Re: Third Amendment to Second Amended and Restated Credit Agreement and Forbearance Agreement (as amended, the “Third Amendment”) dated effective as of August 26, 2009, among Teton Energy Corporation, a Delaware corporation (“Borrower”), the financial...
Exhibit
10.1
As of
September 30, 2009
Teton
Energy Corporation
000
00xx
Xxxxxx, Xxxxx 0000 Xxxxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxxx Xxxxxxxxxx
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Re:
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Third
Amendment to Second Amended and Restated Credit Agreement and Forbearance
Agreement (as amended, the “Third
Amendment”) dated effective as of August 26, 2009, among Teton
Energy Corporation, a Delaware corporation (“Borrower”),
the financial institutions party thereto as lenders (“Lenders”),
and JPMorgan Chase Bank, N.A., as Administrative Agent (“Administrative
Agent”). Unless otherwise defined herein, all terms used
herein which are defined in the Third Agreement shall have the meaning
assigned to such terms in the Third
Amendment.
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Ladies
and Gentlemen:
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Borrower
has advised Administrative Agent and Lenders that it desires to amend certain
terms of the Third Amendment. In consideration of the mutual
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
confessed, the parties hereto hereby agree as follows:
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1.
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Amendments. In
reliance on the representations, warranties, covenants and agreements
contained in this letter agreement, and subject to the satisfaction of the
conditions precedent set forth in Section 3
hereof, the Third Amendment is hereby amended effective as of the date
hereof as follows:
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(a) Section 2.1 of the Third
Amendment. Section 2.1 of the Third Amendment is hereby
amended by replacing each reference to “September 30, 2009” with “October 16,
2009”.
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2.
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Representations and
Warranties. To induce Lenders and Administrative Agent
to enter into this letter agreement, Borrower hereby represents and
warrants to Lenders and Administrative Agent as
follows:
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(a) Reaffirm Existing
Representations and Warranties. Except for the representation
and warranties made in Sections 7.04(b) and 7.22, each representation and
warranty of Borrower and its Subsidiaries contained in the Credit Agreement is
true and correct on the date hereof and will be true and correct
after giving effect to this letter agreement (other than breaches which result
from the Specified Defaults).
(b) Due Authorization; No
Conflict. The execution, delivery and performance by Borrower
of this letter agreement 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 any of its Subsidiaries or result in the
creation or imposition of any Lien upon any of the assets of Borrower or any of
its Subsidiaries.
(c) Validity and
Enforceability. This letter agreement 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.
(d) No Default or Event of
Default. No Default or Event of Default has occurred which is
continuing, other than the Specified Defaults.
(e) No
Defense. Borrower acknowledges that Borrower has no defense to
(i) Borrower’s obligation to pay any amount payable under any Loan Document when
due, or (ii) the validity, enforceability or binding effect against Borrower of
the Credit Agreement or any of the other Loan Documents or any Liens intended to
be created thereby.
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3.
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Conditions
Precedent. The amendments contained in Section 1
hereof shall be effective as of the date when the following conditions
precedent have been satisfied:
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(a) No
Default. No Default or Event of Default shall have occurred
which is continuing, other than the Specified Defaults.
(b) Documents. Administrative
Agent shall have been provided with executed counterparts of this letter
agreement and such other documents, instruments and agreements, and Borrower and
each of its Subsidiaries shall have taken such actions, as the Administrative
Agent may reasonably require in connection with this letter agreement and the
transactions contemplated hereby.
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4.
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Miscellaneous. (a)
Borrower hereby agrees to pay on demand all reasonable fees and expenses
incurred by the Administrative Agent (including, without limitation,
reasonable fees and expenses of counsel to the Administrative Agent) in
connection with the preparation, negotiation and execution of this letter
agreement and all related documents, (b) this letter agreement may be
executed in counterparts, and all parties need not execute the same
counterpart; however, no party shall be bound by this letter agreement
until a counterpart hereof has been executed by Borrower and Lenders;
facsimiles or other electronic transmission (e.g., pdf) shall be
effective as originals, (c) THIS LETTER AGREEMENT REPRESENTS THE FINAL
AGREEMENT AMONG THE PARTIES REGARDING THE MATTERS SET FORTH HEREIN AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES, (d) this letter agreement constitutes a
“Loan Document” under and as defined in Section 1.02 of the Credit
Agreement, and (e) this letter agreement shall be governed by, and
construed in accordance with, the laws of the State of
Texas.
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Please
evidence your agreement to each of the provisions of this letter agreement by
executing a counterpart hereof where indicated and returning an executed
counterpart to Xxxxxxxxx X. Xxxxxxxx, counsel for Administrative Agent, via
facsimile number (000) 000-0000 or via e-mail to
xxxxxxxxx@xxxxx.xxx.
[Signature
Pages Follow]
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TETON ENERGY
CORPORATION, as Borrower
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By:
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Xxxxxxx
X. Xxxxxx XX,
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President
and Chief Operating Officer
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Each of
the undersigned (i) consent and agree to this letter agreement and each of the
terms and provisions contained herein, and (ii) agree that the Loan Documents 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.
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ACKNOWLEDGED
AND AGREED TO BY:
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TETON NORTH AMERICA LLC,
as Guarantor
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By:
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Xxxxxxx
X. Xxxxxx XX,
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President
and Chief Operating Officer
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TETON PICEANCE LLC, as
Guarantor
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By:
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Xxxxxxx
X. Xxxxxx XX,
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President
and Chief Operating Officer
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TETON DJ LLC, as
Guarantor
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By:
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Xxxxxxx
X. Xxxxxx XX,
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President
and Chief Operating Officer
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TETON WILLISTON LLC, as
Guarantor
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By:
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Xxxxxxx
X. Xxxxxx XX,
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President
and Chief Operating Officer
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TETON BIG HORN LLC, as
Guarantor
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By:
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Xxxxxxx
X. Xxxxxx XX,
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President
and Chief Operating Officer
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TETON DJCO LLC, as
Guarantor
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By:
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Xxxxxxx
X. Xxxxxx XX,
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President
and Chief Operating Officer
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JPMORGAN CHASE BANK,
N.A., as Administrative Agent and a Lender
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By:
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Xxxx
Xxxxxx,
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Managing
Director
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ROYAL BANK OF CANADA, as
Syndication Agent and a Lender
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By:
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Name:
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Title:
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GUARANTY BANK AND TRUST
COMPANY, as a Lender
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By:
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Name:
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Title:
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U.S. BANK NATIONAL
ASSOCIATION, as a Lender
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By:
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Name:
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Title:
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