0001866175False00018661752024-07-292024-07-29
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): July 29, 2024
Crescent Energy Company
(Exact Name of Registrant as Specified in Its Charter)
| | | | | | | | | | | | | | |
| Delaware | | 001-41132 | | 87-1133610 |
(State or Other Jurisdiction
of Incorporation) | | (Commission
File Number) | | (I.R.S. Employer
Identification Number) |
| | | | | |
600 Travis Street, Suite 7200 | |
Houston Texas | 77002 |
| (Address of Principal Executive Offices) | (Zip Code) |
(713) 332-7001
(Registrant’s Telephone Number, Including Area Code)
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: | | | | | |
| ☐ | Written communication 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 communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communication 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:
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| Title of each class | | Trading Symbol(s) | | Name of each exchange on which registered |
| Class A Common Stock, par value $0.0001 per share | | CRGY | | The 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 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
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. ☐
Introductory Note
On July 30, 2024 (the “Closing Date”), Crescent Energy Company (“Crescent”) completed its previously announced transaction with SilverBow Resources, Inc., a Delaware corporation (“SilverBow”), pursuant to the Agreement and Plan of Merger, dated as of May 15, 2024 (the “Merger Agreement”), by and among Crescent, SilverBow, Artemis Acquisition Holdings Inc., a Delaware corporation and a direct wholly owned subsidiary of Crescent (“Artemis Holdings”), Artemis Merger Sub Inc., a Delaware corporation and a direct wholly owned subsidiary of Crescent (“Merger Sub Inc.”), and Artemis Merger Sub II LLC, a Delaware limited liability company and a direct wholly owned subsidiary of Artemis Holdings (“Merger Sub LLC”). Capitalized terms used herein but not otherwise defined will have the meanings ascribed to them in the Merger Agreement.
Pursuant to the Merger Agreement, (i) at the Initial Merger Effective Time, Merger Sub Inc. merged with and into SilverBow (the “Initial Merger”), with SilverBow continuing as the surviving corporation (the “Initial Surviving Corporation”) and (ii) at the Subsequent Merger Effective Time, the Initial Surviving Corporation merged with and into Merger Sub LLC (the “Subsequent Merger” and together with the Initial Merger, the “Mergers”), with Merger Sub LLC continuing as the surviving company of the Subsequent Merger (the “Subsequent Surviving Company”) as a direct wholly owned subsidiary of Artemis Holdings. Promptly following the completion of the Mergers, Artemis Holdings contributed the Subsequent Surviving Company to Crescent Energy OpCo LLC, a Delaware limited liability company, of which Crescent is the managing member, which in turn contributed the Subsequent Surviving Company to its wholly owned subsidiary, Crescent Energy Finance LLC, a Delaware limited liability company (“Crescent Finance”).
The events described in this Current Report on Form 8-K took place in connection with the completion of the Mergers.
Item 1.01 Entry into a Material Definitive Agreement.
On the Closing Date, Crescent Finance entered into that certain Tenth Amendment to Credit Agreement (the “Credit Agreement Amendment”), which amended Crescent’s existing Credit Agreement, dated as of May 6, 2021 (as amended by the First Amendment to Credit Agreement, dated as of September 24, 2021, the Second Amendment to Credit Agreement, dated as of March 30, 2022, the Third Amendment to Credit Agreement, dated as of March 30, 2022, the Fourth Amendment to Credit Agreement, dated as of September 23, 2022, the Fifth Amendment to Credit Agreement, dated as of July 3, 2023, the Sixth Amendment to Credit Agreement, dated December 13, 2023, the Seventh Amendment to Credit Agreement, dated April 10, 2024, the Eighth Amendment to Credit Agreement, dated as of May 24, 2024, and the Ninth Amendment to Credit Agreement, dated as of June 14, 2024, and as further amended, modified, supplemented or restated from time to time, the “Credit Agreement”), by and among Crescent Finance, certain subsidiaries of Crescent Finance, as guarantors, Wells Fargo Bank, National Association, as administrative agent, collateral agent and a letter of credit issuer, and the other lenders and letter of credit issuers party thereto from time to time. Among other things, the Credit Agreement Amendment (a) increased the aggregate elected commitment amount under the Credit Agreement to $2.0 billion and (b) increased the borrowing base under the Credit Agreement to $2.6 billion.
The foregoing description of the Credit Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the text of the Credit Agreement Amendment, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated into this Item 1.01 by reference.
Item 2.01 Completion of Acquisition or Disposition of Assets.
As discussed in the Introductory Note above, on the Closing Date, Crescent completed its previously announced acquisition of SilverBow.
At the Initial Merger Effective Time, subject to the terms and conditions of the Merger Agreement, each eligible share of SilverBow common stock, par value $0.01 per share (“SilverBow Common Stock”), issued and outstanding immediately prior to the Initial Merger Effective Time (other than excluded shares held by SilverBow as treasury stock or held by the Crescent Parties, any wholly owned subsidiary of Crescent (other than Artemis Holdings,
Merger Sub Inc. or Merger Sub LLC) or any wholly owned subsidiary of SilverBow) was converted into the right to receive, at the election of the holder thereof, one of the following forms of consideration: (A) a combination of 1.866 shares of Crescent’s Class A common stock, par value $0.0001 per share (the “Crescent Class A Common Stock”) and $15.31 in cash (the “Mixed Election Consideration”), (B) $38.00 in cash (the “Cash Election Consideration”), subject to an aggregate cap of $400,000,000 on the total cash consideration payable pursuant to the Cash Election Consideration and the Mixed Consideration, (C) 3.125 shares of Crescent Class A Common Stock (the “Stock Election Consideration”), or (D) in the event of a holder’s failure to deliver an election, the Stock Election Consideration and, in each case, cash in lieu of any fractional shares that otherwise would have been issued.
Immediately prior to the Initial Merger Effective Time, subject to the terms and conditions of the Merger Agreement:
•each restricted stock unit award granted under the SilverBow 2016 Equity Incentive Plan and SilverBow Inducement Plan (collectively, the “SilverBow Incentive Plans”) subject only to time-based vesting conditions (each, a “SilverBow RSU”) outstanding as of immediately prior to the Initial Merger Effective Time, whether vested or unvested, became fully vested and cancelled and converted into a right to receive, (i) a cash payment equal to the product of (A) 50% of the number of shares of SilverBow Common Stock subject to the SilverBow RSU Award as of immediately prior to the Initial Merger Effective Time multiplied by (B) the Cash Election Consideration, and (ii) a number of shares of Crescent Class A Common Stock equal to the product of (A) 50% of the number of shares of SilverBow Common Stock subject to the SilverBow RSU Award as of immediately prior to the Initial Merger Effective Time multiplied by (B) the Stock Election Consideration, in each case under (i) and (ii), less applicable withholdings for taxes;
•each restricted stock unit award granted under a SilverBow Incentive Plan subject to both time-based vesting and performance-based vesting conditions (each, a “SilverBow PSU Award”) outstanding as of immediately prior to the Initial Merger Effective Time, whether vested or unvested, became fully vested and cancelled and converted into a right to receive, (i) a cash payment equal to the product of (A) 50% of the number of shares of SilverBow Common Stock subject to the SilverBow PSU Award as of immediately prior to the Initial Merger Effective Time (assuming that any performance-based vesting conditions applicable to such SilverBow PSU Award were achieved at the maximum level of performance), multiplied by (B) the Cash Election Consideration, and (ii) a number of shares of Crescent Class A Common Stock equal to the product of (A) 50% of the number of shares of SilverBow Common Stock subject to the SilverBow PSU Award as of immediately prior to the Initial Merger Effective Time (assuming that any performance-based vesting conditions applicable to such SilverBow PSU Award were achieved at the maximum level of performance), multiplied by (B) the Stock Election Consideration, in each case under (i) and (ii), less applicable withholdings for taxes; and
•each option to purchase shares of SilverBow Common Stock, granted under a SilverBow Incentive Plan (each, a “SilverBow Option”) outstanding immediately prior to the Initial Merger Effective Time that had an exercise price per share of SilverBow Common Stock subject to such SilverBow Option less than the Cash Election Consideration, whether vested or unvested, became fully vested cancelled and converted into a right to receive a cash payment equal to the product of (i) the number of shares of SilverBow Common Stock subject to the SilverBow Option as of immediately prior to the Initial Merger Effective Time multiplied by (ii) the difference between the Cash Election Consideration and the exercise price per share of SilverBow Common Stock subject to such SilverBow Option, less applicable withholdings for taxes. Each SilverBow Option that has an exercise price per share of SilverBow Common Stock subject to such SilverBow Option that equals or exceeds the Cash Election Consideration was cancelled for no consideration.
As of the election deadline of 5:00 p.m. Central Time on July 24, 2024, the final merger consideration election results are as follows:
•Holders of approximately 44.95% of the outstanding shares of SilverBow Common Stock, or 11,479,832 shares, elected to receive the Stock Election Consideration. Pursuant to the terms of the Merger Agreement,
this amount includes holders of SilverBow Common Stock who failed to properly make an election prior to the election deadline and are deemed to have elected to receive the Stock Election Consideration.
•Holders of approximately 30.40% of the outstanding shares of SilverBow Common Stock, or 7,764,646 shares, elected to receive the Mixed Election Consideration.
•Holders of approximately 24.65% of the outstanding shares of SilverBow Common Stock, or 6,295,137 shares, elected to receive the Cash Election Consideration.
As a result of these elections, $358,091,936.26 in cash was paid to holders of SilverBow Common Stock as part of the Merger Consideration (excluding the cash consideration payable in connection with the cancellation and conversion of the SilverBow RSU Awards, SilverBow PSU Awards and SilverBow Options), which is below the maximum total cash consideration payable for SilverBow Common Stock of $400,000,000 as set forth in the Merger Agreement.
The issuance of shares of Crescent Class A Common Stock in connection with the Mergers was registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to Crescent’s registration statement on Form S-4 (File No. 333- 280162), declared effective by the U.S. Securities and Exchange Commission (the “SEC”) on June 27, 2024.
The foregoing description of the Mergers and the Merger Agreement and the transactions contemplated thereby is not complete and is subject to and qualified in its entirety by reference to the Merger Agreement, a copy of which is included as Exhibit 2.1 to this Current Report on Form 8-K and incorporated by reference into this Item 2.01.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information provided under Item 1.01 in this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On July 29, 2024, the board of directors of Crescent (the “Board”) (i) approved, in accordance with the terms of the Merger Agreement, increasing the number of directors constituting its Board to eleven, effective immediately prior to, and conditioned on, the Initial Merger Effective Time and (ii) appointed Marcus C. Rowland and Michael Duginski to the Board, effective concurrently with the increase in the size of the Board and conditioned upon the Initial Merger Effective Time to fill the newly created vacancies on the Board. Messrs. Rowland and Duginski previously served on the board of directors of SilverBow. Biographical information for Messrs. Rowland and Duginski is set forth in SilverBow’s Definitive Proxy Statement on Schedule 14A filed with the SEC on May 21, 2024, which information is incorporated by reference into this Item 5.02.
Each of Messrs. Rowland and Duginski will be entitled to receive director compensation under Crescent’s current director compensation program, described in Item 11 of Crescent’s Annual Report on Form 10-K for the year ended December 31, 2023, filed by the Company on March 4, 2024, which disclosure is incorporated by reference into this Item 5.02.
Neither of Messrs. Rowland or Duginski are related to any officer or director of Crescent. There are no transactions or relationships between such director and Crescent that would be required to be reported under Item 404(a) of Regulation S-K.
On the Closing Date and in connection with the consummation of the Mergers, Crescent entered into its standard indemnification agreements (together, the “Indemnification Agreements”) with each of Messrs. Rowland and Duginski. The Indemnification Agreements require Crescent to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to Crescent, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified.
The foregoing description of the Indemnification Agreements is not complete and is qualified in its entirety by reference to the full text of the Indemnification Agreements, copies of which are included as Exhibits 10.2 and 10.3, respectively, to this Current Report on Form 8-K and incorporated by reference into this Item 5.02.
Item 5.07 Submission of Matters to a Vote of Security Holders.
At Crescent’s Special Meeting of Stockholders held on July 29, 2024 (the “Special Meeting”) in connection with the Mergers, Crescent’s stockholders voted on the following proposals as set forth below. Each proposal voted on at the Special Meeting is described in detail in the joint proxy statement/prospectus included in the registration statement filed with the SEC on June 28, 2024 and mailed to Crescent stockholders on or about June 28, 2024.
As of the close of business on June 28, 2024, the record date for the Special Meeting, there were approximately 111,516,601 shares of Class A common stock, par value $0.0001 per share, of Crescent (the “Crescent Class A Common Stock”) and 65,948,124 shares of Crescent Class B common stock, par value $0.0001 per share, of Crescent (the “Crescent Class B Common Stock” and, together with the Crescent Class A Common Stock, the “Crescent Common Stock”) issued and entitled to vote at the Special Meeting. Each share of Crescent Common Stock was entitled to one vote with respect to each proposal. A total of 156,078,978 shares of Crescent Common Stock, representing approximately 87.94% of the outstanding shares of Crescent Common Stock entitled to vote at the Special Meeting, were present virtually or by proxy, constituting a quorum.
At the Special Meeting, each of the proposals set forth at the Special Meeting was approved by the affirmative vote of the number of shares of Company Common Stock required to approve such proposals.
The final voting results for each of the proposals voted on at the Special Meeting are set forth below:
1.Crescent Issuance Proposal. To approve the issuance of shares of Crescent Class A Common Stock in connection with the Mergers as contemplated by the Merger Agreement.
| | | | | | | | | | | | | | |
| For | | Against | | Abstain |
| 155,986,010 | | 42,691 | | 50,277 |
2.Crescent Adjournment Proposal. To approve one or more adjournments of the Special Meeting to a later date or dates, if necessary or appropriate, to solicit additional proxies in the event there are not sufficient votes at the time of the Special Meeting to approve the Crescent Issuance Proposal. This proposal was rendered moot as the Crescent Issuance Proposal was approved by the requisite number of shares voted on at the Special Meeting.
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| For | | Against | | Abstain |
| 150,395,802 | | 5,639,503 | | 43,673 |
Item 7.01 Regulation FD Disclosure.
On July 29, 2024, Crescent issued a press release announcing the results of the Special Meeting. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated by reference into this Item 7.01.
On July 30, 2024, Crescent issued a press release announcing the completion of the Mergers and other matters. A copy of the press release is furnished as Exhibit 99.2 to this Current Report on Form 8-K and is incorporated by reference into this Item 7.01.
The information in this Item 7.01, including Exhibits 99.1 and 99.2 to this Current Report on Form 8-K, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 (“Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
Item 9.01 Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired.
The financial statements required by this Item, with respect to the acquisition described in Item 2.01 herein, will be filed as soon as practicable, and in any event not later than 71 days after the date on which this Current Report on Form 8-K was required to be filed pursuant to Item 2.01.
(b) Pro Forma Financial Information.
The pro forma financial information required by this Item, with respect to the acquisition described in Item 2.01 herein, will be filed as soon as practicable, and in any event not later than 71 days after the date on which this Current Report on Form 8-K was required to be filed pursuant to Item 2.01.
(d) Exhibits.
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| Exhibit No. | | Description |
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| 2.1# | | |
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| 10.1 | | Tenth Amendment to Credit Agreement, dated July 30, 2024, by and among Crescent Energy Finance LLC, certain subsidiaries of Crescent Energy Finance LLC, as guarantors, Wells Fargo Bank, National Association, as administrative agent, collateral agent and a letter of credit issuer, and the other lenders and letter of credit issuers party thereto. |
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| 10.2 | | |
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| 10.3 | | |
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| 99.1 | | |
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| 99.2 | | |
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| 104 | | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
____________
# Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The registrant hereby undertakes to furnish supplemental copies of any of the omitted schedules upon request by the SEC.
SIGNATURE
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.
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| CRESCENT ENERGY COMPANY |
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| |
| By: | /s/ Brandi Kendall |
| Name: | Brandi Kendall |
| Title: | Chief Financial Officer |
Date: August 2, 2024
Exhibit 10.1
Execution Version
TENTH AMENDMENT TO CREDIT AGREEMENT
This TENTH AMENDMENT TO CREDIT AGREEMENT (this “Tenth Amendment”) dated as of July 30, 2024, is among CRESCENT ENERGY FINANCE LLC (f/k/a Independence Energy Finance LLC), a Delaware limited liability company (the “Borrower”); each of the undersigned Guarantors (collectively with the Borrower, the “Obligors”); WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, together with its successors, the “Administrative Agent”), Collateral Agent and a Letter of Credit Issuer; and the Lenders signatory hereto.
RECITALS
A. The Borrower, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuers and the Lenders are parties to that certain Credit Agreement dated as of May 6, 2021 (as amended by the First Amendment to Credit Agreement, dated as of September 24, 2021, the Second Amendment to Credit Agreement, dated as of March 30, 2022, the Third Amendment to Credit Agreement, dated as of March 30, 2022, the Fourth Amendment to Credit Agreement, dated as of September 23, 2022, the Fifth Amendment to Credit Agreement, dated as of July 3, 2023, the Sixth Amendment to Credit Agreement, dated as of December 13, 2023, the Seventh Amendment to Credit Agreement, dated as of April 10, 2024, the Eighth Amendment to Credit Agreement, dated as of May 24, 2024, the Ninth Amendment to Credit Agreement, dated as of June 14, 2024, and as further amended, modified, supplemented or restated from time to time prior to the date hereof, the “Credit Agreement”), pursuant to which the Lenders have made certain credit available to and on behalf of the Borrower.
B. The Borrower, the Administrative Agent and the Lenders party hereto have agreed to amend certain provisions of the Credit Agreement as more fully set forth herein.
C. 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 Tenth Amendment, shall have the meaning ascribed such term in the Credit Agreement. Unless otherwise indicated, all section, exhibit and schedule references in this Tenth Amendment refer to sections, exhibits and schedules of the Credit Agreement. In addition, as used in this Tenth Amendment, each of the following terms shall have the meaning set forth below:
“Acquisition Reserve Report” means a Reserve Report prepared by Ryder Scott Company Petroleum Consultants, L.P. (or other independent petroleum engineer reasonably acceptable to the Administrative Agent) evaluating the Proved Reserves of SilverBow and its Subsidiaries as of May 1, 2024 (or such later date as may be reasonably agreed by the Borrower and Administrative Agent).
“Existing Lender” means each Lender party to the Credit Agreement
immediately prior to the Tenth Amendment Effective Date.
“Existing SilverBow Indebtedness” means indebtedness of SilverBow outstanding under (a) that certain First Amended and Restated Senior Secured Revolving Credit Agreement, dated as of April 19, 2017, by and among SilverBow, SilverBow Resources Operating, LLC, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders party thereto, as amended, supplemented or otherwise modified from time to time; and (b) that certain Note Purchase Agreement, dated as of December 15, 2017, by and among SilverBow, the purchasers party thereto and U.S. Bank Trust Company, National Association, as agent and collateral agent, as amended, supplemented or otherwise modified from time to time.
“SilverBow” means SilverBow Resources, Inc., a Delaware corporation.
“SilverBow Acquisition” means the acquisition by the Borrower or any of the Restricted Subsidiaries of, directly or indirectly, 100% of the issued and outstanding Stock of SilverBow pursuant to the terms of the SilverBow Acquisition Agreement.
“SilverBow Acquisition Agreement” means that certain Agreement and Plan of Merger, dated as of May 15, 2024, by and among Crescent Energy Company, Artemis Acquisition Holdings Inc., Artemis Merger Sub Inc., SilverBow Merger Sub and SilverBow, together with all exhibits, annexes, schedules and disclosure letters thereto, as modified, amended, supplemented or waived.
“SilverBow Merger Sub” means Artemis Merger Sub II LLC, a Delaware limited liability company.
“Transactions” means collectively (1) the execution and delivery of the Tenth Amendment (including, without limitation, the effectiveness of the Elected Commitment Amount Increase and the Borrowing Base increase on the Tenth Amendment Effective Date pursuant thereto), (2) the consummation of the SilverBow Acquisition, (3) the issuance of any Letters of Credit and Borrowings of Loans on the Tenth Amendment Effective Date, (4) the use of the proceeds from such Borrowings for the refinancing of the Existing SilverBow Indebtedness and the consummation of the SilverBow Acquisition, and (5) the payment of fees, premiums and expenses incurred in connection with or related to any of the above.
Section 2. Increase of Elected Commitments.
