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EXHIBIT 10.2
ASSIGNMENT OF NOTE, DOCUMENTS AND LIENS
This ASSIGNMENT OF NOTE, DOCUMENTS AND LIENS (herein called this
"Assignment") is executed to be effective July 14, 2000 by THE CHASE MANHATTAN
BANK, acting in its capacity as Administrative Agent pursuant to the Loan
Agreement (defined below) and in its individual capacity as the sole Bank under
such Loan Agreement (in its capacity as Administrative Agent and in its
individual capacity collectively, "Assignor"), INTERMOUNTAIN INDUSTRIES, INC.,
an Idaho corporation ("Assignee"), and PETROGLYPH ENERGY, INC., a Delaware
corporation ("Borrower");
RECITALS
WHEREAS, Assignor and Borrower are parties to that certain Second
Amended and Restated Loan Agreement dated as of September 30, 1998 (as amended
through the date hereof, the "Loan Agreement"), pursuant to which Assignor made
and maintains certain loans to the Borrower which loans are evidenced by a
promissory note from the Borrower to Assignor in the principal amount of
$50,000,000 dated September 30, 1998 and payable to the order of Assignor (the
"Note"); and
WHEREAS, as security for the payment of the Note and the performance of
all other obligations of the Borrower under the Loan Agreement, the Borrower
executed and delivered to Assignor certain mortgages, deeds of trust, pledge
agreements, security agreements, financing statements and other documents,
including, without limitation, all such documents identified on Schedule 1
attached hereto (collectively, the "Security Documents"); and
WHEREAS, Assignor desires to assign to Assignee all right, title and
interest as Assignor in and to the Credit Agreement, the Note, the Security
Documents, the Warrants and the Warrant Related Documents (each as defined in
the Loan Agreement), and all other Loan Documents (as defined in the Credit
Agreement) (collectively, the "Loan Papers") including, without limitation, (a)
all rights of Assignor to receive payment and performance of the obligations of
the Borrower under the Loan Papers (the "Obligations"), and (b) all liens,
security interests, pledges and hypothecations arising under the Security
Documents (collectively, the "Liens"); and
WHEREAS, Assignee agrees to assume all obligations of Assignor under
the Loan Papers, including any and all obligations of Assignor to fund loans
thereunder; and
WHEREAS, Assignor desires to grant, transfer, assign and convey to
Assignee all right, title and interests of Assignor in and to the Loan Papers,
the Obligations and the Liens (collectively, the "Assigned Rights"); and
WHEREAS, Borrower desires to (a) acknowledge and consent to the
assignment by Assignor and the acquisition by Assignee of the Assigned Rights,
and (b) release Assignor from all of its obligations under the Loan Papers.
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NOW THEREFORE, in consideration of the premises and for the other good
and valuable consideration; the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Assignor does hereby GRANT, BARGAIN, SELL, TRANSFER, CONVEY, ASSIGN,
SET OVER AND DELIVER unto Assignee, without recourse or warranty of any nature,
express or implied all of Assignor's right, title and interest in and to the
Assigned Rights; provided, that Assignor is not assigning to Assignee, and
Assignor is hereby expressly reserving to Assignor (and the "Assigned Rights"
shall not include) any and all rights and benefits accruing to Assignor or any
related persons or parties in connection with any indemnity and reimbursement
obligations owed by the Borrower under the Loan Papers.
TO HAVE AND TO HOLD the Assigned Interests unto the Assignee, its
successors and assigns, forever.
2. Without limiting any disclaimer contained in paragraph 1 above and
except as expressly set forth in paragraph 2 hereof, Assignee hereby
acknowledges that the Assigned Rights are being transferred and assigned to
Assignee pursuant hereto AS IS, and WITHOUT RECOURSE AND WITHOUT ANY WARRANTY OR
REPRESENTATION OF ANY NATURE WHATSOEVER, EXPRESS OR IMPLIED, ALL OF WHICH ARE
HEREBY EXPRESSLY DISCLAIMED, including, without limitation, any representation
or warranty (a) as to the validity, enforceability or sufficiency of the Loan
Papers, (b) as to the creation, attachment, perfection, or priority of any lien,
pledge, security interest, assignment, hypothecation, or other security device
purported to be created or evidenced by any of the Security Documents, and (c)
as to the assets, liabilities, financial condition, results of operations,
operations, or prospects of the Borrower or any parent, subsidiary or affiliate
thereof. Notwithstanding the foregoing, Assignor represents and warrants to
Assignee that (y) Assignor is the owner and holder of the Assigned Rights being
transferred by it hereunder, and (z) Assignor has not previously assigned such
Assigned Rights to any third party.
