processing agreement dated 10/1/1999  $                                      -   
134 HighPoint Operating Corporation DCP Midstream 4/4/2019 Amendment to Gas Purchase and Processing agreement dated 1/3/2013  $                                      -   
135 HighPoint Operating Corporation DCP Midstream / Green River DevCo LP. 3/31/2016 Fresh Water Services Agreement  $                                      -   
136 HighPoint Operating Corporation DCP Midstream / Green River DevCo LP. 3/31/2016 Gas Gathering Agreement  $                                      -   
137 HighPoint Operating Corporation DCP Midstream / Green River DevCo LP. 3/31/2016 Oil Gathering Agreement  $                                      -   
138 HighPoint Operating Corporation DCP Midstream / Green River DevCo LP. 3/31/2016 Produced Water Agreement  $                                      -   
139 HighPoint Operating Corporation DCP Midstream / Green River DevCo LP. 4/28/2016 2nd Amendment to the Fresh Water Services Agreement  $                                      -   

 

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HighPoint Resources
Contract Cure Schedule
Prepared on March 3, 2021

 

Contract ID Debtor Entity Counterparty Name Contract Date Contract Description Contract Cure Amount
140 HighPoint Operating Corporation DCP Midstream / Green River DevCo LP. 4/28/2016 2nd Amendment to the Gas Gathering Agreement  $                                      -   
141 HighPoint Operating Corporation DCP Midstream / Green River DevCo LP. 4/28/2016 2nd Amendment to the Oil Gathering Agreement  $                                      -   
142 HighPoint Operating Corporation DCP Midstream / Green River DevCo LP. 4/28/2016 2nd Amendment to the Produced Water Agreement  $                                      -   
143 HighPoint Operating Corporation DCP Midstream / Green River DevCo LP. 9/1/2016 1st Amendment to the Fresh Water Services Agreement  $                                      -   
144 HighPoint Operating Corporation DCP Midstream / Green River DevCo LP. 9/1/2016 1st Amendment to the Gas Gathering Agreement  $                                      -   
145 HighPoint Operating Corporation DCP Midstream / Green River DevCo LP. 9/1/2016 1st Amendment to the Oil Gathering Agreement  $                                      -   
146 HighPoint Operating Corporation DCP Midstream / Green River DevCo LP. 9/1/2016 1st Amendment to the Produced Water Agreement  $                                      -   
147 HighPoint Operating Corporation DCP NGL Services, LLC 11/1/2019 Natural Gas Liquids Purchase Agreement  $                                      -   
148 HighPoint Operating Corporation Discovery Benefits/ Wex 12/31/2020 Contractual Agreement To Provide Employees Access To Fsa And Hsa Savings Programs  $                                      -   
149 HighPoint Operating Corporation Dominion Energy Overthrust Pipeline, LLC 3/19/2019 Midstream Agreement  $                                      -   
150 HighPoint Operating Corporation Downhole Tool Service LLC 9/8/2010 Master Service Agreement For Downhole Tools And Services  $                                      -   
151 HighPoint Operating Corporation Dragon Products PES, Inc 5/3/2018 Master Service Agreement For Separators And Other Products And Services  $                                      -   
152 HighPoint Operating Corporation DCT Management LLC (Prologis) 10/26/2018 Sublease Agreement  $                                      -   
153 HighPoint Operating Corporation DCT Management LLC (Prologis) 12/11/2018 1st Amendment To Sublease Agreement  $                                      -   
154 HighPoint Operating Corporation Duraroot LLC 6/12/2019 Master Service Agreement For Abandonment Services  $                                      -   
155 HighPoint Operating Corporation Dynasty Energy Services, LLC 2/28/2018 Master Service Agreement For Fishing And Plug & Abandonment Operations  $                                      -   
156 HighPoint Operating Corporation E & B Oilfield Services Inc 8/21/2018 Master Service Agreement For Cogcc Remediation Work  $                                      -   
157 HighPoint Operating Corporation Earth Science Agency LLC 6/23/2014 Master Service Agreement For Mud Logging  $                                      -   
158 HighPoint Operating Corporation EcoLoop Energy, Inc. 7/1/2014 Vendor Agreement For Oil & Gas Equipment Rentals  $                                      -   
159 HighPoint Operating Corporation Edgen Murray Corporation 7/15/2008 Master Service Agreement For Pipe, Valve And Fitting (Pvf), Products And Services  $                                      -   
160 HighPoint Operating Corporation Element Services, LLC 9/15/2016 Master Service Agreement For Contract Labor  $                         3,099.50
161 HighPoint Operating Corporation Elevate Energy Services LLC 5/17/2018 Master Service Agreement For Completions Water  $                                      -   
162 HighPoint Operating Corporation Elite Oilfield Services, LLC 1/14/2018 Master Service Agreement For Chemical/Inject/Treating Services  $                                      -   
163 HighPoint Operating Corporation Elite Services Inc. 1/18/2018 Master Service Agreement For Automation/Calibrate Services  $                                      -   
164 HighPoint Operating Corporation Elite Services Inc. 9/21/2018 Amendment To Master Service Agreement For Automation/Calibrate Services  $                                      -   
165 HighPoint Operating Corporation Enerflex Energy Systems, Inc 9/5/2017 Master Service Agreement For Engines & Motors  $                                      -   
166 HighPoint Operating Corporation Energy Inspection Services, LLC 4/16/2020 Master Service Agreement For Integrated Field Services  $                                      -   
167 HighPoint Operating Corporation ENGlobal Corporation 3/31/2014 Master Service Agreement For Engineering Design, Procurement, And Fabrication Of Modular Plants  $                                      -   
168 HighPoint Operating Corporation Ensign United States Drilling, Inc. 4/26/2011 Master Service Agreement For Completion Unit  $                                      -   
169 HighPoint Operating Corporation Enterprise Fleet Management 11/2/2020 Master Equity Lease Agreement For Fleet Vehicles  $                                      -   
170 HighPoint Operating Corporation Entrada Consulting Group, Inc. 11/2/2017 Master Service Agreement For Environmental & Regulatory Services  $                                      -   
171 HighPoint Operating Corporation Epic Lift Systems, LLC 2/21/2019 Master Service Agreement For Gas Lift Equip/Lines  $                                      -   
172 HighPoint Operating Corporation Erthwrks, Inc. 1/17/2018 Master Service Agreement For C/G Permits & Environmental Compliance Services  $                                      -   
173 HighPoint Operating Corporation E-Trade 1/8/2021 Contractual Agreement To Provide Employees Stock Options  $                                      -   
174 HighPoint Operating Corporation Evolution Completions, Inc. 8/17/2017 Master Service Agreement For Completions, Slickline And Wireline Products And Services  $                                      -   
175 HighPoint Operating Corporation Evolution Completions, Inc. 4/3/2018 Amendment To Master Service Agreement For Completions, Slickline And Wireline Products And Services  $                                      -   
176 HighPoint Operating Corporation Expro Americas, LLC - North America Land Company 6/23/2017 Master Service Agreement For Well Flow Optimization  $                                      -   
177 HighPoint Operating Corporation Fired Up Fabrication LLC 1/18/2019 Master Service Agreement For Contract Labor  $                                      -   
178 HighPoint Operating Corporation Flogistix, LP 8/28/2013 Master Service Agreement For Leased Compressor Rentals  $                                      -   
179 HighPoint Operating Corporation Flotek Industries, Inc. 3/1/2019 Master Service Agreement For Specialty Chemistry And Data Services  $                                      -   
180 HighPoint Operating Corporation Flowco Production Solutions, LLC 3/5/2019 Master Service Agreement For Manufacturing And Installation Artificial Lift Systems  $                                      -   
181 HighPoint Operating Corporation Flying Y LLC 12/6/2017 Master Service Agreement For Reclamation Services  $                                      -   
182 HighPoint Operating Corporation Front Range Line Services, LLC 9/1/2011 Master Service Agreement For Location & Road Services  $                                      -   
183 HighPoint Operating Corporation Fuzion Field Services, LLC. 9/11/2015 Master Service Agreement For Rental Equipment  $                               90.00
184 HighPoint Operating Corporation Global Nitrogen Services LLC 7/25/2018 Master Service Agreement For Contract Pump/Production Watch Services  $                                      -   
185 HighPoint Operating Corporation Go Wireline LLC 5/21/2019 Master Service Agreement For Logging/Wireline  $                                      -   
186 HighPoint Operating Corporation GR Energy Services Management LP 10/9/2018 Master Service Agreement For Completion, Production And Water Management  $                                      -   

 

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HighPoint Resources
Contract Cure Schedule
Prepared on March 3, 2021

 

