FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.5
FOURTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Fourth Amendment to Second Amended and Restated Credit Agreement (this “Fourth
Amendment”), dated as of July 23, 2010 (the “Fourth Amendment Effective Date”), is by
and among DELTA PETROLEUM CORPORATION, a Delaware corporation (“Borrower”), JPMORGAN CHASE
BANK, N.A., a national banking association, as Administrative Agent (“Administrative
Agent”), and each of the financial institutions a party hereto as Banks (hereinafter
collectively referred to as “Executing Banks,” and individually, an “Executing
Bank”).
W I T N E S S E T H:
WHEREAS, Borrower, Administrative Agent and the financial institutions party thereto as Banks
are parties to that certain Second Amended and Restated Credit Agreement dated as of November 3,
2008 (as amended to date, the “Credit Agreement”) (capitalized terms used and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit Agreement after giving
effect to the amendments contemplated by Section 1 of this Fourth Amendment); and
WHEREAS, Borrower has advised Administrative Agent and Banks that it intends to enter into a
purchase and sale agreement (the “Wapiti Sale Agreement”) with Wapiti Oil & Gas, L.L.C.
(“Wapiti”), pursuant to which Borrower would sell certain Mineral Interests described on
Exhibit A hereto and certain tangible and intangible personal property related to such
Mineral Interests, including, without limitation, seismic data related thereto (the “Specified
Assets”), to Wapiti (such sale, the “Wapiti Sale”); and
WHEREAS, Borrower has advised Administrative Agent and Banks that the Wapiti Sale is
prohibited by Section 9.5 of the Credit Agreement; and
WHEREAS, Borrower has requested that Banks amend certain terms of the Credit Agreement,
including Section 9.5 of the Credit Agreement, to allow for the Wapiti Sale, as more particularly
described herein; and
WHEREAS, subject to and upon the terms and conditions set forth herein, Executing Banks have
agreed to Borrower’s requests; and
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, Borrower, Administrative Agent and Executing Banks hereby agree
as follows:
SECTION 1. Fourth Amendment Effective Date Amendments. In reliance on the
representations, warranties, covenants and agreements contained in this Fourth Amendment, and
subject to the satisfaction of each condition precedent set forth in Section 4 hereof, the
Credit Agreement is hereby amended effective as of the Fourth Amendment Effective Date in the
manner provided in this Section 1.
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1.1 Amendments to Credit Agreement Definition. The following definition contained in
Section 1.1 of the Credit Agreement shall be amended to read in full as follows:
“Loan Papers” means this Agreement, the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Notes, each Facility
Guaranty which may now or hereafter be executed, each Borrower Pledge Agreement
which may now or hereafter be executed, each Subsidiary Pledge Agreement which may
now or hereafter be executed, the Existing Mortgages (including all amendments
thereto), all Mortgages now or at any time hereafter delivered pursuant to
Section 5.1, all Letters of Credit, the Certificate of Effectiveness and all
other certificates, documents or instruments delivered in connection with this
Agreement, as the foregoing may be amended from time to time.
1.2 Additional Credit Agreement Definitions. Section 1.1 of the Credit Agreement
shall be amended to add the following definitions to such Section in appropriate alphabetical
order:
“Fourth Amendment” means that certain Fourth Amendment to Second
Amended and Restated Credit Agreement dated as of July 23, 2010, among Borrower,
Administrative Agent and Banks party thereto.
“Specified Assets” has the meaning given such term in the Fourth
Amendment.
“Wapiti Sale” has the meaning given such term in the Fourth Amendment.
“Wapiti Sale Agreement” has the meaning given such term in the Fourth
Amendment.
1.3 Mandatory Prepayments. A new Section 2.6(d) is hereby added to the Credit
Agreement and shall read in full as follows:
(d) In addition to the foregoing, in the event and on each occasion that any
Net Proceeds are to be received by or on behalf of any Credit Party in respect of
the Wapiti Sale, Borrower shall cause, and shall cause each Credit Party to cause,
such Net Proceeds to be deposited directly with the Administrative Agent and applied
to prepay the Obligations consisting of the outstanding balance of the Revolving
Loan in an aggregate amount equal to 100% of such Net Proceeds.
1.4 Cooperation with Financial Advisor. A new Section 8.16 is hereby added to the
Credit Agreement and shall read in full as follows:
Section 8.16 Cooperation with Financial Advisor. The Credit Parties
shall, at the sole expense of the Credit Parties, fully cooperate, and shall cause
Evercore Partners and any other financial advisor of the Credit Parties, to fully
cooperate, with any financial consulting firm in performing its work as financial
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advisor to Administrative Agent and its counsel, which shall include, without
limitation, an analysis of the Credit Parties’ operations and restructuring
alternatives; provided, that, so long as no Event of Default exists,
Administrative Agent agrees that it and its counsel shall not engage a financial
advisor in connection with the Loan Papers prior to August 16, 2010 and shall not
engage a financial advisor in connection with the Loan Papers if the initial closing
of the Wapiti Sale is consummated on or prior to August 16, 2010 in compliance with
the terms of Section 9.5(c). Subject to the terms and provisions of
Section 14.17, the Credit Parties shall provide any financial advisor to
Administrative Agent and its counsel, and shall cause Evercore Partners and any
other financial advisor of the Credit Parties to provide any financial advisor to
Administrative Agent and its counsel, with any and all information or updates
requested by such financial advisor concerning the Credit Parties’ activities,
operations and financial condition.
