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EXHIBIT 10.11
COMMITMENT AGREEMENT
THIS COMMITMENT AGREEMENT, dated as of December 10, 1999, is among
Forcenergy Inc (the "Company"), a Delaware corporation and a debtor and
debtor-in-possession in that certain voluntary proceeding under Chapter 11 of
the Bankruptcy Code referred to below, and Xxxxxx Brothers, Inc., Xxxxx Global
Investments, LTD, Remington Investment Strategies, L.P., Oaktree Capital
Management, LLC, acting as general partner or investment manager of the funds
and accounts party hereto, and The Anschutz Corporation (the "Initial
Purchasers"). Unless the context otherwise requires, all capitalized terms
defined in the Plan (as defined below) and not otherwise defined herein shall
have the same meanings herein as in the Plan.
W I T N E S S E T H:
WHEREAS, on March 21, 1999, the Company and Forcenergy Resources, Inc.
filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code in
the United States Bankruptcy Court for the Eastern District of Louisiana which
are being jointly administered by such Bankruptcy Court under Case No. 99-11391
"A" (the "Chapter 11 Cases");
WHEREAS, since the commencement of the Chapter 11 Cases, the Company has
operated its business and held its assets and properties as a
debtor-in-possession under Section 1107 of the Bankruptcy Code;
WHEREAS, on October 26, 1999, the Company filed the Plan, which Plan
contemplates, inter alia, (i) the issue to the Company's unsecured creditors, on
account of their Allowed Claims, of rights to purchase (the "Rights Offering")
units consisting of (a) shares of the Company's preferred stock ("Preferred
Stock") and (b) 10-year warrants for the purchase of the Company's common stock
("Warrants", and together with Preferred Stock, the "Securities"), (ii) the
exercise by the Initial Purchasers of their rights to purchase the Securities
pursuant to the Rights Offering on account of their Allowed Claims, (iii) the
purchase by the Initial Purchasers of the Securities not otherwise purchased
pursuant to the Rights Offering and (iv) the payment by the Company of the
Commitment Fee to the Initial Purchasers;
WHEREAS, the Company desires that the Initial Purchasers enter into this
Commitment Agreement in order to evidence their respective commitments and
obligations; and
WHEREAS, the Company and the Initial Purchasers are willing to enter
into this Commitment Agreement upon the terms and conditions hereinafter set
forth;
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto hereby agree as follows:
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ARTICLE I
SECTION 1.1 Definitions
As used herein, the following terms shall have the meanings set forth in
this Article I, in addition to the other capitalized terms defined in the Plan.
"Actions" shall have the meaning assigned to it in 3.8(c).
"Backstop Shares" shall have the meaning assigned to it in Section 2.1.
"Business Day" shall mean any day other than a Saturday, Sunday or any
other day on which banking institutions in the City of New York are authorized
by law, regulation or executive order to remain closed.
"Bylaws" shall mean the bylaws of the Company as amended pursuant to the
Plan.
"Certificate of Incorporation" shall mean the certificate of
incorporation of the Company as amended pursuant to the Plan.
"Closing" shall mean the closing of the transactions contemplated by
this Commitment Agreement.
"Closing Date" shall mean the date of the closing of the Rights
Offering.
"Commitment Fee" shall have the meaning assigned to it in Section 10.2.
"Company" shall have the meanings assigned to it in the Recitals.
"Company SEC Documents" shall mean the Annual Report of the Company on
Form 10-K for the fiscal year ended December 31, 1998 and any Quarterly Reports
of the Company on Form 10-Q and Current Reports on Form 8-K filed thereafter
under the Exchange Act.
"Confirmation Date" shall have the meaning set forth in the Plan.
"Confirmation Order" shall have the meaning set forth in the Plan.
"Disclosure Statement" shall have the meaning assigned to it in Section
3.5.
"Disputed Claims Payment Date" shall mean, with respect to Securities
(a) subscribed for by Exercised Disputed Claims that have been determined by
Final Order not to be an Allowed Claim and (b) not been previously purchased by
the Initial Purchasers pursuant to Section 2.1(b); the date two Business Days
after receipt of written notice from the Company (i) that the aggregate purchase
price of such Securities is in excess of $250,000, or (ii) that no further
Exercised Disputed Claims exist.
"Effective Date" shall have the meaning set forth in the Plan.
"Environmental Laws" shall mean all federal, state, local and foreign
laws and regulations relating to pollution or the environment (including,
without limitation, ambient air,
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surface water, ground water, land surface or subsurface strata), including,
without limitation, laws and regulations relating to emissions, discharges,
releases or threatened releases of Materials of Environmental Concern, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Materials of Environmental Concern.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Historical Financial Statements" shall mean the audited consolidated
balance sheets of the Company and Subsidiaries as of September 30, 1998, and the
related consolidated statements of operations, stockholders' equity (deficit)
and cash flows for the fiscal year in the period ended December 31, 1998.
"HSR Act" shall have the meaning assigned to it in Section 3.4.
"Initial Purchasers" shall have the meaning assigned to it in the
Recitals.
"Mailing Date" shall mean the initial date of mailing of the Disclosure
Statement, as approved by the Bankruptcy Court to the creditors and shareholders
of the Company.
"Material Adverse Effect" shall mean, in connection with the Company or
any of its Subsidiaries, any change or effect that is materially adverse to the
business, operations, properties (including intangible properties), condition
(financial or otherwise), prospects or assets or liabilities of the Company and
its Subsidiaries taken as a whole.
