SECOND AMENDED AND RESTATED CONTRIBUTION AGREEMENT

BY AND AMONG

TRIANGLE CALIBER HOLDINGS, LLC

CALIBER MIDSTREAM GP LLC

CALIBER MIDSTREAM PARTNERS, L.P.

and

FREIF CALIBER HOLDINGS LLC

January 31, 2015

 

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TABLE OF CONTENTS

 

 

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SECOND AMENDED AND RESTATED CONTRIBUTION AGREEMENT

This SECOND AMENDED AND RESTATED CONTRIBUTION AGREEMENT (this “Agreement”), dated as of January 31, 2015, is made and entered into by and among Triangle Caliber Holdings, LLC, a Delaware limited liability company (“Triangle Holdings”), Caliber Midstream Partners, L.P., a Delaware limited partnership (“Caliber Partners”), Caliber Midstream GP LLC, a Delaware limited liability company (“Caliber GP”) and FREIF Caliber Holdings LLC, a Delaware limited liability company (“FREIF”).  Each of the foregoing is referred to herein as a “Party” and collectively as the “Parties.”

R E C I T A L S:

WHEREAS, the Parties previously entered into that certain Contribution Agreement (the “Original Contribution Agreement”) dated as of the Initial Closing Date; 

WHEREAS, (i) FREIF and Triangle Holdings previously formed and own 100% of the equity interests in Caliber GP, (ii) Triangle Petroleum Corporation, a Delaware corporation and the parent of Triangle Holdings (“Triangle Petroleum”), previously formed Caliber Midstream, LLC, a Delaware limited liability company,  of which 100% of the equity interests was owned by Triangle Holdings prior to the Initial Closing Date, (iii) Caliber GP, as the general partner, and FREIF and Triangle Holdings, as the organizational limited partners (the “Organizational Limited Partners”), previously formed Caliber Partners, (iv) Caliber Partners previously formed and owns 100% of the equity interests in Caliber North Dakota LLC, a Delaware limited liability company (“Caliber Sub”), and (v) Caliber Partners previously formed and owns 99.99% to 100% of the equity interests in various other subsidiaries.

WHEREAS, immediately prior to the Initial Closing, Triangle Petroleum contributed 100% of its membership interest in Caliber Midstream to Triangle Holdings; 

WHEREAS, immediately prior to the Initial Closing, Caliber GP was the sole general partner of Caliber Partners and held a non-economic general partner interest in Caliber Partners and FREIF and Triangle Holdings were all of the limited partners of Caliber Partners and owned all of the organizational limited partner interests in Caliber Partners (the “Organizational Interests”);

WHEREAS, at the Initial Closing, Triangle Holdings contributed $500 to Caliber GP in exchange for 500 LLC Units (as defined herein), and FREIF contributed $500 to Caliber GP in exchange for 500 LLC Units;

WHEREAS, at the Initial Closing, (i) Triangle Holdings (A) contributed to Caliber Partners the excess of $12.0 million over the Pre-Closing Cash Contribution Amount (as defined herein) and (B) caused Caliber Midstream to convey to Caliber Sub certain conveyed assets in exchange for 3,000,000 Class A Units (as defined herein) and 4,000,000 Class A Trigger Units (as defined herein), (ii) FREIF contributed to Caliber Partners $28.0 million in exchange for 7,000,000 Class A Units, and (iii) Triangle Holdings and FREIF agreed to contribute to the capital of Caliber Partners an aggregate of $18.0 million and $42.0 million, respectively, in additional contributions;  

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WHEREAS, at the Initial Closing, effective with the issuance of LLC Units to FREIF and Triangle Holdings as members of Caliber GP, the 100% equity interests owned by FREIF and Triangle Holdings prior to the Initial Closing were redeemed by Caliber GP and their $1,000 capital contribution refunded;

WHEREAS, at the Initial Closing, (i) effective with the issuance of Class A Units to FREIF and the issuance of Class A Units and Class A Trigger Units to Triangle Holdings as limited partners of Caliber Partners, the Organizational Interests of the Organizational Limited Partners were redeemed by Caliber Partners and their $1,000 capital contribution refunded and (ii) Caliber GP retained its non-economic general partner interest in Caliber Partners;

