FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
Exhibit 10.1
This FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this “Amendment”) is made as of the
10th day of July, 2009, by and among Seminole Gas Company, L.L.C., an Oklahoma limited
liability company (the “Buyer”), NGAS Gathering, LLC, a Kentucky limited liability company (“NGL”),
Xxxxxxxxx Petroleum, Inc., a Kentucky corporation (“DPI” and, collectively with NGL, the
“Sellers”), and NGAS Gathering II, LLC, a Kentucky limited liability company wholly owned by DPI
(“New NGAS Gathering”). Sellers and Buyer are sometimes referred to herein individually as a
“Party” and collectively as the “Parties.”
RECITALS
A. Reference is made to that certain Asset Purchase Agreement (the “Agreement”) dated as of
May 11, 2009, by and between Sellers and Buyer, regarding the proposed sale of Seller’s right,
title and interest in the Gathering Assets (as defined in the Agreement).
B. Seller and Buyer desire to amend the Agreement, as set forth herein, relating to certain
matters reflected herein.
C. All capitalized terms used herein but not otherwise defined herein shall have the meanings
attributed to them in the Agreement.
NOW, THEREFORE, for good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the Parties hereby amend the Agreement and agree as follows:
1. Amendments. The Agreement is hereby amended as follows:
(i) Amendment to Article 1. Article 1 is hereby amended by modifying each
of the defined terms below to read in their entirety as follows:
“Ancillary Option Agreements” means each of the agreements and instruments
pertaining to any exercise of an NGAS Options, in accordance with terms
thereof, as set forth on Exhibit O, and the Xxx Xxx ROFR, in
accordance with the terms thereof, as set forth on Schedule H.
“Closing Date” means subject to the satisfaction of the conditions to
Closing set forth in Article 6, 10:00 a.m., Eastern Time, July 15,
2009, or such other date as may be mutually agreed by Buyer and Sellers in
writing.
“Equity Releases” has the meaning set forth in Exhibit O.
“NAESB Purchase Agreement” means the NAESB form gas purchase agreement,
together with the special provisions and any confirmations provided
thereunder and including the Forward Sales Agreement, by and between DPI, on
behalf of itself and the other DPI Producers, and SES, in substantially the
form of Exhibit I. The NAESB Purchase Agreement will be effective as of the
Effective Date, but to the extent Closing occurs on a date that is other
than the first of a calendar month, then the Gathering Fees thereunder shall
be prorated for the month in which Closing occurs, any volumes delivered by
DPI during the remainder of the calendar month in which Closing occurs shall
be deemed gathered (not purchased) by SES thereunder, and the purchase of
volumes of gas thereunder shall commence on the first day of the calendar
month immediately following the month in which closing occurs.
“NGAS Mortgages” means the instruments pursuant to which Sellers grant Buyer
a first priority Lien on all of the Retained Gathering Assets to secure the
performance of the Seller Secured Obligations, in substantially the form of
Exhibit M-1, as modified to accommodate recording practices and
statutory references in Kentucky, Tennessee and Virginia.
“NGAS Option Promissory Note” has the meaning set forth in Exhibit
O.
“NGAS Options,” “NGAS Option Promissory Note” and “NGAS Options Price” have
the meanings set forth in Exhibit O.
“Put Notice” has the meaning set forth in Exhibit O.
“Seminole Mortgages” means the instruments pursuant to which Buyer grants
New NGAS Gathering a Lien on all of the Purchased Assets, subordinated and
second in priority to the Liens in favor of International Bank of Commerce,
a Texas state banking association, to secure the performance of the Buyer
Secured Obligations, in substantially the form of Exhibit M-2, as
modified to accommodate recording practices and statutory references in
Kentucky, Tennessee and Virginia.
(ii) Amendment to Section 2.2. Section 2.2 is hereby amended by
restating the second to last sentence of Section 2.2 in its entirety to read
as follows:
“At the Closing, and subject to all of the terms and conditions of this
Agreement, in consideration of the (a) Sellers’ sale, transfer, assignment,
conveyance and delivery to Buyer of the Purchase Assets, free and clear of
all Liens (other than Permitted Encumbrances), (b) Sellers’ granting of the
NGAS Options, (c) DPI’s granting of the Xxx Xxx ROFR and (d) the Ancillary
Agreements and the other agreements and actions of Sellers (and certain
Affiliates of Sellers) contemplated by this Article 2, the Buyer
shall pay to the Sellers $28,000,000 (the “Purchase Price”), subject to any
adjustments contemplated in Sections 2.5, 5.1(b) and
9.1, by wire transfer on the Closing Date to KeyBank National
Association (as agent for all lenders under the NGAS Credit Agreement), for
the benefit of all Sellers, to be applied as a partial repayment of
outstanding borrowings under the NGAS Credit Agreement.”
(iii) Amendment to Section 2.11. Section 2.11 is hereby amended by
restating the second to last sentence of Section 2.11 in its entirety to
read as follows:
“In addition, the NAESB Purchase Agreement shall specify the terms of the
Forward Sales Agreement to be entered into at Closing.”
