CONTRIBUTION AGREEMENT
Exhibit 10.18
THIS CONTRIBUTION AGREEMENT, (this “Agreement”) dated as of January 25, 2013, by and between BLACK ELK ENERGY OFFSHORE OPERATIONS, LLC, a Texas limited liability company (the “Company”), and PPVA BLACK ELK (EQUITY) LLC, a Delaware limited liability company (“PPVA (Equity)”).
BACKGROUND
WHEREAS, PPVA (Equity) has agreed to contribute to the Company, upon the terms and subject to the conditions set forth in this Agreement, $10,000,000 (the “Capital Contribution”); and
WHEREAS, as consideration for the Capital Contribution, the Company shall issue to PPVA (Equity) Class E Preferred Units and Class B Units, as described in Section 2.
NOW, THEREFORE, incorporating the foregoing herein, and in consideration of the mutual promises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:
1. Contribution. Subject to the terms and conditions of this Agreement, including Section 3, PPVA (Equity) hereby agrees to make the Capital Contributions to the Company on the date hereof and the Company hereby agrees to accept from PPVA (Equity) the Capital Contribution. PPVA (Equity) shall make the Capital Contribution to the Company by wire transfer of immediately available funds to such account as the Company shall notify PPVA (Equity).
2. Issuance of Units. In consideration of the Capital Contribution, the Company shall issue and deliver to PPVA (Equity) (a) 10,000,000 Class E Preferred Units having such rights, preferences and privileges as set forth in the Company’s Second Amendment and Restated Operating Agreement, dated as of July 13, 2009, as amended by the First Amendment thereto dated as of August 19, 2010, by the Second Amendment thereto dated as of May 31, 2011 and by the Third Amendment thereto dated as of the date hereof (the “Third Amendment”) (as so amended, the “Operating Agreement”), and (b) such number of Class B Units (as defined in the Operating Agreement), that, if outstanding on the date hereof, would equal 0.6192031% of the aggregate outstanding Units issued by the Company on the date hereof, having such rights, preferences and privileges as set forth in the Operating Agreement. Upon the issuance of such Class E Preferred Units and such Class B Units, the Company shall deliver to PPVA (Equity) a cross receipt in substantially the form of Exhibit A attached hereto evidencing such issuance (the “Cross Receipt”). At PPVA (Equity)’s direction the Class E Preferred Units and/or the Class B Units will be issued in the name of such other person or entity it may designate in writing to the Company.
3. Conditions to the Obligation of PPVA (Equity). The obligation of PPVA (Equity) to make the Capital Contribution contemplated hereby is subject to the satisfaction (or waiver by PPVA (Equity)) of the following conditions:
(a) the representations and warranties made by the Company hereunder shall be true and correct in all material respects as of the date of the Capital Contribution;
(b) the Company shall have executed and delivered to PPVA (Equity) this Agreement and the Third Amendment, and the Operating Agreement shall not have been further amended; and
(c) the Company shall have executed and delivered a Cross Receipt with respect to the Capital Contribution.
4. Representations and Warranties.
4.1 PPVA (Equity) represents and warrants to the Company as follows:
(a) PPVA (Equity) is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware with full power and authority to carry on its business and to own or lease and to operate its properties as such business is conducted and such properties are owned, leased or operated. PPVA (Equity) has the power and authority to execute, deliver and perform this Agreement and all agreements and documents contemplated hereby (the “Ancillary Documents”) and to consummate the transactions contemplated hereby and thereby.
(b) The execution and delivery by PPVA (Equity) of this Agreement and the Ancillary Documents, and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all requisite action of PPVA (Equity). PPVA (Equity) has duly executed and delivered this Agreement and the Ancillary Documents and this Agreement and the Ancillary Documents constitute legal, valid and binding agreements of PPVA (Equity), enforceable against it in accordance with their terms, subject to applicable federal and state bankruptcy and insolvency laws affecting generally the rights of creditors.
(c) The execution, delivery and performance by PPVA (Equity) of this Agreement and the Ancillary Documents, and the consummation of the transactions contemplated hereby and thereby, do not and will not conflict with, result in a breach or violation of, or constitute a default under, (i) the certificate of formation, limited liability company agreement or other organizational documents of PPVA (Equity), (ii) any law, regulation or court order applicable to PPVA (Equity) or (iii) any contract, license, lease commitment or other agreement to which PPVA (Equity) or is a party or by which PPVA (Equity) or any of its assets may be bound or affected.
(d) PPVA (Equity) is not required under federal, state, foreign or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, in order for it to execute, deliver or perform any of its obligations under this Agreement or the Ancillary Documents.
4.2 The Company represents and warrants to PPVA (Equity) as follows:
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(a) The Company is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Texas with full power and authority to carry on its business and to own or lease and to operate its properties as such business is conducted and such properties are owned, leased or operated. The Company has the power and authority to execute, deliver and perform this Agreement and the Ancillary Documents and to consummate the transactions contemplated hereby and thereby.
