AMENDED AND RESTATED TERM LOAN AGREEMENT
This AMENDED AND RESTATED TERM LOAN AGREEMENT (the "Agreement") is
made and entered into as of September 26, 2006, between DUNE ENERGY, INC. (the
"Company"), a Delaware corporation, and ITERA HOLDINGS BV (the "Lender"), a
Netherlands company.
BACKGROUND
The Company and the Lender entered into a term loan agreement as of
November 17, 2005, which was amended and restated on August 31, 2006 and the
Company and the Lender now desire to further amend and restate the Term Loan
Agreement ("Term Loan Agreement") pursuant to the terms and conditions hereof.
In the Term Loan Agreement prior to this Agreement, the Company
expressed the desire that the Lender extend financing to the Company on the
terms and conditions set forth in the Term Loan Agreement. The Lender expressed
its willingness and continues to express its willingness herein to provide such
financing on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Company and the Lender agree as follows:
ARTICLE I
LOAN AND NOTE
Section 1.01 Term Loan.
Subject to all of the terms and conditions of this Agreement, on (a)
November 17, 2005, the Company obtained a loan from the Lender in an amount not
to exceed $8,500,000, representing the aggregate principal amount of the
Existing Notes, in which event the Existing Notes were deemed superseded by the
Convertible Subordinated Note and were deemed paid as a result of the issuance
of the Convertible Subordinated Note and are no longer of any force or effect
(b) the First-Tranche Term Loan Funding Date, the Company obtained a loan from
the Lender in an amount not to exceed $12,500,000 (the "First-Tranche
Commitment"); and (c) the Second-Tranche Term Loan Funding Date, the Company
obtained a loan from the Lender in an amount not to exceed the difference of (1)
$25,000,000 and (2) the sum of the aggregate amounts advanced under the Existing
Notes and the amount advanced under clauses (a) and (b) above (the
"Second-Tranche Commitment"; and the Second-Tranche Commitment, together with
the amount set forth in clause (a) above and the First-Tranche Commitment, the
"Commitment"); provided, however, that the aggregate principal amount of the
Commitment shall in no event exceed $25,000,000. Once advanced, amounts drawn
under the loans may not be readvanced, notwithstanding any payments hereunder.
Such loans hereunder shall be evidenced by an Amended and Restated
Convertible Subordinated Note (the "Note"), payable to the order of the Lender
in the principal amount of the Commitment, dated as of the date that such loan
is made to the Company, in the form of Exhibit 1.01 attached hereto. The Note
shall be executed by the Company and delivered to the Lender on the date hereof.
Section 1.02 Use of Proceeds.
The Company represents, warrants and agrees that the proceeds of the
loans made hereunder will be used solely for the following purposes: (i) funding
for the repayment to the Lender of the existing subordinated promissory notes
(1) in the principal amount of $5,000,000 dated March 30, 2005, (2) in the
principal amount of $1,500,000 dated June 23, 2005 and (3) in the principal
amount of $2,000,000 dated August 12, 2005, in each case plus all accrued
interest thereon (the notes described in this clause (i), the "Existing Notes");
(ii) funding for a portion of the acquisition cost of certain specified oil and
gas properties and related assets from Voyager Partners, Ltd.; (iii) funding for
a development drilling program, the acquisition of ownership interest in three
Pipeline Limited Partnerships in the Xxxxxxx Shale and other corporate needs of
the Company; and (iv) funding for the payment of out-of-pocket costs and
expenses (including the Lender's costs and expenses) in connection with the
negotiation, preparation, execution, delivery, and administration of this
Agreement, the Note and any other document required hereunder or thereunder. As
of September 14, 2006, the Company desired that the Lender advance the sum of
$4,500,000, representing the balance of its Commitment. The Lender advanced such
amount, in accordance with the terms of this Agreement, and in accordance with
the terms of the Amended and Restated Convertible Promissory Note.
Section 1.03 Facility Fee.
On November 17, 2005, the Company paid to the Lender a Facility Fee
in an amount equal to 1% of the aggregate principal amount of the Commitment.
ARTICLE II
ADMINISTRATION OF CREDIT
Section 2.01 Payments on the Loans.
