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...
As of
October 16, 2009
Teton
Energy Corporation
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Attention:
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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:
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:
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(a)
Section 2.1 of the Third Amendment is hereby amended effective as of the date
hereof by replacing each reference to “October 16, 2009” with “November 6,
2009”; and
(b) The
Lenders hereby agree that the Borrower’s financial statements for the quarter
ended September 30, 2009 shall be due to the Administrative Agent and each
Lender not later than November 30, 2009, notwithstanding the terms of Section
8.01(b) of the Credit Agreement.
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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.
2. 3. Conditions
Precedent. The amendments contained in Section 1 hereof
shall be effective as of the date when the following conditions precedent have
been satisfied:
3. (a) No
Default. No Default or Event of Default shall have occurred
which is continuing, other than the Specified Defaults.
4. (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.
5. 4. 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.
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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, counsel for Administrative Agent, via
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇ or via e-mail to ▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇.
[Signature
Pages Follow]
| TETON
ENERGY CORPORATION, as Borrower |
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By:
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| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, | |||
| President and Chief Operating Officer | |||
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.
| ACKNOWLEDGED AND AGREED TO BY: | |||
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TETON NORTH AMERICA
LLC,
as Guarantor |
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By:
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| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, | |||
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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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| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, | |||
| President and Chief Operating Officer | |||
| TETON
DJ LLC, as Guarantor |
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By:
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| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, | |||
| President and Chief Operating Officer | |||
| TETON
WILLISTON LLC, as Guarantor |
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By:
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| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, | |||
| President and Chief Operating Officer | |||
| TETON
BIG HORN LLC, as Guarantor |
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By:
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| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, | |||
| President and Chief Operating Officer | |||
| TETON
DJCO LLC, as Guarantor |
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By:
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| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, | |||
| President and Chief Operating Officer | |||
| JPMORGAN
CHASE BANK, N.A., as Administrative Agent and a Lender |
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By:
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| ▇▇▇▇ ▇▇▇▇▇▇, | |||
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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: | |||
| Title: |
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| GUARANTY
BANK AND TRUST COMPANY, as a Lender |
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By:
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| Name: | |||
| Title: |
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| U.S.
BANK NATIONAL ASSOCIATION, as a Lender |
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By:
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| Name: | |||
| Title: |
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[Signature
Page to Letter Agreement – Teton Energy Corporation]