SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Under Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (date of earliest event reported): November 19, 1998
FUTURE PETROLEUM CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Utah 0-8609 87-0239185
(State or other jurisdiction of (Commission (IRS Employer
incorporation or organization) File Number) Identification No.)
2351 West Northwest Highway
Suite 2130, Dallas, Texas 75220
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, including Area Code: (214) 350-7602
N/A
(Former name, former address, and formal fiscal year, if
changed since last report)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On November 19, 1998, Future Petroleum Corporation (the "Company")
completed the acquisition of additional oil and gas properties in connection
with its ongoing expansion efforts. Such acquisition included interests in
the Foster /S. Cowden Field located in Ector County, Texas, the Turtle Creek
Field located in Matagorda County, Texas, the San Miguel Creek Field located
in McMullen County, Texas, the Leroy North Field located in Vermillion
Parish, Louisiana, and the Cheniere Field located in Ouachita Parish,
Louisiana. All of the properties were acquired from Bargo Energy Resources,
Ltd., a Texas limited partnership and a principal shareholder of the Company
("Bargo"), who had acquired the properties on the same date from Cody Energy,
Inc., a Delaware corporation, and Cody Texas, L.P. a Texas limited
partnership. Under the terms of the agreement between the Company the Bargo,
Bargo has the option to repurchase the properties from the Company within 90
days from the date of closing.
The primary producing formations include Frio for the North Leroy
Field, the Edwards for the Sand Miguel, Frio for the Turtle Creek Field, the
Grayburg/Canyon for the Foster/Cowden and the Cadeville for the Cheniere
Field. The properties include interests in 52 producing oil and natural gas
wells. The Company will not be the operator on a portion of the acquired
wells.
As of August 1, 1998, the acquired properties had aggregate estimated
net total proved reserves of 517 thousand barrels of oil and 18.786 billion
cubic feet of natural gas, or 21.886 billion cubic feet equivalent.
The aggregate purchase price for the properties acquired was $4.467
million in cash. The Company financed the purchase of the properties by
increasing the borrowing base under the credit agreement with Bank of America
established in August 1998 and borrowing such funds from Bank of America. As
amended, the maximum commitment amount was increased to $27.5 million and the
Company's current borrowing base was increased to $24.2 million.
Because of the ownership by Bargo of a substantial portion of the
issued and outstanding stock of the Company, the terms of the purchase were
not deemed to be the result of arm's length negotiations. All members of the
board of directors, including those designated by Bargo, unanimously approved
the terms of the transaction and believe them to be fair to the Company from
a financial point of view.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
a) Financial statements required by this item will be filed by amendment
as soon as practicable, but no later than 60 days after the filing of
this report on Form 8-K.
c) Exhibits
The following exhibits are included as part of this report:
SEC
Exhibit Reference
Number Number Title of Document Location
- -------------------------------------------------------------------------------
Item 10 Material Contracts
- -------------------------------------------------------------------------------
10.01 10 Purchase and Sale Agreement between Bargo This filing
Energy Resources, Ltd. ("Bargo"), as Seller, and
the Company, as Buyer, dated November 13, 1998
10.02 10 Amendment No. 1 to Credit Agreement between This filing
Bank of America National Trust and Savings
Association ("Bank of America") and the Company,
dated November 16, 1998
10.03 10 Amended and Restated Secured Promissory Note This filing
of the Company payable to Bank of America
dated November 18, 1998
10.04 10 First Amendment to Pledge Agreement This filing
between Bank of America, as secured party, and
each of the Company, Future Energy Corporation
("Future Nevada"), Future Petroleum Corporation
("Future Texas"), EnCap Equity 1994, Ltd.,
Energy Capital Investment Company PLC, Bargo
Energy Resources, Ltd, B. Carl Price, and Don Wm.
Reynolds, as debtors, dated November 18, 1998
10.05 10 First Amendment to Security Agreement This filing
between Bank of America, as lender, and each of
the Company, Future Nevada, Future Texas, Future
CAL-TEX Corporation ("Future CAL-TEX"), BMC
Development No. 1 Limited Partnership ("BMC"),
Future Acquisition 1995, Ltd. ("Future 1995"),
and NCI-Shawnee Limited Partnership ("NCI-
Shawnee"), as debtors, dated November 18, 1998
10.06 10 First Amendment to Guaranty between This filing
Bank of America, as lender, and each of Future
Utah, Future Nevada, Future Texas, Future
CAL-TEX, BMC, Future 1995, and NCI-Shawnee,
as guarantors, dated November 18, 1998
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, hereunto duly authorized.
Dated: December 4, 1998
FUTURE PETROLEUM CORPORATION
By /s/ B. Carl Price, President
EXHIBIT INDEX
SEC
Exhibit Reference
Number Number Title of Document Location
- -------------------------------------------------------------------------------
Item 10 Material Contracts
- -------------------------------------------------------------------------------
10.01 10 Purchase and Sale Agreement between Bargo This filing
Energy Resources, Ltd. ("Bargo"), as Seller, and
the Company, as Buyer, dated November 13, 1998
10.02 10 Amendment No. 1 to Credit Agreement between This filing
Bank of America National Trust and Savings
Association ("Bank of America") and the Company,
dated November 16, 1998
10.03 10 Amended and Restated Secured Promissory Note This filing
of the Company payable to Bank of America
dated November 18, 1998
10.04 10 First Amendment to Pledge Agreement This filing
between Bank of America, as secured party, and
each of the Company, Future Energy Corporation
("Future Nevada"), Future Petroleum Corporation
("Future Texas"), EnCap Equity 1994, Ltd.,
Energy Capital Investment Company PLC, Bargo
Energy Resources, Ltd, B. Carl Price, and Don Wm.
Reynolds, as debtors, dated November 18, 1998
10.05 10 First Amendment to Security Agreement This filing
between Bank of America, as lender, and each of
the Company, Future Nevada, Future Texas, Future
CAL-TEX Corporation ("Future CAL-TEX"), BMC
Development No. 1 Limited Partnership ("BMC"),
Future Acquisition 1995, Ltd. ("Future 1995"),
and NCI-Shawnee Limited Partnership ("NCI-
Shawnee"), as debtors, dated November 18, 1998
10.06 10 First Amendment to Guaranty between This filing
Bank of America, as lender, and each of Future
Utah, Future Nevada, Future Texas, Future
CAL-TEX, BMC, Future 1995, and NCI-Shawnee,
as guarantors, dated November 18, 1998
EXHIBIT 10.01
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is made and entered
into as of the 13th day of November, 1998, by and between BARGO ENERGY
RESOURCES, LTD., a Texas limited partnership, whose address is 700 Louisiana
Street, Suite 3700, Houston, Texas 77002 (herein called "Bargo"), and FUTURE
ACQUISITION 1995 LTD., a Texas limited partnership, whose address is 2351 W.
Northwest Highway, Suite 2130, Dallas, Texas 75220 (herein called "Future").
W I T N E S S E T H:
WHEREAS, Bargo has entered into a certain Purchase and Sale Agreement dated
September 30, 1998 (the "Cody Agreement") with Cody Energy, Inc., a Delaware
corporation, and Cody Texas, L.P., a Texas limited partnership (collectively,
"Cody"), a copy of which is attached hereto as Exhibit I, whereby Bargo has
agreed to purchase certain oil and gas properties, leases, wells, equipment,
related contract rights and other assets located in Ouachita and Vermilion
Parishes, Louisiana, and in Clarke and Marion Counties, Mississippi, and in
Brazos, Burleson, Fayette, Ector, Jackson, Matagorda and McMullen Counties,
Texas (the "Assets"), effective as of August 1, 1998 at 7:00 a.m. local time at
the location of the Assets, and reference is here made to the Cody Agreement for
a more particular description of the Assets and for all other pertinent
purposes; and
WHEREAS, Bargo has agreed to sell the Assets to Future, and Future has
agreed to purchase the Assets from Bargo, on the terms and conditions set forth
in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Bargo and Future hereby agree as
follows:
1. Sale and Purchase of Assets. Bargo, as "Seller" (herein so defined)
shall sell, transfer and assign to Future, as "Buyer" (herein so defined), and
Future shall purchase and receive from Bargo, all of the Assets described in the
Cody Agreement on all of the same terms and conditions as are set forth in the
Cody Agreement except as specifically modified by this Agreement. It is the
intention of the parties that the sale from Bargo to Future shall occur
immediately following Bargo's acquisition of the Assets from Cody, and Bargo and
Future each agree to use their best efforts to accomplish the Closing in such
manner. All defined terms in the Cody Agreement shall have the same meaning in
this Agreement except as otherwise specifically provided herein.
2. Effective Date. The effective date of the sale of the Assets from
Bargo to Future shall be August 1, 1998, at 7:00 a.m. local time at the location
of the Assets (the "Effective Date").
3. Purchase Price. As consideration for the sale of the Assets, Future
shall pay to Bargo the sum of $8,350,000.00 (the "Purchase Price") in
immediately available funds at the Closing, subject to adjustment in the same
manner as is provided in the Cody Agreement. Future acknowledges that Bargo has
deposited with Cody the sum of $600,000.00 as a Deposit in accordance with
Section 2.2 of the Cody Agreement. At Closing, Future shall pay $600,000.00 of
the Purchase Price directly to Bargo in immediately available funds, and the
balance (adjusted as herein provided) shall be paid either directly to Bargo or
to such party or parties as Bargo may specifically direct by written
instructions to Future.
4. Title, Environmental and Other Due Diligence Review. Future
acknowledges that it has received copies of the title, environmental and other
due diligence review conducted by Bargo with respect to the Assets and has
approved same, subject only to satisfaction of material matters, if any, for
which Bargo has the right to object and has in fact submitted objections to Cody
as permitted under the Cody Agreement. Certain preferential rights to purchase
exist with respect to the Assets, and waivers of such rights may not have been
obtained or expiration of the period for exercise of such rights may not have
occurred as of the Closing of the sale from Cody to Bargo. Time does not allow
for obtaining such waivers prior to the Closing of the sale from Bargo to
Future, but Future agrees to honor any such validly exercised preferential
rights to purchase made by third parties with respect to the sale of the Assets
by Cody to Bargo or by Bargo to Future. Bargo agrees to send all notices of
transfer and to use its best efforts to obtain waivers of all consents or
preferential rights to purchase affecting the Assets. In the event any
preferential rights to purchase are validly exercised with respect to the
transfer from Cody to Bargo or from Bargo to Future and Future does not receive
payment from the party exercising such rights in the amount of the allocated
value of the affected portion of the Assets, Bargo agrees to indemnify Future
from any loss as a result of (i) the failure to receive the payment properly due
as the result of the valid exercise of any such preferential rights to purchase,
or (ii) any claim made by the holder of such rights arising out of the failure
to send such notice and offer such right to purchase prior to the Closing.
Bargo and Future agree to each use their respective best efforts to resolve
and/or waive any such objectionable matters to the reasonable satisfaction of
the parties prior to or within a reasonable time following the Closing.
5. Closing. The closing of the sale from Bargo to Future ("Closing")
shall occur on or about November 16, 1998 immediately following the Closing
under the Cody Agreement. In the event the Closing under the Cody Agreement is
extended, the Closing under this Agreement shall be automatically extended to
coincide with the extended date of Closing under the Cody Agreement without the
requirement of further action by Bargo or Future; provided, however, in no event
shall the date of Closing be extended to a date later than November 30, 1998
without Future's written consent. Bargo shall convey the Assets to Future by an
instrument of conveyance in the form of the Assignment, Conveyance and Bill of
Sale attached hereto as Exhibit II.
6. Assumption and Indemnity. Except as provided in the immediately
succeeding paragraph in this Section 6, upon Closing, as a part of the
consideration for the purchase of the Assets, Future hereby assumes and agrees
to comply with and perform prior to default all of the duties, obligations and
liabilities of Bargo created under or by virtue of the Cody Agreement or
otherwise with respect to the ownership and/or operation of the Assets. Future
further hereby agrees to indemnify and hold Bargo, its partners, affiliates,
officers, agents and employees harmless from and against any and all claims,
demands, losses, liabilities, liens, judgments, settlements, suits, causes of
action, fines, penalties, fees (including, without limitation, attorney's fees),
costs and expenses, whether based on any theory of tort, breach of contract,
strict liability or statutory liability, arising from, resulting from or related
to the ownership or operation of the Assets, whether arising under the Cody
Agreement or otherwise.
Notwithstanding the immediately preceding paragraph in this Section 6,
Bargo agrees to indemnify and hold Future, its partners, affiliates, officers,
agents and employees harmless from and against any and all claims, demands,
losses, liabilities, liens, judgments, settlements, suits, causes of action,
fines, penalties, fees (including, without limitation, attorney's fees), costs
and expenses, whether based on any theory of tort, breach of contract, strict
liability or statutory liability, whether arising under the Cody Agreement or
otherwise, which are attributable to the gross negligence, fraud or intentional
and willful misconduct of Bargo in connection with the transactions contemplated
by this Agreement.
7. Option to Repurchase. As a part of the consideration for the purchase
of the Assets, Future hereby grants to Bargo an exclusive option to repurchase
the Assets (or such portion thereof as is remaining after the exercise of
preferential rights to purchase by third parties) exercisable at any time prior
to the expiration of ninety (90) days following the Closing of the purchase of
the Assets by Future from Bargo. Such option shall be exercisable by delivery
by Bargo of written notice of exercise to Future on or before the expiration of
said 90 day period. The terms of purchase if the option is exercised shall be
at the same price, with the same Effective Date and on all of the same other
terms and conditions as are provided in this Agreement, except that Bargo shall
have no obligation or liability for any torts or breaches of contract committed
by Future during the period of its ownership of the Assets. In the event Bargo
repurchases the Assets, then upon closing of such transaction Bargo shall assume
and agree to comply with and perform prior to default all of the duties,
obligations and liabilities of Bargo created under or by virtue of the Cody
Agreement or otherwise with respect to the ownership and/or operation of the
Assets attributable to the period from and after the effective date of the
transfer. In the event Bargo repurchases the Assets, then upon closing of such
transaction Bargo further hereby agrees to indemnify and hold Future, its
partners, affiliates, officers, agents and employees harmless from and against
any and all claims, demands, losses, liabilities, liens, judgments, settlements,
suits, causes of action, fines, penalties, fees (including, without limitation,
attorney's fees), costs and expenses, whether based on any theory of tort,
breach of contract, strict liability or statutory liability, arising from,
resulting from or related to the ownership or operation of the Assets, whether
arising under the Cody Agreement or otherwise, attributable to the period from
and after the effective date of the transfer.
8. Representations and Warranties of Bargo. In lieu of the
representations and warranties contained in Article 6 of the Cody Agreement,
Bargo represents and warrants to Future as follows:
(a) Bargo is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Texas, and has all requisite
power and authority to own and lease the properties and assets it currently owns
and leases and to carry on its business as such business is currently conducted.
(b) Bargo has all requisite power and authority to execute and
deliver this Agreement, to consummate the transactions contemplated hereby and
to perform all the terms and conditions hereof to be performed by it. The
execution and delivery of this Agreement by Bargo, the performance by Bargo of
all the terms and conditions hereof to be performed by it and the consummation
of the transactions contemplated hereby have been, or will be, duly authorized
and approved by the requisite partners of Bargo. This Agreement has been duly
executed and delivered by Bargo and constitutes the valid and binding obligation
of Bargo, enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or other laws relating
to or affecting the enforcement of creditors' rights generally and general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) There is no action, suit, proceeding or governmental
investigation or inquiry pending, or to the knowledge of Bargo, threatened
against Bargo or its affiliates or subsidiaries that might delay, prevent or
hinder the consummation of the transactions contemplated hereby.
(d) The Cody Agreement is in full force and effect as of the date
hereof, and Bargo has not transferred any of Bargo's rights or interests in and
to the Cody Agreement or the Assets prior to the execution of this Agreement.
9. Representations and Warranties of Future. In lieu of the
representations and warranties contained in Article 7 of the Cody Agreement,
Future represents and warrants to Bargo as follows:
(a) Future is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Texas, and has all requisite
power and authority to own and lease the properties and assets it currently owns
and leases and to carry on its business as such business is currently conducted.
(b) Future has all requisite power and authority to execute and
deliver this Agreement, to consummate the transactions contemplated hereby and
to perform all the terms and conditions hereof to be performed by it. The
execution and delivery of this Agreement by Future, the performance by Future of
all the terms and conditions hereof to be performed by it and the consummation
of the transactions contemplated hereby have been duly authorized and approved
by the requisite partners of Future. This Agreement has been duly executed and
delivered by Future and constitutes the valid and binding obligation of Future,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or other laws relating
to or affecting the enforcement of creditors' rights generally and general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) There is no action, suit, proceeding or governmental
investigation or inquiry pending, or to the knowledge of Future, threatened
against Future or its affiliates or subsidiaries that might delay, prevent or
hinder the consummation of the transactions contemplated hereby.
10. Notices. All notices and other communications required or permitted
under this Agreement shall be in writing and shall be deemed to have been duly
made if delivered by (i) personal delivery, (ii) recognized third party
messenger or overnight delivery service, (iii) telecopy or facsimile
transmission, or (iv) deposit into the custody of the United States Postal
Service, postage prepaid, first class certified mail, return receipt requested.
Notice given in accordance herewith shall be effective upon receipt at the
address of the addressee. For purposes of notice, the addresses of the parties
shall be as follows:
All notices to Bargo shall be delivered to:
Bargo Energy Resources, Ltd.
700 Louisiana Street, Suite 3700
Houston, Texas 77002
Attention: Mr. Tim J. Goff
Phone: (713) 236-9792
Fax: (713) 236-9799
All notices to Future shall be delivered to:
Future Acquisition 1995 Ltd.
2351 W. Northwest Highway, Suite 2130
Dallas, Texas 75220
Attention: Mr. B. Carl Price
Phone: (214) 350-7602
Fax: (214) 350-8382
11. Amendments. This Agreement may not be amended nor any rights
hereunder waived except by an instrument in writing signed by the party to be
charged with such amendment or waiver and delivered by such party to the party
claiming the benefit of such amendment or waiver.
12. Headings. The headings of the articles and sections of this Agreement
are for guidance and convenience of reference only and shall not limit or
otherwise affect any of the terms or provisions of this Agreement.
13. Counterparts. This Agreement may be executed by in any number of
counterparts, each of which shall be deemed an original instrument, but all of
which together shall constitute but one and the same instrument.
14. References. References made in this Agreement, including use of a
pronoun, shall be deemed to include, where applicable, masculine, feminine,
neuter, singular or plural, individuals, partnerships or corporations. As used
in this Agreement, "person" shall mean any natural person, corporation,
partnership, trust, estate or other entity.
15. Governing Law. This Agreement and the transactions contemplated
hereby shall be construed in accordance with, and governed by, the laws of the
State of Texas.
16. Entire Agreement. This Agreement (including the Exhibits hereto)
constitutes the entire understanding among the parties with respect to the
subject matter hereof, superseding all negotiations, prior discussions and prior
agreements and understandings relating to such subject matter.
17. Parties in Interest. This Agreement shall be binding upon and shall
inure to the benefit of, the parties hereto and, except as otherwise prohibited,
their respective successors and assigns; and except as otherwise stated herein,
nothing contained in this Agreement, or implied herefrom, is intended to confer
upon any other person or entity any benefits, rights or remedies.
18. Assignment. Except as otherwise provided herein, the parties may
assign all or any portion of their respective rights or delegate any portion of
their duties hereunder, so long as the respective assigning parties remain
liable for the performance of their obligations hereunder.
19. Public Announcements. The parties hereto agree that prior to making
any public announcement or statement with respect to the transactions
contemplated by this Agreement, the party desiring to make such public
announcement or statement shall consult with the other party hereto and exercise
their best efforts to agree upon the text of a joint public announcement or
statement to be made solely by one party, as the case may be; provided, however,
if either party is required by law, by a listing agreement, or by the rules and
regulations of any securities exchange to make such public announcement or
statement, then the same may be made without the approval of the other party.