WHEREAS, subsequent to the Initial Closing Date, (i) Triangle Holdings contributed to the capital of Caliber Partners an aggregate of $9.0 million and (ii) FREIF contributed to the capital of Caliber Partners an aggregate of $21.0 million, as contemplated by the Original Contribution Agreement;

WHEREAS, the Parties hereto entered that certain Amended and Restated Contribution Agreement, dated September 12, 2013 (the “A&R Contribution Agreement”);

WHEREAS, as contemplated by the A&R Contribution Agreement, Triangle Holdings contributed to the capital of Caliber Partners the remaining $9.0 million of Triangle Holdings’ original $18.0 million commitment amount (the “Remaining Triangle Holdings Commitment Amount”) and FREIF contributed (x) the remaining $21.0 million of FREIF’s original $42.0 million commitment amount plus (y) an additional commitment of $80.0 million (the “Additional FREIF Commitment Amount”)  (together with the $21.0 million, the “FREIF Commitment Amount”);  

WHEREAS, pursuant to the A&R Contribution Agreement, (i) in consideration for FREIF’s contribution of the Additional FREIF Commitment Amount, Caliber Partners issued 8,000,000 Class A Units to FREIF and (ii) the General Partner caused all of Triangle Holdings’ 4,000,000 Class A Trigger Units to convert into Class A Units;  

WHEREAS, pursuant to the A&R Contribution Agreement, Triangle Holdings received warrants to purchase an additional 5,000,000 Class A Units upon the terms and subject to the conditions described in the Triangle Holdings 2013 Warrant Agreement and (ii) FREIF received warrants to purchase an additional 5,000,000 Class A Units upon the terms and subject to the conditions described in the FREIF 2013 Warrant Agreement;

WHEREAS, at Funding,  FREIF will contribute to Caliber Partners $34.0 million in exchange for 2,720,000 Class A Units (the “FREIF 2015 Contribution”); 

WHEREAS, at Funding, the Parties additionally desire for FREIF to received warrants for the purchase of an additional 906,667 Class A Units and for Triangle Holdings to receive warrants for the purchase of an additional 3,626,667 Class A Units;

WHEREAS, in connection with the above warrants, the Parties desire for Caliber Partners and FREIF to enter into the FREIF Second A&R 2013 Warrant Agreement, which will amend and restate the FREIF 2013 Warrant Agreement, and for Caliber Partners and Triangle

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Holdings to enter into (i) the Triangle Holdings Second A&R 2012 Warrant Agreement, which will amend and restate the Triangle Holdings 2012 Warrant Agreement, (ii) the Triangle Holdings Second A&R 2013 Warrant Agreement, which will amend and restate the Triangle Holdings 2013 Warrant Agreement, and (iii) a new Triangle Holdings 2015 Warrant Agreement; and

WHEREAS, the Parties desire to amend and restate the A&R Contribution Agreement in its entirety as set forth herein in order to reflect the items described in the foregoing recitals;

NOW THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereto hereby agree as follows:

1.1     Definitions.  Unless otherwise provided to the contrary in this Agreement, capitalized terms in this Agreement have the meanings set forth in Section 1.1 of Exhibit A.

1.2     Interpretations.  Unless expressly provided to the contrary in this Agreement, this Agreement shall be interpreted in accordance with the provisions set forth in Section 1.2 of Exhibit A.

2.1     Contribution to Caliber Partners.    At Funding, FREIF shall contribute the FREIF 2015 Contribution Amount to Caliber Partners by wire transfer of immediately available funds.   

2.2     Issuance by Caliber Partners. 

 

 

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3.1     Time and Place of Closing.  Subject to the terms and conditions hereof, the execution of this Agreement (the “Closing”) shall take place at the offices of Caliber Partners, 1200 17th Street, Suite 2100, Denver, CO  80202, commencing at 9:00 a.m., local time, on the date hereof (the “Closing Date”). 

