Ex. 10.14
FORBEARANCE AGREEMENT
FORBEARANCE AGREEMENT, dated of as July 15, 2008 by and between GULF
COAST OIL & GAS, INC. (the "Company"), and CERTAIN WEALTH, LTD. ("CERTAIN
WEALTH"). All capitalized terms used herein shall have the respective meanings
assigned thereto in the Transaction Documents (as defined below) unless
otherwise defined herein.
W I T N E S S E T H:
WHEREAS, the Company and Certain Wealth have entered into certain
financing arrangements set forth on SCHEDULE A attached hereto and referred to
herein as the "TRANSACTION DOCUMENTS" pursuant to which, Certain Wealth is the
holder of the following secured convertible debentures (collectively, the
"DEBENTURES") issued by the Company:
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DEBENTURE DESCRIPTION PRINCIPAL OUTSTANDING ACCRUED AND UNPAID INTEREST
------------------------------------------- ----------------------------------- --------------------------------------
------------------------------------------- ----------------------------------- --------------------------------------
10% Secured Convertible Debenture issued USD $ 207,383.00 $ 32,180.29
on February 1, 2006, due February 1, 2009
in the face amount of $250,000. (for both Debentures CW-1 and CW-2)
(Debenture No. CW-1)
------------------------------------------- ----------------------------------- --------------------------------------
------------------------------------------- ----------------------------------- --------------------------------------
10% Secured Convertible Debenture issued USD $ 0 (see above)
on April 5, 2006, due April 5, 2009 in
the face amount of $250,000. (Debenture
No. CW-2)
------------------------------------------- ----------------------------------- --------------------------------------
The amounts referenced in this chart above are as of June 1, 2008 and
do not include any additional costs, charges, expenses, or liquidated damages.
WHEREAS, the Company has breached the terms of the Transaction
Documents as set forth in the default letter forwarded to the Company from YA
Global Investments, L.P. dated March 17, 2008 (the "EXISTING DEFAULTS") a copy
of which is attached hereto as Exhibit A; and
WHEREAS, Certain Wealth is willing to agree to forbear from exercising
certain of its rights and remedies on the terms and conditions specified herein;
NOW, THEREFORE, in consideration of the foregoing, and the respective
agreements, warranties and covenants contained herein, the parties hereto agree,
covenant and warrant as follows:
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1. ACKNOWLEDGMENTS.
a. ACKNOWLEDGEMENT OF OBLIGATIONS. The Company hereby acknowledges,
confirms and agrees that as of the date hereof, the Company is
indebted to Certain Wealth under the Debentures and the
Transaction Documents in the outstanding principal amount plus
accrued and unpaid interest thereon set forth in the first
Whereas clause above. In addition to the principal and interest
set forth herein, all interest accrued and accruing hereafter and
all liquidated damaged, fees, costs, expenses and other charges
now or hereafter payable by the Company to Certain Wealth under
the Transaction Documents (collectively, the "OBLIGATIONS"), are
unconditionally owing by the Company to Certain Wealth, without
offset, defense or counterclaim of any kind, nature or
description whatsoever.
b. ACKNOWLEDGEMENT OF SECURITY INTERESTS. The Company hereby
acknowledges, confirms and agrees that Certain Wealth has and
shall continue to have valid, enforceable and perfected
first-priority liens upon and security interests in the Pledged
Property heretofore granted to Certain Wealth pursuant to the
Security Agreement between the Company and Certain Wealth dated
February 1, 2006 or otherwise granted to or held by Certain
Wealth. The Company hereby acknowledges, confirms and agrees that
Certain Wealth has and shall continue to have valid, enforceable
and perfected first-priority liens upon and security interests in
the Pledged Property heretofore granted to Certain Wealth
pursuant to the Security Agreement between the Company and
Certain Wealth dated February 1, 2006 or otherwise granted to or
held by the Certain Wealth.
c. BINDING EFFECT OF DOCUMENTS. The Company hereto acknowledges,
confirms and agrees that: (a) each of the Transaction Documents
to which it is a party has been duly executed and delivered to
Certain Wealth by the Company, and each is in full force and
effect as of the date hereof, (b) the agreements and obligations
of the Company contained in such documents and in this Agreement
constitute the legal, valid and binding obligations of the
Company, enforceable against each in accordance with their
respective terms, and the Company has no valid defense to the
enforcement of such obligations, and (c) Certain Wealth is and
shall be entitled to the rights, remedies and benefits provided
for in the Transaction Documents and applicable law, without
setoff, defense or counterclaim of any kind, nature or
descriptions whatsoever.
2. FORBEARANCE IN RESPECT OF CERTAIN EVENTS OF DEFAULT.
a. ACKNOWLEDGEMENT OF DEFAULT. The Company hereby acknowledges and
agrees that the Existing Defaults have occurred and are
continuing, and each constitutes an Event of Default and entitles
Certain Wealth to exercise its rights and remedies under the
Transaction Documents, applicable law or otherwise. The Company
further represents and warrants that as of the date hereof no
other Event of Default under the Transaction Documents exist.
