Prepared by and upon EXHIBIT 4.3
recordation please return to:
Xxxx H. Xxxxx
Xxxxxxxxx & Xxxxxxxxx, L.L.P.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
ACT OF
FIRST AMENDMENT OF MORTGAGE,
SECURITY AGREEMENT, ASSIGNMENT OF PRODUCTION AND
FINANCING STATEMENT
THE STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
Be it known that on this 23rd day of December, 1996, before me, the
undersigned Notary Public, duly commissioned and qualified in and for the
County and State aforesaid; and therein residing, and in the presence of
the undersigned competent witnesses, whose names are subscribed hereto,
personally came and appeared:
XXXXXX PETROLEUM CORPORATION, a Louisiana corporation, whose Federal Tax
Identification Number is 00-0000000 with a mailing address of 000 Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxx, 00000-0000, appearing herein
through Xxxxxx X. Xxx, its duly authorized Treasurer, acting pursuant to
resolutions of the Board of Directors of such corporation, a certified
extract of which are attached hereto ("Mortgagor"), and
JOINT ENERGY DEVELOPMENT INVESTMENTS LIMITED PARTNERSHIP, a Delaware
limited partnership, whose Federal Tax Identification Number is 00-0000000
with a mailing address of 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000,
appearing herein through its general partner Enron Capital Management
Limited, a Delaware limited partnership, appearing herein through its
general partner Enron Capital Corp., a Delaware corporation, appearing
herein through Xxxxx X. Xxxxxx, Xx., its duly authorized Agent and
Attorney-in-Fact ("Mortgagee"),
which Mortgagor and Mortgagee through their respective representatives declared
unto me, Notary, as follows:
That, Mortgagor did execute that certain Act of Mortgage, Security
Agreement, Assignment of Production and Financing Statement dated November 21,
1996, before Xxxxx Xxxxxx, Notary Public, which was duly recorded in the Public
Records of Jefferson, LaFourche, St. Xxxxxxx and Xxxxxxxxxx Parishes, Louisiana,
as set forth on Exhibit "A" attached hereto and incorporated herein for all
purposes (the "Original Mortgage").
That, the Original Mortgage was given as security for certain indebtedness
described therein owed by Mortgagor to Mortgagee, including any and all future
indebtedness owed by Mortgagor to Mortgagee.
For and consideration of the benefits accruing to each of Mortgagor and
Mortgagee, Mortgagor and Mortgagee do hereby agree to amend and modify the
Original Mortgage effective for all purposes as of the date hereof, as follows:
1. Section 1.10. The words "Xxxxx X. Xxxxxx, Xx." in Section 1.10 are
hereby amended to read "Xxxxx X. Xxxxxx, Xx." and the words "the General Partner
of the Lender" in Section 1.10 are hereby amended to read "the general partner
of the general partner of the Lender".
2. Section 1.12. Section 1.12 is hereby amended in its entirety to read
as follows:
"1.12 "MORTGAGE" means this Act of Mortgage, Security Agreement,
Assignment of Production and Financing Statement, as amended by an Act of
First Amendment of Mortgage, Security Agreement, Assignment of Production
and Financing Statement dated effective as of December 16, 1996, as it may
be further amended, modified or supplemented from time to time."
3. Section 1.13. Section 1.13 is hereby amended in its entirety to read
as follows:
"1.13 "MORTGAGEE" means the Lender, its successors and assigns, and
any legal owner, holder, assignee or pledgee of the Note."
4. Section 1.14. Section 1.14 is hereby amended in its entirety to read
as follows:
"1.14 "NOTE" means that certain Promissory Note of Mortgagor payable
to the order of the Lender in the original principal amount of
$10,000,000.00, dated as of December 16, 1996, and all modifications,
amendments, renewals and extensions thereof."
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5. Section 1.15. Clauses (d), (e) and (f) of Section 1.15 are hereby
amended in their entirety to read as follows:
"(d) all sums advanced or costs or expenses incurred by Mortgagee, which
are made or incurred pursuant to, or allowed by, the terms of this
instrument or any other instrument executed in connection with the Note,
including but not limited, that certain Loan Agreement by and between
Mortgagor and Mortgagee dated effective as of the effective date of the
Note, including but not limited to, all legal fees and all engineering and
other costs incurred in connection with Mortgagee's due diligence, plus
interest thereon from the date of the advance until reimbursement of
Mortgagee charged at the Default Rate; (e) all renewals, extensions,
amendments and substitutions of the above whether or not Mortgagor executes
any renewal or extension agreement, any amounts due and payable by
Mortgagor to ECT Securities Corp. and/or its successors and assigns,
including Mortgagee; and (f) any amounts due and payable by Mortgagor under
any Price Protection Agreement approved by Mortgagee, including any costs
and expenses incurred by any counter-party in connection therewith."