3.2     Deliveries at Closing.  At the Closing:

 

3.3     Deliveries by Triangle Holdings at Funding.  At the Funding, Triangle Holdings shall deliver or cause to be delivered to FREIF:

3.4     Deliveries by FREIF at Closing.  At the Closing, FREIF shall deliver or cause to be delivered to Triangle Holdings:

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3.5     Deliveries by the Caliber Entities.  At the Closing, the Caliber Entities shall deliver or cause to be delivered to Triangle Holdings and FREIF:

3.6     Transactions; Transaction Documents.  The transactions described in Section 2.1 and the execution, delivery and performance of each of the Transaction Documents, are referred to herein as the “Transactions.”  The “Transaction Documents” shall mean this Agreement, the Partnership Agreement, the GP LLC Agreement, the Interim Agreement, the Triangle Holdings Second A&R 2012 Warrant Agreement,  the Triangle Holdings Second A&R 2013 Warrant Agreement,  the Triangle Holdings 2015 Warrant Agreement, and the FREIF Second A&R 2013 Warrant Agreement.

3.7     Funding.  Subject to the terms and conditions hereof and the Interim Agreement, the funding by FREIF and the other transactions referred to in Section 2.1 (the “Funding”) shall take place on February 2, 2015 (the “Funding Date”).

Each of the Caliber Entities hereby jointly and severally makes the following representations and warranties to FREIF and to Triangle Holdings:

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4.1     Organization; Qualification.    

4.2     Authority; Enforceability.    

4.3     No Violation; Consents and Approvals.    

4.4     Capitalization of Caliber GP.    

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4.5     Capitalization of Caliber Partners.    

4.6     Capitalization of Caliber Sub.    

4.7     No Preemptive Rights or Voting Agreements. 

4.8     Brokers’ Fee.  No broker, finder or similar intermediary has acted for or on behalf of, or is entitled to any broker, finder or similar fee or other commission from any of the Caliber Entities or any of their Affiliates in connection with this Agreement or the transactions contemplated hereby.

FREIF, only with respect to itself, hereby makes the following representations and warranties to the Caliber Entities and to Triangle Holdings, and Triangle Holdings, only with respect to itself, hereby makes the following representations and warranties to the Caliber Entities and to FREIF:

5.1     Organization; Qualification.  Each of FREIF and Triangle Holdings is a limited liability company duly formed, validly existing and in good standing under the Laws of the State of Delaware and has the requisite limited liability company power and authority to own, lease, license, use and operate its properties and assets and to carry on its business, and is duly qualified, registered or licensed to do business as a foreign limited liability company and is in good standing in each jurisdiction in which the property or other assets owned, leased, licensed, used or operated by it or the nature of the business conducted by it makes such qualification necessary, except where the failure to be so duly qualified, registered or licensed and in good standing as a foreign limited liability company would not, individually or in the aggregate, be material to the performance by FREIF or Triangle Holdings of its obligations under the Transaction Documents to which it is a party.

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5.2     Authority; Enforceability. 

5.3     No Violation; Consents and Approvals. 

5.4     Accredited Investor.  Each of Triangle Holdings and FREIF is an informed and sophisticated investor experienced in financial and business matters and the evaluation and investment in businesses such as the Caliber Entities.  Each of Triangle Holdings and FREIF is an “accredited investor” as that term is defined in Rule 501 of Regulation D promulgated under the Securities Act. FREIF is acquiring Class A Units pursuant to this Agreement for investment and not with a view toward or for sale in connection with any distribution thereof or with a present intention of distributing or selling such Class A Units. Each of Triangle Holdings and FREIF agrees that its Class A Units and LLC Units, as applicable, may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of except in accordance with the requirements of the Partnership Agreement, in the case of the Class A Units, except in accordance with the requirements of the GP LLC Agreement, in the case of the LLC Units, or without registration under the Securities Act, except pursuant to an exemption from such registration requirements available under the Securities Act.  Each of Triangle Holdings and FREIF has undertaken such investigation as it has deemed necessary to enable it to make an informed decision with respect to the execution, delivery and performance of this Agreement.  The foregoing shall in no way limit or affect any of the representations or warranties in Article IV or any covenant or agreement in this Agreement, or any Liability of FREIF or of Triangle Holdings for any breach thereof.

