EXHIBIT 10.3
(CO, LA,
MT, ND, NM, OK, TX, WY)
SUPPLEMENT
AND AMENDMENT TO DEED OF TRUST, MORTGAGE,
LINE OF
CREDIT MORTGAGE, ASSIGNMENT, SECURITY AGREEMENT,
FIXTURE
FILING AND FINANCING STATEMENT
FROM
ST. MARY
LAND & EXPLORATION COMPANY
TO
WACHOVIA
BANK, NATIONAL ASSOCIATION,
AS
ADMINISTRATIVE AGENT,
OR,
ALTERNATIVELY, TO
JAY
CHERNOSKY, TRUSTEE
FOR THE
BENEFIT OF
WACHOVIA
BANK, NATIONAL ASSOCIATION,
AS
ADMINISTRATIVE AGENT
Dated
Effective as of April 14, 2009
A CARBON,
PHOTOGRAPHIC, FACSIMILE, OR OTHER REPRODUCTION OF THIS INSTRUMENT IS SUFFICIENT
AS A FINANCING STATEMENT.
THIS
INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS, SECURES PAYMENT OF
FUTURE ADVANCES, AND COVERS PROCEEDS OF COLLATERAL.
THIS
INSTRUMENT COVERS, AMONG OTHER THINGS, (A) GOODS WHICH ARE OR ARE TO BECOME
FIXTURES RELATED TO THE REAL PROPERTY DESCRIBED HEREIN, AND (B) AS-EXTRACTED
COLLATERAL RELATED TO THE REAL PROPERTY DESCRIBED HEREIN (INCLUDING, WITHOUT
LIMITATION, OIL, GAS, OTHER MINERALS AND OTHER SUBSTANCES OF VALUE WHICH MAY BE
EXTRACTED FROM THE EARTH AND ACCOUNTS ARISING OUT OF THE SALE AT THE WELLHEAD OR
MINEHEAD THEREOF). THIS INSTRUMENT IS TO BE FILED FOR RECORD, AMONG
OTHER PLACES, IN THE REAL ESTATE OR COMPARABLE RECORDS OF THE COUNTIES AND/OR
PARISHES REFERENCED IN EXHIBIT A-1 HERETO
AND SUCH FILING SHALL SERVE, AMONG OTHER PURPOSES, AS A FIXTURE FILING AND AS A
FINANCING STATEMENT COVERING AS-EXTRACTED
-1-
COLLATERAL.
THE MORTGAGOR HAS AN INTEREST OF RECORD IN THE REAL ESTATE AND/OR IMMOVABLE
PROPERTY CONCERNED, WHICH INTEREST IS DESCRIBED IN SECTION 1.1 OF THIS
INSTRUMENT.
A POWER OF SALE HAS BEEN
GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW AGENT (AS HEREINAFTER
DEFINED) OR TRUSTEE (AS HEREINAFTER DEFINED) TO TAKE THE MORTGAGED PROPERTIES
AND SELL THEM WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE
MORTGAGOR (AS HEREINAFTER DEFINED) UNDER THIS MORTGAGE.
Note
to North Dakota Recording Officer: Attached to counterparts hereto to be filed
in the State of North Dakota (as Annex II-A) is an adequate statement of the
interest.
EMPLOYER
IDENTIFICATION NUMBER OF MORTGAGOR: 41-05 18430
ORGANIZATIONAL
IDENTIFICATION NUMBER OF MORTGAGOR: 0044728
WHEN
RECORDED OR FILED RETURN TO:
Vinson
& Elkins L.L.P.
2500
First City Tower
1001
Fannin Street
Houston,
Texas 77002
Attention:
Linda Daugherty
Phone
Number: (713) 758-4513
-2-
SUPPLEMENT
AND AMENDMENT TO DEED OF TRUST, MORTGAGE,
LINE OF
CREDIT MORTGAGE, ASSIGNMENT, SECURITY AGREEMENT,
FIXTURE
FILING AND FINANCING STATEMENT
THIS
SUPPLEMENT AND AMENDMENT TO DEED OF TRUST, MORTGAGE, LINE OF CREDIT MORTGAGE,
ASSIGNMENT, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT (this
“Supplement”) is entered
into as of the effective time and date hereinafter stated on the signature page
hereto (the “Effective
Date”) by ST. MARY LAND & EXPLORATION COMPANY), a Delaware
corporation (Taxpayer I.D. No. 41-0518430) (“Mortgagor”); to WACHOVIA BANK,
NATIONAL ASSOCIATION, as Administrative Agent (in such capacity, together with
its successors in such capacity, by operation of law or as otherwise provided in
the hereinafter defined Credit Agreement, the “Agent”) for the lenders
(collectively, the “Lenders”) now or hereafter
party to the Credit Agreement, or, alternatively, to JAY CHERNOSKY, as
Trustee with respect to Property located in the State of Texas, whose address
for notice is 1001 Fannin Street, Suite 2255, Houston, Texas 77002
(the “Trustee”), for the
benefit of the Agent.