Contract ID Debtor Entity Counterparty Name Contract Date Contract Description Contract Cure Amount
187 HighPoint Operating Corporation Granite Peak Fabrication LLC 12/12/2019 Master Service Agreement For Engineering, Drafting, And Fabrication  $                                      -   
188 HighPoint Operating Corporation Garver, LLC 6/10/2018 Sublease  $                                      -   
189 HighPoint Operating Corporation Garver, LLC 1/24/2020 1st Amendment To Sublease  $                                      -   
190 HighPoint Operating Corporation Garver, LLC 3/31/2020 2nd Amendment To Sublease  $                                      -   
191 HighPoint Operating Corporation Great Plains Analytical Services, inc. 4/10/2019 Master Service Agreement For C/G Permits & Environmental Compliance Services  $                                      -   
192 HighPoint Operating Corporation Green Earth Environmental, Inc. 2/26/2018 Master Service Agreement For Natural Disinfectants And Household Cleaners  $                                      -   
193 HighPoint Operating Corporation GS Electric Inc. 3/10/2009 Master Service Agreement For Electrical Contractor Services  $                                      -   
194 HighPoint Operating Corporation H-2 Enterprises, LLC 4/17/2017 Master Service Agreement For Abandonment Services  $                                      -   
195 HighPoint Operating Corporation Hall Trucking Inc. 3/19/2013 Master Service Agreement For Heavy Haul Trucking, Crane And Rigging Services  $                                      -   
196 HighPoint Operating Corporation Halliburton U.S. Onshore 5/1/2013 Amendment To The Master Service Agreement For Fracturing Services  $                                      -   
197 HighPoint Operating Corporation Hanleigh 12/30/2020 Contractual Agreement To Provide Employees Long-Term Disability Benefits And Coverage  $                                      -   
198 HighPoint Operating Corporation Hays 1/1/2021 Insurance Brokerage Agreement  $                                      -   
199 HighPoint Operating Corporation HB Rentals, LC - US Land Division 9/14/2010 Master Service Agreement For Onshore Housing Rentals  $                                      -   
200 HighPoint Operating Corporation Heat Waves Hot Oil Service LLC. 1/24/2018 Master Service Agreement For Fuel & Frac Wtr Heating  $                                      -   
201 HighPoint Operating Corporation High Country Industrial Corp. 1/15/2019 Master Service Agreement For Welding, Fabrication, And Hot Shot Trucking  $                                      -   
202 HighPoint Operating Corporation High Desert Trucking, Inc. dba High Desert Services 1/27/2009 Master Service Agreement For Trucking Services  $                                      -   
203 HighPoint Operating Corporation High Mountain Inspection Service, Inc. 9/1/2009 Master Service Agreement For Nde/Ndt Services  $                                      -   
204 HighPoint Operating Corporation HP Oilfield Services, LLC 7/10/2019 Master Service Agreement For Fuel & Frac Wtr Heating  $                                      -   
205 HighPoint Operating Corporation Hurricane Air & Swabbing 10/22/2018 Master Service Agreement For Completion Unit  $                                      -   
206 HighPoint Operating Corporation Ideal Completion Services 3/13/2018 Master Service Agreement For Pumping/Well Watching Services  $                                      -   
207 HighPoint Operating Corporation IES LLC. 3/23/2017 Master Service Agreement For Tanks & Accessories  $                                      -   
208 HighPoint Operating Corporation Independent Pump & System Management LLC 2/5/2015 Master Service Agreement For Surface Equipment Maintenance & Repairs  $                                      -   
209 HighPoint Operating Corporation Info Cubic 6/25/2020 Contractual Agreement To Screen Potential Employees And Conduct Drug Testing  $                                      -   
210 HighPoint Operating Corporation Innovex Downhole Solutions 10/26/2018 Master Service Agreement For Well Construction And Downhole Production Solutions  $                                      -   
211 HighPoint Operating Corporation Insight Technical Services, Inc. 9/28/2017 Master Service Agreement For Meter & Meter Run Services  $                                      -   
212 HighPoint Operating Corporation Intermountain Electronics Inc 9/3/2019 Master Service Agreement For Lact Units  $                                      -   
213 HighPoint Operating Corporation IO Industries Inc 2/13/2018 Master Service Agreement For Automation/Calibrate Services  $                                      -   
214 HighPoint Operating Corporation J&C Enterprises Crane & Trucking 1/19/2007 Master Service Agreement For Crane And Equipment Rentals  $                                      -   
215 HighPoint Operating Corporation JACAM Chemicals 2013, L.L.C. 7/16/2013 Amendment To The Master Service Agreement For Chemical/Inject/Treating Services  $                       80,974.55
216 HighPoint Operating Corporation Jones Contractors Inc. 9/3/2014 Master Service Agreement For Pipeline And Other Oil And Gas Services  $                                      -   
217 HighPoint Operating Corporation J-W Power Company 10/14/2010 Master Service Agreement For Leasing And Servicing Of Natural Gas Compression Equipment  $                                      -   
218 HighPoint Operating Corporation K2 Commodities, LLC 1/24/2017 Midstream Agreement  $                                      -   
219 HighPoint Operating Corporation K2 Commodities, LLC 4/1/2019 Midstream Agreement  $                                      -   
220 HighPoint Operating Corporation K2 Commodities, LLC 2/26/2019 Pricing And Volume Agreement (Hereford)  $                                      -   
221 HighPoint Operating Corporation K2 Commodities, LLC 6/3/2020 Pricing And Volume Agreement (Newatt)  $                                      -   
222 HighPoint Operating Corporation K2 Commodities, LLC 3/24/2020 Asset Management Agreement  $                                      -   
223 HighPoint Operating Corporation Kahuna Ventures LLC. 4/19/2017 Master Service Agreement For Professional Services  $                                      -   
224 HighPoint Operating Corporation Kerr-McGee Gathering LLC 10/29/2015 Gas Purchase and Sale Agreement  $                                      -   
225 HighPoint Operating Corporation Kerr-McGee Gathering LLC 4/1/2018 Base Contract For Gas Gathering And Processing  $                                      -   
226 HighPoint Operating Corporation Kerr-McGee Gathering LLC 4/1/2019 Amendment To Base Contract For Gas Gathering And Processing  $                                      -   
227 HighPoint Operating Corporation Kinder Morgan Altamont LLC 12/1/2013 Gas Purchase Contract  $                                      -   
228 HighPoint Operating Corporation Kinetic Energy Services 12/9/2016 Master Service Agreement For Contract Labor  $                         2,400.00
229 HighPoint Operating Corporation Kleinfelder, Inc. 9/17/2015 Master Service Agreement For Environmental Assessment Services  $                                      -   
230 HighPoint Operating Corporation KLX Energy Services LLC 8/4/2014 Master Service Agreement For Rental Equipment  $                                      -   
231 HighPoint Operating Corporation Korwell Energy, LLC 7/28/2020 Master Service Agreement For Separators And Other Products And Services  $                                      -   

 

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Page 5 of 9

 

 

HighPoint Resources
Contract Cure Schedule
Prepared on March 3, 2021

 

Contract ID Debtor Entity Counterparty Name Contract Date Contract Description Contract Cure Amount
232 HighPoint Operating Corporation Kran LLC 5/4/2017 Master Service Agreement For Plant Installation Services  $                                      -   
233 HighPoint Operating Corporation L & L fabrication inc 11/26/2018 Master Service Agreement For Surface Equipment Maintenance & Repairs  $                                      -   
234 HighPoint Operating Corporation LAT40 Inc. 9/21/2011 Master Service Agreement For Permits & Surveys  $                                      -   
235 HighPoint Operating Corporation Legend Services Inc 4/6/2009 Master Service Agreement For Pressure And Other Oil And Gas Services  $                                      -   
236 HighPoint Operating Corporation Legend Services Pressure Control, Inc. 2/7/2012 Master Service Agreement For Pressure And Other Oil And Gas Services  $                                      -   
237 HighPoint Operating Corporation Liberty Drilling Services LLC 1/15/2020 Master Service Agreement For Drilling Services  $                                      -   
238 HighPoint Operating Corporation Liberty Oilfield Services LLC 4/18/2019 Amendment To Master Service Contract For Drilling Services  $                                      -   
239 HighPoint Operating Corporation Liberty Oilfield Services LLC 5/1/2019 Master Service Agreement For Fracturing  $                                      -   
240 HighPoint Operating Corporation Lobo Well Service, Inc. 8/14/2017 Master Service Agreement For Completion Unit  $                                      -   
241 HighPoint Operating Corporation Lockton 1/1/2021 Contractual Agreement To Provide Employees Retirement Benefits  $                                      -   
242 HighPoint Operating Corporation LT Environmental Inc. 3/3/2009 Master Service Agreement For Environmental & Regulatory Services  $                                      -   
243 HighPoint Operating Corporation M & M Excavation Company 8/1/2012 Master Service Agreement For Access Road & Signage  $                                      -   
244 HighPoint Operating Corporation M&E Trucking LLC 11/6/2018 Master Service Agreement For Environmental & Regulatory Services  $                         8,217.50
245 HighPoint Operating Corporation Mancos Petroleum Services LLC 10/25/2016 Master Service Agreement For Consulting Engineer  $                                      -   
246 HighPoint Operating Corporation MATCOR, Inc. 9/17/2014 Master Service Agreement For Cathodic Protection And Ac Mitigation Services  $                                      -   
247 HighPoint Operating Corporation Maverick Field Services LLC 1/16/2020 Master Service Agreement For Surface Equipment Maintenance & Repairs  $                                      -   
248 HighPoint Operating Corporation Mesa Applied Technologies, LLC 7/13/2020 Master Service Agreement For Engineering And Consulting Services  $                                      -   
249 HighPoint Operating Corporation Method Flow Products 7/13/2018 Master Service Agreement For Meter & Meter Run Services  $                                      -   
250 HighPoint Operating Corporation Miller Insulation, Inc. 2/2/2018 Master Service Agreement For Surface Equipment Maintenance & Repairs  $                                      -   
251 HighPoint Operating Corporation Mohawk Energy Ltd 11/15/2018 Master Service Agreement For Efficient And Sustainable Well Lifecycle Solutions  $                                      -   
252 HighPoint Operating Corporation Montrose Air Quality Services, LLC 8/16/2018 Master Service Agreement For Measurement & Analytical Services As Well As Environmental Resiliency & Sustainability Solutions  $                                      -   
253 HighPoint Operating Corporation Mountain States Casing Comp, LLC 4/21/2017 Master Service Agreement For Oil Field Services  $                                      -   
254 HighPoint Operating Corporation Mundt Energy Services, LLC 6/1/2012 Master Service Agreement For C/G Supplies & Maintenance  $                       32,690.00
255 HighPoint Operating Corporation Navex 4/12/2020 Master Service Agreement To Provide Training Programs To Employees  $                                      -   
256 HighPoint Operating Corporation New IPT, Inc. 5/1/2018 Master Service Agreement For Integrated Petroleum Technologies  $                                      -   
257 HighPoint Operating Corporation Newpark Drilling Fluids, LLC 8/19/2009 Master Service Agreement For Drilling Fluid Systems  $                                      -   
258 HighPoint Operating Corporation Next Generation Construction & Environmental, LLC 7/24/2019 Master Service Agreement For Oilfield And Construction Services  $                                      -   
259 HighPoint Operating Corporation NGL Water Solutions, LLC (Holding Account) 11/30/2016 Master Service Agreement Water Treatment Services  $                                      -   
260 HighPoint Operating Corporation Nine Downhole Technologies LLC 8/13/2018 Master Service Agreement For Oilfield Services  $                                      -   
261 HighPoint Operating Corporation NVI, LLC 6/27/2018 Master Service Agreement For Mechanical Contract Labor  $                                      -   
262 HighPoint Operating Corporation Oil Patch Group, Inc. 3/17/2017 Master Service Agreement For Rental Equipment  $                                      -   
263 HighPoint Operating Corporation Oil States Energy Services 4/5/2016 Master Service Agreement Rental Solutions And Services  $                                      -   
264 HighPoint Operating Corporation Olsson, Inc 5/30/2012 Amendment To The Master Service Agreement For Environmental  $                         1,935.00
265 HighPoint Operating Corporation ONEOK, Inc 9/18/2013 Midstream Agreement  $                                      -   
266 HighPoint Operating Corporation Optum 12/31/2020 Contractual Agreement To Provide Employees Pharmacy Access And Prescription Medicine  $                                      -   
267 HighPoint Operating Corporation Ossidiana Energy 7/19/2019 Sublease  $                                      -   
268 HighPoint Operating Corporation Outrigger Energy 12/17/2018 Midstream Agreement  $                                      -   
269 HighPoint Operating Corporation Packers Plus Energy Services USA, Inc. 10/5/2018 Master Service Agreement For Packers  $                                      -   
270 HighPoint Operating Corporation Panhandle Oilfield Service Companies Inc. 9/5/2012 Master Service Agreement For Oilfield Services  $                                      -   
271 HighPoint Operating Corporation Panther Drilling Systems, LLC 8/14/2018 Master Service Agreement For Directional Drill & Survey Services  $                                      -   
272 HighPoint Operating Corporation Pason Systems USA 4/7/2003 Master Service Agreement For Rental Equipment  $                                      -   
273 HighPoint Operating Corporation Pathfinder Inspections and Field Services LLC 7/20/2017 Master Service Agreement For Drill Pipe, Bha, Casing Inspection, In-Field Refacing, Hardbanding And Other Oil And Gas Services  $                                      -   
274 HighPoint Operating Corporation Pathfinder Pressure Testing LLC 7/20/2017 Master Service Agreement For Oilfield Pressure Testing And Hydraulic Torque Services  $                                      -   
275 HighPoint Operating Corporation Patriot Pump, LLC 7/31/2020 Master Service Agreement For Sucker Rods & Dh Pumps  $                                      -   
276 HighPoint Operating Corporation Patriot Well Solutions 2/5/2018 Master Service Agreement For Perforating  $                                      -   
277 HighPoint Operating Corporation Patterson Services 7/1/2014 Vendor Agreement For Equipment Rentals  $                                      -   

