UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): April 23, 2012

 

SANDRIDGE MISSISSIPPIAN TRUST II

(Exact name of registrant as specified in its charter)

 

Delaware

(State or Other Jurisdiction of
Incorporation or Organization)

 

001-35508

(Commission File Number)

 

30-0709968
(I.R.S. Employer
Identification No.)

 

919 Congress Avenue, Suite 500

Austin, Texas

(Address of Principal Executive Offices)

 

78701
(Zip Code)

 

Registrant’s Telephone Number, including Area Code: (855) 802-1092

 

Not Applicable.

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

o             Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o             Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o             Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o             Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Item 1.01 — Entry into a Material Definitive Agreement .

 

On April 23, 2012 (the “Closing Date”), SandRidge Mississippian Trust II (the “Trust”) completed its initial public offering of 29,900,000 units of beneficial interest in the Trust denominated as common units (“Common Units”).

 

In connection with the closing of the offering, on the Closing Date, the Trust and SandRidge Exploration and Production, LLC, a Delaware limited liability company (“SandRidge E&P”) and a wholly owned subsidiary of SandRidge Energy, Inc. (“SandRidge”), entered into (i) a Perpetual Overriding Royalty Interest Conveyance (Kansas) (PDP), (ii)  a Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (PDP), (iii) a Long-Term Overriding Royalty Interest Conveyance (Kansas) (Development) and (iv) a Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (Development) (collectively, the “Perpetual Conveyances”), pursuant to which SandRidge E&P conveyed to the Trust perpetual royalty interests in certain oil and natural gas properties in Noble, Kay, Alfalfa, Grant and Woods counties in northern Oklahoma and Harper, Comanche, Sumner and Barber counties in southern Kansas, in each case, in which SandRidge E&P holds interests (the “Oil and Gas Properties”).

 

Also on the Closing Date, SandRidge E&P and Mistmada Oil Company, Inc., an Oklahoma corporation and a wholly owned subsidiary of SandRidge (“Mistmada”), entered into (i) a Term Overriding Royalty Interest Conveyance (Kansas) (PDP), (ii) a Term Overriding Royalty Interest Conveyance (Oklahoma) (PDP), (iii) a Term Overriding Royalty Interest Conveyance (Kansas) (Development), and (iv) a Term Overriding Royalty Interest Conveyance (Oklahoma) (Development) (collectively, the “Term Conveyances”), pursuant to which SandRidge E&P conveyed to Mistmada 20-year term royalty interests in the Oil and Gas Properties.  Also on the Closing Date, the Trust and Mistmada entered into (i) an Assignment of Overriding Royalty Interest (Kansas) and (ii) an Assignment of Overriding Royalty Interest (Oklahoma) (collectively, the “Assignments,” and together with the Term Conveyances and the Perpetual Conveyances, the “Conveyances”), pursuant to which Mistmada assigned to the Trust the term overriding royalty interests conveyed to it pursuant to the Term Conveyances.

 

The Conveyances were delivered on April 23, 2012 to be effective as of January 1, 2012, or, in the case of interests in the Oil and Gas Properties acquired by SandRidge E&P after January 1, 2012, to be effective as of the date so acquired.  The description of the Perpetual Conveyances, Term Conveyances and Assignments contained in the section entitled “Description of the Royalty Interests” of the prospectus, dated April 17, 2012 (File No. 333-178894), related to the initial public offering and filed with the Securities and Exchange Commission on April 18, 2012 pursuant to Rule 424(b) under the Securities Act of 1933  (the “Final Prospectus”), is incorporated herein by reference. Copies of the Term Conveyances are filed as Exhibits 10.1 to 10.4 to this Form 8-K and are incorporated herein by reference.  Copies of the Perpetual Conveyances and the Assignments are filed as Exhibits 10.5 to 10.10 to this Form 8-K and are incorporated herein by reference.

 

As consideration for the royalty interests conveyed to the Trust pursuant to the Conveyances, the Trust delivered to SandRidge E&P and Mistmada 7,393,750 Common Units, 12,431,250 units of beneficial interest in the Trust denominated as subordinated units (“Subordinated Units”), and the net proceeds of the Trust’s initial public offering equal to approximately $590 million, after deducting underwriting discounts and commissions.

 

On the Closing Date, SandRidge and the Trust entered into an Administrative Services Agreement (the “Administrative Services Agreement”) pursuant to which SandRidge agreed to provide the Trust with certain accounting, bookkeeping and informational services relating to the royalty interests described above, as well as certain hedge management services. In exchange for providing these services to the Trust, SandRidge will receive an administrative services fee of $300,000 per year. The description of the Administrative Services Agreement contained in the section entitled “The Trust — Administrative Services Agreement” of the Final Prospectus is incorporated herein by reference. A copy of the Administrative Services Agreement is filed as Exhibit 10.11 to this Form 8-K and is incorporated herein by reference.

 

On the Closing Date, SandRidge, SandRidge E&P and the Trust entered into a Development Agreement (the “Development Agreement”) pursuant to which SandRidge agreed to drill certain oil and natural gas wells on the properties covered by certain of the Conveyances, as described in the Final Prospectus. Relatedly, on the Closing Date, SandRidge, SandRidge E&P and the Trust also entered into (i) a Mortgage (Kansas) and (ii) a Mortgage (Oklahoma)  (collectively, the “Mortgages”) pursuant to which SandRidge E&P granted to the Trust a mortgage lien

 

2



 

on certain of its leasehold interests in the Mississippian formation in northern Oklahoma and southern Kansas, as described in the Final Prospectus, in order to secure the estimated amount of the drilling costs for the wells to be drilled under the Development Agreement. The description of the Development Agreement and the Mortgages contained in the section entitled “The Trust — Development Agreement and Drilling Support Lien” and elsewhere in the Final Prospectus is incorporated herein by reference. Copies of the Development Agreement and the Mortgages are filed as Exhibits 10.12, 10.14 and 10.15 to this Form 8-K and are incorporated herein by reference.

 

On the Closing Date, SandRidge and the Trust also entered into a Derivatives Agreement (the “Derivatives Agreement”) pursuant to which SandRidge agreed to provide the Trust with the effect of certain hedging contracts entered into between SandRidge and each of Morgan Stanley Capital Group Inc., Barclays Bank PLC and Citibank, N.A., relating to a portion of the estimated oil volumes expected to be produced from the properties in which the Trust has an interest from April 1, 2012 through December 31, 2014, all as described in the Final Prospectus. The description of the Derivatives Agreement contained in the section entitled “The Trust — Hedging Arrangements” of the Final Prospectus is incorporated herein by reference. A copy of the Derivatives Agreement is filed as Exhibit 10.13 to this Form 8-K and is incorporated herein by reference.

 

Also on the Closing Date, and following the completion of the Trust’s initial public offering, SandRidge transferred by novation a portion of the volumes covered by the hedging contracts underlying the Derivatives Agreement (the “Novated Volumes”).  The Trust assumed all of the rights, liabilities, obligations and duties under the hedging contracts insofar as they relate to the Novated Volumes.  The Novated Volumes consisted of: (i) 458,494 Barrels of oil for the period April 1, 2012 to December 31, 2012 (at a fixed swap price of $107/barrel), (ii) 446,118 Barrels of oil for the period January 1, 2013 to December 31, 2013 (at a fixed swap price of $104/barrel), and (iii) 338,243 Barrels of oil for the period January 1, 2014 to December 31, 2014 (at a fixed swap price of $99/barrel).  To secure its obligations under such assumed hedge contracts, the Trust entered into mortgages and security agreements in which it granted a mortgage lien on the royalty interests owned by the Trust to the counterparties under the hedge contracts.  Copies of the novation agreements with respect to the Novated Volumes are filed as Exhibits 10.17 to 10.19 to this Form 8-K and are incorporated herein by reference, and copies of the mortgages and security agreements securing the Trust’s obligations under the hedge contracts with respect to the Novated Volumes are filed as Exhibits 10.20 and 10.21 to this Form 8-K and are incorporated herein by reference.

 

On the Closing Date, SandRidge and the Trust entered into a Registration Rights Agreement (the “Registration Rights Agreement”) pursuant to which SandRidge, SandRidge E&P and certain of their permitted transferees holding “registrable securities” of the Trust (as defined in the Registration Rights Agreement) would be entitled, beginning 180 days after the date of the Registration Rights Agreement, to demand that the Trust use its reasonable best efforts to effect the registration of the registrable securities under the Securities Act of 1933. The holders of the registrable securities are entitled to demand a maximum of five such registrations. The description of the Registration Rights Agreement contained in the section entitled “Trust Units Eligible for Future Sale — Registration Rights Agreement” of the Final Prospectus is incorporated herein by reference. A copy of the Registration Rights Agreement is filed as Exhibit 10.16 to this Form 8-K and is incorporated herein by reference.

 

Item 3.02 Unregistered Sales of Equity Securities

 

As partial consideration for the conveyance of the interests in the Oil and Gas Properties as described in Item 1.01 above, the Trust issued to SandRidge E&P 7,393,750 Common Units and 12,431,250 Subordinated Units. The Subordinated Units will automatically convert into Common Units on a one-for-one basis at the end of the fourth full calendar quarter following SandRidge’s satisfaction of its drilling obligation to the Trust under the Development Agreement. The issuance of the Common Units and Subordinated Units to SandRidge E&P was undertaken in reliance upon the exemption from the registration requirements of the Securities Act of 1933 contained in Section 4(2) thereof.

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

On the Closing Date, SandRidge, The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), and The Corporation Trust Company, as Delaware trustee, entered into an Amended and Restated Trust Agreement (the “Amended and Restated Trust Agreement”) in connection with the closing of the transactions described in the section entitled “The Trust — Formation Transactions” of the Final Prospectus. The description of the Amended and Restated Trust Agreement contained in the section entitled “Description of the Trust Agreement” of the Final Prospectus is incorporated herein by reference. A copy of the Amended and Restated Trust Agreement is filed as Exhibit 4.1 to this Form 8-K and is incorporated herein by reference.

 

3



 

Item 9.01 — Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit No.

 

Description

4.1

 

Amended and Restated Trust Agreement, dated as of April 23, 2012, by and among SandRidge, the Trustee, and The Corporation Trust Company.

10.1

 

Term Overriding Royalty Interest Conveyance (Kansas) (PDP), dated as of April 23, 2012, by and between SandRidge E&P and Mistmada.

10.2

 

Term Overriding Royalty Interest Conveyance (Oklahoma) (PDP), dated as of April 23, 2012, by and between SandRidge E&P and Mistmada.

10.3

 

Term Overriding Royalty Interest Conveyance (Kansas) (Development), dated as of April 23, 2012, by and between SandRidge E&P and Mistmada.

10.4

 

Term Overriding Royalty Interest Conveyance (Oklahoma) (Development), dated as of April 23, 2012, by and between SandRidge E&P and Mistmada.

10.5

 

Perpetual Overriding Royalty Interest Conveyance (Kansas) (PDP), dated as of April 23, 2012, by and between SandRidge E&P and the Trust.

10.6

 

Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (PDP), dated as of April 23, 2012, by and between SandRidge E&P and the Trust.

10.7

 

Long-Term Overriding Royalty Interest Conveyance (Kansas) (Development), dated as of April 23, 2012, by and between SandRidge E&P and the Trust.

10.8

 

Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (Development), dated as of April 23, 2012, by and between SandRidge E&P and the Trust.

10.9

 

Assignment of Overriding Royalty Interest (Kansas), dated as of April 23, 2012, by and between Mistmada and the Trust.

10.10

 

Assignment of Overriding Royalty Interest (Oklahoma), dated as of April 23, 2012, by and between Mistmada and the Trust.

10.11

 

Administrative Services Agreement, dated as of April 23, 2012, by and between SandRidge and the Trust.

10.12

 

Development Agreement, dated as of April 23, 2012, by and between SandRidge, SandRidge E&P and the Trust.

10.13

 

Derivatives Agreement, dated as of April 23, 2012, by and between SandRidge and the Trust.

10.14

 

Mortgage (Kansas), dated as of April 23, 2012, by and between SandRidge E&P and the Trust.

10.15

 

Mortgage (Oklahoma), dated as of April 23, 2012, by and between SandRidge E&P and the Trust.

10.16

 

Registration Rights Agreement, dated as of April 23, 2012, by and between SandRidge and the Trust.

10.17

 

Novation Agreement, dated as of April 23, 2012, among Barclays Bank PLC, SandRidge Energy, Inc. and SandRidge Mississippian Trust II.

10.18

 

Novation Agreement, dated as of April 23, 2012, among Citibank, N.A., SandRidge Energy, Inc. and SandRidge Mississippian Trust II.

10.19

 

Novation Agreement, dated as of April 23, 2012, among Morgan Stanley Capital Group Inc., SandRidge Energy, Inc. and SandRidge Mississippian Trust II.

10.20

 

Mortgage and Security Agreement (Oklahoma) from SandRidge Mississippian Trust II, as Mortgagor, to Wilmington Trust, National Association, as Collateral Agent, as Mortgagee, dated as of April 23, 2012.

10.21

 

Mortgage and Security Agreement (Kansas) from SandRidge Mississippian Trust II, as Mortgagor, to Wilmington Trust, National Association, as Collateral Agent, as Mortgagee, dated as of April 23, 2012.

 

4



 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

 

 

SandRidge Mississippian Trust II

 

 

 

 

By:

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

Name:

Michael J. Ulrich

 

 

Title:

Vice President

 

 

 

 

Date: April 24, 2012

 

 

 

 

5



 

Exhibit Index

 

Exhibit No.

 

Description

4.1

 

Amended and Restated Trust Agreement, dated as of April 23, 2012, by and among SandRidge, the Trustee, and The Corporation Trust Company.

10.1

 

Term Overriding Royalty Interest Conveyance (Kansas) (PDP), dated as of April 23, 2012, by and between SandRidge E&P and Mistmada.

10.2

 

Term Overriding Royalty Interest Conveyance (Oklahoma) (PDP), dated as of April 23, 2012, by and between SandRidge E&P and Mistmada.

10.3

 

Term Overriding Royalty Interest Conveyance (Kansas) (Development), dated as of April 23, 2012, by and between SandRidge E&P and Mistmada.

10.4

 

Term Overriding Royalty Interest Conveyance (Oklahoma) (Development), dated as of April 23, 2012, by and between SandRidge E&P and Mistmada.

10.5

 

Perpetual Overriding Royalty Interest Conveyance (Kansas) (PDP), dated as of April 23, 2012, by and between SandRidge E&P and the Trust.

10.6

 

Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (PDP), dated as of April 23, 2012, by and between SandRidge E&P and the Trust.

10.7

 

Long-Term Overriding Royalty Interest Conveyance (Kansas) (Development), dated as of April 23, 2012, by and between SandRidge E&P and the Trust.

10.8

 

Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (Development), dated as of April 23, 2012, by and between SandRidge E&P and the Trust.

10.9

 

Assignment of Overriding Royalty Interest (Kansas), dated as of April 23, 2012, by and between Mistmada and the Trust.

10.10

 

Assignment of Overriding Royalty Interest (Oklahoma), dated as of April 23, 2012, by and between Mistmada and the Trust.

10.11

 

Administrative Services Agreement, dated as of April 23, 2012, by and between SandRidge and the Trust.

10.12

 

Development Agreement, dated as of April 23, 2012, by and between SandRidge, SandRidge E&P and the Trust.

10.13

 

Derivatives Agreement, dated as of April 23, 2012, by and between SandRidge and the Trust.

10.14

 

Mortgage (Kansas), dated as of April 23, 2012, by and between SandRidge E&P and the Trust.

10.15

 

Mortgage (Oklahoma), dated as of April 23, 2012, by and between SandRidge E&P and the Trust.

10.16

 

Registration Rights Agreement, dated as of April 23, 2012, by and between SandRidge and the Trust.

10.17

 

Novation Agreement, dated as of April 23, 2012, among Barclays Bank PLC, SandRidge Energy, Inc. and SandRidge Mississippian Trust II.

10.18

 

Novation Agreement, dated as of April 23, 2012, among Citibank, N.A., SandRidge Energy, Inc. and SandRidge Mississippian Trust II.

10.19

 

Novation Agreement, dated as of April 23, 2012, among Morgan Stanley Capital Group Inc., SandRidge Energy, Inc. and SandRidge Mississippian Trust II.

10.20

 

Mortgage and Security Agreement (Oklahoma) from SandRidge Mississippian Trust II, as Mortgagor, to Wilmington Trust, National Association, as Collateral Agent, as Mortgagee, dated as of April 23, 2012.

10.21

 

Mortgage and Security Agreement (Kansas) from SandRidge Mississippian Trust II, as Mortgagor, to Wilmington Trust, National Association, as Collateral Agent, as Mortgagee, dated as of April 23, 2012.

 

6


Exhibit 4.1

 

Execution Copy

 

AMENDED AND RESTATED
TRUST AGREEMENT

 

OF

 

SANDRIDGE MISSISSIPPIAN TRUST II

 


Among

 

SANDRIDGE ENERGY, INC.

 

and

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

 

and

 

THE CORPORATION TRUST COMPANY

 

 

Dated: As of April 23, 2012

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I

DEFINED TERMS AND CONSTRUCTION

2

 

 

 

Section 1.01

Certain Defined Terms

2

Section 1.02

Rules of Construction

10

 

 

 

ARTICLE II

NAME AND PURPOSE OF THE TRUST; DECLARATION OF TRUST

11

 

 

 

Section 2.01.

Name; Certificate of Trust

11

Section 2.02.

Purpose

11

Section 2.03.

Trust Property

13

Section 2.04.

Creation of the Trust

14

Section 2.05.

Principal Offices

15

 

 

 

ARTICLE III

ADMINISTRATION OF THE TRUST AND POWERS OF THE TRUSTEE AND THE DELAWARE TRUSTEE

15

 

 

 

Section 3.01.

General Authority

15

Section 3.02.

Limited Power of Disposition of the Trust

16

Section 3.03.

No Power to Engage in Business or Make Investments or Issue Additional Securities

18

Section 3.04.

Interest on Cash Reserves

19

Section 3.05.

Power to Settle Claims

19

Section 3.06.

Power to Contract for Services

19

Section 3.07.

Payment of Liabilities of Trust

20

Section 3.08.

Income and Principal

21

Section 3.09.

Term of Contracts

21

Section 3.10.

Transactions with the Trustee or the Delaware Trustee

22

Section 3.11.

No Security Required

22

Section 3.12.

Filing of Securities Act Registration Statement, Exchange Act Registration Statement and Other Reports, Listing of Trust Units, etc.; Certain Fees and Expenses

22

Section 3.13.

Reserve Report

23

Section 3.14.

No Liability for Recordation

23

Section 3.15.

Quarterly Cash Distributions

23

Section 3.16.

Conversion of Subordinated Units to Common Units

24

Section 3.17.

Entity-Level Taxation

24

 

 

 

ARTICLE IV

TRUST UNITS AND BENEFICIAL INTEREST

25

 

 

 

Section 4.01.

Creation

25

Section 4.02.

Rights of Trust Unitholders; Limitation on Personal Liability of Trust Unitholders

25

Section 4.03.

Effect of Transfer

26

 

i



 

Section 4.04.

Determination of Ownership

26

Section 4.05.

Transfer Agent

26

 

 

 

ARTICLE V

ACCOUNTING AND DISTRIBUTIONS; REPORTS

27

 

 

 

Section 5.01.

Fiscal Year and Accounting Method

27

Section 5.02.

Quarterly Cash Distribution Amount

27

Section 5.03.

Reports to Trust Unitholders and Others

27

Section 5.04.

Reports from SandRidge to the Trustee

28

Section 5.05.

U.S. Federal Income Tax Provisions

28

 

 

 

ARTICLE VI

LIABILITY OF DELAWARE TRUSTEE AND TRUSTEE AND METHOD OF SUCCESSION

28

 

 

 

Section 6.01.

Liability of Delaware Trustee, Trustee and Agents

28

Section 6.02.

Indemnification of Trustee or Delaware Trustee

30

Section 6.03.

Resignation of Delaware Trustee and Trustee

31

Section 6.04.

Removal of Delaware Trustee and Trustee

32

Section 6.05.

Appointment of Successor Delaware Trustee or Trustee

32

Section 6.06.

Laws of Other Jurisdictions

33

Section 6.07.

Reliance on Experts

33

Section 6.08.

Force Majeure

34

Section 6.09.

Failure of Action by SandRidge

34

Section 6.10.

Action Upon Instructions

34

Section 6.11.

Management of Trust Estate

34

Section 6.12.

Validity

35

Section 6.13.

Rights and Powers; Litigation

35

Section 6.14.

No Duty to Act Under Certain Circumstances

35

Section 6.15.

Indemnification of the Trust

35

 

 

 

ARTICLE VII

COMPENSATION OF THE TRUSTEE AND THE DELAWARE TRUSTEE

36

 

 

 

Section 7.01.

Compensation of Trustee and Delaware Trustee

36

Section 7.02.

Reimbursement of SandRidge

36

Section 7.03.

Source of Funds

36

Section 7.04.

Ownership of Units by SandRidge, the Delaware Trustee and the Trustee

36

 

 

 

ARTICLE VIII

MEETINGS OF TRUST UNITHOLDERS

37

 

 

 

Section 8.01.

Purpose of Meetings

37

Section 8.02.

Call and Notice of Meetings

37

Section 8.03.

Method of Voting and Vote Required

37

Section 8.04.

Conduct of Meetings

38

 

ii



 

ARTICLE IX

DURATION, REVOCATION AND TERMINATION OF TRUST

38

 

 

 

Section 9.01.

Revocation

38

Section 9.02.

Termination

38

Section 9.03.

Disposition and Distribution of Assets and Properties

38

Section 9.04.

Reorganization or Business Combination

40

 

 

 

ARTICLE X

AMENDMENTS

41

 

 

 

Section 10.01.

Prohibited Amendments

41

Section 10.02.

Permitted Amendments

42

 

 

 

ARTICLE XI

ARBITRATION

42

 

 

 

ARTICLE XII

MISCELLANEOUS

45

 

 

 

Section 12.01.

Inspection of Books

45

Section 12.02.

Disability of a Trust Unitholder

45

Section 12.03.

Merger or Consolidation of Delaware Trustee or Trustee

45

Section 12.04.

Change in Trust Name

46

Section 12.05.

Filing of this Agreement

46

Section 12.06.

Choice of Law

46

Section 12.07.

Separability

46

Section 12.08.

Notices

47

Section 12.09.

Counterparts

48

Section 12.10.

No Fiduciary Duty of SandRidge or its Affiliates

48

Section 12.11.

Waiver of Damages

48

 

 

 

Schedule 1 — Direct Hedge Contracts

 

 

 

 

Schedule 2 — Subordination and Incentive Thresholds

 

 

 

 

Schedule 3 — Fee Schedule of Trustee

 

 

 

Annex A — U.S. Federal Income Tax Provisions

 

 

iii



 

AMENDED AND RESTATED
TRUST AGREEMENT
OF
SANDRIDGE MISSISSIPPIAN TRUST II

 

This Amended and Restated Trust Agreement of SandRidge Mississippian Trust II (the “ Trust ”), is entered into effective as of the 23rd day of April, 2012, by and among SANDRIDGE ENERGY, INC., a Delaware corporation with its principal office in Oklahoma City, Oklahoma (“ SandRidge ”) as trustor, THE CORPORATION TRUST COMPANY, a corporation organized under the laws of the State of Delaware with its principal office in Wilmington, Delaware (“ Corporation Trust ”), as Delaware Trustee (as hereinafter defined), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association organized under the laws of the United States of America with its principal place of business in New York, New York (the “ Bank ”), as Trustee (as hereinafter defined).

 

WITNESSETH:

 

WHEREAS, SandRidge is engaged in the development, production, transportation and marketing of oil, natural gas and natural gas liquids, and owns leasehold interests in properties located in the Mississippian formation in Noble, Kay, Alfalfa, Grant and Woods counties in northern Oklahoma and Harper, Comanche, Sumner and Barber counties in southern Kansas containing proved reserves of oil, natural gas and natural gas liquids; and

 

WHEREAS, SandRidge, SandRidge Exploration and Production, LLC, a Delaware limited liability company (“ SandRidge E&P ”), and Mistmada Oil Company, Inc., an Oklahoma corporation (“ SandRidge Sub ”), have determined to convey to the Trust the Royalty Interests (hereinafter defined) pursuant to the Conveyances (hereinafter defined) in exchange for cash, 7,393,750 Common Units (hereinafter defined), 12,431,250 Subordinated Units (hereinafter defined), and the right of SandRidge to receive Incentive Distributions (hereinafter defined) on the terms set forth herein; and

 

WHEREAS, SandRidge and the Trust have determined to enter into the Derivatives Agreement (hereinafter defined) to provide the Trust with the economic effect of specified hedging contracts entered into between SandRidge and third parties; and

 

WHEREAS, the Trust will enter into the Direct Hedge Contracts (hereinafter defined) with certain counterparties to hedge a portion of the estimated future oil production attributable to the Royalty Interests; and

 

WHEREAS, SandRidge and the Trust have determined to enter into the Administrative Services Agreement (hereinafter defined), outlining SandRidge’s provision of administrative services to the Trust and its compensation therefor; and

 

WHEREAS, SandRidge, SandRidge E&P and the Trust have determined to enter into the Development Agreement (hereinafter defined), outlining SandRidge’s and SandRidge E&P’s drilling obligation to the Trust; and

 



 

WHEREAS, SandRidge E&P has determined to grant the Drilling Mortgages (hereinafter defined) to the Trust to secure SandRidge’s and SandRidge E&P’s drilling obligation to the Trust under the Development Agreement; and

 

WHEREAS, SandRidge, the Bank and Corporation Trust have previously formed the Trust pursuant to the Initial Trust Agreement (hereinafter defined) in accordance with the provisions of the Trust Act (hereinafter defined) and, in connection therewith, SandRidge has previously delivered to the Bank, on behalf of the Trust, good and valuable consideration, which the Bank has accepted, to have and to hold, in trust, such consideration, for the purposes and subject to the terms and conditions of the Initial Trust Agreement and as hereinafter provided; and

 

WHEREAS, SandRidge, SandRidge E&P and SandRidge Sub have agreed to deliver to the Bank, on behalf of the Trust, good and valuable consideration, which the Bank has agreed to accept, to have and to hold, in trust, such consideration and all other properties that may hereafter be acquired hereunder, for the purposes and subject to the terms and conditions hereinafter provided; and

 

NOW, THEREFORE, SandRidge, Corporation Trust and the Bank hereby amend and restate the Initial Trust Agreement of SandRidge Mississippian Trust II in its entirety.

 

ARTICLE I
DEFINED TERMS AND CONSTRUCTION

 

Section 1.01.                                        Certain Defined Terms .  As used herein, the following terms have the meanings indicated:

 

AAA ” is defined in Article XI.

 

Administrative Services Agreement ” means the Administrative Services Agreement, delivered to be effective as of January 1, 2012, by and between SandRidge and the Trust.

 

Affiliate ” means, with respect to any specified Person, another Person that, directly or indirectly, controls, is controlled by, or is under common control with, the specified Person. As used in this definition, “control” (and the correlative terms “controlled by” and “under common control”), refers to the possession, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract or otherwise.

 

Agent ” means, with respect to a Person, any agent, employee, officer, director, custodian, nominee or attorney of such Person.

 

Agreement ” means this Amended and Restated Trust Agreement of SandRidge Mississippian Trust II, as it may be further amended, supplemented or restated from time to time.

 

Assignments of Overriding Royalty Interest ” means collectively (i) the Assignment of Overriding Royalty Interest (Oklahoma) covering Underlying Properties in Oklahoma and (ii) the Assignment of Overriding Royalty Interest (Kansas) covering Underlying Properties in

 

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Kansas, in each case, delivered to be effective as of the Effective Time (as defined therein) by and between SandRidge Sub and the Trust.

 

Bank ” is defined in the introductory paragraph to this Agreement.

 

Beneficial Interest ” means the aggregate beneficial interest of all Trust Unitholders in the Trust Estate, including without limitation the proceeds attributable to the Royalty Interests, which beneficial interest shall be expressed in Trust Units and shall not constitute any direct ownership interest in or to the Royalty Interests, or any part thereof, or any other part of the Trust Estate and shall be treated for all purposes as an intangible personal property interest.

 

Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by NYSE Regulation, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.

 

Claimant ” is defined in Section 11(c).

 

Closing ” means the first closing of the initial public offering of Common Units contemplated by the Securities Act Registration Statement.

 

Closing Date ” means the date of Closing.

 

Collateral Agency Agreement ” means that certain Collateral Agency Agreement to be entered into by and among the Trust, Citibank, N.A., Barclays Bank PLC, and Morgan Stanley Capital Group Inc., as initial swap counterparties, and Wilmington Trust, National Association, as collateral agent, governing the relationship among the Trust’s swap counterparties regarding their interests in the collateral securing the Trust’s obligations under the Direct Hedge Contracts.

 

Commission ” means the U.S. Securities and Exchange Commission.

 

Common Unit ” means a security of the Trust representing a proportionate share of the Beneficial Interest having the rights and obligations specified with respect to a Common Unit in this Agreement. The term “ Common Unit ” does not refer to or include any Subordinated Unit prior to its conversion into a Common Unit pursuant to the terms hereof.

 

Conveyances ” means (a) those certain Oklahoma Term Royalty Conveyances and those certain Kansas Term Royalty Conveyances (collectively, the “ Term Royalty Conveyances ”), (b) those certain Oklahoma Perpetual Royalty Conveyances and those certain Kansas Perpetual Royalty Conveyances (collectively, the “ Perpetual Royalty Conveyances ”) and (c) the Assignments of Overriding Royalty Interest.

 

Corporation Trust ” is defined in the introductory paragraph to this Agreement.

 

Delaware Trustee ” means the Entity designated as trustee (other than the Trustee) under this Agreement and having its principal place of business in Delaware, not in its individual capacity but solely in its fiduciary capacity, and having the rights and obligations specified with respect to the Delaware Trustee in this Agreement. Furthermore, any benefit, indemnity, release or protection granted to the Delaware Trustee herein shall extend to and shall be fully applicable

 

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and effective with regard to any Delaware Trustee, including, without limitation, Corporation Trust Company.

 

Derivatives Agreement ” means the Derivatives Agreement, dated as of April 23, 2012, by and between SandRidge and the Trust.

 

Development Agreement ” means the Development Agreement, delivered to be effective as of January 1, 2012, by and among SandRidge, SandRidge E&P and the Trust.

 

Development Well ” has the meaning assigned to such term in the Development Agreement.

 

Direct Hedge Contracts ” means the Initial Direct Hedges and the Future Direct Hedges, in each case, as such hedge contracts may be restructured, amended or modified from time to time.

 

Direct Hedge Security Instruments ” means those certain Mortgages between the Trust as Mortgagor, and Wilmington Trust, National Association, collateral agent under the Collateral Agency Agreement, as Mortgagee, and the other security instruments, as in effect from time to time, executed by the Trust in favor of the collateral agent under the Collateral Agency Agreement and the counterparties to the Direct Hedge Contracts.

 

Drilling Obligation Completion Date ” has the meaning assigned to such term in the Development Agreement.

 

Drilling Mortgages ” means collectively (i) the Kansas Drilling Mortgage and (ii) the Oklahoma Drilling Mortgage.

 

Entity ” means a corporation, partnership, limited liability company, trust, estate or other entity, organization or association.

 

Environmental Laws ” means all laws relating to pollution or protection of the environment, including laws relating to emissions, discharges, releases or threatened releases, treatment, storage or disposal of pollutants, contaminants, hazardous substances or industrial or hazardous wastes into the environment (including ambient air, surface water, groundwater, land surface or subsurface strata), including laws relating to the protection, preservation, or enhancement of endangered or threatened species, historic and archaeological resources, or wetlands and tidelands, as well as all codes, decrees, injunctions, judgments, orders, rules or regulations issued, entered, promulgated or approved thereunder pursuant to the requirements of applicable administrative procedures, acts and agency procedural rules.

 

Estimated Incremental Quarterly Tax Amount ” has the meaning assigned such term in Section 3.17.

 

Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

Exchange Act Registration Statement ” means the registration statement on Form 8-A pursuant to which the Trust Units may be registered under Section 12 of the Exchange Act.

 

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Expenses ” is defined in Section 6.02(a).

 

Fair Value ” means, with respect to any portion of the Royalty Interests to be released or sold pursuant to Section 3.02(b) in connection with a sale of Underlying Properties, an amount of net proceeds that could reasonably be expected to be obtained from the sale of such portion of the Royalty Interests to a party that is not an Affiliate of either SandRidge or the Trust on an arms’ length negotiated basis, taking into account relevant market conditions and factors existing at the time of any such proposed sale or release, such net proceeds to be determined by deducting the Trust’s proportionate share of sales costs, commissions and brokerage fees, if any (based on the ratio of (a) the fair market value of the portion of the Royalty Interest being released to (b) the fair market value of the Underlying Properties being transferred including the value of the Royalty Interests being released).

 

Future Direct Hedges ” means oil derivative contracts that are entered into by the Trust after the Closing Date (i) upon the assignment, novation or other transfer of any of the SandRidge Hedge Contracts (or any portion thereof), or the replacement of SandRidge Hedge Contracts (or any portion thereof), in each case in accordance with the terms of the Derivatives Agreement, or (ii) in connection with the resetting, amendment or other modification of existing Direct Hedge Contracts at SandRidge’s request in its role as hedge manager and in accordance with the terms of the Administrative Services Agreement.

 

Incentive Distributions ” is defined in Section 3.15(a)(i)(D).

 

Incentive Threshold ” means, with respect to each Quarterly Period during the Subordination Period, the amount shown under the heading “Incentive Threshold” for such Quarterly Period on Schedule 2 or calculated in accordance with the formula set forth on Schedule 2.

 

Incremental Income Tax ” is defined in Section 3.17.

 

Indemnified Party ” is defined in Section 6.02(c).

 

Indemnifying Party ” is defined in Section 6.02(c).

 

Independent Reserve Engineers ” means Netherland Sewell & Associates, Inc., independent petroleum engineers, or any other petroleum engineering consultants employed by the Trust to provide information and reports with respect to the Royalty Interests.

 

Initial Common Units ” means the Common Units sold to the Underwriters on the Closing Date.

 

Initial Direct Hedges ” means those oil derivative contracts specified on Schedule 1 to this Agreement, which contracts are to be entered into by the Trust with counterparties at or promptly following the Closing.

 

Initial Trust Agreement ” means the Trust Agreement of SandRidge Mississippian Trust II, entered into and effective as of December 13, 2011, by and among SandRidge, the Bank and Corporation Trust.

 

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Kansas Drilling Mortgage ” means that certain Mortgage (Kansas) between SandRidge E&P, as Mortgagor, and the Trust, as Mortgagee, dated as of April 23, 2012, securing SandRidge’s and SandRidge E&P’s drilling obligation under the Development Agreement with respect to Underlying Properties in Kansas.

 

Kansas Perpetual Royalty Conveyances ” means, collectively, that certain Perpetual Overriding Royalty Interest Conveyance (Kansas) (PDP) and that certain Long-Term Overriding Royalty Interest Conveyance (Kansas) (Development), in each case, effective as of the Effective Time (as defined therein) between SandRidge E&P and the Trust and covering Underlying Properties in Kansas.

 

Kansas Term Royalty Conveyances ” means, collectively, that certain Term Overriding Royalty Interest Conveyance (Kansas) (PDP) and that certain Term Overriding Royalty Interest Conveyance (Kansas) (Development), in each case, effective as of the Effective Time (as defined therein) between SandRidge E&P and SandRidge Sub and covering Underlying Properties in Kansas.

 

Liquidation Date ” means December 31, 2031.

 

Oklahoma Drilling Mortgage ” means that certain Mortgage (Oklahoma) between SandRidge E&P, as Mortgagor, and the Trust, as Mortgagee, dated as of April 23, 2012, securing SandRidge’s and SandRidge E&P’s drilling obligation under the Development Agreement with respect to Underlying Properties in Oklahoma.

 

Oklahoma Perpetual Royalty Conveyances ” means, collectively, that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (PDP) and that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (Development), in each case, effective as of the Effective Time (as defined therein) between SandRidge E&P and the Trust and covering Underlying Properties in Oklahoma.

 

Oklahoma Term Royalty Conveyances ” means, collectively, that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (PDP) and that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (Development), in each case, effective as of the Effective Time (as defined therein) between SandRidge E&P and SandRidge Sub and covering Underlying Properties in Oklahoma.

 

Offer Notice ” is defined in Section 9.03(b).

 

Overallotment Option ” means the overallotment option granted to the Underwriters by the Trust pursuant to the Underwriting Agreement.

 

Overallotment Option Closing ” means any closing of the exercise of the Overallotment Option.

 

Overallotment Option Closing Date ” means the date on which any Overallotment Option Closing occurs.

 

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Overallotment Option Units ” means the Common Units sold to the Underwriters on the Overallotment Option Closing Dates (other than the Initial Common Units).

 

Perpetual Royalty Interests ” means the royalty interests conveyed to the Trust by the Perpetual Royalty Conveyances, which term is defined above under “Conveyances.”

 

Person ” means a natural person or an Entity.

 

Promissory Note ” is defined in Section 2.03(a)(i).

 

Prospectus ” means the final prospectus constituting a part of the Securities Act Registration Statement, as filed pursuant to Rule 424(b) of the Commission.

 

Quarterly Cash Distribution Amount ” means, for each Quarterly Period prior to the Liquidation Date, without duplication:

 

(a)                                  the sum of (i) all cash received by the Trust on or before the 45th calendar day following the end of a Quarterly Period under the Conveyances, the Derivatives Agreement and the Direct Hedge Contracts, plus (ii) all other cash receipts of the Trust received during such Quarterly Period (excluding Sales Proceeds Amounts), plus (iii) any cash released on or before the 45th calendar day following the end of such Quarterly Period from any cash reserve established in a prior Quarterly Period by the Trustee for the payment of liabilities, including contingent liabilities, of the Trust, plus (iv) any interest earned on cash reserves invested pursuant to Section 3.04 that is received by the Trust on or before the 45th calendar day following the end of such Quarterly Period, less

 

(b)                                  the sum of (i) all cash paid by the Trust on or before the 45th calendar day following the end of a Quarterly Period under the Derivatives Agreement and the Direct Hedge Contracts, plus (ii) all taxes and other liabilities of the Trust paid during such Quarterly Period, plus (iii) any cash added on or before the 45th calendar day following the end of such Quarterly Period to any cash reserve for the payment of liabilities, including contingent liabilities, of the Trust.

 

Quarterly Payment Date ” means, for each Quarterly Period prior to the Liquidation Date, the 60th day following the end of such Quarterly Period (or the Business Day next following such day if such day is not a Business Day).

 

Quarterly Period ” means each of the calendar quarters ending on the last day of March, June, September and December of each year.

 

Quarterly Record Date ” means, for each Quarterly Period prior to the Liquidation Date, the close of business on the 45th day following the end of such Quarterly Period (or the Business Day next following such day if such day is not a Business Day); or such other date established by the Trustee in order to comply with applicable law or the rules of any securities exchange or quotation system on which the Common Units may be listed or admitted to trading, in which event “ Quarterly Record Date ” means such other date.

 

Record Date Trust Unitholders ” is defined in Section 8.02 hereof.

 

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Registration Rights Agreement ” means the Registration Rights Agreement, dated as of April 23, 2012, by and between SandRidge and the Trust.

 

Respondent ” is defined in Section 11(c).

 

Responsible Officer ” means (a) with respect to the Delaware Trustee, any officer in the Corporate Staffing office of the Delaware Trustee having direct responsibility for the administration of this Agreement, and with respect to a particular corporate trust matter, any officer of the Delaware Trustee to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject, and (b) with respect to the Trustee, any officer in the Corporate Trust Administration office of the Trustee having direct responsibility for the administration of this Agreement, and with respect to a particular corporate trust matter, any officer of the Trustee to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.

 

Royalty Interests ” means, collectively, the Perpetual Royalty Interests and the Term Royalty Interests.

 

Rules ” is defined in Article XI.

 

Sales Proceeds Amounts ” means any cash paid to the Trust upon the sale of Royalty Interests or other assets of the Trust pursuant to Section 3.02 or Section 9.03 hereof after deduction of Trust expenses (including taxes) related to such sale or the establishment by the Trustee of cash reserves in such amounts as the Trustee in its discretion deems appropriate for contingent liabilities related thereto in accordance with Section 3808 of the Trust Act.

 

SandRidge ” is defined in the introductory paragraph to this Agreement.

 

SandRidge E&P ” is defined in the recitals to this Agreement.

 

SandRidge Hedge Contracts ” means those derivative contracts identified on Exhibit A to the Derivatives Agreement, as such contracts may be restructured, amended or modified from time to time in accordance with the Derivatives Agreement.

