FOURTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.44
FOURTH AMENDMENT TO CREDIT AGREEMENT
This Fourth Amendment to Credit Agreement (this “Fourth Amendment”), dated as of
November 18, 2005 (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 “Banks,” and
individually, “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 (i) amend certain terms of the Credit Agreement in
certain respects, and (ii) reaffirm a Borrowing Base of $75,000,000 to be effective as of the
Effective Date and continuing until the next Redetermination or other adjustment (as provided in
the Credit Agreement) of the Borrowing Base thereafter; and
WHEREAS, subject to and upon the terms and conditions set forth herein, 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 Banks hereby agree as
follows:
Section 1. 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 hereof, the Credit Agreement is hereby amended effective as of the
Effective Date in the manner provided in this .
1.1 Amendment to Definitions. The definitions of “Loan Papers,”
“Permitted Investments” and “Restricted Subsidiary” 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 (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.
“Permitted Investments” means (a) readily marketable direct obligations
of the United States of America (or investments in mutual funds or similar funds
which invest solely in such obligations), (b) fully insured demand or time deposits
and certificates of deposit with maturities of one year or less of any commercial
bank operating in the United States having capital and surplus in excess of
$500,000,000, (c) commercial paper of a domestic issuer if at the time of purchase
such paper is rated in one of the two highest ratings categories of Standard and
Poor’s Corporation or Xxxxx’x Investors Service, (d) Investments by any Credit Party
in a Subsidiary of Borrower that has provided a Facility Guaranty and the Equity of
which has been pledged to Administrative Agent pursuant to a Borrower Pledge
Agreement or a Subsidiary Pledge Agreement, (e) Investments in Crystal Energy, LLC
existing on the Closing Date, (f) Investments in DHS in an aggregate amount
outstanding at any time not to exceed $21,000,000 (measured on a cost basis), and
(g) other Investments; provided, that, the aggregate amount of all
other Investments made pursuant to this clause (g) outstanding at any time shall not
exceed $500,000 (measured on a cost basis).
“Restricted Subsidiary” means, as of the Effective Date (as defined in
the Fourth Amendment), DEC and Piper, and shall also mean any other Subsidiary of
Borrower which Borrower thereafter designates as a “Restricted Subsidiary;”
provided, that, no Subsidiary of Borrower will be a Restricted
Subsidiary unless (a) one hundred percent (100%) of its issued and outstanding
Equity has been pledged to Administrative Agent to secure the Obligations pursuant
to a Borrower Pledge Agreement or a Subsidiary Pledge Agreement, and (b) it has
executed a Facility Guaranty.
1.2 Additional Definition. Section 1.1 of the Credit Agreement shall be amended to
add the following definition to such Section:
“Fourth Amendment” means that certain Fourth Amendment to Credit
Agreement dated as of November 18, 2005, among Borrower, Administrative Agent and
Banks party thereto.
1.3 Amendment to Borrowing Base Provision. Section 4.7 of the Credit Agreement shall
be amended and restated in its entirety to read in full as follows:
Section 4.7 Borrowing Base As of Fourth Amendment Effective Date.
Notwithstanding anything to the contrary contained herein, the Borrowing Base in
effect during the period commencing on the Effective Date (as defined in the Fourth
Amendment) and ending on the effective date of the first Redetermination or other
adjustment (as provided in the Credit Agreement) of the Borrowing Base after such
Effective Date shall be $75,000,000.
Section 2. Borrowing Base. In reliance on the representations, warranties, covenants
and agreements contained in the Credit Agreement and this Fourth Amendment, and subject to the
satisfaction of each condition precedent set for in hereof, Borrower, Administrative Agent and
Banks agree that the Borrowing Base in effect for the period from and after the Effective Date
until the next Redetermination or other adjustment (as provided in the Credit Agreement) of the
Borrowing Base thereafter shall be reaffirmed at $75,000,000. Borrower, Administrative Agent and
Banks agree that the Redetermination provided for in this shall not be construed or deemed to be a
Special Redetermination for purposes of Section 4.3 of the Credit Agreement.
Section 3. Release of Castle Guaranty. Borrower has heretofore, in the ordinary
course of its business, sold substantially all of the assets of Castle Texas Exploration Limited
Partnership (“Castle”) pursuant to the exercise of a preferential purchase right with
respect to such assets, and in connection therewith, Borrower (a) desires to dissolve Castle, and
(b) requests the release of the Facility Guaranty previously executed and delivered by Castle
pursuant to the Second Amendment (the “Castle Guaranty”). In reliance on the
representations, warranties, covenants and agreements contained in the Credit Agreement and this
Fourth Amendment, and subject to the satisfaction of the conditions precedent set forth in
Section 4 hereof, Banks hereby agree to the release of the Castle Guaranty and the
liabilities and obligations of Castle pursuant thereto as of the Effective Date.
Section 4. Conditions Precedent. The effectiveness of the amendments to the Credit
Agreement contained in hereof, the reaffirmation of the Borrowing Base contained in Section
2 hereof, and the agreement of Banks contained in Section 3 hereof, are subject to the
satisfaction of each condition precedent set forth in this :
4.1 No Defaults. After giving effect to the amendments contained in hereof, the
reaffirmation of the Borrowing Base contained in Section 2 hereof, and the agreement of
Banks contained in Section 3 hereof, no Default, Event of Default or Borrowing Base
Deficiency shall exist.
4.2 Fees and Expenses. Borrower shall have paid (a) 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, and (b) all
reasonable fees and expenses incurred by Administrative Agent in connection with the preparation,
negotiation and execution of this Fourth Amendment, including, without limitation, all reasonable
fees and expenses of Xxxxxx & Xxxxxx L.L.P., counsel to Administrative Agent.
4.3 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 5. Representations and Warranties of Borrower. To induce Banks and
Administrative Agent to enter into this Fourth Amendment, Borrower hereby represents and warrants
to Banks and Administrative Agent 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 Borrower 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. After giving effect to the amendments contained in hereof,
no Default or Event of Default has occurred which is continuing.
5.5 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 6. Miscellaneous.
6.1 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.
6.2 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 Fourth
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.
6.3 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.
6.4 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 Fourth Amendment.
6.5 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 Borrower and Banks have executed a counterpart. Facsimiles shall be effective as
originals.
6.6 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.
6.7 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.
6.8 Effectiveness. This Fourth 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 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 hereof).
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.
[Signature pages to follow]
SIGNATURE PAGE TO
FOURTH 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
FOURTH 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 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 | |||
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 Executive Officer | |||
[SIGNATURE PAGE]
SIGNATURE PAGE TO
FOURTH 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
FOURTH 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]
SIGNATURE PAGE TO
FOURTH 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
FOURTH 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 | |||
Xxxxx Rheem, | ||||
Vice President |
[SIGNATURE PAGE]
SIGNATURE PAGE TO
FOURTH 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
FOURTH 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 | |||
Xxxxxxx X. Xxxxxx, | ||||
Vice President |
[SIGNATURE PAGE]
SIGNATURE PAGE TO
FOURTH 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
FOURTH 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 | |||
Xxxxx X. Xxxxxxx, | ||||
Vice President |
[SIGNATURE PAGE]
SIGNATURE PAGE TO
FOURTH 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
FOURTH 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/ Xxxxx X. Xxxxxx | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Vice President | |||
[SIGNATURE PAGE]
SIGNATURE PAGE TO
FOURTH 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
FOURTH 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/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Assistant Vice President | |||
[SIGNATURE PAGE]