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000496
MORTGAGE. SECURITY AGREEMENT. FINANCING STATEMENT.
FIXTURE FILING AND ASSIGNMENT OF PRODUCTION
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY AND FUTURE
ADVANCE PROVISIONS. THIS INSTRUMENT COVERS THE INTEREST OF
MORTGAGOR IN MINERALS OR THE LIKE (INCLUDING OIL AND GAS) BEFORE
EXTRACTION AND THE SECURITY INTEREST CREATED BY THIS INSTRUMENT
ATTACHES TO SUCH MINERALS AS EXTRACTED AND TO THE ACCOUNTS
RESULTING FROM THE SALE THEREOF AT THE WELLHEAD OR WELLHEADS OF
THE WELL OR WELLS LOCATED ON THE REAL PROPERTY HEREJN DESCRIBED.
THIS INSTRUMENT COVERS THE INTEREST OF MORTGAGOR IN FIXTURES. THIS
FINANCING STATEMENT IS TO BE FILED FOR RECORD, AMONG OTHER PLACES, IN
THE REAL ESTATE RECORDS. PRODUCTS OF THE COLLATERAL ARE ALSO
COVERED.
A POWER OF SALE HAS BEEN GRANTED IN TillS INSTRUMENT. A
POWER OF SALE MAY ALLOW THE MORTGAGEE TO TAKE THE
COLLATERAL AND SELL IT WITHOUT GOING TO COURT IN A
FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER
THIS INSTRUMENT.
ABRAXAS OPERATING, LLC
(the Mortgagor, Debtor and Grantor)
(Organizational I.D. No. 0800818925)
TO AND FOR THE BENEFIT OF
SOCIÉTÉ GÉNÉRALE, as Administrative Agept
(the Mortgagee, Secured Party and Grantee)
January 31, 2008
For purposes of filing this Mortgage as a financing statement, Abraxas Operating, LLC is a
limited liability company organized under the laws of the State of Texas, its organizational
number is 0800818925, and its mailing address is 500 N. Loop 1604 East, Suite 100, San
Antonio, Texas 78232, Attention: Chris E. Williford / Barbara M. Stuckey; Facsimile: 210-490-
8816. The mailing address of the Mortgagee is 1111 Bagby Street, Suite 2020, Houston, Texas
77002, Attention: Cameron Null, Facsimile: 713-650-0824.
***********************************
This instrument, prepared by Danielle Kruger, Bracewell & Giuliani LLP, 711 Louisiana, South
Tower Pennzoil Place, Suite 2300, Houston, Texas 77002, (713) 221-1413, contains after-
acquired property provisions and covers future advances and proceeds to the fullest extent
allowed by applicable law. RECEIVED 2/25/2008 at 9:19 AM
RECEIVING # 937130
BOOK: 687 PAGE: 496
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
1
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000497
ATTENTION RECORDING OFFICER: This instrument is a mortgage of both real and personal
property and is, among other things, a Security Agreement and Financing Statement under the
Unifonn Commercial Code in effect in the State of Wyoming. This instrument creates a lien on
rights in or relating to lands of the Mortgagor which are described in Exhibit A hereto or in
documents described in such Exhibit A.
RECORDED DOCUMENT SHOULD BE RETURNED TO:
Bracewell & Giuliani LLP
711 Louisiana, South Tower Pennzoil Place, Suite 2300
Houston, Texas 77002
Attn: Cynthia Hasty
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000498
MORTGAGE. SECURITY AGREEMENT. FINANCING STATEMENT.
FIXTURE FILING AND ASSIGNMENT OF PRODUCTION
THIS MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT,
FIXTURE FILING AND ASSIGNMENT OF PRODUCTION (this "Mortgage") dated effective
as of the 31 st day of January 2008 (the "Effective Date"), is executed and delivered by
ABRAXAS OPERATING, LLC, a Texas limited liability company (the "Mortgagor"), to and in
favor of SOCIÉTÉ GÉNÉRALE (the "Mortgagee"), in its capacity as the administrative agent
under the Credit Agreement (as hereinafter defined) and on behalf of the Credit Parties (as
hereinafter defined). The addresses of the Mortgagor and the Mortgagee appear in Section 7.12
of this Mortgage.
RECITALS
A. This Mortgage is executed in connection with, and pursuant to the terms of, that
certain Amended and Restated Credit Agreement dated as of January 31, 2008 among Abraxas
Energy Partners, L.P., a Texas limited partnership (the "Borrower"), the lenders party thereto
from time to time (the "Lenders"), and the Mortgagee as administrative agent for the Lenders
(the "Administrative Agent") and as issuing lender (the "Issuing Lender") (as amended,
modified, restated or supplemented from time to time, the "Credit Agreement").
B. In connection with the Credit Agreement, the Borrower or any of its Subsidiaries
(including the Mortgagor) may from time to time enter into one or more Hedge Contracts (as
defined in the Credit Agreement) with a Lender or any of its Affiliates (such counterparty being
referred to herein as "Swap Counteroarty", and together with the Mortgagee, the Lenders, the
Administrative Agent and the Issuing Lender collectively referred to herein as the "Credit
Parties"). ' ,
~ :.,
C. It is a requirement under the Credit Agreement that the Mortgagor execute and
deliver this Mortgage.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Mortgagor (a)
makes this Mortgage in favor of the Mortgagee to secure the Obligations (as defined herein),
including the obligations arising under Hedge Contracts with a Swap Counterparty, and (b)
hereby agrees as follows:
ARTICLE I
Dermitions
1.1
Collateral.
"Collateral" means the Realty Collateral, Personalty Collateral and Fixture
1.2 "Contracts" means all contracts, agreements, operating agreements, farm-out or
farm-in agreements, sharing agreements, mineral purchase agreements, contracts for the
purchase, exchange, transportation,· processing or sale of Hydrocarbons, rights-of-way,
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easements, surface leases, equipment leases, pennits, franchises, licenses, pooling or unitization
agreements, and unit or pooling designations and orders now or hereafter ·affecting any of the Oil
and Gas Properties, Operating Equipment, Fixture Operating Equipment, or Hydrocarbons now
or hereafter covered hereby, or which are useful or appropriate in drilling for, producing,
treating, handling, storing, transporting or marketing oil, gas or other minerals produced from
any of the Oil and Gas Properties, and all such contracts and agreements as they may be
amended, restated, modified, substituted or supplemented from time-to-time.
1.3 "Event of Default" shall have the meaning set forth in Article V hereof.
1.4 "Fixture Collateral" means all of the Mortgagor's interest now owned or hereafter
acquired, in and to all Fixture Operating Equipment and all proceeds, products, renewals,
increases, profits, substitutions, replacements, additions, amendments and accessions thereof,
thereto or therefor.
1.5 "Fixture Operating Equipment" means any of the items described in the first
sentence of the definition of "Operating Equipment" set forth below and which as a result of
being incorporated into realty or structures or improvements located therein or thereon in such a
manner that they no longer remain personalty but constitute fixtures under the laws of the state in
which they are located.
1.6 "Hvdrocarbons" means oil, gas, coal seam gas, casinghead gas, drip gasoline,
natural gasoline, condensate, distillate, and all other liquid and gaseous hydrocarbons produced
or to be produced in conjunction therewith from a well bore and all products, by-products, and
other substances derived therefrom or the processing thereof, and all other minerals and
substances produced in conjunction with such substances, including sulfur, geothermal steam,
water, carbon dioxide, helium, and any and all minerals, ores, or substances of value and the
products and proceeds therefrom.
1.7 "Maturitv Date" means January 31, 2013,
1.8 "Note" means the "Note" as that term is defined in the Credit Agreement.
1.9 "Obligations" means
(a) The "Obligations'" as that term is defined in the Credit Agreement,
including all indebtedness evidenced by the Notes, whether fixed or contingent, joint or several,
direct or indirect, primary or secondary, and regardless of how created or evidenced;
(b) All other indebtedness, obligations, and liabilities of the Mortgagor, the
Borrower or any of its Subsidiaries arising under the Credit Agreement, this Mortgage, any
Guaranty, any Hedge Contract with a Swap Counterparty, or any of the other Loan Documents;
( c) All sums advanced or costs or expenses incurred by the Mortgagee or any
of the other Credit Parties, which are made or incurred pursuant to, or allowed by, the terms of
this Mortgage plus interest thereon from the date of the advance or incurrence until
reimbursement of the Mortgagee or such Credit Party charged at the Reimbursement Rate;
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000500
(d) All future advances or other value, of whatever class or for whatever
purpose, at any time hereafter made or given by the Mortgagee or any of the other Credit Parties
to the Mortgagor, the Borrower or any of its Subsidiaries under or pursuant to any Loan
Document, whether or not the advances or value are given pursuant to a commitment, whether or
not the advances or value are presently contemplated by the parties hereto, and whether or not
the Mortgagor is indebted to any Credit Party at the time of such events; and
(e) All renewals, extensions, modifications, amendments, rearrangements and
substitutions of all or any part of the above whether or not the Mortgagor executes any
agreement or instrument.
1.10 "Oil and Gas Property" or "Oil and Gas Properties" means (a) the oil and gas
and/or oil, gas and mineral leases and leasehold interests, fee mineral interests, term mineral
interests, participation interests, back-in or carried working interests, rights of first refusal,
options, subleases, farmouts, royalties, overriding royalties, net profits interests, production
payments and similar interests or estates described in Exhibit A attached hereto and made a part
hereof for all purposes, including the net revenue interests warranted in Exhibit A and any
reversionary or carried interests relating to any of the foregoing, (b) all production units, and
drilling and spacing units (and the Properties covered thereby) which may affect all or any
portion of such interests including those units which may be described or referred to on Exhibit
A and any units created by agreement or designation or under orders, regulations, rules or other
official acts of any Federal, state Qr other governmental body or agency having jurisdiction, (c)
the surface leases described in Exhi1;>it'A, (d) any and all non-consent interests owned or held by,
or otherwise benefiting, the Mortgagor and arising out of, or pursuant to, any of the Contracts,
(e) any other interest in, to or relating to (i) all or any part of the land described in Exhibit A, the
land relating to, or described in, the leases set forth in Exhibit A or in the documents described in
Exhibit A, or (ii) any of the estates, property rights or other interests referred to above, (f) any
instrument executed in amendment, correction, modification, confirmation, renewal or extension
of any of the estates, property rights, or other interests referred to above, (g) any and all rights,
titles and interests of the Mortgagor (which are similar in nature to any of the rights, titles and
interests described in (a) through (f) above) which are located on or under or which concern any
Property or Properties located in counties referenced in Exhibit A hereto or counties in which a
counterpart of this Mortgage is filed of record in the real property records of such county, and (h)
all tenements, hereditaments and appurtenances now existing or hereafter obtained in connection
with any of the aforesaid, including any rights arising under unitization agreements, orders or
other arrangements, communitization agreements, orders or other arrangements or pooling
orders, agreements or other arrangements,
1.11 "Operating Equipment" means all surface or subsurface machinery, equipment,
facilities, supplies or other Property of whatsoever kind or nature now or hereafter located on any
of the Property affected by the Oil and Gas Properties which are useful for the production,
treatment, storage or transportation,. 'of Hydrocarb~ns, including all oil wells, gas wells, water
wells, injection wells, casing, tubing, rods, pumping units and engines, christmas trees, derricks,
separators, gun barrels, flow lines, pipelines, tanks, gas systems (for gathering, treating and
compression), water systems (for treating, disposal and injection), supplies, derricks, wells,
power plants, poles, cables, wires, meters, processing plants, compressors, dehydration units,
lines, transformers, starters and controllers, machine shops, tools, storage yards and equipment
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C00501.
stored therein, buildings and camps, telegraph, telephone and other communication systems,
roads, loading racks, shipping facilities and all additions, substitutes and replacements for, and
accessories and attachments to, any of the foregoing. Operating Equipment shall not include any
items incorporated into realty or structures or improvements located therein or thereon in such a
manner that they no longer remain personalty under the laws of the state in which they are
located.