"Materials of Environmental Concern" shall mean hazardous substances as
defined under the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Sections 9601, et seq.. and hazardous wastes as defined
under the Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901, et
seq. and petroleum and petroleum products and such other chemicals, materials or
substances as are listed as "hazardous wastes", "hazardous materials", "toxic
substances", or words of similar import under any similar federal, state, local
or foreign laws.
"Plan" shall mean the Debtors' First Amended Joint Plan of
Reorganization Under Chapter 11 of the United States Bankruptcy Code, dated as
of October 26, 1999, attached hereto as Exhibit A, as may be amended in
accordance with applicable law.
"Preferred Stock" shall have the meaning assigned to it in the Recitals.
"Rights Offering" shall have the meaning assigned to it in the Recitals.
"Securities" shall have the meaning assigned to it in the Recitals.
"Subsidiary" shall mean any corporation or other entity, a majority of
the shares of capital stock or other equity interests of which are owned,
directly or indirectly, by the Company.
"Subscription Purchase Price" shall have the meaning assigned to it in
the Plan.
"Warrants" shall have the meaning assigned to it in the Recitals.
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ARTICLE II
SECTION 2.1 Obligations Of The Initial Purchasers
In reliance upon the representations, warranties, covenants and
agreements of the Company and upon the terms and subject to the conditions of
this Commitment Agreement:
(a) Subject to Section 2.1 (c), each Initial Purchaser agrees to
subscribe for and at the Closing, purchase from the Company, in the amount
determined pursuant to the Plan (i) its full pro rata share of the Securities
granted to the Initial Purchasers pursuant to the Plan on account of any and all
Claims and (ii) all of the remaining Securities not otherwise subscribed for and
purchased as a result of either Unexercised Subscription Rights pursuant to the
Plan or the failure of the Rights Offering to occur (the "Backstop Shares"), and
the Company agrees to issue and sell to the Initial Purchasers such Securities.
The Securities shall be paid for in the amount of its related Subscription
Purchase Price in the manner provided for in the Plan.
(b) Subject to Section 2.1 (c), each Initial Purchaser hereby
subscribes for and agrees to purchase, on any Disputed Claims Payment Date, its
full pro rata share of the Securities subscribed for by holders of Exercised
Disputed Claims to the extent that all or a portion of any such Exercised
Disputed Claim is determined by Final Order not to be an Allowed Claim. Subject
to Section 2.1 (c), the Initial Purchaser will pay to the Company for such
Securities on the Disputed Claims Payment Date an amount of cash equal to the
Disputed Subscription Purchase Price (or such lesser amount with respect to such
Exercised Disputed Claims as may be required pursuant to the Plan). Such payment
shall be made by wire transfer of immediately available funds to such account as
the Company shall designate in writing.
(c) Notwithstanding any other provision in this Agreement to the
contrary, the obligations of the Initial Purchasers pursuant to this Agreement,
including, without limitation, with respect to the subscription, purchase and
payment for any shares of the Securities, shall terminate on the date fifteen
(15) months after the Confirmation Date.
SECTION 2.2 Closing
(a) The Closing shall take place at the offices of Xxxxxxx & Xxxxx
L.L.P., 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, or at such other location
as the parties may agree, on the Closing Date.
(b) At the Closing:
(i) The Company shall deliver to each Initial Purchaser
certificates for each of the Securities representing such Initial
Purchaser's pro rata share of the Securities distributed to holders of
Allowed General Unsecured Claims pursuant to the Plan, in definitive
form and registered in the name(s) specified in writing by such Initial
Purchaser at least two Business Days prior to the Closing;
(ii) The Company shall deliver to each Initial Purchaser against
payment therefor, certificates of the Securities, in definitive form
and registered in the name(s) specified in writing by such Initial
Purchaser at least two Business Days prior to the Closing, representing
such Initial Purchaser's pro rata share of the Securities
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subscribed for and purchased pursuant to Section 2.1(a)(i) hereof and
the Backstop Shares subscribed for and purchased pursuant to Section
2.1(a)(ii) hereof;
(iii) The Company shall issue the Securities representing the
Disputed Claims to be held in escrow in a Disputed Claims Reserve
Account; and
(iv) At the Closing, each party to this Commitment Agreement shall
deliver to the other parties such other documents, instruments and
writings as may be required to be delivered in accordance with this
Commitment Agreement or as may be reasonably requested by such other
party.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants, as of the execution and
delivery hereof, to the Initial Purchasers as follows:
SECTION 3.1 Organization and Qualification
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has full power and
authority to own, operate and lease its properties and to carry on its business
as now being conducted.
SECTION 3.2 Authority, Authorization and Validity
Subject to approval of this Commitment Agreement by the Bankruptcy Court
and the issuance of the Confirmation Order, the Company has full power and
authority to execute, deliver and perform this Commitment Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Commitment Agreement by the Company, and the consummation by
the Company of the transactions contemplated hereby to be performed by the
Company, have been duly authorized by all requisite action of its Board of
Directors and, if required, shareholders of the Company, and this Commitment
Agreement constitutes the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject, where
applicable, to entry of the Confirmation Order and to general principles of
equity, whether considered in a proceeding at law or in equity.
