EXHIBIT 10.52
EXECUTION COPY
ESCROW AGREEMENT
This Escrow Agreement (this "Agreement") dated as of August 24, 2007 is by
and among Pacific Energy Resources Ltd. (the "Company"), Forest Oil Corporation
("Forest") and U.S. Bank National Association (the "Escrow Agent" and, together
with the Company and Forest, individually a "Party" and collectively, the
"Parties").
RECITALS
A. The Company has issued and intends to issue shares of its Common Stock
("PERL Shares") to Forest in consideration for shares of Common Stock of Xxxx
Inlet Pipe Line Company ("CIPL Shares") to be transferred by Forest to the
Company pursuant to the terms of an Asset Sales Agreement dated May 24, 2007, as
amended by Amendment No. 1 thereto dated July 31, 2007 and a Letter Agreement
re: Shares in Xxxx Inlet Pipe Line Company also dated July 31, 2007 ("ASA"), and
the Company and Forest desire to establish an escrow account with the Escrow
Agent into which the PERL Shares and the CIPL Shares will be deposited and held
in escrow pending such regulatory approvals as provided herein. The PERL Shares
and the CIPL Shares are hereinafter referred to collectively as the "Shares";
B. Forest presently has legal and beneficial ownership of 16,000 CIPL
Shares, and has entered into a Stock Purchase and Sale Agreement with Mobil Pipe
Line Company ("MPLC") dated January 11, 2002, as amended by twelve amendments
thereto, to acquire an additional 4,000 CIPL Shares;
C. On July 31, 2007, the Company issued to Forest 5,000,000 PERL Shares as
a deposit under a Membership Interest Purchase Agreement dated May 24, 2007, as
amended by Amendment No. 1 thereto dated July 31, 2007 ("MIPA");
D. Concurrently herewith, the Company is issuing to Forest an additional
5,000,000 PERL Shares as consideration under the MIPA and the ASA; the Company
and Forest acknowledge that 5,500,000 of the aggregate 10,000,000 PERL Shares
represent the consideration for the CIPL Shares and are to be deposited into
escrow hereunder, that is, 500,000 of the 5,000,000 shares referred to in this
Recital D plus the 5,000,000 shares issued to Forest as described in Recital C
above;
E. Upon receipt of evidence of receipt of approval of the transfers of the
CIPL Shares by the Regulatory Commission of Alaska ("RCA") as set forth herein,
the Escrow Agent will concurrently release the CIPL Shares to the Company and
the PERL Shares to Forest; and
F. U.S. Bank National Association has agreed to act as Escrow Agent on
behalf of the Parties (other than itself) on the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the premises the Parties agree as
follows:
1. Escrow Fees. From the date hereof until June 30, 2008, the Parties
(other than the Escrow Agent) hereby agree to each pay the Escrow Agent one-half
of an advance payment for ordinary services rendered hereunder (the "Escrow
Fee") and pay or reimburse the Escrow Agent for one-half of its out-of pocket
expenses, all of which shall be calculated or determined in
accordance with the Escrow Agent's fee schedule attached as Exhibit A. The
Parties (other than the Escrow Agent) further agree to each pay one-half of the
Escrow Agent's reasonable fees for any services in addition to those provided
for herein to the extent that both the Company and Forest have expressly
requested such extraordinary services and have been made aware of their cost in
advance of their performance. After June 30, 2008, the Escrow Fee, out-of-pocket
expenses, and the Escrow Agent's fees agreed upon for extraordinary services
shall be paid solely by Forest.
2. Deposits. The Company and Forest shall make the following deposits with
the Escrow Agent:
(a) By the Company. Concurrently with execution hereof, the Company
shall deliver to the Escrow Agent a duly executed stock certificate
representing 500,000 PERL Shares, issued in the name "Forest Oil
Corporation."
(b) By Forest.
(i) Concurrently with execution hereof, Forest shall deliver to
the Escrow Agent a duly executed stock certificate representing
5,000,000 PERL Shares, issued in the name "Forest Oil Corporation."
