FORBEARANCE AGREEMENT
Exhibit 10.36
Execution Version
FORBEARANCE AGREEMENT, dated as of December 31, 2010 (this
“Agreement”) among DHS HOLDING COMPANY, a Delaware corporation (“Holdings”), DHS DRILLING
COMPANY, a Colorado corporation (the “Borrower”) and XXXXXX
COMMERCIAL PAPER INC., as administrative agent (in such capacity, the “Administrative
Agent”) and as the Lender (in such capacity, the “Lender”) under that certain Credit Agreement
(as defined below).
W I T N E S S E T H:
WHEREAS, the Borrower, Holdings, the Lender and the Administrative Agent are parties to that
certain Amended and Restated Credit Agreement, dated as of August 15, 2008, as amended by that
certain Amendment No. 1, dated as of September 19, 2008, and further amended by that certain Waiver
and Amendment Xx. 0, xxxxx xx xx Xxxxx 0, 0000 (xx further amended, modified or supplemented from
time to time in accordance with its terms, the “Credit Agreement”; capitalized terms used but not
defined herein shall have the respective meanings ascribed to such terms in the Credit
Agreement);
WHEREAS, the Borrower has failed in its performance of certain provisions of the Credit
Agreement as further described herein, such failure constituting a default under the Credit
Agreement; and
WHEREAS, the Borrower and Holdings have requested that the Lender and the Administrative
Agent forbear, and the Lender and the Administrative Agent have agreed, subject to the terms and
conditions of this Agreement, to forbear, from exercising certain rights under the Credit
Agreement and the other Loan Documents during the Forbearance Period (as defined below).
NOW, THEREFORE, in consideration of the premises and the agreements hereinafter
contained, the parties hereto agree as follows:
1. Forbearance.
(a) Acknowledgement. As of the date hereof, each of the Loan Parties acknowledge that the
failure by the Borrower to service (a) the amortization payment due and payable pursuant to
Section 2.4(a)(i) of the Credit Agreement (the “Payment Default”) and (b) the interest payment due
and payable pursuant to Section 2.8(b) of the Credit Agreement (the “Interest Default”, together
with the Payment Default, the “Forbearance Default”) constitutes a default under the Credit
Agreement. By acknowledging the Forbearance Default, the Loan Parties do not waive or release any
defenses available at law or equity as a result of Lender’s Breach.
(b) Forbearance Period. (i) During the period from the Effective Date (as defined below)
until January 31, 2011 (the “Forbearance Period”), each of the Administrative Agent and the Lender
hereby agrees to forbear (the “Forbearance”) from exercising its rights and remedies under the
Credit Agreement and the other Loan Documents arising as a result of the Forbearance Default;
provided, however, that upon the occurrence of any Event of Default other than the Forbearance
Default, including the Events of Defaults set forth in Section 1(c) hereof, the Forbearance Period
shall automatically and immediately terminate, and the Administrative Agent and the Lender shall
be entitled to exercise any and all of their rights and remedies under
the Credit Agreement, the other Loan Documents and applicable law, without further notice
other than as required therein. Upon termination of the Forbearance Period, (A) the forbearance
shall automatically terminate and be of no further force or effect without any further action by
the Lender, (B) the Forbearance Default is, without further action, reinstated and shall have the
same force and effect as if the Forbearance had not been agreed to by the parties hereto and (C)
subject to the terms of the Credit Agreement, the Loan Documents and applicable law, the Lender
may thereafter, without limitation, xxx, ask for or demand from the Loan Parties payment of the
Obligations due and payable to such Lender, in whole or in part, and otherwise enforce any of its
rights and remedies (including rights of acceleration and foreclosure) provided for under the
Credit Agreement, the Loan Documents or applicable law against any party, subject to any defenses
available at law or equity as a result of Lender’s Breach. Each of the Loan Parties agrees that,
subject to the agreement of the Lender to forbear from exercising certain of their rights and
remedies as and to the extent expressly set forth in this Agreement, all rights and remedies of
the Lender under the Credit Agreement, the Loan Documents or applicable law with respect to such
Loan Party shall continue to be available to the Lender from and after the Effective Date.