SECTION 3.3 Capitalization
The Securities to be issued by the Company pursuant to this Commitment
Agreement and/or the Plan, when so issued as provided in the Plan and/or this
Commitment Agreement, will be duly authorized, validly issued, fully paid and
non-assessable and free of preemptive rights and will entitle the holders
thereof to all of the rights of a holder of the Securities in accordance with
the Certificate of Incorporation, the Bylaws and the laws of the State of
Delaware.
SECTION 3.4 Approvals and Consents
Except for (i) approval by the Bankruptcy Court of the provisions of
this Commitment Agreement, (ii) any required filings under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 0000 (xxx "XXX Xxx") and the expiration or earlier
termination of the applicable waiting periods
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thereunder, and (iii) the issuance of the Confirmation Order, no consent,
approval, order or authorization of, and no registration, declaration or filing
with, any federal, state, local or foreign government or governmental authority
is required to be made or obtained by the Company in connection with the
execution and delivery by the Company of this Commitment Agreement or the
consummation by the Company of the transactions contemplated hereby to be
performed by the Company.
SECTION 3.5 Disclosure Statement
On October 26, 1999, the Company filed with the Bankruptcy Court an
amended disclosure statement pursuant to Section 1125 of the Bankruptcy Code.
Such amended disclosure statement, in the form approved by the Bankruptcy Court
for use by the Company in the solicitation of acceptances or rejections of the
Plan, together with any further amendments as of the Mailing Date, is herein
called the "Disclosure Statement." The Disclosure Statement, as of the Mailing
Date (as hereinafter defined), will contain "adequate information" (as defined
in Section 1125(a)(1) of the Bankruptcy Code) with respect to the Plan, and will
describe accurately in all material respects the provisions of the Plan and this
Commitment Agreement.
SECTION 3.6 Full Disclosure
The Company has disclosed to the Initial Purchasers all material facts
concerning the Company's and its Subsidiaries' assets, business, operations and
financial condition. No representation or warranty by the Company in this
Commitment Agreement and no statement made by the Company contained in the Plan,
the Disclosure Statement (other than statements made by the Initial Purchasers
therein) or any document delivered or to be delivered by or on behalf of the
Company to the Initial Purchasers in accordance with this Commitment Agreement
contained or will contain any untrue statement of material fact or omitted or
will omit to state a material fact necessary to make the statements contained in
this Commitment Agreement or in any such document, in the light of the
circumstances under which they were made, not misleading.
SECTION 3.7 Absence of Certain Changes
Since the date of the Historical Financial Statements and except as
disclosed in the Company SEC Documents, the Plan, the Disclosure Statement and
filings with the Bankruptcy Court, the business of the Company has been
conducted in the ordinary course and there has not been:
(i) any event, occurrence, development or state of circumstances
or facts which has had or could reasonably be expected to have a
Material Adverse Effect;
(ii) any declaration, setting aside or payment of any dividend or
other distribution with respect to any shares of capital stock of the
Company, or any repurchase, redemption or other acquisition by the
Company or any Subsidiary of any outstanding shares of capital stock or
other securities of, or other ownership interests in, the Company or
any Subsidiary (excluding any transactions relating to Forcenergy AB);
(iii) any amendment of any material term of any outstanding
security of the Company or any Subsidiary;
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(iv) any incurrence, assumption or guarantee by the Company or any
Subsidiary of any indebtedness for borrowed money;
(v) any creation or assumption by the Company or any Subsidiary of
any Lien on any material asset other than in the ordinary course of
business consistent with past practices;
(vi) any making of any loan, advance or capital contributions to
or investment in any Person other than a Subsidiary of the Company;
(vii) any damage, destruction or other casualty loss (whether or
not covered by insurance) affecting the business or assets of the
Company or any Subsidiary which, individually or in the aggregate, has
had or would reasonably be expected to have a Material Adverse Effect;
(viii) any transaction or commitment made, or any contract or
agreement entered into, by the Company or any Subsidiary relating to
its assets or business (including the acquisition or disposition of any
assets) or any relinquishment by the Company or any Subsidiary of any
contract or other right, in either case, material to the Company and
its Subsidiaries, taken as a whole, other than transactions and
commitments in the ordinary course of business consistent with past
practices;
(ix) any (A) employment, deferred compensation, severance,
retirement or other similar agreement entered into with any director,
officer or employee of the Company or any Subsidiary (or any amendment
to any such existing agreement), (B) grant of any severance or
termination pay to any director, officer or employee of the Company or
any Subsidiary, or (C) change in compensation or other benefits payable
to any director, officer or employee of the Company or any Subsidiary
pursuant to any severance or retirement plans or policies thereof;
(x) any labor dispute, other than routine individual grievances,
or any activity or proceeding by a labor union or representative
thereof to organize any employees of the Company or any Subsidiary,
which employee was not previously subject to a collective bargaining
agreement, or any lockouts, strikes, slowdowns, work stoppages or
threats thereof by or with respect to any employees of the Company or
any Subsidiary; or
(xi) any agreement to do any of the forgoing.
SECTION 3.8 Environmental Matters
(a) The Company and its Subsidiaries have obtained all permits,
licenses and other authorizations, and have made all registrations and given all
notifications, that are required with respect to the operation of their
respective businesses under all applicable Environmental Laws other than those
permits, licenses, other authorizations, registrations and notifications the
failure of which to obtain or make, individually or in the aggregate, would not
have a Material Adverse Effect.
