Execution Version SECOND AMENDMENT TO CREDIT AGREEMENT AMONG NIGHTHAWK PRODUCTION LLC, AS BORROWER, NIGHTHAWK ENERGY PLC, AS PARENT, COMMONWEALTH BANK OF AUSTRALIA, AS ADMINISTRATIVE AGENT, TECHNICAL BANK AND DOCUMENTATION AGENT, AND THE LENDERS SIGNATORY HERETO SOLE LEAD ARRANGER AND SOLE BOOKRUNNER COMMONWEALTH BANK OF AUSTRALIA
SECOND AMENDMENT TO CREDIT AGREEMENT This SECOND AMENDMENT TO CREDIT AGREEMENT (this Second Amendment ) dated as of November 2, 2015, is among Nighthawk Production LLC, a Delaware limited liability company (the Borrower ); Nighthawk Energy plc, a public limited company organized and existing under the laws of England and Wales (the Parent ); and Commonwealth Bank of Australia, as administrative agent for the Lenders (in such capacity, together with its successors, the Administrative Agent ); and the Lenders signatory hereto. R E C I T A L S A. The Borrower, the Parent, the Administrative Agent and the Lenders are parties to that certain Credit Agreement dated as of September 26, 2014 (as amended by the First Amendment to Credit Agreement dated as of April 16, 2015, the Credit Agreement ), pursuant to which the Lenders have made certain credit available to and on behalf of the Borrower. B. The Borrower, the Parent, the Administrative Agent and the Lenders 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 Second Amendment, shall have the meaning ascribed such term in the Credit Agreement. Unless otherwise indicated, all section references in this Second Amendment refer to sections of the Credit Agreement. Section 2. Amendment to Credit Agreement. 2.1 Amendments to Section 1.02. (a) The definition of Change in Control is hereby amended by amending and restating clause (i) of such definition in its entirety to read as follows: (i) Chuck Wilson shall cease to be the Chief Operating Officer of the Borrower; or (j) Richard McCullough shall cease to be the Executive Chairman or equivalent role of the Parent; or (k) Kurtis Hooley is not hired as the Chief Financial Officer of the Borrower and the Parent on or before November 30, 2015 or after such employment date, Kurtis Hooley shall cease to be the Chief Financial Officer of the Borrower and the Parent. (b) The following definitions are hereby added where alphabetically appropriate to read as follows: Page 1
March 2016 Redetermination has the meaning assigned to such term in Section 2.07(b). Liquidity means, as of any date of determination, the aggregate amount of Unrestricted Cash of the Borrower and its Subsidiaries. Second Amendment means that certain Second Amendment to Credit Agreement, dated as of November 2, 2015, among the Borrower, the Parent, the Administrative Agent and the Lenders party thereto. Second Amendment Effective Date has the meaning ascribed to such term in the Second Amendment. September 2016 Redetermination has the meaning assigned to such term in Section 2.07(b). Unrestricted Cash means cash of the Borrower or any of its Subsidiaries that would not appear as restricted on a consolidated balance sheet of the Borrower or any of its Subsidiaries. (c) The definition of Management Group is hereby deleted in its entirety. 2.2 Amendment to Section 2.07(b). The proviso in Section 2.07(b) is hereby amended and restated in its entirety to read as follows: ; provided that, Scheduled Redeterminations shall also occur on March 1, 2015 (the March 2015 Redetermination ), on or about September 1, 2015 (the September 2015 Redetermination ), on or about March 1, 2016 (the March 2016 Redetermination ) and on or about September 1, 2016 (the September 2016 Redetermination ; together with the March 2015 Redetermination, the September 2015 Redetermination and the March 2016 Redetermination, the Additional Quarterly Redeterminations ). 2.3 Amendment to Section 2.07(c)(ii)(A). The parenthetical in Section 2.07(c)(ii)(A) is hereby amended and restated in its entirety to read as follows: (or in the case of the March 2015 Redetermination, the September 2015 Redetermination, the March 2016 Redetermination and the September 2016 Redetermination, on or about February 15, 2015, August 15, 2015, February 15, 2016 and August 15, 2016, respectively) 2.4 Amendment to Section 2.07(d)(i). The parenthetical in Section 2.07(d)(i) is hereby amended and restated in its entirety to read as follows: (or in the case of the March 2015 Redetermination, the September 2015 Redetermination, the March 2016 Redetermination and the September 2016 Redetermination, on or about March 1, 2015, September 1, 2015, March 1, 2016 and September 1, 2016, respectively) Page 2