The opinion of counsel of either party shall be conclusive evidence of such
requirement.
20. Severability. If a court of competent jurisdiction determines that
any clause or provision of this Agreement is void, illegal or unenforceable, the
other clauses and provisions of the Agreement shall remain in full force and
effect and the clauses and provisions which are determined to be void, illegal
unenforceable shall be limited so that they shall remain in effect to the extent
permissible by law.
[The remainder of this page is intentionally left blank]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
BARGO ENERGY RESOURCES, LTD.
By: Bargo Operating Company, Inc., its
General Partner
By /s/ Tim J. Goff
Tim J. Goff, President
FUTURE ACQUISITION 1995 LTD.
By: Future Petroleum Corporation, its
General Partner
By /s/ Carl Price
Name: B. Carl Price
Title: President
EXHIBIT I
[Please contact the Company for a copy of Cody Agreement]
EXHIBIT II
Recording requested by and
when recorded return to:
Mr. S. Michael Gibson
Bargo Energy Resources, Ltd.
700 Louisiana Street, Suite 3700
Houston, Texas 77002
ASSIGNMENT, CONVEYANCE AND BILL OF SALE
THE STATE OF )
)SS.
COUNTY OF )
WHEREAS, reference is made to that certain Assignment, Bill of Sale and
Conveyance dated effective August 1, 1998 (a copy of which is attached hereto as
Annex I and incorporated herein for all purposes), from Cody Energy, Inc. [or
Cody Texas, L.P., as appropriate] to BARGO ENERGY RESOURCES, LTD., a Texas
limited partnership (herein called "Assignor"), wherein certain properties,
rights and interests (herein called the "Cody Interests") were conveyed to
Assignor;
NOW, THEREFORE, for Ten Dollars and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Assignor does
hereby GRANT, BARGAIN, SELL, CONVEY, ASSIGN, TRANSFER, SET OVER and DELIVER unto
FUTURE ACQUISITION 1995 LTD., a Texas limited partnership, whose mailing address
is 2351 W. Northwest Highway, Suite 2130, Dallas, Texas 75220 (herein called
"Assignee"), all of the Cody Interests.
TO HAVE AND TO HOLD the Cody Interests unto the Assignee, its successors
and assigns, forever.
Assignor agrees to warrant and forever defend title to the Cody Interests
unto Assignee, its successors and assigns, from and against the claims and
demands of all persons claiming, or to claim the same, or any part thereof, by,
through or under Assignor, but not otherwise. This Assignment, Conveyance and
Bill of Sale is made with full substitution and subrogation of Assignee in and
to all representations, covenants and warranties of title heretofore given or
made by Assignor's predecessors in title with respect to the Cody Interests.
Assignor agrees to execute and deliver to Assignee, from time to time, all
such other and additional instruments, notices, division orders, transfer orders
and other documents, and to do all such other and further acts and things as may
be necessary to more fully and effectively grant, convey and assign to Assignee
the rights, titles, interests and estates conveyed to Assignee hereby or
intended
so to be.
This Assignment, Conveyance and Bill of Sale is being executed in multiple
counterparts, all of which are identical. All of such counterparts taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Assignment, Conveyance and Bill of Sale is dated
the ________ day of November, 1998, but is made effective as to runs of oil and
deliveries of gas, and for all other purposes, as of August 1, 1998, at 7:00
a.m.
local time at the location of the Cody Interests.
BARGO ENERGY RESOURCES, LTD.
By: Bargo Operating Company, Inc., its
General Partner
By /s/ Tim J. Goff
Tim J. Goff, President
THE STATE OF TEXAS )
)SS.
COUNTY OF HARRIS )
This instrument was acknowledged before me on the ________ day of November,
1998, by TIM J. GOFF, President of BARGO OPERATING COMPANY, INC., a Texas
corporation, on behalf of said corporation in its capacity as the General
Partner of BARGO ENERGY RESOURCES, LTD., a Texas limited partnership..
Notary Public in and for
the State of Texas
Printed Name
____________________________
My Commission Expires
___________________
EXHIBIT 10.02
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment No. 1"), dated
as of November 16, 1998, between FUTURE PETROLEUM CORPORATION, a Utah
corporation (the "Borrower"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, a national banking association (the "Lender").
W I T N E S S E T H:
WHEREAS, the Borrower and the Lender are parties to the Credit Agreement
dated as of August 14, 1998 (such agreement, as amended from time to time,
hereinafter referred to as the "Existing Credit Agreement"); and
WHEREAS, the Borrower has requested that certain amendments be made to the
Existing Credit Agreement; and
WHEREAS, the Lender is willing to make certain amendments to the Existing
Credit Agreement on the terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION I.1 Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment No. 1 shall have the following
meanings:
"Amended Credit Agreement" means the Existing Credit Agreement as amended
by this Amendment No. 1.
"Amendment No. 1 Effective Date" has the meaning provided in Section 4.1.
"Cody Oil & Gas Properties" means those Oil & Gas Properties to be
acquired by the Borrower in an Acquisition, as more particularly described in
Schedule II to this Amendment No. 1.
SECTION I.2 Other Definitions. Unless otherwise defined or the
context otherwise requires, terms used herein (including in the preamble and
recitals hereto) have the meanings provided for in the Existing Credit
Agreement.
ARTICLE II.
AMENDMENTS TO
EXISTING CREDIT AGREEMENT
Effective on the Amendment No. 1 Effective Date, the Existing Credit
Agreement is amended in accordance with the terms of this Article II; except as
so amended, the Existing Credit Agreement shall continue to remain in all
respects in full force and effect.
SECTION II.1 Amendments to Recitals. Subsection (y) of the second
recital of the Existing Credit Agreement is amended to read "$27,500,000".
SECTION II.2 Amendments to Section 1.1.
(a) A new definition of "Amendment No. 1 Effective Date" is inserted
in alphabetical order in Section 1.1 of the Existing Credit Agreement as
follows:
"Amendment No. 1 Effective Date" shall have the meaning
assigned to such term in Section 4.1 of the Amendment No. 1 to
Credit Agreement dated as of November 16, 1998 between Borrower and
Lender."
(b) The definition of "Borrowing Base" in the Existing Credit
Agreement is amended by deleting the amount "$10,500,000" and inserting in
its place the amount "$24,775,000".
(c) The definition of "Commitment Amount" in the Existing Credit
Agreement is amended by deleting the amount "$20,000,000" and inserting in
its place the amount "$27,500,000".
(d) The definition of "Unavailable Commitment" in the Existing Credit
Agreement is amended by deleting the amount "$20,000,000" and inserting in
its place the amount "$27,500,000".
SECTION II.3 Amendments to Certain Exhibits and Schedules.
(a) Schedule I to the Existing Credit Agreement is deleted and
a new Schedule I in the form shown in Schedule I hereto is inserted in its
place.
(b) Exhibit A to the Existing Credit Agreement is deleted and a
new Exhibit A in the form shown in Exhibit A hereto is inserted in its
place.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to make the amendments provided for in
Article II, the Borrower hereby:
(a) acknowledges and agrees that, immediately prior to the
Amendment No. 1 Effective Date, the aggregate outstanding principal amount
of all Loans is $19,500,000;
(b) represents and warrants that the Borrower has full power and
authority to execute, deliver and perform its obligations under this
Amendment No. 1 and all other Loan Documents delivered to the Lender in
connection herewith, and this Amendment No. 1 and all such Loan Documents
are the legally valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms;
(c) represents and warrants, that each of the representations
and warranties contained in the Existing Credit Agreement and in the other
Loan Documents is true and correct as of the date hereof as if made on the
date hereof (except, if any such representation and warranty relates to an
earlier date, such representation and warranty shall be true and correct
in all material respects as of such earlier date) and the Borrower has
performed each of the covenants and agreements in the Existing Credit
Agreement and the other Loan Documents required to be performed by the
Borrower as of the date hereof; and
(d) represents and warrants that there is no Default or Event of
Default by the Borrower or any other Obligor under the Existing Credit
Agreement or any other Loan Document and no event exists which, with the
giving of notice or the passage of time or both, would give rise to a
Default or Event of Default by the Borrower or any other Obligor under the
Existing Credit Agreement or any Loan Document.
ARTICLE IV.
CONDITIONS TO EFFECTIVENESS
SECTION IV.1 Effective Date. This Amendment No. 1 shall become
effective on November 16, 1998, or, if later, the date (herein called the
"Amendment No. 1 Effective Date") when the conditions set forth in this Section
4.1 have been satisfied.
(a) Execution of Counterparts. The Lender shall have received
counterparts of this Amendment No. 1 duly executed and delivered on behalf
of the Borrower and the Lender.
(b) Delivery of Replacement Note. The Lender shall have
received the Amended and Restated Secured Promissory Note (being one of
the Notes), substantially in the form of Exhibit A hereto, duly executed
and delivered by the Borrower.
(c) First Amendment to Guaranties. The Lender shall have
received counterparts of the First Amendment to Guaranty, substantially in
the form of Exhibit B hereto, duly executed and delivered by each of the
Borrower's Subsidiaries.
(d) First Amendment to Pledge Agreements. The Lender shall have
received counterparts of the First Amendment to Pledge Agreement,
substantially in the form of Exhibit C hereto, duly executed and delivered
by each of the Borrower, EnCap 1994, EnCap PLC, Bargo, Price, Reynolds,
Future Texas and Future Nevada.
(e) First Amendment to Security Agreements. The Lender shall
have received counterparts of the First Amendment to Security Agreement,
substantially in the form of Exhibit D hereto, duly executed and delivered
by each of the Borrower, Future California, Future Texas, Future Nevada,
Future 1995, BMC and NCI.
(f) Mortgages. The Lender shall have received counterparts of
(i) a Mortgage encumbering the Cody Oil & Gas Properties, and (ii)
supplemental Mortgages or amendments to Mortgages, substantially in the
forms of Exhibit E hereto, encumbering the remaining portion of the
Mortgaged Properties, in each case dated as of a date on or before such
Borrowing, duly executed by the Borrower and its Subsidiaries, as
applicable, together with
(i) evidence of the completion (or satisfactory
arrangements for the completion) of all recordings and filings of
such Mortgages as may be necessary or, in the reasonable opinion of
the Lender, desirable effectively to create a valid, perfected first
priority Lien against the Properties purported to be covered
thereby;
(ii) favorable mortgagee's title opinions in favor of the
Lender (in form and substance and issued by title counsel reasonably
satisfactory to the Lender), with respect to the Property purporting
to be covered by such Mortgages, setting forth the working interest
and net revenue interest of the Borrower in such Properties and
opining that the Borrower's title to such property is good and
marketable and valid and that the interests created by such
Mortgages constitute valid first Liens thereon free and clear of all
defects and encumbrances other than as approved by the Lender; and
(iii) such other approvals, opinions, or documents as the
Lender may reasonably request.
(g) Opinions of Counsel. The Lender shall have received
opinions, dated a date on or before such Borrowing and addressed to the
Lender, from
(i) Kruse, Landa & Maycock, LLC, counsel to the Borrower
and its Subsidiaries, substantially in the form of Exhibit F hereto;
and
(ii) Special title counsel to the Borrower, who
shall be reasonably acceptable to the Lender, as to the Cody
Oil & Gas Properties, substantially in the form of Exhibit G
hereto.
(h) Engineering Report. The Lender shall have received an
Engineering Report, as to the Mortgaged Properties, including the Cody Oil
& Gas Properties, in form and substance satisfactory to the Lender.
(i) Resolutions. The Lender shall have received from the
Borrower a certificate of the Secretary of the Borrower, as to resolutions
or other authorizing action of the Borrower and its Subsidiaries,
authorizing the execution, delivery and performance of Amendment No. 1 and
the other Loan Documents executed by it in connection herewith.
(j) Amendment Fee. The Lender shall have received an amendment
fee equal to $25,000.00.
(k) Fees, Expenses, etc. The Lender shall have received all
reasonable costs and expenses due and payable pursuant to Sections 3.3 and
10.3 of the Existing Credit Agreement, if then invoiced, including fees
and expenses of counsel to the Lender.
(l) Legal Details, etc. All documents executed or submitted
pursuant hereto, and all legal matters incident thereto, shall be
satisfactory in form and substance to the Lender and its counsel.
SECTION IV.2 Expiration. If all of the conditions set forth in
Section 4.1 hereof shall not have been satisfied on or prior to December 15,
1998, the agreements of the parties contained in this Amendment No. 1 shall,
unless otherwise agreed by the Lender, terminate effective immediately on such
date and without further action.
ARTICLE V.
COVENANTS OF THE BORROWER
SECTION V.1 On or before November 30, 1998, the Borrower shall deliver
to the Lender the Phase I environmental assessments prepared by an engineering
firm reasonably satisfactory to the Lender with respect to the Cody Oil & Gas
Properties, a completed environmental disclosure questionnaire and such other
information with respect to the ownership and past use of such Oil & Gas
Properties as the Lender may reasonably request, all of which shall be
satisfactory in form, substance and scope to the Lender.
ARTICLE VI.
MISCELLANEOUS
SECTION VI.1 Loan Document Pursuant to Existing Credit Agreement.
This Amendment No. 1 is a Loan Document executed pursuant to the Existing Credit
Agreement. Except as expressly amended or waived hereby, all of the
representations, warranties, terms, covenants and conditions contained in the
Existing Credit Agreement and each other Loan Document shall remain unamended
and in full force and effect. The amendments set forth herein shall be limited
precisely as provided for herein and shall not be deemed to be a waiver of,
amendment of, consent to or modification of any other term or provision of the
Existing Credit Agreement or of any term or provision of any other Loan Document
or of any transaction or further or future action on the part of the Borrower or
which would require the consent of the Lender under the Existing Credit
Agreement or any other Loan Document.
SECTION VI.2 Counterparts, etc. This Amendment No. 1 may be executed
by the parties hereto in several counterparts, each of which shall be deemed to
be an original and all of which shall constitute together but one and the same
agreement with the same effect as if all parties hereto had signed the same
signature page. Any signature page of this Amendment No. 1 may be detached from
any identical counterpart of this Amendment No. 1 having attached to it one or
more additional signature pages.
SECTION VI.3 GOVERNING LAW; ENTIRE AGREEMENT. THIS AMENDMENT NO. 1
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF ILLINOIS.
SECTION VI.4 Titles and Headings. The titles and headings of the
Sections of this Amendment No. 1 are intended for convenience only and shall not
in any way affect the meaning or construction of any provision of this Amendment
No. 1.
SECTION VI.5 Changes and Modifications in Writing. No provision of
this Amendment No. 1 may be changed or modified except by an instrument in
writing signed by the party against whom enforcement of the change or
modification is sought.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be executed by their respective officers hereunto duly authorized as of the day
and year first above written.
BORROWER
FUTURE PETROLEUM CORPORATION, a Utah
corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
LENDER
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/ Richard A. Bernardy
Title: Vice President
Schedule I to
Amendment No. 1 to
Credit Agreement
Disclosure Schedule
Schedule II to
Amendment No. 1 to
Credit Agreement
Description of Cody Oil and Gas Properties
[Please contact the Company]
Exhibit A to
Amendment No. 1 to
Credit Agreement
Form of Replacement Note
AMENDED AND RESTATED
SECURED PROMISSORY NOTE
$27,500,000.00 November 16, 1998
FOR VALUE RECEIVED, the undersigned, FUTURE PETROLEUM CORPORATION, a Utah
corporation (the "Borrower"), promises to pay to the order of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association (the
"Lender") on August 14, 2003, the principal sum of TWENTY-SEVEN MILLION, FIVE
HUNDRED THOUSAND DOLLARS ($27,500,000.00) or, if less, the aggregate unpaid
principal amount of all Loans shown on the schedule attached hereto (and any
continuation thereof) made by the Lender pursuant to that certain Credit
Agreement, dated as of August 14, 1998, as amended by that certain Amendment No.
1 to Credit Agreement dated as of November 16, 1998 (together with all
amendments and other modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), among the Borrower and the Lender.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Lender pursuant to the Credit Agreement.
This Note amends and restates in their entirety those notes previously
made and given by the Borrower to the Lender as more particularly described in
the Credit Agreement.
This Note is one of the Notes referred to in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a
description of the security for this Note and for a statement of the terms and
conditions on which the Borrower is permitted and required to make prepayments
and repayments of principal of the Indebtedness evidenced by this Note and on
which such Indebtedness may be declared to be immediately due and payable.
Unless otherwise defined, terms used herein have the meanings provided in the
Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN CHICAGO, ILLINOIS AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
ILLINOIS.
FUTURE PETROLEUM CORPORATION, a Utah
corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
LOANS AND PRINCIPAL PAYMENTS
Exhibit B to
Amendment No. 1 to
Credit Agreement
Form of First Amendment to Guaranty
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among Future Petroleum Corporation, a Utah
corporation ("Guarantor"), and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE PETROLEUM CORPORATION,
a Utah corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among Future CAL-TEX Corporation, a Texas
corporation ("Guarantor"), and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE CAL-TEX CORPORATION,
a Texas corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among Future Petroleum Corporation, a Texas
corporation ("Guarantor"), and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE PETROLEUM CORPORATION,
a Texas corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among Future Energy Corporation, a Nevada
corporation ("Guarantor"), and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE ENERGY CORPORATION,
a Nevada corporation
By:/s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among Future Acquisition 1995 Ltd., a Texas
limited partnership ("Guarantor"), and Bank of America National Trust and
Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE ACQUISITION 1995 LTD.,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among BMC Development No. 1 Limited
Partnership, a Texas limited partnership ("Guarantor"), and Bank of America
National Trust and Savings Association, a national banking association (the
"Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP,
a Texas limited partnership
By:/s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among NCI Shawnee L.P., a Texas limited
partnership ("Guarantor"), and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
NCI SHAWNEE L.P.,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
Exhibit C to
Amendment No. 1 to
Credit Agreement
Form of First Amendment to Pledge Agreement
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Future Petroleum
Corporation, a Utah corporation ("Pledgor"), and Bank of America National
Trust and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page
of this First Amendment may be detached from any identical counterpart of
this First Amendment having attached to it one or more additional signature
pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
FUTURE PETROLEUM CORPORATION,
a Utah corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Future CAL-TEX Corporation,
a Texas corporation ("Pledgor"), and Bank of America National Trust and
Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
FUTURE CAL-TEX CORPORATION,
a Texas corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Future Petroleum
Corporation, a Texas corporation ("Pledgor"), and Bank of America National
Trust and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
FUTURE PETROLEUM CORPORATION,
a Texas corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Future Energy Corporation,
a Nevada corporation ("Pledgor"), and Bank of America National Trust and
Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
FUTURE ENERGY CORPORATION,
a Nevada corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Future Acquisition 1995
Ltd., a Texas limited partnership ("Pledgor"), and Bank of America National
Trust and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
FUTURE ACQUISITION 1995 LTD.,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among BMC Development No. 1
Limited Partnership, a Texas limited partnership ("Pledgor"), and Bank of
America National Trust and Savings Association, a national banking association
(the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among NCI Shawnee L.P., a Texas
limited partnership ("Pledgor"), and Bank of America National Trust and
Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
NCI SHAWNEE L.P.,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among EnCap Equity 1994 Limited
Partnership, a Texas limited partnership ("Pledgor"), and Bank of America
National Trust and Savings Association, a national banking association (the
"Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
ENCAP EQUITY 1994 LIMITED PARTNERSHIP,
a Texas limited partnership
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Energy Capital Investment
Company PLC, an English investment company ("Pledgor"), and Bank of America
National Trust and Savings Association, a national banking association (the
"Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
ENERGY CAPITAL INVESTMENT COMPANY PLC,
an English investment company
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Bargo Energy Resources,
Ltd., a Texas limited partnership ("Pledgor"), and Bank of America National
Trust and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
BARGO ENERGY RESOURCES, LTD. ,
a Texas limited partnership
By: /s/ Tim J. Goff
Name: Tim J. Goff
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among B. Carl Price,
("Pledgor"), and Bank of America National Trust and Savings Association, a
national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 18, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
By: /s/ Carl Price
Name: B. CARL PRICE
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Don Reynolds, ("Pledgor"),
and Bank of America National Trust and Savings Association, a national banking
association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 18, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
By: /s/ Don Wm. Reynolds
Name: DON REYNOLDS
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
Exhibit D to
Amendment No. 1 to
Credit Agreement
Form of First Amendment to Security Agreement
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between Future Petroleum
Corporation, a Utah corporation ("Grantor") and Bank of America National Trust
and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE PETROLEUM CORPORATION,
a Utah corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between Future CAL-TEX Corporation,
a Texas corporation ("Grantor") and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE CAL-TEX CORPORATION,
a Texas corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between Future Petroleum
Corporation, a Texas corporation ("Grantor") and Bank of America National Trust
and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE PETROLEUM CORPORATION,
a Texas corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between Future Energy Corporation,
a Nevada corporation ("Grantor") and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE ENERGY CORPORATION,
a Nevada corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between Future Acquisition 1995
Ltd., a Texas limited partnership ("Grantor") and Bank of America National Trust
and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE ACQUISITION 1995 LTD.,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between BMC Development No. 1
Limited Partnership, a Texas limited partnership ("Grantor") and Bank of America
National Trust and Savings Association, a national banking association (the
"Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between NCI Shawnee L.P., a Texas
limited partnership ("Grantor") and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
NCI SHAWNEE L.P.,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
Exhibit E to
Amendment No. 1 to
Credit Agreement
Form of Mortgage
MORTGAGE, DEED OF TRUST, ASSIGNMENT, SECURITY
AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING
FROM
FUTURE ACQUISITION 1995 LTD.