(ii) Concurrently with execution hereof, Forest shall deliver to
the Escrow Agent duly executed stock certificates representing 16,000
CIPL Shares, issued in the name "Forest Oil Corporation," together
with undated duly executed stock assignments separate from certificate
transferring title to those CIPL Shares to the name of "Pacific Energy
Alaska Holdings, LLC;"
(iii) As soon as practicable after receipt of RCA approval of the
transfer of 4,000 CIPL Shares from MPLC to Forest, duly executed stock
certificates representing those 4,000 CIPL Shares, issued in the name
"Forest Oil Corporation," together with undated duly executed stock
assignments separate from certificate transferring title to those CIPL
Shares to the name of "Pacific Energy Alaska Holdings, LLC;"
(iv) As soon as practicable after receipt of RCA approval of the
transfer of any of the CIPL Shares from Forest to PERL, a copy of
RCA's written notice of such approval ("RCA Approval Notice"); and
(v) Immediately upon receipt thereof, any dividends or other
distributions with respect to any of the CIPL Shares.
The Parties acknowledge that the MIPA calls for the Company to deliver 5,000,000
PERL Shares and for Forest to deliver 500,000 PERL Shares to the Escrow Agent.
However, the Parties recognize and agree for administrative convenience it will
be mutually beneficial for them to make the deliveries as set forth in
subsections (a) and (b)(i) above, and that the net effect will be the same;
i.e., that 5,500,000 PERL Shares will be held in escrow and 4,500,000 shares
will be delivered by the Company to Forest Alaska Holding LLC outside of escrow.
The Parties also recognize and agree that all stock certificates and funds
deposited with the Escrow Agent
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pursuant to this Agreement will remain the property of the respective Party who
deposited them with the Escrow Agent, and will not be deemed to be delivered to
any other Party or other person until disbursed pursuant to Section 5. However,
after all of the Parties have made the deposits of stock certificates and funds
described in subsections (a) and (b) above, no Party shall have any right to
withdraw from escrow any of such stock certificates or funds or to modify any of
such documents, unless both the Company and Forest consent to such withdrawal or
modification.
3. Proxy. Concurrently with execution hereof, Forest shall deliver to the
Company a duly executed irrevocable proxy in favor of Xxxxxxxx Xxxxx and Xxxxxx
Xxxxx, giving Xxxxxxxx Xxxxx and Xxxxxx Xxxxx the power to vote all of the PERL
Shares held in escrow as they see fit. The Parties acknowledge and agree that
this proxy shall be held by Xxxxxxxx Xxxxx and/or Xxxxxx Xxxxx outside of
escrow. The proxy shall expire upon the earlier of the completion of the
disbursements described in Section 5 and the termination of this Agreement.
4. Investment of Funds. All funds deposited pursuant to paragraph (b)(v) of
Section 2 shall be held in U.S. Bank National Association's Money Market Account
("IMMA"), as described in Exhibit C hereto. Interest accrued in such account
shall be paid, and for income tax purposes allocated to, the Party who receives
the disbursement of the CIPL Shares and the funds so deposited.
5. Escrow Agent's Responsibility With Respect to the Shares. The Escrow
Agent shall not be required to take any action to maintain, preserve, protect,
exercise or enforce any rights or remedies under or with respect to the Shares
(including, but not limited to, with respect to the exercise of any voting,
consent, conversion or exchange rights). The Escrow Agent shall have no
responsibility to forward to any Party, or to notify any Party with respect to,
or to take any action with respect to, any notice, solicitation or other
document or information, written or otherwise, received from an issuer or other
person with respect to the Shares, including but not limited to, proxy material,
tenders, options, or calls.
6. Termination. This Agreement shall terminate upon disbursement of all
PERL Shares and all CIPL Shares (and any dividends or distributions associated
with the CIPL Shares) deposited pursuant to Section 2, without any notices to
any person. For the purpose of this Agreement, the "Termination Date" shall be
at 5:00 p.m. California time on a date three days after such disbursement,
unless terminated earlier or extended, in each case, by the Parties in writing.