The interest rate on the loans will be as set forth in the Note.
Interest on the loans (including from and after the occurrence and during the
continuance of an Event of Default) will be computed in accordance with the
terms of the Note, and Principal and Interest will be due and payable on the
dates and in the amounts as set forth in the Note.
Section 2.02 Borrowing Procedure.
The Company will request the loans hereunder by written notice in
the form of Exhibit 2.02, or by telephonic notice (which notice shall be
confirmed in writing if the Lender so requests), which notice will be
irrevocable, to the Lender not later than three Business Days before the
proposed Borrowing Date. In the event of any inconsistency between the
telephonic notice and the written confirmation thereof, the telephonic notice
will control. Such request will be effective upon receipt by the Lender and will
specify (i) the amount of the requested loan (subject to the limitations set
forth in Section 1.01); and (ii) the proposed date of the making of the
applicable loan.
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Section 2.03 Changes in Law Rendering Loan Unlawful.
In the event that any Regulatory Change should make it (or, in the
good faith judgment of the Lender, should raise substantial questions as to
whether it is) unlawful for the Lender to make, maintain or fund the loans, (i)
the Lender will promptly notify the Company; and (ii) the obligation of the
Lender to make the loans shall, upon the effectiveness of such event, be
suspended for the duration of such unlawfulness.
Section 2.04 Increased Costs.
If any Regulatory Change,
(a) shall subject the Lender to any tax, duty or other charge with
respect to the loans hereunder, or shall change the basis of
taxation of payments to the Lender of the principal or
interest on the loans hereunder, or any other amounts due
under this Agreement in respect of the loans, or its
obligation to make the loans hereunder (except for changes in
the rate of tax on the overall net income of the Lender);
(b) shall impose, modify or make applicable any reserve
(including, without limitation, any reserve imposed by the
Board of Governors of the Federal Reserve System), special
deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, the Lender;
or
(c) shall impose on the Lender any other condition affecting the
loans hereunder;
and the result of any of the foregoing is to increase the cost to
the Lender of making or maintaining the loans hereunder, or to reduce the amount
of any sum received or receivable by the Lender under this Agreement and any
document or instrument related hereto; then upon notice from the Lender (which
notice shall be accompanied by a statement setting forth in reasonable detail
the basis of such increased cost or other effect on the loans), the Company
shall pay directly to the Lender, on demand, such additional amount or amounts
as will compensate the Bank for such increased cost or such reduction.
Section 2.05 Limitation on Prepayment.
Only after all of the Senior Obligations have been paid in full and
all commitments under the Senior Credit Facility cancelled, the Company may,
upon five Business Days' prior written notice to the Lender, prepay the
Commitment in whole or in part on any Interest Date, without premium or penalty.
All prepayments shall be accompanied by Interest accrued on the amount prepaid
through the date of prepayment. In the case of prepayment of less than all of
the outstanding Principal amount of the Note, such prepayment shall be in the
minimum amount of $500,000 or a multiple of $100,000 in excess thereof (or a
lesser amount if such amount represents the remaining outstanding principal
amount of the Note).
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Section 2.06 Funding Losses.
The Company hereby agrees that upon demand by the Lender (which
demand shall be accompanied by a statement setting forth in reasonable detail
the basis for the calculations of the amount being claimed) the Company will
indemnify the Lender against any loss or expense which the Lender may sustain or
incur (including, without limitation, any net loss or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by the
Lender to fund or maintain the loans and any loss of anticipated return), as
reasonably determined by the Lender, as a result of any payment or prepayment of
the loans on a date other an Interest Date whether or not required by any other
provisions of this Agreement.
Section 2.07 Taxes.
(a) Except as provided in this Section 2.07, any and all payments
by the Company to or for the account of the Lender under this
Agreement or the Note shall be made free and clear of and
without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and all liabilities
(including additions to tax, penalties and interest) with
respect thereto, excluding, in the case of the Lender, taxes
imposed on or measured by its net income or overall gross
income, and franchise (and similar) taxes imposed on it in
lieu of net income taxes, by the jurisdiction (or any
political subdivision thereof) under the laws of which the
Lender is organized, is (or was, during the relevant period)
doing business, and all liabilities (including additions to
tax, penalties and interest) with respect thereto (all such
non-excluded taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and
liabilities, the "Taxes").