5.5     Brokers’ Fee.  No broker, finder or similar intermediary has acted for or on behalf of, or is entitled to any broker, finder or similar fee or other commission from FREIF or any of its Affiliates, or Triangle Holdings or any of its Affiliates, that will be payable by any of the Caliber Entities, FREIF or Triangle Holdings, in connection with this Agreement or the transactions contemplated hereby.

6.1     Expenses.  Except as otherwise provided in this Agreement, all costs and expenses (including legal, accounting, financial advisory and consulting fees and expenses) incurred by Triangle Holdings and its Affiliates in connection with the negotiation and consummation of the transactions contemplated by this Agreement shall be paid by Triangle Holdings, and all costs and expenses (including legal, accounting, financial advisory and consulting fees and expenses) incurred by FREIF and its Affiliates in connection with the negotiation and consummation of the transactions contemplated by this Agreement shall be paid by FREIF; provided,  however, that if any action at law or equity is necessary to enforce or interpret the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such Party may be entitled.

6.2     Further Assurances; Cooperation.  On and after the Closing Date, without consideration, the Parties shall, on request, cooperate with one another by promptly furnishing any additional information, executing and delivering any additional documents and instruments

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and doing any and all such other things as may be reasonably requested by the Parties or their counsel to consummate or otherwise implement the Transactions.

7.1     Indemnification by FREIF.  Subject to the terms of this Article VII, from and after the Closing, FREIF shall indemnify and hold harmless Triangle Holdings and its Affiliates and the respective officers, directors, employees, partners, members, equity holders, and agents and investment advisors of the foregoing (collectively, the “Triangle Indemnitees”) and the Caliber Entities and their Affiliates and the respective officers, directors, employees, partners, members, equity holders, and agents and investment advisors of the foregoing (collectively, the “Caliber Indemnitees”), to the fullest extent permitted by Law, from and against any losses, claims, damages, liabilities, costs and expenses (including attorneys’ fees and expenses), interest, penalties, Taxes, judgments and settlements (collectively, “Losses”)  incurred, arising out of or relating to:

7.2     Indemnification by Triangle Holdings.  Subject to the terms of this Article VII, from and after the Closing, Triangle Holdings shall indemnify and hold harmless FREIF and its Affiliates and the respective officers, directors, employees, partners, members, equity holders, and agents and investment advisors of the foregoing (collectively, the “FREIF Indemnitees”) and the Caliber Indemnitees, to the fullest extent permitted by Law, from and against any Losses incurred, arising out of or relating to:

7.3     Limitations and Other Indemnity Claim Matters.  Notwithstanding anything to the contrary in this Article VII or elsewhere in this Agreement, the following terms shall apply to any claim following Closing arising out of Section 7.1 or 7.2:

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7.4     Indemnification Procedures.    

7.5     No Reliance. 

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8.1     Consent to Jurisdiction and Service of Process; Appointment of Agent for Service of Process.  EACH PARTY TO THIS AGREEMENT HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES DISTRICT COURT LOCATED IN WILMINGTON, DELAWARE OR THE DELAWARE CHANCERY COURT LOCATED IN WILMINGTON, DELAWARE AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER SUCH ACTIONS OR PROCEEDINGS ARE BASED IN STATUTE, TORT, CONTRACT OR OTHERWISE), SHALL BE LITIGATED IN SUCH COURTS.  EACH PARTY CONSENTS TO SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF SUCH COURTS FOR SUCH ACTIONS OR PROCEEDINGS, AGREES THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT, AND AGREES THAT IT WILL NOT BRING ANY SUCH ACTION OR PROCEEDING IN ANY COURT OTHER THAN SUCH COURTS.  EACH PARTY ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE AND IRREVOCABLE JURISDICTION AND VENUE OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY NON-APPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH ACTIONS OR PROCEEDINGS.  A COPY OF ANY SERVICE OF PROCESS SERVED UPON THE PARTIES SHALL BE MAILED BY REGISTERED MAIL TO THE RESPECTIVE PARTY EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS.  IF ANY AGENT APPOINTED BY A PARTY REFUSES TO ACCEPT SERVICE, EACH PARTY AGREES THAT SERVICE UPON THE APPROPRIATE PARTY BY REGISTERED MAIL SHALL CONSTITUTE SUFFICIENT SERVICE.  NOTHING HEREIN SHALL AFFECT THE RIGHT OF A PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

8.2     Waiver of Jury Trial.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED.  EACH PARTY ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF ANY OF THE OTHER PARTIES.  THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.  EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN

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ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS.  EACH PARTY FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTION CONTEMPLATED HEREBY.  IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

9.1     Amendment and Modification.  This Agreement may be amended, modified or supplemented only by written agreement of the Parties hereto.