(b) Except as disclosed in the Disclosure Statement or otherwise
affected by the Chapter 11 Cases, the Company and its Subsidiaries are in
compliance in all material respects
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with all terms and conditions of the required permits, licenses and other
authorizations referred to in paragraph (a) above, and are also in compliance in
all material respects with any other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in the Environmental Laws or contained in any regulation, code, plan,
order, decree, judgment, injunction, settlement agreement, notice or demand
letter issued, entered, promulgated or approved thereunder, other than where the
failure to be in such compliance, individually or in the aggregate, would not
have a Material Adverse Effect.
(c) Except as described in the Disclosure Statement there is no civil,
criminal or administrative action, suit, demand, claim, hearing, notice of
violation, investigation, proceeding, notice or demand letter (collectively
"Actions") pending or threatened against the Company or any of its Subsidiaries
relating in any way to Environmental Laws or any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder other than Actions that, if determined
adversely to the Company or such Subsidiaries, would not reasonably be expected
to have a Material Adverse Effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE INITIAL PURCHASERS
SECTION 4.1 Representations and Warranties of the Initial Purchasers
Each of the Initial Purchasers hereby severally, and not jointly,
represents and warrants to, and covenants and agrees with, the Company as
follows.
SECTION 4.2 Organization
The Initial Purchaser is a corporation, limited partnership, trust or
limited liability company duly organized, validly existing and in good standing
under the laws of its state of incorporation, formation, or organization, and
has full power and authority to own, operate and lease its properties and to
carry on its business as now being conducted.
SECTION 4.3 Authority, Authorization and Validity
The Initial Purchaser has full power and authority to execute, deliver
and perform this Commitment Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Commitment
Agreement by the Initial Purchaser, and the consummation by the Initial
Purchaser of the transactions contemplated hereby to be performed by the Initial
Purchaser, have been duly authorized by all requisite action of its Board of
Directors, partners or managers and, if required, its shareholders or members.
This Commitment Agreement has been duly authorized by such Initial Purchaser and
has been duly executed and delivered on its behalf and constitutes the valid and
binding obligation of such Initial Purchaser, enforceable against such Initial
Purchaser in accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, moratorium, reorganization and similar laws affecting
creditors' rights generally and to general principles of equity, whether
considered in a proceeding at law or in equity.
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SECTION 4.4 Available Funds
The Initial Purchaser has and will have full power and authority to
contribute at the Closing the funds required pursuant to Article II hereof to
the capital of the Company and has and will have sufficient funds available to
fulfill these obligations.
SECTION 4.5 No Conflicts
The execution and delivery by such Initial Purchaser of this Commitment
Agreement, and the consummation by such Initial Purchaser of the transactions
contemplated hereby, will not conflict with, violate, or result in any breach
of, any of the terms, conditions or provisions of, or constitute a default
under, or result in the creation of a lien on, or the acceleration of any
obligation or the loss of a benefit under, (I) the certificate of incorporation,
bylaws, partnership agreement, limited liability company agreement, or other
organizational document of such Initial Purchaser, (II) any note, indenture,
deed of trust, material lease, or other material instrument, contract or
agreement to which such Initial Purchaser may then be a party, or (III) any law,
ordinance, rule or regulation of any government or governmental authority or
judgment, order or decree of any court or governmental authority.
SECTION 4.6 Approvals and Consents
Subject to such filings as may be required under the Exchange Act, the
HSR Act and the entry of the Confirmation Order, all consents, approvals, orders
and authorizations of, and all registrations, declarations and filings with, any
federal or state government or governmental authority required to be made or
obtained by such Initial Purchaser for the consummation by it of the
transactions contemplated hereby have been made or obtained or will be made or
obtained prior to the Closing Date.
SECTION 4.7 Disclosure
The information provided by such Initial Purchaser in writing expressly
for inclusion in the Disclosure Statement does not, and will not, contain an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
SECTION 4.8 Accredited Investor
The Initial Purchaser is an "accredited investor," as such term is
defined in Regulation D promulgated under the Securities Act.
SECTION 4.9 Investigation
The Company has made available and the Initial Purchaser has reviewed
such information which such Initial Purchaser considers necessary or appropriate
to evaluate the risks and merits of an investment in the Securities.
SECTION 4.10 Financial Experience
The Initial Purchaser has such knowledge and experience in financial,
tax and business matters, including substantial experience in evaluating and
investing in common stock and other
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securities (including the common stock and other securities of new and
speculative companies), in order to evaluate the merits and risks of an
investment in the Securities and to make an informed investment decision with
respect thereto.
ARTICLE V
COVENANTS OF THE COMPANY
The Company covenants and agrees with the Initial Purchasers that, from
and after the date hereof and until the Closing Date, except as otherwise
expressly provided herein or in the Plan and subject to the terms and conditions
hereof:
SECTION 5.1 Conduct of Business
(a) The Company shall carry on its business diligently and consistent
with good business practice, maintain its properties in customary repair, order
and condition, ordinary wear and tear excepted, and use all reasonable
commercial efforts to maintain and preserve its business organization.
(b) The Company will not (i) take or agree or commit to take any action
that would make any representation and warranty of the Company hereunder
inaccurate in any material respect at, or as of any time prior to, the Closing
Date or (ii) omit or agree or commit to omit to take any action necessary to
prevent any such representation or warranty from being inaccurate in any
material respect at any such time.
SECTION 5.2 Actions in the Chapter 11 Case
(a) Subject to its fiduciary obligations as debtor-in-possession in the
Chapter 11 Case, the Company shall use its reasonable best efforts to cause the
Plan to be confirmed by the Bankruptcy Court.