(b) If the Company shall be required by Applicable Law to deduct
any Taxes from or in respect of any sum payable under this
Agreement or the Note to the Lender, (i) except to the extent
provided in Sections 2.07(e) and (f), the sum payable shall be
increased as necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 2.07) the Lender receives an amount
equal to the sum it would have received had no such deductions
been made, (ii) the Company shall make such deductions, (iii)
the Company shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with
Applicable Law and (iv) within 30 days after the date of such
payment, the Company shall furnish to the Lender the original
or a certified copy of a receipt evidencing payment thereof to
the extent such a receipt is issued therefor, or other written
proof of payment thereof that is reasonably satisfactory to
the Lender.
(c) The Company also agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise,
property or intangible taxes or charges or similar levies
which arise from any payment made under this Agreement or the
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Note or from the execution, delivery, performance, enforcement
or registration of, or otherwise with respect to, this
Agreement or the Note (the "Other Taxes").
(d) The Company agrees to indemnify the Lender for (i) the full
amount of Taxes and Other Taxes (including any Taxes or Other
Taxes imposed or asserted by any jurisdiction on amounts
payable under this Section 2.07) paid by the Lender and (ii)
any liability (including additions to tax, penalties, interest
and expenses) arising therefrom or with respect thereto, in
each case whether or not such Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant
governmental authority; provided the Lender provides the
Company with a written statement thereof setting forth in
reasonable detail the basis and calculation of such amounts.
Payment under this Section 2.07(d) shall be made within 30
days after the date the Lender makes a demand therefor.
(e) The Company shall not be required pursuant to this Section
2.07 to pay any additional amount to, or to indemnify, the
Lender to the extent that the Lender becomes subject to Taxes
subsequent to the date hereof as a result of a change in the
place of organization of the Lender, except to the extent that
any such change is requested or required in writing by the
Company (and provided that nothing in this clause (e) shall be
construed as relieving the Company from any obligation to make
such payments or indemnification in the event of a change in
place of organization that precedes a change in Applicable Law
to the extent such Taxes result from a change in Applicable
Law).
(f) If the Lender is subject to United States withholding tax at a
rate in excess of zero percent on the date hereof, withholding
tax at such rate shall be considered excluded from Taxes
unless and until the Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from
Taxes for periods governed by such forms.
(g) If the Lender shall become aware that it is entitled to
receive a refund in respect of amounts paid by the Company
pursuant to this Section 2.07, which refund in the good faith
judgment of the Lender is allocable to such payment, it shall
promptly notify the Company of the availability of such refund
and shall, within 30 days after the receipt of a request by
the Company, apply for such refund; provided that in the sole
reasonable judgment of the Lender, applying for such refund
would not be disadvantageous to it.
(h) If the Lender receives a refund in respect of any Taxes or
Other Taxes as to which indemnification or additional amounts
have been paid to it by the Company pursuant to this Section
2.07, it shall promptly remit such refund (including any
interest included in such refund) to the Company (to the
extent that it determines that it can do so without prejudice
to the retention of the refund), net of all out-of-pocket
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expenses of the Lender; provided that the Company, upon the
request of the Lender, agrees promptly to return such refund
to such party in the event such party is required to repay
such refund to the relevant taxing authority. The Lender
shall, at the Company's request, provide the Company with a
copy of any notice of assessment or other evidence of the
requirement to repay such refund received from the relevant
taxing authority; provided that the Lender may delete any
information therein that the Lender deems confidential.
(i) Nothing in this Section 2.07 shall interfere with the right of
the Lender to arrange its tax affairs in whatever manner it
thinks fit nor oblige the Lender to claim any tax refund or to
disclose any information relating to its tax affairs or any
computations in respect thereof or require the Lender to do
anything that would prejudice its ability to benefit from any
other refunds, credits, reliefs, remissions or repayments to
which it may be entitled.
Section 2.08 Conclusiveness of Statements; Survival of Provisions.