1.12 "Personaltv Collateral" means all of the Mortgagor's interest now owned or
hereafter acquired in and to (a) all Operating Equipment, (b) all Hydrocarbons severed and
extracted from or attributable to the Oil and Gas Properties, including oil in tanks and all other
"as-extracted" collateral from or attributable to the Oil and Gas Properties, (c) all accounts
(including accounts resulting from the sale of Hydrocarbons at the wellhead), contract rights and
general intangibles, including all· accounts, contract rights and general intangibles now or
hereafter arising regardless of whether any of the foregoing is in connection with the sale or
other disposition of any Hydrocarbons or otherwise, including all Liens securing the same, (d) all
accounts, contract rights and general intangibles now or hereafter arising regardless of whether
any of the foregoing is in connection with or resulting from any of the Contracts, including all
Liens securing the same, (e) all proceeds and products of the Realty Collateral and any other
contracts or agreements, (f) all information concerning the Oil and Gas Properties and all wells
located thereon, including abstracts of title, title opinions, geological and geophysical
information and logs, lease files, well files, and other books and records (including computerized
records and data), (g) any deposit or time accounts with any Credit Party, including the
Mortgagor's operating bank account and all funds and investments therein, (h) any options or
rights of first refusal to acquire any Realty Collateral, and (i) all proceeds, products, renewals,
increases, profits, substitutions, replacements, additions, amendments and accessions of, to or for
any of the foregoing.
1.13 "Property" means any property of any kind, whether real, personal, or mixed and
whether tangible or intangible.
1.14 "Realtv Collateral" means all of the Mortgagor's interest now owned or hereafter
acquired in and to the Oil and Gas,Properties, including any access rights, water and water rights,
and all unsevered and unextracted HydrÖcarbons (even though the Mortgagor's interest therein
may be incorrectly described in, or a description of a part or all of such interest may be omitted
from, Exhibit A).
1.15 "Reimbursement Rate" means a per annum rate equal to the lesser of (a) the
Maximum Rate and (b) the Adjusted Reference Rate in effect :fÌom time to time plus the
Applicable Margin for Reference Rate Advances in effect during an Event of Default.
1.16 "Securitv Termination" means such time at which each of the following events
shall have occurred on or prior to such time: (a) the indefeasible payment in full of all
Obligations in cash and all other amounts payable under the Loan Documents, (b) the
termination or expiration of all.Letters of Credit that are not fully secured with cash in such
amounts as may be required by the Issuing Lender, ( c) the termination of all Hedge Contracts
with the Credit Parties, and (d) the termination of all the Commitments.
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COO"S02
1.17 All other capitalized terms defined in the Credit Agreement which are used in this
Mortgage and which are not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement. All meanings to defined terms, unless otherwise indicated, are to
be equally applicable to both the singular and plural forms of the terms defined, Article, Section,
Schedule, and Exhibit references are to Articles and Sections of and Schedules and Exhibits to
this Mortgage, unless otherwise specified. All references to instruments, documents, contracts,
and agreements are references to such instruments, documents, contracts, and agreements as the
same may be amended, supplemented, and otherwise modified from time to time, unless
otherwise specified. The words "hereof', "herein" and "hereunder" and words of similar import
when used in this Mortgage shall refer to this Mortgage as a whole and not to any particular
provision of this Mortgage. As used herein, the term "including" means "including, without
limitation" .
ARTICLE II
Creation of Security
2.1 Conveyance and Grant of Lien. In consideration of the advances or extensions
by the Credit Parties to Borrower of the funds or credit constituting the Obligations (including
the making of the Advances and the issuing of the Letters of Credit), and in further consideration
of the mutual covenants contained ..~erein"thÿ Mortgagor, by this Mortgage hereby GRANTS
AND MORTGAGES to the Mortgagee, and its successors and assigns, with a general warranty
of title, for the uses, purposes and conditions hereinafter set forth, all of its right, title and interest
in and to the Realty Collateral, the Personalty Collateral, and the Fixture Collateral, WITH
POWER OF SALE, unto the Mortgagee, its successors and assigns, to secure the payment and
performance of the Obligations on or prior to the Maturity Date for the benefit of the Mortgagee
and the ratable benefit of the Credit Parties,
TO HA VB AND TO HOLD the Realty Collateral, the Personalty Collateral and the
Fixture Collateral unto the Mortgagee and its successors and assigns for~ver for the benefit of
the Credit Parties, together with all and singular the rights, hereditamen;ts and appurtenances
thereto in anywise appertaining or belonging, to secure payment of the Obligations and the
performance of the covenants of the Mortgagor contained in this Mortgage. The Mortgagor does
hereby bind itself, its successors and permitted assigns, to warrant and forever defend all and
singular the Realty Collateral, the Personalty Collateral and the Fixture Collateral unto the
Mortgagee and its successors and assigns, against every Person whomsoever lawfully claiming
or to claim the same, or any part thereof.
Subject, however, to the condition that none of the Mortgagee or the Credit Parties shall
be liable in any respect for the performance of any covenant or obligation of the Mortgagor in
respect of the Collateral. Any refefehce in Eihibit A to the name of a well shall not be construed
to limit the Collateral to the well bore of such well or in the pro rata units. It is the Mortgagor's
intention that this Mortgage cover the Mortgagor's entire interest in the lands, leases, units and
other interests set forth in Exhibit A.
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2.2 Securitv Interest. For the same consideration and to further secure the
Obligations, the Mortgagor hereby grants to the Mortgagee for its benefit and the ratable benefit
of the other Credit Parties a security interest in and to the Collateral.
2.3 AssÎlmment of Liens and Security Interests. For the same consideration and to
further secure the Obligations, the Mortgagor hereby assigns and conveys to the Mortgagee for
its benefit and the benefit of the other Credit Parties any security interests held by the Mortgagor
arising under the Wyoming Uniform. Commercial Code-Secured Transactions (Wyo. Stat. 34.1-
9-101 et seq., as amended from tim~·td time) and the liens granted to the Mortgagor. .
2.4 AGGREGATE UNPAID PRINCIPAL AMOUNT. THE AGGREGATE
UNPAID PRINCIPAL AMOUNT OF OBLIGATIONS AND ADVANCES SECURED
HEREBY OUTSTANDING AT ANY PARTICULAR TIME (AFfER HAVING GIVEN
EFFECT TO ALL ADVANCED AND ALL REPAYMENTS MADE PRIOR TO SUCH
TIME) SHALL NOT AGGREGATE AN UNPAID PRINCIPAL AMOUNT IN EXCESS
OF FIVE HUNDRED MILLION AND NO/tOO DOLLARS ($500,000,000.00).
2.5 Mineral Leasin!! Act. It is the specific intent of the parties hereto to fully
comply with applicable law concerning Federal oil and gas leases. The parties hereto in good
faith believe that a grant of a mortgage as security for the repayment of the Obligations is not the
grant of an "interest" (as such term is defined and used in 43 C.F.R. § 3000.0-5(1) in Federal oil
and gas leases to the Mortgagee or any Credit Party. In the event that the grant of this Mortgage
as security for the repayment of the Obligations is determined to grant such an "interest" in
Federal oil and gas leases, then such grant shall be deemed to be made to, and shall inure to the
benefit of, only those parties that may lawfully hold an interest in Federal oil and gas leases
pursuant to the Mineral Leasing Act of 1920, 30 U.S.C. §§ 181 et seq. and the regulations
promulgated thereunder, including 43 C,F.R. § 3102 and Subpart 3106.
}.;! '. ARTICLE III
Proceeds from Production
3.1 Assi2llment of Production,
(a) In order to further secure the Obligations, the Mortgagor has assigned,
transferred, conveyed and delivered and does hereby assign, transfer, convey and deliver
unto the Mortgagee, effective as of the Effective Date, at 7:00 a.m. Houston, Texas time,
all Hydrocarbons produced from, and which are attributable to, the Mortgagor's interest,
now owned or hereafter acquired, in and to the Oil and Gas Properties, or are allocated
thereto pursuant to pooling, communitization or unitization orders, agreements or
designations, and all proceeds therefrom.
(b) Subject to the provisions of subsection (f) below, all parties producing,
purchasing, taking, possessing, processing or receiving any production from the Oil and
Gas Properties, or having in their possession any such production, or the proceeds
therefrom, for which they or others are accountable to the Mortgagee by virtue of the
provisions of this Section 3.1, are authorized and directed by the Mortgagor to treat and
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regard the Mortgagee as the assignee and transferee of the Mortgagor and entitled in its
place and stead to receive such Hydrocarbons and the proceeds there:ITom.
(c) The Mortgagor directs and instructs each of such parties to pay to the
Mortgagee, for its benefit and the ratable benefit of the other Credit Parties, all of the
proceeds of such Hydrocarbons until such ;time as such party has been furnished evidence
that all of the Obligations have been paid and that the Lien evidenced hereby has been
released; provided, however, that until the Mortgagee shall have exercised the rights as
herein to instruct such parties to deliver such Hydrocarbons and all proceeds therefrom
directly to the Mortgagee, such parties shall be entitled to deliver such Hydrocarbons and
all proceeds therefrom to the Mortgagor for the Mortgagor's use and enjoyment, and the
Mortgagor shall be entitled to execute division orders, transfer orders and other
instruments as may be required to direct all proceeds to the Mortgagor without the
necessity of joinder by the Mortgagee in such division orders, transfer orders or other
instruments. 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 reasonably
required or desired by the .Mortgagee or any party in order to have said revenues and
proceeds so paid to the Mortgagee. None of such parties shall have any responsibility for
the application of any such proceeds received by the Mortgagee. Subject to the
provisions of subsection (f) below, the Mortgagor authorizes the Mortgagee to receive
and collect all proceeds of such Hydrocarbons.
(d) Subject to the provisions of subsection (f) below, the Mortgagor will
execute and deliver to the Mortgagee any instruments the Mortgagee may :ITom time to
time reasonably request for the purpose,of effectuating this assignment and the payment
to the Mortgagee of the proceeds assigned. .
