PLAN SUPPORT AND LOCK-UP AGREEMENT REGARDING CROSS CANYON ENERGY CORP.
REGARDING CROSS CANYON
ENERGY CORP.
THIS PLAN
SUPPORT AND LOCK-UP AGREEMENT (the “Agreement”), dated as
of January 28, 2010, is entered into by and among Cross Canyon Energy Corp., a
Nevada corporation (the “Company”), and CIT
Capital USA, Inc., as administrative agent and lender (“CIT Capital”)
pursuant to (a) that certain Credit Agreement made as of September 2, 2008 (the
“Revolving Loan
Agreement”), and (b) that certain Second Lien Term Loan
Agreement, made as of September 2, 2008 (the “Term Loan
Agreement”). Borrowings made pursuant to the Revolving Loan
Agreement are referred to herein as the “Revolving Loan,” and
borrowings made pursuant to the Term Loan Agreement are referred to herein as
the “Term
Loan.” Capitalized terms used but not otherwise defined herein
shall have the meaning ascribed to them in the Company’s chapter 11 plan of
reorganization (as more fully described below).
PRELIMINARY
STATEMENTS
A. CIT
Capital holds indebtedness, as of January 28, 2010, in (i) the principal amount
of $11,500,000 on the Revolving Loan, plus accrued interest, costs and expenses,
and (ii) $22,000,000 on the Term Loan, plus accrued interest, costs and
expenses.
B. The
Company and CIT Capital desire to implement a restructuring and reorganization
of the Company such that CIT Capital and the other holders of claims against
and/or equity interests in the Company shall receive the consideration to be
paid, distributed or provided by the Company pursuant to such restructuring and
reorganization.
C. To
expedite the contemplated restructuring and reorganization of the Company, CIT
Capital and the Company, subject to the terms of this Agreement, (a) desire to
pursue and support a restructuring and reorganization transaction by way of a
pre-packaged plan of reorganization under chapter 11 of title 11 of the United
States Code (the “Bankruptcy Code”)
that shall be substantially in the form of the documents attached as Exhibit A to this
Agreement (the “Plan”), and (b)
desire not to support any restructuring or reorganization of the Company (or any
plan or proposal in respect of the same) that does not achieve or implement the
restructuring and reorganization transactions (the “Restructuring
Transaction”) set forth in the Plan.
D. To
implement the Restructuring Transaction and subject to the terms and conditions
of this Agreement, the Company has agreed to (a) prepare and file (i) the Plan
in a case to be filed by the Company under chapter 11 of the Bankruptcy Code
(the “Chapter 11
Case”), and (ii) a disclosure statement consistent in all material
respects with the Restructuring Transaction (the “Disclosure
Statement”) that shall be substantially in the form of the documents
attached hereto as Exhibit B to
this Agreement, and (b) use reasonable commercial efforts to confirm the Plan
pursuant to an order of the bankruptcy court having jurisdiction over the
Chapter 11 Case (the “Bankruptcy
Court”).
E. In
order to implement the Restructuring Transaction, CIT Capital has agreed to
support approval of the Disclosure Statement and confirmation of the Plan on the
terms and subject to the conditions of this Agreement and applicable law and to
vote in favor of the Plan if and when solicited to do so in accordance with
applicable law.
STATEMENT
OF AGREEMENT
In
consideration of the premises and the mutual covenants and agreements set forth
herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Company and CIT Capital,
intending to be legally bound, agree as follows:
1. Agreements of CIT
Capital.
(a) Support of the
Plan. As long as this Agreement remains in effect, and
provided that the terms of the Plan and Disclosure Statement are in all material
respects consistent with the terms set forth in Exhibits A and B and are otherwise
satisfactory to CIT Capital in all material respects, CIT Capital will solely
with respect to the Claims, subject to the provisions of this Agreement support
the Plan in the manner described herein. With respect to any Claims
now or hereafter beneficially owned by CIT Capital, as long as this Agreement
remains in effect, and provided that the terms of the Plan and Disclosure
Statement are in all material respects consistent with the terms set forth in
Exhibits A and
B and are
otherwise satisfactory to CIT Capital solely with respect to the Claims, CIT
Capital shall not (a) oppose the chapter 11 filing; (b) object to confirmation
of the Plan or otherwise commence any proceeding to oppose or alter the Plan,
(c) vote for, consent to, support or participate in the formulation of any other
plan of reorganization or liquidation proposed or filed or to be proposed or
filed, (d) directly or indirectly seek, solicit, support or encourage any other
plan, sale, proposal or offer of dissolution, winding up, liquidation,
reorganization, merger or restructuring of the Company or any of its
subsidiaries, (e) object to the Disclosure Statement or the solicitation of
acceptances to the Plan, or take any action, directly or indirectly, with
respect to the Company, any of its subsidiaries or otherwise that is
inconsistent with, or that would delay confirmation of, the
Plan. Nothing contained herein shall limit the ability of CIT Capital
to consult with the officers, directors, and agents of the Company or to appear
and be heard concerning any matter arising in the Chapter 11 Case, so long as
such consultation or appearance is not inconsistent with the obligations of CIT
Capital under the Plan and this Agreement.
