TERMINATION AND RELEASE AGREEMENT
This
Termination and Release Agreement (this “Agreement”),
dated
as of November 26, 2007, is entered into by and among CrossPoint Energy
Holdings, LLC, as borrower (“Borrower”)
under
the Credit Agreement (defined below), CrossPoint Energy LLC (“Parent”),
X.X.
Xxxxx Special Opportunities Fund, L.P., as administrative agent under the Credit
Agreement described herein (in such capacity, the “Administrative
Agent”)
and
Petrobridge Asset Management, LLC (“XXX”).
INTRODUCTION
A. Reference
is made to that certain (i) Credit Agreement dated as of September 2, 2005,
among Borrower, Administrative Agent, and the lenders (“Lenders”)
party
thereto (the “Credit
Agreement”),
(ii)
Pledge Agreement dated as of September 2, 2005 between Borrower and
Administrative Agent, (the “Pledge
Agreement”)
(iii)
Security Agreement dated as of September 2, 2005 between Borrower and
Administrative Agent (the “Security
Agreement”)
and
(iv) Three Party Agreement relating to lockbox services by and between Borrower,
Administrative Agent and Compass Bank (the “Lockbox
Agreement”,
and
together with the Pledge Agreement and Security Agreement collectively, the
“Security
Documents”).
B. The
current Lenders and Administrative Agent are assigning their notes, liens and
rights under the Credit Agreement to XXX contemporaneously with the execution
and delivery of this Agreement;
C. XXX,
as
the holder of the notes, liens and rights under the Credit Agreement is willing
to release Borrower from its obligation to repay the notes and other obligations
under the Credit Agreement and the accrued interest related thereto, and to
terminate the Security Documents in exchange for Borrower delivering an
Assignment in Lieu of Foreclosure of Oil and Gas Leases and Xxxx of Sale with
respect to the Elkhart properties (“Properties”)
owned
by Borrower (“Assignment”);
and
D. The
Borrower has requested that the Administrative Agent execute and deliver this
Agreement (i) to evidence the termination and release of the Security Documents
and (ii) to release the Borrower from its obligations to repay the notes and
other obligations under the Credit Agreement and any accrued interest
thereon.
THEREFORE,
for and in consideration of the mutual benefits hereunder, the Borrower and
the
Administrative Agent hereby agree as follows:
Section
1. Defined
Terms.
Capitalized terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement and if not defined in the Credit
Agreement, such terms shall have the meanings assigned to them in the Security
Agreement.
Section
2. Termination
of Existing Liens.
The
Administrative Agent and XXX hereby (a) releases and forever discharges any
and
all security interests, liens, mortgages, pledges, encumbrances, assignments
and
all other rights and interests that it has or may have in and to the Collateral
arising pursuant to the Security Documents (the “Existing
Liens”)
and
(b) grants, assigns, delivers and releases unto, and causes to re-vest in the
Borrower all rights and interests granted to the Administrative Agent in the
Collateral in the Security Documents. The Administrative Agent and XXX hereby
authorize the Borrower to file or cause the filing of such UCC-3 termination
statements for purposes of terminating any UCC-1 financing statements filed
by
or on behalf of the Administrative Agent with respect to the Security Documents.
Section
3. Release
of Obligations.
Borrower agrees to pay to the Lenders a default and administrative fee of
$300,000 in connection with the defaults under the Credit Agreement and
agreement to accept the properties pursuant to the Assignment. Borrower agrees
that it shall make payment of the fee by including such amount as part of the
Indebtedness. XXX and Administrative Agent acknowledge and agree that Borrower
shall have no further obligation to repay the notes under the Credit Agreement
and any accrued and unpaid interest thereon or any other obligations thereunder.