(Taxpayer I.D. No. 75-2630182)
BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP
(Taxpayer I.D. No. 75-2648720)
NCI-SHAWNEE LIMITED PARTNERSHIP
(Taxpayer I.D. No. 75-2563029)
TO
Richard A. Bernardy, Trustee
AND
John H. Homier, Trustee
AND
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
(Taxpayer I.D. No. 94-1687665),
for itself and as Agent
Dated as of November 18, 1998
"THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS."
"THIS INSTRUMENT SECURES PAYMENT OF FUTURE ADVANCES."
"THOSE PORTIONS OF THE MORTGAGED PROPERTY WHICH ARE MINERALS OR OTHER
SUBSTANCES OF VALUE WHICH MAY BE EXTRACTED FROM THE EARTH (INCLUDING, WITHOUT
LIMITATION, OIL AND GAS), AND THE ACCOUNTS RELATING THERETO, WILL BE FINANCED
AT THE WELLHEADS OF THE WELLS LOCATED ON THE PROPERTIES DESCRIBED IN EXHIBIT A
HERETO, AND THIS FINANCING STATEMENT IS TO BE FILED FOR RECORD, AMONG OTHER
PLACES, IN THE REAL ESTATE RECORDS."
"THE MORTGAGOR HAS AN INTEREST OF RECORD IN THE REAL ESTATE CONCERNED, WHICH
IS DESCRIBED IN EXHIBIT A HERETO."
"SOME OF THE PERSONAL PROPERTY CONSTITUTING A PORTION OF THE MORTGAGED
PROPERTY IS OR IS TO BE AFFIXED TO THE PROPERTIES DESCRIBED IN EXHIBIT A
HERETO AND THIS FINANCING STATEMENT IS TO BE FILED FOR RECORD, AMONG OTHER
PLACES, IN THE REAL ESTATE RECORDS."
"A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW
THE MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO
COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE MORTGAGOR UNDER THIS
MORTGAGE."
"THE SECURED PARTIES ARE NOT A SELLER OR PURCHASE MONEY LENDER OF THE
COLLATERAL."
THIS INSTRUMENT WAS PREPARED BY AND
WHEN RECORDED AND/OR FILED
RETURN TO:
Kevin L. Shaw, Esq.
Mayer, Brown & Platt
350 South Grand Avenue
Suite 2500
Los Angeles, California 90071
MORTGAGE, DEED OF TRUST, ASSIGNMENT, SECURITY
AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING
THIS MORTGAGE, DEED OF TRUST, ASSIGNMENT, SECURITY AGREEMENT, FINANCING
STATEMENT AND FIXTURE FILING, dated as of November 18, 1998, is from FUTURE
ACQUISITION 1995 LTD., a Texas limited partnership, BMC DEVELOPMENT NO. 1
LIMITED PARTNERSHIP, a Texas limited partnership, and NCI-SHAWNEE LIMITED
PARTNERSHIP, a Texas limited partnership (herein collectively called the
"Mortgagor"), to Richard H. Bernardy and John H. Homier, of Chicago, Illinois,
as Trustees (herein collectively called the "Trustees"), and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association having
offices at 231 South LaSalle Street, Chicago, Illinois 60697 (herein called
the "Bank"), for itself and as agent for its Affiliates (defined below).
1. FUTURE PETROLEUM CORPORATION, a Utah corporation (the "Borrower")
and the Bank have entered into a Credit Agreement, dated as of August 14,
1998, as amended by that certain Amendment No. 1 to Credit Agreement dated as
of November 16, 1998 (herein, as the same has been and may hereafter be
amended, modified or supplemented from time to time, called the "Credit
Agreement"), pursuant to which the Bank has agreed to make loans to the
Borrower and issue or cause to be issued letters of credit for the benefit of
the Borrower in amounts not to exceed at any one time outstanding the lesser
of (x) the Borrowing Base (as defined in the Credit Agreement), and
(y) $27,500,000; and the Borrower, to evidence its indebtedness to the Bank
under the Credit Agreement, has executed and delivered to the Bank its amended
and restated secured promissory note, dated November 16, 1998 (herein called
the "Loan Note"), in the original principal amount of $27,500,000 to mature on
August 14, 2003, the Loan Note being payable to the order of the Bank, bearing
interest at the rates provided for therein, and containing provisions for
payment of attorneys' fees and acceleration of maturity in the event of
default, all as therein set forth.
2. The Borrower or an Affiliate (as defined in the Credit Agreement)
of the Borrower has entered into or may enter into certain Hedging Agreements
(as defined in the Credit Agreement) with the Bank or an Affiliate of the
Bank, pursuant to the terms of the Credit Agreement.
3. The Mortgagor has executed and delivered to the Bank its Guaranty
(the "Guaranty") pursuant to which the Mortgagor has unconditionally
guaranteed the prompt payment and performance of all obligations under the
Credit Agreement.
4. It is a condition precedent to the obligation of the Bank to make
Loans under the Credit Agreement, to issue or cause to be issued letters of
credit under the Credit Agreement and to the obligations of Bank or its
Affiliate (as the case may be) under the Hedging Agreements referred to above,
that the Mortgagor executes and delivers this instrument.
5. For all purposes of this instrument, unless the context otherwise
requires:
A. "oil and gas leases" shall include oil, gas and mineral
leases, subleases and assignments thereof, operating rights, and shall
also include subleases and assignments of operating rights.
B. "Hydrocarbons" shall mean oil, gas and other liquid or
gaseous hydrocarbons.
C. "Production Sale Contracts" shall mean contracts now in
effect, or hereafter entered into by the Mortgagor, or entered into by
the Mortgagor's predecessors in interest, for the sale, purchase,
exchange, gathering, transportation, treating or processing of
Hydrocarbons produced from the lands described in Exhibit A attached
hereto and made a part hereof.
D. "lands described in Exhibit A" shall include any lands
which are either described in Exhibit A or the description of which is
incorporated in Exhibit A by reference to an instrument or document
containing or referring to such a description, and shall also include
any lands now or hereafter unitized or pooled with lands which are
either described in Exhibit A or the description of which is
incorporated in Exhibit A by reference.
E. "Operating Equipment" shall mean all surface or subsurface
machinery, goods, equipment, fixtures, inventory, facilities, supplies
or other property of whatsoever kind or nature (excluding drilling rigs,
trucks, automotive equipment or other property taken to the premises to
drill a well or for other similar temporary uses) now or hereafter
located on or under any of the lands described in Exhibit A which are
useful for the production, gathering, treatment, processing, storage or
transportation of Hydrocarbons (together with all accessions, additions
and attachments to any thereof), including, but not by way of
limitation, all oil wells, gas wells, water wells, injection wells,
casing, tubing, tubular goods, rods, pumping units and engines,
Christmas trees, platforms, derricks, separators, compressors, gun
barrels, flow lines, tanks, gas systems (for gathering, treating and
compression), pipelines (including gathering lines, laterals and
trunklines), chemicals, solutions, water systems (for treating, disposal
and injection), steam generation and injection equipment and systems,
power plants, poles, lines, transformers, starters and controllers,
machine shops, tools, storage yards and equipment stored therein,
buildings and camps, telegraph, telephone and other communication
systems, roads, loading docks, loading racks and shipping facilities.
F. "Mortgaged Property" shall mean the properties, rights and
interests hereinafter described and defined as the Mortgaged Property.
G. "Indebtedness", "Note" and "Notes" shall have the
respective meanings set forth in Section 1.2 hereof.
H. "Environmental Laws" shall mean any and all present and
future United States federal, state and local laws or regulations,
codes, plans, orders, decrees, judgments, injunctions and lawfully
imposed requirements issued, promulgated or entered thereunder relating
to pollution or protection of the environment, including laws relating
to reclamation of land and waterways and laws relating to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into
the environment (including, without limitation, ambient air, surface
water, ground water, land surface or subsurface strata) or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes.
I. "Permits" shall mean shall mean all authorizations,
approvals, permits, variances, land use entitlements, consents,
licenses, franchises and agreements issued by or entered into with a
governmental authority now or hereafter required for all stages of
exploration, developing, operating, and plugging and abandoning oil &
gas wells (including, without limitation, those shown on Exhibit A) on
all or any part of the lands described in Exhibit A (or any other lands
any production from which, or profits or proceeds from such production,
is attributed to any interest in lands or to any interest described in
Exhibit A).
J. "Water Rights" shall mean (including without limitation
those described in Exhibit A hereto) all now or hereafter existing or
acquired water and water rights, reservoirs and reservoir rights,
ditches and ditch rights, wells and well rights, whether evidenced or
initiated by permit, decree, well registration, appropriation not
decreed, water court application, shares of stock or other interests in
mutual ditch or reservoir companies or carrier ditch or reservoir
companies or otherwise, appertaining or appurtenant to or beneficially
used or useful in connection with the lands described in Exhibit A,
together with all pumps, well casings, wellheads, electrical
installations, pumphouses, meters, monitoring wells and systems,
measuring devices, pipes, pipelines, and other structures or personal
property which are or may be used to produce, regulate, measure,
distribute, store, or use water from the said water and water rights,
reservoirs and reservoir rights, ditches and ditch rights, wells and
well rights.
K. "Uniform Commercial Code" shall mean the Uniform Commercial
Code as in effect from time to time in the State of Illinois or any
other applicable state, and the terms "Accounts", "Account Debtor",
"Chattel Paper", "Contract Rights", "Deposit Accounts", "Documents",
"General Intangibles", "Goods", "Equipment", "Fixtures", "Inventory",
"Instruments", and "Proceeds" shall have the respective meanings
assigned to such terms in the Uniform Commercial Code.
NOW, THEREFORE, the Mortgagor, for and in consideration of the premises
and of the debts and trusts hereinafter mentioned, (i) with respect to the
following described properties, rights and interests which are (a) located in
or relate to properties located in the States of Texas and Mississippi or (b)
located within, or relate to properties located within the offshore area over
which the United States asserts jurisdiction and to which the laws of the
States of Texas and Mississippi are applicable with respect to this instrument
and the liens or security interests created hereby, has granted, bargained,
sold, warranted, mortgaged, assigned, transferred and conveyed, and by these
presents does grant, bargain, sell, warrant, mortgage, assign, pledge,
hypothecate, transfer and convey unto the Trustees, in trust, with power of
sale, for the use and benefit of the Bank, for itself and as agent for its
Affiliates, all the Mortgagor's right, title and interest, whether now owned
or hereafter acquired, in and to all of the hereinafter described properties,
rights and interests; and, insofar as such properties, rights and interests
consist of equipment, general intangibles, accounts, contract rights,
inventory, fixtures, proceeds of collateral or any other personal property of
a kind or character defined in or subject to the applicable provisions of the
Uniform Commercial Code (as in effect from time to time in the appropriate
jurisdiction with respect to each of said properties, rights and interests),
the Mortgagor hereby grants to said Trustees, for the use and benefit of the
Bank, for itself and as agent for its Affiliates, a security interest therein
to the full extent of the Mortgagor's legal and beneficial interest therein,
now owned or hereafter acquired, namely and (ii) with respect to the following
described properties, rights and interests other than those granted to the
Trustees in clause (i) above (herein called the "Louisiana Mortgaged
Property"), as security for the Indebtedness (as defined below) outstanding at
any time or from time to time, up to the maximum amount outstanding at any
time or from time to time as set forth in Section 1.4 hereof, does hereby
mortgage, pledge, hypothecate, collaterally assign and grant a security
interest to the Bank for itself and as agent for its Affiliates, in all the
Mortgagor's right, title and interest, whether now owned or hereafter
acquired, in and to all of the hereinafter described properties, rights and
interests; and, insofar as such properties, rights and interests consist of
equipment, general intangibles, accounts, contract rights, inventory,
fixtures, proceeds of collateral or any other personal property of a kind or
character defined in or subject to the applicable provisions of the Uniform
Commercial Code (as in effect from time to time in the appropriate
jurisdiction with respect to each of said properties, rights and interests),
the Mortgagor hereby grants to the Bank, for itself and as agent for its
Affiliates, a security interest therein to the full extent of the Mortgagor's
legal and beneficial interest therein, now owned or hereafter acquired,
namely:
(a) the lands described in Exhibit A, and the oil and gas
leases, the fee, mineral, overriding royalty, royalty and other
interests which are described in Exhibit A,
(b) the presently existing and (subject to the terms of
Section 2.7 hereof) hereafter arising unitization, unit operating,
communitization and pooling agreements and the properties covered and
the units created thereby (including, without limitation, all units
formed under orders, regulations, rules, approvals, decisions or other
official acts of any federal, state or other governmental agency having
jurisdiction) which are specifically described in Exhibit A or which
relate to any of the properties and interests specifically described in
Exhibit A,
(c) the Hydrocarbons which are in, under, upon, produced or to
be produced from or which are attributed or allocated to the lands
described in Exhibit A,
(d) the Production Sale Contracts,
(e) the Operating Equipment,
(f) the Permits,
(g) the Water Rights,
(h) without duplication of any other provision of this
granting clause, Equipment, Fixtures and other Goods necessary or used
in connection with, and Inventory, Accounts, General Intangibles,
Contract Rights, Chattel Paper, Deposit Accounts, Documents, Instruments
and Proceeds arising from, or relating to, the properties and other
interests described in Exhibit A, and
(i) any and all liens and security interests in Hydrocarbons
securing the payment of proceeds from the sale of Hydrocarbons,
including but not limited to those liens and security interests provided
for in Section 9.319 of the Texas Business and Commerce Code or similar
statutes of other jurisdictions or any successor statutes.
together with any and all corrections or amendments to, or renewals,
extensions or ratifications of, or replacements or substitutions for, any of
the same, or any instrument relating thereto, and all accounts, contracts,
contract rights, options, nominee agreements, unitization or pooling
agreements, operating agreements and unit operating agreements, processing
agreements, farmin agreements, farmout agreements, joint venture agreements,
partnership agreements (including mining partnerships), exploration
agreements, bottom hole agreements, dry hole agreements, support agreements,
acreage contribution agreements, surface use and surface damage agreements,
net profits agreements, production payment agreements, Hedging Agreements,
insurance policies, title opinions, title abstracts, title materials and
information, files, records, writings, data bases, information, systems, logs,
well cores, fluid samples, production data and reports, well testing data and
reports, maps, seismic and geophysical, geological and chemical data and
information, interpretative and analytical reports of any kind or nature
(including, without limitation, reserve studies and reserve evaluations),
computer hardware and software and all documentation therefor or relating
thereto (including, without limitation, all licenses relating to or covering
such computer hardware, software and/or documentation), trade secrets,
trademarks, service marks and business names and the goodwill of the business
relating thereto, copyrights, copyright registrations, unpatented inventions,
patent applications and patents, rights-of-way, franchises, bonds, easements,
servitudes, surface leases, permits, licenses, tenements, hereditaments,
appurtenances, concessions, occupancy agreements, privileges, development
rights, condemnation awards, claims against third parties, general
intangibles, rents, royalties, issues, profits, products and proceeds, whether
now or hereafter existing or arising, used or useful in connection with,
covering, relating to, or arising from or in connection with, any of the
aforesaid items (a) through (i), inclusive, in this granting clause mentioned,
and all other things of value and incident thereto (including, without
limitation, any and all liens, lien rights, security interests and other
properties, rights and interests) which the Mortgagor might at any time have
or be entitled to, all the aforesaid properties, rights and interests,
(including the Louisiana Mortgaged Property) together with any additions
thereto which may be subjected to the lien and security interest of this
instrument by means of supplements hereto, being hereinafter called the
"Mortgaged Property".
Subject, however, to (i) the restrictions, exceptions, reservations,
conditions, limitations, interests and other matters, if any, set forth or
referred to in the specific descriptions of such properties and interests in
Exhibit A (including all presently existing royalties, overriding royalties,
payments out of production and other burdens which are referred to in
Exhibit A and which are taken into consideration in computing any percentage,
decimal or fractional interest as set forth in Exhibit A), (ii) the assignment
of production contained in Article III hereof, but only insofar and so long as
said assignment of production is not inoperative under the provisions of
Section 3.5 hereof, and (iii) the condition that neither the Trustees nor the
Bank shall be liable in any respect for the performance of any covenant or
obligation (including without limitation measures required to comply with
Environmental Laws) of the Mortgagor in respect of the Mortgaged Property.
TO HAVE AND TO HOLD the Mortgaged Property (other than the Louisiana
Mortgaged Property) unto the Trustees for the benefit of the Bank, for itself
and as agent for its Affiliates, forever to secure the payment of the
Indebtedness and to secure the performance of the obligations of the Mortgagor
herein contained.
The Louisiana Mortgaged Property is to remain so specially mortgaged,
affected and hypothecated unto and in favor of the Bank for itself and as
agent for its Affiliates to secure payment of the Indebtedness (including the
performance of the obligations of the Mortgagor herein contained) until full
and final payment or discharge of the Indebtedness, and the Mortgagor is
herein and hereby bound and obligated not to sell or alienate the Louisiana
Mortgaged Property to the prejudice of this act.
The Mortgagor, in consideration of the premises and to induce the Bank
to make the loans above described, hereby covenants and agrees with both the
Trustees and the Bank as follows:
ARTICLE I
Indebtedness Secured
I.1 Items of Indebtedness Secured. The following items of
indebtedness are secured hereby:
(a) The Loan Note (including future advances to be made
thereunder by the Bank), the Letter of Credit Outstandings (as defined
in the Credit Agreement) and all other obligations and liabilities of
the Borrower under the Credit Agreement;
(b) All indebtedness and future advances evidenced by any
promissory notes evidencing any additional loans which the Bank may from
time to time make to the Borrower, if any, the Bank not being obligated,
however, to make such additional loans;
(c) Any sums advanced or expenses or costs incurred by the
Trustees or the Bank (or any receiver or keeper appointed hereunder)
which are made or incurred pursuant to, or permitted by, the terms
hereof, plus interest thereon at the rate herein specified or otherwise
agreed upon, from the date of the advances or the incurring of such
expenses or costs until reimbursed;
(d) Any and all other indebtedness of the Mortgagor or any
Affiliate of the Mortgagor (including the Borrower) to the Bank or any
Affiliate of the Bank now or hereafter owing, whether direct or
indirect, primary or secondary, fixed or contingent, joint or several,
regardless of how evidenced or arising, including without limitation all
Hedging Obligations (as defined in the Credit Agreement) arising under
Hedging Agreements between the Mortgagor or any Affiliate of the
Mortgagor and the Bank or any Affiliate of the Bank; and
(e) Any extensions, refinancings, modifications or renewals of
all such indebtedness described in subparagraphs (a) through (d) above,
whether or not the Mortgagor executes any extension agreement or renewal
instrument. The indebtedness secured hereby further continues with
respect to any new obligation arising from any novation (subjective or
objective) of the foregoing indebtedness as permitted by Louisiana Civil
Code Article 1884.
