Second Amendment to Purchase and Sale Agreement, dated December 8, 2017, by and among Whitehorse Energy, LLC, Whitehorse Energy Delaware, LLC, Whitehorse Delaware Operating, LLC, Siltstone Resources II - Permian, LLC, Siltstone Resources II-B - Permian, LLC, and Rosehill Operating Company, LLC
Exhibit 2.3
Execution Version
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
This Second Amendment to Purchase and Sale Agreement (this “Amendment”) is made on December 8, 2017, by and among Whitehorse Energy, LLC, a Delaware limited liability company, Whitehorse Energy Delaware, LLC, a Delaware limited liability company, and Whitehorse Delaware Operating, LLC, Delaware limited liability company, Siltstone Resources II - Permian, LLC, a Delaware limited liability company, Siltstone Resources II-B-Permian, LLC, a Delaware limited liability company (collectively, “Sellers” and each, a “Seller”), and Rosehill Operating Company, LLC, a Delaware limited liability company (“Buyer”). Sellers, on the one hand, and Buyer, on the other hand, are sometimes each referred to herein as a “Party” and collectively as the “Parties.”
WHEREAS, Sellers and Buyer are parties to that certain Purchase and Sale Agreement dated as of October 24, 2017 by and among Sellers, Buyer and Rosehill Resources Inc., a Delaware corporation, as amended by that certain First Amendment to Purchase and Sale Agreement dated as of November 30, 2017 (as amended from time to time, the “PSA”); and
WHEREAS, the Parties desire to amend the PSA as provided herein by executing this Amendment.
NOW, THEREFORE, for and in consideration of the mutual promises, representations, warranties, covenants, conditions and agreements contained herein, the benefits to be derived by each Party hereunder, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Sellers and Buyer agree as follows:
| 1. | Amendment to the PSA. |
| (a) | Schedule 4.4 to the PSA shall be amended by deleting the following item therein: |
| GGPA371002 | Gas Gathering and Processing Agreement | ETC Field Services LLC | Armor Petroleum Inc. | 9/1/2016 | HBP |
| (b) | Schedule 4.8 to the PSA shall be amended by deleting the following items therein: |
| GGPA371002 | Gas Gathering and Processing Agreement | ETC Field Services LLC | Armor Petroleum Inc. | 9/1/2016 | HBP | |||||
| JOA371006 | Joint Operating Agreement | BBM Drilling Company | Paul F. Barnhart et al | 1/18/1967 | HBP | |||||
| LA371001 | Letter Agreement | Armor Petroleum, Inc. | Whitehorse Energy Delaware, LLC | 6/27/2017 | 10/31/2017 | |||||
| 2. | Further Cooperation. Without limiting Section 13.5 of the PSA, each Party agrees to execute and deliver, or shall cause to be executed and delivered, from time to time such further documents, and shall take, or cause to be taken, such other actions as any Party may reasonably request in connection with the actions set forth on Exhibit A. |
| 3. | Confirmation. Except as otherwise provided herein, the provisions of the PSA shall remain in full force and effect in accordance with their respective terms following the execution of this Amendment. |
| 4. | Amendment and Ratification. This Amendment may be amended only by an instrument in writing executed by all Parties. This Amendment is entered into in connection with, and supplements the terms and provisions of, the PSA. The PSA and all other documents and instruments executed and delivered pursuant to the terms of the PSA are hereby amended so that any reference therein to the PSA shall mean a reference to the PSA as amended hereby. Except as expressly amended and supplemented by this Amendment, each Party hereby ratifies and confirms the terms and provisions of the PSA for all purposes and agrees that the PSA, as so amended and supplemented hereby, shall continue to be legal, valid, binding and enforceable in accordance with its terms. No supplement, amendment, alteration, modification, waiver or termination of this Amendment or the PSA shall be binding unless executed in writing by the Parties and specifically referencing this Amendment and the PSA as being supplemented, amended, altered, modified, waived or terminated. |