(e) Neither the foregoing assignment nor the exercise by the Mortgagee of
any of its rights herein shall be deemed to make the Mortgagee a "mortgagee-in-
possession" or otherwise responsible or liable in any manner with respect to the Oil and
Gas Properties or the use, occupancy, enjoyment or operation of all or any portion
thereof, unless and until the Mortgagee, in person or by agent, assumes actual possession
thereof, nor shall appointment of a receiver for the Oil and Gas Properties by any court at
the request of the Mortgagee or by agreement with the Mortgagor or the entering into
possession of the Oil and Gas Properties or any part thereof by such receiver be deemed
to make the Mortgagee a "mortgagee-in-possession" or otherwise responsible or liable in
any manner with respect to the Oil and Gas Properties or the use, occupancy, enjoyment
or operation of all or any portion thereof,
(f) Notwithstanding anything to the contrary contained herein, so long as no
Default or an Event of Default shall have occurred and is continuing, the Mortgagor shall
have the right to collect all revenues and proceeds attributable to the Hydrocarbons that
accrue to the Oil and Gas Properties or the products obtained or processed therefrom, as
well as any Liens and security interests securing any sales of said Hydrocarbons and to
retain, use and enjoy same.
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(g) Subject to the provisions of Subsection 3.1(f) above, the Mortgagee may
endorse and cash any and all checks and drafts payable to the order of the Mortgagor or
the Mortgagee for the account of the Mortgagor, received from or in connection with the
proceeds of the Hydrocarbons affected hereby, and the same may be applied as provided
herein, The Mortgagee may execute any transfer or division orders in the name of the
Mortgagor or otherwise, with warranties and indemnities binding on the Mortgagor;
provided that the Mortgagee shall not be held liable to the Mortgagor for, nor be required
to verify the accuracy of, the Mortgagor's interests as represented therein.
(h) Subject to the provisions of Subsection 3.1(f) above, the Mortgagee shall
have the right at the Mortgagee's election and in the name of the Mortgagor, or otherwise,
to prosecute and defend any and all actions or legal proceedings deemed advisable by the
Mortgagee in order to collect such proceeds and to protect the interests of the Mortgagee
or the Mortgagor, with all costs, expenses and attorneys fees incurred in connection
therewith being paid by the Mortgagor, In addition, should any purchaser taking
production from the Oil and Gas Properties fail to pay promptly to the Mortgagee
amounts due from it to the Mortgagor following the occurrence of an Event of Default
and such purchaser's receipt of notice from the Mortgagee directing such payment to be
made to the Mortgagee in accordance with this Article, the Mortgagee shall have the right
to demand a change of connection and to designate another purchaser with whom a new
connection may be made without any liability on the part of the Mortgagee in making
such election, so long as ordinary care is used in the making thereof, and upon failure of
the Mortgagor to consent to such change of connection, the entire amount of all the
Obligations may, at the option of the Mortgagee, be immediately declared to be due and
payable and subject to foreclosure hereunder.
(i) Without in any way limiting the effectiveness of the foregoing provisions,
if the Mortgagor receives any proceeds which under this Section 3,1 are payable to the
Mortgagee, the Mortgagor shall hold the same in trust and remit such proceeds, or cause
them to be remitted, immediately, to the Mortgagee.
3.2 Application of Proceeds, All payments received by the Mortgagee pursuant to
this Article III attributable to the interest of the Mortgagor in and to the Hydrocarbons shall be
applied in the order set forth in Section 7.06 of the Credit Agreement.
3.3 the Mort2a2or's Payment Duties, Except as provided in Section 7.16 hereof,
nothing contained herein will limit the Mortgagor's absolute duty to make payment of the
Obligations regardless of whether the proceeds assigned by this Article III are sufficient to pay
the same, and the receipt by the Mortgagee of proceeds from Hydrocarbons under this Mortgage
will be in addition to all other security now or hereafter existing to secure payment of the
Obligations,
3.4 Liability of the Mort2a2ee, The Mortgagee is hereby absolved from all liability
for failure to enforce collection of any of such proceeds, and from all other responsibility in
connection therewith except the responsibility to account to the Mortgagor for proceeds actually
received by the Mortgagee.
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3.5 Actions to Effect Assimment. Subject to the provisions of Section 3.1(f), the
Mortgagor covenants to cause all operators, pipeline companies, production purchasers and other
remitters of said proceeds to pay promptly to the Mortgagee the proceeds from such
Hydrocarbons in accordance with the terms of this . Mortgage, and to execute, acknowledge and
deliver to said remitters such division orders, transfer orders, certificates and other documents as
may be necessary, requested or proper to effect the intent of the assignment contained in this
Article III; and the Mortgagee shall not be required at any time, as a condition to its right to
obtain the proceeds of such Hydrocarbons, to warrant its title thereto or to make any guaranty
whatsoever. In addition, the Mortgagor covenants to provide to the Mortgagee, the name and
address of every such remitter of proceeds from such Hydrocarbons, together with a copy of the
applicable division orders, transfer orders, sales contracts and governing instruments. All
expenses incurred by the Mortgagee in the collection of said proceeds shall be repaid promptly
by the Mortgagor; and prior to such repayment, such expenses shall be a part of the Obligations
secured hereby. Ifunder any existing Contracts for the sale of Hydrocarbons, other than division
orders or transfer orders, aÌ1.y proceeds of Hydrocarbons are required to be paid by the remitter
direct to the Mortgagor so that under such existing Contracts payment cannot be made of such
proceeds to the,Mortgagee in the absence of foreclosure, the Mortgagor's interest in all proceeds
of Hydrocarbons under such existing Contracts shall, when received by the Mortgagor, constitute
trust funds in the Mortgagor's hands for the benefit of the Mortgagee and shall be immediately
paid over to the Mortgagee.
3.6 Power of Attornev. Without limitation upon any of the foregoing, the Mortgagor
hereby designates and appoints the Mortgagee as true and lawful agent and attorney-in-fact (with
full power of substitution, either generally or for ~uch periods or purposes as the Mortgagee may
from time to time prescribe), with full power and authority, for and on behalf of and in the name
of the Mortgagor, to execute, acknowledge and deliver all such division orders, transfer orders,
certificates and other documents of every nature, with such provisions as may from time to time,
in the opinion of the Mortgagee, be necessaiy or proper to effect the intent and purpose of the
assignment contained in this Article III; and the Mortgagor shall be bound thereby as fully and
effectively as if the Mortgagor had personally executed, acknowledged and delivered any of the
foregoing orders, certificates or documents. The powers and authorities herein conferred on the
Mortgagee may be exercised by the Mortgagee through any Person who, at the time of exercise,
is the president, a senior vice president or a vice president of the Mortgagee. The power of
attorney conferred by this Section 3.6 is granted for valuable consideration and coupled
with an interest and is irrevocable so long as Security Termination has not occurred. Any
Person dealing with the Mortgagee, or any 'substitute, shall be fully protected in treating the
powers and authorities conferred by this Section 3,6 as continuing in full force and effect until
advised by the Mortgagee that Security Tennination has occurred.
3.7 Indemnification. THE MORTGAGOR AGREES TO INDEMNIFY THE MORTGAGEE,
AND THE OTHER CREDIT PARTIES, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, AND AGENTS (COLLECTIVELY, THE "INDEMNIFIED PARTIES") FROM, AND
DISCHARGE, RELEASE AND HOLD EACH OF THEM HARMLESS AGAINST ALL LOSSES, DAMAGES,
CLAIMS, ACTIONS, LIABILITIES, JUDGMENTS, COSTS, ATTORNEYS FEES OR OTHER CHARGES OF
WHATSOEVER KIND OR NATURE (HEREAFTER REFERRED TO AS "CLAIMS") MADE AGAINST,
IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY OF THEM IN ANY WAY RELATING TO OR
ARISING OUT OF AN ASSERTION EITHER BEFORE OR AFTER THE PAYMENT IN FULL OF THE
HOUST0N\2149042
11
000507
OBLIGATIONS THAT ANY OF THE INDEMNIFIED PARTIES RECEIVED HYDROCARBONS OR
PROCEEDS PURSUANT TO Tms MORTGAGE OR PURSUANT TO ANY RIGHT :rO COLLECT
PROCEEDS DIRECTLY FROM ACCOUNT DEBTORS WHICH ARE CLAIMED BY THIRD PERSONS. THE
INDEMNIFIED PARTIES WILL HAVE THE RIGHT TO EMPLOY ATTORNEYS AND TO DEFEND
AGAINST ANY SUCH CLAIMS AND :uNLESS FURNISHED WITH REASONABLE INDEMNI1Y, THE
INDEMNIFIED PARTIES WILL HAVE THE RIGHT TO PAY OR COMPROMISE AND ADJUST ALL SUCH
CLAIMS. THE MORTGAGOR WILL INDEMNIFY AND PAY TO THE INDEMNIFIED PARTIES ALL
SUCH AMOUNTS AS MAY BE PAID IN RESPECT THEREOF, OR AS MAY BE SUCCESSFULLY
ADJUDICATED AGAINST ANY OF THE INDEMNIFIED PARTIES. THE INDEMNITY UNDER
THIS SECTION BY MORTGAGOR SHALL APPLY TO CLAIMS ARISING OR
INCURRED BY REASON OF ANY INDEMNIFIED PARTY'S OWN
NEGLIGENCE, BUT SHALL NOT APPLY TO CLAIMS DETERMINED BY A COURT
OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT
TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE INDEMNIFIED PARTY OR INDEMNIFIED PARTIES BEING
INDEMNIFIED. THE LIABILITIES OF THE MORTGAGOR AS SET FORTH IN Tms SECTION 3.7
SHALL SURVIVE THE TERMINATION OF Tms MORTGAGE.
3.8 Riehts Granted in this Article III. It is the specific intent of the parties hereto
to fully comply with applicable law concerning Federal oil and gas leases. The parties hereto in
good faith believe that a grant of an assignment of production in this Mortgage as security for the
repayment of the Obligations is not a transfer of a payment out of production or similar interest
(as used in 43 C.F.R. Subpart 3106) or the grant of an "interest" (as such term is defined and
used in 43 C.F.R § 3000.0-5(1)) ii1;Federal oil I:µ1d gas leases to the Mortgagee or any Credit
Party, In the event that the assigtÍrrient ·of production or the exercise of the rights provided by
this Article III is determined to grant such an "interest" in Federal oil and gas leases, then such
grant shall be deemed to be made to, and shall inure to the benefit of, only those parties that may
lawfully hold an interest in Federal oil and gas leases pursuant to the Mineral Leasing Act of
1920,30 U.S.C. §§ 181 et seq. and the regulations promulgated thereunder, including 43 C.F.R.
§ 3102 and Subpart 3106.