2.1 Increase. The Borrower has informed the Lenders that it desires to increase the Aggregate Elected Commitment Amount on the Tenth Amendment Effective Date (as defined below) by an aggregate amount equal to $700,000,000, such that the resulting Aggregate Elected Commitment Amount shall be equal to $2,000,000,000 (the “Elected Commitment Amount Increase”, and the Loans made thereunder, collectively, the “Incremental Loans”). Subject solely to the conditions precedent contained in Section 4 hereof, the Borrower, the Administrative Agent,
each Existing Lender listed as an Increasing Lender on the signature pages hereto (each, an “Increasing Lender”) and each of Canadian Imperial Bank of Commerce, New York Branch and Regions Bank (each, an “Additional Lender” and the Additional Lenders and the Increasing Lenders, collectively, the “Incremental Lenders”) hereby agree that:
(a) each Additional Lender shall provide its Elected Commitment Amount and each Increasing Lender shall increase its Elected Commitment Amount, in each case, on the Tenth Amendment Effective Date such that, each Lender’s Elected Commitment Amount on the Tenth Amendment Effective Date (as reallocated pursuant to the below-defined Assignment and Reallocation) shall be the Elected Commitment Amount specified for such Lender on Schedule 1.1(a) attached to this Tenth Amendment (the “Amended Schedule 1.1(a)”);
(b) the Elected Commitment Amount Increase (and the related Commitments) provided for herein shall be on the same terms as the existing Revolving Commitments and any Incremental Loans made pursuant thereto shall be part of the same Class as any outstanding Revolving Loans including, without limitation, with respect to the Maturity Date and Applicable Margin applicable thereto; and
(c) this Tenth Amendment shall constitute an Incremental Agreement with respect to the increase of the Elected Commitment Amounts set forth in this Section 2.1.
2.2 Assignment and Reallocation of Commitments and Loans. Effective as of the Tenth Amendment Effective Date, immediately after giving effect to Section 2.1 above, each Existing Lender has, in consultation with the Borrower, agreed to, and, for an agreed consideration, does hereby partially reallocate its respective Maximum Credit Amount, Commitment, Loans and L/C Participations as set forth herein, including to allow each Additional Lender to become a party to the Credit Agreement as a Lender by acquiring an interest in the total Commitments and the Loans (collectively, the “Assignment and Reallocation”). On the Tenth Amendment Effective Date, and after giving effect to the Assignment and Reallocation, (a) the Maximum Credit Amount, Revolving Commitment Percentage and Elected Commitment Amount of each Lender (including each Additional Lender) shall be as set forth on Amended Schedule 1.1(a), which amends and restates Schedule 1.1(a) to the Credit Agreement in its entirety and (b) each Additional Lender shall become a party to the Credit Agreement, as amended by this Tenth Amendment, as a “Lender” and have all of the rights and obligations of a Lender under the Credit Agreement, as amended by this Tenth Amendment, and the other Credit Documents. Each of the Administrative Agent, each Existing Lender, each Letter of Credit Issuer and the Borrower hereby consents and agrees to the Assignment and Reallocation. With respect to the Assignment and Reallocation, each Existing Lender shall be deemed to have irrevocably sold and assigned its Commitment, Loans and L/C Participations, and each Incremental Lender shall be deemed to have irrevocably purchased and accepted its Commitment, Loans and L/C Participations allocated to it from each Existing Lender pursuant to the terms and conditions of the Assignment and Acceptance attached as Exhibit A to the Credit Agreement (the “Assignment Agreement”), including Annex 1 to the Assignment Agreement (the “Standard Terms and Conditions”) and the Credit Agreement, as if each Existing Lender and each Incremental Lender had executed such Assignment Agreement with respect to the Assignment and Reallocation, pursuant to which (i) each Incremental Lender shall be an “Assignee”, (ii) each Existing Lender shall be an “Assignor” and (iii) the term “Effective Date” shall be the Tenth Amendment Effective Date as defined herein. Such Assignment and
Reallocation shall be without recourse to each Existing Lender, in its capacity as “Assignor” and, except as expressly provided in the Assignment Agreement, without representation or warranty by such Existing Lender. On the Tenth Amendment Effective Date, (i) the Administrative Agent shall take the actions specified in Section 13.6(b)(v), including recording the Assignment and Reallocation described herein in the Register, and (ii) the Assignment and Reallocation shall be effective for all purposes of the Credit Agreement. Notwithstanding Section 13.6(b)(ii)(C), no Lender shall be required to pay a processing and recordation fee of $3,500 to the Administrative Agent in connection with the Assignment and Reallocation. The Standard Terms and Conditions are hereby agreed to and incorporated herein by reference and made a part of the terms of the Assignment and Reallocation pursuant to this Section 2.2 as if set forth herein in full.
Section 3. Amendments to the Credit Agreement on the Tenth Amendment Effective Date. Subject solely to the conditions precedent contained in Section 4 hereof, the Credit Agreement shall be amended effective as of the Tenth Amendment Effective Date in the manner provided in this Section 3.
3.1 Amendment to Cover Page. The cover page to the Credit Agreement is hereby amended and restated to read as set forth on Exhibit B to this Tenth Amendment.
3.2 Amendments to Section 1.1.
(a) Each of the following definitions is hereby amended and restated in its entirety to read as follows:
“Aggregate Elected Commitment Amount” means the sum of the Elected Commitment Amounts of all of the Lenders. The Aggregate Elected Commitment Amount as of the Tenth Amendment Effective Date is $2,000,000,000.
“Aggregate Maximum Credit Amount” at any time shall equal the sum of the Maximum Credit Amounts, as the same may be increased, reduced or terminated from time to time in connection with an optional increase of the Aggregate Maximum Credit Amount pursuant to Section 2.16(a) or a termination or reduction of the Aggregate Maximum Credit Amount pursuant to Section 4.2. The Aggregate Maximum Credit Amount as of the Tenth Amendment Effective Date is $3,000,000,000.
“Agreement” shall mean this Credit Agreement, as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the Ninth Amendment and the Tenth Amendment, as the same may from time to time be amended, restated, amended and restated, supplemented or otherwise modified.
“Elected Commitment Amount” shall mean, (a) with respect to each Revolving Lender as of the Tenth Amendment Effective Date, the amount set forth opposite such Revolving Lender’s name on Schedule 1.1(a) as such Revolving Lender’s “Elected Commitment Amount” and (b) in the case of any Person that
becomes a Revolving Lender after the Tenth Amendment Effective Date, the amount specified as such Revolving Lender’s “Elected Commitment Amount” in the Assignment and Acceptance or in the Incremental Agreement pursuant to which such Revolving Lender assumed a portion of the Total Revolving Commitment, in each case as the same may be changed from time to time pursuant to the terms of this Agreement.
“Lead Arranger” shall mean each of Wells Fargo Securities, LLC, BofA Securities, Inc., Canadian Imperial Bank of Commerce, New York Branch, Capital One, National Association, Fifth Third Bank, National Association, KeyBanc Capital Markets Inc., JPMorgan Chase Bank, N.A., Mizuho Bank, Ltd., Regions Capital Markets, a division of Regions Bank, RBC Capital Markets and Truist Securities, Inc., each in its capacity as joint lead arranger and joint bookrunner hereunder.
“Revolving Lenders” shall mean the Persons listed as “Revolving Lenders” on Schedule 1.1(a) as of the Tenth Amendment Effective Date, and any other Person that shall have become a party hereto with a Revolving Commitment and/or any Revolving Loan pursuant to Section 2.16 or pursuant to an Assignment and Acceptance, other than any such Person that ceases to be a party hereto with a Revolving Commitment and/or any Revolving Loan pursuant to an Assignment and Acceptance.
(b) Each of the following definitions is hereby added where alphabetically appropriate to read as follows:
“Tenth Amendment” shall mean that certain Tenth Amendment to Credit Agreement, dated as of July 30, 2024, among the Borrower, the Guarantors party thereto, the Administrative Agent and the Lenders party thereto.
“Tenth Amendment Effective Date” has the meaning assigned to such term in the Tenth Amendment.
3.3 Amendment to Section 2.14(a). Section 2.14(a) is hereby amended and restated in its entirety to read as follows:
(a) Tenth Amendment Borrowing Base. For the period from and including the Tenth Amendment Effective Date to but excluding the first Redetermination Date to occur thereafter, the amount of the Borrowing Base shall be equal to $2,600,000,000. Notwithstanding the foregoing, the Borrowing Base may be subject to adjustments from time to time pursuant to the Borrowing Base Adjustment Provisions.
3.4 New Section 9.20. A new Section 9.20 is hereby added immediately following Section 9.19 to read in its entirety as follows:
Section 9.20 Post-Tenth Amendment Collateral Deliveries.
(a) On or before the date that is 90 days after the Tenth Amendment Effective Date (or such longer period, as may be agreed by the Administrative Agent in its reasonable discretion and the Borrower acting reasonably without any requirement for Lender consent), the Borrower will deliver, or will cause to be delivered, to the Collateral Agent the items described on Schedule 9.20 hereto.
(b) All representations and warranties and covenants contained in this Agreement and the other Credit Documents will be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described on Schedule 9.20 within the time periods specified in Section 9.20, rather than as elsewhere provided in any of the Credit Documents).
3.5 Amendment to Schedule 1.1(a). Schedule 1.1(a) is hereby amended and restated in its entirety to read as set forth on the Amended Schedule 1.1(a).
3.6 New Schedule 9.20. New Schedule 9.20 is hereby added immediately following Schedule 9.9 to read in its entirety as set forth on Schedule 9.20 attached hereto.
Section 4. Conditions Precedent to Tenth Amendment Effective Date. This Tenth Amendment (including, without limitation, the obligation of each Lender to fund the Incremental Loans on the Tenth Amendment Effective Date) shall become effective on the date (such date, the “Tenth Amendment Effective Date”) when each of the following conditions is satisfied (or waived in accordance with Section 13.1):
4.1 Amendment. The Administrative Agent shall have received from the Lenders, each Letter of Credit Issuer and each Obligor counterparts (in such number as may be reasonably requested by the Administrative Agent) of this Tenth Amendment signed on behalf of such Persons.
4.2 Fees and Expenses. All fees required to be paid on the Tenth Amendment Date pursuant to that certain fee letter, dated as of May 15, 2024, by and among the Borrower, Wells Fargo Bank, National Association and Wells Fargo Securities, LLC or pursuant to any other fee letter or similar written agreement between the Borrower and a Lender or Lead Arranger (in each case, as the same may be amended, restated, supplemented or otherwise modified prior to the date hereof) and reasonable out-of-pocket expenses required to be paid on the Tenth Amendment Effective Date, to the extent invoiced at least three Business Days prior to the Closing Date (except as otherwise reasonably agreed by the Borrower), shall, upon the Borrowing of Incremental Loans on the Tenth Amendment Effective Date shall have been, or will be substantially simultaneously, paid (which amounts may, at the Borrower’s option, be offset against the proceeds of such Borrowings).
4.3 SilverBow Acquisition Closing. The SilverBow Acquisition shall have been prior to or, substantially concurrently with the initial Borrowing of Incremental Loans on the Tenth Amendment Effective Date, consummated in all material respects in accordance with the terms of the SilverBow Acquisition Agreement, without giving effect to any modifications, amendments or express waivers or consents by the Borrower (or its Affiliates) thereto that are
materially adverse to the Lenders in their capacities as such without the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) (it being understood and agreed that (a) any change to the definition of Company Material Adverse Effect (as defined in the SilverBow Acquisition Agreement as in effect on May 15, 2024) shall be deemed materially adverse to the Lenders, (b) any change to (i) Section 4.1(b)(ix) of the SilverBow Acquisition Agreement as in effect on May 15, 2024 that would increase the aggregate fair market value and consideration of sales, leases, exchanges or dispositions of assets permitted to be made by SilverBow and its Subsidiaries to more than $10,000,000, (ii) Section 4.1(b)(xii) of the SilverBow Acquisition Agreement as in effect on May 15, 2024 that would result in an increase in the aggregate amount of Indebtedness (as defined in the SilverBow Acquisition Agreement as in effect on May 15, 2024) permitted to be incurred under the Company Credit Agreement (as defined in the SilverBow Acquisition Agreement as in effect on May 15, 2024) in the ordinary course of business to an amount greater than $40,000,000, and (iii) Section 7.1(b)(ii) of the SilverBow Acquisition Agreement as in effect on May 15, 2024 that would result in the application of the automatic extension set forth in the proviso thereto for any reason other than the condition set forth in Section 6.1(d) thereof not having been satisfied prior to the Termination Date (as defined in the SilverBow Acquisition Agreement as in effect on May 15, 2024), in the case of each of the foregoing clauses (i), (ii) and (iii), shall be deemed materially adverse to the Lenders and (c) any modification, amendment or express waiver or consent by the Borrower (or its Affiliates) that results in either an increase of 10% or less in the purchase price or a reduction in the purchase price shall be deemed to not be materially adverse to the Lenders; provided that an increase in the purchase price in excess of the foregoing percentage shall not be deemed to be materially adverse to the Lenders to the extent that such excess is funded with cash equity contributions to or on behalf of the Borrower or any additional equity issued to the equity holders of SilverBow (with all contributions to the Borrower or any additional equity issued to the equity holders of SilverBow to be in the form of common equity or “qualified preferred” equity reasonably acceptable to the Administrative Agent); provided, further, that the Administrative Agent shall be deemed to have consented to such amendment, waiver or consent unless they shall have objected thereto within two (2) Business Days (as defined in the SilverBow Acquisition Agreement) after written notice of such proposed amendment, waiver or consent is delivered to the Administrative Agent.
4.4 Legal Opinion. The Administrative Agent shall have received the executed customary legal opinion of Vinson & Elkins LLP, New York counsel to the Borrower, addressed to the Administrative Agent and the Lenders.
4.5 Good Standing Certificates. The Administrative Agent shall have received certificates of the appropriate State agencies (or other customary evidence) with respect to the existence, qualification and good standing (as applicable in each such jurisdiction) of the Obligors in each jurisdiction where such Obligors are organized.
4.6 Notice of Borrowing. The Administrative Agent shall have received a Notice of Borrowing (whether in writing or by telephone) meeting the requirements of Section 2.3(a) (provided that, notwithstanding the requirements of such Section 2.3(a), such Notice of Borrowing may be delivered on less than three Business Days’ notice).
4.7 Solvency Certificate. The Administrative Agent shall have received a certificate from an Authorized Officer of the Borrower substantially in the form of Exhibit A
attached hereto, dated as of the Tenth Amendment Effective Date, after giving effect to the Transactions on the Tenth Amendment Effective Date.
4.8 Representations and Warranties.
(a) The representations and warranties made by SilverBow with respect to SilverBow, its Subsidiaries and their respective Subsidiaries and their respective businesses in the SilverBow Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower (or one of its Affiliates) has the right (taking into account any applicable cure provisions) to terminate its obligations under the SilverBow Acquisition Agreement pursuant to Section 7.1(c)(i) of the SilverBow Acquisition Agreement (or otherwise decline to consummate the SilverBow Acquisition pursuant to the terms of the SilverBow Acquisition Agreement without any liability) as a result of a breach of any such representations and warranties in the SilverBow Acquisition Agreement, shall be true and correct in all material respects as of the Tenth Amendment Effective Date (except for any such representation or warranty that relates to a specific date, in which case, such representation or warranty shall be true and correct in all material respects as of such earlier date); provided that any representation or warranty that is qualified as to materiality shall be true and correct in all respects (after giving effect to such qualification therein).
(b) Each of the representations and warranties made by the Borrower set forth in (i) Sections 8.1(a) (solely with respect to the Borrower), 8.2 and 8.3(c) (in the case of Section 8.3(c), solely with respect to the certificate of incorporation, by-laws or other organizational documents of the Borrower (after giving effect to the SilverBow Acquisition)) of the Credit Agreement (in the case of each of Sections 8.2 and 8.3(c) of the Credit Agreement, solely to the extent such representations and warranties are related to the entry into and performance of this Tenth Amendment, the incurrence of the Incremental Loans and the provision of the Guarantees, in each case, with respect to the Elected Commitment Amount Increase), (ii) Sections 8.5 and 8.7 of the Credit Agreement, (iii) subject to Section 9.20 of the Credit Agreement (as amended by this Tenth Amendment), Sections 3.2(a) and 3.2(b) of the Security Agreement and (iv) subject to Section 9.20 of the Credit Agreement (as amended by this Tenth Amendment), Sections 5(d) and 5(e) of the Pledge Agreement shall be true and correct in all material respects as of the Tenth Amendment Effective Date (except for any such representation or warranty that relates to a specific date in which case, such representation or warranty shall be true and correct in all material respects as of such earlier date); provided that any representation or warranty that is qualified as to materiality shall be true and correct in all respects (after giving effect to such qualification therein).
4.9 Debt Payoff. The Administrative Agent shall have received, or concurrently with the Tenth Amendment Effective Date shall receive, evidence that all debt for borrowed money of SilverBow and its Subsidiaries (excluding, for the avoidance of doubt, all indebtedness of the Borrower and its Subsidiaries (including indebtedness of SilverBow and its Subsidiaries, other than the Existing SilverBow Indebtedness) permitted under the Credit Agreement) shall have been paid in full, all commitments to lend terminated and all liens securing such debt for borrowed money encumbering any of their assets shall have been released together with duly executed recordable releases and terminations with respect to any and all such liens.
4.10 KYC. The Administrative Agent and Lenders shall have received, at least three (3) Business Days (as defined in the SilverBow Acquisition Agreement) prior to the Tenth
Amendment Effective Date, to the extent requested in writing at least ten (10) Business Days prior to the Tenth Amendment Effective Date, all documentation and other information about the Borrower and the Guarantors that is reasonably requested by the Administrative Agent and the Lenders party hereto or required by regulatory authorities in order for the Administrative Agent or any Lender party hereto to comply with requirements of any applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and regulations pertaining to beneficial ownership of legal entity customers.
4.11 Reserve Report. The Administrative Agent shall have received the Acquisition Reserve Report.
4.12 Operating Statements and Production Reports. The Borrower shall have delivered to the Administrative Agent lease operating statements and production reports with respect to the Oil and Gas Properties evaluated in the Acquisition Reserve Report for the most recently completed fiscal year ended at least 90 days before the Tenth Amendment Effective Date and for each interim fiscal quarter ended at least 45 days before the Tenth Amendment Effective Date (including for the 12-month period ending on the last day of the most recently completed four-fiscal quarter period for which lease operating statements and production reports are required to be delivered).
4.13 Financial Statements and Projections. The Administrative Agent shall have received:
(a) with respect to SilverBow and its Subsidiaries, (i) audited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows for the three most recently completed fiscal years ended at least 90 days prior to the Tenth Amendment Effective Date and (ii) unaudited consolidated balance sheets and related consolidated statements of operations and cash flows for each interim fiscal quarter ended since the last audited financial statements and at least 45 days prior to the Tenth Amendment Effective Date;
(b) a pro forma consolidated balance sheet of the Borrower for the fiscal year most recently ended for which audited financial statements are provided and for the four quarter period ending on the last day of the most recent interim fiscal quarter ending at least 45 days before the Tenth Amendment Effective Date, prepared after giving pro forma effect to each element of the Transactions, as if the Transactions had occurred on the last day of such four quarter period; and
(c) financial projections of the Borrower and its Subsidiaries (including SilverBow and its Subsidiaries), after giving effect to the Transactions, on a quarterly basis for the fiscal year ended 2024 and annually through the fiscal year ended 2028.
4.14 Hedges. The Credit Parties shall have (a) assumed by novation or otherwise those certain commodity Hedge Agreements reflected in those certain confirmations of SilverBow and its Subsidiaries set forth on Schedule 2 to this Tenth Amendment (excluding any commodity Hedge Agreements that the Borrower and the Administrative Agent determine in good faith have a de minimis value on or about the Tenth Amendment Effective Date) (collectively, the “Specified
Hedge Agreements”) and (b) with respect to any Specified Hedge Agreement that has not been assumed by novation or otherwise pursuant to the foregoing clause (a), obtained a replacement commodity Hedge Agreement (excluding, for the avoidance of doubt, commodity Hedge Agreements hedging production from the Proved Reserves of the Credit Parties prior to giving effect to the SilverBow Acquisition) on terms that are substantially similar to such Specified Hedge Agreement.
