WHEN RECORDED AND/OR
FILED RETURN TO:
Xxxxx X. Xxxxxx, Esq.
Holme Xxxxxxx & Xxxx LLP
1700 Lincoln, Suite 4100
Xxxxxx, Xxxxxxxx 00000
SECOND AMENDMENT
TO
DEED OF TRUST,
SECURITY AGREEMENT,
ASSIGNMENT OF PRODUCTION AND PROCEEDS,
FINANCING STATEMENT,
AND
FIXTURE FILING
This Second Amendment to Deed of Trust, Security Agreement, Assignment
of Production and Proceeds, Financing Statement and Fixture Filing (this "Second
Amendment to Deed of Trust"), dated as of August 11, 1998, is among FORELAND
CORPORATION, a Nevada corporation, EAGLE SPRINGS PRODUCTION LIMITED-LIABILITY
COMPANY (also known as Eagle Springs Production Limited Liability Company), a
Nevada limited liability company (collectively, "Debtors"), both with an address
of 00000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, and ENERGY INCOME
FUND, L.P., a Delaware limited partnership ("Secured Party"), with an address of
000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.
RECITALS
A. By Deed of Trust, Security Agreement, Assignment of Production and
Proceeds, Financing Statement and Fixture Filing, dated as of January 6, 1998
(the "Original Deed of Trust"), Debtors granted to Secured Party and to First
American Title Company of Nevada, a Nevada corporation, as Trustee for the
benefit of Secured Party, liens on and security interests in certain property,
interests and rights as more specifically described therein.
B. The Original Deed of Trust was recorded in the real property
records of Elko, Eureka and Xxx Counties, Nevada as follows:
County Date Recording Data
Elko 2/6/98 Book 1031 -- Page 458
No. 422281
Eureka 1/13/98 Book 317 -- Page 157
No. 169580
Xxx 1/16/98 No. 435893
C. By First Amendment to Deed of Trust, Security Agreement,
Assignment of Production and Proceeds, Financing Statement, and Fixture Filing,
dated as of February 2, 1998, (the "First Amendment to Deed of Trust"), Debtors
and Secured party amended the Original Deed of Trust to confirm that additional
interests acquired by Debtors in a portion of oil and gas properties subject to
the Original Deed of Trust and located in Xxx County, Nevada were subject to the
Original Deed of Trust. The Original Deed of Trust as amended by the First
Amendment shall be referred to as the "Deed of Trust." Capitalized terms used
herein without definition shall have the meaning ascribed thereto in the Deed of
Trust.
D. The First Amendment to Deed of Trust was recorded in the real
property records of Xxx County, Nevada as follows:
County Date Recording Data
Xxx 2/11/98 No. 437922
The First Amendment to Deed of Trust was recorded only in Xxx County, Nevada,
because it affected real property located only in Xxx County, Nevada.
E. Secured Party is the owner of the indebtedness evidenced and
created by the Notes, and Debtors are the legal owners of the Collateral, and
all of the Collateral remains subject to the terms of the Deed of Trust.
F. The Debtors, Foreland Refining Corporation, a Texas corporation
("Foreland Refining"), Foreland Asset Corporation, a Nevada corporation
("Foreland Asset"), Foreland Asphalt Corporation, a Utah corporation ("Foreland
Asphalt"), and Petrosource Transportation, a Utah corporation ("Transportation")
and Secured Party have amended the Loan Agreement by Amendment to Financing
Agreement, dated as of August 10, 1998, in part to add Foreland Refining,
Foreland Asset, Foreland Asphalt and Transportation as borrowers thereunder, and
have amended the Notes by Allonges thereto which added Foreland Refining,
Foreland Asset, Foreland Asphalt and Transportation as makers and obligors
thereunder.
G. This Second Amendment to Deed of Trust is executed to amend the
Deed of Trust as provided herein.