9.2     Waiver of Compliance; Consents.  Except as otherwise provided in this Agreement, any failure of any of the Parties to comply with any obligation, covenant, agreement or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.

9.3     Notices.  All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by facsimile transmission or mailed by a nationally recognized overnight courier or registered or certified mail (return receipt requested), postage prepaid, to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice, provided that notices of a change of address shall be effective only upon receipt thereof):

If to Triangle Holdings to:

Triangle Caliber Holdings, LLC

1200 17th Street, Suite 2600

Denver, CO 80202

Attention:  Chief Executive Officer

Fax:  (303) 260-5080

With a copy (which shall not constitute notice) to:

Vinson & Elkins LLP
1001 Fannin Street, Suite 2500

Houston, TX 77002
Attention:  W. Creighton Smith

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If to FREIF to: 

FREIF Caliber Holdings LLC

c/o First Reserve Corporation

One Lafayette Place

Greenwich, CT 06830

Attention: General Counsel

Fax: (203) 661-6729

With a copy (which shall not constitute notice) to:

Andrews Kurth LLP
1350 I Street NW

Suite 1100

Washington, DC 20005
Attention:  William J. Cooper

 

If to any of the Caliber Entities to:

Caliber Midstream GP LLC

1200 17th Street, Suite 2100

Denver, CO 80202

Attention: Chief Executive Officer

Fax:  (303) 628-1420

 

With a copy to (which shall not constitute notice):

 

FREIF, at the addresses set forth in this Section 9.3.

 

9.4     Assignment.  This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.  The Caliber Entities may not assign this Agreement or any rights or obligations hereunder without the prior written consent of FREIF and of Triangle Holdings.  FREIF and Triangle Holdings may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each other (other than an assignment to an Affiliate; provided that no such assignment shall relieve the assigning Party of its obligations hereunder).

9.5     Specific Performance.    The Parties acknowledge and agree, that prior to Funding, (i) each Party would be irreparably harmed by a breach by another Party of any of its obligations under this Agreement and (ii) the non-breaching Party is entitled to injunctive relief, specific performance, and other equitable remedies against the breaching Party to enforce the performance by the breaching Party of its obligations under this Agreement, and the Parties hereby consent and agree to such injunctive relief, specific performance, and other equitable remedies.  If Triangle Holdings or FREIF is the breaching Party, then the member (Triangle Holdings or FREIF) that is not breaching shall be permitted to cause Caliber Partners and Caliber GP to exercise their rights under this Section 9.5 with respect to such breach.

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9.6     Governing Law.  This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware without regard to principles of conflicts of laws.

9.7     Facsimiles; Electronic Transmission, Counterparts.  This Agreement may be executed by facsimile or other electronic transmission (including scanned documents delivered by email) signatures by any Party and such signature shall be deemed binding for all purposes hereof, without delivery of an original signature being thereafter required.  This Agreement may be executed in one or more counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document.

9.8     Entire Agreement.   This Agreement, together with the Transaction Documents, constitute the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior contracts or agreements with respect to the subject matter hereof, whether oral or written.  Without limiting the foregoing, each of the Parties acknowledges and agrees that  this Agreement is being executed and delivered in connection with each of the other Transaction Documents and the transactions contemplated hereby and thereby,  the performance of this Agreement and the other Transaction Documents and expected benefits herefrom and therefrom are a material inducement to the willingness of the Parties to enter into and perform this Agreement and the other Transaction Documents and the transactions described herein and therein,  the Parties would not have been willing to enter into this Agreement in the absence of the entrance into, performance of, and the economic interdependence of, the other Transaction Documents,  the execution and delivery of this Agreement and the other Transaction Documents and the rights and obligations of the parties hereto and thereto are interrelated and part of an integrated transaction being effected pursuant to the terms of this Agreement and the other Transaction Documents,  the transactions contemplated by this Agreement and the other Transaction Documents are necessary elements of the same and integrated transaction,  the transactions contemplated by this Agreement and the other Transaction Documents are economically interdependent and  such Party will cause any of its successors or permitted assigns to expressly acknowledge and agree to this Section 9.8.