I.2 Indebtedness and the Notes Defined. All the above items of
indebtedness are hereinafter collectively referred to as the "Indebtedness".
Any promissory note evidencing any part of the Indebtedness, including,
without limitation, the Loan Note, is hereinafter referred to as a "Note", and
all such promissory notes are hereinafter referred to collectively as the
"Notes".
I.3 No Paraph. The Mortgagor and the Bank acknowledge that no Note or
other evidence of Indebtedness has been paraphed for identification with this
instrument.
I.4 Maximum Amount. The maximum amount of the Indebtedness that may be
outstanding at any time, and from time to time, and secured by this instrument
is $60,000,000.
ARTICLE II
Particular Covenants and Warranties
of the Mortgagor
II.1 Payment of the Indebtedness. The Mortgagor will duly and
punctually pay and timely perform the Indebtedness, including each and every
obligation owing on account of the Notes.
II.2 Certain Representations and Warranties. The Mortgagor
represents and warrants that (a) the oil and gas leases described in Exhibit A
hereto are valid, subsisting leases, superior and paramount to all other oil
and gas leases respecting the properties to which they pertain, (b) all
producing wells located on the lands described in Exhibit A have been drilled,
operated and produced in conformity with all applicable laws, rules and
regulations of all authorities having jurisdiction, and are subject to no
penalties on account of past production, and such wells are in fact bottomed
under and are producing from, and the well bores are wholly within, the lands
described in Exhibit A, (c) the Mortgagor, to the extent of the interest
specified in Exhibit A, has valid and indefeasible title to each property
right or interest constituting the Mortgaged Property and has a good and legal
right to grant and convey the same to the Trustees (or in the case of the
Louisiana Mortgaged Property, to mortgage, collaterally assign, and grant a
security interest in the same to the Bank for itself and as agent for its
Affiliates), it being understood that the Mortgagor's working interest in each
oil and gas lease shall exceed the Mortgagor's net interest in production from
such lease to the extent of the Mortgagor's proportionate share of the burden
of all royalties, overriding royalties and other such payments out of
production, (d) the Mortgaged Property is free from all encumbrances or liens
whatsoever, except as may be specifically set forth in Exhibit A or as
permitted by the provisions of Section 2.5(e) hereof, (e) the Mortgagor is not
obligated, by virtue of any prepayment under any contract providing for the
sale by the Mortgagor of Hydrocarbons which contains a "take or pay" clause or
under any similar arrangement, to deliver Hydrocarbons at some future time
without then or thereafter receiving full payment therefor, (f) the Mortgaged
Property is currently being operated, maintained and developed in accordance
with all applicable currently existing Permits, and all applicable federal,
tribal, state and local laws, rules and regulations except where the failure
to do so could not reasonably be expected to have a Material Adverse Effect,
(g) the cover page to this instrument lists the correct legal name of the
Mortgagor and the Mortgagor is not now and has not been known by any trade
name, and (h) the Mortgagor has not been known by any legal name different
from the one set forth on the cover page of this instrument, nor has the
Mortgagor been the subject of any merger or other corporate reorganization.
The Mortgagor will warrant and forever defend the Mortgaged Property unto the
Trustees (or, in the case of the Louisiana Mortgaged Property, the Bank for
itself and as agent for its Affiliates) against every person whomsoever
lawfully claiming the same or any part thereof, and the Mortgagor will
maintain and preserve the lien and security interest hereby created so long as
any of the Indebtedness remains unpaid.
II.3 Further Assurances. The Mortgagor will execute and deliver
such other and further instruments and will do such other and further acts as,
in the opinion of the Trustees or the Bank, may be necessary or desirable to
carry out more effectually the purposes of this instrument, including, without
limiting the generality of the foregoing, (a) prompt correction of any defect
which may hereafter be discovered in the title to the Mortgaged Property or in
the execution and acknowledgment of this instrument, any Note, or any other
document executed in connection herewith, and (b) prompt execution and
delivery of all notices to parties operating, purchasing or receiving proceeds
of production of Hydrocarbons from the Mortgaged Property, and all division
orders or transfer orders, any of which, in the opinion of the Bank, is needed
in order to transfer effectually or to assist in transferring effectually to
the Bank the assigned proceeds of production from the Mortgaged Property.
II.4 Taxes. Subject to the Mortgagor's right to contest the same,
the Mortgagor will promptly pay all taxes, assessments and governmental
charges legally imposed upon this instrument or upon the Mortgaged Property,
or upon the interest of the Trustees or the Bank therein, or upon the income
and profits thereof.
II.5 Operation of the Mortgaged Property. So long as the
Indebtedness or any part thereof remains unpaid, and whether or not the
Mortgagor is the operator of the Mortgaged Property, the Mortgagor shall, at
the Mortgagor's own expense:
(a) Do all things necessary to keep unimpaired the Mortgagor's
rights in the Mortgaged Property and not, except in the ordinary course
of business, abandon any well or forfeit, surrender or release any oil
and gas lease or any rights in the Mortgaged Property, or enter into any
operating agreement with respect to the Mortgaged Property, without the
prior written consent of the Trustees;
(b) Obtain and maintain all required Permits and cause the
lands described in Exhibit A to be maintained, developed, protected
against drainage, and continuously operated for the production of
Hydrocarbons in a good and workmanlike manner as would a prudent
operator, and in accordance with generally accepted practices,
applicable operating agreements, and all applicable federal, state and
local laws, rules and regulations, excepting those being contested in
good faith;
(c) Cause to be paid, promptly as and when due and payable, all
rentals and royalties (including shut-in royalties) payable in respect
of the Mortgaged Property, and all expenses incurred in or arising from
the operation or development of the Mortgaged Property;
(d) Cause the Operating Equipment to be kept in good and
effective operating condition, and all repairs, renewals, replacements,
additions and improvements thereof or thereto, needful to the production
of Hydrocarbons from the lands described in Exhibit A, to be promptly
made;
(e) Cause the Mortgaged Property to be kept free and clear of
liens, charges and encumbrances of every character, other than (1) the
lien and security interest hereof, (2) those liens permitted by Section
8.2.3 of the Credit Agreement, and (3) those consented to in writing by
the Bank;
(f) Carry with financially sound and reputable insurance
companies and in amounts satisfactory to the Bank the following
insurance: (1) workmen's compensation insurance and public liability
and property damage insurance in respect of all activities in which the
Mortgagor might incur personal liability for the death of or injury to
an employee or third person, or damage to or destruction of another's
property; and (2) to the extent such insurance is carried by others
engaged in similar undertakings in the same general areas in which the
Mortgaged Property is located, insurance in respect of the Operating
Equipment, against loss or damage by fire, lightning, hail, tornado,
explosion and other similar risks;
(g) Furnish to the Bank as soon as possible and in any event
within five (5) days after the occurrence from time to time of any
change in the address of the Mortgagor's location (as described on the
signature page hereto) or in the name of the Mortgagor, notice in
writing of such change;
(h) Not initiate or acquiesce in any change in any material
zoning or other land use or Water Rights classification now or hereafter
in effect and affecting the Mortgaged Property or any part thereof;
(i) Notify the Bank in writing as soon as possible and in any
event within five (5) days after it shall become aware of the occurrence
of any event of default under Section 4.1 or any event which, with
notice, the passage of time or both would be such an event of default;
and
(j) Appear in and defend, with counsel acceptable to the Bank
in its sole discretion, any action or proceeding purporting to affect
the security hereof or the rights or powers of the Bank; and pay all
costs and expenses, including cost of evidence of title and attorneys'
fees in a reasonable sum, in any such action or proceeding in which the
Bank may appear.
II.6 Recording, etc. The Mortgagor will promptly, and at the
Mortgagor's expense, record, register, deposit and file this and every other
instrument in addition or supplemental hereto in such offices and places and
at such times and as often as may be necessary to preserve, protect and renew
the lien and security interest hereof as a first lien on and prior perfected
security interest in real or personal property, as the case may be, and the
rights and remedies of the Trustees and of the Bank, and otherwise will do and
observe all things or matters necessary or expedient to be done or observed by
reason of any law or regulation of any State or of the United States of
America or of any other competent authority, for the purpose of effectively
creating, maintaining and preserving the lien and security interest hereof on
and in the Mortgaged Property.
II.7 Sale or Mortgage of the Mortgaged Property. Except as
permitted by Section 8.2.9 of the Credit Agreement and except for sales of
severed Hydrocarbons in the ordinary course of the Mortgagor's business and
the lien and security interest created by this instrument, the Mortgagor will
not sell, convey, mortgage, pledge, or otherwise dispose of or encumber the
Mortgaged Property nor any portion thereof, nor any of the Mortgagor's right,
title or interest therein, without first securing the written consent of the
Bank; and the Mortgagor will not enter into any arrangement with any gas
pipeline company or other consumer of Hydrocarbons regarding the Mortgaged
Property whereby said gas pipeline company or consumer may set off any claim
against the Mortgagor by withholding payment for any Hydrocarbons actually
delivered.
II.8 Records, Statements and Reports. The Mortgagor will keep
proper books of record and account in which complete and correct entries will
be made of the Mortgagor's transactions in accordance with generally accepted
accounting principles and will furnish or cause to be furnished to the Bank
such information concerning the business, affairs and financial condition of
the Mortgagor as the Trustees or the Bank may from time to time reasonably
request. Without limiting the generality of the foregoing, the Mortgagor
shall furnish to the Bank (a) upon its request, but not more than every six
months, reports prepared by an independent person or firm acceptable to the
Bank concerning (1) the quantity of Hydrocarbons recoverable from the
Mortgaged Property, (2) the projected income and expense attributable to the
Mortgaged Property, and (3) the expediency of any change in methods of
treatment or operation of all or any wells productive of Hydrocarbons, any new
drilling or development, any method of secondary recovery by repressuring or
otherwise, or any other action with respect to the Mortgaged Property, the
decision as to which may increase or reduce the quantity of Hydrocarbons
ultimately recoverable or the rate of production thereof, and (b) monthly, a
report showing the gross proceeds from the sale of Hydrocarbons produced from
the lands described in Exhibit A (including any thereof taken by the Mortgagor
for the Mortgagor's own use), the quantity of such Hydrocarbons sold, the
severance, gross production, occupation, or gathering taxes deducted from or
paid out of such proceeds, the number of wells operated, drilled or abandoned,
and such other information as the Bank may reasonably request (upon request of
the Bank, such reports referred to in clauses (a) and (b) above shall set
forth such information on a lease or unit basis).
II.9 No Governmental Approvals. The Mortgagor represents and warrants
that (a) no approval or consent of any regulatory or administrative commission
or authority, or of any other governmental body, is necessary to authorize the
execution and delivery of this instrument or of the Notes, or to authorize the
observance or performance by the Mortgagor of the covenants herein or in the
Notes contained, or that such approvals as are required have been obtained or
will be obtained promptly, and (b) the Mortgagor has obtained all Permits
which are necessary for the operation of the Mortgaged Property.
II.10 Right of Entry.
(a) The Mortgagor will permit the Trustees or the Bank, or the
agents of either of them, at the cost and expense of the Mortgagor, to
enter upon the Mortgaged Property and all parts thereof, for the purpose
of investigating and inspecting the condition and operation thereof, and
shall permit reasonable access to the field offices and other offices,
including the principal place of business, of the Mortgagor to inspect
and examine the Mortgaged Property and to inspect, review and reproduce
as necessary any books, records, accounts, contracts or other documents
of the Mortgagor.
(b) Without limiting the generality of the foregoing, the Bank
shall have the right, on twenty-four (24) hours prior notice to the
Mortgagor, to cause such persons and entities as the Bank may designate
to enter the Mortgaged Property to conduct (at the cost and expense of
the Mortgagor), or to cause the Mortgagor to conduct (at the cost and
expense of the Mortgagor), such tests and investigations as the Bank
deems necessary to determine whether any hazardous substance or solid
waste is being generated, transported, stored, or disposed of in
accordance with applicable Environmental Laws. Such tests and
investigations may include, without limitation, underground borings,
ground water analyses and borings from the floors, ceilings and walls of
any improvements located on the Mortgaged Property. This Section 2.10
shall not be construed to affect or limit the obligations of the
Mortgagor pursuant to Section 2.5 hereof.
(c) The Bank shall have no duty to visit or observe the
Mortgaged Property or to conduct tests, and no site visit, observation
or testing by the Bank shall impose any liability on the Bank, nor shall
the Mortgagor or any other Obligor be entitled to rely on any visit,
observation or testing by the Bank in any respect. The Bank may, in its
discretion, disclose to the Mortgagor or any other Person, including any
governmental agency, any report or finding made as a result of, or in
connection with, any site visit, observation or testing by the Bank.
The Mortgagor agrees that the Bank makes no warranty or representation
to the Mortgagor or any other Obligor regarding the truth, accuracy or
completeness of any such report or findings that may be so disclosed.
The Mortgagor also acknowledges that, depending upon the results of any
site visit, observation or testing by the Bank and disclosed to the
Mortgagor, the Mortgagor may have a legal obligation to notify one or
more governmental agencies of such results, that such reporting
requirements are site-specific, and are to be evaluated by the Mortgagor
without advice or assistance from the Bank.
II.11 Environmental Laws. The Mortgagor represents and warrants, to
the best of its knowledge after due inquiry, and except as set forth in
Section 7.17 of the Credit Agreement that: the Mortgaged Property is in
compliance with all applicable Environmental Laws; there are no conditions
existing currently which would be likely to subject the Mortgagor to damages,
penalties, injunctive relief or cleanup costs under any Environmental Laws or
assertions thereof, or which require or are likely to require cleanup,
removal, remedial action or other response pursuant to Environmental Laws by
the Mortgagor; the Mortgagor is not a party to any litigation or
administrative proceedings, nor so far as is known by the Mortgagor is any
litigation or administrative proceeding threatened against it, which asserts
or alleges that the Mortgagor has violated or is violating Environmental Laws
or that the Mortgagor is required to clean up, remove or take remedial or
other responsive action due to the disposal, depositing, discharge, leaking or
other release of any hazardous substances or materials; neither the Mortgaged
Property nor the Mortgagor is subject to any judgment, decree, order or
citation related to or arising out of Environmental Laws and neither has been
named or listed as a potentially responsible party by any governmental body or
agency in a matter arising under any Environmental Laws. The Mortgagor has
also obtained all permits, licenses or approvals required under applicable
Environmental Laws which are necessary for its current exploration, use, and
development activities at the Mortgaged Property; and to the Mortgagor's
knowledge after reasonable investigation all use, generation, manufacturing,
release, discharge, storage, deposit, treatment, recycling or disposal of any
materials on, under or at the Mortgaged Property or transported to or from the
Mortgaged Property (or tanks or other facilities thereon containing such
materials) are being and will be conducted in accordance with applicable
Environmental Laws including without limitation those requiring cleanup,
removal or any other remedial action.
II.12 Partnership or Corporate Mortgagor. The Mortgagor will continue to
be duly qualified to transact business in each state where the conduct of its
business requires it to be qualified, and will not, without the prior written
consent of the Trustees, consolidate or merge with any other partnership or
corporation.
II.13 Taxpayer I.D. Number. The taxpayer identification numbers of the
Mortgagor are as follows:
Name Taxpayer ID Number
FUTURE ACQUISITION 1995 LTD. 75-2630182
BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP 75-2648720
NCI-SHAWNEE LIMITED PARTNERSHIP 75-2563029
The tax identification number of the Bank is.
ARTICLE III
Assignment of Production
III.1 Assignment. As further security for the payment of the
Indebtedness, up to the maximum amount outstanding as set forth in Section
1.4, the Mortgagor hereby transfers, assigns, warrants and conveys to the
Bank, effective as of November 1, 1998, at 7:00 A.M., local time, all
Hydrocarbons which are thereafter produced from and which accrue to the
Mortgaged Property, and all proceeds therefrom. All parties producing,
purchasing or receiving any such Hydrocarbons, or having such, or proceeds
therefrom, in their possession for which they or others are accountable to the
Bank by virtue of the provisions of this Article, are authorized and directed
to treat and regard the Bank as the assignee and transferee of the Mortgagor
and entitled in the Mortgagor's place and stead to receive such Hydrocarbons
and all proceeds therefrom; and said parties and each of them shall be fully
protected in so treating and regarding the Bank and shall be under no
obligation to see to the application by the Bank of any such proceeds or
payments received by it; provided, however, that, until the Bank or the
Mortgagor shall have instructed such parties to deliver such Hydrocarbons and
all proceeds therefrom directly to the Bank, such parties shall be entitled to
deliver such Hydrocarbons and all proceeds therefrom to Mortgagor. Upon (i)
an event of default or (ii) the occurrence of a Material Adverse Effect (it
being understood that the determination of the occurrence of an event of
default or a Material Adverse Effect, as the case may be, by the Bank shall be
conclusive and binding as to all such parties for all purposes hereof) said
Hydrocarbons and products are to be delivered into pipelines connected with
the oil and gas leases, or to the purchaser thereof, free and clear of all
taxes, charges, costs and expenses. The Mortgagor agrees to perform all such
acts, and to execute all such further assignments, transfers and division
orders, and other instruments as may be required or desired by the Bank or any
party in order to have said revenues and proceeds so paid to the Bank. The
Bank is fully authorized to receive and give receipt for said revenues and
proceeds; to endorse and cash any and all checks and drafts payable to the
order of the Mortgagor or the Bank for the account of the Mortgagor received
from or in connection with said revenues or proceeds and apply the proceeds
thereof in accordance with Section 3.2 hereof, and to execute transfer and
division orders in the name of the Mortgagor, or otherwise, with warranties
binding the Mortgagor.
III.2 Application of Proceeds. All payments received by the Bank
pursuant to Section 3.1 hereof shall be placed in a cash collateral account at
the Bank and on the last business day of each calendar month applied as
follows:
First: To the payment and satisfaction of all costs and expenses
incurred in connection with the collection of such proceeds, and to the
payment of all items of the Indebtedness not evidenced by any Note.
Second: To the payment of the interest on the Notes accrued to
the date of such payment.
Third: To the payment of the amounts of principal then due and
owing on the Notes.
Fourth: The balance, if any, shall either be applied on the then
unmatured principal amounts of the Notes, such application to be on such
of the Notes and installments thereof as the Bank may select, or, at the
option of the Bank, released to the Mortgagor.
III.3 No Liability of the Bank in Collecting. The Bank is hereby
absolved from all liability for failure to enforce collection of any proceeds
so assigned (and no such failure shall be deemed to be a waiver of any right
of the Bank under this Article) and from all other responsibility in
connection therewith, except the responsibility to account to the Mortgagor
for funds actually received.
III.4 Assignment Not a Restriction on the Bank's Rights. Nothing
herein contained shall detract from or limit the absolute obligation of the
Mortgagor to make payment of the Indebtedness regardless of whether the
proceeds assigned by this Article are sufficient to pay the same, and the
rights under this Article shall be in addition to all other security now or
hereafter existing to secure the payment of the Indebtedness.