(ii) It is understood and agreed that interest shall accrue from the Effective Date through
the remainder of the Forbearance Period on the outstanding Obligations at the applicable default
rates provided for pursuant to the Credit Agreement.
(c) Additional Events of Default. The following events shall constitute Events of
Default under the terms of the Credit Agreement and the other Loan Documents:
(i) any of the Borrower, Holdings or the other Loan Parties shall pledge, encumber, charge,
assign or grant a security interest in, or encumbrance of any kind on, any Collateral; or
(ii) any of the Borrower, Holdings or the other Loan Parties shall enter into any
arrangement to provide priority or preference with respect thereto, in connection with securing
or obtaining debtor-in-possession financing; or
(iii) any of the Loan Parties shall (x) pay any management fees to either of Delta Petroleum
Corporation (“Parent”) or Chesapeake Energy Corporation (“Chesapeake”) or (y) make any other
payments, distributions or dividends in respect of stock held by either of Parent or Chesapeake
in any Loan Party; or
(iv) Holdings, the Borrower or any other Loan Party shall fail to perform or observe any
term, covenant or agreement set forth in this Agreement; or
(v) any representation or warranty made or deemed made by any Loan Party herein or any
representation or warranty made or deemed made hereafter by any Loan Party in any Loan Document or
which is made in connection with this Agreement or any other Loan Document shall prove to have
been incorrect or misleading in any material respect on or as of the date made or deemed made.
(d) No Waiver. Any other provision of this Agreement notwithstanding, the Loan Parties do not
waive or release any rights or defenses available to them as a result of Lender’s Breach.
2
2. Forbearance Requirements. The Borrower, Holdings and the other Loan Parties agree to the
following as consideration for the Forbearance (the “Forbearance Requirements ”):
(a) Within 15 days following the Effective Date, the Loan Parties shall meet with the
Administrative Agent and the Lender to discuss the Loan Parties’ budget, business/operating plan
and cash flow forecast and analysis, as well as restructuring options in respect of the business
and capital structure of the Loan Parties.
(b) Holdings and Borrower shall permit any third party financial consultant or advisor
acting on behalf of the Lender or Administrative Agent to inspect the property of
Holdings and its Subsidiaries and to conduct such other activity as contemplated in Section 5.7(b)
of the Credit Agreement.
3. Representations and Warranties. Each of the Borrower, Holdings and the other Loan Parties
represents and warrants as follows (which representations and warranties shall survive the
execution and delivery of this Agreement):
(a) Each of the Borrower, Holdings and the other Loan Parties has taken all necessary action
to authorize the execution, delivery and performance of this Agreement.
(b) This Agreement constitutes the legal, valid and binding obligation of each of the
Borrower, Holdings and the other Loan Parties, as applicable, enforceable against them in
accordance with their respective terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting the enforcement of creditors’ rights generally
and to general equity principles.
(c) No consent or approval of any person, firm, corporation or entity, and no consent,
license, approval or authorization of any governmental authority is or will be required in
connection with the execution, delivery, performance, validity or enforcement of this Agreement,
other than any such consent, approval, license or authorization which has been obtained and
remains in full force and effect or where the failure to obtain such consent, approval, license or
authorization would not result in a Material Adverse Effect.
(d) After giving effect to this Agreement, each of the Borrower, Holdings and the other Loan
Parties is in compliance with all of the various covenants and agreements set forth in the Credit
Agreement and each of the other Loan Documents, other than the Forbearance Default.
(e) After giving effect to this Agreement and the agreements to be delivered in connection
herewith, no event has occurred and is continuing which constitutes a Default or an Event of
Default, other than the Forbearance Default.
(f) After giving effect to this Agreement and the agreements to be delivered in
connection herewith, all representations and warranties contained in the Credit Agreement and each
of the other Loan Documents are true and correct in all material respects as of the date hereof,
except to the extent that any representation or warranty relates to a specified date, in which
case such are true and correct in all material respects as of the specific date to which such
representations and warranties relate, and except to the extent of any inconsistency in such
representations or warranties arising directly out of the Forbearance Default.