(b) Promptly after the execution and delivery hereof, the Company shall
make such filings (which shall be in form and substance satisfactory to the
Initial Purchasers ) with the Bankruptcy Court as are necessary in order to
obtain the approval of the Bankruptcy Court of the terms and provisions of this
Commitment Agreement on or before entry of an order approving the Plan,
including, without limitation, the provisions of Section 10.2 hereof. The
Company shall use its reasonable best efforts to obtain such approval as part of
the hearing on confirmation of the Plan.
(c) The Company shall use its reasonable best efforts to file with the
Bankruptcy Court and to prosecute objections to all Claims that the Company
believes in good faith are subject to objection in whole or in part, including,
without limitation, objections to the amount of such Claims and to any lien,
mortgage or other security interest asserted with respect to such Claims.
SECTION 5.3 Delivery of Certain Documents
(a) The Company shall promptly furnish to the Initial Purchasers from
the date hereof until the Closing Date a copy of each such report, including
financial statements and schedules, hereafter filed by the Company pursuant to
the Exchange Act, and all material
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documents served upon or served by the Company in connection with the Chapter 11
Case or any action or proceeding which may be initiated with respect to any
transaction contemplated by this Commitment Agreement.
(b) The Company shall give the Initial Purchasers and their respective
accountants, counsel and other designated representatives access during normal
business hours throughout the period from the date hereof to the Closing Date to
all premises, books, records and other information of and concerning the Company
(including, without limitation, all work papers relating to tax and accounting
information used in connection with the preparation of financial statements and
tax returns), and shall cause its officers and managerial employees to furnish
to the Initial Purchasers such financial and operating data and other
information with respect to its business and properties as either may reasonably
request. No investigation made by or information furnished to the Initial
Purchasers pursuant to this Commitment Agreement shall be deemed to impact the
Initial Purchasers' ability to rely on any representations or warranties by the
Company or the conditions to the obligations of the parties to consummate the
transactions contemplated by this Commitment Agreement.
SECTION 5.4 Notification
The Company shall promptly notify the Initial Purchasers of (i) the
occurrence of any change, event or condition that has had, or could reasonably
be expected to have, an effect on the Closing or a Material Adverse Effect, (ii)
the commencement or threat of commencement of any litigation that might
reasonably be expected to have a Material Adverse Effect or that relate to the
consummation of the transactions contemplated by this Commitment Agreement or
the Plan, (iii) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with the
consummation of the transactions contemplated by this Commitment Agreement or
(iv) any notice or other communication from any governmental or regulatory
agency or authority in connection with the transactions contemplated by this
Commitment Agreement or the Plan.
SECTION 5.5 Government Filings
The Company will (i) duly and timely file (subject to authorized
extensions) all reports or returns required to be filed with federal authorities
and all material reports and returns required to be filed with state, foreign,
local or other authorities, (ii) except as contemplated by the Plan, unless
contesting such in good faith and having established adequate book reserves
therefor, promptly pay, as and when due, all federal, state, local and foreign
taxes, assessments and governmental charges to the extent such taxes,
assessments and charges constitute expenses of administration under Section 503
of the Bankruptcy Code and (iii) duly observe and conform to all lawful
requirements of any governmental authority relating to any of its properties or
to the operation and conduct of its business and to all covenants, terms and
conditions upon, or under which, any of its properties are held where the
failure so to observe, conform or comply would have a Material Adverse Effect.
SECTION 5.6 Further Assurances
The Company shall (i) execute and deliver such instruments and take such
other actions as the Initial Purchasers may reasonably require in order to carry
out the intent and purpose of this Commitment Agreement and the Plan, (ii) use
its best efforts, diligently and in good faith, to
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obtain any consents required herein to be obtained, (iii) subject to its
fiduciary duties as debtor-in-possession, diligently support this Commitment
Agreement and the Plan in any proceeding before the Bankruptcy Court or any
other governmental or regulatory authority whose approval of the transaction
contemplated hereby and by the Plan is required, (iv) subject to its fiduciary
duties as debtor-in-possession, use its best efforts, diligently and in good
faith, to oppose any litigation that seeks to restrain or prohibit the
consummation of the transactions contemplated hereby or by the Plan or which
would have a Material Adverse Effect and (v) use its best efforts, diligently
and in good faith, to cause the conditions precedent set forth in Article IX
hereof to be satisfied.
SECTION 5.7 Management Reports
Subject to its fiduciary duties as debtor-in-possession, the Company
shall prepare, consistently with its current practice, and deliver to the
Initial Purchasers copies of its internal financial package substantially
comparable to the report included in the monthly filing with the Bankruptcy
Court simultaneously with the circulation thereof within the Company.
ARTICLE VI
COVENANTS OF THE INITIAL PURCHASERS
Each of the Initial Purchasers, jointly and severally, covenants and
agrees, subject to the terms and conditions hereof, that they will (i) execute
and deliver such instruments and take such other actions as the Company may
reasonably require in order to carry out the intent and purpose of this
Commitment Agreement and the Plan, (ii) use their best efforts, diligently and
in good faith, to obtain any consents required herein to be obtained by them,
(iii) diligently support this Commitment Agreement and the Plan in any
proceeding before the Bankruptcy Court or any other governmental or regulatory
authority whose approval of the transaction contemplated hereby and by the Plan
is required, (iv) vote the Claims held by them in favor of the confirmation of
the Plan, (v) use their best efforts, diligently and in good faith, to oppose
any litigation that seeks to restrain or prohibit the consummation of the
transactions contemplated hereby or by the Plan and (vi) use their best efforts,
diligently and in good faith, to cause the conditions precedent set forth in
Article IX hereof to be satisfied.