 

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 CONFIDENTIAL - SUBJECT TO CHANGE

Page 6 of 9

 

 

HighPoint Resources
Contract Cure Schedule
Prepared on March 3, 2021

 

Contract ID Debtor Entity Counterparty Name Contract Date Contract Description Contract Cure Amount
278 HighPoint Operating Corporation PCS Ferguson, Inc 10/25/2005 Master Service Agreement For Downhole Equipment Maintenance & Repairs  $                                      -   
279 HighPoint Operating Corporation Peak Oilfield Services 2/18/2018 Master Service Agreement For Rental Equipment  $                                      -   
280 HighPoint Operating Corporation Pete Martin Drilling LLC 10/25/2005 Master Service Agreement For Mouse And Rat Holes, And Conductor Pipe Services And Products  $                                      -   
281 HighPoint Operating Corporation Petrostar Services, LLC 2/28/2019 Master Service Agreement For Completion Unit  $                                      -   
282 HighPoint Operating Corporation Pick Testers-Hydro,LLC 8/8/2012 Master Service Agreement For Downhole Equipment Maintenance & Repairs  $                                      -   
283 HighPoint Operating Corporation Pilot Thomas Logistics LLC 12/11/2019 Master Service Agreement For Fuel & Frac Wtr Heating  $                                      -   
284 HighPoint Operating Corporation Pioneer Well Services 1/24/2017 Master Service Agreement For Downhole Equipment Maintenance & Repairs  $                                      -   
285 HighPoint Operating Corporation Pioneer Wireline Services, LLC 2/9/2017 Master Service Agreement For Logging/Wireline  $                                      -   
286 HighPoint Operating Corporation Precision Industrial Applicators LLC 5/21/2012 Master Service Agreement For Location & Road Services  $                                      -   
287 HighPoint Operating Corporation Premier Directional Drilling, LLC 1/10/2020 Master Service Agreement For Drilling And Geological Services  $                                      -   
288 HighPoint Operating Corporation Premium Thru Tubing Inc. 5/31/2012 Master Service Agreement For Tubing And Casing Products And Services  $                                      -   
289 HighPoint Operating Corporation Principal 1/1/2021 Contractual Agreement To Provide Employees Retirement Benefits  $                                      -   
290 HighPoint Operating Corporation Principal Environmental, LLC 6/12/2017 Master Service Agreement For Rental Equipment  $                                      -   
291 HighPoint Operating Corporation Priority Energy Holdings, LLC 12/17/2013 Master Service Agreement For Artificial Lift Services & Products  $                                      -   
292 HighPoint Operating Corporation Pro Oilfield Inspection, LLC 4/5/2017 Master Service Agreement For Tubing Inspection And Repair Services  $                                      -   
293 HighPoint Operating Corporation Production Logging Services, Inc. 3/16/2011 Master Service Agreement For Case Hole Wireline Services  $                                      -   
294 HighPoint Operating Corporation PROtect, LLC 7/26/2019 Master Service Agreement For Mechanical Contract Labor  $                                      -   
295 HighPoint Operating Corporation Pruitt Tool & Supply Co., Inc. 1/14/2019 Master Service Agreement For Mpd & Rcd Equipment  $                                      -   
296 HighPoint Operating Corporation PTW Energy Services Inc. 7/29/2011 Master Service Agreement For Auto/Telemetry Install  $                                      -   
297 HighPoint Operating Corporation Quadco, LLC. 10/15/2009 Master Service Agreement For Downhole Equipment Maintenance & Repairs  $                                      -   
298 HighPoint Operating Corporation Quest Automated Services LLC 12/14/2018 Master Service Agreement For Separators And Other Products And Services  $                                      -   
299 HighPoint Operating Corporation Questar Exploration and Production Company 8/28/2007 Gathering Service Agreement  $                                      -   
300 HighPoint Operating Corporation Questar Exploration and Production Company 12/19/2007 Gas Processing and Blending Agreement  $                                      -   
301 HighPoint Operating Corporation Questar Exploration and Production Company 8/1/2014 Firm Transportation Service Agreement  $                                      -   
302 HighPoint Operating Corporation R.J. Mann & Associates, Inc. 6/13/2013 Master Service Agreement For C/G Supplies & Maintenance  $                                      -   
303 HighPoint Operating Corporation RAM Swab Services, LLC 9/30/2013 Master Service Agreement For Downhole Equipment Maintenance & Repairs  $                                      -   
304 HighPoint Operating Corporation RAM-CO Services LLC 7/23/2018 Master Service Agreement For Motor Carrier And Trucking Services  $                                      -   
305 HighPoint Operating Corporation Ranger Energy Services 2/9/2017 Master Service Agreement For Completion Unit  $                                      -   
306 HighPoint Operating Corporation Rapid Energy Solutions, LLC 1/14/2019 Master Service Agreement For Electrical Services And Contracting  $                                      -   
307 HighPoint Operating Corporation Reck Flyers 1/22/2013 Master Service Agreement For Water Hauling & Disposal  $                                      -   
308 HighPoint Operating Corporation Redi Services, LLC 12/18/2007 Master Service Agreement For Rentals  $                                      -   
309 HighPoint Operating Corporation Redneck Pipe Rental LLC 2/9/2017 Master Service Agreement For Rental Equipment  $                                      -   
310 HighPoint Operating Corporation Reliance Oilfield Services, LLC 2/11/2019 Master Service Agreement For Logging/Wireline  $                                      -   
311 HighPoint Operating Corporation REME, LLC (LEAM Drilling Services) 1/20/2020 Master Service Agreement For Directional Drill & Survey Services  $                                      -   
312 HighPoint Operating Corporation Renewable Fiber, Inc. 1/30/2017 Master Service Agreement For Water Hauling & Disposal Services  $                                      -   
313 HighPoint Operating Corporation Richard S. Logan Trucking Inc. 8/28/2014 Master Service Agreement For Trucking Services  $                                      -   
314 HighPoint Operating Corporation Rival Services, LLC 8/14/2018 Master Service Agreement For Contract Personnel And Equipment Resources  $                                      -   
315 HighPoint Operating Corporation RMS Cranes, LLC 5/7/2015 Master Service Agreement For Crane & Rigging Services  $                                      -   
316 HighPoint Operating Corporation RMTDC Operations, LLC dba Total Energy Services 1/9/2019 Master Service Agreement For Compressors  $                                      -   
317 HighPoint Operating Corporation Robison Construction 3/26/2008 Master Service Agreement For Pre-Engineered Building Products  $                                      -   
318 HighPoint Operating Corporation Rocky Mtn Electric LLC 4/24/2020 Master Service Agreement For Elect Install Labor On Pad  $                             600.00
319 HighPoint Operating Corporation Rolfson Oil, LLC 2/16/2017 Master Service Agreement For Fuel & Power  $                                      -   
320 HighPoint Operating Corporation RP Services, LLC 5/1/2013 Master Service Agreement For Flowback And Well Testing  $                                      -   
321 HighPoint Operating Corporation RTD 12/31/2020 Master Service Agreement To Provide Employees Access To Economical Transportation In Denver, Co  $                                      -   
322 HighPoint Operating Corporation Ruby Pipeline 7/28/2011 Midstream Agreement  $                                      -   
323 HighPoint Operating Corporation Rugged Country Tankline Corp 2/20/2014 Master Service Agreement For Water Hauling & Disposal  $                                      -   
324 HighPoint Operating Corporation RUSCO OPERATING LLC 10/16/2017 Master Service Agreement For Consulting Engineers And Services  $                                      -   

 

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 CONFIDENTIAL - SUBJECT TO CHANGE

Page 7 of 9

 

 

HighPoint Resources
Contract Cure Schedule
Prepared on March 3, 2021

 