9.9     Severability.  Whenever possible, each provision or portion of any provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable Law but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or portion of any provision in such jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

9.10     Third Party Beneficiaries.  This Agreement shall be binding upon and inure solely to the benefit of the Parties hereto and their respective successors and assigns.  None of the provisions of this Agreement shall be for the benefit of or enforceable by any third party, including any creditor of any Party or any of their Affiliates, except for the Indemnitees.  No such third party shall obtain any right under any provision of this Agreement or shall by reasons of any such provision make any claim in respect of any liability (or otherwise) against any other Party hereto.

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9.11     Confidentiality.  The Parties agree that the Transaction Documents, their negotiations in connection therewith and all information obtained by or provided to any of them in connection with the matters contemplated herein will be maintained as confidential, except as provided in any Transaction Document, as necessary for the enforcement of the applicable Transaction Document, or as may be required by Laws. 

9.12     Time of Essence.  Time is of the essence in this Agreement.

[Signature pages follow]

 

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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be signed by their respective duly authorized officers as of the date first above written.

 

 

 

 

 

 

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EXHIBIT A

DEFINITIONS; INTERPRETATION

 

“Additional FREIF Commitment Amount” is defined in the recitals.

“Affiliate” means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, a specified Person.  A Person shall be deemed to control another Person if such first Person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of such other Person, whether through the ownership of voting securities, by Contract or otherwise.

“Agreement” is defined in the preamble to this Agreement.

“Amendment to Partnership Agreement” is defined in Section 3.2(a).

“Board of Directors” means the board of directors of the General Partner.

“Business Day” means any day other than a Saturday, a Sunday or a day on which banks in Denver, Colorado or New York, New York are authorized or required by Law to be closed.

“Caliber Entities”  means Caliber GP and Caliber Partners. 

“Caliber GP” is defined in the preamble.

“Caliber Indemnitees” is defined in Section 7.1.

“Caliber Partners” is defined in the preamble.

“Caliber Sub” is defined in the recitals.

“Charter Documents” means, with respect to any Person, the certificate of incorporation or formation, articles of incorporation or association and the by-laws, limited liability company agreement or limited partnership agreement or other agreement or agreements that establish the legal personality of such Person, in each case as amended to date.

“Claim” is defined in Section 7.4(a).

“Claim Notice” is defined in Section 7.4(a).

“Class A Unit” is defined in the Partnership Agreement.

“Class A Trigger Unit” is defined in the Partnership Agreement.

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“Closing” is defined in Section 3.1.

“Closing Date” is defined in Section 3.1.

“Contract” shall mean any agreement, lease, license, note, evidence of Indebtedness, mortgage, security agreement, understanding, instrument or other binding arrangement evidenced by a written document.

“Delaware LLC Act” means the Delaware Limited Liability Company Act, as amended from time to time.

“Delaware LP Act” means the Delaware Revised Uniform Limited Partnership Act, as amended from time to time.

“Equity Interests” means any (i) corporate stock, shares, partnership interests, limited liability company interests, membership interests or other equity interests or units (whether general or limited), (ii) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distribution of assets of, the issuing entity, or the right to vote on or direct the management or affairs of the issuing entity, or (iii) subscriptions, calls, warrants, options or commitments of any kind or character relating to, exercisable or exchangeable for, or convertible into, or entitling any Person to purchase or otherwise acquire, any of the foregoing.

“Fraud” means common law fraud or a knowing and intentional misrepresentation or omission of a material fact.

“FREIF” is defined in the preamble.

“FREIF Commitment Amount” is defined in the recitals.