ARTICLE VII
COVENANTS OF THE COMPANY AND THE INITIAL PURCHASERS
The Company and the Initial Purchasers agree that:
SECTION 7.1 Best Efforts
Subject to the terms and conditions of this Commitment Agreement, the
Company and the Initial Purchasers will use their reasonable best efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary or desirable under applicable laws and regulations to
consummate the transactions contemplated by this Commitment Agreement. The
Company and the Initial Purchasers agree to execute and deliver such other
documents, certificates, agreements and other writings and to take such other
actions as may be necessary or
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desirable in order to consummate or implement expeditiously the transactions
contemplated by this Commitment Agreement.
SECTION 7.2 Certain Filings
The Company and the Initial Purchasers shall cooperate with one another
(i) in determining whether any action by or in respect of, or filing with, any
governmental body, agency, official or authority is required, or any actions,
consents, approvals or waivers are required to be obtained from parties to any
material contracts, in connection with the consummation of the transactions
contemplated by this Commitment Agreement and (ii) in taking such actions or
making any such filings, furnishing information required in connection therewith
and seeking timely to obtain any such actions, consents, approvals or waivers.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY
SECTION 8.1 Conditions Precedent to the Company's Obligations
The obligations of the Company to consummate the transactions
contemplated by this Commitment Agreement, including, without limitation, to
issue the Securities as provided herein and in the Plan at the times herein and
therein provided, shall be subject to the satisfaction, or to the waiver by the
Company, of each of the following conditions:
(a) The Bankruptcy Court shall have entered the Confirmation Order.
(b) At the Closing Date, all required consents and approvals of any
governmental agency, authority, commission or other party shall have been
obtained and the same shall be in full force and effect, any applicable waiting
period (and any extension thereof) applicable to the consummation of the Plan
under the HSR Act shall have expired or been earlier terminated and no
preliminary or permanent injunction or other order, decree or ruling barring
consummation of the Plan shall have been entered with respect to or in
connection with any application under the HSR Act.
(c) The representations and warranties of the Initial Purchasers
contained herein shall have been true and correct when made, and shall be true
and correct in all material respects on and as of the Closing Date, as if made
by each Initial Purchasers, respectively, on and as of such date.
(d) At the Closing Date, each of the Initial Purchasers shall have
complied or shall concurrently comply with each covenant and agreement required
herein to be complied with by it on or prior to the Closing Date, provided,
however, that if any Initial Purchaser shall default in its obligation to
subscribe and purchase from the Company the Securities at the time and in the
amounts required pursuant to Section 2.1 hereof, any one or more of the
non-defaulting Initial Purchasers may, but shall not be required to, perform
such obligations and subscribe for and purchase such Securities in which case
this condition shall be satisfied.
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ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS
OF THE INITIAL PURCHASERS
SECTION 9.1 Conditions to Respective Obligations of the Initial
Purchasers
The joint and several obligations of the Initial Purchasers to
consummate the transactions contemplated by this Commitment Agreement,
including, without limitation, to make or effect or cause to be made or
effected, the payments required pursuant to Article II hereof at the times
therein provided, shall be subject to the satisfaction, or to the waiver by each
of the Initial Purchasers (except as expressly provided in this Section 9.1), of
each of the following conditions:
(a) Prior to the Closing Date, there shall have been approved pursuant
to an order of the Bankruptcy Court (which order, contemplated to be the
Confirmation Order, shall have become a Final Order) the issuance to the Initial
Purchasers of the Securities and the Securities issuable to the Initial
Purchasers and all the other provisions of Article II hereof and at the Closing
Date, no action, suit or proceeding by or before any court, governmental agency
or other tribunal shall be pending or threatened against the Company or the
Initial Purchasers, arising out of or with respect to the transactions
contemplated by this Commitment Agreement.
(b) The Bankruptcy Court shall have entered the Confirmation Order,
which order shall have become a Final Order, and such Final Order shall contain,
inter alia, provisions approving the amount of the fees and expenses paid or
payable to the Initial Purchasers and shall be in form and substance
satisfactory to each of the Initial Purchasers.
(c) Prior to the Closing Date, the Bankruptcy Court shall have entered
an order (which order shall become a Final Order) approving this Commitment
Agreement.
(d) At the Effective Date, no action, suit or proceeding by or before
any court, governmental agency or other tribunal shall be pending or threatened,
other than those actions, suits and proceedings described in the Disclosure
Statement, against the Company the adverse determination of which would have a
Material Adverse Effect.
(e) All consents and approvals of any governmental agency, authority,
commission or other party required to consummate the transactions contemplated
by this Commitment Agreement shall have been obtained and the same shall be in
full force and effect on and as of the Closing Date, any waiting period (and any
extension thereof) applicable to the consummation of the Plan under the HSR Act
shall have expired or been earlier terminated, and no preliminary or permanent
injunction or other order, decree or ruling barring consummation of the Plan
shall have been entered with respect to or in connection with any application
under the HSR Act.
