SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
August 25, 1999
DELTA PETROLEUM CORPORATION
(Exact name of registrant as specified in its charter)
Colorado 0-16203 84-1060803
(State of Commission (I.R.S. Employer
Incorporation) File No. Identification No.)
Suite 3310
555 17th Street
Denver, Colorado 80202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (303) 293-9133
ITEM 5. OTHER EVENTS
On August 2, 1999 the Company paid Whiting Petroleum Corporation,
a wholly owned subsidiary of Alliant Energy (NYSE: LNT), an additional
$2,000,000 toward the purchase of Whiting's offshore Santa Barbara,
California properties. Under the agreement between these parties, Delta
is acquiring Whiting's 6.07% interest in the Point Arguello Unit, with
its producing platforms, along with Whiting's 100% working interest in
the adjacent OCS Blocks 452 and 453 of the undeveloped Rocky Point Unit.
(See Form 8-K/A, dated June 9, 1999.)
As of this date, Delta has issued 300,000 shares of its common
stock and paid Whiting $3,000,000 for 50% of the interests in the above
referenced properties. Delta has agreed to pay Whiting an additional
$3,000,000 by December 1, 1999 for the balance of the interests in the
properties. Whiting will retain all of its proportionate share of future
abandonment liability associated with the Point Arguello project for both
onshore and offshore facilities.
The Point Arguello Unit platforms are currently producing a
combined 22,000 barrels of oil per day. Delta expects to participate in
additional development from the three existing platforms of the Point
Arguello Unit and any development of the adjacent undeveloped Rocky
Point Unit.
The Company's officers loaned the first $1,000,000 of the purchase
price to the Company. (See Form 8-K/A dated June 9, 1999.)
The additional $2,000,000 paid to Whiting on August 2, 1999 was borrowed
by the Company from Labyrinth Enterprises LLC, which is not affiliated
with the Company, under a Promissory Note dated July 30, 1999. In
connection with the $2,000,000 loan the lender required that the
Company's officers, its President, Roger A. Parker, and its Chairman,
Aleron H. Larson, Jr., give their personal guarantees of payment and
performance under the promissory note. Copies of the July 30, 1999
promissory note and the officers' guarantees of payment and performance
each dated August 1, 1999, are attached hereto as Exhibit 99.1 and 99.2
and 99.3, respectively. In connection with the personal guarantees of
its officers, the Company entered into an agreement dated July 30, 1999
with its officers under which a 1% overriding royalty interest
(proportionately reduced to the interest in each property acquired by
the Company from Whiting) will be assigned to each of the two officers.
Assignment of the overrides will not be made until appropriate consents
to such assignments have been obtained from third parties as may be
required under various agreements to which the Company is a party or
until after such consents are no longer required. The July 30, 1999
agreement between the officers and the Company also granted to the two
officers the right, under certain circumstances and at their election,
to cause the Company to sell the properties to a third party to pay off
the $3,000,000 in Company loans to eliminate the officers' personal
liability. A copy of the July 30, 1999 agreement between the Company
and its officers is attached hereto as Exhibit 99.4.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
99.1 Promissory Note dated July 30, 1999.
99.2 Guarantee of Payment and Performance of Roger A. Parker dated
August 1, 1999.
99.3 Guarantee of Payment and Performance of Aleron H. Larson dated
August 1, 1999.
99.4 Agreement between Delta Petroleum Corporation and Roger A.
Parker and Aleron H. Larson, Jr. dated July 30, 1999.
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
DELTA PETROLEUM CORPORATION
(Registrant)
Date: August 25, 1999 By: s/Aleron H. Larson, Jr.
Aleron H. Larson, Jr.
Chairman/C.E.O.
INDEX TO EXHIBITS
(1) Underwriting Agreement. Not applicable.
(2) Plan of Acquisition, Reorganization, Arrangement, Liquidation or
Succession. Not applicable.
(3) (i) Articles of Incorporation. Not applicable.
(ii) Bylaws. Not applicable.
(4) Instruments Defining the Rights of Security Holders, including
Indentures. Not applicable.
(5) Opinion: re: Legality. Not applicable.
(6) Opinion: Discount on Capital Shares. Not applicable.
(7) Opinion: re: Liquidation Preference. Not Applicable.
(8) Opinion: re: Tax Matters. Not Applicable.