1.5 Asset Dispositions. Section 9.5 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
Section 9.5 Asset Dispositions. Borrower will not, nor will
Borrower permit any other Credit Party to, sell, lease, transfer, abandon or
otherwise dispose of any asset other than:
(a) | the sale in the ordinary course of business of
Hydrocarbons produced from Borrower’s Mineral Interests; |
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(b) | the sale, lease, transfer, abandonment, exchange or
other disposition of other assets; provided, that, no
sale, lease, transfer, abandonment, exchange or other disposition by
Borrower or any of its Subsidiaries of Borrowing Base Properties with
an aggregate value (which, in the case of assets consisting of Mineral
Interests, shall be the Recognized Value of such Mineral Interests and,
in the case of any exchange, shall be the net value or net Recognized
Value realized or resulting from such exchange) in any period between
Scheduled Redeterminations (for purposes of this clause (b) the
Closing Date will be deemed to be a Scheduled Redetermination) in
excess of five percent (5%) of the Borrowing Base then in effect shall
be permitted pursuant to this clause (b); and |
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(c) | the sale of the Specified Assets and Piper pursuant to
the Wapiti Sale; provided, that, such sale shall only
be permitted under this clause (c) to the extent that the
following conditions are each satisfied: |
(i) | the initial closing of the Wapiti Sale
is consummated on or prior to August 16, 2010; |
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(ii) | 100% of the consideration received in
respect of the Wapiti Sale shall be in immediately available
cash; |
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(iii) | all Net Proceeds received by any
Credit Party in connection with the Wapiti Sale are applied
immediately upon receipt as a prepayment of the Obligations
consisting of the outstanding balance of the Revolving Loan in
accordance with Section 2.6(d) hereof, and after giving
effect to the prepayment made upon consummation of the initial
closing of the Wapiti Sale the outstanding balance of the
Revolving Loan shall not exceed $25,000,000; |
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(iv) | the Wapiti Sale Agreement, together
with any exhibits and disclosure schedules delivered pursuant
thereto and all other material agreements relating to the
Wapiti Sale, shall be substantially consistent with the terms
and conditions set forth in the term sheet attached as “Exhibit
B” to the Fourth Amendment; |
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(v) | Administrative Agent shall have
received true and complete copies of (1) the executed Wapiti
Sale Agreement together with all exhibits and schedules thereto
at least two (2) Business Days prior to the date on which the
initial closing of the Wapiti Sale is consummated and (2) each
other material agreement relating to the Wapiti Sale within a
reasonable period of time prior to the applicable closing date
in order for Administrative Agent to review such agreements, in
each case which agreements shall be certified by Borrower as
being true, correct and complete; |
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(vi) | the Wapiti Sale is consummated in
accordance with the terms of the Wapiti Sale Agreement; |
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(vii) | Piper does not own any assets other
than the Mineral Interests identified on Part II of “Exhibit A”
to the Fourth Amendment and certain tangible and intangible
personal property related to such Mineral Interests; |
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(viii) | no Default or Event of Default exists immediately prior to or
after giving effect to the consummation of each closing of the
Wapiti Sale; |
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(ix) | the Borrowing Base and Conforming
Borrowing Base are automatically reduced to $35,000,000
pursuant to the redetermination set forth in Section 3 of the
Fourth Amendment; and |
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(x) | no Borrowing Base Deficiency exists
immediately prior to the consummation of each closing of the
Wapiti Sale or after giving effect thereto, the mandatory
prepayment required by Section 2.6(d) hereof and the
automatic reduction of the Borrowing Base and Conforming
Borrowing Base to $35,000,000 pursuant to the redetermination
set forth in Section 3 of the Fourth Amendment. |
Except for the sale of Piper pursuant the terms of Section 9.5(c)
above, in no event will Borrower sell, transfer or dispose of any Equity in
any Restricted Subsidiary nor will any Credit Party (other than Borrower)
issue or sell any Equity or any option, warrant or other right to acquire
such Equity or security convertible into such Equity to any Person other
than a Credit Party which is directly or indirectly wholly-owned by a Credit
Party. For the avoidance of doubt, Borrower shall not, nor will Borrower
permit any other Credit Party to, sell, lease, transfer, abandon or
otherwise dispose of the Midway Loop Assets or the Xxxxxx Assets without the
prior written consent of the Majority Banks (other than a sale of such
assets pursuant to the Wapiti Sale and in accordance with the terms of
Section 9.5(c) above).