Contract ID Debtor Entity Counterparty Name Contract Date Contract Description Contract Cure Amount
325 HighPoint Operating Corporation RUSCO OPERATING LLC 12/6/2019 Master Service Agreement For Consulting Engineers And Services  $                                      -   
326 HighPoint Operating Corporation S & B Drilling LLC 2/27/2020 Master Service Agreement For Contractors And Installing Helical Piers For Foundational Support For Oil And Gas Wells  $                                      -   
327 HighPoint Operating Corporation S&R Compression 2/17/2017 Master Service Agreement For C/G Supplies & Maintenance  $                                      -   
328 HighPoint Operating Corporation Sater Tools & Services 5/25/2017 Master Service Agreement For Rental Equipment  $                                      -   
329 HighPoint Operating Corporation Scada Products, LLC 12/27/2017 Master Service Agreement For Automation/Calibrate Services  $                                      -   
330 HighPoint Operating Corporation Schlumberger Technology Corporation 7/30/2008 Master Service Agreement For Contract Labor  $                                      -   
331 HighPoint Operating Corporation Schlumberger Technology Corporation 4/1/2014 1st Amendment To Master Service Agreement For Contract Labor  $                                      -   
332 HighPoint Operating Corporation Schlumberger Technology Corporation 3/1/2017 2nd Amendment To Master Service Agreement For Contract Labor  $                                      -   
333 HighPoint Operating Corporation Schlumberger Technology Corporation 9/30/2019 3rd Amendment To Master Service Agreement For Contract Labor  $                                      -   
334 HighPoint Operating Corporation Schlumberger US Land 3/1/2017 2nd Amendment To The Master Service Agreement For Archeology  $                                      -   
335 HighPoint Operating Corporation Scientific Drilling International, Inc. 7/28/2015 Master Service Agreement For Directional Drilling And Wellbore Navigation, Surveying And Logging Services  $                                      -   
336 HighPoint Operating Corporation Select Energy Service LLC 11/14/2011 Master Service Agreement For Pumping/Well Watching Services  $                                      -   
337 HighPoint Operating Corporation ShaleStone Inc. 6/11/2020 Master Service Agreement For Ground Storage Tanks, Secondary Containment, And Hdpe Fusion  $                                      -   
338 HighPoint Operating Corporation ShaleStone Resources 1/15/2019 Master Service Agreement For Environmental & Regulatory Services  $                                      -   
339 HighPoint Operating Corporation Sierra Chemicals, LC 5/20/2009 Master Service Agreement For C/G Supplies & Maintenance  $                                      -   
340 HighPoint Operating Corporation Silverline Services LLC 2/27/2012 Master Service Agreement For Environmental & Regulatory Services  $                         5,608.00
341 HighPoint Operating Corporation Slipstream Environmental Services, LLC 8/21/2019 Master Service Agreement For C/G Permits & Environmental Compliance Services  $                                      -   
342 HighPoint Operating Corporation SLR International Corporation 9/13/2018 Master Service Agreement For Professional Services  $                                      -   
343 HighPoint Operating Corporation Smart Chemical Services, LP 10/8/2018 Master Service Agreement For Chemical Pump  $                                      -   
344 HighPoint Operating Corporation Sound & Cellular, Inc. 10/27/2018 Master Service Agreement For Remote Communication Products And Services  $                                      -   
345 HighPoint Operating Corporation Specialized Automation Services, LLC. 10/23/2020 Master Service Agreement For Instrumentation & Control And Electrical Power Distribution Services  $                                      -   
346 HighPoint Operating Corporation SPL-Inc 10/22/2009 Master Service Agreement For C/G Permits & Environmental Compliance Services  $                                      -   
347 HighPoint Operating Corporation Stallion Oilfield Services LTD. 6/11/2009 Master Service Agreement For Equipment Rentals And Energy Services  $                                      -   
348 HighPoint Operating Corporation Standard Resources of CO LLC 4/30/2019 Master Service Agreement For Bonded Freight Shipping And Trucking Services  $                                      -   
349 HighPoint Operating Corporation STANLEY Inspection LLC 8/27/2020 Master Service Agreement For Inspection And Testing Technology  $                                      -   
350 HighPoint Operating Corporation Steffes Solutions, LLC 3/27/2014 Master Service Agreement For Contract Manufacturing Services  $                                      -   
351 HighPoint Operating Corporation Sterling Crane LLC 9/3/2008 Master Service Agreement For Trucking & Transportation Services  $                                      -   
352 HighPoint Operating Corporation Sterling Energy Investments, LLC 11/1/2017 Gas Purchase Agreement  $                                      -   
353 HighPoint Operating Corporation Sterling Energy Investments, LLC 2/1/2018 1st Amendment To Gas Purchase Agreement  $                                      -   
354 HighPoint Operating Corporation Sterling Energy Investments, LLC 6/1/2018 2nd Amendment To Gas Purchase Agreement  $                                      -   
355 HighPoint Operating Corporation Steve Sharp Transportation, Inc. 10/25/2018 Master Service Agreement For Trucking & Transportation Services  $                                      -   
356 HighPoint Operating Corporation Stick Man, Inc. 1/4/2017 Master Service Agreement For Centralizer/Float Services  $                                      -   
357 HighPoint Operating Corporation Summit Midstream Niobrara, LLC 5/9/2012 Gas Gathering And Processing Agreement  $                                      -   
358 HighPoint Operating Corporation Summit Midstream Niobrara, LLC 10/22/2012 1st Amendment To Gas Gathering And Processing Agreement  $                                      -   
359 HighPoint Operating Corporation Summit Midstream Niobrara, LLC 7/1/2016 2nd Amendment To Gas Gathering And Processing Agreement  $                                      -   
360 HighPoint Operating Corporation Summit Midstream Niobrara, LLC 7/17/2019 Angus Station Letter Agreement  $                                      -   
361 HighPoint Operating Corporation Summit Slickline Inc. 5/16/2016 Master Service Agreement For Pressure Testing, Gyro Surveys And General Slickline Services  $                                      -   
362 HighPoint Operating Corporation Sun Life 12/31/2020 Contractual Agreement To Provide Employees Stop Loss Coverage  $                                      -   
363 HighPoint Operating Corporation Superior Oilfield Services Co Ltd. DBA Laser Oilfield Services 2/6/2013 Master Service Agreement For Location & Roads Services  $                                      -   
364 HighPoint Operating Corporation SWABBCO 5/19/2014 Master Service Agreement For Completion Unit  $                                      -   
365 HighPoint Operating Corporation SWPPP Colorado LLC 5/15/2013 Master Service Agreement For Environmental & Regulatory Services  $                                      -   
366 HighPoint Operating Corporation Tallgrass Energy 12/31/2018 Midstream Agreement  $                                      -   
367 HighPoint Operating Corporation Tara Holdings (USA) Inc. 4/9/2019 Master Service Agreement For Flowback Services  $                                      -   
368 HighPoint Operating Corporation Team Industrial Services, Inc. 3/7/2017 Master Service Agreement For Process Lines/Vlv/Fittings  $                                      -   

 

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 CONFIDENTIAL - SUBJECT TO CHANGE

Page 8 of 9

 

 

HighPoint Resources
Contract Cure Schedule
Prepared on March 3, 2021

 

