This LIMITED WAIVER (hereinafter referred to as this “Agreement”), dated as of May 15, 2020 (the “Execution Date”), but effective as of the Effective Date (hereinafter defined), is made by and among SUNDANCE ENERGY INC., a Delaware corporation (“Parent”), SUNDANCE ENERGY, INC., a Colorado corporation (the “Borrower”), the other LOAN PARTIES hereto, the LENDERS party hereto, and MORGAN STANLEY CAPITAL ADMINISTRATORS INC., as administrative agent (in such capacity, the “Administrative Agent”). Unless the context otherwise requires or unless otherwise expressly defined herein, capitalized terms used but not defined in this Agreement have the meanings assigned to such terms in the Credit Agreement (as defined below).
WHEREAS, the Parent, the Borrower, the Administrative Agent and the lenders party thereto (the “Lenders”) are parties to that certain Amended & Restated Term Loan Credit Agreement, dated as of April 23, 2018 (as the same may have been amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”);
WHEREAS, the Borrower has advised the Administrative Agent and the Lenders that (a) Deloitte & Touche LLP may include a going concern or like qualification or exception in its audit opinion with respect to the financial statements of the Parent and its Subsidiaries for the fiscal year ended December 31, 2019 (the “2019 Audited Financial Statements”) required to be delivered pursuant to Section 8.01(a) of the Credit Agreement as a result of the Borrower’s anticipated failure to comply with Section 9.01(b) of the Credit Agreement during the 2020 calendar year (the “Going Concern Qualification”) and (b) the Borrower will not deliver (i) the 2019 Audited Financial Statements required by Section 8.01(a) of the Credit Agreement, (ii) the certificate of the Financial Officer of the Parent as required by Section 8.01(c) of the Credit Agreement, (iii) the certificates of insurance as required by Section 8.01(e) of the Credit Agreement (iv) the production report and lease operating statements for the previous twelve (12) months as required by Section 8.01(m) of the Credit Agreement, and (v) the operating budget for the immediately succeeding twelve (12) months as required by Section 8.01(o) of the Credit Agreement (the foregoing, collectively, the “2019 Financial Deliverable Package”) to the Administrative Agent and each Lender within (A) with respect to the foregoing clauses (i) through (iv), ninety (90) days and (B) with respect to the foregoing clause (v), 120 days after the end of the fiscal year ended December 31, 2019 (the foregoing clauses (A) and (B), as applicable, the “Applicable 2019 Financial Statements Delivery Deadline”);
WHEREAS, the delivery of (a) the 2019 Audited Financial Statements accompanied by an auditor’s report containing the Going Concern Qualification and (b) the 2019 Financial Deliverable Package after the Applicable 2019 Financial Statements Delivery Deadline, in each case, would violate Sections 8.01(a), (c), (e), (m) and (o) of the Credit Agreement and would result in a Default or Event of Default under Section 10.01(e) of the Credit Agreement (any such Defaults or Events of Default being, collectively, the “Specified Defaults”);
WHEREAS, the Loan Parties have requested that the Lenders waive the Specified Defaults arising from such breaches of the terms of Sections 8.01(a), (c), (e), (m) and (o) of the Credit Agreement;
WHEREAS, pursuant to Section 12.02(b) of the Credit Agreement, the Borrower, the other Loan Parties and the Required Lenders may waive, or consent to the Administrative Agent’s waiver of, certain provisions of the Credit Agreement and other Loan Documents pursuant to an agreement in writing; and
WHEREAS, pursuant to Section 12.02(b) of the Credit Agreement, the Borrower, the other Loan Parties and Lenders comprising the Required Lenders are willing to waive the Specified Defaults with respect