SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 5, 2005
IMPERIAL PETROLEUM, INC.
(Exact name of registrant as specified in its charter)
NEVADA 0-9923 95-338601
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(State or other (Commission File No.) (I.R.S. Employer
jurisdiction of Identification No.)
incorporation)
329 MAIN STREET, SUITE 801, EVANSVILLE, IN 47708
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (812) - 867-1433
Certain statements set forth in this Form 8-K and other reports filed by the
Registrant from time-to-time with the Securities and Exchange Commission relate
to management's future plans and objectives and such statements are
"forward-looking statements" within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Act of 1934, as
amended. Although any forward looking statements contained in this Form 8-K or
otherwise expressed on behalf of the Company are, to the knowledge and in the
judgment of the officers and directors of the Company, expected to prove to come
true and to come to pass, management is not able to predict the future with
absolute certainty. Forward looking statements involve known and unknown risks
and uncertainties which may cause the Company's actual performance and financial
results in future periods to differ materially from any projection, estimate or
forecasted result. These risks and uncertainties include, among other things,
volatility of commodity prices, changes in interest rates and capital market
conditions, competition, risks inherent in the Company's operations, the inexact
nature of interpretation of seismic and other geological, geophysical,
petro-physical and geo-chemical data, the imprecise nature of estimating
reserves, events that deprive the Company of the services of its Chairman of the
Board, Chief Executive Officer and largest shareholder, and such other risks and
uncertainties as described from time to time in the Company's periodic reports
and filings with the Securities and Exchange Commission. Accordingly
stockholders and potential investors are cautioned that certain events or
circumstances could cause actual results to differ materially from those
projected, estimated or predicted. The Company does not intend to update
forward-looking statements. You should refer to and carefully review the
information in future documents we file with the Securities and Exchange
Commission.
ITEM 1.01. Execution of a Material Definitive Agreement:
The Registrant entered into a Forbearance Agreement and Amendment Number Three
To Consolidated and Restated Credit Agreement ("Agreement") dated November 30,
2005 with its senior lender in connection with its Revolving Credit Facility.
Under the terms of the Agreement, the Company is obligated to (1.) engage a
financial advisor for the purpose of restructuring its senior financing on or
before December 9, 2005 and (2.) complete a restructuring and the retirement of
its senior debt with its present lender on our before February 28, 2006. The
Company agreed to pay its senior lender a fee of $500,000 in connection with the
Agreement. The proceeds from any asset sales completed during the term of the
Agreement are to be used to retire debt.
Attached as Exhibit 99 is a copy of the Agreement.
ITEM 9.01 Financial Statements and Exhibits:
99. Forbearance Agreement and Amendment Number Three To Consolidated and
Restated Credit Agreement.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Imperial Petroleum, Inc.
By: ___________________
Jeffrey T. Wilson, President
Dated: December 5, 2005
Exhibit 99.
EXECUTION COPY
FORBEARANCE AGREEMENT AND AMENDMENT NUMBER THREE TO
CONSOLIDATED AMENDED AND RESTATED CREDIT AGREEMENT
This Forbearance Agreement and Amendment Number Three to Consolidated
Amended and Restated Credit Agreement (this "Agreement") is made as of the 29th
of November, `2005, by and among IMPERIAL PETROLEUM, INC., a Nevada corporation
(the "Borrower"), the Subsidiaries of Borrower identified on the signature pages
hereof, the lenders identified on the signature pages hereof (the "Lenders"),
D.B. ZWIRN SPECIAL OPPORTUNITIES FUND, L.P., a Delaware limited partnership,
formerly known as Highbridge/Zwim Special Opportunities Fund, L.P. ("DBZ"), as
collateral agent for the Lenders (in such capacity, together with any successor
collateral agent, the "Collateral Agent"), and DBZ, as administrative agent for
the Lenders (in such capacity, together with any successor administrative agent,
the "Administrative Agent" and together with the Collateral Agent, each an
"Agent" and collectively, the "Agents").