1.6 Amendment to Capital Expenditures Covenant. Section 10.3 of the Credit Agreement
shall be amended to read in full as follows:
Section 10.3 Capital Expenditures. Borrower will not, nor will it
permit any other Credit Party to, incur or make any Capital Expenditures in an
amount exceeding (a) $18,000,000 in the aggregate for all Credit Parties during the
Fiscal Quarter ending September 30, 2010, (b) $10,000,000 in the aggregate for all
Credit Parties during the Fiscal Quarter ending December 31, 2010, and (c)
$2,000,000 in the aggregate for all Credit Parties during the period commencing on
January 1, 2011 and ending on the Termination Date; provided, that
if the amount of Capital Expenditures permitted to be made in clause (a) or
(b) above exceeds the amount actually made in such Fiscal Quarter, such
excess may be carried forward to the following Fiscal Quarter or specified period
under clause (c) above, as applicable.
SECTION 2. Wapiti Sale Effective Date Amendments. In reliance on the representations,
warranties, covenants and agreements contained in this Fourth Amendment, and subject to the
satisfaction of each condition precedent to the sale of the Specified Assets and Piper as set forth
in Section 9.5(c) of the Credit Agreement (after giving effect to the amendments
contemplated by Section 1 of this Fourth Amendment) (the date on which such conditions are first
satisfied being referred to herein as the “Wapiti Sale Effective Date”), the Credit
Agreement is hereby amended effective as of the Wapiti Sale Effective Date in the manner provided
in this Section 2.
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2.1 Amendments to Credit Agreement Definition. The following definition contained in
Section 1.1 of the Credit Agreement shall be amended to read in full as follows:
“Redetermination Date” means (a) with respect to any Scheduled
Redetermination, each March 1 and September 1, commencing with the first such date
to occur in the calendar year 2011, and (b) with respect to any Special
Redetermination, the first day of the first month which is not less than twenty (20)
Domestic Business Days following the date of a request for a Special
Redetermination; provided, that, the first Redetermination Date with
respect to any Special Redetermination shall not occur prior to January 15, 2011.
The Closing Date shall also constitute a Redetermination Date for purposes of this
Agreement.
2.2 Additional Credit Agreement Definitions. Section 1.1 of the Credit Agreement
shall be amended to add the following definitions to such Section in appropriate alphabetical
order:
“Budget” means the monthly budget attached as “Exhibit C” to the Fourth
Amendment, which budget sets forth in reasonable detail the projected cash
disbursements, including without limitation, Capital Expenditures, and revenues of
each Credit Party for the period commencing on June 30, 2010 and ending on December
31, 2010.
2.3 Budget. A new Section 8.17 is hereby added to the Credit Agreement and shall read
in full as follows:
Section 8.17 Budget. The Credit Parties shall comply, perform and
operate strictly in accordance with the Budget with no more than a 10% variance on a
monthly basis from the total cash disbursements for “G&A” expenses (other than
“Severance/Bonus” expenses as outlined in the Budget) set forth in the Budget for
such monthly period. The Credit Parties shall use any cash, funds or other property
of the Borrower and the other Credit Parties solely for the purpose of funding its
business operations consistent with the Budget. Borrower shall deliver, or shall
cause to be delivered, to each Bank within five (5) Business Days following the
delivery of each set of financial statements referred to in
Section 8.1(b)(ii), as of the month then ended, a reconciliation of actual
performance compared to Budget, delivered in a format acceptable to the
Administrative Agent.
2.4 Additional Financial Covenant. A new Section 10.5 is hereby added to the Credit
Agreement and shall read in full as follows:
Section 10.5 Maximum Cash on Hand. If at any time Borrower or any other Credit
Party maintains cash and cash equivalents in the aggregate for all Credit Parties in excess
of $10,000,000 (excluding cash pledged as of the date of the Fourth Amendment and required
to secure letters of credit existing as of the date of the Fourth Amendment, including the
Acquisition Letters of Credit), Borrower will, and will cause such Credit
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Party to, repay any Obligations consisting of the outstanding balance of the Revolving
Loan in an amount equal to or greater than such excess within three (3) Business Days.
2.5 Amendment to Events of Default. Clause (c) of Section 11.1 of the Credit
Agreement shall be amended to read in full as follows:
(c) Borrower shall fail to observe or perform any covenant or agreement
contained in Section 4.5, Section 8.1, Section 8.2,
Section 8.3, Section 8.6, Section 8.7, Section 8.14,
Section 8.17, Article IX or Article X of this Agreement;
2.6 Amendment to Exhibit E. Exhibit E attached to the Credit Agreement shall
be amended and replaced in its entirety with Exhibit E attached to this Fourth Amendment.
SECTION 3.