RECITALS
A. Mortgagor,
the Agent and the Lenders entered into that certain Amended and Restated Credit
Agreement dated as of April 7, 2005, by and among Mortgagor, the Agent, and each
of the Lenders (the “Amended
and Restated Credit
Agreement”).
B. The
indebtedness of the Mortgagor under or in connection with the Amended and
Restated Credit Agreement is secured by, among other things, that certain Deed
of Trust, Mortgage, Line of Credit Mortgage, Assignment, Security Agreement,
Fixture Filing and Financing Statement, from Mortgagor to Trustee for the
benefit of the Agent, duly recorded as set forth on Annex I attached
hereto and made a part hereof for all purposes (the “Mortgage”).
C. Mortgagor,
the Agent and the Lenders entered into that certain Second Amended and Restated
Credit Agreement dated as of April 10, 2008, by and among Mortgagor, the Agent,
and each of the Lenders (the “Existing Credit Agreement”), which
amended and restated the Amended and Restated Credit Agreement in its
entirety.
D. Mortgagor,
the Agent and the Lenders desire to enter into that certain Third Amended and
Restated Credit Agreement dated as of even date herewith to amend and restate
the Existing Credit Agreement in its entirety to, among other things, increase
the Aggregate Commitment (as defined therein) to $700,000,000 and extend the
Maturity Date (as defined therein) to July 31, 2012 (the “Credit
Agreement”).
E. Mortgagor
hereby desires to further supplement and amend the Mortgage by adding to the
Mortgaged Properties described therein and covered thereby all rights, titles,
interests and estates now owned or hereafter acquired by Mortgagor in and to the
properties described on Exhibit A-1 attached
hereto and made a part hereof for all purposes.
NOW,
THEREFORE, for good and valuable consideration in hand paid by Mortgagor to
Agent and in consideration of the debts and trusts hereinafter mentioned, the
receipt and
sufficiency
of all of which is hereby acknowledged, Mortgagor and Agent do hereby agree as
follows:
ARTICLE
I
Grant and
Mortgage
Section
1.1
Mortgagor,
for and in consideration of the sum of Ten Dollars ($10.00) to Mortgagor in hand
paid, and in order to secure the payment of the secured indebtedness referred to
in the Mortgage, as supplemented and amended hereby, and the performance of the
obligations, covenants, agreements, warranties and undertakings of Mortgagor
described in the Mortgage, as supplemented and amended hereby, does hereby (a)
GRANT, BARGAIN, SELL, CONVEY, TRANSFER, ASSIGN AND SET OVER to Trustee, and
grant to Trustee a POWER OF SALE (pursuant to the Mortgage, as supplemented and
amended hereby, and applicable law) with respect to, those of the following
described properties, rights and interests which are located in (or cover
properties located in) the State of Texas or which are located within (or cover
properties located in) the offshore area over which the United States of America
asserts jurisdiction and to which the laws of any such state are applicable with
respect to the Mortgage, as supplemented and amended hereby, and/or the liens or
security interests created hereby (the “Additional Deed of Trust Mortgaged
Properties”); and (b) MORTGAGE, ASSIGN, WARRANT, PLEDGE AND HYPOTHECATE
to Agent, and grant to Agent a POWER OF SALE (pursuant to the Mortgage, as
supplemented and amended hereby, and applicable law) with respect to, all of the
following described rights, interests and properties which were not granted to
Trustee in clause (a) above (including, without limitation, those of the
following described properties, rights and interests which are located in (or
cover properties located in) the States of Colorado, Louisiana, Montana, New
Mexico, North Dakota, Oklahoma or Wyoming or which are located within (or cover
properties located within) the offshore area over which the United States of
America asserts jurisdiction and to which the laws of any such state are
applicable with respect to the Mortgage, as supplemented and amended hereby,
and/or the liens or security interests created hereby) (the “Additional Other Mortgaged
Properties”):
A. The oil,
gas and/or other mineral properties, mineral servitudes, and/or mineral rights
which are described in Exhibit A-1 attached
hereto and made a part hereof;
B. Without
limitation of the foregoing, all other right, title and interest of Mortgagor of
whatever kind or character (whether now owned or hereafter acquired by operation
of law or otherwise) in and to (i) the oil, gas and/or mineral leases or other
agreements described in Exhibit A-1 hereto,
(ii) the lands described or referred to in Exhibit A-1 (or
described in any of the instruments described or referred to in Exhibit A-1), without
regard to any limitations as to specific lands or depths that may be set forth
in Exhibit A-1
hereto or in any of the leases or other agreements described in Exhibit A-1 hereto
and (iii) any other lands (including submerged lands) located anywhere in the
United States of America or located offshore the United States of America but
within the offshore area over which the United States of America or any State
thereof asserts jurisdiction;
C. All of
Mortgagor’s interest (whether now owned or hereafter acquired by operation of
law or otherwise) in and to all presently existing and hereafter created oil,
gas and/or mineral unitization, pooling and/or communitization agreements,
declarations and/or
orders,
and in and to the properties, rights and interests covered and the units created
thereby (including, without limitation, units formed under orders, rules,
regulations or other official acts of any federal, state or other authority
having jurisdiction), which cover, affect or otherwise relate to the properties,
