-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HVaFToKgjFV/RqPynsUQCMSXXfadlg9RYwYnJrdgk9PR8h9HbXPPuEI548rmNZgV Zb37Bp+0fy8ybFQe/zF1tA== 0000821483-99-000031.txt : 19990827 0000821483-99-000031.hdr.sgml : 19990827 ACCESSION NUMBER: 0000821483-99-000031 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19990825 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990826 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DELTA PETROLEUM CORP/CO CENTRAL INDEX KEY: 0000821483 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 841060803 STATE OF INCORPORATION: CO FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-16203 FILM NUMBER: 99699792 BUSINESS ADDRESS: STREET 1: 555 17TH ST STE 3310 CITY: DENVER STATE: CO ZIP: 80202 BUSINESS PHONE: 3032939133 MAIL ADDRESS: STREET 1: 555 17TH STREET STREET 2: SUITE 3310 CITY: DENVER STATE: CO ZIP: 80202 8-K 1 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. EX-99.1 2 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 EX-99.2 3 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 EX-99.3 4 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. EX-99.4 5 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 -----END PRIVACY-ENHANCED MESSAGE-----