3. Simultaneously with its execution hereof, Assignor shall deliver its
Note, duly endorsed pursuant to an allonge endorsement, "Pay to the order of
Intermountain Industries, Inc. without recourse and without representation or
warranty, expressed or implied". Assignor agrees to promptly, upon reasonable
request, execute and deliver all such other documents and take such other
actions as may be reasonably necessary to fully effectuate the intent and
provisions of this Assignment; provided, that Assignor shall not be required to
incur any expense or liability in connection therewith.
4. Assignee hereby assumes and agrees to pay and perform when due each
and every obligation of Assignor arising under or pursuant to the Loan Papers on
or after the date hereof. Assignee further agrees to indemnify Assignee and
Assignor's officers, directors, shareholders, employees, agents and
representatives for any loss, cost, damage, expense (including, without
limitation, reasonable attorneys fees (including attorneys fees incurred in
connection with any investigation of alleged or potential claims whether or not
any claim is actually asserted or any lawsuit or other proceeding is ever
commenced)) which in any way arise out of or relate to the Assignee's ownership,
administration, enforcement or collection of any of the Assigned Rights.
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5. To induce Assignor to sell, and Assignee to purchase, the Assigned
Rights, at the special insistence and request of the Borrower, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower hereby releases, discharges and acquits forever the
Assignor and its officers, directors, shareholders, employees, agents and
representatives (in each case, past, present or future) from any and all
liabilities, claims, defenses, demands, actions, causes of action, judgments,
deficiencies, interest, liens, costs or expenses (including court costs,
penalties, attorneys' fees and disbursements and amounts paid in settlement) of
any kind and character whatsoever which have accrued as of the date hereof,
including existing obligations under the Loan Papers, claims for usury, breach
of contract, breach of commitment, negligent misrepresentation or failure to act
in good faith, in each case whether arising out of written documents,
underwritten undertakings, course of conduct, tort, violations of laws or
regulations or otherwise, with respect to the Loan Papers and the transactions
arising or contemplated thereunder; provided, however, Borrower further
releases, discharges and acquits forever the Assignor and its officers,
directors, shareholders, employees, agents and representatives (in each case,
past, present or future) from any and all future claims and obligations under
the Loan Papers.
6. Assignor acknowledges that Borrower and Assignee have paid all costs
and expenses of Assignor, including, without limitation, the reasonable fees and
expenses of counsel to Assignor, incurred in connection with the preparation and
negotiation of this Assignment and the consummation of the transactions
contemplated hereby.
7. This Assignment shall be binding upon Assignor, Borrower and
Assignee and their respective successors and assigns.
8. Exhibit A and Schedule 1 hereto are hereby incorporated in this
Assignment by reference and constitute a part of this Assignment.
9. This Assignment shall be governed by and construed in accordance
with the laws of the State of New York, except to the extent necessarily
governed by the laws of other states in which any property subject to the liens
and security interests created or evidenced by the Security Documents is
located.
10. This Assignment may be executed in several counterparts all of
which are identical. It is not necessary that all signatures appear on the same
counterpart. This Assignment will be effective when counterparts hereof have
been executed and delivered by Assignor, Assignee and Borrower. All of such
counterparts together constitute one and the same instrument.
11. To the extent the laws or other requirements of any state or
jurisdiction in which this Assignment is to be filed require that a legal
description of the real property within that jurisdiction covered by the
Security Documents be attached to this Assignment, such legal description is
attached hereto as Exhibit A.
12. THIS ASSIGNMENT EMBODIES THE ENTIRE AGREEMENT AMONG ASSIGNOR,
ASSIGNEE AND BORROWER, SUPERSEDES ALL PRIOR AGREEMENTS, UNDERSTANDINGS,
REPRESENTATIONS OR WARRANTIES, WHETHER ORAL OR WRITTEN, IF ANY, RELATING TO THE
SUBJECT MATTER HEREOF, AND MAY BE AMENDED ONLY BY AN INSTRUMENT IN WRITING
EXECUTED JOINTLY BY AN AUTHORIZED
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OFFICER OF THE ASSIGNOR, ASSIGNEE AND BORROWER. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Assignment to be
executed by their duly authorized officers effective as of the date first set
forth above.