rights and interests described in clause A or B above;
D. All of
Mortgagor’s interest in and rights under (whether now owned or hereafter
acquired by operation of law or otherwise) all presently existing and hereafter
created operating agreements, equipment leases, production sales contracts,
processing agreements, transportation agreements, gas balancing agreements,
farmout and/or farm-in agreements, salt water disposal agreements, area of
mutual interest agreements, and other contracts and/or agreements which cover,
affect, or otherwise relate to the properties, rights and interests described in
clause A, B or C above or to the operation of such properties, rights and
interests or to the treating, handling, storing, processing, transporting or
marketing of oil, gas, other hydrocarbons, or other minerals produced from (or
allocated to) such properties, rights and interests (including, but not limited
to, those contracts listed in Exhibit A-1 hereto),
as same may be amended or supplemented from time to time;
E. All of
Mortgagor’s interest (whether now owned or hereafter acquired by operation of
law or otherwise) in and to all improvements, fixtures, movable or immovable
property and other real and/or personal property (including, without limitation,
all wells, pumping units, wellhead equipment, tanks, pipelines, flow lines,
gathering lines, compressors, dehydration units, separators, meters, buildings,
injection facilities, salt water disposal facilities, and power, telephone and
telegraph lines), and all easements, servitudes, rights-of-way, surface leases,
licenses, permits and other surface rights, which are now or hereafter used, or
held for use, in connection with the properties, rights and interests described
in clause A, B or C above, or in connection with the operation of such
properties, rights and interests, or in connection with the treating, handling,
storing, processing, transporting or marketing of oil, gas, other hydrocarbons,
or other minerals produced from (or allocated to) such properties, rights and
interests; and
F. All
rights, estates, powers and privileges appurtenant to the foregoing rights,
interests and properties.
TO HAVE
AND TO HOLD (a) the Additional Deed of Trust Mortgaged Properties unto the
Trustee, and its successors or substitutes in this trust, and to its or their
successors and assigns, in trust, however, upon the terms, provisions and
conditions set forth in the Mortgage, as amended and supplemented hereby, and
(b) the Additional Other Mortgaged Properties unto Agent, and Agent’s successors
and assigns, upon the terms, provisions and conditions herein set forth (the
Additional Deed of Trust Mortgaged Properties and the Additional Other Mortgaged
Properties are herein sometimes collectively called the “Additional Mortgaged
Properties”).
Section
1.2
Mortgagor
hereby confirms that it has heretofore granted, bargained, sold, conveyed,
transferred, assigned, set over, mortgaged, warranted, pledged and hypothecated
to the Agent, and granted a security interest to the Agent in, the “Property”
(as such term is amended hereby), and Mortgagor hereby further grants, bargains,
sells, conveys, transfers, assigns, sets over, mortgages, warrants, pledges and
hypothecates to Agent, and grants a security
interest
to Agent in, the Property, to secure the payment and performance of the “secured
indebtedness” (as defined in the Mortgage, as supplemented and amended
hereby).
Section
1.3
Mortgagor
hereby confirms that it has heretofore absolutely and unconditionally assigned,
transferred and set over and does hereby absolutely and unconditionally assign,
transfer and set over to Agent, its successors and assigns, all of the
“Production” (as defined in the Mortgage, as supplemented and amended hereby)
which accrues to Mortgagor’s interest in the “Mortgaged Properties” (as such
term is amended hereby), and all “Production Proceeds” (as defined in the
Mortgage, as supplemented and amended hereby), together with the immediate and
continuing right to collect and receive all such Production
Proceeds.
ARTICLE
II
Amendments
Section
2.1
Amendment to Section 1.3
(Secured Indebtedness). Section 1.3 of the Mortgage is hereby
amended and restated in its entirety to read as follows:
“Section
1.3 Secured
Indebtedness. This Mortgage is executed and delivered by the
Mortgagor to secure and enforce the payment and performance of the
following:
(a) Payment
of and performance of any and all indebtedness, obligations and liabilities,
whether now in existence or hereafter arising,
whether by acceleration or otherwise, including the principal of,
interest on (including, without limitation,
interest accruing after the maturity of the “Loans” (as defined in the
hereinafter defined Credit Agreement) made by each Lender and interest accruing
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Mortgagor,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) of the Mortgagor and all other
amounts, payments and premiums due under or in connection with that
certain Third Amended and Restated Credit Agreement dated as of the Effective
Date, by and among Mortgagor, Agent and the Lenders as the same may from time to
time be amended or supplemented, the “Credit Agreement”) or any
other “Loan Document” (as defined in the Credit Agreement), including, without
limitation, the “Notes” (as defined in the Credit Agreement) in the aggregate
original principal amount of $678,000,000 with final maturity on or before July
31, 2012, and further including any additional Loans or any increases to the
Loans which may be made pursuant to the Credit Agreement; provided, the Lenders
have no obligation to make any such additional Loans or increase.
