HomeMy WebLinkAbout946872
(CO, LA, MT, ND, NM, OK, TX, WY)
RECEIVED 5/4/2009 at 11:41 AM
RECEIVING # 946872
BOOK: 721 PAGE: 859
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
SUPPLEMENT AND AMENDMENT TO DEED OF TRUST, MORTGAGE,
LINE OF CREDIT MORTGAGE, ASSIGNMENT, SECURITY AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT
FROM
(;{hj859
ST. MARY LAND & EXPLORATION COMPANY
TO
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT,
OR, ALTERNATIVELY, TO
JAY CHERNOSKY, TRUSTEE
FOR THE BENEFIT OF
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
Dated Effective as of ApriY 12009
A CARBON, PHOTOGRAPHIC, FACSIMILE, OR OTHER REPRODUCTION OF THIS
INSTRUMENT IS SUFFICIENT AS A FINANCING STATEMENT.
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS,
SECURES PAYMENT OF FUTURE ADVANCES, AND COVERS PROCEEDS OF
COLLATERAL.
THIS INSTRUMENT COVERS, AMONG OTHER THINGS, (A) GOODS WHICH ARE OR
ARE TO BECOME FIXTURES RELATED TO THE REAL PROPERTY DESCRIBED
HEREIN, AND (B) AS-EXTRACTED COLLATERAL RELATED TO THE REAL
PROPERTY DESCRIBED HEREIN (INCLUDING, WITHOUT LIMITATION, OIL, GAS,
OTHER MINERALS AND OTHER SUBSTANCES OF VALUE WHICH MAY BE
EXTRACTED FROM THE EARTH AND ACCOUNTS ARISING OUT OF THE SALE AT
THE WELLHEAD OR MINEHEAD THEREOF). THIS INSTRUMENT IS TO BE FILED
FOR RECORD, AMONG OTHER PLACES, IN THE REAL ESTATE OR COMPARABLE
RECORDS OF THE COUNTIES AND/OR PARISHES REFERENCED IN EXHIBIT A-I
HERETO AND SUCH FILING SHALL SERVE, AMONG OTHER PURPOSES, AS A
FIXTURE FILING AND AS A FINANCING STATEMENT COVERING AS-EXTRACTED
COLLATERAL. THE MORTGAGOR HAS AN INTEREST OF RECORD IN THE REAL
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ESTATE AND/OR IMMOVABLE PROPERTY CONCERNED, WHICH INTEREST IS
DESCRIBED IN SECTION 1.1 OF THIS INSTRUMENT.
A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE
MAY ALLOW AGENT (AS HEREINAFTER DEFINED) OR TRUSTEE (AS HEREINAFTER
DEFINED) TO TAKE THE MORTGAGED PROPERTIES AND SELL THEM WITHOUT
GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE
MORTGAGOR (AS HEREINAFTER DEFINED) UNDER THIS MORTGAGE.
Note to North Dakota Recording Officer: Attached to counterparts hereto to be filed in the
State of North Dakota (as Annex II-A) is an adequate statement of the interest.
EMPLOYER IDENTIFICATION NUMBER OF MORTGAGOR: 41-05 18430
ORGANIZATIONAL IDENTIFICATION NUMBER OF MORTGAGOR: 0044728
WHEN RECORDED OR FILED RETURN TO:
Vinson & Elkins L.L.P.
2500 First City Tower
1001 Fannin Street
Houston, Texas 77002
Attention: Linda Daugherty
Phone Number: (713) 758-4513
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SUPPLEMENT AND AMENDMENT TO DEED OF TRUST, MORTGAGE,
LINE OF CREDIT MORTGAGE, ASSIGNMENT, SECURITY AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT
THIS SUPPLEMENT AND AMENDMENT TO DEED OF TRUST, MORTGAGE,
LINE OF CREDIT MORTGAGE, ASSIGNMENT, SECURITY AGREEMENT, FIXTURE
FILING AND FINANCING STATEMENT (this "Supplement") is entered into as of the
effective time and date hereinafter stated on the signature page hereto (the "Effective Date") by
ST. MARY LAND & EXPLORATION COMPANY), a Delaware corporation (Taxpayer LD.
No. 41-0518430) ("Mortgagor"); to WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent (in such capacity, together with its successors in such capacity, by
operation of law or as otherwise provided in the hereinafter defined Credit Agreement, the
"Agent") for the lenders (collectively, the "Lenders") now or hereafter party to the Credit
Agreement, or, alternatively, to JAY CHERNOSKY, as Trustee with respect to Property located
in the State of Texas, whose address for notice is 1001 Fannin Street, Suite 2255, Houston, Texas
77002 (the "Trustee"), for the benefit of the Agent.
RECITALS
A. Mortgagor, the Agent and the Lenders entered into that certain Credit Agreement
dated as of January 27, 2003, by and among Mortgagor, the Agent and the Lenders (the
"Original Credit Agreement");
B. The indebtedness of the Mortgagor under or in connection with the Original
Credit Agreement is secured by, among other things, that certain Deed of Trust, Mortgage, Line
of Credit Mortgage, Assignment, Security Agreement, Fixture Filing and Financing Statement
dated effective as of April 16, 2003, ITom Mortgagor to Trustee for the benefit of the Agent (as
may be supplemented and amended from time to time, the "Mortgage"); .
C. The Mortgage was duly recorded as set forth on Annex I attached hereto and
made a part hereof for all purposes.
D. Mortgagor, the Agent and the Lenders entered into that certain Amended and
Restated Credit Agreement dated as of April 7, 2005, by and among Mortgagor, the Agent, and
each of the Lenders (the "Amended and Restated Credit Agreement"), which amended and
restated the Original Credit Agreement in its entirety;
E. Mortgagor, the Agent and the Lenders entered into that certain Second Amended
and Restated Credit Agreement dated as of April 10, 2008, by and among Mortgagor, the Agent,
and each of the Lenders (the "Existing Credit Agreement"), which amended and restated the
Amended and Restated Credit Agreement in its entirety.