(9) Voting Trust Agreement. Not Applicable.
(10) Material Contracts. Not Applicable.
(11) Statement re: Computation of Per Share Earnings.
Not Applicable.
(12) Statement re: Computation of Ratios. Not Applicable.
(13) Annual Report to Security Holders, etc. Not Applicable.
(14) Material Foreign Patents. Not Applicable.
(15) Letter re: Unaudited Interim Financial Information.
Not Applicable.
(16) Letter re: Change in Certifying Accountant.
Not applicable.
(17) Letter re: Director Resignation. Not applicable.
(18) Letter re: Change in Accounting Principles. Not Applicable.
(19) Report Furnished to Security Holders. Not Applicable.
(20) Other Documents or Statements to Security Holders.
Not applicable.
(21) Subsidiaries of the Registrant. Not Applicable.
(22) Published Report Regarding Matters Submitted to Vote of Security
Holders. Not Applicable.
(23) Consents of Experts and Counsel. Not applicable.
(24) Power of Attorney. Not applicable.
(25) Statement of Eligibility of Trustee. Not Applicable.
(26) Invitations for Competitive Bids. Not Applicable.
(27) Financial Data Schedule. Not Applicable.
(99) Additional Exhibits.
99.1 Promissory Note dated July 30, 1999.
99.2 Guarantee of Payment and Performance of Roger A. Parker dated
August 1, 1999.
99.3 Guarantee of Payment and Performance of Aleron H. Larson dated
August 1, 1999.
99.4 Agreement between Delta Petroleum Corporation and Roger A.
Parker and Aleron H. Larson, Jr. dated July 30, 1999.
PROMISSORY NOTE
$2,000,000 July 30, 1999
FOR VALUE RECEIVED, Delta Petroleum, Inc. ("Borrower"),
promises to pay to the order of Labyrinth Enterprises LLC
(together with any subsequent holder hereof, "Holder"), the
principal sum of TWO MILLION DOLLARS ($2,000,000.00) (the "Loan")
on or prior to August 1, 2001 (the "Maturity Date"), together
with interest on the outstanding unpaid principal balance of this
Note outstanding from time to time at the rate of eighteen
percent (18%) per annum, as provided herein.
The Borrower agrees to make monthly installments of interest
only, payable in advance, for a period of six (6) months from the
date hereof, on the first day of each month, commencing on the
date hereof and continuing through the payment due on February 1,
2000. Commencing on March 1, 2000, and continuing until the
Maturity Date, the Borrower shall make monthly payments of
principal and interest in the amount of FIFTY EIGHT THOUSAND
SEVEN HUNDRED FIFTY DOLLARS ($58,750.00) on the first day of
each month, based upon a four (4) year amortization of the Loan.
Notwithstanding anything to the contrary contained herein, the
entire unpaid remaining principal amount of the Loan, together
with all accrued and unpaid interest shall be due and payable on
the Maturity Date.
All payments of principal and interest hereof shall be made
to Holder at 1407 Larimer Street, Suite 300, Denver, Colorado
80202 or at such other place as Holder shall designate to
Borrower in writing.
Borrower agrees to pay, in addition to the payments of
principal and interest as provided herein, a loan fee of two
percent (2%) of the Loan. Such fee shall be added to the
principal amount of the Loan and will compound and accrue monthly
until the Loan is paid in full. The first month's interest shall
be retained by Holder and deducted from the proceeds of the Loan
disbursed to Borrower on the date hereof. In addition, the
Borrower agrees to pay the Holder's reasonable counsel fees in
connection with the preparation of this Promissory Note, which
amount will also be deducted from the proceeds of the Loan
disbursed to Borrower on the date hereof.
Payments received shall be applied first to expenses of
Holder, if any, then to default interest, if any, then to accrued
interest, then to principal.
Upon the happening of any of the following events, at the
option of the Holder, the amounts then unpaid under this
Promissory Note, shall bear interest for the period beginning
with the date of the happening of any such event at a default
rate of twenty percent (20%) per annum (the "Default Interest").