(b) Payment
and performance of any and all indebtedness, obligations and liabilities of any
Guarantor (as defined in the Credit Agreement) whether now existing or hereafter
arising under or in connection with the “Guaranty Agreement” (as defined in the
Credit Agreement).
(c) Any
sums which may be advanced or paid by the Agent or any Lender under the terms
hereof or of the Credit Agreement or any Loan Document on account of the failure
of the Mortgagor to comply with the covenants of the Mortgagor contained herein
or in the Credit Agreement or any other Loan Document; and all other
indebtedness of the Mortgagor arising pursuant to the provisions of this
Mortgage.
(d) Payment
of and performance of any and all present or future obligations of the Mortgagor
according to the terms of any present or future interest rate or currency swap,
rate cap, rate floor, rate collar, forward rate agreement or other exchange or
rate protection agreements or any option with respect to any such transaction
now existing or hereafter entered into between the Mortgagor and any Lender or
any Affiliate (as defined in the Credit Agreement) of such Lender.
(e) Payment
of and performance of any and all present or future obligations of the Mortgagor
according to the terms of any present or future swap agreements, cap, floor,
collar, forward agreement or other exchange or protection agreements relating to
crude oil, natural gas or other hydrocarbons or any option with respect to any
such transaction now existing or hereafter entered into between the Mortgagor
and any Lender or any Affiliate of such Lender.
(f) Performance
of all “Letter of Credit Agreements” (as defined in the Credit Agreement)
executed from time to time by Mortgagor or any Subsidiary of the Mortgagor under
or pursuant to the Credit Agreement and all reimbursement obligations for drawn
or undrawn portions under any “Letter of Credit” (as defined in the Credit
Agreement) now outstanding or hereafter issued under or pursuant to the Credit
Agreement.
(g) All renewals, extensions, amendments, increases and
changes of, or substitutions or replacements for, all or any part of the
obligations described under paragraphs (a) through (f) in this Section
1.3.”
Section
2.2
Amendment to Section 1.5
(Secured Indebtedness). Section 1.5 of the Mortgage is hereby
amended and restated in its entirety to read as follows:
“Section
1.5 MAXIMUM
SECURED AMOUNT. NOTWITHSTANDING ANY PROVISION HEREOF TO THE
CONTRARY, THE OUTSTANDING INDEBTEDNESS SECURED BY PROPERTY LOCAED IN THE STATES
OF LOUISIANA, MONATANA OR NEW MEXICO SHALL NOT, AT ANY TIME OR FROM TIME TO
TIME, EXCEED AN AGGREGATE MAXIMUM AMOUNT OF $1, 500,000,000.”
Section
2.3
Amendment to Section
2.1. Section 2.1 of the Mortgage is hereby amended and
restated in its entirety to read as follows:
“Section
2.1 Mortgagor represents, warrants, and covenants as follows to the extent
that any violation of such representations, warranties or covenants shall not
individually or collectively create a Material Adverse Effect regarding the
Property:”
Section
2.4
Amendment to Section
2.1(a). Section 2.1(a) of the Mortgage is hereby amended by
deleting “(vi)” in the twelfth line of such Section and replacing it with
“(iv)”.
Section
2.5
Amendment to Section
2.1(c). Section 2.1(c) of the Mortgage is hereby amended and
restated in its entirety to read as follows:
“(c) Sale of
Production. No Mortgaged Property is or will become subject to
any contractual or other arrangement (i) whereby payment for production is or
can be deferred for a
substantial
period after the month in which such production is delivered (i.e., for wells in
pay status, in the case of oil, not in excess of 60 days, and in the case of
gas, not in excess of 90 days, and for wells not in pay status, the time period
provided by statute) or (ii) whereby payments are made to Mortgagor other than
by checks, drafts, wire transfer advises or other similar writings, instruments
or communications for the immediate payment of money. Except for production
sales contracts, processing agreements or transportation agreements (or other
agreements relating to the marketing of Production) listed on Exhibit A (in
connection with the Mortgaged Properties to where they relate), and except as
otherwise disclosed to the Agent in writing, (i) no Mortgaged Property is or
will become subject to any contractual or other arrangement for the sale,
processing or transportation of Production (or otherwise related to the
marketing of Production) which cannot be cancelled on 120 days’ (or less) notice
and (ii) all contractual or other arrangements for the sale, processing or
transportation of Production (or otherwise related to the marketing of
Production) shall be bona fide transactions, and except for contractual and
other arrangements with Four Winds Marketing, LLC, will be with third parties
not affiliated with Mortgagor, and shall, with respect to all contracts and
other arrangements be at the best price (and on the best terms) then available
(such price shall, in the case of Production sales which are subject to price
controls, be determined giving consideration to such fact). Mortgagor is
presently receiving a price for all production from (or attributable to) each
Mortgaged Property covered by a production sales contract listed on Exhibit A as computed
in accordance with the terms of such contract, and is not having deliveries of
production from such Mortgaged Property curtailed substantially below such
property’s delivery capacity. Neither Mortgagor, nor any of its predecessors in
title, has received prepayments (including, but not limited to, payments for gas
not taken pursuant to “take or pay” or other similar arrangements) for any oil,
gas or other hydrocarbons produced or to be produced from the Mortgaged
