Loading...
HomeMy WebLinkAbout965781This Instrument was prepared by, and when recorded should be returned to: Vinson Elkins L.L.P. 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201 Attn: Susan D. Hamilton 904052v.1 BAN177 /1.3010 1 00257 RECEIVED 7/27/2012 at 12:21 PM RECEIVING 965781 BOOK: 790 PAGE: 257 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY AMENDMENT TO AND RATIFICATION OF MORTGAGE, DEED OF TRUST., SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT OF PRODUCTION This Amendment to and Ratification of Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment of Production (this "Amendment is executed to be effective as of the 27th day of July, 2011 between BANK OF AMERICA N.A. acting in its capacity as Administrative Agent and "Mortgagee" under the Existing Mortgages (as hereinafter defined) for the Secured Parties (in such capacity, "Mortgagee and BLACK DIAMOND MINERALS, LLC, a Delaware limited liability company, as "Mortgagor" under the Existing Mortgages "Mortgagor RECITALS: WHEREAS, Mortgagor, Mortgagee and each of the financial institutions named and defined therein as Banks are parties to that certain Credit Agreement dated as of May 9, 2008 (as heretofore amended, the "Existing Credit Agreement and WHEREAS, as security for the obligations and indebtedness of the Credit Parties under the Loan Papers, Mortgagor executed and delivered to Mortgagee those certain Mortgages, Deeds of Trust, Security Agreements, Financing Statements and Assignments of Production described in Schedule 1 hereto (each an "Existing Mortgage" and collectively, the "Existing Mortgages and WHEREAS, contemporaneously with the execution and delivery thereof, the Existing Credit Agreement will be amended pursuant to the Second Amendment to Credit Agreement dated as of the date hereof by and among Mortgagor, Mortgagee and Banks (the "Credit Agreement Amendment pursuant to which, among other things, the Termination Date is being extended; and WHEREAS, in furtherance of the foregoing, Mortgagor and Mortgagee desire to execute this Amendment to (a) evidence and reflect the amendment of the Existing Credit Agreement 904052v.1 BAN177/13010 2 00258 pursuant to the Credit Agreement Amendment, (b) ratify Mortgagor's obligations under the Existing Mortgages and (c) secure the Obligations under and as defined in the Existing Credit Agreement (as amended by the Credit Agreement Amendment). NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: I. RENEWAL OF EXISTING MORTGAGES Mortgagor hereby acknowledges and agrees that the Liens, security interests and assignments under the Existing Mortgages securing the payment and performance of the Obligations shall not be released, but shall be carried forward, renewed and extended to secure the Obligations, it being understood and agreed that this Amendment shall effect a renewal, extension, amendment and restatement of the rights, obligations and liabilities of the parties under the Existing Mortgages as provided therein and herein, but shall not constitute a repayment or release, or effect a novation, thereof. To secure the full and complete payment and performance of the Obligations and to secure the performance of the covenants, obligations, agreements and undertakings of Mortgagor contained in the Existing Mortgages (as amended hereby), Mortgagor has under the Existing Mortgages GRANTED, BARGAINED, WARRANTED, MORTGAGED, ASSIGNED, TRANSFERRED, HYPOTHECATED and CONVEYED, and by these presents does, GRANT, BARGAIN, WARRANT, MORTGAGE, ASSIGN, TRANSFER, HYPOTHECATE and CONVEY (i) unto Trustee and Trustee's substitutes or successors, and his and their assigns, or (ii) alternatively, to the extent that a particular jurisdiction wherein a portion of the Mortgaged Property is situated sloes not recognize, permit or require Mortgagor to mortgage or convey the Mortgaged Property to the Trustee for the benefit of Mortgagee and the Secured Parties, then, with respect to the Mortgaged Property located in such particular jurisdiction, unto Mortgagee and Mortgagee's successors in title and assigns for the benefit of the Secured Parties, with power of sale, as provided in the Existing Mortgages (as amended hereby) and to the extent permitted by law, for the uses and purposes set forth in the Existing Mortgages (as amended hereby), and with warranties and covenants of title only to the extent provided in the Existing Mortgages (as amended hereby) and in the Existing Credit Agreement (as amended by the Credit Agreement Amendment), all of Mortgagor's right, title and