Notwithstanding
the foregoing provisions, nothing in this Agreement shall require the Company or
CIT Capital to take any action prohibited by the Bankruptcy Code, the Securities
Act of 1933, as amended (the “Securities Act”), the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), any
rule or regulations thereunder or by other applicable law or regulation or by
any order or direction of any court or any federal or state governmental
authority.
(b) Transfers. Until
this Agreement has been terminated in accordance with Section 3, CIT
Capital shall (i) remain as Administrative Agent with respect to the Revolving
Loan Agreement and the Term Loan Agreement, and (ii) shall not sell, transfer or
assign any of the Claims or any option thereon or any right or interest (voting
or otherwise) therein, unless the transferee thereof agrees in writing for the
benefit of the Company to be bound by all of the terms of this Agreement by
executing the Joinder attached hereto as Exhibit C, a
copy of which shall be provided to the Company, in which event the Company shall
be deemed to have acknowledged that its obligations to CIT Capital hereunder
shall be deemed to constitute an obligation, without limitation, in favor of
such transferee. The Company shall confirm that acknowledgment in
writing (but the transferor need not wait for such confirmation prior to
consummating such transfer).
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(c) Agreement to
Forbear. Until this Agreement has been terminated in
accordance with Section 3, CIT
Capital shall not (i) take any action or otherwise pursue any right or remedy
under applicable law, the Revolving Loan Agreement or the Term Loan Agreement,
as applicable, or (ii) initiate, or have initiated on its behalf, any litigation
or proceeding of any kind with respect to the Revolving Loan Agreement and the
Term Loan Agreement, other than to enforce this Agreement or to file UCC
financing statements to continue the perfection of existing security
interests. The Agreement to forbear set forth herein shall apply with
regard to the Company and its subsidiaries, Voyager Gas Corporation and CCEC
Operating Company.
2. Agreements of
the Company. The
Company will (a) use reasonable commercial efforts to consummate the
Restructuring Transactions on or prior to March 31, 2010, and not to take any
action materially inconsistent with, or that would materially delay consummation
of the Restructuring Transactions; (b) neither assert nor support any assertion
by any third party that, prior to issuing any termination notice pursuant to
Section 3, CIT
Capital shall be required to obtain relief from the automatic stay from the
Bankruptcy Court (and hereby waives, to the greatest extent possible, the
applicability of the automatic stay to the giving of such notice); (c) file all
appropriate applications, motions or pleadings with the Bankruptcy Court, in a
timely manner, that are necessary to satisfy all deadlines concerning the
Bankruptcy Court orders or findings set forth in Section 3; (d) submit
for and obtain at the earliest practicable date, Bankruptcy Court approval of
the Disclosure Statement in form and substance reasonably satisfactory to CIT
Capital no later than January 31, 2010; (e) except as the board of directors of
the Company may determine in its good faith judgment, after receiving the advice
of outside counsel to be required in the exercise of their fiduciary duties
under applicable law, not withdraw the Plan without the prior consent of CIT
Capital; (f) seek to confirm the Plan as expeditiously as commercially
practicable under the Bankruptcy Code and the Bankruptcy Rules; (g) implement
all steps necessary and desirable to obtain from the Bankruptcy Court an order
confirming the Plan (the “Confirmation Order”)
no later March 16, 2010; seek to satisfy as promptly as possible all conditions
to confirmation and consummation of the Plan as set forth in the Plan; (h)
consummate the confirmed Plan at the earliest practicable date; (i) except as
the board of directors of the Company may determine in its good faith judgment,
after receiving the advice of outside counsel, to be required in the exercise of
their fiduciary duties under applicable law, not to pursue, propose or support,
or encourage the pursuit, proposal or support of, any plan of reorganization for
the Company that is inconsistent with the Plan; and (j) not seek to implement
any transaction or series of transactions that would effect a restructuring or
reorganization on terms other than the Restructuring Transaction.