III.5 Status of Assignment. Notwithstanding the other provisions of
this Article and in addition to the other rights hereunder, the Trustees, the
Bank or any receiver or keeper appointed in judicial proceedings for the
enforcement of this instrument shall have the right to receive all of the
Hydrocarbons herein assigned and the proceeds therefrom after any Note or
other item of Indebtedness has been declared due and payable in accordance
with the provisions of Section 4.1 hereof and to apply all of said proceeds as
provided in Section 3.2 hereof. Upon any sale of the Mortgaged Property or
any part thereof pursuant to Article V, the Hydrocarbons thereafter produced
from the property so sold, and the proceeds therefrom, shall be included in
such sale and shall pass to the purchaser free and clear of the assignment
contained in this Article.
III.6 Indemnity. The Mortgagor agrees to indemnify the Trustees and
the Bank against all claims, actions, liabilities, judgments, costs,
attorneys' fees or other charges of whatsoever kind or nature (all hereinafter
in this Section 3.6 called "claims") made against or incurred by them or any
of them as a consequence of the assertion, either before or after the payment
in full of the Indebtedness, that they or any of them received Hydrocarbons
herein assigned or the proceeds thereof claimed by third persons, and the
Trustees and the Bank shall have the right to defend against any such claims,
employing attorneys therefor, and unless furnished with reasonable indemnity,
they or any of them shall have the right to pay or compromise and adjust all
such claims. The Mortgagor will indemnify and pay to the Trustees or the Bank
any and all such amounts as may be paid in respect thereof or as may be
successfully adjudged against the Trustees and the Bank or any of them. The
obligations of the Mortgagor as hereinabove set forth in this Section 3.6
shall survive the release, termination, foreclosure or assignment of this
instrument or any sale hereunder.
ARTICLE IV
Events of Default
IV.1 Events of Default Hereunder. In case any one or more of the
following "events of default" shall occur and shall not have been remedied:
(a) default in the payment of principal of or interest on any
Note, or in the payment of any other Indebtedness secured hereby, when
due;
(b) the occurrence of an Event of Default (other than any
relating to non-payment of principal of or interest on the Loan Note)
under the terms and provisions of the Credit Agreement and the
continuance of such Event of Default for the applicable period of grace,
if any;
(c) any indebtedness of the Mortgagor shall become or shall be
declared to be due and payable prior to its expressed maturity by reason
of any default by the Mortgagor in the performance or observance of any
obligation or by reason of the existence of any condition constituting a
default in respect of such indebtedness;
(d) the Mortgagor shall (1) dissolve or terminate its
existence, (2) become insolvent, (3) generally fail to pay, or admit in
writing its inability to pay, debts as they become due, (4) make a
general assignment for the benefit of creditors, (5) apply for, consent
to, or acquiesce in the appointment of, a trustee, receiver or other
custodian for the Mortgagor or any property thereof, or (6) commence any
bankruptcy, reorganization, debt arrangement or other case or proceeding
under any bankruptcy or insolvency law (or consent to or acquiesce in
any such case or proceeding commenced against it);
(e) a trustee, receiver or other custodian shall be appointed
for the Mortgagor or for a substantial part of the property thereof and
(if not consented to or acquiesced in by the Mortgagor) shall not be
discharged within thirty (30) days, or any bankruptcy, reorganization,
debt arrangement or other case or proceeding under any bankruptcy or
insolvency law shall be commenced against the Mortgagor and (if not
consented to or acquiesced in by the Mortgagor) shall remain for
thirty (30) days undismissed;
(f) any warranty or representation made by the Mortgagor
herein shall prove to be untrue in any material respect as of the date
made or deemed made;
(g) failure by the Mortgagor, within ten (10) days after
notice thereof from the Bank, to cure a default in the due performance
or observance of any covenant or agreement contained in this instrument
and not constituting a default in the payment of principal of or
interest upon any Note or in the payment of any other Indebtedness;
(h) any of the Mortgaged Property shall be seized or taken by
any governmental or similar authority, or any order of attachment,
garnishment or any other writ shall be issued, or any other lawful
creditor's remedy shall be exercised or attempted to be exercised, with
respect thereto; or
(i) the title of the Mortgagor to the Mortgaged Property or any
substantial part thereof shall become the subject matter of litigation
which would or might, in the Bank's opinion, upon final determination
result in substantial impairment or loss of the security provided by
this instrument and upon notice by the Bank to the Mortgagor such
litigation is not dismissed within thirty (30) days of such notice,
then and in any such event the Bank, at its option, may declare the entire
unpaid principal of and the interest accrued on the Notes and all other
Indebtedness secured hereby to be forthwith due and payable, without any
notice or demand of any kind, both of which are hereby expressly waived.
ARTICLE V
Enforcement of the Security
V.1 Power of Sale of Real Property Constituting a Part of the
Mortgaged Property. Upon the occurrence of an event of default and if such
event shall be continuing, the Trustees shall have the right and power to
sell, to the extent permitted by law, at one or more sales, as an entirety or
in parcels, as they may elect, the real property constituting a part of the
Mortgaged Property (other than the Louisiana Mortgaged Property), at such
place or places and otherwise in such manner and upon such notice as may be
required by law, or, in the absence of any such requirement, as the Trustees
may deem appropriate, and to make conveyance to the purchaser or purchasers;
and the Mortgagor shall warrant title to such real property to such purchaser
or purchasers. The Trustees may postpone the sale of all or any portion of
such real property by public announcement at the time and place of such sale,
and from time to time thereafter may further postpone such sale by public
announcement made at the time of sale fixed by the preceding postponement.
The right of sale hereunder shall not be exhausted by one or any sale, and the
Trustees may make other and successive sales until all of the trust estate be
legally sold. With respect to that portion, if any, of the Mortgaged Property
situated in the State of Oklahoma, the Bank shall have the right and power at
its option to declare the Indebtedness secured hereby due and payable and to
sell, or direct the Trustees to sell, the "real estate," as such term is
defined under the provisions of 46 O.S. Supp. 1986, 42, constituting a part
of the Mortgaged Property, all under the terms of 46 O.S. Supp. 1986, 40 et
seq., and shall, to the extent permitted by law, have the other rights
conferred on the Trustees under the provisions of this instrument.
V.2 Rights of the Trustees with Respect to Personal Property
Constituting a Part of the Mortgaged Property. Upon the occurrence of an
event of default and if such event shall be continuing, the Trustees (or, in
the case of the Louisiana Mortgaged Property, the Bank for itself and as agent
for its Affiliates) will have all rights and remedies granted by law, and
particularly by the Uniform Commercial Code, including, but not limited to,
the right to take possession of all personal property constituting a part of
the Mortgaged Property, and for this purpose the Trustees (or, in the case of
the Louisiana Mortgaged Property, the Bank for itself and as agent for its
Affiliates) may enter upon any premises on which any or all of such personal
property is situated and take possession of and operate such personal property
(or any portion thereof) or remove it therefrom. The Trustees (or, in the
case of the Louisiana Mortgaged Property, the Bank for itself and as agent for
its Affiliates) may require the Mortgagor to assemble such personal property
and make it available to the Trustees (or, in the case of the Louisiana
Mortgaged Property, the Bank for itself and as agent for its Affiliates) at a
place to be designated by the Trustees (or, in the case of the Louisiana
Mortgaged Property, the Bank for itself and as agent for its Affiliates) which
is reasonably convenient to all parties. Unless such personal property is
perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market, the Trustees (or, in the case of the
Louisiana Mortgaged Property, the Bank for itself and as agent for its
Affiliates) will give the Mortgagor reasonable notice of the time and place of
any public sale or of the time after which any private sale or other
disposition of such personal property is to be made. This requirement of
sending reasonable notice will be met if the notice is mailed by first-class
mail, postage prepaid, to the Mortgagor at the address shown below the
signatures at the end of this instrument at least five (5) days before the
time of the sale or disposition. Further, in the case of the Louisiana
Mortgaged Property, the Bank shall have the right to utilize executory
process, as more fully set forth in Section 5.4 hereof and the right to
appointment of a keeper, as set forth in Sections 7.3 and 5.13 hereof.
V.3 Rights with Respect to Fixtures Constituting a Part of the
Mortgaged Property. Upon the occurrence of an event of default and if such
event shall be continuing, the Trustees (or, in the case of the Louisiana
Mortgaged Property, the Bank for itself and as agent for its Affiliates) may
elect to treat the fixtures constituting a part of the Mortgaged Property as
either real property collateral or personal property collateral and then
proceed to exercise such rights as apply to such type of collateral.
V.4 Judicial Proceedings. Upon the occurrence of an event of
default and if such event shall be continuing, the Trustees, (or, in the case
of the Louisiana Mortgaged Property, the Bank for itself and as agent for its
Affiliates) in lieu of or in addition to exercising any power of sale
hereinabove given, may proceed by a suit or suits in equity or at law, whether
for a foreclosure hereunder for each or upon credit in one or more parcels or
portions under executory or ordinary process, at the Bank's sole option,
without appraisement (appraisement being expressly waived), or for the sale of
the Mortgaged Property, or for the specific performance of any covenant or
agreement herein contained or in aid of the execution of any power herein
granted, or for the appointment of a receiver pending any foreclosure
hereunder or the sale of the Mortgaged Property, or for the enforcement of any
other appropriate legal or equitable remedy. The Mortgagor hereby
acknowledges the Indebtedness secured hereby, whether now existing or to arise
hereafter, and confesses judgment thereon in the full amount of the
Indebtedness in favor of the Bank and any future holder or holders of the
Notes if such obligations are not paid at maturity. With respect to the
Louisiana Mortgaged Property, the Mortgagor in accordance with the terms
hereof and the Credit Agreement does by these presents consent, agree and
stipulate that, upon the occurrence of an event of default hereunder or under
the Credit Agreement, the Bank or any future holder or holders of the Notes
and any other Indebtedness may, at its (or their) option, without making
demand and without notice or putting in default, the same being hereby
expressly waived, cause all and singular the Louisiana Mortgaged Property to
be seized and sold by executory process issued by any competent court, or to
proceed with the enforcement of this Mortgage and pledge of production in any
manner prescribed by law, the Mortgagor hereby waiving notice of demand or
delay stipulated in Article 2639 of the Code of Civil Procedure of Louisiana
and the benefit of any laws, or parts of laws, relating to the appraisement of
the property seized and sold under executory process or other legal process,
and consenting that the Mortgaged Property situated in the State of Louisiana
be sold without appraisement to the highest bidder for cash.
V.5 Possession of the Mortgaged Property. It shall not be necessary
for the Trustees or the Bank to have physically present or constructively in
their possession at any sale held by the Trustees or the Bank or by any court,
receiver or public officer any or all of the Mortgaged Property; and the
Mortgagor shall deliver to the purchasers at such sale on the date of sale the
Mortgaged Property purchased by such purchasers at such sale, and if it should
be impossible or impracticable for any of such purchasers to take actual
delivery of the Mortgaged Property, then the title and right of possession to
the Mortgaged Property shall pass to such purchaser at such sale as completely
as if the same had been actually present and delivered.
V.6 Certain Aspects of a Sale. The Bank shall have the right to
become the purchaser at any sale held by the Trustees or by any court,
receiver or public officer, and the Bank shall have the right to credit upon
the amount of the bid made therefor the amount payable out of the net proceeds
of such sale to it. Recitals contained in any conveyance made to any
purchaser at any sale made hereunder shall conclusively establish the truth
and accuracy of the matters therein stated, including, without limiting the
generality of the foregoing, nonpayment of the unpaid principal sum of, and
the interest accrued on, the Notes, after the same have become due and
payable, advertisement and conduct of such sale in the manner provided herein
or appointment of any successor Trustee hereunder.
V.7 Receipt to Purchaser. Upon any sale, whether made under the
power of sale herein granted and conferred or by virtue of judicial
proceedings, the receipt of the Trustees, or of the officer making sale under
judicial proceedings, shall be sufficient discharge to the purchaser or
purchasers at any sale for his or their purchase money, and such purchaser or
purchasers, or his or their assigns or personal representatives, shall not,
after paying such purchase money and receiving such receipt of the Trustees or
of such officer therefor, be obliged to see to the application of such
purchase money, or be in anywise answerable for any loss, misapplication or
nonapplication thereof.
V.8 Effect of Sale. Any sale or sales of the Mortgaged Property,
whether under the power of sale herein granted and conferred or by virtue of
judicial proceedings, shall operate to divest all right, title, interest,
claim and demand whatsoever either at law or in equity, of the Mortgagor of,
in and to the premises and the property sold, and shall be a perpetual bar,
both at law and in equity, against the Mortgagor, and the Mortgagor's
successors or assigns, and against any and all persons claiming or who shall
thereafter claim all or any of the property sold from, through or under the
Mortgagor or the Mortgagor's successors or assigns. Nevertheless, the
Mortgagor, if requested by the Bank so to do, shall join in the execution and
delivery of all proper conveyances, assignments and transfers of the
properties so sold.
V.9 Application of Proceeds. The proceeds of any sale of the
Mortgaged Property, or any part thereof, whether under the power of sale
herein granted and conferred or by virtue of judicial proceedings, shall be
applied as follows:
First: To the payment and satisfaction of all costs and expenses
incurred by the Bank and the Trustees in the performance of their duties
including, without limiting the generality of the foregoing, a
commission of five percent (5%) to the Trustees or any keeper and costs
and expenses of any entry, or taking of possession, of any sale, or
advertisement thereof, and of conveyances, and as well, court costs,
compensation of agents and employees and legal fees.
Second: To the payment of the interest on the Notes accrued to
the date of such payment.
Third: To the payment of the amounts of principal of the Notes
and of the other items of Indebtedness due and owing at the time of such
payment.
Fourth: Any surplus thereafter remaining shall be paid to the
Mortgagor or the Mortgagor's successors or assigns, as their interests
shall appear.
V.10 The Mortgagor's Waiver of Appraisement, Marshalling and Other
Rights. The Mortgagor agrees, to the full extent that the Mortgagor may
lawfully so agree, that the Mortgagor will not at any time insist upon or
plead or in any manner whatever claim the benefit of any appraisement,
valuation, stay, extension or redemption law now or hereafter in force, in
order to prevent or hinder the enforcement or foreclosure of this instrument
or the absolute sale of the Mortgaged Property or the possession thereof by
any purchaser at any sale made pursuant to any provision hereof, or pursuant
to the decree of any court of competent jurisdiction; but the Mortgagor, for
the Mortgagor and all who may claim through or under the Mortgagor, so far as
the Mortgagor or those claiming through or under the Mortgagor now or
hereafter lawfully may, hereby waives the benefit of all such laws; provided,
however, that appraisement of any of the Mortgaged Property located in the
State of Oklahoma is hereby expressly waived or not, at the option of the
Trustees, such option to be exercised prior to or at the time the judgment is
rendered in any foreclosure hereof. The Mortgagor, for the Mortgagor and all
who may claim through or under the Mortgagor, waives, to the extent that the
Mortgagor may lawfully do so, any and all right to have the Mortgaged Property
marshalled upon any foreclosure of the lien hereof, or sold in inverse order
of alienation, and agrees that the Trustees, the Bank or any court having
jurisdiction to foreclose such lien may sell the Mortgaged Property as an
entirety. The Mortgagor, for the Mortgagor and all who may claim through or
under the Mortgagor, further waives, to the full extent that the Mortgagor may
lawfully do so, any requirement for posting a receiver's bond or replevin bond
or other similar type of bond if the Trustees or the Bank commence an action
for appointment of a receiver or an action for replevin to recover possession
of any of the Mortgaged Property. If any law in this paragraph referred to
and now in force, of which the Mortgagor or the Mortgagor's successor or
successors might take advantage despite the provisions hereof, shall hereafter
be repealed or cease to be in force, such law shall not thereafter be deemed
to constitute any part of the contract herein contained or to preclude the
operation or application of the provisions of this paragraph. Pursuant to
Section 39-5-19, New Mexico Statutes, Annotated, 1978 Comp., as amended, the
Mortgagor agrees that as to the Mortgaged Property situated in the State of
New Mexico, the redemption period shall be shortened to one (1) month.
V.11 Costs and Expenses. All costs and expenses (including attorneys'
fees) incurred by the Trustees or the Bank in protecting and enforcing their
rights hereunder shall constitute a demand obligation owing by the Mortgagor
to the party incurring such costs and expenses and shall draw interest at an
annual rate equal to the highest rate of interest from time to time accruing
on the Loan Note plus one percent (1%) until paid, all of which shall
constitute a portion of the Indebtedness.
V.12 Sale of the Mortgaged Property in Texas. If any Note is not paid
when due, whether by acceleration or otherwise, the Trustees are hereby
authorized and empowered to sell any part of the Mortgaged Property located in
the State of Texas at public sale to the highest bidder for cash in the area
at the county courthouse of the county in Texas in which the Texas portion of
the Mortgaged Property or any part thereof is situated, as herein described,
designated by such county's commissioner's court for such proceedings, or if
no area is so designated, at the door of the county courthouse of said county,
at a time between the hours of 10:00 A.M. and 4:00 P.M. which is no later than
three (3) hours after the time stated in the notice described immediately
below as the earliest time at which such sale would occur on the first Tuesday
of any month, after advertising the earliest time at which said sale would
occur, the place, and terms of said sale, and the portion of the Mortgaged
Property to be sold, by (a) posting (or by having some person or persons
acting for the Trustees post) for at least twenty-one (21) days preceding the
date of the sale, written or printed notice of the proposed sale at the
courthouse door of said county in which the sale is to be made; and if such
portion of the Mortgaged Property lies in more than one county, one such
notice of sale shall be posted at the courthouse door of each county in which
such part of the Mortgaged Property is situated and such part of the Mortgaged
Property may be sold in the area at the county courthouse of any one of such
counties designated by such county's commissioner's court for such
proceedings, or if no area is so designated, at the courthouse door of such
county, and the notice so posted shall designate in which county such property
shall be sold, and (b) filing in the office of the county clerk of each county
in which any part of the Texas portion of the Mortgaged Property which is to
be sold at such sale is situated a copy of the notice posted in accordance
with the preceding clause (a). In addition to such posting and filing of
notice, the Bank or other holder of the Indebtedness shall, at least twenty-
one (21) days preceding the date of sale, serve or cause to be served written
notice of the proposed sale by certified mail on the Mortgagor and on each
other debtor, if any, obligated to pay the Indebtedness according to the
records of the Bank or other holder of the Indebtedness. Service of such
notice shall be completed upon deposit of the notice, enclosed in a postpaid
wrapper properly addressed to the Mortgagor and such other debtors at their
most recent address or addresses as shown by the records of the Bank or other
holder of the Indebtedness in a post office or official depository under the
care and custody of the United States Postal Service. The affidavit of any
person having knowledge of the facts to the effect that such a service was
completed shall be prima facie evidence of the fact of service. The Mortgagor
agrees that no notice of any sale, other than as set out in this paragraph,
need be given by the Trustees, the Bank or any other person, except as may
otherwise be required by applicable law. The Mortgagor hereby designates as
its address for the purpose of such notice the address set out on the
signature page hereof; and agrees that such address shall be changed only by
depositing notice of such change enclosed in a postpaid wrapper in a post
office or official depository under the care and custody of the United States
Postal Service, certified mail, postage prepaid, return receipt requested,
addressed to the Bank or other holder of the Indebtedness at the address for
the Bank set out herein (or to such other address as the Bank or other holder
of the Indebtedness may have designated by notice given as above provided to
the Mortgagor and such other debtors). Any such notice of change of address
of the Mortgagor or other debtors or of the Bank or of other holder of the
Indebtedness shall be effective three (3) business days after such deposit if
such post office or official depository is located in the State of Texas,
otherwise to be effective upon receipt. The Mortgagor authorizes and empowers
the Trustees to sell the Texas portion of the Mortgaged Property in lots or
parcels or in its entirety as the Trustees shall deem expedient; and to
execute and deliver to the purchaser or purchasers thereof good and sufficient
deeds of conveyance thereto by fee simple title, with evidence of general
warranty by the Mortgagor, and the title of such purchaser or purchasers when
so made by the Trustees, the Mortgagor binds itself to warrant and forever
defend. Where portions of the Mortgaged Property lie in different counties,
sales in such counties may be conducted in any order that the Trustees may
deem expedient; and one or more such sales may be conducted in the same month,
or in successive or different months as the Trustees may deem expedient.