 

SandRidge Sub ” is defined in the recitals to this Agreement.

 

Sarbanes-Oxley Act ” means the Sarbanes-Oxley Act of 2002, as amended.

 

Securities Act ” means the Securities Act of 1933, as amended.

 

Securities Act Registration Statement ” means the Registration Statement on Form S-l and Form S-3 (Registration No. 333-178894) as it has been or as it may be amended or supplemented from time to time, filed by the Trust and SandRidge with the Commission under the Securities Act to register the offering and sale of the Common Units.

 

Special Provisions ” is defined in Article XI.

 

Special Reserve ” is defined in Section 3.07(b) of this Agreement.

 

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Special Unit Majority ” means (i) a majority of the Common Units (excluding Common Units owned by SandRidge and its Affiliates) present in person or by proxy at a meeting at which a quorum is present; provided , that, at any time when SandRidge and its Affiliates collectively own less than 10% of the outstanding Trust Units, “ Special Unit Majority ” means a majority of the Trust Units present in person or by proxy at a meeting at which a quorum is present. For the purposes of calculating a Special Unit Majority, abstentions and broker non-votes shall not be deemed to be a vote cast.

 

Sponsor Units ” is defined in Section 2.03(a)(ii) of this Agreement.

 

Subordinated Unit ” means a security of the Trust representing a subordinated proportionate share of the Beneficial Interest having the rights and obligations specified with respect to a Subordinated Unit in this Agreement.

 

Subordination Period ” means the period beginning January 1, 2012 and ending on the last day of the fourth full calendar quarter following the Drilling Obligation Completion Date; provided , that SandRidge has delivered to the Trustee a certificate executed by the Chief Executive Officer, President or any Vice President of SandRidge certifying that SandRidge’s drilling obligation under the Development Agreement was satisfied as of the Drilling Obligation Completion Date.

 

Subordination Threshold ” means, with respect to each Quarterly Period during the Subordination Period, the amount shown under the heading “Subordination Threshold” for such Quarterly Period on Schedule 2 or calculated in accordance with the formula set forth on Schedule 2.

 

Target Distribution ” means, with respect to each Quarterly Period during the Subordination Period, the amount shown under the heading “Target Distribution” for such Quarterly Period on Schedule 2.

 

Tax Provisions ” is defined in Section 5.05.

 

Term Royalty Interests ” means the royalty interests conveyed to SandRidge Sub by the (i) Term Royalty Conveyances, which term is defined above under “Conveyances” and (ii) the Assignments of Overriding Royalty Interest.

 

Transaction Documents ” means this Agreement, the Conveyances, the Development Agreement, the Administrative Services Agreement, the Derivatives Agreement, the Direct Hedge Contracts, the Collateral Agency Agreement, the Drilling Mortgages, the Registration Rights Agreement and the Underwriting Agreement.

 

Transferee ” means, as to any Trust Unitholder or former Trust Unitholder, any Person succeeding to the interest of such Trust Unitholder or former Trust Unitholder in one or more Trust Units, whether as purchaser, donee, legatee or otherwise.

 

Trust ” is defined in the recitals to this Agreement.

 

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Trust Act ” means the Delaware Statutory Trust Act, Title 12, Chapter 38 of the Delaware Code, Sections 3801 et seq., as amended from time to time during the term of this Agreement.

 

Trust Estate ” means the assets held by the Trust under this Agreement, including both income and principal.

 

Trust Units ” means Subordinated Units and Common Units, collectively.

 

Trust Unitholder ” means the owner of one or more Trust Units as reflected on the books of the Trust or a transfer agent designated by the Trustee.

 

Trustee ” means the Entity serving as the trustee (other than the Delaware Trustee) under this Agreement, not in its individual capacity but solely in its fiduciary capacity. Furthermore, any benefit, indemnity, release or protection granted to the Trustee herein shall extend to and shall be fully applicable and effective with regard to any Entity serving as Trustee, including, without limitation, the Bank.

 

Underlying Properties ” means the Subject Interests, Development Wells and Wells subject to the Royalty Interests, as “Subject Interests,” “Development Wells” and “Wells” are defined in the Conveyances.

 

Underwriters ” means each Person named as an underwriter in Schedule I to the Underwriting Agreement who purchases Common Units pursuant thereto.

 

Underwriting Agreement ” means the Underwriting Agreement, dated as of April 17, 2012, by and among the Underwriters, the Trust and SandRidge, providing for the purchase of the Initial Common Units and the Overallotment Option Units.

 

Unit Majority ” means  (i) a majority of the Common Units (excluding Common Units owned by SandRidge and its Affiliates) and (ii) a majority of the Trust Units, in each case present in person or by proxy at a meeting at which a quorum is present; provided , that, at any time when SandRidge and its Affiliates collectively own less than 10% of the outstanding Trust Units, “ Unit Majority ” means a majority of the Trust Units present in person or by proxy at a meeting at which a quorum is present. For the purposes of calculating a Unit Majority, abstentions and broker non-votes shall not be deemed to be a vote cast.

 

Section 1.02.                                        Rules of Construction .  Article, Section, subsection, Schedule and Annex references in this Agreement are references to the corresponding Article, Section, subsection, Schedule and Annex to this Agreement, unless otherwise specified.  All Schedules and Annexes attached to this Agreement constitute a part of this Agreement and are incorporated herein for all purposes.  If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb).  Unless the context of this Agreement clearly requires otherwise, the singular shall include the plural and the plural shall include the singular wherever and as often as may be appropriate.  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 “includes” or

 

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“including” shall mean “including but not limited to” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.  Any reference in this Agreement to “$” or “dollars” shall mean the lawful currency of the United States of America.  When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded.  If the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day.  The words “hereof,” “hereby,” “herein,” “hereinafter,” “hereof,” “hereunder” and similar terms refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.  All accounting terms or calculations used or made herein shall be in accordance with the generally accepted accounting principles of the United States. The provision of a table of contents and the division of this Agreement into Articles, Sections and other subdivisions are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement.

 

ARTICLE II
NAME AND PURPOSE OF THE TRUST; DECLARATION OF TRUST

 

Section 2.01.                                        Name; Certificate of Trust. The Trust continued by this Agreement shall remain a Delaware statutory trust under the Trust Act. The Trust shall continue to be known as the SandRidge Mississippian Trust II, and the Trustee may transact the Trust’s affairs in that name. The continuation and operation of the Trust shall be in accordance with this Agreement, which shall constitute the “governing instrument” of the Trust within the meaning of Section 3801(f) of the Trust Act. In the event that a Responsible Officer of either the Delaware Trustee or the Trustee becomes aware that any statement contained or matter described in the Trust’s Certificate of Trust has changed, making it false in any material respect, it will notify the other trustee and the Delaware Trustee shall promptly file or cause to be filed in the office of the Secretary of State of Delaware an amendment of same at the written direction of the Trustee, duly executed in accordance with Section 3811 of the Trust Act, in order to effect such change thereto, such filing to be in accordance with Section 3810(b) of the Trust Act.

 

Section 2.02.                                        Purpose. The purposes of the Trust are, and the Trust shall have the power and authority and is hereby authorized:

 

(a)                                  to acquire and hold in the name of the Trust, and to protect and conserve, the Trust Estate for the benefit of the Trust Unitholders;

 

(b)                                  to receive and hold the Royalty Interests, and the other assets of the Trust Estate in the name of the Trust;

 

(c)                                   to issue the Subordinated Units, the Sponsor Units, the Initial Common Units and the Overallotment Option Units on the Closing Date, to hold the Overallotment Option Units in escrow and to deliver the Overallotment Option Units in accordance with Section 2.03 of this Agreement;

 

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(d)                                  to receive payments with respect to the Royalty Interests as provided in the Conveyances;

 

(e)                                   to receive and make payments with respect to the Direct Hedge Contracts and the Derivatives Agreement, as provided in the Direct Hedge Contracts and the Derivatives Agreement, respectively;

 

(f)                                    to grant liens on the Royalty Interests and other assets of the Trust Estate to secure the Trust’s obligations under the Direct Hedge Contracts or as otherwise permitted by the Direct Hedge Contracts and Collateral Agency Agreement, and to enter into and perform its obligations under the Collateral Agency Agreement and the Direct Hedge Security Instruments;

 

(g)                                   to enter into and perform its obligations under the Initial Direct Hedges, and to enter into and perform its obligations under Future Direct Hedges, as contemplated by Section 2.03(d) hereof and in accordance with the Derivatives Agreement and/or the Administrative Services Agreement;

 

(h)                                  to reset, terminate, modify or otherwise amend the Direct Hedge Contracts (or any portion thereof) when requested to do so by SandRidge in its capacity as hedge manager pursuant to the Administrative Services Agreement;

 

(i)                                      to invest cash reserves as provided in Section 3.04;

 

(j)                                     to pay, or provide for the payment of, any liabilities incurred in carrying out the purposes of the Trust, including, but not limited to, any taxes that may be payable by the Trust;

 

(k)                                  to distribute the Quarterly Cash Distribution Amount and any Sales Proceeds Amounts in accordance with Section 3.15;

 

(l)                                      to incur indebtedness in order to pay the liabilities of the Trust as they become due, if necessary; provided , that any such indebtedness shall be unsecured except (i) as provided in Section 7.03 and (ii) as permitted under the Direct Hedge Contracts and the Collateral Agency Agreement;

 

(m)                              to sell Royalty Interests in accordance with Sections 3.02, 9.02 and 9.03;

 

(n)                                  to enter into, execute, deliver and perform its obligations and enforce its rights under the Transaction Documents to which it is a party and to engage SandRidge as the hedge manager for the Trust pursuant to the Administrative Services Agreement and to rely on SandRidge for such services and all other services to be provided by SandRidge pursuant to the Administrative Services Agreement;

 

(o)                                  to cause to be prepared and file (i) reports required to be filed under the Exchange Act, (ii) any reports required by the rules of any securities exchange or quotation system on which the Trust Units are listed or admitted to trading, and (iii) any reports, forms or returns required to be filed pursuant to tax laws and other applicable laws and regulations;

 

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(p)                                  to establish, evaluate and maintain a system of disclosure controls and procedures and internal control over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act;

 

(q)                                  to conduct or wind up its business as described in the Securities Act Registration Statement; and

 

(r)                                     to engage in such other activities as are necessary or convenient for the attainment of any of the foregoing or are incident thereto and which may be engaged in or carried on by a statutory trust under the Trust Act.

 

Section 2.03.                                            Trust Property.

 

(a)                                  Upon the formation of the Trust, SandRidge paid good and valuable consideration to the Trust, in trust, for the uses and purposes provided in the Initial Trust Agreement and in this Agreement. At (and subject to the occurrence of) the Closing (or, in the case of the transactions described in clause (x) below, promptly following the Closing) the following transactions will occur:

 

(i)                                      SandRidge E&P shall convey to SandRidge Sub the Term Royalty Interests in exchange for a promissory note from SandRidge Sub in the amount of $481,637,520 (the “ Promissory Note ”);

 

(ii)                                   SandRidge E&P shall convey to the Trust the Perpetual Royalty Interests in exchange for 7,393,750 Common Units (the “ Sponsor Units ”) and 12,431,250 Subordinated Units to be issued to SandRidge E&P;

 

(iii)                                the Trust shall issue the Initial Common Units to the Underwriters for the cash consideration and on the terms set forth in the Underwriting Agreement;

 

(iv)                               SandRidge Sub shall convey to the Trust, pursuant to the Assignments of Overriding Royalty Interest, the Term Royalty Interests in exchange for $481,637,520 in cash;

 

(v)                                  SandRidge Sub shall pay to SandRidge E&P $481,637,520 in cash, representing payment in full of the Promissory Note;

 

(vi)                               the Trust shall deliver the balance of the cash consideration received from the Underwriters for the Initial Common Units (less the cash payment made by the Trust to SandRidge Sub under clause (iv) above) to SandRidge E&P as partial consideration for the Perpetual Royalty Interests;

 

(vii)                            the Trust shall issue 3,900,000 Overallotment Option Units and the Trustee shall hold the Overallotment Option Units in escrow pending either the Underwriters’ exercise of the Overallotment Option or the expiration of the Overallotment Option, following which the Overallotment Option Units will be delivered by the Trustee in accordance with Section 2.03(b) of this Agreement;

 

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(viii)                         SandRidge and the Trust shall enter into the Derivatives Agreement, the Administrative Services Agreement and the Registration Rights Agreement;

 

(ix)                               SandRidge, SandRidge E&P and the Trust shall enter into the Development Agreement;

 

(x)                                  The Trust shall enter into the Initial Direct Hedges and the Collateral Agency Agreement; and

 

(xi)                               SandRidge E&P shall enter into the Drilling Mortgages for the benefit of the Trust.

 

(b)                                  The Overallotment Option Units will be delivered as follows:

 

(i)                                      If the Overallotment Option is exercised, partially or in full, in accordance with its terms by the Underwriters, on an Overallotment Option Closing Date the Trust will sell to the Underwriters such number of the Overallotment Option Units as is necessary to satisfy the Overallotment Option, and the Trust will promptly convey the proceeds received by it from the sale of the Overallotment Option Units, net of underwriting discounts and commissions and offering expenses, to SandRidge E&P, together with any remaining unsold Overallotment Option Units, as partial consideration for the Perpetual Royalty Interests conveyed by SandRidge E&P to the Trust; and

 

(ii)                                   If the Overallotment Option is not exercised by the Underwriters within 30 days of the date of the Underwriting Agreement, the Trustee shall deliver the Overallotment Option Units held by the Trustee in escrow to SandRidge E&P as partial consideration for the Perpetual Royalty Interests conveyed by SandRidge E&P to the Trust, promptly following the 30th day after the date of the Underwriting Agreement.

 

(c)                                   The issuance of the Initial Common Units, the Overallotment Option Units, the Sponsor Units and the Subordinated Units is hereby duly authorized and, upon issuance, such Trust Units shall be duly and validly issued and outstanding and, upon receipt by the Trust at the Closing or the Overallotment Option Closing of the consideration described above, the Trust Units will be fully paid and nonassessable without the requirement of any further consideration.

 

(d)                                  From time to time after the Closing Date, at SandRidge’s request, the Trust shall enter into Future Direct Hedges in accordance with the terms of the Derivatives Agreement, or in connection with the resetting, amendment or other modification of an existing Direct Hedge Contract in accordance with the terms of the Administrative Services Agreement, as directed by SandRidge.

 

Section 2.04.                                        Creation of the Trust. The Trustee declares that it shall hold the Trust Estate in trust for the benefit of the Trust Unitholders, upon the terms and conditions set forth in this Agreement. As set forth above and amplified herein, the Trust is intended to be a passive entity limited to the receipt of revenues attributable to the Royalty Interests, the Derivatives Agreement and the Direct Hedge Contracts and the distribution of such revenues, after payment of or provision for Trust expenses and liabilities, to the Trust Unitholders. It is not the intention of the parties hereto to create, and nothing in this Agreement shall be construed as creating, for

 

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purposes other than tax purposes, a joint venture, joint stock company or similar business association, between or among Trust Unitholders, present or future, or between or among Trust Unitholders, or any of them, the Delaware Trustee, the Trustee, SandRidge, SandRidge E&P or SandRidge Sub. Neither the Trustee nor the Delaware Trustee, in its individual capacity, or otherwise, makes any representation as to the validity or sufficiency of this Agreement.

 

Section 2.05.                                        Principal Offices. Unless and until changed by the Trustee, the address of the principal office of the Trustee is 919 Congress Avenue, Suite 500, Austin, Texas 78701. Unless and until changed by the Delaware Trustee, the principal place of business of the Delaware Trustee is 1209 Orange Street, Wilmington, Delaware 19801, Attention: Corporate Staffing. The Trust may maintain offices at such other place or places within or without the State of Delaware as the Trustee deems advisable.

 

ARTICLE III
ADMINISTRATION OF THE TRUST AND POWERS OF THE TRUSTEE
AND THE DELAWARE TRUSTEE

 

Section 3.01.                                        General Authority.

 

(a)                                  The Trustee accepts the trust hereby continued and agrees to perform its duties hereunder with respect to the same, but only upon the express terms of this Agreement. Subject to the limitations set forth in this Agreement, the Trustee, acting alone, without the approval or consent of, or notice to, the Delaware Trustee or any Trust Unitholder, is authorized to take such action as in its judgment is necessary, desirable or advisable to best achieve the purposes and powers of the Trust set forth in Section 2.02 hereof, including the execution and delivery of the Transaction Documents and the performance of the Trust’s obligations and enforcement of the Trust’s rights thereunder. The Trustee shall not (i) dispose of any part of the Trust Estate except as expressly provided herein or (ii) except as permitted by Section 10.02 of this Agreement, agree to amend or waive any provision of, give any consent or release with respect to, or terminate the Transaction Documents to which the Trust is a party without the Trust Unitholder approval, if any, required by Section 10.02.  The Trustee shall perform all obligations and duties of a trustee of the Trust other than fulfilling the Trust’s obligations pursuant to Section 3807(a) of the Trust Act.

 

(b)                                  The Delaware Trustee accepts the Trust hereby continued and agrees to perform its duties hereunder with respect to the same, but only upon the express terms of this Agreement. The Delaware Trustee is authorized to take only such actions, and shall be required to perform only such duties and obligations, with respect to the Trust as are specifically set forth in this Agreement, and no implied duties, obligations or powers shall be read into this Agreement in respect to the Delaware Trustee (including, without limitation, that no action requested of the Delaware Trustee shall require the performance of any investigation, analysis, or other due diligence activities by the Delaware Trustee in respect of such action or the performance of its duties on behalf of the Trust generally). Furthermore, the Delaware Trustee shall not have any duty or obligation to take or refrain from taking any action under, or in connection with, any document contemplated hereby to which the Delaware Trustee is a party, except as expressly provided in this Agreement.

 

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(c)                                   The Delaware Trustee is serving the Trust solely to fulfill the Trust’s obligation pursuant to Section 3807(a) of the Trust Act to have at least one trustee who has its principal place of business in the State of Delaware.  Notwithstanding any other provision of this Agreement, unless specifically authorized in writing by the Trustee and consented to by the Delaware Trustee, the Delaware Trustee shall not participate in any decisions or possess any authority with respect to the administration of the Trust, the investment of the Trust’s property or the payment of distributions of income or principal to the Trust Unitholders. The Delaware Trustee shall have the power and authority to (i) execute, deliver, acknowledge and file all necessary documents and to maintain all necessary records of the Trust as required by the Trust Act and (ii) accept service of process on the Trust in the State of Delaware. The Delaware Trustee shall provide prompt written notice to the Trustee of its performance of any of the foregoing acts. The Trustee shall reasonably keep the Delaware Trustee informed of any material action taken by the Trustee with respect to the Trust.

 

Section 3.02.                                        Limited Power of Disposition of the Trust.   Except as provided in Sections 9.02 and 9.03, the Trustee may sell all or part of the Royalty Interests only in the following circumstances.

 

(a)                                  An election by the Trustee to sell all or part of the Trust Estate, at any time and from time to time, that is approved by the holders of a Unit Majority at a meeting duly called and held in accordance with Article VIII, subject to SandRidge’s right of first refusal as provided in Section 9.03 of this Agreement.

 

(b)                                  After the Drilling Obligation Completion Date, SandRidge (and any of its Affiliates) may at any time, and from time to time sell, but only in accordance with the terms of the Conveyances, a divided or undivided portion of its interests in the Underlying Properties, free from and unburdened by the Royalty Interests, without the consent of the Trustee or the Trust Unitholders except as set forth below; provided the following conditions are met:

 

(i)                                      the Trust receives Fair Value in the form of cash for the Royalty Interests to be released by the Trustee in connection with the sale of the Underlying Properties;

 

(ii)                                   the aggregate Fair Value to be received by the Trust with respect to such Royalty Interests to be released by the Trustee and any other Royalty Interests previously released by the Trustee pursuant to this Section 3.02(b) during the most recently completed 12 calendar months would not exceed $5,000,000; and

 

(iii)                                the Trustee shall have received (A) in the event that the gross purchase price to be received by SandRidge for the sale of Underlying Properties in a single transaction or a series of related transactions is less than $5,000,000, a certificate from SandRidge, executed by the Chief Executive Officer, President or any Vice President thereof, certifying to the Trustee and the Trust that the cash proceeds to be received by the Trust in respect of the Royalty Interests to be released in connection with the sale of such Underlying Properties represents the Fair Value to the Trust for such Royalty Interests (and the Trustee is hereby authorized and directed to rely thereon) or (B) in the event that the gross purchase price to be received by SandRidge for the sale of Underlying Properties in a single transaction or a series of related transactions is more

 

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than $5,000,000, at the expense of SandRidge, an appraisal of such Underlying Properties from an independent appraiser in the business of evaluating or appraising oil and/or natural gas properties selected by mutual agreement of SandRidge and the Trustee, which appraisal confirms that the cash proceeds to be received by the Trust in respect of the Royalty Interests to be released in connection with the sale of such Underlying Properties represents the Fair Value to the Trust for the Royalty Interests to be released by the Trust in connection therewith (and the Trustee is hereby authorized and directed to rely thereon). Notwithstanding the foregoing, any sale of Underlying Properties pursuant to this Section 3.02(b), in a single transaction or a series of related transactions, where the gross purchase price to be received by SandRidge is greater than $5,000,000 shall require approval by the vote of a Unit Majority.

 

(c)                                   In the event that a portion of the Royalty Interests is to be released pursuant to Section 3.02(b) of this Agreement, upon receipt of (i) an accurate description of said portion of the Royalty Interests and (ii) sufficient information to evidence conclusively that the conditions to purchase referred to in Section 3.02(b) and in the applicable section of the Conveyances have been satisfied, then within a reasonable time thereafter, and upon advice of such experts as may be retained by the Trustee with the written consent of SandRidge, the Trustee shall execute and deliver a conveyance to SandRidge or its assignee covering said Royalty Interests and upon receipt of written notice of such a sale given by SandRidge, the Trustee shall execute and deliver at the closing of such sale a partial release and consent, and such other instruments, agreements and documents as SandRidge may reasonably request, to evidence or effect the transfer of such portion of SandRidge’s interests in the Underlying Properties, free from, and unburdened by, the Royalty Interests. Except as provided herein, any other sale of all or any portion of the Underlying Properties will not relieve SandRidge of its obligations with respect to the Royalty Interests.

 

(d)                                  In addition to the transfers permitted by Section 3.02(b) and subject to the terms of the Conveyances, SandRidge (and any of its Affiliates) may at any time or from time to time after the Drilling Obligation Completion Date, without the consent of the Trust Unitholders, sell a divided or undivided portion of its interest in the Underlying Properties, provided , however , that such sale is subject to and burdened by the Royalty Interests that burden such portion of SandRidge’s (or such Affiliate’s) interest. Promptly after completion of any such sale, SandRidge shall so notify the Trustee in writing. Any purchaser of such Underlying Properties shall be the assignee of SandRidge (or such Affiliate) to the extent of the interest sold and shall be bound by the obligations of SandRidge (or such Affiliate) under this Agreement and the Conveyances to such extent.

 

(e)                                   Subject to the terms of the Development Agreement, SandRidge may, at its option at any time prior to the Drilling Obligation Completion Date, cause the Trust to execute, acknowledge and deliver to SandRidge a recordable instrument (reasonably acceptable to SandRidge) that releases from the Royalty Interests and each Conveyance portions of the Subject Interests (as defined in the Development Agreement) in connection with SandRidge’s (or any of SandRidge’s Affiliate’s) exchange of such Subject Interests for certain other properties. Such other properties shall then become part of the Royalty Interests pursuant to the Conveyances. However, any such exchange of properties shall be subject to the conditions set forth in the Development Agreement. The Trustee shall accept any such certification from SandRidge and

 

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any such exchange of Subject Interests for other properties as contemplated by this subsection 3.02(e) without any duty to investigate or otherwise review or pass upon the accuracy of any such certification or reasonableness of any such exchange. The Trustee is authorized and directed to rely, and shall be fully protected in relying, on any such certification from SandRidge.

 

(f)                                    Subject to the terms of the Development Agreement and the Drilling Mortgages, if SandRidge does not achieve the Total Drilling Target (as defined in the Development Agreement) on or prior to December 31, 2016 in accordance with the terms of the Development Agreement, the Trust is authorized, in the Trustee’s sole discretion, to pursue any and all remedies available to it pursuant to Article III of the Drilling Mortgages for the occurrence of a default under Section 3.1(a) of the Drilling Mortgages, and any Mortgaged Properties (as such term is defined (including the limitations and exclusions in such definition) in the Drilling Mortgages) acquired by the Trust as a result of the exercise of any such remedies shall automatically be added to the Trust Estate.  The Trust is further authorized, in the Trustee’s sole discretion, to (i) exercise any of the remedies available under the Drilling Mortgages, (ii) negotiate any arrangements with SandRidge and SandRidge E&P in connection with any default under the Drilling Mortgages, (iii) negotiate and consummate the sale of any of the Mortgaged Properties as contemplated by the Drilling Mortgages, and (iv) negotiate, execute and deliver an agreement with another person to complete all or a portion of the Total Drilling Target, and the Trust may, in connection with any such agreement, sell or transfer such portion of the Trust Estate as is reasonably required to compensate such person to complete such portion of the Total Drilling Target.  For the avoidance of doubt, no sale or transfer of any portion of the Trust Estate pursuant to this Section 3.02(f) shall require the approval of the Trust Unitholders.

 

(g)                                   Anything herein to the contrary notwithstanding, the Trustee shall not agree to any distribution of the Royalty Interests or any other asset of the Trust that would cause the interest of a Trust Unitholder to be treated as other than an intangible personal property interest. Unless required to sell pursuant to this Section 3.02, or pursuant to Section 9.03 hereof, or to distribute the Quarterly Cash Distribution Amount or Sales Proceeds Amount pursuant to Section 3.15 hereof, the Trustee is authorized to retain any part of the Trust Estate in the form in which such property was transferred to the Trustee, without regard to any requirement to diversify investments or other requirements.

 

Section 3.03.                                        No Power to Engage in Business or Make Investments or Issue Additional Securities. Neither the Trustee nor the Delaware Trustee shall cause or permit the Trust to (a) acquire any asset other than the assets conveyed or transferred to the Trust pursuant to Section 2.03 or Section 3.02(e), the rights of the Trust to enforce the terms and provisions of the Transaction Documents to which it is a party, and other amounts paid to the Trust as set forth herein, or (b) engage in any business or investment activity of any kind whatsoever, except for the activities permitted herein or issue Trust Units or other securities after the Closing Date (except that the Trustee may deliver the Overallotment Option Units in accordance with Section 2.03(b) of this Agreement). Neither the Trustee nor the Delaware Trustee shall have any responsibility or authority relating to the development or operations of the Underlying Properties or the marketing of any production therefrom or, except as contemplated hereby, any other business decision affecting the assets of the Trust.

 

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Section 3.04.                                        Interest on Cash Reserves. Cash being held by the Trustee as a reserve for a payment of the Quarterly Cash Distribution Amount or Sales Proceeds Amounts or for the payment of any liabilities, other than current routine administrative costs, shall be placed by the Trustee with one or more banks or financial institutions (which, to the extent to which authorized pursuant to the Trust Act and other applicable laws, may be, or may include, any bank serving as the Trustee or the Delaware Trustee) and invested in (a) money market funds that invest only in United States government obligations, (b) interest bearing obligations issued by (or unconditionally guaranteed by) the United States of America or any agency or instrumentality thereof (provided such agency or instrumentality obligations are guaranteed by the full faith and credit of the United States of America), (c) repurchase agreements secured by obligations qualifying under (b) above or (d) certificates of deposit of any bank or banks having combined capital, surplus and undivided profits in excess of $100,000,000 that, in the case of (b), (c) and (d) above, mature prior to the date on which such Quarterly Cash Distribution Amount or any Sales Proceeds Amount is to be distributed or any such liability is to be paid; provided , however , that cash reserves being held by the Trustee for payment of the Quarterly Cash Distribution Amount or Sales Proceeds Amount on the next Quarterly Payment Date may be held in a non-interest bearing account or accounts.  Any government obligation, repurchase agreement or certificate of deposit held by the Trustee shall be held until maturity. The interest rate on reserves placed with any bank or financial institution serving as the Trustee or the Delaware Trustee shall be the interest rate that such bank pays in the normal course of business on amounts placed with it, taking into account the amount involved, the period held and other relevant factors. Subject to Section 6.01, the Trustee shall not be liable for its selection of permitted investments or for any investment losses resulting from such investments. Notwithstanding anything herein to the contrary, the Delaware Trustee shall not be obligated to accept any such cash or other assets for investment or otherwise. To the extent that the Delaware Trustee decides in its sole and absolute discretion to accept cash for investment pursuant to this Section 3.04, the Delaware Trustee shall invest such cash pursuant to the written instructions of the Trustee, and the Delaware Trustee shall not be liable to the Trust for any losses resulting from such investments absent its own fraud or acts or omissions in bad faith, or which constitute willful misconduct or gross negligence.

 

Section 3.05.                                        Power to Settle Claims. Subject to the rights and obligations of the Tax Matters Partner under Subsection 6(c) of Annex A hereto, the Trustee is authorized to prosecute or defend, and to settle by arbitration or otherwise, any claim of or against the Trustee, the Trust or the Trust Estate, to waive or release rights of any kind, to settle any dispute with SandRidge or any other Person, and to pay or satisfy any debt, tax or claim upon any evidence by it deemed sufficient, without the joinder or consent of any Trust Unitholder, including enforcing the rights of the Trust under the Transaction Documents to which it is a party. The Trust Unitholders shall have no power to prosecute any claim of the Trust or the Trust Estate against any Person other than to prosecute a claim to compel performance by the Trustee on behalf of the Trust or the Trust Estate.

 

Section 3.06.                                        Power to Contract for Services. In the administration of the Trust, the Trustee is empowered to employ oil and natural gas consultants (which may include the Independent Reserve Engineers), accountants (with the consent of SandRidge, which consent shall not be unreasonably withheld or delayed), attorneys (who may, but need not, be counsel to SandRidge) and other professional and expert Persons, to employ or contract for clerical and

 

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other administrative assistance (including assistance from SandRidge), to delegate to Agents any matter, whether ministerial or discretionary, and to act through such Agents and to make payments of all fees for services or expenses in any manner thus incurred out of the Trust Estate.

 

Section 3.07.                                        Payment of Liabilities of Trust.

 

(a)                                  Except as otherwise provided herein, the Trustee may and shall use all money received by it for the payment or reimbursement of all liabilities of the Trust, including but without limiting the generality of the foregoing, all expenses, taxes, compensation to it for its services hereunder, as provided for in Article VII, and compensation to such parties as may be employed as provided for in Section 3.06 hereof. With respect to any liability that is contingent or uncertain in amount or any anticipated liability that is not currently due and payable, the Trustee may, but is not obligated to, establish a cash reserve for the payment of such liability.  Except to the extent permitted under applicable law, the Trustee shall not pay any liability of the Trust with funds set aside for the payment of a Quarterly Cash Distribution Amount or Sales Proceeds Amount; provided , however , that this provision shall have no application to any exercise of rights by a creditor of the Trust, including any such exercise of rights that results in any such creditor taking control of funds held by the Trust, including any such funds set aside for the payment of a Quarterly Cash Distribution Amount or Sales Proceeds Amount, and the Trustee shall incur no liability for any such action by any such creditor.

 

(b)                                  The Trustee shall be entitled to withhold up to $1.0 million from the Quarterly Cash Distribution Amount for the Quarterly Period ending March 31, 2012 to establish a cash reserve (the “ Special Reserve ”) available to the Trustee to pay or reimburse liabilities and expenses of the Trust, if and to the extent that the Trust’s cash on hand is insufficient to pay such liabilities and expenses as they become due. If at any time the cash on hand (including the Special Reserve and any other cash reserves) and to be received by the Trustee and available to pay liabilities is not, or will not be, in the judgment of the Trustee, sufficient to pay liabilities of the Trust as they become due, the Trustee is authorized to cause the Trust to borrow the funds required to pay such liabilities. The Trustee may cause the Trust to borrow funds for such purpose from any Person, including, without limitation, the Bank while serving as Trustee or any other Entity serving as a fiduciary hereunder, on an unsecured basis only; provided , however , that neither the Bank nor any other Entity shall be required to make any such loan. Under no circumstances shall the Trustee or the Delaware Trustee be personally liable for any indebtedness or other liability of the Trust. If such funds are loaned to the Trust by the Trustee or any other such Entity while the Trustee or such other Entity is serving as a fiduciary hereunder, the terms of such indebtedness shall be similar to the terms which the Trustee or such other Entity would grant to a similarly situated commercial customer with whom it did not have, directly or indirectly, a fiduciary relationship, and the Trustee or such other Entity shall be entitled to enforce its rights with respect to any such indebtedness as if it were not, directly or indirectly, and had never been, directly or indirectly, the Trustee or a fiduciary hereunder.

 

(c)                                   If at any time the Trust’s cash on hand (including available cash reserves) is insufficient to pay the Trust’s ordinary course administrative expenses as they become due, SandRidge will, upon written request of the Trustee, loan funds to the Trust in such amount as the Trustee certifies is necessary to pay such Trust expenses. Any funds loaned by SandRidge

 

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pursuant to this Section 3.07(c) shall be limited to the payment of the Trust’s current accounts payable or other obligations to trade creditors in connection with obtaining goods or services or the payment of other Trust accrued current liabilities arising in the ordinary course of the Trust’s business, and shall not be used to satisfy any indebtedness of the Trust. Any loan made by SandRidge to the Trust pursuant to this Section 3.07(c) shall: (i) be evidenced by a written promissory note executed by the Trustee on behalf of the Trust, (ii) be on an unsecured basis, (iii) have a maturity date no later than the Liquidation Date, (iv) have terms (including interest rate) that are no less favorable to SandRidge as those that would be obtained in an arms’ length transaction between SandRidge and an unaffiliated third party; and (v) be without recourse to the Trustee and the Bank, it being agreed that any such note shall be payable solely out of the assets of the Trust.

 

(d)                                  In the event that the Trustee uses funds from the Special Reserve, or causes the Trust to borrow funds, in each case to pay or reimburse liabilities and expenses of the Trust, no further distributions will be made to Trust Unitholders (except in respect of any previously determined Quarterly Cash Distribution Amount or Sales Proceeds Amount) until the Special Reserve is fully replenished and any indebtedness created by such borrowings, including interest thereon, has been paid in full; provided , that only in the case of loans made by SandRidge pursuant to Section 3.07(c), distributions may be made to Trust Unitholders before such loan has been paid in full if SandRidge consents in writing to the making of such distribution.

 

(e)                                   No provision of this Trust Agreement shall require either the Delaware Trustee, the Trustee or any other Entity serving as a fiduciary hereunder, to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers. In any event, the Trustee and the Delaware Trustee or any other Entity serving as fiduciary hereunder, shall be indemnified and held harmless by SandRidge in accordance with Section 6.02 of this Trust Agreement for any liability incurred in the performance of any of its duties hereunder. In no event shall the Trustee be responsible for the payment of any Quarterly Cash Distribution Amount or Sales Proceeds Amount or other amount except to the extent that it has sufficient cash on hand on behalf of the Trust to make such payment.

 

Section 3.08.                                        Income and Principal. The Trustee shall not be required to keep separate accounts or records for income and principal. However, if the Trustee does keep such separate accounts or records, then the Trustee is authorized to treat all or any part of the receipts from the Royalty Interests or the Derivatives Agreement as income or principal, without having to maintain any reserve therefor, and in general to determine all questions as between income and principal and to credit or charge to income or principal or to apportion between them any receipt or gain and any charge, disbursement or loss as is deemed advisable under the circumstances of each case.

 

Section 3.09.                                        Term of Contracts. In exercising the rights and powers granted hereunder, the Trustee is authorized to make the term of any transaction or contract or other instrument extend beyond the term of the Trust to the extent necessary to fulfill its obligations under this Agreement.

 

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Section 3.10.                                        Transactions with the Trustee or the Delaware Trustee. To the extent such conduct is not prohibited by applicable law and except as otherwise provided herein, each of the Trustee and the Delaware Trustee is authorized in exercising its powers under this Agreement to make contracts and have dealings with itself or its Affiliates, directly and indirectly, in any other fiduciary or individual capacity.

 

Section 3.11.                                        No Security Required. No Trustee hereunder shall be required to furnish any bond or security of any kind.

 

Section 3.12.                                        Filing of Securities Act Registration Statement, Exchange Act Registration Statement and Other Reports, Listing of Trust Units, etc.; Certain Fees and Expenses.

 

(a)                                  The Trustee, on behalf of the Trust and acting upon the advice of counsel, shall cause the Trust to comply with all applicable rules, orders and regulations of the Commission and the national securities exchange on which the Common Units are listed or admitted for quotation, to which the Trust is subject as a result of the Common Units being registered under the Exchange Act and listed or admitted for quotation on such national securities exchange, and to take all such other reasonable actions necessary for the Common Units to remain registered under the Exchange Act and listed on such national securities exchange until the Trust is terminated. In addition, the Trustee is authorized to make, and the Trustee shall take, all actions to prepare and, to the extent required by this Agreement or by law, mail to Trust Unitholders any reports, press releases or statements, financial or otherwise, that the Trustee determines are required to be provided to Trust Unitholders by applicable law or governmental regulation or the requirements of any securities exchange or quotation system on which the Trust Units are listed or admitted to trading. In addition, the Trustee, on behalf of the Trust and acting upon the advice of counsel, shall cause the Trust to comply with all of the provisions of the Sarbanes-Oxley Act and the rules and regulations of the Commission related thereto, including but not limited to, establishing, evaluating and maintaining a system of disclosure controls and procedures and internal control over financial reporting and making all required certifications pursuant to the Sarbanes-Oxley Act and the rules and regulations of the Commission.

 

(b)                                  The Trustee shall execute, by and on behalf of the Trust, any documents incidental or related to the objectives specified in Section 3.12(a).

 

(c)                                   The Trust is hereby authorized and empowered to take all steps, make all filings and applications and pay all fees necessary, customary or appropriate to the accomplishment of the objectives set forth in Section 3.12(a).

 

(d)                                  Except as otherwise provided in Article VI of this Agreement, the fees, charges, expenses, disbursements and other costs incurred by the Trustee or the Delaware Trustee in connection with the discharge of its duties pursuant to this Agreement, including, without limitation, trustee fees, engineering, audit, accounting and legal fees, printing and mailing costs, amounts reimbursed or paid to SandRidge pursuant to Section 3.06 or Section 7.02 hereof, and the fees and expenses of legal counsel for the Trustee, the Delaware Trustee, and the Trust (including legal fees and expenses incurred by the Trustee or the Delaware Trustee in connection with the formation of the Trust and issuance of Trust Units), shall be paid out of the Trust Estate

 

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as an administrative expense of the Trust; provided , however , that the Trustee’s and the Delaware Trustee’s acceptance fees shall, to the extent previously paid by SandRidge, be reimbursed to SandRidge. All other organizational expenses of the Trust will be paid by SandRidge, and SandRidge shall not be entitled to reimbursement thereof.

 

Section 3.13.                                        Reserve Report. The Trustee shall cause a reserve report to be prepared by or for the Trust by the Independent Reserve Engineers as of December 31 of each year in accordance with criteria established by the Commission showing estimated proved oil and natural gas reserves attributable to the Royalty Interests as of December 31 of such year and other reserve information required to comply with Section 5.03 of this Agreement. SandRidge, to the extent it is the operator of the Underlying Properties, shall use commercially reasonable efforts to cooperate with the Trust and the Independent Reserve Engineers in connection with the preparation of any such reserve report, and to the extent it is not operator of the Underlying Properties and has not sold its interest in the same pursuant to Section 3.02(d), shall use commercially reasonable efforts to obtain and provide to the Trustee and the Independent Reserve Engineers such information as may be reasonably necessary in connection with the preparation of the reserve report. The Trustee and SandRidge shall use commercially reasonable efforts to cause each reserve report prepared pursuant to this Section 3.13 to be completed and delivered to them within 30 days after the effective date of the report or such shorter period as may be required to enable the Trustee to comply with the provisions of Section 5.03.

 

Section 3.14.                                        No Liability for Recordation . SandRidge shall be solely responsible, and the Trustee and the Delaware Trustee shall have no responsibility, for the filing of the Conveyances, the Drilling Mortgages in the real property records of any jurisdiction in which the Underlying Properties are located. Neither the Trustee, the Delaware Trustee, the Bank nor any of their respective Agents shall be liable to the Trust Estate or any Trust Unitholder for any loss, claim or damage resulting from, or arising out of, the failure to file, or failure to properly file, the Conveyances and the Drilling Mortgages in any real property records of any jurisdiction. SandRidge shall deliver file-stamped copies of such documents showing the recording information to the Trustee reasonably promptly after recording such documents.