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3. Termination of
Agreement.
(a) This
Agreement may be terminated by CIT Capital, if it is not in breach of its
obligations hereunder, should any of the following events (any such
event, a “Termination
Event”) occur and not be waived in accordance with Section 8: (i) the
Company shall not have commenced the Chapter 11 Case on or before January 31,
2010 (such date of commencement, the “Petition Date”); (ii)
the Company fails to obtain entry of the interim cash collateral order, within
three (3) business days following the Petition Date, or fails within twenty-five
(25) calendar days following the Petition Date to obtain entry of the final cash
collateral order, in each case, in form and substance acceptable to CIT Capital;
(iii) the Disclosure Statement shall not have been approved by the Bankruptcy
Court on or before March 16, 2010; (iv) the Company shall file with the
Bankruptcy Court a plan of reorganization, or any amendment to the plan of
reorganization (other than the Plan), that is materially inconsistent with or
provides less favorable economic treatment for CIT Capital than that provided
for in Exhibit
A; provided,
however, that CIT Capital shall give the Company no less than three (3) business
days’ notice in order to provide the Company an opportunity to cure any such
inconsistency; (v) the Company fails to obtain confirmation of the Plan by the
Bankruptcy Court on or prior to March 16, 2010; (vi) the Company files,
propounds or otherwise supports any plan of reorganization other than the Plan;
(vii) there has been a material adverse change in the financial condition of the
Company from the date hereof; (viii) there shall be a material inconsistency in
the information contained in the Disclosure Statement as approved by the
Bankruptcy Court compared to the information provided to CIT Capital prior to
the date hereof; (ix) the Plan is modified or replaced such that it (or any such
replacement) or any material term thereof at any time is not consistent in any
material respect with the Restructuring Transaction; (x) the Company shall have
materially breached any of its obligations or failed to satisfy in any material
respect any of the terms or conditions of this Agreement; (xi) the Company shall
withdraw or revoke the Plan or shall publicly announce its intention not to
pursue the Plan or proposes a reorganization or plan under the Bankruptcy Code,
other than the Plan; (xii) an occurrence of whatever nature that results in the
Company being unable to perform its obligations under the Plan, or this
Agreement; (xiii) the Company shall have made or engaged in any act, or omitted
to take any action, that is materially inconsistent with, prior to the date of
the filing of the Plan, and after such date, the Plan; (xiv) a trustee shall
have been appointed in the Chapter 11 Case, the Chapter 11 Case shall have been
converted to a case under chapter 7 of the Bankruptcy Code, or the
Chapter 11 Case shall have been dismissed by order of the Bankruptcy Court;
(xv) a chapter 11 trustee or an examiner with expanded powers shall have been
appointed for the Company pursuant to section 1104 of the Bankruptcy Code; (xvi)
a Bankruptcy Court shall have determined by final order that the terms of this
Agreement are unenforceable; (xvii) the Bankruptcy Court shall enter an order
denying Confirmation of the Plan; (xviii) the occurrence of the Effective Date
of the Plan after March 31, 2010; (xix) an order of the Bankruptcy Court
setting the pre-petition Claims bar date that shall be 10 days or more prior to
the date scheduled for a Confirmation Hearing with respect to the Plan; and
(xiv) any definitive document shall not be consistent in all material respects
with the Restructuring Transaction and shall not be reasonably satisfactory to
CIT Capital prior to the consummation of the Restructuring
Transaction.
(b) Upon
the occurrence of a Termination Event that is not waived in accordance with
Section 8, this
Agreement shall terminate effective upon ten (10) business days prior written
notice of termination delivered by CIT Capital to the
Company. Following such termination, the Company and CIT Capital
shall have all rights and remedies available to them under applicable law, the
Revolving Loan Agreement and the Term Loan Agreement. If this
Agreement has been terminated in accordance with this Section 3(b) at a
time when permission of the Bankruptcy Court may be required for CIT Capital to
change or withdraw (or cause to change or withdraw) its vote to accept the Plan,
the Company shall not oppose any attempt by CIT Capital to change or withdraw
(or cause to change or withdraw) such vote at such time (to the extent permitted
by applicable law). CIT Capital shall have no liability to the
Company arising from a termination of this Agreement in accordance with this
Section
3(b). The Company shall have no liability to CIT Capital
arising from any termination of this Agreement in accordance with the terms
hereof (however, the foregoing shall in no way effect the obligations of the
Company under the Revolving Loan Agreement and Term Loan Agreement or the rights
and remedies of CIT Capital under such agreements).