ASSIGNOR: THE CHASE MANHATTAN BANK, individually
and as Administrative Agent pursuant to the
Loan Agreement
WITNESS:
By: /s/ STEVEN WOOD
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/s/ MARGUERITE REPICHUSI Name: Steven Wood
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Title: Vice President
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The address of Assignor is:
The Chase Manhattan Bank
One Chase Manhattan Plaza, Eighth Floor
New York, New York 10081
Attn: Lynette Lang
Fax: 212- 552-5777
THE STATE OF NEW YORK }
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}
COUNTY OF QUEENS }
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This instrument was acknowledged before me on July 14, 2000, by Steven
Wood, Vice President of The Chase Manhattan Bank, a national banking associate,
on behalf of said banking association.
/s/ RENEE R. GOLDSTEIN
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Notary Public, State of New York
THE STATE OF NEW YORK }
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}
COUNTY OF QUEENS }
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On this the 14 day of July, 2000, before me, Steven Wood, the
undersigned officer, personally appeared _______________________, who
acknowledged himself to be the ________________________ of The Chase Manhattan
Bank, a national banking associate, and that he, as such Vice President, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the bank by himself as
_______________________.
In witness whereof I hereunto set my hand and official seal.
/s/ RENEE R. GOLDSTEIN
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[Notary Stamp] Notary Public, State of New York
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ASSIGNEE: INTERMOUNTAIN INDUSTRIES, INC.
WITNESS:
By: /s/ JEFFREY K. LEBENS
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/s/ SCOTT MADISON Name: Jeffrey K. Lebens
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Name: Scott Madison Title: Vice President, CFO & Treasurer
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The address of Assignee is:
P.O. Box 7608
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BOISE, ID 83707
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THE STATE OF IDAHO }
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}
COUNTY OF ADA }
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This instrument was acknowledged before me on July 14th, 2000, by
Jeffrey K. Lebens, Vice President/Chief Financial Officer of Intermountain
Industries, Inc., on behalf of said company.
/s/ LORI CASADY
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Notary Public, State of IDAHO
THE STATE OF IDAHO }
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}
COUNTY OF ADA }
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On this the 14th day of July, 2000, before me,Lori Casady, the
undersigned officer, personally appeared Jeffrey K. Lebens, who
acknowledged herself/himself to be the Vice President/Chief Financial Officer
of Intermountain Industries, Inc., and that she/he, as such Vice President/Chief
Financial Officer, being authorized so to do, executed the foregoing instrument
for the purposes therein contained, by signing the name of the company by
herself/himself as Vice President/Chief Financial Officer.
In witness whereof I hereunto set my hand and official seal.
/s/ LORI CASADY
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[Notary Stamp] Notary Public, State of IDAHO
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PETROGLYPH ENERGY, INC.
WITNESS:
By: /s/ S. KEN SMITH
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/s/ DONNETA L. THODE S. Ken Smith
- ----------------------- Executive Vice President
Name: Chief Financial Officer
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The address of Petroglyph Energy, Inc. is:
Petroglyph Energy, Inc.
6209 North Highway 61
Hutchinson, Kansas 67502
Attn: Robert C. Murdock
Fax: 316-665-8500
THE STATE OF KANSAS }
}
COUNTY OF RENO }
This instrument was acknowledged before me on July 14, 2000, by S. Ken
Smith, Executive Vice President and Chief Financial Officer of Petroglyph
Energy, Inc., a Delaware corporation, on behalf of said corporation.
/s/ JUDY GATES
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Notary Public, State of Kansas
THE STATE OF KANSAS }
}
COUNTY OF RENO }
On this the 14th day of July, 2000, before me, Judy Gates, the
undersigned officer, personally appeared S. Ken Smith, who acknowledged himself
to be the Executive Vice President and Chief Financial Officer of Petroglyph
Energy, Inc., a Delaware corporation, and that he, as such Vice President and
Chief Financial Officer, being authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself as Executive Vice President and Chief Financial Officer.
In witness whereof I hereunto set my hand and official seal.
/s/ JUDY GATES
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Notary Public, State of Kansas
[Notary Stamp]
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