Notwithstanding the release of Borrower from all liability for the Indebtedness
and obligations under the Credit Agreement, the Indebtedness has not been
canceled or extinguished and the Collateral, except as specifically released
hereby, continues to be subject to the performance of the obligations under
the
deed of trust given by Borrower in connection with the Credit Agreement
(“Deed
of Trust”)
and
the Credit Agreement. The Deed of Trust lien is not released or relinquished
in
any manner, and the indebtedness, obligations, and lien under the Deed of Trust
will remain valid and continuous and in full force and effect, unless and until
such indebtedness, obligations, and liens are expressly released by written
instrument executed and delivered by the holder thereof, at the holder’s sole
discretion. Notwithstanding the preceding, XXX and the Lenders agree that to
the
extent there is any excess from the proceeds of the sale of the Properties
after
deducting the full amount of the Indebtedness at the time of sale, capital
costs
incurred during their ownership and the other costs associated with organizing
and preparing the Properties for sale, such excess will be distributed to the
Borrower.
Section
4. Effective
Time.
This
Agreement shall not become effective unless and until the Assignment has been
executed, acknowledged and delivered to XXX (the “Effective
Time”).
Section
5. Survival.
The
Borrower hereby acknowledges and agrees that any obligations that expressly
survive termination of the Security Documents shall continue in full force
and
effect in favor of the Administrative Agent and Lenders.
Section
6. Release.
The
Borrower hereby fully, finally and forever acquits, quitclaims, releases and
discharges XXX, the Lenders and Administrative Agent and their officers,
affiliates, directors, shareholders, employees, agents, attorneys, successors
and assigns of and from any and all past, present, or future obligations,
claims, liabilities, damages, demands, debts, liens, accounts, contracts,
deficiencies, actions or cause or causes of action to, of or for the benefit
(whether directly or indirectly) of the Borrower at law or in equity, known
or
unknown, contingent or fixed, whether asserted or unasserted, whether liquidated
or unliquidated, whether matured or unmatured, whether foreseen or unforeseen,
whether now known or hereafter discovered, whether statutory, in contract or
in
tort, as well as any other kind or character of action now held, owned or
possessed (whether directly or indirectly) by the Borrower on account of,
arising out of, related to or concerning, whether directly or indirectly,
proximately or remotely (i)
the
negotiation, review, preparation or documentation of any and all agreements,
instruments, contracts and/or documents evidencing any or all of the credit
facilities referred to in the Loan Documents, as the same have been amended,
revised, substituted or replaced, (ii)
the
enforcement, protection or preservation of the Lenders’ rights and remedies
under the Loan Documents, (iii)
the
validity, perfection or enforceability of the Loan Documents, and/or
(iv)
any
action or inaction by the Lenders or Administrative Agent in connection with
any
of the Loan Documents.
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Section
7. Further
Assurances.
From
time-to-time, upon request and at the Borrower’s cost and expense, the
Administrative Agent shall execute, acknowledge and deliver all such further
releases, termination statements, documents, agreements, certificates and
instruments and do such further acts as may be reasonably necessary to
effectuate the release of the Existing Liens. Such additional releases,
termination statements, documents, agreements, certificates and instruments
delivered in accordance with this Section 8 shall be without any representation,
warranty or covenant of any kind.
Section
8. Entirety.
This
Agreement contains the entire understanding between the parties hereto and
the
terms and conditions of this Agreement supersede and replace any other
agreements or understandings among the parties with respect to such
transactions, whether oral or written.
Section
9. 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 any conflict of law rules or principal that would mandatorily
require the application of the laws of any other jurisdiction.
Section
10. Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which when so executed and delivered
shall be an original, but all of which shall together constitute one and the
same instrument.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly
executed and delivered as of the date first above written.
| BORROWER: | CROSSPOINT ENERGY HOLDINGS, LLC | |
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| By: | /s/ Xxxxxx X. Xxxxxxx | |
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Xxxxxx
X. Xxxxxxx
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President
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ADMINISTRATIVE
AGENT:
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X.X.
XXXXX SPECIAL OPPORTUNITIES FUND, L.P.
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| By: X.X. XXXXX PARTNERS, LLC, its general partner | ||
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| By: | /s/ Xxxxx Xxx | |
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| Name: | Xxxxx Xxx | |
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| Title: | President | |
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S-2
| XXX: |
PETROBRIDGE
ASSET MANAGEMENT LLC
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| By: | /s/ Xxxxxx X. Xxxxxxxxx | |
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Xxxxxx X. Xxxxxxxxx
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Vice President
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S-3