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(c) Notwithstanding
any other provision of this Agreement, this Agreement shall terminate on April
15, 2010, unless extended in writing pursuant to Section
8.
4. Good Faith Cooperation;
Further Assurances; Acknowledgment; Definitive Documents.
(a) The
Company and CIT Capital shall cooperate with each other in good faith and shall
coordinate their activities (to the extent practicable and subject to the terms
hereof) in respect of (x) all matters relating to the Restructuring Transaction,
(y) all matters concerning the implementation of the Restructuring Transaction,
and (z) the pursuit and support of the consummation of the Plan and
implementation of the Restructuring Transaction.
(b) The
Company and CIT Capital shall take such actions as may be necessary to carry out
the purposes and intent of this Agreement, including making any required
regulatory filings, and shall refrain from taking any action that would
frustrate the purposes and intent of this Agreement, including proposing an
alternative plan.
(c) Prior
to the commencement of and during the Chapter 11 Case, the Company shall provide
to counsel for CIT Capital (x) drafts of all motions, proposed orders or
applications and other documents the Company intends to file with the Bankruptcy
Court at least one (1) business day prior to the date when the Company intends
to file any such document unless such advance notice is impossible or
impractical under the circumstances in which case the Company shall notify
telephonically or by electronic mail counsel to CIT Capital to advise them of
the documents to be filed and the facts that make the provision of advance copy
at least two (2) business day prior to submission impossible or impractical, and
(y) copies of all documents actually filed by the Company with the Bankruptcy
Court within two (2) business days of such filing. The Company shall
use reasonable best efforts to consult with CIT Capital prior to filing any such
documents.
(d) The
Company will afford CIT Capital and its attorneys, consultants, and other
authorized representatives reasonable access, upon reasonable notice during
normal business hours, and at other reasonable times, to all properties, books,
contracts, commitments, records, personnel, lenders, creditors and advisors of
the Company.
(e) This
Agreement is not and shall not be deemed a solicitation of acceptances of the
Plan or any similar type of solicitation.
(f) The
Company and CIT Capital shall negotiate in good faith the definitive documents
to implement the Restructuring Transaction, including an order of the Bankruptcy
Court confirming the Plan and documentation relating to financing of the
reorganized Company, its charter, bylaws, and other related documents
(collectively, the “Definitive
Documents”). The Definitive Documents shall contain terms and
conditions consistent in all material respects with the Restructuring
Transaction and shall otherwise be reasonably satisfactory in form and substance
to CIT Capital and to the Company.
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(g) The
Company and CIT Capital shall execute (to the extent they are a party thereto)
and otherwise support completion and implementation of the Definitive
Documents.
