EXHIBIT 10.23
LETTER AMENDMENT NO.1 TO
THAT CERTAIN NOTE PURCHASE AGREEMENT
December 15, 1997
To Each of the Purchasers:
Ladies and Gentlemen:
We refer to that certain Note Purchase Agreement dated as of November 29,
1995, by and among the undersigned, Western Gas Resources, Inc. (the "Company")
and the Purchasers relating to the purchase and sale of the Company's 8.02%
Senior Notes (the "Agreement"). Unless otherwise defined herein, the terms
defined in the Agreement shall be used herein as therein defined.
The Company has requested that each of you amend Sections 6C(4) and
6C(5)(v) relating to, among other things, sales of stock or assets by the
Company or any Subsidiary. The Required Holders have indicated their
willingness to so amend the Agreement. Accordingly, it is hereby agreed by the
parties hereto as follows:
I. AMENDMENTS TO THE AGREEMENT. The Agreement is, effective the date first
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above written, hereby amended as follows:
A. Paragraph 6C(4) is hereby deleted in its entirety and replaced, in lieu
thereof, with the following:
"6C(4) SALE OF STOCK AND DEBT OF SUBSIDIARIES. (i) Sell or otherwise
dispose of, or part with control of, any shares of stock or Debt of any
Subsidiary, except to the Company or another Wholly Owned Subsidiary, and
except that all shares of stock and Debt of any Subsidiary at the time
owned by or owed to the Company and all Subsidiaries may be sold as an
entirety for a cash consideration which represents the fair value (as
determined in good faith by the Board of Directors of the Company) at the
time of sale of the shares of stock and Debt so sold (the "Stock Sale
Restriction"), provided that (i) the assets of such Subsidiary together
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with (ii) the assets of all other Subsidiaries the stock or Debt of which
was sold or otherwise disposed of in the preceding 12-month period and
(iii) the assets of the Company and its Subsidiaries sold, leased,
transferred or otherwise disposed of pursuant to clause (v) of paragraph
6C(5) in the preceding 12-month period (in each transaction measured by the
greater of book value or Fair Market Value), do not represent more than 15%
of Consolidated Net Tangible Assets as reflected on the most recent annual
or quarterly consolidated balance sheet
To Each of the Purchasers
December 15, 1997
Page 2
(the "Initial Basket"); and
provided further that, at the time of such sale, such Subsidiary shall not
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own, directly or indirectly, any shares of stock or Debt of, or any other
continuing investment in, any other Subsidiary (unless all of the shares of
stock and Debt of such other Subsidiary owned, directly or indirectly, by
the Company and all Subsidiaries are simultaneously being sold as permitted
by this paragraph 6C(4)), or any shares of stock or Debt of the Company.
(ii) Notwithstanding anything else contained in paragraph 6C(4)(i), in the
event that the Option (as hereinafter defined) is exercised in accordance
with the terms of the Option Agreement (as hereinafter defined) , then
during the 12-month period following the end of the month in which the
Option is exercised, the Company will not and will not permit any
Subsidiary to (i) Sell or otherwise dispose of, or part with control of,
any shares of stock of any Subsidiary, except to the Company or another
Wholly Owned Subsidiary, and except that all shares of stock of any
Subsidiary at the time owned by the Company and all Subsidiaries may be
sold as an entirety for a cash consideration which represents the fair
value (as determined in good faith by the Board of Directors of the
Company) at the time of sale of the shares of stock so sold (the "Stock
Sale Restriction"), provided that (I) the assets of such Subsidiary
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together with (ii) the assets of all other Subsidiaries the stock of which
was sold or otherwise disposed of in the preceding 24-month period and
(iii) the assets of the Company and its Subsidiaries sold, leased,
transferred or otherwise disposed of pursuant to clause (v) of paragraph
6C(5) in the preceding 24-month period (in each transaction measured by the
greater of book value or Fair Market Value), do not represent more than 25%
of Consolidated Net Tangible Assets (the "Increased Basket") as reflected
on the most recent annual or quarterly consolidated balance sheet, and
provided further that, at the time of such sale, such Subsidiary shall not
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own, directly or indirectly, any shares of stock of, or any other
continuing investment in, any other Subsidiary (unless all of the shares of
stock of such other Subsidiary owned, directly or indirectly, by the
Company and all Subsidiaries are simultaneously being sold as permitted by
this paragraph 6C(4)), or any shares of stock of the Company. The
Increased Basket for the Stock Sale Restriction shall apply during the 12-
month period following the month in which the Option is exercised.
