EXHIBIT 10.13
SECOND AMENDMENT TO PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is made as
of the 13th day of October, 1999 among Alliance Resources PLC, a public limited
company organized under the laws of England and Wales (the "Company"), and EnCap
Equity 1996 Limited Partnership, a Texas limited partnership ("EnCap LP"), and
Energy Capital Investment Company PLC, an English investment company ("ECIC")
(with EnCap LP and ECIC sometimes being herein collectively called "Buyer").
W I T N E S S E T H:
WHEREAS, the Company, EnCap LP and ECIC have heretofore entered into that
certain (i) Purchase Agreement dated as of October 27, 1998, and (ii) First
Amendment to Purchase Agreement dated as of July 30, 1999 (the documents
referred to in clauses (i) and (ii) of this paragraph being called the
"Agreement");
WHEREAS, the Company, American Rivers Oil Company, a Wyoming corporation,
and American Rivers Oil Company, a Delaware corporation ("AROC Delaware"), have
entered into that certain (i) Exchange and Merger Agreement dated as of July 22,
1999, and (ii) Amendment To Exchange and Merger Agreement dated October 13, 1999
(the documents referred to in clauses (i) and (ii) in this paragraph being
called the "Exchange and Merger Agreement"), pursuant to which, among other
things, AROC Delaware will offer (the "Offer") to exchange (a) one share of
common stock, par value $0.01 per share of AROC Delaware (the "AROC Delaware
Shares") for each ordinary share of 1p each in the capital of the Company and
(b) one convertible restricted voting share of AROC Delaware for each
convertible restricted voting share of 1p each in the capital of the Company
(the "Proposed Exchange");
WHEREAS, the Company has requested that (i) Buyer (a) consent to the
consummation of the Proposed Exchange pursuant to the terms of the Exchange and
Merger Agreement, (b) waive the Event of Default under 13.1(i) of the Agreement
to the extent the consummation of the Proposed Exchange results in an Event of
Default under the Purchase Agreement and (c) consent to the amendment to the
Senior Credit Facility and (ii) the Purchase Agreement be amended to change the
definition of "Change of Control" contained therein in connection with the
consummation of the Proposed Exchange; and
WHEREAS, subject to and upon the terms and conditions set forth herein,
Buyer is willing to enter into this Amendment and grant the consents and waivers
the Company has requested;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
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ARTICLE I. -- Definitions and References
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(S) 1.1. Terms Defined in the Agreement. Unless the context otherwise
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requires or unless otherwise expressly defined herein, the terms defined in the
Agreement shall have the same meanings whenever used in this Amendment.
(S) 1.2. Other Defined Terms. Unless the context otherwise requires, the
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following terms when used in this Amendment shall have the meanings assigned to
them in this (S) 1.2.
"Agreement" has the meaning assigned to it in the first recital to
this Amendment.
"Amendment" means this Second Amendment to Purchase Agreement.
"Amendment Documents" means this Amendment, the Consent and Agreement
of Subsidiary Guarantors attached hereto, and the other documents to be
delivered pursuant to Section 3.1(c).
"Exchange and Merger Agreement" has the meaning assigned to it in the
second recital to this Amendment.
"Proposed Exchange" has the meaning assigned to it in the second
recital to this Amendment.
"Purchase Agreement" means the Agreement as amended hereby.
ARTICLE II. -- Amendments to Agreement; Consents and Waivers
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(S) 2.1. Defined Terms.