Certain Wealth has not waived, presently do not intend to waive
and may never waive such Existing Defaults and nothing contained
herein or the transactions contemplated hereby shall be deemed to
constitute any such waiver. The Company hereby acknowledges and
agrees that Certain Wealth has the presently exercisable right to
declare the Obligations to be immediately due and payable under
the terms of the Transaction Documents.
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b. FORBEARANCE.
i. In reliance upon the representations, warranties and
covenants of the Company contained in this Agreement, and
subject to the terms and conditions of this Agreement and
any documents or instruments executed in connection
herewith, Certain Wealth agrees to forbear from exercising
its rights and remedies under the Transaction Documents or
applicable law in respect of or arising out of the Existing
Defaults, subject to the conditions, amendments and
modifications contained herein for the period (the
"FORBEARANCE Period") commencing on the date hereof and
ending on September 30, 2008, so long as the following
conditions are met: (i) the Company strictly complies with
the terms of this Agreement, and (ii) there is no occurrence
or existence of any Event of Default, other than the
Existing Defaults.
ii. Upon the termination or expiration of the Forbearance
Period, the agreement of Certain Wealth to forbear shall
automatically and without further action terminate and be of
no force and effect, it being expressly agreed that the
effect of such termination will be to permit Certain Wealth
to exercise such rights and remedies immediately, including,
but not limited to, the acceleration of all of the
Obligations without any further notice, passage of time or
forbearance of any kind. This Agreement shall be deemed to
satisfy any and all requirements by Certain Wealth to notify
the Company of the occurrence of the Existing Defaults and
satisfies any obligation by Certain Wealth to give the
Company an opportunity to cure the Existing Defaults.
c. NO OTHER WAIVERS; RESERVATION OF RIGHTS.
i. Certain Wealth has not waived, is not by this Agreement
waiving, and has no intentions of waiving, any Events of
Default which may be continuing on the date hereof or any
Events of Default which may occur after the date hereof
(whether the same or similar to the Existing Defaults or
otherwise), and Certain Wealth has not agreed to forbear
with respect to any of its rights or remedies concerning any
Events of Default (other than, during the Forbearance
Period, the Existing Defaults to the extent expressly set
forth herein), which may have occurred or are continuing as
of the date hereof or which may occur after the date hereof.
ii. Subject to Section 2(b) above (solely with respect to the
Existing Defaults), Certain Wealth reserves the right, in
its discretion, to exercise any or all of its rights and
remedies under the Transaction Documents as a result of any
Events of Default which may be continuing on the date hereof
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or any Event of Default which may occur after the date
hereof, and Certain Wealth has not waived any of such rights
or remedies, and nothing in this Agreement, and no delay on
its part in exercising any such rights or remedies, should
be construed as a waiver of any such rights or remedies.
3. WARRANTS. In consideration of the agreements set forth herein, the
Company shall issue to Certain Wealth five (5) warrants in
substantially the form attached hereto as EXHIBIT C to purchase shares
of Common Stock of the Company as follows, for a period of seven (7)
years from the issuance date:
a. Warrant to purchase 1,250,000 shares, at an exercise price of
$0.01 per share;
b. Warrant to purchase 1,166,667 shares at an exercise price of
$0.015 per share.
c. Warrant to purchase 1,125,000 shares at an exercise price of
$0.02 per share.
d. Warrant to purchase 1,200,000 shares at an exercise price of
$0.025 per share.
e. Warrant to purchase 1,416,665 shares at an exercise price of
$0.03 per share.
4. AMENDMENT OF DEBENTURES. Pursuant to the terms and conditions of this
Agreement, contemporaneously with the execution and delivery of this
Agreement, the Company will amend each of the Debentures by executing
an amendment (the "DEBENTURE AMENDMENTS") in substantially the form
attached hereto as EXHIBIT D for each Debenture. Pursuant to the
Debenture Amendments, the following amendments will be made to the
Debentures:
a. Interest will accrue on the outstanding principal balance of the
Debentures at an annual rate equal to eighteen percent (18%) per
annum effective as of June 1, 2008;
b. the Conversion Price as set forth in the Debentures shall be
equal to the lesser of (a) the Fixed Conversion Price, or (b) an
amount equal to seventy-five percent (75%) of the lowest volume
weighted average price (the "VWAP") of the Common Stock as quoted
by Bloomberg, LP during the ten (10) trading days immediately
preceding the Conversion Date.
c. All conversion calculations shall be rounded to the nearest
twelfth (12th) decimal, at the sole option of the holder.
5. COVENANTS
a. COMMON STOCK OF THE COMPANY. The Company shall, within thirty
(30) days of the date hereof, have filed the appropriate
paperwork with the Nevada Secretary of State and the United
States Securities and Exchange Commission and increased the
authorized shares of Common Stock the Company to fifteen billion
(15,000,000,000) and to provide for a par value of no par value
per share. Failure by the Company to do so shall be considered an
Event of Default.