Borrowing Base Redetermination. Borrower and Required Banks agree that the
Borrowing Base and the Conforming Borrowing Base shall each be redetermined and automatically
reduced to be $35,000,000 on and effective as of the date on which the initial closing of the
Wapiti Sale is consummated. Notwithstanding anything to the contrary contained in the Credit
Agreement, the Borrowing Base and the Conforming Borrowing Base shall thereafter remain at
$35,000,000 until the next Scheduled Redetermination, Special Redetermination or other adjustment
to the Borrowing Base and Conforming Borrowing Base pursuant to the Credit Agreement. The
redetermination of the Borrowing Base provided for in this Section 3 shall be automatic,
shall not require any further action or notice by Administrative Agent or any Bank, and shall not
be construed or deemed to be a Scheduled Redetermination for the purposes of Section 4.2 of the
Credit Agreement nor a Special Redetermination for the purposes of Section 4.3 of the Credit
Agreement.
SECTION 4. Conditions Precedent. The amendments contained in Section 1 hereof
are subject to the satisfaction of each of the following conditions precedent:
4.1 Closing Delivery. Administrative Agent shall have received counterparts of this
Fourth Amendment duly executed by Borrower and Required Banks and acknowledged by each Restricted
Subsidiary.
4.2 Fees and Expenses. Borrower shall have paid all reasonable fees and expenses of
counsel for Administrative Agent incurred, to the extent the same have been invoiced and sent to
Borrower on or prior to the Fourth Amendment Effective Date, including all such fees and expenses
incurred in connection with the preparation, negotiation and execution of this Fourth Amendment,
and any other reasonable fees and expenses incurred or to be incurred by Administrative Agent in
connection with the preparation, negotiation and execution of this Fourth Amendment.
4.3 Other Documentation. Administrative Agent shall have received such other
documents, instruments and agreements as it may reasonably request, all in form and substance
reasonably satisfactory to Administrative Agent.
SECTION 5. Representations and Warranties of Borrower. To induce Executing Banks and
Administrative Agent to enter into this Fourth Amendment, Borrower hereby
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represents and warrants to Banks and Administrative Agent as of the date of this Fourth
Amendment as follows:
5.1 Due Authorization; No Conflict. The execution, delivery and performance by
Borrower of this Fourth Amendment are within Borrower’s corporate powers, have been duly authorized
by all necessary action, require no action by or in respect of, or filing with, any governmental
body, agency or official and do not violate or constitute a default under any provision of
applicable law or any Material Agreement binding upon Borrower or result in the creation or
imposition of any Lien upon any of the assets of the Credit Parties except Permitted Encumbrances.
5.2 Validity and Enforceability. This Fourth Amendment constitutes the valid and
binding obligation of Borrower enforceable in accordance with its terms, except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditor’s rights generally, and (b) the availability of equitable remedies may be limited by
equitable principles of general application.
5.3 Accuracy of Representations and Warranties. Each representation and warranty of
each Credit Party contained in the Loan Papers is true and correct in all material respects as of
the date hereof (except to the extent such representations and warranties are expressly made as of
a particular date, in which event such representations and warranties were true and correct as of
such date).
5.4 Absence of Defaults. No Default, Event of Default or Borrowing Base Deficiency
has occurred which is continuing.
5.5 No Defense. Borrower has no defense to payment of, or any counterclaim or rights
of set-off with respect to, all or any portion of the Obligations.
5.6 NO CLAIMS. BORROWER AND EACH OTHER CREDIT PARTY REPRESENTS AND WARRANTS THAT IT
HAS NO CLAIMS (AS THE TERM IS DEFINED IN THIS PARAGRAPH), DEFENSES, OFFSETS, OR COUNTERCLAIMS OF
ANY NATURE WHATSOEVER AGAINST ADMINISTRATIVE AGENT, BANKS AND THEIR RESPECTIVE PREDECESSORS,
AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, REPRESENTATIVES, SUCCESSORS, AND
ASSIGNS (COLLECTIVELY, THE “LENDER-RELATED PARTIES”). IT IS THE INTENTION OF THE PARTIES
THAT THE LENDER-RELATED PARTIES HAVE NO LIABILITY TO BORROWER OR ANY OTHER CREDIT PARTY BY REASON