Determinations and statements of the Lender pursuant to Sections
2.03, 2.04, 2.06 and 2.07 shall be rebuttably presumptive evidence of the
correctness of the determinations and statements and shall be conclusive absent
manifest error. The provisions of Sections 2.04, 2.06 and 2.07 shall survive the
obligation of the Lender to extend credit under this Agreement and the repayment
of the loans.
Section 2.09 Set Off.
Only after all of the Senior Obligations have been paid in full and
all commitments under the Senior Credit Facility cancelled, if any Event of
Default occurs hereunder, the Lender may offset and apply any indebtedness or
any other payment obligation at any time owing by the Lender to or for the
credit of the account of the Company against any and all of the obligations of
the Company now or hereafter existing under this Agreement or the Note, whether
or not the Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. Promptly after any such offset, the Lender
shall give the Company notice thereof; provided, however, that the failure to
give such notice shall not affect the validity of such offset.
ARTICLE III
CONDITIONS OF BORROWING
Without limiting any of the other terms of this Agreement, the
Lender shall not be required to make the loans to the Company hereunder:
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Section 3.01 Representations.
Unless the representations and warranties contained in Article IV
hereof continue to be true and correct on the date of such loan, no Event of
Default hereunder shall have occurred and be continuing, and no condition or
event shall exist or have occurred which with the passage of time, the giving of
notice or both would constitute an Event of Default hereunder.
Section 3.02 Senior Agreement.
(a) Unless the Company shall have delivered to the Lender an
executed copy of the Credit Agreement among the Company, X.X.
Xxxxx Special Opportunities Fund, L.P., as administrative
agent (in such capacity, the "Administrative Agent"),
Petrobridge Investment Management LLC as sole lead arranger
(in such capacity, the "Sole Lead Arranger"), and the lenders
party thereto, substantially in the form of Exhibit 3.02 (as
amended, restated, supplemented or otherwise modified from
time to time as permitted by Section 7.02, the "Senior
Agreement") containing such terms and conditions as is
acceptable to the Lender; and all other documents constituting
the Senior Obligations shall have been duly executed and
delivered by the parties thereto. References to the "Senior
Agreement" in this Agreement and references to the Credit
Agreement in the Note shall be deemed to refer to the same
Agreement.
(b) Unless the Company shall have satisfied the applicable closing
conditions of Article VI of the Senior Agreement, including
(i) with respect to the Closing Date Commitment, Section 6.01
of the Senior Agreement; (ii) with respect to the
First-Tranche Commitment, Section 6.02 of the Senior
Agreement; and (iii) with respect to the Second-Tranche
Commitment, Section 6.03 of the Senior Agreement.
Section 3.03 Note.
Unless the Note shall have executed and delivered by the Company to
the Lender.
Section 3.04 Opinions.
(a) Unless the Lender shall have received from the Company's
counsel a satisfactory opinion as to such matters relating to
the Company and its Subsidiaries and the validity and
enforceability of this Agreement and the Note, the loans to be
made hereunder and the other documents required by this
Article III as the Lender shall reasonably require. The
Company shall execute and/or deliver to the Lender or the
Lender's counsel such documents concerning its corporate
status and the authorization of such transactions as may be
requested.
(b) Unless the Lender shall have received from an investment
banking firm of nationally recognized standing and mutually
acceptable to the Company and the Lender a satisfactory
opinion as to such matters relating to the Company, the loan
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to be made hereunder (including but not limited to affirming
the fairness of such loans) and the other documents required
by this Article III as the Lender shall reasonably require.
Section 3.05 Proceedings Satisfactory.
Unless all proceedings taken in connection with the transactions
contemplated by this Agreement, and all instruments, authorizations and other
documents applicable thereto, shall be satisfactory in form and substance to the
Lender and its counsel.
Section 3.06 Shareholder or Other Approval.
Unless the Company shall have obtained all necessary approvals,
including approvals of its board of directors, its shareholders and the
Principal Market, if required.
Section 3.07 Existing Notes.
Unless the Company has paid in full all accrued and outstanding
interest under the Existing Notes.
Section 3.08 Acquisition Documents.