AMENDMENT
In consideration of the mutual promises contained herein, the benefits
to be derived by each party hereunder and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Amendment to Definition of Obligations. The definition of
"Obligations" contained in the Deed of Trust is hereby amended such that
Section 1.1 of the Deed of Trust shall read in its entirety as follows:
Section 1.1 Obligations Secured. This Instrument is executed,
acknowledged and delivered by Debtors to secure and enforce the following
indebtedness, liabilities and obligations (the "Obligations"):
A. Notes. All indebtedness (including principal, interest,
fees and penalties), liabilities and obligations under or pursuant to
the following described notes, and any renewals, extensions or
restatements thereof, modifications, changes, amendments or supplements
thereto and substitutions therefor (collectively, the "Notes"):
1. Refinancing Note, dated as of January 6, 1998, in
the maximum principal amount of $680,000 made by Debtors and
payable to the order of Secured Party on or before January 1,
2002, together with interest until maturity or default at the rate
of 12% per annum (the "Standard Interest Rate"), and after
maturity or default at the rate of 15% per annum (the "Default
Rate"), as amended and supplemented by First Allonge to
Refinancing Note, dated as of August 10, 1998, and executed by
Debtors, Foreland Refining Corporation, a Texas corporation
("Foreland Refining"), Foreland Asset Corporation, a Nevada
corporation ("Foreland Asset"), Foreland Asphalt Corporation, a
Utah corporation ("Foreland Asphalt") and Petrosource
Transportation, a Utah corporation ("Transportation")
(collectively, the "Foreland Group"), which added Foreland
Refining, Foreland Asset, Foreland Asphalt and Transportation as
makers and obligors and decreased the principal amount to
$674,279.34;
2. Acquisition Note, dated as of January 6, 1998, in
the maximum principal amount of $2,327,000 made by Debtors and
payable to the order of Secured Party on or before January 1,
2002, together with interest until maturity at the Standard
Interest Rate, and after maturity or default at the Default Rate,
as amended and supplemented by First Allonge to Acquisition Note,
dated as of August 10, 1998, and executed by the Foreland Group,
which added Foreland Refining, Foreland Asset, Foreland Asphalt
and Transportation as makers and obligors and increased the
principal amount to $9,050,000.00; and
3. Development Note, dated as of January 6, 1998, in
the maximum principal amount of $13,893,000 made by Debtors and
payable to the order of Secured Party on or before January 1,
2002, together with interest until maturity or default at the
Standard Interest Rate, and after maturity or default at the
Default Rate, as amended and supplemented by First Allonge to
Development Note, dated as of August 10, 1998 and executed by the
Foreland Group, which added Foreland Refining, Foreland Asset,
Foreland Asphalt and Transportation as makers and obligors and
decreased the principal amount to $7,175,720.66;
B. Loan Agreement. All indebtedness, liabilities and
obligations of whatever kind or character, now existing or hereafter
created or arising under or pursuant to that certain Financing
Agreement (the "Loan Agreement"), dated as of January 6, 1998, among
Debtors and Secured Party, as amended by First Amendment to Financing
Agreement, dated as of August 10, 1998, among the Foreland Group and
Secured Party, as amended and as may be amended from time to time;
C. This Instrument. All indebtedness, liabilities and
obligations of Debtors to Secured Party of whatever kind or character,
now existing or hereafter created or arising under or pursuant to this
Instrument, including, without limitation, those arising under or
pursuant to the representations, warranties, covenants and indemnities
contained herein and any and all amounts advanced to protect the liens
and security interests herein granted and all reasonable attorneys
fees, court costs, and expenses of whatever kind or character now
existing or hereafter created or arising, incident thereto or to the
collection of the indebtedness, liabilities and obligations hereby
secured and enforcement of the liens and security interests herein
granted and created;
D. Other Obligations. All other indebtedness, liabilities
and obligations of Debtors and the other members of the Foreland Group
to Secured Party of whatever kind or character now existing or
hereafter created or arising, whether fixed, absolute or contingent,
direct or indirect, primary or secondary, joint, several or joint and
several, due or to become due, and however evidenced whether by note,
open account, overdraft, endorsement, surety agreement, guarantee or
otherwise, it being contemplated that Debtors and the other members of
the Foreland Group may hereafter become indebted to Secured Party in
such further sum or sums; and
E. Renewals, Extensions and Amendments. All indebtedness,
liabilities and obligations of whatever kind or character, now existing
or hereafter created or arising under or pursuant to all renewals,
extensions and restatements of, modifications, changes, amendments and
supplements to and substitutions for, all or any part of the foregoing.
2. Incorporation and References. This Second Amendment to Deed of
Trust shall be considered as an amendment and supplement to the Deed of Trust.
References in the Deed of Trust to "this Instrument" shall be deemed to be
references to the Deed of Trust as amended by this Second Amendment to Deed of
Trust. When used in this Second Amendment to Deed of Trust or in the Deed of
Trust, each reference to a term defined in the Deed of Trust which is amended by
this Second Amendment to Deed of Trust, shall be deemed to be the term as
amended by this Second Amendment to Deed of Trust, including without limitation,
references to the "Obligations" shall be deemed to be references to the
"Obligations" as such definition is amended herein, references to the "Notes"
shall be deemed to be references to the "Notes" as such definition is amended
herein and references to the "Loan Agreement" shall be references to the "Loan
Agreement" as such definition is amended herein.