ARTICLE IV
The Morteaeor's Warranties and Covenants
4.1 Payment of Oblieations, The Mortgagor covenants that the Mortgagor shall
timely pay and perform the Obligations secured by this Mortgage,
4.2 Representations and Warranties. The Mortgagor represents and warrants as
follows:
(a) Incorporation of Representations and Warranties/rom Credit Agreement. The
representations and warranties applicable to the Mortgagor and to its Properties contained
in Article IV of the Cred~t ,Agreement are hereby confirmed and restated, each such
representation and warranty, together with all related definitions and ancillary provisions,
being hereby incorporated into this Mortgage by reference as though specifically set forth
in this Section,
HOUST0N\2149042
12
000508
(b) Title to Collateral. The Mortgagor has good and defensible title to the
Collateral free ·from all Liens, claims, security interests or other encumbrances except as
permitted by the provisions of Section ·4.4(i) below. The descriptions set forth in
Exhibit A of the quantum and nature of the interests of the Mortgagor in and to the Oil
and Gas Properties include the entire interests of the Mortgagor in the Oil and Gas
Properties and are complete and accurate in all respects. There are no "back-in" or
"reversionary" interests held by third parties which could reduce the interests of the
Mortgagor in the Oil and Gas Properties except as set forth on Exhibit A. No operating
or other agreement to which the Mortgagor is a party or by which the Mortgagor is bound
affecting any part of the Collateral requires the Mortgagor to bear any of the costs
relating to the Collateral greater than the leasehold interest of the Mortgagor in such
portion of the Collateral, except in the event the Mortgagor is obligated under an
operating agreement to assume a portion of a defaulting party's share of costs.
(c) Status of Leases, Term Mineral Interests and Contracts. All of the leases
and term mineral interests in the Oil and Gas Properties are valid, subsisting and in full
force and effect, and the Mortgagor has no knowledge that any default exists under any of
the terms or provisions, express or implied, of any of such leases or interests or under any
agreement to which the same are subject which could reasonably be expected to cause a
Material Adverse Change. All of the Contracts and obligations of the Mortgagor that
relate to the Oil and Gas Properties are in full force and effect and constitute legal, valid
and binding obligations of the Mortgagor öther than to the extent the voidance of such
Contract or obligation could not reasonably be expected to cause a Material Adverse
Change. Neither the Mortgagor nor, to the knowledge of the Mortgagor, any other party
to any Contract (i) is in breach of or default, or with the lapse of time or the giving of
notice, or both, would be in breach or default, with respect to any obligations thereunder,
whether express or implied, or (ii) has given or threatened to give notice of any default
under or inquiry into any possible default under, or action to alter, terminate, rescind or
procure a judicial reformation of, any lease in the Oil and Gas Properties or any Contract,
in any event, other than for such breaches or defaults which could not reasonably be
expected to cause a Material Adverse Change.
(d) Production Bu,:dens, Taxes, Expenses and Revenues. All rentals,
royalties, overriding royalties,· shut-in royalties and other payments due under or with
respect to the Oil and Gas Properties have been properly and timely paid, except for
payments held in suspense in the ordinary course of business or remitted to state agencies
responsible for handling unclaimed property. All taxes have been properly and timely
paid except to the extent such taxes are being contested in good faith and for which
reserves in accordance with GAAP have been made as reflected in the Financial
Statements. All expenses payable under the terms of the Contracts have been properly
and timely paid except for such expenses being contested in good faith by appropriate
proceedings, and for which reserves shall ,have been made therefore and except for such
expenses as are being currently paid prior to delinquency in the ordinary course of
business. Except for the Mortgagor's interests in certain Oil and Gas Properties, which
the Mortgagor represents do not constitute a material portion (with 2% or more being
deemed material) of the value of the Collateral and all other Properties of the Mortgagor
securing the Obligations, all of the proceeds from the sale of Hydrocarbons produced
IiOlJSl1)~149042
13
000509
from the Realty Collateral are being properly and timely paid to the Mortgagor by the
purchasers or other remitters' 'of production proceeds without suspense. The Mortgagor's
ownership of the Hydrocarbons and the undivided interests therein as specified on
attached Exhibit A will, after giving full effect to all Liens permitted hereby and after
giving full effect to the agreements or instruments set forth on attached Exhibit A and any
other instruments or agreements affecting the Mortgagor's ownership of such
Hydrocarbons, afford the Mortgagor not less than those net interests (expressed as a
fraction, percentage or decimal) in the production from or which is allocated to such
Hydrocarbons specified as net revenue interest on attached Exhibit A and will cause the
Mortgagor to bear not more than that portIon (expressed as a fraction, percentage or
decimal), specified as working interest on attached Exhibit A, of the costs of drilling,
developing and operating the wells identified on Exhibit A.
(e) Pricing. The prices being received for the production of Hydrocarbons do
not violate any Contract or any law or regulation. Where applicable, all of the wells
located on the Oil and Gas Properties and production of Hydrocarbons therefrom have
been properly classified under appropriate governmental regulations.
(f) Gas Regulatory Matters. The Mortgagor has filed with the appropriate
state and federal agencies all necessary rate and collection filings and all necessary
applications for well detenrtinations uhder the Natural Gas Act of 1938, as amended, the
Natural Gas Policy Act of 1978, as amended, and the rules and regulations of the Federal
Energy Regulatory Commission (the "FERC") thereunder, and each such application has
been approved by or is pending before the appropriate state or federal agency.
(g) Production Balances. Except as set forth below or permitted by the Credit
Agreement, none of the purchasers under any production sales contracts are entitled to
"make-up" or otherwise receive deliveries of Hydrocarbons at any time after the date
hereof without paying at such time the full contract price therefor, Except as set forth
below, no Person is entitled to receive any portion of the interest of the Mortgagor in any
Hydrocarbons or to receive cash or other payments to "balance" any disproportionate
allocation of Hydrocarbons under any operating agreement, gas balancing and storage
agreement, gas processing or dehydration agreement, or other similar agreements. The
Mortgagor believes that certain third parties may be entitled to receive "make-up"
deliveries of Hydrocarbons or cash or other payments to "balance" a disproportionate
allocation of Hydrocarbons produced from certain Oil and Gas Properties; provided,
however, the Mortgagor represents and warrants that such deliveries or payments are not
material (with 2% or more being deemed material) in aggregate amount when compared
to the value of the Collateral and all other Properties of the Mortgagor securing the
Obligations,
11'
(h) Drilling Obligations, There are no obligat~ons under any Oil and Gas
Property or Contract which require the drilling of additional wells or operations to earn or
to continue to hold any of the Oil and Gas Properties in fotce and effect, except for oil
and gas leases that are still within their primary term (each Of which will require drilling
operations to perpetuate it beyond its primary term) and the standard provision in certain
HOUST0N\2149042
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/
0005:10
oil and gas leases that requires either production or operations to perpetuate each
respective lease after the expiration of its primary term.
(i) Compliance With Laws. All wells on or attributable to the Oil and Gas
Properties have been drilled, completed and operated, and all production therefrom has
been accounted for and paid to the Persons entitled thereto, in compliance, in all material
respects, with all applicable federal, state and local laws and applicable rules and
regulations of the federal, state and local regulatory authorities having jurisdiction
thereof.
G) Regulatory Filings and Compliance. All necessary and material
regulatory filings have been properly made, and all regulatory (including Environmental)
processes have been complied with in all material respects, in connection with the
drilling, completion and operation of the wells on or attributable to the Oil and Gas
Properties, and the issuance of all rights of way and other surface uses necessary for the
exploration, development and transportation to and from such wells, and all other
operations related thereto.
(k) Allowables. All production and sales of Hydrocarbons produced or sold
from the Oil and Gas Properties have been made in accordance with any applicable
allowables (plus permitted tolerances) imposed by any Governmental Authorities.
(1) Refund Obligations. The Mortgagor has not collected any proceeds from
the sale of Hydrocarbons produced :&om the Oil and Gas Properties which are subject to
any refund obligation,
(m) The Mortgagor's Address, The address of the Mortgagor's place of
business, residence, chief executive office and office where the Mortgagor keeps its
records concerning accounts, contract rights and general intangibles is as set forth in
Section 7.12. The Mortgagor hereby represents and warrants that its organizational
number is 0800818925, the state of its formation is Texas and the correct spelling of its
name is as set forth in its signature block below.
4.3 Further Assurances.
(a) The Mortgagor covenants that the Mortgagor shall execute and deliver
such other and further instruments, and shall do such other and further acts as in the
opinion of the Mortgagee may be necessary or desirable to carry out more effectively the
purposes of this Mortgage, including without limiting the generality of the foregoing, (i)
prompt correction of any defect in the execution or acknowledgment of this Mortgage,
any written instrument comprising part or all of the Obligations, or any other document
used in connection herewith; (ii) prompt correction of any defect which may hereafter be
discovered in the title to the Collateral; (iii) prompt execution and delivery of all division
or transfer orders or other instruments which in the Mortgagee's opinion are required to
transfer to the Mortgagee, for its benefit and the ratable benefit of the other Credit
Parties, the assigned proceeds :&om the sale of Hydrocarbons from the Oil and Gas
Properties; and (iv) prompt payment when due and owing of all taxes, assessments and
HOUSTON\2 I 49042
15
000511
governmental charges imposed on this Mortgage, upon the interest of the Mortgagee, or
upon the income and profits from any of the above.
(b) The Mortgagor covenants that the Mortgagor shall maintain and preserve
the Lien and security interest herein created as an Acceptable Security Interest so long as
Security Termination has not occurred.
4.4 Operation of Oil and Gas Properties. As long as Security Termination has not
occurred, and whether or not the Mortgagor is the operator of the Oil and Gas Properties, the
Mortgagor shall (at the Mortgagor's own expense):
(a) not enter into any operating agreement, contract or agreement which
materially adversely affects the Collateral;
(b) do all things necessary and within the reasonable control of the Mortgagor
to keep, or cause to be kept, in full force and effect the Oil and Gas Properties and the
Mortgagor's interests therein, except as permitted by the Credit Agreement;
(c) neither abandon, forfeit, surrender, release, sell, assign, sublease, farmout
or convey, nor agree to sell, assign, sublease, farmout or convey, nor mortgage or grant security
interests in, nor otherwise dispose of or encumber any of the Collateral or any interest therein,
except as permitted by the Credit Agreement;
(d) operate the Oil and Gas Properties or, to the extent that the right of
operation is vested in others, will exercise its best efforts to cause the operator to operate the Oil
and Gas Properties, in each case in such a manner as to cause the Collateral to be maintained,
developed and protected against drainage and continuously operated for the production and
marketing of Hydrocarbons in a good and workmanlike manner as a prudent operator would in
accordance with (i) generally accepted practices, (ii) applicable oil and gas leases and Contracts,
and (iii) all applicable Federal, state and local laws, rules and regulations;
(e) promptly payor, to the extent that the right of operation is vested in
others, exercise its best efforts to cause to be paid, when due and owing (i) all rentals and
royalties payable in respect of the Collateral, except for payments held in suspense in the
ordinary course of business or remitted to state agencies responsible for handling unclaimed
property; (ii) all expenses incurred in or arising from the operation or development of the
Collateral, except for such expenses being contested in good faith by appropriate proceedings,
and for which reserves shall have b~~n made therefÇ>re and except for such expenses as are being
currently paid prior to delinquency in the ordinary course of business; and (iii) all taxes,
assessments and governmental charges imposed upon the Collateral, upon the income and profits
from any of the Collateral, upon the Mortgagee because of its interest therein or for which the
Mortgagor may be liable, except to the extent such taxes are being contested in good faith and
for which reserves in accordance with GAAP have been made as reflected in the Financial
Statements; and indemnify the Mortgagee from all liability in connection with any of the
foregoing (except to the extent of any liability determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of the Mortgagee);
HOUSTON\2 I 49042
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/
fJ0051.2
(f) promptly take all action necessary to enforce or secure the observance or
performance of any material term, covenant, agreement or condition to be observed or performed
by third parties under any Contract, or any part thereof, or to exercise any of its material rights,
remedies, powers and privileges under any Contract, all in accordance with the respective terms
thereof, except to the extent otherwise permitted under the Credit Agreement;
, .