Solely with respect to the First-Tranche Commitment and the
Second-Tranche Commitment, unless the transactions contemplated by the Asset
Purchase And Sale Agreement between Voyager Partners, Ltd., a Texas limited
partnership, and the Company dated as of June 13, 2005 (as amended, restated,
supplemented, or otherwise modified from time to time, the "Purchase Agreement")
shall have been consummated in accordance therewith and with any bills of sale,
assignments, agreements, instruments and documents executed and delivered in
connection therewith (it being understood that such transactions shall include,
but not be limited to, the acquisition by the Company of at least $25,000,000 in
assets under the Purchase Agreement).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to make the loans as provided herein,
the Company represents and warrants to the Lender as follows:
Section 4.01 Authority.
The execution, delivery and performance of this Agreement and the
Note are within the corporate powers of the Company, have been duly authorized
by all necessary corporate action and do not and will not (i) require any
consent or approval of the stockholders of the Company; (ii) violate any
provision of the articles of incorporation or by-laws of the Company or of any
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to the Company or any
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Subsidiary; (iii) require the consent or approval of, or filing or registration
with, any governmental body, agency or authority; or (iv) result in a breach of
or constitute a default under, or result in the imposition of any Lien (except
Permitted Liens) upon any property of the Company or any Subsidiary pursuant to,
any indenture or other agreement or instrument under which the Company or any
Subsidiary is a party or by which it or its properties may be bound or affected.
This Agreement constitutes, and the Note and each of the other documents
required by Article III when executed and delivered hereunder will constitute,
the legal, valid and binding obligations of the Company enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy and similar laws affecting the enforceability of creditors' rights
generally.
Section 4.02 Representations and Warranties Under the Senior
Agreement.
The Company represents and warrants to the Lender all the matters
set forth in Article VII of the Senior Agreement to the same extent, in all
respects, as if set forth herein and constituting representation and warranties
from the Company to the Lender under which the Lender would occupy the same
position as the Administrative Agent under the Senior Agreement; and the Company
will notify the Lender promptly in writing of all consents, waivers, amendments
and modifications of or with regard to such representations and warranties.
ARTICLE V
AFFIRMATIVE COVENANTS
While any part of the credit granted to the Company is available and
while any part of the Principal of or Interest on the Note remains unpaid, and
unless waived in writing by the Lender, the Company shall:
Section 5.01 Notice of Default.
Promptly, and in any event within 10 days, after the Company has
knowledge thereof, deliver a statement of the chief financial officer of the
Company describing: (i) any event which, either of itself or with the lapse of
time or the giving of notice or both, would constitute a default hereunder or
under any other material agreement to which the Company is a party, together
with a statement of the actions which the Company proposes to take with respect
thereto; (ii) any pending or threatened litigation or administrative proceeding
which could reasonably be expected to have a material adverse effect on the
Company; and (iii) any fact or circumstance which is materially adverse to the
property, financial condition or business operations of the Company.
Section 5.02 Covenants Under Senior Agreement.
Comply with all of the terms, provisions and covenants of Article
VIII and IX of the Senior Agreement to the same extent, in all respects, as if
set forth herein and constituting agreements between the Company and the Lender
under which the Lender would occupy the same position as the Administrative
Agent under the Senior Agreement; and notify the Lender promptly in writing of
all consents, waivers, amendments and modifications of or with regard to the
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Senior Agreement or the Senior Obligations, which consents, waivers, amendments
and modifications shall be effective hereunder to the same extent as under the
Senior Agreement.
ARTICLE VI
DEFAULTS
Section 6.01 Defaults.
The occurrence of any one or more of the Events of Default (under
and as defined in the Note) shall constitute an "Event of Default" hereunder. As
to each Event of Default, the Lender shall have all the remedies for default
provided by the Note.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Definitions.
Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms by the Senior Agreement.
Section 7.02 Modifications of Senior Agreement.
No consent, waiver, termination, amendment or other modification of
or with respect to the Senior Agreement shall affect the rights of the Lender
under this Agreement.
Section 7.03 Other Definitions.
As used herein:
(a) the term "Administrative Agent" has the meaning set forth in
Section 3.02(a).
(b) the term "Agreement" has the meaning set forth in the
preamble.