 

Section 3.15.                                        Quarterly Cash and Other Distributions.

 

(a)                                  On or before each Quarterly Payment Date, the Trustee shall pay the Quarterly Cash Distribution Amount in respect of the Quarterly Period to which such Quarterly Payment Date relates, regardless of the source or character of the assets to be distributed, in the following order of priority:

 

(i)                                      During the Subordination Period:

 

(A)                                First, 100% to the Common Unitholders on a pro rata basis with respect to each Common Unit until there has been distributed with respect to each Common Unit for such quarterly period an amount equal to the Subordination Threshold for such Quarterly Period;

 

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(B)                                Second, 100% to the Subordinated Unitholders on a pro rata basis with respect to each Subordinated Unit until there has been distributed with respect to each Subordinated Unit for such quarterly period an amount equal to the Subordination Threshold for such Quarterly Period;

 

(C)                                Third, 100% to the Trust Unitholders on a pro rata basis with respect to each Trust Unit until aggregate per Unit distributions to holders of Trust Units for such Quarterly Period equal the Incentive Threshold for such Quarterly Period; and

 

(D)                                Thereafter, (x) 50% to SandRidge (such amounts, “ Incentive Distributions ”) and (y) 50% to the Trust Unitholders on a pro rata basis with respect to each Trust Unit.

 

(ii)                                   After the Subordination Period, 100% to the holders of Common Units (including Subordinated Units converted to Common Units) on a pro rata basis with respect to each Common Unit.

 

(b)                                  The Trustee shall distribute 100% of all Sales Proceeds Amounts to the Trust Unitholders on a pro rata basis on the Quarterly Payment Date following the Quarterly Period in which such sale occurred.

 

(c)                                   All distributions made by the Trustee under this Section 3.15 to Trust Unitholders shall be made to the holders of record of the applicable Trust Units on the Quarterly Record Date and SandRidge, as applicable.

 

Section 3.16.                                        Conversion of Subordinated Units to Common Units.   At the expiration of the Subordination Period, all Subordinated Units shall automatically convert to Common Units on a one-for-one basis.

 

Section 3.17.                                        Entity-Level Taxation. If legislation is enacted or the official interpretation of existing legislation is modified by a governmental authority, which after giving effect to such enactment or modification, results in the Trust becoming subject to U.S. federal, state or local or non-U.S. income or withholding taxes in excess of the amount of such taxes due from the Trust prior to such enactment or modification (including, for the avoidance of doubt, any increase in the rate of such taxation applicable to the Trust), then the Trustee may, in its sole discretion, reduce the Target Distribution by the amount of such income or withholding taxes that are payable by reason of any such new legislation or interpretation (the “ Incremental Income Tax ”), or any portion thereof selected by the Trustee, in the manner provided in this Section 3.17. If the Trustee elects to reduce the Target Distribution for any Quarterly Period with respect to all or a portion of the Incremental Income Taxes, the Trustee shall estimate for such Quarterly Period the Trust’s liability (the “ Estimated Incremental Quarterly Tax Amount ”) for all (or the relevant portion of) such Incremental Income Taxes; provided , that any difference between such estimate and the actual liability for Incremental Income Taxes (or the relevant portion thereof) for such Quarterly Period may, to the extent determined by the Trustee, be taken into account in determining the Estimated Incremental Quarterly Tax Amount with respect to each Quarterly Period in which any such difference can be determined. For each such Quarterly Period, the Target Distribution shall be the product

 

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obtained by multiplying (a) the amount therefor that is set out herein prior to the application of this Section 3.17 times (b) the quotient obtained by dividing (i) cash and cash equivalents available for distribution with respect to such Quarterly Period by (ii) the sum of cash and cash equivalents available for distribution with respect to such Quarterly Period and the Estimated Incremental Quarterly Tax Amount for such Quarterly Period, as determined by the Trustee. For purposes of the foregoing, cash and cash equivalents available for distribution with respect to a Quarterly Period will be deemed reduced by the Estimated Incremental Quarterly Tax Amount for that Quarterly Period. After reducing the Target Distribution in accordance with this Section 3.17, the Subordination Threshold shall be adjusted to 80% of the reduced Target Distribution and the Incentive Threshold shall be adjusted to 120% of the reduced Target Distribution.

 

ARTICLE IV
TRUST UNITS AND BENEFICIAL INTEREST

 

Section 4.01.                                        Creation.

 

(a)                                  Ownership of the Beneficial Interest shall be divided into 49,725,000 Trust Units, of which 37,293,750 shall be Common Units and 12,431,250 shall be Subordinated Units.

 

(b)                                  The Trust Unitholders shall be the sole beneficial owners of the Trust Estate and the Trust.  The Trust Units shall initially be uncertificated and ownership thereof evidenced by entry of a notation in an ownership ledger maintained for such purpose by the Trustee or a transfer agent designated by the Trustee.

 

Section 4.02.                                        Rights of Trust Unitholders; Limitation on Personal Liability of Trust Unitholders. Each Trust Unit shall represent a pro rata share of the Beneficial Interest and shall entitle its holder to participate pro rata, subject to the distinctions between Subordinated Units and Common Units provided in Section 3.15 hereof, in the rights and benefits of Trust Unitholders under this Agreement. A Trust Unitholder (whether by assignment or otherwise) shall take and hold each Trust Unit subject to all the terms and provisions of this Agreement which shall be binding upon and inure to the benefit of the successors, assigns, legatees, heirs and personal representatives of such Trust Unitholder. By an assignment or a transfer of one or more Trust Units, the assignor thereby shall, with respect to such assigned or transferred Trust Unit or Trust Units, part with, except as required by federal or state tax laws and as provided in Section 4.03 hereof in the case of a transfer after a Quarterly Record Date and prior to the corresponding Quarterly Payment Date, (a) all of its Beneficial Interest attributable to such Trust Unit or Trust Units and (b) all interests, rights and benefits of a Trust Unitholder under the Trust and this Agreement that are attributable to such Trust Unit or Trust Units as against all other Trust Unitholders, the Trust and the Trustee, including, without limiting the generality of the foregoing, any and all rights to receive cash distributions pursuant to Section 3.15 with respect to the Trust Units so assigned or transferred, for any Quarterly Period or Quarterly Periods subsequent to the Quarterly Period that relates to the last Quarterly Record Date on which the assignor owned such Trust Units. The Trust Units and the rights, benefits and interests evidenced thereby (including, without limiting the foregoing, the entire Beneficial Interest) are and, for all purposes, shall be construed, to be in all respects intangible personal property, and the Trust Units shall be bequeathed, assigned,

 

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disposed of and distributed as intangible personal property. No Trust Unitholder shall have legal title or a direct ownership interest in or to any real property interest or tangible personal property interest that may be considered a part of the Trust Estate, including, without limiting the foregoing, the Royalty Interests or any part thereof, or in or to any other asset of the Trust Estate, but the sole interest of each Trust Unitholder shall be his pro rata share of the Beneficial Interest. No Trust Unitholder shall have the right to call for or demand or secure any partition or distribution of the Royalty Interests or any other asset of the Trust Estate or any accounting during the continuance of the Trust or during the period of liquidation and winding up of the Trust under Section 9.03 of this Agreement. Pursuant to Section 3803(a) of the Trust Act, the Trust Unitholders shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware.

 

Section 4.03.                                        Effect of Transfer. As to matters affecting the title, ownership, warranty or transfer of Trust Units, Article 8 of the Uniform Commercial Code and the Uniform Act for Simplification of Fiduciary Security Transfers, each as adopted and then in force in the State of Delaware, and other statutes and rules pertaining to the transfer of securities, each as adopted and then in force in the State of Delaware, shall govern and apply. The death of any Trust Unitholder shall not entitle the Transferee of such Trust Unitholder to an accounting or valuation for any purpose pursuant to the terms hereof.

 

Section 4.04.                                        Determination of Ownership. In the event of any disagreement between Persons claiming to be Transferees of any Trust Unit, or in the event of any question on the part of the Trustee when presented with a request for transfer of a Trust Unit, that the Trustee believes is not fully resolved by opinions of counsel or other documents obtained in connection therewith, then, in addition to other rights that it may have under applicable law, the Trustee shall be entitled at its option to refuse to recognize any such claim so long as such disagreement or question shall continue. In so refusing, the Trustee may elect to refrain or refuse to act with respect to the interest represented by the Trust Unit involved, or any part thereof, or of any sum or sums of money accrued or accruing thereunder, and, in so doing, the Trustee shall not be or become liable to any Person for the failure or refusal of the Trustee to comply with such conflicting claims or requests for transfer, and shall be entitled to continue so to refrain and refuse so to act, until:

 

(a)                                  the rights of the adverse claimants or the questions of the Trustee have been adjudicated by a final nonappealable judgment of a court assuming and having jurisdiction of the parties and the interest and money involved, or

 

(b)                                  all differences have been resolved by valid agreement between said parties and the Trustee shall have been notified thereof in writing signed by all of the interested parties.

 

Section 4.05.                                                 Transfer Agent  The Trustee may serve as transfer agent or may designate a transfer agent at any time.  The initial transfer agent shall be American Stock Transfer & Trust Company, LLC.  The Trustee may dismiss the transfer agent and designate a successor transfer agent at any time with or without reason.  Any entity serving as transfer agent shall be entitled to payment of its fees in accordance with the terms of its engagement.

 

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ARTICLE V
ACCOUNTING AND DISTRIBUTIONS; REPORTS

 

Section 5.01.                                        Fiscal Year and Accounting Method. The Trust shall adopt the calendar year as its fiscal year and shall maintain its books on an appropriate basis to comply with Sections 5.03 and 5.04, except to the extent such books must be maintained on any other basis pursuant to applicable law or pursuant to Annex A.

 

Section 5.02.                                        Quarterly Cash Distribution Amount. On or prior to the Quarterly Record Date, the Trustee shall, in the manner required by the rules of any securities exchange or quotation system on which the Trust Units are listed or admitted to trading, communicate to the Trust Unitholders the amount of the Quarterly Cash Distribution Amount and the Sales Proceeds Amount, if any, for the relevant Quarterly Period.

 

Section 5.03.                                        Reports to Trust Unitholders and Others.

 

(a)                                  Within 45 days following the end of each of the first three Quarterly Periods of each calendar year (or such shorter period of time as may be required by the rules and regulations of the Commission adopted with respect to the Exchange Act or of any securities exchange or quotation system on which the Trust Units are listed or admitted to trading), the Trustee shall mail to each Person who was a Trust Unitholder of record on the Quarterly Record Date for such Quarterly Period a report, which may be a copy of the Trust’s Quarterly Report on Form 10-Q under the Exchange Act, which shall show in reasonable detail the assets and liabilities and receipts and disbursements of the Trust for such Quarterly Period; provided , however , the obligation to mail a report to each Trust Unitholder of record shall be deemed to be satisfied if the Trustee files a copy of the Trust’s Quarterly Report on Form 10-Q on the Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system maintained by the Commission or any successor system or otherwise makes such report publicly available on an Internet website that is generally accessible to the public.

 

(b)                                  Within 90 days following the end of each fiscal year (or such shorter period of time as may be required by the rules and regulations of the Commission adopted with respect to the Exchange Act or of any securities exchange or quotation system on which the Trust Units are listed or admitted to trading), the Trustee shall mail to each Person who was a Trust Unitholder of record on a date to be selected by the Trustee an annual report, containing financial statements audited by an independent registered public accounting firm selected by the Trustee, plus such annual reserve information regarding the Royalty Interests as may be required by the rules and regulations of the Commission; provided , however , the obligation to mail a report to each Trust Unitholder of record shall be deemed to be satisfied if the Trustee files a copy of the Trust’s Annual Report on Form 10-K on the EDGAR system maintained by the Commission or any successor system or otherwise makes such report publicly available on an Internet website that is generally accessible to the public.

 

(c)                                   Notwithstanding any time limit imposed by Section 5.03(a) and (b), if, due to a delay in receipt by the Trustee of information necessary for preparation of a report or reports

 

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required by such sections, the Trustee shall be unable to prepare and mail such report or reports within such time limit, the Trustee shall prepare and mail such report or reports as soon thereafter as practicable.

 

Section 5.04.                                        Reports from SandRidge to the Trustee. Promptly following each of the first three Quarterly Periods and following the completion of each fiscal year, SandRidge shall deliver to the Trustee a statement of the computation of the proceeds for such Quarterly Period or fiscal year, as the case may be, as well as an update on the number of Development Wells that have been drilled pursuant to the Development Agreement (identifying such Development Wells) and production information for such period.

 

Section 5.05.                                        U.S. Federal Income Tax Provisions. The U.S. federal income tax provisions set forth in Annex A (the “ Tax Provisions ”) are intended to comply with U.S. federal income tax law governing the allocation of items of income, gain, loss and deduction of the Trust (in its status as a partnership for tax purposes) and the maintenance of the capital accounts of the Trust Unitholders and are incorporated herein by reference. Any conflict between the provisions of this Agreement and the Tax Provisions shall be governed by the Tax Provisions to the extent of such conflict.  In the event this Agreement is silent regarding a matter that is explicitly addressed in the Tax Provisions, the Tax Provisions shall prevail.

 

ARTICLE VI
LIABILITY OF DELAWARE TRUSTEE AND TRUSTEE AND
METHOD OF SUCCESSION

 

Section 6.01.                                        Liability of Delaware Trustee, Trustee and Agents.

 

(a)                                  Except as expressly set forth in this Agreement, none of the Trustee or the Delaware Trustee shall have any duties or liabilities, including fiduciary duties, to the Trust or any Trust Unitholder. To the extent that, at law or in equity, the Trustee and the Delaware Trustee have duties, including fiduciary duties, and liabilities relating thereto to the Trust or any Trust Unitholder, the Trustee and the Delaware Trustee shall not be liable to the Trust or to any Trust Unitholder for its good faith reliance on the provisions of this Agreement. For the avoidance of doubt, to the fullest extent permitted by law, no person other than the Trustee and the Delaware Trustee shall have any duties (including fiduciary duties) or liabilities at law or in equity to the Trust, any Trust Unitholder or any other Person. The provisions of this Agreement, to the extent that they restrict or eliminate the duties (including fiduciary duties) and liabilities of the Trustee or the Delaware Trustee or any other Person otherwise existing at law or in equity are agreed by the parties hereto and the Trust to replace such other duties and liabilities of the Trustee, the Delaware Trustee and such other Persons.

 

(b)                                  Notwithstanding any other provision of this Agreement, each of the Delaware Trustee and the Trustee, in carrying out its powers and performing its duties, may act directly or in its discretion (at the expense of the Trust) through Agents pursuant to agreements entered into with any of them, and each of the Delaware Trustee and the Trustee shall be liable only for (i) its own willful misconduct, (ii) acts or omissions in bad faith or that constitute gross negligence, and (iii) taxes, fees or other charges based on any fees, commissions or compensation received by it in connection with any of the transactions contemplated by this Agreement, and shall not otherwise be liable under any circumstances whatsoever, including but not limited to any act or

 

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omission of any Agent unless such Entity has acted with willful misconduct, in bad faith or with gross negligence in the selection, retention or supervision of such Agent. Notwithstanding any other provision of this Agreement, each Agent of the Delaware Trustee and the Trustee (including SandRidge and any of its Affiliates when acting as such), in carrying out its powers and performing its duties, may act directly or in its discretion (at the expense of the Trust) through its own agents and shall not otherwise be liable for any act or omission unless such Agent has acted with willful misconduct, in bad faith or with gross negligence. Neither the Trustee nor the Delaware Trustee shall have any liability to any Persons other than the Trust or the Trust Unitholders in accordance with Section 3803 of the Trust Act and, for the avoidance of any doubt, neither shall have any liability hereunder to the Trust Unitholders absent (i) its own willful misconduct or (ii) acts or omissions in bad faith or which constitute gross negligence. No Trustee or Delaware Trustee shall be individually liable by reason of any act or omission of any other Trustee or Delaware Trustee.  Except in the event of a claim brought against the Trustee or the Delaware Trustee for willful misconduct, acts or omissions in bad faith or gross negligence, all Persons that have any claim against the Trustee or the Delaware Trustee by reason of the transactions contemplated by this Agreement or any other agreement or instrument related to the Trust shall look only to the Trust’s property for payment or satisfaction thereof.  In the event of a claim brought against the Delaware Trustee or the Trustee for willful misconduct, acts or omissions in bad faith or gross negligence, their “management liability” insurance coverages (that is, directors & officers liability and crime insurance coverages) shall be primary to, and non-contributing with, any other insurance maintained by the Trust Unitholders.

 

(c)                                   Each of the Delaware Trustee and the Trustee, and each Agent of the Delaware Trustee or the Trustee (including SandRidge and any of its Affiliates when acting as such), shall be protected in relying or reasonably acting upon any notice, certificate, opinion or advice of counsel or tax advisor; report of independent registered public accounting firm, petroleum engineer, geologist, auditor or other expert. In addition, each of the Delaware Trustee and the Trustee, and each Agent of the Delaware Trustee or the Trustee (including SandRidge and any of its Affiliates when acting as such) shall be protected in relying or reasonably acting upon any other document or instrument reasonably believed by such entity or Person to be true and accurate. Each of the Delaware Trustee and the Trustee, and each Agent of the Delaware Trustee or the Trustee (including SandRidge and any of its Affiliates when acting as such), is specifically authorized to rely upon the application of Article 8 of the Uniform Commercial Code, the application of the Uniform Act for Simplification of Fiduciary Security Transfers and the application of other statutes and rules with respect to the transfer of securities, each as adopted and then in force in the State of Delaware, as to all matters affecting title, ownership, warranty or transfer of the Trust Units, without any personal liability for such reliance, and the indemnity granted under Section 6.02 of this Agreement shall specifically extend to any matters arising as a result thereof. Further, and without limiting the foregoing, each of the Delaware Trustee and the Trustee is specifically authorized and directed to rely upon the validity of each of the Conveyances and the title held by the Trust in the Royalty Interests pursuant thereto and the validity of the Derivatives Agreement and Direct Hedge Contracts, and is further specifically authorized and directed to rely upon opinions of counsel in the States of Oklahoma and Kansas, as applicable, where the Underlying Properties are located, and on any notice, certificate or other statement of SandRidge or information furnished by SandRidge without any liability in any capacity for such reliance.

 

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Section 6.02.                                        Indemnification of Trustee or Delaware Trustee.

 

(a)                                  The Trustee and the Delaware Trustee, as well as each of their respective Agents (including SandRidge and any of its Affiliates when acting as such) and Affiliates, shall be indemnified and held harmless by, and receive reimbursement from, the Trust against and from any and all liabilities, obligations, actions, suits, costs, expenses, claims, damages, losses, penalties, taxes, fees and other charges (collectively, “ Expenses ,” excluding, however, any taxes and fees payable by the Trustee and the Delaware Trustee based on any fees, commissions or compensation received by the Trustee and the Delaware Trustee for their services hereunder) incurred by it individually in the administration of the Trust, or as a result of any act done or performed or omission occurring on account of its being Trustee or Delaware Trustee (or such Agent or Affiliate), as applicable, except such Expenses as to which it is liable under Section 6.01 of this Agreement. Each of the Trustee and the Delaware Trustee shall have a lien upon the Trust Estate for payment of such indemnification and reimbursement (including, without limitation, repayment of any funds borrowed from any Entity serving as a fiduciary hereunder), as well as for compensation to be paid to such Entity, in each case entitling such Entity to priority as to payment thereof over payment to any other Person under this Agreement. Neither the Trustee, the Delaware Trustee, nor any of their respective Agents shall be entitled to any reimbursement or indemnification from any Trust Unitholder for any Expense incurred by the Delaware Trustee, or the Trustee or any of their respective Agents, their right of reimbursement and indemnification, if any, except as provided in Section 6.02(b) below, being limited solely to the Trust Estate, whether or not the Trust Estate is exhausted without full reimbursement or indemnification of the Trustee, the Delaware Trustee or any of their respective Agents. All legal or other expenses reasonably incurred by the Trustee or the Delaware Trustee in connection with the investigation or defense of any Expenses as to which such Entity is entitled to indemnity under this Section 6.02(a) shall be paid out of the Trust Estate.

 

(b)                                  SandRidge shall indemnify and hold harmless each of the Delaware Trustee and the Trustee (but not the Trust or Trust Unitholders), and any Agents and Affiliates thereof, individually and as trustee, against any Expenses to which such Entity or Agent thereof may become subject solely as a result of its position and service as trustee of the Trust under or with respect to any Environmental Law, insofar as such Expenses arise out of, are based upon or connected with the Underlying Properties, except for Expenses arising from any acts of such Entity or Agent not expressly contemplated hereunder.  SandRidge shall also indemnify and hold harmless each of the Delaware Trustee and the Trustee (but not the Trust or Trust Unitholders), and any Agents and Affiliates thereof, individually and as trustee, against any Expenses to which such Entity or Agent thereof may become subject solely as a result of its position and service as trustee of the Trust arising out of, based upon or connected with (i) any reset, termination and replacement, or other modification of any hedge contracts, (ii) the assignment, novation or other transfer of any hedge contracts, or (iii) the entry by the Trust into new hedge contracts, in each case pursuant to Section 2.02 of the Administrative Services Agreement or Article III of the Derivatives Agreement.  The obligations of SandRidge hereunder may be assigned or transferred to any Entity acquiring the Underlying Property to which each Expense relates; provided, however , such Entity unconditionally agrees in writing, reasonably satisfactory to the Trustee and the Delaware Trustee, to assume SandRidge’s obligations under this Section 6.02(b).

 

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(c)                                   If any action or proceeding shall be brought or asserted against the Trustee or the Delaware Trustee or any Agent or Affiliate thereof (each referred to as an “ Indemnified Party ” and, collectively, the “ Indemnified Parties ”) in respect of which indemnity may be sought from SandRidge (the “ Indemnifying Party ”) pursuant to Section 6.02(b) hereof, of which the Indemnified Party shall have received notice, the Indemnified Party shall promptly notify the Indemnifying Party in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all expenses. The Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the Indemnifying Party has agreed to pay such fees and expenses, (ii) the Indemnifying Party shall have failed to assume the defense of such action or proceeding and employ counsel reasonably satisfactory (including the qualifications of such counsel) to the Indemnified Party in respect of any such action or proceeding or (iii) the named parties to any such action or proceeding include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party (in which case, if the Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such action or proceeding on behalf of the Indemnified Party and the Indemnified Party may employ such counsel for the defense of such action or proceeding as is reasonably satisfactory to the Indemnifying Party; it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys for the Indemnified Parties at any time). The Indemnifying Party shall not be liable for any settlement of any such action or proceeding effected without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditional or delayed), but, if settled with such written consent, or if there be a final judgment for the plaintiff in any such action or proceeding, the Indemnifying Party agrees (to the extent stated above) to indemnify and hold harmless the Indemnified Party from and against any loss or liability by reason of such settlement or judgment to the extent provided for in Section 6.02(b).

 

(d)                                  Any claim for indemnification pursuant to this Section 6.02 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party.

 

Section 6.03.                                        Resignation of Delaware Trustee and Trustee. The Delaware Trustee or the Trustee may resign with or without cause, at any time by written notice to SandRidge or the other Trustee. Upon receiving the notice of resignation from the Delaware Trustee or the Trustee, as applicable, SandRidge shall provide notice to each of the then Trust Unitholders of record in accordance with Section 12.08 of this Agreement. Such notice shall specify a date when such resignation shall take effect, which shall be a Business Day not less than 60 days after the date such notice is mailed; provided , however , that in no event shall any resignation of the Trustee be effective until a successor Trustee (including a temporary trustee appointed pursuant to Section 6.05 of this Agreement) has accepted its appointment as Trustee pursuant to the terms hereof; and provided, further, that in no event shall any resignation of the

 

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Delaware Trustee be effective until a successor Delaware Trustee has accepted its appointment as Delaware Trustee pursuant to the terms hereof.

 

Section 6.04.                                        Removal of Delaware Trustee and Trustee. The Delaware Trustee or the Trustee may be removed as trustee hereunder, with or without cause, by the vote of a Special Unit Majority at a meeting duly called and held in accordance with Article VIII; provided , however , that any removal of the Delaware Trustee shall be effective only at such time as a successor Delaware Trustee, fulfilling the requirements of Section 3807(a) of the Trust Act, has been appointed and has accepted such appointment; and provided , further , that any removal of the Trustee shall be effective only at such time as a successor Trustee has been appointed and has accepted such appointment in accordance with Section 6.05.

 

Section 6.05.                                        Appointment of Successor Delaware Trustee or Trustee. In the event of the resignation or removal of the Delaware Trustee or the Trustee or if any such Entity has given notice of its intention to resign as the Delaware Trustee or the Trustee, (i) with respect to the Delaware Trustee, the Trustee may appoint a successor Delaware Trustee, or (ii) with respect to either the Delaware Trustee or the Trustee, a successor trustee may be appointed by the vote of a Special Unit Majority at a meeting duly called and held in accordance with Article VIII. Nominees for appointment may be made by (i) SandRidge, (ii) the resigned, resigning or removed trustee or (iii) any Trust Unitholder or Trust Unitholders owning of record at least 10% of the then outstanding Trust Units. Any successor Trustee shall be a bank or trust company having combined capital, surplus and undivided profits of at least $100,000,000. Any successor Delaware Trustee shall be a bank or trust company having its principal place of business in the State of Delaware and having combined capital, surplus and undivided profits of at least $20,000,000. Notwithstanding any provision herein to the contrary, in the event that a new trustee has not been approved within 60 days after a notice of resignation, a vote of Trust Unitholders removing a trustee or other occurrence of a vacancy, a successor trustee may be appointed by any State or Federal District Court having jurisdiction in New Castle County, Delaware, upon the application of any Trust Unitholder, SandRidge or the Entity tendering its resignation or being removed as trustee filed with such court, and in the event any such application is filed, such court may appoint a temporary trustee at any time after such application is filed, which shall, pending the final appointment of a trustee, have such powers and duties as the court appointing such temporary trustee shall provide in its order of appointment, consistent with the provisions of this Agreement. Any such temporary trustee need not meet the minimum standards of capital, surplus and undivided profits otherwise required of a successor trustee under this Section 6.05. Nothing herein shall prevent the same Entity from serving as both the Delaware Trustee and the Trustee if it meets the qualifications thereof.

 

Immediately upon the appointment of any successor trustee, all rights, titles, duties, powers and authority of the predecessor trustee hereunder (except to the predecessor trustee’s rights to amounts payable under Article VII or Section 6.02 hereof accruing through the appointment of such successor trustee) shall be vested in and undertaken by the successor trustee, which shall be entitled to receive from the predecessor trustee all of the Trust Estate held by it hereunder and all records and files of the predecessor trustee in connection therewith. Any resigning or removed trustee shall account to its successor for its administration of the Trust. All successor trustees shall be fully protected in relying upon such accounting and no successor

 

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trustee shall be obligated to examine or seek alteration of any account of any preceding trustee, nor shall any successor trustee be personally liable for failing to do so or for any act or omission of any preceding trustee. The preceding sentence shall not prevent any successor trustee or any other Person from taking any action otherwise permissible in connection with any such account.

 

Section 6.06.                                        Laws of Other Jurisdictions. If, notwithstanding the other provisions of this Agreement (including, without limitation, Section 12.06 hereof), the laws of jurisdictions other than the State of Delaware (each being referred to below as “such jurisdiction”) apply to the administration of the Trust or the Trust Estate under this Agreement, the following provisions shall apply.

 

If it is necessary or advisable for a trustee to serve in such jurisdiction and if the Trustee is disqualified from serving in such jurisdiction or for any other reason fails or ceases to serve there, the ancillary trustee in such jurisdiction shall be such Entity, which need not meet the requirements set forth in the third sentence of Section 6.05 of this Agreement, as shall be designated in writing by SandRidge and the Trustee. To the extent permitted under the laws of such jurisdiction, SandRidge and the Trustee may remove the trustee in such jurisdiction, without cause and without necessity of court proceeding, and may or may not appoint a successor trustee in such jurisdiction from time to time. The trustee serving in such jurisdiction shall, to the extent not prohibited under the laws of such jurisdiction, appoint the Trustee to handle the details of administration in such jurisdiction. The trustee in such jurisdiction shall have all rights, powers, discretions, responsibilities and duties as are delegated in writing by the Trustee, subject to such limitations and directions as shall be specified by the Trustee in the instrument evidencing such appointment. Any trustee in such jurisdiction shall be responsible to the Trustee for all assets with respect to which such trustee is empowered to act.

 

To the extent the provisions of this Agreement and Delaware law cannot be made applicable to the administration in such jurisdiction, the rights, powers, duties and liabilities of the trustee in such jurisdiction shall be the same (or as near the same as permitted under the laws of such jurisdiction if applicable) as if governed by Delaware law. In all events, the administration in such jurisdiction shall be as free and independent of court control and supervision as permitted under the laws of such jurisdiction. The fees and expenses of any ancillary trustee shall constitute an administrative expense of the Trust payable from the Trust Estate. Whenever the term “Trustee” is applied in this Agreement to the administration in such jurisdiction, it shall refer only to the trustee then serving in such jurisdiction.

 

Section 6.07.                                        Reliance on Experts. The Trustee and the Delaware Trustee may, but shall not be required to, consult with counsel (which may but need not be counsel to SandRidge), accountants, tax advisors, geologists, engineers and other parties (including employees of the Trustee or Delaware Trustee, as applicable) deemed by the Trustee or the Delaware Trustee to be qualified as experts on the matters submitted to them, and, subject to Section 6.01 but notwithstanding any other provision of this Agreement, the Trustee and the Delaware Trustee shall be entitled to rely upon the opinion or advice of any such party on any such matter and shall not be held liable in respect of any action taken, omitted or suffered hereunder in good faith in reliance upon and in accordance with the opinion or advice of any such party. Each of the Trustee and the Delaware Trustee is authorized to make payments of all reasonable fees for services and expenses thus incurred out of the Trust Estate. Neither the

 

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Delaware Trustee nor the Trustee shall incur any liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee and the Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner or ascertainment of which is not specifically prescribed herein, the Delaware Trustee and the Trustee may for all purposes hereof rely on a certificate, signed by the chief executive officer, president or any vice president or by the treasurer or any assistant treasurer and by the secretary or any assistant secretary of the relevant party (including without limitation SandRidge), as to such fact or matter, and shall not be held liable for any action taken or omitted to be taken by it in good faith in reliance thereon.

 

Section 6.08.                                        Force Majeure. The Trustee and the Delaware Trustee shall not incur any liability to any Trust Unitholder if, by reason of any current or future law or regulation thereunder of any governmental authority, or by reason of any act of God, war or other circumstance beyond its control, the Trustee or the Delaware Trustee is prevented or forbidden from doing or performing any act or thing required by the terms hereof to be done or performed; nor shall the Trustee or the Delaware Trustee incur any liability to any Trust Unitholder by reason of any nonperformance or delay caused as aforesaid in the performance of any act or thing required by the terms hereof to be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for herein caused as aforesaid.

 

Section 6.09.                                        Failure of Action by SandRidge. In the event that SandRidge shall fail or is unable to take any action as required under any provision of the Transaction Documents to which SandRidge is a party, the Trustee is empowered (but shall not be required) to take such action.

 

Section 6.10.                                        Action Upon Instructions. Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision of this Agreement, the Delaware Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Trustee requesting instruction as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten calendar days of sending such notice to the Trustee (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this Agreement, and the Delaware Trustee shall have no liability to any Person for any such action or inaction.

 

Section 6.11.                                        Management of Trust Estate. The Delaware Trustee shall have no duty or obligation to manage, control, prepare, file or maintain any report, license or registration, use, sell, dispose of or otherwise deal with the Trust Estate, or otherwise to take or

 

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refrain from taking any action under or in connection with this Agreement, or any other document or instrument, except as expressly required hereby.

 

Section 6.12.                                        Validity. The Delaware Trustee shall not be responsible for or in respect of and makes no representations as to the validity or sufficiency of any provision of this Agreement or for the due execution hereof by the other parties hereto or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Estate, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to SandRidge, the Trustee or any Trust Unitholder, other than as expressly provided for herein. The Delaware Trustee shall at no time have any responsibility or liability for or with respect to the legality, validity and enforceability of any of the Trust Units.

 

Section 6.13.                                        Rights and Powers; Litigation. The Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation or arbitration under this Agreement or otherwise or in relation to this Agreement, at the request, order or direction of the Trustee, any Trust Unitholder or SandRidge unless the Trustee, Trust Unitholder or SandRidge, as the case may be, has or have offered to the Delaware Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee therein or thereby. The Delaware Trustee shall be under no obligation to appear in, prosecute or defend any action, or to take any other action other than the giving of notices, that in its opinion may require it to incur any out-of-pocket expense or any liability unless it shall be furnished with such security and indemnity against such expense or liability as it may reasonably require. The right of the Delaware Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Delaware Trustee shall not be personally liable or accountable for the performance of any such act except as specifically provided in Section 6.01.

 

Section 6.14.                                        No Duty to Act Under Certain Circumstances. Notwithstanding anything contained herein to the contrary, the Delaware Trustee will not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action would (i) require the consent, approval, authorization or order of, the giving of notice to, the registration with or the taking of any action in respect of, any state or other governmental authority or agency of any jurisdiction other than in the State of Delaware, (ii) result in any fee, tax or governmental charge under the laws of any jurisdiction or any political subdivisions thereof other than the State of Delaware becoming payable by the Delaware Trustee or (iii) subject the Delaware Trustee to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by the Delaware Trustee contemplated hereby.

 

Section 6.15.                                        Indemnification of the Trust.  SandRidge agrees to indemnify and hold harmless the Trust from and against any and all losses, claims, damages, liabilities and expenses, including reasonable costs of investigation and attorney’s fees and expenses, (i) incurred under Section 8 of the Underwriting Agreement as well as (ii) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus (as defined in the Underwriting Agreement), the Securities Act Registration Statement, the Time of Sale Information (as defined in the Underwriting

 

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Agreement), any Issuer Free Writing Prospectus (as defined in the Underwriting Agreement), the Pricing Prospectus (as defined in the Underwriting Agreement) or the Prospectus or in any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Preliminary Prospectus, the Time of Sale Information, any Issuer Free Writing Prospectus, the Pricing Prospectus or the Prospectus or in any amendment or supplement thereto, in the light of the circumstances under which they were made) not misleading.

 

ARTICLE VII
COMPENSATION OF THE TRUSTEE AND THE DELAWARE TRUSTEE

 

Section 7.01.                                        Compensation of Trustee and Delaware Trustee. The Trustee shall receive compensation for its services under this Agreement as set forth on Schedule 3. The Delaware Trustee shall receive an annual fee of $2,400 as compensation for its services under this Agreement. Each of the Trustee and the Delaware Trustee shall be reimbursed for all actual expenditures made in connection with administration of the Trust, including those made on account of any unusual duties in connection with matters pertaining to the Trust and the reasonable compensation and expenses of their counsel, accountants or other skilled persons and of all other persons not regularly in their employ. The Trustee and the Delaware Trustee shall each be entitled to reasonable additional compensation for any unusual or extraordinary services rendered by the Trustee or by the Delaware Trustee in connection with the administration of the Trust.

 

Section 7.02.                                        Reimbursement of SandRidge. SandRidge shall be entitled to reimbursement from the Trust for all out-of-pocket costs and expenses paid by SandRidge, acting in its capacity as Agent of the Trust (including without limitation legal, accounting, engineering and printing costs) but excluding those costs and expenses specified in Section 3.12(d) and in Section 6.02(b) of this Agreement as costs and expenses to be paid by SandRidge and excluding any costs and expenses that have been or will be reimbursed pursuant to the Administrative Services Agreement, promptly upon submission of written evidence thereof to the Trustee.

 

Section 7.03.                                        Source of Funds. Except as provided in Section 3.12 and Section 6.02(b) of this Agreement, all compensation, reimbursements and other charges owing to the Trustee or the Delaware Trustee hereunder shall constitute indebtedness hereunder, shall be payable by the Trust out of the Trust Estate and such Entity shall have a lien on the Trust Estate for payment of such compensation, reimbursements and other charges, entitling such Entity to priority as to payment thereof over payment to any other Person under this Agreement.

 

Section 7.04.                                        Ownership of Units by SandRidge, the Delaware Trustee and the Trustee. Each of the Delaware Trustee and the Trustee, in its individual or other capacity, may become the owner or pledgee of Trust Units with the same rights it would have if it were not a trustee hereunder. SandRidge and its Affiliates may become the owner of additional Trust Units, with the same rights and entitled to the same benefits as any other Trust Unitholder,

 

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except to the extent the Subordinated Unitholders have different rights than Common Unitholders.

 

ARTICLE VIII
MEETINGS OF TRUST UNITHOLDERS

 

Section 8.01.                                        Purpose of Meetings . A meeting of the Trust Unitholders may be called at any time and from time to time pursuant to the provisions of this Article VIII to transact any business that the Trust Unitholders may be authorized to transact; provided , however , that nothing herein shall require the Trustee to call annual or other periodic meetings of the Trust Unitholders.

 

Section 8.02.                                        Call and Notice of Meetings. Any such meeting of the Trust Unitholders may be called by the (i) Trustee or (ii) by Trust Unitholders owning of record not less than 10% in number of the then outstanding Trust Units. The Trustee may, but shall not be obligated to, call meetings of Trust Unitholders to consider amendments, waivers, consents and other changes relating to the Transaction Documents to which the Trust is a party. In addition, at the written request of the Delaware Trustee, unless the Trustee appoints a successor Delaware Trustee in accordance with Section 6.05, the Trustee shall call such a meeting but only for the purpose of appointing a successor to the Delaware Trustee upon its resignation. All such meetings shall be held at such time and at such place as the notice of any such meeting may designate. Except as may otherwise be required by any applicable law or by the rules of any securities exchange or quotation system on which the Trust Units may be listed or admitted to trading, notice of every meeting of the Trust Unitholders authorized by the Trustee or the Trust Unitholders calling the meeting, setting forth the time and place of the meeting and in general terms the matters proposed to be acted upon at such meeting, shall be given in accordance with Section 12.08 of this Agreement not more than 60 nor less than 20 days before such meeting is to be held to all of the Trust Unitholders of record at the close of business on a record date selected by the Trustee (the “ Record Date Trust Unitholders ”), which shall be not more than 60 days before the date of such notice. No matter other than that stated in the notice shall be acted upon at any meeting unless such action is approved by the Trust Unitholders. Only Record Date Trust Unitholders shall be entitled to notice of and to exercise rights at or in connection with the meeting. All costs associated with calling any meeting of the Trust Unitholders shall be borne by the Trust, except that the costs associated with the calling of a meeting of the Trust Unitholders called by Trust Unitholders owning of record not less than 10% in number of the then outstanding Trust Units shall be borne by the Trust Unitholders that called such meeting of Trust Unitholders.

 

Section 8.03.                                        Method of Voting and Vote Required . Each Record Date Trust Unitholder shall be entitled to one vote for each Trust Unit owned by such Record Date Trust Unitholder on the record date, and any Record Date Trust Unitholder may vote in person or by proxy. Abstentions and broker non-votes shall not be deemed to be a vote cast. At any such meeting, the presence in person or by proxy of Record Date Trust Unitholders holding a majority of the Trust Units held by all Record Date Trust Unitholders shall constitute a quorum. Except as otherwise expressly provided in this Agreement, any matter shall be deemed to have been approved by the Trust Unitholders if it is approved by the affirmative vote of Record Date

 

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Trust Unitholders holding a majority of the Trust Units present in person or by proxy at a meeting at which a quorum is present.

 

Section 8.04.                                        Conduct of Meetings. The Trustee may make such reasonable regulations consistent with the provisions hereof as it may deem advisable for any meeting of the Trust Unitholders, for the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, the preparation and use at the meeting of a list authenticated by or on behalf of the Trustee of the Trust Unitholders entitled to vote at the meeting and such other matters concerning the conduct of the meeting as it shall deem advisable.

 

ARTICLE IX
DURATION, REVOCATION AND TERMINATION OF TRUST

 

Section 9.01.                                        Revocation. The Trust is and shall be irrevocable, and SandRidge, as trustor, after the Closing, retains no power to alter, amend (except as provided otherwise in this Article IX and in Section 10.02 hereof), revoke or terminate the Trust. The Trust shall be terminable only as provided in Section 9.02 of this Agreement, and shall continue until so terminated.

 

Section 9.02.                                        Termination . The Trust shall dissolve and commence winding-up its business and affairs upon the first to occur of the following events or times:

 

(a)                                  the disposition of all of the Royalty Interests and other assets (other than cash), tangible or intangible, including accounts receivable and claims or rights to payment, constituting the Trust Estate;

 

(b)                                  an election by the Trustee to dissolve the Trust that is approved by the holders of a Unit Majority at a meeting duly called and held in accordance with Article VIII;

 

(c)                                   the aggregate Quarterly Cash Distribution Amounts for any four consecutive quarters, on a cumulative basis, is less than $5.0 million;

 

(d)                                  the entry of a decree of judicial dissolution of the Trust pursuant to the provisions of the Trust Act; and

 

(e)                                   the Liquidation Date.

