EIGHTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
EIGHTH AMENDMENT TO CREDIT AGREEMENT
This Eighth Amendment to Credit Agreement (this “Eighth Amendment”), dated as of
September 12, 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 “Banks,” and
individually, a “Bank”).
W I T N E S S E T H:
WHEREAS, Borrower, Administrative Agent 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 the Credit Agreement to permit Borrower’s
investment in Collbran Valley Gas Gathering, LLC; and
WHEREAS, subject to and upon the terms and conditions set forth herein, Required Banks have
agreed to Borrower’s request.
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 Required Banks hereby agree
as follows:
Section 1. Amendments. In reliance on the representations, warranties, covenants and
agreements contained in this Eighth 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 Definitions. The definitions of “Loan Papers” and
“Permitted Investments” 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 Seventh Amendment, the Eighth 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
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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 $71,000,000 (measured on a cost basis),
provided, that, any Investments in DHS in an aggregate amount
exceeding $21,000,000 (measured on a cost basis) shall only be permitted to the
extent such Investments are made either (i) with the proceeds received by Borrower
from the issuance and sale of Borrower’s Equity, and only to the extent such
proceeds have been specifically dedicated by Borrower for such Investment as
described and set forth in detail in the most recent certificate of Financial
Officer delivered to each Bank pursuant to Section 8.1(c) hereof, (ii) as
the result of the receipt of non-cash consideration from the issuance of Borrower’s
Equity and the contribution of such non-cash consideration to DHS, or (iii) with the
proceeds received by Borrower from any Specified Asset Sale made pursuant to and in
accordance and compliance with Section 9.5(b) hereof, and only to the extent
such proceeds have been specifically dedicated by Borrower for such Investment as
described and set forth in detail in the most recent certificate of Financial
Officer delivered to each Bank pursuant to Section 8.1(c) hereof, (g)
provided no Default, Event of Default or Borrowing Base Deficiency exists on the
date of any such Investment, and no Default, Event of Default or Borrowing Base
Deficiency would result therefrom, Investments in Collbran Valley Gas Gathering, LLC
in an aggregate amount outstanding at any time not to exceed $3,000,000 (measured on
a cost basis), and (h) other Investments; provided, that, the
aggregate amount of all other Investments made pursuant to this clause (h)
outstanding at any time shall not exceed $500,000 (measured on a cost basis).
1.2 Additional Definition. Section 1.1 of the Credit Agreement shall be amended to
add the following definition to such Section:
“Eighth Amendment” means that certain Eighth Amendment to Credit
Agreement dated as of September 12, 2006, among Borrower, Administrative Agent and
Banks party thereto.
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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
No Defaults. After giving effect to the amendments contained in Section 1 hereof, no
Default or Event of Default shall exist.
2.2 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.
2.3 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 3. Representations and Warranties of Borrower. To induce Banks and
Administrative Agent to enter into this Eighth 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 Eighth 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.
3.2 Validity and Enforceability. This Eighth 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 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.
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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 Eighth
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 Eighth 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 Eighth Amendment.
4.5 Counterparts. This Eighth Amendment may be executed in counterparts, and all
parties need not execute the same counterpart; however, no party shall be bound by this Eighth
Amendment until Borrower and Required Banks have executed a counterpart. Facsimiles shall be
effective as originals.
4.6 Complete Agreement. THIS EIGHTH 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 Eighth Amendment
are, unless specified otherwise, for convenience only and shall not be deemed to limit, amplify or
modify the terms of this Eighth Amendment, nor affect the meaning thereof.
4.8 Effectiveness. This Eighth 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).
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IN WITNESS WHEREOF, the parties hereto have caused this Eighth 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
EIGHTH 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
EIGHTH 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 |
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| By: | /s/ Xxxxx X. Xxxxx
|
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| Name: Xxxxx X. Xxxxx | ||||||
| Title: Treasurer and Chief Financial Officer | ||||||
Each of the undersigned (i) consent and agree to this Eighth 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 |
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| By: | /s/ Xxxxx X. Xxxxx
|
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| Name: Xxxxx X. Xxxxx Title: Chief Financial Officer |
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| PIPER PETROLEUM COMPANY, a Colorado corporation |
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| By: | /s/ Xxxxx X. Xxxxx
|
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| Name: Xxxxx X. Xxxxx Title: Chief Financial Officer |
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[Signature Page]
SIGNATURE PAGE TO
EIGHTH 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
EIGHTH 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 |
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| By: | /s/ J. Xxxxx Xxxxxx
Vice President |
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| BANKS: JPMORGAN CHASE BANK, N.A. |
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| By: | /s/ J. Xxxxx Xxxxxx
Vice President |
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[Signature Page]
SIGNATURE PAGE TO
EIGHTH 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
EIGHTH 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/ Xxxxxxx X. Xxxxx
|
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| Name: Xxxxxxx X. Xxxxx Title: Senior Vice President |
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[Signature Page]
SIGNATURE PAGE TO
EIGHTH 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
EIGHTH 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
|
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| Name: Xxxxxxx X. Xxxxxx Title: Vice President |
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[Signature Page]
SIGNATURE PAGE TO
EIGHTH 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
EIGHTH 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/ Xxxx X. Xxxxxx Xx.
|
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| Name: Xxxx X. Xxxxxx Xx. Title: Vice President |
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[Signature Page]
SIGNATURE PAGE TO
EIGHTH 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
EIGHTH 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. Xxxxxx
|
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| Name: Xxxxxxx X. Xxxxxx Title: Corporate Banking Officer |
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[Signature Page]
SIGNATURE PAGE TO
EIGHTH 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
EIGHTH 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
|
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| Name: Xxxxx Xxxxx Title: Assistant Vice President |
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[Signature Page]