7. Disbursement of Documents.
(a) Disbursement of Shares. Upon deposit by Forest with the Escrow
Agent of an RCA Approval Notice, the Escrow Agent shall immediately cause
to be disbursed (i) to the Company that number of CIPL Shares that are the
subject of the RCA Approval Notice and any accrued dividends or
distributions that pertain to those CIPL Shares, and (ii) to Forest that
number of PERL Shares equal to 5,500,000 times X, where X is the ratio
determined by dividing the number of CIPL Shares being disbursed divided by
20,000. The Company and Forest acknowledge and agree that because the
number of shares to be disbursed hereunder may not be represented by a
stock certificate in the appropriate denomination held in escrow, the
Escrow Agent may be required to return
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stock certificates to the issuer or transfer agent in order to have stock
certificates broken into appropriate denominations prior to disbursement.
(b) Return of PERL Shares. At any time after June 30, 2008 that the
Escrow Agent has not received RCA Approval Notice(s) relating to the
transfer of any of the 20,000 CIPL Shares, the Company may direct the
Escrow Agent to disburse any PERL Shares still held in escrow to the
Company, at which point the Escrow Agent shall concurrently disburse to
Forest any CIPL Shares remaining in escrow, at which point, this Agreement
shall terminate, except that the Company and Forest shall remain liable to
the Escrow Agent for their respective shares of any incurred but unpaid
fees and expenses.
8. Liability of Escrow Agent. In performing any duties under this
Agreement, the Escrow Agent shall not be liable to any of the other Parties for
damages, losses, or expenses, except for gross negligence or willful misconduct
on the part of the Escrow Agent. In no event shall the Escrow Agent be liable
for punitive, incidental or speculative damages. The Escrow Agent shall not
incur any such liability for any action taken or omitted in reliance upon any
instrument, including any written statement or affidavit provided for in this
Agreement that the Escrow Agent shall in good faith believe to be genuine, nor
will the Escrow Agent be liable or responsible for forgeries, fraud,
impersonations, or determining the scope of any representative's authority. In
addition, the Escrow Agent may consult with legal counsel in connection with the
Escrow Agent's duties under this Agreement and shall be fully protected in any
action taken, suffered, or permitted by it in good faith in accordance with the
reasonable advice of counsel. The Escrow Agent is not responsible for
determining and verifying the authority of any person acting or purporting to
act on behalf of any Party to this Agreement.
9. Fees And Expense. It is understood that the fees and usual charges
agreed upon for services of the Escrow Agent shall be considered compensation
for ordinary services as contemplated by this Agreement. If the conditions of
this Agreement are not promptly fulfilled by the Company or Forest, or if the
Escrow Agent renders any service not provided for in this Agreement after
approval by the Company and Forest, or if the Parties agree to a substantial
modification of its terms, or if any controversy arises, or if the Escrow Agent
is made a party to, or intervenes in, any litigation pertaining to this escrow
or its subject matter, the Escrow Agent shall be reasonably compensated by the
Company and Forest for such extraordinary services and reimbursed by the Company
and Forest for all reasonable costs, attorney's fees, including allocated costs
of in-house counsel, and reasonable expenses occasioned by such default, delay,
controversy or litigation. Until June 30, 2008, the Company and Forest each
promise to pay one- half of these sums promptly after demand, and thereafter
Forest shall pay all of such sums promptly after demand. The Escrow Agent shall
have a first priority lien on any monetary funds received by Escrow Agent
pursuant to paragraph (b)(v) of Section 2 of this Agreement as security for
payment of its fees and expenses hereunder.
10. Controversies, If any controversy arises between or among any of the
Parties concerning the subject matter of this Agreement or its terms or
conditions, the Escrow Agent will not be required to determine the controversy
or to take any action regarding it. As directed by a court of competent
jurisdiction in connection with any such controversy, the Escrow Agent shall
hold all documents and funds and shall wait for settlement of any such
controversy by final
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appropriate legal proceedings, despite what may be set forth elsewhere in this
Agreement. In such event, the Escrow Agent will not be liable for interest or
damage. Furthermore, the Escrow Agent may at its option file an action of
interpleader requiring the other Parties to answer and litigate any claims and
rights among themselves pertaining to this Agreement. The Escrow Agent is
authorized to deposit with the clerk of the court all stock certificates and
funds held in escrow. Upon initiating such action, the Escrow Agent shall be
fully released and discharged of and from all obligations and liability imposed
by the terms of this Agreement. Notwithstanding the above, however, any such
interpleader action must be filed by U.S. Bank National Association in its
capacity as Escrow Agent and all stock certificates and funds held in escrow
under this Agreement must be deposited at the same time.