 

Section 9.03.                                        Disposition and Distribution of Assets and Properties. Notwithstanding the dissolution of the Trust pursuant to Section 9.02, the Trustee and the Delaware Trustee shall continue to act as trustees of the Trust Estate and as such shall exercise the powers granted under this Agreement until their duties have been fully performed and the Trust Estate finally distributed so that the affairs of the Trust have been wound up.

 

Upon the sale of all or a portion of the Trust Estate pursuant to Section 3.02 of this Agreement or the dissolution of the Trust pursuant to Section 9.02, the Trustee shall sell for cash in one or more sales all of the properties other than cash then constituting the Trust Estate after any reconveyance of assets to SandRidge pursuant to the Conveyances; provided , however ,

 

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SandRidge shall have a right of first refusal to acquire the subject properties being offered in each sale pursuant to the following procedures:

 

(a)                                  Within 30 days of the Liquidation Date, or after the date such sale pursuant to Section 3.02 is approved, as applicable, the Trustee shall use commercially reasonable efforts to retain a third-party advisor to market the subject properties;

 

(b)                                  If the Trustee receives a bona fide purchase offer from a proposed purchaser other than SandRidge and desires to sell all or part of the subject properties pursuant to this Section 9.03, then the Trustee shall give notice (the “ Offer Notice ”) to SandRidge, identifying the proposed purchaser from whom it has received a bona fide offer and setting forth the proposed sale price, payment terms and other material terms and conditions under which the Trustee is proposing to sell such subject properties to the proposed purchaser. SandRidge shall have 30 days from its receipt of the Offer Notice to elect, by written notice to the Trustee, to purchase the subject properties offered for sale on the terms and conditions set forth in the Offer Notice.

 

(c)                                   If SandRidge makes such election, the notice of election shall state a closing date not later than 60 days after the date of the Offer Notice (subject only to customary closing conditions that could delay such closing date, including obtaining necessary governmental approvals). If SandRidge makes such election and actually completes the purchase the subject properties, the proposed purchaser identified in the Offer Notice shall be entitled to receive reimbursement of its reasonable and documented expenses incurred in connection with its review and analysis of the subject properties and bid preparation. SandRidge shall pay the proposed purchaser 50 percent of such reimbursement, and the Trust shall pay the proposed purchaser 50 percent of such reimbursement; provided , however , the amount of such reimbursement shall be limited to 5 percent of the sales price received by the Trust for the subject properties.

 

(d)                                  If SandRidge does not give notice within the 30-day period following the Offer Notice that it elects to purchase such subject properties, the Trustee may, within 60 days after the end of such 30-day period, sell such subject properties to the identified purchaser on terms and conditions that are substantially the same as those previously set forth in such Offer Notice. In the event the Trustee shall desire to offer such subject properties for sale on terms and conditions other than terms and conditions that are substantially the same as those previously set forth in an Offer Notice, the procedures set forth in this Section 9.03 must again be initiated and applied with respect to the terms and conditions as modified.

 

(e)                                   If, after a reasonable marketing period, no bona fide purchase offer is received with respect to any or all of the subject properties from any party other than SandRidge, then SandRidge shall obtain, at the Trust’s expense, and deliver to the Trustee, a fairness opinion from a nationally-recognized valuation firm with expertise in valuing oil and natural gas properties stating that the proposed sale price to be paid by SandRidge to the Trust for the subject properties is fair to the Trust.

 

The Trustee shall not be required to obtain approval of the Trust Unitholders prior to performing any of its duties pursuant to this Section 9.03. Notwithstanding anything herein to the contrary, in no event may the Trustee distribute the Royalty Interests to the Trust Unitholders.

 

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Upon completion of the dissolution and winding up of the Trust in accordance with Sections 9.02 and 9.03 hereof and Section 3808 of the Trust Act, the Trustee shall direct the Delaware Trustee to execute and file, and the Delaware Trustee shall execute and file or cause to be filed, a certificate of cancellation of the Trust’s Certificate of Trust in accordance with Section 3811 of the Trust Act. Upon the filing of such certificate of cancellation, the Trustee shall have no further duty or obligation or any further liability under this Agreement except as provided in Section 6.01.

 

Section 9.04.                                        Reorganization or Business Combination.

 

(a)                                  The Trust may merge or consolidate with or into, or convert into, one or more other Entities in accordance with Section 3815 of the Trust Act if such transaction (i) is agreed to by the Trustee, (ii) is approved by the vote of a Unit Majority at a meeting duly called and held in accordance with Article VIII and (iii) is permitted under the Trust Act and any other applicable law. The Trustee shall give prompt notice of such reorganization or business combination to the Delaware Trustee. Pursuant to and in accordance with the provisions of Section 3815(f) of the Trust Act, and notwithstanding anything else herein, an agreement of merger or consolidation approved in accordance with this Section 9.04 and Section 3815(a) of the Trust Act may effect any amendment to this Agreement or effect the adoption of a new trust agreement if it is the surviving or resulting trust in the merger or consolidation.

 

(b)                                  Upon the effective date of a certificate of merger duly filed in accordance with the Trust Act, the following shall be deemed to occur, in addition to such effects as may be specified under the Trust Act as then in effect:

 

(i)                                      all of the rights, privileges and powers of each of the business entities that have merged or consolidated, and all property, real, personal and mixed, and all debts due to any of those business entities and all other things and causes of action belonging to each of those business entities shall be vested in the surviving business entity and, after the merger or consolidation, shall be the property of the surviving business entity to the extent they were part of each constituent business entity;

 

(ii)                                   the title to any real property vested by deed or otherwise in any of those constituent business entities shall not revert and shall not be in any way impaired because of the merger or consolidation;

 

(iii)                                all rights of creditors and all liens on or security interest in property of any of those constituent business entities shall be preserved unimpaired;

 

(iv)                               all debts, liabilities and duties of those constituent business entities shall attach to the surviving or resulting business entity, and may be enforced against it to the same extent as if the debts, liabilities and duties had been incurred or contacted by it; and

 

(v)                                  if the Trust is the surviving or resulting entity, the governing instrument of the Trust shall be amended or a new governing instrument adopted as set forth in the certificate of merger.

 

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(c)                                   Upon the effectiveness of a conversion of the Trust pursuant to Section 3821 of the Trust Act, the following shall be deemed to occur, in addition to such other effects as may be specified under the Trust Act as then in effect:

 

(i)                                      the Entity to which the Trust has converted shall, for all purposes of the laws of the State of Delaware, be deemed to be the same entity as the Trust;

 

(ii)                                   all of the rights, privileges and powers of the Trust that has converted, and all property, real, personal and mixed, and all debts due to the Trust, as well as all other things and causes of action belonging to the Trust, shall remain vested in the other Entity to which the Trust has converted and shall be the property of such other Entity;

 

(iii)                                the title to any real property vested by deed or otherwise in the Trust shall not revert or be in any way impaired;

 

(iv)                               all rights of creditors and all liens on or security interests in any property of the Trust shall be preserved unimpaired; and

 

(v)                                  all debts, liabilities and duties of the Trust that has converted shall remain attached to the other Entity to which the Trust has converted, and may be enforced against it to the same extent as if such debts, liabilities and duties had originally been incurred or contracted by it in its capacity as such other Entity.

 

(d)                                  A merger or consolidation effected pursuant to this Section 9.04 shall not be deemed to result in a transfer or assignment of assets or liabilities from one entity to another having occurred.

 

ARTICLE X
AMENDMENTS

 

Section 10.01.                                 Prohibited Amendments. After the Closing, no amendment may be made to any provision of this Agreement that would:

 

(a)                                  increase the power of the Trust, or the Delaware Trustee or the Trustee on its behalf, to engage in business or investment activities;

 

(b)                                  alter the rights of the Trust Unitholders vis-a-vis each other, including by altering the Incentive Threshold (except as provided in Section 3.17), the Subordination Threshold, or the percentage of the Quarterly Cash Distribution Amount payable as Incentive Distributions;

 

(c)                                   permit the Trust to distribute the Royalty Interests in kind to the Trust Unitholders; or

 

(d)                                  unless consented to in writing by SandRidge, have the effect of amending Sections 3.02, 6.02, 7.02, 9.02, 9.03, 10.01 or 10.02 hereof.

 

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Section 10.02.                                 Permitted Amendments. After the Closing, subject to Section 10.01, the Trustee and the Delaware Trustee may amend this Agreement and the Transaction Documents to which the Trust is a party as follows:

 

(a)                                  The Trustee may from time to time supplement or amend the Transaction Documents and the Direct Hedge Security Instruments to which the Trust is a party without the approval of Trust Unitholders in order to cure any ambiguity, to correct or supplement any provision contained herein or therein that may be defective or inconsistent with any other provisions herein or therein, to grant any benefit to all of the Trust Unitholders, to add collateral to the Drilling Mortgages, to evidence or implement any changes required by applicable law or to change the name of the Trust; provided , however , that such supplement or amendment does not adversely affect the interests of the Trust Unitholders; and provided , further , that any amendment to this Agreement made to change the name of the Trust in accordance with Section 12.04 hereof or otherwise shall be conclusively deemed not to affect adversely the interests of the Trust Unitholders or result in a variance of the investment of the Trust or the Trust Unitholders.

 

(b)                                  Notwithstanding Section 10.02(a), the Trustee may, from time to time reset, terminate, modify or otherwise amend the Direct Hedge Contracts, and take any other actions ancillary thereto, without the approval of the Trust Unitholders; provided, that any such action is taken at the request of SandRidge in its role as hedge manager pursuant to the Administrative Services Agreement.

 

(c)                                   Notwithstanding Section 10.02(a), the Trustee may, from time to time supplement or amend the Administrative Services Agreement and the Collateral Agency Agreement without the approval of the Trust Unitholders; provided , however , that such supplement or amendment would not materially increase the costs or expenses of the Trust or materially adversely affect the economic interests of Trust Unitholders.

 

(d)                                  All other permitted amendments to the provisions of this Agreement and the other Transaction Documents to which the Trust is a party may be made only by the vote of the holders of a Unit Majority at a meeting duly called and held in accordance with Article VIII.

 

(e)                                   No amendment that increases the obligations, duties or liabilities or affects the rights of the Delaware Trustee or the Trustee shall be effective without the express written approval of such Entity.

 

ARTICLE XI
ARBITRATION

 

THE TRUSTEE AND SANDRIDGE AGREE THAT, EXCEPT AS PROVIDED IN PARAGRAPH (I) OF THIS ARTICLE XI, ANY DISPUTE, CONTROVERSY OR CLAIM THAT MAY ARISE BETWEEN OR AMONG SANDRIDGE (ON THE ONE HAND) AND THE TRUST OR THE TRUSTEE (ON THE OTHER HAND) IN CONNECTION WITH OR OTHERWISE RELATING TO THE TRANSACTION DOCUMENTS TO WHICH THE TRUST IS A PARTY, OR THE APPLICATION, IMPLEMENTATION, VALIDITY OR BREACH OF THE TRANSACTION DOCUMENTS TO WHICH THE TRUST IS A PARTY

 

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OR ANY PROVISION OF THE TRANSACTION DOCUMENTS TO WHICH THE TRUST IS A PARTY (INCLUDING, WITHOUT LIMITATION, CLAIMS BASED ON CONTRACT, TORT OR STATUTE), SHALL BE FINALLY, CONCLUSIVELY AND EXCLUSIVELY SETTLED BY BINDING ARBITRATION IN OKLAHOMA CITY, OKLAHOMA IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES (THE “ RULES ”) OF THE AMERICAN ARBITRATION ASSOCIATION OR ANY SUCCESSOR THERETO (“ AAA ”) THEN IN EFFECT. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TRUSTEE (ON BEHALF OF ITSELF AND ON BEHALF OF THE TRUST), THE DELAWARE TRUSTEE AND SANDRIDGE HEREBY EXPRESSLY WAIVE THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO TRIAL BY JURY, WITH RESPECT TO ANY MATTER SUBJECT TO ARBITRATION PURSUANT TO THIS ARTICLE XI. THE TRUSTEE AND SANDRIDGE MAY BRING AN ACTION, INCLUDING, WITHOUT LIMITATION, A SUMMARY OR EXPEDITED PROCEEDING, IN ANY COURT HAVING JURISDICTION, TO COMPEL ARBITRATION OF ANY DISPUTE, CONTROVERSY OR CLAIM TO WHICH THIS ARTICLE XI APPLIES. EXCEPT WITH RESPECT TO THE FOLLOWING PROVISIONS (THE “ SPECIAL PROVISIONS ”) WHICH SHALL APPLY WITH RESPECT TO ANY ARBITRATION PURSUANT TO THIS ARTICLE XI, THE INITIATION AND CONDUCT OF ARBITRATION SHALL BE AS SET FORTH IN THE RULES, WHICH RULES ARE INCORPORATED IN THIS AGREEMENT BY REFERENCE WITH THE SAME EFFECT AS IF THEY WERE SET FORTH IN THIS AGREEMENT.

 

(a)                                  In the event of any inconsistency between the Rules and the Special Provisions, the Special Provisions shall control. References in the Rules to a sole arbitrator shall be deemed to refer to the tribunal of arbitrators provided for under subparagraph (c) below in this Article XI.

 

(b)                                  The arbitration shall be administered by AAA.

 

(c)                                   The arbitration shall be conducted by a tribunal of three arbitrators. Within ten days after arbitration is initiated pursuant to the Rules, the initiating party or parties (the “ Claimant ”) shall send written notice to the other party or parties (the “ Respondent ”), with a copy to the Oklahoma City, Oklahoma office of AAA (if no such office exists, to the Dallas, Texas office of AAA), designating the first arbitrator (who shall not be a representative or agent of any party but may or may not be an AAA panel member and, in any case, shall be reasonably believed by the Claimant to possess the requisite experience, education and expertise in respect of the matters to which the claim relates to enable such person to completely perform arbitral duties). Within ten days after receipt of such notice, the Respondent shall send written notice to the Claimant, with a copy to the Oklahoma City, Oklahoma office of AAA (if no such office exists, to the Dallas, Texas office of AAA) and to the first arbitrator, designating the second arbitrator (who shall not be a representative or agent of any party, but may or may not be an AAA panel member and, in any case, shall be reasonably believed by the Respondent to possess the requisite experience, education and expertise in respect of the matters to which the claim relates to enable such person to competently perform arbitral duties). Within ten days after such notice from the Respondent is received by the Claimant, the Respondent and the Claimant shall cause their respective designated arbitrators to select any mutually agreeable AAA panel member as the third arbitrator. If the respective designated arbitrators of the Respondent and the Claimant cannot so agree within said ten day period, then the third arbitrator will be determined pursuant

 

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to the Rules. For purposes of this Article XI, SandRidge (on the one hand) and the Trust and the Trustee (on the other hand) shall each be entitled to the selection of one arbitrator. Prior to commencement of the arbitration proceeding, each arbitrator shall have provided the parties with a resume outlining such arbitrator’s background and qualifications and shall certify that such arbitrator is not a representative or agent of any of the parties. If any arbitrator shall die, fail to act, resign, become disqualified or otherwise cease to act, then the arbitration proceeding shall be delayed for 15 days and the party by or on behalf of whom such arbitrator was appointed shall be entitled to appoint a substitute arbitrator (meeting the qualifications set forth in this Article XI) within such 15-day period; provided, however , that if the party by or on behalf of whom such arbitrator was appointed shall fail to appoint a substitute arbitrator within such 15-day period, the substitute arbitrator shall be a neutral arbitrator appointed by the AAA arbitrator within 15 days thereafter.

 

(d)                                  All arbitration hearings shall be commenced within 120 days after arbitration is initiated pursuant to the Rules, unless, upon a showing of good cause by a party to the arbitration, the tribunal of arbitrators permits the extension of the commencement of such hearing; provided, however , that any such extension shall not be longer than 60 days.

 

(e)                                   All claims presented for arbitration shall be particularly identified and the parties to the arbitration shall each prepare a statement of their position with recommended courses of action. These statements of position and recommended courses of action shall be submitted to the tribunal of arbitrators chosen as provided hereinabove for binding decision. The tribunal of arbitrators shall not be empowered to make decisions beyond the scope of the position papers.

 

(f)                                    The arbitration proceeding will be governed by the substantive laws of the State of Delaware and will be conducted in accordance with such procedures as shall be fixed for such purpose by the tribunal of arbitrators, except that (i) discovery in connection with any arbitration proceeding shall be conducted in accordance with the Federal Rules of Civil Procedure and applicable case law, (ii) the tribunal of arbitrators shall have the power to compel discovery and (iii) unless the parties otherwise agree and except as may be provided in this Article XI, the arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. §§ 1-16, to the exclusion of any provision of state law or other applicable law or procedure inconsistent therewith or which would produce a different result. The parties shall preserve their right to assert and to avail themselves of the attorney-client and attorney-work-product privileges, and any other privileges to which they may be entitled pursuant to applicable law. No party to the arbitration or any arbitrator may compel or require mediation and/or settlement conferences without the prior written consent of all such parties and the tribunal of arbitrators.

 

(g)                                   The tribunal of arbitrators shall make an arbitration award as soon as possible after the later of the close of evidence or the submission of final briefs, and in all cases the award shall be made not later than thirty days following submission of the matter. The finding and decision of a majority of the arbitrators shall be final and shall be binding upon the parties. Judgment upon the arbitration award or decision may be entered in any court having jurisdiction thereof or application may be made to any such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The tribunal of arbitrators shall have the authority to assess liability for pre-award and post-award interest on the claims, attorneys’ fees, expert witness fees and all other expenses of arbitration as such arbitrators shall deem appropriate based

 

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on the outcome of the claims arbitrated. Unless otherwise agreed by the parties to the arbitration in writing, the arbitration award shall include findings of fact and conclusions of law.

 

(h)                                  Nothing in this Article XI shall be deemed to (i) limit the applicability of any otherwise applicable statute of limitations or repose or any waivers contained in this Agreement, (ii) constitute a waiver by any party hereto of the protections afforded by 12 U.S.C. § 91 or any successor statute thereto or any substantially equivalent state law, (iii) restrict the right of the Trustee to make application to any state or federal district court having jurisdiction in Oklahoma City, Oklahoma, to appoint a successor Trustee or to request instructions with regard to any provision in this Agreement when the Trustee is unsure of its obligations thereunder, or (iv) apply to the Delaware Trustee.

 

(i)                                      Neither the Trust nor the Trustee shall participate in any class action brought against SandRidge by any Person who is not a Trust Unitholder and the Trustee shall opt out of any such class action in which the Trust is a purported class member; provided that the Trust may participate in any such action brought by Trust Unitholders or in which such participation by the Trust is approved by the vote of a Unit Majority at a duly called and held meeting of the Trust Unitholders in accordance with Section 8.02.

 

ARTICLE XII
MISCELLANEOUS

 

Section 12.01.                                 Inspection of Books. Each Trust Unitholder and its duly authorized Agents shall have the right, at its own expense and during reasonable business hours upon reasonable prior notice, to examine and inspect the records (including, without limitation, the ownership ledger) of the Trust and the Trustee in reference thereto for any purpose reasonably related to the Trust Unitholder’s interest as a Trust Unitholder. The Trustee and its duly authorized Agents shall have the right, at the expense of the Trust and during reasonable business hours upon reasonable prior written notice, to examine and inspect the records of SandRidge relating to the Royalty Interests and the Underlying Properties.

 

Section 12.02.                                 Disability of a Trust Unitholder. Any payment or distribution to a Trust Unitholder may be made by check of the Trustee drawn to the order of the Trust Unitholder, regardless of whether or not the Trust Unitholder is a minor or under other legal disability, without the Trustee having further responsibility with respect to such payment or distribution. This Section 12.02 shall not be deemed to prevent the Trustee from making any payment or distribution by any other method that is appropriate under law.

 

Section 12.03.                                 Merger or Consolidation of Delaware Trustee or Trustee. Neither a change of name of either the Delaware Trustee or the Trustee, nor any merger or consolidation of its corporate powers with another bank or with a trust company, nor the sale or transfer of all or substantially all of its institutional and corporate trust operations to a separate bank, trust company, corporation or other business entity shall adversely affect such resulting or successor party’s right or capacity to act hereunder; provided, however , that the Delaware Trustee or any successor thereto shall maintain its principal place of business in the State of Delaware; and provided, further , that, in the case of any successor Trustee or Delaware Trustee, it shall continue to meet the requirements of Section 6.05 of this Agreement.

 

45



 

Section 12.04.                                 Change in Trust Name. Upon the written request by SandRidge submitted to the Trustee and the Delaware Trustee, the Trustee shall, without the vote or consent of any Trust Unitholders, take all action necessary to change the name of the Trust to a name mutually agreeable to the Trustee and SandRidge and, upon effecting such name change, the Delaware Trustee, acting pursuant to the written instructions of the Trustee, shall amend the Certificate of Trust on file in the office of the Secretary of State of the state of Delaware to reflect such name change.

 

Section 12.05.                                 Filing of this Agreement. There is no obligation on the part of the Trustee that this Agreement or any executed copy hereof be filed in any county in which any of the Trust Estate is located or elsewhere, but the same may be filed for record in any county by the Trustee. In order to avoid the necessity of filing this Agreement for record, each of the Delaware Trustee and the Trustee agrees that for the purpose of vesting the record title to the Trust Estate in any successor trustee, each shall execute and deliver to such successor trustee appropriate assignments or conveyances.

 

Section 12.06.                                 Choice of Law. This Agreement and the Trust shall be governed by the laws of the State of Delaware (without regard to the conflict of laws principles thereof) in effect at any applicable time in all matters, including the validity, construction and administration of this Agreement and the Trust, the enforceability of the provisions of this Agreement, all rights and remedies hereunder and the services of the Delaware Trustee and Trustee hereunder. Furthermore, except as otherwise provided in this Agreement, the rights, powers, duties and liabilities of the Delaware Trustee, the Trustee and the Trust Unitholders shall be as provided under the Trust Act and other applicable laws of the State of Delaware and the United States of America in effect at any applicable time; provided, however , that there shall not be applicable to the Trustee, the Delaware Trustee, the Trust Unitholders, the Trust or this Agreement any provision of the laws (common or statutory) of the State of Delaware pertaining to trusts (other than the Trust Act) that relate to or regulate, in a manner inconsistent with the terms hereof, (i) the filing with any court or governmental body or agency of trustee accounts or schedules of trustee fees and charges, (ii) affirmative requirements to post bonds for trustees, officers, agents or employees of a trust, (iii) the necessity for obtaining court or other governmental approval concerning the acquisition, holding or disposition of real or personal property, (iv) fees or other sums payable to trustees, officers, agents or employees of a trust, (v) the allocation of receipts and expenditures to income or principal, (vi) restrictions or limitations on the permissible nature, amount or concentration of trust investments or requirements relating to the titling, storage or other manner of holding or investing trust assets or (vii) the establishment of fiduciary or other standards of responsibility or limitations on the acts or powers of trustees that are inconsistent with the limitations or authorities and powers of the trustees hereunder as set forth or referenced in this Agreement. Section 3540 of Title 12 of the Delaware Code shall not apply to the Trust.

 

Section 12.07.                                 Separability. If any provision of this Agreement or the application thereof to any Person or circumstances shall be finally determined by a court of proper jurisdiction to be illegal, invalid or unenforceable to any extent, the remainder of this Agreement or the application of such provision to Persons or circumstances other than those as to which it is held illegal, invalid or unenforceable shall not be affected thereby, and every

 

46



 

remaining provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.

 

Section 12.08.                                 Notices. Any and all notices or demands permitted or required to be given under this Agreement shall be in writing (or be capable of being reproduced in paper form) and shall be validly given or made if (a) personally delivered, (b) delivered and confirmed by facsimile or like instantaneous transmission service, or by Federal Express or other overnight courier delivery service, which shall be effective as of confirmation of receipt by the courier at the address for notice hereinafter stated, (c) solely in the case of notice to any Trust Unitholder, by press release in a nationally recognized and distributed media or by means of electronic transmission or as otherwise permitted by applicable law or (d) deposited in the United States mail, first class, postage prepaid, certified or registered, return receipt requested, addressed as follows:

 

If to the Trustee, to:

 

The Bank of New York Mellon Trust Company, N.A.
Institutional Trust Services
919 Congress Avenue, Suite 500
Austin, Texas 78701
Attention: Michael J. Ulrich
Facsimile No.: (512) 479-2253

 

With a copy to:

 

Bracewell & Giuliani LLP
111 Congress Avenue
Suite 2300
Austin, Texas 78701
Attention: Thomas W. Adkins
Facsimile No.: (512) 479-3940

 

With a copy to:

 

Richards, Layton & Finger, P.A.
One Rodney Square
920 North King Street
Wilmington, Delaware 19801
Attention: Eric Mazie
Facsimile No.: (302) 498-7678

 

If to the Delaware Trustee, to:

 

The Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
Attention: Corporate Staffing
Facsimile No.: (302) 658-5459

 

47



 

If to SandRidge, to:

 

123 Robert S. Kerr Avenue
Oklahoma City, OK 73102-6406
Attention: Philip T. Warman
Facsimile No.: (405) 429-5983

 

With a copy to:

 

Covington & Burling, LLP
1201 Pennsylvania Avenue NW
Washington D.C. 20004-2401
Attention: David H. Engvall
Facsimile No.: (202) 778-5307

 

If to a Trust Unitholder, to:

 

The Trust Unitholder at its last address as shown on the ownership records maintained by the Trustee or a transfer agent designated by the Trustee.

 

Notice that is mailed in the manner specified shall be conclusively deemed given three days after the date postmarked or upon receipt, whichever is sooner. Any party to this Agreement may change its address for the purpose of receiving notices or demands by notice given as provided in this Section 12.08.

 

Section 12.09.                                 Counterparts. This Agreement may be executed in a number of counterparts, each of which shall constitute an original, but such counterparts shall together constitute but one and the same instrument.

 

Section 12.10.                                 No Fiduciary Duty of SandRidge or its Affiliates.   The parties hereto and the Trust Unitholders expressly acknowledge and agree that SandRidge and its Affiliates are entering into the Transaction Documents to which they are a party and may exercise their rights and discharge their obligations fully, without hindrance or regard to conflict of interest principles, duty of loyalty principles or other breach of fiduciary duties, all of which defenses, claims or assertions are hereby expressly waived by the other parties hereto and the Trust Unitholders. Neither SandRidge nor any of its Affiliates shall be a fiduciary with respect to the Trust or the Trust Unitholders.  To the extent that, at law or in equity, SandRidge or its Affiliates have duties (including fiduciary duties) and liabilities relating thereto to the Trust or to the Trust Unitholders, such duties and liabilities are hereby eliminated to the fullest extent permitted by law.

 

Section 12.11.                                 Waiver of Damages.  TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NO PARTY SHALL BE LIABLE HEREUNDER FOR EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OTHER LAW OR OTHERWISE.

 

48



 

[Signature page follows]

 

49



 

IN WITNESS WHEREOF, SandRidge, the Trustee and the Delaware Trustee have caused this Agreement to be duly executed the day and year first above written.

 

 

 

SandRidge Energy, Inc.

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

[ Signature Page to Amended and Restated Trust Agreement ]

 



 

 

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

By:

/s/ Michael J. Ulrich

 

 

Name:

Michael J. Ulrich

 

 

Title:

Vice President

 

[ Signature Page to Amended and Restated Trust Agreement ]

 



 

 

The Corporation Trust Company

 

 

 

By:

/s/ Victor A. Duva

 

 

Name:

Victor A. Duva

 

 

Title:

Vice President

 

[ Signature Page to Amended and Restated Trust Agreement ]

 



 

STATE OF OKLAHOMA

 

§

 

 

§

COUNTY OF OKLAHOMA

 

§

 

This instrument was acknowledged before me on April 23, 2012, by James D. Bennett, Executive Vice President and Chief Financial Officer of SandRidge Energy, Inc., a Delaware corporation, on behalf of said corporation.

 

WITNESS my hand and official seal this 23rd day of April, 2012.

 

 

 

 

/s/ Janis L. Roberts

 

 

NOTARY PUBLIC,

 

 

 

 

 

 

 

 

State of Oklahoma

 

 

 

 

 

 

 

 

Janis L. Roberts

 

 

(printed name)

 

 

 

 

 

 

My commission expires: May 22, 2012

 

 

 

 

 

 

 

 

SEAL or STAMP

 

 

 

[ Acknowledgment Page to Amended and Restated Trust Agreement ]

 



 

STATE OF TEXAS

 

§

 

 

§

COUNTY OF TRAVIS

 

§

 

This instrument was acknowledged before me on April 17, 2012, by Michael J. Ulrich as Vice President of The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, the Trustee of SandRidge Mississippian Trust II, a Delaware statutory trust, on behalf of said national banking association and trust.

 

WITNESS my hand and official seal this 17th day of April, 2012.

 

 

 

 

/s/ Sarah Newell

 

 

NOTARY PUBLIC,

 

 

 

 

 

State of Texas

 

 

 

 

 

Sarah Newell

 

 

(printed name)

 

 

 

 

 

 

My commission expires: February 16, 2014

 

 

 

 

 

 

 

 

SEAL or STAMP

 

 

 

[ Acknowledgment Page to Amended and Restated Trust Agreement ]

 



 

STATE OF DELAWARE

 

§

 

 

§

COUNTY OF NEW CASTLE

 

§

 

This instrument was acknowledged before me on April 17, 2012, by Victor A. Duva as Vice President of The Corporation Trust Company, a corporation organized under the laws of the State of Delaware, the Delaware Trustee of SandRidge Mississippian Trust II, a Delaware statutory trust, on behalf of said corporation.

 

WITNESS my hand and official seal this 17th day of April, 2012.

 

 

 

 

/s/ Melanie McGrath

 

 

NOTARY PUBLIC,

 

 

 

 

 

 

 

 

State of Delaware

 

 

 

 

 

 

 

 

Melanie McGrath

 

 

(printed name)

 

 

 

 

 

 

My commission expires: April 15, 2013

 

 

 

 

 

 

 

 

SEAL or STAMP

 

 

 

[ Acknowledgment Page to Amended and Restated Trust Agreement ]

 



 

Schedule 1

 

Initial Direct Hedges

 

Counterparty

 

Date of
Confirmation

 

Reference No.

 

Period Covered

 

Volumes
Covered by
Initial Direct
Hedge

(Bbls)

 

Barclays PLC

 

February 24, 2012

 

29082229

 

4/1/2012-12/31/2012

 

229,247

 

Barclays PLC

 

February 29, 2012

 

29082289

 

1/1/2013-12/31/2013

 

223,059

 

Barclays PLC

 

March 8, 2012

 

29242099

 

1/1/2014-12/31/2014

 

169,121.5

 

Citibank, N.A.

 

February 29, 2012

 

11110347

 

4/1/2012-12/31/2012

 

229,247

 

Citibank, N.A.

 

February 22, 2012

 

11110351

 

1/1/2013-12/31/2013

 

223,059

 

Morgan Stanley Capital Group Inc.

 

March 9, 2012

 

T84070899-1

 

1/1/2014-12/31/2014

 

169,121.5

 

 



 

Schedule 2

 

Target Distributions and Subordination and Incentive Thresholds

 

Quarter Ending

 

Subordination
Threshold(1)

 

Target Cash
Distribution

 

Incentive
Threshold(1)

 

Quarter Ending

 

Target Cash
Distribution

 

March 31, 2012(2)

 

$

.21

 

$

.26

 

$

.32

 

March 31, 2022

 

$

.38

 

June 30, 2012

 

.37

 

.46

 

.56

 

June 30, 2022

 

.37

 

September 30, 2012

 

.45

 

.56

 

.68

 

September 30, 2022

 

.37

 

December 31, 2012

 

.48

 

.60

 

.71

 

December 31, 2022

 

.37

 

March 31, 2013

 

.52

 

.65

 

.78

 

March 31, 2023

 

.36

 

June 30, 2013

 

.55

 

.69

 

.83

 

June 30, 2023

 

.36

 

September 30, 2013

 

.54

 

.67

 

.81

 

September 30, 2023

 

.35

 

December 31, 2013

 

.56

 

.71

 

.85

 

December 31, 2023

 

.35

 

March 31, 2014

 

.58

 

.72

 

.86

 

March 31, 2024

 

.34

 

June 30, 2014

 

.60

 

.74

 

.89

 

June 30, 2024

 

.34

 

September 30, 2014

 

.60

 

.75

 

.90

 

September 30, 2024

 

.33

 

December 31, 2014

 

.58

 

.72

 

.87

 

December 31, 2024

 

.33

 

March 31, 2015

 

.63

 

.79

 

.95

 

March 31, 2025

 

.33

 

June 30, 2015

 

.64

 

.81

 

.97

 

June 30, 2025

 

.32

 

September 30, 2015

 

.64

 

.80

 

.96

 

September 30, 2025

 

.32

 

December 31, 2015

 

.64

 

.80

 

.96

 

December 31, 2025

 

.32

 

March 31, 2016

 

.67

 

.84

 

1.00

 

March 31, 2026

 

.31

 

June 30, 2016

 

.64

 

.80

 

.96

 

June 30, 2026

 

.31

 

September 30, 2016

 

.58

 

.73

 

.87

 

September 30, 2026

 

.31

 

December 31, 2016

 

.54

 

.68

 

.81

 

December 31, 2026

 

.30

 

March 31, 2017

 

.51

 

.64

 

.77

 

March 31, 2027

 

.30

 

June 30, 2017

 

.48

 

.60

 

.73

 

June 30, 2027

 

.30

 

September 30, 2017

 

.46

 

.58

 

.69

 

September 30, 2027

 

.29

 

December 31, 2017

 

.44

 

.55

 

.66

 

December 31, 2027

 

.29

 

March 31, 2018

 

 

 

.53

 

 

 

March 31, 2028

 

.29

 

June 30, 2018

 

 

 

.51

 

 

 

June 30, 2028

 

.28

 

September 30, 2018

 

 

 

.50

 

 

 

September 30, 2028

 

.28

 

December 31, 2018

 

 

 

.48

 

 

 

December 31, 2028

 

.28

 

March 31, 2019

 

 

 

.47

 

 

 

March 31, 2029

 

.27

 

June 30, 2019

 

 

 

.46

 

 

 

June 30, 2029

 

.27

 

September 30, 2019

 

 

 

.45

 

 

 

September 30, 2029

 

.27

 

December 31, 2019

 

 

 

.44

 

 

 

December 31, 2029

 

.27

 

March 31, 2020

 

 

 

.43

 

 

 

March 31, 2030

 

.26

 

June 30, 2020

 

 

 

.42

 

 

 

June 30, 2030

 

.26

 

September 30, 2020

 

 

 

.41

 

 

 

September 30, 2030

 

.26

 

December 31, 2020

 

 

 

.41

 

 

 

December 31, 2030

 

.26

 

March 31, 2021

 

 

 

.40

 

 

 

March 31, 2031

 

.25

 

June 30, 2021

 

 

 

.39

 

 

 

June 30, 2031

 

.25

 

September 30, 2021

 

 

 

.39

 

 

 

September 30, 2031

 

.25

 

December 31, 2021

 

 

 

.38

 

 

 

December 31, 2031

 

.25

 

 

 

 

 

 

 

 

 

Remaining

 

3.93

 

 


(1)   For each quarter, the Subordination Threshold equals 80% of the Target Cash Distribution, and the Incentive Threshold equals 120% of the Target Cash Distribution.

(2)   Includes proceeds attributable to the first two months of production from January 1, 2012 to February 29, 2012,  based on estimated realized production for January and February 2012.

 



 

Schedule 3

 

Fee Schedule of Trustee

 

1. The fee will be $150,000 annually until January 1, 2018.

 

2. The fee will be adjusted annually thereafter, up or down, by the amount of the change in the All Urban Consumers (CPI-U) — US City Average for the immediately preceding calendar year, not to exceed +/- 3% in any one year.

 



 

ANNEX A

 

TO AMENDED AND RESTATED TRUST AGREEMENT OF

SANDRIDGE MISSISSIPPIAN TRUST II

 

U.S. FEDERAL INCOME TAX PROVISIONS

 

1. Purpose and Scope; Definitions; Use of Agents.

 

(a) For U.S. federal income tax purposes, SandRidge Mississippian Trust II (the “ Trust ”) will be classified and treated as a partnership and the Trust Unitholders will be treated as the partners in such partnership. A partnership is not a taxable entity and incurs no U.S. federal income tax liability. Instead, each partner is required to take into account its allocable share of items of income, gain, loss, deduction and credit of the partnership in computing its U.S. federal income tax liability. This Annex A contains provisions necessary to permit the Trust to comply with the U.S. federal income tax law applicable to the Trust, including provisions governing the allocation of items of income, gain, loss and deduction of the Trust and the maintenance of the Capital Accounts of the Trust Unitholders. Unless the context otherwise requires, references to “sections” in this Annex A refer to the sections in this Annex A, not sections of the Agreement.

 

(b) For purposes of this Annex A, the “ Partnership ” means the Trust, “ Partner(s) ” means Trust Unitholder(s), “ Partnership Interest ” means the ownership interest in the Trust held by a Trust Unitholder, and “ Capital Contribution ” means a Trust Unitholder’s initial investment in the Trust. Other terms used in this Annex A have the meanings set forth in Section 7 below or in the Amended and Restated Trust Agreement of which this Annex A is a part.

 

(c) This Annex A provides that under certain circumstances the Trustee is either required to take or has the discretion to take actions relating to the Trust’s status as a partnership for U.S. federal income tax purposes. The Trustee will generally take such required actions, and where such actions are discretionary, will generally exercise its discretion to take such actions, through its Agents, including any independent registered public accounting firms and SandRidge. Pursuant to Section 3.01 of the Agreement, when exercising its discretion on any matters set forth in this Annex A, the Trustee shall take action as in its judgment is necessary, desirable or advisable to best achieve the purpose of the trust.

 

2. Capital Accounts.

 

(a) The Partnership shall maintain for each Partner (or a beneficial owner of Partnership Interests held by a nominee in any case in which the nominee has furnished the identity of such owner to the Partnership in accordance with Section 6031(c) of the Code or any other method acceptable to the Trustee) owning a Partnership Interest a separate capital account (“ Capital Account ”) with respect to such Partnership Interest in accordance with the rules of Treasury Regulation Section 1.704-1(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of all Capital Contributions made to the Partnership with respect to such Partnership Interest and (ii) all items of Net Income and other items of Partnership income and gain (including, without limitation, Simulated Gain and income and gain exempt from tax) computed in accordance with Section 2(b) and allocated with respect to such Partnership Interest pursuant to Section 3, and

 

Annex A - 1



 

decreased by (x) the amount of cash distributions made with respect to such Partnership Interest and (y) all items of Partnership Net Loss and other items of deduction and loss (including Simulated Depletion and Simulated Loss) computed in accordance with Section 2(b) and allocated with respect to such Partnership Interest pursuant to Section 3.

 

(b) For purposes of computing Net Income, Net Loss and the amount of any item of income, gain, loss, deduction, Simulated Depletion, Simulated Gain or Simulated Loss which is to be allocated pursuant to Section 3 and is to be reflected in the Partners’ Capital Accounts, the determination, recognition and classification of any such item shall be the same as its determination, recognition and classification for U.S. federal income tax purposes; provided, however , that:

 

(i) All fees and other expenses incurred by the Partnership to promote the sale of (or to sell) a Partnership Interest that can neither be deducted nor amortized under Section 709 of the Code, if any, shall, for purposes of Capital Account maintenance, be treated as an item of deduction at the time such fees and other expenses are incurred and shall be allocated among the Partners pursuant to Section 3.

 

(ii) Except as otherwise provided in Treasury Regulation Section 1.704-1(b)(2)(iv)(m), the computation of all items of income, gain, loss, deduction, Simulated Depletion, Simulated Gain and Simulated Loss shall be made without regard to any election under Section 754 of the Code which may be made by the Partnership and, as to those items described in Section 705(a)(1)(B) or Section 705(a)(2)(B) of the Code, without regard to the fact that such items are not includable in gross income or are neither currently deductible nor capitalized for U.S. federal income tax purposes. To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) or Section 743(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment in the Capital Accounts shall be treated as an item of gain or loss.

 

(iii) Any income, gain, loss, Simulated Gain or Simulated Loss attributable to the taxable disposition of any Partnership property shall be determined as if the adjusted basis of such property as of such date of disposition were equal in amount to the Partnership’s Carrying Value with respect to such property as of such date.

 

(iv) In accordance with the requirements of Section 704(b) of the Code, any deductions for depreciation, cost recovery, amortization or Simulated Depletion attributable to any Contributed Property shall be determined as if the adjusted basis of such property on the date it was acquired by the Partnership were equal to the Agreed Value of such property, and any such deductions shall reduce the Carrying Value of such Contributed Property.