WITNESSETH:
WHEREAS, Borrower, Administrative Agent, Collateral Agent, and the Lenders
are parties to that certain Consolidated Amended and Restated Credit Agreement,
dated as of January 15, 2004 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), pursuant to which the
Lenders have made certain loans and financial accommodations available to
Borrower; capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Credit Agreement;
WHEREAS, the following unwaived Events of Default have occurred and are
continuing under the Credit Agreement or Borrower has informed the Lender Group
that such Events of Default will occur (the "Existing Events of Default"):
a. Borrower failed, on or before July 31, 2005, to complete each of its
public filings which were required to be filed on or before the date
of the Second Amendment, as was required by Section 4(a) of the Second
Amendment;
b. Borrower failed, on or before August 31, 2005, to have (i) received a
cash equity infusion in an amount not less than $5,000,000, and (ii)
consummated a corporate restructuring transaction pursuant to which,
among other things, Borrower or its successor acquires additional
Proved Reserves which result in a significant increase in the
Borrowing Base, which restructuring transaction is satisfactory to the
Agents and the Lenders in their sole and absolute discretion, in each
case of clauses (i) and (ii), as required by Section 4(b) of the
Second Amendment;
c. Borrower has failed to comply with the reporting covenants set forth
in Section 7.01(a)(iv) of the Credit Agreement for the fiscal period
ending on July 31, 2005; and
d. Borrower has failed to comply with each of the financial covenants set
forth in Section 7.03 of the Credit Agreement for the fiscal period
ending on July 31, 2005 and has indicated to the Lender Group that it
will fail to comply with each of the financial covenants set forth in
Section 7.03 of the Credit Agreement for the fiscal period ending on
October 31, 2005;
WHEREAS, Borrower has requested that the Agents and Lenders forbear from
exercising remedies with respect to the Existing Events of Default as set forth
herein;
WHEREAS, on and subject to the terms and conditions set forth herein, the
Agents and Lenders have agreed to forbear from exercising remedies with respect
to the Existing Events of Default and amend the Credit Agreement.
NOW, THEREFORE, in consideration of the premises set forth above, the terms
and conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Acknowledgment of Defaults and Forbearance. The Loan Parties acknowledge
and agree that (a) the Existing Events of Default have occurred and are
continuing and (b) upon the Forbearance Termination Date (defined below) the
forbearance provided under this Section 1 shall terminate and the Agents and
Lenders shall have the right to exercise any and all rights and remedies under
Section 9.01 of the Credit Agreement or otherwise under the Loan Documents or
under applicable law or at equity due to such Existing Events of Default or any
other Event of Default that has occurred and is continuing. The Agents and
Lenders hereby agree as of the date hereof to forbear with respect to the
Existing Events of Default until the earliest of (i) the occurrence of a breach
or default under this Agreement, (ii) the occurrence of a Default or Event of
Default that does not constitute an Existing Event of Default, or (iii) February
28, 2006 (the "Forbearance Termination Date") from exercising any rights or
remedies under Section 9.01 of the Credit Agreement.
The Loan Parties acknowledge and agree that, if any breach or default under
this Agreement occurs, or if a Default or Event of Default occurs that does not
constitute an Existing Event of Default, in each case after the date hereof, the
Forbearance Termination Date shall be deemed to have occurred immediately prior
thereto, this Agreement shall terminate, and the Agents and Lenders shall be
entitled to (x) terminate all Commitments under the Credit Agreement and declare
all of the Loans then outstanding to be due and payable, whereupon the aggregate
principal of all Loans, all accrued and unpaid interest thereon, all fees and
all other amounts payable under the Credit Agreement and the other Loan
Documents shall become due and payable immediately, without presentment, demand,
protest or further notice of any kind and (y) exercise immediately their rights
and remedies under the Loan Documents and under applicable law or at equity.
Each Loan Party hereby further acknowledges and agrees that from and after the
Forbearance Termination Date, the Agents and Lenders shall be under no
obligation of any kind whatsoever to forbear from exercising any remedies on
account of the Existing Events of Defaults or any other Event of Default
(whether similar or dissimilar to the Existing Events of Default).
The foregoing notwithstanding, if and to the extent the Agents and Lenders
continue to make Advances, notwithstanding the occurrence of any Default or
Event of Default, whether specified herein or otherwise, (a) such Advances shall
be made, issued, caused to be issued, or executed, as applicable, in the Agents'
and Lenders' sole and absolute discretion, and (b) no such action shall be
construed as (i) a waiver or forbearance of any of the Agents' and Lenders'
rights, remedies, and powers against Borrower or the Collateral (including,
without limitation, the right to terminate without notice, the making of
Advances) or (ii) a waiver of any such Default or Event of Default.
