EXHIBIT 10.1
SIXTH AMENDMENT TO CREDIT AGREEMENT
This Sixth Amendment to Credit Agreement (this "Sixth Amendment"), dated
as of March 6, 2006 (the "Effective Date"), is by and among DELTA PETROLEUM
CORPORATION, a Colorado 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, JPMorgan Chase Bank, N.A., and
the financial institutions party thereto as Banks are parties to that certain
Credit Agreement dated as of November 5, 2004 (as heretofore amended, the
"Credit Agreement") (unless otherwise defined herein, all terms used herein
with their initial letter capitalized shall have the meaning given such terms
in the Credit Agreement, as amended hereby); and
WHEREAS, Borrower has requested that Banks amend certain terms of the
Credit Agreement in certain respects; and
WHEREAS, subject to and upon the terms and conditions set forth herein,
Executing Banks have agreed to Borrower's requests.
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. Amendments. In reliance on the representations, warranties,
covenants and agreements contained in this Sixth Amendment, and subject to
the satisfaction of each condition precedent set forth in Section 2 hereof,
the Credit Agreement is hereby amended effective as of the Effective Date in
the manner provided in this Section 1.
1.1 Amendment to Definition. The definition of "Loan Papers"
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 Fifth Amendment,
the Sixth 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 (as amended by the Assignments
and Amendment to Mortgages), the Assignments and Amendments to Mortgages, all
Mortgages now or at any time hereafter delivered pursuant to Section 5.1, all
Letters of Credit, 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 Definition. Section 1.1 of the Credit Agreement
shall be amended to add the following definition to such Section:
"Sixth Amendment" means that certain Sixth Amendment to Credit
Agreement dated as of March 6, 2006, among Borrower, Administrative Agent and
Banks party thereto.
1.3 Amendment to Financial Covenant. Section 10.1 of the Credit
Agreement shall be amended to read in full as follows:
"Section 10.1 Current Ratio. As of the end of each Fiscal
Quarter, commencing with the Fiscal Quarter ending June 30, 2006, Borrower
will not permit its ratio of Consolidated Current Assets to Consolidated
Current Liabilities to be less than 1.0 to 1.0.
Section 2. Conditions Precedent. The effectiveness of the amendments
to the Credit Agreement contained in Section 1 hereof is subject to the
satisfaction of each condition precedent set forth in this Section 2:
2.1 Amendment Fee. Upon execution of this Sixth Amendment by
Required Banks, Borrower shall pay to Administrative Agent, for the benefit
of Executing Banks, a fee in the amount of $5,000 for each Executing Bank.
Such $5,000 fee shall be distributed by Administrative Agent to each
Executing Bank provided that such Executing Bank executes and delivers this
Sixth Amendment on or before March 6, 2006.
2.2 No Defaults. After giving effect to the amendments contained
in Section 1 hereof, no Default or Event of Default shall exist.
2.3 Fees and Expenses. Borrower shall have paid all fee and
amounts as Borrower shall be required to pay to Administrative Agent and its
Affiliates pursuant to any separate agreement between or among Borrower,
Administrative Agent and/or its Affiliates.
2.4 Other Documentation. Administrative Agent shall have received
such other documents, instruments and agreements as it or any Bank may
reasonably request, all in form and substance reasonably satisfactory to
Administrative Agent and Banks.
Section 3. Representations and Warranties of Borrower. To induce Banks
and Administrative Agent to enter into this Sixth Amendment, Borrower hereby
represents and warrants to Banks and Administrative Agent as follows:
3.1 Due Authorization; No Conflict. The execution, delivery and
performance by Borrower of this Sixth 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 Borrower
except Permitted Encumbrances.
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3.2 Validity and Enforceability. This Sixth 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.
3.3 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).
3.4 Absence of Defaults. After giving effect to the amendments
contained in Section 1 hereof, no Default or Event of Default has occurred
which is continuing.
3.5 No Defense. Borrower has no defense to the payment of, or any
counterclaim or rights of set-off with respect to, all or any portion of the
Obligations.
Section 4. Miscellaneous.
4.1 Reaffirmation of Loan Papers. Any and all of the terms and
provisions of the Credit Agreement and the 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.
4.2 Confirmation of Loan Papers and Liens. As a material
inducement to Banks to make the agreements and grant the amendments set forth
herein, Borrower 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 Sixth Amendment and the consummation of the transaction 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.
4.3 Parties in Interest. All of the terms and provisions of this
Sixth Amendment shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns.
4.4 Legal Expenses. Borrower hereby agrees to pay on demand all
reasonable fees and expenses of counsel to Administrative Agent incurred by
Administrative Agent in connection with the preparation, negotiation and
execution of this Sixth Amendment.
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4.5 Counterparts. This Sixth Amendment may be executed in
counterparts, and all parties need not execute the same counterpart; however,
no party shall be bound by this Sixth Amendment until Borrower and Required
Banks have executed a counterpart. Facsimiles shall be effective as
originals.
4.6 Complete Agreement. THIS SIXTH 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.
4.7 Headings. The headings, captions and arrangements used in
this Sixth Amendment are, unless specified otherwise, for convenience only
and shall not be deemed to limit, amplify or modify the terms of this Sixth
Amendment, nor affect the meaning thereof.
4.8 Effectiveness. This Sixth Amendment shall be effective
automatically and without necessity of any further action by Borrower,
Administrative Agent or Banks when counterparts hereof have been executed by
Borrower, Administrative Agent and Required Banks, and all conditions to the
effectiveness hereof set forth herein and in the Credit Agreement have been
satisfied (including, without limitation, all conditions precedent set forth
in Section 2 hereof).
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment
to be duly executed by their respective Authorized Officers on the date and
year first above written.
[Signature pages to follow]
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SIGNATURE PAGE TO
SIXTH AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
DELTA PETROLEUM CORPORATION, AS BORROWER,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT
AND THE BANKS PARTY THERETO
BORROWER:
DELTA PETROLEUM CORPORATION,
a Colorado corporation
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
Each of the undersigned (i) consent and agree to this Sixth 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
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
PIPER PETROLEUM COMPANY,
a Colorado corporation
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
SIGNATURE PAGE TO
SIXTH AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
DELTA PETROLEUM CORPORATION, AS BORROWER,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT
AND THE BANKS PARTY THERETO
ADMINISTRATIVE AGENT:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By: /s/ J. Xxxxx Xxxxxx
J. Xxxxx Xxxxxx
Vice President
BANKS:
JPMORGAN CHASE BANK, N.A
By: /s/ J. Xxxxx Xxxxxx
J. Xxxxx Xxxxxx,
Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
DELTA PETROLEUM CORPORATION, AS BORROWER,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT
AND THE BANKS PARTY THERETO
BANK OF OKLAHOMA, N.A.
By: /s/ Xxxxx Rheem
Name: Xxxxx Rheem
Title: Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
DELTA PETROLEUM CORPORATION, AS BORROWER,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT
AND THE BANKS PARTY THERETO
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
DELTA PETROLEUM CORPORATION, AS BORROWER,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT
AND THE BANKS PARTY THERETO
HIBERNIA NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
DELTA PETROLEUM CORPORATION, AS BORROWER,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT
AND THE BANKS PARTY THERETO
COMERICA BANK
By: /s/ Xxxxxxx X. Purchase
Name: Xxxxxxx X. Purchase
Title: Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
DELTA PETROLEUM CORPORATION, AS BORROWER,
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT
AND THE BANKS PARTY THERETO
BANK OF SCOTLAND
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: First Vice President