 

(c) A transferee of a Partnership Interest shall succeed to a pro rata portion of the Capital Account of the transferor relating to the Partnership Interest so transferred.

 

(d) Subject to Section 5(b), immediately prior to the transfer of a Sponsor Common Unit, the Capital Account maintained for the transferor with respect to its Sponsor Common Units will (A) first, be apportioned to the Sponsor Common Units to be transferred in an amount equal to

 

Annex A - 2



 

the product of (x) the number of such Sponsor Common Units to be transferred and (y) the Uniform Per Unit Capital Amount, and (B) second, any remaining balance in such Capital Account will be retained by the transferor and apportioned to its retained Sponsor Common Units. Following any such apportionment, the transferor’s Capital Account maintained with respect to the retained Sponsor Common Units will have a balance equal to the amount allocated under clause (B) herein above, the transferee’s Capital Account established with respect to the transferred Sponsor Common Units will have a balance equal to the amount allocated under clause (A) herein above, and the transferred Sponsor Common Units shall cease to be Sponsor Common Units.

 

3. Allocations for Capital Account Purposes. For purposes of maintaining the Capital Accounts and in determining the rights of the Partners among themselves, the Partnership’s items of income, gain, loss, deduction, Simulated Depletion, Simulated Gain and Simulated Loss (computed in accordance with Section 2(b)) shall be allocated among the Partners for each Allocation Year as provided herein below.

 

(a) Net Income and Net Loss. After giving effect to the special allocations set forth in Section 3(b) and Section 3(c), Net Income and Net Loss for each taxable year and all items of income, gain, loss and deduction taken into account in computing Net Income and Net Loss for such Allocation Year shall be allocated to the Partners in accordance with their respective Percentage Interests.

 

(b) Special Allocations. Notwithstanding any other provision of this Section 3, the following special allocations shall be made for such taxable period:

 

(i) Partnership Minimum Gain Chargeback. Notwithstanding any other provision of this Section 3, if there is a net decrease in Partnership Minimum Gain during any Partnership Allocation Year, each Partner shall be allocated items of Partnership income, gain and Simulated Gain for such period (and, if necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections 1.704-2(f)(6), 1.704-2(g)(2) and 1.704-2(j)(2)(i), or any successor provision. For purposes of this Section 3(b), each Partner’s Adjusted Capital Account balance shall be determined, and the allocation of income, gain and Simulated Gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 3(b) with respect to such Allocation Year (other than an allocation pursuant to Sections 3(b)(vi) and 3(b)(vii)). This Section 3(b)(i) is intended to comply with the Partnership Minimum Gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.

 

(ii) Chargeback of Partner Nonrecourse Debt Minimum Gain. Notwithstanding the other provisions of this Section 3(b) (other than Section 3(b)(i)), except as provided in Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Partner Nonrecourse Debt Minimum Gain during any Partnership Allocation Year, any Partner with a share of Partner Nonrecourse Debt Minimum Gain at the beginning of such Allocation Year shall be allocated items of Partnership income, gain and Simulated Gain for such period (and, if necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii), or any successor provisions. For purposes of this Section 3(b), each Partner’s Adjusted Capital Account balance shall be determined, and the allocation of income,

 

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gain and Simulated Gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 3(b), other than Section 3(b)(i) and other than an allocation pursuant to Sections 3(b)(vi) and 3(b)(vii), with respect to such Allocation Year. This Section 3(b)(ii) is intended to comply with the chargeback of items of income and gain requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

 

(iii) Priority Allocations. If the amount of cash distributed to any Trust Unitholder with respect to its Trust Units for any Allocation Year is greater (on a per Trust Unit basis) than the amount of cash distributed to any other Trust Unitholder with respect to its Trust Units (on a per Trust Unit basis), then there shall be allocated gross income and gain to each Trust Unitholder receiving such greater cash or property distribution until the aggregate amount of such items allocated pursuant to this Section 3(b)(iii) for the current Allocation Year to such Trust Unitholder is equal to the product of (aa) the amount by which the distribution (on a per Trust Unit basis) to such Trust Unitholder exceeds the distribution (on a per Trust Unit basis) to the Trust Unitholders receiving the smallest distribution and (bb) the number of Trust Units with respect to which such Trust Unitholder receives the greater distribution. In the event and to the extent that the allocations required by this Section 3(b)(iii), cannot be made due to an insufficiency of income or gain available for allocation hereunder, such unfulfilled allocations shall be treated as being required pursuant to this Section 3(b)(iii) in the next succeeding Allocation Year (and thereafter until made).

 

(iv) Qualified Income Offset. In the event any Partner unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), items of Partnership income, gain and Simulated Gain shall be specially allocated to such Partner in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations promulgated under Section 704(b) of the Code, the deficit balance, if any, in its Adjusted Capital Account created by such adjustments, allocations or distributions as quickly as possible unless such deficit balance is otherwise eliminated pursuant to Section 3(b)(i) or 3(b)(ii).

 

(v) Gross Income Allocations. In the event any Partner has a deficit balance in its Capital Account at the end of any Partnership Allocation Year in excess of the sum of (A) the amount, if any, such Partner is required to restore pursuant to the provisions of this Annex A and (B) the amount such Partner is deemed obligated to restore pursuant to Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5), such Partner shall be specially allocated items of Partnership gross income, gain and Simulated Gain in the amount of such excess as quickly as possible; provided, however , that an allocation pursuant to this Section 3(b)(v) shall be made only if and to the extent that such Partner would have a deficit balance in its Capital Account as adjusted after all other allocations provided for in this Section 3 have been tentatively made as if this Section 3(b)(v) were not in this Agreement.

 

(vi) Nonrecourse Deductions. Nonrecourse Deductions for any Allocation Year shall be allocated to the Partners in accordance with their respective Percentage Interests. If the Trustee determines that the Partnership’s Nonrecourse Deductions should be allocated in a different ratio to satisfy the safe harbor requirements of the Treasury Regulations promulgated

 

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under Section 704(b) of the Code, the Trustee is authorized, upon notice to the other Partners, to revise the prescribed ratio to the numerically closest ratio that does satisfy such requirements.

 

(vii) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any Allocation Year shall be allocated 100% to the Partner that bears the Economic Risk of Loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i). If more than one Partner bears the Economic Risk of Loss with respect to a Partner Nonrecourse Debt, such Partner Nonrecourse Deductions attributable thereto shall be allocated between or among such Partners in accordance with the ratios in which they share such Economic Risk of Loss.

 

(viii) Nonrecourse Liabilities. For purposes of Treasury Regulation Section 1.752-3(a)(3), the Partners agree that Nonrecourse Liabilities of the Partnership in excess of the sum of (A) the amount of Partnership Minimum Gain and (B) the total amount of Nonrecourse Built-in Gain shall be allocated among the Partners in accordance with their respective Percentage Interests.

 

(ix) Code Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain or Simulated Gain (if the adjustment increases the basis of the asset) or loss or Simulated Loss (if the adjustment decreases such basis), and such item of gain or loss shall be specially allocated to the Partners in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such section of the Treasury Regulations.

 

(x) Economic Uniformity. At the election of the Trustee with respect to any taxable period, all or a portion of the remaining items of Partnership gross income, gain or Simulated Gain for such taxable period shall be allocated 100% to each Partner holding Sponsor Common Units, until each such Partner has been allocated an amount of gross income, gain or Simulated Gain that increases the Capital Account maintained with respect to such Sponsor Common Units to an amount that, after taking into account the other allocations of income, gain, loss, deduction, Simulated Depletion, Simulated Gain and Simulated Loss to be made with respect to such Allocation Year, will equal the product of (A) the number of Sponsor Common Units held by such Partner and (B) the Uniform Per Unit Capital Amount. The purpose of this allocation is to establish uniformity between the Capital Accounts underlying Sponsor Common Units and the Capital Accounts underlying Public Common Units. This allocation method for establishing such economic uniformity will be available to the Trustee only if the method for apportioning the Capital Account maintained with respect to the Sponsor Common Units between the transferred and retained Sponsor Common Units pursuant to Section 2(d) does not otherwise provide such economic uniformity to the Sponsor Common Units.

 

(xi) Curative Allocation.

 

(A) Notwithstanding any other provision of this Section 3, other than the Required Allocations, the Required Allocations shall be taken into account in making the Agreed

 

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Allocations so that, to the extent possible, the net amount of items of income, gain, loss, deduction, Simulated Depletion, Simulated Gain and Simulated Loss allocated to each Partner pursuant to the Required Allocations and the Agreed Allocations, together, shall be equal to the net amount of such items that would have been allocated to each such Partner under the Agreed Allocations had the Required Allocations and the related Curative Allocation not otherwise been provided in this Section 3. Notwithstanding the preceding sentence, Required Allocations relating to (1) Nonrecourse Deductions shall not be taken into account except to the extent that there has been a decrease in Partnership Minimum Gain and (2) Partner Nonrecourse Deductions shall not be taken into account except to the extent that there has been a decrease in Partner Nonrecourse Debt Minimum Gain. Allocations pursuant to this Section 3(b)(xi)(A) shall only be made with respect to Required Allocations to the extent the Trustee determines that such allocations will otherwise be inconsistent with the economic agreement among the Partners. Further, allocations pursuant to this Section 3(b)(xi)(A) shall be deferred with respect to allocations pursuant to clauses (1) and (2) hereof to the extent the Trustee determines that such allocations are likely to be offset by subsequent Required Allocations.

 

(B) The Trustee shall, with respect to each Allocation Year, (1) apply the provisions of Section 3(b)(xi)(A) in whatever order is most likely to minimize the economic distortions that might otherwise result from the Required Allocations, and (2) divide all allocations pursuant to Section 3(b)(xi)(A) among the Partners in a manner that is likely to minimize such economic distortions.

 

(xii) Liquidation. Notwithstanding any other provision of this Section 3, for the Allocation Year that includes the liquidation of the Trust (and any prior Allocation Year to the extent the Trustee determines it is appropriate), items of income, gain, loss, deduction and Simulated Gain (other than the Required Allocations) shall be specially allocated among the Partners in the manner determined appropriate by the Trustee so as to cause, to the maximum extent possible, the Capital Account in respect of each Unit to equal the amount such Unit will receive in liquidating distributions from the Trust.

 

(c) Simulated Basis, Simulated Depletion, Simulated Gain and Simulated Loss.

 

(i) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(k), Simulated Basis and Simulated Depletion with respect to each Depletable Property shall be determined using the simulated cost depletion method described in Treasury Regulation Section 1.704-1(b)(2)(iv)(K)(2) and shall be allocated among the Partners in accordance with their respective Percentage Interests.

 

(ii) Simulated Gain shall be allocated in the same manner as an item of gain in a corresponding amount would be allocated pursuant to Section 4(a).

 

(iii) Simulated Loss with respect to the disposition of an Depletable Property shall be allocated among the Partners in proportion to their allocable shares of total amount realized from such disposition under Section 4(c)(i)).

 

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4. Allocations for Tax Purposes.

 

(a) Except as otherwise provided in this Section 4, for U.S. federal income tax purposes, each item of income, gain, loss and deduction shall be allocated among the Partners in the same manner as its correlative item of “book” income, gain, loss or deduction is allocated pursuant to Section 3.

 

(b) The deduction for depletion with respect to each separate Depletable Property shall be computed for U.S. federal income tax purposes separately by the Partners rather than by the Partnership in accordance with Section 613A(c)(7)(D) of the Code.

 

(i) Except as provided in Section 4(b)(ii), for purposes of such computation (before taking into account any adjustments resulting from an election made by the Partnership under Section 754 of the Code), the adjusted tax basis of each Depletable Property shall be allocated among the Partners in accordance with their respective Percentage Interests.

 

(ii) The Partners recognize that with respect to Depletable Property that is Contributed Property there may be a difference between the Carrying Value of such property at the time of contribution and the adjusted tax basis of such property at that time. In order to take into account the disparities between the Carrying Values and the adjusted tax bases with respect to such properties in accordance with the principles of Treasury Regulation Section 1.704-3(d), the adjusted tax basis of each Depletable Property shall be allocated among the Partners in such a manner that, to the maximum extent possible, each Partner (other than the Property Contributor) shall be allocated an amount of the Depletable Property’s adjusted tax basis equal to its share of the Partnership’s Simulated Basis in such Depletable Property. Each Partner shall separately keep records of his share of the adjusted tax basis in each Depletable Property, allocated as provided above, adjust such share of the adjusted tax basis for any cost or percentage depletion allowable with respect to such property, and use such adjusted tax basis in the computation of its cost depletion or in the computation of his gain or loss on the disposition of such property by the Partnership.

 

(c) For the purposes of the separate computation of gain or loss by each Partner on the sale or disposition of each separate Depletable Property, the Partnership’s “amount realized” (as such term is defined in Section 1001(b) of the Code) from such sale or disposition shall be allocated for U.S. federal income tax purposes among the Partners as follows:

 

(i) first, to the extent such amount realized constitutes a recovery of the Simulated Basis of the property, to the Partners in the same proportion as the adjusted tax basis of such property was allocated to the Partners pursuant to Section 4(b);

 

(ii) second, to any Partner that contributed the Depletable Property to the Partnership in an amount equal (as of the time of such contribution) to the excess, if any, of the Simulated Basis of such property allocated to Partners other than the Property Contributor pursuant to Section 3(c)(i) over the sum of the amount of the adjusted basis therein allocated to such other Partners pursuant to Section 4(b)(ii) less the cumulative amount of remedial deductions, if any, allocated to such other Partners with respect to such Depletable Property pursuant to clause (ii) of Section 4(d);

 

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(iii) third, the remainder of such amount realized, if any, to the Partners so that, to the maximum extent possible, the amount realized allocated to each Partner under this Section 4(c)(iii) will equal such Partner’s share of the Simulated Gain recognized by the Partnership from such sale or disposition; and

 

(iv) any elections or other decisions relating to such allocations shall be made by the Trustee in any manner that reasonably reflects the purpose and intention of the Agreement.

 

(d) In an attempt to eliminate Book-Tax Disparities attributable to a Contributed Property (i) in the case of Contributed Property other than Depletable Property, (A) items of income, gain and loss shall be allocated for U.S. federal income tax purposes among the Partners in any manner permissible under Section 704(c) of the Code that takes into account the variation between the Agreed Value of such property and its adjusted basis at the time of contribution; and (B) any item of Residual Gain or Residual Loss attributable to such Contributed Property shall be allocated among the Partners in the same manner as its correlative item of “book” gain or loss is allocated pursuant to Section 3; and (ii) in the case of a Contributed Property that is a Depletable Property in which a Public Unitholder’s allocable share of the Simulated Basis under Section 3(c)(i) exceeds his allocated share of the adjusted tax basis immediately after formation of the Partnership under Section 4(b), the Trustee shall make allocations, to the extent possible consistent with the Treasury Regulations under Sections 613A and 704 of the Code, of tax items applying the principles of Treasury Regulation Section 1.704-3(d) as necessary to eliminate such Book-Tax Disparity.

 

(e) For the proper administration of the Partnership and for the preservation of uniformity of the Trust Units, the Trustee shall (i) make special allocations for U.S. federal income tax purposes of income (including, without limitation, gross income) or deductions; and (ii) amend the provisions of this Annex A as appropriate (x) to reflect the proposal or promulgation of Treasury Regulations under Section 704(b) or Section 704(c) of the Code or (y) otherwise to preserve or achieve uniformity of the Trust Units. The Trustee may adopt such conventions, make such allocations and make such amendments to this Annex A as provided in this Section 4(e) only if such conventions, allocations or amendments would not have a material adverse effect on the Partners or the Partnership, and if such allocations are consistent with the principles of Section 704 of the Code.

 

(f) All items of income, gain, loss, deduction and credit recognized by the Partnership for U.S. federal income tax purposes and allocated to the Partners in accordance with the provisions hereof shall be determined without regard to any election under Section 754 of the Code that may be made by the Partnership; provided, however , that such allocations, once made, shall be adjusted (in the manner determined by the Trustee) to take into account those adjustments permitted or required by Sections 734 and 743 of the Code.

 

(g) Each item of Partnership income, gain, loss and deduction shall for U.S. federal income tax purposes, be determined and allocated on a quarterly basis (i.e., for each Quarterly Period) and all such items for each Quarterly Period shall be allocated to the Partners that are Trust Unitholders of record as of the opening of the New York Stock Exchange on the Quarterly Record Date that occurs during such Quarterly Period; provided, however , that (i) income gain, loss and deduction attributable to any Quarterly Period ending on or prior to March 31, 2012,

 

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shall be allocated to the Partners as of the opening of the New York Stock Exchange on the first Quarterly Record Date and (ii) gain or loss on a sale or other disposition of any assets of the Partnership or any other extraordinary item of income or loss realized and recognized other than in the ordinary course of business, as determined by the Trustee, shall be allocated to the Partners as of the opening of the New York Stock Exchange on the first Quarterly Record Date that includes income from the quarter in which such gain or loss is recognized for U.S. federal income tax purposes. The Trustee may revise, alter or otherwise modify such methods of allocation to the extent permitted or required by Section 706 of the Code and the regulations or rulings promulgated thereunder.

 

(h) Allocations that would otherwise be made to a Trust Unitholder under the provisions of this Section 4 shall instead be made to the beneficial owner of Trust Units held by a nominee in any case in which the nominee has furnished the identity of such owner to the Partnership in accordance with Section 6031(c) of the Code or any other method determined by the Trustee.

 

(i) The allocations pursuant to this Section 4 are solely for purposes of federal and state income taxes and will not affect, or in any way be taken into account in computing, a Partner’s Capital Account.

 

5. Special Provisions Relating to the Subordinated Unitholders.

 

(a) Immediately upon the conversion of Subordinated Units into Common Units pursuant to Section 3.15(b) of the Trust Agreement, the Trust Unitholder holding a Subordinated Unit shall possess with respect to such units all of the rights and obligations of a Trust Unitholder holding Common Units hereunder, including the right to vote as a Common Unitholder and the right to participate in allocations of income, gain, loss, deduction, Simulated Depletion, Simulated Gain and Simulated Loss and distributions made with respect to Common Units; provided, however , that such converted Subordinated Units shall be treated as Sponsor Common Units that remain subject to the provisions of Sections 2(d), 3(b)(x), and 5(b).

 

(b) The Trust Unitholder holding a Sponsor Common Unit shall not be permitted to transfer such Sponsor Common Unit until such time as the Trustee determines, based on advice of counsel, that each such Sponsor Common Unit should have, as a substantive matter, like intrinsic economic and U.S. federal income tax characteristics, in all material respects, to the intrinsic economic and U.S. federal income tax characteristics of a Public Common Unit. In connection with the condition imposed by this Section 5(b), the Trustee may take whatever steps are required to provide economic uniformity to such Sponsor Common Units in preparation for a transfer thereof, including the application of Sections 2(d) and 4(b)(x); provided, however , that no such steps may be taken that would have a material adverse effect on the Trust Unitholders holding Public Common Units.

 

6. Tax Matters.

 

(a) Tax Returns and Information. The Trustee shall timely file or cause to be filed all returns and reports of the Partnership that are required for federal, state and local income tax purposes on the basis of the accrual method and a taxable year ending on December 31. In the event the Partnership is required to use a taxable period other than a year ending on

 

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December 31, the Trustee shall use reasonable efforts to change the taxable period of the Partnership to a year ending on December 31. The tax information reasonably required by Record Holders for federal and state income tax reporting purposes with respect to each Allocation Year shall be furnished to them within 90 days of the close of the calendar year in which the Partnership’s Allocation Year ends. The classification, realization and recognition of income, gain, losses and deductions and other items shall be on the accrual method of accounting for U.S. federal income tax purposes.

 

(b) Tax Elections.

 

(i) The Partnership shall make the election under Section 754 of the Code in accordance with applicable regulations thereunder, subject to the reservation of the right to seek to revoke any such election upon the Trustee’s determination that such revocation is in the best interests of the Trust Unitholders. Notwithstanding any other provision herein contained, for the purposes of computing the adjustments under Section 743(b) of the Code, the Trustee shall be authorized (but not required) to adopt a convention whereby the price paid by a transferee of a Trust Unit will be deemed to be the lowest quoted closing price of the Trust Units on the New York Stock Exchange during the calendar month in which such transfer is deemed to occur pursuant to Section 4(f) without regard to the actual price paid by such transferee.

 

(ii) Except as otherwise provided herein, the Trustee shall determine whether the Partnership should make any other elections permitted by the Code.

 

(c) Tax Controversies. Subject to the provisions hereof, SandRidge Energy, Inc. is designated the Tax Matters Partner (as defined in the Code) and is authorized and required to represent the Partnership (at the Partnership’s expense) in connection with all examinations of the Partnership’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Partnership funds for professional services and costs associated therewith. Each Partner agrees to cooperate with the Trustee and to do or refrain from doing any or all things reasonably required by the Trustee to conduct such proceedings.

 

(d) Withholding. Notwithstanding any other provision of this Annex A, the Trustee is authorized to take any action that may be required to cause the Partnership to comply with any withholding requirements established under the Code or any other federal, state or local law including, without limitation, pursuant to Sections 1441, 1442, 1445 and 1446 of the Code. To the extent that the Partnership is required or elects to withhold and pay over to any taxing authority any amount resulting from the allocation or distribution of income to any Partner (including, without limitation, by reason of Section 1441 of the Code), the Trustee may treat the amount withheld as a distribution of cash in the amount of such withholding from such Partner. If the payment is made to a taxing authority on behalf of a Partner whose identity cannot be determined, the Trustee may treat the amount withheld as a distribution of cash to all current Partners.

 

7. Additional Definitions.

 

Adjusted Capital Account ” means the Capital Account maintained for each Partner as of the end of each Allocation Year of the Partnership, (a) increased by any amounts that such

 

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Partner is obligated to restore under the standards set by Treasury Regulation Section 1.704-1(b)(2)(ii)(c) (or is deemed obligated to restore under Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5)) and (b) decreased by (i) the amount of all losses and deductions that, as of the end of such Allocation Year, are reasonably expected to be allocated to such Partner in subsequent years under Sections 704(e)(2) and 706(d) of the Code and Treasury Regulation Section 1.751-1(b)(2)(ii), and (ii) the amount of all distributions that, as of the end of such Allocation Year, are reasonably expected to be made to such Partner in subsequent years in accordance with the terms of this Agreement or otherwise to the extent they exceed offsetting increases to such Partner’s Capital Account that are reasonably expected to occur during (or prior to) the year in which such distributions are reasonably expected to be made (other than increases as a result of a minimum gain chargeback pursuant to Section 3(b)(i) or 3(b)(ii)). The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

 

Agreed Allocation ” means any allocation, other than a Required Allocation, of an item of income, gain, loss or deduction pursuant to the provisions of Section 3, including, without limitation, a Curative Allocation (if appropriate to the context in which the term “Agreed Allocation” is used).

 

Agreed Value ” of any Contributed Property means the fair market value of such property or other consideration at the time of contribution as determined by the Trustee.

 

Allocation Year ” means (i) the period commencing on the Closing Date and ending on December 31, 2012, (ii) any subsequent period commencing on the first day of January and ending on the last day of December or (iii) any portion of the period described in clause (ii) for which the Partnership is required to allocate Net Income, Net Loss, and any other items of Partnership income, gain, loss or deduction pursuant to Section 3.

 

Book-Tax Disparity ” means with respect to any item of Contributed Property, as of the date of any determination, the difference between the Carrying Value of such Contributed Property and the adjusted basis thereof for U.S. federal income tax purposes as of such date. A Partner’s share of the Partnership’s Book-Tax Disparities in all of its Contributed Property will be reflected by the difference between such Partner’s Capital Account balance as maintained pursuant to Section 2 and the hypothetical balance of such Partner’s Capital Account computed as if it had been maintained strictly in accordance with U.S. federal income tax accounting principles.

 

Capital Account ” is defined in Section 2.

 

Capital Contribution ” means any cash, cash equivalents or the Net Agreed Value of Contributed Property that a Partner contributes to the Partnership or that is contributed or deemed contributed to the Partnership on behalf of a Partner (including, in the case of an underwritten offering of Trust Units, the amount of any underwriting discounts or commissions).

 

Carrying Value ” means (a) the Agreed Value of Contributed Property, and (b) with respect to any other Partnership property, the adjusted basis of such property for U.S. federal income tax purposes, all as of the time of determination.

 

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Code ” means the Internal Revenue Code of 1986, as amended and in effect from time to time. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of any successor law.

 

Common Unit ” is defined in the Agreement.

 

Contributed Property ” means each property or other asset, in such form as may be permitted by the Trust Act, but excluding cash, contributed to the Partnership.

 

Curative Allocation ” means any allocation of an item of income, gain, deduction, loss or credit pursuant to the provisions of Section 3(b)(xi).

 

Depletable Property ” means each separate oil and gas property as defined in Section 614 of the Code, provided, however , Depletable Property shall not include any interest in an oil and gas property that is treated as a production payment within the meaning of Section 636 of the Code.

 

Economic Risk of Loss ” has the meaning set forth in Treasury Regulation Section 1.752-2(a).

 

Net Agreed Value ” means the Agreed Value of any Contributed Property reduced by any liabilities either assumed by the Partnership upon such contribution or to which such property is subject when contributed.

 

Net Income ” means, for any Allocation Year, the excess, if any, of the Partnership’s items of income and gain for such Allocation Year over the Partnership’s items of loss and deduction for such Allocation Year. The items included in the calculation of Net Income shall be determined in accordance with Section 2(b) and shall not include any items specially allocated under Section 3(b) or Section 3(c).

 

Net Loss ” means, for any Allocation Year, the excess, if any, of the Partnership’s items of loss and deduction for such Allocation Year over the Partnership’s items of income and gain for such Allocation Year. The items included in the calculation of Net Loss shall be determined in accordance with Section 2(b) and shall not include any items specially allocated under Section 3(b) or Section 3(c).

 

Nonrecourse Built-in Gain ” means with respect to any Contributed Properties or Adjusted Properties that are subject to a mortgage or pledge securing a Nonrecourse Liability, the amount of any taxable gain that would be allocated to the Partners pursuant to Sections 4(d)(i)(A) and 4(d)(ii) if such properties were disposed of in a taxable transaction in full satisfaction of such liabilities and for no other consideration.

 

Nonrecourse Deductions ” means any and all items of loss, deduction or expenditure (including, without limitation, any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(b), are attributable to a Nonrecourse Liability.

 

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Nonrecourse Liability ” has the meaning set forth in Treasury Regulation Section 1.752-2(b)(3).

 

Overallotment Option Closing Date ” means the date or dates on which any Trust Units are sold by the Trust to the Underwriters upon exercise of the Overallotment Option.

 

Overallotment Option ” means the overallotment option granted to the Underwriters by the Partnership pursuant to the Underwriting Agreement.

 

Partner Nonrecourse Debt ” has the meaning set forth in Treasury Regulation Section 1.704-2(b)(4).

 

Partner Nonrecourse Debt Minimum Gain ” has the meaning set forth in Treasury Regulation Section 1.704-2(i)(2).

 

Partner Nonrecourse Deductions ” means any and all items of loss, deduction or expenditure (including, without limitation, any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(i), are attributable to a Partner Nonrecourse Debt.

 

Partnership Minimum Gain ” means that amount determined in accordance with the principles of Treasury Regulation Sections 1.704-2(b)(2) and 1.704-2(d).

 

Percentage Interest ” means as of any date of determination as to any Trust Unitholder holding Trust Units, the quotient obtained by dividing (A) the number of Trust Units held by such Trust Unitholder by (B) the total number of all outstanding Trust Units.

 

Property Contributor ” means any Person that transfers Contributed Property to the Partnership in exchange for Trust Units.

 

Public Common Unit ” means any Common Unit originally issued by the Trust solely for cash.

 

Record Holder ” means the Person in whose name a Trust Unit is registered on the books of the transfer agent as of the opening of business on a particular Business Day.

 

Required Allocations ” means any allocation of an item of income, gain, loss or deduction pursuant to Section 3(b)(i), Section 3(b)(ii), Section 3(b)(iv), Section 3(b)(v), Section 3(b)(vi), Section 3(b)(vii), Section 3(b)(viii) or Section 3(b)(ix).

 

Residual Gain ” or “ Residual Loss ” means any item of gain or loss, as the case may be, of the Partnership recognized for U.S. federal income tax purposes resulting from a sale, exchange or other disposition of a Contributed Property (other than Depletable Property), to the extent such item of gain or loss is not allocated pursuant to Section 4(d)(i)(A) to eliminate Book-Tax Disparities.

 

Simulated Basis ” means the Carrying Value of any Depletable Property.

 

Annex A - 13



 

Simulated Depletion ” means, with respect to a Depletable Property, a depletion allowance computed solely for the purposes of maintaining Capital Accounts in accordance with Section 2(b)(iv) and in the manner specified in Treasury Regulation Section 1.704-1(b)(2)(iv)(k)(2). For purposes of computing Simulated Depletion with respect to any property, the Simulated Basis of such property shall be deemed to be the Carrying Value of such property, and in no event shall such allowance for Simulated Depletion, in the aggregate, exceed such Simulated Basis.

 

Simulated Gain ” means the excess, if any, of the amount realized from the sale or other disposition of a Depletable Property over the Carrying Value thereof.

 

Simulated Loss ” means the excess, if any, of the Carrying Value of a Depletable Property over the amount realized from the sale or other disposition of such property.

 

Sponsor Common Unit ” means any Common Unit held by a Person that (i) holds, or at any time from and after the creation of the Partnership has held, one or more Subordinated Units and (ii) has a Capital Account that differs (or prior to the end of the Subordination Period, could differ) in amount from the (i) product of the number of Subordinated Units, if any, and Common Units held by such Person times (ii) the Uniform Per Unit Capital Amount.

 

Subordinated Unit ” is defined in the Agreement.

 

Trust Act ” is defined in the Agreement.

 

Trust Unit ” is defined in the Agreement.

 

Uniform Per Unit Capital Amount ” means, as of any date of determination, the Capital Account, stated on a per Trust Unit basis, underlying any Public Common Unit.

 

Annex A - 14


Exhibit 10.1

 

Execution Copy

 

TERM OVERRIDING ROYALTY INTEREST

CONVEYANCE (KANSAS) (PDP)

 

This TERM OVERRIDING ROYALTY INTEREST CONVEYANCE (KANSAS) (PDP) (this “ Conveyance ”) from SandRidge Exploration and Production, LLC, a Delaware limited liability company, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ Assignor ”), to Mistmada Oil Company, Inc., an Oklahoma corporation, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ Assignee ”), is delivered to be effective as of the Effective Time.  All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Article II below.

 

ARTICLE I.
CONVEYANCE

 

Section 1.01 The Grant . For and in consideration of good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby BARGAIN, SELL, GRANT, CONVEY, TRANSFER, ASSIGN, SET OVER, and DELIVER unto Assignee, subject to the terms of this Conveyance and for the Term, as an overriding royalty interest (the “ Royalty Interest ”), an undivided interest in and to all Minerals that may be produced and saved from the Target Formation underlying the Subject Lands through the wellbores of the Wells, sufficient to cause Assignee to receive the Assignee Minerals.  To the extent any interest conveyed hereunder is created out of a mineral interest, rather than out of an oil and gas leasehold interest, the term “overriding royalty interest” shall be interpreted to mean a non-participating royalty interest with respect to that particular interest, but any such interest shall still be subject to, and shall have the rights and obligations set forth in, this Conveyance.

 

Section 1.02 Non-Operating, Non-Expense Bearing Interest.  The Royalty Interest conveyed hereby is a non-operating, non-expense-bearing overriding royalty interest for a limited term in and to the Subject Interests, free of all cost, risk and expense of production, operations and marketing.  In no event shall Assignee ever be liable or personally obligated for payment of any cost, expenses or liabilities attributable to the Subject Interests (or any part thereof) or incurred in connection with the production, saving or marketing of Assignee Minerals, subject, however, to Assignor’s right hereinafter provided to deduct Chargeable Costs in determining Assignee Proceeds, which right shall be solely a matter of deduction from the proceeds from the sale of Assignee Minerals and not a personal obligation of Assignee.

 

Section 1.03 Term.  The term of the Royalty Interest (the “ Term ”) shall begin at the Effective Time and end on December 31, 2031 (the “ Termination Date ”).  At the end of the Term, all of Assignee’s interest in and to the Royalty Interest shall automatically terminate and immediately revert to and revest in Assignor.

 

Section 1.04 Habendum Clause . TO HAVE AND TO HOLD the Royalty Interest, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Assignee, its successors and assigns, for the Term, subject to terms and provisions of this Conveyance.

 



 

Section 1.05 Warranty.

 

(a) The Warranty . Assignor warrants to Assignee, its successors and assigns, that the Royalty Interest is free of all Encumbrances created by, through or under Assignor, but not otherwise, except for the Permitted Encumbrances.

 

(b) Remedies . In the event of a breach of the foregoing warranty, Assignee’s sole remedy shall be to receive payment on each applicable Quarterly Payment Date, out of Assignor’s Net Share of Minerals from other Wells in excess of that subject to the Royalty Interest and the royalty interest created pursuant to the Perpetual PDP Kansas Conveyance (the “ Assignor Retained Minerals ”), subject to offset as provided below and without interest (except such interest payable under this Conveyance on payments made after the applicable due date as described in Section 5.02 below), of an amount equal to the difference between (x) Assignee Proceeds that Assignee would have received with respect to such Well in the applicable Computation Period if such warranty had not been breached, and (y) Assignee Proceeds that Assignee actually received during that Computation Period with respect to that Well, to the extent such difference is attributable to the breach of the warranty, but not to the extent that such difference is attributable to any other cause, and any such amounts of Assignor Retained Minerals shall be treated as Assignee Minerals.

 

(c) Right of Offset . If any Subject Interest ever proves to be larger as of the Effective Date than the Subject Interest reflected in Exhibit A hereto and if, as a result, Assignee receives a greater amount of Assignee Minerals (or the proceeds from the sale thereof) with respect to that Subject Interest than Assignee would otherwise have received if the Subject Interest had been the size reflected on Exhibit A hereto, then such increased amounts, whenever received by Assignee, may be treated by Assignor as a credit or offset (without interest) against any amounts payable to Assignee under Section 1.05(b).

 

(d) DISCLAIMER . EXCEPT FOR THE WARRANTIES OF TITLE GIVEN IN SECTION 1.05(a), ASSIGNOR MAKES THIS CONVEYANCE AND ASSIGNS THE ROYALTY INTEREST WITHOUT RECOURSE, COVENANT OR WARRANTY OF TITLE OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY.  ANY COVENANTS OR WARRANTIES IMPLIED BY STATUTE OR LAW BY THE USE HEREIN OF THE WORDS “ GRANT ”, “ CONVEY ” OR OTHER SIMILAR WORDS ARE HEREBY EXPRESSLY DISCLAIMED, WAIVED AND NEGATED.  WITHOUT LIMITING THE GENERALITY OF THE TWO PRECEDING SENTENCES, ASSIGNEE ACKNOWLEDGES THAT ASSIGNOR HAS NOT MADE, AND ASSIGNOR HEREBY EXPRESSLY DISCLAIMS AND NEGATES, AND ASSIGNEE HEREBY EXPRESSLY WAIVES, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO (i) PRODUCTION RATES, RECOMPLETION OPPORTUNITIES, DECLINE RATES OR THE QUALITY, QUANTITY OR VOLUME OF THE RESERVES OF MINERALS, IF ANY, ATTRIBUTABLE TO THE SUBJECT INTERESTS, (ii) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (iii) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iv) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, AND (v) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER ANY APPLICABLE LEGAL REQUIREMENT; IT BEING THE EXPRESS INTENTION OF BOTH

 

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ASSIGNEE AND ASSIGNOR THAT THE ROYALTY INTEREST IS HEREBY ASSIGNED TO ASSIGNEE ON AN “AS IS” AND “WHERE IS” BASIS WITH ALL FAULTS, AND THAT ASSIGNEE HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS ASSIGNEE DEEMS APPROPRIATE.  ASSIGNOR AND ASSIGNEE AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LEGAL REQUIREMENTS TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS SECTION ARE “CONSPICUOUS” DISCLAIMERS FOR THE PURPOSES OF ANY APPLICABLE LEGAL REQUIREMENT.

 

(e) Substitution of Warranty . This instrument is made with full substitution and subrogation of Assignee in and to all covenants of warranty by Third Persons (other than Affiliates of Assignor) heretofore given or made with respect to the Wells, the Subject Interests or any part thereof or interest therein.

 

ARTICLE II.
DEFINITIONS

 

This Article II defines certain capitalized words, terms, and phrases used in this Conveyance. Certain other capitalized words, terms, and phrases used in this Conveyance are defined elsewhere in this Conveyance.

 

Act ” is defined in Section 10.03.

 

Affiliate ” means, for any specified Person, another Person that controls, is controlled by, or is under common control with, the specified Person.  “ Control ,” in the preceding sentence, refers to the possession by one Person, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.

 

AMI ” means that area described in Exhibit A to the Development Agreement, as such area may be extended or exchanged pursuant to Article III of the Development Agreement.

 

Assignee ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignee.

 

Assignee Minerals ” is defined in Section 3.01.

 

Assignee Proceeds ” is defined in Section 3.03.

 

Assignor ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignor.

 

Assignor Conveyances ” means the Assignor Kansas Conveyances and the Assignor Oklahoma Conveyances.

 

Assignor Kansas Conveyances ” means this Conveyance, the Perpetual PDP Kansas Conveyance, the Long-Term Development Kansas Conveyance and the Term Development Kansas Conveyance.

 

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Assignor Oklahoma Conveyances ” means the Perpetual Development Oklahoma Conveyance, the Term Development Oklahoma Conveyance, the Perpetual PDP Oklahoma Conveyance and the Term PDP Oklahoma Conveyance.

 

Assignor Retained Minerals ” is defined in Section 1.05(b).

 

Assignor’s Net Revenue Interest ” means the interest, stated as a decimal fraction, in Subject Minerals production from a Well attributable to the Subject Interests in that Well, net of Production Burdens.

 

Assignor’s Net Share of Minerals ” means the share of Subject Minerals from each Well that is attributable to Assignor’s Net Revenue Interest in that Well determined prior to giving effect to this Conveyance.

 

Bbl ” means one stock tank barrel, or 42 U.S. gallons liquid volume, in reference to Oil or Gas Liquids.

 

Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the New York Stock Exchange, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.

 

Chargeable Costs ” is defined in Section 3.02(a).

 

Closing Time ” means 12:01 a.m. Central Time, on April 23, 2012.

 

Computation Period ” means each calendar quarter commencing on or after 12:01 a.m., Central Time, on January 1, 2012, with each such calendar quarter being deemed to have begun at 12:01 a.m. Central Time on the first day of such calendar quarter and to have ended at 12:00 a.m. Central Time on the first day of the next calendar quarter.

 

Conveyance ” is defined in the introductory paragraph to this Conveyance.

 

Development Agreement ” means that certain Development Agreement by and among SandRidge, Assignor and the Trust, dated as of even date herewith and effective as of the Effective Time.

 

Drilling Obligation Completion Date ” has the meaning given to such term in the Development Agreement.

 

Effective Time ” means 12:01 a.m., Central Time, on January 1, 2012; provided , however , that with respect to each oil and gas lease described in Exhibit A that has a date after January 1, 2012, the Effective Time, with respect to each such oil and gas lease, shall be 12:01 a.m., Central Time, on the date of such oil and gas lease.

 

Encumbrance ” means any mortgage, lien, security interest, pledge, charge, encumbrance, limitation, preferential right to purchase, consent to assignment, irregularity, burden or defect.

 

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Excess Costs ” means, in any Computation Period, the excess of (x) Chargeable Costs associated with Assignee Minerals for that Computation Period over (y) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals (with the amount in clause (y) calculated as provided in Section 3.03(a) hereof).  Excess Costs shall bear interest at the Prime Interest Rate from the end of the Computation Period in which such costs were incurred to the date that Assignor recovers such amounts from Assignee Proceeds.

 

Excluded Assets ” means (a) those oil and gas wells that are the subject of the Term Development Kansas Conveyance and the Long-Term Development Kansas Conveyance, and (b) those oil and gas wells that are described in Exhibit B hereto.

 

Fair Value ” means, with respect to any portion of the Royalty Interest to be assigned pursuant to Section 11.02 in connection with a Transfer of any Well or Subject Interests, an amount of net proceeds that could reasonably be expected to be obtained from the sale of such portion of the Royalty Interest to a party that is not an Affiliate of either Assignor or Assignee on an arms’-length negotiated basis, taking into account relevant market conditions and factors existing at the time of any such proposed Transfer, such net proceeds to be determined by deducting Assignee’s proportionate share of sales costs, commissions and brokerage fees, if any (based on the ratio of (i) the fair market value of the portion of the Royalty Interest being assigned to (ii) the fair market value of the Wells and Subject Interests being Transferred (including the value of the Royalty Interest being assigned)).