Notwithstanding anything to the contrary contained herein, the Trustees may
postpone the sale provided for in this Section 5.13 at any time without the
necessity of a public announcement. The provisions hereof with respect to the
posting and giving of notices of sale are intended to comply with the
provisions of Section 51.002 of the Property Code of the State of Texas,
effective January 1, 1984, and in the event the requirements, or any notice,
under such Section 51.002 of the Property Code of the State of Texas shall be
eliminated or the prescribed manner of giving such notices modified by future
amendment to, or adoption of any statute superseding, Section 51.002 of the
Property Code of the State of Texas, the requirement for such particular
notices shall be deemed stricken from or modified in this instrument in
conformity with such amendment or superseding statute, effective as of the
effective date thereof.
V.13 Operation of the Mortgaged Property by the Trustees or the Bank.
Upon the occurrence of an event of default and during the continuance of such
event of default and in addition to all other rights herein conferred on the
Trustees, the Trustees or the Bank (or any person, firm or corporation
designated by the Trustees or the Bank) shall have the right and power, but
shall not be obligated, to enter upon and take possession of any of the
Mortgaged Property, and to exclude the Mortgagor, and the Mortgagor's agents
or servants, wholly therefrom, and to hold, use, administer, manage and
operate the same to the extent that the Mortgagor shall be at the time
entitled and in its place and stead. The Trustees, the Bank or any person,
firm or corporation designated by the Trustees or the Bank, may operate the
same without any liability to the Mortgagor in connection with such
operations, except to use ordinary care in the operation of such properties,
and the Trustees, the Bank or any person, firm or corporation designated by
the Trustees or the Bank, shall have the right to collect, receive and receipt
for all Hydrocarbons produced and sold from said properties, to make repairs,
purchase machinery and equipment, conduct work-over operations, drill
additional wells and to exercise every power, right and privilege of the
Mortgagor with respect to the Mortgaged Property. When and if the expenses of
such operation and development (including costs of unsuccessful work-over
operations or additional wells) paid by the Trustees or the Bank or
attributable to the Mortgagor's undivided interest therein and withheld, or
offset against, by an operator or other party have been paid or reimbursed in
full by the Mortgagor and the Indebtedness paid, said properties shall, if
there has been no sale or foreclosure, be returned to the Mortgagor. In the
event that any of the Louisiana Mortgaged Property is seized as an incident to
an action for the recognition or the enforcement of this instrument, whether
by executory process, writ of fieri facias, sequestration, or otherwise, the
court issuing the order under which the seizure is to be effected shall, if
such order is petitioned for by the holder or holders of the Notes, direct the
sheriff or other officer making the seizure to appoint as keeper of the
Louisiana Mortgaged Property, in accordance with La. R.S. 9:5131 through 5135
and/or 9:5136 through 5140.2, such person as may be named by the Bank at the
time the seizure is effected.
ARTICLE VI
[Reserved.]
ARTICLE VII
Miscellaneous Provisions
VII.1 Pooling and Unitization. The Mortgagor shall have the right, and
is hereby authorized, to pool or unitize all or any part of any tract of land
described in Exhibit A, insofar as relates to the Mortgaged Property, with
adjacent lands, leaseholds and other interests, when, in the reasonable
judgment of the Mortgagor, it is necessary or advisable to do so in order to
form a drilling unit to facilitate the orderly development of that part of the
Mortgaged Property affected thereby, or to comply with the requirements of any
law or governmental order or regulation relating to the spacing of wells or
proration of the production therefrom; provided, however, that any unit so
formed for the production of oil shall not substantially exceed 160 acres, and
any unit so formed for the production of gas shall not substantially exceed
640 acres, unless a larger area is required to conform to an applicable law or
governmental order or regulation relating to the spacing of wells or to obtain
the maximum allowable production under any applicable law or governmental
order or regulation relating to the proration of production therefrom; and
further provided that the Hydrocarbons produced from any unit so formed shall
be allocated among the separately owned tracts or interests comprising the
unit in a uniform manner consistently applied. Any unit so formed may relate
to one or more zones or horizons, and a unit formed for a particular zone or
horizon need not conform in area to any other unit relating to a different
zone or horizon, and a unit formed for the production of oil need not conform
in area with any unit formed for the production of gas. Immediately after
formation of any such unit, the Mortgagor shall furnish to the Trustees and
the Bank a true copy of the pooling agreement, declaration of pooling or other
instrument creating such unit, in such number of counterparts as the Trustees
may reasonably request. The interest in any such unit attributable to the
Mortgaged Property (or any part thereof) included therein shall become a part
of the Mortgaged Property and shall be subject to the lien hereof in the same
manner and with the same effect as though such unit and the interest of the
Mortgagor therein were specifically described in Exhibit A. The Mortgagor may
enter into pooling or unitization agreements not hereinabove authorized only
with the prior written consent of the Trustees and the Bank.
VII.2 Successor Trustees. Any Trustee may resign in writing addressed
to the Bank or may be removed at any time with or without cause by an
instrument in writing duly executed by the Bank. In case of the death,
resignation or removal of a Trustee, one or more successor Trustees may be
appointed by the Bank by instrument of substitution complying with any
applicable requirements of law, and in the absence of any such requirement
without formality other than appointment and designation in writing. Such
appointment and designation shall be full evidence of the right and authority
to make the same and of all facts therein recited, and upon the making of any
such appointment and designation this conveyance shall vest in the named
successor Trustee or Trustees, all the estate and title of the prior Trustee
in all of the Mortgaged Property, and he or they shall thereupon succeed to
all the rights, powers, privileges, immunities and duties hereby conferred
upon the prior Trustee. All references herein to the Trustees shall be deemed
to refer to the Trustees from time to time acting hereunder.
VII.3 Actions or Advances by the Bank or the Trustees. Each and every
covenant herein contained shall be performed and kept by the Mortgagor solely
at the Mortgagor's expense. If the Mortgagor shall fail to perform or keep
any of the covenants of whatsoever kind or nature contained in this
instrument, the Bank, or the Trustees or any receiver or keeper appointed
hereunder or under Applicable Law, may, but shall not be obligated to, take
action and/or make advances to perform the same in the Mortgagor's behalf, and
the Mortgagor hereby agrees to repay the expense of such action and such
advances upon demand plus interest at an annual rate equal to the Alternate
Base Rate (as defined in the Credit Agreement) of interest from time to time
accruing on the Loan Note plus the Applicable Margin (as defined in the Credit
Agreement) plus three percent (3%) until paid or, in the event any promissory
note evidences such indebtedness, upon the terms and conditions thereof. No
such advance or action by the Bank, the Trustees or any keeper or receiver
appointed hereunder shall be deemed to relieve the Mortgagor from any default
hereunder.
VII.4 Defense of Claims. The Mortgagor will notify the Trustees and
the Bank, in writing, promptly of the commencement of any legal proceedings
affecting the lien or security interest hereof or the Mortgaged Property, or
any part thereof, and will take such action, employing attorneys agreeable to
the Trustees and the Bank, as may be necessary or appropriate to preserve the
Mortgagor's, the Trustees' and the Bank's rights affected thereby and/or to
hold harmless the Trustees, the Bank and its Affiliates in respect of such
proceedings; and should the Mortgagor fail or refuse to take any such action,
the Trustees or the Bank may, upon giving prior written notice thereof to the
Mortgagor, take such action in behalf and in the name of the Mortgagor and at
the Mortgagor's expense. Moreover, the Bank or the Trustees on behalf of the
Bank, may take such independent action in connection therewith as it or they
may in its or their discretion deem proper, the Mortgagor hereby agreeing that
all sums advanced or all expenses incurred in such actions plus interest at an
annual rate equal to the Alternate Base Rate of interest from time to time
accruing on the Loan Note plus the Applicable Margin plus three percent (3%)
until paid, will, on demand, be reimbursed, as appropriate, to the Bank, the
Trustees or any keeper or receiver appointed hereunder or under applicable
law. The obligations of the Mortgagor as hereinabove set forth in this
Section 7.4 shall survive the release, termination, foreclosure or assignment
of this instrument or any sale hereunder.
VII.5 The Mortgaged Property to Revert. If the Indebtedness shall be
fully paid and the covenants herein contained shall be well and truly
performed, then all of the Mortgaged Property shall revert to the Mortgagor
and the entire estate, right, title and interest of the Trustees and the Bank
shall thereupon cease; and the Trustees and the Bank in such case shall, upon
the request of the Mortgagor and at the Mortgagor's cost and expense, deliver
to the Mortgagor proper instruments acknowledging satisfaction of this
instrument.
VII.6 Renewals, Amendments and Other Security. Renewals and extensions
of the Indebtedness may be given at any time and amendments may be made to
agreements with third parties relating to any part of such Indebtedness or the
Mortgaged Property and the Trustees and the Bank may take or may now hold
other security from others for the Indebtedness, all without notice to or
consent of the Mortgagor. The Trustees or the Bank may resort first to such
other security or any part thereof or first to the security herein given or
any part thereof, or from time to time to either or both, even to the partial
or complete abandonment of either security, and such action shall not be a
waiver of any rights conferred by this instrument, which shall continue as a
first lien upon and prior perfected security interest in the Mortgaged
Property not expressly released until the Notes and all other Indebtedness
secured hereby are fully paid.
VII.7 Instrument an Assignment, etc. This instrument shall be deemed
to be and may be enforced from time to time as an assignment, chattel
mortgage, contract, deed of trust, financing statement, real estate (immovable
property) mortgage, or security agreement, and from time to time as any one or
more thereof.
VII.8 Limitation on Interest. No provision of this instrument or of
the Notes, the Credit Agreement or any other Loan Document (as defined in the
Credit Agreement) shall require the payment or permit the collection of
interest in excess of the maximum permitted by law or which is otherwise
contrary to law. If any excess of interest in such respect is herein or in
the Notes, the Credit Agreement or any other Loan Document provided for, or
shall be adjudicated to be so provided for herein or in the Notes, the Credit
Agreement or any other Loan Document, the Mortgagor shall not be obligated to
pay such excess.
VII.9 Unenforceable or Inapplicable Provisions. If any provision
hereof or of the Notes is invalid or unenforceable in any jurisdiction, the
other provisions hereof or of the Notes shall remain in full force and effect
in such jurisdiction, and the remaining provisions hereof shall be liberally
construed in favor of the Trustees and the Bank in order to effectuate the
provisions hereof, and the invalidity of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of any such
provision in any other jurisdiction. Any reference herein contained to a
statute or law of a state in which no part of the Mortgaged Property is
situated shall be deemed inapplicable to, and not used in, the interpretation
hereof.
VII.10 Rights Cumulative. Each and every right, power and remedy
herein given to the Trustees or the Bank shall be cumulative and not
exclusive; and each and every right, power and remedy whether specifically
herein given or otherwise existing may be exercised from time to time and so
often and in such order as may be deemed expedient by the Trustees or the
Bank, as the case may be, and the exercise, or the beginning of the exercise,
of any such right, power or remedy shall not be deemed a waiver of the right
to exercise, at the same time or thereafter, any other right, power or remedy.
No delay or omission by the Trustees or by the Bank in the exercise of any
right, power or remedy shall impair any such right, power or remedy or operate
as a waiver thereof or of any other right, power or remedy then or thereafter
existing.
VII.11 Waiver by the Trustees. Any and all covenants in this
instrument may from time to time by instrument in writing signed by the
Trustees and the Bank be waived to such extent and in such manner as the
Trustees and the Bank may desire, but no such waiver shall ever affect or
impair either the Trustees' or the Bank's rights or liens or security
interests hereunder, except to the extent specifically stated in such written
instrument.
VII.12 Action by Individual Trustee. Any Trustee from time to time
serving hereunder shall have the absolute right, acting individually, to take
any action and to give any consent and to exercise any right, remedy, power,
privilege or authority conferred upon the Trustees, and any action taken by
either Trustee from time to time serving hereunder shall be binding upon the
other Trustee and no person dealing with either Trustee from time to time
serving hereunder shall be obligated to confirm the power and authority of
such Trustee to act without the concurrence of the other Trustee. In this
instrument, the term "Trustee" shall mean the Trustees hereinabove named, or
either of them, as the context requires, and any successor Trustee.
VII.13 Environmental Indemnification. The Mortgagor will indemnify and
hold the Bank, its Affiliates and the Trustees harmless from and against and
reimburse the Bank, its Affiliates and the Trustees with respect to, any and
all claims, demands, causes of action, losses, damages, liabilities, costs and
expenses (including reasonable attorney's fees and court costs) of any and
every kind or character, known or unknown, fixed or contingent, out-of-pocket
or consequential, asserted against or by the Bank, any of its Affiliates or
the Trustees at any time and from time to time by reason of or arising out of
any violation of any Environmental Laws applicable to the Mortgagor and/or the
Mortgaged Property and any and all matters arising out of any act, omission,
event or circumstance existing or occurring (including, without limitation,
the presence on the Mortgaged Property or release from the Mortgaged Property
of hazardous substances or solid waste disposed of or otherwise released),
regardless of whether the act, omission, event or circumstance constituted a
violation of any Environmental Law at the time of its existence or occurrence.
The terms "hazardous substance" and "release" shall have the meanings
specified in the Federal Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as subsequently modified, supplemented or amended
(herein called "CERCLA"), and for purposes of RCRA (as defined below)
compliance the terms "solid waste" and "disposed" shall have the meanings
specified in the Federal Resource Conservation and Recovery Act of 1976, as
subsequently modified, supplemented or amended (herein called "RCRA");
provided, in the event that either CERCLA or RCRA is amended so as to broaden
the meaning of any term defined thereby, such broader meaning shall apply
subsequent to the effective date of such amendment and provided further, to
the extent the laws of any jurisdiction where the Mortgaged Property is
located on the date hereof or on any subsequent date establish a meaning for
"hazardous substance," "release," "solid waste," or "disposal" which is
broader than that specified in either CERCLA or RCRA, such broader meaning
shall apply. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Mortgagor hereby agrees to make the maximum
contribution to the payment and satisfaction of the indemnified claims,
demands, causes of action, losses, damages, liabilities, costs, expenses and
fees which is permissible under applicable law. The obligations of the
Mortgagor as hereinabove set forth in this Section 7.13 shall survive the
release, termination, foreclosure or assignment of this instrument or any sale
hereunder.
VII.14 No Partnership. Nothing contained in this instrument is
intended to, or shall be construed as, creating to any extent and in any
manner whatsoever, any partnership, joint venture, or association among the
Mortgagor, the Trustees, the Bank and its Affiliates, or in any way as to make
the Bank or the Trustees coprincipals with the Mortgagor with reference to the
Mortgaged Property, and any inferences to the contrary are hereby expressly
negated.
VII.15 Successors and Assigns. This instrument is binding upon the
Mortgagor, the Mortgagor's successors and assigns, and shall inure to the
benefit of the Trustees, their successors, and the Bank, its successors and
assigns, and the provisions hereof shall likewise be covenants running with
the land.
VII.16 Article and Section Headings. The article and section headings
in this instrument are inserted for convenience of reference and shall not be
considered a part of this instrument or used in its interpretation.
VII.17 Execution in Counterparts. This instrument may be executed in
any number of counterparts, each of which shall for all purposes be deemed to
be an original and all of which are identical, except that, to facilitate
recordation or filing, in any particular counterpart portions of Exhibit A
hereto which describe properties situated in parishes or counties other than
the parish or county in which such counterpart is to be recorded or filed may
have been omitted.
VII.18 Special Filing as Financing Statement. This Mortgage and Deed
of Trust shall likewise be a Security Agreement and a Financing Statement.
This Mortgage and Deed of Trust shall be filed for record, among other places,
in the real estate records of each county or parish in which any portion of
the real property covered by the oil and gas leases described in Exhibit A
hereto is situated, and, when filed in such counties or parishes shall be
effective as a financing statement covering fixtures located on oil and gas
properties, which oil and gas properties (and accounts arising therefrom) are
to be financed at the wellheads of the wells located on the real property
described in Exhibit A hereto. At the option of the Bank, a carbon,
photographic or other reproduction of this instrument or of any financing
statement covering the Mortgaged Property or any portion thereof shall be
sufficient as a financing statement and may be filed as such.
VII.19 Notices. Except as otherwise required by Sections 5.2 and 5.12
hereof, any notice, request, demand or other instrument which may be required
or permitted to be given or served upon the Mortgagor shall be sufficiently
given when mailed by first-class mail, addressed to the Mortgagor at the
address shown below the signatures at the end of this instrument or to such
different address as the Mortgagor shall have designated by written notice
received by the Bank or the Trustees.
VII.20 Waivers. The parties hereto expressly waive the production of
Mortgage Certificates and hereby release and hold the Notary Public whose name
is hereunder signed harmless for and by reason of the nonproduction and
nonannexation thereof to this instrument.
VII.21 Reliance. Notwithstanding any reference herein to the Credit
Agreement, the Notes or the Hedging Agreement, no party shall have any
obligation to inquire into the terms or conditions of any such documents and
all parties shall be fully authorized to rely upon any statement, certificate,
or affidavit of Bank or any future holder of any portion of the Indebtedness
as to the occurrence of any event such as the occurrence of any event of
default.
VII.22 The Bank as Agent for its Affiliates. As described above,
certain Affiliates of the Bank are or may become parties to certain Hedging
Agreements with the Borrower, the Mortgagor and/or Affiliates of the Borrower
or the Mortgagor. This instrument secures the obligations of the Borrower or
the Mortgagor or such Affiliates, as the case may be, under such Hedging
Agreements, and the parties acknowledge for all purposes that the Bank acts
for itself and as agent on behalf of such Affiliates of the Bank which are so
entitled to share in the rights and benefits accruing to the Bank under this
instrument in respect of the Mortgaged Property.
VII.23 Transfer of the Notes without Notarial Act. The parties hereto
agree that the Notes may be transferred without the necessity for a notarial
act of transfer thereof, and that any such transfer shall carry with it into
the hands of any future holder or holders of the Notes full and entire
subrogation of title in and to the Notes to any and all rights and privileges
under this instrument herein granted to the Bank, as holder of the Notes.
This Mortgage is for the benefit of the Bank for itself and its Affiliates,
and for such other person or persons as may from time to time become or be the
holders of any of the Indebtedness, and this Mortgage shall be transferrable
and negotiable, with the same force and effect and to the same extent as the
Indebtedness may be transferrable, it being understood that, upon the transfer
or assignment by the Bank of any of the Indebtedness, the legal holder of such
Indebtedness shall have all of the rights granted to the Bank under this
Mortgage. The Mortgagor specifically agrees that upon any transfer of all or
any portion of the Indebtedness, this Mortgage shall secure with retroactive
rank the then existing Indebtedness of the Mortgagor to the transferee and any
and all Indebtedness to such transferee thereafter arising.
VII.24 Authentic Evidence. Any and all declarations of facts made by
authentic act before a notary public in the presence of two witnesses by a
person declaring that such facts lie within his knowledge, shall constitute
authentic evidence of such facts for the purpose of executory process. The
Mortgagor specifically agrees that such an affidavit by a representative of
the Bank as to the existence, amount, terms and maturity of the Indebtedness
and of a default thereunder shall constitute authentic evidence of such facts
for the purpose of executory process. For purposes of executory process, the
Mortgagor declares that on this 19th day of November, 1998, it has appeared in
the presence of the undersigned Notary Public and two witnesses and has
executed this instrument through its General Partner, such general partner
being represented herein by B. Carl Price its President, duly authorized
pursuant to Resolutions of the Board of Directors of such general partner, a
certified copy of which is annexed hereto as Exhibit "B" and the Trustees and
the Bank declare that on this 19th day of November, 1998, they have appeared
in the presence of the undersigned Notary Public and two witnesses and have
executed this instrument.