3. Confirmation. Debtors hereby adopt, ratify, approve and confirm
in every respect the Deed of Trust as amended by this Second Amendment to Deed
of Trust, and hereby specifically reaffirm their obligations under the
warranties, representations, covenants, agreements and indemnities and other
provisions contained in the Deed of Trust as amended by this Second Amendment to
Deed of Trust. To the extent necessary to confirm such amendments, Debtors
hereby:
A. Real Property. Grant, bargain, sell, assign, transfer and
convey to Trustee, with POWER OF SALE, for the benefit of Secured Party,
that part of the Collateral that is real property (including any fixtures
that are real property under applicable state law), subject to the
assignment of severed and extracted Hydrocarbons and the proceeds thereof
made under C below; TO HAVE AND TO HOLD all of the Collateral that is real
property (including any fixtures that are real property under applicable
state law), together with all of the rights, privileges, benefits,
hereditaments and appurtenances in any way belonging, incidental or
pertaining thereto, to Trustee and its successors and assigns, forever, IN
TRUST, NEVERTHELESS, for the security and benefit of Secured Party and its
successors and assigns, subject to all of the terms, conditions, covenants,
agreements and trusts set forth in the Deed of Trust as Amended by this
Second Amendment to Deed of Trust;
B. Personal Property. Grant to Secured Party a security interest
in that part of the Collateral that is personal property (including any
fixtures that are personal property under applicable state law); and
C. Assignment of Production. Absolutely assign, grant and
transfer to Secured Party all of the severed and extracted Hydrocarbons
produced from or allocated or attributed to any of the Collateral or any
other interest of Debtors (whether now owned or hereafter acquired by
operation of law or otherwise) in, to and under or that covers, affects or
otherwise relates to the Land or to any of the estates, property rights or
other interests described or referred to above or herein, together with all
of the proceeds, rents, income, issues and profits thereof and therefrom and
payments in lieu thereof.
4. Miscellaneous. This Second Amendment to Deed of Trust shall
bind Debtors and inure to the benefit of Secured Party and their respective
successors and assignees. Except as specifically provided for in this Second
Amendment to Deed of Trust (a) the Deed of Trust and the liens and security
interests created thereby shall remain in full force and effect, (b) this Second
Amendment to Deed of Trust does not modify or affect the terms, conditions or
provisions of the Deed of Trust, and (c) nothing contained in this Second
Amendment to Deed of Trust shall be deemed to be, or construed as, a waiver of
any such terms, conditions or provisions, or as a waiver of any other term,
condition or provision.
Executed as of the date first set forth above.
DEBTORS:
FORELAND CORPORATION, a
Nevada corporation
By: /s/ N. Xxxxxx Xxxxxx,
President
Tax I.D. No. 00-0000000
EAGLE SPRINGS PRODUCTION
LIMITED-LIABILITY COMPANY (also
known as Eagle Springs Production Limited
Liability Company), a Nevada limited liability
company
By: /s/ N. Xxxxxx Xxxxxx,
Manager
Tax I.D. No. 00-0000000
SECURED PARTY:
ENERGY INCOME FUND, L.P., a Delaware
limited partnership
By: EIF GENERAL PARTNER, L.L.C.,
a Delaware limited liability company,
its General Partner
By /s/ Xxxxxx X. XxXxxxxx,
Vice President
Tax I.D. No. 00-0000000
ACKNOWLEDGMENT CERTIFICATES
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
This instrument was acknowledged before me on August , 1998, by
N. XXXXXX XXXXXX, Manager of EAGLE SPRINGS PRODUCTION LIMITED-LIABILITY COMPANY
(also known as Eagle Springs Production Limited Liability Company), a Nevada
limited liability company.
/s/ Notary Public
My commission expires:
(NOTARIAL SEAL)
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
This instrument was acknowledged before me on August , 1998, by
N. XXXXXX XXXXXX, as President of FORELAND CORPORATION, a Nevada corporation.
/s/ Notary Public
My commission expires:
(NOTARIAL SEAL)
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
This instrument was acknowledged before me on August , 1998, by
XXXXXX X. XxXXXXXX, Vice President of EIF GENERAL PARTNER, L.L.C., a Delaware
limited liability company, the General Partner of ENERGY INCOME FUND, L.P., a
Delaware limited partnership.
/s/ Notary Public
My commission expires:
(NOTARIAL SEAL)