Default Interest shall be payable monthly on the first day of
each and every month. In addition, the Holder may, at its
option, accelerate the indebtedness evidenced by this Promissory
Note and declare due and payable the entire unpaid principal sum,
together with all interest thereon, including Default Interest,
plus all other sums payable at the time of such declaration
pursuant to this Promissory Note. Such events of default are as
follows:
(a) The failure of the Borrower to make any payment
required hereunder within ten (10) days after the due date
hereof; or
(b) If Borrower shall default in the performance or
observance of any other term, covenant, condition or obligation
contained in this Promissory Note, which default is not cured
within fifteen (15) days after Borrower's receipt from Holder of
written notice thereof; or
(c) Any representation or warranty contained herein or any
representation to the Holder proves to be false or misleading
concerning the financial condition or credit standing of the
Borrower; or
(d) Either Roger A. Parker or Aleron H. Larson, Jr. is no
longer an officer, director or employee of Borrower; or
(e) The filing of any petition by the Borrower under any
provision of the Federal Bankruptcy Code or any state law
relating to insolvency; or the filing of any such petition
against the Borrower, unless such petition and all proceedings
thereunder are dismissed within thirty (30) days from such
filing; or the appointment of a trustee or receiver for all or
any assets of the Borrower, unless such appointment is vacated or
dismissed within thirty (30) days from the date of such
appointment; or an adjudication that the Borrower is insolvent or
bankrupt.
This Note is secured by, and Holder is entitled to the
benefits of, a Security Agreement (the "Security Agreement"), of
even date herewith, given by Borrower for the benefit of Holder
to secure this Note. Reference is made to the Security
Agreement for a description of the property covered thereby and
the rights, remedies and obligations of Holder in respect
thereto.
Payment of the principal of and interest on this Note has
been unconditionally guaranteed by Roger A. Parker and Aleron H.
Larson, Jr. (collectively, "Guarantors") pursuant to separate
Guaranty Agreements (the "Guaranty Agreements"), dated the date
hereof given by Guarantors to Holder.
The failure by the Holder to exercise any of the foregoing
options upon the happening of one or more of the foregoing events
of default shall not constitute a waiver of the right to exercise
the same or any other option at any subsequent time in respect of
the same event. The acceptance by the Holder of any payment
hereunder which is less than payment in full of all amounts due
and payable at the time of such payment shall not constitute a
waiver of the right to exercise any of the foregoing options at
that time or at any subsequent time, or nullify any prior
exercise of any such option without the express consent of the
Holder hereof.
The Borrower reserves the right to prepay all or a part of
the principal owing on the Promissory Note at any time or times
prior to maturity without notice and without payment of any
premium or penalty, provided that the Borrower shall pay all
accrued and unpaid Interest thereon.
It is not intended hereby to charge interest at a rate in
excess of the maximum rate of interest that Holder may charge to
Borrower under applicable usury and other laws, but if,
notwithstanding, interest in excess of such rate shall be paid
hereunder, the excess shall be retained by Holder of this
Promissory Note as additional cash collateral for the payment
hereof, unless such retention is not permitted by law, in which
case the interest rate on this Promissory Note shall be adjusted
to the maximum permitted under applicable law during the period
or periods that the interest rate otherwise provided herein would
exceed such rate.
Time is of the essence hereof. In the event of any default
in any payment of the principal of or interest on this Promissory
Note, or any fees payable hereunder, when due and payable, then
the whole principal sum of this Promissory Note plus accrued
interest and all other obligations of Borrower to Holder, direct
or indirect, absolute or contingent, now existing or hereafter
arising, shall, at the option of Holder, become immediately due
and payable without notice or demand, and Holder shall have and
may exercise any or all of the rights and remedies provided
herein, in the Security Agreement or in the Guaranty Agreements.
If Borrower fails to pay any amount due under this
Promissory Note and Holder has to take any action to collect the
amount due, including without limitation retaining attorneys for
collection of this Promissory Note, foreclosing on the collateral
secured by the Security Agreement, enforcing Holder's rights
under the Guaranty Agreements, or if any suit or proceeding is
brought for the recovery of all or any part of or for protection
of the indebtedness, then Borrower agrees to pay on demand all
costs and expenses of any such action to collect, suit or
proceeding, or any appeal of any such suit or proceeding,
incurred by Holder, including but not limited to the fees and
disbursements of Holder's attorneys and their staff.
Borrower waives presentment, notice of dishonor, notice of
acceleration and protest, and assents to any extension of time
with respect to any payment due under this Promissory Note, to
any substitution or release of collateral and to the addition or
release of any party. No waiver of any payment or other right
under this Promissory Note shall operate as a waiver of any other
payment or right.