OF ANYTHING OCCURRING PRIOR TO THE DATE OF THIS FOURTH AMENDMENT RELATING TO CLAIMS COVERED BY THIS
FOURTH AMENDMENT. ACCORDINGLY, THIS FOURTH AMENDMENT IS MADE TO COMPROMISE, RESOLVE, SETTLE,
DISCHARGE, AND TERMINATE ALL ACTUAL AND POTENTIAL CLAIMS OF BORROWER AND THE OTHER CREDIT PARTIES
BY REASON OF ANYTHING OCCURRING PRIOR TO THE DATE OF THIS FOURTH AMENDMENT RELATING TO CLAIMS
COVERED BY THIS FOURTH AMENDMENT. THE TERM “CLAIMS” AS USED IN THIS FOURTH AMENDMENT MEANS
ALL ACCOUNTS, AGREEMENTS, AVOIDANCE ACTIONS, BILLS, BONDS, CAUSES, CAUSES OF ACTION, CHARGES,
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CLAIMS, COMPLAINTS, CONTRACTS, CONTROVERSIES, COSTS, COUNTERCLAIMS, DAMAGES, DEBTS, DEMANDS,
EQUITABLE PROCEEDINGS, EXECUTIONS, EXPENSES, LEGAL PROCEEDINGS, LIABILITIES, LOSSES, MATTERS,
OBJECTIONS, OBLIGATIONS, ORDERS, PROCEEDINGS, RECKONINGS, REMEDIES, RIGHTS, SETOFF, SUITS, SUMS OF
MONEY, OF EVERY SORT AND DESCRIPTION, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, BREACH OF
ANY SPECIAL RELATIONSHIP, BREACH OR ABUSE OF ANY FIDUCIARY DUTY, CONCEALMENT, CONFLICTS OF
INTEREST, CONSPIRACY, COURSE OF CONDUCT OR DEALING, DEBT RECHARACTERIZATION, DECEIT, DECEPTIVE
TRADE PRACTICES, DEEPENING INSOLVENCY, DEFAMATION, CONTROL, DISCLOSURE, DURESS, ECONOMIC DURESS,
EQUITABLE SUBORDINATION, FRAUD, FRAUDULENT CONVEYANCE, FRAUDULENT TRANSFER, GROSS NEGLIGENCE,
INSOLVENCY LAW VIOLATIONS, INTERFERENCE WITH CONTRACTUAL AND BUSINESS RELATIONSHIPS,
MISREPRESENTATION, MISUSE OF INSIDER INFORMATION, NEGLIGENCE, OBLIGATION OF FAIR DEALING,
OBLIGATION OF GOOD FAITH AND FAIR DEALING, OBLIGATION OF GOOD FAITH, PREFERENCE, SECRECY,
SECURITIES AND ANTITRUST LAWS VIOLATIONS, SUBSTANTIVE CONSOLIDATION, TYING ARRANGEMENTS,
UNCONSCIONABILITY, USURY, VIOLATIONS OF STATUTES AND REGULATIONS OF GOVERNMENTAL ENTITIES,
INSTRUMENTALITIES AND AGENCIES, WRONGFUL SETOFF, WHETHER DIRECT AND INDIRECT, FIXED OR CONTINGENT,
KNOWN OR UNKNOWN, WHETHER SOUNDING IN TORT, OR BROUGHT UNDER CONTRACT OR STATUTE, AT LAW OR IN
EQUITY, WHETHER OR NOT LIQUIDATED, WHICH MAY HAVE ARISEN AT ANY TIME ON OR PRIOR TO THE DATE OF
THIS FOURTH AMENDMENT AND WHICH WERE IN ANY MANNER RELATED TO ANY OF THE LOAN PAPERS OR THE
ENFORCEMENT OR ATTEMPTED ENFORCEMENT BY ADMINISTRATIVE AGENT OR BANKS OF RIGHTS, REMEDIES OR
RECOURSES RELATED THERETO. TO THE EXTENT THAT ANY CLAIMS, DEFENSES, OR OFFSETS EXIST AS OF THE
DATE HEREOF, THEY ARE HEREBY WAIVED AND RELEASED BY BORROWER AND EACH OTHER CREDIT PARTY IN
CONSIDERATION OF EXECUTING BANKS’ EXECUTION OF THIS FOURTH AMENDMENT. BORROWER AND EACH OTHER
CREDIT PARTY REPRESENTS AND WARRANTS THAT IT HAS NOT ASSIGNED ANY CLAIMS, OFFSETS OR DEFENSES TO
ANY PERSON, INDIVIDUAL AND/OR ENTITY.
SECTION 6. Covenants.
6.1 Information. Borrower will provide Administrative Agent with such information as
may be reasonably requested by Administrative Agent from time to time, within three (3) Domestic
Business Days of such request, including, without limitation, (a) copies of any bank or other
financial institution statements, (b) financial statements, (c) accounts receivable and accounts
payable agings, (d) transactional documentation, (e) litigation pleadings, depositions, related
documents and transcripts, (f) letters of intent or offers to purchase, lease or license part, all
or substantially all of the assets or Equity of Borrower, and (g) letters of intent or commitments
for any capital investment, loan or other financing in or to Borrower.
6.2 Access. Administrative Agent and its agents shall have reasonable access during
normal business hours to Borrower’s and Restricted Subsidiaries’ business premises to
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review, appraise and evaluate the collateral for the Obligations and to inspect the financial
records and other records of Borrower concerning the operation of the Credit Parties’ businesses,
the Credit Parties’ financial condition, the transfers and expenditures of funds generated
therefrom, the accrual of expenses relating thereto, and any and all other records relating to the
operations of the Credit Parties. Borrower will, and will cause each other Credit Party to, fully
cooperate with Administrative Agent and its agents regarding such reviews, evaluations, and
inspections, and Borrower shall, and shall cause each other Credit Party to, make its employees and
consultants and professionals reasonably available to Administrative Agent and Administrative
Agent’s professionals and consultants in conducting such reviews, evaluations, and inspections.