(b) The execution and delivery by the Company of this Agreement and the Ancillary Documents, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all requisite action of the Company. The Company has duly executed and delivered this Agreement and the Ancillary Documents, and this Agreement and the Ancillary Documents constitute legal, valid and binding agreements of the Company, enforceable against the Company in accordance with their terms, subject to applicable federal and state bankruptcy and insolvency laws affecting generally the rights of creditors.
(c) The execution, delivery and performance by the Company of this Agreement and the Ancillary Documents, and the consummation of the transactions contemplated hereby and thereby, do not and will not conflict with, result in a breach or violation of, or constitute a default under, (i) the certificate or articles of formation or organization or other organizational documents of the Company, (ii) any law, regulation or court order applicable to the Company or (iii) any contract, license, lease commitment or other agreement to which the Company is a party or by which the Company or its assets may be bound or affected.
(d) The Company is not required under federal, state, foreign or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, in order for it to execute, deliver or perform any of its obligations under this Agreement or the Ancillary Documents or issue the Class E Preferred Units or the Class B Units in accordance with the terms hereof.
(e) There are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require the Company to issue, sell, or otherwise cause to become outstanding any of its equity interests.
5. Further Assurances. Each of the parties hereto shall, at its own expense, from time to time upon the request of the other, execute and deliver, or cause to be executed and delivered, at such times as may reasonably be requested by the other party, such other documents, certificates and instruments and take such actions as the other party deems reasonably necessary to consummate more fully the transactions contemplated by this Agreement.
6. Miscellaneous.
6.1 Entire Agreement. This Agreement and the Ancillary Documents delivered by the parties pursuant to this Agreement constitute the entire agreement among the parties with respect to the subject matter of this Agreement and supersede all prior agreements,
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understandings and negotiations, whether written or oral, with respect to the subject matter of this Agreement.
6.2 Notices. Unless otherwise provided for herein, notices and other communications required or permitted hereunder shall be in writing to the parties and addresses below and shall be delivered by certified mail return receipt requested or express mail and also via facsimile. Such notice shall be deemed to have been received on the date delivered.
If to the Company:
Black Elk Energy Offshore Operations, LLC
00000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx Xxxxxxx
With a copy to:
Liskow & Xxxxx
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx
If to PPVA (Equity):
c/o Platinum Partners Value Arbitrage Fund, XX
Xxxxxxxx Xxxx Tower
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxx
With a copy to:
Blank Rome LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx
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6.3 Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute one and the same instrument.
6.4 Governing Law. This Agreement and the documents, agreements and instruments contemplated hereunder (unless expressly stated therein to the contrary) shall be construed and interpreted in accordance with the laws of the State of New York, without regard to conflicts of law or choice of law principles thereof.
6.5 SUBMISSION TO JURISDICTION.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW YORK CITY OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HEREBY ACCEPTS FOR ITSELF AND (TO THE EXTENT PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. THIS SUBMISSION TO JURISDICTION IS EXCLUSIVE AND PRECLUDES A PARTY FROM OBTAINING JURISDICTION OVER ANOTHER PARTY IN ANY COURT OTHERWISE HAVING JURISDICTION.
(b) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER PARTY HERETO SHALL HAVE BEEN NOTIFIED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
6.6 WAIVER OF JURY. EACH PARTY HEREBY (A) IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN; (B) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (C) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OF COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY
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WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (D) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 6.6.
[Signature Page Follows]
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IN WITNESS WHEREOF, intending to be legally bound hereby, each of the parties hereto has caused this Agreement to be duly executed by an authorized officer as of the date first above written.
| By: | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx Title: President/CEO | ||
| PPVA BLACK ELK (EQUITY) LLC | ||
| By: | PLATINUM PARTNERS VALUE | |
| By: | /s/ Xxxxx Xxxx | |
| Name: Xxxxx Xxxx Title: Portfolio Manager | ||
[Signature Page to Contribution Agreement]
EXHIBIT A
Form of Cross Receipt
Reference is made to that certain Contribution Agreement, dated as of January 25, 2013 (amended, amended and restated, supplemented or otherwise modified from time to time, the “Agreement”), between Black Elk Energy Offshore Operations, LLC (the “Company”) and PPVA Black Elk (Equity) LLC (“PPVA (Equity)”). Capitalized terms used by not defined herein shall have the meaning set forth in the Agreement.
The Company hereby acknowledges to PPVA (Equity) that on January 25, 2013 (the “Issuance Date”) the Company received a Capital Contribution from PPVA (Equity) in the amount of $10,000,000 and that on the Issuance Date the Company has issued to PPVA (Equity) or to such person designated by PPVA (Equity) 10,000,000 Class E Preferred Units and 76.47 Class B Units.
| Dated: January 25, 2013 | BLACK ELK ENERGY OFFSHORE | |||||
| By: | ||||||
| Name: Title: | ||||||
Acknowledgement
By this Acknowledgement, PPVA (Equity) hereby acknowledges to the Company that it is deemed to have received on the Issuance Date the Class E Preferred Units and the Class B Units described above in exchange for the Capital Contribution described above.
| Dated: January 25, 2013 | PPVA BLACK ELK (EQUITY) LLC | |||||
| By: | PLATINUM PARTNERS VALUE | |||||
| By: | ||||||
| Name: Title: | ||||||
