EXHIBIT 10.27
EQUITY CONTRIBUTION AGREEMENT
THIS EQUITY CONTRIBUTION AGREEMENT (this "Agreement") is entered into
on June 29 , 2006, between PACIFIC ENERGY RESOURCES LTD., a Delaware corporation
(the "COMPANY"), and LAURUS MASTER FUND, LTD., a Cayman Islands company
("LAURUS").
R E C I T A L S
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A. The Company's wholly-owned subsidiary, Carneros Acquisition Corp., a
Delaware corporation ("ACQUISITION"), and Laurus are parties to a Securities
Purchase Agreement dated as of May 31, 2006 (the "SPA"), to which Carneros
Energy, Inc., a Delaware corporation ("CARNEROS"), and Gotland Oil, Inc., a
Texas corporation ("GOTLAND", and collectively with Carneros, the "Loan Parties"
and each a "Loan Party"), became parties pursuant to a Joinder and Amendment
Agreement dated as of the date hereof.
B. Acquisition is purchasing all of the outstanding shares of capital
stock of Carneros (the "SHARES") pursuant to a Stock Purchase Agreement dated
the date hereof among Acquisition, Carneros and the shareholders of Carneros. A
significant portion of the purchase price for the Shares is being funded with
proceeds of a loan from Laurus under the SPA that is being secured by all of the
assets of Acquisition, Carneros and Gotland.
C. The parties desire to provide for a means to ensure that each of
Carneros, Acquisition and Gotland will at all times remain solvent and
adequately capitalized and able to pay its debts as they become due.
D. The Company believes that Carneros, Acquisition, and Gotland are
each well capitalized and not engaged or about to engage in a business for which
its remaining assets are unreasonably small or beyond the ability or each of
them to pay, but nonetheless has agreed to contribute additional capital to
Carneros, Acquisition or Gotland, as the case may be, on the terms and subject
to the conditions set forth below.
E. Laurus would not have been willing to advance funds under the SPA
but for the Company entering into this Agreement.
A G R E E M E N T
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In consideration of the foregoing and of the mutual promises contained
in this Agreement, the parties agree that:
1. TERM. This Agreement shall be effective until the earlier of (such date, the
"Termination Date") (a) thirty days after the fourth anniversary of the date
hereof and (b) the Early Termination Date (as hereafter defined). For purposes
hereof, "Early Termination Date" means the first date after the date hereof that
all of the following conditions are then satisfied: (i) Laurus shall have
received evidence satisfactory to Laurus demonstrating that Carneros and Gotland
have collectively produced in excess of 1,000 barrels of oil, net to Carneros
and Gotland, each day for more than 180 consecutive days preceding such date,
(ii) the average of the forward prices for West Texas Intermediate oil (as
quoted on the New York Mercantile Exchange)
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relating to the five years following such date exceeds $54.59 per barrel, and
(iii) none of the conditions set forth in Section 2 shall have occurred on and
after the date hereof and prior to such date.
2. CONDITIONS FOR EQUITY CONTRIBUTION. The Company shall be obligated to
contribute cash (either directly or through Acquisition) as additional equity
capital to Carneros, Acquisition or Gotland, as the case may be, if any of the
following occurs at any time prior to the Termination Date (which if any such
event occurs such capital contribution shall be made within two business days of
such event) (each, a "Payment Event"):
(a) There occurs an event of default under the SPA or any
Related Agreement (as such term is defined in the SPA) and, if a cure
period is provided, it continues without cure within such cure period,
or an event of default occurs, and, if a cure period is provided, such
event of default continues without cure within such cure period;
(b) Carneros, Acquisition or Gotland (i) at any time admits in
writing its inability to pay any Debt (as hereafter defined) as and
when the same becomes due, (ii) at any time is unable for any reason
whatsoever to, or does not, pay any Debt (as hereafter defined) as and
when the same becomes due or (iii) is not at any time solvent. As used
in this Agreement, the term "Debt" means and includes any and all
debts, liabilities, expenses and obligations of Carneros, Acquisition
and Gotland, as applicable, of every kind, nature and description,
whether direct, indirect, absolute or contingent, including without
limitation, all day to day debts, liabilities, expenses and obligations
relating in any manner whatsoever to the operation of its leases, xxxxx
and equipment (including fuel, materials, labor, maintenance,
production equipment replacement, repairs, workover costs, royalty,
severance tax and ad valorem tax), all debt service obligations and any
and all other debts, liabilities, expenses and obligations relating in
any manner whatsoever to the ownership of its properties, the operation
of its business or otherwise; or
(c) Carneros, Acquisition or Gotland (i) applies for, consents
to or allows to exist the appointment of, or the taking of possession
by, a receiver, custodian, trustee or liquidator of itself or of all or
a substantial part of its property, (ii) makes a general assignment for
the benefit of creditors, (iii) commences a voluntary case under the
federal bankruptcy laws (as now or hereafter in effect), (iv) is
adjudicated a bankrupt or insolvent, (v) files a petition seeking to
take advantage of any other law providing for the relief of debtors,
(vi) acquiesces to, without challenge within ten (10) days of the
filing thereof, or fails to have dismissed, within forty-five (45)
days, any petition filed against it in any involuntary case under such
bankruptcy laws, or (vii) takes any action for the purpose of effecting
any of the foregoing.