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The definitions of "Change of Control" and "Senior Credit Facility" set
forth in Section 1.1 of the Agreement are hereby amended in their entirety to
read as follows:
"Change of Control" means the occurrence of any of the following
events: (a) any Person or two or more Persons, other than Buyer or any
affiliate of Buyer, acting as a group shall acquire beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Exchange Act, and including holding proxies to vote for the
election of directors other than proxies held by the AROC Inc.'s management
or their designees to be voted in favor of persons nominated by the AROC
Inc.'s Board of Directors) of 33% or more of the outstanding voting
securities of AROC Inc., measured by voting power (including both ordinary
shares and any preferred stock or other equity securities entitling the
holders thereof to vote with the holders of common stock in elections for
directors of AROC Inc.), exclusive of the issuance of AROC Inc. common
stock contemplated under the Proposed
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Exchange, (b) the Company shall cease to be a Subsidiary of AROC Inc., (c)
AROC Inc. shall sell, assign, transfer, convey or otherwise dispose of any
of the issued and outstanding voting share capital of the Company, (d) the
Company shall fail beneficially to own 100% of the outstanding shares of
voting capital stock of Manx or Difco on a fully-diluted basis, (e) Difco
shall fail beneficially to own 100% of the outstanding shares of voting
capital stock of Alliance Delaware on a fully-diluted basis, (f) Alliance
Delaware shall fail beneficially to own 100 % of the outstanding shares of
voting capital stock of Alliance Group and LRI on a fully-diluted basis,
(g) LRI shall fail beneficially to own 100% of the outstanding shares of
the voting capital stock of LPC, GOCA, New GOC or Enpro, on a fully-diluted
basis, (h) Alliance Group shall fail beneficially to own 100% of the
outstanding shares of the voting capital stock of Source, ARNO, ARCOL or
Alliance USA, (i) one-third or more of the directors of the Company shall
consist of persons not nominated by the Company's Board of Directors (not
including as Board nominees any directors which the Board is obligated to
nominate pursuant to shareholders agreements, voting trust arrangements or
similar arrangements) or (j) within three years of the Closing Date, the
employment by the Company of Xxxx Xxxxxx or Xxxx Xxxxxxxx terminates for
any reason.
"Senior Credit Facility" means that certain Third Amended and Restated
Credit Agreement dated October 27, 1998 by and among the Company, Alliance
USA, GOCA, LPC, New GOC and Source and Bank of America National Trust and
Savings Association, as amended by that certain First Amendment to Third
Amended and Restated Credit Agreement dated July 30, 1999, and as amended
by that certain Second Amendment to Third Amended and Restated Credit
Agreement dated October 13, 1999.
Section 1.1 of the Agreement is hereby amended by adding a new definition
of "AROC Inc." immediately following the definition of "ARCOL", to read as
follows:
"AROC Inc" means AROC Inc., a Delaware corporation, and the successor
by name change to American Rivers Oil Company, a Delaware corporation.
(S) 2.2 Consent and Waiver. Subject to and upon the terms and conditions
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set forth herein, and in reliance on the representations and warranties set
forth herein, Buyer hereby (i) consents to the consummation of the Proposed
Exchange pursuant to the terms of the Exchange and Merger Agreement as in effect
on the date hereof and waives any Default or Event of Default under Section
13.1(i) of the Agreement to the extent, but only to the extent, that the
consummation of the Proposed Exchange results in an Event of Default under the
Agreement.
(S) 2.3 Consent to Amendment of Senior Credit Facility. Buyer hereby
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consents to an amendment to the Senior Credit Facility of even date herewith,
substantially in the form of the final draft furnished to Buyer.
ARTICLE III. -- Conditions of Effectiveness
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(S) 3.1. Effective Date. This Amendment shall become effective as of the
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date first above written when and only when:
(a) the Company will deliver the following documents to Buyer:
(i) this Amendment, duly executed by the Company and each
Subsidiary Guarantor;
(ii) certified copy of a written consent or resolutions of the Board
of Directors of the Company authorizing the execution, delivery and
performance by the Company of this Amendment and the Amendment Documents,
as necessary;
(iii) Registration Rights Agreement, dated as of the date hereof, in
the form of Exhibit 3.1(c) attached hereto, and executed by American Rivers
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Oil Company; and
(iv) such other certificates, instruments, and documents as may be
reasonably requested by Buyer prior to the date hereof to carry out the
intent and purposes of this Amendment; and
(b) the Company pays all reasonable fees and expenses of Buyer (including
attorneys' fees and expenses) incurred by Buyer in connection with the Agreement
and in connection with the preparation, negotiation, execution and closing of
this Amendment.