(f) The representations and warranties of the Company contained herein
shall have been true and correct when made, and shall be true and correct in all
material respects on and as of the Closing Date, as if made by the Company on
and as of such date, other than the representations and warranties in Sections
3.7 and 3.8, which shall have been true and correct in
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all material respects on and as of the Effective Date, and the Initial
Purchasers shall have received a certificate of an executive officer of the
Company to such effect.
(g) At the Closing Date, the Company shall have complied or shall
concurrently comply in all material respects with each covenant and agreement
required herein to be complied with by it on or prior to the Closing Date, and
the Initial Purchasers have received a certificate of an executive officer of
the Company to such effect.
(h) At the Closing Date, the Certificate of Incorporation shall have
been duly adopted and filed with the Secretary of State for the State of
Delaware and the Bylaws shall have been duly adopted and each shall contain
provisions acceptable to the Initial Purchasers.
(i) The Registration Rights Agreement shall have been executed and
delivered by the parties thereto and such agreements shall contain substantially
the terms described in the Disclosure Statement, and all Exhibits and Schedules
to the Plan and Disclosure Statement shall be in form and substance reasonably
satisfactory to each of the Initial Purchasers.
(j) From the date hereof through and including the Effective Date, there
shall have been no material adverse change in the business, properties,
financial condition, prospects, or results of operations of the Company and its
Subsidiaries taken as a whole.
(k) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of Xxxxxxx & Xxxxx L.L.P., counsel to the Company, which opinion
shall be, in form and substance, reasonably satisfactory to the Initial
Purchasers and customary for the transactions contemplated by this Agreement
arising in a bankruptcy context, excluding, without limitation, matters approved
by the Bankruptcy Court pursuant to the Plan, but including, without limitation,
any applicable matters on which Xxxxxxx & Xxxxx L.L.P., as counsel to the
Company, renders an opinion to the Bank Group in connection with the New Senior
Credit Facility.
(l) The majority of holders of claims against the Company that have been
classified as Class 3 shall have approved the Plan.
SECTION 9.2 Waivers
On the date (which shall not be prior to 15 days after entry of an order
confirming the Plan) on which the Company notifies the Initial Purchasers that
the remaining conditions to the obligations of the Initial Purchasers set forth
in Section 9.1 hereof have been satisfied or waived and the Company delivers all
such instruments, certificates and opinions in appropriate form as required
under this Commitment Agreement, the Initial Purchasers shall determine whether
the conditions set forth in Sections 9.1(e) and 9.1(g) have been satisfied, or
if such conditions have not been satisfied shall determine whether or not to
waive the same, and shall notify the Company of the results of said
determination and in the event that all of such conditions are not satisfied or
waived, the Closing Date shall not occur and the parties hereto shall have such
right and obligations as are expressly set forth herein.
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ARTICLE X
MISCELLANEOUS
SECTION 10.1 Compliance With Plan
Without limiting the obligations of the Company under this Commitment
Agreement, the Company hereby covenants and agrees with the Initial Purchasers
that it will comply in all respects with the provisions of the Plan from and
after the entry by the Bankruptcy Court of the Confirmation Order with the same
force and effect as if such provisions were set forth in full herein.
SECTION 10.2 Commitment Fee
As partial consideration for the commitment by the Initial Purchasers to
purchase the Securities, including the Backstop Shares, the Company shall pay to
the Initial Purchasers an aggregate fee equal to $1,200,000 (the "Commitment
Fee") on the Effective Date of the Plan. Each Initial Purchaser will receive by
wire transfer in immediately available funds that portion of the Commitment Fee
equivalent to such Initial Purchaser's pro rata share of the Securities granted
to such Initial Purchaser pursuant to the Plan. The Company agrees that, upon
the Effective Date, the obligation of the Company to pay the Commitment Fee
shall become irrevocable, and once paid, the Commitment Fee shall not be
refundable under any circumstances.
SECTION 10.3 Waivers
Any failure of the Company or the Initial Purchasers to comply with any
obligation, covenant, agreement or condition herein may be expressly waived by
the party to which such obligation, covenant or agreement is owed or for whose
benefit such condition exists to the extent permitted under applicable law. Any
such waiver shall be in a writing signed by an officer or agent of the party
giving such waiver thereunto duly authorized. Any waiver or any failure to
insist upon strict compliance with any such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
SECTION 10.4 Brokers and Finders; Expenses
Except for Xxxxxx Xxxxxxx & Co., which will be compensated as described
in the Disclosure Statement, each of the Company and the Initial Purchasers
represent and warrant to the others of them that no broker or finder (including
any of its officers, directors or agents) is entitled to any brokerage or
finder's fee or other commission from it based on agreements, arrangements or
undertakings made by it in connection with this Commitment Agreement or the
transactions contemplated hereby. Except as otherwise provided in this
Commitment Agreement, each party shall bear its own costs and expenses in
connection herewith.