Properties after the date hereof, and Mortgagor hereby covenants not to enter
into any such advance or prepayment arrangements whereby it accepts
consideration for oil, gas or other hydrocarbons not yet produced. No Mortgaged
Property is or will become subject to any “take or pay” or other similar
arrangement (i) which can be satisfied in whole or in part by the production or
transportation of gas from other properties or (ii) as a result of which
production from the Mortgaged Properties may be required to be delivered to one
or more third parties without payment (or without full payment) therefor as a
result of payments made, or other actions taken, with respect to other
properties. To the best of Mortgagor’s knowledge, the gas imbalances set forth
in Schedule 7.19 of the Credit Agreement reflects the net gas balancing position
of the Mortgaged Properties as of the Effective Date (as such term is defined in
the Credit Agreement). Except as otherwise disclosed to Agent in
writing, as of December 31, 2008, there is no Mortgaged Property with respect to
which Mortgagor, or its predecessors in title, has, prior to such date, taken
more (“overproduced”), or less (“underproduced”), gas from the lands covered
thereby (or pooled or unitized therewith) than its ownership interest in such
Mortgaged Property would entitle it to take which has resulted, on such date, in
Mortgagor being materially overproduced or materially underproduced with respect
to the Mortgaged Property. Mortgagor will not after the date hereof become
“overproduced” (as above defined) with respect to any well on the Mortgaged
Properties (or on any unit in which the Mortgaged Properties participate), in an
amount in excess of Mortgagor’s share of gas produced from such well during the
preceding four calendar months. No Mortgaged Property is or will become subject
to a gas balancing arrangement under which one or more third parties may take a
portion of the production attributable to such Mortgaged Property without
payment (or without full payment) therefor as a result of production having been
taken from, or
as a
result of other actions or inactions with respect to, other properties. No
Mortgaged Property is subject at the present time to any regulatory refund
obligation and, to the best of Mortgagor’s knowledge, no facts exist which might
cause the same to be imposed.”
Section
2.6
Amendment to Section
2.1(e). Section 2.1(e) of the Mortgage is hereby amended and
restated in its entirety to read as follows:
“Operation of Mortgaged
Properties. The Mortgaged Properties, and with respect to
Mortgaged Properties not operated by Mortgagor, to the best of Mortgagor’s
knowledge, such non-operated Mortgaged Properties, (and properties unitized
therewith) are being (and, to the extent the same could adversely affect the
ownership or operation of the Mortgaged Properties after the date hereof, have
in the past been), and hereafter will be, maintained, operated and developed in
a good and workmanlike manner, in accordance with prudent industry standards and
in conformity with all applicable laws and all rules, regulations and orders of
all duly constituted authorities having jurisdiction and in conformity with all
oil, gas and/or other mineral leases and other contracts and agreements forming
a part of the Property and in conformity with the Permitted Encumbrances;
specifically in this connection, (i) no Mortgaged Property is subject to having
allowable production after the date hereof reduced below the full and regular
allowable (including the maximum permissible tolerance) because of any
overproduction (whether or not the same was permissible at the time) prior to
the date hereof and (ii) none of the wells located on the Mortgaged Properties
(or properties unitized therewith) are or will be deviated from the vertical
more than the maximum permitted by applicable laws, regulations, rules and
orders, and such wells are, and will remain, bottomed under and producing from,
with the well bores wholly within, the Mortgaged Properties (or, in the case of
wells located on properties unitized therewith, such unitized properties). There
are no wells listed on Schedule I hereto
(“Schedule I Wells”)
being redrilled, deepened, plugged back or reworked, and no other operations are
being conducted for which consent is required under the applicable operating
agreement (or which are other than normal operation of existing wells on the
Mortgaged Properties); except as otherwise disclosed to Agent in writing, there
are no proposals in excess of $1,500,000 net to Mortgagor’s interest currently
outstanding (whether made by Mortgagor or by any other party) to re-drill,
deepen, plug back, or rework Schedule I Wells, or to conduct any other
operations under the applicable joint operating agreement, or to abandon any
Schedule I Wells (nor are there any such proposals which have been approved
either by Mortgagor or any other party, with respect to which the operations
covered thereby have not been commenced). Except as otherwise disclosed to Agent
in writing, there are no dry holes, or otherwise inactive wells, located on the
Mortgaged Properties or on lands pooled or unitized therewith (including,
without limitation, any wells which would, if located in Texas, require
compliance with Railroad Commission Rule 14(b)(2)) that in the aggregate will
cost more than $1,500,000, net to Mortgagor’s interest and net of salvage
proceeds, to plug and abandon, except for wells that have been properly plugged
and abandoned that have not been taken into account in Mortgagor’s financial
statements as furnished to Agent. Mortgagor has, and will have in the future,
all governmental licenses and permits necessary or appropriate to own and
operate the Property; Mortgagor has not received notice of any violations in
respect of any such licenses or permits.”