4.15 No Event of Default. No Event of Default shall have occurred and be continuing, in each case, as of May 15, 2024.
Notwithstanding anything to the contrary in this Tenth Amendment, the effectiveness of this Tenth Amendment (including, without limitation, the obligation of each Lender to fund the Incremental Loans on the Tenth Amendment Effective Date) are subject solely to the applicable conditions expressly set forth in this Section 4 (collectively, the “Specified Conditions”), and upon satisfaction (or waiver in accordance with Section 13.1) of the Specified Conditions, the effectiveness of this Tenth Amendment and the funding of the applicable Incremental Loans on the Tenth Amendment Effective Date shall occur, it being understood that there are no conditions (implied or otherwise) to the effectiveness of this Tenth Amendment or the funding of the Incremental Loans on the Tenth Amendment Effective Date hereunder or under any other Credit Document, including, without limitation, compliance with the terms of this Tenth Amendment or any other Credit Agreement, other than the Specified Conditions. The Administrative Agent is hereby authorized and directed to declare the Tenth Amendment Effective Date to have occurred when it has received documents confirming or certifying, to the satisfaction of the Administrative Agent, compliance with the conditions set forth in this Section 4 or the waiver of such conditions as permitted in Section 13.1 of the Credit Agreement. Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes. For purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Tenth Amendment shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
Section 5. Miscellaneous.
5.1 Confirmation. The provisions of the Credit Agreement, as amended by this Tenth Amendment, shall remain in full force and effect following the Tenth Amendment Effective Date.
5.2 Ratification and Affirmation. Each of the Borrower and the Guarantors hereby: (a) acknowledges the terms of this Tenth Amendment; (b) ratifies and affirms its obligations under, and acknowledges its continued liability under, each Credit Document to which it is a party and agrees that each such Credit Document remains in full force and effect as expressly amended hereby; and (c) agrees that from and after the date hereof, each reference to the Credit Agreement in the other Credit Documents shall be deemed to be a reference to the Credit Agreement, as amended by this Tenth Amendment.
5.3 Counterparts. This Tenth Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. Each party hereto agrees that any Electronic Signature or execution in the form of an Electronic Record shall be valid and binding on itself and each of the other parties hereto to the same extent as a manual, original signature.
5.4 No Oral Agreement. This Tenth Amendment and the other Credit Documents represent the agreement of the Borrower, the Guarantors, the Collateral Agent, the Administrative Agent and the Lenders party hereto with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Borrower, the Guarantors, any Agent nor any Lender party hereto relative to the subject matter hereof not expressly set forth or referred to herein or in the other Credit Documents.
5.5 GOVERNING LAW. THIS TENTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
5.6 Severability. Any provision of this Tenth Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
5.7 Successors and Assigns. This Tenth Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
5.8 Credit Document. This Tenth Amendment is a “Credit Document” as defined and described in the Credit Agreement, and all of the terms and provisions of the Credit Agreement relating to Credit Documents shall apply hereto.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Tenth Amendment to be duly executed.
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| BORROWER: | CRESCENT ENERGY FINANCE LLC |
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| By: | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Vice President |
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| GUARANTORS: | | | |
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| INDEPENDENCE MINERALS HOLDINGS LLC |
| INDEPENDENCE MINERALS GP LLC |
| IE BUFFALO MINERALS LLC |
| CMP LEGACY CO. LLC |
| JAVELIN UINTA, LLC |
| IE BUFFALO HOLDINGS LLC |
| VINE ROYALTY GP LLC |
| INDEPENDENCE UPSTREAM HOLDINGS GP LLC |
| COLT ADMIRAL A HOLDING GP LLC |
| RENEE HOLDING GP LLC |
| CRESCENT CONVENTIONAL LLC |
| CMP VENTURE CO. LLC |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Vice President |
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| INDEPENDENCE UPSTREAM HOLDINGS L.P. |
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| By: Independence Upstream Holdings GP LLC, its general partner |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Vice President |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| TITAN ENERGY HOLDINGS L.P. |
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| By: Colt Admiral A Holding GP LLC, its general partner |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Vice President |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| COLT ADMIRAL A HOLDING L.P. |
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| By: Colt Admiral A Holding GP LLC, its general partner |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Vice President |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| BRIDGE ENERGY LLC |
| BRIDGE ENERGY HOLDINGS LLC |
| JAVELIN OIL & GAS, LLC |
| SPRINGFIELD GS HOLDINGS LLC |
| JAVELIN EFA GP LLC |
| JAVELIN PALO VERDE GP LLC |
| RENEE C-I HOLDING AGENT CORP. |
| RENEE ACQUISITION LLC |
| NEWARK ACQUISITION GP I LLC |
| NEWARK HOLDING AGENT CORP. |
| JAVELIN MARKETING, LLC |
| JAVELIN EF GP LLC |
| EIGF MINERALS GP LLC |
| CONTANGO RESOURCES, LLC |
| CONTANGO ALTA INVESTMENTS, LLC |
| CONTANGO MIDSTREAM COMPANY, LLC |
| CONTARO COMPANY, LLC |
| JAVELIN VENTURECO LLC |
| FOURPASS ENERGY LLC |
| CONTANGO CRESCENT RENEE LLC |
| MADDEN ASSETCO LLC |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Authorized Person |
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| JAVELIN EFA HOLDINGS LLC |
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| By: JAVELIN OIL & GAS, LLC, its sole member |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Authorized Person |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| JAVELIN EF L.P. |
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| By: Javelin EF GP LLC, its general partner |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Authorized Person |
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| JAVELIN PALO VERDE LP |
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| By: Javelin Palo Verde GP LLC, its general partner |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Authorized Person |
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| JAVELIN EF AGGREGATOR L.P |
| NEWARK C-I HOLDING L.P. |
| JAVELIN PALO VERDE AGGREGATOR L.P. |
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| By: Javelin EFA GP LLC, its general partner |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Authorized Person |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| INDEPENDENCE UPSTREAM L.P. | |
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| By: Independence Upstream GP LLC, its general partner By: Independence Upstream Holdings L.P., its sole member By: Independence Upstream Holdings GP LLC, its general partner |
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| By: | | /s/ Brandi Kendall | |
| Name: Brandi Kendall | |
| Title: Vice President | |
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| INDEPENDENCE UPSTREAM GP LLC | |
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| By: Independence Upstream Holdings L.P., its sole member By: Independence Upstream Holdings GP LLC, its general partner |
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| By: | | /s/ Brandi Kendall | |
| Name: Brandi Kendall | |
| Title: Vice President | |
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| CONTANGO CRESCENT VENTURECO I LLC |
| IE L MERGER SUB LLC | |
| CONTANGO AGENTCO ONSHORE, INC. |
| MADDEN AGENTCO INC. | |
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| By: | | /s/ Brandi Kendall | |
| Name: Brandi Kendall | |
| Title: Senior Vice President | |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| EIGF MINERALS L.P. |
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| By: EIGF Minerals GP LLC, its general partner |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Authorized Person |
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| INDEPENDENCE MINERALS L.P. |
| DMA ROYALTY INVESTMENTS L.P. |
| FALCON HOLDING L.P. |
| MINERAL ACQUISITION COMPANY I, L.P. |
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| By: Independence Minerals GP LLC, its general partner |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Vice President |
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| VINE ROYALTY L.P. |
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| By: Vine Royalty GP LLC, its general partner |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Vice President |
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| RENEE C-I HOLDING L.P. |
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| By: Renee Holding GP LLC, its general partner |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Vice President |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| NEWARK ACQUISITION I L.P. |
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| By: Newark Acquisition GP I LLC, its general partner |
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| By: | | /s/ Brandi Kendall |
| Name: Brandi Kendall |
| Title: Authorized Person |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| ADMINISTRATIVE AGENT, COLLATERAL AGENT, LETTER OF CREDIT ISSUER, LENDER AND INCREASING LENDER: | | WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Collateral Agent, a Letter of Credit Issuer, Lender and Increasing Lender |
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| | By: | /s/ Jay Buckman | |
| | Name: Jay Buckman | |
| | Title: Managing Director | |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| LETTER OF CREDIT ISSUER and LENDER: | | JPMORGAN CHASE BANK, N.A., as a Letter of Credit Issuer, Lender and Increasing Lender |
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| | By: | /s/ Dalton Harris | |
| | Name: Dalton Harris | |
| | Title: Authorized Officer | |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| LENDER: | | BANK OF AMERICA, N.A., as a Lender |
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| | By: | /s/ Ajay Prakash | |
| | Name: Ajay Prakash | |
| | Title: Director | |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| LENDER: | | ROYAL BANK OF CANADA, as a Lender and Increasing Lender |
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| | By: | /s/ Don J. McKinnerney | |
| | Name: Don J. McKinnerney | |
| | Title: Authorized Signatory | |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| LENDER: | | FIFTH THIRD BANK, NATIONAL ASSOCIATION, as a Lender and Increasing Lender |
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| | By: | /s/ Stefan Lemire | |
| | Name: Stefan Lemire | |
| | Title: Assistant Vice President | |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| LENDER: | | KEYBANK NATIONAL ASSOCIATION, as a Lender and Increasing Lender |
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| | By: | /s/ George McKean | |
| | Name: George McKean | |
| | Title: Senior Vice President | |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| LENDER: | | MIZUHO BANK, LTD., as a Lender and Increasing Lender |
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| | By: | /s/ Edward Sacks | |
| | Name: Edward Sacks | |
| | Title: Managing Director | |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| LENDER: | | TRUIST BANK, as a Lender and Increasing Lender |
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| | By: | /s/ Greg Krablin | |
| | Name: Greg Krablin | |
| | Title: Director | |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
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| LENDER: | | MORGAN STANLEY SENIOR FUNDING, INC., as a Lender |
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| | By: | /s/ Aaron McLean | |
| | Name: Aaron McLean | |
| | Title: Vice President | |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
| | | | | | | | | | | | | | |
| LENDER: | | CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender and Increasing Lender |
| | | | |
| | | | |
| | | | |
| | By: | /s/ Lyle Levy | |
| | Name: Lyle Levy | |
| | Title: Director | |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
| | | | | | | | | | | | | | |
| | | | |
| ADDITIONAL LENDER: | | CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, as a Lender |
| | | | |
| | | | |
| | | | |
| | By: | /s/ Scott W. Danvers | |
| | Name: Scott W. Danvers | |
| | Title: Authorized Signatory | |
| | | | |
| | | | |
| | By: | /s/ Donovan C. Broussard | |
| | Name: Donovan C. Broussard | |
| | Title: Authorized Signatory | |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
| | | | | | | | | | | | | | |
| | | | |
| | | | |
| ADDITIONAL LENDER: | | REGIONS BANK, as a Lender |
| | | | |
| | | | |
| | By: | /s/ Cody Chance | |
| | Name: Cody Chance | |
| | Title: Managing Director | |
[Signature Page to Crescent Energy Finance, LLC – Tenth Amendment to Credit Agreement]
Schedule 1.1(a)
Elected Commitment Amounts and Maximum Credit Amounts
(as of the Tenth Amendment Effective Date)
| | | | | | | | | | | |
Name of Revolving
Lender | Maximum Credit
Amount | Revolving
Commitment
Percentage | Elected
Commitment
Amount |
| Wells Fargo Bank, National Association | $402,000,000.00 | 13.400000000% | $268,000,000.00 |
| JPMorgan Chase Bank, N.A | $288,750,000.00 | 9.625000000% | $192,500,000.00 |
| Mizuho Bank, Ltd. | | | |
| $288,750,000.00 | 9.625000000% | $192,500,000.00 |
Capital One, National
Association | $262,500,000.00 | 8.750000000% | $175,000,000.00 |
| Canadian Imperial Bank of Commerce, New York Branch | $262,500,000.00 | 8.750000000% | $175,000,000.00 |
| Fifth Third Bank, National Association | | | |
| $262,500,000.00 | 8.750000000% | $175,000,000.00 |
| KeyBank National Association | $262,500,000.00 | 8.750000000% | $175,000,000.00 |
| Royal Bank of Canada | | | |
| $262,500,000.00 | 8.750000000% | $175,000,000.00 |
| Truist Bank | | | |
| $262,500,000.00 | 8.750000000% | $175,000,000.00 |
| Regions Bank | | | |
| $225,000,000.00 | 7.500000000% | $150,000,000.00 |
| Bank of America, N.A. | $205,500,000.00 | 6.850000000% | $137,000,000.00 |
| Morgan Stanley Senior Funding, Inc. | $15,000,000.00 | 0.500000000% | $10,000,000.00 |
| TOTAL | $3,000,000,000.00 | 100.000000000% | $2,000,000,000.00 |
|
Schedule 2
Commodity Hedging Agreements
1. ISDA 2002 Master Agreement, by and between Bank of America, N.A. and SilverBow, dated June 21, 2021, and the Schedule appended thereto.
a. Confirmation re Commodity Swap Transaction (Trade ID: 53911705) by and
between Bank of America, N.A. and SilverBow, dated May 18, 2022.
b. Confirmation re Commodity Option Transaction (Trade ID: 56432798) by and
between Bank of America, N.A. and SilverBow, dated October 24, 2022.
c. Confirmation re Commodity Option Transaction (Trade ID: 56432750) by and
between Bank of America, N.A. and SilverBow, dated October 24, 2022.
d. Confirmation re Commodity Swap Transaction (Trade ID: 58211027) by and
between Bank of America, N.A. and SilverBow, dated February 15, 2023.
e. Confirmation re Commodity Swap Transaction (Trade ID: 57863929) by and
between Bank of America, N.A. and SilverBow, dated February 3, 2023.
f. Confirmation re Commodity Option Transaction (Trade ID: 58850376, 58850386)
by and between Bank of America, N.A. and SilverBow, dated March 23, 2023.
g. Confirmation re Commodity Option Transaction (Trade ID: 59220918,59220928)
by and between Bank of America, N.A. and SilverBow, dated April 13, 2023.
h. Confirmation re Commodity Swap Transaction (Trade ID: 60689270) by and
between Bank of America, N.A. and SilverBow, dated July 23, 2023.
i. Confirmation re Commodity Swap Transaction (Trade ID: 60689267) by and
between Bank of America, N.A. and SilverBow, dated July 23, 2023.
j. Confirmation re Commodity Option Transaction (Trade ID: 60824484,60824480)
by and between Bank of America, N.A. and SilverBow, dated July 21, 2023.
k. Confirmation re Commodity Option Transaction (Trade ID: 60824590,60824594)
by and between Bank of America, N.A. and SilverBow, dated July 21, 2023.
l. Confirmation re Commodity Option Transaction (Trade ID: 60824469,60824471)
by and between Bank of America, N.A. and SilverBow, dated July 21, 2023.
m. Confirmation re Commodity Swap Transaction (Trade ID: 60952982) by and
between Bank of America, N.A. and SilverBow, dated July 31, 2023.
n. Confirmation re Commodity Swap Transaction (Trade ID: 61045457) by and
between Bank of America, N.A. and SilverBow, dated August 4, 2023.
o. Confirmation re Commodity Swap Transaction (Trade ID: 61151286) by and
between Bank of America, N.A. and SilverBow, dated August 11, 2023.
p. Confirmation re Commodity Swap Transaction (Trade ID: 61151304) by and
between Bank of America, N.A. and SilverBow, dated August 11, 2023.
q. Confirmation re Commodity Swap Transaction (Trade ID: 61151701) by and
between Bank of America, N.A. and SilverBow, dated August 11, 2023.
r. Confirmation re Commodity Swap Transaction (Trade ID: 61151389) by and
between Bank of America, N.A. and SilverBow, dated August 11, 2023.
s. Confirmation re Commodity Swap Transaction (Trade ID: 61151829) by and
between Bank of America, N.A. and SilverBow, dated August 11, 2023.
t. Confirmation re Commodity Swap Transaction (Trade ID: 61175353) by and
between Bank of America, N.A. and SilverBow, dated August 25, 2023.
u. Confirmation re Commodity Swap Transaction (Trade ID: 61443387) by and
between Bank of America, N.A. and SilverBow, dated September 1, 2023.
v. Confirmation re Commodity Swap Transaction (Trade ID: 61443265) by and
between Bank of America, N.A. and SilverBow, dated September 1, 2023.
w. Confirmation re Commodity Swap Transaction (Trade ID: 61443296) by and
between Bank of America, N.A. and SilverBow, dated September 1, 2023.
x. Confirmation re Commodity Swap Transaction (Trade ID: 61443250) by and
between Bank of America, N.A. and SilverBow, dated September 1, 2023.
y. Confirmation re Commodity Swap Transaction (Trade ID: 61443310) by and
between Bank of America, N.A. and SilverBow, dated September 1, 2023.
z. Confirmation re Commodity Swap Transaction (Trade ID: 61734805) by and
between Bank of America, N.A. and SilverBow, dated September 19, 2023.
aa. Confirmation re Commodity Swap Transaction (Trade ID: 61736743) by and
between Bank of America, N.A. and SilverBow, dated September 19, 2023.
bb. Confirmation re Commodity Swap Transaction (Trade ID: 61736920) by and
between Bank of America, N.A. and SilverBow, dated September 19, 2023.
cc. Confirmation re Commodity Swap Transaction (Trade ID: 61737009) by and
between Bank of America, N.A. and SilverBow, dated September 19, 2023.
dd. Confirmation re Commodity Swap Transaction (Trade ID: 61737166) by and
between Bank of America, N.A. and SilverBow, dated September 19, 2023.
ee. Confirmation re Commodity Swap Transaction (Trade ID: 61737377) by and
between Bank of America, N.A. and SilverBow, dated September 19, 2023.
ff. Confirmation re Commodity Swap Transaction (Trade ID: 62062113) by and
between Bank of America, N.A. and SilverBow, dated October 18, 2023.
gg. Confirmation re Commodity Swap Transaction (Trade ID: 62062137) by and
between Bank of America, N.A. and SilverBow, dated October 18, 2023.
hh. Confirmation re Commodity Swap Transaction (Trade ID: 62062310) by and
between Bank of America, N.A. and SilverBow, dated October 18, 2023.
ii. Confirmation re Commodity Swap Transaction (Trade ID: 62062682) by and
between Bank of America, N.A. and SilverBow, dated October 18, 2023.
jj. Confirmation re Commodity Swap Transaction (Trade ID: 62062317) by and
between Bank of America, N.A. and SilverBow, dated October 18, 2023.
kk. Confirmation re Commodity Swap Transaction (Trade ID: 6206235) by and
between Bank of America, N.A. and SilverBow, dated October 18, 2023.
ll. Confirmation re Commodity Swap Transaction (Trade ID: 62062324) by and
between Bank of America, N.A. and SilverBow, dated October 18, 2023.
2. ISDA 2002 Master Agreement, by and between Capital One, National Association and
SilverBow, dated January 14, 2022, and the Schedule appended thereto.
a. Confirmation re Commodity Swap Transaction (Trade ID: 146683-1) by and
between Capital One, N.A. and SilverBow, dated June 3, 2022.
b. Confirmation re Commodity Swap Transaction (Trade ID: 150286-1) by and
between Capital One, N.A. and SilverBow, dated July 1, 2022.
c. Confirmation re Commodity Swap – Cash Settled (Reference No. 153126-1) by
and between Capital One, N.A. and SilverBow, dated July 20, 2022.
d. Commodity Option - Cash Settled Confirmation (Reference No. 194367-1) by and
between Capital One, N.A. and SilverBow, dated April 19, 2023.
e. Commodity Option - Cash Settled Confirmation (Reference No. 194366-1) by and
between Capital One, N.A. and SilverBow, dated April 19, 2023.
f. Commodity Option - Cash Settled Confirmation (Reference No. 207623-1) by and
between Capital One Commercial Banking and SilverBow, dated July 25, 2023.
g. Commodity Option - Cash Settled Confirmation (Reference No. 207626-1) by and
between Capital One Commercial Banking and SilverBow, dated July 25, 2023.
h. Commodity Swap - Cash Settled Confirmation (Reference No. 207392-1) by and
between Capital One Commercial Banking and SilverBow, dated July 25, 2023.
i. Commodity Swap - Cash Settled Confirmation (Reference No. 210326-1) by and
between Capital One Commercial Banking and SilverBow, dated August 3, 2023.
j. Commodity Swap - Cash Settled Confirmation (Reference No. 210351-1) by and
between Capital One Commercial Banking and SilverBow, dated August 3, 2023.
k. Commodity Swap - Cash Settled Confirmation (Reference No. 211269-1) by and
between Capital One Commercial Banking and SilverBow, dated August 8, 2023.
l. Commodity Swap - Cash Settled Confirmation (Reference No. 223674-1) by and
between Capital One Commercial Banking and SilverBow, dated September 29, 2023.
m. Commodity Swap - Cash Settled Confirmation (Reference No. 223675-1) by and
between Capital One Commercial Banking and SilverBow, dated September 29, 2023.
n. Commodity Swap - Cash Settled Confirmation (Reference No. 223918-1) by and
between Capital One Commercial Banking and SilverBow, dated September 29, 2023.
o. Commodity Swap - Cash Settled Confirmation (Reference No. 225597-1) by and
between Capital One Commercial Banking and SilverBow, dated October 6, 2023.
p. Commodity Swap - Cash Settled Confirmation (Reference No. 225654-1) by and
between Capital One Commercial Banking and SilverBow, dated October 6, 2023.
q. Commodity Swap - Cash Settled Confirmation (Reference No. 226471-1) by and
between Capital One Commercial Banking and SilverBow, dated October 12, 2023.
r. Commodity Swap - Cash Settled Confirmation (Reference No. 228535-1) by and
between Capital One Commercial Banking and SilverBow, dated October 18, 2023.
s. Commodity Swap - Cash Settled Confirmation (Reference No. 228536-1) by and
between Capital One Commercial Banking and SilverBow, dated October 18, 2023.
t. Commodity Swap - Cash Settled Confirmation (Reference No. 238729-1) by and
between Capital One Commercial Banking and SilverBow, dated December 20, 2023.
u. Commodity Swap - Cash Settled Confirmation (Reference No. 208107-1) by and
between Capital One Commercial Banking and SilverBow, dated July 27, 2023.