If any provision in this Promissory Note shall be held
invalid, illegal or unenforceable in any jurisdiction, the
validity, legality or enforceability of any defective provisions
shall not be in any way affected or impaired in any other
jurisdiction.
All notices to Borrower given hereunder shall be in writing,
shall be given either by hand delivery or by certified mail,
return receipt requested, and, if mailed, shall be deemed
received one day after having been deposited in the United States
mail, postage prepaid, addressed as follows:
Mr. Roger A. Parker
Delta Petroleum
555 17th St., Suite 3310
Denver, Colorado 80202
This Promissory Note is to be governed by and construed
according to the laws of the State of Colorado.
BORROWER:
DELTA PETROLEUM, INC.
By:s/Roger A.Parker
Roger A. Parker, President
GUARANTY OF PAYMENT AND PERFORMANCE
THIS GUARANTY is made as of August 1, 1999, by Roger A.
Parker ("Guarantor"), with an address of 555 17th Street, Suite
3310, Denver, CO 80202 to Labyrinth Enterprises LLC, its
successors and assigns ("Lender"), with an address of 1407
Larimer Street, Suite 300, Denver, CO 80202.
RECITALS:
A. Delta Petroleum ("Borrower") has executed a Promissory
Note of even date herewith (the "Note"), to the order of Lender,
in the original principal amount of $2,000,000.00 (the "Loan").
B. As a material inducement to Lender to make the Loan to
Borrower, Guarantor has agreed to unconditionally guarantee the
full and punctual payment and performance of the "Guaranteed
Obligations" (defined below). As used in this Guaranty, the term
"Guaranteed Obligations" means all debts, duties, undertakings,
obligations, covenants and conditions to be paid or performed by
Borrower in connection with the Loan, including without
limitation all of Borrower's obligations under the Note, and any
and all extensions, renewals or modifications thereof, including
the obligations to pay as and when due principal, interest,
attorneys' fees and all other debts of Borrower arising under and
by reason of the Note.
AGREEMENT:
For good and valuable consideration, the receipt and
sufficiency of which are acknowledged, and to induce Lender to
make the Loan to Borrower, Guarantor agrees as follows:
1. Guaranty. Guarantor unconditionally guarantees to and
for the benefit of Lender the full, prompt and complete payment
and performance by Borrower of the Guaranteed Obligations. If
any of Borrower's obligations, covenants, and agreements under
the Note are not paid or performed as and when such payment or
performance is due or required, on demand from Lender, Guarantor
will pay or perform the same.
2. Independent Obligation. This Guaranty is an
independent obligation of Guarantor, separate and distinct from
the Guaranteed Obligations. A separate action may be brought or
prosecuted against the Guarantor, whether or not any such action
is brought or prosecuted against Borrower or whether Borrower is
joined in any such action or actions. This Guaranty is an
absolute guarantee of payment and performance, and not a
guarantee of collection. The obligations of Guarantor under this
Guaranty are direct and primary, regardless of the validity or
enforceability of the Note or any renewal, extension or
modification thereof. Guarantor shall continue to be liable
under this Guaranty even if all or part of the Guaranteed
Obligations become uncollectible from Borrower by operation of
law or otherwise.
3. Waivers. Guarantor waives (a) notice of Lender's
acceptance of this Guaranty, (b) notice of any advances made by
Lender pursuant to the Note, or pursuant to any extension,
renewal or modification thereof, (c) any defense arising from or
out of the exercise by Lender of any right or remedy Guarantors
may have with respect to the Guaranteed Obligations, (d) grace,
demand, presentment, notice of dishonor and protest with respect
to the Guaranteed Obligations, (e) any defense based upon any
change in the type of business conducted by Borrower, or any
other change in the financial condition of Borrower, (f) the
benefit of suretyship defenses generally, and (g) any defense
based upon any failure by Lender to obtain a similar guaranty
from any other person or entity, or file a creditor's claim in
the estate of any person or entity, including Borrower, whether
in administration, bankruptcy or any other proceeding.