F. Mortgagor, the Agent and the Lenders desire to enter into that certain Third
Amended and Restated Credit Agreement dated as of even date herewith to amend and restate
the Existing Credit Agreement in its entirety to, among other things, increase the Aggregate
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Commitment (as defined therein) to $700,000,000 and extend the Maturity Date (as defined
therein) to July 31, 2012 (the "Credit Agreement").
G. Mortgagor hereby desires to further supplement and amend the Mortgagt:: by
adding to the Mortgaged Properties described therein and covered thereby all rights, titles,
interests and estates now owned or hereafter acquired by Mortgagor in and to the properties
described on Exhibit A-I àttached hereto and made a part hereof for all purposes.
NOW, THEREFORE, for good and valuable consideration in hand paid by Mortgagor to
Agent and in consideration of the debts and trusts hereinafter mentioned, the receipt and
sufficiency of all of which is hereby acknowledged, Mortgagor and Agent do hereby agree as
follows:
ARTICLE I
Grant and Mortgage
Section 1.1 Mortgagor, for and in consideration of the sum of Ten Dollars
($10.00) to Mortgagor in hand paid, and in order to secure the payment of the secured
indebtedness referred to in the Mortgage, as supplemented and amended hereby, and the
performance of the obligations, covenants, agreements, warranties and undertakings of
Mortgagor described in the Mortgage, as supplemented and amended hereby, does hereby (a)
GRANT, BARGAIN, SELL, CONVEY, TRANSFER, ASSIGN AND SET OVER to Trustee,
and grant to Trustee a POWER OF SALE (pursuant to the Mortgage, as supplemented and
amended hereby, and applicable law) with respect to, those of the following described properties,
rights and interests which are located in (or cover properties located in) the State of Texas or
which are located within (or cover properties located in) the offshore area over which the United
States of America asserts jurisdiction and to which the laws of any such state are applicable with
respect to the Mortgage, as supplemented and amended hereby, and/or the liens or security
interests created hereby (the "Additional Deed of Trust Mortgaged Properties"); and (b)
MORTGAGE, ASSIGN, WARRANT, PLEDGE AND HYPOTHECATE to Agent, and grant to
Agent a POWER OF SALE (pursuant to the Mortgage, as supplemented and amended hereby,
and applicable law) with respect to, all of the following described rights, interests and properties
which were not granted to Trustee in clause (a) above (including, without limitation, those of the
following described properties, rights and interests which are located in (or cover properties
located in) the States of Colorado, Louisiana, Montana, New Mexico, North Dakota, Oklahoma
or Wyoming or which are located within (or cover properties located within) the offshore area
over which the United States of America asserts jurisdiction and to which the laws of any such
state are applicable with respect to the Mortgage, as supplemented and amended hereby, and/or
the liens or security interests created hereby) (the "Additional Other Mortgaged Properties"):
A. The oil, gas and/or other mineral properties, mineral servitudes, and/or
mineral rights which are described in Exhibit A-I attached hereto and made a part hereof;
B. Without limitation of the foregoing, all other right, title and interest of
Mortgagor of whatever kind or character (whether now owned or hereafter acquired by operation
oflaw or otherwise) in and to (i) the oil, gas and/or mineral leases or other agreements described
in Exhibit A-I hereto, (ii) the lands described or referred to in Exhibit A-I (or described in any
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of the instruments described or referred to in Exhibit A-I), without regard to any limitations as to
specific lands or depths that may be set forth in Exhibit A-I hereto or in any of the leases or
other agreements described in Exhibit A-I hereto and (iii) any other lands (including submerged
lands) located anywhere in the United States of America or located offshore the United States of
America but within the offshore area over which the United States of America or any State
thereof asserts jurisdiction;
C. All of Mortgagor's interest (whether now owned or hereafter acquired by
operation of law or otherwise) in and to all presently existing and hereafter created oil, gas
and/or mineral unitization, pooling and/or communitization agreements, declarations and/or
orders, and in and to the properties, rights and interests covered and the units created thereby
(including, without limitation, units fonned under orders, rules, regulations or other official acts
of any federal, state or other authority having jurisdiction), which cover, affect or otherwise
relate to the properties, rights and interests described in clause A or B above;
D. All of Mortgagor's interest in and rights under (whether now owned or
hereafter acquired by operation of law or otherwise) all presently existing and hereafter created
operating agreements, equipment leases, production sales contracts, processing agreements,
transportation agreements, gas balancing agreements, fannout and/or fann-in agreements, salt
water disposal agreements, area of mutual interest agreements, and other contracts and/or
agreements which cover, affect, or otherwise relate to the properties, rights and interests
described in clause A, B or C above or to the operation of such properties, rights and interests or
to the treating, handling, storing, processing, transporting or marketing of oil, gas, other
hydrocarbons, or other minerals produced from (or allocated to) such properties, rights and
interests (including, but not limited to, those contracts listed in Exhibit A-I hereto), as same may
be amended or supplemented from time to time;
E. All of Mortgagor's interest (whether now owned or hereafter acquired by
operation of law or otherwise) in and to all improvements, fixtures, movable or immovable
property and other real and/or personal property (including, without limitation, all wells,
pumping units, wellhead equipment, tanks, pipelines, flow lines, gathering lines, compressors,
dehydration units, separators, meters, buildings, injection facilities, salt water disposal facilities,
and power, telephone and telegraph lines), and all easements, servitudes, rights-of-way, surface
leases, licenses, pennits and other surface rights, which are now or hereafter used, or held for
use, in connection with the properties, rights and interests described in clause A, B or C above,
or in connection with the operation of such properties, rights and interests, or in connection with
the treating, handling, storing, processing, transporting or marketing of oil, gas, other
hydrocarbons, or other minerals produced from (or allocated to) such properties, rights and
interests; and
F. All rights, estates, powers and privileges appurtenant to the foregoing
rights, interests and properties.