3. ISDA 2002 Master Agreement, by and between Canadian Imperial Bank of Commerce
and SilverBow, dated May 19, 2016, and the Schedule appended thereto.
a. Confirmation re Crude Oil Transaction (Reference No. EN103763715) by and
between Canadian Imperial Bank of Commerce and SilverBow Operating, dated
July 1, 2022.
b. Confirmation re Natural Gas (Reference No. EN104030853) by and between
Canadian Imperial Bank of Commerce and SilverBow Operating, dated August 22, 2022.
c. Confirmation re Natural Gas (Reference No. EN104030855) by and between
Canadian Imperial Bank of Commerce and SilverBow Operating, dated August 22, 2022.
d. Confirmation re Natural Gas (Reference No. EN104030857) by and between
Canadian Imperial Bank of Commerce and SilverBow Operating, dated August 22, 2022.
e. Confirmation re Natural Gas (Reference No. EN104397357) by and between
Canadian Imperial Bank of Commerce and SilverBow Operating, dated October 22, 2022.
f. Confirmation re Natural Gas (Reference No. EN104814591) by and between
Canadian Imperial Bank of Commerce and SilverBow Operating, dated December 13, 2022.
g. Confirmation re Natural Gas (Reference No. EN104814473) by and between
Canadian Imperial Bank of Commerce and SilverBow Operating, dated December 13, 2022.
h. Confirmation re Natural Gas (Reference No. EN104814589) by and between
Canadian Imperial Bank of Commerce and SilverBow Operating, dated December 13, 2022.
i. Confirmation re Natural Gas (Reference No. EN104814472) by and between
Canadian Imperial Bank of Commerce and SilverBow Operating, dated December 13, 2022.
j. Confirmation re Natural Gas (Reference No. EN104814470) by and between
Canadian Imperial Bank of Commerce and SilverBow Operating, dated December 13, 2022.
k. Confirmation re Natural Gas (Reference No. EN104814471) by and between
Canadian Imperial Bank of Commerce and SilverBow Operating, dated December 13, 2022.
l. Confirmation re Natural Gas (Reference No. EN104814590) by and between
Canadian Imperial Bank of Commerce and SilverBow Operating, dated December 13, 2022.
m. Confirmation re Natural Gas (Reference No. EN104814588) by and between
Canadian Imperial Bank of Commerce and SilverBow Operating, dated December 13, 2022.
n. Confirmation re Natural Gas Transaction (Reference No. EN104965874) by and
between Canadian Imperial Bank of Commerce and SilverBow Operating, dated December 21, 2022.
o. Confirmation re Natural Gas Transaction (Reference No. EN104966848) by and
between Canadian Imperial Bank of Commerce and SilverBow Operating, dated December 21, 2022.
p. Confirmation re Natural Gas (Reference No. EN106618139) by and between
Canadian Imperial Bank of Commerce and SilverBow, dated March 23, 2023.
q. Confirmation re Crude Oil Transaction (Reference No. EN107097127) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated April 19, 2023.
r. Confirmation re Natural Gas Transaction (Reference No. EN107097126) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated April 19, 2023.
s. Confirmation re Natural Gas (Reference No. EN107097127) by and between
Canadian Imperial Bank of Commerce and SilverBow, dated April 19, 2023.
t. Confirmation re Natural Gas Transaction (Reference No. EN107862675) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated May 30, 2023.
u. Confirmation re Natural Gas Transaction (Reference No. EN107862676) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated May 30, 2023.
v. Confirmation re Crude Oil Transaction (Reference No. EN108362163) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated June 26, 2023.
w. Confirmation re Crude Oil Transaction (Reference No. EN108362165) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated June 26, 2023.
x. Confirmation re Crude Oil Transaction (Reference No. EN108362169) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated June 26, 2023.
y. Confirmation re Crude Oil Transaction (Reference No. EN108362167) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated June 26, 2023.
z. Confirmation re Crude Oil Transaction (Reference No. EN108615295) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated July 10, 2023.
aa. Confirmation re Natural Gas Transaction (Reference No. EN108789488) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated July 19, 2023.
bb. Confirmation re Natural Gas Transaction (Reference No. EN108814316) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated July 20, 2023.
cc. Confirmation re Natural Gas Transaction (Reference No. EN108929389) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated July 26, 2023.
dd. Confirmation re Natural Gas Transaction (Reference No. EN108929404) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated July 26, 2023.
ee. Confirmation re Crude Oil Transaction (Reference No. EN108953226) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated July 27, 2023.
ff. Confirmation re Crude Oil Transaction (Reference No. EN109002232) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated July 31, 2023.
gg. Confirmation re Ethan Transaction (Reference No. EN109235918) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 11, 2023.
hh. Confirmation re Propane Transaction (Reference No. EN109235922) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 11, 2023.
ii. Confirmation re Isobutane Transaction (Reference No. EN109235929) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 11, 2023.
jj. Confirmation re Butane Transaction (Reference No. EN109235925) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 11, 2023.
kk. Confirmation re Gasoline Transaction (Reference No. EN109235934) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 11, 2023.
ll. Confirmation re Natural Gas Transaction (Reference No. EN109260766) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 14, 2023.
mm. Confirmation re Natural Gas Transaction (Reference No. EN109335972) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 17, 2023.
nn. Confirmation re Natural Gas Transaction (Reference No. EN109336170) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 17, 2023.
oo. Confirmation re Crude Oil Transaction (Reference No. EN109408255) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 22, 2023.
pp. Confirmation re Natural Gas Transaction (Reference No. EN109408758) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 22, 2023.
qq. Confirmation re Natural Gas Transaction (Reference No. EN109485842) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 25, 2023.
rr. Confirmation re Natural Gas Transaction (Reference No. EN109485687) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 25, 2023.
ss. Confirmation re Crude Oil Transaction (Reference No. EN109533699) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 29, 2023.
tt. Confirmation re Crude Oil Transaction (Reference No. EN109536635) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated August 30, 2023.
uu. Confirmation re Ethan Transaction (Reference No. EN109607592) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated September 1, 2023.
vv. Confirmation re Propane Transaction (Reference No. EN109607593) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated September 1, 2023.
ww. Confirmation re Butane Transaction (Reference No. EN109607594) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated September 1, 2023.
xx. Confirmation re Isobutane Transaction (Reference No. EN109607595) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated September 1, 2023.
yy. Confirmation re Gasoline Transaction (Reference No. EN109607596) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated September 1, 2023.
zz. Confirmation re Natural Gas Transaction (Reference No. EN109882202) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated September 19, 2023.
aaa. Confirmation re Natural Gas Transaction (Reference No. EN109882203) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated September 19, 2023.
bbb. Confirmation re Natural gas Transaction (Reference No. EN110079672) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated September 29, 2023.
ccc. Confirmation re Natural Gas Transaction (Reference No. EN110079673) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated September 29, 2023.
ddd. Confirmation re Natural Gas Transaction (Reference No. EN110080627) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated September 29, 2023.
eee. Confirmation re Natural Gas Transaction (Reference No. EN110080626) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated September 29, 2023.
fff. Confirmation re Natural Gas Transaction (Reference No. EN110181900) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated October 6, 2023.
ggg. Confirmation re Crude Oil Transaction (Reference No. EN110204680) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated October 9, 2023.
hhh. Confirmation re Crude Oil Transaction (Reference No. EN110360045) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated October 18, 2023.
iii. Confirmation re Natural gas Transaction (Reference No. EN110951218) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated November 3, 2023.
jjj. Confirmation re Natural Gas Transaction (Reference No. EN110951217) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated November 3, 2023.
kkk. Confirmation re Natural Gas Transaction (Reference No. EN111277652) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated November 15, 2023.
lll. Confirmation re Natural gas Transaction (Reference No. EN111277653) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated November 15, 2023.
mmm. Confirmation re Natural Gas Transaction (Reference No. EN111277654) by
and between Canadian Imperial Bank of Commerce and SilverBow, dated November 15, 2023.
nnn. Confirmation re Crude Oil Transaction (Reference No. EN112079669) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated December 20, 2023.
ooo. Confirmation re Crude Oil Transaction (Reference No. EN112153358) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated December 26, 2023.
ppp. Confirmation re Natural Gas Transaction (Reference No. EN114106340) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated April 9, 2024.
qqq. Confirmation re Crude Oil Transaction (Reference No. EN114107091) by and
between Canadian Imperial Bank of Commerce and SilverBow, dated April 9,
2024.
4. ISDA 2002 Master Agreement, by and between Citibank, N.A. and SilverBow, dated
December 21, 2022, and the Schedule appended thereto.
a. Crude Oil Confirmation (Reference No. 56635487) by and between Citibank NA
and SilverBow, dated March 23, 2023.
b. Natural Gas Confirmation (Reference No. 56633295) by and between Citibank NA
and SilverBow, dated March 23, 2023.
c. Natural Gas Confirmation (56633296) by and between Citibank NA and SilverBow, dated March 23, 2023.
d. Amended Natural Gas Confirmation (Reference No. 56677505) by and between
Citibank NA and SilverBow, dated March 28, 2023.
e. Natural Gas Confirmation re Commodity Option Transaction - Cash Settled
(Reference No. 57517345) by and between Citibank NA and SilverBow, dated July 19, 2023.
f. Natural Gas Confirmation re Commodity Option Transaction - Cash Settled
(Reference No. 57517346) by and between Citibank NA and SilverBow, dated July 19, 2023.
g. Amended Natural Gas Confirmation re Commodity Option Transaction - Cash
Settled (Reference No. 57526494) by and between Citibank NA and SilverBow, dated July 20, 2023.
h. Crude Oil Confirmation re Commodity Option Transaction - Cash Settled
(Reference No. 57604471) by and between Citibank NA and SilverBow, dated July 31, 2023.
i. Crude Oil Confirmation re Commodity Swap Transaction - Cash Settled (Reference
No. 57677393) by and between Citibank NA and SilverBow, dated August 9, 2023.
j. Amended Natural Gas Confirmation re Commodity Swap Transaction – Cash Settled (Reference No. 57756869) by and between Citibank NA and SilverBow, dated August 21, 2023.
k. Natural Gas Confirmation re Commodity Swap Transaction - Cash Settled
(Reference No. 57766693) by and between Citibank NA and SilverBow, dated August 22, 2023.
l. Natural Gas Confirmation re Commodity Swap Transaction - Cash Settled
(Reference No. 57767374) by and between Citibank NA and SilverBow, dated August 22, 2023.
m. Natural Gas Confirmation re Commodity Swap Transaction - Cash Settled
(Reference No. 57766708) by and between Citibank NA and SilverBow, dated August 22, 2023.
n. Natural Gas Confirmation re Commodity Swap Transaction - Cash Settled
(Reference No. 57768017) by and between Citibank NA and SilverBow, dated August 22, 2023.
o. Crude Oil Confirmation re Commodity Swap Transaction - Cash Settled
(Reference No. 57765535) by and between Citibank NA and SilverBow, dated August 22, 2023.
p. Natural Gas Confirmation re Commodity Swap Transaction – Cash Settled
(Reference No. 57775338) by and between Citibank NA and SilverBow, dated August 23, 2023.
q. Natural Gas Confirmation re Commodity Swap Transaction – Cash Settled
(Reference No. 57773672) by and between Citibank NA and SilverBow, dated
August 23, 2023.
r. Crude Oil Confirmation re Commodity Swap Transaction – Cash Settled
(Reference No. 57772555) by and between Citibank NA and SilverBow, dated
August 23, 2023.
s. Crude Oil Confirmation re Commodity Swap Transaction – Cash Settled
(Reference No. 57772589) by and between Citibank NA and SilverBow, dated
August 23, 2023.
t. Amended Crude Oil Confirmation re Commodity Swap Transaction – Cash Settled
(Reference No. 57775470/57775558) by and between Citibank NA and SilverBow, dated August 23, 2023.
u. Amended Crude Oil Confirmation re Commodity Swap Transaction (Reference
No. 57775559/57775471) – Cash Settled by and between Citibank NA and SilverBow, dated August 23, 2023.
v. Amended Crude Oil Confirmation re Commodity Swap Transaction – Cash Settled
(Reference No. 57772733/57772731) by and between Citibank NA and SilverBow, dated August 23, 2023.
w. Amended Crude Oil Confirmation re Commodity Swap Transaction – Cash Settled
(Reference No. 57772732/57772734) by and between Citibank NA and SilverBow, dated August 23, 2023.
x. Amended Crude Oil Confirmation re Commodity Swap Transaction – Cash Settled
(Reference No. 57775232/57775236) by and between Citibank NA and SilverBow, dated August 23, 2023.
y. Amended Crude Oil Confirmation re Commodity Swap Transaction – Cash Settled
(Reference No. 57775234/57775237) by and between Citibank NA and SilverBow, dated August 23, 2023.
z. Crude Oil Confirmation re Commodity Swap Transaction - Cash Settled (Reference
No. 57844885) by and between Citibank NA and SilverBow, dated September
1, 2023.
aa. Crude Oil Confirmation re Commodity Swap Transaction - Cash Settled
(Reference No. 57969560) by and between Citibank NA and SilverBow, dated
September 19, 2023.
bb. Crude Oil Confirmation re Commodity Swap Transaction - Cash Settled
(Reference No. 57969561) by and between Citibank NA and SilverBow, dated
September 19, 2023.
cc. Crude Oil Confirmation re Commodity Swap Transaction - Cash Settled
(Reference No. 57969562) by and between Citibank NA and SilverBow, dated
September 19, 2023.
dd. Crude Oil Confirmation re Commodity Swap Transaction - Cash Settled
(Reference No. 57969563) by and between Citibank NA and SilverBow, dated
September 19, 2023.
ee. Confirmation re Natural Gas Confirmation re Commodity Swap Transaction -
Cash Settled (Reference No. 58013210) by and between Citibank NA and SilverBow, dated September 25, 2023.
ff. Natural Gas Confirmation re Commodity Swap Transaction - Cash Settled
(Reference No. 58013556) by and between Citibank NA and SilverBow, dated
September 25, 2023.
gg. Natural Gas Confirmation re Commodity Swap Transaction - Cash Settled
(Reference No. 58013125) by and between Citibank NA and SilverBow, dated
September 25, 2023.
hh. Natural Gas Confirmation re Commodity Swap Transaction - Cash Settled
(Reference No. 58013671) by and between Citibank NA and SilverBow, dated
September 25, 2023.
ii. Natural Gas Confirmation re Commodity Swap Transaction - Cash Settled
(Reference No. 58013672) by and between Citibank NA and SilverBow, dated
September 25, 2023.
jj. Natural Gas Confirmation re Commodity Bullet Swap Transactions - Cash Settled
(Reference No. 59537868) by and between Citibank NA and SilverBow, dated
April 8, 2024.
kk. Natural Gas Confirmation re Commodity Bullet Swap Transactions - Cash Settled
(Reference No. 59537869) by and between Citibank NA and SilverBow, dated
April 8, 2024.
ll. Crude Oil Confirmation re Commodity Swap Transactions - Cash Settled
(Reference No. 59546784) by and between Citibank NA and SilverBow, dated
April 9, 2024.
mm. Natural Gas Confirmation re Commodity Bullet Swap Transactions - Cash
Settled (Reference No. 59610979) by and between Citibank NA and SilverBow, dated April 17, 2024.
5. ISDA 2002 Master Agreement, by and between Fifth Third Bank and SilverBow,
dated April 21, 2017, and the Schedule appended thereto.
a. Confirmation re Oil Collar Transaction (Reference No. 108794479) by and
between Fifth Third Capital Markets and SilverBow, dated June 26, 2023.
b. Confirmation re Oil Collar Transaction (Reference No. 109290510 – Amended) by
and between Fifth Third Capital Markets and SilverBow, dated July 19, 2023.
c. Confirmation re Henry Hub Natural Gas Fixed Swap Transaction (Reference No.
109570061) by and between Fifth Third Capital Markets and SilverBow, dated
August 3, 2023.
d. Confirmation re Crude Oil Fixed Swap Transaction (Reference No. 109716979) by
and between Fifth Third Capital Markets and SilverBow, dated August 9, 2023.
e. Confirmation re Crude Oil Fixed Swap Transaction (Reference No. 110035140) by
and between Fifth Third Capital Markets and SilverBow, dated August 22,
2023.
f. Confirmation re Crude Oil Fixed Swap Transaction (Reference No. 110302142) by
and between Fifth Third Capital Markets and SilverBow, September 1, 2023.
g. Confirmation re Crude Oil Fixed Swap Transaction (Reference No. 112403124) by
and between Fifth Third Capital Markets and SilverBow, dated November 15,
2023.
h. Confirmation re Natural Gas Collar Transaction (Reference No. 107479553) by
and between Fifth Third Capital Markets and SilverBow, dated April 19, 2023.
6. ISDA 2002 Master Agreement, by and between JPMorgan Chase Bank, N.A. and SilverBow, dated April 29, 2016, and the Schedule appended thereto.
a. Confirmation re Commodity (Natural Gas Liquid) – Cash Settlement (Reference
No. 85000F9-FE4ZV) by and between JPMorgan Chase Bank, National
Association and SilverBow, dated April 14, 2022.
b. Confirmation re Commodity Swap (Natural Gas Liquid) – Cash Settlement
(Reference No. 85000F9-FE4ZR) by and between JPMorgan Chase Bank,
National Association and SilverBow, dated April 14, 2022.
c. Confirmation re Commodity Swap (Natural Gas Liquid) – Cash Settlement
(Reference No. 85000F9-FE4ZW)) by and between JPMorgan Chase Bank,
National Association and SilverBow, dated April 14, 2022.
d. Confirmation re Commodity Swap (Natural Gas Liquid) – Cash Settlement
(Reference No. 85000F9-FE4ZS)) by and between JPMorgan Chase Bank,
National Association and SilverBow, dated April 14, 2022.
e. Confirmation re Commodity Swap (Natural Gas) – Cash Settlement (Reference No.
85000F9-FE2M9) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated April 14, 2022.
f. Confirmation re Commodity Swap (Natural Gas) – Cash Settlement (Reference No.
85000F9-FE3IQ) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated April 14, 2022.
g. Confirmation re Commodity Swap (Natural Gas) – Cash Settlement (Reference No.
85000F9-FE3XW) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated April 14, 2022.
h. Confirmation re Commodity Swap (Natural Gas Liquid) – Cash Settlement
(Reference No. 85000F9-FE4ZO) by and between JPMorgan Chase Bank,
National Association and SilverBow, dated April 14, 2022.
i. Confirmation re Commodity Swap (Crude Oil) – Cash Settlement (Reference No.
85000F9-FE2YQ) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated April 14, 2022.
j. Confirmation re Commodity Swap (Natural Gas) – Cash Settlement (Reference No.
85000F9-FJXH5) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated May 10, 2022.
k. Confirmation re Commodity Swap (Natural Gas) – Cash Settlement (Reference No.