4. Rights of Lender. Lender shall not be bound to exhaust
its recourse or take any action against Borrower or against any
other person or entity, or proceed against any collateral or
against any particular collateral, but Lender may make such
demands and take such actions as it deems advisable, and Lender,
without affecting the liability of Guarantor under this Guaranty,
may with or without notice or consideration (a) release any other
person or entity liable for the Guaranteed Obligations, (b)
extend the maturity, modify the terms, grant any indulgence or
forbearance or postpone the time of payment of the Guaranteed
Obligations or otherwise amend or modify the terms of any
agreement or instrument giving rise to all or any of the
Guaranteed Obligations, or (c) release all or any part of the
existing or any future security for the Guaranteed Obligations.
All rights and remedies of Lender under this Guaranty, at law or
in equity are separate and cumulative and may be pursued
separately, successively, or concurrently, or not pursued,
without affecting or limiting any other right or remedy of Lender
and without affecting or impairing the liability of Guarantor
under this Guaranty.
5. Waiver of Subrogation and Reimbursement Rights. To the
fullest extent permitted by applicable law, Guarantor releases
and waives any claim, right or remedy which Guarantor may have
against Borrower arising from this Guaranty and/or from the
performance by Guarantor of his obligations under this Guaranty,
including any claim, remedy or right of subrogation,
reimbursement, exoneration, contribution, indemnification or
participation in any claim, right or remedy of Lender against
Borrower, or any security which Lender now has or hereafter
acquires, whether such claim, right or remedy arises under
contract, by statute, under common law or otherwise.
6. Subordination of Debt. Any present or future
indebtedness of Borrower to Guarantor is hereby subordinated to
the Guaranteed Obligations. Any payment of such indebtedness of
Borrower to Guarantors shall be collected, enforced and received
by Guarantor in trust for the benefit of Lender and promptly paid
over to Lender on account of the Guaranteed Obligations, but
without reducing or affecting in any manner the liability of such
Guarantor under the other provisions of this Guaranty.
7. Representations of Guarantor. Guarantor represents and
warrants to Lender that:
(a) Guarantor is adequately informed of the financial
condition of Borrower, has not relied on any financial
information about Borrower furnished by Lender, and does not
expect Lender to provide any such information in the future;
(b) GUARANTOR ACKNOWLEDGES LENDER WOULD NOT MAKE THE LOAN
TO BORROWER WITHOUT THIS GUARANTY, AND GUARANTOR HAS REVIEWED THE
NOTE AND IS OTHERWISE FULLY FAMILIAR WITH THE GUARANTEED
OBLIGATIONS.
8. Application of Payments. Lender may apply any payments
received by it from any source against any portion of the
Guaranteed Obligations in such order and priority as Lender may
deem appropriate.
9. Continuing Guaranty. This Guaranty covers any and all
of the Guaranteed Obligations, whether presently outstanding or
arising subsequent to the date of this Guaranty. This Guaranty
shall continue until each and every Guaranteed Obligation is paid
and performed in full. If at any time payment or performance of
all or any part of the Guaranteed Obligations is rescinded or
must otherwise be restored or returned by Lender as a result of
the insolvency or bankruptcy of Borrower or otherwise, this
Guaranty shall be reinstated. Guarantors hereby assign to Lender
all rights against Borrower which Guarantor may have (whether or
not related to the Guaranteed Obligations) in any proceedings
under the United States Bankruptcy Code or in any receivership or
other insolvency proceeding. This Guaranty is binding upon and
enforceable against Guarantor and his heirs and assigns. This
Guaranty is intended for and shall be binding upon and inure to
the benefit of Lender and each and every person or entity who, by
assignment, endorsement, participation agreement or otherwise,
succeeds to all or any part of Lender's rights under the
Guaranteed Obligations, irrespective whether such transfer is
voluntary or involuntary or occurs for operation of law.
10. Governing Law, Jurisdiction, Venue. This Guaranty
shall be governed by and construed in accordance with the laws of
the State of Colorado. Guarantor hereby submits irrevocably to
the non-exclusive jurisdiction and venue of any state or federal
court in the State of Colorado selected by Lender in any action
relating to or arising out of the enforcement or interpretation
of this Guaranty and Guarantor hereby irrevocably agrees that all
claims in respect to any such action or proceeding may be heard
and determined in such Colorado State Court or such United States
District Court sitting in the State of Colorado and to all the
courts to which an appeal may be taken from such courts.
Guarantor expressly waives, to the fullest extent such Guarantor
may effectively do so under applicable law, any objection
Guarantor may at any time have: (a) as to venue in such courts,
(b) that any action or proceeding therein has been brought in an
inconvenient forum, (c) that any such court lacks jurisdiction
over such Guarantor, or (d) as to service of process upon such
Guarantor in accordance with applicable law.