ARTICLE IV. -- Representations and Warranties
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(S) 4.1. Representations and Warranties of the Company. To confirm
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Buyer's understanding concerning the Company's and its Subsidiaries' businesses,
properties and obligations, and to induce Buyer to enter into this Amendment,
the Company represents and warrants to Buyer that:
(a) (i) All the representations and warranties of the Company and its
Subsidiaries contained in the Purchase Agreement and Ancillary Documents
are true and correct in all material respects on and as of the date hereof
as if made on and as of such date, except as affected by transactions
permitted thereby, and except to the extent that any such representation or
warranty is made as of a specified date, in which case such representation
or warranty shall have been true and correct in all material respects as of
such specified date (for the sole purpose of determining whether or not any
of such representations and warranties are true and correct as aforesaid on
and as of the date hereof, no effect shall be given to any materiality
qualification contained in such representation or warranty), (ii) the
Company and its Subsidiaries have performed and complied with in all
material respects all covenants and agreements contained in the Purchase
Agreement and Ancillary Documents, and (iii) no Default or Event of Default
has occurred (except to the extent heretofore waived by Buyer in writing).
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(b) The Company and each Subsidiary Guarantor has full power and
authority to execute and deliver the Amendment Documents and to perform
their obligations thereunder, to the extent a party thereto, and to
consummate the transactions contemplated hereby and thereby. The
execution, delivery, and performance by the Company and each Subsidiary
Guarantor of the Amendment Documents, to the extent a party thereto, and
the consummation by it of the transactions contemplated hereby and thereby,
have been duly authorized by all necessary actions of the Company and each
Subsidiary Guarantor. The Amendment Documents have been duly executed and
delivered by the Company and each Subsidiary Guarantor, to the extent a
party thereto, and constitute, a valid and legally binding obligation of
the Company and each Subsidiary Guarantor, enforceable against the Company
and each Subsidiary Guarantor in accordance with their respective terms,
except that such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium, and similar laws
affecting creditors' rights generally and (ii) equitable principles which
may limit the availability of certain equitable remedies (such as specific
performance) in certain instances.
(c) The execution, delivery and performance of the Amendment Documents
by the Company and each Subsidiary Guarantor, to the extent a party
thereto, and the consummation by them of the transactions contemplated
hereby and thereby do not and will not (a) violate or conflict with the
Organic Documents of the Company or any Subsidiary, (b) conflict with or
result in any violation of any provision of, or constitute (with or without
the giving of notice or the passage of time or both) a default under, or
give rise (with or without the giving of notice or the passage of time or
both) to any right of termination, cancellation, or acceleration under, or
require any consent, approval, authorization or waiver of, or notice to,
any party to, any bond, debenture, note, mortgage, indenture, lease,
contract, agreement, or other instrument or obligation to which the Company
or any Subsidiary is a party or by which the Company or any Subsidiary or
any of their respective properties may be bound or any Permit held by the
Company or any Subsidiary, (iii) result in the creation or imposition of
any Lien upon the properties of the Company or any Subsidiary (other than
as provided in the Senior Credit Facility) or (iv) violate any Applicable
Law binding upon the Company or any Subsidiary.
(d) No consent, approval, authorization, license, order or permit of,
or declaration, filing or registration with, or notification to, any
Governmental Entity, or any other Person or entity, is required to be made
or obtained by the Company or any Subsidiary in connection with the
execution, delivery and performance of the Amendment Documents and the
consummation of the transactions contemplated hereby and thereby, exclusive
of those contemplated by the Exchange and Merger Agreement.
ARTICLE V. -- Miscellaneous
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(S) 5.1. Ratification of Agreements. The Agreement as hereby amended is
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hereby ratified and confirmed in all respects. The Purchase Agreement and
Ancillary Documents, as they may be amended or affected by the various Amendment
Documents, are hereby ratified and confirmed in all respects.