(c) the term "Applicable Law" means, as applied to any Person, all
provisions of constitutions, statutes, laws, rules,
regulations, and orders, decisions and decrees of any
governmental authority applicable to such Person, and all
orders and decrees of all courts and arbitrators in
proceedings or actions to which the Person in question is a
party or by which it is bound.
(d) the term "Commitment" has the meaning set forth in Section
1.01.
(e) the term "Company" has the meaning set forth in the preamble.
(f) the term "Event of Default" has the meaning set forth in
Section 6.01.
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(g) the term "Existing Notes" has the meaning set forth in Section
1.02.
(h) the term "First-Tranche Commitment" has the meaning set forth
in Section 1.01.
(i) the term "First-Tranche Term Loan Funding Date" has the
meaning set forth in the Senior Agreement.
(j) the term "Interest" has the meaning set forth in the Note.
(k) the term "Interest Date" has the meaning set forth in the
Note.
(l) the term "Lender" has the meaning set forth in the preamble.
(m) the term "Lien" has the meaning set forth in the Note.
(n) the term "Other Taxes" has the meaning set forth in Section
2.07(c).
(o) the term "Permitted Lien" has the meaning set forth in the
Note.
(p) the term "Principal" has the meaning set forth in the Note.
(q) the term "Purchase Agreement" has the meaning set forth in
Section 3.08.
(r) the term "Regulatory Change" means any change enacted or
issued after the date of this Agreement of any (or the
adoption after the date of this Agreement of any new) federal
or state law, regulation, interpretation, direction, policy or
guideline, or any court decision, which affects the treatment
of any extensions of credit of the Lender.
(s) the term "Second-Tranche Commitment" has the meaning set forth
in Section 1.01.
(t) the term "First-Tranche Term Loan Funding Date" has the
meaning set forth in the Senior Agreement.
(u) the term "Senior Agreement" has the meaning set forth in
Section 3.02(a).
(v) the term "Senior Obligations" has the meaning set forth in the
Note.
(w) the term "Sole Lead Arranger" has the meaning set forth in
Section 3.02(a).
(x) the term "Taxes" has the meaning set forth in Section 2.07(c).
Section 7.04 Expenses; Indemnity.
(a) The Company shall pay, or reimburse, the Lender for (i) all
reasonable out-of-pocket costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses)
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paid or incurred by the Lender in connection with the
negotiation, preparation, execution, delivery, and
administration of this Agreement, the Note and any other
document required hereunder or thereunder, including without
limitation any amendment, supplement, modification or waiver
of or to any of the foregoing; (ii) all reasonable
out-of-pocket costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) paid or
incurred by the Lender before and after judgment in enforcing,
protecting or preserving its rights under this Agreement, the
Note and any other document required hereunder or thereunder,
including without limitation the enforcement of rights
against, or realization on, any collateral or security
therefor; and (iii) any and all recording and filing fees, if
any, which may be payable or determined to be payable in
connection with the negotiation, preparation, execution,
delivery, administration or enforcement of this Agreement, the
Note or any other document required hereunder or thereunder or
any amendment, supplement, modification or waiver of or to any
of the foregoing, or consummation of any of the transactions
contemplated hereby or thereby; it being understood that to
the extent the foregoing costs, expenses and fees are incurred
(1) prior to the date hereof, such costs, expenses and fees
shall be paid by the Company on the date hereof and (2) on or
after the date hereof, such costs, expenses and fees shall be
paid by the Company through either of the following methods,
in the sole discretion of the Lender: (x) in immediately
available funds upon the demand of the Lender or (y) by
application of any payment by the Company due under the Note.