Contract ID Debtor Entity Counterparty Name Contract Date Contract Description Contract Cure Amount
369 HighPoint Operating Corporation Techneaux Technology Services, LLC. 8/2/2011 Master Service Agreement For Automation/Calibrate Services  $                       17,545.50
370 HighPoint Operating Corporation Terracon Consultants, Inc. 1/24/2020 Master Service Agreement For Facility Construction Support And Supervisors  $                                      -   
371 HighPoint Operating Corporation The Wireline Group, Inc. 10/1/2018 Amendment To Master Service Agreement For Cased-Hole And Electric Wireline Services  $                                      -   
372 HighPoint Operating Corporation The Wireline Group, Inc. 5/21/2019 Master Service Agreement For Cased-Hole And Electric Wireline Services  $                                      -   
373 HighPoint Operating Corporation Thru Tubing Solutions, Inc. 2/4/2011 Master Service Agreement For Downhole Equipment And Services  $                                      -   
374 HighPoint Operating Corporation Thurmond-McGlothlin, LLC 1/31/2014 Master Service Agreement For Servicing Natural Gas Meters  $                                      -   
375 HighPoint Operating Corporation Tidal Logistics, Inc. 11/1/2019 Master Service Agreement For Water Hauling & Disposal  $                                      -   
376 HighPoint Operating Corporation Timberlane Pumps LLC 7/22/2011 Master Service Agreement For Surface Equipment Maintenance & Repairs  $                                      -   
377 HighPoint Operating Corporation Titan Field Service LLC 10/10/2016 Master Service Agreement For Mechanical Contract Labor  $                         3,270.00
378 HighPoint Operating Corporation Titan Solutions, LLC 11/13/2017 Master Service Agreement For Rental Equipment  $                                      -   
379 HighPoint Operating Corporation Total Directional Services, LLC 4/14/2012 Master Service Agreement For Directional Drill & Survey Services  $                                      -   
380 HighPoint Operating Corporation Tres Management Inc. 3/4/2020 Master Service Agreement For Contract Labor  $                                      -   
381 HighPoint Operating Corporation TriHydro Corporation 12/7/2007 Master Service Agreement For Environmental  $                                      -   
382 HighPoint Operating Corporation Triton Environmental, LLC 11/28/2018 Master Service Agreement For Permit/Environ  $                                      -   
383 HighPoint Operating Corporation TRK Enterprises, Inc 3/7/2012 Master Service Agreement For Casing Crews & Equipment  $                                      -   
384 HighPoint Operating Corporation Tucker Transportation Inc. 3/12/2007 Master Service Agreement For Trucking &Transportation  $                                      -   
385 HighPoint Operating Corporation Turbo Drill Industries, Inc 1/14/2020 Master Service Agreement For Downhole Drilling Products And Services  $                                      -   
386 HighPoint Operating Corporation Twin Eagle Consulting 9/28/2011 Master Service Agreement For Automation/Calibrate Services  $                                      -   
387 HighPoint Operating Corporation UET 4/16/2019 Midstream Agreement  $                                      -   
388 HighPoint Operating Corporation Uintah Engineering & Land Surveying (UELS) 10/1/2008 Vendor Agreement For Land Surveying Services  $                       21,223.50
389 HighPoint Operating Corporation UKG 10/31/2020 Master Service Agreement To Provide Human Resources Software  $                                      -   
390 HighPoint Operating Corporation Ulterra Drilling Technologies LP 3/9/2009 Master Service Agreement For Bits  $                                      -   
391 HighPoint Operating Corporation UMR 12/31/2020 Contractual Agreement To Provide Employees Medical Benefits And Coverage  $                                      -   
392 HighPoint Operating Corporation Unum 9/30/2020 Contractual Agreement To Provide Employees Long-Term Disability Benefits And Coverage  $                                      -   
393 HighPoint Operating Corporation USA Compression Partners, LLC 8/31/2016 Vendor Agreement For Oil & Gas Compression Services  $                                      -   
394 HighPoint Operating Corporation Varel International Ind., L.P. 4/13/2009 Master Service Agreement For Bits  $                                      -   
395 HighPoint Operating Corporation Varra Companies Inc. 5/8/2017 Vendor Agreement For Sand, Gravel And Operational Other Materials  $                                      -   
396 HighPoint Operating Corporation Volumetrics Inc. 9/28/2015 Master Service Agreement For Automation/Calibrate Services  $                                      -   
397 HighPoint Operating Corporation Voya 12/31/2020 Contractual Agreement To Provide Employees Life And Disability Benefits And Coverage  $                                      -   
398 HighPoint Operating Corporation VSP 12/31/2020 Contractual Agreement To Provide Employees Vision Benefits And Coverage  $                                      -   
399 HighPoint Operating Corporation W. W. Backhoe & Dozer Services, Inc. 9/27/2012 Master Service Agreement For Equipment Rentals And Services  $                                      -   
400 HighPoint Operating Corporation Wagner Equipment Co. 11/1/2011 Master Service Agreement For Equipment & Repairs  $                                      -   
401 HighPoint Operating Corporation Walker Inspection L.L.C. 12/19/2011 Master Service Agreement For Contract Labor  $                                      -   
402 HighPoint Operating Corporation Warbonnet Construction 12/16/2011 Master Service Agreement For Environmental & Regulatory Services  $                             599.00
403 HighPoint Operating Corporation W-B Supply Company 7/27/2017 Master Service Agreement For Process Lines/Vlv/Fittings  $                                      -   
404 HighPoint Operating Corporation Weatherford International, LLC - USA 11/26/2007 Amendment To The Master Service Agreement For Perforating  $                                      -   
405 HighPoint Operating Corporation Weatherford International, LLC 7/11/2019 Amendment To Master Service Agreement  $                                      -   
406 HighPoint Operating Corporation West States Energy Contractors 1/17/2012 Master Service Agreement For Health And Safety Programs  $                                      -   
407 HighPoint Operating Corporation Western Oilfields Supply Company DBA Rain for Rent 3/15/2004 Master Service Agreement For Rental Equipment  $                                      -   
408 HighPoint Operating Corporation Western States Reclamation Inc 4/12/2016 Master Service Agreement For Environmental & Regulatory Services  $                                      -   
409 HighPoint Operating Corporation Western Water Consultants 12/26/2018 Master Service Agreement For Abandonment Services  $                                      -   
410 HighPoint Operating Corporation WestRoc Trucking Inc. 3/31/2009 Master Service Agreement For Rig Mobilization  $                                      -   
411 HighPoint Operating Corporation White River Hub LLC 3/19/2019 Midstream Agreement  $                                      -   
412 HighPoint Operating Corporation Winn-Marion, Inc. 6/1/2020 Master Service Agreement For Mechanical Contract Labor  $                         1,996.31
413 HighPoint Operating Corporation Wise Services Inc 1/20/2011 Master Service Agreement For Hydro-Excavation, Rig Cleaning, Water Hauling And Other Trucking Services  $                                      -   
414 HighPoint Operating Corporation Wright Choice Inc. 11/7/2011 Master Service Agreement For Water Hauling And Other Services  $                                      -   
415 HighPoint Operating Corporation ZAP Engineering & Construction Services 10/1/2015 Master Service Agreement For Environmental & Regulatory Services  $                                      -   

 

 

 CONFIDENTIAL - SUBJECT TO CHANGE

Page 9 of 9

 

 

Exhibit E

 

Schedule of Rejected Unexpired Leases

 

Certain documents, or portions thereof, contained in this Exhibit E and the Plan Supplement remain subject to continued review by the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties. The respective rights of the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties are expressly reserved, subject to the terms and conditions set forth in the Plan, the Merger Agreement, and the TSA, to alter, amend, modify, or supplement the Plan Supplement and any of the documents contained therein in accordance with the terms of the Plan or by order of the Court; provided that, if any document in this Plan Supplement is altered, amended, modified, or supplemented in any material respect prior to the Confirmation Hearing, the Debtors will file a redline of such document with the Court.

 

The Schedule of Rejected Unexpired Leases is not final and remains subject to negotiation among the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties. The draft attached herein (the “Draft Schedule of Rejected Unexpired Leases”) is subject to material revision in all respects. The final form of the Schedule of Rejected Unexpired Leases shall be subject to the terms and conditions of the Plan, the Merger Agreement, and the TSA, including all consent rights therein, and the Debtors and each interested party (solely to the extent such party has consent rights over such Schedule of Rejected Unexpired Leases) reserve all rights to amend (in whole or in part), revise, or supplement the Draft Schedule of Rejected Unexpired Leases, and any of the documents and designations contained therein, at any time before the Effective Date of the Plan, or any such other date as may be permitted by the Plan or by order of the Court.

 

 

 

Debtor Counterparty Lease / Sublease
Counterparties
Counterparty Addresses Contract Date Description of Rejected Unexpired Leases

 

HighPoint Operating Corporation

 

555 17th Street Investors LLC

 

 

 

c/o UBS Realty Investors LLC

455 Market Street, Suite 1000

San Francisco, CA 94105-2443

Attn: Asset Manager

 

and

 

UBS Realty Investors LLC

Ten State House Square,

15th Floor

Hartford, CT 06103-3604

Attn: General Counsel

 

and

 

Cushman & Wakefield

555 17th Street, Suite 170

555 17th Street

Denver, Colorado 80202

Attn: Property Manager

 

4/27/2018

 

 

Lease Agreement

 

 

HighPoint Operating Corporation

 

Prologis L.P. (successor of DCT Management LLC)

 

518 17th Street, Suite 800

Denver, CO 80202

 

and

 

Prologis L.P.

1800 Wazee Street, Suite 500

Denver, CO 80202

Attn: General Counsel

 

10/26/2018

 

 

Sublease Agreement

 

 

 KE 75196600

 

 

 

 

HighPoint Operating Corporation

 

5251 DTC Parkway, LLC

 

C/O Principal Real Estate Investors

801 Grand Ave.,

Des Moines, IA 50392-1370

 

and

 

CBRE, Inc.

5251 DTC Parkway, Suite 260

Greenwood Village, CO 80111

Attn: General Manager

 

 

2/25/2015

 

 

Lease Agreement

 

 

 

HighPoint Operating Corporation

 

Garver, LLC

 

C/O Principal Real Estate Investors

801 Grand Ave.,

Des Moines, IA 50392-1370

Attn: Commercial Real Estate Equities

 

and

 

 

5251 DTC Parkway,

Suites 405, 420

Greenwood Village, CO 80111

 

and

 

Garver, LLC

4701 Northshore Drive

North Little Rock,

Arkansas 72118

Attn: Dathan Gaskill, Chief Financial Officer

 

 

6/10/2018

 

 

 

Sublease

 

 

 

 

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2

 

 

HighPoint Operating Corporation

 

Ossidiana Operating, LLC

 

5251 DTC Parkway,

Suite 950

Greenwood Village, CO 80111

 

and

 

Ossidiana Operating, LLC

5445 DTC Parkway,

Suite 1250

Greenwood Village, CO 80111

Attn: Bill Masino, Chief Executive Officer

 

 

7/19/2019

 

Sublease

 

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3

  

Exhibit F

 

 

 

Exit RBL Documents

 

Certain documents, or portions thereof, contained in this Exhibit F and the Plan Supplement remain subject to continued review by the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties. The respective rights of the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties are expressly reserved, subject to the terms and conditions set forth in the Plan, the Merger Agreement, and the TSA, to alter, amend, modify, or supplement the Plan Supplement and any of the documents contained therein in accordance with the terms of the Plan or by order of the Court; provided that, if any document in this Plan Supplement is altered, amended, modified, or supplemented in any material respect prior to the Confirmation Hearing, the Debtors will file a redline of such document with the Court.

 

The Exit RBL Documents are not final and remain subject to negotiation among the Debtors, BCEI, the Consenting Noteholders, the Consenting Shareholders, and other interested parties. The draft attached herein (the “Draft Exit RBL Documents”) is subject to material revision in all respects. The final form of the Exit RBL Documents shall be subject to the terms and conditions of the Plan, the Merger Agreement, and the TSA, including all consent rights therein, and the Debtors and each interested party (solely to the extent such party has consent rights over such Exit RBL Documents) reserve all rights to amend (in whole or in part), revise, or supplement the Draft Exit RBL Documents, and any of the documents and designations contained therein, at any time before the Effective Date of the Plan, or any such other date as may be permitted by the Plan or by order of the Court.

 

 

 

 

 

SECOND AMENDMENT TO CREDIT AGREEMENT

 

dated as of March [__], 2021

 

among

 

BONANZA CREEK ENERGY, INC.,
as Borrower,

 

The Guarantors Party Hereto,

 

JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Lender,

 

and

 

The Lenders Party Hereto

 

 

 

JPMORGAN CHASE BANK, N.A.,

KEYBANK NATIONAL ASSOCIATION,

WELLS FARGO SECURITIES, LLC

 

and

CITIBANK, N.A.,

as Joint Lead Arrangers,

 

 

 

 

 

 

Second Amendment to Credit Agreement

 

This Second Amendment to Credit Agreement (this “Second Amendment”), dated as of March [__], 2021 (the “Second Amendment Effective Date”), is among Bonanza Creek Energy, Inc., a Delaware corporation (the “Borrower”); each of the undersigned guarantors (the “Guarantors”, and together with the Borrower, the “Credit Parties”); each of the Lenders (including each of the New Lenders (as defined below)) that is a signatory hereto; and JPMorgan Chase Bank, N.A., as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the “Administrative Agent”).