11. Indemnification of Escrow Agent. The Company and Forest shall jointly
and severally indemnify and hold the Escrow Agent (and its directors, officers
and employees) and hold it (and such directors, officers and employees) harmless
against any and all losses, claims, damages, liabilities, and expenses,
including reasonable costs of investigation, counsel fees, including allocated
costs of in-house counsel and disbursements that may be imposed on the Escrow
Agent or incurred by the Escrow Agent in connection with the performance of its
duties under this Agreement, including but not limited to any litigation arising
from this Agreement or involving its subject matter ("Losses"); provided,
however, no such duty to indemnify or hold harmless shall apply to the extent
such Losses are caused by the gross negligence or willful misconduct on the part
of the Escrow Agent.
12. Resignation of Escrow Agent. If this Agreement has not already
terminated by June 30, 2008, the Escrow Agent may resign at any time thereafter
upon giving at least thirty (30) days' written notice to the other Parties
provided, however, that no such resignation shall become effective until the
appointment of a successor escrow agent which shall be accomplished as follows:
(i) the Company and Forest agree to appoint JPMorgan Chase Bank, N.A. or an
appropriate affiliate thereof if such appointment can be made on terms
substantially identical to those contained herein; or if not, then (ii) the
Company shall use its best efforts to obtain a successor escrow agent
satisfactory to Forest within thirty (30) days after receiving such notice. If
the Company and Forest fail to agree upon a successor escrow agent selected
under (ii) above within such time, the Escrow Agent shall have the right to
petition a court of competent jurisdiction to appoint a successor escrow agent
authorized to do business in the state of California. The successor escrow agent
shall execute and deliver an instrument accepting such appointment on terms and
conditions acceptable to the Parties and it shall, without further acts, be
vested with all the estates, properties, rights, powers, and duties of the
predecessor escrow agent as if originally named as escrow agent. The Escrow
Agent shall thereupon be discharged from any further duties and liability under
this Agreement.
13. Automatic Succession. Any company into which the Escrow Agent may be
merged or with which it may be consolidated, or any company to whom the Escrow
Agent may transfer a substantial amount of its corporate trust business
(including the administration of this Agreement), shall be the successor to the
Escrow Agent without the execution or filing of any paper or any further act on
the part of any of the Parties, anything herein to the contrary notwithstanding.
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14. Miscellaneous.
(a) Governing Laws. This Agreement is to be construed and interpreted
according to California law without regard to the conflict of laws
principles thereof.
(b) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Telecopied, scanned
or other facsimile signatures on this Agreement shall be deemed to be
original signatures.
(c) Notices. All instructions, notices and demands herein provided for
shall be in writing and shall be mailed postage prepaid, first class mail,
delivered by courier, or telecopied, and effective only upon receipt, as
follows:
If to the Company: If to the Escrow Agent:
Pacific Energy Resources Ltd. U.S. Bank National Association
000 Xxxx Xxxxx Xxxx., Xxxxx 0000 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000 Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxx Attn: Corporate Trust Services
Telephone No.: (000) 000-0000 (Xxxx Xxxxxxxxx)
Telecopier No.: (000) 000-0000 Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to Forest:
Forest Oil Corporation
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(d) Amendments. This Agreement may be amended by written notice signed
by the Parties other than the Escrow Agent, except that Sections 6 through
11 may be amended only with the consent of the Escrow Agent.
(e) Customer Identification Program. The Company and Forest
acknowledge receipt of the notice set forth on Exhibit B attached hereto
and made part hereof and that information may be requested to verify their
identities.