interest, whether now owned or hereafter acquired, in all of the Mortgaged Property. As used in this Amendment, "Mortgaged Property" shall, for all purposes, have the meaning given to such term in the Existing Mortgages and "Secured Parties" shall mean, collectively, the Banks, the Secured Hedge Providers, and any Bank or Affiliate of any Bank that has provided Cash Management Products to any Credit Party. TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee and its successors, legal representatives and assigns, to secure in each instance, the payment of the Obligations and to secure the performance of the Obligations of Mortgagor contained in the Existing Mortgages (as amended hereby). (a) "Loan Papers" shall mean the Credit Agreement, the First Amendment, the Second Amendment, the Notes, each Facility Guaranty now or hereafter executed, the Mortgages, each amendment to any Mortgage, each Pledge Agreement now or hereafter executed, each Letter of Credit now or hereafter executed and /or delivered, and all other certificates, documents or instruments delivered in connection with the Credit Agreement, as the foregoing may be amended from time to time. (b) "Obligations" shall mean collectively, all present and future indebtedness, obligations and liabilities, and all renewals and extensions thereof, or any part thereof, of each Credit Party to any Bank or to any Affiliate of any Bank (a) arising pursuant to the Loan Papers, and all interest accrued thereon (including any interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of any Credit Party (or could accrue but for the operation of applicable bankruptcy or insolvency laws), whether or not such interest is allowed or allowable as a claim in any such case, proceeding or other action) and costs, expenses and reasonable attorneys' fees incurred in the enforcement or collection thereof, (b) arising under or in connection with any Hedge Transaction entered into between any Credit Party and any Secured Hedge Provider, but excluding any additional transactions or confirmations entered into (i) after such Secured Hedge Provider ceases to be a Bank or an Affiliate of a Bank or (ii) after assignment by a Secured Hedge Provider to another Secured Hedge Provider that is no longer a Bank or an Affiliate of a Bank and (c) all amounts constituting Cash Management Obligations, in each case regardless of whether such indebtedness, obligations and liabilities are direct, indirect, fixed, contingent, liquidated, unliquidated, joint, several, or joint and several. 904052v.1 BAN177 /13010 3 00 II. AMENDMENTS TO EXISTING MORTGAGES Section 2.1 Benefit of Secured Parties. Each reference to "for the Banks" in each Existing Mortgage shall be replaced with a reference to "for the Secured Parties" in each instance. Each reference to "for Banks" in each Existing Mortgage shall be replaced with a reference to "for Secured Parties" in each instance. Each reference to "for the benefit of Mortgagee and Banks" in each Existing Mortgage shall be replaced with a reference to "for the benefit of Mortgagee and Secured Parties" in each instance. Each reference to "for the benefit of Banks" in each Existing Mortgage shall be replaced with a reference to "for the benefit of Secured Parties" in each instance. Each reference to "for the ratable benefit of Banks" in each Existing Mortgage shall be replaced with a reference to "for the ratable benefit of Secured Parties" in each instance. Section 2.2 Restated Defined Terms. The definitions of "Loan Papers" and "Obligations" contained in Section 1.1 of each Existing Mortgage are deleted in their entirety and replaced in full with the following: 00260 Section 2.3 Amended Defined Term. The definition of "Permitted Encumbrances" contained in Section 1.1 of each Existing Mortgage is hereby amended to add the following words immediately before the period at the end of such definition: "provided, that (i) except as otherwise expressly set forth herein or in any other Loan Paper, or as otherwise permitted by operation of law, no intention to subordinate the first priority Lien granted in favor of Administrative Agent pursuant to any of the Loan Papers is to be hereby implied or expressed by the permitted existence of such Permitted Encumbrances and (ii) except as set forth in clause (k) of this definition, the term "Permitted Encumbrances" shall not include any Lien securing Debt for borrowed money other than the Obligations." Section 2.4 Additional Defined Term. The following definition is hereby added to Section 1.1 of each Existing Mortgage