As of September 15, 2009 Teton Energy Corporation Denver, Colorado 80202
Exhibit
10.1
As of
September 15, 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 (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, 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 15, 2009” with
“September 30, 2009”.
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(b)
Section 3.1 of
the Third Amendment. Section 3.1 of the Third Amendment
is hereby amended by inserting the following definition of “Indebtedness”
before the definition of “Interest Payment
Date”:
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“Indebtedness”
means any and all amounts owing or to be owing by Borrower, any
Subsidiary or any Guarantor (whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising): (a) to Administrative Agent,
the Issuing Bank or any Lender under any Loan Document; (b) to any Lender
or any Affiliate of a Lender under any Swap Agreement between Borrower or
any Subsidiary and such Lender or Affiliate of a Lender while such Person
(or in the case of its Affiliate, the Person affiliated therewith) is a
Lender hereunder; (c) to any Lender or any Affiliate of a Lender created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor) in connection with
treasury management services (including, without limitation, controlled
disbursement, automated clearinghouse transactions, return items,
overdrafts and interstate depository network services) provided to
Borrower, any Subsidiary or any Guarantor by any Lender or any of its
Affiliates; and (d) all renewals, extensions and/or rearrangements of any
of the above.
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(c)
Section 7.5 of the
Third Amendment. Section 7.5 of the Third Amendment is
hereby amended by replacing the reference to “September 15, 2009” with
“September 30, 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).
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(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.
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(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.
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(d)
No Default or Event of
Default. No Default or Event of Default has occurred
which is continuing, other than the Specified Defaults.
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(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.
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(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 ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, counsel for Administrative Agent, via
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇ or via e-mail to ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇.
[Signature
Pages Follow]
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TETON ENERGY
CORPORATION, as Borrower
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By:
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▇. ▇▇▇▇▇▇ ▇▇,
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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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▇. ▇▇▇▇▇▇ ▇▇,
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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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▇. ▇▇▇▇▇▇ ▇▇,
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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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President
and Chief Operating Officer
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TETON WILLISTON LLC, as
Guarantor
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By:
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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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▇. ▇▇▇▇▇▇ ▇▇,
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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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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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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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[Signature
Page to Letter Agreement – Teton Energy Corporation]