“FREIF Indemnitees” is defined in Section 7.2.

“FREIF Second A&R 2013 Warrant Agreement”  means that certain Second Amended and Restated Warrant Agreement, dated as of the date of this Agreement, by and between Caliber Partners and FREIF, which amends and restates the FREIF 2013 Warrant Agreement.

“FREIF 2013 Warrant Agreement” means that certain Warrant Agreement, by and between Caliber Partners and FREIF, dated September 12, 2013, as amended by the Amended and Restated Warrant Agreement, dated April 14, 2014, by and between Caliber Partners and FREIF.

“FREIF 2015 Contribution Amount” is defined in the recitals.

“Funding” is defined in Section 3.6.

“Funding Date” is defined in Section 3.6.

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“GAAP” means U.S. generally accepted accounting principles.

“Governmental Authority” means any executive, legislative, judicial, regulatory or administrative agency, body, commission, department, board, court, tribunal, arbitrating body or authority of the United States or any foreign country, or any state, local or other governmental subdivision thereof.

“GP LLC Agreement”  means the Second Amended and Restated Limited Liability Company Agreement of Caliber GP, dated September 12, 2013,  as such may be amended from time to time.    

“Indebtedness” means, with respect to any specified Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for a deferred purchase price (other than trade payables incurred in the ordinary course of such Person’s business, consistent with past practice), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person under capital leases, (e) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit, surety bonds or similar arrangements, whether or not drawn, (f) all obligations of such Person created or arising under any conditional sale or title retention agreement, (g) the liquidation value or redemption price, as the case may be, of all preferred or redeemable stock of such Person, (h) all net obligations of such Person payable under any rate, currency, commodity or other swap, option or derivative agreement, (i) all obligations secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (other than Permitted Liens) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation and (j) all obligations of others guaranteed by such Person.

“Indemnifying Party” is defined in Section 7.4(a).

“Indemnitees” is defined in Section 7.3(c).

“Initial Closing” means the closing of the transactions under the Original Contribution Agreement on the Initial Closing Date.

“Initial Closing Date” means October 1, 2012.

“Interim Agreement” means that certain Interim Agreement, dated as of the date of this Agreement, by and between Caliber GP, Caliber Partners, FREIF, and Triangle Holdings.

“Laws” means all laws, common laws, Orders, statutes, codes, regulations, ordinances, rules, policies or other requirements with similar effect of any Governmental Authority or any binding provisions or interpretations of the foregoing.

“Liability” means, collectively, any Indebtedness, commitment, guaranty, endorsement, claim, loss, damage, deficiency, cost, expense, obligation, contingency, responsibility or other liability, in each case, whether fixed or unfixed, asserted or unasserted, due or to become due, accrued or unaccrued, or absolute, contingent or otherwise.

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“Lien” means any claim, lien, pledge, restriction, option, charge, right of first refusal, preemptive right, easement, security interest, deed of trust, mortgage, right-of-way, encroachment, building or use restriction, encumbrance or other right of third parties, whether voluntarily incurred by a Party or arising by operation of Law, and includes, without limitation, any agreement to give any of the foregoing in the future, and any contingent or conditional sale agreement or other title retention agreement or lease in the nature thereof.

“LLC Unit” shall mean a “Unit,” as defined in the GP LLC Agreement.

“Losses” is defined in Section 7.1.

“Orders” means any judgments, orders, writs, injunctions, decisions, rulings, decrees or awards of any Governmental Authority.

“Organizational Interests” is defined in the recitals.

“Organizational Limited Partners” is defined in the preamble of this Agreement.

“Original Contribution Agreement” is defined in the recitals.

“Partnership Agreement”  means the Third Amended and Restated Agreement of Limited Partnership of Caliber Partners, dated November 14, 2014, as such may be amended from time to time, including by the Amendment to Partnership Agreement.    

“Party” and “Parties” are defined in the preamble of this Agreement.