5. Representations and
Warranties of the Company. The Company represents and warrants
that the following statements are true, correct and complete, as of the date
hereof:
(a) it
has all requisite corporate, partnership, limited liability company or similar
power and authority to enter into this Agreement and carry out the transactions
contemplated hereby and perform its obligations contemplated
hereunder;
(b) execution
and delivery of this Agreement and the performance of its obligations hereunder
have been duly authorized by all necessary corporate, partnership or Limited
Liability Company action on its part;
(c) the
execution, delivery, and performance of this Agreement does not and shall not
require any registration or filing with, consent or approval of, or notice to,
or other action to, with or by, any federal, state or governmental authority or
regulatory body, except such filings as may be necessary and/or required (i) for
disclosure by the Securities and Exchange Commission and in connection with the
Chapter 11 Case, the Plan and the Disclosure Statement, and (ii) by the Texas
Railroad Commission;
(d) it
has reviewed this Agreement and all exhibits hereto and received such other
information as it
deems necessary and appropriate to enable it to evaluate the financial risks
inherent in the Restructuring Transaction;
(e) subject
to the provisions of section 1125 and 1126 of the Bankruptcy Code, this
Agreement is a legally valid and binding obligation enforceable against it in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
limiting creditors’ rights generally or by equitable principles relating to
enforceability or a ruling of the Bankruptcy Court;
(f) attached
hereto as Exhibit D is a copy of the Schedules of Assets and Liabilities to be
filed on the Petition Date;
(g) attached
hereto as Exhibit E is a copy of the Statement of Financial Affairs to be filed
on the Petition Date;
6. Representations and
Warranties of CIT Capital. CIT Capital, individually,
represents and warrants that the following statements are true, correct and
complete as of the date hereof:
(a) it
has all requisite corporate, partnership, limited liability company or similar
power and authority to enter into this Agreement and carry out the transactions
contemplated hereby and perform its obligations contemplated
hereunder;
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(b) execution
and delivery of this Agreement and the performance of its obligations hereunder
have been duly authorized by all necessary corporate, partnership or Limited
Liability Company action on its part;
(c) the
execution, delivery, and performance of this Agreement does not and shall not
require any registration or filing with, consent or approval of, or notice to,
or other action to, with or by, any federal, state or governmental authority or
regulatory body, except such filings as may be necessary and/or required (i) for
disclosure by the Securities and Exchange Commission and in connection with the
Chapter 11 Case, the Plan and the Disclosure Statement, and (ii) by the Texas
Railroad Commission;
(d) it
has reviewed this Agreement and all exhibits hereto and received such other
information as it
deems necessary and appropriate to enable it to evaluate the financial risks
inherent in the Restructuring Transaction;
(e) this
Agreement is a legally valid and binding obligation enforceable in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or limiting
creditors’ rights generally or by equitable principles relating to
enforceability or a ruling of the Bankruptcy Court;
(f) CIT
Capital is the sole legal and beneficial owner of the indebtedness of the
Company consisting of the Revolving Loan and the Term Loan and the Claims, in
each case, free and clear of all Claims, liens and encumbrances, other than
ordinary course pledges and/or swaps; and
(g) CIT
Capital has full power and authority to vote on and consent to such matters
concerning the Claims and to exchange, compromise, assign or transfer such
Claims.
7. Additional Claims or Equity
Interests. To the extent CIT Capital holds or acquires any
other claims or interests (as defined in Section 101 of the Bankruptcy Code)
against or in the Company, which claims or interests may be entitled to vote to
accept or reject the Plan, CIT Capital shall vote (or cause to be voted) any
such additional claims or interests (in each case, to the extent still held by
it or on its behalf at the time of such vote) in a manner consistent with the
provisions of this Agreement.
8. Amendments and
Waivers. This Agreement may not be modified, amended or
supplemented, and a Termination Event may not be waived, except in a writing
signed by the Company and CIT Capital. The Plan, Disclosure Statement
and attachments, schedules, supplements and documents related to the Plan or the
Disclosure Statement may from time to time be amended, supplemented or modified
by the Company if such amendment, supplement or modification is otherwise
consented to by CIT Capital (which consent shall not be unreasonably
withheld).
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9. Release of CIT
Capital. In consideration of this Agreement the Company hereby
releases, acquits, forever discharges, and covenants not to ▇▇▇ CIT Capital,
along with all of their beneficiaries, officers, directors, agents, employees,
servants, attorneys and representatives, as well as their respective heirs,
executors, legal representatives, administrators, predecessors in interest,
successors and assigns (each individually, a “CIT Released Party”
and collectively, the “CIT Released Parties”)
from any and all claims, demands, debts, liabilities, contracts, agreements,
obligations, accounts, defenses, suits, offsets against the indebtedness
evidenced by the Revolving Loan Agreement, the Term Loan Agreement or the
transactions evidenced thereby, actions, causes of action or claims for relief
of whatever kind or nature, whether known or unknown, suspected or unsuspected
by the Company or any subsidiary or guarantor may have or which may hereafter
accrue against any CIT Released Party, for or by reason of any matter, cause or
thing whatsoever occurring on or prior to the date of this Agreement, which
relate to, in whole or in part, directly or indirectly (a) the Revolving Loan
Agreement, the Term Loan Agreement or the transactions evidenced thereby,
including, without limitation, any disbursements under the Revolving Loan
Agreement or the Term Loan Agreement, the negotiation of any of the Revolving
Loan Agreement, the Term Loan Agreement or the other loan documents, the terms
thereof, or the approval, administration or servicing thereof, (b) any notice of
default or event of default in reference to the Revolving Loan Agreement, the
Term Loan Agreement or any loan document or any other matter pertaining to the
collection or enforcement by any CIT Released Party of the indebtedness
evidenced by the Revolving Loan Agreement, the Term Loan Agreement or any right
or remedy under the Revolving Loan Agreement or the Term Loan
Agreement, or (c) any purported oral agreements or understandings by and between
any CIT Released Party and the Company.