Without limiting the generality of the foregoing, Administrative Agent’s agents entitled to access
the premises shall include (i) Administrative Agent’s internal audit team, and (ii) subject to
Section 8.16 of the Credit Agreement, a financial consulting firm selected by the Banks and at
Borrower’s expense.
6.3 RELEASE OF CLAIMS; COVENANT NOT TO XXX. EACH OF BORROWER AND EACH OTHER CREDIT
PARTY HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES, REMISES, ACQUITS, AND FULLY AND FOREVER
RELEASES AND DISCHARGES THE LENDER-RELATED PARTIES FROM ANY AND ALL CLAIMS WHICH BORROWER OR ANY
OTHER CREDIT PARTY EVER HAD OR NOW HAVE AGAINST THE LENDER-RELATED PARTIES. EACH OF BORROWER AND
EACH OTHER CREDIT PARTY COVENANTS AND AGREES NEVER TO COMMENCE, VOLUNTARILY AID IN ANY WAY, FOMENT,
PROSECUTE OR CAUSE TO BE COMMENCED OR PROSECUTED AGAINST ANY OF THE LENDER-RELATED PARTIES ANY
ACTION OR OTHER PROCEEDING BASED UPON ANY OF THE CLAIMS WHICH MAY HAVE ARISEN AT ANY TIME ON OR
PRIOR TO THE DATE OF THIS FOURTH AMENDMENT AND WERE IN ANY MANNER RELATED TO ANY OF THE LOAN
PAPERS. WITHOUT IN ANY WAY MODIFYING OR LIMITING THE FOREGOING, AND IN ADDITION TO THE FOREGOING,
BORROWER AND EACH OTHER CREDIT PARTY HEREBY INCORPORATES INTO THIS FOURTH AMENDMENT, RESTATES,
ACKNOWLEDGES, AFFIRMS AND AGREES TO EVERY WAIVER AND RELEASE OF ANY CLAIMS AS SET FORTH IN THE LOAN
PAPERS AS IF THE SAME WERE SET FORTH HEREIN
SECTION 7. Miscellaneous.
7.1 Other Terms. No act committed or action taken by Administrative Agent or any Bank
under this Fourth Amendment or any other Loan Paper will be used, construed, or deemed to hold such
person to be in control of Borrower or any other Credit Party, or the governance, management or
operations of Borrower or any other Credit Party for any purpose, without limitation, or to be
participating in the management of Borrower or any other Credit Party or acting as a “responsible
person” or “owner or operator” or a person in “control” with respect to the governance, management
or operation of Borrower or any other Credit Party or their respective businesses (as such terms,
or any similar terms, are used in the Bankruptcy Code, the Internal Revenue Code, or the
Comprehensive Environmental Response, Compensation and Liability Act, each as may be amended from
time to time, or any other federal or state statute, at law, in equity, or otherwise) by virtue of
the interests, rights, and remedies granted to or
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conferred upon Administrative Agent and Banks under this Fourth Amendment or the other Loan
Papers.
7.2 Reaffirmation of Loan Papers. Any and all of the terms and provisions of the
Credit Agreement and the other Loan Papers shall, except as amended and modified hereby, remain in
full force and effect, and are hereby ratified and confirmed. The amendments contemplated hereby
shall not limit or impair any Liens securing the Obligations, each of which are hereby ratified,
affirmed and extended to secure the Obligations.
7.3 Confirmation of Loan Papers and Liens; New Value. As a material inducement to
Banks to make the agreements and grant the amendments and limited waivers set forth herein, each of
Borrower and each of the other Credit Parties hereby (a) acknowledges and confirms the continuing
existence, validity and effectiveness of the Loan Papers and the Liens granted thereunder,
(b) agrees that the execution, delivery and performance of this Fourth Amendment and the
consummation of the transactions contemplated hereby shall not in any way release, diminish,
impair, reduce or otherwise adversely affect such Loan Papers and Liens, and (c) acknowledges and
agrees that the Liens granted under the Loan Papers secure, and after the consummation of the
transactions contemplated hereby will continue to secure, the payment and performance of the
Obligations as first priority perfected Liens, subject to the Permitted Encumbrances. All money
and credit made available to Credit Parties, if any, following the Fourth Amendment Effective Date
as a result of the agreements set forth in this Fourth Amendment constitutes new value as that term
is defined in 11 U.S.C. Section 547(a)(2), and such new value is intended by the parties hereto to
be given contemporaneously in exchange for any transfers made hereunder or pursuant to any document
executed in connection herewith or related hereto. All transfers contemplated hereunder will be
made for value and in the ordinary course of business or financial affairs of the Credit Parties
and the recipients of such transfers and are being made according to ordinary business terms.