TO HAVE AND TO HOLD (a) the Additional Deed of Trust Mortgaged Properties unto
the Trustee, and its successors or substitutes in this 'trust, and to its or their successors and
assigns, in trust, however, upon the tenns, provisions and conditions set forth in the Mortgage, as
amended and supplemented hereby, and (b) the Additional Other Mortgaged Properties unto
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Agent, and Agent's successors and assigns, upon the terms, provisions and conditions herein set
forth (the Additional Deed of Trust Mortgaged Properties and the Additional Other Mortgaged
Properties are herein sometimes collectively called the "Additional Mortgaged Properties").
Section 1.2 Mortgagor hereby confirms that it has heretofore granted, bargained,
sold, conveyed, transferred, assigned, set over, mortgaged, warranted, pledged and hypothecated
to the Agent, and granted a security interest to the Agent in, the "Property" (as such term is
amended hereby), and Mortgagor hereby further grants, bargains, sells, conveys, transfers,
assigns, sets over, mortgages, warrants, pledges and hypothecates to Agent, and grants a security
interest to Agent in, the Property, to secure the payment and performance of the "secured
indebtedness" (as defined in the Mortgage, as supplemented and amended hereby).
Section 1,3 Mortgagor hereby confirms that it has heretofore absolutely and
unconditionally assigned, transferred and set over and does hereby absolutely and
unconditionally assign, transfer and set over to Agent, its successors and assigns, all of the
"Production" (as defined in the Mortgage, as supplemented and amended hereby) which accrues
to Mortgagor's interest in the "Mortgaged Properties" (as such term is amended hereby), and all
"Production Proceeds" (as defined in the Mortgage, as supplemented and amended hereby),
together with the immediate and continuing right to collect and receive all such Production
Proceeds.
ARTICLE II
Amendments
Section 2.1 Amendment to Section 1.3 (Secured Indebtedness). Section 1.3 of the
Mortgage is hereby amended and restated in its entirety to read as follows:
"Section 1.3 Secured Indebtedness. This Mortgage is executed and delivered by the
Mortgagor to secure and enforce the payment and performance of the following:
(a) Payment of and performance of any and all indebtedness, obligations and
liabilities, whether now in existence or hereafter arising, whether by acceleration or otherwise,
including the principal of, interest on (including, without limitation, interest accruing after the
maturity of the "Loans" (as defined in the hereinafter defined Credit Agreement) made by each
Lender and interest accruing after the filing of any petition in bankruptcy, or the commencement
of any insolvency; reorganization or like proceeding, relating to the Mortgagor, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding) of the Mortgagor and
all other amounts, payments and premiums due under or in connection with that certain Third
Amended and Restated Credit Agreement dated as of the Effective Date, by and among
Mortgagor, Agent and the Lenders as the same may :fÌ'om time to time be amended or
supplemented, the "Credit Agreement") or any other "Loan Document" (as defined in the
Credit Agreement), including, without limitation, the "Notes" (as defined in the Credit
Agreement) in the aggregate original principal amount of $678,000,000 with final maturity on or
before July 31, 2012, and further including any additional Loans or any increases to the Loans
which may be made pursuant to the Credit Agreement; provided, the Lenders have no obligation
to make any such additional Loans or increase,
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(b) Payment and performance of any and all indebtedness, obligations and liabilities
of any Guarantor (as defined in the Credit Agreement) whether now existing or hereafter arising
under or in connection with the "Guaranty Agreement" (as defined in the Credit Agreement).
(c) Any sums which may be advanced or paid by the Agent or any Lender under the
terms hereof or of the Credit Agreement or any Loan Document on account of the failure of the
Mortgagor to comply with the covenants of the Mortgagor contained herein or in the Credit
Agreement or any other Loan Document; and all other indebtedness of the Mortgagor arising
pursuant to the provisions of this Mortgage.
(d) Payment of and performance of any and all present or future obligations of the
Mortgagor according to the terms of any present or future interest rate or currency swap, rate
cap, rate floor, rate collar, forward rate agreement or other exchange or rate protection
agreements or any option with respect to any such transaction now existing or hereafter entered
into between the Mortgagor and any Lender or any Affiliate (as defined in the Credit Agreement)
of such Lender.
(e) Payment of and performance of any and all present or future obligations of the
Mortgagor according to the terms of any present or future swap agreements, cap, floor, collar,
forward agreement or other exchange or protection agreements relating to crude oil, natural gas
or other hydrocarbons or any option with respect to any such transaction now existing or
hereafter entered into between the Mortgagor and any Lender or any Affiliate of such Lender.
(f) Perfonnance of all "Letter of Credit Agreements" (as defined in the Credit
Agreement) executed :£Tom time to time by Mortgagor or any Subsidiary of the Mortgagor under
or pursuant to the Credit Agreement and. all reimbursement obligations for drawn or undrawn
portions under any "Letter of Credit" (as defined in the Credit Agreement) now outstanding or
hereafter issued under or pursuant to the Credit Agreement.
(g) All renewals, extensions, amendments, increases and changes of, or substitutions
or replacements for, all or any part of the obligations described under paragraphs (a) through (f)
in this Section 1.3,"
Section 2.2 Amendment to Section 1.5 (Secured Indebtedness), Section 1,5 of the
Mortgage is hereby amended and restated in its entirety to read as follows:
"Section 1.5 MAXIMUM SECURED AMOUNT. NOTWITHSTANDING ANY
PROVISION HEREOF TO THE CONTRARY, THE OUTSTANDING
INDEBTEDNESS SECURED BY PROPERTY LOCAED IN THE STATES OF
LOUISIANA, MONATANA OR NEW MEXICO SHALL NOT, AT ANY TIME OR
FROM TIME TO TIME, EXCEED AN AGGREGATE MAXIMUM AMOUNT OF $1,
500,000,000."