 

Farmout Agreements ” means any farmout agreement, participation agreement, exploration agreement, development agreement or any similar agreement.

 

Force Majeure ” is defined in Section 12.02.

 

Gas ” means natural gas and all other gaseous hydrocarbons or minerals, including helium, but specifically excluding any Gas Liquids.

 

Gas Liquids ” means those natural gas liquids and other liquid similar hydrocarbons, including ethane, propane, butane and natural gasoline, and mixtures thereof, that are removed from a gas stream by the liquids extraction process of any field facility or gas processing plant and delivered by the facility or plant as natural gas liquids.

 

Governmental Authority ” means the United States of America, any state, commonwealth, territory, or possession thereof, and any political subdivision of any of the foregoing, including courts, departments, commissions, boards, bureaus, agencies and other instrumentalities.

 

Legal Requirement ” means any law, statute, ordinance, decree, requirement, order, judgment, rule, or regulation of, including the terms of any license or permit issued by, any Governmental Authority.

 

Long-Term Development Kansas Conveyance ” means that certain Long-Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

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Mcf ” means one thousand cubic feet of Gas, measured and expressed at the same temperature, pressure, and other conditions of measurement (a) provided in any contract for the purchase of Gas from the Subject Interests or, (b) if no such contract exists, provided by applicable state law for purposes of reporting production to Governmental Authorities.

 

Mineral(s) ” means Oil, Gas and Gas Liquids.

 

MMBtu ” means one million British thermal units.

 

Mortgages ” has the meaning given such term in the Development Agreement.

 

Non-Affiliate ” means, for any specified Person, any other Person that is not an Affiliate of the specified Person.

 

Notice ” means any notice, advice, invoice, demand or other communication required or permitted by this Conveyance.

 

Oil ” means crude oil, condensate and other liquid hydrocarbons recovered by field equipment or facilities, excluding Gas Liquids.

 

Party ,” when capitalized, refers to Assignor or Assignee. “ Parties ,” when capitalized, refers to Assignor and Assignee.

 

Permitted Encumbrances ” means:

 

(a) the Production Burdens;

 

(b) contractual obligations arising under operating agreements, Farmout Agreements, production sales contracts, leases, assignments and other similar agreements that may affect the Subject Interests;

 

(c) pooling and unitization agreements, declarations, orders or Legal Requirements to secure payment of amounts not yet delinquent;

 

(d) liens and security interests that arise in the normal course of operations, such as liens for unpaid taxes, statutory liens securing unpaid suppliers and contractors, and contractual liens under operating agreements, in any case, that are not yet delinquent or, if delinquent, are being contested in good faith in the normal course of business;

 

(e) conventional rights of reassignment that obligate Assignor to reassign all or part of any Subject Interest to a Third Person if Assignor intends to release or abandon such interest before the expiration of the primary term or other termination of such interest;

 

(f) easements, rights-of-way, servitudes, permits, surface leases, surface use restrictions and other surface uses and impediments on, over or in respect of the Subject Interests that are not such as to interfere materially with the operation, value or use of the Subject Interests;

 

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(g) rights reserved to or vested in any Governmental Authority to control or regulate any Subject Interests in any manner, and all applicable Legal Requirements;

 

(h) the terms of the instruments creating the Subject Interests and Subject Lands; and

 

(i) the Mortgages;

 

provided , that such aforementioned encumbrances are of the type and nature customary in the oil and gas industry, and provided , further , that such aforementioned encumbrances do not, alone or in the aggregate, materially and adversely affect the operation, value or use of any Subject Interests, and all to the extent, and for so long as, such Permitted Encumbrances are otherwise valid and enforceable against the Subject Interests, without recognizing, expressly or by implication, any rights or interests in any Third Person or Governmental Authority that such Third Person or Governmental Authority does not otherwise lawfully possess.

 

Perpetual Development Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (Development) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Perpetual PDP Kansas Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Perpetual PDP Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Person ” means any natural person, corporation, partnership, trust, estate, or other entity, organization or association.

 

Post Production Cost Charge ” is defined in Section 3.02(b).

 

Prime Interest Rate ” is defined in Section 5.02(b).

 

Production Burdens ” means, with respect to any Subject Lands, Subject Interests or Subject Minerals, all royalty interests, overriding royalty interests, production payments, net profits interests and other similar interests that constitute a burden on, are measured by, or are payable out of the production of Minerals or the proceeds realized from the sale or other disposition thereof.

 

Quarterly Payment Date ” is defined in Section 5.01(b).

 

Reasonably Prudent Operator Standard ” means the standard of conduct of a reasonably prudent oil and gas operator in the AMI under the same or similar circumstances, acting with respect to its own property and disregarding the existence of the Royalty Interest as a burden on such property.

 

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Royalty Interest ” is defined in Section 1.01.

 

Sales Price ” means the price received by Assignor for Assignee Minerals determined in accordance with the following provisions:

 

(a) “sale” refers to any sale, exchange or other disposition of Assignee Minerals for value, the value of such Minerals that is exchanged or otherwise disposed of for valuable consideration being the sales price that Assignor receives for any such Minerals sold pursuant to Section 4.01 for any such Minerals;

 

(b) amounts of money not paid to Assignor when due by any purchaser of Assignee Minerals (for example, Taxes or other amounts withheld or deducted by any such purchaser) shall not be included within the Sales Price until actually received by, or credited to the account of, Assignor;

 

(c) advance payments and prepayments for future deliveries of Assignee Minerals shall be included within the Sales Price, without interest, when that volume of Minerals subject to the advance payments or prepayments is actually produced;

 

(d) loan proceeds received by Assignor shall not be treated as a component of the applicable Sales Price; and

 

(e) if a controversy or possible controversy exists, whether by reason of any statute, order, decree, rule, regulation, contract or otherwise, between Assignor and any purchaser of Assignee Minerals or any other Person, about the correct Sales Price of any Assignee Minerals, about deductions from the Sales Price, about Assignor’s right to receive the proceeds of any sale of Assignee Minerals, or about any other matter, then monies withheld by the purchaser or deposited by it with an escrow agent or if Assignor receives any monies and promptly deposits such monies with a Third Person escrow agent as a result of such controversy, such monies shall not be included within the Sales Price until received by or returned to Assignor, as applicable.

 

SandRidge ” means SandRidge Energy, Inc., a Delaware corporation.

 

Subject Interests ” means Assignor’s undivided interests in the Subject Lands as described on Exhibit A hereto, whether as lessee under leases, as an owner of the Subject Minerals (or the right to extract such Minerals) or otherwise, by virtue of which undivided interests Assignor has the right to conduct exploration, drilling, development and Mineral production operations on the Subject Lands, or to cause such operations to be conducted, or to participate in such operations by paying and bearing all or any part of the costs, risks and liabilities of such operations, to drill, test, complete, equip, operate and produce wells to exploit the Minerals.  The “Subject Interests” (a) may be owned by Assignor pursuant to leases, deeds, operating, pooling or unitization agreements, orders or any other instruments, agreements or documents, recorded or unrecorded, (b) include any and all extensions or renewals of leases covering the Subject Lands (or any portion thereof) obtained by Assignor, or any Affiliate thereof, within six (6) months after the expiration or termination of any such lease, and (c) are subject to the Permitted Encumbrances.  For the avoidance of doubt, the “Subject Interests” do not include:  (i) Assignor’s interests in the Excluded Assets; (ii) Assignor’s rights to substances

 

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other than Minerals; (iii) Assignor’s rights to Minerals (other than Assignee Minerals) under contracts for the purchase, sale, transportation, storage, processing or other handling or disposition of Minerals; (iv) Assignor’s interests in, or rights to Minerals (other than Assignee Minerals) held in pipelines, gathering systems, storage facilities, processing facilities or other equipment or facilities; or (v) any additional or enlarged interests in the Wells, Subject Lands or Subject Minerals acquired by Assignor after the Closing Time, except (1) to the extent any such additional or enlarged interest becomes a part of the Subject Interests by amendment to this Conveyance pursuant to Section 3.01 or 3.02 of the Development Agreement, (2) as may result from the operation of the terms of the instruments creating the Subject Interests, or (3) as may be reflected in extensions and renewals covered by the preceding sentence.

 

Subject Lands ” means the lands subject to or covered by the oil and gas leases described in Exhibit A hereto, insofar and only insofar as they cover the Target Formation, subject to the exceptions, exclusions and reservations set forth on such Exhibit A hereto.

 

Subject Minerals ” means all Minerals in and under, and that may be produced, saved and sold from a Well, from and after the Effective Time, insofar and only insofar as such Minerals are produced from the Target Formation, subject to the following exclusions:  Minerals that are (a) lost in the production, gathering or marketing of Minerals; (b) used (i) in conformity with ordinary and prudent operations on the Subject Lands, including drilling and production operations with respect to a Well or (ii) in connection with operations (whether on or off the Subject Lands) for processing or compressing the Subject Minerals; (c) taken by a Third Person to recover costs, or some multiple of costs, paid or incurred by that Third Person under any operating agreement, unit agreement or other agreement in connection with nonconsent operations conducted (or participated in) by that Third Person; and (d) retained by a Third Person for gathering, transportation, processing or marketing services related to the Subject Minerals in lieu of or in addition to cash payment for such services, to the extent such agreement is permitted under this Conveyance.

 

Target Formation ” means (i) with respect to Barber County, Kansas, the “Target Formation” being defined as being the interval between the base of the Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4744’ and the Devonian-aged Chattanooga Shale or its stratigraphic equivalent at a depth of 5096’ in the SandRidge Energy Stephanie SWD 1-3 located in 3-35S-10W (API No. 15007237990000); (ii) with respect to Comanche County, Kansas, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,511’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 6,786’ in the Sho-Bar #1-29 Wayne located in section 29, Township 34 South, Range 20 West (API No. 15033213800000); (iii) with respect to Harper County, Kansas, the “Target Formation” being defined as being the interval between the base of the Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4800’ and the Devonian-aged Chattanooga Shale or its stratigraphic equivalent at a depth of 5096’ in the SandRidge Energy Shea SWD 1-17 located in 17-35S-7W (API No. 15077217810000); and (iv) with respect to Sumner County, Kansas, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Red Fork Zone or its stratigraphic equivalent at a depth of 4,660’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,112’ in the Quinton Little

 

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Company #1-18 Wolff located in section 18, Township 35 South, Range 4 West (API No. 15191201870000).

 

Taxes ” is defined in Section 3.02(c).

 

Term Development Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term Development Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Third Person ” means a Person other than Assignor, Assignee or Trustee.

 

Transfer ” including its syntactical variants, means any assignment, sale, transfer, conveyance or disposition of any property; provided , that Transfer as used herein does not include the granting of a mortgage on or security interest in Assignor’s interest in any property, including the Wells, the Subject Interests and/or the Subject Lands.

 

Trust ” means SandRidge Mississippian Trust II, a Delaware statutory trust.

 

Trustee ” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America with its principal place of business in New York, New York, as trustee, acting not in its individual capacity but solely as trustee of the Trust.

 

Well ” means the borehole of each Mineral well more particularly described in Exhibit C hereto.

 

ARTICLE III.
CALCULATION OF ASSIGNEE MINERALS

 

Section 3.01 Definition . “ Assignee Minerals ” is that volume of Minerals with respect to each Well calculated in accordance with the following formula: Forty Percent (40%) X (Assignor’s Net Share of Minerals).

 

Section 3.02 Chargeable Costs.

 

(a) Definition . For each Computation Period, “ Chargeable Costs ” means the sum of (i) the Post Production Cost Charge, plus (ii) Excess Costs from prior Computation Periods, plus (iii) Taxes incurred, accrued or paid by Assignor; provided, that such costs are actually paid by Assignor during the relevant Computation Period or paid by Assignor during a prior Computation Period and not included in any prior Computation Period’s Chargeable Costs.  For

 

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the avoidance of doubt, all costs associated with, incurred or paid in connection with the drilling, testing, completing and equipping for production of the Wells shall be borne solely by Assignor and shall not be included as Chargeable Costs.

 

(b) Post Production Cost Charge . “ Post Production Cost Charge ” means those costs incurred by Assignor (including internal costs and Third Person costs) to gather, store, transport, compress, process, treat, dehydrate and market, as applicable, the Subject Minerals, including any costs as may be required to deliver such Minerals to market; provided , that any costs charged by Assignor and its Affiliates as part of the Post Production Cost Charge shall not materially exceed the costs prevailing in the area where the Subject Minerals are being produced for similar services; and provided , further , that with respect to marketing costs, only Non-Affiliate marketing fees and costs shall be included, and marketing costs of Assignor and its Affiliates with respect to any Subject Minerals will be specifically excluded from the Post Production Cost Charge.  Any costs, fees or expenses that are properly charged or allocated to Assignee Minerals pursuant to another provision of this Conveyance (including, as provided for in the definition of Subject Minerals) shall not be included as part of the Post Production Cost Charge.

 

(c) Taxes . “ Taxes ” means general property, ad valorem, production, severance, sales, windfall profit, excise and other taxes, except income taxes, assessed or levied on or in connection with the Subject Interests, the Royalty Interest, this Conveyance, production of Subject Minerals, Assignor’s Net Share of Minerals, Assignee Minerals (or the proceeds from the sale thereof) or facilities or equipment on the Subject Lands that are used for the production, dehydration, treatment, processing, gathering or transportation of Subject Minerals, or against Assignor as owner of the Subject Interests or paid by Assignor on behalf of Assignee as owner of the Royalty Interest.

 

(d) Operating and Drilling Costs . For the avoidance of doubt, all costs associated with or paid or incurred in connection with the drilling, testing, completing, developing and operating the Wells or otherwise incurred in connection with the ownership or operation of the Subject Interests other than Taxes and Post Production Cost Charges shall be borne solely by Assignor and shall not be included as Chargeable Costs, and Assignor may use any Subject Minerals in such operations without any duty to account to Assignee.

 

Section 3.03 Assignee Proceeds . “ Assignee Proceeds ” means, for any Computation Period, (a) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals, with the amount of such proceeds being determined by multiplying (i) the volume of Assignee Minerals produced (expressed (A) for Gas, in Mcf or MMBtu, (B) for Gas Liquids, in Bbls and (C) for Oil, in Bbls) by (ii) the relevant Sales Price (expressed (A) for Gas, on a per Mcf or MMBtu basis, (B) for Gas Liquids, on a per Bbl basis and (C) for Oil, on a per Bbl basis), less (b) the Chargeable Costs associated with such Assignee Minerals.

 

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ARTICLE IV.
MARKETING OF ASSIGNEE MINERALS

 

Section 4.01 Rights and Duties Regarding Sale of Assignee Minerals . Assignor shall market or shall cause to be marketed Assignor’s Net Share of Minerals (including Assignee Minerals) in good faith and in accordance with the Reasonably Prudent Operator Standard and Section 4.02(d).  Assignor shall use its reasonable efforts in connection with any sale of Assignor’s Net Share of Minerals (including Assignee Minerals) to obtain, as soon as reasonably practicable, full payment for such Minerals; provided , however , that it shall not be considered a breach of Assignor’s marketing duty or standard of conduct for Assignor to market such Minerals to an Affiliate of Assignor, so long as Assignor does not market such Minerals at a volume-weighted average price lower than the volume-weighted average price upon which Assignor pays royalties to the owners of the other royalty interests in the Subject Minerals, save and excepting Chargeable Costs provided for in Article III hereof.

 

Section 4.02 Assignee’s Agent and Representative.

 

(a) Appointment . Assignee appoints Assignor as Assignee’s agent and representative to market and deliver or cause to be marketed and delivered all Assignee Minerals and to collect and receive all payments therefrom under any Minerals purchase agreement or contract without deduction (except to the extent Chargeable Costs are deducted for any Computation Period).  The appointment of Assignor as Assignee’s agent and representative for such purpose is a material item of consideration to the Parties in connection with the execution and delivery of this Conveyance.  Assignee may not remove Assignor from office as Assignee’s agent and representative, except for cause upon a material breach by Assignor of its duties to Assignee under this Conveyance.

 

(b) Duties and Powers . As Assignee’s agent and representative, Assignor shall receive all payments for the sale of Assignee Minerals and account to Assignee, receive and make all communications with the purchaser of such Minerals, and otherwise act and speak for Assignee in connection with the sale of Assignee Minerals.  Third Persons may rely conclusively on the authority of Assignor to market Assignee Minerals, and with respect to Third Persons only, Assignee shall be conclusively bound by the acts of Assignor in connection with the sale of Assignee Minerals.  It shall not be necessary for Assignee to join Assignor in the execution of any division order, transfer order or other instrument, agreement or document relating to the sale of Assignee Minerals.  Third Persons may pay all Assignee Proceeds for the sale of such Minerals directly to Assignor, without the necessity of any joinder by or consent of Assignee or any inquiry into the use or disposition of such proceeds by Assignor.  In no event, however, shall the authority granted in this Section 4.02 or elsewhere in this Conveyance relieve Assignor of any liability for breach of this Conveyance.

 

(c) Prohibited Acts . Assignor may not act for or bind Assignee on any matter, except the marketing and delivery of Assignee Minerals under this Article IV.

 

(d) Standard of Conduct . In exercising its powers and performing its duties as Assignee’s agent and representative, Assignor shall act in good faith and in accordance with the Reasonably Prudent Operator Standard.  It shall not be a violation of such standard of conduct for Assignor (i) to sell Assignor’s Net Share of Minerals or Assignee Minerals to an Affiliate pursuant to any purchase agreement or contract, or (ii) to delegate some or all of Assignor’s duties as Assignee’s agent and representative to its Affiliates (so long as such Affiliates perform

 

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in good faith and in accordance with the Reasonably Prudent Operator Standard), with Assignor remaining liable to Assignee for the performance of such duties.

 

(e) Termination of Authority . Assignor may not resign as Assignee’s agent and representative without the prior written consent of Assignee, except that Assignor may resign as Assignee’s agent and representative without such consent with respect to any Subject Interests assigned, sold, transferred or conveyed by Assignor in accordance with the terms of this Conveyance. If such sale is made subject to the Royalty Interest, Assignor must cause the purchaser to assume the duties of Assignee’s agent and representative with respect to the Subject Interests acquired by that purchaser and to be bound by the provisions of this Article IV.

 

Section 4.03 Delivery of Subject Minerals . Assignor (whether or not it is serving as Assignee’s agent and representative) shall deliver or cause to be delivered Assignor’s Net Share of Minerals (including Assignee Minerals) to the purchasers thereof.

 

Section 4.04 Processing . Assignor may, or may by contract cause a Third Person to, dehydrate, separate, treat, compress or otherwise process Assignor’s Net Share of Minerals (including Assignee Minerals) and may commit any of the Subject Interests (including the Royalty Interest attributable thereto) to an agreement for processing Minerals (pursuant to which, for example, the plant owner or operator receives a portion of the Subject Minerals or plant products therefrom or proceeds of the sale thereof as a fee for processing), so long as (a) Assignor enters into such processing arrangements in good faith and in accordance with the Reasonably Prudent Operator Standard, and (b) any such processing arrangements entered into with Affiliates of Assignor contain rates and charges that are comparable to the prevailing charges for similar services in the applicable area.  Assignee shall be bound by such arrangements and shall permit Assignor’s Net Share of Minerals (including Assignee Minerals) to be processed by Assignor or its contractor.  Assignee shall not, however, be personally liable for any costs or risks associated with such processing operations, but Assignee shall indirectly suffer the energy content reduction and volume reductions associated with processing through corresponding reductions in the content and volumes of Assignee Minerals.

 

ARTICLE V.
PAYMENT

 

Section 5.01 Obligation to Pay.

 

(a) The Obligation .  After each Computation Period and on or before the Quarterly Payment Date for that Computation Period, Assignor shall tender to Assignee the Assignee Proceeds for the applicable Computation Period, plus , to the extent applicable, (i) all of the proceeds to be paid to Assignee from the sale of Assignee Minerals produced during any prior Computation Periods, to the extent not previously paid to Assignee for such prior Computation Periods, (ii) any damages payable to Assignee under Section 1.05(b) (subject to the right of set-off in Section 1.05(c)) during the most recently completed Computation Period, and (iii) any amounts (including any interest earned thereon) that were previously deposited with a Third Person escrow agent in accordance with Section 5.01(d) and subsequently determined by Assignor to be validly owing to Assignee.  All such amounts shall be transmitted to Assignee by Assignor by means of wire transfer of funds to a bank account specified by Assignee pursuant to

 

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written instructions which shall remain in effect until and unless changed by subsequent written notice to Assignor.

 

For purposes of determining the amount of Assignee Proceeds for any Computation Period, if, when calculating Assignee Minerals for any Computation Period, Assignor is unable to determine the precise volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals, then Assignor shall, in good faith and in accordance with the Reasonably Prudent Operator Standard, estimate the volume of such Minerals produced, sold and attributable to Assignor’s Net Share of Minerals. Assignor shall adjust the calculation of Assignee Proceeds upward or downward, as the case may be, in the next or subsequent Computation Periods to reflect the difference between the estimated volume of Minerals established pursuant to this Section 5.01(a) and the actual volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals in the Computation Period for which such estimate was made.

 

(b) Quarterly Payment Date . “ Quarterly Payment Date ” for each Computation Period means the forty-fifth (45th) day after the end of such Computation Period or, for the last Computation Period, the forty-fifth (45th) day after the Termination Date. If such day is not a Business Day, the Quarterly Payment Date shall be the next Business Day.

 

(c) No Segregated Account . Prior to the Quarterly Payment Date, all amounts received by Assignor from the sale of Assignor’s Net Share of Minerals and Assignee Minerals, as applicable, for any Computation Period shall be held by Assignor in one of its general bank accounts and Assignor will not be required to maintain a segregated account for such funds.

 

(d) Disputed Proceeds . If Assignor receives any amounts of money from the sale of Assignee Minerals that is subject to controversy or, in the reasonable opinion of Assignor, possible controversy, Assignor shall promptly deposit the money with a Third Person escrow agent in a segregated interest-bearing account.  Such amount shall not be treated as a portion of Assignee Proceeds so long as it remains with such escrow agent, but shall be treated as a portion of Assignee Proceeds, along with the accrued interest, when received from such escrow agent and paid over to Assignee.

 

Section 5.02 Interest on Past Due Payments.

 

(a) Obligation to Pay . Any Assignee Proceeds or other amounts of money not paid by Assignor to Assignee when due shall bear, and Assignor will pay, interest at the Prime Interest Rate on the overdue amount commencing on the sixth (6th) day after such due date until such amount is paid.

 

(b) Definition . “ Prime Interest Rate ” means the lesser of (i) the rate of interest per annum publicly announced from time to time by The Bank of New York Mellon Trust Company, N.A. as its “prime rate” in effect at its principal office in New York City (each change in the “prime rate” to be effective on the date such change is publicly announced), with the understanding that such bank’s “prime rate” may be one of several base rates, may serve as a basis upon which effective rates are from time to time calculated for loans making reference

 

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thereto, and may not be the lowest of such bank’s base rates, and (ii) the maximum rate of interest permitted under any applicable Legal Requirement.

 

Section 5.03 Overpayments and Refunds .

 

(a) Overpayments . If Assignor ever pays Assignee more than the amount of money then due and payable to Assignee under this Conveyance, Assignee shall not be obligated to return the overpayment, but Assignor may at any time thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to the overpayment.

 

(b) Refunds . If Assignor is ever legally obligated to pay any Third Person, including any Minerals purchaser or Governmental Authority, any refund, interest, penalty or other amount of money, because any payment of Assignee Proceeds received by Assignor for the account of Assignee exceeded, or allegedly exceeded, the amount due or lawful under any applicable contract, Legal Requirement, or other obligation, Assignor may thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to such payment.

 

Section 5.04 Protection of Assignee Proceeds . It is the intent of Assignor and Assignee that Assignee is an “interest owner” with an interest separate and distinct from that of Assignor within the meaning and for the purposes of the Kansas Statutes Annotated 84-9-339a, and that Assignee is entitled to all the benefits of said statute.  To the extent required for Assignee to obtain the benefit of said statute, Assignor shall cause to be filed an affidavit of production with respect to each Well with the appropriate Governmental Authority in Kansas.

 

ARTICLE VI.
RECORDS AND REPORTS

 

Section 6.01 Books, Records and Accounts.

 

(a) Obligation to Maintain . Assignor shall maintain true and correct books, records and accounts of (i) all transactions required or permitted by this Conveyance, and (ii) the financial information necessary to effect such transactions, including the financial information needed to calculate each installment of Assignee Proceeds.

 

(b) Right of Inspection . Assignee or its representative, at Assignee’s expense, may inspect and copy such books, records and accounts in the offices of Assignor during normal business hours and upon reasonable notice.

 

Section 6.02 Statements.

 

(a) Quarterly Statements . On each Quarterly Payment Date, Assignor shall deliver to Assignee a statement showing the computation of Assignee Minerals and Assignee Proceeds for the applicable Computation Period.

 

(b) Annual Statements . On the first Quarterly Payment Date after the end of each calendar year and on the Quarterly Payment Date after the Termination Date, such statement shall also show the computation of Assignee Proceeds for the preceding calendar year or, for the

 

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Quarterly Payment Date after the Termination Date, for the portion of the calendar year from 12:01 a.m. Central Time on January 1 of that same year through the Termination Date.

 

(c) Contents of Statements . Without limiting the generality of the foregoing provisions in this Section 6.02, each statement delivered by Assignor to Assignee pursuant to this Section 6.02 shall state, for the relevant period, (i) the total volumes of Subject Minerals produced from the Subject Lands, (ii) the total volumes of Assignor’s Net Share of Minerals, (iii) the total volumes of Assignee Minerals, (iv) the applicable Sales Price, (v) the Chargeable Costs, (vi) the amount of Assignee Proceeds due and payable for the relevant period, and (vii) the amounts of money, if any, due and payable by any purchaser of the Subject Minerals or Assignee Minerals, the nonpayment of which resulted in a reduction in Assignee Proceeds for the relevant period.

 

Section 6.03 Assignee’s Exceptions to Quarterly Statements . If Assignee takes exception to any item or items included in any quarterly statement required by Section 6.02, Assignee must notify Assignor in writing within sixty (60) days after Assignee’s receipt of such quarterly statement.  Such Notice must set forth in reasonable detail the specific charges complained of and to which exception is taken.  Adjustments shall be made for all complaints and exceptions that are justified.  Notwithstanding anything to the contrary herein, all matters reflected in Assignor’s statements for the preceding calendar year (or portion thereof) that are not objected to by Assignee in the manner provided by this Section 6.03 shall be deemed correct as rendered by Assignor to Assignee.

 

Section 6.04 Other Information.

 

(a) Disclosure . At Assignee’s request, subject to applicable restrictions on disclosure and transfer of information, Assignor shall give Assignee and its designated representatives reasonable access in Assignor’s office during normal business hours to all title, geological (to the extent not prohibited by any applicable license agreement), Well and production data in Assignor’s possession or Assignor’s Affiliates’ possession, relating to operations on the Subject Interests.

 

(b) Disclaimer of Warranties and Liability . Assignor makes no representations or warranties about the accuracy or completeness of any data, reports, studies or other information made available to Assignee and shall have no liability to Assignee or any other Person resulting from such data, studies, reports or other information.

 

(c) No Attribution . Assignee shall not, in any securities filings or reports made by Assignee, attribute to Assignor or to the consulting engineers any reports or studies made available to Assignee, or the contents thereof.

 

(d) Confidentiality . All information furnished to Assignee and its designated representatives pursuant to this Section 6.04 is confidential and for the sole benefit of Assignee and shall not be disclosed by Assignee or its designated representatives to any other Person, except to the extent that such information (i) is required in any report, statement or testimony submitted to any Governmental Authority having or claiming to have jurisdiction over Assignee or submitted to bank examiners or similar organizations or their successors, (ii) is required in

 

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response to any summons or subpoena or in connection with any litigation, (iii) is reasonably believed to be required in order to comply with any applicable Legal Requirement to Assignee, (iv) was publicly available or otherwise known to the recipient at the time of disclosure or (v) subsequently becomes publicly available other than through any act or omission of the recipient; provided , however , that with respect to the disclosures with respect to items (i), (ii) and (iii) above, Assignee will notify Assignor prior to any such disclosure in order to provide Assignor an opportunity to seek to limit any such required disclosure.  In connection with the marketing of the Trust’s assets upon termination of the Trust, Assignee and its designated representatives may, on a confidential basis in accordance with this Section 6.04(d), provide any potential purchaser of such assets with the same information Assignee has access to pursuant to Section 6.04.

 

ARTICLE VII.
NO LIABILITY OF ASSIGNEE

 

Assignee shall not be personally liable or responsible under this Conveyance for any cost, risk, liability or obligation associated in any way with the ownership or operation of the Subject Lands, the Subject Interests, the Wells or the Subject Minerals. The foregoing sentence does not restrict the right of Assignor to deduct Chargeable Costs in calculating the volumes of Assignee Minerals or Assignee Proceeds.

 

ARTICLE VIII.
OPERATIONS

 

Section 8.01 Standards of Conduct . Except as otherwise specifically provided in this Conveyance, Assignor shall (a) operate and maintain the Subject Interests, and (b) make elections under each applicable lease, operating agreement, unit agreement, contract for development and other similar instrument or agreement (including elections concerning abandonment of any Well or release of any Subject Interest) in good faith and in accordance with the Reasonably Prudent Operator Standard.

 

Section 8.02 Abandonment of Properties . Nothing in this Conveyance shall obligate Assignor to continue to operate any Well or to operate or maintain in force or attempt to maintain in force any Subject Interest when such Well or Subject Interest ceases to produce, or Assignor determines that such Well or Subject Interest is not capable of producing Minerals in paying quantities, or that such Well or Subject Interest is sufficiently unlikely to be made capable of producing Minerals in paying quantities such that additional operations are unwarranted, all in accordance with Section 8.01 above.  The expiration of a Subject Interest in accordance with the terms and conditions applicable thereto shall not be considered to be a voluntary surrender or abandonment thereof.

 

ARTICLE IX.
POOLING AND UNITIZATION

 

Section 9.01 Pooling of Subject Interests . Certain Subject Interests have been, or may have been, heretofore pooled and unitized for the production of Minerals.  Such Subject Interests are and shall be subject to the terms and provisions of the applicable pooling and

 

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unitization agreements and orders, and the Royalty Interest in each pooled or unitized Subject Interest shall apply to and affect only the Minerals produced from such units that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreements and orders.

 

Section 9.02 Pooling and Unitization.

 

(a) Right to Pool . Assignor has the exclusive executive right and power (as between Assignor and Assignee) to pool or unitize any Subject Interest and to alter, change, amend or terminate any pooling or unitization agreements heretofore or hereafter entered into, as to all or any part of the Subject Lands, as to any one or more of the formations or horizons, and as to any Minerals, upon such terms and provisions as Assignor shall in its sole discretion deem appropriate.

 

(b) Effect of Pooling . If and whenever through the exercise of such right and power, or pursuant to any Legal Requirement now existing or hereafter enacted or promulgated, any Subject Interest is pooled or unitized in any manner, the Royalty Interest shall apply to and affect only the Minerals production that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreement or order.  It shall not be necessary for Assignee to agree to, consent to, ratify, confirm or adopt any exercise of pooling or unitization of any Subject Interest by Assignor.

 

ARTICLE X.
GOVERNMENT REGULATION

 

Section 10.01 Legal Requirements . Except as provided in Section 10.03, all obligations of Assignor under this Conveyance are, and shall be, subject to all applicable Legal Requirements and the instruments, documents and agreements creating the Subject Interests.

 

Section 10.02 Filings . Assignor shall use its reasonable discretion in making filings for itself and on behalf of Assignee with any Governmental Authority having jurisdiction with respect to matters affecting the Subject Interests, the Subject Lands or the Subject Minerals.

 

Section 10.03 Superseding Effect. By acceptance of this Conveyance, Assignee agrees, for itself and its successors and assigns, immediate and remote, that the timing of payment, accrual of interest and reporting requirements with respect to the Royalty Interest shall be as provided by the terms of this Conveyance and not as prescribed by Kansas Statutes Annotated 55-1614 through 55-1622b (the “ Act ”), or any similar Legal Requirement.  Assignee expressly waives any rights it may have under the Act, including, without limitation, interest on payments related to Assignee Proceeds at the rate provided in Kansas Statutes Annotated 55-1614(h) and the reporting requirements provided in Kansas Statutes Annotated 55-1620.

 

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ARTICLE XI.
ASSIGNMENT AND SALE OF SUBJECT INTERESTS

 

Section 11.01 Assignment by Assignor Subject to Royalty Interest.

 

(a) Right to Sell . Assignor may not Transfer any interest in the Wells, the Subject Interests or any part thereof or any undivided interest therein in violation of Section 11.03.  Subject to Section 11.02 and 11.03, Assignor may from time to time Transfer, mortgage or pledge its interest in the Wells, the Subject Interests, or any part thereof or undivided interest therein, if and only if (i) such Transfer, mortgage or pledge is made expressly subject to and burdened with the Royalty Interest and this Conveyance; (ii) solely in connection with a Transfer other than a Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has caused the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer; and (iii) in connection with any Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has used commercially reasonable efforts to cause the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer.  Any assumption and agreement to discharge shall be by appropriate written instrument for the express benefit of and enforceable by Assignee.  For the avoidance of doubt, nothing in this Section 11.01(a) is intended to permit any assignee, purchaser, transferee or grantee to acquire any interest in the Wells, the Subject Interests or any part thereof or undivided interest therein without being subject to and burdened with the Royalty Interest and this Conveyance.  Assignee shall not be required to recognize any purported Transfer, mortgage or pledge not made in conformance with this Section 11.01(a) and, notwithstanding any such purported Transfer, mortgage or pledge, Assignor shall remain obligated under this Conveyance just as if such Transfer, mortgage or pledge attempt had not been made and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, any purported Transfer not made in conformance with this Section 11.01(a) shall be void and of no effect.

 

(b) Effect of Sale . From and after the actual date of any such Transfer by Assignor made in full compliance with Section 11.01(a) (and only upon such full compliance), Assignor shall be relieved of all obligations, requirements and responsibilities arising under this Conveyance with respect to the Subject Interests Transferred, as the same pertain to Assignee Minerals produced from and after (but not prior to) said date of such Transfer.

 

(c) Allocation of Consideration . Assignee is not entitled to receive any share of the sales proceeds received by Assignor in any transaction permitted by this Section 11.01.

 

(d) Separate Interest . Notwithstanding any provision to the contrary in Article IV, effective on the effective date of any Transfer of any Subject Interest made in full compliance with Section 11.01(a), Assignee Minerals and Assignee Proceeds shall thereafter be

 

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computed separately with respect to such Subject Interests, and the assignee, buyer, transferee or grantee of such Subject Interests shall thereafter serve as Assignee’s agent and representative under Article IV with respect to such interests and shall pay all corresponding Assignee Proceeds directly to Assignee.

 

Section 11.02 Sale and Assignment of Properties.

 

(a) Transfer . Subject to Section 11.03, Assignor may from time to time, Transfer the Wells, the Subject Interests, or any part thereof or undivided interest therein, free of the Royalty Interest and this Conveyance provided that the aggregate Fair Value of all Royalty Interests assigned with respect to the Assignor Conveyances during any twelve (12) month period shall not exceed $5,000,000.

 

(b) Payments . In connection with any Transfer pursuant to this Section 11.02, Assignor shall remit to Assignee an amount equal to the Fair Value of the Royalty Interest being assigned.  Assignor shall make such payment to Assignee on the Quarterly Payment Date for the Computation Period in which Assignor receives the payment with respect to any such Transfer of the Subject Interest.

 

(c) Assignment . In connection with any Transfer provided for in Section 11.02(a), Assignee shall, upon request of Assignor, execute, acknowledge and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that assigns the Royalty Interest in the Well and the related Subject Interests and Subject Lands being Transferred, to Assignor, or to one or more assignees, as Assignor may direct.

 

(d) Effect of Sale . From and after the actual date of any such Transfer by Assignor, Assignor and any assignee, purchaser, transferee or grantee of such Subject Interest shall be relieved of all obligations, requirements and responsibilities arising under the Royalty Interest or this Conveyance with respect to the Well or Subject Interests Transferred, except for those that accrued prior to such date.

 

Section 11.03 Transfer of Subject Lands . Assignor will not Transfer any Well or any of the Subject Interests comprising a part of the Subject Lands pursuant to Sections 11.01 and 11.02 prior to the Drilling Obligation Completion Date, and in the event of any attempted Transfer in violation of this Section 11.03, Assignor shall remain liable and a party hereto, just as if no Transfer attempt had been made, and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee. Further, to the extent permitted by applicable Legal Requirements, such attempted Transfer in violation of this Section 11.03 shall be void and of no force or effect.  Assignor expressly states and recognizes that the restrictions on Transfer imposed on Assignor in this Section 11.03 and in Section 11.01(a) are made in reasonable protection of an interest of Assignee created hereunder.

 

Section 11.04 Change in Ownership.

 

(a) Obligation to Give Notice . No change of ownership or of the right to receive payment of the Royalty Interest, or of any part thereof, however accomplished, shall bind Assignor until notice thereof is furnished to Assignor by the Person making the transfer and the

 

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Person claiming the benefit thereof, and then only with respect to payments made after such Notice is furnished.

 

(b) Notice of Sale . Notice of sale, transfer, conveyance or assignment shall consist of a certified copy of the recorded instrument accomplishing the same.

 

(c) Notice of Other Changes of Ownership . Notice of change of ownership or of the right to receive payment accomplished in any other manner ( e.g. , by dissolution of Assignee) shall consist of certified copies of recorded documents and complete proceedings legally binding and conclusive of the rights of all Persons.

 

(d) Effect of Lack of Notice . Until such Notice accompanied by such documentation is furnished to Assignor in the manner provided above, Assignor may, at Assignor’s election, either (i) continue to pay or tender all sums payable on the Royalty Interest in the same manner provided in this Conveyance, precisely as if no such change in interest or ownership or right to receive payment had occurred, or (ii) suspend payment of Assignee Proceeds without interest until such documentation is furnished.

 

(e) Effect of Nonconforming Notices . The kinds of Notice provided by this Section 11.04 shall be exclusive, and no other kind, whether actual or constructive, shall bind Assignor.

 

Section 11.05 One Payee . Assignor shall never be obligated to pay Assignee Proceeds to more than one Person.  If more than one Person is ever entitled to receive payment of any part of Assignee Proceeds, Assignor may suspend payments of all Assignee Proceeds until the concurrent owners or claimants of the Royalty Interest or the right to receive payment of Assignee Proceeds appoint one Person in writing to receive all payments of Assignee Proceeds on their behalf.  Assignor may thereafter conclusively rely upon the authority of that Person to receive payments of Assignee Proceeds and shall be under no further duty to inquire into the authority or performance of such Person.

 

Section 11.06 Rights of Mortgagee . If Assignee executes a mortgage or deed of trust covering all or part of the Royalty Interest, the mortgagees or trustees therein named or the holders of any obligation secured thereby shall be entitled, to the extent that such mortgage or deed of trust so provides, to exercise the rights, remedies, powers and privileges conferred upon Assignee by this Conveyance and to give or withhold all consents required to be obtained from Assignee.  This Section 11.06 shall not be deemed or construed to impose upon Assignor any obligation or liability undertaken by Assignee under such mortgage or deed of trust or under the obligation secured thereby.

 

Section 11.07 No Drainage . Subsequent to the Drilling Obligation Completion Date, neither Assignor nor any of its Affiliates shall drill any Mineral well that will have a perforation or a stimulation site in the Target Formation that will be within six hundred sixty feet (660’) of any perforation or stimulation site of any Well which produces oil or gas from the Target Formation.

 

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ARTICLE XII.
FORCE MAJEURE

 

Section 12.01 Nonperformance . Assignor shall not be responsible to Assignee for any loss or damage to Assignee resulting from any delay in performing or failure to perform any obligation under this Conveyance (other than Assignor’s obligation to make payments of Assignee Proceeds to Assignee) to the extent such failure or delay is caused by Force Majeure.