7.4 No Implied Waivers. No failure or delay on the part of Administrative Agent or
any Bank in exercising, and no course of dealing with respect to, any right, power or privilege
under this Fourth Amendment, the Credit Agreement or any other Loan Paper shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or privilege under this
Fourth Amendment, the Credit Agreement or any other Loan Paper preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
7.5 INDEMNIFICATION. IN ADDITION TO, AND WITHOUT LIMITATION OF, ANY AND ALL
INDEMNITIES PROVIDED IN THE LOAN PAPERS, BORROWER AND EACH OTHER CREDIT PARTY SHALL AND DO HEREBY,
JOINTLY AND SEVERALLY, INDEMNIFY AND HOLD EACH OF THE LENDER-RELATED PARTIES HARMLESS FROM AND
AGAINST ANY AND ALL CLAIMS, LIABILITY, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS, JUDGMENTS, COSTS,
AND EXPENSES, INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES, ARISING OUT OF OR FROM OR RELATED TO
ANY OF THE LOAN PAPERS. IF ANY ACTION, SUIT, OR PROCEEDING IS BROUGHT AGAINST ANY OF THE
LENDER-RELATED PARTIES, BORROWER AND EACH OTHER CREDIT PARTY SHALL, AT SUCH LENDER-RELATED PARTY’S
REQUEST, DEFEND THE SAME AT THEIR SOLE COST AND EXPENSE, SUCH COST AND EXPENSE TO BE A JOINT AND
SEVERAL LIABILITY OF
11
BORROWER AND THE OTHER CREDIT PARTIES, BY COUNSEL SELECTED BY SUCH LENDER-RELATED PARTY.
NOTWITHSTANDING ANY PROVISION OF THIS FOURTH AMENDMENT OR ANY OTHER LOAN PAPER, THIS SECTION SHALL
REMAIN IN FULL FORCE AND EFFECT AND SHALL SURVIVE ANY DELIVERY AND PAYMENT ON THE OBLIGATIONS, THIS
FOURTH AMENDMENT AND THE OTHER LOAN PAPERS.
7.6 Review and Construction of Documents. Borrower and each other Credit Party each
hereby acknowledge, and represent and warrant to Administrative Agent and Banks, that (a) Borrower
and such other Credit Party have had the opportunity to consult with legal counsel of their own
choice and have been afforded an opportunity to review this Fourth Amendment with their legal
counsel, (b) Borrower and such other Credit Party have reviewed this Fourth Amendment and fully
understand the effects thereof and all terms and provisions contained herein, and (c) Borrower and
such other Credit Party have executed this Fourth Amendment of their own free will and volition.
7.7 Arms-Length/Good Faith. This Fourth Amendment has been negotiated at arms-length
and in good faith by the parties hereto.
7.8 Parties in Interest. All of the terms and provisions of this Fourth Amendment
shall bind and inure to the benefit of the parties hereto and their respective successors and
assigns.
7.9 Expenses. Without limiting the provisions of Section 14.3 of the Credit
Agreement but subject to the limitations set forth in Section 8.16 of the Credit Agreement (as
amended hereby), Borrower agrees to pay all reasonable out of pocket costs and expenses (including
without limitation reasonable fees and expenses of any counsel, financial advisor, industry advisor
and agent for Administrative Agent) incurred before or after the date hereof by Administrative
Agent and its Affiliates in connection with the preparation, negotiation, execution, delivery and
administration of this Fourth Amendment and the Loan Documents.
7.10 Counterparts. This Fourth Amendment may be executed in counterparts, and all
parties need not execute the same counterpart; however, no party shall be bound by this Fourth
Amendment until Administrative Agent, Borrower and Required Banks have executed a counterpart and
all Restricted Subsidiaries have executed the attached consent and acknowledgement. Facsimiles
shall be effective as originals.
7.11 Complete Agreement. THIS FOURTH AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER
LOAN PAPERS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN OR AMONG THE PARTIES.
7.12 Headings. The headings, captions and arrangements used in this Fourth Amendment
are, unless specified otherwise, for convenience only and shall not be deemed to limit, amplify or
modify the terms of this Fourth Amendment, nor affect the meaning thereof.
12
7.13 Governing Law. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND CONTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
[Signature pages to follow]
13
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be duly executed by
their respective Authorized Officers on the date and year first above written.
BORROWER: | ||||||
DELTA PETROLEUM CORPORATION, | ||||||
a Delaware corporation | ||||||
By:/s/ Xxxxx X. Xxxxx | ||||||
Xxxxx X. Xxxxx, | ||||||
Chief Financial Officer and Treasurer |
Each of the undersigned (i) consent and agree to this Fourth Amendment, and (ii) agree that
the Loan Papers to which it is a party shall remain in full force and effect and shall continue to
be the legal, valid and binding obligation of such Person, enforceable against it in accordance
with its terms.
