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 common stock or Company
convertible debt instruments convertible into shares of Company common stock,
by delivering to the Company, at any time and from time to time prior to September 30,
2010, a written notice specifying the security that WCOF elects to purchase and
the amount of cash that WCOF elects then to invest, provided that:


 


(i)            The purchase price
per share of common stock purchased by WCOF hereunder, and the conversion price
for shares of preferred stock or convertible debt instruments that are
purchased by WCOF hereunder and are convertible into shares of common stock,
shall be Two Dollars ($2.00) per share of common stock.


 


(ii)           At the closing
of the purchase and sale of securities under this Section 1.2(b), (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 issuers of securities in
comparable transactions, and (B) the Company shall deliver such
certificates, and other documents and instruments as WCOF shall reasonably
require.


 


(iii)         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.


 


1.3          MODIFICATION OF WCOF
LOAN TERMS.  WCOF hereby
agrees that:


 


(a)           TEMPORARY REDUCTION
OF INTEREST RATE.


 


(i)            RATE ADJUSTMENTS.  Interest shall accrue and be paid on the
unpaid principal of the Secured Loan and the Exit Financing Facility:


 

















 


(A)          At a rate of two and one-half percent
per annum (2.5%) during the period from and after the first date as of which
WCOF was entitled under the Plan to have interest accrue thereon and until the
first date as of which the Company has satisfied the “Capital Raise Condition”
(as defined below) (the first date as of which the Company has satisfied such
Capital Raise Condition, the “Interest Change Date”); and


 


(B)           At a rate of ten percent (10.0%) per
annum (but not greater than the maximum rate permitted by applicable law)
during the period from and after the Interest Change Date.


 


(ii)           CAPITAL RAISE
CONDITION.  For purposes
of this Section 1.3(a), the term “Capital Raise Condition”
shall mean, and such condition shall be deemed to have been satisfied on the
first date of which, the Company or any of its subsidiaries or other affiliates
(including any partnership, limited liability company, joint venture, or other
similar arrangement (e.g., any
drilling joint venture or partnership) in which the Company has a direct or
indirect interest) has received gross offering proceeds of at least Seven
Million Five Hundred Thousand Dollars ($7,500,000) in the aggregate, from any
one or more of the following sources:


 


(A)          The issuance by the Company or any of
its subsidiaries or other affiliates of additional equity or debt securities to
WCOF (including but not limited to the issuance of securities pursuant to Sections
1.2(a) and (b), above);


 


(B)           The issuance by the Company or any of
its subsidiaries or other affiliates of equity or debt securities to persons
other than WCOF; and


 


(C)           The contribution of capital, other
assets, or services by any person other than the Company to the Company, any
partnership, limited liability company, joint venture, or other similar
arrangement (e.g., any drilling joint venture
or partnership) in which the Company has a direct or indirect (e.g., through an affiliate or subsidiary) ownership
interest.


 


(b)           MATURITY DATE.


 


(i)            The due date of
that certain scheduled principal payment of $3,750,000 that was to be prepaid
prior to maturity under the Secured Loan, and the maturity date of the
remainder of the principal of the Secured Loan, are hereby extended to December 31,
2011 (as of which date the entire unpaid principal of, all accrued and unpaid
interest on, and all other accrued and unpaid charges on the Secured Loan shall
be due and payable in full).


 


(ii)           The maturity
date of the Exit Financing Facility is hereby extended until December 31,
2011 (as of which date the entire unpaid principal of, all accrued and unpaid
interest on, and all other accrued and unpaid charges on the Exit Financing
Facility shall be due and payable in full).


 


(c)           WAIVER OF PREPAYMENT
PREMIUMS.  The Company
at any time after the Effective Date of this Agreement may prepay the Secured
Loan or the Exit Financing Facility without having to pay the ten percent (10%)
prepayment premium otherwise due to WCOF under the terms of the loan documents
evidencing or security such Secured Loan or Exit Financing Facility, as
applicable.


 


2.             MISCELLANEOUS.  Except as expressly modified above, the Plan,
the documents and instruments evidencing and securing the Secured Loan, and the
documents and instruments evidencing the Exit Financing Facility, and the
obligations of each of the parties under the Plan and each and every other such
document, are hereby ratified and confirmed and remain in full force and
effect.  In the event of any conflict
between the provisions of the Plan and this Agreement, the provisions of this
Agreement shall 


 

















 


govern.  All capitalized terms that appear in this
Agreement and are not defined herein shall have the meaning ascribed thereto in
the Plan.  This Agreement, may be
executed in counterparts, each of which shall be deemed an original and all of
which, taken together, shall be one and the same instrument, binding on each signatory
thereto.  A copy of this Agreement that
is executed by a party and delivered by that party to any other party by
facsimile or email shall be binding on the signatory to the same extent as a
copy hereof containing the signatory’s original signature.


 


[Signatures appear on the following page.]


 


4

















 


IN WITNESS WHEREOF, the undersigned have
executed this Amendment, effective as of the Effective Date identified above.


 


	
  “WCOF:”

  	
  “COMPANY:”

  
	
   

  	
   

  
	
  WEST
  COAST OPPORTUNITY FUND, LLC, a Delaware limited liability
  company

  	
  BLACK
  RAVEN ENERGY, INC., a Nevada corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
  /s/
  Atticus Lowe

  	
   

  	
  By

  	
  /s/
  W. F. Hayworth

  
	
   

  	
  Name:
  Atticus Lowe

  	
   

  	
  Name:
  W. F. Hayworth

  
	
   

  	
  Title:
  CIO of Managing Member

  	
   

  	
  Title:
  President and CEO

  
					



 


“COMMITTEE:”


 


OFFICIAL
COMMITTEE OF UNSECURED CREDITORS APPOINTED BY


THE
BANKRUPTCY COURT IN THE COMPANY’S BANKRUPTCY CASE


 


 


	
  By

  	
  /s/
  Barry Zelin

  	
   

  
	
   

  	
  Name:
  Barry Zelin

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  Martin B. Bernstein

  	
   

  
	
   

  	
  Name:
  Martin B. Bernstein

  	
   

  
	
   

  	
  Title:
  Chairman

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  Rachel Bedford

  	
   

  
	
   

  	
  Name:
  Rachel Bedford

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  Barry J. Goldstein

  	
   

  
	
   

  	
  Name:
  Barry J. Goldstein

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  Douglas M. Polinsky

  	
   

  
	
   

  	
  Name:
  Douglas M. Polinsky

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


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