(b) The Company agrees to indemnify the Lender against any and all
losses, claims, damages, liabilities and expenses, (including,
without limitation, reasonable attorneys' fees and expenses)
incurred by the Lender arising out of, in any way connected
with, or as a result of (i) any acquisition or attempted
acquisition of stock or assets of another Person by the
Company or any Subsidiary; (ii) the use of any of the proceeds
of the loans made hereunder by the Company or any Subsidiary
for the making or furtherance of any such acquisition or
attempted acquisition; (iii) the construction or operation of
any facility owned or operated by the Company or any
Subsidiary, or resulting from any pollution or other
environmental condition on the site of, or caused by, any such
facility; (iv) the negotiation, preparation, execution,
delivery, administration, and enforcement of this Agreement,
the Note and any other document required hereunder or
thereunder, including without limitation any amendment,
supplement, modification or waiver of or to any of the
foregoing or the consummation or failure to consummate the
transactions contemplated hereby or thereby, or the
performance by the Company of its obligations hereunder or
thereunder; and (v) any claim, litigation, investigation or
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proceedings related to any of the foregoing, whether or not
the Lender is a party thereto; provided, however, that such
indemnity shall not apply to any such losses, claims, damages,
liabilities or related expenses (or portion thereof) arising
from (A) any unexcused breach by the Lender of its obligations
under this Agreement; (B) any Commitment made by the Lender to
a Person other than the Company or any Subsidiary which would
be breached by the performance of the Lender's obligations
under this Agreement; or (C) the Lender's gross negligence or
willful misconduct.
(c) The foregoing agreements and indemnities shall remain
operative and in full force and effect regardless of
termination of this Agreement, the consummation of or failure
to consummate either the transactions contemplated by this
Agreement or any amendment, supplement, modification or
waiver, the repayment of the loans made hereunder, the
invalidity or unenforceability of any term or provision of
this Agreement or the Note or any other document required
hereunder or thereunder, any investigation made by or on
behalf of the Lender, the Company or any Subsidiary, or the
content or accuracy of any representation or warranty made
under this Agreement or any other document required hereunder.
Section 7.05 Securities Act of 1933.
The Lender represents that it is acquiring the Note without any
present intention of making a sale or other distribution of the Note, provided
the Lender reserves the right to sell the Note subject to limitations set forth
on the face of the Note.
Section 7.06 Successors.
The provisions of this Agreement shall inure to the benefit of any
holder of one or more of the Note, and shall inure to the benefit of and be
binding upon any successor to any of the parties hereto. No delay on the part of
the Lender or any holder of any of the Note in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise of any right, power or privilege hereunder preclude other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein specified are cumulative and are not exclusive of
any rights or remedies which the Lender or the holder of any of the Note would
otherwise have.
Section 7.07 Survival.
All agreements, representations and warranties made herein shall
survive the execution of this Agreement, the making of the loans hereunder and
the execution and delivery of the Note.
Section 7.08 New York Law.
This Agreement and the Note issued hereunder shall be governed by
and construed in accordance with the internal laws of the State of New York,
except to the extent superseded by federal law.
- 13 -
Section 7.09 Counterparts.
This Agreement may be signed in any number of counterparts with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
Section 7.10 Notices.
All communications or notices required under this Agreement shall be
deemed to have been given on the date when delivered to the addressee (a) by an
overnight courier of recognized standing, all fees and charges, prepaid, and
addressed to the party in accordance with Exhibit 7.10 (unless and until any of
the parties advises the others in writing of a change in such address) or (b) by
facsimile transmission, provided that any communication or notice transmitted by
facsimile shall be immediately confirmed by a telephone call to the recipient at
the number specified on Exhibit 7.10 (unless and until any of the parties
advises the others in writing of a change in such facsimile number).
Section 7.11 Assignments.
The Company agrees that the Lender may, at its option, sell or
assign its interests in the Note to other Persons and, in connection with and
after each such sale or assignment, disclose to any such Person any financial
information the Lender may have concerning the Company and its Subsidiaries.
Section 7.12 Entire Agreement; No Agency.
This Agreement and the other documents referred to herein contain
the entire agreement between the Lender and the Company with respect to the
subject matter hereof, superseding all previous communications and negotiations,
and no representation, undertaking, promise or condition concerning the subject
matter hereof shall be binding upon the Lender unless clearly expressed in this
Agreement or in the other documents referred to herein. Nothing in this
Agreement or in the other documents referred to herein and no action taken
pursuant hereto shall cause the Company to be treated as an agent of the Lender,
or shall be deemed to constitute the Lender and the Company a partnership,
association, joint venture or other entity.
Section 7.13 Consent to Jurisdiction.