Section
2.7
Amendment to Section
2.1(k). Section 2.1(k) is hereby amended by adding the
following to the end of the third to last sentence of such Section:
“and (x) are determined by
a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such indemnitee
or (y) result from a claim brought by the Mortgagor or any Guarantor
against an indemnitee for a material breach in bad faith of such indemnitee's
obligations under this Mortgage, any other Loan Document or
any agreement or instrument contemplated hereby or thereby, if the
Mortgagor or such Guarantor has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent
jurisdiction.”
Section
2.8
Amendment to Section
4.1(Default). Section 4.1 of the Mortgage is hereby amended
and restated in its entirety to read as follows:
“Section
4.1 Default. The
term “default” as used
in this Mortgage shall mean the occurrence of any of the following
events:
(i) the
occurrence of an “Event of Default” as defined in the Credit Agreement;
or
(ii) the
failure of Mortgagor to pay over to Agent any Production Proceeds which are
receivable by Agent under this Mortgage but which are paid to Mortgagor rather
than Agent (either as provided for in Section 3.2 hereof or otherwise), except
Production Proceeds paid over to Mortgagor by Agent under clause THIRD of
Section 3.4; or
(iii) the
breach or failure of Mortgagor timely and properly to observe, keep or perform
any covenant, agreement, warranty or condition herein required to be observed,
kept or performed, if such breach or failure is not remedied within the
applicable grace period provided for herein or, if no grace period is provided
then within 30 days after the earlier of (i) Mortgagor becoming aware of such
breach or failure or (ii) written notice and demand by Agent for the performance
of such covenant, agreement, warranty or condition; provided, however, if in the
reasonable judgment of the Agent, the Mortgagor is diligently pursuing a cure
for any such breach or failure and such a cure is practicable within a
reasonable time, Agent may grant additional time beyond said 30 days to remedy
such breach or failure; or
(iv) any
representation contained herein (or in any certificate delivered by Mortgagor in
connection herewith), or otherwise heretofore or hereafter made by or on behalf
of Mortgagor as Mortgagor, shall prove to have been false or misleading in any
material respect on the date made (or on the date as of which made) and the
result of such misrepresentation shall be material with respect either to the
Mortgagor or the interests of the Agent or the Lenders.”
Section
2.9
Amendment to Section 4.2
(Acceleration of Indebtedness). Section 4.2 of the Mortgage is
amended by deleting “subsection (g), (h), (i) or (j) of” from the second line of
such Section.
ARTICLE
III
Definitions;
References
Section
3.1
All
capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Mortgage, as supplemented and amended hereby.
Section
3.2
All
references in the Mortgage to “this Mortgage” shall mean the Mortgage as
supplemented and amended hereby and as the same may from time to time be further
amended or supplemented.
Section
3.3
All
references in the Mortgage to “Mortgagor” shall mean the Mortgagor as defined in
the Preamble hereto.
Section
3.4
All
references in the Mortgage to “Credit Agreement” shall mean the Credit Agreement
as defined and described in this Supplement as if reference thereto were fully
made in the Mortgage at the time the Mortgage was executed and
recorded.
Section
3.5
All
references in the Mortgage to “Mortgaged Properties” are hereby supplemented and
amended to include the Additional Mortgaged Properties as defined and described
in this Supplement as if reference thereto were fully made in the Mortgage at
the time the Mortgage was executed and recorded.
Section
3.6
All
references in the Mortgage to “Property” are hereby supplemented and amended to
include the Additional Mortgaged Properties as defined and described in this
Supplement as if reference thereto were fully made in the Mortgage at the time
the Mortgage was executed and recorded.
Section
3.7
All
references in the Mortgage to “Deed of Trust Mortgaged Properties” are hereby
supplemented and amended to include the Additional Deed of Trust Mortgaged
Properties as defined and described in this Supplement as if reference thereto
were fully made in the Mortgage at the time the Mortgage was executed and
recorded.
Section
3.8
All
references in the Mortgage to “Other Mortgaged Properties” are hereby
supplemented and amended to include the Additional Other Mortgaged Properties as
defined and described in this Supplement as if reference thereto were fully made
in the Mortgage at the time the Mortgage was executed and recorded.
Section
3.9
All
references in the Mortgage to “Exhibit A” are hereby
amended and supplemented to include the oil, gas and/or other mineral
properties, mineral servitudes, and/or mineral rights which are described in
Exhibit A-1
attached hereto and made a part hereof as if reference thereto were fully made
in the Mortgage at the time the Mortgage was executed.