3. AMOUNT OF EQUITY CONTRIBUTION. Each time a Payment Event shall occur at any
time prior to the Termination Date (including on multiple occasions if
necessary), the Company shall, within five (5) business days following the
occurrence of such Payment Event, contribute cash (either directly or through
Acquisition) to Carneros, Acquisition or Gotland, as the case may be, without
receiving additional shares of stock or any other consideration, as equity
capital in an amount necessary (i) in respect of the event set forth in Section
2(a) above, to cure such default, and (ii) in respect of the events set forth in
Sections 2(b) and (c) hereof, to make each of
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Carneros, Acquisition and Gotland, as applicable, solvent, and/or to cause and
permit each of Carneros, Acquisition and Gotland, as applicable, to timely pay
all of its Debts that are then due, as the case may be. As used in this
Agreement, the term "solvent" means that the sum of an entity's assets at a fair
valuation exceeds the sum of such entity's debts and other obligations. In the
event any of Carneros, Acquisition or Gotland shall at any time be unable to pay
any Debt as the same shall become due, it shall immediately notify the Company
and Laurus of such event, the failure of which shall constitute an event of
default under the SPA and the Related Agreements (as such term is defined in the
SPA).
4. LIMITATION ON CONTRIBUTION. The maximum aggregate amount that the Company
shall be required to contribute pursuant to SECTIONS 2 AND 3 shall be
$8,000,000.
5. THIRD PARTY BENEFICIARY. The parties hereto acknowledge that Carneros,
Acquisition and Gotland are third party beneficiaries hereof. Notwithstanding
that Carneros, Acquisition and Gotland are third party beneficiaries, this
Agreement can be amended or terminated at any time by a writing executed by the
Company and Laurus, without need for consent of Carneros, Acquisition or
Gotland.
6. WAIVERS.
(a) The Company acknowledges that Laurus, Acquisition and the
Loan Parties may at any time and from time to time, either before or
after the maturity thereof, without notice to or further consent of the
Company, extend the time of payment of, exchange or surrender any
collateral for, or renew or extend any of, the obligations owing by
Acquisition and the Loan Parties to Laurus (the "Obligations") or
increase or decrease the interest rate thereon, and Laurus may also
make any agreement with Acquisition, the Loan Parties or any other
person or entity liable on any of the Obligations, or interested
therein, for the extension, renewal, payment, compromise, discharge or
release thereof, in whole or in part, or for any modification of the
terms thereof or of any agreement among Laurus, Acquisition, the Loan
Parties or any such other person or entity, or make any election of
rights Laurus may deem desirable under the United States Bankruptcy
Code, as amended (the "Code"), or any other federal or state
bankruptcy, reorganization, moratorium or insolvency law relating to or
affecting the enforcement of creditors' rights generally (each of the
Code and any of the foregoing, an "Insolvency Law") without in any way
impairing or affecting this Agreement.
(b) To the extent any right of subrogation may exist, the
Company hereby waives such right to be subrogated to any of the rights
of Laurus against Acquisition or any Loan Party or any collateral
security held by Laurus for the payment of the Obligations and the
Company shall not seek or be entitled to any contribution or
reimbursement from Acquisition and/or any Loan Party until such time as
all Obligations shall have been indefeasibly paid in full.