Section 2.3 Amendment to Section 2,1. Section 2,1 of the Mortgage is hereby
amended and restated in its entirety to read as follows:
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"Section 2.1 Mortgagor represents, warrants, and covenants as follows to the extent that
any violation of such representations, warranties or covenants shall not individually or
collectively create a Material Adverse Effect regarding the Property:"
Section 2.4 Amendment to Section 2.1 (a). Section 2.1(a) of the Mortgage is
hereby amended by deleting "(vi)" in the twelfth line of such Section and replacing it with "(iv)".
Section 2,5 Amendment to Section 2.l(c). Section 2.1(c) of the Mortgage is
hereby amended and restated in its entirety to read as follows:
"(c) Sale of Production. No Mortgaged Property is or will become subject to any
contractual or other arrangement (i) whereby payment for production is or can be deferred for a
substantial period after the month in which such production is delivered (i.e., for wells in pay
status, in the case of oil, not in excess of 60 days, and in the case of gas, not in excess of 90 days,
and for wells not in pay status, the time period provided by statute) or (ii) whereby payments are
made to Mortgagor other than by checks, drafts, wire transfer advises or other similar writings,
instruments or communications for the immediate payment of money. Except for production
sales contracts, processing agreements or transportation agreements (or other agreements relating
to the marketing of Production) listed on Exhibit A (in connection with the Mortgaged Properties
to where they relate), and except as otherwise disclosed to the Agent in writing, (i) no Mortgaged
Property is or will become subject to any contractual or other arrangement for the sale,
processing or transportation of Production (or otherwise related to the marketing of Production)
which cannot be cancelled on 120 days' (or less) notice and (ii) all contractual or other
arrangements for the sale, processing or transportation of Production (or otherwise related to the
marketing of Production) shall be bona fide transactions, and except for contractual and other
arrangements with Four Winds Marketing, LLC, will be with third parties not affiliated with
Mortgagor, and shall, with respect to all contracts and other arrangements be at the best price
(and on the best terms) then available (such price shall, in the case of Production sales which are
subject to price controls, be detennined giving consideration to such fact). Mortgagor is
presently receiving a price for all production from (or attributable to) each Mortgaged Property
covered by a production sales contract listed on Exhibit A as computed in accordance with the
tenns of such contract, and is not having deliveries of production from such Mortgaged Property
curtailed substantially below such property's delivery capacity, Neither Mortgagor, nor any of its
predecessors in title, has received prepayments (including, but not limited to, payments for gas
not taken pursuant to "take or pay" or other similar arrangements) for any oil, gas or other
hydrocarbons produced or to be produced from the Mortgaged Properties after the date hereof,
and Mortgagor hereby covenants not to enter into any such advance or prepayment arrangements
whereby it accepts consideration for oil, gas or other hydrocarbons not yet produced. No
Mortgaged Property is or will become subject to any "take or pay" or other similar arrangement
(i) which can be satisfied in whole or in part by the production or transportation of gas from
other properties or (ii) as a result of which production from the Mortgaged Properties may be
required to be delivered to one or more third parties without payment (or without full payment)
therefor as a result of payments made, or other actions taken, with respect to other properties. To
the best of Mortgagor's knowledge, the gas imbalances set forth in Schedule 7.19 of the Credit
Agreement reflects the net gas balancing position of the Mortgaged Properties as of the Effective
Date (as such term is defined in the Credit Agreement), Except as otherwise disclosed to Agent
in writing, as of December 31, 2008, there is no Mortgaged Property with respect to which
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Mortgagor, or its predecessors in title, has, prior to such date, taken more ("overproduced"), or
less ("underproduced"), gas from the lands covered thereby (or pooled or unitized therewith)
than its ownership interest in such Mortgaged Property would entitle it to take which has
resulted, on such date, in Mortgagor being materially overproduced or materially underproduced
with respect to the Mortgaged Property. Mortgagor will not after the date hereof become
"overproduced" (as above defined) with respect to any well on the Mortgaged Properties (or on
any unit in which the Mortgaged Properties participate), in an amount in excess of Mortgagor's
share of gas produced from such well during the preceding four calendar months. No Mortgaged
Property is or will become subject to a gas balancing arrangement under which one or more third
parties may take a portion of the production attributable to such Mortgaged Property without
payment (or without full payment) therefor as a result of production having been taken from, or
as a result of other actions or inactions with respect to, other properties. No Mortgaged Property
is subject at the present time to any regulatory refund obligation and, to the best of Mortgagor's
knowledge, no facts exist which might cause the same to be imposed."