IN WITNESS WHEREOF, the Mortgagor has executed or caused to be executed
this Mortgage, Deed of Trust, Assignment, Security Agreement, Financing
Statement and Fixture Filing in the presence of the undersigned Notary Public
and two witnesses on this 18th day of November, 1998.
MORTGAGOR AND DEBTOR
Witnesses to
all signatures:
FUTURE ACQUISITION 1995 LTD,
a Texas limited partnership
By: Future Petroleum Corporation, a Texas
corporation, its sole general partner
By:/s/ Carl Price
Title: President
Printed Name: B. Carl Price
BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP, a
Texas limited partnership
By: Future Petroleum Corporation, a Texas
corporation, its sole general partner
By: /s/ Carl Price
Title: President
Printed Name: B. Carl Price
NCI-SHAWNEE LIMITED PARTNERSHIP,
a Texas limited partnership
By: Future Petroleum Corporation, a Texas
corporation, its sole general partner
By: /s/ Carl Price
Title: President
Printed Name: B. Carl Price
ATTEST:
/s/ Christie Sirera
Secretary
Printed Name: Christie Sirera
The name and mailing address of the Mortgagor is:
c/o Future Petroleum Corporation
2351 W. Northwest Highway
Dallas, TX 75220
Notary Public
IN WITNESS WHEREOF, the Trustees and the Bank have executed or caused to
be executed this Mortgage, Deed of Trust, Assignment, Security Agreement,
Financing Statement and Fixture Filing in the presence of the undersigned
Notary Public and two witnesses on this 18th day of November, 1998.
Witnesses to
all signatures:
SECURED PARTIES
Richard A. Bernardy, Trustee
John H. Homier, Trustee
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By: /s/ Richard Bernardy
Vice President
Printed Name: Richard Bernardy
ATTEST:
/s/ John H. Homier
Banking Officer/Clerk
Printed Name John H. Homier
The names and mailing addresses
of the Secured Parties are:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
Richard H. Bernardy, Trustee and John H. Homier Trustee
231 South LaSalle Street
Chicago, Cook County, Illinois 60697
Attention: Energy and Minerals Department
Oil and Gas Group
Notary Public
This Instrument Was Prepared By:
Kevin L. Shaw, Esq.
Mayer, Brown & Platt
350 South Grand Avenue
Los Angeles, CA 90071
STATE OF TEXAS )
) SS.
COUNTY OF HARRIS )
BE IT REMEMBERED that I, TERESA H. CATO, a Notary Public duly
qualified, commissioned, sworn and acting in and for the County and State
aforesaid, hereby certify that, on this 19th day of November, 1998, there
appeared before me severally each of the following persons, each being either
a Trustee or else the designated officer of the corporation or association set
opposite his name, and each such Trustee, corporation and association being a
party to the foregoing instrument:
Carl Price, the President and Secretary of Future Petroleum Corporation,
a Texas corporation, the sole general partner of (1) Future Acquisition 1995,
Ltd., a Texas limited partnership (2) BMC Development No. 1 Limited
Partnership, a Texas limited partnership and (3) NCI-Shawnee Limited
Partnership, a Texas limited partnership, whose address is 2351 West Northwest
Highway, Suite 2130, Dallas, Texas 75220;
Richard H. Bernardy, Vice President of Bank of America National Trust
and Savings Association, a national banking association, whose address is
231 South LaSalle Street, Chicago, Illinois 60697; and
Richard H. Bernardy and John H. Homier whose addresses are 231 South
LaSalle Street, Chicago, Illinois 60697, as Trustees.
ILLINOIS The foregoing instrument was acknowledged before me this day by
said persons as the designated officers of the corporation
or association set opposite their names (or as Trustees, as
the case may be) on behalf of said corporation or
association (or themselves, as Trustees).
NEW MEXICO The foregoing instrument was acknowledged before me this day by
each such person as the designated officers of the
corporation or association set opposite their names (or as
Trustees, as the case may be) on behalf of said corporation
or association, or himself as a Trustee, as the case may be.
OKLAHOMA Before me on this day personally appeared the aforementioned
persons, to me known to be the identical persons who
subscribed the names of the respective makers thereof to the
foregoing instrument in the capacities set forth opposite
the names of such persons above, and each such person
acknowledged to me that he executed the same as his free and
voluntary act and deed and as the free and voluntary act and
deed of the corporation or association set opposite his name
(or of himself as Trustee, as the case may be) for the uses
and purposes therein set forth.
TEXAS This instrument was acknowledged before me on this day by each such
person as the designated officer of the corporation or
association set opposite his name (or a Trustee, as the case
may be), on behalf of said corporation or association set
opposite his name (or of himself as Trustee, as the case may
be).
MISSISSIPPI Before me on this day personally appeared the aforementioned
persons, whose names are signed to the foregoing conveyance
in the capacities set forth opposite the names of such
persons above, and who are known to me, acknowledged before
me on this day that, being informed of the contents of the
conveyance, they, as such officers or Trustees with full
authority, executed the same voluntarily for and as the act
of said association or said Trustees, as the case may be.
Witness my hand and official seal.
Notary Public
Residing at: 700 Louisiana, Suite
3600
Houston, Texas 77002
My commission expires:
EXHIBIT A To Mortgage, Deed of Trust, Assignment,
Security Agreement, Financing Statement and Fixture Filing, dated
November 18, 1998 from FUTURE ACQUISITION 1995 LTD.,
BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP, and
NCI-SHAWNEE LIMITED PARTNERSHIP
to Richard A. Bernardy and John H. Homier
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
List of Properties
1. Depth limitations, unit designations, unit tract descriptions and
descriptions (including percentages, decimals or fractions) of undivided
leasehold interests, well names, "Operating Interests", "Working Interests"
and "Net Revenue Interests" contained in this Exhibit A and the listing of any
percentage, decimal or fractional interest in this Exhibit A shall not be
deemed to limit or otherwise diminish the interests being subjected to the
lien, security interest and encumbrance of this instrument.
2. Some of the land descriptions in this Exhibit A may refer only to
a portion of the land covered by a particular lease. This instrument is not
limited to the land described in Exhibit A but is intended to cover the entire
interest of the Mortgagor in any lease described in Exhibit A even if such
interest relates to land not described in Exhibit A. Reference is made to the
land descriptions contained in the documents of title recorded as described in
this Exhibit A. To the extent that the land descriptions in this Exhibit A
are incomplete, incorrect or not legally sufficient, the land descriptions
contained in the documents so recorded are incorporated herein by this
reference.
3. References in Exhibit A to instruments on file in the public
records are made for all purposes. Unless provided otherwise, all recording
references in Exhibit A are to the official real property records of the
county or counties (or parish or parishes) in which the mortgaged property is
located and in which records such documents are or in the past have been
customarily recorded, whether Deed Records, Oil and Gas Records, Oil and Gas
Lease Records or other records.
4. A statement herein that a certain interest described herein is
subject to the terms of certain described or referred to agreements,
instruments or other matters shall not operate to subject such interest to any
such agreement, instrument or other matter except to the extent that such
agreement, instrument or matter is otherwise valid and presently subsisting
nor shall such statement be deemed to constitute a recognition by the parties
hereto that any such agreement, instrument or other matter is valid and
presently subsisting.
[ADD PROPERTY DESCRIPTIONS]
EXHIBIT B To Mortgage, Deed of Trust, Assignment,
Security Agreement, Financing Statement and Fixture Filing, dated
November 18, 1998 from FUTURE ACQUISITION 1995 LTD.,
BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP, and
NCI-SHAWNEE LIMITED PARTNERSHIP
to Richard A. Bernardy and John H. Homier
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
Notary's Certificate
The undersigned Notary Public hereby certifies that attached hereto are
certified copies of Resolutions produced by the Mortgagor and attached by me
to this Mortgage, Deed of Trust, Security Agreement, Financing Statement and
Fixture Filing.
NOTARY PUBLIC
[Certified Resolutions of the general partner of the Mortgagor]
[Louisiana requirement only]
AMENDMENT TO
MORTGAGE, DEED OF TRUST, ASSIGNMENT,
SECURITY AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING
FROM
FUTURE ACQUISITION 1995, LTD.,
(Taxpayer I.D. No. 75-2630182)
BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP AND
(Taxpayer I.D. No. 75-2648720)
NCI-SHAWNEE LIMITED PARTNERSHIP
(Taxpayer I.D. No. 75-2563029)
TO
JOHN H. HOMIER, Trustee
AND
RICHARD A. BERNARDY, Trustee
AND
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION
(Taxpayer I.D. No. 94-1687665)
for itself and as Agent for its Affiliates
Dated as of November 18, 1998
"THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS."
"THIS INSTRUMENT SECURES PAYMENT OF FUTURE ADVANCES."
"THE OIL AND GAS INTERESTS INCLUDED IN THE MORTGAGED PROPERTY WILL BE FINANCED
AT THE WELLHEADS OF THE WELLS LOCATED ON THE PROPERTIES DESCRIBED IN EXHIBIT
AA HERETO, AND THIS FINANCING STATEMENT IS TO BE FILED FOR RECORD, AMONG OTHER
PLACES, IN THE REAL ESTATE RECORDS OF THE COUNTY RECORDERS OF KERN COUNTY,
CALIFORNIA, AND IN LEA COUNTY, NEW MEXICO, AND IN MIDLAND, HUTCHINSON,
LUBBOCK, CARSON, GRAY, MOORE, JASPER, SAN PATRICIO, WHARTON, CRANE, HARRIS,
MONTGOMERY, DAWSON AND WICHITA COUNTIES, TEXAS AND IN MARSHALL, GRANT AND
POTTOWATAMIE COUNTIES, OKLAHOMA."
"THE MORTGAGOR HAS AN INTEREST OF RECORD IN THE REAL ESTATE CONCERNED, WHICH
IS DESCRIBED IN EXHIBIT AA HERETO."
"SOME OF THE PERSONAL PROPERTY CONSTITUTING A PORTION OF THE MORTGAGED
PROPERTY IS OR IS TO BE AFFIXED TO THE PROPERTIES DESCRIBED IN EXHIBIT AA
HERETO, AND THIS FINANCING STATEMENT IS TO BE FILED FOR RECORD, AMONG OTHER
PLACES, IN THE REAL ESTATE RECORDS."
"A POWER OF SALE HAS BEEN GRANTED IN THIS INSTRUMENT. A POWER OF SALE MAY
ALLOW THE MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING
TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE MORTGAGOR UNDER THIS
INSTRUMENT."
"THE SECURED PARTIES ARE NOT A SELLER OR PURCHASE MONEY LENDER OF THE
COLLATERAL."
THIS INSTRUMENT WAS PREPARED BY AND
WHEN RECORDED AND/OR
FILED RETURN TO:
Kevin L. Shaw, Esq.
Mayer, Brown & Platt
350 South Grand Avenue
Suite 2500
Los Angeles, CA 90071
AMENDMENT TO MORTGAGE,
DEED OF TRUST, ASSIGNMENT, SECURITY AGREEMENT,
FINANCING STATEMENT AND FIXTURE FILING
THIS AMENDMENT TO MORTGAGE, DEED OF TRUST, ASSIGNMENT, SECURITY
AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING, dated as of November 18,
1998 (herein called this "Amendment"), is from FUTURE ACQUISITION 1995, LTD.,
a Texas limited partnership, BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP, a
Texas limited partnership and NCI-SHAWNEE LIMITED PARTNERSHIP, a Texas limited
partnership (herein collectively called the "Mortgagor"), to John H. Homier
and Richard A. Bernardy of Chicago, Illinois, as Trustees (hereinafter
defined), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION having
offices at 231 South LaSalle Street, Chicago, Illinois 60697 (herein called
the "Bank"),
W I T N E S E T H:
WHEREAS, the Mortgagor has heretofore executed and delivered to the
Bank, for itself and as agent for its Affiliates (as such term is defined in
the Credit Agreement referred to below) and John H. Homier and Richard A.
Bernardy, as trustees for the Bank (each person acting in such capacity being
herein sometimes individually called a "Trustee" and collectively called the
"Trustees"), that certain Mortgage, Deed of Trust, Assignment, Security
Agreement and Financing Statement, dated as of August 14, 1998 (herein called
the "Mortgage"), to secure payment of indebtedness owed or to be owing to the
Bank pursuant to the terms of a certain Credit Agreement dated as of August
14, 1998 (as the same has been or may have been amended or modified, herein
called the "Existing Credit Agreement"), between FUTURE PETROLEUM CORPORATION,
a Utah corporation ("Borrower") and the Bank, including, without limitation,
indebtedness evidenced by that certain Secured Promissory Note of the
Borrowers, dated August 14, 1998, in the original principal amount of
$20,000,000, payable to the Bank or its order on or before August 14, 2003,
bearing interest at the rates provided for therein, and containing provisions
for payment of attorneys' fees and acceleration of maturity in the event of
default, as therein set forth (herein called the "Prior Note");
WHEREAS, pursuant to the terms of a certain Amendment No. 1 to Credit
Agreement, dated as of November 16, 1998 (herein called the "First Amendment";
the Existing Credit Agreement, as amended by the First Amendment, being herein
called the "Credit Agreement"), between the Mortgagor and the Bank, the
Mortgagor has executed and delivered to the Bank its new promissory note,
dated November 18, 1998, in the original principal amount of $27,500,000,
payable to the Bank or its order on or before August 14, 2003, bearing
interest at the rates provided for therein, and containing provisions for
payment of attorneys' fees and acceleration of maturity in the event of
default, as therein set forth (herein, together with any extensions or
renewals thereof or replacements or substitutions therefor, called the "New
Note"), said New Note evidencing (i) to the extent of $20,000,000, a renewal
of the principal amount of the Prior Note, and (ii) to the extent of the
balance thereof, additional loans to be made by the Bank to the Mortgagor
pursuant to the terms of the Credit Agreement;
WHEREAS, the Mortgage has been filed and recorded as set forth in
Schedule I hereto, among other places;
WHEREAS, the Mortgagor desires to amend the Mortgage so as, among other
things, to include the Indebtedness (as defined in the Mortgage and used
herein with the meaning assigned to such term therein) the New Note and all
other obligations and liabilities of Mortgagor under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the debts and
trusts mentioned above and the agreements herein contained and other good and
valuable considerations, the parties hereto agree as follows:
1. REAFFIRMANCE OF THE MORTGAGE. To secure the Indebtedness, the
Mortgagor has granted, bargained, sold, warranted, mortgaged, assigned,
transferred and conveyed, and by these presents does grant, bargain,
sell, warrant, mortgage, assign, transfer and convey unto the Trustees,
in trust, with power of sale, for the use and benefit of the Agent, for
itself and as agent for the Lenders and for its Affiliates, all of the
Mortgagor's right, title and interest, whether now owned or hereafter
acquired, in and to the Mortgaged Property (as defined in the Mortgage
and used herein with the meaning assigned to such term therein).
TO HAVE AND TO HOLD the Mortgaged Property, together with the rights,
privileges and appurtenances now or hereafter at any time before the release
hereof in anywise belonging or appertaining thereto, unto the Trustees forever
to secure the payment of the Indebtedness and the performance of the
obligations of the Mortgagor contained herein and in the Mortgage.
2. INCLUSION IN THE INDEBTEDNESS OF THE NEW NOTE AND OTHER
OBLIGATIONS. The New Note and all obligations and liabilities of the
Mortgagor under the Credit Agreement are hereby made a part of the
Indebtedness, and the term Indebtedness shall, when used herein or in
the Mortgage, be deemed to include the New Note and all obligations and
liabilities of the Mortgagor under the Credit Agreement. Each reference
in the Mortgage to a Note or the Notes shall be deemed to include
reference to the New Note.
3. WARRANTIES, COVENANTS AND AGREEMENTS. The representations,
warranties, covenants and agreements contained in the Mortgage are
hereby remade by the Mortgagor and (together with the remedies contained
in the Mortgage) are in full force and effect as of the date hereof.
4. MISCELLANEOUS PROVISIONS.
1. This Amendment shall be considered as an amendment to the
Mortgage and, except as herein expressly amended, the Mortgage is
hereby ratified, approved and confirmed in every respect. All
references to the Mortgage in any other document shall hereafter
be deemed to refer to the Mortgage as amended and supplemented
hereby.
2. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original and all of which are
identical, except that (i) in certain counterparts, portions of
Exhibit AA hereto, containing specific descriptions of property
situated in jurisdictions other than the jurisdiction in which the
particular counterpart is to be filed or recorded, may have been
omitted, and (ii) in the case of certain counterparts to be
recorded and filed in jurisdictions where the Mortgage has not
been recorded and filed, in order to place on record the Mortgage,
there are attached to such counterparts conformed copies of the
Mortgage, the contents of which by this reference are hereby
adopted, assumed, ratified, approved and confirmed in each and
every respect by the Mortgagor.
3. The Mortgagor hereby represents and warrants to the Trustees
and the Bank as follows:
1. Each entity comprising the Mortgagor is a limited
partnership, duly organized, validly existing and in good
standing under the laws of the State of Texas;
2. The execution and delivery of this Amendment, the New
Note and the Credit Agreement and the performance by the
Mortgagor of its obligations hereunder, are within the
Mortgagor's partnership powers, have been duly authorized by
all necessary partnership action, have received all
necessary governmental approval (if any shall be required),
and do not and will not contravene or conflict with any
provision of law or of the partnership agreement of the
Mortgagor or of any agreement binding upon the Mortgagor;
and
3. This Amendment, the New Note and the Credit Agreement
is the legal, valid and binding obligation of the Mortgagor,
enforceable in accordance with their respective terms.
4. This Amendment is, and the New Note and the Credit
Agreement when duly executed and delivered will be, the
legal, valid and binding obligations of the Mortgagor,
enforceable in accordance with their respective terms.
5. The indebtedness evidenced by the Prior Note is a
continuing indebtedness and nothing contained herein or in
any other document shall be construed to deem paid the Prior
Note, or as a novation of the Prior Note or the Mortgage, or
to release or terminate any lien or security interest which
secures payment of the Prior Note, and all liens and
security interests which secure payment of the Prior Note
(including, without limitation, those created by the
Mortgage) shall continue in full force and effect,
unimpaired from the date(s) of their creation and
perfection.
4. Section headings in this Amendment, the New Note and the
Credit Agreement are inserted for convenience of reference and
shall not be considered a part of this Amendment, the New Note and
the Credit Agreement or used in its interpretation.
5. At the option of the Bank, this Amendment, the New Note and
the Credit Agreement, or a carbon, photographic or other
reproduction of this Amendment, the New Note and the Credit
Agreement or of any Uniform Commercial Code financing statement
covering the Mortgaged Property or any portion thereof shall be
sufficient as a Uniform Commercial Code financing statement and
may be filed as such.
IN WITNESS WHEREOF, the parties hereto have executed or caused to be
executed this Amendment on the day, month and year first above written.