2. Amendments to Credit Agreement. Effective on the date hereof, the Credit
Agreement is amended as follows:
(a) The definition of "Permitted Dispositions" in Section 1.01 is
hereby amended by deleting it in its entirety and replacing it
with the following:
"Permitted Dispositions" means (a) sales or other dispositions of Inventory
to buyers in the ordinary course of business, provided, that, (i) no Default or
Event of Default has occurred and is continuing or would result therefrom, (b)
the use or transfer of money or Cash Equivalents by the Borrower and its
Subsidiaries in the ordinary course of business in a manner that is not
prohibited by the terms of this Agreement or the other Loan Documents, (c) the
licensing by the Borrower and its Subsidiaries, on a non-exclusive basis, of
patents, trademarks, copyrights, and other intellectual property rights in the
ordinary course of business, and (d) the granting of leases or subleases to
other Persons not materially interfering with the conduct of business of any of
the Loan Parties."
(b) Section 2.05(c)(v) is hereby amended by deleting it in its
entirety and replacing it with the following:
"(v) Concurrent with the receipt of any proceeds of any Disposition by any
Loan Party or its Subsidiaries other than a Permitted Disposition, the Borrower
shall prepay the outstanding principal amount of the Revolving Loans in an
amount equal to 100% of the Net Cash Proceeds received by such Person in
connection with such Disposition. Nothing in this clause (v) shall permit any
Loan Party or any of its Subsidiaries, to make a Disposition of any property
other than a Permitted Disposition."
3. Representations and Warranties. Each Loan Party hereby represents and
warrants in favor of each Agent and each Lender as follows:
a. Such Loan Party has the corporate power and authority (a) to
enter into this Agreement and (b) to do all acts and things as
are required or contemplated hereunder to be done, observed and
performed by it;
b. This Agreement has been duly authorized, validly executed and
delivered by an authorized officer of such Loan Party, and
constitutes the legal, valid and binding obligation of such Loan
Party, enforceable against it in accordance with its terms; and
c. The execution and delivery of this Agreement and performance by
such Loan Party under the Credit Agreement, as amended from time
to time, do not and will not require the consent or approval of
any regulatory authority or governmental authority or agency
having jurisdiction over such Loan Party which has not already
been obtained, nor contravene or conflict with the charter
documents of such Loan Party, or the provision of any statute,
judgment, order, indenture, instrument, agreement, or
undertaking, to which such Loan Party is party or by which any of
its properties are or may become bound.
4. Acknowledgement.
a. Acknowledgement of Obligations. Each Loan Party hereby
acknowledges, confirms and agrees that as of the close of
business on November 16, 2005, each Loan Party was jointly and
severally indebted to the Agents and Lenders for loans, advances
and other financial accommodations under the Loan Documents in
the following amounts:
Revolving Loans 16,055,667.28
Term Loan (Bank of Oklahoma) 698,882.82
Revolver Accrued Interest: November 1-16 105,253.82
Accrued Interest (Bank of Oklahoma): November 1-16 1,229.89
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Total Obligations: $16,861.033.81
All such Obligations owing by each Loan Party, in each case
together with interest accrued and accruing thereon, and all
fees, costs, expenses and other charges now or hereafter payable
by each such Loan Party to each Agent and each Lender, are
unconditionally owing by each Loan Party to each Agent and each
Lender, without offset, defense or counterclaim of any kind,
nature or description whatsoever.
b. Acknowledgement of Security Interests. Each Loan Party hereby
acknowledges, confirms and agrees that Collateral Agent, for
itself and the benefit of Agents and Lenders, has and shall
continue to have valid, enforceable and perfected first-priority
liens upon and security interests in the Collateral granted to
Collateral Agent, for itself and the benefit of the Agent and
Lenders, pursuant to the Loan Documents or otherwise granted to
or held by Collateral Agent, for itself and the benefit of the
Agents and Lenders.
c. Acknowledgment of No Lender Obligations. Each Loan Party hereby
acknowledges, confirms and agrees that as a result of Existing
Events of Default, the Agents and Lenders have no commitments,
obligations or agreements to make loans or advances or other
financial accommodations to any Loan Party.
d. Binding Effect of Documents. Each Loan Party hereby acknowledges,
confirms and agrees that: (a) each of the Loan Documents to which
it is a party has been duly executed and delivered to the Agents
and Lenders thereto by such Loan Party, and each is in full force
and effect as of the Forbearance Effective Date (as defined
below), (b) the agreements and obligations of each Loan Party
contained in such documents and in this Agreement constitute the
legal, valid and binding obligations of such Loan Party and
guaranteed indebtedness of the Loan Parties other than Borrower,
enforceable against such Loan Party in accordance with their
respective terms, and the Loan Parties have no valid defense to
the enforcement of the Obligations and such guaranteed
indebtedness, and (c) each Agent and each Lender are and shall be
entitled to the rights, remedies and benefits provided for in the
Loan Documents and under applicable law or at equity.