Section 2.6 Amendment to Section 2.1 (e). Section 2.1(e) of the Mortgage is
hereby amended and restated in its entirety to read as follows:
"Operation of Mortgaged Properties. The Mortgaged Properties, and with respect to
Mortgaged Properties not operated by Mortgagor, to the best of Mortgagor's knowledge, such
non-operated Mortgaged Properties, (and properties unitized therewith) are being (and, to the
extent the same could adversely affect the ownership or operation of the Mortgaged Properties
after the date hereof, have in the past been), and hereafter will be, maintained, operated and
developed in a good and workmanlike manner, in accordance with prudent industry standards
and in conformity with all applicable laws and all rules, regulations and orders of all duly
constituted authorities having jurisdiction and in conformity with all oil, gas and/or other mineral
leases and other contracts and agreements forming a part of the Property and in conformity with
the Permitted Encumbrances; specifically in this connection, (i) no Mortgaged Property is
subject to having allowable production after the date hereof reduced below the full and regular
allowable (including the maximum permissible tolerance) because of any overproduction
(whether or not the same was pennissible at the time) prior to the date hereof and (ii) none of the
wells located on the Mortgaged Properties (or properties unitized therewith) are or will be
deviated from the vertical more than the maximum pennitted by applicable laws, regulations,
rules and orders, and such wells are, and will remain, bottomed under and producing from, with
the well bores wholly within, the Mortgaged Properties (or, in the case of wells located on
properties unitized therewith, such unitized properties). There are no wells listed on Schedule I
hereto ("Schedule I Wells") being redrilled, deepened, plugged back or reworked, and no other
operations are being conducted for which consent is required under the applicable operating
agreement (or which are other than normal operation of existing wells on the Mortgaged
Properties); except as otherwise disclosed to Agent in writing, there are no proposals in excess of
$1,500,000 net to Mortgagor's interest currently outstanding (whether made by Mortgagor or by
any other party) to re-drill, deepen, plug back, or rework Schedule I Wells, or to conduct any
other operations under the applicable joint operating agreement, or to abandon any Schedule I
Wells (nor are there any such proposals which have been approved either by Mortgagor or any
other party, with respect to which the operations covered thereby have not been commenced),
Except as otherwise disclosed to Agent in writing, there are no dry holes, or otherwise inactive
wells, located on the Mortgaged Properties or on lands pooled òr unitized therewith (including,
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without limitation, any wells which would, if located in Texas, require compliance with Railroad
Commission Rule 14(b)(2)) that in the aggregate will cost more than $1,500,000, net to
Mortgagor's interest and net of salvage proceeds, to plug and abandon, except for wells that have
been properly plugged and abandoned that have not been taken into account in Mortgagor's
financial statements as furnished to Agent. Mortgagor has, and will have in the future, all
governmental licenses and permits necessary or appropriate to own and operate the Property;
Mortgagor has not received notice of any violations in respect of any such licenses or pennits."
Section 2.7 Amendment to Section 2.Hk). Section 2.1(k) is hereby amended by
adding the following to the end of the third to last sentence of such Section:
"and (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such
indemnitee or (y) result from a claim brought by the Mortgagor or any Guarantor against
an indemnitee for a material breach in bad faith of such indemnitee's obligations under
this Mortgage, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, if the Mortgagor or such Guarantor has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction. "
Section 2.8 Amendment to Section 4,1(Default). Section 4.1 of the Mortgage is
hereby amended and restated in its entirety to read as follows:
"Section 4.1 Default. The tenn "default" as used in this Mortgage shall mean the
occurrence of any of the following events:
(i) the occurrence of an "Event of Default" as defined in the Credit Agreement; or
(ii) the failure of Mortgagor to pay over to Agent any Production Proceeds which are
receivable by Agent under this Mortgage but which are paid to Mortgagor rather than Agent
(either as provided for in Section 3.2 hereof or otherwise), except Production Proceeds paid over
to Mortgagor by Agent under clause THIRD of Section 3.4; or
(iii) the breach or failure of Mortgagor timely and properly to observe, keep or
perfonn any covenant, agreement, warranty or condition herein required to be observed, kept or
perfonned, if such breach or failure is not remedied within the applicable grace period provided
for herein or, if no grace period is provided then within 30 days after the earlier of (i) Mortgagor
becoming aware of such breach or failure or (ii) written notice and demand by Agent for the
perfonnance of such covenant, agreement, warranty or condition; provided, however, if in the
reasonable judgment of the Agent, the Mortgagor is diligently pursuing a cure for any such
breach or failure and such a cure is practicable within a reasonable time, Agent may grant
additional time beyond said 30 days to remedy such breach or failure; or
(iv) any representation contained herein (or in any certificate delivered by Mortgagor
in connection herewith), or otherwise heretofore or hereafter made by or on behalf of Mortgagor
as Mortgagor, shall prove to have been false or misleading in any material respect on the date
made (or on the date as of which made) and the result of such misrepresentation shall be material
with respect either to the Mortgagor or the interests of the Agent or the Lenders."
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Section 2.9 Amendment to Section 4.2 (Acceleration of Indebtedness). Section
4.2 of the Mortgage is amended by deleting "subsection (g), (h), (i) or (j) of' from the second
line of such Section.
ARTICLE III
Definitions: References
Section 3.1 All capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Mortgage, as supplemented and amended hereby.
Section 3.2 All references in the Mortgage to "this Mortgage" shall mean the
Mortgage as supplemented and amended hereby and as the same may from time to time be
further amended or supplemented.
Section 3.3 All references in the Mortgage to "Mortgagor" shall mean the
Mortgagor as defined in the Preamble hereto.
Section 3.4 All references in the Mortgage to "Credit Agreement" shall mean the
Credit Agreement as defined and described in this Supplement as if reference thereto were fully
made in the Mortgage at the time the Mortgage was executed and recorded.
Section 3.5 All references in the Mortgage to "Mortgaged Properties" are hereby
supplemented and amended to include the Additional Mortgaged Properties as defined and
described in this Supplement as if reference thereto were fully made in the Mortgage at the time
the Mortgage was executed and recorded,
Section 3.6 All references in the Mortgage to "Property" are hereby supplemented
and amended to include the Additional Mortgaged Properties as defined and described in this
Supplement as if reference thereto were fully made in the Mortgage at the time the Mortgage was
executed and recorded.
Section 3.7 All references in the Mortgage to "Deed of Trust Mortgaged
Properties" are hereby supplemented and amended to include the Additional Deed of Trust
Mortgaged Properties as defined and described in this Supplement as if reference thereto were
fully made in the Mortgage at the time the Mortgage was executed and recorded.