6. Section 1.21. A new Section 1.21 is hereby added to the Mortgage as
follows:
"1.21 "PRICE PROTECTION AGREEMENTS" means each price swap agreement,
option agreement or other agreement entered into by and between Mortgagor
and Mortgagee or a counter-party acceptable to Mortgagee pursuant to which
the price of Hydrocarbons is hedged by the Mortgagor."
7. Section 3.2(c). Section 3.2(c) is amended in its entirety to read as
follows:
"(c) Third, to the payment of any then due and owing principal
constituting part of the Obligations and any other Obligations then due and
payable; and"
8. Section 4.4(m). Section 4.4(m) is amended by deleting the words ",
including reasonable expenditures necessary for completion of the current
workover operations in the LaFourche Parish School Board No. 1 Well", and
adding the following new sentence to the end thereof:
"Notwithstanding the foregoing, in the event that the Mortgagor's
EBITDA for any calendar month following the date hereof, as evidenced by
the monthly Pro Forma Cash Flow Statements to be provided by the Mortgagor
to the Mortgagee in accordance with the Loan Agreement, should ever exceed
$1,000,000, the Mortgagor may use up to $120,000 of such EBITDA for such
month in excess of said $1,000,000, as partial payment of any indebtedness
of the Mortgagor to XxXxxx X. Xxxxxx, so long as XxXxxx X. Xxxxxx has any
outstanding indebtedness to Whitney National Bank; provided that the
Mortgagor may not
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use such cash for repayment of indebtedness to XxXxxx X. Xxxxxx if, and so
long as, a Default (as defined in that certain Loan Agreement by and
between Mortgagor and Mortgagee dated of even date with the Note (the "Loan
Agreement")) is outstanding and not cured. For purposes of the foregoing,
"EBITDA" shall be calculated in a manner consistent with the methodologies
reflected in the Pro Forma Cash Flow Report attached to the Loan Agreement,
including sources of income and all cost and expense items included in the
Pro Forma Cash Flow Report attached to the Loan Agreement".
9. Section 5.1(a). Subsection 5.1(a) is hereby amended in its entirety
to read as follows:
"(a) Mortgagor or any endorser, guarantor, surety, accommodation
party, or other person liable upon or for payment of any of the Obligations
secured hereby fails to pay when due any of the Obligations secured hereby
or to perform punctually any other obligation, covenant, term or provision
contained in or referred to in this instrument or any other instrument
executed in connection herewith, including without limitation, the
occurrence of an "Event of Default" as defined in that certain Loan
Agreement by and between Mortgagor and Mortgagee dated of even date with
the Note."
10. Section 5.2. Section 5.2 is hereby amended by deleting the following
words from the first sentence thereof:
"In addition to the right and privilege to demand payment of Note at any
time, as set forth therein, and without limiting the Mortgagee's rights and
privileges thereunder."
11. Section 6.12. The words "c/o Enron Corp." and "Attn: Xxxxx X. Xxxxxx"
in the addresses for Mortgagee in Section 6.12 are hereby amended to read "c/o
Enron Capital Corp." and "Attn: Xxxxx X. Xxxxxx, Xx.", respectively.
12. Ratification and Reaffirmation. Mortgagor does hereby ratify the
Mortgage as being in full force and effect, does hereby covenant and agree that,
except as set forth herein the Mortgage has not been amended or modified, and
does hereby reaffirm each and every representation and warranty set forth
therein as being true and correct as of the date hereof. Mortgagor does hereby
affirm unto Mortgagee that Mortgagor, as of the date hereof, has timely
performed each and every covenant and obligation under the Mortgage, and that no
Event of Default as defined therein, has occurred. This amendment shall be
effective for all purposes as of December 16, 1996.
Thus done and passed in my office in Houston, Xxxxxx County, Texas, this
23rd day of December, 1996, in the presence of the undersigned competent
witnesses who hereunto sign their names with the Mortgagor, Mortgagee and me,
Notary, after due reading of the whole.
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MORTGAGOR
Witnesses to all signatures: XXXXXX PETROLEUM CORPORATION
/s/ Xxxx X. Xxxxx
-----------------------------
Name: Xxxx X. Xxxxx By: /s/ XxXxxx X. Xxxxxx
------------------------ -------------------------------
XxXxxx X. Xxxxxx
/s/ Xxxxxx X. Block President
-----------------------------
Name: Xxxxxx X. Block
-------------------------
MORTGAGEE:
JOINT ENERGY DEVELOPMENT
INVESTMENTS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: ENRON CAPITAL MANAGEMENT,
LIMITED PARTNERSHIP, a Delaware
limited partnership, its general
partner
By: ENRON CAPITAL CORP., a
Delaware corporation, its general
partner
By: /s/ Xxxxx X. Xxxxxx, Xx.