11. Costs and Expenses. Whether or not suit is brought,
Guarantor shall pay on demand all costs and expenses, including
attorneys' fees and allocated costs of in-house counsel, incurred
by or on behalf of Lender in connection with the enforcement
against or collection from Borrower of all or any of the
Guaranteed Obligations, or any security therefor, or in
connection with the enforcement, interpretation or defense of
this Guaranty. Without limiting the generality of the foregoing,
if Borrower or any Guarantor becomes the subject of any
bankruptcy or other insolvency proceeding, Guarantor shall pay
all costs and expenses incurred by Lender in connection with such
bankruptcy or insolvency proceeding.
EXECUTED as of the day and year written above.
s/Roger A. Parker
Roger A. Parker
GUARANTY OF PAYMENT AND PERFORMANCE
THIS GUARANTY is made as of August 1, 1999, by Aleron H.
Larson, Jr. ("Guarantor"), with an address of 555 17th Street,
Suite 3310, Denver, CO 80202 to Labyrinth Enterprises LLC, its
successors and assigns ("Lender"), with an address of 1407
Larimer Street, Suite 300, Denver, CO 80202.
RECITALS:
A. Delta Petroleum ("Borrower") has executed a Promissory
Note of even date herewith (the "Note"), to the order of Lender,
in the original principal amount of $2,000,000.00 (the "Loan").
B. As a material inducement to Lender to make the Loan to
Borrower, Guarantor has agreed to unconditionally guarantee the
full and punctual payment and performance of the "Guaranteed
Obligations" (defined below). As used in this Guaranty, the term
"Guaranteed Obligations" means all debts, duties, undertakings,
obligations, covenants and conditions to be paid or performed by
Borrower in connection with the Loan, including without
limitation all of Borrower's obligations under the Note, and any
and all extensions, renewals or modifications thereof, including
the obligations to pay as and when due principal, interest,
attorneys' fees and all other debts of Borrower arising under and
by reason of the Note.
AGREEMENT:
For good and valuable consideration, the receipt and
sufficiency of which are acknowledged, and to induce Lender to
make the Loan to Borrower, Guarantor agrees as follows:
1. Guaranty. Guarantor unconditionally guarantees to and
for the benefit of Lender the full, prompt and complete payment
and performance by Borrower of the Guaranteed Obligations. If
any of Borrower's obligations, covenants, and agreements under
the Note are not paid or performed as and when such payment or
performance is due or required, on demand from Lender, Guarantor
will pay or perform the same.
2. Independent Obligation. This Guaranty is an
independent obligation of Guarantor, separate and distinct from
the Guaranteed Obligations. A separate action may be brought or
prosecuted against the Guarantor, whether or not any such action
is brought or prosecuted against Borrower or whether Borrower is
joined in any such action or actions. This Guaranty is an
absolute guarantee of payment and performance, and not a
guarantee of collection. The obligations of Guarantor under this
Guaranty are direct and primary, regardless of the validity or
enforceability of the Note or any renewal, extension or
modification thereof. Guarantor shall continue to be liable
under this Guaranty even if all or part of the Guaranteed
Obligations become uncollectible from Borrower by operation of
law or otherwise.
3. Waivers. Guarantor waives (a) notice of Lender's
acceptance of this Guaranty, (b) notice of any advances made by
Lender pursuant to the Note, or pursuant to any extension,
renewal or modification thereof, (c) any defense arising from or
out of the exercise by Lender of any right or remedy Guarantors
may have with respect to the Guaranteed Obligations, (d) grace,
demand, presentment, notice of dishonor and protest with respect
to the Guaranteed Obligations, (e) any defense based upon any
change in the type of business conducted by Borrower, or any
other change in the financial condition of Borrower, (f) the
benefit of suretyship defenses generally, and (g) any defense
based upon any failure by Lender to obtain a similar guaranty
from any other person or entity, or file a creditor's claim in
the estate of any person or entity, including Borrower, whether
in administration, bankruptcy or any other proceeding.