(iv) Amendment to Section 2.13. Section 2.13 is hereby amended by
restating paragraphs (a) and (c) in their entirety, each to read as follows:
“(a) NGAS Options. New NGAS Gathering and DPI shall grant to SES
the NGAS Options on the terms and conditions set forth in Schedule
O.”
(c) “Covenants. Sellers, Buyer and the Guarantors shall comply with
and perform, or cause to be complied with and performed, all of their
respective covenants and agreements pertaining to the NGAS Options and the
Xxx Xxx ROFR set forth in Exhibit O and Schedule H attached
hereto, respectively.”
(v) Amendment to Section 2.14. Section 2.14 is hereby amended by
restating subsection (b) in its entirety to read as follows:
“(b) If an NGAS Option is exercised, whether by SES or in accordance with
the put options provisions thereof, Buyer shall pay to the Sellers
$7,500,000, by wire transfer to KeyBank National Association (as agent for
all lenders under the NGAS Credit Agreement), for the benefit of all
Sellers, to be applied as a partial repayment of outstanding borrowings
under the NGAS Credit Agreement.
(vi) Amendment to Article 5. Article 5 is hereby amended by added
new Section 5.3 to read as follows:
“5.3 Covenants Regarding NGAS Credit Agreement. DPI shall not
authorize or permit, and New NGAS Gathering agrees, that New NGAS Gathering
shall not enter into or amend, modify or supplement any agreements,
guarantees, mortgages executed by New NGAS Gathering pursuant to the terms
of the NGAS Credit Agreement, such that any obligations pursuant to such
agreements, guarantees, mortgages of New NGAS Gathering exceed in the
aggregate $7,500,000.
(vii) Amendment to Section 11.1. Section 11.1 is hereby amended by
restating Section 11.1 in its entirety to read as follows:
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“11.1 Entire Agreement; Amendment. This Agreement and the documents
referred to herein to be delivered pursuant hereto constitute the entire
agreement between the Parties pertaining to the subject matter hereof, and
supersede all prior and contemporaneous agreements, understandings,
negotiations and discussions of the Parties, whether oral or written, and
there are no warranties, representations or other agreements between the
Parties in connection with the subject matter hereof, except as specifically
set forth herein or therein. Except as otherwise contemplated in Exhibit
O attached hereto, no amendment, supplement, modification or termination
of this Agreement shall be binding unless executed in writing by the Party
to be bound thereby. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision of this
Agreement, whether or not similar, nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided.”
(viii) Amendment to Exhibits. Each Exhibit to the Agreement is hereby
restated and replaced with the exhibit attached hereto in the same corresponding
numerical sequence as such Exhibits were attached to the Agreement as of the
original date of execution.
(ix) Amendment to Exhibit O. A new Exhibit O is hereby added to the
Agreement in proper numerical sequence in the form attached hereto as Exhibit
O.
(x) Amendment to Schedule A. Schedule A is hereby restated and
replaced with the exhibit attached hereto as Schedule A.
(xi) Amendment to Schedule G. Schedule G is hereby restated and
replaced with the exhibit attached hereto as Schedule G.
(xii) Amendment to Schedule H. Schedule H is hereby restated and
replaced with the exhibit attached hereto as Schedule H.
(xiii) Amendment to Schedule 2.14(c). Schedule 2.14(c) is hereby
restated and replaced with the exhibit attached hereto as Schedule 2.14(c).
(xiv) The Agreement is hereby amended to correctly state Seminole Gas Company, an
Oklahoma corporation as Seminole Gas Company, L.L.C., an Oklahoma limited liability
company. Seminole Gas Company, L.L.C. ratifies and confirms the Agreement as if
originally stated therein. This name change relates back for all purposes to the
date of the Agreement.
2. Ratification: Except as amended by this Amendment, all of the terms and provisions
of the Agreement are hereby ratified and affirmed in all respects and are incorporated herein by
reference.
3. Entire Agreement. The Agreement (and the Exhibits and Schedules thereto), as
amended by this Amendment, constitutes the entire agreement of the parties with regard to the
subject matter hereof and supersedes any prior oral or written agreements or understandings.
4. Counterparts. This Amendment may be executed in one or more counterparts
(including faxed or electronic counterparts), all of which shall be considered one and the same
agreement, and shall become effective when one or more counterparts hereof have been signed by each
of the Parties and delivered to the other Party.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, this Amendment has been signed by or on behalf of each of the Parties as
of the date first above written.
| NGAS GATHERING, LLC |
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| By: | XXXXXXXXX PETROLEUM, INC. | |||
| its Sole Member | ||||
| By: | /s/ Xxxxxxx X. Xxxx III | |||
| Xxxxxxx X. Xxxx III, | ||||
| Chief Executive Officer | ||||
| XXXXXXXXX PETROLEUM, INC. |
||||
| By: | ./s/ Xxxxxxx X. Xxxx III | |||
| Xxxxxxx X. Xxxx III, | ||||
| Chief Executive Officer | ||||
| NGAS GATHERING II, LLC |
||||
| By: | ./s/ Xxxxxxx X. Xxxx III | |||
| Xxxxxxx X. Xxxx III, | ||||
| Chief Executive Officer | ||||
| SEMINOLE GAS COMPANY, L.L.C. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Xxxxxx X. Xxxxxx, Xx., | ||||
| President | ||||
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