---------------------------------
Xxxxx X. Xxxxxx, Xx.
Agent and Attorney-in-Fact
Stamp:
Xxxx X. Xxxxxxxx /s/ Xxxx X. Xxxxxxxx
Notary Public - State of Texas ---------------------------
My Commission Notary Public
Expires 7/3/99
(Signature Page to Act of First Amendment of Mortgage, Security Agreement,
Assignment of Production and Financing Statement)
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CERTIFICATE OF CORPORATE RESOLUTIONS
The undersigned, Secretary of XXXXXX PETROLEUM CORPORATION, a Louisiana
corporation ("Company"), does hereby certify to JOINT ENERGY DEVELOPMENT
INVESTMENTS LIMITED PARTNERSHIP ("Lender") as follows:
1. The following is a true and correct copy of the resolutions duly
adopted by the Board of Directors of the Company, and such resolutions have
not been altered, amended, rescinded or repealed and are now in full force
and effect:
WHEREAS, the Company did execute a Promissory Note in the
original principal amount of $10,000,000.00, payable to the order of
Lender (the "Note"); and
NOW THEREFORE, the Board of Directors of the Company does hereby
ratify and reaffirm the execution and delivery of the Note to the
Lender and does hereby ratify and reaffirm all covenants and
obligations of the Company thereunder; and all liens and other
collateral heretofore given as security for the payment of the Note
(as hereinafter defined), including specifically, without limitation,
the Mortgage and the Financing Statements (each as hereinafter
defined); and
RESOLVED, that the Board of Directors of the Company does hereby
authorize the Company to execute and deliver to the Lender (i) an Act
of First Amendment of Mortgage, Security Agreement, Assignment of
Production and Financing Statement covering certain properties owned
by the Company as described therein (the "Mortgage"), (ii) Financing
Statements perfecting the security interests created by the Mortgage
(the "Financing Statements"), and (iii) the Note, all in substantially
the forms presented to this meeting, with such changes therein as the
person executing the same shall approve, such approval to be
conclusively evidenced by his execution thereof; and further
RESOLVED, that each officer of the Company is hereby authorized
to execute and deliver on behalf of the Company, in such forms as the
Lender may require any and all other agreements, instruments and
documents which may be requested or required by the Lender to take any
and all other action relating to or in connection with the Note, the
Mortgage, or the Financing Statements; and further
RESOLVED, that any and all documents, instruments and agreements
executed by an officer of the Company pursuant to these resolutions
may contain such terms and conditions as the person executing the same
shall approve, including confessions of judgment, pacts de non
alienando, waivers of appraisement, and
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waivers of notice and delay, such approval to be conclusively
evidenced by his execution thereof; and further
RESOLVED, that the signature of any officer of the Company on any
agreement, instrument or document is sufficient to bind the Company,
and no other signature shall be required; and further
RESOLVED, that the Lender may rely on these resolutions and these
resolutions shall remain in full force and effect until such time as
notice to the contrary is duly delivered to the Lender and receipted
for in writing by a Vice President of the Lender.
2. The person who, as an officer of the Company, executed the Note, the
Mortgage, and the Financing Statements that are referred to in such
resolutions was at the time of such signing and delivery, and is now duly
elected, qualified and acting as such officer and the signature appearing
on such Note, the Mortgage, and the Financing Statements, is the genuine
signature of such officer.
3. The Note, the Mortgage, and the Financing Statement actually executed
by the Company and delivered to the Lender are in substantially the forms
of the documents submitted to and approved by the Board of Directors of the
Company pursuant to such resolutions.
IN WITNESS HEREOF, I have hereunto signed my name and set the seal of the
Company this 23rd of December, 1996.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx, Secretary
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NOTARIAL CERTIFICATION
I certify that a copy of these resolutions, certified by the Secretary of
Xxxxxx Petroleum Corporation is attached to an Act of First Amendment of
Mortgage, Security Agreement, Assignment of Production and Financing Statement
executed by said corporation before me, Notary this 23rd day of December 1996.
/s/ Xxxxxx X. Say
----------------------------------
Notary Public
For the State of Louisiana
My commission expires at death
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SCHEDULE OF RECORDING DATA
Act of First Amendment of Mortgage, Security Agreement, Assignment of
Production and Financing Statement dated December 23, 1996, executed by
Xxxxxx Petroleum Corporation, passed before Xxxx X. Xxxxxxxx, Notary
Public, recorded in the following parishes in the State of Louisiana:
Parish Book Page/Folio Entry No.
------ ------------- ---------- ---------
Jefferson Mineral Lease
Book 136 166 96-68975
MOB 3778 580 96-68975
Lafourche COB 1293 358 807596
MOB 731 136 807596
St. Xxxxxxx COB 516 659 207615
MOB 624 583 207615
Terrebonne COB 1538 989317
MOB 1085 989317
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