5. Advice of Counsel. Each Loan Party has had advice of independent counsel
of its own choosing in negotiations for and the preparation of this Agreement,
has read this Agreement in full and final form, and has had this Agreement fully
explained to it to its satisfaction.
6. Limitations; No Other Amendment. Except for the forbearance and
amendments expressly set forth above, the text of the Credit Agreement and all
other existing Loan Documents shall remain unchanged and in full force and
effect and each Agent and each Lender expressly reserves the right to require
strict compliance with the terms of the Credit Agreement and the other Loan
Documents. The forbearance and amendments contained herein is limited to the
precise terms hereof, and no Agent nor any Lender is obligated to consider or
consent to any additional request by any Loan Party for any other forbearance or
amendment with respect to the Credit Agreement.
7. Payment of Costs and Fees. The Loan Parties shall pay to each Agent and
each Lender all due diligence, costs, fees, expenses and charges of every kind
in connection with the preparation, negotiation, execution and delivery of this
Agreement and any documents and instruments relating hereto. In addition
thereto, the Loan Parties agree to reimburse each Agent and each Lender on
demand for its costs arising out of this Agreement and all documents or
instruments relating hereto (which costs may include the fees and expenses of
any attorneys retained by any Agent or any Lender).
8. Conditions to Effectiveness of this Agreement. This Agreement (other
than the amendment set forth in Section 2 above which shall be effective as of
the date hereof) shall become effective as of the date when, and only when, the
following conditions have been satisfied as determined in each Agent's and each
Lender's sole and absolute discretion (the date of such effectiveness being
herein called the "Forbearance Effective Date"):
a. Agents shall have received, in form and substance satisfactory to
it, duly executed counterparts of this Agreement from each Loan
Party and each Lender on or before November 29, 2005; and
b. Borrower shall have paid all fees, costs and expenses incurred in
connection with this Agreement and any other Loan Documents
(including, without limitation, legal fees and expenses).
9. Covenants. As a material inducement to the execution by the Agents and
the undersigned Lenders of this Agreement, Borrower hereby agrees that it shall
cause the repayment in full of the Obligations pursuant to a Restructuring
Transaction as set forth in this Section 9. Accordingly, Borrower hereby agrees
that it shall comply with each of the following covenants and that the failure
to comply with any of such covenants shall constitute an immediate Event of
Default under the Credit Agreement and further result in the termination of the
forbearance provided under Section 1 above:
a. No later than December 9, 2005, the Agents shall have received
evidence, in form and substance satisfactory to them, either (i)
that Borrower has executed a letter of intent or letters of
intent, in each case, satisfactory to the Agents and the Lenders
in their sole and absolute discretion, from Persons party to a
Restructuring Transaction, which transaction shall provide for
(A) a fully executed purchase agreement or such other definitive
documentation, as appropriate, no later than December 15, 2005
and (B) consummation of such Restructuring Transaction no later
than December 30, 2005, or (ii) that Borrower has retained a
Restructuring Adviser.