(f) Tax Reporting Documentation. Within 30 days after the execution of
this Agreement, the Company and Forest shall each provide to the Escrow
Agent a certified tax identification number on Form W-9 (or Form W-8 if
such Party is a non-U.S. person) and such other forms and documents as the
Escrow Agent may reasonably request (collectively, "Tax Reporting
Documentation"). The Parties understand that, if such Tax Reporting
Documentation is not so certified to the Escrow Agent, the Escrow Agent may
be required by the Internal Revenue Code of 1986, as it may be amended
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from time to time, to withhold a portion of any interest or other income
earned on the investment of monies or other property held by the Escrow
Agent pursuant to this Agreement.
(g) Delay and Waiver. No failure or delay of any Party in exercising
(without expressly waiving the same in writing) any power or right
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or
power. Any waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any
Party in any case shall entitle such Party to any other or further notice
or demand in similar or other circumstances.
(h) Headings. The headings of the paragraphs of this Agreement are
inserted as a matter of convenience and for reference purposes only, are of
no binding effect, and in no respect define, limit or describe the scope of
this Agreement or the intent of any paragraph.
(i) Entire Agreement. This Agreement is the binding and enforceable
agreement of the Company, the Escrow Agent, and Forest. This Agreement
represents the entire understanding and agreement among the Parties with
respect to the subject matter hereof, supersedes all prior negotiations
between the Parties, and can be amended, modified, supplemented, extended,
terminated, discharged or changed only by an agreement in writing which
makes specific reference to this Agreement and which is signed by all of
the Parties.
(j) No Endorsement or Recommendation by Escrow Agent. Each of the
other Parties represents and agrees that it has not made nor will it in the
future make any representation that states or implies that the Escrow Agent
has endorsed, recommended or guaranteed the purchase or value of the PERL
Shares or the CIPL Shares.
The Parties hereto have executed this Agreement by their duly authorized
representatives as of the date set forth above.
Pacific Energy Resources Ltd. U.S. Bank National Association, Escrow Agent
By: /s/ Xxxxxx Xxxxx By:
---------------------------- -----------------------------------------
Name: Xxxxxx Xxxxx Name:
Title: President Pacific Energy, ---------------------------------------
Alaska Operating LLC Title:
Date: 8.24.2007 --------------------------------------
Date:
---------------------------------------
Forest Oil Corporation
By: /s/ H. Xxxxx Xxxxxx
----------------------------
Name: H. Xxxxx Xxxxxx
Title: President and Chief Executive Officer
Date:
--------------------------
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from time to time, to withhold a portion of any interest or other income
earned on the investment of monies or other property held by the Escrow
Agent pursuant to this Agreement.
(g) Delay and Waiver. No failure or delay of any Party in exercising
(without expressly waiving the same in writing) any power or right
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or
power. Any waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any
Party in any case shall entitle such Party to any other or further notice
or demand in similar or other circumstances.
(h) Headings. The headings of the paragraphs of this Agreement are
inserted as a matter of convenience and for reference purposes only, are of
no binding effect, and in no respect define, limit or describe the scope of
this Agreement or the intent of any paragraph.
(i) Entire Agreement. This Agreement is the binding and enforceable
agreement of the Company, the Escrow Agent, and Forest. This Agreement
represents the entire understanding and agreement among the Parties with
respect to the subject matter hereof, supersedes all prior negotiations
between the Parties, and can be amended, modified, supplemented, extended,
terminated, discharged or changed only by an agreement in writing which
makes specific reference to this Agreement and which is signed by all of
the Parties.
(j) No Endorsement or Recommendation by Escrow Agent. Each of the
other Parties represents and agrees that it has not made nor will it in the
future make any representation that states or implies that the Escrow Agent
has endorsed, recommended or guaranteed the purchase or value of the PERL
Shares or the CIPL Shares.
The Parties hereto have executed this Agreement by .their duly authorized
representatives as of the date set forth above.
Pacific Energy Resources Ltd. U.S. Bank National Association, Escrow Agent
By: By: /s/ Xxxx Xxxxxxxxx
--------------------------- -----------------------------------------
Name: Name: Xxxx Xxxxxxxxx
------------------------- Title: Trust Officer
Title: Date: August 27, 2007
------------------------
Date:
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Forest Oil Corporation
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Date:
-------------------------
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