(g) other than as otherwise permitted under the terms of the Credit
Agreement, cause the Operating Equipment and the Fixture Operating Equipment to be kept in
good and effective operating condition, ordinary wear and tear excepted, and cause to be made
all repairs, renewals, replacements, additions and improvements thereof or thereto, necessary or
appropriate in connection with the production of Hydrocarbons from the Oil and Gas Properties;
(h) permit and do all things necessary or proper to enable the Mortgagee
(through any of its agents and employees) to enter upon the Oil and Gas Properties during
business hours and with reasonable prior notice for the purpose of investigating and inspecting
the condition and operations of the Collateral in accordance with the terms of the Credit
Agreement;
(i) cause the Collateral to be kept free and clear of Liens of every character
other than the Permitted Liens;
G) carry and maintain the insurance required by the Credit Agreement;
(k) furnish to the Mortgagee, upon request, copies of any Contracts; and
(1) timely and adequately perform all covenants express or implied in any
Contract necessary to keep in full force and effect the Oil and Gas Properties and to maintain the
Mortgagor's interest therein other than to the extent permitted under the Credit Agreement.
4.5 Recording:. The Mortgagor hereby authorizes the Mortgagee to, at the
Mortgagor's own expense, record, register, deposit and file this Mortgage and every other
instrument in addition or supplement hereto, including applicable financing statements, in such
offices and places within the state where the Coll.ateral is located and in the state where the
Mortgagor is registered as a limited liability company and at such times and as often as may be
necessary to preserve, protect and renew the Lien and security interest herein created as an
Acceptable Security Interest on real or personal property as the case may be, and otherwise shall
do and perform all matters or things necessary or expedient to be done or observed by reason of
any Legal Requirement for the purpose of effectively creating, perfecting, maintaining and
preserving the Lien and security interest created hereby in and on the Collateral.
4.6 Records. Statements and Reports. The Mortgagor shall keep proper books of
record and account in which complete and correct entries shall be made of the Mortgagor's
transactions in accordance with the method of accounting required in the Credit Agreement and
shall furnish or cause to be furnished to the Mortgagee the reports required to be delivered
pursuant to the terms of the Credit Agreement.
HOUST0N\2149042
17
"(:00513
4.7 Insurance. To the extent that insurance is carried by a third-party operator on
behalf of the Mortgagor, upon request by the Mortgagee, the Mortgagor shall obtain and provide
the Mortgagee with copies of certificates of insurance showing the Mortgagor as a named
insured. The Mortgagor hereby assigns to the Mortgagee for its benefit and the benefit of the
other Credit Parties any and all monies that may become payable under any such policies of
insurance by reason of damage, loss or destruction of any of the Collateral and the Mortgagee
may receive such monies and apply all or any part of the sums so collected, at its election,
toward payment of the Obligations, whether or not such Obligations are then due and payable, in
such manner as the Mortgagee may elect. Any insurance proceeds received by the Mortgagor
shall be, unless otherwise notified by the Mortgagee, held in trust for the benefit of the
Mortgagee, shall be segregated from other funds of the Mortgagor and shall be forthwith paid
over to the Mortgagee.
ARTICLE V
Default
5.1 Events of Default. An Event of Default under the terms of the Credit Agreement
shall constitute an "Event of Default" under this Mortgage.
5.2 Acceleration Upon Default. If an Event of Default (other than pursuant to
paragraph (e) of Section 7.01 of the Credit Agreement) shall have occurred and be continuing,
the Mortgagee may, or shall at the request of the Required Lenders, declare the entire unpaid
principal of, and the interest accrued on, and all other amounts owed in connection with, the
Obligations to be forthwith due and payable, whereupon the same shall become immediately due
and payable without any protest, presentment, demand, notice of intent to accelerate, notice of
acceleration or further notice of any kind, all of which are hereby expressly waived by the
Mortgagor. If an Event of Default pursuant to Section 7.0I(e) of the Credit Agreement shall
have occurred and be continuing, the entire unpaid principal of and interest accrued on, and all
other amounts owed in connection with, the Obligations, shall immediately and automatically
become and be due and payable in full, without presentment, demand, protest or any notice of
any kind (including, without limitation, any notice of intent to accelerate or notice of
acceleration) all of which are hereby expressly waived by the Mortgagor, If an Event of Default
shall have occurred and be continuing, whether or not the Mortgagee or the Required Lenders
elect to accelerate as herein provided, the Mortgagee may simultaneously, . or thereafter, without
any further notice to the Mortgagor, exercise any other right or remedy provided in this
Mortgage or otherwise existing under the Credit Agreement or any other Loan Document or any
other agreement, document, or instrument evidencing obligations owing from the Mortgagor to
any of the Credit Parties.
HOUST0N\2149042
18
(
ARTICLE VI
The Mort2a2ee's Ri2hts
0005~~
6.1 Ri2hts to Realty Còllateral Upon Default.
(a) Operation of Property by the Mortgagee, If an Event of Default shall have
occurred and be continuing, and in addition to all other rights of the Mortgagee, the Mortgagee
shall have the following rights and powers (but no obligation):
(i) To enter upon and take possession of any of the Realty Collateral
and exclude the Mortgagor therefrom;
(ii) To hold, use, administer, manage and operate the Realty Collateral
to the extent that the Mortgagor could do so, and without any liability to the
Mortgagor in connection with such operations; and
(iii) To the extent that the Mortgagor could do so, to collect, receive
and receipt for all Hydrocarbons produced and sold from the Realty Collateral, to
make repairs, to purchase machinery and equipment, to conduct workover
operations, to drill additional wells, and to exercise every power, right and
privilege of the Mortgagor with respect to the Realty Collateral.
The Mortgagee may designate any Person to act on its behalf in exercising the foregoing rights
and powers. When and if the exp~ns~s of such operation and development (including costs of
unsuccessful workover operations or additional wells) have been paid and Security Termination
has occurred, the Realty Collateral shall be returned to the Mortgagor (providing there has been
no foreclosure sale).
(b) Judicial Proceedings. If an Event of Default shall have occurred and be
continuing, the Mortgagee, in lieu of or in addition to exercising the power of sale provided
herein, may proceed by a suit or suits, in equity or at law (i) for the specific performance of any
covenant or agreement herein contained or in aid of the execution of any power herein granted,
(ii) for the appointment of a receiver whether there is then pending any foreclosure hereunder or
the sale of the Realty Collateral, or (iii) for the enforcement of any other appropriate legal or
equitable remedy; and further, in lieu of the non-judicial power of sale hereafter given for
Collateral located in the State of Wyoming, the Mortgagee may proceed for foreclosure or sale
of the Collateral by judicial action.
(c) Foreclosure by Private Power of Sale of Collateral, If an Event of Default shall
have occurred and be continuing, the Mortgagee shall have the right and power to sell, as the
Mortgagee may elect, all or a portion of the Collateral at one or more sales as an entirety or in
parcels, in accordance with the applicable laws of the State of Wyoming, as amended from time
to time (or any successor provisions of Wyoming governing real property foreclosure sales) or
with any applicable state law of thb state whére any of the Collateral is located. The Mortgagor
hereby designates as the Mortgagor's address for the purpose of notice the address set out in
Section 7.12; provided that the Mortgagor may by written notice to the Mortgagee designate a
HODST0N\2149042
19
-û005~5
different address for notice purposes. Any purchaser or purchasers may be provided with a
special warranty, subject to Permitted Liens, which conveyance shall be binding on the
Mortgagor and the Mortgagor's successors and assigns. The Mortgagor hereby consents and
agrees that, at the election of the Mortgagee, any disposition of all or part of the Realty
. Collateral may be made without warranty of any kind whether expressed or implied. Sale of a
part of the Realty Collateral will not exhaust the power of sale, and sales may be made from time
to time until all of the Realty Collateral is sold or all of the Obligations are paid in full. The
Mortgagee may elect to foreclose this Mortgage by advertisement and sale, this grant being a
power of sale, as provided by Wyoming Statutes, including, Wyo. Stat. Ann., § § 34-4-101 et
seq., as amended from time to time. Any sale of Collateral conducted pursuant to this Mortgage
shall take place at such place or places and otherwise in such manner and upon such notices as
may be required by law; or, in the absence of such requirement, as the Mortgagee may deem
appropriate.
, .
(d) . Certain Aspects of Sale. The Mortgagee will have the right to become the
purchaser at any foreclosure sale and to credit the then outstanding balance of the Obligations
against the amount payable by the Mortgagee as purchaser at such sale. Statements of fact or
other recitals contained in any conveyance to any purchaser or purchasers at any sale made
hereunder will conclusively establish the occurrence of an Event of Default, any acceleration of
the maturity of the Obligations, the advertisement and conduct of such sale in the manner
provided herein, and the truth and accuracy of all other matters stated therein. The Mortgagor
does hereby ratify and confirm all legal acts that the Mortgagee may do in carrying out the
Mortgagee's duties and obligations under this Mortgage, and the Mortgagor hereby irrevocably
appoints the Mortgagee to be the attorney-in-fact of the Mortgagor and in the name and on behalf
of the Mortgagor to execute and deliver any deeds, transfers, conveyances, assignments,
assurances and notices which the Mortgagor ought to execute and deliver and do and perform
any and all such acts and things which the Mortgagor ought to do and perform under the
covenants herein contained and generally to use the name of the Mortgagor in the exercise of all
or any of the powers hereby conferred on the Mortgagee, Upon any sale, whether under the
power of sale hereby given or by virtue of judicial proceedings, it shall not be necessary for the
Mortgagee or any public officer acting under execution or by order of court, to have physically
present or constructively in his possession any of the Collateral, and the Mortgagor hereby
agrees to deliver to the purchaser -or purchasers, at,· such sale on the date of sale the Collateral
purchased by such purchasers at such sale and if "it should be impossible or impracticable to
make actual delivery of such Collateral, then the title and right of possession to such Collateral
shall pass to the purchaser or purchasers at such sale as completely as if the same had been
actually present and delivered.
(e) Receipt to Purchaser. Upon any sale made under the power of sale herein
granted, the receipt of the Mortgagee will be sufficient discharge to the purchaser or purchasers
at any sale for its purchase money, and such purchaser or purchasers, will not, after paying such
purchase money and receiving such receipt of the Mortgagee, be obligated to see to the
application of such purchase money or be responsible for any loss, misapplication or non-
application thereof.