b. To the extent that Borrower has, pursuant to clause (a)(i) above,
proceeded with a Restructuring Transaction without the retention
of a Restructuring Adviser, (i) no later than December 15, 2005,
the Agents shall have received evidence, in form and substance
satisfactory to them, that the purchase agreement or such other
definitive documentation, as appropriate, each in form and
substance satisfactory to the Agents, has been fully executed by
all necessary parties thereto and (ii) no later than December 30,
2005, (A) the Restructuring Transaction shall have been fully
consummated and (B) Administrative Agent shall have received net
proceeds thereof in an amount sufficient to repay (and Borrower
shall cause such net proceeds to be used to so repay) the
Obligations in full in cash in accordance with the terms of the
Credit Agreement; -
c. To the extent that Borrower has, pursuant to clause (a)(ii)
above, retained a Restructuring Adviser reasonably acceptable to
Agents, (i) no later than December 30, 2005, the Agents shall
have received evidence, in form and substance satisfactory to
them, that Borrower has executed a letter of intent or letters of
intent, each in form and substance satisfactory to the Agents,
from Persons party to a Restructuring Transaction, which
transaction shall provide for (A) a fully executed purchase
agreement or such other definitive documentation, as appropriate,
no later than February 7, 2006 and (B) consummation of the
Restructuring Transaction no later than February 28, 2006, (ii)
no later than February 7, 2006, the Agents shall have received
evidence, in form and substance satisfactory to them, that the
purchase agreement or such other definitive documentation, as
appropriate, each in form and substance satisfactory to the
Agents, has been fully executed by all necessary parties thereto
and (iii) no later than February 28, 2006, (A) the Restructuring
Transaction shall have been fully consummated and (B)
Administrative Agent shall have received net proceeds thereof in
an amount sufficient to repay (and Borrower shall cause such net
proceeds to be used to so repay) the Obligations in full in cash
in accordance with the terms of the Credit Agreement;
d. Borrower shall pay to Agents in cash, a fee in an amount equal to
$500,000 ("Forbearance Fee") which shall be due and payable in
full upon the consummation of the Restructuring Transaction
(subject to prepayment as provided herein). Notwithstanding
anything to the contrary contained in Section 2.05(c)(v) of the
Credit Agreement, upon any Disposition by any Loan Party or its
Subsidiaries other than a Permitted Disposition (as such term is
amended hereby), Borrower shall remit all Net Cash Proceeds
received in connection with any such Disposition to Agents to be
applied as a prepayment of the Forbearance Fee until such fee is
paid in full (after which, Net Cash Proceeds received from any
such Disposition shall be applied pursuant to the terms of
Section 2.05(c)(v) of the Credit Agreement, as amended hereby).
Borrower hereby acknowledges and agrees that the Forbearance Fee
is fully earned as of the date hereof and non-refundable on the
date such fee is due and payable as provided above and that the
Forbearance Fee constitutes Obligations and is in addition to any
other fees payable by Borrower under the Credit Agreement or any
other Loan Document.
In no event shall the forgoing be construed as a consent by any Agent or
any Lender to any particular corporate restructuring transaction. To the
contrary, each Agent and each Lender expressly reserves the right to condition
or withhold its consent to any such transaction in its sole and absolute
discretion.
For the purposes of this section, (i) the term "Restructuring Transaction"
shall mean one or more transactions (which may include, without limitation, the
infusion of additional equity into Borrower, refinancing of the outstanding
Loans, or sale, including by way of merger, of the Borrower and its
subsidiaries), in each case, satisfactory to the Agents and the Lenders in their
sole and absolute discretion, by or with respect to Borrower, with or without
the retention and advice of a Restructuring Adviser, which result in the
repayment in full in cash of all of Borrower's outstanding Obligations and
termination of all commitments under the Credit Agreement, and (ii) the term
"Restructuring Adviser" shall mean any investment bank or other qualified
professional identified by Borrower to Agents on Exhibit A hereto (or any other
qualified professional of similar stature and qualification as that of the
representative firms identified on Exhibit A hereto and as reasonably acceptable
to Agents) retained by Borrower to advise on the Restructuring Transaction.
10. Effect on the Loan Documents. Upon the effectiveness of the forbearance
set forth herein, on and after the Forbearance Effective Date each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof' or words of like
import referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement," "thereunder," "thereof' or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended from time to time.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to the
conflicts or choice of law principles thereof
12. Loan Document. This Agreement shall be deemed to be a Loan Document for
all purposes.
