Exhibit 10.1
AGREEMENT REGARDING NEW EQUITY
RAISE UNDER THE
MODIFIED SECOND AMENDED JOINT PLAN OF REORGANIZATION
THIS AGREEMENT REGARDING NEW EQUITY RAISE UNDER
THE MODIFIED SECOND AMENDED JOINT PLAN OF REORGANIZATION
(the “ Agreement
”) is made and entered into, effective as of April 13,
2009 (the “ Effective Date ”), by and among
BLACK RAVEN ENERGY, INC. , a Nevada corporation (the “
Company ”); WEST COAST OPPORTUNITY FUND, LLC ,
a Delaware limited liability company (“ WCOF ”);
and the OFFICIAL COMMITTEE OF UNSECURED CREDITORS APPOINTED BY
THE BANKRUPTCY COURT IN THE COMPANY’S BANKRUPTCY CASE
(the “ Committee ”), with reference to the
following facts:
RECITALS:
A.
On March 6, 2008, the Company and its subsidiaries filed a
voluntary petition for relief under Chapter 11 of the United States
Bankruptcy Code (the “ Code ”) in the United
States Bankruptcy Court for the District of Colorado (the “
Bankruptcy Court ”), which was styled as Case Number
08-12658 ABC (the “ Proceeding ”).
B.
On January 26, 2009, the Court confirmed that certain
“Modified Second Amended Joint Plan of Reorganization filed
by PRB Energy, Inc., and PRB Oil &
Gas, Inc.,” dated December 3, 2008 (the “
Plan ”), and the confirmation of the Plan thereafter
became effective on February 2, 2009 (the “
Confirmation Date ”).
C.
Pursuant to the Plan:
(i)
The Court allowed WCOF’s claim for payment of Sixteen Million
Nine Hundred Fifty Thousand Dollars ($16,950,000) of the principal
of, prepayment fees on, interest on, attorneys’ fees and
costs of collection with respect to a secured loan from WCOF to the
Company (the “ Secured Loan ”), as further
described in Section 3.3 of the Plan;
(ii)
WCOF has loaned to the Company the additional sum of One Million
Five Hundred Thousand Dollars ($1,500,000) (the “ Exit
Financing Facility ”), as further described in
Section 5.4 of the Plan; and
(iii)
WCOF agreed to guarantee that the Company would raise a least Seven
Million Five Hundred Thousand Dollars ($7,500,000) of additional
equity financing (the “ Additional Equity ”)
within 90 days following the Confirmation Date, as further
described in Section 5.5 of the Plan;
The parties have agreed to execute this
Agreement to modify the obligations of the parties under the Plan
such that (i) WCOF is released from its obligation to procure,
provide, or guaranty any Additional Equity; (ii) WCOF shall
have certain rights and obligations with respect to the purchase of
additional securities of the Company, and (iii) the
obligations of the Company with respect to the Secured Loan and the
Exit Financing Facility shall be modified as further described
below.
AGREEMENTS:
NOW, THEREFORE,
the parties hereto, intending to be
legally bound and to modify the Plan as set forth below, do hereby
agree as follows:
1.
AGREEMENT OF PLAN .
Notwithstanding any provision of the Plan to the
contrary:
1.1
WAIVER OF WCOF FUNDING OBLIGATION. The Company and the Committee (pursuant
to the power vested in the Committee by Section 5.5 of the
Plan) hereby (a) agree that WCOF shall not have any further
obligation to provide or guaranty the Company’s receipt of
any of the $7,500,000 of Additional Equity contemplated by
Section 5.5 of the Plan, and (b) waive and release WCOF
from all further obligations under Section 5.5 of the
Plan.
1.2
FURTHER FUNDING BY WCOF. In consideration of the agreements of the
Company and the Committee set forth in Section 1.1 ,
above, WCOF hereby agrees that:
(a)
$500,000 ADDITIONAL
INVESTMENT. On or before the date that is ten
(10) Business Days after the Effective Date of this Agreement,
WCOF shall purchase one hundred sixty-six thousand six hundred
sixty-seven (166,667) shares of the Company’s common stock at
a price equal to Three Dollars ($3.00) per share, for an aggregate
investment of Five Hundred Thousand Dollars ($500,000), provided
that (i) at the closing of the purchase and sale of such
shares, (A) the Company shall execute a definitive securities
purchase agreement in commercially reasonable form, including
representations and warranties of the Company that are similar to
those provided by other issues of securities in comparable
transactions, and (B) the Company shall deliver such
certificates, and other documents and instruments as WCOF shall
reasonably require, and (ii) such investment shall be subject
to the preemptive rights, if any, of Holders of Class A-2,
Class B-2, Class A-4, and Class B-5
Claims.
(b)
$3,000,000 ADDITIONAL INVESTMENT. WCOF shall purchase shares of Company preferred
stock, Company