4. Rights of Lender. Lender shall not be bound to exhaust
its recourse or take any action against Borrower or against any
other person or entity, or proceed against any collateral or
against any particular collateral, but Lender may make such
demands and take such actions as it deems advisable, and Lender,
without affecting the liability of Guarantor under this Guaranty,
may with or without notice or consideration (a) release any other
person or entity liable for the Guaranteed Obligations, (b)
extend the maturity, modify the terms, grant any indulgence or
forbearance or postpone the time of payment of the Guaranteed
Obligations or otherwise amend or modify the terms of any
agreement or instrument giving rise to all or any of the
Guaranteed Obligations, or (c) release all or any part of the
existing or any future security for the Guaranteed Obligations.
All rights and remedies of Lender under this Guaranty, at law or
in equity are separate and cumulative and may be pursued
separately, successively, or concurrently, or not pursued,
without affecting or limiting any other right or remedy of Lender
and without affecting or impairing the liability of Guarantor
under this Guaranty.
5. Waiver of Subrogation and Reimbursement Rights. To the
fullest extent permitted by applicable law, Guarantor releases
and waives any claim, right or remedy which Guarantor may have
against Borrower arising from this Guaranty and/or from the
performance by Guarantor of his obligations under this Guaranty,
including any claim, remedy or right of subrogation,
reimbursement, exoneration, contribution, indemnification or
participation in any claim, right or remedy of Lender against
Borrower, or any security which Lender now has or hereafter
acquires, whether such claim, right or remedy arises under
contract, by statute, under common law or otherwise.
6. Subordination of Debt. Any present or future
indebtedness of Borrower to Guarantor is hereby subordinated to
the Guaranteed Obligations. Any payment of such indebtedness of
Borrower to Guarantors shall be collected, enforced and received
by Guarantor in trust for the benefit of Lender and promptly paid
over to Lender on account of the Guaranteed Obligations, but
without reducing or affecting in any manner the liability of such
Guarantor under the other provisions of this Guaranty.
7. Representations of Guarantor. Guarantor represents and
warrants to Lender that:
(a) Guarantor is adequately informed of the financial
condition of Borrower, has not relied on any financial
information about Borrower furnished by Lender, and does not
expect Lender to provide any such information in the future;
(b) GUARANTOR ACKNOWLEDGES LENDER WOULD NOT MAKE THE LOAN
TO BORROWER WITHOUT THIS GUARANTY, AND GUARANTOR HAS REVIEWED THE
NOTE AND IS OTHERWISE FULLY FAMILIAR WITH THE GUARANTEED
OBLIGATIONS.
8. Application of Payments. Lender may apply any payments
received by it from any source against any portion of the
Guaranteed Obligations in such order and priority as Lender may
deem appropriate.
9. Continuing Guaranty. This Guaranty covers any and all
of the Guaranteed Obligations, whether presently outstanding or
arising subsequent to the date of this Guaranty. This Guaranty
shall continue until each and every Guaranteed Obligation is paid
and performed in full. If at any time payment or performance of
all or any part of the Guaranteed Obligations is rescinded or
must otherwise be restored or returned by Lender as a result of
the insolvency or bankruptcy of Borrower or otherwise, this
Guaranty shall be reinstated. Guarantors hereby assign to Lender
all rights against Borrower which Guarantor may have (whether or
not related to the Guaranteed Obligations) in any proceedings
under the United States Bankruptcy Code or in any receivership or
other insolvency proceeding. This Guaranty is binding upon
Guarantor, his heirs and assigns. This Guaranty is intended for
and shall be binding upon and inure to the benefit of Lender and
each and every person or entity who, by assignment, endorsement,
participation agreement or otherwise, succeeds to all or any part
of Lender's rights under the Guaranteed Obligations, irrespective
whether such transfer is voluntary or involuntary or occurs for
operation of law.
10. Governing Law, Jurisdiction, Venue. This Guaranty
shall be governed by and construed in accordance with the laws of
the State of Colorado. Guarantor hereby submits irrevocably to
the non-exclusive jurisdiction and venue of any state or federal
court in the State of Colorado selected by Lender in any action
relating to or arising out of the enforcement or interpretation
of this Guaranty and Guarantor hereby irrevocably agrees that all
claims in respect to any such action or proceeding may be heard
and determined in such Colorado State Court or such United States
District Court sitting in the State of Colorado and to all the
courts to which an appeal may be taken from such courts.