3
(g) Each report delivered and any information provided pursuant to or in connection with this
Agreement has and will be prepared on a reasonable basis and in good faith, and has/will be based
on assumptions believed by the applicable Loan Party to be reasonable at the time made and upon the
best information available to such Loan Party, and such Loan Party is not aware of any facts or
information that would lead the applicable party to believe that any such information or report is
incorrect or misleading in any material respect.
4. Fees and Expenses. The Borrower and Holdings agree to pay on demand all fees, costs and
expenses, including reasonable attorneys’ and consultants’ fees, of the Administrative Agent and
the Lender incurred in connection with this Agreement.
5. Effective Date. This Agreement shall not become effective unless and until (the latest
date upon which such occurs, the “Effective Date”):
(a) this Agreement shall have been duly executed and delivered by the Borrower,
Holdings, the other Loan Parties, the Lender and the Administrative Agent; and
(b) the Lender shall have received such other certificates, documents and agreements as
the Lender may reasonably request.
6. Reference and Continued Effectiveness of the Loan Documents.
(a) The term “Agreement”, “hereof”, “herein” and similar terms as used in the Credit
Agreement, and references in the other Loan Documents to the Credit Agreement, shall mean and refer
to, from and after the Effective Date, the Credit Agreement as affected by this Agreement.
(b) The Borrower hereby agrees that all of the covenants and agreements contained in the
Credit Agreement and the Loan Documents are hereby ratified and confirmed in all respects.
(c) This Agreement constitutes a Loan Document.
7. Counterparts. This Agreement may be executed in counterparts, each of which shall be an
original, and all of which, taken together, shall constitute a single instrument. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Agreement.
8. Governing Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York without giving effect to the conflict of laws provisions thereof.
9. Limitation. Each party hereto hereby agrees that this Agreement does not impose on Xxxxxx
Commercial Paper Inc. affirmative obligations or indemnities not existing, as of the date of its
petition commencing its proceeding under chapter 11 of the United States Code, and that could give
rise to administrative expense claims.
10. Indemnity. The Borrower, Holdings and the other Loan Parties further agree, jointly and
severally, to defend, protect, indemnify and hold harmless the Administrative Agent and the
Lender, each of their respective Affiliates and their respective officers, directors, employees,
attorneys and agents (collectively the “Indemnitees”) from and against any and all
4
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses of any kind or nature whatsoever (including, without limitation, the reasonable
fees and expenses of counsel for such Indemnitees in connection with any investigative,
administrative or judicial proceeding, whether or not such Indemnitees shall be designated as a
party thereto), imposed on, incurred by, or asserted against such Indemnitees in any manner
relating to or arising out of this Agreement or any other Loan Document (collectively the
“Indemnified Matters”); provided, however, that neither the Borrower, Holdings or any
Loan Party shall have an obligation to an Indemnitee hereunder with respect to Indemnified Matters
caused or resulting from (a) a dispute among the Lender or a dispute between the Lender and the
Administrative Agent, or (b) the willful misconduct or gross negligence of such Indemnitee, or (c)
defense of claims by the Loan Parties relating to Lender’s Breach (but only if the Loan Parties
are the prevailing party with respect to such claims). If the undertaking to indemnify, pay and
hold harmless set forth in the preceding sentence may be unenforceable because it violates any law
or public policy, the Borrower, Holdings and the other Loan Parties shall contribute the maximum
portion which it is permitted to pay and satisfy under the applicable law, to the payment and
satisfaction of all Indemnified Matters incurred by Indemnities. This Section 10 shall survive the
payment of the Obligations and the termination of this Agreement or any other Loan Document.
[Signature Pages Follow]
5
IN WITNESS WHEREOF the parties hereto have caused this Agreement
to be duly executed by their respective officers as of the date first
written above.
| DHS DRILLING COMPANY, as the Borrower |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Executive Vice President | |||
| DHS HOLDING COMPANY, as Holdings |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Executive Vice President | |||
[Signature Page to Agreement]
| XXXXXX COMMERCIAL PAPER, INC, as Administrative Agent and Lender |
||||
| By: | /s/ Xxxxxx Xxx | |||
| Name: | Xxxxxx Xxx | |||
| Title: | Authorized Signatory | |||
[Signature Page to Agreement]