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Any reference to the Purchase Agreement in any Ancillary Document shall be
deemed to refer to this Amendment also, and any reference in the Purchase
Agreement or any Ancillary Document to any other document or instrument amended,
renewed, extended or otherwise affected by any Amendment Document shall also
refer to such Amendment Document. The execution, delivery and effectiveness of
this Amendment and the other Amendment Documents shall not, except as expressly
provided herein or therein, operate as a waiver of any right, power or remedy of
Buyer under the Purchase Agreement or any Ancillary Document nor constitute a
waiver of any provision of the Purchase Agreement or any Ancillary Document.
(S) 5.2. Survival of Agreements. All representations, warranties,
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covenants and agreements of the Company herein shall survive the execution and
delivery of this Amendment and the performance hereof, and shall further survive
until all of the Obligations are paid in full. All statements and agreements
contained in any certificate or instrument delivered by the Company or any
Subsidiary Guarantor hereunder or under the Purchase Agreement to Buyer shall be
deemed to constitute representations and warranties by, or agreements and
covenants of, the Company under this Amendment and under the Purchase Agreement.
(S) 5.3. Ancillary Documents. This Amendment and the other Amendment
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Documents are each an Ancillary Document, and all provisions in the Purchase
Agreement pertaining to Ancillary Documents apply hereto and thereto.
(S) 5.4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
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AND ENFORCED IN ACCORDANCE WITH THE LAWS OF ENGLAND AND WALES, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
(S) 5.5. Entire Agreement. This Agreement, together with the Schedules
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and other writings referred to herein or delivered pursuant hereto, constitute
the entire agreement between the parties hereto with respect to the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
(S) 5.6. Counterparts. This Amendment may be separately executed in
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counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
ENCAP EQUITY 1996 LIMITED PARTNERSHIP
By: ENCAP INVESTMENTS L.L.C., General Partner
By:
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Managing Director
ENERGY CAPITAL INVESTMENT COMPANY PLC
By:
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Xxxx X. Xxxxxxxx, Director
ALLIANCE RESOURCES PLC
By:
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Xxxxxxx X. Xxxxxxxxxx, Authorized Signatory
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CONSENT AND AGREEMENT
The undersigned hereby (i) consents to the execution and delivery of (a)
that certain Second Amendment to Purchase Agreement (the "Amendment") by and
among Alliance Resources PLC, a public limited company organized under the laws
of England and Wales (the "Company"), and EnCap Equity 1996 Limited Partnership,
a Texas limited partnership ("EnCap LP"), and Energy Capital Investment Company
PLC, an English investment company ("ECIC") (with EnCap LP and ECIC sometimes
being herein collectively called "Buyer"), amending the Agreement (as defined
in the Amendment), and (b) the other documents and instruments executed in
connection therewith, including without limitation the execution and delivery of
the other Amendment Documents, and to the provisions and transactions
contemplated therein, and (ii) ratifies and confirms that its Subsidiary
Guarantee and any other security or other documents, agreements or instruments
(collectively, the "Security Documents") delivered by it to Buyer in connection
with the Purchase Agreement or any transaction contemplated therein and agree
that all of its respective obligations and covenants thereunder (to the extent
it is a party thereto) shall remain unimpaired by the execution and delivery of
the Amendment and the other documents and instruments executed in connection
therewith and that the Security Documents to which it is a party shall remain in
full force and effect.
IN WITNESS WHEREOF, this Consent and Agreement is executed by the
undersigned as of October 13, 1999.
DIFCO LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Authorized Signatory
ALLIANCE RESOURCES GROUP, INC.
ALLIANCE RESOURCES (USA), INC.
SOURCE PETROLEUM, INC.
LATEX RESOURCES, INC.
LATEX PETROLEUM CORPORATION
LATEX/GOC ACQUISITION, INC.
GERMANY OIL COMPANY
ENPRO, INC.
ALLIANCE RESOURCES (DELAWARE), INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx, Vice President
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