Section 3.8 All references in the Mortgage to "Other Mortgaged Properties" are
hereby supplemented and amended to include the Additional Other Mortgaged Properties as
defined and described in this Supplement as if reference thereto were fully made in the Mortgage
at the time the Mortgage was executed and recorded.
Section 3.9 All references in the Mortgage to "Exhibit A" are hereby amended and
supplemented to include the oil, gas and/or other mineral properties, mineral servitudes, and/or
mineral rights which are described in Exhibit A-I attached hereto and made a part hereof as if
reference thereto were fully made in the Mortgage at the time the Mortgage was executed.
-11-
Houston 3961717
00ú870
Section 3.10 All references in the Mortgage to "Schedule I" are hereby amended
and supplemented to include the Wells described on Exhibit A-I attached to this Supplement as
if reference thereto were fully made in the Mortgage at the time the Mortgage was executed.
Section 3.11 All references in the Mortgage to "Schedule I Wells" are hereby
amended and supplemented to include the Wells described on Exhibit A-I attached to this
Supplement as if reference thereto were fully made in the Mortgage at the time the Mortgage was
executed.
Section 3.12 All references in the Mortgage to "Agent" shall mean Wachovia Bank,
National Association, as Administrative Agent for the Lenders, together with its successors in
such capacity, by operation of law or as otherwise provided in the Credit Agreement.
Section 3.13 All references in the Mortgage to "Lenders" shall mean the Lenders
now or hereafter party to the Credit Agreement.
Section 3.14 All references in the Mortgage to "secured indebtedness" and
"indebtedness secured hereby" shall mean all indebtedness, obligations and liabilities of
Mortgagor referred to in Section 2.1 of this Supplement, which amends in its entirety Section 1.3
of the Mortgage, together with any and all renewals, rearrangements, modifications, increases
and extensions thereof.
Section 3.15 All references in the Mortgage to "Notes" shall mean the promissory
notes issued, executed and delivered by the Mortgagor to the Lenders under the Credit
Agreement, together with any and all renewals, rearrangements, modifications, increases and
extensions thereof.
Section 3.16 All references in the Mortgage to "Loan Documents" shall mean the
Loan Documents (as defined in the Credit Agreement).
ARTICLE IV
Miscellaneous
Section 4.1 The parties hereto hereby acknowledge and agree that except as
specifically amended, changed or modified hereby, the Mortgage shall remain in full force and
effect in accordance with its terms. None of the rights, titles and interests existing and to exist
under the Mortgage are hereby released, diminished or impaired, and Mortgagor hereby
reaffirms all covenants, representations and warranties made in the Mortgage.
Section 4.2 This Supplement may be executed in several counterparts, all of which
are identical, except that, (a) to facilitate recordation, certain counterparts hereof may include
only that portion of Exhibit A-I which contains descriptions of the properties located in (or
otherwise subject to the recording or filing requirements and/or protections of the recording or
filing acts or regulations of) the recording jurisdiction in which the particular counterpart is to be
recorded, and other portions of Exhibit A-I shall be included in such counterparts by reference
only and (b) only those counterparts hereof being retained by Agent and Mortgagor or otherwise
containing counterpart descriptions of Mortgaged Properties located in (or otherwise subject to
the recording or filing requirements and/or protections of the recording or filing acts or
-12-
Houston 3961717
COOSÞ"i':1
regulations of) the States of North Dakota, Oklahoma and Wyoming will have Annex I-A
attached thereto, and Annex I-A is included in all other counterparts by reference only. All of
such counterparts together shall constitute one and the same instrument.
[SIGNATURES BEGIN NEXT PAGE]
-13-
Houston 3961717
û00872
EXECUTED this !1f!Jday of April, 2009, to be effective, however, as of April ¿i009
(the "Effective Date").
ST. MARY LAND & EXPLORA TrON
COMPANY
By:
~~~
Milam Randolph haro
Senior Vice President and General Counsel
The address and tax identification number of Mortgagor is:
1776 Lincoln Street, Suite 1100
Denver, Colorado 80203
(Denver County)
Taxpayer rD. No. 41-05 18430
The address of Agent is:
1525 W. HT Harris Blvd.,
Charlotte, North Carolina 28262
The addresses of Trustees are:
Jay Chemosky
1001 Fannin Street, Suite 2255
Houston, Texas 77002
Signature Page
I to
Supplement and Amendment to Deed of ['rust, Mortgage, Line of Credit Mortgage, Assignment,
Security Agreement, Fixture Filing and Financing Statement
Houston 3961717
STATE OF TEXAS
COUNTY OF HARRIS
§
§
§
000873
BE IT REMEMBERED THAT I, the undersigned authority, a notary public duly
qualified, commissioned, sworn and acting in and for the county and state aforesaid, and being
authorized in such county and state to take acknowledgments, hereby certify that, on this 9th day
of April, 2009, THERE personally appeared before me: Milam Randolph Pharo, Senior Vice
President and General Counsel of St. Mary Land & Exploration Company, a Delaware
corporation, known to me to be such officer, such corporation being a party to the foregoing
instrument.
COLORADO,
LOUISIANA,
MONTANA,
NORTH DAKOTA,
OKLAHOMA,
TEXAS and
WYOMING
The foregoing instrument was acknowledged before me on this day, by
such person, the above designated officer of the corporation specified
following such person's name, on behalf of said corporation.
On this date before me, the undersigned authority, personally came and
appeared such person, to me personally known and known by me to be
the person whose genuine signature is affixed to the foregoing document
as the above designated officer of the corporation specified following
such and person's name, who signed said document before me, and who
acknowledged, in my presence, that he signed the above and foregoing
document as his own free act and deed on behalf of such corporation by
authority of its board of directors and as the free act and deed of such
corporation and for the uses and purposes therein set forth and apparent.