 

Recitals

 

A.            The Borrower, the Administrative Agent, the Lenders and the Issuing Banks are parties to that certain Credit Agreement dated as of December 7, 2018 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”), pursuant to which the Lenders have, subject to the terms and conditions set forth therein, made certain credit available to and on behalf of the Borrower.

 

B.            The Borrower has advised the Administrative Agent and the Lenders that it has entered into that certain Agreement and Plan of Merger dated as of November 9, 2020 (as executed, without giving effect to any subsequent amendment or modification thereto except to the extent not prohibited by the terms hereof, the “HighPoint Merger Agreement”), among the Borrower, as “Parent”, Boron Merger Sub, Inc., a Delaware corporation and wholly-owned Domestic Subsidiary of the Borrower (“Merger Sub”), as “Merger Sub”, and HighPoint Resources Corporation, a Delaware corporation (“HighPoint”), as “Company”.

 

C.            The Borrower intends to commence an exchange offer to effect, among other things, the exchange of any or all of the 7.0% Senior Notes of HighPoint due October 15, 2022 (the “7.0% Notes”) and the 8.75% Senior Notes of HighPoint due June 15, 2025 (the “8.75% Notes”; the 8.75 Notes together with the 7.0% Notes, collectively, the “HighPoint Senior Notes”) for a combination of certain common stock of the Borrower and a maximum principal amount of up to $100,000,000 of unsecured senior notes due 2026 to be issued by the Borrower on the Second Amendment Effective Date (the “Bonanza Senior Notes”), in each case, as further described in the HighPoint Merger Agreement (such exchange offer, the “Exchange Offer Transaction”); provided that the Exchange Offer Transaction is subject to the “Minimum Participation Condition” (as defined in the HighPoint Merger Agreement).

 

D.            In the event that the Minimum Participation Condition is not satisfied, pursuant to the terms of the HighPoint Merger Agreement, the HighPoint Merger (as defined below) will be consummated via the Prepackaged Plan (as defined in the HighPoint Merger Agreement), subject to the entry of the Confirmation Order (as defined in the HighPoint Merger Agreement) thereof (the “Prepackaged Transaction”). Pursuant to the HighPoint Merger Agreement, including consummation of either the Exchange Offer Transaction or the Prepackaged Transaction, as the case may be, Merger Sub will merge with and into HighPoint, with HighPoint resulting as the surviving company and subsidiary of the Borrower (such transaction, the “HighPoint Merger”).

 

E.            As a result of the HighPoint Merger, the Credit Parties will own all of the Oil and Gas Properties of HighPoint and its subsidiaries as set forth in the Specified Reserve Report (as defined below)

 

 

 

 

F.            In connection with this Second Amendment, each of the entities set forth on Annex I hereto (each, a “New Obligated Party” and collectively, the “New Obligated Parties”), will be added as a “Guarantor” under the Credit Agreement and will become a party to (by joinder or otherwise) the Guarantee Agreement and certain Security Instruments.

 

G.            The Borrower has requested that each of Wells Fargo Bank, N.A. and Comerica Bank (each a “New Lender”, and collectively, the “New Lenders”) become a Lender under the Credit Agreement with a Maximum Credit Amount as of the Second Amendment Effective Date in the amounts shown on Schedule 1.2 to the Credit Agreement (as amended hereby).

 

H.            The parties hereto desire to enter into this Second Amendment to, among other things, (i) amend the Credit Agreement as set forth in Section 2 hereof, (ii) evidence the increase of the Borrowing Base from $260,000,000 to $500,000,000 as set forth in Section 3.1 hereof and (iii) evidence the increase of the Elected Loan Limit from $260,000,000 to $400,000,000 as set forth in Section 3.2 hereof, in each case, as set forth herein and to be effective as of the Second Amendment Effective Date.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

Section 1.        Defined Terms. Each capitalized term which is defined in the Credit Agreement, but which is not defined in this Second Amendment, shall have the meaning ascribed such term in the Credit Agreement, as amended hereby. Unless otherwise indicated, all section references in this Second Amendment refer to the Credit Agreement.

 

Section 2.        Amendments. In reliance on the representations, warranties, covenants and agreements contained in this Second Amendment, and subject to the satisfaction of the conditions precedent set forth in Section 5 hereof, the Credit Agreement shall be amended effective as of the Second Amendment Effective Date, in the manner provided in this Section 2.

 

2.1           Additional Definitions. Section 1.02 of the Credit Agreement is hereby amended to add thereto in alphabetical order the following definitions which shall read in full as follows:

 

Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

Available Free Cash Flow Amount” means, as of any date of determination, the result of (a) Free Cash Flow for the four fiscal quarters most recently ended for which a certificate has been delivered pursuant to Section 8.01(n) minus (b) the aggregate amount of all Restricted Payments made in reliance on Section 9.04(e) during the three most recently completed Free Cash Flow Usage Periods and the then current Free Cash Flow Usage Period minus (c) the aggregate amount of all Investments made in reliance on Section 9.05(l) during the three most recently completed Free Cash Flow Usage Periods and the then current Free Cash Flow Usage Period minus (d) the aggregate amount of all Redemptions made in reliance on Section 9.15(b)(iv) during the three most recently completed Free Cash Flow Usage Periods and the then current Free Cash Flow Usage Period.

 

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Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (f) of Section 5.10.

 

Benchmark” means, initially, LIBO Rate; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to LIBO Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) or clause (c) of Section 5.10.

 

Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

 

(a)           the sum of: (i) Term SOFR and (ii) the related Benchmark Replacement Adjustment;

 

(b)           the sum of: (i) Daily Simple SOFR and (ii) the related Benchmark Replacement Adjustment;

 

(c)           the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar-denominated syndicated credit facilities at such time and (ii) the related Benchmark Replacement Adjustment;

 

provided that, in the case of clause (a), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; provided further that, notwithstanding anything to the contrary in this Agreement or in any other Loan Document, upon the occurrence of a Term SOFR Transition Event, and the delivery of a Term SOFR Notice, on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (A) Term SOFR and (B) the related Benchmark Replacement Adjustment, as set forth in clause (a) of this definition (subject to the first proviso above).

 

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If the Benchmark Replacement as determined pursuant to clause (a), (b) or (c) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

 

Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:

 

(a)            for purposes of clauses (a) and (b) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:

 

(i)            the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;

 

(ii)           the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and

 

(b)           for purposes of clause (c) of the definition of “Benchmark Replacement,” 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 for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) 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 such Benchmark with the applicable Unadjusted Benchmark Replacement for dollar-denominated syndicated credit facilities;

 

Page 4

 

 

provided that, in the case of clause (a) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.

 

Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in its reasonable discretion 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 such 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 and the other Loan Documents).

 

Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:

 

(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 such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);

 

(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;

 

(c)           in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Lenders and the Borrower pursuant to Section 5.10(c); or

 

(d)           in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Majority Lenders.

 

Page 5

 

 

For the avoidance of doubt, (a) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (b) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

 

(a)            a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

 

(b)            a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

 

(c)            a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.

 

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

 

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Benchmark Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 5.10 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 5.10.

 

Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

 

Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.

 

Early Opt-in Election” means, if the then-current Benchmark is LIBO Rate, the occurrence of:

 

(a)            a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and

 

(b)           the joint election by the Administrative Agent and the Borrower to trigger a fallback from LIBO Rate and the provision by the Administrative Agent of written notice of such election to the Lenders.

 

Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to LIBO Rate.

 

Free Cash Flow” means, as of any date of determination, the result of (a) EBITDAX for the four fiscal quarters most recently ended for which a certificate has been delivered pursuant to Section 8.01(n), minus (b) the sum, without duplication, of the following cash expenses or cash charges to the extent added back in the calculation of EBITDAX for such period: (i) interest, (ii) income and franchise taxes, (iii) exploration expenses, including plugging and abandonment expenses, and (iv) to the extent not included in the foregoing and added back in the calculation of EBITDAX for such period, any other cash expense or cash charge that otherwise served to increase EBITDAX for such period, minus (c) the sum, without duplication, of (i) capital expenditures and (ii) cash principal payments in respect of any Debt for borrowed money (other than the Obligations and any Redemptions made under Section 9.15(b)(iv)) that cannot be reborrowed pursuant to the terms of such Debt, in each case, incurred or made by the Borrower and its Consolidated Restricted Subsidiaries during such period, and (d) minus the increase (or plus the decrease) in Working Capital from the last day immediately prior to the four-fiscal quarter period for which EBITDAX is calculated pursuant to the foregoing clause (a).

 

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Free Cash Flow Usage Period” means, as of any date of determination, the period commencing on the most recent date that is exactly forty-five (45) days after the end of a fiscal quarter or sixty (60) days in the case of the last fiscal quarter of a year and ending on (but not including) the next date that is exactly forty-five (45) days after the end of a fiscal quarter or sixty (60) days in the case of the last fiscal quarter of a year.

 

HighPoint Letters of Credit” means the letters of credit described on Schedule 1.4.

 

ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.

 

Letter of Credit Sublimit” means, with respect to each Issuing Bank, $30,000,000.

 

NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.

 

Reference Time” with respect to any setting of the then-current Benchmark means (a) if such Benchmark is LIBO Rate, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (b) if such Benchmark is not LIBO Rate, the time determined by the Administrative Agent in its reasonable discretion.

 

Relevant Governmental Body” means the Federal Reserve Board or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board or the NYFRB, or any successor thereto.

 

Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

Reuters” means, as applicable, Thomson Reuters Corp., Refinitiv, or any successor thereto.

 

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Second Amendment” means that certain Second Amendment to Credit Agreement dated as of the Second Amendment Effective Date among the Borrower, the Guarantors party thereto, the Administrative Agent and the Lenders party thereto.

 

Second Amendment Effective Date” means March [__], 2021.

 

SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day.

 

SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).

 

SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

 

Specified Measurement Period” means, with respect to each Specified Swap Compliance Date, the most recently ended four fiscal quarter period for which such financial statements are required to be delivered pursuant to Section 8.01(a) or Section 8.01(b), as the case may be.

 

Specified Swap Compliance Date” has the meaning assigned to such term in Section 8.19.

 

Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

 

Term SOFR Notice” means a notification by the Administrative Agent to the Lenders and the Borrower of the occurrence of a Term SOFR Transition Event.