ACKNOWLEDGED AND AGREED TO BY: | ||||||
DELTA EXPLORATION COMPANY, INC., | ||||||
a Colorado corporation | ||||||
By: /s/ Xxxxx X. Xxxxx | ||||||
Xxxxx X. Xxxxx, | ||||||
Chief Financial Officer and Treasurer | ||||||
PIPER PETROLEUM COMPANY, a Colorado corporation |
||||||
By: /s/ Xxxxx X. Xxxxx | ||||||
Xxxxx X. Xxxxx, | ||||||
Chief Financial Officer and Treasurer |
Signature Page
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
CASTLE TEXAS EXPLORATION LIMITED | ||||||||
PARTNERSHIP, a Texas limited partnership | ||||||||
By: | Delta Petroleum Corporation, a Delaware | |||||||
corporation, its general partner | ||||||||
By: /s/ Xxxxx X. Xxxxx | ||||||||
Xxxxx X. Xxxxx, | ||||||||
Chief Financial Officer and Treasurer | ||||||||
DPCA LLC, a Delaware limited liability company | ||||||||
By: /s/ Xxxxx X. Xxxxx | ||||||||
Xxxxx X. Xxxxx, | ||||||||
Chief Financial Officer and Treasurer | ||||||||
DELTA PIPELINE, LLC, a Colorado limited | ||||||||
liability company | ||||||||
By: | Delta Petroleum Corporation, a Delaware | |||||||
corporation, its sole manager and sole member | ||||||||
By: /s/ Xxxxx X. Xxxxx | ||||||||
Xxxxx X. Xxxxx, | ||||||||
Chief Financial Officer and Treasurer | ||||||||
DELTA RISK MANAGEMENT, LLC, | ||||||||
a Colorado limited liability company | ||||||||
By: | Delta Petroleum Corporation, a Delaware | |||||||
corporation, its sole manager and sole member | ||||||||
By: /s/ Xxxxx X. Xxxxx | ||||||||
Xxxxx X. Xxxxx, | ||||||||
Chief Financial Officer and Treasurer |
Signature Page
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
ADMINISTRATIVE AGENT: | ||||||
JPMORGAN CHASE BANK, N.A., | ||||||
as Administrative Agent | ||||||
By: /s/ Xxxx Xxxxxxx | ||||||
Xxxx Xxxxxxx, | ||||||
Senior Vice President | ||||||
BANK: | ||||||
JPMORGAN CHASE BANK, N.A. | ||||||
By: /s/ Xxxx Xxxxxxx | ||||||
Xxxx Xxxxxxx, | ||||||
Senior Vice President |
Signature Page
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
BANK: | ||||
BANK OF MONTREAL | ||||
By: |
||||
Name: |
||||
Title: |
Signature Page
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
BANK: | ||||||
DEUTSCHE BANK TRUST COMPANY AMERICAS |
||||||
By: /s/ Xxxxxxx Xxxxxxxx | ||||||
Name: Xxxxxxx Xxxxxxxx | ||||||
Title: Vice President | ||||||
By: /s/ Xxxxxx X. Xxxxxxxxxx | ||||||
Name: Xxxxxx X. Xxxxxxxxxx | ||||||
Title: Director |
Signature Page
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
BANK: | ||||||
KEYBANK NATIONAL ASSOCIATION | ||||||
By: /s/ Xxxxx X. Wild | ||||||
Name: Xxxxx X. Wild | ||||||
Title: Vice President |
Signature Page
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
BANK: | ||||||
U.S. BANK NATIONAL ASSOCIATION | ||||||
By: /s/ Xxxxx X. Xxxxxxx | ||||||
Name: Xxxxx X. Xxxxxxx | ||||||
Title: Senior Vice President |
Signature Page
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
BANK: | ||||||
BANK OF OKLAHOMA, N.A. | ||||||
By: /s/ Xxxxxxx X. Xxxxx | ||||||
Name: Xxxxxxx X. Xxxxx | ||||||
Title: Senior Vice President |
Signature Page
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
BANK: | ||||||
NATIXIS | ||||||
(f.k.a. Natexis Banques Populaires) | ||||||
By: /s/ Xxxxxxx X. Xxxxxxxxx | ||||||
Name: Xxxxxxx X. Xxxxxxxxx | ||||||
Title: Managing Director | ||||||
By: /s/ Liana Tchernysheva | ||||||
Name: Liana Tchernysheva | ||||||
Title: Director |
Signature Page
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
BANK: | ||||
BARCLAYS BANK PLC | ||||
By: |
||||
Name: |
||||
Title: |
Signature Page
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
BANK: | ||||||
BANK OF SCOTLAND PLC | ||||||
By: /s/ Xxxxx X. Xxxxxxxx | ||||||
Name: Xxxxx X. Xxxxxxxx | ||||||
Title: Assistant Vice President |
Signature Page
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
BANK: | ||||||
CAPITAL ONE, NATIONAL ASSOCIATION | ||||||
By: /s/ Xxxxxx Xxxxxxx | ||||||
Name: Xxxxxx Xxxxxxx | ||||||
Title: Vice President |
Signature Page
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation
Fourth Amendment to Second Amended and Restated Credit Agreement
Delta Petroleum Corporation