Section
3.10 All
references in the Mortgage to “Schedule I” are
hereby amended and supplemented to include the Wells described on Exhibit A-1 attached
to this Supplement as if reference thereto were fully made in the Mortgage at
the time the Mortgage was executed.
Section
3.11 All
references in the Mortgage to “Schedule I Wells” are
hereby amended and supplemented to include the Wells described on Exhibit A-1 attached
to this Supplement as if reference thereto were fully made in the Mortgage at
the time the Mortgage was executed.
Section
3.12 All
references in the Mortgage to “Agent” shall mean Wachovia Bank, National
Association, as Administrative Agent for the Lenders, together with its
successors in such capacity, by operation of law or as otherwise provided in the
Credit Agreement.
Section
3.13 All
references in the Mortgage to “Lenders” shall mean the Lenders now or hereafter
party to the Credit Agreement.
Section
3.14 All
references in the Mortgage to “secured indebtedness” and “indebtedness secured
hereby” shall mean all indebtedness, obligations and liabilities of Mortgagor
referred to in Section 2.1 of this Supplement, which amends in its entirety
Section 1.3 of the Mortgage, together with any and all renewals, rearrangements,
modifications, increases and extensions thereof.
Section
3.15 All
references in the Mortgage to “Notes” shall mean the promissory notes issued,
executed and delivered by the Mortgagor to the Lenders under the Credit
Agreement, together with any and all renewals, rearrangements, modifications,
increases and extensions thereof.
Section
3.16 All
references in the Mortgage to “Loan Documents” shall mean the Loan Documents (as
defined in the Credit Agreement).
ARTICLE
IV
Miscellaneous
Section
4.1
The
parties hereto hereby acknowledge and agree that except as specifically amended,
changed or modified hereby, the Mortgage shall remain in full force and effect
in accordance with its terms. None of the rights, titles and
interests existing and to exist under the Mortgage are hereby released,
diminished or impaired, and Mortgagor hereby reaffirms all covenants,
representations and warranties made in the Mortgage.
Section
4.2
This
Supplement may be executed in several counterparts, all of which are identical,
except that, (a) to facilitate recordation, certain counterparts hereof may
include only that portion of Exhibit A-1 which
contains descriptions of the properties located in (or otherwise subject to the
recording or filing requirements and/or protections of the recording or filing
acts or regulations of) the recording jurisdiction in which the particular
counterpart is to be recorded, and other portions of Exhibit A-1 shall be
included in such counterparts by reference only and (b) only those counterparts
hereof being retained by Agent and Mortgagor or otherwise containing counterpart
descriptions of Mortgaged Properties located in (or otherwise subject to the
recording or filing requirements and/or protections of the recording or filing
acts or regulations of) the States of North Dakota and Oklahoma will have Annex I-A attached
thereto, and Annex
I-A is included in all other counterparts by reference
only. All of such counterparts together shall constitute one and the
same instrument.
[SIGNATURES
BEGIN NEXT PAGE]
-12-
EXECUTED
this 14th day of April, 2009, to be effective, however, as of April 14,
2009 (the “Effective
Date”).
ST. MARY LAND &
EXPLORATION
COMPANY
By: /s/ MILAM RANDOLPH
PHARO
Milam
Randolph Pharo
Senior Vice President and General
Counsel
The
address and tax identification number of Mortgagor is:
1776
Lincoln Street, Suite 1100
Denver,
Colorado 80203
(Denver
County)
Taxpayer
ID. No. 41-05 18430
The address
of Agent is:
1525 W.
HT Harris Blvd.,
Charlotte,
North Carolina 28262
The
addresses of Trustees are:
Jay
Chernosky
1001
Fannin Street, Suite 2255
Houston,
Texas 77002
Signature
Page
to
Supplement
and Amendment to Deed of Trust, Mortgage, Line of Credit Mortgage, Assignment,
Security Agreement, Fixture Filing and Financing Statement
Houston
3960723
STATE OF
TEXAS
§
§
COUNTY OF
HARRIS §
BE IT
REMEMBERED THAT I, the undersigned authority, a notary public duly qualified,
commissioned, sworn and acting in and for the county and state aforesaid, and
being authorized in such county and state to take acknowledgments, hereby
certify that, on this 9th day of April, 2009, THERE personally appeared before
me: Milam Randolph Pharo, Senior Vice President and General Counsel of St. Mary
Land & Exploration Company, a Delaware corporation, known to me to be such
officer, such corporation being a party to the foregoing
instrument.
|
COLORADO,
LOUISIANA, MONTANA, NORTH DAKOTA, OKLAHOMA, TEXAS
and
WYOMING
|
The
foregoing instrument was acknowledged before me on this day,
by
such
person, the above designated officer of the corporation
specified
following
such person’s name, on behalf of said corporation.
On
this date before me, the undersigned authority, personally came
and
appeared
such person, to me personally known and known by me to be the person whose
genuine signature is affixed to the foregoing document as the above
designated officer of the corporation specified following such and
person’s name, who signed said document before me, and who acknowledged,
in my presence, that he signed the above and foregoing document as his own
free act and deed on behalf of such corporation by authority of its board
of directors and as the free act and deed of such corporation and for the
uses and purposes therein set forth and apparent.