10. Effectiveness. This
Agreement shall not become effective and binding on CIT Capital and the Company
unless and until counterpart signature pages shall have been executed and
delivered by the Company and CIT Capital.
11. GOVERNING LAW;
JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK. BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY LEGAL ACTION,
SUIT OR PROCEEDING AGAINST IT WITH RESPECT TO ANY MATTER UNDER OR ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT RENDERED IN ANY SUCH ACTION, SUIT OR PROCEEDING, MAY BE BROUGHT IN ANY
FEDERAL OR STATE COURT IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY
ACCEPTS AND SUBMITS ITSELF TO THE NONEXCLUSIVE JURISDICTION OF EACH SUCH COURT,
GENERALLY AND UNCONDITIONALLY, WITH RESPECT TO ANY SUCH ACTION, SUIT OR
PROCEEDING. NOTWITHSTANDING THE FOREGOING CONSENT TO JURISDICTION,
UPON THE COMMENCEMENT OF THE CHAPTER 11 CASE, EACH OF THE PARTIES AGREES THAT
THE BANKRUPTCY COURT SHALL HAVE EXCLUSIVE JURISDICTION WITH RESPECT TO ANY
MATTER UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT.
12. Specific
Performance. It is understood and agreed by the Company and
CIT Capital that money damages would not be a sufficient remedy for any breach
of this Agreement and, thus, the non-breaching Party shall be entitled to
specific performance and injunctive or other equitable relief as a remedy of any
such breach, including an order of the Bankruptcy Court requiring any Party to
comply promptly with any of its obligations hereunder.
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13. Headings. The
headings of the sections, paragraphs and subsections of this Agreement are
inserted for convenience only and shall not affect the interpretation
hereof.
14. Successors and Assigns,
Severability, Several Obligations. This Agreement is intended
to bind and inure to the benefit of the Company, CIT Capital, and their
respective successors, assigns, heirs, executors, administrators and
representatives. The invalidity or unenforceability at any time of
any provision hereof shall not affect or diminish in any way the continuing
validity and enforceability of the remaining provisions hereof.
15. No Third Party
Beneficiaries. Unless expressly stated herein, this Agreement
shall be solely for the benefit of the Company and CIT Capital, and no other
person or entity shall be a third party beneficiary hereof, nor is anything in
this Agreement intended to relieve or discharge the obligation or liability of
any third party to either the Company or CIT Capital, nor shall any provision
give any third party any right of subrogation or action over or against the
Company and CIT Capital.
16. Prior Negotiations; Entire
Agreement. This Agreement constitutes the entire agreement of
the Company and CIT Capital, and supersedes all other prior negotiations, with
respect to the subject matter hereof, except that such parties acknowledge that
any confidentiality agreements heretofore executed between the Company and CIT
Capital shall continue in full force and effect.
17. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original and all of which shall constitute one and the same
agreement.
18. Consideration. It
is hereby acknowledged by the Company and CIT Capital that no payment or
additional consideration shall be due or paid to CIT Capital for its agreement
to vote in accordance with, and otherwise comply with, the terms and conditions
of this Agreement.
19. Automatic
Stay. The parties hereto acknowledge that after the
commencement of the Chapter 11 Case, the giving of notice or termination by any
party pursuant to this Agreement shall not be a violation of the automatic stay
of section 362 of the Bankruptcy Code; provided, however, nothing
herein shall prejudice any party’s rights to argue that the giving of notice of
termination was not proper under the terms of this Agreement.
20. Notices. All
notices and other communications under this Agreement shall be in writing, sent
contemporaneously to all of the Parties, and deemed given when delivered by
hand, by electronic mail or by facsimile during standard business hours (from
8:00 a.m. to 6:00 p.m., Central time) at the place of receipt at the addresses
and facsimile numbers set forth on the signature pages hereof, with a copy to
each person identified thereon.