Each of the Lender and the Company hereby consents to the exclusive
jurisdiction of any state or federal court situated in New York County, New
York, and waives any objection based on lack of personal jurisdiction, improper
venue or forum non conveniens, with regard to any actions, claims, disputes or
proceedings relating to this Agreement, the Note or any other document delivered
hereunder or in connection herewith, or any transaction arising from or
connected to any of the foregoing. Each of the Lender and the Company waives
personal service of any and all process upon it, and consents to all such
service of process made by mail or by messenger directed to it at the address
specified below. Nothing herein shall affect any party's right to serve process
in any manner permitted by law, or limit any party's right to bring proceedings
against any other party or its property or assets in the competent courts of any
other jurisdiction or jurisdictions.
- 14 -
Section 7.14 Waiver of Jury Trial.
The Company and the Lender hereby jointly and severally waive any
and all right to trial by jury in any action or proceeding relating to this
Agreement, the Note or any other document delivered hereunder or in connection
herewith, or any transaction arising from or connected to any of the foregoing.
The Company and the Lender each represent that this waiver is knowingly,
willingly and voluntarily given.
Section 7.15 Subordination and Other Provisions of the Note.
Except to the extent otherwise set forth herein, this Agreement is
subject to the terms and conditions (including, but not limited to Section 9) of
the Note.
Section 7.16 Amendments, Waivers, etc.
No amendment, modification or waiver of, or consent with respect to,
any provision of this Agreement or the Note shall in any event be effective
unless the same shall be in writing and signed by the Company and the Lender (it
being understood that such amendment, modification, waiver or consent shall not
materially adversely affect the rights of the Senior Lenders, the Administrative
Agent, or the Collateral Agent under or in connection with this Agreement or the
Note).
Section 7.17 Termination.
This Agreement and the obligations hereunder shall terminate in
accordance with Section 1 of the Note.
Section 7.18 Ratification.
All matters occurring and actions taken pursuant to the Term Loan
Agreement executed as of November 17, 2005 and amended and restated on August
31, 2006, are hereby ratified and confirmed in all respects. Except as amended
by this Amended and Restated Term Loan Agreement, the terms and conditions of
the Term Loan Agreement dated November 17, 2005, as amended on August 31, 2006,
are hereby ratified and affirmed in all respects.
[signature page follows]
- 15 -
DUNE ENERGY, INC.
By:
-------------------------------------
Name:
Title:
ITERA HOLDINGS BV
By:
-------------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED TO BY:
X.X. XXXXX SPECIAL OPPORTUNITIES FUND, L.P.,
as Administrative Agent under the Senior Agreement
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
S-1
EXHIBIT 1.01
FORM OF NOTE
(See Attached.)
Exhibit 1.01 - Page 1
EXHIBIT 2.02
LOAN REQUEST
_______________, _____
Itera Holdings BV
c/o Itera International Energy Corporation
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Re: Amended and Restated Term Loan Agreement dated as of September __,
2006 (the "Agreement")
Gentlemen:
The undersigned hereby applies to you for a loan under the Agreement
to be made on ____________, _____ in the principal amount of $_______________.
The undersigned hereby certifies as follows:
(a) All of the representations and warranties set forth in Article
IV of the Agreement continue to be true on the date hereof.
(b) At the date hereof, no Default or Event of Default under the
Agreement has occurred and is continuing.
(c) There has been no material adverse change in the business
operations or financial condition of the undersigned and its
Subsidiaries, taken as a whole, since ________________, _____.
Capitalized definitional terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Agreement.
Very truly yours,
DUNE ENERGY, INC.
Name:
--------------------------
Title:
--------------------------
Exhibit 2.02 - Page 1
EXHIBIT 3.02
SENIOR AGREEMENT
(See Attached.)
Exhibit 3.02 - Page 1
EXHIBIT 7.10
NOTICE ADDRESSES
If to the Company:
Dune Energy, Inc.
0000 Xxxx Xxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxx, Chief Financial Officer
Telephone: 000-000-0000
Facsimile: 713-888-0899
If to the Lender:
Itera Holdings BV
c/o Itera International Energy Corporation
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
Exhibit 7.10 - Page 1