This
instrument was acknowledged before me on this day, by such person, the
above designated officer of the corporation specified following such
person’s name, on behalf of said
corporation.
|
IN
WITNESS WHEREOF, I have hereunto set my hand and official seal in the City of
Houston, Harris County, Texas on the day and year first above
written.
/s/ JENNIFER Y. AARON
NOTARY PUBLIC, in and for the State of
Texas
Jennifer Y.
Aaron
My
commission
expires:
(printed
name)
05-01-2011
[SEAL]
Acknowledgment
Page
to
Supplement
and Amendment to Deed of Trust, Mortgage, Line of Credit Mortgage, Assignment,
Security Agreement, Fixture Filing and Financing Statement
Houston
3960723
ANNEX
I
Deed of
Trust, Mortgage, Line of Credit Mortgage Assignment, Security Agreement, Fixture
Filing and Financing Statement dated effective as of April 7, 2005 from St. Mary
Land & Exploration Company to Wachovia Bank, National Association, as
Administrative Agent.
|
Jurisdiction
|
File/Entry
No.
|
Book/Page
|
Date
Filed
|
|
Bossier
Parish, LA
|
831932
|
1472
|
04-18-05
|
|
Caddo
Parish, LA
|
1970675
|
|
04-19-05
|
|
Desoto
Parish, LA
|
616921
|
319/1
|
04-14-05
|
|
Morehouse
Parish, LA
|
193172
|
582/183
|
04-18-05
|
|
Natchitoches
Parish, LA
|
M280911
228839
|
768/261
590/547
|
04-15-05
|
|
Webster
Parish, LA
|
477794
|
602/772
|
04-15-05
|
|
Richland
County, MT
|
529711
|
192/318-371
|
04-18-05
|
|
McKenzie
County, ND
|
356243
|
|
04-25-05
|
|
Alfalfa
County, OK
|
031160
|
581/734-782
|
04-15-05
|
|
Beckham
County, OK
|
2005-003117
|
1843/675-747
|
04-15-05
|
|
Blaine
County, OK
|
1640
|
913/470-517
|
04-14-05
|
|
Carter
County, OK
|
2005-004091
|
4285/68-141
|
04-14-05
|
|
Coal
County, OK
|
027249
|
652/494-558
|
04-22-05
|
|
Ellis
County, OK
|
I-A-009471
|
706/347-394
|
04-18-05
|
|
Garfield
County, OK
|
4125
|
1752/927
|
04-15-05
|
|
Grady
County, OK
|
2005-005326
|
3720/91-141
|
04-15-05
|
|
Grant
County, OK
|
608
|
562/192
|
04-14-05
|
|
Haskell
County, OK
|
301537
|
681/101-157
|
04-14-05
|
|
Hughes
County, OK
|
|
1027/1-49
|
04-14-05
|
|
Latimer
County, OK
|
2005-035223
|
653/178-228
|
04-14-05
|
|
LeFlore
County, OK
|
3842
|
1552/446-491
|
04-14-05
|
|
Logan
County, OK
|
3536
|
1851/45-92
|
04-14-05
|
|
Murray
County, OK
|
2005-001180
|
767/1-48
|
04-14-05
|
|
Pittsburg
County, OK
|
133088
|
1372/379-475
|
04-19-05
|
|
Seminole
County, OK
|
2563
|
2697/200-247
|
04-14-05
|
Annex
I
Houston 3960723v.1
| Jurisdiction |
File/Entry
No.
|
Book/Page
|
Date
Filed
|
|
Washita
County, OK
|
2005-002861
|
1009/597-644
|
04-15-05
|
|
Cass
County, TX
|
37589
|
|
04-14-05
|
|
Gregg
County, TX
|
200507947
|
|
04-14-05
|
|
Houston
County, TX
|
051641
|
|
04-14-05
|
|
Marion
County, TX
|
1250
|
697/334-381
|
04-14-05
|
|
Panola
County, TX
|
100387
|
1262/467-514
|
04-14-05
|
|
Rusk
County, TX
|
10774
|
254/432-480
|
04-14-05
|
|
Smith
County, TX
|
2005-R0017684
|
7765/818-866
|
04-14-05
|
|
Sutton
County, TX
|
051971
|
337/352-399
|
04-14-05
|
|
Wheeler
County, TX
|
15347
|
535/583-630
|
04-19-05
|
|
Albany
County, WY
|
2005-2399
|
|
04-14-05
|
|
Park
County, WY
|
2005-2693
|
|
04-18-05
|
Annex
I
Houston 3960723v.1
ANNEX
I-A
Annex
I-A
Houston 3960723v.1
ANNEX
II-A
Annex
II-A
Houston 3960723v.1
EXHIBIT
A-1
Exhibit
A-1
Houston 3960723v.1