in appropriate alphabetical order: "Secured Parties" means, collectively, the Banks, the Secured Hedge Providers, and any Bank or Affiliate of any Bank that has provided Cash Management Products to any Credit Party. Section 2.5 Amendment to Article 2. The following language is hereby added to the end of Article 2 of each Existing Mortgage: Notwithstanding any provision in this Mortgage to the contrary, in no event is any Building (as defined in the applicable Flood Insurance Regulation) or Manufactured (Mobile) Home (as defined in the applicable Flood Insurance Regulation) included in the definition of "Mortgaged Properties" and no Building or Manufactured (Mobile) Home is hereby encumbered by this Mortgage; provided, that Mortgagor's interests in all lands and Hydrocarbons situated under any such Building or Manufactured (Mobile) Home is included in the definition of "Mortgaged Properties" and is encumbered by this Mortgage. As used herein, "Flood Insurance Regulations" means (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 (amending 42 USC 4001, et seq.), as the same may be amended or recodified from time to time, and (iv) the Flood Insurance Reform Act of 2004 and any regulations promulgated thereunder. Section 2.6 Amended Maturity Date. Clause (b) of Article 3 of each Existing Mortgage is hereby deleted in its entirety and replaced in full with the following: (b) the Obligations, including, without limitation, the indebtedness evidenced by that /those certain Note(s) executed by Mortgagor pursuant to the Credit Agreement in aggregate face amount of up to $150,000,000, bearing interesting as therein provided, with interest and principal being payable as therein provided, with a final maturity at the Termination Date. 904052v.1 BAN177 /13010 4 Section 2.7 Limitation of Amendments. Except as expressly set forth in the sections above, the Existing Mortgages shall not be modified or amended in any respect and nothing contained herein shall be deemed to release, modify or impair the liens, security interests, assignments and pledges intended to be created by the Existing Mortgages in any respect, all of which shall secure the Obligations and all of which liens, security interests, assignments and obligations are hereby ratified and confirmed. III. REPRESENTATIONS AND WARRANTIES Section 3.1 Due Authorization; No Conflict. Mortgagor represents and warrants to Mortgagee that the execution, delivery and performance by Mortgagor of this Amendment are within Mortgagor's limited liability company powers, have been duly authorized by all necessary limited liability company action, require no action by or filing with, any Governmental Authority and do not violate or constitute a default under any provision of applicable laws, rules, regulations or orders of any Governmental Authority applicable to Mortgagor or its property, or Material Agreement binding upon Mortgagor or result in the creation or imposition of any Lien upon any of the assets of Mortgagor other than the Liens securing the Obligations. Section 3.2 Validity and Enforceability. Mortgagor hereby represents and warrants to Mortgagee that this Amendment constitutes the valid and binding obligation of Mortgagor enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, and the availability of equitable remedies may be limited by equitable principles of general application. Section 3.3 Reaffirmation of Existing Representations and Warranties. Each representation and warranty of Mortgagor contained in the Existing Mortgages is true and correct in all material respects on the date hereof, both before and after giving effect to the amendments contained in Article II of this Amendment. Section 4.1 Parties in Interest. All of the terms and provisions of this Amendment shall, where applicable, run with the land and shall apply to, bind, and inure to the benefit of, the parties hereto and their respective successors and assigns. Section 4.2 Counterparts. This Amendment may be executed in as many counterparts as may be deemed necessary or convenient, and by the different parties hereto on separate counterparts, each of which when so executed shall be deemed an original, but all such counterparts shall constitute but one and the same instrument. Section 4.3 Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND THE LAWS OF THE UNITED STATES OF AMERICA, EXCEPT TO THE EXTENT THAT THE LAWS OF ANY STATE IN WHICH THE MORTGAGED PROPERTY IS LOCATED NECESSARILY GOVERNS THE VALIDITY, PERFECTION, PRIORITY AND ENFORCEABILITY, AND THE EXERCISE OF ANY 904052v.1 BAN177 /13010 IV. MISCELLANEOUS 5 00261 00202 REMEDIES WITH RESPECT TO ANY LIEN OR SECURITY INTEREST INTENDED TO BE CREATED HEREBY ON THE MORTGAGED PROPERTY LOCATED IN SUCH STATE. Section 4.4 Defined Terms. Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to such terms in the Existing Credit Agreement (as amended by the Credit Agreement Amendment). 904052v.1 BAN177 /13010 [SIGNATURE PAGES TO FOLLOW] 6 IN WITNESS WHEREOF, Mortgagor, acting by and through its duly authorized officer, has executed this Mortgage on the date of its acknowledgment. STATE OF COLORADO COUNTY OF DENVER Personally appeared before me, the undersigned authority in and for the said county and state, on this 21 day of July, 2011, within my jurisdiction, the within named Ward Giltner, who acknowledged that he is the Chief Financial Officer of Black Diamond Minerals, LLC, a Delaware limited liability company, and that for and on behalf of said limited liability company as its act and deed, he executed the above and foregoing instrument, after first having been duly authorized by said limited liability company to do so. ACKNOWLEDGMENT FOR MORTGAGOR By: GIVEN under my hand this 21 day of July, 2011 MORTGAGOR: BLACK DIAMON [SIGNATURE PAGE TO MORTGAGE AMENDMENT] MINERALS, LLC Ward Giltner, Chief Financial Officer ef TARY PUBLIC 00263 IN WITNESS WHEREOF, Mortgagee, acting by and through its duly authorized officer, has executed this Amendment on the date of its acknowledgment. COMMONWEALTH OF MASSACHUSETTS COUNTY OF SUFFOLK My Commission Expires: i4u -u t /R 4100 MORTGAGEE: BANK OF As Administr By: Jeffr H: athkamp, M gin>; irector ACKNOWLEDGMENT FOR MORTGAGEE Personally ap eared before me, the undersigned authority in and for the said county and state, on this day of July, 2011, within my jurisdiction, the within named Jeffrey H. Rathkamp, who acknowledged that he is Managing Director of Bank of America, N.A., a national banlcing association, and that for and on behalf of said national banking association as its act and deed, he executed the above and foregoing instrument, after first having been duly authorized by said national banking association to do so. GIVEN under my hand this le day of July, 2011 ERI tive A NOTARY PUBLIC [SIGNATURE PAGE TO MORTGAGE AMENDMENT] A, N.A., ent r 46 CHANDRANI COLE Notary Pubic, Commonwealth of Massachueetts My Commission Expires August 12, 2016 00264 COLORADO Garfield County, Colorado SCHEDULE 1 Existing Mortgages 00205 1. Mort _a t e Deed of Trust Securit A reement Financin Statement and Assi l nment of Production dated as of May 9, 2008, executed by Black Diamond Minerals, LLC, as Mortgagor, in favor of Bank of America, N.A., as Administrative Agent, as Mortgagee, filed on June 2, 2008 as File No. 749609. WYOMING Lincoln County, Wyoming 2. Mortgage, Deed of Trust Security Agreement Financing Statement and Assignment of Production dated as of May 9, 2008, executed by Black Diamond Minerals, LLC, as Mortgagor, in favor of Bank of America, N.A., as Administrative Agent, as Mortgagee, filed on June 2, 2008 as File No. 939426 in Book 696 on Page 1. Sublette County, Wyoming 3. Mort a e Deed of Trust Securit A reement Financin Statement and Assi nment of Production dated as of May 9, 2008, executed by Black Diamond Minerals, LLC, as Mortgagor, in favor of Bank of America, N.A., as Administrative Agent, as Mortgagee, filed on June 3, 2008 as File No. 336071 in O &G Book 137 on Page 739. Sweetwater County, Wyoming 4. Mort a_e Deed of Trust Securit A reement Financin Statement and Assi nment of Production dated as of May 9, 2008, executed by Black Diamond Minerals, LLC, as Mortgagor, in favor of Bank of America, N.A., as Administrative Agent, as Mortgagee, filed on June 13, 2008 as File No. 1535705 in Book 1122 on Page 0641. Uinta County, Wyoming 5. Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment of Production dated as of May 9, 2008, executed by Black Diamond Minerals, LLC, as Mortgagor, in favor of Bank of America, N.A., as Administrative Agent, as Mortgagee, filed on June 2, 2008 as File No. 143225 in Book 914 on Page 852. Niobrara County, Wyoming 904052v.1 BAN177/13010 Schedule 1 00266 6. Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment of Production dated as of May 22, 2008, executed by Black Diamond Minerals, LLC, as Mortgagor, in favor of Bank of America, N.A., as Administrative Agent, as Mortgagee, filed on June 6, 2008 as File No. 399795 in Book 437 on Page 692, and re- recorded on April 16, 2009 as File No. 402589 in Book 441 on Page 1. 904052v.1 BAN177 /13010 Schedule 1