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b. FURTHER ASSURANCES. The Company shall, from and after the
execution of this Agreement, execute and deliver to Certain
Wealth whatever additional documents, instruments, and agreements
that Certain Wealth may require in order to correct any document
deficiencies, or to vest or perfect the Transaction Documents and
the collateral granted therein more securely in Certain Wealth
and/or to otherwise give effect to the terms and conditions of
this Agreement, and hereby authorize Certain Wealth to file any
financing statements (including financing statements with a
generic description of the collateral such as "all assets"), and
take any other normal and customary steps, Certain Wealth deems
necessary to perfect or evidence Certain Wealth's security
interests and liens in any such collateral.
c. NON-INTERFERENCE. From and after the termination of the
Forbearance Period, the Company agrees not to interfere with the
exercise by Certain Wealth of any of its rights and remedies. The
Company further agrees that it shall not seek to restrain or
otherwise hinder, delay, or impair Certain Wealth's efforts to
realize upon any collateral granted to Certain Wealth, or
otherwise to enforce its rights and remedies pursuant to the
Transaction Documents. The provisions of this Paragraph shall be
specifically enforceable by Certain Wealth.
d. CROSS DEFAULT. The Company hereby acknowledges and agrees that
any default or Event of Default under this Agreement or under any
Transaction Document shall constitute an Event of Default under
each other Transaction Document.
6. RELEASE. In exchange for the accommodations made by Certain Wealth
herein, the Company does hereby, on behalf of itself and its agents,
representatives, attorneys, assigns, heirs, subsidiaries, executors and
administrators (collectively, "COMPANY PARTIES") RELEASE AND FOREVER
DISCHARGE Certain Wealth and its subsidiaries and its respective
affiliates, parents, joint ventures, officers, directors, shareholders,
interest holders, members, managers, employees, consultants,
representatives, successors and assigns, heirs, executors and
administrators (collectively, "BUYER PARTIES") from all causes of
action, suits, debts, claims and demands whatsoever known or unknown,
at law, in equity or otherwise, which the Company Parties ever had, now
has, or hereafter may have on or prior to the date hereof, and any
claims for reasonable attorneys' fees and costs, and including, without
limitation, any claims relating to fees, penalties, liquidated damages,
and indemnification for losses, liabilities and expenses. The release
contained in this Section is effective without regard to the legal
nature of the claims raised and without regard to whether any such
claims are based upon tort, equity, or implied or express contract. It
is expressly understood and agreed that this release shall operate as a
clear and unequivocal waiver by the Company Parties of any such claim
whatsoever.
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7. PROVISIONS OF GENERAL APPLICATION
a. EFFECT OF THIS AGREEMENT. Except as modified pursuant hereto, no
other changes or modifications to the Transaction Documents are
intended or implied and in all other respects the Transaction
Documents are hereby specifically ratified, restated and
confirmed by all parties hereto as of the effective date hereof.
To the extent of conflict between the terms of this Agreement and
the other Transaction Documents, the terms of this Agreement
shall control. The Transaction Documents and this Agreement shall
be read and construed as one agreement.
b. GOVERNING LAW. This Agreement shall be interpreted according to
the laws of the State of New Jersey and shall inure to the
benefit of and be binding upon the parties hereto and their
respective successors and assigns. Any notices, demands,
consents, other writings or communications permitted or required
by this Agreement shall be given in the manner and to the address
as set forth in the Transaction Documents.
c. MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION
WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION
RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE
APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST
COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION,
THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN
CONTRACT, TORT OR OTHERWISE BETWEEN FACTOR AND CLIENT ARISING OUT OF,
CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER
FACTORING DOCUMENTS OR THE TRANSACTIONS RELATED THERETO.
[SIGNATURE PAGE IMMEDIATELY TO FOLLOW]
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IN WITNESS WHEREOF, this Agreement is executed and delivered as of the
day and year first above written.
GULF COAST OIL & GAS, INC.
By:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President & CEO
CERTAIN WEALTH, LTD.
By:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Person
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SCHEDULE A
TRANSACTION DOCUMENTS
1. Securities Purchase Agreement dated February 1, 2006, entered into by and
between Gulf Coast Oil &Gas, Inc. (the "Company") and YA Global
Investments, L.P. (formerly, Cornell Capital Partners, LP) (herein "YA
GLOBAL") and Certain Wealth, Ltd. ("CERTAIN WEALTH") and TAIB Bank, B.S.C.
("TAIB"). YA Global, Certain Wealth, and TAIB are collectively referred to
as the "BUYERS".
2. Investor Registration Rights Agreement dated February 1, 2006, entered
into by and between the Company and the Buyers, as amended.
3. Security Agreement dated February 1, 2006, entered into by and between the
Company and the Buyers.
4. Irrevocable Transfer Agent Instructions dated February 1, 2006 entered
into by and between the Company, the Buyers, and Worldwide Stock Transfer,
LLC.
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EXHIBIT A
DEFAULT NOTICE
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EXHIBIT B
FORM OF AMENDMENT TO WARRANTS
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EXHIBIT C
FORM OF WARRANT
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EXHIBIT D
FORM OF AMENDMENT TO DEBENTURES
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