2.5 Amendment to Section 3.04(c)(ii). The second sentence of Section 3.04(c)(ii) is hereby amended and restated in its entirety to read as follows: The Borrower shall be obligated to make such prepayment and/or cash collateralize such excess within ninety (90) days following the date it receives the New Borrowing Base Notice in accordance with Section 2.07(d) or the date the adjustment occurs pursuant to Section 8.13(c), in three (3) equal consecutive monthly installments, the first installment being due and payable on the date that is 30 days following the date the Borrower receives such New Borrowing Base Notice or the date such adjustment occurs, as applicable, and each subsequent installment being due and payable on the same day in each of the subsequent calendar months; provided that all payments required to be made pursuant to this Section 3.04(c)(ii) must be made on or prior to the Termination Date. 2.6 Amendment to Section 8.01. Section 8.01 is hereby amended by adding a new Section 8.01(u) to the end of such Section 8.01 to read as follows: (u) Liquidity Certificate. As soon as available, but in any event not later than 25 days after the end of each fiscal month of the Borrower, a certificate of a Financial Officer of the Borrower, setting forth a detailed calculation demonstrating compliance with Section 9.01(e), which shall also attach true and correct copies of bank statements of the Borrower and its Subsidiaries supporting such calculation. 2.7 Amendment to Section 8.12(a). The first sentence of Section 8.12(a) is hereby amended and restated in its entirety to read as follows: On or before May 1 st and November 1 st of each year (and on or before February 1, 2015, August 1, 2015, February 1, 2016 and August 1, 2016 in connection with the Additional Quarterly Redeterminations), commencing November 1, 2014, the Borrower shall furnish to the Administrative Agent, the Technical Bank and the Lenders a Reserve Report evaluating the Oil and Gas Properties of the Borrower and its Subsidiaries as of the immediately preceding September 30th and March 31st, respectively (and as of December 31, 2014 with respect to the March 2015 Redetermination, as of June 30, 2015 with respect to the September 2015 Redetermination, as of December 31, 2015 with respect to the March 2016 Redetermination and as of June 30, 2016 with respect to the September 2016 Redetermination). 2.8 Amendment to Section 9.01. Section 9.01 is hereby amended by adding a new Section 9.01(e) to the end of such Section 9.01 to read as follows: (e) Minimum Liquidity. The Borrower will not, at any time during the period from and including the Second Amendment Effective Date through and including December 30, 2015, permit Liquidity to be less than $5,000,000. Page 3
Section 3. Borrowing Base Decrease. For the period from and including the Second Amendment Effective Date (as defined below) to but excluding the next Redetermination Date, the Borrowing Base shall be equal to $27,000,000. Notwithstanding the foregoing, the Borrowing Base may be subject to further adjustments from time to time pursuant to Section 2.07(e), Section 2.07(f), Section 8.13(c) or Section 9.12(d). This Borrowing Base decrease shall constitute the September 2015 Redetermination. Section 4. Conditions Precedent. This Second Amendment shall not become effective until the earliest date (such date, the Second Amendment Effective Date ) on which each of the following conditions is satisfied (or waived in accordance with Section 12.02 of the Credit Agreement): 4.1 The Administrative Agent shall have received from the Lenders, the Borrower and the Parent counterparts (in such number as may be requested by the Administrative Agent) of this Second Amendment signed on behalf of such Persons. 4.2 No Default shall have occurred and be continuing as of the Second Amendment Effective Date. 4.3 The Administrative Agent shall have received such other documents as the Administrative Agent or its special counsel may reasonably require. The Administrative Agent is hereby authorized and directed to declare this Second Amendment to be effective (and the Second Amendment Effective Date shall occur) 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 12.02 of the Credit Agreement. Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes. Section 5. Limited Waiver with respect to Section 9.01(d)(ii). The Borrower has informed the Administrative Agent and the Lenders that the Borrower does not expect that it will be able to maintain unused Commitments under the Credit Agreement in an amount equal to the greater of (a) $5,000,000 and (b) 10% of the Borrowing Base then in effect, in violation of Section 9.01(d)(ii) (such minimum unused Commitment requirement, the Minimum Commitment Requirement ). The Borrower has requested that the Lenders waive, and the Lenders do hereby waive, the Minimum Commitment Requirement from and including the Second Amendment Effective Date to but excluding December 31, 2015. Except as expressly waived herein, all covenants, obligations and agreements of the Loan Parties contained in the Credit Agreement and the other Loan Documents shall remain in full force and effect in accordance with their terms. Without limitation of the foregoing, the foregoing waiver is hereby granted to the extent and only to the extent specifically stated herein and for no other purpose and shall not be deemed to (x) be a consent or agreement to, or waiver or modification of, or amendment to, any other term or condition of the Credit Agreement, any other Loan Document or any of the documents referred to therein, (y) except as expressly set forth herein, prejudice any right or rights which the Administrative Agent or the Lenders may now have or may have in the future under or in connection with the Credit Agreement, any other Loan Document or any of the documents referred to therein, or (z) constitute any course of dealing or other basis for altering Page 4
any obligation of any Loan Party or any right, privilege or remedy of the Administrative Agent or the Lenders under the Credit Agreement, the other Loan Documents, or any other contract or instrument. Granting the waiver set forth herein does not and should not be construed to be an assurance or promise that consents or waivers will be granted in the future, whether for the matters herein stated or on other unrelated matters. Section 6. Miscellaneous. 6.1 Confirmation. The provisions of the Credit Agreement, as amended by this Second Amendment, shall remain in full force and effect following the Second Amendment Effective Date. 6.2 Ratification and Affirmation; Representations and Warranties. Each of the Borrower and the Parent hereby (a) acknowledges the terms of this Second Amendment; (b) ratifies and affirms its obligations under, and acknowledges its continued liability under, each Loan Document and agrees that each Loan Document remains in full force and effect as expressly amended hereby; (c) agrees that from and after the Second Amendment Effective Date each reference to the Credit Agreement the other Loan Documents shall be deemed to be a reference to the Credit Agreement, as amended by this Second Amendment; and (d) represents and warrants to the Lenders that as of the date hereof, after giving effect to the terms of this Second Amendment: (i) all of the representations and warranties contained in each Loan Document are true and correct, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, such representations and warranties shall continue to be true and correct as of such specified earlier date, (ii) no Default or Event of Default has occurred and is continuing and (iii) except as expressly disclosed to the Administrative Agent in writing, no event, development or circumstance has occurred or exists that has resulted in, or could reasonably be expected to have, a Material Adverse Effect. 6.3 Counterparts. This Second Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Second Amendment by telecopy, facsimile or email transmission shall be effective as delivery of a manually executed counterpart of this Second Amendment. 6.4 No Oral Agreement. This Second Amendment, the Credit Agreement and the other Loan Documents executed in connection herewith and therewith represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or unwritten oral agreements of the parties. There are no subsequent oral agreements between the parties. 6.5 GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 6.6 Payment of Expenses. In accordance with Section 12.03 of the Credit Agreement, the Borrower agrees to pay or reimburse the Administrative Agent for all of its reasonable and documented out-of-pocket costs and expenses incurred in connection with this Second Page 5
Amendment, any other documents prepared in connection herewith and the transactions contemplated hereby, including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent. 6.7 Severability. Any provision of this Second Amendment which 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. 6.8 Successors and Assigns. This Second Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. [Signatures begin next page.] Page 6