(f) Effect of Sale. Any sale or sales of the Realty Collateral will operate to divest all
right, title, interest, claim and demand whatsoever, either at law or in equity, of the Mortgagor in
HOUST0N\2149042
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/
û005~6
and to the Realty Collateral sold, and will be a perpetual bar, both at law and in equity, against
the Mortgagor, the Mortgagor's sU9ce~sors or, assigns, and against any and all Persons claiming
or who shall thereafter claim all or any of the Realty Collateral sold by, through or under the
Mortgagor, or the Mortgagor's successors or assigns. Nevertheless, if requested by the
Mortgagee so to do, the Mortgagor shall join in the execution and delivery of all proper
conveyances, assignments and transfers of the Property so sold. The purchaser or purchasers at
the foreclosure sale will receive as incident to his, her, its or their own ownership, immediate
possession of the Realty Collateral purchased and the Mortgagor agrees that if the Mortgagor
retains possession of the Realty Collateral or any part thereof subsequent to such sale, the
Mortgagor will be considered a tenant at sufferance of the purchaser or purchasers and will be
subject to eviction and removal by any lawful means, with or without judicial intervention, and
all damages by reason thereof are hereby expressly waived by the Mortgagor.
(g) Application of Proceeds. The proceeds of any sale of the Realty Collateral or any
part thereof, whether under the power of sale herein granted and conferred or by virtue of
judicial proceedings, shall be applied as required by applicable law, or in the absence of such
requirement, at the option of the Mortgagee, either applied at the time of receipt or held by the
Mortgagee in the Cash Collateral Account as additional Collateral, but in either case, applied as
required by applicable law, or in the absence of such requirement, applied in the order set forth
in Section 7.06 of the Credit Agreement.
(h) The Mortgagor's Wazver of App~aisement and Marshalling. 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 Mortgage, the absolute sale of the Collateral,
including the Realty Collateral, or the possession thereof by any purchaser at any sale made
pursuant to this Mortgage or pursuant to the decree of any court of competent jurisdiction; and
the Mortgagor, for the Mortgagor and all who may claim through or under the Mortgagor, hereby
waives the benefit of all such laws· and, to the extent that the Mortgagor may lawfully do so
under any applicable law, any and all rights to have the Collateral, including the Realty
Collateral, marshaled upon any foreclosure of the Lien hereof or sold in inverse order of
alienation. To the extent permitted under applicable law, the Mortgagor agrees that the
Collateral, including the Realty Collateral, may be sold in part, in parcels or as an entirety as
directed by the Mortgagee.
6.2 Riehts to Personalty Collateral Upon Default. If an Event of Default shall have
occurred and be continuing, the Mortgagee may proceed against the Personalty Collateral in
accordance with the rights and remedies granted herein with respect to the Realty Collateral, and
in addition, will have all rights and remedies granted by the Uniform Commercial Code as in
effect in Wyoming and this Mortga~e. The Mortg~gee shall have the right to take possession of
the Personalty Collateral, and for this· purpose the Mortgagee may enter upon any premises on
which any or all of the Personalty Collateral is situated and, to the extent that the Mortgagor
could do so, take possession of and operate the Personalty Collateral or remove it therefrom.
The Mortgagee may require the Mortgagor to assemble the Personalty Collateral and make it
available to the Mortgagee at a place to be designated by the Mortgagee which is reasonably
convenient to both parties. Unless the Personalty Collateral is perishable or threatens to decline
HOUSTON\2 I 49042
. ,
21
00051.7
speedily in value or is of a type customarily sold on a recognized market, the Mortgagee will
send 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 the Personalty Collateral is to be made. This
requirement of sending reasonable notice will be met if such notice is mailed, postage prepaid, to
the Mortgagor at the address designated in Section 7.12 hereof (or such other address as has been
designated as provided herein) at least ten days before the time of the sale or disposition. In
addition to the expenses of retaking, holding, preparing for sale, selling and the like, the
Mortgagee will be entitled to recover attorney's fees and legal expenses as provided for in this
Mortgage and in the writings evidencing the Obligations before applying the balance of the
proceeds from the sale or other, disposition toward satisfaction of the Obligations. The
Mortgagor will remain liable for any deficiency remaining after the sale or other disposition.
The Mortgagor hereby consents and agrees that any disposition of all or a part of the Collateral
may be made without warranty of any kind whether expressed or implied;
6.3 Ri2hts to Fixture Collateral Upon Default. If an Event of Default shall have
occurred and be continuing, the Mortgagee may elect to treat the Fixture Collateral as either
Realty Collateral or as Personalty Collateral (but not both) and proceed to exercise such rights as
apply to the type of Collateral selected.
6.4 Account Debtors. The Mortgagee may, in its discretion, if an Event of Default
shall have occurred and be continuing, (a) notify any account debtor on any accounts constituting
Collateral to make payments directly to the Mortgagee, (b) instruct any party described in
Section 3.I(b) to deliver all Hydrocarbons assigned to the Mortgagee as described in Section
3.1(a) and all proceeds therefrom directly to the Mortgagee, and (c) contact such account debtors
and other parties directly to verify information furnished by the Mortgagor with respect to such
account debtors and such accounts. The Mortgagee shall not have any obligation to preserve any
rights against prior parties,
6,5 Costs and Expenses. All sums· advanced or costs or expenses incurred by the
Mortgagee (either by it directly or 'on its behalf by any receiver appointed hereunder) in
protecting and enforcing its rights hereunder shall constitute a demand obligation owing by the
Mortgagor to the Mortgagee as part of the Obligations. The Mortgagor hereby agrees to repay
such sums on demand plus interest thereon from the date of the advance or incurrence until
reimbursement of the Mortgagee at the Reimbursement Rate.
6.6 Set-Off. If an Event of Default shall have occurred and be continuing, any Credit
Party shall have the right to set-off any funds of the Mortgagor in the possession of such Credit
Party against any amounts then due by the Mortgagor pursuant to this Mortgage,
6.7 Federal and Tribal Transfers. Upon a sale conducted pursuant to this Article
VI of all or any portion of the Realty Collateral consisting of interests (the "Federal and Tribal
Interests") in leases, easements, rights-of-way, agreements or other documents and instruments
covering, affecting or otherwise relating to federal or tribal lands (including, without limitation,
leases, easements and rights-of-way issued by the Bureau of Land Management; leases,
easements and rights-of-way issued by the Bureau of Indian Affairs; and leases, easements,
rights-of-way and minerals agreements with tribal governments or agencies or allottees), the
Mortgagor agrees to take all action and execute all instruments necessary or advisable to transfer
HOUST0N\2149042
22
ê0051.8
the Federal and Tribal Interests to the purchaser at such sale, including without limitation, to
execute, acknowledge and deliver assignments of the Federal and Tribal Interests on officially
approved ·forms in sufficient counterparts to satisfy applicable statutory and regulatory
requirements, to seek and request approval thereof and to take all other action necessary or
advisable in connection therewith. The Mortgagor hereby irrevocably appoints the
Mortgagee as the Mortgagor's attorney-in-fact and proxy, with full power and authority in
the place and steed of the Mortgagor, in the name of the Mortgagor or otherwise, to take any
such action and to execute any such instruments on behalf of the Mortgagor that the Mortgagee
may deem necessary or advisable to so transfer the Federal and Tribal Interests, including
without limitation, the power and authority to execute, acknowledge and deliver such
assignments, to seek and request approval thereof and to take all other action deemed necessary
or advisable by Morgagee in connection therewith; and the Mortgagor hereby adopts, ratifies and
confirms all such actions and instruments. Such power of attorney and proxy is coupled with
an interest, shall survive the dissolution, termination, reorganization or other incapacity of
the Mortgagor and shall be irrevocable. No such action by the Mortgagee shall constitute
acknowledgment of, or assumption of liabilities relating to, the Federal and Tribal Interests, and
neither the Mortgagor nor any other party may claim that the Mortgagee is bound, directly or
indirectly, by any such action.
6.8 Limitations on Ri2hts and Waivers. All rights, powers and remedies herein
conferred shall be exercisable by the Mortgagee only to the extent not prohibited by applicable
law; and all waivers and relinquishments of rights and similar matters shall be effective only to
the extent such waivers or relinquishments are not prohibited by applicable law.
ARTICLE VII
Miscellaneous
7.1 Advances bv the Mort2a2ee. Each and every covenant of the Mortgagor herein
contained shall be performed and kept by the Mortgagor solely at the Mortgagor's expense. If
the Mortgagor fails to perform or keep any of the covenants of whatsoever kind or nature
contained in this Mortgage, the Mortgagee (either by it directly or on its behalf by any receiver
appointed hereunder) may, but will not be obligated to, make advances to perform the same on
the Mortgagor's behalf, and the Mortgagor hereby agrees to repay such sums and any attorneys'
fees incurred in connection therewith on demand plus interest thereon from the date of the
advance until reimbursement of the Mortgagee at the Reimbursement Rate. In addition, the
Mortgagor hereby agrees to repay on demand any costs, expenses and attorney's fees incurred by
the Mortgagee which are to be obligations of the Mortgagor pursuant to, or allowed by, the terms
of this Mortgage, including such costs, expenses and attorney's fees incurred pursuant to Section
3.1(h), Section 6.5 or Section 7.2 hereof, plus interest thereon from the date of such demand by
the Mortgagee until reimbursement of the Mortgagee at the Reimbursement Rate. Such amounts
will be in addition to any sum of money which may, pursuant to the terms and conditions of the
written instruments comprising part of the Obligations, be due and owing. No such advance will
be deemed to relieve the Mortgagor from any default hereunder.
7.2 Defense of Claims. The Mortgagor shall promptly notify the Mortgagee in
writing of the commencement of any legal proceedings affecting the Mortgagor's title to the
HOUST0N\2149042
23
00'051.9
Collateral or the Mortgagee's Lien or security interest in the Collateral, or any part thereof, and
shall take such action, employing attorneys agreeable to the Mortgagee, as may be necessary to
preserve the Mortgagor's and the Mortgagee's rights affected thereby. If the Mortgagor fails or
refuses to adequately or vigorously, in the sole judgment of the Mortgagee, defend the
Mortgagor's or the Mortgagee's rights to the Collateral, the Mortgagee may take such action on
behalf of and in the name of the Mortgagor and at the Mortgagor's expense. Moreover, the
Mortgagee may take such independent action in connection therewith as it may in its discretion
deem proper, including the right to,' employ independent counsel and to intervene in any suit
affecting the Collateral. All costs; expenses and attorneys' fees incurred by the Mortgagee
pursuant to this Section 7.2 or in connection with the defense by the Mortgagee of any claims,
demands or litigation relating to the Mortgagor, the Collateral or the transactions contemplated in
this Mortgage shall be paid by the Mortgagor on demand plus interest thereon :£rom the date of
the advance by the Mortgagee until reimbursement of the Mortgagee at the Reimbursement Rate.
7.3 Termination. If Security Termination has occurred and the covenants herein
contained are well and fully performed, then all of the Collateral will revert to the Mortgagor to
the extent not otherwise transferred or sold as permitted under Legal Requirements or under this
Mortgage and the entire estate, right, title and interest of the Mortgagee will thereupon cease;
and the Mortgagee in such case shall, upon the request of the Mortgagor and the payment by the
Mortgagor of all attorneys' fees and other expenses, deliver to the Mortgagor proper instruments
acknowledging satisfaction of this Mortgage and the termination of the liens and security
interests created hereby.