85000F9-FJWZL) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated May 10, 2022.
l. Confirmation re Commodity Option (Natural Gas) – Cash Settlement (Reference
No. 85000F9-FJYKB) by and between JPMorgan Chase Bank, National
Association and SilverBow, dated May 10, 2022.
m. Confirmation re Commodity Option (Crude Oil) - Cash Settlement (Reference No.
85000F9-FJXX6) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated May 10, 2022.
n. Confirmation re Commodity Option (Natural Gas) – Cash Settlement (Reference
No. 85000F9-FJX4H) by and between JPMorgan Chase Bank, National
Association and SilverBow, dated May 10, 2022.
o. Confirmation re Commodity Swap (Natural Gas) – Cash Settlement (Reference No.
85000F9-FZVEA) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated July 19, 2022.
p. Confirmation re Commodity Swap (Natural Gas) – Cash Settlement (Reference No.
85000F9-G5BY1) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated August 22, 2022.
q. Confirmation re Commodity Swap (Natural Gas) – Cash Settlement (Reference No.
85000F9-G5BZA) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated August 22, 2022.
r. Confirmation re Commodity Swap (Natural Gas) – Cash Settlement (Reference No.
85000F9-G5C0D) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated August 22, 2022.
s. Confirmation re Commodity Swap (Crude Oil) - Cash Settlement (Reference No.
85000F9-HFY1W) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated March 23, 2023.
t. Confirmation re Commodity Swap (Crude Oil) - Cash Settlement (Reference No.
85000F9-HFXZE) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated March 23, 2023.
u. Confirmation re Commodity Option (Natural Gas) - Cash Settlement (Reference
No. 85000F9-HME7P) by and between JPMorgan Chase Bank, National
Association and SilverBow, dated April 19, 2023.
v. Confirmation re Commodity Option (Crude Oil) - Cash Settlement (Reference No.
85000F9-HMEO1 by and between JPMorgan Chase Bank, National Association
and SilverBow, dated April 19, 2023.
w. Confirmation re Commodity Swap (Natural Gas) - Cash Settlement (Reference No.
85000F9-HW35E) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated May 30, 2023.
x. Confirmation re Commodity Swap (Natural Gas) - Cash Settlement (Reference No.
85000F9-IKOH0) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated August 23, 2023.
y. Confirmation re Commodity Swap (Crude Oil) – Cash Settlement (Reference No.
85000F9-IR73J) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated September 19, 2023.
z. Confirmation re Commodity Swap (Crude Oil) – Cash Settlement (Reference No.
85000F9-IR73O) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated September 19, 2023.
aa. Confirmation re Commodity Swap (Natural Gas Liquid) – Cash Settlement
(Reference No. 85000F9-IR7GR) by and between JPMorgan Chase Bank,
National Association and SilverBow, dated September 19, 2023.
bb. Confirmation re Commodity Swap (Natural Gas Liquid) - Cash Settlement
(Reference No. 85000F9-IR9K8) by and between JPMorgan Chase Bank,
National Association and SilverBow, dated September 19, 2023.
cc. Confirmation re Commodity Swap (Natural Gas Liquid) - Cash Settlement
(Reference No. 85000F9-IR9K9) by and between JPMorgan Chase Bank,
National Association and SilverBow, dated September 19, 2023.
dd. Confirmation re Commodity Swap (Natural Gas Liquid) – Cash Settlement
(Reference No. 85000F9-IR9KZ) by and between JPMorgan Chase Bank,
National Association and SilverBow, dated September 19, 2023.
ee. Confirmation re Commodity Swap (Natural Gas Liquid) - Cash Settlement
(Reference No. 85000F9-IR9LZ) (Transaction No. EF9-C3XSO2) by and
between JPMorgan Chase Bank, National Association and SilverBow, dated
September 19, 2023.
ff. Confirmation re Commodity Swap (Natural Gas Liquid) - Cash Settlement
(Reference No. 85000F9-IR9LZ) (Transaction No. EF9-C3XSR1) by and
between JPMorgan Chase Bank, National Association and SilverBow, dated
September 19, 2023.
gg. Confirmation re Commodity Swap (Crude Oil) – Cash Settlement (Reference No.
85000F9-IU0UC) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated September 29, 2023.
hh. Confirmation re Commodity Swap (Crude Oil) - Cash Settlement (Reference No.
85000F9-IU0X2) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated September 29, 2023.
ii. Confirmation re Commodity Swap (Crude Oil) - Cash Settlement (Reference No.
85000F9-IZVOV) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated October 19, 2023.
jj. Confirmation re Commodity Swap (Crude Oil) - Cash Settlement (Reference No.
85000F9-IZVOI) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated October 19, 2023.
kk. Confirmation re Commodity Swap (Natural Gas Liquid) - Cash Settlement
(Reference No. 85000F9-J4X3Z) by and between JPMorgan Chase Bank,
National Association and SilverBow, dated November 15, 2023.
ll. Confirmation re Commodity Swap (Natural Gas Liquid) - Cash Settlement
(Reference No. 85000F9-J4X40) by and between JPMorgan Chase Bank,
National Association and SilverBow, dated November 15, 2023.
mm. Confirmation re Commodity Swap (Natural Gas Liquid) - Cash Settlement
(Reference No. 85000F9-J4X41) by and between JPMorgan Chase Bank,
National Association and SilverBow, dated November 15, 2023.
nn. Confirmation re Commodity Swap (Natural Gas Liquid) - Cash Settlement
(Reference No. 85000F9-J4X42) by and between JPMorgan Chase Bank,
National Association and SilverBow, dated November 15, 2023.
oo. Confirmation re Commodity Swap (Natural Gas Liquid) - Cash Settlement
(Reference No. 85000F9-J4X43) by and between JPMorgan Chase Bank,
National Association and SilverBow, dated November 15, 2023.
pp. Confirmation re Commodity Swap (Crude Oil) - Cash Settlement (Reference No.
85000F9-K4ZVP) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated March 20, 2024.
qq. Confirmation re Commodity Swap (Crude Oil) - Cash Settlement (Reference No.
85000F9-K6N1D) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated March 26, 2024.
rr. Confirmation re Commodity Swap (Crude Oil) - Cash Settlement (Reference No.
85000F9-K6KNV) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated March 26, 2024.
ss. Confirmation re Commodity Swap (Crude Oil) - Cash Settlement (Reference No.
85000F9-KDLVQ) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated April 17, 2024.
tt. Confirmation re Commodity Swap (Crude Oil) - Cash Settlement (Reference No.
85000F9-KDLTO) by and between JPMorgan Chase Bank, National Association
and SilverBow, dated April 17, 2024.
7. ISDA 2002 Master Agreement, by and between KeyBank National Association and SilverBow, dated April 27, 2017, and the Schedule appended thereto.
a. Confirmation of Commodity Collar Transaction (Transaction No. 401724) by and
between KeyBank National Association and SilverBow, dated October 24,
2022.
b. Confirmation re Commodity Collar Transaction (Deal # 419023/Tran #
419023)(Deal # 419024/Tran # 419024) by and between KeyBank National
Association and SilverBow, dated July 21, 2023.
c. Confirmation re Commodity Swap Transaction (Deal# 419267/ Tran # 419267) by
and between KeyBank National Association and SilverBow, dated July 31,
2023.
d. Confirmation re Commodity Swap Transaction (Deal # 419265 / Tran # 419265)
by and between KeyBank National Association and SilverBow, dated July 31,
2023.
e. Confirmation re Commodity Swap Transaction (Deal # 419385/ Tran # 419385) by
and between KeyBank National Association and SilverBow, dated August 3,
2023.
f. Confirmation re Commodity Swap Transaction (Deal # 419878 / Tran # 419878) by
and between KeyBank National Association and SilverBow, dated August 31,
2023.
8. ISDA 2002 Master Agreement, by and between PNC Bank, National Association and SilverBow, dated April 27, 2017, and the Schedule appended thereto.
a. Letter Agreement re Commodity Collar transaction (Reference No. MX
404551/MX 404552) by and between PNC Bank, National Association and SilverBow, dated June 23, 2023.
9. ISDA 2002 Master Agreement, by and between Regions Bank and SilverBow, dated
October 19, 2023, and the Schedule appended thereto.
10. ISDA 2002 Master Agreement, by and between Suntrust Bank and SilverBow, dated
June 8, 2017, as amended, and the Schedule appended thereto.
a. Confirmation re Transaction (Reference No. 1833368) by and between Truist Bank
and SilverBow, dated July 1, 2022.
11. ISDA 2002 Master Agreement, by and between Wells Fargo Bank, N.A. and SilverBow, dated October 16, 2023, as amended, and the Schedule appended thereto.
a. Confirmation of Commodity Swap Cash Settled (Reference No. N13091964-1.2 by
and between Wells Fargo Bank, N.A. and SilverBow, dated March 20, 2024.
b. Confirmation of Commodity Swap Cash Settled (Reference No. N13094141-1.2)
by and between Wells Fargo Bank, N.A. and SilverBow, dated March 20,
2024.
c. Amended and Restated Confirmation of Commodity Swap Cash Settled (Reference
No. N13094181-2.1) by and between Wells Fargo Bank, N.A. and SilverBow,
dated March 20, 2024.
d. Confirmation of Commodity Swap Cash Settled (Reference No. N13126296-1.1)
by and between Wells Fargo Bank, N.A. and SilverBow, dated April 4, 2024.
e. Confirmation of Commodity Option Cash Settled (Reference No. N13155929-1.1
by and between Wells Fargo Bank, N.A. and SilverBow, dated April 17, 2024.
f. Confirmation of Commodity Swap Cash Settled (Reference No. N13155567-1.1)
by and between Wells Fargo Bank, N.A. and SilverBow, dated April 17, 2024.
12. ISDA 2002 Master Agreement, by and between Comerica Bank and SilverBow, dated
June 15, 2016, and the Schedule appended thereto.
a. Confirmation re Energy Swap Transaction (Reference No. 74588) by and between
Comerica Bank and SilverBow, dated April 14, 2022.
b. Confirmation re Energy Transaction (Reference No. 82095) by and between
Comerica Bank and SilverBow, dated July 20, 2022.
c. Confirmation re Energy Swap Transaction (Reference No. 84668) by and between
Comerica Bank and SilverBow, dated December 13, 2022.
d. Confirmation re Energy Swap Transaction (Reference No. 84664) by and between
Comerica Bank and SilverBow, dated December 13, 2022.
e. Confirmation re Energy Swap Transaction (Reference No. 84666) by and between
Comerica Bank and SilverBow, dated December 13, 2022.
Schedule 9.20
Post-Tenth Amendment Collateral Deliveries
Subject to any applicable limitations set forth in the Credit Documents:
1)Mortgages. Mortgages or supplements to existing Mortgages, in each case, with respect to additional Oil and Gas Properties, substantially in the form of Exhibit F to the Credit Agreement (with such changes thereto as may be necessary to account for local law matters) or otherwise in such form as agreed between the Borrower and the Collateral Agent, duly executed by the applicable Credit Party and notarized, in each case, to the extent necessary to satisfy the Collateral Coverage Minimum after giving effect to exploration and production activities, acquisitions, Dispositions and production (based upon the PV-9 of the total Proved Reserves evaluated in the most recent Reserve Report delivered pursuant to Section 9.14 of the Credit Agreement and evaluated in the Acquisition Reserve Report (on a combined basis)).
2)Title. Title information consistent with usual and customary standards for the geographic regions in which the Borrowing Base Properties are located, taking into account the size, scope and number of leases and wells of the Borrower and its Restricted Subsidiaries (it being understood that standards reasonably acceptable to the Administrative Agent shall be deemed to meet such standard), as is required to demonstrate, to the reasonable satisfaction of the Administrative Agent, satisfactory title on at least 85% of the PV-9 of the total Proved Reserves evaluated in the most recent Reserve Report delivered pursuant to Section 9.14 of the Credit Agreement and evaluated in the Acquisition Reserve Report (on a combined basis).
Form of Omnibus Solvency Certificate
Date:____________
To: The Administrative Agent and each of the Lenders party to the Credit Agreement referred to below
Re: Credit Agreement, dated as of May 6, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified, the “Credit Agreement”), by and among Crescent Energy Finance LLC (the “Borrower”), the lenders from time to time party thereto (the “Lenders”), Wells Fargo Bank, National Association, as Administrative Agent, Collateral Agent and a Letter of Credit Issuer, and each other Letter of Credit Issuer from time to time party thereto
Ladies and Gentlemen:
I, the undersigned, the [chief financial officer] of the Borrower, in that capacity only and not in my individual capacity (and without personal liability), do hereby certify as of the date hereof, and based upon facts and circumstances as they exist as of the date hereof (and disclaiming any responsibility for changes in such fact and circumstances after the date hereof), that:
1.This certificate is furnished to the Administrative Agent and the Lenders pursuant to Section 4.7 of the Tenth Amendment. Unless otherwise defined herein, capitalized terms used in this certificate shall have the meanings set forth in the Credit Agreement.
2.For purposes of this certificate, the terms below shall have the following definitions:
1.“Will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature”
For the period from the date hereof through the Maturity Date, the Borrower and its Restricted Subsidiaries taken as a whole will have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of Identified Contingent Liabilities) otherwise become payable, in light of business conducted or anticipated to be conducted by the Credit Parties as reflected in the projected financial statements and in light of the anticipated credit capacity.
2.“Do not have Unreasonably Small Capital”
For the period from the date hereof through the Maturity Date, the Borrower and its Restricted Subsidiaries taken as a whole after consummation of the Transactions (as defined in the Tenth Amendment) on the Tenth Amendment Effective Date is a going concern and has sufficient capital to reasonably ensure that it will continue to be a going concern for such period. I understand that “unreasonably small capital” depends upon the nature of the particular business or businesses conducted or to be conducted, and I have reached my conclusion based on the needs and anticipated needs for capital of the business conducted or anticipated to be conducted
by the Credit Parties as reflected in the projected financial statements and in light of the anticipated credit capacity.
3.For purposes of this certificate, I, or officers of the Borrower under my direction and supervision, have performed the following procedures as of and for the periods set forth below.
a.I have knowledge of and have reviewed to my satisfaction the Credit Agreement.
b.As the [chief financial officer] of the sole member of the managing member of the Borrower, I am familiar with the financial condition of the Borrower and its Restricted Subsidiaries.
4.Based on and subject to the foregoing, I hereby certify on behalf of the Borrower that after giving effect to the consummation of the Transactions (as defined in the Tenth Amendment) on the Tenth Amendment Effective Date, it is my opinion that (a) the Fair Value of the assets of the Borrower and its Restricted Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities, (b) the Present Fair Salable Value of the assets of the Borrower and its Restricted Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (c) the Borrower and its Restricted Subsidiaries taken as a whole do not have Unreasonably Small Capital; and (d) the Borrower and its Restricted Subsidiaries taken as a whole will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature.
IN WITNESS WHEREOF, I have executed this Certificate as of the date first written above.
| | | | | | | | | | | |
| [Borrower] |
| | | |
| | | |
| By: | | |
| Name: |
| Title: |
CREDIT AGREEMENT
Dated as of May 6, 2021
among
CRESCENT ENERGY FINANCE LLC
as the Borrower,
The Several Lenders
from Time to Time Parties Hereto,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Collateral Agent
and a Letter of Credit Issuer,
and
JPMORGAN CHASE BANK, N.A. AND
MIZUHO BANK, LTD.
as Syndication Agent
WELLS FARGO SECURITIES, LLC,
BOFA SECURITIES, INC.,
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH,
CAPITAL ONE, NATIONAL ASSOCIATION,
FIFTH THIRD BANK, NATIONAL ASSOCIATION,
KEYBANC CAPITAL MARKETS INC.,
JPMORGAN CHASE BANK, N.A.,
MIZUHO BANK, LTD.,
REGIONS CAPITAL MARKETS, A DIVISION OF REGIONS BANK,
RBC CAPITAL MARKETS, AND
TRUIST SECURITIES, INC.
as Joint Lead Arrangers and Joint Bookrunners
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is dated as of July 30, 2024 and effective as of the Effective Time (as defined herein) (this “Agreement”) and is by and between Marcus C. Rowland (the “Indemnitee”) and Crescent Energy Company, a Delaware corporation (the “Corporation”), as of the Effective Time. Terms used but not defined herein shall have the meanings assigned to such terms in the Amended and Restated Certificate of Incorporation of the Corporation, dated as of December 7, 2021 and effective as of the Effective Time (the “Certificate of Incorporation”).
WITNESSETH
WHEREAS, in order to, among other things, attract and retain highly competent persons to serve as directors or in other capacities, the Corporation must provide such persons with adequate protection, through rights to indemnification and advancement of expenses, against the risks of claims and actions against them arising out of their services to and activities on behalf of the Corporation;
WHEREAS, the Corporation desires and has requested the Indemnitee to serve as a director of the Corporation and, in order to induce the Indemnitee to serve as a director of the Corporation, effective as of the Effective Time, the Corporation wishes to grant and secure the Indemnitee the rights to indemnification and advancement of expenses provided for herein; and
WHEREAS, the Indemnitee is willing to so serve on the basis that such rights be provided.
NOW, THEREFORE, in consideration of the Indemnitee’s agreement to serve as a director of the Corporation and the covenants and agreements set forth below, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows.
Section 1. Indemnification.
(a) Indemnification in Third-Party Proceedings. To the fullest extent permitted by law (including Section 145 of the DGCL), the Indemnitee shall be indemnified and held harmless by the Corporation on an after tax basis from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (other than any such action brought by or in the right of the Corporation to procure a judgment in its favor, which is addressed in Section 1(b) below), in which the Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of Indemnitee’s status as an Indemnitee (as such term is defined in the Certificate of Incorporation) or by reason of any action alleged to have been taken or omitted in such capacity, whether arising from alleged acts or omissions to act occurring on, before or after the date of this Agreement; provided, that, the Indemnitee shall not
be indemnified and held harmless if the Indemnitee did not act in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful. Notwithstanding the preceding sentence, except as otherwise provided in Section 3(e) of this Agreement, the Corporation shall be required to indemnify the Indemnitee in connection with any claim, demand, action, suit or proceeding (or part thereof) commenced by the Indemnitee only if (x) the commencement of such claim, demand, action, suit or proceeding (or part thereof) by the Indemnitee was authorized by the Board of Directors or (y) there has been a final and non-appealable judgment entered by an arbitral tribunal or a court of competent jurisdiction determining that such person was entitled to indemnification by the Corporation.
(b) Indemnification in Proceedings by or in the Right of the Corporation. To the fullest extent permitted by law (including Section 145 of the DGCL), the Indemnitee shall be indemnified and held harmless by the Corporation on an after tax basis from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, brought by or in the right of the Corporation to procure a judgment in its favor, in which the Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of Indemnitee’s status as an Indemnitee (as such term is defined in the Certificate of Incorporation) or by reason of any action alleged to have been taken or omitted in such capacity, whether arising from alleged acts or omissions to act occurring on, before or after the date of this Agreement; provided, that, the Indemnitee shall not be indemnified and held harmless under this Section 1(b) if there has been a final and non-appealable judgment entered by an arbitral tribunal or a court of competent jurisdiction determining that the Indemnitee is liable to the Corporation, unless and only to the extent that any arbitral tribunal or any court in which such proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification.
(c) Successful Defense. To the extent Indemnitee has been successful on the merits or otherwise in defense of any proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Corporation shall, to the fullest extent permitted by applicable law (including the DGCL), indemnify Indemnitee against expenses (including legal fees and expenses) actually and reasonably incurred by Indemnitee in connection therewith. If Indemnitee is not wholly successful in such proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such proceeding, the Corporation shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all expenses (including legal fees and expenses) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolved claim, issue or matter. If Indemnitee is not wholly successful in such proceeding, the Corporation also shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all expenses (including legal fees and expenses) reasonably
incurred in connection with a claim, issue or matter related to any claim, issue, or matter on which Indemnitee was successful. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
(d) Expenses of a Witness. To the extent that Indemnitee is, by reason of Indemnitee’s status as an Indemnitee (as such term is defined in the Certificate of Incorporation) or by reason of any action alleged to have been taken or omitted in such capacity, whether arising from alleged acts or omissions to act occurring on, before or after the date of this Agreement, a witness or deponent in any proceeding to which Indemnitee was or is not a party or threatened to be made a party, Indemnitee shall, to the fullest extent permitted by applicable law, be indemnified against all expenses (including legal fees and expenses) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
(e) If Indemnitee is entitled under any provision of this Agreement to indemnification by the Corporation for some or a portion of the expenses (including legal fees and expenses), judgments, liabilities, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such expenses, judgments, liabilities, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee in connection with a proceeding, but not, however, for the total amount thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion of such expenses, judgments, liabilities, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such expenses, judgments, liabilities, fines, penalties and amounts paid in settlement) to which Indemnitee is entitled.