| 5. | Entire Agreement. THIS AMENDMENT, THE PSA, THE TRANSACTION DOCUMENTS AND THE EXHIBITS AND SCHEDULES ATTACHED HERETO AND THERETO, COLLECTIVELY CONSTITUTE THE ENTIRE AGREEMENT AMONG THE PARTIES PERTAINING TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ALL PRIOR AGREEMENTS, UNDERSTANDINGS, NEGOTIATIONS AND DISCUSSIONS, WHETHER ORAL OR WRITTEN, OF THE PARTIES PERTAINING TO THE SUBJECT MATTER HEREOF. THERE ARE NO WARRANTIES, REPRESENTATIONS OR OTHER AGREEMENTS AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF EXCEPT AS SPECIFICALLY SET FORTH IN THIS AMENDMENT, THE PSA AND THE TRANSACTION DOCUMENTS, AND NEITHER SELLERS NOR BUYER SHALL BE BOUND BY OR LIABLE FOR ANY ALLEGED REPRESENTATION, PROMISE, INDUCEMENT OR STATEMENTS OF INTENTION NOT SO SET FORTH. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF THIS AMENDMENT AND THE TERMS OF THE PSA, THE TERMS OF THIS AMENDMENT SHALL CONTROL; PROVIDED, HOWEVER, THAT THE INCLUSION IN THE PSA OF TERMS AND PROVISIONS NOT ADDRESSED IN THIS AMENDMENT SHALL NOT BE DEEMED A CONFLICT, AND ALL SUCH ADDITIONAL PROVISIONS SHALL BE GIVEN FULL FORCE AND EFFECT, SUBJECT TO THE PROVISIONS OF THIS SECTION 4. |
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| 6. | Assignment. No Party shall assign all or any part of this Amendment, nor shall any Party assign or delegate any of its rights or duties hereunder, without the prior written consent of the other Parties, such consent to be withheld for any reason, and any assignment or delegation made without such consent shall be void. |
| 7. | Miscellaneous: Capitalized terms used, but not defined herein, shall have the meanings given to those terms in the PSA. Sections 13.3 (Preparation of Agreement), 13.4 (Notices), 13.5 (Further Corporation), 13.7 (Parties in Interest), 13.9 (Waiver; Rights Cumulative), 13.10 (Governing Law; Jurisdiction), 13.11 (Severability), 13.12 (Counterparts), 13.13 (Joint and Several Liability), 13.14 (Siltstone Seller Representative) and 13.15 (Whitehorse Seller Representative) of the PSA shall apply to this Amendment as if set forth in full in this Amendment, mutatis mutandis. |
Signature Pages Follow
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IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first written above.
| SELLERS | ||
| WHITEHORSE ENERGY, LLC | ||
| By: | /s/ Brian H. Pettit | |
| Name: | Brian H. Pettit | |
| Title: | President & CEO | |
| WHITEHORSE ENERGY DELAWARE, LLC | ||
| By: | /s/ Brian H. Pettit | |
| Name: | Brian H. Pettit | |
| Title: | President & CEO | |
| WHITEHORSE DELAWARE OPERATING, LLC | ||
| By: | /s/ Brian H. Pettit | |
| Name: | Brian H. Pettit | |
| Title: | President & CEO | |
[Signature Page to Second Amendment to Purchase and Sale Agreement]
| SILTSTONE RESOURCES II - PERMIAN, LLC | ||
| By: | /s/ Michael J. Rosinski | |
| Name: | Michael J. Rosinski | |
| Title: | President | |
| SILTSTONE RESOURCES II-B-PERMIAN, LLC | ||
| By: | /s/ Michael J. Rosinski | |
| Name: | Michael J. Rosinski | |
| Title: | President | |
[Signature Page to Second Amendment to Purchase and Sale Agreement]
| BUYER | ||
| ROSEHILL OPERATING COMPANY, LLC | ||
| By: | /s/ J. A. Townsend | |
| Name: | J. A. Townsend | |
| Title: | President and Chief Executive Officer | |
[Signature Page to Second Amendment to Purchase and Sale Agreement]