 

Section 12.02 Force Majeure . “ Force Majeure ” means any of the following, to the extent they are not caused solely by the breach by Assignor of its duty to perform certain obligations under this Conveyance in accordance with the Reasonably Prudent Operator Standard:

 

(a) act of God, fire, lightning, landslide, earthquake, storm, hurricane, hurricane warning, flood, high water, washout, tidal wave or explosion;

 

(b) strike, lockout, or other similar industrial disturbance, act of the public enemy, war, military operation, blockade, insurrection, riot, epidemic, arrest or restraint of Governmental Authority or people, or national emergency;

 

(c) the inability of Assignor, or any Affiliate of Assignor, to acquire, or the delay on the part of any Third Person (other than an Affiliate of Assignor) in acquiring, materials, supplies, machinery, equipment, servitudes, right-of-way grants, easements, permits, licenses, approvals or authorizations necessary to enable such Party to perform hereunder;

 

(d) any breakage of or accident to machinery, equipment or lines of pipe, the repair, maintenance, improvement, replacement, alteration to a plant or line of pipe or related facility, the testing of machinery, equipment or line of pipe, or the freezing of a line of pipe;

 

(e) any Legal Requirement or the affected Party’s compliance therewith; or

 

(f) any other cause, whether similar or dissimilar to the causes enumerated in (a) through (e) above, not reasonably within the control of Assignor.

 

Section 12.03 Force Majeure Notice . Assignor will give Assignee a Notice of each Force Majeure as soon as reasonably practicable after the occurrence of such Force Majeure.

 

Section 12.04 Remedy . Assignor will use its reasonable efforts to remedy each Force Majeure and resume full performance under this Conveyance as soon as reasonably practicable, except that the settlement of strikes, lockouts or other labor disputes shall be entirely within the discretion of Assignor.

 

ARTICLE XIII.
NOTICE

 

Section 13.01 Written Notice . Except as otherwise provided by this Conveyance, each Notice shall be in writing.

 

Section 13.02 Methods of Giving Notice . Notice may be given by any reasonable means, including email, telecopier, hand delivery, overnight courier or U.S. mail.

 

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Section 13.03 Charges . All Notices shall be properly addressed to the recipient, with all postage and other charges being paid by the Party giving Notice.

 

Section 13.04 Effective Date. Notice shall be effective when actually received by the Party being notified; provided , however , that Notices given by email or telecopy on any day other than a Business Day, or on a Business Day but after 5:00 p.m. local time at the location of the Party being notified, shall be deemed received on the next Business Day, unless receipt is acknowledged prior to the next Business Day.

 

Section 13.05 Addresses . The addresses of the Parties for purposes of Notice are the addresses in the introductory paragraph to this Conveyance.

 

Section 13.06 Change of Address . Either Party may change its address to another address within the continental United States by giving ten (10) days’ Notice to the other Party.

 

ARTICLE XIV.
OTHER PROVISIONS

 

Section 14.01 Successors and Assigns . The provisions and conditions contained in this Conveyance shall run with the land and the respective interests of Assignor and Assignee in, or related to, the Subject Lands, and, subject to the limitation and restrictions on the assignment or delegation by the Parties of their rights and interests under this Conveyance, this Conveyance binds and inures to the benefit of Assignor, Assignee and their respective successors, assigns and legal representatives.

 

Section 14.02 Governing Law . THIS CONVEYANCE SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF KANSAS WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

Section 14.03 Construction of Conveyance . In construing this Conveyance, the following principles shall be followed:

 

(a) no consideration shall be given to the captions of the articles, sections, subsections or clauses, which are inserted for convenience in locating the provisions of this Conveyance and not as an aid in its construction;

 

(b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Conveyance;

 

(c) the word “includes” and its syntactical variants mean “includes, but is not limited to” and corresponding syntactical variant expressions;

 

(d) a defined term has its defined meaning throughout this Conveyance, regardless of whether it appears before or after the place in this Conveyance where it is defined;

 

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(e) the plural shall be deemed to include the singular, and vice versa, unless the context otherwise requires; and

 

(f) each exhibit, attachment and schedule to this Conveyance is a part of this Conveyance, but if there is any conflict or inconsistency between the main body of this Conveyance and any exhibit, attachment or schedule, the provisions of the main body of this Conveyance shall prevail.

 

Section 14.04 No Waiver . Failure of either Party to require performance of any provision of this Conveyance shall not affect either Party’s right to require full performance thereof at any time thereafter, and the waiver by either Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.

 

Section 14.05 Relationship of Parties . This Conveyance does not create a partnership, mining partnership, joint venture or relationship of trust or agency (except with respect to Assignor’s agency relationship with respect to those matters set forth in Articles IV and V above) between the Parties.

 

Section 14.06 Further Assurances . Each Party shall execute, acknowledge and deliver to the other Party all additional instruments and other documents reasonably required to describe more specifically any interests subject hereto, to vest more fully in Assignee the Royalty Interest conveyed (or intended to be conveyed) by this Conveyance, or to evidence or effect any transaction contemplated by this Conveyance.  Assignor shall also execute and deliver all additional instruments and other documents reasonably required to transfer interests in state, federal or Indian lease interests in compliance with applicable Legal Requirements or agreements.  Upon expiration of the Term, Assignee shall, on request, execute, acknowledge and deliver to Assignor sufficient numbers of recordable instruments releasing all of the Subject Lands from this Conveyance.

 

Section 14.07 The 12:01 A.M. Convention . Except as otherwise provided in this Conveyance, each calendar day, month, quarter and year shall be deemed to begin at 12:01 a.m. Central Time on the stated day or on the first day of the stated month, quarter or year, and to end at 12:00 a.m. Central Time on the next day or on first day of the next month, quarter or year, respectively.

 

Section 14.08 Counterpart Execution . This Conveyance may be executed in any number of counterparts, all of which are identical except that to facilitate filing and recording, counterparts to be filed and recorded in the appropriate records of each county may have included in Exhibit A hereto only those portions of Exhibit A hereto that contain descriptions of the lands and leases located in said county.  Every counterpart of this Conveyance shall be deemed to be an original for all purposes, and all such counterparts together shall constitute one and the same instrument.  An executed counterpart of this Conveyance containing the full text to the entire Exhibits and Annexes is recorded in the real property records of Barber County, Kansas.  Counterparts of this Conveyance with all portions of Exhibit A hereto will be kept at the offices of Assignor and Assignee at the addresses indicated in the introductory paragraph to this Conveyance.

 

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As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf shall be deemed an original hereto.

 

Section 14.09 Present and Absolute Conveyance . It is the express intention of Assignor and Assignee that the Royalty Interest is, and shall be construed for all purposes as, a present, fully-vested and absolute conveyance.

 

Section 14.10 Tax Treatment. Notwithstanding that this Royalty Interest may be a real property interest for purposes of applicable state law, the Parties agree to treat this Royalty Interest as a mortgage loan for federal income tax purposes pursuant to Section 636(a) of the Code (and for the purposes of any similarly calculated state income or franchise taxes) but for no other purposes, and the Parties agree to file all federal income tax and state income tax and franchise tax returns consistent with this Section 14.10.  For avoidance of doubt, the Parties acknowledge that Assignor (and not Assignee) is entitled to all tax credits and other applicable tax attributes attributable to this Royalty Interest and the production of Minerals attributable thereto.

 

Section 14.11 Severability . In case any provision, covenant or obligation under this Conveyance is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions, covenants or obligations of this Conveyance are declared to be severable and not in any way affected or impaired thereby.

 

[ Remainder of page intentionally left blank. ]

 

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IN WITNESS WHEREOF, each Party has caused this Conveyance to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Conveyance, to be effective as of the Effective Time.

 

 

 

SANDRIDGE EXPLORATION AND PRODUCTION, LLC

 

 

 

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

Signature Page to Term Overriding Royalty Interest

Conveyance (Kansas) (PDP)

 



 

 

MISTMADA OIL COMPANY, INC.

 

 

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

Signature Page to Term Overriding Royalty Interest

Conveyance (Kansas) (PDP)

 



 

STATE OF OKLAHOMA

§

 

§

COUNTY OF OKLAHOMA

§

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb, President and Chief Operating Officer of SandRidge Exploration and Production, LLC, a Delaware limited liability company, on behalf of said limited liability company.

 

 

 

 

/s/ Janis L. Roberts

 

 

NOTARY PUBLIC,

 

 

 

 

 

State of Oklahoma

 

 

 

 

 

Janis L. Roberts

 

 

(printed name)

 

 

 

 

 

 

My commission expires: May 22, 2012

 

 

 

 

 

 

 

 

SEAL or STAMP

 

 

 

Acknowledgment Page to Term Overriding Royalty Interest

Conveyance (Kansas) (PDP)

 



 

STATE OF OKLAHOMA

§

 

§

COUNTY OF OKLAHOMA

§

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb as President and Chief Operating Officer of Mistmada Oil Company, Inc., an Oklahoma corporation, on behalf of said corporation.

 

 

 

 

/s/ Janis L. Roberts

 

 

NOTARY PUBLIC,

 

 

 

 

 

State of Oklahoma

 

 

 

 

 

Janis L. Roberts

 

 

(printed name)

 

 

 

 

 

 

My commission expires: May 22, 2012

 

 

 

 

 

 

 

 

SEAL or STAMP

 

 

 

Acknowledgment Page to Term Overriding Royalty Interest

Conveyance (Kansas) (PDP)

 



 

Exhibit A

 

(Subject Lands)

 

See attached.

 



 

Exhibit B

 

(Excluded Assets)

 

None.

 



 

Exhibit C

 

(Wells)

 

See attached.

 


Exhibit 10.2

 

Execution Copy

 

TERM OVERRIDING ROYALTY INTEREST

CONVEYANCE (OKLAHOMA) (PDP)

 

This TERM OVERRIDING ROYALTY INTEREST CONVEYANCE (OKLAHOMA) (PDP) (this “ Conveyance ”) from SandRidge Exploration and Production, LLC, a Delaware limited liability company, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ Assignor ”), to Mistmada Oil Company, Inc., an Oklahoma corporation, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ Assignee ”), is delivered to be effective as of the Effective Time.  All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Article II below.

 

ARTICLE I.
CONVEYANCE

 

Section 1.01 The Grant . For and in consideration of good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby BARGAIN, SELL, GRANT, CONVEY, TRANSFER, ASSIGN, SET OVER, and DELIVER unto Assignee, subject to the terms of this Conveyance and for the Term, as an overriding royalty interest (the “ Royalty Interest ”), an undivided interest in and to all Minerals that may be produced and saved from the Target Formation underlying the Subject Lands through the wellbores of the Wells, sufficient to cause Assignee to receive the Assignee Minerals.  To the extent any interest conveyed hereunder is created out of a mineral interest, rather than out of an oil and gas leasehold interest, the term “overriding royalty interest” shall be interpreted to mean a non-participating royalty interest with respect to that particular interest, but any such interest shall still be subject to, and shall have the rights and obligations set forth in, this Conveyance.

 

Section 1.02 Non-Operating, Non-Expense Bearing Interest.  The Royalty Interest conveyed hereby is a non-operating, non-expense-bearing overriding royalty interest for a limited term in and to the Subject Interests, free of all cost, risk and expense of production, operations and marketing.  In no event shall Assignee ever be liable or personally obligated for payment of any cost, expenses or liabilities attributable to the Subject Interests (or any part thereof) or incurred in connection with the production, saving or marketing of Assignee Minerals, subject, however, to Assignor’s right hereinafter provided to deduct Chargeable Costs in determining Assignee Proceeds, which right shall be solely a matter of deduction from the proceeds from the sale of Assignee Minerals and not a personal obligation of Assignee.  This Conveyance is a conveyance of an interest in real property.

 

Section 1.03 Term.  The term of the Royalty Interest (the “ Term ”) shall begin at the Effective Time and end on December 31, 2031 (the “ Termination Date ”).  At the end of the Term, all of Assignee’s interest in and to the Royalty Interest shall automatically terminate and immediately revert to and revest in Assignor.

 

Section 1.04 Habendum Clause . TO HAVE AND TO HOLD the Royalty Interest, together with all and singular the rights and appurtenances thereto in anywise belonging,

 



 

unto Assignee, its successors and assigns, for the Term, subject to terms and provisions of this Conveyance.

 

Section 1.05 Warranty.

 

(a)  The Warranty . Assignor warrants to Assignee, its successors and assigns, that the Royalty Interest is free of all Encumbrances created by, through or under Assignor, but not otherwise, except for the Permitted Encumbrances.

 

(b)  Remedies . In the event of a breach of the foregoing warranty, Assignee’s sole remedy shall be to receive payment on each applicable Quarterly Payment Date, out of Assignor’s Net Share of Minerals from other Wells in excess of that subject to the Royalty Interest and the royalty interest created pursuant to the Perpetual PDP Oklahoma Conveyance (the “ Assignor Retained Minerals ”), subject to offset as provided below and without interest (except such interest payable under this Conveyance on payments made after the applicable due date as described in Section 5.02 below), of an amount equal to the difference between (x) Assignee Proceeds that Assignee would have received with respect to such Well in the applicable Computation Period if such warranty had not been breached, and (y) Assignee Proceeds that Assignee actually received during that Computation Period with respect to that Well, to the extent such difference is attributable to the breach of the warranty, but not to the extent that such difference is attributable to any other cause, and any such amounts of Assignor Retained Minerals shall be treated as Assignee Minerals.

 

(c)  Right of Offset . If any Subject Interest ever proves to be larger as of the Effective Date than the Subject Interest reflected in Exhibit A hereto and if, as a result, Assignee receives a greater amount of Assignee Minerals (or the proceeds from the sale thereof) with respect to that Subject Interest than Assignee would otherwise have received if the Subject Interest had been the size reflected on Exhibit A hereto, then such increased amounts, whenever received by Assignee, may be treated by Assignor as a credit or offset (without interest) against any amounts payable to Assignee under Section 1.05(b).

 

(d)  DISCLAIMER . EXCEPT FOR THE WARRANTIES OF TITLE GIVEN IN SECTION 1.05(a), ASSIGNOR MAKES THIS CONVEYANCE AND ASSIGNS THE ROYALTY INTEREST WITHOUT RECOURSE, COVENANT OR WARRANTY OF TITLE OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY.  ANY COVENANTS OR WARRANTIES IMPLIED BY STATUTE OR LAW BY THE USE HEREIN OF THE WORDS “ GRANT ”, “ CONVEY ” OR OTHER SIMILAR WORDS ARE HEREBY EXPRESSLY DISCLAIMED, WAIVED AND NEGATED.  WITHOUT LIMITING THE GENERALITY OF THE TWO PRECEDING SENTENCES, ASSIGNEE ACKNOWLEDGES THAT ASSIGNOR HAS NOT MADE, AND ASSIGNOR HEREBY EXPRESSLY DISCLAIMS AND NEGATES, AND ASSIGNEE HEREBY EXPRESSLY WAIVES, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO (i) PRODUCTION RATES, RECOMPLETION OPPORTUNITIES, DECLINE RATES OR THE QUALITY, QUANTITY OR VOLUME OF THE RESERVES OF MINERALS, IF ANY, ATTRIBUTABLE TO THE SUBJECT INTERESTS, (ii) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (iii) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iv) ANY

 

2



 

IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, AND (v) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER ANY APPLICABLE LEGAL REQUIREMENT; IT BEING THE EXPRESS INTENTION OF BOTH ASSIGNEE AND ASSIGNOR THAT THE ROYALTY INTEREST IS HEREBY ASSIGNED TO ASSIGNEE ON AN “AS IS” AND “WHERE IS” BASIS WITH ALL FAULTS, AND THAT ASSIGNEE HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS ASSIGNEE DEEMS APPROPRIATE.  ASSIGNOR AND ASSIGNEE AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LEGAL REQUIREMENTS TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS SECTION ARE “CONSPICUOUS” DISCLAIMERS FOR THE PURPOSES OF ANY APPLICABLE LEGAL REQUIREMENT.

 

(e)  Substitution of Warranty . This instrument is made with full substitution and subrogation of Assignee in and to all covenants of warranty by Third Persons (other than Affiliates of Assignor) heretofore given or made with respect to the Wells, the Subject Interests or any part thereof or interest therein.

 

ARTICLE II.
DEFINITIONS

 

This Article II defines certain capitalized words, terms, and phrases used in this Conveyance. Certain other capitalized words, terms, and phrases used in this Conveyance are defined elsewhere in this Conveyance.

 

Act ” is defined in Section 10.03.

 

Affiliate ” means, for any specified Person, another Person that controls, is controlled by, or is under common control with, the specified Person.  “ Control ,” in the preceding sentence, refers to the possession by one Person, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.

 

AMI ” means that area described in Exhibit A to the Development Agreement, as such area may be extended or exchanged pursuant to Article III of the Development Agreement.

 

Assignee ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignee.

 

Assignee Minerals ” is defined in Section 3.01.

 

Assignee Proceeds ” is defined in Section 3.03.

 

Assignor ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignor.

 

Assignor Conveyances ” means the Assignor Oklahoma Conveyances and the Assignor Kansas Conveyances.

 

3



 

Assignor Kansas Conveyances ” means the Long-Term Development Kansas Conveyance, the Term Development Kansas Conveyance, the Perpetual PDP Kansas Conveyance and the Term PDP Kansas Conveyance.

 

Assignor Oklahoma Conveyances ” means this Conveyance, the Perpetual PDP Oklahoma Conveyance, the Perpetual Development Oklahoma Conveyance and the Term Development Oklahoma Conveyance.

 

Assignor Retained Minerals ” is defined in Section 1.05(b).

 

Assignor’s Net Revenue Interest ” means the interest, stated as a decimal fraction, in Subject Minerals production from a Well attributable to the Subject Interests in that Well, net of Production Burdens.

 

Assignor’s Net Share of Minerals ” means the share of Subject Minerals from each Well that is attributable to Assignor’s Net Revenue Interest in that Well determined prior to giving effect to this Conveyance.

 

Bbl ” means one stock tank barrel, or 42 U.S. gallons liquid volume, in reference to Oil or Gas Liquids.

 

Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the New York Stock Exchange, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.

 

Chargeable Costs ” is defined in Section 3.02(a).

 

Closing Time ” means 12:01 a.m. Central Time, on April 23, 2012.

 

Computation Period ” means each calendar quarter commencing on or after 12:01 a.m., Central Time, on January 1, 2012, with each such calendar quarter being deemed to have begun at 12:01 a.m. Central Time on the first day of such calendar quarter and to have ended at 12:00 a.m. Central Time on the first day of the next calendar quarter.

 

Conveyance ” is defined in the introductory paragraph to this Conveyance.

 

Development Agreement ” means that certain Development Agreement by and among SandRidge, Assignor and the Trust, dated as of even date herewith and effective as of the Effective Time.

 

Drilling Obligation Completion Date ” has the meaning given to such term in the Development Agreement.

 

Effective Time ” means 12:01 a.m., Central Time, on January 1, 2012; provided , however , that with respect to each oil and gas lease described in Exhibit A that has a date after January 1, 2012, the Effective Time, with respect to each such oil and gas lease, shall be 12:01 a.m., Central Time, on the date of such oil and gas lease.

 

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Encumbrance ” means any mortgage, lien, security interest, pledge, charge, encumbrance, limitation, preferential right to purchase, consent to assignment, irregularity, burden or defect.

 

Excess Costs ” means, in any Computation Period, the excess of (x) Chargeable Costs associated with Assignee Minerals for that Computation Period over (y) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals (with the amount in clause (y) calculated as provided in Section 3.03(a) hereof).  Excess Costs shall bear interest at the Prime Interest Rate from the end of the Computation Period in which such costs were incurred to the date that Assignor recovers such amounts from Assignee Proceeds.

 

Excluded Assets ” means (a) those oil and gas wells that are the subject of the Term Development Oklahoma Conveyance and the Perpetual Development Oklahoma Conveyance, and (b) those oil and gas wells that are described in Exhibit B hereto.

 

Fair Value ” means, with respect to any portion of the Royalty Interest to be assigned pursuant to Section 11.02 in connection with a Transfer of any Well or Subject Interests, an amount of net proceeds that could reasonably be expected to be obtained from the sale of such portion of the Royalty Interest to a party that is not an Affiliate of either Assignor or Assignee on an arms’-length negotiated basis, taking into account relevant market conditions and factors existing at the time of any such proposed Transfer, such net proceeds to be determined by deducting Assignee’s proportionate share of sales costs, commissions and brokerage fees, if any (based on the ratio of (i) the fair market value of the portion of the Royalty Interest being assigned to (ii) the fair market value of the Wells and Subject Interests being Transferred (including the value of the Royalty Interest being assigned)).

 

Farmout Agreements ” means any farmout agreement, participation agreement, exploration agreement, development agreement or any similar agreement.

 

Force Majeure ” is defined in Section 12.02.

 

Gas ” means natural gas and all other gaseous hydrocarbons or minerals, including helium, but specifically excluding any Gas Liquids.

 

Gas Liquids ” means those natural gas liquids and other liquid similar hydrocarbons, including ethane, propane, butane and natural gasoline, and mixtures thereof, that are removed from a gas stream by the liquids extraction process of any field facility or gas processing plant and delivered by the facility or plant as natural gas liquids.

 

Governmental Authority ” means the United States of America, any state, commonwealth, territory, or possession thereof, and any political subdivision of any of the foregoing, including courts, departments, commissions, boards, bureaus, agencies and other instrumentalities.

 

Legal Requirement ” means any law, statute, ordinance, decree, requirement, order, judgment, rule, or regulation of, including the terms of any license or permit issued by, any Governmental Authority.

 

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Long-Term Development Kansas Conveyance ” means that certain Long-Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Mcf ” means one thousand cubic feet of Gas, measured and expressed at the same temperature, pressure, and other conditions of measurement (a) provided in any contract for the purchase of Gas from the Subject Interests or, (b) if no such contract exists, provided by applicable state law for purposes of reporting production to Governmental Authorities.

 

Mineral(s) ” means Oil, Gas and Gas Liquids.

 

MMBtu ” means one million British thermal units.

 

Mortgages ” has the meaning given such term in the Development Agreement.

 

Non-Affiliate ” means, for any specified Person, any other Person that is not an Affiliate of the specified Person.

 

Notice ” means any notice, advice, invoice, demand or other communication required or permitted by this Conveyance.

 

Oil ” means crude oil, condensate and other liquid hydrocarbons recovered by field equipment or facilities, excluding Gas Liquids.

 

Party ,” when capitalized, refers to Assignor or Assignee. “ Parties ,” when capitalized, refers to Assignor and Assignee.

 

Permitted Encumbrances ” means:

 

(a) the Production Burdens;

 

(b) contractual obligations arising under operating agreements, Farmout Agreements, production sales contracts, leases, assignments and other similar agreements that may affect the Subject Interests;

 

(c) pooling and unitization agreements, declarations, orders or Legal Requirements to secure payment of amounts not yet delinquent;

 

(d) liens and security interests that arise in the normal course of operations, such as liens for unpaid taxes, statutory liens securing unpaid suppliers and contractors, and contractual liens under operating agreements, in any case, that are not yet delinquent or, if delinquent, are being contested in good faith in the normal course of business;

 

(e) conventional rights of reassignment that obligate Assignor to reassign all or part of any Subject Interest to a Third Person if Assignor intends to release or abandon such interest before the expiration of the primary term or other termination of such interest;

 

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(f) easements, rights-of-way, servitudes, permits, surface leases, surface use restrictions and other surface uses and impediments on, over or in respect of the Subject Interests that are not such as to interfere materially with the operation, value or use of the Subject Interests;

 

(g) rights reserved to or vested in any Governmental Authority to control or regulate any Subject Interests in any manner, and all applicable Legal Requirements;

 

(h) the terms of the instruments creating the Subject Interests and Subject Lands; and

 

(i) the Mortgages;

 

provided , that such aforementioned encumbrances are of the type and nature customary in the oil and gas industry, and provided , further , that such aforementioned encumbrances do not, alone or in the aggregate, materially and adversely affect the operation, value or use of any Subject Interests, and all to the extent, and for so long as, such Permitted Encumbrances are otherwise valid and enforceable against the Subject Interests, without recognizing, expressly or by implication, any rights or interests in any Third Person or Governmental Authority that such Third Person or Governmental Authority does not otherwise lawfully possess.

 

Perpetual Development Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (Development) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Perpetual PDP Kansas Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Perpetual PDP Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Person ” means any natural person, corporation, partnership, trust, estate, or other entity, organization or association.

 

Post Production Cost Charge ” is defined in Section 3.02(b).

 

Prime Interest Rate ” is defined in Section 5.02(b).

 

Production Burdens ” means, with respect to any Subject Lands, Subject Interests or Subject Minerals, all royalty interests, overriding royalty interests, production payments, net profits interests and other similar interests that constitute a burden on, are measured by, or are payable out of the production of Minerals or the proceeds realized from the sale or other disposition thereof.

 

Quarterly Payment Date ” is defined in Section 5.01(b).

 

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Reasonably Prudent Operator Standard ” means the standard of conduct of a reasonably prudent oil and gas operator in the AMI under the same or similar circumstances, acting with respect to its own property and disregarding the existence of the Royalty Interest as a burden on such property.

 

Royalty Interest ” is defined in Section 1.01.

 

Sales Price ” means the price received by Assignor for Assignee Minerals determined in accordance with the following provisions:

 

(a) “sale” refers to any sale, exchange or other disposition of Assignee Minerals for value, the value of such Minerals that is exchanged or otherwise disposed of for valuable consideration being the sales price that Assignor receives for any such Minerals sold pursuant to Section 4.01 for any such Minerals;

 

(b) amounts of money not paid to Assignor when due by any purchaser of Assignee Minerals (for example, Taxes or other amounts withheld or deducted by any such purchaser) shall not be included within the Sales Price until actually received by, or credited to the account of, Assignor;

 

(c) advance payments and prepayments for future deliveries of Assignee Minerals shall be included within the Sales Price, without interest, when that volume of Minerals subject to the advance payments or prepayments is actually produced;

 

(d) loan proceeds received by Assignor shall not be treated as a component of the applicable Sales Price; and

 

(e) if a controversy or possible controversy exists, whether by reason of any statute, order, decree, rule, regulation, contract or otherwise, between Assignor and any purchaser of Assignee Minerals or any other Person, about the correct Sales Price of any Assignee Minerals, about deductions from the Sales Price, about Assignor’s right to receive the proceeds of any sale of Assignee Minerals, or about any other matter, then monies withheld by the purchaser or deposited by it with an escrow agent or if Assignor receives any monies and promptly deposits such monies with a Third Person escrow agent as a result of such controversy, such monies shall not be included within the Sales Price until received by or returned to Assignor, as applicable.

 

SandRidge ” means SandRidge Energy, Inc., a Delaware corporation.

 

Subject Interests ” means Assignor’s undivided interests in the Subject Lands as described on Exhibit A hereto, whether as lessee under leases, as an owner of the Subject Minerals (or the right to extract such Minerals) or otherwise, by virtue of which undivided interests Assignor has the right to conduct exploration, drilling, development and Mineral production operations on the Subject Lands, or to cause such operations to be conducted, or to participate in such operations by paying and bearing all or any part of the costs, risks and liabilities of such operations, to drill, test, complete, equip, operate and produce wells to exploit the Minerals.  The “Subject Interests” (a) may be owned by Assignor pursuant to leases, deeds, operating, pooling or unitization agreements, orders or any other instruments, agreements or

 

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documents, recorded or unrecorded, (b) include any and all extensions or renewals of leases covering the Subject Lands (or any portion thereof) obtained by Assignor, or any Affiliate thereof, within six (6) months after the expiration or termination of any such lease, and (c) are subject to the Permitted Encumbrances.  For the avoidance of doubt, the “Subject Interests” do not include:  (i) Assignor’s interests in the Excluded Assets; (ii) Assignor’s rights to substances other than Minerals; (iii) Assignor’s rights to Minerals (other than Assignee Minerals) under contracts for the purchase, sale, transportation, storage, processing or other handling or disposition of Minerals; (iv) Assignor’s interests in, or rights to Minerals (other than Assignee Minerals) held in pipelines, gathering systems, storage facilities, processing facilities or other equipment or facilities; or (v) any additional or enlarged interests in the Wells, Subject Lands or Subject Minerals acquired by Assignor after the Closing Time, except (1) to the extent any such additional or enlarged interest becomes a part of the Subject Interests by amendment to this Conveyance pursuant to Section 3.01 or 3.02 of the Development Agreement, (2) as may result from the operation of the terms of the instruments creating the Subject Interests, or (3) as may be reflected in extensions and renewals covered by the preceding sentence.

 

Subject Lands ” means the lands subject to or covered by the oil and gas leases described in Exhibit A hereto, insofar and only insofar as they cover the Target Formation, subject to the exceptions, exclusions and reservations set forth on such Exhibit A hereto.

 

Subject Minerals ” means all Minerals in and under, and that may be produced, saved and sold from a Well, from and after the Effective Time, insofar and only insofar as such Minerals are produced from the Target Formation, subject to the following exclusions:  Minerals that are (a) lost in the production, gathering or marketing of Minerals; (b) used (i) in conformity with ordinary and prudent operations on the Subject Lands, including drilling and production operations with respect to a Well or (ii) in connection with operations (whether on or off the Subject Lands) for processing or compressing the Subject Minerals; (c) taken by a Third Person to recover costs, or some multiple of costs, paid or incurred by that Third Person under any operating agreement, unit agreement or other agreement in connection with nonconsent operations conducted (or participated in) by that Third Person; and (d) retained by a Third Person for gathering, transportation, processing or marketing services related to the Subject Minerals in lieu of or in addition to cash payment for such services, to the extent such agreement is permitted under this Conveyance.

 

Target Formation ” means (i) with respect to Alfalfa County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4,833’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,344’ in the SandRidge Energy Dorado SWD 1-32 located in section 32, Township 29 North, Range 9 West (API No. 35003219830000); (ii) with respect to Grant County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,395’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 6,060’ in the SandRidge Energy Orion 1-22 SWD located in section 22, Township 25 North, Range 5 West (API No. 35053227710000); (iii) with respect to Kay County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4,387’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 4,619’ in the Jefferson-WMS State School Land

 

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5-36 located in section 36, Township 25 North, Range 2 West (API No. 35071224500000); (iv) with respect to Noble County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4,523’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 4,783’ in the SandRidge Energy County Line SWD 1-2 located in section 2, Township 24 North, Range 2 West (API No. 35103242860000); and (v) with respect to Woods County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,204’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,704’ in the SandRidge Energy Koppitz SWD 1-31 located in section 31, Township 28 North, Range 13 West (API No. 35151232750000).

 

Taxes ” is defined in Section 3.02(c).

 

Term Development Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term Development Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Third Person ” means a Person other than Assignor, Assignee or Trustee.

 

Transfer ” including its syntactical variants, means any assignment, sale, transfer, conveyance or disposition of any property; provided , that Transfer as used herein does not include the granting of a mortgage on or security interest in Assignor’s interest in any property, including the Wells, the Subject Interests and/or the Subject Lands.

 

Trust ” means SandRidge Mississippian Trust II, a Delaware statutory trust.

 

Trustee ” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America with its principal place of business in New York, New York, as trustee, acting not in its individual capacity but solely as trustee of the Trust.

 

Well ” means the borehole of each Mineral well more particularly described in Exhibit C hereto.

 

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ARTICLE III.
CALCULATION OF ASSIGNEE MINERALS

 

Section 3.01 Definition . “ Assignee Minerals ” is that volume of Minerals with respect to each Well calculated in accordance with the following formula: Forty Percent (40%) X (Assignor’s Net Share of Minerals).

 

Section 3.02 Chargeable Costs.

 

(a)  Definition . For each Computation Period, “ Chargeable Costs ” means the sum of (i) the Post Production Cost Charge, plus (ii) Excess Costs from prior Computation Periods, plus (iii) Taxes incurred, accrued or paid by Assignor; provided, that such costs are actually paid by Assignor during the relevant Computation Period or paid by Assignor during a prior Computation Period and not included in any prior Computation Period’s Chargeable Costs.  For the avoidance of doubt, all costs associated with, incurred or paid in connection with the drilling, testing, completing and equipping for production of the Wells shall be borne solely by Assignor and shall not be included as Chargeable Costs.

 

(b)  Post Production Cost Charge . “ Post Production Cost Charge ” means those costs incurred by Assignor (including internal costs and Third Person costs) to gather, store, transport, compress, process, treat, dehydrate and market, as applicable, the Subject Minerals, including any costs as may be required to deliver such Minerals to market; provided , that any costs charged by Assignor and its Affiliates as part of the Post Production Cost Charge shall not materially exceed the costs prevailing in the area where the Subject Minerals are being produced for similar services; and provided , further , that with respect to marketing costs, only Non-Affiliate marketing fees and costs shall be included, and marketing costs of Assignor and its Affiliates with respect to any Subject Minerals will be specifically excluded from the Post Production Cost Charge.  Any costs, fees or expenses that are properly charged or allocated to Assignee Minerals pursuant to another provision of this Conveyance (including, as provided for in the definition of Subject Minerals) shall not be included as part of the Post Production Cost Charge.

 

(c)  Taxes . “ Taxes ” means general property, ad valorem, production, severance, sales, windfall profit, excise and other taxes, except income taxes, assessed or levied on or in connection with the Subject Interests, the Royalty Interest, this Conveyance, production of Subject Minerals, Assignor’s Net Share of Minerals, Assignee Minerals (or the proceeds from the sale thereof) or facilities or equipment on the Subject Lands that are used for the production, dehydration, treatment, processing, gathering or transportation of Subject Minerals, or against Assignor as owner of the Subject Interests or paid by Assignor on behalf of Assignee as owner of the Royalty Interest.

 

(d)  Operating and Drilling Costs . For the avoidance of doubt, all costs associated with or paid or incurred in connection with the drilling, testing, completing, developing and operating the Wells or otherwise incurred in connection with the ownership or operation of the Subject Interests other than Taxes and Post Production Cost Charges shall be borne solely by Assignor and shall not be included as Chargeable Costs, and Assignor may use any Subject Minerals in such operations without any duty to account to Assignee.

 

Section 3.03 Assignee Proceeds . “ Assignee Proceeds ” means, for any Computation Period, (a) the amount of proceeds actually received by Assignor during such

 

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Computation Period in respect of Assignee Minerals, with the amount of such proceeds being determined by multiplying (i) the volume of Assignee Minerals produced (expressed (A) for Gas, in Mcf or MMBtu, (B) for Gas Liquids, in Bbls and (C) for Oil, in Bbls) by (ii) the relevant Sales Price (expressed (A) for Gas, on a per Mcf or MMBtu basis, (B) for Gas Liquids, on a per Bbl basis and (C) for Oil, on a per Bbl basis), less (b) the Chargeable Costs associated with such Assignee Minerals.

 

ARTICLE IV.
MARKETING OF ASSIGNEE MINERALS

 

Section 4.01 Rights and Duties Regarding Sale of Assignee Minerals . Assignor shall market or shall cause to be marketed Assignor’s Net Share of Minerals (including Assignee Minerals) in good faith and in accordance with the Reasonably Prudent Operator Standard and Section 4.02(d).  Assignor shall use its reasonable efforts in connection with any sale of Assignor’s Net Share of Minerals (including Assignee Minerals) to obtain, as soon as reasonably practicable, full payment for such Minerals; provided , however , that it shall not be considered a breach of Assignor’s marketing duty or standard of conduct for Assignor to market such Minerals to an Affiliate of Assignor, so long as Assignor does not market such Minerals at a volume-weighted average price lower than the volume-weighted average price upon which Assignor pays royalties to the owners of the other royalty interests in the Subject Minerals, save and excepting Chargeable Costs provided for in Article III hereof.

 

Section 4.02 Assignee’s Agent and Representative.

 

(a)  Appointment . Assignee appoints Assignor as Assignee’s agent and representative to market and deliver or cause to be marketed and delivered all Assignee Minerals and to collect and receive all payments therefrom under any Minerals purchase agreement or contract without deduction (except to the extent Chargeable Costs are deducted for any Computation Period).  The appointment of Assignor as Assignee’s agent and representative for such purpose is a material item of consideration to the Parties in connection with the execution and delivery of this Conveyance.  Assignee may not remove Assignor from office as Assignee’s agent and representative, except for cause upon a material breach by Assignor of its duties to Assignee under this Conveyance.

 

(b)  Duties and Powers . As Assignee’s agent and representative, Assignor shall receive all payments for the sale of Assignee Minerals and account to Assignee, receive and make all communications with the purchaser of such Minerals, and otherwise act and speak for Assignee in connection with the sale of Assignee Minerals.  Third Persons may rely conclusively on the authority of Assignor to market Assignee Minerals, and with respect to Third Persons only, Assignee shall be conclusively bound by the acts of Assignor in connection with the sale of Assignee Minerals.  It shall not be necessary for Assignee to join Assignor in the execution of any division order, transfer order or other instrument, agreement or document relating to the sale of Assignee Minerals.  Third Persons may pay all Assignee Proceeds for the sale of such Minerals directly to Assignor, without the necessity of any joinder by or consent of Assignee or any inquiry into the use or disposition of such proceeds by Assignor.  In no event, however, shall the authority granted in this Section 4.02 or elsewhere in this Conveyance relieve Assignor of any liability for breach of this Conveyance.

 

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(c)  Prohibited Acts . Assignor may not act for or bind Assignee on any matter, except the marketing and delivery of Assignee Minerals under this Article IV.

 

(d)  Standard of Conduct . In exercising its powers and performing its duties as Assignee’s agent and representative, Assignor shall act in good faith and in accordance with the Reasonably Prudent Operator Standard.  It shall not be a violation of such standard of conduct for Assignor (i) to sell Assignor’s Net Share of Minerals or Assignee Minerals to an Affiliate pursuant to any purchase agreement or contract, or (ii) to delegate some or all of Assignor’s duties as Assignee’s agent and representative to its Affiliates (so long as such Affiliates perform in good faith and in accordance with the Reasonably Prudent Operator Standard), with Assignor remaining liable to Assignee for the performance of such duties.

 

(e)  Termination of Authority . Assignor may not resign as Assignee’s agent and representative without the prior written consent of Assignee, except that Assignor may resign as Assignee’s agent and representative without such consent with respect to any Subject Interests assigned, sold, transferred or conveyed by Assignor in accordance with the terms of this Conveyance.  If such sale is made subject to the Royalty Interest, Assignor must cause the purchaser to assume the duties of Assignee’s agent and representative with respect to the Subject Interests acquired by that purchaser and to be bound by the provisions of this Article IV.

 

Section 4.03 Delivery of Subject Minerals . Assignor (whether or not it is serving as Assignee’s agent and representative) shall deliver or cause to be delivered Assignor’s Net Share of Minerals (including Assignee Minerals) to the purchasers thereof.

 

Section 4.04 Processing . Assignor may, or may by contract cause a Third Person to, dehydrate, separate, treat, compress or otherwise process Assignor’s Net Share of Minerals (including Assignee Minerals) and may commit any of the Subject Interests (including the Royalty Interest attributable thereto) to an agreement for processing Minerals (pursuant to which, for example, the plant owner or operator receives a portion of the Subject Minerals or plant products therefrom or proceeds of the sale thereof as a fee for processing), so long as (a) Assignor enters into such processing arrangements in good faith and in accordance with the Reasonably Prudent Operator Standard, and (b) any such processing arrangements entered into with Affiliates of Assignor contain rates and charges that are comparable to the prevailing charges for similar services in the applicable area.  Assignee shall be bound by such arrangements and shall permit Assignor’s Net Share of Minerals (including Assignee Minerals) to be processed by Assignor or its contractor.  Assignee shall not, however, be personally liable for any costs or risks associated with such processing operations, but Assignee shall indirectly suffer the energy content reduction and volume reductions associated with processing through corresponding reductions in the content and volumes of Assignee Minerals.

 

ARTICLE V.
PAYMENT

 

Section 5.01 Obligation to Pay.

 

(a)  The Obligation .  After each Computation Period and on or before the Quarterly Payment Date for that Computation Period, Assignor shall tender to Assignee the

 

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Assignee Proceeds for the applicable Computation Period, plus , to the extent applicable, (i) all of the proceeds to be paid to Assignee from the sale of Assignee Minerals produced during any prior Computation Periods, to the extent not previously paid to Assignee for such prior Computation Periods, (ii) any damages payable to Assignee under Section 1.05(b) (subject to the right of set-off in Section 1.05(c)) during the most recently completed Computation Period, and (iii) any amounts (including any interest earned thereon) that were previously deposited with a Third Person escrow agent in accordance with Section 5.01(d) and subsequently determined by Assignor to be validly owing to Assignee.  All such amounts shall be transmitted to Assignee by Assignor by means of wire transfer of funds to a bank account specified by Assignee pursuant to written instructions which shall remain in effect until and unless changed by subsequent written notice to Assignor.

 

For purposes of determining the amount of Assignee Proceeds for any Computation Period, if, when calculating Assignee Minerals for any Computation Period, Assignor is unable to determine the precise volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals, then Assignor shall, in good faith and in accordance with the Reasonably Prudent Operator Standard, estimate the volume of such Minerals produced, sold and attributable to Assignor’s Net Share of Minerals.  Assignor shall adjust the calculation of Assignee Proceeds upward or downward, as the case may be, in the next or subsequent Computation Periods to reflect the difference between the estimated volume of Minerals established pursuant to this Section 5.01(a) and the actual volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals in the Computation Period for which such estimate was made.