SECTION 10.5 Notices
Any notice, demand, claim or other communications under this Commitment
Agreement shall be in writing and shall be deemed to have been given (i) upon
personal delivery thereof, (ii)
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upon receipt thereof if sent by registered mail, return receipt requested,
postage prepaid, or (iii) upon confirmation of delivery thereof by courier
service, if sent by recognized overnight courier service, to the respective
address of the parties set forth below (or such other address as a party may
specify by notice given as herein provided):
If to the Company, to:
Forcenergy Inc
0000 X.X. 0xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
copy to its counsel:
Xxxxxxx & Xxxxx L.L.P.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx
If to the Initial Purchasers:
Xxxxxx Brothers
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: J. Xxxxxx Xxxxxxxx
- and -
The Anschutz Corporation
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
- and -
OCM Principal Opportunities Fund, L.P.
c/o Oaktree Capital Management, LLC
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
- and -
OCM Opportunities Fund II, L.P.
c/o Oaktree Capital Management, LLC
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
- and -
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Columbia/HCA Master Retirement Trust
c/o Oaktree Capital Management, LLC
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
- and -
Xxxxx Global Investments, LTD
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
- and -
Remington Investment Strategies, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
copy to their counsel:
XxXxxxxxxx Xxxxxxxx
000 Xxxxxxxx Xxxxxx
X.X. Xxx 00000 (70160-0643)
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx
and with a copy to counsel for the
Official Unsecured Creditors Committee:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
and
Lugenbuhl, Burke, Wheaton, Peck, Xxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Pan American Life Center, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx
SECTION 10.6 Successors And Assigns
This Commitment Agreement and all the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors (including, without limitation, any trustee of the Company and the
Company) and permitted assigns, but neither this
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Commitment Agreement nor any of the rights, interests or obligations hereunder
may be assigned by any of the parties hereto without the prior written consent
of each of the other parties.
SECTION 10.7 Headings
The headings of the Articles and Sections of this Commitment Agreement
are inserted for convenience only and shall not affect the interpretation
hereof.
SECTION 10.8 Entire Agreement
This Commitment Agreement and the Plan (including the Exhibits and
Schedules thereto) contains the entire understanding of the parties hereto with
respect to the subject matter hereof. There are no restrictions promises,
representations, warranties, covenants, or undertakings among the parties
relating to the subject matter hereof other than those expressly set forth or
referred to herein or therein, subject to the approval of the Bankruptcy Court.
This Commitment Agreement supersedes all prior agreements and understandings
among the parties with respect to the subject matter hereof. In the event of any
inconsistency between the term and provisions of this Commitment Agreement and
the terms and provisions of the Plan, then, and in such event, the terms and
provisions of this Commitment Agreement shall control.
SECTION 10.9 Counterpart
This Commitment Agreement may be executed in two or more counterparts,
and each such counterpart shall be deemed an original but all such counterparts
together shall constitute one and the same agreement.
SECTION 10.10 Governing Law
Except to the extent inconsistent with the Bankruptcy Code, this
Commitment Agreement and the legal relations between the parties hereto shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York, without giving effect to the provisions, principles or
policies thereof respecting conflict or choice of laws.
SECTION 10.11 Survival
Unless expressly stated to the contrary, the representations and
warranties of the parties hereto shall survive only until the Effective Date but
not thereafter.
SECTION 10.12 Effectiveness of Agreement
The provisions of this Commitment Agreement shall become effective upon
the entry by the Bankruptcy Court of an order approving the terms and conditions
hereof; provided, however, that the provisions of Section 10.2 hereof shall be
effective upon the execution and delivery hereof.
SECTION 10.13 Termination of this Agreement
(a) At any time prior to date of confirmation of the Plan, the Company,
for any reason in its sole discretion, may terminate this Commitment Agreement
by written notice to the
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Initial Purchasers. Nothing in this Commitment Agreement shall in any way limit
or restrict the ability of the Company to amend the Plan, or to terminate this
Commitment Agreement in connection with any amendment to the Plan or any plan of
reorganization other than the Plan.
(b) In the event the Company amends the Plan, any one of the Initial
Purchasers shall have the right to terminate this Commitment Agreement by
written notice to the Company within 10 calendar days of the filing date of the
amendment to the Plan. If the Company does not receive written notice from any
Initial Purchaser within 10 calendar days of the filing date of an amendment to
the Plan, the amendments shall be deemed accepted by the Initial Purchasers and
the Initial Purchasers shall remain bound by the terms of this Commitment
Agreement.
(c) In the event the Initial Purchasers terminate this Commitment
Agreement due to an amendment to the Plan, or the Company terminates this
Commitment Agreement by written notice to the Initial Purchasers, the Company
and the Initial Purchasers shall have no further obligations to the other
parties under this Commitment Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Commitment Agreement
[LEFT INTENTIONALLY BLANK]
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to be duly executed by their officers, partners or agents thereunto duly
authorized as of the day and year first above written.
FORCENERGY INC
By: /s/ XXXX XXXXXXXXXXX
---------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: President
THE ANSCHUTZ CORPORATION
By: /s/ XXXXX X. XXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
OAKTREE CAPITAL MANAGEMENT,
LLC, as general partner or investment
manager of the funds and accounts set forth
on Schedule I hereto
By: /s/ XXXXX X. XXXXX
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Principal
XXXXXX BROTHERS, INC.
By: /s/ J. XXXXXX XXXXXXXX
---------------------------------------
Name: J. Xxxxxx Xxxxxxxx
Title: Senior Vice President
XXXXX GLOBAL INVESTMENTS, LTD
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title:
REMINGTON INVESTMENT STRATEGIES, L.P.
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title:
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SCHEDULE I
Oaktree Capital Management, LLC is acting as general partner or investment
manager of the following funds and accounts:
OCM Principal Opportunities Fund, L.P. 75.1%
OCM Opportunities Fund II, L.P. 24.5%
Columbia/HCA Master Retirement Trust 0.4%
22