(c) The obligations of the Company under this Agreement shall
be absolute and unconditional under any and all circumstances, and
shall not be to any extent or in any way released, discharged,
terminated, impaired or otherwise affected except by performance in
full. The Company hereby knowingly accepts the full range of risk
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encompassed within this Agreement. The Company hereby irrevocably
waives any and all suretyship defenses and any rights or benefits it
may possess under Sections 365(b)(1), 365(c)(2) and 365(e)(2) of the
Code in the event a court of competent jurisdiction were to find in any
insolvency, bankruptcy, liquidation, reorganization, readjustment,
composition, arrangement, compromise, plan or similar proceeding
relating to Acquisition and/or any Loan Party that this Agreement is an
executory contract within the meaning of Section 365 of the Code (and
the Company hereby acknowledges that this Agreement shall constitute an
executory contract for purposes of Section 365 of the Code).
Notwithstanding the foregoing, the Company shall not be precluded from
asserting as a defense against any claim made against it upon hereunder
that it has fully performed such obligation in accordance with the
terms of this Agreement.
7. MISCELLANEOUS.
7.1 GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by
and interpreted in accordance with the laws of the State of New York. Each of
the parties hereto consents to such jurisdiction for the enforcement of this
Agreement and matters pertaining to the transaction and activities contemplated
hereby.
7.2 NOTICES. All notices and other communications provided for or
permitted hereunder shall be made by hand delivery, first-class mail, or
telecopier, addressed as follows:
PARTY ADDRESS
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Pacific Energy Resources Ltd. 0000 Xxxx Xxxx X Xxxxxx
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Fax: (000) 000-0000
Laurus Master Fund, Ltd. c/o M&C Corporate Services Limited
X.X. Xxx 000 XX
Xxxxxx Xxxxx
Xxxxxx Xxxx
South Church Street
Grand Cayman, Cayman Islands
Attn: Xxxx Xxxxxx, Esq.
Fax: (000) 000-0000
All notices and communications shall be deemed to have been duly given: when
delivered by hand, if personally delivered; three (3) business days after
deposit in any United States Post Office in the Continental United States,
postage prepaid, if mailed; and when receipt is acknowledged, if telecopied.
7.3 ATTORNEYS' FEES. If a dispute arises with respect to this
Agreement, the party prevailing in the dispute shall be entitled to recover all
fees and expenses, including, without limitation, reasonable attorneys' fees and
expenses, incurred in ascertaining that party's rights, or in preparing to
enforce or in enforcing that party's rights under this Agreement, whether or not
it was necessary for that party to institute suit.
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7.4 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
several counterparts and when so executed shall constitute one agreement binding
on all the parties, notwithstanding that all the parties are not signatory to
the original and same counterpart.
7.5 COMPANY REPRESENTATIONS. The Company represents and warrants to
Laurus as follows: The Company has the requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the performance of the Company's
obligations hereunder have been duly and validly authorized by the Company. This
Agreement has been duly executed and delivered by the Company, and constitutes
legal, valid and binding obligations of the Company, enforceable against the
Company, in accordance with their terms. The Company's execution, delivery, and
performance of this Agreement and the transactions contemplated hereby will not:
(a) violate or conflict with any provision of the Company's governing documents;
(b) result in the breach of any term or condition of, or constitute a default or
cause the acceleration of any obligation under any agreement or instrument to
which the Company is a party or by which it is bound; or (c) violate or conflict
with any applicable law.
7.6 FURTHER ASSURANCE. From time to time each party will execute and
deliver such further instruments and will take such other action as the other
party may reasonably request in order to discharge and perform their obligations
and agreements hereunder and to give effect to the intentions expressed in this
Agreement. If for any reason the obligation of the Company hereunder would be
unenforceable, the Company agrees to the fullest extent permitted by law to take
such other action requested by Laurus to accomplish the effect contemplated by
Section 3 hereof as long as such action would not adversely affect the Company
in any material respect in contrast to the position that the Company would have
been in had such obligation been enforceable.
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The parties have executed this Agreement as of the day and year first
above written.
PACIFIC ENERGY RESOURCES LTD.,
a Delaware corporation
By: /S/ XXXXXX XXXXX
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Xxxxxx Xxxxx, President
LAURUS MASTER FUND, LTD.
a Cayman Islands company
By: /S/ XXXXXX GRIN
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Name:
Title:
ACCEPTED AND AGREED TO:
CARNEROS ACQUISITION CORP.
By: /S/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: President
CARNEROS ENERGY, INC.
By: /S/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: President
GOTLAND OIL, INC.
By: /S/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: President
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