21. Rule of
Interpretation. Notwithstanding anything contained herein to
the contrary, it
is the intent of the Company and CIT Capital that all references to votes or
voting in this Agreement be interpreted to include (a) votes or voting on a plan
of reorganization under the Bankruptcy Code and (b) all commercially reasonable
means of expressing agreement with, or rejection of, as the
case may be, a restructuring or reorganization transaction that is implemented
under the Bankruptcy Code.
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22. Reservation of
Rights. Except as expressly provided in this Agreement,
nothing herein is intended to, or does, in any manner waive, limit, impair or
restrict the ability of CIT Capital
to protect and preserve its rights, remedies and interests, including its claims
against the Company and Claims against the Company or its full participation in
any case filed by or against the Company under the Bankruptcy
Code. Nothing herein shall be deemed an admission of any kind either
by the Company or CIT Capital. If the transactions contemplated
herein are not consummated, or this Agreement is terminated for any reason, the
parties hereto fully reserve any and all of their rights and
defenses. Pursuant to Rule 408 of the Federal Rule of Evidence, any
similar applicable state rules of evidence and any similar applicable law,
foreign or domestic, this Agreement and all
negotiations relating thereto shall not be admissible into evidence in any
proceeding other than a proceeding to enforce its terms.
23. Expenses. On
or before the Effective Date of the Plan, the Company shall pay all expenses
incurred by CIT Capital, including, but not limited to, reasonable attorney,
accountant and financial advisor fees and costs, in connection with the
negotiation, execution, delivery and performance of this Agreement, the
Restructuring Transaction and the transactions contemplated hereby and thereby,
without the need for CIT Capital to file an application or otherwise seek
Bankruptcy Court approval thereof.. If either the Company brings an
action or proceeding against CIT Capital based upon a breach by CIT Capital of
its obligations hereunder, or CIT Capital brings an action or proceeding against
the Company based upon a breach by the Company of its obligations hereunder, the
prevailing party shall be entitled to all reasonable expenses incurred,
including reasonable attorney, accountant and financial advisor fees and costs
in connection with such action or proceeding.
24. Fiduciary
Duties. Notwithstanding anything to the contrary herein,
nothing in this Agreement shall require the Company or any directors or officers
of the Company (in such person’s capacity as a director or officer of the
Company) to take any action, or to refrain from taking any action, to the extent
required to comply with its or their fiduciary obligations under applicable
law. Nothing herein will limit or affect, or give rise to any
liability, to the extent required for the discharge of the fiduciary obligations
described in this Section
24.
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IN
WITNESS WHEREOF, the Parties have caused this Plan Support Lock-Up Agreement
REGARDING CROSS CANYON ENERGY CORP. to be executed as of the date first written
above.
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By:
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/s/ ▇▇▇▇ ▇.
▇▇▇▇▇
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Name: ▇▇▇▇
▇. ▇▇▇▇▇
Title: Chief
Financial Officer
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CIT
Capital USA, Inc.
Revolving
Loan Agent
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By:
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Name: ▇▇▇▇▇▇▇
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Title: Managing
Director
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CIT
Capital USA, Inc.
Term
Loan Agent
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By:
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Name: ▇▇▇▇▇▇▇
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Title: Managing
Director
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Fax: (▇▇▇)
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CIT
Capital USA, Inc.
Revolving
Loan Lender
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By:
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Name: ▇▇▇▇▇▇▇
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Title: Managing
Director
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Telephone: (▇▇▇)
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E-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇.▇▇▇
Fax: (▇▇▇)
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CIT
Capital USA, Inc.
Term
Loan Lender
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By:
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Name: ▇▇▇▇▇▇▇
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Title: Managing
Director
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Telephone: (▇▇▇)
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E-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇.▇▇▇
Fax: (▇▇▇)
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Exhibit
C
JOINDER
TO PLAN SUPPORT AND LOCK-UP
AGREEMENT REGARDING CROSS
CANYON ENERGY CORP.
This
Joinder to the Plan Support and Lock-Up Agreement, dated as of _______________
__, 2009 (the “Agreement”), by and among Cross Canyon Energy Corp. (the
“Company”) and CIT Capital USA, Inc.[-------------------------------] signatory
thereto (with the Company, the “Parties”), is executed and delivered by
_______________________ (the “Joining Party”), as of ________________ __,
2010.
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1.
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The
terms of the Agreement are incorporated fully herein, as if fully set
forth.
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2.
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Each
capitalized term used herein, but not otherwise define, shall have the
meaning set forth in the Agreement.
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[
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]
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By:
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[
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]
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[
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]
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