7.4 Renewals. Amendments and Other Security, Without notice or consent of the
Mortgagor, renewals and extensions of the written instruments constituting part or all of the
Obligations may be given at any time and amendments may be made to agreements relating to
any part of such written instruments or the Collateral. The Mortgagee may take or hold other
security for the Obligations witho1Ìt rtotice to or'·cpnsent of the Mortgagor. The acceptance of
this Mortgage by the Mortgagee shall·not waive or impair any other security the Mortgagee may
have or hereafter acquire to secure the payment of the Obligations nor shall the taking of any
such additional security waive or impair the Lien and security interests herein granted. The
Mortgagee 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 will not be a waiver of any rights
conferred by this Mortgage, This Mortgage may not be amended, waived or modified except in
a written instrument executed by both the Mortgagor and the Mortgagee.
7.5 Security At!reement. Financint! Statement and Fixture Filint!. This Mortgage
will be deemed to be and may be enforced :£rom time to time as an assignment, chattel mortgage,
contract, deed of trust, financing statement, real estate mortgage, or security agreement, and from
time to time as anyone or more thereof if appropriate under applicable state law. AS A
FINANCING STATEMENT, THIS MORTGAGE IS INTENDED TO COVER ALL
PERSONAL TY COLLATERAL INCLUDING MORTGAGOR'S INTEREST IN ALL
HYDROCARBONS AS AND AFTER THEY ARE EXTRACTED AND ALL ACCOUNTS
ARISING FROM THE SALE THEREOF AT THE WELLHEAD. THIS MORTGAGE
SHALL BE EFFECTIVE AS A FINANCING STATEMENT FILED AS A FIXTURE
FILING WITH RESPECT TO ,FIXTURE COLLATERAL INCLUDED WITHIN THE
HOUST0N\2149042
24
/
! .'
000520
COLLATERAL. This Mortgage shall be Iled in the real estate records or other appropriate
records of the county or counties in the stfte in which any part of the Realty Collateral and
Fixture Collateral is located as well as the Urform Commercial Code records of the Secretary of
State or other appropriate office of the sfate in which the Mortgagor is located. At the
Mortgagee's request, the Mortgagor shall drliver financing statements covering the Personalty
Collateral, including all Hydrocarbons sol~ at the wellhead, and Fixture Collateral, which
financing statements may be filed in the Uniform Commercial Code records or other appropriate
office of the county or state in which any ~f the Collateral is located or in any other location
permitted or required to perfect the Mortgagre's security interest under the Uniform Commercial
Code. In addition, the Mortgagor hereby irrevocably authorizes the Mortgagee and any affiliate,
employee or agent thereof, at any time and ~om time to time, to file in any Uniform Commercial
Code jurisdiction any financing statement or document and amendments thereto, without the
signature of the Mortgagor where permitted by law, in order to perfect or maintain the perfection
of any security interest granted under this Mortgage. A photographic or other reproduction of
this Mortgage shall be sufficient as a financing statement.
7.6 Unenforceable or Inapplicable Provisions. If any term, covenant, condition or
provision hereof is invalid, illegalòr unenforceable in any respect, the other provisions hereof
will remain in full force and effect and will be liberally construed in favor of the Mortgagee in
order to carry out the provisions hereof.
7.7 Rie:hts Cumulative. Each and every right, power and remedy herein given to the
Mortgagee will 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
as often and in such order as may be deemed expedient by the Mortgagee, as the case may be,
and the exercise, or the beginning of the exercise,.öfany such right, power or remedy will 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 Mortgagee in the exercise of any right, power or remedy
will 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.
7.8 Waiver bv the Morte:ae:ee. Any and all covenants in this Mortgage may from
time to time by instrument in writing by the Mortgagee (acting upon the direction of the
Required Lenders) be waived to such extent and in such manner as the Mortgagee may desire,
but no such waiver will ever affect or impair the Mortgagee's rights hereunder, except to the
extent specifically stated in such written instrument.
7.9 Terms. The term "Mortgagor" ·as'used in this Mortgage will be construed as
singular or plural to correspond with the number of Persons executing this Mortgage as the
Mortgagor. If more than one Person executes this Mortgage as the Mortgagor, his, her, its, or
their duties and liabilities under this Mortgage will be joint and several. The terms "the
Mortgagee" and "Mortgagor" as used in this Mortgage include the heirs, executors or
administrators, successors, representatives, receiver, trustees and assigns of those parties. Unless
the context otherwise requires, terms used in this Mortgage that are defined in the Uniform
Commercial Code of Wyoming are used with the meanings therein defined.
HOUSTON\2149042
25
C0052j.
7.10 Counterparts. This Mortgage may be executed in any number of counterparts,
each of which will for all purposes be deemed to be an original, and all of which are identical
except that, to facilitate recordation, in any particular counties counterpart portions of Exhibit A
hereto which describe Properties situated in counties other than the counties in which such
counterpart is to be recorded may have been omitted.
7.11 Governine: Law. 'fInis' Mortgage shall be governed by and construed III
accordance with the laws of the State of Wyoming.
7,12 Notice. All notices required or permitted to be given by the Mortgagor or the
Mortgagee shall be made in the manner set forth in the Credit Agreement and shall be addressed
as follows:
the Mortgagor:
Abraxas Operating, LLC
500 N. Loop 1604 East, Suite 100
San Antonio, Texas 78232
Attention: Chris E. Williford/ Barbara M. Stuckey
Facsimile: 210-490-8816
the Mortgagee:
Société Générale
1111 Bagby Street, Suite 2020
Houston, Texas 77002
Attention: Cameron Null
Facsimile: 713-650-0824
7.13 Condemnation. All;.~wards aild payments heretofore and hereafter made for the
taking of or injury to the Collateral or any portion thereof whether such taking or injury be done
under the power of eminent domain or otherwise, are hereby assigned, and shall be paid to the
Mortgagee. The Mortgagee is hereby authorized to collect and receive the proceeds of such
awards and payments and to give proper receipts and acquittances therefor. The Mortgagor
hereby agrees to make, execute and deliver, upon request, any and all assignments and other
instruments sufficient for the purpose of confirming this assignment of the awards and payments
to the Mortgagee rree and clear of any encumbrances of any kind or nature whatsoever. Any
such award or payment may, at the option o(thè Mortgagee, be retained and applied by the
Mortgagee after payment of attorneys' fees, costs and expenses incurred in connection with the
collection of such award or payment toward payment of all or a portion of the Obligations,
whether or not the Obligations are then due and payable, or be paid over wholly or in part to the
Mortgagor for the purpose of altering, restoring or rebuilding any part of the Collateral which
may have been altered, damaged or destroyed as a result of any such taking, or other injury to the
Collateral.
7.14 Successors and Assie:ns,
(a) This Mortgage is binding upon the Mortgagor, the Mortgagor's successors and
assigns, and shall inure to the benefit of each Credit Party (other than Swap Counterparties) and
each of its successors and assigns¡årld to the beonefit Qf the Swap Counterparties, and each of
their respective successors and assigns if such Swap Counterparty or an Affiliate of such Swap
HOUST0N\2149042
26
/
000522
Counterparty is a Lender, and the provisions hereof shall likewise be covenants running with the
land.
(b) Subject to clause (d) below, this Mortgage shall be transferable and negotiable,
with the same force and effect and to the same extent as the Obligations may be transferable, it
being understood that, upon the legal transfer or assignment by the Credit Parties (or any of
them) of any of the Obligations, the legal holder of such Obligations shall have all of the rights
granted to the Mortgagee for the benefit of the Credit Parties under this Mortgage.
TheMortgagor specifically agrees that, to the extent pennitted by applicable law, upon any
transfer of all or any portion of the Obligations, this Mortgage shall secure with retroactive rank
the existing Obligations of the Mortgagor to the transferee and any and all Obligations to such
transferee thereafter arising.
(c) TheMortgagor hereby recognizes and agrees that the Credit Parties (or any of
them) may, from time to time, one or more times, transfer all or any portion of the Obligations to
one or more third parties. Such transfers may include, but are not limited to, sales of
participation interests in such Obligations in favor of one or more third parties. Upon any
transfer of all or any portion of the Obligations and subject to clause (d) below, the Mortgagee
may transfer and deliver any and/or all of the Collateral to the transferee of such Obligations and
such Collateral shall secure any and all of the Obligations in favor of such a transferee then
existing and thereafter arising, and after any such transfer has taken place, the Mortgagee shall
be fully discharged from any and all future liability and responsibility to the Mortgagor with
respect to such Collateral, and transferee thereafter shall be vested with all the powers, rights and
duties with respect to such Collateral.
(d) Notwithstanding anything to the contrary contained herein, including the
provisions of clauses (b) and (c) above, when any Swap Counterparty assigns or otherwise
transfers any interest held by it under any Hedge Contract to any other Person pursuant to the
terms of such agreement, that other Person shall thereupon become vested with all the benefits
held by such Credit Party under this Mortgage only if such Person is also then a Lender or an
Affiliate of a Lender.
7.15 Article and Section Beadin2:s. The article and section headings in this Mortgage
are inserted for convenience of refefen~e"and shalt'not be considered a part of this Mortgage or
used in its interpretation.
7.16 USUry Not Intended. It is the intent of the Mortgagor and the Mortgagee in the
execution and perfonnance of this Mortgage, the Credit Agreement and the other Loan
Documents to contract in strict compliance with applicable usury laws governing the Obligations
including such applicable usury laws of the State of New York, the State of Wyoming, if any,
and the United States of America as are from time~to-time in effect. In furtherance thereof, the
Mortgagee and the Mortgagor stipulate and agree that none of the tenns and provisions contained
in this Mortgage, the Credit Agreement or the other Loan Documents shall ever be construed to
create a contract to pay, as consideration for the use, forbearance or detention of money, interest
at a rate in excess of the maximum non-usurious rate pennitted by applicable law and that for
purposes hereof "interest" shall include the aggregate of all charges which constitute interest
under such laws that are contracted for, charged or received under this Mortgage, the Credit
HOUST0N\2149042
27
000523
Agreement and the other Loan Documents; and in the event that, notwithstanding the foregoing,
under any circumstances the aggregate amounts taken, reserved, charged, received or paid on the
Obligations, include amounts which, by applicable law are deemed interest which would exceed
the maximum non-usurious rate perthitted by applicable law, then such excess shall be deemed
to be a mistake and the Mortgagee shall credit the same on the principal of the Obligations (or if
the Obligations shall have been paid in full, refund said excess to the Mortgagor). In the event
that the maturity of the Obligations is accelerated by reason of any election of the Mortgagee
resulting rrom an Event of Default, or in the event of any required or permitted prepayment, then
such consideration that constitutes interest may never include more than the maximum non-
usurious rate permitted by applicable law and excess interest, if any, provided for in this
Mortgage, the Credit Agreement or other Loan Documents shall be canceled automatically as of
the date of such acceleration and prepayment ánd, if theretofore paid, shall be credited on the
Obligations or, if the Obligations shall have been paid in full, refunded to the Mortgagor. In
determining whether or not the interest paid or payable under any specific contingencies exceeds
the maximum non-usurious rate permitted by applicable law, the Mortgagor and the Mortgagee
shall to the maximum extent permitted under applicable law amortize, prorate, allocate and
spread in equal part during the period of the full stated term of the Obligations, all amounts
considered to be interest under applicable law of any kind contracted for, charged, received or
reserved in connection with the Obligation.