Thereafter, the Initial Basket shall apply.
B. Paragraph 6C(5)(v) is hereby deleted in its entirety and replaced, in
lieu thereof, with the following:
To Each of the Purchasers
December 15, 1997
Page 3
"6C(5)(v) The Company or any Subsidiary may sell, lease, transfer or
otherwise dispose of any of its assets to any Person (the "Asset Sale
Restriction"), provided, that: (a) such assets together with (b) all other
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assets of the Company and its Subsidiaries sold, leased, transferred or
otherwise disposed of during the preceding 12-month period, and (c) the
assets of all Subsidiaries the stock or Debt of which has been sold or
otherwise disposed of during the preceding 12-month period pursuant to the
first proviso of paragraph 6C(4) (in each transaction measured by the
greater of book value or Fair Market Value), does not represent more than
the Initial Basket as reflected on the most recent annual or quarterly
consolidated balance sheet; provided further, that, in the event that the
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first option to purchase certain assets (the "Option") from the Company or
its Subsidiaries as defined in and pursuant to that certain Option and
Asset Purchase Agreement dated November 14, 1997, by and between Mountain
Gas Resources, Inc. and the Company and RIS Resources (USA) Inc. ("Option
Agreement") is exercised in accordance with the Option Agreement by July 1,
1998, then for any sales, leases, transfers or other dispositions
(including any sale pursuant to the Option Agreement) of any of the assets
of Company or any Subsidiary during the 12-month period following the end
of the month in which the Option is exercised, the Company or any
Subsidiary may sell, lease, transfer or otherwise dispose of any of its
assets to any Person, provided, that: (a) such assets together with (b) all
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other assets of the Company and its Subsidiaries sold, leased, transferred
or otherwise disposed of during the preceding 24-month period, and (c) the
assets of all Subsidiaries the stock of which has been sold or otherwise
disposed of during the preceding 24-month period pursuant to paragraph
6C(4)(ii) (in each transaction measured by the greater of book value or
Fair Market Value), does not represent more than the Increased Basket. The
Increased Basket for the Asset Sale Restriction shall apply during the 12-
month period following the month in which the Option is exercised.
Thereafter, the Initial Basket for the Asset Sale Restriction shall apply.
II. THE OPTION IS NOT A LIEN.
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A. For the purpose of clarification, the parties hereto agree that the
Option does not constitute a Lien.
III. MISCELLANEOUS; EFFECTIVENESS.
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To Each of the Purchasers
December 15, 1997
Page 4
A. On and after the effective date of this letter amendment, each
reference in the Agreement to "this Agreement", "hereunder", "hereof", or words
of like import referring to the Agreement, and each reference in the Notes to
"the Agreement", "thereunder", "thereof", or words of like import referring to
the Agreement, shall mean the Agreement as amended by this Letter Amendment No.
1. The Agreement, as amended by this letter amendment, is and shall continue to
be in full force and effect and is hereby in all respects ratified and
confirmed. The execution, delivery and effectiveness of this letter amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy under the Agreement nor constitute a waiver of any
provision of the Agreement.
B. This Letter Amendment No. 1 may be executed in any number of
counterparts and by any combination of the parties hereto in separate
counterparts, each of which counterparts shall be an original and all of which
taken together shall constitute one and the same letter amendment.
C. If you agree to the terms and provisions hereof, please evidence your
agreement by executing and returning at least a counterpart of this Letter
Amendment No. 1 to the Company at its address at 00000 X. Xxxxx Xxxxxx, Xxxxxx,
XX 00000, Attention: Vice President-Finance.
D. This Letter Amendment No. 1 shall become effective as of the date
first above written when and if counterparts of this letter Amendment No. 1
shall have been executed by us and the Required Holders.
Very truly yours,
WESTERN GAS RESOURCES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx,
Vice President-Finance
Agreed as of the date
first above written:
To Each of the Purchasers
December 15, 1997
Page 5
THE VARIABLE ANNUITY
LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Investment Officer
AMERICAN GENERAL LIFE
INSURANCE COMPANY
By:
---------------------------------
GULF LIFE INSURANCE COMPANY
By:
---------------------------------
FIRST ALLMERICA FINANCIAL
LIFE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxx
---------------------------------
ALLMERICA FINANCIAL LIFE
INSURANCE AND ANNUITY COMPANY
By: /s/ Xxxxx Xxxxx
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To Each of the Purchasers
December 15, 1997
Page 6
J. ROMEO & CO., as nominee for
THE MUTUAL LIFE INSURANCE
COMPANY OF NEW YORK
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