 

Term SOFR Transition Event” means the determination by the Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event or an Early Opt-in Election, as applicable, has previously occurred resulting in a Benchmark Replacement in accordance with Section 5.10 that is not Term SOFR.

 

UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

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UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

 

Working Capital” means, at any date, the excess of Current Assets of the Borrower and the other Credit Parties on such date less Current Liabilities of the Borrower and the other Credit Parties on such date other than Revolving Credit Loans and Letters of Credit, all determined on a consolidated basis in accordance with GAAP.

 

2.2           Amended Definitions. The following definitions contained in Section 1.02 of the Credit Agreement are hereby amended and restated in their respective entireties to read in full as follows:

 

Aggregate Maximum Credit Amounts” at any time shall equal the sum of the Maximum Credit Amounts, as the same may be reduced or terminated pursuant to Section 2.05. As of the Second Amendment Effective Date, the Aggregate Maximum Credit Amounts of the Revolving Credit Lenders is $1,000,000,000.

 

Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 5.07 or Section 5.10 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 5.10(b)), then the Alternate Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than 1.50%, such rate shall be deemed to be 1.50% for purposes of this Agreement.

 

Arrangers” means, collectively, (a) JPMorgan Chase Bank, N.A., in its capacities as sole bookrunner and a joint lead arranger hereunder and (b) KeyBank National Association, Wells Fargo Securities, LLC and Citibank, N.A., in each case, in their respective capacities as joint lead arrangers hereunder.1

 

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

 

Bail-In Legislation” means (a) 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, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

Interpolated Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period (for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period and (b) the LIBO Screen Rate for the shortest period (for which the LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time; provided that if the Interpolated Rate shall be less than 0.50%, such rate shall be deemed to be 0.50% for the purposes of this Agreement.

 

Issuing Bank” means (a) JPMorgan Chase Bank, N.A., KeyBank National Association, Citibank, N.A. and Wells Fargo Bank, N.A., and (b) if requested by the Borrower and reasonably acceptable to the Administrative Agent, any other Person who is a Lender at the time of such request and who accepts such appointment in writing with the Borrower and the Administrative Agent, in their respective capacities as issuers of Letters of Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. References herein and in the Loan Documents to the Issuing Bank shall be deemed to refer to the Issuing Bank in respect of the applicable Letter of Credit or to all Issuing Banks, as the context requires.

 

Letter(s) of Credit” means any standby letters of credit issued by any Issuing Bank at the request of the Borrower pursuant to Section 2.07, including without limitation the HighPoint Letters of Credit that are deemed to have been issued pursuant to Section 2.07(a).

 

 

[1] [NTD: Arranger names to be confirmed.]

 

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Letter of Credit Maximum Amount” means $50,000,000.

 

Letter of Credit Obligations” means at any date of determination, the sum of (a) the aggregate undrawn amount of all Letters of Credit (including, for the avoidance of doubt, the HighPoint Letters of Credit deemed issued pursuant to Section 2.07(a)) then outstanding, and (b) the aggregate amount of Reimbursement Obligations which remain unpaid as of such date.

 

LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”) then the LIBO Rate shall be the Interpolated Rate, provided that if the LIBO Rate shall be less than 0.50%, such rate shall be deemed to be 0.50% for the purposes of this Agreement.

 

LIBO Screen Rate” means, for any day and time, with respect to any Eurodollar Borrowing for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for U.S. Dollars for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate), or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion, provided that if the LIBO Screen Rate shall be less than 0.50%, such rate shall be deemed to be 0.50% for the purposes of this Agreement.

 

Loan Documents” means this Agreement, the First Amendment, the Second Amendment, the Notes, the Letter of Credit Agreements, the Letters of Credit, the Security Instruments, the Guarantee Agreement and the Proposal Letter.

 

Total Net Debt” means, as of any date, the difference of (a) consolidated Total Debt of the Borrower and the other Credit Parties and (b) any unrestricted cash and cash equivalents which is subject to a perfected, first priority Lien in favor of the Administrative Agent; provided that the amount in this clause (b) shall not exceed $35,000,000 if any Loans or Letters of Credit are outstanding as of such date of determination.

 

Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

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2.3           Amendment to Section 2.06 of the Credit Agreement. Section 2.06(e) of the Credit Agreement is hereby amended by inserting the words “after the Second Amendment Effective Date” immediately after the first reference to the word “Debt” therein.

 

2.4           Amendments to Section 2.07 of the Credit Agreement. Section 2.07 of the Credit Agreement is hereby amended by:

 

(a)           amending and restating the first sentence of Section 2.07(a) to read in full as follows:

 

Subject to the terms and conditions of this Agreement, each Issuing Bank may (but shall not be required to) through the Issuing Office, at any time and from time to time from and after the date hereof until five (5) Business Days prior to the Revolving Credit Maturity Date, upon the written request of the Borrower accompanied by a duly executed Letter of Credit Agreement and such other documentation related to the requested Letter of Credit as each Issuing Bank may reasonably require, issue Letters of Credit in Dollars for the account of any Credit Party, (x) in an aggregate amount for all Letters of Credit issued hereunder at any one time outstanding by all Issuing Banks not to exceed the Letter of Credit Maximum Amount and (y) with respect to each Issuing Bank, in an aggregate amount for all Letters of Credit issued hereunder by such Issuing Bank at any one time outstanding not to exceed such Issuing Bank’s Letter of Credit Sublimit without the consent of such Issuing Bank.

 

(b)           adding a new sentence to the end of Section 2.07(a) to read in full as follows:

 

Notwithstanding anything to the contrary in the foregoing or Section 6.02(d), the HighPoint Letters of Credit shall be deemed to have been issued hereunder as “Letters of Credit”.

 

(c)            amending and restating clause (i) appearing in Section 2.07(b) in its entirety to read in full as follows:

 

(i)            after giving effect to the Letter of Credit requested, (A) the Letter of Credit Obligations do not exceed the Letter of Credit Maximum Amount and (B) each Issuing Bank’s individual Letter of Credit Obligations do not exceed such Issuing Bank’s Letter of Credit Sublimit without the consent of such Issuing Bank;

 

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2.5           Amendments to Section 3.03 of the Credit Agreement. Section 3.03 of the Credit Agreement is hereby amended by:

 

(a)            inserting the words “or other adjustment of the Borrowing Base pursuant to Section 8.13(c) or Section 8.19,” immediately after the first reference to “Interim Redetermination” in clause (c)(ii)(A) therein; and

 

(b)            replacing the reference to “85%” in clause (c)(ii)(B)(2) therein with “90%”.

 

2.6           Amendments to Article V of the Credit Agreement. Article V of the Credit Agreement is hereby amended by:

 

(a)            amending and restating Section 5.06 of the Credit Agreement in its entirety to read in full as follows:

 

Section 5.06          [Reserved.]

 

(b)            amending and restating Section 5.10 of the Credit Agreement in its entirety to read in full as follows:

 

Section 5.10          Alternate Rate of Interest.

 

(a)            Inability to Determine Rates. Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 5.10 and Section 5.07, if prior to the commencement of any Interest Period for a Eurodollar Borrowing:

 

(i)            the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable (including, without limitation, because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or

 

(ii)            the Administrative Agent is advised by the Majority Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;

 

then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy, electronic mail or fax as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Revolving Credit Borrowing Request that requests the conversion of any Revolving Credit Borrowing to, or continuation of any Revolving Credit Borrowing as, a Eurodollar Borrowing shall be ineffective, and (B) if any Revolving Credit Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made either as an ABR Borrowing or, at the election of the Borrower with the consent of the Majority Lenders, at an alternate rate of interest determined by the Majority Lenders that represents their cost of funds.

 

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(b)            Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document (provided that any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 5.10), if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (i) if a Benchmark Replacement is determined in accordance with clause (a) or (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (ii) if a Benchmark Replacement is determined in accordance with clause (c) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Majority Lenders.

 

(c)            Term SOFR Transition Event. Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may do so in its sole discretion.

 

(d)            Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

 

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(e)          Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 5.10, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 5.10.

 

(f)            Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or LIBO Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.

 

(g)        Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurodollar Borrowing of, conversion to or continuation of Eurodollar Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Alternate Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Alternate Base Rate.

 

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2.7          Amendment to Section 5.11 of the Credit Agreement. Section 5.11 of the Credit Agreement is hereby amended by amending and restating such section in its entirety to read in full as follows:

 

Section 5.11     Interest Rates; LIBOR Notifications. The interest rate on Eurodollar Loans is determined by reference to the LIBO Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurodollar Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. Upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, Section 5.10(b) and (c) provide the mechanism for determining an alternative rate of interest. The Administrative Agent will promptly notify the Borrower, pursuant to Section 5.10(e), of any change to the reference rate upon which the interest rate on Eurodollar Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (a) any such alternative, successor or replacement rate implemented pursuant to Section 5.10(b) or (c), whether upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, and (b) the implementation of any Benchmark Replacement Conforming Changes pursuant to Section 5.10(d)), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.

 

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2.8          Amendment to Section 6.02 of the Credit Agreement. Section 6.02 of the Credit Agreement is hereby amended by amending and restating the first sentence appearing therein in its entirety to read in full as follows:

 

The obligation of each Lender to make a Loan on the occasion of any Borrowing (including the initial funding, but excluding a Revolving Credit Borrowing to continue or convert any outstanding Revolving Credit Borrowing), and of the Issuing Banks to issue, amend, renew or extend any Letter of Credit (but excluding any automatic renewal or extension of any Letter of Credit, amendment the sole purpose of which is to extend or renew any Letter of Credit and any HighPoint Letter of Credit that is deemed to be issued pursuant to Section 2.07(a)), is subject to the satisfaction of the following conditions (or waiver in accordance with Section 12.02):

 

2.9          Amendment to Section 7.23 of the Credit Agreement. Section 7.23 of the Credit Agreement is hereby amended and restated in its entirety to read in full as follows:

 

Section 7.23.     Affected Financial Institutions. No Credit Party is an Affected Financial Institution.