(f) The indemnification provided by this Agreement shall be in addition to any other rights to which the Indemnitee may be entitled (i) under the Certificate of Incorporation, the Bylaws and any agreement, (ii) under any policy of insurance, (iii) pursuant to any vote of the holders of outstanding stock entitled to vote on such matter, (iv) as a matter of law, or (v) in equity or otherwise, in each such case, with respect to actions in the Indemnitee’s capacity as an Indemnitee (as such term is defined in the Certificate of Incorporation) and actions in any other capacity, and shall continue as to the Indemnitee if he or she has ceased to serve in such capacity.
Section 2. Advance Payment of Expenses. To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by the Indemnitee in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced upon Indemnitee’s request by the Corporation prior to a final and non-appealable determination that the Indemnitee is not entitled to be indemnified upon receipt by the Corporation of an undertaking by or on behalf of the Indemnitee to repay such amount if it ultimately shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Agreement. Notwithstanding the foregoing, the Indemnitee shall qualify for advances upon the execution and delivery to the Corporation of this Agreement, which shall constitute an undertaking providing that the Indemnitee undertakes to repay the amounts advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled to be
indemnified by the Corporation. No other form of undertaking shall be required other than the execution of this Agreement.
Section 3. Procedure for Indemnification and Advancement of Expenses; Notification and Defense of Claim.
(a) Promptly after receipt by the Indemnitee of notice of the commencement of any action, suit, claim or proceeding, the Indemnitee shall, if a claim in respect thereof is to be made against the Corporation hereunder, notify the Corporation in writing of the commencement thereof. The failure to promptly notify the Corporation of the commencement of the action, suit, claim or proceeding, or the Indemnitee’s request for indemnification, will not relieve the Corporation from any liability that it may have to the Indemnitee hereunder, except to the extent the Corporation is actually prejudiced in its defense of such action, suit, claim or proceeding as a result of such failure. To obtain indemnification or an advancement of expenses under this Agreement, the Indemnitee shall submit to the Corporation a written request therefor, including such documentation and information as is reasonably available to the Indemnitee and is reasonably necessary to enable the Corporation to determine whether and to what extent the Indemnitee is entitled to indemnification and advancement of expenses.
(b) With respect to any action, suit, claim or proceeding of which the Corporation is so notified, as provided in this Agreement, the Corporation, if appropriate, shall be entitled to assume and control the defense of such action, suit, claim or proceeding, with counsel reasonably acceptable to the Indemnitee, upon the delivery to the Indemnitee of written notice of its election to do so, and the Indemnitee shall cooperate with the Corporation in such defense as reasonably requested by the Corporation. After delivery of such notice (but subject to such approval of counsel by the Indemnitee and the retention of such counsel by the Corporation), the Corporation will not be liable to the Indemnitee under this Agreement for any fees of counsel subsequently incurred by the Indemnitee with respect to the same action, suit, claim or proceeding; provided, that, (1) the Indemnitee shall have the right to employ the Indemnitee’s own counsel in such action, suit, claim or proceeding at the Indemnitee’s expense and (2) if (i) the employment of counsel by the Indemnitee at the Corporation’s expense has been previously authorized in writing by the Corporation, or (ii) counsel to the Indemnitee shall have reasonably concluded (evidenced by written notice to the Corporation setting forth the basis for and explanation of such conclusion) that there likely exists a conflict of interest or position, or reasonably believes that such a conflict is likely to arise between the Corporation and the Indemnitee in the conduct of any such defense, then the fees and expenses of the Indemnitee’s separate counsel shall be at the expense of the Corporation, except as otherwise expressly provided by Section 1 of this Agreement, and the Corporation shall not control the defense of such action, suit, claim or proceeding to the extent of such conflict of interest. The Corporation shall not be entitled, without the written consent of the Indemnitee, to assume the defense of any claim brought by or in the right of the Corporation or as to which counsel for the Indemnitee shall in accordance with clause (2)(ii) of the proviso in the immediately preceding sentence have delivered requisite notice regarding the conclusion referred to in such clause.
(c) To the fullest extent permitted by law and subject to the other provisions of this Agreement, the Corporation’s assumption of the defense of an action, suit, claim or proceeding in accordance with Section 3(b) will constitute an irrevocable acknowledgement by the Corporation that any loss and liability suffered by the Indemnitee and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement by or for the account of the Indemnitee actually and reasonably incurred in connection therewith are indemnifiable by the Corporation under Section 1 of this Agreement (including, to the fullest extent permitted by law, that the Indemnitee has met all applicable standards of conduct).
(d) The determination whether to grant the Indemnitee’s request shall be made promptly and in any event within 30 days following the Corporation’s receipt of a request for indemnification in accordance with Section 3(a). A determination, if required by applicable law, with respect to Indemnitee’s entitlement to indemnification shall be made in the specific case by one of the following methods, which shall be at the election of Indemnitee: (i) by a majority vote of the disinterested directors, even though less than a quorum of the board, (ii) by a committee of such directors designated by majority vote of such directors, (iii) by independent counsel (whose reasonable fees and expenses shall be paid by the Corporation) in a written opinion to the board, a copy of which shall be delivered to Indemnitee, or (iv) by vote of the stockholders. The Corporation promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. If it is determined that the Indemnitee is entitled to such indemnification or the Corporation has acknowledged such entitlement, the Corporation shall make payment to the Indemnitee of the indemnifiable amount within such 30 day period. If the Corporation has not so acknowledged such entitlement or the Corporation’s determination of whether to grant the Indemnitee’s indemnification request has not been made within such 30 day period, the requisite determination of entitlement to indemnification shall nonetheless be deemed to have been made and the Indemnitee shall be entitled to such indemnification, subject to Section 5, absent (i) a misstatement by the Indemnitee of a material fact, or an omission of a material fact necessary to make the Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(e) In the event that (i) the Corporation determines in accordance with this Section 3 that the Indemnitee is not entitled to indemnification under this Agreement, (ii) the Corporation denies a request for indemnification, in whole or in part, (iii) payment of indemnification is not made within such 30 day period, (iv) a request for advancement of expenses is not paid in full within 30 days after such request was received by the Corporation, or (v) the Corporation or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to the Indemnitee hereunder, the Indemnitee shall be entitled to seek an adjudication by, and the Indemnitee’s entitlement to such indemnification or advancement of expenses shall be settled by, a court of competent jurisdiction. Alternatively, the Indemnitee, at the Indemnitee’s option, may seek an award in arbitration in accordance with Section 15. The Indemnitee’s expenses (including attorneys’ fees) incurred in connection with successfully establishing the Indemnitee’s right to
indemnification or advancement of expenses, in whole or in part, in such arbitration or court shall also be indemnified by the Corporation to the fullest extent permitted by law.
(f) The Indemnitee shall be presumed to be entitled to indemnification and advancement of expenses under this Agreement upon submission of a request therefor in accordance with Section 1 or Section 2 of this Agreement, as applicable, and this Section 3. The Corporation shall have the burden of proof in overcoming such presumption, and such presumption shall be used as a basis for a determination of entitlement to indemnification and advancement of expenses unless the Corporation overcomes such presumption by clear and convincing evidence.
Section 4. Insurance. The Corporation may purchase and maintain insurance on behalf of the Indemnitee against any liability that may be asserted against, or expense that may be incurred by, the Indemnitee in connection with the Corporation’s activities or the Indemnitee’s activities on behalf of the Corporation, regardless of whether the Corporation would have the power to indemnify the Indemnitee against such liability under the provisions of this Agreement.
Section 5. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with this Agreement, and the Corporation shall have the burden of proof to overcome that presumption by clear and convincing evidence in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure by or on behalf of the Corporation to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by or on behalf of the Corporation that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(b) The termination of any proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation or, with respect to any criminal proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.
(c) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Corporation or its subsidiaries, including financial statements, or on information supplied to Indemnitee by the directors, managers, or officers of the Corporation or its subsidiaries in the course of their duties, or on the advice of legal counsel for the Corporation, its subsidiaries, its
board, any committee of such board or any director, trustee, general partner, manager, or managing member, or on information or records given or reports made to the Corporation, its board, any committee of the board or any director, trustee, general partner, manager, or managing member, by an independent certified public accountant or by an appraiser or other expert selected by the Corporation, its subsidiaries, its board, any committee of the board or any director, trustee, general partner, manager, or managing member. The provisions of this Section 5(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement.
(d) The knowledge and/or actions, or failure to act, of any other representative of the Corporation shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
Section 6. Limitation on Indemnification.
(a) For purposes of this Agreement, (i) the Corporation shall be deemed to have requested the Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by him or her of his or her duties to the Corporation also imposes duties on, or otherwise involves services by, him or her to the plan or participants or beneficiaries of the plan; (ii) excise taxes assessed on the Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of this Agreement; and (iii) any action taken or omitted by the Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by him or her to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Corporation.
(b) Any indemnification pursuant to this Agreement shall be made only out of the assets of the Corporation. None of the stockholders of the Corporation shall be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Corporation to enable it to effectuate such indemnification. In no event may the Indemnitee subject any stockholder of the Corporation to personal liability by reason of the rights to indemnification or advancement of expenses set forth in this Agreement.
(c) The provisions of this Agreement are for the benefit of the Indemnitee and his or her heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.
Section 7. Certain Settlement Provisions. The Corporation shall have no obligation to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action, suit, claim or proceeding without the Corporation’s prior written consent (which may not be unreasonably withheld). The Corporation shall not settle any action, suit, claim or proceeding in any manner that would impose any fine or other monetary obligation on the Indemnitee that is not fully indemnified by the Corporation or any equitable relief on the Indemnitee or includes, directly or indirectly, an admission of wrongdoing by or acknowledgment of fault or culpability with respect to the Indemnitee, in each case without the Indemnitee’s prior written consent
(which may not be unreasonably withheld). To the extent the Corporation has assumed and controls the defense of any action, suit, claim or proceeding in accordance with this Agreement, the Indemnitee shall permit the Corporation to assume and control the settlement, negotiation or compromise of such action, suit, claim or proceeding, and the Indemnitee shall cooperate with the Corporation as reasonably requested by the Corporation in such settlement, negotiation or compromise. The Indemnitee shall not settle, negotiate or compromise any action, suit, claim or proceeding indemnifiable under this Agreement without the Corporation’s prior written consent (which may not be unreasonably withheld).
Section 8. Savings Clause. If any provision or provisions (or portion thereof) of this Agreement shall be invalidated on any ground by any arbitral tribunal or court of competent jurisdiction, then the Corporation shall nevertheless indemnify the Indemnitee if the Indemnitee was or is made or is threatened to be made a party or is otherwise involved in any threatened, pending or completed action, suit, claim or proceeding (brought in the right of the Corporation or otherwise), whether civil, criminal, administrative or investigative and whether formal or informal, including appeals, by reason of its status as an Indemnitee (as such term is defined in the Certificate of Incorporation), or by reason of any action alleged to have been taken or omitted in such capacity, from and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by or on behalf of the Indemnitee in connection with such action, suit, claim or proceeding, including any appeals, to the fullest extent permitted by any applicable portion of this Agreement that shall not have been invalidated and to the fullest extent permitted by law.
Section 9. Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification provided for herein is finally settled by an arbitral tribunal or a court of competent jurisdiction to be unavailable to the Indemnitee in whole or in part, it is agreed that, in such event, the Corporation shall, to the fullest extent permitted by law, contribute to the payment of all of the Indemnitee’s loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by or on behalf of the Indemnitee in connection with any action, suit, claim or proceeding, including any appeals, in an amount that is just and equitable in the circumstances; provided, that, without limiting the generality of the foregoing, such contribution shall not be required where such settlement is due to any limitation on indemnification set forth in Section 5 or 6 hereof.
Section 10. Form and Delivery of Communications. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if delivered by hand, mailed by certified or registered mail with postage prepaid, mailed for overnight delivery by reputable overnight courier or sent by email or facsimile transmission, upon receipt when confirmed that such transmission has been received. Notice to the Corporation shall be sent to 600 Travis Street, Suite 7200, Houston, Texas 77002, Attention: General Counsel (or at such other address or means of contact that the Corporation shall notify the Indemnitee in writing from time to time).
Section 11. Non-exclusivity. The provisions for indemnification and advancement of expenses set forth in this Agreement shall not be deemed exclusive of any other rights which the Indemnitee may have under any provision of law, in any court in which a proceeding is brought, other agreements or otherwise, and the Indemnitee’s rights hereunder shall inure to the benefit of the heirs, successors, assigns, executors and administrators of the Indemnitee. No amendment or alteration of the Certificate of Incorporation or any agreement shall adversely affect the rights provided to the Indemnitee under this Agreement.
Section 12. Indemnitor of First Resort. The Corporation hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement and insurance provided by one or more persons with whom or which Indemnitee may be associated (including, without limitation, KKR & Co. L.P. and certain of its affiliates ) (any such person, a “Sponsor Entity”). The Corporation hereby acknowledges and agrees that (i) the Corporation shall be the indemnitor of first resort with respect to any matter that is the subject of the indemnity obligations provided hereunder, (ii) the Corporation shall be primarily liable for all indemnity obligations provided hereunder and any indemnification afforded to Indemnitee, whether created by applicable law, organizational or constituent documents, contract (including this Agreement) or otherwise, (iii) any obligation of any other persons with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity) to indemnify Indemnitee or advance expenses to or on behalf of Indemnitee in respect of any matter shall be secondary to the obligations of the Corporation hereunder, (iv) the Corporation shall be required to indemnify Indemnitee and advance expenses to Indemnitee hereunder to the fullest extent provided herein without regard to any rights Indemnitee may have against any other person with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity) or insurer of any such person and (v) the Corporation irrevocably waives, relinquishes and releases any other person with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity) from any claim of contribution, subrogation or any other recovery of any kind in respect of amounts paid by the Corporation hereunder. In the event any other Person with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity) or their insurers advances or extinguishes any liability or loss which is the subject of any indemnity obligation owed by the Corporation or payable under any Corporation insurance policy, the payor shall have a right of subrogation against the Corporation or its insurer or insurers for all amounts so paid which would otherwise be payable by the Corporation or its insurer or insurers under this Agreement. In no event will payment of an indemnity obligation by any other person with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity) or their insurers affect the obligations of the Corporation hereunder or shift primary liability for any indemnity obligation to any other person with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity). Any indemnification, insurance or advancement provided by any other person with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity) with respect to any liability arising as a result of Indemnitee’s status as an Indemnitee (as such term is defined in the Certificate of Incorporation) or capacity as an officer or director of any person is specifically in excess over any indemnity obligation of the Corporation or any valid and collectible insurance (including but not limited to any malpractice insurance or professional errors and omissions insurance) provided by the Corporation under this Agreement.
Section 13. Interpretation of Agreement. It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to provide indemnification to the Indemnitee to the fullest extent now or hereafter permitted by law.
Section 14. Entire Agreement. This Agreement and the documents expressly referred to herein constitute the entire agreement between the parties hereto with respect to the matters covered hereby, and any other prior or contemporaneous oral or written understandings or agreements with respect to the matters covered hereby are expressly superseded by this Agreement.
Section 15. Modification and Waiver. No supplement, modification, waiver or amendment of this Agreement shall be binding unless executed in writing by each of the parties hereto. No failure or delay by any party in exercising any right, power or privilege hereunder (other than a failure or delay beyond a period of time specified herein) shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 16. Duration of Agreement; Successor and Assigns; Not an Employment Contract. This Agreement shall continue until and terminate upon the latest of: (i) ten (10) years after the date that Indemnitee shall have ceased to have served as a director, officer, employee or agent of the Company, (ii) one (1) year after the date of final termination of any proceeding, including any appeal, that could be brought against Indemnitee by reason of Indemnitee’s status as an Indemnitee (as such term is defined in the Certificate of Incorporation) or by reason of any action alleged to have been taken or omitted in such capacity, whether arising from alleged acts or omissions to act occurring on, before or after the date of this Agreement, or (iii) the expiration of all statutes of limitation applicable to possible claims, demands, actions, suits or proceedings to which Indemnitee may be subject arising out of Indemnitee’s status as an Indemnitee (as such term is defined in the Certificate of Incorporation). All of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors, assigns, heirs, executors, administrators and legal representatives. The Corporation shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of its business or assets, by written agreement in form and substance reasonably satisfactory to the Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation would be required to perform if no such succession had taken place.
Section 17. Arbitration.
(a) Any and all disputes regarding the Indemnitee’s entitlement to indemnification or advancement of expenses that cannot be settled amicably, including any ancillary claims of any party arising out of, relating to or in connection with the validity, negotiation, execution, interpretation, performance or non-performance of this Agreement (including without limitation the arbitrability of any issue under this Agreement and the validity, scope and enforceability of this arbitration provision) may, at the Indemnitee’s option, be finally settled by arbitration conducted by a single arbitrator in Houston, Texas in accordance with the then-existing Rules of
Arbitration of the International Chamber of Commerce. If the parties to the dispute fail to agree on the selection of an arbitrator within 30 days of the receipt of the request for arbitration, the International Chamber of Commerce shall make the appointment. The arbitrator shall be a lawyer and shall conduct the proceedings in the English language. Performance under this Agreement shall continue if reasonably possible during any arbitration proceedings. Except as required by law or as may be reasonably required in connection with ancillary judicial proceedings to compel arbitration, to obtain temporary or preliminary judicial relief in aid of arbitration, or to confirm or challenge an arbitration award, the arbitration proceedings, including any hearings, shall be confidential, and the parties shall not disclose any awards, any materials produced in the proceedings created for the purpose of the arbitration, or any documents produced by another party in the proceedings not otherwise in the public domain.
(b) Except with respect to any dispute regarding an Indemnitee’s entitlement to indemnification or advancement of expenses or related claims that may be settled in arbitration pursuant to Section 15(a), each party hereby (i) irrevocably agrees that any claims, suits, actions or proceedings arising out of or relating in any way to this Agreement (including any claims, suits or actions to interpret, apply or enforce this Section 17 or any judicial proceeding ancillary to an arbitration or contemplated arbitration arising out of or relating to or concerning this Agreement), shall be exclusively brought in the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction thereof, any other court in the State of Delaware with subject matter jurisdiction; (ii) irrevocably submits to the exclusive jurisdiction of such courts in connection with any such claim, suit, action or proceeding; (iii) irrevocably agrees not to, and waives any right to, assert in any such claim, suit, action or proceeding that (A) it is not personally subject to the jurisdiction of such courts or any other court to which proceedings in such courts may be appealed, (B) such claim, suit, action or proceeding is brought in an inconvenient forum, or (C) the venue of such claim, suit, action or proceeding is improper; (iv) expressly waives any requirement for the posting of a bond by a party bringing such claim, suit, action or proceeding; (v) consents to process being served in any such claim, suit, action or proceeding by mailing, certified mail, return receipt requested, a copy thereof to such party at the address in effect for notices hereunder, and agrees that such service shall constitute good and sufficient service of process and notice thereof; provided, that, nothing in clause (vi) hereof shall affect or limit any right to serve process in any other manner permitted by law; and (vii) irrevocably waives any and all right to trial by jury in any such claim, suit, action or proceeding.
(c) Notwithstanding any provision of this Agreement to the contrary, this Section 17 shall be construed to the maximum extent possible to comply with the laws of the State of Delaware, including the Delaware Uniform Arbitration Act (10 Del. C. § 5701 et seq.) (the “Delaware Arbitration Act”). If, nevertheless, it shall be determined by an arbitral tribunal or court of competent jurisdiction that any provision or wording of this Section 17, including any rules of the International Chamber of Commerce, shall be invalid or unenforceable under the Delaware Arbitration Act, or other applicable law, such invalidity shall not invalidate all of this Section 17. In that case, this Section 17 shall be construed so as to limit any term or provision so as to make it valid or enforceable within the requirements of the Delaware Arbitration Act or
other applicable law, and, in the event such term or provision cannot be so limited, this Section 17 shall be construed to omit such invalid or unenforceable provision.