This instrument was acknowledged before me on this day, by such
person, the above designated officer of the corporation specified
following such person's name, on behalf of said corporation,
IN WITNESS WHEREOF, I have hereunto set my hand and official seal in the City of
Houston, Harris County, Texas on the day and year first above written,
.' í -Ûtu{/~
NO RY PUB:8 , in d for the State of Texas
~¡J )i ; l(. Þ /~OH
My commission expires: (printed name)
Acknowledgment Page
to
Supplement and Amendment to Deed of Trust, Mortgage, Line of Credit Mortgage, Assignment,
Security Agreement, Fixture Filing and Financing Statement
Houston 3961717
ANNEX I
(:'Oô874
Deed of Trust, Mortgage, Line of Credit Mortgage, Assignment, Security Agreement, Fixture
Filing and Financing Statement dated effective as of April 16, 2003, from St. Mary Land &
Exploration Company, et al.
Jurisdiction File No. Book/Page Date Filed
Bienville Parish, LA 20031493 371/21 4-23-03
LaSalle Parish, LA 188236 262, 279/292, 452 4-25-03
Carbon County, MT 306896 4-24-03
Glacier County, MT 252494 69/283 4-24-03
Powder River County, MT 128180 69/0546 4-24-03
Stillwater County, MT 312063 4-24-03
Toole County, MT 348946 66/7 41 4-24-03
Ward County, ND 2817213 Pgs 1-54 4;.25-03
Williams County, ND 605875 1-56 4-29-03
Renville County, ND 178019 171/293 4-25-03
Dewey County, OK 001261 1191/94 4-24-03
Stephens County, OK 00055546 2820/272 5-07 -03
Schleicher County, TX 080705 434/682 5-05-03
Galveston County, TX 2003025934 018-38-1280 4-23 -03
Campbell County, WY 815203 1862/418-531 4-25-03
Converse County, WY 892472 1219/800 5-08-03
Crook County, WY 561879 405/536 4-25-03
Fremont County, WY 1242358 6-24-03
Hot Spring County, WY 449338 100/703-757 4-30-03
Johnson County, WY 013622 295/325-379 4-25-03
Lincoln County, WY 889463 518/7 4 7 4-24-03
Natrona County, WY 0715663 11 of 61 5-06-03
Niobrara County, WY 380587 413/0354 4-24-03
Sweetwater County, WY 1385265 0973/1730 5-02-03
Sublette County, WY 296777 100/83 4-25-03
Annex I
Houston 3961717
00&875
Jurisdiction File No. Book/Page Date Filed
Uinta County, WY 113005 795/417-468 4-24-03
Washakie County, WY 499528 93/769-820 4-24-03
Weston County, WY 659277 263/985 4-25-03
I
Annex I
Houston 3961717
ANNEX I-A
ûOû876
Annex I-A
Houston 3961717
',~
ØH" JIT A
ûOôS77
BIG WEST OIL & GAS INC.
LINCOLN COUNT\', WY
LEASE
LEASE LSE EXP GROSS NET RECORDED
NO. LEASE NAME DATE DATE LAND DESCRIPTION ACRES ACRES BOOK PAGE ENTRY
WY626001 USA WYW 135832 4/1/95 3/3 1/05 T24N RI 12W, 6TH PM 240 240
SEC 26: S2NW, SW
WY628001 USA WYW0312801 12/1/64 I 1/30/74 T24N, RI 14W, 6TIf PM 80 80
SEC. 14: N2NE
WY628001 USA WYW 03 1280 I 12/1/64 I 1/30/74 T24N, R] 14W, 6TH PM 120 120
SEe. ]5: N2NE, NENW
WY628001 USA WYW0312801 12/1/64 I 1/30/74 T24N, RI 14W, 6TH PM 80 80
SEC. 14: N2NW
WY628001 USA WYW0312801 1211/64 I 1/30/74 T24N, RI 14W, 6TH PM 80 80
SEe. 14: N2NW,
BELOW 5643'
WY628002 USA WYW 0243909 10/1/63 9/30/73 T24N RI 14W, 6TH PM *RT* 41.39 41.39
SEC I]: TRACT 44D(41.39) fAKA NESEl
WY628002 USA WYW 0243909 10/1/63 9/30/73 T24N RI 14W, 6TH PM *OPR* 41.43 41.43
SEC II: TRACT 44C(41.43) [AKA NWSEl
BELOW THE SE OF 5,643'
WY628003 USA WYW 0243909 A 10/1/63 9/30/73 T24N RI 14W, 6TH PM *RT* 40 40
SEC 2: LOT 15(40.0m
WY628003 USA WYW 0243909 A 10/1/63 9/30/73 T24N RI ]4W, 6TH PM *OPR* 40 40
SEC 2: LOT 15(40.00) [AKA NESVv
BELOW 5,643'
WY628003 USA WYW 0243909 A 10/1/63 9/30/73 T24N RII4W, 6TH PM *RT* 157.94 157.94
SEe 2: LDTS 7(39.19), 8(39.60), 9<39.15), ]04 0.00)
WY628004 USA WYW 0243909 D 10/1/63 9/30/73 T24N R] 14W, 6TIf PM *RT* I 136.16 136.16