MORTGAGOR AND DEBTOR
FUTURE ACQUISITION 1995, LTD., a Texas
limited partnership
By: Future Petroleum Corporation, a
Texas corporation, its sole general
partner
ATTEST:
By /s/ Christie Sirera
Secretary Title
Printed Name Christie Sirera
BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP,
a Texas limited partnership
By: Future Petroleum Corporation, a
Texas corporation, its sole general
partner
ATTEST:
By /s/ Christie Sirera
Secretary Title
Printed Name Christie Sirera
NCI-SHAWNEE LIMITED PARTNERSHIP, a Texas
limited partnership
By: Future Petroleum Corporation, a
Texas corporation, its sole general
partner
ATTEST:
By /s/ Christie Sirera
Secretary Title
Printed Name Christie Sirera
The name and mailing address of the Mortgagor is:
2351 West Northwest Highway
Suite 2130
Dallas, TX 75220
SECURED PARTIES
John H. Homier, Trustee
Richard A. Bernardy, Trustee
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, for itself and as agent for
its Affiliates
By /s/ Richard A. Bernardy
Vice President
Printed Name Richard A. Bernardy
ATTEST:
Banking Officer/Clerk
Printed Name
WITNESSES TO ALL SIGNATURES:
The names and mailing addresses of the Secured Parties are:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
John H. Homier, Trustee and Richard A. Bernardy, Trustee
231 South LaSalle Street
Chicago, Cook County, Illinois 60697
Attention: Energy and Minerals Department
Oil and Gas Group
This Instrument Was Prepared By:
Kevin L. Shaw, Esq.
Mayer, Brown & Platt
350 South Grand Avenue
Suite 2500
Los Angeles, CA 90071
STATE OF TEXAS )
) SS.
COUNTY OF HARRIS )
BE IT REMEMBERED that I, TERESA H. CATO, a Notary
Public duly qualified, commissioned, sworn and acting in and
for the County and State aforesaid, hereby certify that, on
this day of November, 1998, there appeared before me
severally each of the following persons, each being either a
Trustee or else the designated officer of the association
set opposite his name, and each such Trustee and association
being a party to the foregoing instrument:
John H. Homier, Vice President, and Richard A.
Bernardy, Banking Officer/Clerk, of Bank of America National
Trust and Savings Association, a national banking
association, whose address is 231 South LaSalle Street,
Chicago, Illinois 60697; and
John H. Homier and Richard A. Bernardy, whose
addresses are 231 South LaSalle Street, Chicago, Illinois
60697, as Trustees.
TEXAS and
OKLAHOMA This instrument was acknowledged before me on this day by
each such person as the designated officer of the
association set opposite his name (or a Trustee, as the case
may be), on behalf of said association set opposite his name
(or of himself as Trustee, as the case may be).
Witness my hand and official seal.
Notary Public
Residing at: 700 Louisiana, Suite 3600
Houston, Texas 77002
My commission expires:
STATE OF TEXAS )
) SS.
COUNTY OF HARRIS )
BE IT REMEMBERED that I, TERESA H. CATO, a Notary
Public duly qualified, commissioned, sworn and acting in and
for the County and State aforesaid, hereby certify that, on
this 19th day of November, 1998, there appeared before me
severally each of the following persons, each being the
designated officer of the corporation set opposite his name
and such corporation being a party to the foregoing
instrument:
B. Carl Price, the President and Secretary of Future
Petroleum Corporation, a Texas corporation, the sole general
partner of each of (1) Future Acquisition 1995, Ltd., a
Texas limited partnership, (2) BMC Development No. 1 Limited
Partnership, a Texas limited partnership, and (3) NCI-
Shawnee Limited Partnership, a Texas limited partnership,
whose address is c/o Future Petroleum Corporation, 2351 West
Northwest Highway, Suite 2130, Dallas, Texas 75220.
TEXAS and
OKLAHOMA This instrument was acknowledged before me on this day by
each such person as the designated officer of the
corporation set opposite his name on behalf of said corpora-
tion.
Witness my hand and official seal.
Notary Public
Residing at: 700 Louisiana, Suite 3600
Houston, Texas 77002
My commission expires:
Schedule I
A. Mortgage, Deed of Trust, Assignment, Security Agreement and Financing
Statement, dated as of August 14, 1998, from Mortgagor to the Bank was
recorded and filed as follows:
JURISDICTION FILE NO. DATE
Lea County, New Mexico Book 901, Page 276 August 24, 1998
Gray County, Texas Volume 734, Page 398 August 24, 1998
Wichita County, Texas Volume 2030, Page 280 August 24, 1998
Pottawatomie County,
Oklahoma Book 2835, Page 232 August 24, 1998
Carson County, Texas Volume 289, Page 756 August 24, 1998
Midland County, Texas Volume 1593, Page 430 August 24, 1998
Hutchinson County, Texas Volume 902, Page 263 August 24, 1998
Grant County, Oklahoma Book 515, Page 699 August 24, 1998
Marshall County, New Mexico Book 673, Page 659 August 24, 1998
Lubbock County, Texas Volume 5965, Page 10 August 24, 1998
Moore County, Texas Volume 499, Page 636 August 24, 1998
EXHIBIT AA To Amendment to Mortgage,
Deed of Trust, Assignment, Security Agreement,
Financing Statement and Fixture Filing, dated
as of November 18, 1998,
from Future Acquisition 1995, Ltd.,
BMC Development No. 1 Limited Partnership
and NCI Shawnee Limited Partnership
to John H. Homier and Richard A. Bernardy
and Bank of America National Trust and Savings Association
List of Properties
1. Depth limitations, unit designations, unit tract descriptions and
descriptions of undivided leasehold interests, well names, "Operating
Interests", "Working Interests" and "Net Revenue Interests" contained in this
Exhibit AA and the listing of any percentage, decimal or fractional interest
in this Exhibit AA shall not be deemed to limit or otherwise diminish the
interests being subjected to the lien, security interest and encumbrance of
this instrument.
2. Some of the land descriptions in this Exhibit AA may refer only to a
portion of the land covered by a particular lease. This instrument is not
limited to the land described in Exhibit AA but is intended to cover the
entire interest of the Mortgagor in any lease described in Exhibit AA even if
such interest relates to land not described in Exhibit AA. Reference is made
to the land descriptions contained in the documents of title recorded as
described in this Exhibit AA. To the extent that the land descriptions in
this Exhibit AA are incomplete, incorrect or not legally sufficient, the land
descriptions contained in the documents so recorded are incorporated herein by
this reference.
3. References in Exhibit AA to instruments on file in the public records
are made for all purposes. Unless provided otherwise, all recording references
in Exhibit AA are to the official real property records of the county or
counties (or parish or parishes) in which the mortgaged property is located and
in which records such documents are or in the past have been customarily
recorded, whether Deed Records, Oil and Gas Records, Oil and Gas Lease Records
or other records.
4. A statement herein that a certain interest described herein is subject
to the terms of certain described or referred to agreements, instruments or
other matters shall not operate to subject such interest to any such agreement,
instrument or other matter except to the extent that such agreement,
instrument or matter is otherwise valid and presently subsisting nor shall
such statement be deemed to constitute a recognition by the parties hereto
that any such agreement, instrument or other matter is valid and presently
subsisting.
Exhibit F to
Amendment No. 1 to
Credit Agreement
Forms of Opinion
[Please contact the Company for copies]
Exhibit G to
Amendment No. 1 to
Credit Agreement
Form of Title Counsel Opinion
[Please contact the Company for copies]
EXHIBIT 10.03
AMENDED AND RESTATED
SECURED PROMISSORY NOTE
$27,500,000.00 November 18, 1998
FOR VALUE RECEIVED, the undersigned, FUTURE PETROLEUM CORPORATION, a Utah
corporation (the "Borrower"), promises to pay to the order of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association (the
"Lender") on August 14, 2003, the principal sum of TWENTY-SEVEN MILLION, FIVE
HUNDRED THOUSAND DOLLARS ($27,500,000.00) or, if less, the aggregate unpaid
principal amount of all Loans shown on the schedule attached hereto (and any
continuation thereof) made by the Lender pursuant to that certain Credit
Agreement, dated as of August 14, 1998, as amended by that certain Amendment No.
1 to Credit Agreement dated as of November 16, 1998 (together with all
amendments and other modifications, if any, from time to time thereafter
made thereto, the "Credit Agreement"), among the Borrower and the Lender.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Lender pursuant to the Credit Agreement.
This Note amends and restates in their entirety those notes previously made
and given by the Borrower to the Lender as more particularly described in the
Credit Agreement.
This Note is one of the Notes referred to in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a
description of the security for this Note and for a statement of
the terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN CHICAGO, ILLINOIS AND SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
FUTURE PETROLEUM CORPORATION, a Utah corporation
By: /s/ Carl Price
Name: Carl Price
Title: President
LOANS AND PRINCIPAL PAYMENTS
EXHIBIT 10.04
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Future Petroleum
Corporation, a Utah corporation ("Pledgor"), and Bank of America National
Trust and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page
of this First Amendment may be detached from any identical counterpart of
this First Amendment having attached to it one or more additional signature
pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
FUTURE PETROLEUM CORPORATION,
a Utah corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Future CAL-TEX Corporation,
a Texas corporation ("Pledgor"), and Bank of America National Trust and
Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
FUTURE CAL-TEX CORPORATION,
a Texas corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Future Petroleum
Corporation, a Texas corporation ("Pledgor"), and Bank of America National
Trust and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
FUTURE PETROLEUM CORPORATION,
a Texas corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Future Energy Corporation,
a Nevada corporation ("Pledgor"), and Bank of America National Trust and
Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
FUTURE ENERGY CORPORATION,
a Nevada corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Future Acquisition 1995
Ltd., a Texas limited partnership ("Pledgor"), and Bank of America National
Trust and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
FUTURE ACQUISITION 1995 LTD.,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among BMC Development No. 1
Limited Partnership, a Texas limited partnership ("Pledgor"), and Bank of
America National Trust and Savings Association, a national banking association
(the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among NCI Shawnee L.P., a Texas
limited partnership ("Pledgor"), and Bank of America National Trust and
Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
NCI SHAWNEE L.P.,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among EnCap Equity 1994 Limited
Partnership, a Texas limited partnership ("Pledgor"), and Bank of America
National Trust and Savings Association, a national banking association (the
"Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
ENCAP EQUITY 1994 LIMITED PARTNERSHIP,
a Texas limited partnership
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Energy Capital Investment
Company PLC, an English investment company ("Pledgor"), and Bank of America
National Trust and Savings Association, a national banking association (the
"Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
ENERGY CAPITAL INVESTMENT COMPANY PLC,
an English investment company
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Bargo Energy Resources,
Ltd., a Texas limited partnership ("Pledgor"), and Bank of America National
Trust and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
BARGO ENERGY RESOURCES, LTD. ,
a Texas limited partnership
By: /s/ Tim J. Goff
Name: Tim J. Goff
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among B. Carl Price,
("Pledgor"), and Bank of America National Trust and Savings Association, a
national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 18, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
By: /s/ Carl Price
Name: B. CARL PRICE
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and among Don Reynolds, ("Pledgor"),
and Bank of America National Trust and Savings Association, a national banking
association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between
FUTURE PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender,
as the lender, the Lender has extended Commitments to make Loans to the
Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit
Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the
obligations of the Lender or such Affiliate of the Lender under the Hedging
Agreements referred to above, Pledgor, as of August 14, 1998, executed and
delivered a Pledge Agreement (the "Pledge Agreement") whereunder Pledgor
granted to the Lender a continuing first priority interest in the Collateral.
Unless otherwise defined herein or the context otherwise requires, terms used
in this First Amendment, including its preamble and recitals, have the
meanings provided in the Pledge Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 18, 1998 ("Amendment No. 1";
the Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Pledgor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Obligations. Pledgor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment
No. 1, shall be considered as Secured Obligations under the Pledge Agreement
and (ii) the Pledge Agreement secures all Obligations under the Credit
Agreement.
2. Reference to Credit Agreement. All references in the Pledge
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Pledge Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Pledge Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Pledge Agreement, as amended hereby.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
4.1 Pledgor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Pledgor, enforceable against
Pledgor in accordance with their respective terms;
4.2 The representations and warranties made and given by Pledgor in
the Pledge Agreement and the other Loan Documents are true and
correct as of the date hereof and Pledgor has performed each of
the covenants and agreements in the Pledge Agreement and the other
Loan Documents required to be performed by Pledgor as of the date
hereof; and
4.3 To Pledgor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit
Agreement, the Credit Agreement or any other Loan Document and no
event exists which, with the giving of notice or the passage of
time or both, would give rise to a Default or Event of Default by
Borrower or any other Obligor under the Credit Agreement or any
Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if
all parties hereto had signed the same signature page. Any signature page of
this First Amendment may be detached from any identical counterpart of this
First Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any
way affect the meaning or construction of any provision of this First
Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment
as of the date first set forth above.
By: /s/ Don Wm. Reynolds
Name: DON REYNOLDS
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
EXHIBIT 10.05
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between Future Petroleum
Corporation, a Utah corporation ("Grantor") and Bank of America National Trust
and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE PETROLEUM CORPORATION,
a Utah corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between Future CAL-TEX Corporation,
a Texas corporation ("Grantor") and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE CAL-TEX CORPORATION,
a Texas corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between Future Petroleum
Corporation, a Texas corporation ("Grantor") and Bank of America National Trust
and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE PETROLEUM CORPORATION,
a Texas corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between Future Energy Corporation,
a Nevada corporation ("Grantor") and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE ENERGY CORPORATION,
a Nevada corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between Future Acquisition 1995
Ltd., a Texas limited partnership ("Grantor") and Bank of America National Trust
and Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE ACQUISITION 1995 LTD.,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between BMC Development No. 1
Limited Partnership, a Texas limited partnership ("Grantor") and Bank of America
National Trust and Savings Association, a national banking association (the
"Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO SECURITY AGREEMENT
This FIRST AMENDMENT TO SECURITY AGREEMENT (this "First Amendment") dated
as of the 18th day of November, 1998, by and between NCI Shawnee L.P., a Texas
limited partnership ("Grantor") and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, the Borrower, as of August 14, 1998, executed and delivered
a Security Agreement (the "Security Agreement") whereunder Borrower granted a
security interest in the Collateral to secure payment and performance of all
Obligations of the Borrower to the Lender under the Original Credit Agreement
and otherwise. Unless otherwise defined herein or the context otherwise
requires, terms used in this First Amendment, including its preamble and
recitals, have the meanings provided in the Security Agreement;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Borrower is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Borrower hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Secured Obligations under the Security Agreement and
(ii) the Security Agreement secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Security
Agreement to the "Credit Agreement" shall be deemed to refer to the Original
Credit Agreement, as amended by Amendment No. 1.
3. Ratification, Security Agreement. Except as expressly amended by
this First Amendment, the remaining terms, conditions and provisions of the
Security Agreement shall be and remain in full force and effect. The parties
hereby ratify and confirm the Security Agreement, as amended hereby.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
4.1 Borrower has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms;
4.2 The representations and warranties made and given by Borrower in
the Security Agreement and the other Loan Documents are true and
correct as of the date hereof and Borrower has performed each of the
covenants and agreements in the Security Agreement and the other
Loan Documents required to be performed by Borrower as of the date
hereof; and
4.3 To Borrower's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
NCI SHAWNEE L.P.,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
EXHIBIT 10.06
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among Future Petroleum Corporation, a Utah
corporation ("Guarantor"), and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE PETROLEUM CORPORATION,
a Utah corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among Future CAL-TEX Corporation, a Texas
corporation ("Guarantor"), and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE CAL-TEX CORPORATION,
a Texas corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among Future Petroleum Corporation, a Texas
corporation ("Guarantor"), and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE PETROLEUM CORPORATION,
a Texas corporation
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among Future Energy Corporation, a Nevada
corporation ("Guarantor"), and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE ENERGY CORPORATION,
a Nevada corporation
By:/s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among Future Acquisition 1995 Ltd., a Texas
limited partnership ("Guarantor"), and Bank of America National Trust and
Savings Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
FUTURE ACQUISITION 1995 LTD.,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among BMC Development No. 1 Limited
Partnership, a Texas limited partnership ("Guarantor"), and Bank of America
National Trust and Savings Association, a national banking association (the
"Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
BMC DEVELOPMENT NO. 1 LIMITED PARTNERSHIP,
a Texas limited partnership
By:/s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO GUARANTY (this "First Amendment") dated as of the
18th day of November, 1998, by and among NCI Shawnee L.P., a Texas limited
partnership ("Guarantor"), and Bank of America National Trust and Savings
Association, a national banking association (the "Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 14, 1998
(together with all amendments and other modifications, from time to time
thereafter made thereto, the "Original Credit Agreement"), by and between FUTURE
PETROLEUM CORPORATION (the "Borrower"), as the borrower and the Lender, as the
lender, the Lender has extended Commitments to make Loans to the Borrower; and
WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements (as defined in the Original Credit Agreement) with the Lender or an
Affiliate of the Lender, pursuant to the terms of the Original Credit Agreement;
and
WHEREAS, as a condition precedent to the making of the initial Loan and
all subsequent Loans under the Original Credit Agreement and to the obligations
of the Lender or such Affiliate of the Lender under the Hedging Agreements
referred to above, Guarantor, as of August 14, 1998, executed and delivered a
Guaranty (the "Guaranty") whereunder Guarantor unconditionally guaranteed
payment and performance of all Obligations of the Borrower to the Lender under
the Original Credit Agreement. Unless otherwise defined herein or the context
otherwise requires, terms used in this First Amendment, including its preamble
and recitals, have the meanings provided in the Guaranty;
WHEREAS, the Borrower and the Lender are also parties to the Amendment
No. 1 to Credit Agreement dated as of November 16, 1998 ("Amendment No. 1"; the
Original Credit Agreement, as so amended and as may be from time to time
hereafter further amended, the "Credit Agreement"), whereunder the Lender
agreed to amend the Original Credit Agreement and made Commitments to make
Credit Extensions in an amount not to exceed $27,500,000;
WHEREAS, as a condition precedent to the making of all subsequent Credit
Extensions under the Credit Agreement, Guarantor is required to execute and
deliver this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Obligations. Guarantor hereby acknowledges and agrees that (i) all
the Obligations under the Original Credit Agreement, as amended by Amendment No.
1, shall be considered as Obligations under the Guaranty and (ii) the Guaranty
secures all Obligations under the Credit Agreement.
2. Reference to Credit Agreement. All references in the Guaranty to
the "Credit Agreement" shall be deemed to refer to the Original Credit
Agreement, as amended by Amendment No. 1.
3. Ratification, Guaranty. Except as expressly amended by this First
Amendment, the remaining terms, conditions and provisions of the Guaranty shall
be and remain in full force and effect. The parties hereby ratify and confirm
the Guaranty, as amended hereby.
4. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
4.1 Guarantor has full power and authority to execute, deliver and
perform its obligations under this First Amendment and all other
Loan Documents delivered to the Lender in connection herewith, and
this First Amendment and all such Loan Documents are the legally
valid and binding obligations of Guarantor, enforceable against
Guarantor in accordance with their respective terms;
4.2 The representations and warranties made and given by Guarantor in
the Guaranty and the other Loan Documents are true and correct as of
the date hereof and Guarantor has performed each of the covenants
and agreements in the Guaranty and the other Loan Documents required
to be performed by Guarantor as of the date hereof; and
4.3 To Guarantor's best knowledge, there is no Default or Event of
Default by Borrower or any other Obligor under the Credit Agreement,
the Credit Agreement or any other Loan Document and no event exists
which, with the giving of notice or the passage of time or both,
would give rise to a Default or Event of Default by Borrower or any
other Obligor under the Credit Agreement or any Loan Document.
5. Counterparts. This First Amendment may be executed in any number
of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
First Amendment may be detached from any identical counterpart of this First
Amendment having attached to it one or more additional signature pages.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7. Titles and Headings. The titles and headings of the Sections of
this First Amendment are intended for convenience only and shall not in any way
affect the meaning or construction of any provision of this First Amendment.
8. Changes and Modifications In Writing. No provision of this First
Amendment may be changed or modified except by an instrument in writing signed
by the party against whom enforcement of the change or modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date first set forth above.
NCI SHAWNEE L.P.,
a Texas limited partnership
By: /s/ Carl Price
Name: B. Carl Price
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: /s/ Richard A. Bernardy
Name: Richard A. Bernardy
Title: Vice President