Guarantor expressly waives, to the fullest extent such Guarantor
may effectively do so under applicable law, any objection
Guarantor may at any time have: (a) as to venue in such courts,
(b) that any action or proceeding therein has been brought in an
inconvenient forum, (c) that any such court lacks jurisdiction
over such Guarantor, or (d) as to service of process upon such
Guarantor in accordance with applicable law.
11. Costs and Expenses. Whether or not suit is brought,
Guarantor shall pay on demand all costs and expenses, including
attorneys' fees and allocated costs of in-house counsel, incurred
by or on behalf of Lender in connection with the enforcement
against or collection from Borrower of all or any of the
Guaranteed Obligations, or any security therefor, or in
connection with the enforcement, interpretation or defense of
this Guaranty. Without limiting the generality of the foregoing,
if Borrower or any Guarantor becomes the subject of any
bankruptcy or other insolvency proceeding, Guarantor shall pay
all costs and expenses incurred by Lender in connection with such
bankruptcy or insolvency proceeding.
EXECUTED as of the day and year written above.
s/Aleron H. Larson, Jr.
Aleron H. Larson, Jr.
AGREEMENT
Agreement is made this 30th day of July, 1999 between Delta
Petroleum Corporation ("Delta" or "Company") and Aleron H. Larson,
Jr. and Roger A. Parker ("Larson and Parker").
Whereas Larson and Parker have arranged for a loan of
$2,000,000 from Labyrinth Enterprises, LLC ("Labyrinth") to Delta
and Larson and Parker have each personally guaranteed the loan as
required by Labyrinth; and
Whereas the $2,000,000 loan proceeds are to be used by Delta
to acquire interests in oil and gas properties from Whiting
Petroleum Corporation ("Whiting") under an agreement dated June 8,
1999; and
Now therefore in consideration of the above:
1. Delta will assign a one-percent (1%) overriding royalty
interest to Aleron H. Larson, Jr., or his designee(s) and a one-
percent (1%) overriding royalty interest to Roger A. Parker, or his
designee(s) in the property interests ("Whiting Interests") to be
acquired by Delta under its June 8, 1999 agreement with Whiting.
Each 1% overriding royalty interest will be proportionately reduced
to the interest in each property acquired by Delta from Whiting.
Assignment will be made in a form acceptable to Larson and Parker.
Assignment will be made upon acquisition of each property interest
provided that appropriate consents to such assignments have been
obtained from third parties as may be required under various
agreements to which Delta is a party or assignment will be made
after such consents are no longer required. Until the assignment
is made an amount equal to the net proceeds form each override will
be paid to Messrs. Larson and Parker in the form of additional
salary and/or bonuses.
2. Notwithstanding the terms of the two aforementioned
notes, Delta recognizes that because of the significant risk
undertaken by Messrs. Larson and Parker in connection with these
loans, which risk is greatly disproportionate to their relatively
small ownership interests in Delta, Messrs. Larson and Parker do
not wish to be personally liable as either guarantors or lenders
relating to these loans beyond December 1, 1999. Consequently, if
financing in the form of equity or debt which effectively
eliminates the personal liability of each of Messrs. Larson and
Parker for the $2,000,000 loan from Labyrinth to Delta and which
discharges the previous $1,000,000 loan from Messrs. Larson and
Parker to Delta is not obtained by October 1, 1999, then Messrs.
Larson and Parker will have the right to cause the Whiting
Interests to be sold by Delta to a third party for a price and form
of consideration which is solely determined by them without the
consent of the board of directors of Delta or its shareholders.
The proceeds from any such sale will first be applied to the
aggregate $3,000,000 of indebtedness, plus interest and other
charges, resulting from the two aforementioned loans to Delta and
any excess balance of proceeds remaining will be retained by the
Company. The Company will indemnify and hold harmless Messrs.
Larson and Parker from any loss, including costs of litigation,
that may occur to either of them by reason of any sale of the
Whiting interests from any shareholder suit or other litigation
that may be directed against or include Messrs. Larson and Parker
which is in any way related to either of the two aforementioned
loans or to the Whiting properties, and from any loss, including
costs of litigation and/or collection, that may occur from non
payment and/or default under the terms of either of the
aforementioned loans.
DELTA PETROLEUM CORPORATION
BY: s/Aleron H. Larson, Jr.
Authorized Officer
s/Aleron H. Larson, Jr.
Aleron H. Larson, Jr.
s/Roger A. Parker
Roger A. Parker