7.17 Credit Ae:reement. To the fullest extent possible, the terms and provisions of the
Credit Agreement shall be read together with the terms and provisions of this Mortgage so that
the terms and provisions of this Mqrtgage dò not conflict with the terms and provisions of the
Credit Agreement; provided, however, notwithstanding the foregoing, in the event that any of the
terms or provisions of this Mortgage conflict with any terms or provisions of the Credit
Agreement, the terms or provisions of the Credit Agreement shall govern and control for all
purposes; provided that the inclusion in this Mortgage of terms and provisions, supplemental
rights or remedies in favor of the Mortgagee not addressed in the Credit Agreement shall not be
deemed to be a conflict with the Credit Agreement and all such additional terms, provisions,
supplemental rights or remedies contained herein sh.a~l be given full force and effect.
7.18 Due Authorization. The Mortgagor hereby represents, warrants and covenants to
the Mortgagee that the obligations of the Mortgagor under this Mortgage are the valid, binding
and legally enforceable obligations of the Mortgagor, that the execution, ensealing and delivery
of this Mortgage by the Mortgagor has been duly and validly authorized in all respects by the
Mortgagor, and that the persons who are executing and delivering this Mortgage on behalf of the
Mortgagor have full power, authority and legal right to so do, and to observe and perform all of
the terms and conditions of this Mortgage on th.e Mortgagor's part to be observed or performed.
7,19 No Offsets. Etc. The Mortgagor hereby represents, warrants and covenants to the
Mortgagee that there are no offsets, counterclaims or defenses at law or in equity against this
Mortgage or the indebtedness secUl:ed hereby,
,.
7.20 BankruDtcv Limitation. Notwithstanding anything contained herein to the
contrary, it is the intention of the Mortgagor, the Mortgagee and the other Credit Parties that the
amount of the Obligations secured by the Mortgagor's interests in any of its Property shall be in,
but not in excess of, the maximum amount permitted by fraudulent conveyance, fraudulent
HOUST0N\2149042
28
1/
000524
transfer and other similar law, rule or regulation of any Governmental Authority applicable to the
Mortgagor. Accordingly, notwithstanding anything to the contrary contained in this Mortgage in
any other agreement or instrument executed in connection with the payment of any of the
Obligations, the amount of the Obligations secured by the Mortgagor's interests in any of its
Property pursuant to this Mortgage shall be limited to an aggregate amount equal to the largest
amount that would not render the Mortgagor's obligations hereunder or the Liens and security
interest granted to the Mortgagee hereunder subject to avoidance under Section 548 of the
United States Bankruptcy Code or any comparable provision of any other applicable law.
7.21 DEFICIENCY JUDGMENT. THE MORTGAGEE HAS THE RIGHT TO
PROCEED TO OBTAIN AND COLLECT DEFICIENCY JUDGMENT, TOGETHER WITH
FORECLOSURE OF THE COLLATERAL TO THE EXTENT AVAILABLE UNDER
APPLICABLE WYOMING LAW.
7.22 Effectiveness. This Mortgage shall become effective upon its execution and
delivery by the Mortgagor.
THIS WRITTEN AGREEMENT AND THE LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[Remainder of this page intentionally left blank.]
: i.
HOUST0N\2149042
29
EXECUTED AND DELIVERED effective as of the date first written above.
C-OOS25
MORTGAGOR:
ABRAXAS OPERATING, LLC
By:
/£a.d/~0- ìl1.Ju~b.L1
v
Barbara M. Stuckey
President and Chief Operating Officer
MORTGAGEE:
socIÉTÉ GÉNÉRALE,
as Administrative Agent for the ratable benefit of
the Credit Parties
By:
Elena Robciuc
Director
HOUST0N\2149042
30
I .
! .
EXECUTED AND DELIVERED effective as of the date first written above,
MORTGAGOR:
000526
ABRAXAS OPERATING, LLC
By:
Barbara M. Stuckey
President and Chief Operating Officer
MORTGAGEE:
SOCIÉTÉ GÉNÉRALE,
as Administrative Agent for the ratable benefit of
the Credit Parties
BY:~
Elena Robciuc
Director
HOUST0N\2149042
30
STATE OF COLORADO
§
§
§
C~00527
COUNTY OF DENVER
This instrument was acknowledged before me by Barbara M. Stuckey, as President and
Chief Operating Officer of Abraxas Operating, LLC, a Texas limited liability company, on
behalf of said limited liability company, on this ~tday of January, 2008.
. J:2-j·';;tJIO
STATE OF TEXAS
§
§
§
COUNTY OF HARRIS
This instrument was acknowledged before me by Elena Robciuc, as Director of Société
Générale, a French bank, on behalf of said bank on this _ day of January, 2008.
WITNESS MY HAND AND OFFICIAL SEAL
; ¡
[SEAL]
Notary Public in and for
the State of Texas
Commission Expires:
HOUST0N\2149042
31
STATE OF COLORADO
§
§
§
Ü00528
COUNTY OF DENVER
This instrument was acknowledged before me by Barbara M. Stuckey, as President and
Chief Operating Officer of Abraxas Operating, LLC, a Texas limited liability company, on
behalf of said limited liability company, on this _ day of January, 2008.
WITNESS MY HAND AND OFFICIAL SEAL
[SEAL]
Notary Public in and for
the State of Colorado
Commission Expires:
STATE OF TEXAS
§
§
§
COUNTY OF HARRIS
This instrument was acknowledged before me by Elena Robciuc, as Director of Société
Générale, a French bank, on behalf of said bank on thi~ day of January, 2008.
WITNESS MY HAND AND OFFICIAL SEAL
I'
[SEAL]
L
Commission Expires:
~,\\\~~I~'t"I' I
':;"~~."'!i.~
["Y ':i
\~;i' '\\~~
íl'/""r.f.,,\'....
JACKI ROOK
Notary Public:. St8te of Texas
My Commission Expires
January 13, 2012
HOUST0N\2149042
31
Exhibit "A"
û00529
The designation "Working Interest" or "Gross Working Interest" or "Gross WI" or "WI" or
"GWI" when used in this Exhibit means an interest owned in an oil, gas, and mineral lease that
determines the cost-bearing percentage of the owner of such interest. The designation "Net
Revenue Interest" or "NRI" or "NRIO" or "NRIG" means that portion of the production.
attributable to the owner of a working interest after deduction for all royalty burdens, overriding
royalty burdens or other burdens on production, except severance, production, and other similar
taxes, and other costs and expenses not customarily paid out of a share of production from a well
or unit. The designation "Overriding Royalty Interest" or "ORRI" means an interest in
production which is free of any obligation for the expense of exploration, development, and
production, bearing only its pro rata share of severance, production, and other similar taxes and,
in instances where the document creating the overriding royalty interest or applicable law so
provides, costs associated with compression, dehydration, other treating or processing, or
transportation of production of oil, gas, or other minerals relating to the marketing of such
production. The designation "Royalty Interest" or "RI" means an interest in production which
results from an ownership in the mineral fee estate or royalty estate in the relevant land and
which is free of any obligation for the expense of exploration, development, and production,
bearing only its pro rata share of severance, production, and other similar taxes and, in instances
where the document creating the royalty interest or applicable law so provides, costs associated
with compression, dehydration, other treating or processing or transportation of production of
oil, gas, or other minerals relating to the marketing of such production, Each amount set forth as
"Working Interest" or "Gross Working Interest" or "Gross WI" or "WI" or "GWI" or "Net
Revenue Interest" or "NRI" or "NRIO" or "NRIG" is the Mortgagor's interest after giving full
effect to, among other things, all Liens permitted by the Credit Agreement and after giving full
effect to the agreements or instruments set forth in this Exhibit A and any other instruments or
agreements affecting Mortgagor's ownership of the Hydrocarbons.
The term "APO," "APOI," "AP02," "AP03," "After Payout," or "ACP" specifies the Working
Interest or Net Revenue Interest, as applicable, after the occurrence of a particular event, such as
(i) the payout of costs with respect to a well, unit or prospect or (ii) the casing-point election to
complete a well has been made during the drilling and completion of a well (a "Payout Event").
The term "BPO," "BPOI," "BP02," "BP03" or "Before Payout" specifies the current Working
Interest or Net Revenue Interest, as applicable with respect to a well or unit before a Payout
Event. "BPONC" and "APONC" specifies the interest of Mortgagor after giving effect to a non-
consent penalty in the governing documents for a well or unit. "NPO" or "NPOGAS" specifies
that there is no Payout Event for the applicable well or unit (or with respect to gas produced from
a well or unit, as applicable), or, if there is a Payout Event, it has been determined that it will not
occur. "BPOPRD" specifies the Working Interest or Net Revenue Interest, as applicable, with
respect to a well or unit giving effect to a production payment burden on Mortgagor's interest.
"APOPRD" specifies the Working Interest or Net Revenue Interest, as applicable, of Mortgagor
after the production payment burden has been satisfied, "PHI.1" "PH2.1" "Phase 1," or "Phase 2"
specifies the Working Interest or Net Revenue Interest of Mortgagor, as applicable, during a
exploration or development phase of a unit or well, as defined in the governing documents for
such unit or well,
/
ú00530
Any reference in this Exhibit A to wells or units is for warranty of interest, administrative
convenience, and identification and shall not limit or restrict the right, title, interest, or Properties
covered by this Deed of Trust/Mortgage, All right, title, and interest of Mortgagor in the
Properties described herein and in Exhibit A are and shall be subject to this instrument,
regardless of the presence of any units or wells not described herein.
Any reference in this Exhibit A under the heading or column titled "LAND DESCRIPTION" to:
(i) "See" means "Section", (ii) "T" means "Township", (iii) "R" means "Range", (iv) "N" means
"North", (v) "S" means "South", (vi) "E" means "East", and (vii) "W" means "West". For
example "T27N RI8W" means "Township 27 North, Range 18 West", and "Sec 17" means
"Section 17". Each reference to a Section immediately below the description of a Township and
Range under the heading or column titled "LAND DESCRIPTION" in this Exhibit A means that
the Section is included in that Township and Range. For example, the following referenèe
means Section 17, Township 27 North, Range 18 West:
T27N R18W
Sec 17
Any reference at the bottom of any page of this Exhibit to a county means that all lands
described under the heading or column titled "LAND DESCRIPTION" on that page are located
in that county.
The reference to book or volume and page herein and in Exhibit A refer to the recording location
of each respective Realty Collateral described herein and in Exhibit A in the county where the
land covered by the Realty Collateral is located,
The references in this Deed of Trust/Mortgage to liens, encumbrances, burdens, defects, and
other matters are for the purpose of defining the nature and extent of Mortgagor's warranty and
shall not be deemed to ratify or create any rights in third parties.
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