Section 18. No Construction as Employment Agreement. Nothing contained herein shall be construed as giving the Indemnitee any right to be retained as a director of the Corporation or in the employ of the Corporation or its affiliates. For the avoidance of doubt, the indemnification and advancement of expenses provided under this Agreement shall continue as to the Indemnitee even though he or she may have ceased to be a director, officer, employee or agent of the Corporation.
Section 19. Governing Law. This Agreement and any and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles.
Section 20. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument, notwithstanding that both parties are not signatories to the original or same counterpart.
Section 21. Headings. The section and subsection headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 22. Effectiveness. This Agreement shall be effective, and the provisions hereof shall become operative as of the date first written above (the “Effective Time”).
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This Agreement has been duly executed and delivered to be effective as of the Effective Time.
| | | | | | | | | | | |
| INDEMNITEE: |
| | | |
| | | |
| /s/ Marcus C. Rowland |
| Name: Marcus C. Rowland |
| | | |
| | | |
| CRESCENT ENERGY COMPANY |
| | | |
| | | |
| By: | | /s/ David C. Rockecharlie |
| | | Name: David C. Rockecharlie |
| | | Title: Chief Executive Officer |
[Signature Page to Indemnification Agreement]
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is dated as of July 30, 2024 and effective as of the Effective Time (as defined herein) (this “Agreement”) and is by and between Michael Duginski (the “Indemnitee”) and Crescent Energy Company, a Delaware corporation (the “Corporation”), as of the Effective Time. Terms used but not defined herein shall have the meanings assigned to such terms in the Amended and Restated Certificate of Incorporation of the Corporation, dated as of December 7, 2021 and effective as of the Effective Time (the “Certificate of Incorporation”).
WITNESSETH
WHEREAS, in order to, among other things, attract and retain highly competent persons to serve as directors or in other capacities, the Corporation must provide such persons with adequate protection, through rights to indemnification and advancement of expenses, against the risks of claims and actions against them arising out of their services to and activities on behalf of the Corporation;
WHEREAS, the Corporation desires and has requested the Indemnitee to serve as a director of the Corporation and, in order to induce the Indemnitee to serve as a director of the Corporation, effective as of the Effective Time, the Corporation wishes to grant and secure the Indemnitee the rights to indemnification and advancement of expenses provided for herein; and
WHEREAS, the Indemnitee is willing to so serve on the basis that such rights be provided.
NOW, THEREFORE, in consideration of the Indemnitee’s agreement to serve as a director of the Corporation and the covenants and agreements set forth below, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows.
Section 1. Indemnification.
(a)Indemnification in Third-Party Proceedings. To the fullest extent permitted by law (including Section 145 of the DGCL), the Indemnitee shall be indemnified and held harmless by the Corporation on an after tax basis from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (other than any such action brought by or in the right of the Corporation to procure a judgment in its favor, which is addressed in Section 1(b) below), in which the Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of Indemnitee’s status as an Indemnitee (as such term is defined in the Certificate of Incorporation) or by reason of any action alleged to have been taken or omitted in such capacity, whether arising from alleged acts or omissions to act occurring on, before or after the date of this Agreement; provided, that, the Indemnitee shall not
be indemnified and held harmless if the Indemnitee did not act in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful. Notwithstanding the preceding sentence, except as otherwise provided in Section 3(e) of this Agreement, the Corporation shall be required to indemnify the Indemnitee in connection with any claim, demand, action, suit or proceeding (or part thereof) commenced by the Indemnitee only if (x) the commencement of such claim, demand, action, suit or proceeding (or part thereof) by the Indemnitee was authorized by the Board of Directors or (y) there has been a final and non-appealable judgment entered by an arbitral tribunal or a court of competent jurisdiction determining that such person was entitled to indemnification by the Corporation.
(b)Indemnification in Proceedings by or in the Right of the Corporation. To the fullest extent permitted by law (including Section 145 of the DGCL), the Indemnitee shall be indemnified and held harmless by the Corporation on an after tax basis from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, brought by or in the right of the Corporation to procure a judgment in its favor, in which the Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of Indemnitee’s status as an Indemnitee (as such term is defined in the Certificate of Incorporation) or by reason of any action alleged to have been taken or omitted in such capacity, whether arising from alleged acts or omissions to act occurring on, before or after the date of this Agreement; provided, that, the Indemnitee shall not be indemnified and held harmless under this Section 1(b) if there has been a final and non-appealable judgment entered by an arbitral tribunal or a court of competent jurisdiction determining that the Indemnitee is liable to the Corporation, unless and only to the extent that any arbitral tribunal or any court in which such proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification.
(c)Successful Defense. To the extent Indemnitee has been successful on the merits or otherwise in defense of any proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Corporation shall, to the fullest extent permitted by applicable law (including the DGCL), indemnify Indemnitee against expenses (including legal fees and expenses) actually and reasonably incurred by Indemnitee in connection therewith. If Indemnitee is not wholly successful in such proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such proceeding, the Corporation shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all expenses (including legal fees and expenses) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolved claim, issue or matter. If Indemnitee is not wholly successful in such proceeding, the Corporation also shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all expenses (including legal fees and expenses) reasonably
incurred in connection with a claim, issue or matter related to any claim, issue, or matter on which Indemnitee was successful. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
(d)Expenses of a Witness. To the extent that Indemnitee is, by reason of Indemnitee’s status as an Indemnitee (as such term is defined in the Certificate of Incorporation) or by reason of any action alleged to have been taken or omitted in such capacity, whether arising from alleged acts or omissions to act occurring on, before or after the date of this Agreement, a witness or deponent in any proceeding to which Indemnitee was or is not a party or threatened to be made a party, Indemnitee shall, to the fullest extent permitted by applicable law, be indemnified against all expenses (including legal fees and expenses) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
(e)If Indemnitee is entitled under any provision of this Agreement to indemnification by the Corporation for some or a portion of the expenses (including legal fees and expenses), judgments, liabilities, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such expenses, judgments, liabilities, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee in connection with a proceeding, but not, however, for the total amount thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion of such expenses, judgments, liabilities, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such expenses, judgments, liabilities, fines, penalties and amounts paid in settlement) to which Indemnitee is entitled.
(f)The indemnification provided by this Agreement shall be in addition to any other rights to which the Indemnitee may be entitled (i) under the Certificate of Incorporation, the Bylaws and any agreement, (ii) under any policy of insurance, (iii) pursuant to any vote of the holders of outstanding stock entitled to vote on such matter, (iv) as a matter of law, or (v) in equity or otherwise, in each such case, with respect to actions in the Indemnitee’s capacity as an Indemnitee (as such term is defined in the Certificate of Incorporation) and actions in any other capacity, and shall continue as to the Indemnitee if he or she has ceased to serve in such capacity.
Section 2. Advance Payment of Expenses. To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by the Indemnitee in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced upon Indemnitee’s request by the Corporation prior to a final and non-appealable determination that the Indemnitee is not entitled to be indemnified upon receipt by the Corporation of an undertaking by or on behalf of the Indemnitee to repay such amount if it ultimately shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Agreement. Notwithstanding the foregoing, the Indemnitee shall qualify for advances upon the execution and delivery to the Corporation of this Agreement, which shall constitute an undertaking providing that the Indemnitee undertakes to repay the amounts advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled to be
indemnified by the Corporation. No other form of undertaking shall be required other than the execution of this Agreement.
Section 3. Procedure for Indemnification and Advancement of Expenses; Notification and Defense of Claim.
(a)Promptly after receipt by the Indemnitee of notice of the commencement of any action, suit, claim or proceeding, the Indemnitee shall, if a claim in respect thereof is to be made against the Corporation hereunder, notify the Corporation in writing of the commencement thereof. The failure to promptly notify the Corporation of the commencement of the action, suit, claim or proceeding, or the Indemnitee’s request for indemnification, will not relieve the Corporation from any liability that it may have to the Indemnitee hereunder, except to the extent the Corporation is actually prejudiced in its defense of such action, suit, claim or proceeding as a result of such failure. To obtain indemnification or an advancement of expenses under this Agreement, the Indemnitee shall submit to the Corporation a written request therefor, including such documentation and information as is reasonably available to the Indemnitee and is reasonably necessary to enable the Corporation to determine whether and to what extent the Indemnitee is entitled to indemnification and advancement of expenses.
(b)With respect to any action, suit, claim or proceeding of which the Corporation is so notified, as provided in this Agreement, the Corporation, if appropriate, shall be entitled to assume and control the defense of such action, suit, claim or proceeding, with counsel reasonably acceptable to the Indemnitee, upon the delivery to the Indemnitee of written notice of its election to do so, and the Indemnitee shall cooperate with the Corporation in such defense as reasonably requested by the Corporation. After delivery of such notice (but subject to such approval of counsel by the Indemnitee and the retention of such counsel by the Corporation), the Corporation will not be liable to the Indemnitee under this Agreement for any fees of counsel subsequently incurred by the Indemnitee with respect to the same action, suit, claim or proceeding; provided, that, (1) the Indemnitee shall have the right to employ the Indemnitee’s own counsel in such action, suit, claim or proceeding at the Indemnitee’s expense and (2) if (i) the employment of counsel by the Indemnitee at the Corporation’s expense has been previously authorized in writing by the Corporation, or (ii) counsel to the Indemnitee shall have reasonably concluded (evidenced by written notice to the Corporation setting forth the basis for and explanation of such conclusion) that there likely exists a conflict of interest or position, or reasonably believes that such a conflict is likely to arise between the Corporation and the Indemnitee in the conduct of any such defense, then the fees and expenses of the Indemnitee’s separate counsel shall be at the expense of the Corporation, except as otherwise expressly provided by Section 1 of this Agreement, and the Corporation shall not control the defense of such action, suit, claim or proceeding to the extent of such conflict of interest. The Corporation shall not be entitled, without the written consent of the Indemnitee, to assume the defense of any claim brought by or in the right of the Corporation or as to which counsel for the Indemnitee shall in accordance with clause (2)(ii) of the proviso in the immediately preceding sentence have delivered requisite notice regarding the conclusion referred to in such clause.
(c)To the fullest extent permitted by law and subject to the other provisions of this Agreement, the Corporation’s assumption of the defense of an action, suit, claim or proceeding in accordance with Section 3(b) will constitute an irrevocable acknowledgement by the Corporation that any loss and liability suffered by the Indemnitee and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement by or for the account of the Indemnitee actually and reasonably incurred in connection therewith are indemnifiable by the Corporation under Section 1 of this Agreement (including, to the fullest extent permitted by law, that the Indemnitee has met all applicable standards of conduct).
(d)The determination whether to grant the Indemnitee’s request shall be made promptly and in any event within 30 days following the Corporation’s receipt of a request for indemnification in accordance with Section 3(a). A determination, if required by applicable law, with respect to Indemnitee’s entitlement to indemnification shall be made in the specific case by one of the following methods, which shall be at the election of Indemnitee: (i) by a majority vote of the disinterested directors, even though less than a quorum of the board, (ii) by a committee of such directors designated by majority vote of such directors, (iii) by independent counsel (whose reasonable fees and expenses shall be paid by the Corporation) in a written opinion to the board, a copy of which shall be delivered to Indemnitee, or (iv) by vote of the stockholders. The Corporation promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. If it is determined that the Indemnitee is entitled to such indemnification or the Corporation has acknowledged such entitlement, the Corporation shall make payment to the Indemnitee of the indemnifiable amount within such 30 day period. If the Corporation has not so acknowledged such entitlement or the Corporation’s determination of whether to grant the Indemnitee’s indemnification request has not been made within such 30 day period, the requisite determination of entitlement to indemnification shall nonetheless be deemed to have been made and the Indemnitee shall be entitled to such indemnification, subject to Section 5, absent (i) a misstatement by the Indemnitee of a material fact, or an omission of a material fact necessary to make the Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(e)In the event that (i) the Corporation determines in accordance with this Section 3 that the Indemnitee is not entitled to indemnification under this Agreement, (ii) the Corporation denies a request for indemnification, in whole or in part, (iii) payment of indemnification is not made within such 30 day period, (iv) a request for advancement of expenses is not paid in full within 30 days after such request was received by the Corporation, or (v) the Corporation or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to the Indemnitee hereunder, the Indemnitee shall be entitled to seek an adjudication by, and the Indemnitee’s entitlement to such indemnification or advancement of expenses shall be settled by, a court of competent jurisdiction. Alternatively, the Indemnitee, at the Indemnitee’s option, may seek an award in arbitration in accordance with Section 15. The Indemnitee’s expenses (including attorneys’ fees) incurred in connection with successfully establishing the Indemnitee’s right to
indemnification or advancement of expenses, in whole or in part, in such arbitration or court shall also be indemnified by the Corporation to the fullest extent permitted by law.
(f)The Indemnitee shall be presumed to be entitled to indemnification and advancement of expenses under this Agreement upon submission of a request therefor in accordance with Section 1 or Section 2 of this Agreement, as applicable, and this Section 3. The Corporation shall have the burden of proof in overcoming such presumption, and such presumption shall be used as a basis for a determination of entitlement to indemnification and advancement of expenses unless the Corporation overcomes such presumption by clear and convincing evidence.
Section 4. Insurance. The Corporation may purchase and maintain insurance on behalf of the Indemnitee against any liability that may be asserted against, or expense that may be incurred by, the Indemnitee in connection with the Corporation’s activities or the Indemnitee’s activities on behalf of the Corporation, regardless of whether the Corporation would have the power to indemnify the Indemnitee against such liability under the provisions of this Agreement.
Section 5. Presumptions and Effect of Certain Proceedings.
(a)In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with this Agreement, and the Corporation shall have the burden of proof to overcome that presumption by clear and convincing evidence in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure by or on behalf of the Corporation to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by or on behalf of the Corporation that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(b)The termination of any proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation or, with respect to any criminal proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.
(c)For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Corporation or its subsidiaries, including financial statements, or on information supplied to Indemnitee by the directors, managers, or officers of the Corporation or its subsidiaries in the course of their duties, or on the advice of legal counsel for the Corporation, its subsidiaries, its
board, any committee of such board or any director, trustee, general partner, manager, or managing member, or on information or records given or reports made to the Corporation, its board, any committee of the board or any director, trustee, general partner, manager, or managing member, by an independent certified public accountant or by an appraiser or other expert selected by the Corporation, its subsidiaries, its board, any committee of the board or any director, trustee, general partner, manager, or managing member. The provisions of this Section 5(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement.
(d)The knowledge and/or actions, or failure to act, of any other representative of the Corporation shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
Section 6. Limitation on Indemnification.
(a)For purposes of this Agreement, (i) the Corporation shall be deemed to have requested the Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by him or her of his or her duties to the Corporation also imposes duties on, or otherwise involves services by, him or her to the plan or participants or beneficiaries of the plan; (ii) excise taxes assessed on the Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of this Agreement; and (iii) any action taken or omitted by the Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by him or her to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Corporation.
(b)Any indemnification pursuant to this Agreement shall be made only out of the assets of the Corporation. None of the stockholders of the Corporation shall be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Corporation to enable it to effectuate such indemnification. In no event may the Indemnitee subject any stockholder of the Corporation to personal liability by reason of the rights to indemnification or advancement of expenses set forth in this Agreement.
(c)The provisions of this Agreement are for the benefit of the Indemnitee and his or her heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.
Section 7. Certain Settlement Provisions. The Corporation shall have no obligation to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action, suit, claim or proceeding without the Corporation’s prior written consent (which may not be unreasonably withheld). The Corporation shall not settle any action, suit, claim or proceeding in any manner that would impose any fine or other monetary obligation on the Indemnitee that is not fully indemnified by the Corporation or any equitable relief on the Indemnitee or includes, directly or indirectly, an admission of wrongdoing by or acknowledgment of fault or culpability with respect to the Indemnitee, in each case without the Indemnitee’s prior written consent
(which may not be unreasonably withheld). To the extent the Corporation has assumed and controls the defense of any action, suit, claim or proceeding in accordance with this Agreement, the Indemnitee shall permit the Corporation to assume and control the settlement, negotiation or compromise of such action, suit, claim or proceeding, and the Indemnitee shall cooperate with the Corporation as reasonably requested by the Corporation in such settlement, negotiation or compromise. The Indemnitee shall not settle, negotiate or compromise any action, suit, claim or proceeding indemnifiable under this Agreement without the Corporation’s prior written consent (which may not be unreasonably withheld).
Section 8. Savings Clause. If any provision or provisions (or portion thereof) of this Agreement shall be invalidated on any ground by any arbitral tribunal or court of competent jurisdiction, then the Corporation shall nevertheless indemnify the Indemnitee if the Indemnitee was or is made or is threatened to be made a party or is otherwise involved in any threatened, pending or completed action, suit, claim or proceeding (brought in the right of the Corporation or otherwise), whether civil, criminal, administrative or investigative and whether formal or informal, including appeals, by reason of its status as an Indemnitee (as such term is defined in the Certificate of Incorporation), or by reason of any action alleged to have been taken or omitted in such capacity, from and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by or on behalf of the Indemnitee in connection with such action, suit, claim or proceeding, including any appeals, to the fullest extent permitted by any applicable portion of this Agreement that shall not have been invalidated and to the fullest extent permitted by law.
Section 9. Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification provided for herein is finally settled by an arbitral tribunal or a court of competent jurisdiction to be unavailable to the Indemnitee in whole or in part, it is agreed that, in such event, the Corporation shall, to the fullest extent permitted by law, contribute to the payment of all of the Indemnitee’s loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by or on behalf of the Indemnitee in connection with any action, suit, claim or proceeding, including any appeals, in an amount that is just and equitable in the circumstances; provided, that, without limiting the generality of the foregoing, such contribution shall not be required where such settlement is due to any limitation on indemnification set forth in Section 5 or 6 hereof.
Section 10. Form and Delivery of Communications. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if delivered by hand, mailed by certified or registered mail with postage prepaid, mailed for overnight delivery by reputable overnight courier or sent by email or facsimile transmission, upon receipt when confirmed that such transmission has been received. Notice to the Corporation shall be sent to 600 Travis Street, Suite 7200, Houston, Texas 77002, Attention: General Counsel (or at such other address or means of contact that the Corporation shall notify the Indemnitee in writing from time to time).
Section 11. Non-exclusivity. The provisions for indemnification and advancement of expenses set forth in this Agreement shall not be deemed exclusive of any other rights which the Indemnitee may have under any provision of law, in any court in which a proceeding is brought, other agreements or otherwise, and the Indemnitee’s rights hereunder shall inure to the benefit of the heirs, successors, assigns, executors and administrators of the Indemnitee. No amendment or alteration of the Certificate of Incorporation or any agreement shall adversely affect the rights provided to the Indemnitee under this Agreement.
Section 12. Indemnitor of First Resort. The Corporation hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement and insurance provided by one or more persons with whom or which Indemnitee may be associated (including, without limitation, KKR & Co. L.P. and certain of its affiliates ) (any such person, a “Sponsor Entity”). The Corporation hereby acknowledges and agrees that (i) the Corporation shall be the indemnitor of first resort with respect to any matter that is the subject of the indemnity obligations provided hereunder, (ii) the Corporation shall be primarily liable for all indemnity obligations provided hereunder and any indemnification afforded to Indemnitee, whether created by applicable law, organizational or constituent documents, contract (including this Agreement) or otherwise, (iii) any obligation of any other persons with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity) to indemnify Indemnitee or advance expenses to or on behalf of Indemnitee in respect of any matter shall be secondary to the obligations of the Corporation hereunder, (iv) the Corporation shall be required to indemnify Indemnitee and advance expenses to Indemnitee hereunder to the fullest extent provided herein without regard to any rights Indemnitee may have against any other person with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity) or insurer of any such person and (v) the Corporation irrevocably waives, relinquishes and releases any other person with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity) from any claim of contribution, subrogation or any other recovery of any kind in respect of amounts paid by the Corporation hereunder. In the event any other Person with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity) or their insurers advances or extinguishes any liability or loss which is the subject of any indemnity obligation owed by the Corporation or payable under any Corporation insurance policy, the payor shall have a right of subrogation against the Corporation or its insurer or insurers for all amounts so paid which would otherwise be payable by the Corporation or its insurer or insurers under this Agreement. In no event will payment of an indemnity obligation by any other person with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity) or their insurers affect the obligations of the Corporation hereunder or shift primary liability for any indemnity obligation to any other person with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity). Any indemnification, insurance or advancement provided by any other person with whom or which Indemnitee may be associated (including, without limitation, any Sponsor Entity) with respect to any liability arising as a result of Indemnitee’s status as an Indemnitee (as such term is defined in the Certificate of Incorporation) or capacity as an officer or director of any person is specifically in excess over any indemnity obligation of the Corporation or any valid and collectible insurance (including but not limited to any malpractice insurance or professional errors and omissions insurance) provided by the Corporation under this Agreement.