“Permitted Liens” means (i) statutory liens for current Taxes applicable to the assets of the Caliber Entities that are not yet due and payable or assessments not yet delinquent or the amount or validity of which is being contested in good faith and for which adequate reserves have been established in accordance with GAAP; (ii) mechanics’, carriers’, workers’, repairers’, landlords’, and other similar liens arising or incurred in the ordinary course of business of the Caliber Entities relating to obligations as to which there is no default on the part of the Caliber Entities or the amount or validity of which is being contested in good faith and for which adequate reserves have been established in accordance with GAAP; (iii) Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business; (iv) Liens affecting the use of real property that were not incurred in connection with Indebtedness and that do not individually or in the aggregate materially adversely affect the value of said properties or materially impair their use in the ordinary course; (v) Liens on pipelines or pipeline facilities that arise by operation of law; and (vi) any Liens that (A) do not secure Indebtedness within the meaning of clauses (a), (c), (d), (e), (g), (h) or (i) of the definition thereof and (B) together with all other Liens, do not materially detract from the value of the Caliber Entities or materially interfere with the use of the Conveyed Assets or the Proposed Business.

“Person” means any individual, partnership, joint venture, corporation, limited liability company, limited partnership, trust, unincorporated organization or Governmental Authority or any department or agency thereof.

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“Pre-Closing Cash Contribution Amount”  means $571,453.02, consisting of the aggregate amount of cash and capital expenditures contributed by Triangle Petroleum or any of its Affiliates to Caliber Midstream, or paid by Triangle Petroleum or any of its Affiliates on behalf of Caliber Midstream, as of the Initial Closing Date.

“Proposed Business” means the design and construction of crude oil and natural gas gathering and delivery facilities, fresh water sourcing and delivery facilities, produced water transportation and disposal facilities,  and natural gas processing facilities and related assets in McKenzie County, North Dakota and the ownership and operation of the business to be conducted in the ordinary course using such assets.

“Remaining Triangle Holdings Commitment Amount” is defined in the recitals.

“Securities Act” means the Securities Act of 1933, as amended.

“Tax” means (i) any tax, charge, fee, levy, penalty or other assessment imposed by any Taxing Authority, including any excise, property, abandoned or unclaimed property, income, sales, transfer, margin, franchise, payroll, withholding, gross receipts, social security or other tax, including any interest, penalties or additions attributable thereto and (ii) any liability for amounts described under clause (i) above under Treasury Regulation Section 1.1502-6 (or any similar provision of federal, state, local or foreign Law), as a result of transferee or successor liability, by Contract, by Law or otherwise.

“Taxing Authority” means, with respect to any Tax, the Governmental Authority or political subdivision thereof that imposes or administers such Tax, and the agency (if any) charged with the collection or administration of such Tax for such entity or subdivision.

“Transaction Documents” is defined in Section 3.5.

“Transactions” is defined in Section 3.5.

“Triangle Holdings 2015 Warrant Agreement” means that certain Warrant Agreement (2015), dated as of the date of this Agreement, by and between Caliber Partners and Triangle Holdings.

“Triangle Holdings” is defined in the preamble.

“Triangle Holdings 2012 Warrant Agreement” means that certain Warrant Agreement, dated the Initial Closing Date, by and between Caliber Partners and Triangle Holdings, as amended by the Amended and Restated Warrant Agreement by and between Caliber Partners and Triangle Holdings, dated April 14, 2014. 

“Triangle Holdings 2013 Warrant Agreement”  means that certain Amended and Restated Warrant Agreement, dated April 4, 2014, by and between Caliber Partners and Triangle Holdings, which amended and restated a certain Warrant Agreement, dated September 12, 2013,  by and between Caliber Partners and Triangle Holdings.

“Triangle Indemnitees” is defined in Section 7.1.

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“Triangle Petroleum” is defined in the recitals.

“Triangle Holdings Second A&R 2012 Warrant Agreement”  means that Second Amended and Restated Warrant Agreement (2012), dated as of the date of this Agreement, by and between Caliber Partners and Triangle Holdings, which amends and restates the Triangle Holdings 2012 Warrant Agreement. 

“Triangle Holdings Second A&R 2013 Warrant Agreement”  means that Second Amended and Restated Warrant Agreement (2013), dated as of the date of this Agreement, by and between Caliber Partners and Triangle Holdings, which amends and restates the Triangle Holdings 2013 Warrant Agreement. 

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