 

2.10        Amendment to Article VIII of the Credit Agreement. Article VIII of the Credit Agreement is hereby amended by adding a new Section 8.19 immediately after Section 8.18 therein to read in full as follows:

 

Section 8.19     Swap Agreements. As of (x) the date that is thirty (30) days after the Second Amendment Effective Date and (y) each latest permissible date that any financial statements are required to be delivered pursuant to Section 8.01(a) or Section 8.01(b), commencing with the financial statements required to be delivered pursuant to Section 8.01(b) for the fiscal quarter ending March 31, 2021 (each such date in the foregoing clauses (x) and (y), a “Specified Swap Compliance Date”), the Credit Parties shall be party to Swap Agreements, in the form of fixed-price swaps and purchased put options or collars, in each case, with prices and terms reasonably acceptable to the Administrative Agent, covering not less than fifty percent (50%) of the reasonably anticipated projected production from Oil and Gas Properties constituting Proved Developed Producing Reserves (as reflected in the most recently delivered Reserve Report prior to such Specified Swap Compliance Date) for each of crude oil and natural gas, calculated separately, (a) if the Leverage Ratio is less than 1.0 to 1.0 as of the last day of the most recently ended Specified Measurement Period, for each calendar month of the eighteen (18) calendar month period immediately following the Specified Swap Compliance Date or (b) if the Leverage Ratio is greater than or equal to 1.0 to 1.0 as of the last day of the most recently ended Specified Measurement Period, for each calendar month of the twenty-four (24) calendar month period immediately following the Specified Swap Compliance Date. The Borrower shall not unwind, terminate or enter into any off-setting positions to the required hedges except to the extent necessary to comply with Section 9.14 or in connection with a transaction permitted by Section 9.10(e).

 

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2.11       Amendments to Section 8.01 of the Credit Agreement. Section 8.01 of the Credit Agreement is hereby amended by adding new Sections 8.01(n) and 8.01(o) immediately after Section 8.01(m) therein to read in full as follows:

 

(n)            Certificate of Financial Officer – Available Free Cash Flow Amount. Concurrently with any delivery of financial statements under Section 8.01(b) and within sixty (60) days after the end of each fiscal year, a certificate of a Financial Officer in form and substance reasonably satisfactory to the Administrative Agent (i) setting forth detailed calculations of the Available Free Cash Flow Amount for the most recently ended four fiscal quarter period (including, with respect to each fiscal quarter ending December 31 of each year, unaudited financial statements necessary to support such calculations) and (ii) certifying as to (and specifying in reasonable detail) the aggregate amount of all Restricted Payments made in reliance on Section 9.04(e), Investments made in reliance on Section 9.05(l) and Redemptions made in reliance on Section 9.15(b)(iv) during the period of three consecutive Free Cash Flow Usage Periods that is ending with the delivery of such certificate.

 

(o)           Certificate of Financial Officer — Swap Agreement Compliance. Concurrently with each delivery of financial statements under Section 8.01(a) and Section 8.01(b), a certificate of a Financial Officer, in form and substance satisfactory to the Administrative Agent in its reasonable discretion, setting forth that the Credit Parties are in compliance with Section 8.19 as of the applicable Specified Swap Compliance Date and providing supporting information reasonably satisfactory to the Administrative Agent demonstrating compliance with Section 8.19.

 

2.12       Amendments to Section 8.13(a) of the Credit Agreement. Section 8.13(a) of the Credit Agreement is hereby amended by replacing each reference to “85%” appearing therein with a reference to “90%”.

 

2.13       Amendments to Section 8.14(a) of the Credit Agreement. Section 8.14(a) of the Credit Agreement is hereby amended by replacing each reference to “85%” appearing therein with a reference to “90%”.

 

2.14       Amendment to Section 9.01(b) of the Credit Agreement. Section 9.01(b) of the Credit Agreement is hereby amended and restated in its entirety to read in full as follows:

 

(b)           Leverage Ratio. The Borrower will not permit the Leverage Ratio to be greater than (i) 3.5 to 1.0 as of the last day of any fiscal quarter on or prior to March 31, 2021 and (ii) 3.0 to 1.0 as of the last day of any fiscal quarter thereafter.

 

2.15        Amendments to Section 9.02 of the Credit Agreement. Section 9.02 of the Credit Agreement is hereby amended by:

 

(a)            replacing each reference to “3.25” appearing therein with a reference to “2.50”; and

 

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(b)            amending and restating the parenthetical appearing in clause (f)(i) to read in full as follows:

 

(including, with respect to the incurrence of any such Debt after the Second Amendment Effective Date, after giving effect to any automatic reduction of the Borrowing Base required pursuant to Section 2.06(e))

 

2.16         Amendments to Section 9.04 of the Credit Agreement. Section 9.04 of the Credit Agreement is hereby amended by:

 

(a)            deleting the word “and” appearing at the end of clause (c) therein;

 

(b)            replacing the reference to “2.75” appearing in Section 9.04(d)(ii)(A) with a reference to “1.0”;

 

(c)            replacing the reference to “85%” appearing in Section 9.04(d)(ii)(B) with a reference to “75%”;

 

(d)            replacing the period at the end of clause (d) therein with “; and”; and

 

(e)            inserting a new clause (e) immediately after clause (d) therein to read in full as follows:

 

(e)            any Credit Party may make a Restricted Payment not otherwise permitted under this Section 9.04 in an aggregate amount not to exceed the Available Free Cash Flow Amount at the time made, provided that (i) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing, or would result therefrom, and (ii) after giving pro forma effect to such Restricted Payment, (A) the Leverage Ratio does not exceed 2.25 to 1.0 and (B) the Commitment Utilization Percentage does not exceed 80%.

 

2.17         Amendments to Section 9.05 of the Credit Agreement. Section 9.05 of the Credit Agreement is hereby amended by:

 

(a)            deleting the word “and” appearing at the end of clause (j) therein;

 

(b)            replacing the reference to “2.75” appearing in Section 9.05(k)(ii)(A) with a reference to “1.0”;

 

(c)            replacing the reference to “85%” appearing in Section 9.05(k)(ii)(B) with a reference to “75%”;

 

(d)            replacing the period at the end of clause (k) therein with “;”; and

 

(e)            inserting new clauses (l) and (m) immediately after clause (k) therein to read in full as follows:

 

(l)            Investments not otherwise permitted under this Section 9.05 in an aggregate amount not to exceed the Available Free Cash Flow Amount at the time made; provided that (i) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing, or would result therefrom, and (ii) after giving pro forma effect to such Investment, (A) the Leverage Ratio does not exceed 2.25 to 1.0 and (B) the Commitment Utilization Percentage does not exceed 80%; and

 

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(m)            the consummation of the HighPoint Merger (as defined in the Second Amendment) on the Second Amendment Effective Date.

 

2.18       Amendment to Section 9.08 of the Credit Agreement. Section 9.08 of the Credit Agreement is hereby amended by adding the following sentence at the end of such Section.

 

Notwithstanding anything to the contrary in this Section 9.08, the Credit Parties may consummate the HighPoint Merger (as defined in the Second Amendment) on the Second Amendment Effective Date.

 

2.19       Amendment to Section 9.15(b) of the Credit Agreement. Section 9.15(b) of the Credit Agreement is hereby amended and restated in its entirety to read in full as follows:

 

(b)            The Borrower will not, nor will it permit any other Credit Party to prior to the date that is 180 days after the Maturity Date, make or offer to make any optional or voluntary Redemption of or otherwise optionally or voluntarily Redeem (whether in whole or in part) any principal in respect of any Permitted Additional Debt, except (i) with the Net Cash Proceeds of any substantially contemporaneous issuance of Equity Interests (other than Disqualified Capital Stock) or in exchange for Equity Interests (other than Disqualified Capital Stock), (ii) with the Net Cash Proceeds of any Permitted Refinancing, (iii) if after giving pro forma effect to such Redemption, (A) no Borrowing Base Deficiency or Default exists or results therefrom, (B) the Commitment Utilization Percentage is not more than 75% and (C) the Leverage Ratio is less than 1.0 to 1.0, or (iv) in an aggregate amount not to exceed the Available Free Cash Flow Amount at the time made, if after giving pro forma effect to such Redemption, (A) no Borrowing Base Deficiency, Default or Event of Default exists or results therefrom, (B) the Commitment Utilization Percentage is not more than 80% and (C) the Leverage Ratio is less than 2.25 to 1.0.

 

2.20         Amendments to Section 10.01 of the Credit Agreement. Section 10.01 of the Credit Agreement is hereby amended by:

 

(a)             amending and restating the parenthetical appearing in clause (e) to read in full as follows:

 

(other than those specified in Section 10.01(a), Section 10.01(b), Section 10.01(d) or Section 10.01(o))

 

(b)            inserting a new clause (o) immediately after clause (n) therein to read in full as follows:

 

(o)            any Credit Party shall fail to observe or perform any covenant, condition or agreement contained in Section 8.19, and such failure shall continue unremedied for a period of sixty (60) days after the earlier to occur of (i) a Responsible Officer of the Borrower or any other Credit Party having knowledge of such default or (ii) written notice thereof from the Administrative Agent to the Borrower.

 

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2.21          Amendment to Section 12.18 of the Credit Agreement. Section 12.18 of the Credit Agreement is hereby amended and restated in its entirety to read in full as follows:

 

Section 12.18     Acknowledgment and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

(a)            the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

 

(b)            the effects of any Bail-In Action on any such liability, including, if applicable:

 

(i)           a reduction in full or in part or cancellation of any such liability;

 

(ii)         a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

 

(iii)        the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.

 

2.22         Cover Page Amendment. The cover page of the Credit Agreement is hereby amended by deleting the phrase “JPMORGAN CHASE BANK, N.A., and KEYBANK NATIONAL ASSOCIATION as Joint Lead Arrangers,” in its entirety and replacing it with the following:

 

JPMORGAN CHASE BANK, N.A., KEYBANK NATIONAL ASSOCIATION, WELLS FARGO SECURITIES, LLC and CITIBANK, N.A., as Joint Lead Arrangers,

 

2.23         Replacement of Schedule 1.1. Schedule 1.1 to the Credit Agreement is hereby replaced in its entirety with Schedule 1.1 hereto and Schedule 1.1 hereto shall be deemed to be attached as Schedule 1.1 to the Credit Agreement.

 

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2.24        Replacement of Schedule 1.2. Schedule 1.2 to the Credit Agreement is hereby replaced in its entirety with Schedule 1.2 hereto and Schedule 1.2 hereto shall be deemed to be attached as Schedule 1.2 to the Credit Agreement. Immediately after giving effect to this Second Amendment and any Borr