13. RELEASE BY LOAN PARTIES. EACH LOAN PARTY HEREBY ACKNOWLEDGES AND AGREES
THAT: (I) NEITHER IT NOR ANY OF ITS SUBSIDIARIES HAS ANY CLAIM OR CAUSE OF
ACTION AGAINST THE AGENTS OR LENDERS (OR ANY OF THE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, AFFILIATES OR ATTORNEYS OF THE FOREGOING), (II) EACH AGENT
AND EACH LENDER HAS HERETOFORE PROPERLY PERFORMED AND SATISFIED IN A TIMELY
MANNER ALL OF ITS OBLIGATIONS TO EACH LOAN PARTY AND THEIR RESPECTIVE
SUBSIDIARIES AND AFFILIATES AND (III) HE OR IT HAS RECEIVED THE ADVICE OF LEGAL
COUNSEL WITH REGARD TO THE RELEASES AND WAIVERS CONTAINED HEREIN. EACH AGENT AND
EACH LENDER WISHES (AND EACH LOAN PARTY AGREES) TO ELIMINATE ANY POSSIBILITY
THAT ANY PAST CONDITIONS, ACTS, OMISSIONS, EVENTS OR CIRCUMSTANCES WOULD IMPAIR
OR OTHERWISE ADVERSELY AFFECT ANY OF THEIR RIGHTS, INTERESTS, SECURITY AND/OR
REMEDIES. FOR AND IN CONSIDERATION OF THE AGREEMENTS CONTAINED IN THIS AGREEMENT
AND OTHER GOOD AND VALUABLE CONSIDERATION, EACH LOAN PARTY (THE "RELEASORS")
VOLUNTARILY, KNOWINGLY, UNCONDITIONALLY AND IRREVOCABLY RELEASES, WAIVES AND
FOREVER DISCHARGES EACH AGENT AND EACH LENDER, TOGETHER WITH THEIR RESPECTIVE
PREDECESSORS, SUCCESSORS, ASSIGNS, SUBSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES
AND ATTORNEYS (COLLECTIVELY, THE "RELEASED PARTIES"), FROM: (X) ANY AND ALL
LIABILITIES, OBLIGATIONS, DUTIES, PROMISES OR INDEBTEDNESS OF ANY KIND OF THE
RELEASED PARTIES TO THE RELEASORS OR ANY OF THEM, WHETHER KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR
CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE
THE DATE THIS AGREEMENT IS EXECUTED AND (Y) ALL CLAIMS, OFFSETS, CAUSES OF
ACTION, SUITS OR DEFENSES OF ANY KIND WHATSOEVER (IF ANY), WHICH THE RELEASORS
OR ANY OF THEM MIGHT OTHERWISE HAVE AGAINST THE RELEASED PARTIES OR ANY OF THEM,
WHETHER KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR
UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING
IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AGREEMENT IS EXECUTED, IN EITHER
CASE (X) OR (Y) IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT,
TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, OR ARISING FROM ANY
"LOANS", INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING,
RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE
APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE CREDIT AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS
AGREEMENT, OR ON ACCOUNT OF ANY CONDITION, ACT, OMISSION, EVENT, CONTRACT,
LIABILITY, OBLIGATION, INDEBTEDNESS, CLAIM, CAUSE OF ACTION, DEFENSE,
CIRCUMSTANCE OR MATTER OF ANY KIND WHICH EXISTED, AROSE OR OCCURRED AT ANY TIME
FROM THE BEGINNING OF THE WORLD TO THE DATE THIS AGREEMENT BECOMES EFFECTIVE.
14. Counterparts. This Agreement may be executed by one or more of the
parties hereto on any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of
this Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof
[signature pages follow]
EXECUTION COPY
IN WITNESS WHEREOF, the parties hereto have caused their respective duly
authorized officers or representatives to execute and deliver this Agreement as
of the day and year first written above.
IMPERIAL PETROLEUM, INC., a
Nevada corporation
By:_______________________________________
Name:_____________________________________
Title:____________________________________
RIDGEPOINTE MINING COMPANY, a
Delaware corporation
By:_______________________________________
Name:_____________________________________
Title:____________________________________
GLOBAL/IMPERIAL JOINT VENTURE INC., a
Nevada corporation
By:_______________________________________
Name:_____________________________________
Title:____________________________________
PHOENIX METALS, INC., a Texas
corporation
By:_______________________________________
Name:_____________________________________
Title:____________________________________
D.B. ZWIRN SPECIAL OPPORTUNITIES FUND, L.P., as Collateral
Agent, Administrative Agent and a Lender, formerly known as
Highbridge/Zwirn Special Opportunities Fund, L.P
By: D.B. ZWIRN PARTNERS, LLC, its general partner
BY: ZWIRN HOLDING, L.L C., its managing member
By:_______________________
Name:
Perry A. Gruss
Authorized Signatory
Title:
EXHIBIT A
Albrecht & Associates, Inc.
Oil & Gas Clearinghouse
Macquarie Bank