Section 13. Interpretation of Agreement. It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to provide indemnification to the Indemnitee to the fullest extent now or hereafter permitted by law.
Section 14. Entire Agreement. This Agreement and the documents expressly referred to herein constitute the entire agreement between the parties hereto with respect to the matters covered hereby, and any other prior or contemporaneous oral or written understandings or agreements with respect to the matters covered hereby are expressly superseded by this Agreement.
Section 15. Modification and Waiver. No supplement, modification, waiver or amendment of this Agreement shall be binding unless executed in writing by each of the parties hereto. No failure or delay by any party in exercising any right, power or privilege hereunder (other than a failure or delay beyond a period of time specified herein) shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 16. Duration of Agreement; Successor and Assigns; Not an Employment Contract. This Agreement shall continue until and terminate upon the latest of: (i) ten (10) years after the date that Indemnitee shall have ceased to have served as a director, officer, employee or agent of the Company, (ii) one (1) year after the date of final termination of any proceeding, including any appeal, that could be brought against Indemnitee by reason of Indemnitee’s status as an Indemnitee (as such term is defined in the Certificate of Incorporation) or by reason of any action alleged to have been taken or omitted in such capacity, whether arising from alleged acts or omissions to act occurring on, before or after the date of this Agreement, or (iii) the expiration of all statutes of limitation applicable to possible claims, demands, actions, suits or proceedings to which Indemnitee may be subject arising out of Indemnitee’s status as an Indemnitee (as such term is defined in the Certificate of Incorporation). All of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors, assigns, heirs, executors, administrators and legal representatives. The Corporation shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of its business or assets, by written agreement in form and substance reasonably satisfactory to the Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation would be required to perform if no such succession had taken place.
Section 17. Arbitration.
(a)Any and all disputes regarding the Indemnitee’s entitlement to indemnification or advancement of expenses that cannot be settled amicably, including any ancillary claims of any party arising out of, relating to or in connection with the validity, negotiation, execution, interpretation, performance or non-performance of this Agreement (including without limitation the arbitrability of any issue under this Agreement and the validity, scope and enforceability of this arbitration provision) may, at the Indemnitee’s option, be finally settled by arbitration conducted by a single arbitrator in Houston, Texas in accordance with the then-existing Rules of
Arbitration of the International Chamber of Commerce. If the parties to the dispute fail to agree on the selection of an arbitrator within 30 days of the receipt of the request for arbitration, the International Chamber of Commerce shall make the appointment. The arbitrator shall be a lawyer and shall conduct the proceedings in the English language. Performance under this Agreement shall continue if reasonably possible during any arbitration proceedings. Except as required by law or as may be reasonably required in connection with ancillary judicial proceedings to compel arbitration, to obtain temporary or preliminary judicial relief in aid of arbitration, or to confirm or challenge an arbitration award, the arbitration proceedings, including any hearings, shall be confidential, and the parties shall not disclose any awards, any materials produced in the proceedings created for the purpose of the arbitration, or any documents produced by another party in the proceedings not otherwise in the public domain.
(b)Except with respect to any dispute regarding an Indemnitee’s entitlement to indemnification or advancement of expenses or related claims that may be settled in arbitration pursuant to Section 15(a), each party hereby (i) irrevocably agrees that any claims, suits, actions or proceedings arising out of or relating in any way to this Agreement (including any claims, suits or actions to interpret, apply or enforce this Section 17 or any judicial proceeding ancillary to an arbitration or contemplated arbitration arising out of or relating to or concerning this Agreement), shall be exclusively brought in the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction thereof, any other court in the State of Delaware with subject matter jurisdiction; (ii) irrevocably submits to the exclusive jurisdiction of such courts in connection with any such claim, suit, action or proceeding; (iii) irrevocably agrees not to, and waives any right to, assert in any such claim, suit, action or proceeding that (A) it is not personally subject to the jurisdiction of such courts or any other court to which proceedings in such courts may be appealed, (B) such claim, suit, action or proceeding is brought in an inconvenient forum, or (C) the venue of such claim, suit, action or proceeding is improper; (iv) expressly waives any requirement for the posting of a bond by a party bringing such claim, suit, action or proceeding; (v) consents to process being served in any such claim, suit, action or proceeding by mailing, certified mail, return receipt requested, a copy thereof to such party at the address in effect for notices hereunder, and agrees that such service shall constitute good and sufficient service of process and notice thereof; provided, that, nothing in clause (vi) hereof shall affect or limit any right to serve process in any other manner permitted by law; and (vii) irrevocably waives any and all right to trial by jury in any such claim, suit, action or proceeding.
(c)Notwithstanding any provision of this Agreement to the contrary, this Section 17 shall be construed to the maximum extent possible to comply with the laws of the State of Delaware, including the Delaware Uniform Arbitration Act (10 Del. C. § 5701 et seq.) (the “Delaware Arbitration Act”). If, nevertheless, it shall be determined by an arbitral tribunal or court of competent jurisdiction that any provision or wording of this Section 17, including any rules of the International Chamber of Commerce, shall be invalid or unenforceable under the Delaware Arbitration Act, or other applicable law, such invalidity shall not invalidate all of this Section 17. In that case, this Section 17 shall be construed so as to limit any term or provision so as to make it valid or enforceable within the requirements of the Delaware Arbitration Act or
other applicable law, and, in the event such term or provision cannot be so limited, this Section 17 shall be construed to omit such invalid or unenforceable provision.
Section 18. No Construction as Employment Agreement. Nothing contained herein shall be construed as giving the Indemnitee any right to be retained as a director of the Corporation or in the employ of the Corporation or its affiliates. For the avoidance of doubt, the indemnification and advancement of expenses provided under this Agreement shall continue as to the Indemnitee even though he or she may have ceased to be a director, officer, employee or agent of the Corporation.
Section 19. Governing Law. This Agreement and any and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles.
Section 20. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument, notwithstanding that both parties are not signatories to the original or same counterpart.
Section 21. Headings. The section and subsection headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 22. Effectiveness. This Agreement shall be effective, and the provisions hereof shall become operative as of the date first written above (the “Effective Time”).
[Rest of page intentionally left blank]
This Agreement has been duly executed and delivered to be effective as of the Effective Time.
| | | | | | | | | | | |
| INDEMNITEE: |
| | | |
| | | |
| /s/ Michael Duginski |
| Name: Michael Duginski |
| | | |
| | | |
| CRESCENT ENERGY COMPANY |
| | | |
| | | |
| By: | | /s/ David C. Rockecharlie |
| | | Name: David C. Rockecharlie |
| | | Title: Chief Executive Officer |
[Signature Page to Indemnification Agreement]
Crescent Stockholders Overwhelmingly Approve Merger with SilverBow Resources
HOUSTON – July 29, 2024 – Crescent Energy Company (NYSE: CRGY) (“Crescent” or the “Company”), today announced it received overwhelming stockholder approval for the issuance of Crescent Class A common stock in connection with its proposed merger (the “Merger”) with SilverBow Resources Inc. (NYSE: SBOW) (“SilverBow”) at a special meeting of stockholders today. The Merger is expected to close on July 30, 2024.
“This decisive vote underscores strong support for the complementary transaction, which creates one of the largest operators in the Eagle Ford with high-quality and long-life assets, an attractive, returns-driven financial framework and strong balance sheet, led by a management team and Board with significant operating and investing expertise,” commented David Rockecharlie, Chief Executive Officer and member of the Board of Directors of Crescent.
Based on the preliminary vote count from today’s special meeting, approximately 99.94% of the Crescent common stock voted were in favor of the Merger, resulting in approximately 87.94% of the outstanding Crescent common stock voting in favor of the Merger. Crescent will file the final vote results for its special meeting on a Form 8-K with the U.S. Securities and Exchange Commission.
About Crescent Energy
Crescent is a differentiated U.S. energy company committed to delivering value for shareholders through a disciplined growth through acquisition strategy and consistent return of capital. Crescent’s portfolio of low-decline, cash-flow oriented assets comprises both mid-cycle unconventional and conventional assets with a long reserve life and deep inventory of high-return development locations in the Eagle Ford and Uinta basins. Crescent’s leadership is an experienced team of investment, financial and industry professionals that combines proven investment and operating expertise. For more than a decade, Crescent and its predecessors have executed on a consistent strategy focused on cash flow, risk management and returns. For additional information, please visit www.crescentenergyco.com.
No Offer or Solicitation
This communication relates to the proposed business combination transaction (the “Transaction”) between Crescent and SilverBow. This communication is for informational purposes only and does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, in any jurisdiction, pursuant to the Transaction or otherwise, nor shall there be any sale, issuance, exchange or transfer of the securities referred to in this document in any jurisdiction in contravention of applicable law. 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, as amended.
Important Additional Information About the Transaction
In connection with the Transaction, Crescent filed with the SEC the Registration Statement to register the shares of Crescent Class A common stock to be issued in connection with the Transaction. The Registration Statement includes the definitive joint proxy statement of Crescent and SilverBow and a prospectus of Crescent (the “Proxy Statement/Prospectus”). The Proxy Statement/Prospectus was mailed to the stockholders of each of Crescent and SilverBow on June 28, 2024. Crescent and SilverBow may also file other documents with the SEC regarding the Transaction. This document is not a substitute for the Registration Statement and the Proxy Statement/Prospectus that have been filed with the SEC or any other documents that Crescent or SilverBow may file with the SEC or mail to stockholders of Crescent or SilverBow in connection with the Transaction.
INVESTORS AND SECURITY HOLDERS OF CRESCENT AND SILVERBOW ARE URGED TO READ THE REGISTRATION STATEMENT AND THE PROXY STATEMENT/PROSPECTUS REGARDING THE TRANSACTION AND ALL OTHER RELEVANT DOCUMENTS THAT ARE FILED OR WILL BE FILED WITH THE SEC, AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THESE DOCUMENTS, CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE TRANSACTION AND RELATED MATTERS.
Investors and security holders will be able to obtain free copies of the Registration Statement and the Proxy Statement/Prospectus and all other documents filed or that will be filed with the SEC by Crescent or SilverBow through the website maintained by the SEC at http://www.sec.gov. Copies of documents filed with the SEC by Crescent will be made available free of charge on Crescent’s website at https://ir.crescentenergyco.com, or by directing a request to Investor Relations, Crescent Energy Company, 600 Travis Street, Suite 7200, Houston, TX 77002, Tel. No. (713) 332-7001. Copies of documents filed with the SEC by SilverBow will be made available free of charge on SilverBow’s website at https://sbow.com under the “Investor Relations” tab or by directing a request to Investor Relations, SilverBow Resources, Inc., 920 Memorial City Way, Suite 850, Houston, TX 77024, Tel. No. (281) 874-2700. The information included on, or accessible through, Crescent’s or SilverBow’s website is not incorporated by reference into this document.
Forward-Looking Statements and Cautionary Statements
The foregoing contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. All statements, other than statements of historical fact, included in this communication that address activities, events or developments that Crescent or SilverBow expects, believes or anticipates will or may occur in the future are forward-looking statements. Words such as “estimate,” “project,” “predict,” “believe,” “expect,” “anticipate,” “potential,” “create,” “intend,” “could,” “may,” “foresee,” “plan,” “will,” “guidance,” “look,” “outlook,” “goal,” “future,” “assume,” “forecast,” “build,” “focus,” “work,” “continue” or the negative of such terms or other variations thereof and words and terms of similar substance used in connection with any discussion of future plans, actions, or events identify forward-looking statements. However, the absence of these words does not mean that the statements are not forward-looking. These forward-looking
statements include, but are not limited to, statements regarding the Transaction and the anticipated timing thereof. There are a number of risks and uncertainties that could cause actual results to differ materially from the forward-looking statements included in this communication. These include the expected timing and likelihood of completion of the Transaction, the ability to successfully integrate the businesses, the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement, the risk that the parties may not be able to satisfy the conditions to the Transaction in a timely manner or at all, risks related to disruption of management time from ongoing business operations due to the Transaction, the risk that any announcements relating to the Transaction could have adverse effects on the market price of Crescent’s common stock or SilverBow common stock, the risk that the Transaction and its announcement could have an adverse effect on the ability of Crescent and SilverBow to retain customers and retain and hire key personnel and maintain relationships with their suppliers and customers and on their operating results and businesses generally, the risk the pending Transaction could distract management of both entities and they will incur substantial costs, the risk that problems may arise in successfully integrating the businesses of the companies, which may result in the combined company not operating as effectively and efficiently as expected, the risk that the combined company may be unable to achieve synergies or it may take longer than expected to achieve those synergies and other important factors that could cause actual results to differ materially from those projected. All such factors are difficult to predict and are beyond Crescent’s or SilverBow’s control, including those detailed in Crescent’s annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K that are available on its website at https://ir.crescentenergyco.com and on the SEC’s website at http://www.sec.gov, and those detailed in SilverBow’s annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K that are available on SilverBow’s website at https://sbow.com and on the SEC’s website at http://www.sec.gov. All forward-looking statements are based on assumptions that Crescent or SilverBow believe to be reasonable but that may not prove to be accurate. Any forward-looking statement speaks only as of the date on which such statement is made, and Crescent and SilverBow undertake no obligation to correct or update any forward-looking statement, whether as a result of new information, future events or otherwise, except as required by applicable law. Readers are cautioned not to place undue reliance on these forward-looking statements that speak only as of the date hereof.
Contacts
Crescent Energy Investor Relations Contacts
IR@crescentenergyco.com
Crescent Energy Media Contacts
Media@crescentenergyco.com
Crescent Energy Closes Transformative Acquisition of SilverBow Resources
Company to report second quarter financial and operating results August 5th
Houston – July 30, 2024 – Crescent Energy Company (NYSE: CRGY) (“Crescent” or the “Company”), today announced the closing of its acquisition of SilverBow Resources, Inc. (“SilverBow”). The transaction was closed ahead of schedule, and Crescent plans to provide pro forma second half 2024 guidance reflecting the acquisition, as well as issue its second quarter 2024 financial and operating results, after market close on August 5, 2024. A conference call is planned for August 6, 2024.
The SilverBow integration is well underway with approximately $35 million of the previously announced $65 – $100 million in annual synergies captured to date through an improved cost of capital resulting in reduced interest expense.
Crescent Energy is a leading growth through acquisition company primed for sustainable value creation with a focused portfolio of high-quality and long-life assets, an attractive, returns-driven financial framework and strong balance sheet, led by a management team executing on the same strategy for more than a decade. The combined portfolio of assets positions the company for substantial free cash flow generation with balanced and attractive exposure to commodity price upside.
Crescent Energy Offers a Compelling Value Proposition
–Combined company is the second largest operator in the Eagle Ford
–Creates leading mid-cap E&P with scaled, balanced portfolio of high-quality assets
–Substantial free cash flow generation with disciplined capital allocation framework
–Well-positioned for further growth through accretive, returns-driven M&A
“Today is an exciting day for Crescent. We are well positioned to create value, and I am grateful for the trust from our original Crescent and new SilverBow shareholders, each of whom voted with an overwhelming majority to approve our merger and to take equity consideration and participate in the go-forward company,” said Crescent CEO David Rockecharlie. “Through disciplined investing and operations, we have delivered profitable growth, tripling the size of our business over the last four years. We have created a premier growth through acquisition platform by executing on our cash flow and returns-oriented strategy. Today, we are focused on rapidly integrating our new assets and personnel and continuing to deliver on the significant synergies we’ve identified to strengthen returns. We are highly confident in our ability to execute and demonstrate Crescent’s value proposition as a leading mid-cap company.”
Transaction Details
Pursuant to the consideration election mechanics of the transaction, SilverBow shareholders elected to receive in aggregate approximately $358 million in total cash consideration as part of the transaction. Crescent issued approximately 52 million shares of Class A common stock to fund the non-cash portion of the consideration. As of closing, former SilverBow shareholders own approximately 23% of the combined company on a fully diluted basis.
| | | | | | | | | | | |
(Shares in MM) | CRGY Status Quo | SBOW Acquisition | CRGY Pro Forma |
Class A (Public Shares) | 112 | 52 | 164 |
Class B (Private Shares) | 66 | -- | 66 |
Total Shares Outstanding (Public and Private Shares) | 177 | 52 | 230 |
Governance Update
Pursuant to the merger agreement, Marc Rowland and Michael Duginski have been appointed to Crescent’s Board of Directors effective as of closing of the acquisition. The additions expand Crescent’s board to a total of eleven directors, of which nine are considered independent directors. The new directors will complement Crescent’s experienced and engaged board. Further detail on the additional directors can be found on the Crescent website (www.crescentenergyco.com).
Conference Call Information
Crescent plans to host a conference call to discuss its second quarter financial and operating results, as well as its pro forma outlook for the remainder of 2024, at 10 a.m. CT on Tuesday, August 6, 2024. Complete details are below. A webcast replay will be available on the website following the call.
Date: August 6, 2024
Time: 10 a.m. CT (11 a.m. ET)
Conference Dial-In: 877-407-0989 / 201-389-0921 (Domestic / International)
Webcast Link: www.crescentenergyco.com
About Crescent Energy Company
Crescent is a differentiated U.S. energy company committed to delivering value for shareholders through a disciplined growth through acquisition strategy and consistent return of capital. Crescent’s portfolio of low-decline, cash-flow oriented assets comprises both mid-cycle unconventional and conventional assets with a long reserve life and deep inventory of high-return development locations in the Eagle Ford and Uinta basins. Crescent’s leadership is an experienced team of investment, financial and industry professionals that combines proven investment and operating expertise. For more than a decade, Crescent and its predecessors have executed on a consistent strategy focused on cash flow, risk management and returns. For additional information, please visit www.crescentenergyco.com.
Cautionary Statement Regarding Forward-Looking Statements
This communication contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, and Section 21E of the Securities Exchange Act of 1934, as amended. These statements are based on current expectations. The words and phrases “should”, “could”, “may”, “will”, “believe”, “plan”, “intend”, “expect”, “potential”, “possible”, “anticipate”, “estimate”, “forecast”, “view”, “efforts”, “goal” and similar expressions identify forward-looking statements and express the Company’s expectations about future events. All statements, other than statements of historical facts, included in this communication that
address activities, events or developments that the Company expects, believes or anticipates will or may occur in the future are forward-looking statements. Such statements are subject to a number of assumptions, risks and uncertainties, many of which are beyond the Company’s control. Such risks and uncertainties include, but are not limited to, weather, political, economic and market conditions, including a decline in the price and market demand for natural gas, natural gas liquids and crude oil, uncertainties inherent in estimating natural gas and oil reserves and in projecting future rates of production; the anticipated tax treatment, unforeseen liabilities, future capital expenditures, revenues, expenses, earnings, synergies, economic performance, indebtedness, financial condition, losses, future prospects, business and management strategies for the management, expansion and growth of the combined company’s operations; the ability of Crescent to integrate the business successfully and to achieve anticipated synergies and value creation; the risk that cost savings, synergies and growth may take longer to realize than expected; potential litigation relating to the transaction; the risk that disruptions from the transaction will harm Crescent’s business, including current plans and operations and that management’s time and attention will be diverted on transaction-related issues; potential adverse reactions or changes to business relationships, including with employees, suppliers, customers, competitors or credit rating agencies, resulting from the completion of the transaction; our hedging strategy and results; federal and state regulations and laws; upcoming elections and associated political volatility; the severity and duration of public health crises; actions by the Organization of the Petroleum Exporting Countries (“OPEC”) and non-OPEC oil-producing countries; the impact of the armed conflict in Ukraine; continued hostilities in the Middle East, including the Israel-Hamas conflict and rising tensions with Iran; the impact of disruptions in the capital markets; the timing and success of business development efforts, including acquisition and disposition opportunities; our reliance on our external manager, sustained cost inflation, elevated interest rates and central bank policy changes associated therewith and other uncertainties. Consequently, actual future results could differ materially from expectations. The Company assumes no duty to update or revise its respective forward-looking statements based on new information, future events or otherwise.
Crescent Energy Investor Relations Contacts
IR@crescentenergyco.com
Crescent Energy Media Contacts
Media@crescentenergyco.com
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