SEC 3: SWSW, LOTS 16(38.32), 17(20.50),
20(37.34) fAKA N2SW, SESW
WY628004 USA WYW 0243909 D 10/1163 9/30/73 T24N RI14W, 6TH PM *RT* 160 160
SEC 9: SE
WY628004 USA WYW 0243909 D 10/1/63 9/30/73 T24N R114W, 6TH PM *RT* 560 560
SEe 10: W2NE, W2, SE
WY628004 USA WYW 0243909 D 10/1/63 9/30/73 T24N RI 14W, 6TH PM *RT* 67.11 67.11
SEC I I: SESE, LOT 5(27.11) fAKA NESEl
WY628004 USA WYW 0243909 D 10/1/63 9/30/73 T24N RII4W, 6TIf PM *OPR* 215.84 215.84
SEC ] 1: LOTS 3 AND 4. SWSE, W2SW, SES
W, SWSE, LOTS 3(28.35) AND 4(27.49)
AKA NESW, NWSEl
BELOW 5,643'
WY628005 USA WYW 42389 7/1/74 6/30/79 T24N RI 14W, 6TH PM *RT* 71.69 71.69
SEC 10: SENE, LOT 1(31.69)
WY628005 USA WYW 42389 7/1/74 6/30/79 T24N R114W, 6TIf PM *RT* 17.1 37.1
SEC 3: LOT 19f37.1O\
WY628005 USA WYW 42389 7/1/74 6/30/79 T24N RI14W 6TH PM *OPR * 156.26 156.26
SEC ll: LOTS 1(31.94) AND 2(41.42), T
RACTS 44-A(41.44) AND .¡4:8f41.46)
BELOW 5,643'
WY628006 ARNOLD A LARSON ET UX 9/18/53 9/17/63 T24N R114W, 6TIf PM 195.68 195.68
SEC3: LOTS 14(]7.84\AND 18(17.84)
AKA W2S2SWNE, W2NESE1, A PORTION
OF TRACT 48 f AKA E2SE1, TRACT 49 -ill
E MOST EASTERLY 80 ACRES OF THIS TRACT
AKA W2SEl
WY628006 ARNOLD A LARSON ET u:x 9/18/53 9/17/63 T24N R114W, 6TH PM 40 40
SEC 10: TRACT 45 - THE MOST WESTERLY
1/3 OF TIUS TRACf TAKA NENEl-
WY628007.01 THOMAS F STROOCK ET u:x 8/12/74 8/11/84 T24N R114W, 6TI1 PM 40 5
SEC 2: TRACf 46-A fAKA SWSEl
WY628007.01 THOMAS F STROOCK ET u:x 8/12174 8/ll/84 T24N RI 14W, 6TIf PM 120 15
SEC 11: TRACf 43 - PORTION OF THE W2
OF THIS TRACT f AKA W2NE1, TRACT 45
AKA NENWl
BELOW THE SE OF 5,643'
WY628001.01 mOMAS F STROOCK ET u:x 8/12174 8/ ll/84 T24N R114W, 6TIf PM 89.11 11.1388
SEe :;r 43 OF TIfE E2 OF TIllS TR
ACT [AKA E2NEl
WY628007.02 ARNOLD A LARSON ET UX 9/28/73 9/27/83 T24N RI14W, 6TH PM 40 10
SEC 2: TRACT 46·A [AKA SWSEl
WY628007.02 ARNOLD A LARSON ET UX 9/28/73 9/27/83 T24N RI14W, 6TH PM 120 30
SEC II: TRACT 43 . PORTION OF THE W2
OF THIS TRACT [AKA W2NE], TRACT 45
[AKA NENW]
BELOW THE SE OF 5,643'
WY628007.02 ARNOLD A LARSON ET UX 9/28/73 9/27/83 T24N RI14W, 6TH PM 89.1 I 22.2775
SEC II: TRACT 43 OF THE E2 OF THIS TR
ACT [AKA E2NEl
WY628007.û3 CALVIN E BARNES ET UX 9/28/73 9/27/83 T24N RI14W, 6TH PM 40 10
SEC 2: TRACT 46·A [AKA SWSE]
WY628007.03 CALVIN E BARNES ET UX 9/28/73 9/27/83 T24N R114W, 6TH PM 120 30
SEC II: TRACT 43 - PORTION OF THE W2
OF THlS TRACT f AKA W2NE1, TRACT 45
IiAKA NENWl
BELOW THE SE OF 5,643'
WY628007.03 CALVIN E BARNES ET UX 9/28/73 9/27/83 T24N RI14W, 6TH PM 89.11 22.2775
SEC II: TRACT 43 OF THE E2 OF THlS TR
ACT fAKA E2NE]
WY628007.04 RAINBOW RESOURCES 1!I19/73 11/18/83 T24N RI14W, 6TH PM 40 10
SEC 2: TRACT 46-AfAKA SWSE]
WY628007.04 RAINBOW RESOURCES 11/19/73 I 1/18/83 T24N RI14W, 6TH PM 120 30
SEC II: TRACT 43 - PORTION OF THE W2
OF THIS TRACT fAKA W2NE], TRACT 45
[AKA NENWl
BELOW THE SE OF 5,643'
WY628007.04 RAINBOW RESOURCES 11/19/73 11/18/83 T24N R114W. 6TH PM 89.11 22.2775
SEC II: TRACT 43 OF THE E2 OF THIS TR
ACT TAKA E2NEl
WY628007.05 JOHN P EU,BOGEN ET UX 8/12/74 8/11/84 T24N RI14W, 6TH PM 40 5
SEC 2: TRACT 46-A fAKA SWSE]
WY628007.05 JOHN P EUBOGEN ET UX 8/12fl4 8/11/84 T24N RI14W, 6TH PM 120 15
SEC i I: TRACT 43 - PORTION OF THE W2
OF THIS TRACT f AKA W2NE1. TRACT 45
AKA NENWl
BELOW THE SE OF 5,643'
WY628007.05 JOHN P EUBOGEN ET UX 8/12/74 8111/84 T24N R114W, 6TH PM 89.1 I 11.1388
SEC II: TRACT 43 OF THE E2 OF THIS TR
ACT [AKA E2NEl I
OOô878
EXHIBIT A-I
There are no Additional Mortgaged Properties in Lincoln County, Wyoming"
Exhibit A-I
Houston 3961717
OODB79