 

(b)  Quarterly Payment Date . “ Quarterly Payment Date ” for each Computation Period means the forty-fifth (45th) day after the end of such Computation Period or, for the last Computation Period, the forty-fifth (45th) day after the Termination Date.  If such day is not a Business Day, the Quarterly Payment Date shall be the next Business Day.

 

(c)  No Segregated Account . Prior to the Quarterly Payment Date, all amounts received by Assignor from the sale of Assignor’s Net Share of Minerals and Assignee Minerals, as applicable, for any Computation Period shall be held by Assignor in one of its general bank accounts and Assignor will not be required to maintain a segregated account for such funds.

 

(d)  Disputed Proceeds . If Assignor receives any amounts of money from the sale of Assignee Minerals that is subject to controversy or, in the reasonable opinion of Assignor, possible controversy, Assignor shall promptly deposit the money with a Third Person escrow agent in a segregated interest-bearing account.  Such amount shall not be treated as a portion of Assignee Proceeds so long as it remains with such escrow agent, but shall be treated as a portion of Assignee Proceeds, along with the accrued interest, when received from such escrow agent and paid over to Assignee.

 

Section 5.02 Interest on Past Due Payments.

 

(a)  Obligation to Pay . Any Assignee Proceeds or other amounts of money not paid by Assignor to Assignee when due shall bear, and Assignor will pay, interest at the Prime

 

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Interest Rate on the overdue amount commencing on the sixth (6th) day after such due date until such amount is paid.

 

(b)  Definition . “ Prime Interest Rate ” means the lesser of (i) the rate of interest per annum publicly announced from time to time by The Bank of New York Mellon Trust Company, N.A. as its “prime rate” in effect at its principal office in New York City (each change in the “prime rate” to be effective on the date such change is publicly announced), with the understanding that such bank’s “prime rate” may be one of several base rates, may serve as a basis upon which effective rates are from time to time calculated for loans making reference thereto, and may not be the lowest of such bank’s base rates, and (ii) the maximum rate of interest permitted under any applicable Legal Requirement.

 

Section 5.03 Overpayments and Refunds .

 

(a)  Overpayments . If Assignor ever pays Assignee more than the amount of money then due and payable to Assignee under this Conveyance, Assignee shall not be obligated to return the overpayment, but Assignor may at any time thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to the overpayment.

 

(b)  Refunds . If Assignor is ever legally obligated to pay any Third Person, including any Minerals purchaser or Governmental Authority, any refund, interest, penalty or other amount of money, because any payment of Assignee Proceeds received by Assignor for the account of Assignee exceeded, or allegedly exceeded, the amount due or lawful under any applicable contract, Legal Requirement, or other obligation, Assignor may thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to such payment.

 

Section 5.04 Protection of Assignee Proceeds . It is the intent of Assignor and Assignee that Assignee is an “interest owner” with an interest separate and distinct from that of Assignor within the meaning and for the purposes of the Oil and Gas Owners’ Lien Act of 2010, Okla. Stat. tit. 52, § 549.1, et . seq ., and that Assignee is entitled to all the benefits of such Act.

 

ARTICLE VI.
RECORDS AND REPORTS

 

Section 6.01 Books, Records and Accounts.

 

(a)  Obligation to Maintain . Assignor shall maintain true and correct books, records and accounts of (i) all transactions required or permitted by this Conveyance, and (ii) the financial information necessary to effect such transactions, including the financial information needed to calculate each installment of Assignee Proceeds.

 

(b)  Right of Inspection . Assignee or its representative, at Assignee’s expense, may inspect and copy such books, records and accounts in the offices of Assignor during normal business hours and upon reasonable notice.

 

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Section 6.02 Statements.

 

(a)  Quarterly Statements . On each Quarterly Payment Date, Assignor shall deliver to Assignee a statement showing the computation of Assignee Minerals and Assignee Proceeds for the applicable Computation Period.

 

(b)  Annual Statements . On the first Quarterly Payment Date after the end of each calendar year and on the Quarterly Payment Date after the Termination Date, such statement shall also show the computation of Assignee Proceeds for the preceding calendar year or, for the Quarterly Payment Date after the Termination Date, for the portion of the calendar year from 12:01 a.m. Central Time on January 1 of that same year through the Termination Date.

 

(c)  Contents of Statements . Without limiting the generality of the foregoing provisions in this Section 6.02, each statement delivered by Assignor to Assignee pursuant to this Section 6.02 shall state, for the relevant period, (i) the total volumes of Subject Minerals produced from the Subject Lands, (ii) the total volumes of Assignor’s Net Share of Minerals, (iii) the total volumes of Assignee Minerals, (iv) the applicable Sales Price, (v) the Chargeable Costs, (vi) the amount of Assignee Proceeds due and payable for the relevant period, and (vii) the amounts of money, if any, due and payable by any purchaser of the Subject Minerals or Assignee Minerals, the nonpayment of which resulted in a reduction in Assignee Proceeds for the relevant period.

 

Section 6.03 Assignee’s Exceptions to Quarterly Statements . If Assignee takes exception to any item or items included in any quarterly statement required by Section 6.02, Assignee must notify Assignor in writing within sixty (60) days after Assignee’s receipt of such quarterly statement.  Such Notice must set forth in reasonable detail the specific charges complained of and to which exception is taken.  Adjustments shall be made for all complaints and exceptions that are justified.  Notwithstanding anything to the contrary herein, all matters reflected in Assignor’s statements for the preceding calendar year (or portion thereof) that are not objected to by Assignee in the manner provided by this Section 6.03 shall be deemed correct as rendered by Assignor to Assignee.

 

Section 6.04 Other Information.

 

(a)  Disclosure . At Assignee’s request, subject to applicable restrictions on disclosure and transfer of information, Assignor shall give Assignee and its designated representatives reasonable access in Assignor’s office during normal business hours to all title, geological (to the extent not prohibited by any applicable license agreement), Well and production data in Assignor’s possession or Assignor’s Affiliates’ possession, relating to operations on the Subject Interests.

 

(b)  Disclaimer of Warranties and Liability . Assignor makes no representations or warranties about the accuracy or completeness of any data, reports, studies or other information made available to Assignee and shall have no liability to Assignee or any other Person resulting from such data, studies, reports or other information.

 

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(c)  No Attribution . Assignee shall not, in any securities filings or reports made by Assignee, attribute to Assignor or to the consulting engineers any reports or studies made available to Assignee, or the contents thereof.

 

(d)  Confidentiality . All information furnished to Assignee and its designated representatives pursuant to this Section 6.04 is confidential and for the sole benefit of Assignee and shall not be disclosed by Assignee or its designated representatives to any other Person, except to the extent that such information (i) is required in any report, statement or testimony submitted to any Governmental Authority having or claiming to have jurisdiction over Assignee or submitted to bank examiners or similar organizations or their successors, (ii) is required in response to any summons or subpoena or in connection with any litigation, (iii) is reasonably believed to be required in order to comply with any applicable Legal Requirement to Assignee, (iv) was publicly available or otherwise known to the recipient at the time of disclosure or (v) subsequently becomes publicly available other than through any act or omission of the recipient; provided , however , that with respect to the disclosures with respect to items (i), (ii) and (iii) above, Assignee will notify Assignor prior to any such disclosure in order to provide Assignor an opportunity to seek to limit any such required disclosure.  In connection with the marketing of the Trust’s assets upon termination of the Trust, Assignee and its designated representatives may, on a confidential basis in accordance with this Section 6.04(d), provide any potential purchaser of such assets with the same information Assignee has access to pursuant to Section 6.04.

 

ARTICLE VII.
NO LIABILITY OF ASSIGNEE

 

Assignee shall not be personally liable or responsible under this Conveyance for any cost, risk, liability or obligation associated in any way with the ownership or operation of the Subject Lands, the Subject Interests, the Wells or the Subject Minerals.  The foregoing sentence does not restrict the right of Assignor to deduct Chargeable Costs in calculating the volumes of Assignee Minerals or Assignee Proceeds.

 

ARTICLE VIII.
OPERATIONS

 

Section 8.01 Standards of Conduct . Except as otherwise specifically provided in this Conveyance, Assignor shall (a) operate and maintain the Subject Interests, and (b) make elections under each applicable lease, operating agreement, unit agreement, contract for development and other similar instrument or agreement (including elections concerning abandonment of any Well or release of any Subject Interest) in good faith and in accordance with the Reasonably Prudent Operator Standard.

 

Section 8.02 Abandonment of Properties . Nothing in this Conveyance shall obligate Assignor to continue to operate any Well or to operate or maintain in force or attempt to maintain in force any Subject Interest when such Well or Subject Interest ceases to produce, or Assignor determines that such Well or Subject Interest is not capable of producing Minerals in paying quantities, or that such Well or Subject Interest is sufficiently unlikely to be made capable of producing Minerals in paying quantities such that additional operations are unwarranted, all in

 

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accordance with Section 8.01 above.  The expiration of a Subject Interest in accordance with the terms and conditions applicable thereto shall not be considered to be a voluntary surrender or abandonment thereof.

 

ARTICLE IX.
POOLING AND UNITIZATION

 

Section 9.01 Pooling of Subject Interests . Certain Subject Interests have been, or may have been, heretofore pooled and unitized for the production of Minerals.  Such Subject Interests are and shall be subject to the terms and provisions of the applicable pooling and unitization agreements and orders, and the Royalty Interest in each pooled or unitized Subject Interest shall apply to and affect only the Minerals produced from such units that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreements and orders.

 

Section 9.02 Pooling and Unitization.

 

(a)  Right to Pool . Assignor has the exclusive executive right and power (as between Assignor and Assignee) to pool or unitize any Subject Interest and to alter, change, amend or terminate any pooling or unitization agreements heretofore or hereafter entered into, as to all or any part of the Subject Lands, as to any one or more of the formations or horizons, and as to any Minerals, upon such terms and provisions as Assignor shall in its sole discretion deem appropriate.

 

(b)  Effect of Pooling . If and whenever through the exercise of such right and power, or pursuant to any Legal Requirement now existing or hereafter enacted or promulgated, any Subject Interest is pooled or unitized in any manner, the Royalty Interest shall apply to and affect only the Minerals production that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreement or order.  It shall not be necessary for Assignee to agree to, consent to, ratify, confirm or adopt any exercise of pooling or unitization of any Subject Interest by Assignor.

 

ARTICLE X.
GOVERNMENT REGULATION

 

Section 10.01 Legal Requirements . Except as provided in Section 10.03, all obligations of Assignor under this Conveyance are, and shall be, subject to all applicable Legal Requirements and the instruments, documents and agreements creating the Subject Interests.

 

Section 10.02 Filings . Assignor shall use its reasonable discretion in making filings for itself and on behalf of Assignee with any Governmental Authority having jurisdiction with respect to matters affecting the Subject Interests, the Subject Lands or the Subject Minerals.

 

Section 10.03 Superseding Effect. By acceptance of this Conveyance, Assignee agrees, for itself and its successors and assigns, immediate and remote, that the timing of payment, accrual of interest and reporting requirements with respect to the Royalty Interest shall be as provided by the terms of this Conveyance and not as prescribed by the Oklahoma Production Revenue Standards Act, as amended, codified at Title 52, Section 570.1, et seq. of the

 

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Oklahoma Statutes (the “ Act ”).  Assignee expressly waives any rights it may have under the Act, including, without limitation, interest on payments related to Assignee Proceeds at the rate provided in Title 52, Section 570.10, et seq. of the Oklahoma Statutes and the reporting requirements provided in Title 52, Section 570.12, et seq. of the Oklahoma Statutes, or any similar Legal Requirement.

 

ARTICLE XI.
ASSIGNMENT AND SALE OF SUBJECT INTERESTS

 

Section 11.01 Assignment by Assignor Subject to Royalty Interest.

 

(a)  Right to Sell . Assignor may not Transfer any interest in the Wells, the Subject Interests or any part thereof or any undivided interest therein in violation of Section 11.03.  Subject to Section 11.02 and 11.03, Assignor may from time to time Transfer, mortgage or pledge its interest in the Wells, the Subject Interests, or any part thereof or undivided interest therein, if and only if (i) such Transfer, mortgage or pledge is made expressly subject to and burdened with the Royalty Interest and this Conveyance; (ii) solely in connection with a Transfer other than a Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has caused the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer; and (iii) in connection with any Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has used commercially reasonable efforts to cause the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer.  Any assumption and agreement to discharge shall be by appropriate written instrument for the express benefit of and enforceable by Assignee.  For the avoidance of doubt, nothing in this Section 11.01(a) is intended to permit any assignee, purchaser, transferee or grantee to acquire any interest in the Wells, the Subject Interests or any part thereof or undivided interest therein without being subject to and burdened with the Royalty Interest and this Conveyance.  Assignee shall not be required to recognize any purported Transfer, mortgage or pledge not made in conformance with this Section 11.01(a) and, notwithstanding any such purported Transfer, mortgage or pledge, Assignor shall remain obligated under this Conveyance just as if such Transfer, mortgage or pledge attempt had not been made and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, any purported Transfer not made in conformance with this Section 11.01(a) shall be void and of no effect.

 

(b)  Effect of Sale . From and after the actual date of any such Transfer by Assignor made in full compliance with Section 11.01(a) (and only upon such full compliance), Assignor shall be relieved of all obligations, requirements and responsibilities arising under this Conveyance with respect to the Subject Interests Transferred, as the same pertain to Assignee Minerals produced from and after (but not prior to) said date of such Transfer.

 

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(c)  Allocation of Consideration . Assignee is not entitled to receive any share of the sales proceeds received by Assignor in any transaction permitted by this Section 11.01.

 

(d)  Separate Interest . Notwithstanding any provision to the contrary in Article IV, effective on the effective date of any Transfer of any Subject Interest made in full compliance with Section 11.01(a), Assignee Minerals and Assignee Proceeds shall thereafter be computed separately with respect to such Subject Interests, and the assignee, buyer, transferee or grantee of such Subject Interests shall thereafter serve as Assignee’s agent and representative under Article IV with respect to such interests and shall pay all corresponding Assignee Proceeds directly to Assignee.

 

Section 11.02 Sale and Assignment of Properties.

 

(a)  Transfer . Subject to Section 11.03, Assignor may from time to time, Transfer the Wells, the Subject Interests, or any part thereof or undivided interest therein, free of the Royalty Interest and this Conveyance provided that the aggregate Fair Value of all Royalty Interests assigned with respect to the Assignor Conveyances during any twelve (12) month period shall not exceed $5,000,000.

 

(b)  Payments . In connection with any Transfer pursuant to this Section 11.02, Assignor shall remit to Assignee an amount equal to the Fair Value of the Royalty Interest being assigned.  Assignor shall make such payment to Assignee on the Quarterly Payment Date for the Computation Period in which Assignor receives the payment with respect to any such Transfer of the Subject Interest.

 

(c)  Assignment . In connection with any Transfer provided for in Section 11.02(a), Assignee shall, upon request of Assignor, execute, acknowledge and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that assigns the Royalty Interest in the Well and the related Subject Interests and Subject Lands being Transferred, to Assignor, or to one or more assignees, as Assignor may direct.

 

(d)  Effect of Sale . From and after the actual date of any such Transfer by Assignor, Assignor and any assignee, purchaser, transferee or grantee of such Subject Interest shall be relieved of all obligations, requirements and responsibilities arising under the Royalty Interest or this Conveyance with respect to the Well or Subject Interests Transferred, except for those that accrued prior to such date.

 

Section 11.03 Transfer of Subject Lands . Assignor will not Transfer any Well or any of the Subject Interests comprising a part of the Subject Lands pursuant to Sections 11.01 and 11.02 prior to the Drilling Obligation Completion Date, and in the event of any attempted Transfer in violation of this Section 11.03, Assignor shall remain liable and a party hereto, just as if no Transfer attempt had been made, and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, such attempted Transfer in violation of this Section 11.03 shall be void and of no force or effect.  Assignor expressly states and recognizes that the restrictions on Transfer imposed on Assignor in this Section 11.03 and in Section 11.01(a) are made in reasonable protection of an interest of Assignee created hereunder.

 

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Section 11.04 Change in Ownership.

 

(a)  Obligation to Give Notice . No change of ownership or of the right to receive payment of the Royalty Interest, or of any part thereof, however accomplished, shall bind Assignor until notice thereof is furnished to Assignor by the Person making the transfer and the Person claiming the benefit thereof, and then only with respect to payments made after such Notice is furnished.

 

(b)  Notice of Sale . Notice of sale, transfer, conveyance or assignment shall consist of a certified copy of the recorded instrument accomplishing the same.

 

(c)  Notice of Other Changes of Ownership . Notice of change of ownership or of the right to receive payment accomplished in any other manner ( e.g. , by dissolution of Assignee) shall consist of certified copies of recorded documents and complete proceedings legally binding and conclusive of the rights of all Persons.

 

(d)  Effect of Lack of Notice . Until such Notice accompanied by such documentation is furnished to Assignor in the manner provided above, Assignor may, at Assignor’s election, either (i) continue to pay or tender all sums payable on the Royalty Interest in the same manner provided in this Conveyance, precisely as if no such change in interest or ownership or right to receive payment had occurred, or (ii) suspend payment of Assignee Proceeds without interest until such documentation is furnished.

 

(e)  Effect of Nonconforming Notices . The kinds of Notice provided by this Section 11.04 shall be exclusive, and no other kind, whether actual or constructive, shall bind Assignor.

 

Section 11.05 One Payee . Assignor shall never be obligated to pay Assignee Proceeds to more than one Person.  If more than one Person is ever entitled to receive payment of any part of Assignee Proceeds, Assignor may suspend payments of all Assignee Proceeds until the concurrent owners or claimants of the Royalty Interest or the right to receive payment of Assignee Proceeds appoint one Person in writing to receive all payments of Assignee Proceeds on their behalf.  Assignor may thereafter conclusively rely upon the authority of that Person to receive payments of Assignee Proceeds and shall be under no further duty to inquire into the authority or performance of such Person.

 

Section 11.06 Rights of Mortgagee . If Assignee executes a mortgage or deed of trust covering all or part of the Royalty Interest, the mortgagees or trustees therein named or the holders of any obligation secured thereby shall be entitled, to the extent that such mortgage or deed of trust so provides, to exercise the rights, remedies, powers and privileges conferred upon Assignee by this Conveyance and to give or withhold all consents required to be obtained from Assignee.  This Section 11.06 shall not be deemed or construed to impose upon Assignor any obligation or liability undertaken by Assignee under such mortgage or deed of trust or under the obligation secured thereby.

 

Section 11.07 No Drainage . Subsequent to the Drilling Obligation Completion Date, neither Assignor nor any of its Affiliates shall drill any Mineral well that will have a perforation or a stimulation site in the Target Formation that will be within six hundred sixty feet

 

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(660’) of any perforation or stimulation site of any Well which produces oil or gas from the Target Formation.

 

ARTICLE XII.
FORCE MAJEURE

 

Section 12.01 Nonperformance . Assignor shall not be responsible to Assignee for any loss or damage to Assignee resulting from any delay in performing or failure to perform any obligation under this Conveyance (other than Assignor’s obligation to make payments of Assignee Proceeds to Assignee) to the extent such failure or delay is caused by Force Majeure.

 

Section 12.02 Force Majeure . “ Force Majeure ” means any of the following, to the extent they are not caused solely by the breach by Assignor of its duty to perform certain obligations under this Conveyance in accordance with the Reasonably Prudent Operator Standard:

 

(a) act of God, fire, lightning, landslide, earthquake, storm, hurricane, hurricane warning, flood, high water, washout, tidal wave or explosion;

 

(b) strike, lockout, or other similar industrial disturbance, act of the public enemy, war, military operation, blockade, insurrection, riot, epidemic, arrest or restraint of Governmental Authority or people, or national emergency;

 

(c) the inability of Assignor, or any Affiliate of Assignor, to acquire, or the delay on the part of any Third Person (other than an Affiliate of Assignor) in acquiring, materials, supplies, machinery, equipment, servitudes, right-of-way grants, easements, permits, licenses, approvals or authorizations necessary to enable such Party to perform hereunder;

 

(d) any breakage of or accident to machinery, equipment or lines of pipe, the repair, maintenance, improvement, replacement, alteration to a plant or line of pipe or related facility, the testing of machinery, equipment or line of pipe, or the freezing of a line of pipe;

 

(e) any Legal Requirement or the affected Party’s compliance therewith; or

 

(f) any other cause, whether similar or dissimilar to the causes enumerated in (a) through (e) above, not reasonably within the control of Assignor.

 

Section 12.03 Force Majeure Notice . Assignor will give Assignee a Notice of each Force Majeure as soon as reasonably practicable after the occurrence of such Force Majeure.

 

Section 12.04 Remedy . Assignor will use its reasonable efforts to remedy each Force Majeure and resume full performance under this Conveyance as soon as reasonably practicable, except that the settlement of strikes, lockouts or other labor disputes shall be entirely within the discretion of Assignor.

 

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ARTICLE XIII.
NOTICE

 

Section 13.01 Written Notice . Except as otherwise provided by this Conveyance, each Notice shall be in writing.

 

Section 13.02 Methods of Giving Notice . Notice may be given by any reasonable means, including email, telecopier, hand delivery, overnight courier or U.S. mail.

 

Section 13.03 Charges . All Notices shall be properly addressed to the recipient, with all postage and other charges being paid by the Party giving Notice.

 

Section 13.04 Effective Date. Notice shall be effective when actually received by the Party being notified; provided , however , that Notices given by email or telecopy on any day other than a Business Day, or on a Business Day but after 5:00 p.m. local time at the location of the Party being notified, shall be deemed received on the next Business Day, unless receipt is acknowledged prior to the next Business Day.

 

Section 13.05 Addresses . The addresses of the Parties for purposes of Notice are the addresses in the introductory paragraph to this Conveyance.

 

Section 13.06 Change of Address . Either Party may change its address to another address within the continental United States by giving ten (10) days’ Notice to the other Party.

 

ARTICLE XIV.
OTHER PROVISIONS

 

Section 14.01 Successors and Assigns . The provisions and conditions contained in this Conveyance shall run with the land and the respective interests of Assignor and Assignee in, or related to, the Subject Lands, and, subject to the limitation and restrictions on the assignment or delegation by the Parties of their rights and interests under this Conveyance, this Conveyance binds and inures to the benefit of Assignor, Assignee and their respective successors, assigns and legal representatives.

 

Section 14.02 Governing Law . THIS CONVEYANCE SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF OKLAHOMA WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

Section 14.03 Construction of Conveyance . In construing this Conveyance, the following principles shall be followed:

 

(a) no consideration shall be given to the captions of the articles, sections, subsections or clauses, which are inserted for convenience in locating the provisions of this Conveyance and not as an aid in its construction;

 

(b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Conveyance;

 

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(c) the word “includes” and its syntactical variants mean “includes, but is not limited to” and corresponding syntactical variant expressions;

 

(d) a defined term has its defined meaning throughout this Conveyance, regardless of whether it appears before or after the place in this Conveyance where it is defined;

 

(e) the plural shall be deemed to include the singular, and vice versa, unless the context otherwise requires; and

 

(f) each exhibit, attachment and schedule to this Conveyance is a part of this Conveyance, but if there is any conflict or inconsistency between the main body of this Conveyance and any exhibit, attachment or schedule, the provisions of the main body of this Conveyance shall prevail.

 

Section 14.04 No Waiver . Failure of either Party to require performance of any provision of this Conveyance shall not affect either Party’s right to require full performance thereof at any time thereafter, and the waiver by either Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.

 

Section 14.05 Relationship of Parties . This Conveyance does not create a partnership, mining partnership, joint venture or relationship of trust or agency (except with respect to Assignor’s agency relationship with respect to those matters set forth in Articles IV and V above) between the Parties.

 

Section 14.06 Further Assurances . Each Party shall execute, acknowledge and deliver to the other Party all additional instruments and other documents reasonably required to describe more specifically any interests subject hereto, to vest more fully in Assignee the Royalty Interest conveyed (or intended to be conveyed) by this Conveyance, or to evidence or effect any transaction contemplated by this Conveyance.  Assignor shall also execute and deliver all additional instruments and other documents reasonably required to transfer interests in state, federal or Indian lease interests in compliance with applicable Legal Requirements or agreements.  Upon expiration of the Term, Assignee shall, on request, execute, acknowledge and deliver to Assignor sufficient numbers of recordable instruments releasing all of the Subject Lands from this Conveyance.

 

Section 14.07 The 12:01 A.M. Convention . Except as otherwise provided in this Conveyance, each calendar day, month, quarter and year shall be deemed to begin at 12:01 a.m. Central Time on the stated day or on the first day of the stated month, quarter or year, and to end at 12:00 a.m. Central Time on the next day or on first day of the next month, quarter or year, respectively.

 

Section 14.08 Counterpart Execution . This Conveyance may be executed in any number of counterparts, all of which are identical except that to facilitate filing and recording, counterparts to be filed and recorded in the appropriate records of each county may have included in Exhibit A hereto only those portions of Exhibit A hereto that contain descriptions of the lands and leases located in said county.  Every counterpart of this Conveyance shall be deemed to be an original for all purposes, and all such counterparts together shall constitute one and the same

 

24



 

instrument.  An executed counterpart of this Conveyance containing the full text to the entire Exhibits and Annexes is recorded in the real property records of Alfalfa County, Oklahoma.  Counterparts of this Conveyance with all portions of Exhibit A hereto will be kept at the offices of Assignor and Assignee at the addresses indicated in the introductory paragraph to this Conveyance.  As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf shall be deemed an original hereto.

 

Section 14.09 Present and Absolute Conveyance . It is the express intention of Assignor and Assignee that the Royalty Interest is, and shall be construed for all purposes as, a present, fully-vested and absolute conveyance.

 

Section 14.10 Tax Treatment. Notwithstanding that this Royalty Interest may be a real property interest for purposes of applicable state law, the Parties agree to treat this Royalty Interest as a mortgage loan for federal income tax purposes pursuant to Section 636(a) of the Code (and for the purposes of any similarly calculated state income or franchise taxes) but for no other purposes, and the Parties agree to file all federal income tax and state income tax and franchise tax returns consistent with this Section 14.10.  For avoidance of doubt, the Parties acknowledge that Assignor (and not Assignee) is entitled to all tax credits and other applicable tax attributes attributable to this Royalty Interest and the production of Minerals attributable thereto.

 

Section 14.11 Severability . In case any provision, covenant or obligation under this Conveyance is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions, covenants or obligations of this Conveyance are declared to be severable and not in any way affected or impaired thereby.

 

[ Remainder of page intentionally left blank. ]

 

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IN WITNESS WHEREOF, each Party has caused this Conveyance to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Conveyance, to be effective as of the Effective Time.

 

 

 

SANDRIDGE EXPLORATION AND PRODUCTION, LLC

 

 

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

Signature Page to Term Overriding Royalty Interest

Conveyance (Oklahoma) (PDP)

 



 

 

MISTMADA OIL COMPANY, INC.

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

Signature Page to Term Overriding Royalty Interest

Conveyance (Oklahoma) (PDP)

 



 

STATE OF OKLAHOMA

§

 

 

§

COUNTY OF OKLAHOMA

§

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb, President and Chief Operating Officer of SandRidge Exploration and Production, LLC, a Delaware limited liability company, on behalf of said limited liability company.

 

 

 

/s/ Janis L. Roberts

 

NOTARY PUBLIC,

 

 

 

State of Oklahoma

 

 

 

Janis L. Roberts

 

(printed name)

 

 

 

 

My commission expires: May 22, 2012

 

 

 

 

 

 

 

 

SEAL or STAMP

 

 

Acknowledgment Page to Term Overriding Royalty Interest

Conveyance (Oklahoma) (PDP)

 



 

STATE OF OKLAHOMA

§

 

§

COUNTY OF OKLAHOMA

§

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb as President and Chief Operating Officer of Mistmada Oil Company, Inc., an Oklahoma corporation, on behalf of said corporation.

 

 

 

/s/ Janis L. Roberts

 

NOTARY PUBLIC,

 

 

 

State of Oklahoma

 

 

 

Janis L. Roberts

 

(printed name)

 

 

 

 

My commission expires: May 22, 2012

 

 

 

 

 

 

 

 

SEAL or STAMP

 

 

Acknowledgment Page to Term Overriding Royalty Interest

Conveyance (Oklahoma) (PDP)

 



 

Exhibit A

 

(Subject Lands)

 

See attached.

 



 

Exhibit B

 

(Excluded Assets)

 

None.

 



 

Exhibit C

 

(Wells)

 

See attached.

 


Exhibit 10.3

 

Execution Copy

 

TERM OVERRIDING ROYALTY INTEREST

CONVEYANCE (KANSAS) (DEVELOPMENT)

 

This TERM OVERRIDING ROYALTY INTEREST CONVEYANCE (KANSAS) (DEVELOPMENT) (this “ Conveyance ”) from SandRidge Exploration and Production, LLC, a Delaware limited liability company, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ Assignor ”), to Mistmada Oil Company, Inc., an Oklahoma corporation, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ Assignee ”), is delivered to be effective as of the Effective Time.  All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Article II below.

 

ARTICLE I.
CONVEYANCE

 

Section 1.01 The Grant . For and in consideration of good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby BARGAIN, SELL, GRANT, CONVEY, TRANSFER, ASSIGN, SET OVER, and DELIVER unto Assignee, subject to the terms of this Conveyance and for the Term, as an overriding royalty interest (the “ Royalty Interest ”), an undivided interest in and to all Minerals that may be produced and saved from the Target Formation underlying the Subject Lands through the wellbores of the Development Wells, sufficient to cause Assignee to receive the Assignee Minerals.  To the extent any interest conveyed hereunder is created out of a mineral interest, rather than out of an oil and gas leasehold interest, the term “overriding royalty interest” shall be interpreted to mean a non-participating royalty interest with respect to that particular interest, but any such interest shall still be subject to, and shall have the rights and obligations set forth in, this Conveyance.

 

Section 1.02 Non-Operating, Non-Expense Bearing Interest.  The Royalty Interest conveyed hereby is a non-operating, non-expense-bearing overriding royalty interest for a limited term in and to the Subject Interests, free of all cost, risk and expense of production, operations and marketing.  In no event shall Assignee ever be liable or personally obligated for payment of any cost, expenses or liabilities attributable to the Subject Interests (or any part thereof) or incurred in connection with the production, saving or marketing of Assignee Minerals, subject, however, to Assignor’s right hereinafter provided to deduct Chargeable Costs in determining Assignee Proceeds, which right shall be solely a matter of deduction from the proceeds from the sale of Assignee Minerals and not a personal obligation of Assignee.

 

Section 1.03 Term.  The term of the Royalty Interest (the “ Term ”) shall begin at the Effective Time and end on December 31, 2031 (the “ Termination Date ”).  At the end of the Term, all of Assignee’s interest in and to the Royalty Interest shall automatically terminate and immediately revert to and revest in Assignor.

 

Section 1.04 Habendum Clause . TO HAVE AND TO HOLD the Royalty Interest, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Assignee, its successors and assigns, for the Term, subject to terms and provisions of this Conveyance.

 



 

Section 1.05 Warranty.

 

(a)  The Warranty . Assignor warrants to Assignee, its successors and assigns, that the Royalty Interest is free of all Encumbrances created by, through or under Assignor, but not otherwise, except for the Permitted Encumbrances.

 

(b)  Remedies . In the event of a breach of the foregoing warranty, Assignee’s sole remedy shall be to receive payment on each applicable Quarterly Payment Date, out of Assignor’s Net Share of Minerals from other Development Wells in excess of that subject to the Royalty Interest and the royalty interest created pursuant to the Long-Term Development Kansas Conveyance (the “ Assignor Retained Minerals ”), subject to offset as provided below and without interest (except such interest payable under this Conveyance on payments made after the applicable due date as described in Section 5.02 below), of an amount equal to the difference between (x) Assignee Proceeds that Assignee would have received with respect to such Development Well in the applicable Computation Period if such warranty had not been breached, and (y) Assignee Proceeds that Assignee actually received during that Computation Period with respect to that Development Well, to the extent such difference is attributable to the breach of the warranty, but not to the extent that such difference is attributable to any other cause, and any such amounts of Assignor Retained Minerals shall be treated as Assignee Minerals.

 

(c)  Right of Offset . If any Subject Interest ever proves to be larger as of the Effective Date than the Subject Interest reflected in Exhibit A hereto and if, as a result, Assignee receives a greater amount of Assignee Minerals (or the proceeds from the sale thereof) with respect to that Subject Interest than Assignee would otherwise have received if the Subject Interest had been the size reflected on Exhibit A hereto, then such increased amounts, whenever received by Assignee, may be treated by Assignor as a credit or offset (without interest) against any amounts payable to Assignee under Section 1.05(b).

 

(d)  DISCLAIMER . EXCEPT FOR THE WARRANTIES OF TITLE GIVEN IN SECTION 1.05(a), ASSIGNOR MAKES THIS CONVEYANCE AND ASSIGNS THE ROYALTY INTEREST WITHOUT RECOURSE, COVENANT OR WARRANTY OF TITLE OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY.  ANY COVENANTS OR WARRANTIES IMPLIED BY STATUTE OR LAW BY THE USE HEREIN OF THE WORDS “ GRANT ”, “ CONVEY ” OR OTHER SIMILAR WORDS ARE HEREBY EXPRESSLY DISCLAIMED, WAIVED AND NEGATED.  WITHOUT LIMITING THE GENERALITY OF THE TWO PRECEDING SENTENCES, ASSIGNEE ACKNOWLEDGES THAT ASSIGNOR HAS NOT MADE, AND ASSIGNOR HEREBY EXPRESSLY DISCLAIMS AND NEGATES, AND ASSIGNEE HEREBY EXPRESSLY WAIVES, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO (i) PRODUCTION RATES, RECOMPLETION OPPORTUNITIES, DECLINE RATES OR THE QUALITY, QUANTITY OR VOLUME OF THE RESERVES OF MINERALS, IF ANY, ATTRIBUTABLE TO THE SUBJECT INTERESTS, (ii) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (iii) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iv) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, AND (v) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER ANY APPLICABLE LEGAL REQUIREMENT; IT BEING THE EXPRESS INTENTION OF BOTH

 

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ASSIGNEE AND ASSIGNOR THAT THE ROYALTY INTEREST IS HEREBY ASSIGNED TO ASSIGNEE ON AN “AS IS” AND “WHERE IS” BASIS WITH ALL FAULTS, AND THAT ASSIGNEE HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS ASSIGNEE DEEMS APPROPRIATE.  ASSIGNOR AND ASSIGNEE AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LEGAL REQUIREMENTS TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS SECTION ARE “CONSPICUOUS” DISCLAIMERS FOR THE PURPOSES OF ANY APPLICABLE LEGAL REQUIREMENT.

 

(e)  Substitution of Warranty . This instrument is made with full substitution and subrogation of Assignee in and to all covenants of warranty by Third Persons (other than Affiliates of Assignor) heretofore given or made with respect to the Development Wells, the Subject Interests or any part thereof or interest therein.

 

Section 1.06 Reconveyance of Excess Acreage . After the Drilling Obligation Completion Date, Assignee shall, on request, execute, acknowledge and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that reconveys to Assignor the Royalty Interest except with respect to all Subject Minerals that may be produced from any wellbore of any Development Well.

 

ARTICLE II.
DEFINITIONS

 

This Article II defines certain capitalized words, terms, and phrases used in this Conveyance. Certain other capitalized words, terms, and phrases used in this Conveyance are defined elsewhere in this Conveyance.

 

Act ” is defined in Section 10.03.

 

Affiliate ” means, for any specified Person, another Person that controls, is controlled by, or is under common control with, the specified Person.  “ Control ,” in the preceding sentence, refers to the possession by one Person, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.

 

AMI ” means that area described in Exhibit A to the Development Agreement, as such area may be extended or exchanged pursuant to Article III of the Development Agreement.

 

Assignee ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignee.

 

Assignee Minerals ” is defined in Section 3.01.

 

Assignee Proceeds ” is defined in Section 3.03.

 

Assignor ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignor.

 

3



 

Assignor Conveyances ” means the Assignor Kansas Conveyances and the Assignor Oklahoma Conveyances.

 

Assignor Kansas Conveyances ” means this Conveyance, the Long-Term Development Kansas Conveyance, the Perpetual PDP Kansas Conveyance and the Term PDP Kansas Conveyance.

 

Assignor Oklahoma Conveyances ” means the Perpetual Development Oklahoma Conveyance, the Term Development Oklahoma Conveyance, the Perpetual PDP Oklahoma Conveyance and the Term PDP Oklahoma Conveyance.

 

Assignor Retained Minerals ” is defined in Section 1.05(b).

 

Assignor’s Net Revenue Interest ” means the interest, stated as a decimal fraction, in Subject Minerals production from a Development Well attributable to the Subject Interests in that Development Well, net of Production Burdens.

 

Assignor’s Net Share of Minerals ” means the share of Subject Minerals from each Development Well that is attributable to Assignor’s Net Revenue Interest in that Development Well determined prior to giving effect to this Conveyance.

 

Bbl ” means one stock tank barrel, or 42 U.S. gallons liquid volume, in reference to Oil or Gas Liquids.

 

Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the New York Stock Exchange, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.

 

Chargeable Costs ” is defined in Section 3.02(a).

 

Closing Time ” means 12:01 a.m. Central Time, on April 23, 2012.

 

Computation Period ” means each calendar quarter commencing on or after 12:01 a.m., Central Time, on January 1, 2012, with each such calendar quarter being deemed to have begun at 12:01 a.m. Central Time on the first day of such calendar quarter and to have ended at 12:00 a.m. Central Time on the first day of the next calendar quarter.

 

Conveyance ” is defined in the introductory paragraph to this Conveyance.

 

Development Agreement ” means that certain Development Agreement by and among SandRidge, Assignor and the Trust, dated as of even date herewith and effective as of the Effective Time.

 

Development Well ” has the meaning given to such term in the Development Agreement.

 

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Drilling Obligation Completion Date ” has the meaning given to such term in the Development Agreement.

 

Effective Time ” means 12:01 a.m., Central Time, on January 1, 2012; provided , however , that with respect to each oil and gas lease described in Exhibit A that has a date after January 1, 2012, the Effective Time, with respect to each such oil and gas lease, shall be 12:01 a.m., Central Time, on the date of such oil and gas lease.

 

Encumbrance ” means any mortgage, lien, security interest, pledge, charge, encumbrance, limitation, preferential right to purchase, consent to assignment, irregularity, burden or defect.

 

Excess Costs ” means, in any Computation Period, the excess of (x) Chargeable Costs associated with Assignee Minerals for that Computation Period over (y) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals (with the amount in clause (y) calculated as provided in Section 3.03(a) hereof).  Excess Costs shall bear interest at the Prime Interest Rate from the end of the Computation Period in which such costs were incurred to the date that Assignor recovers such amounts from Assignee Proceeds.

 

Excluded Assets ” means (a) those oil and gas wells that are the subject of the Term PDP Kansas Conveyance and the Perpetual PDP Kansas Conveyance, and (b) those oil and gas wells that are described in Exhibit B hereto.

 

Fair Value ” means, with respect to any portion of the Royalty Interest to be assigned pursuant to Section 11.02 in connection with a Transfer of any Development Well or Subject Interests, an amount of net proceeds that could reasonably be expected to be obtained from the sale of such portion of the Royalty Interest to a party that is not an Affiliate of either Assignor or Assignee on an arms’-length negotiated basis, taking into account relevant market conditions and factors existing at the time of any such proposed Transfer, such net proceeds to be determined by deducting Assignee’s proportionate share of sales costs, commissions and brokerage fees, if any (based on the ratio of (i) the fair market value of the portion of the Royalty Interest being assigned to (ii) the fair market value of the Development Wells and Subject Interests being Transferred (including the value of the Royalty Interest being assigned)).

 

Farmout Agreements ” means any farmout agreement, participation agreement, exploration agreement, development agreement or any similar agreement.

 

Force Majeure ” is defined in Section 12.02.

 

Gas ” means natural gas and all other gaseous hydrocarbons or minerals, including helium, but specifically excluding any Gas Liquids.

 

Gas Liquids ” means those natural gas liquids and other liquid similar hydrocarbons, including ethane, propane, butane and natural gasoline, and mixtures thereof, that are removed from a gas stream by the liquids extraction process of any field facility or gas processing plant and delivered by the facility or plant as natural gas liquids.

 

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Governmental Authority ” means the United States of America, any state, commonwealth, territory, or possession thereof, and any political subdivision of any of the foregoing, including courts, departments, commissions, boards, bureaus, agencies and other instrumentalities.

 

Legal Requirement ” means any law, statute, ordinance, decree, requirement, order, judgment, rule, or regulation of, including the terms of any license or permit issued by, any Governmental Authority.

 

Long-Term Development Kansas Conveyance ” means that certain Long-Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Mcf ” means one thousand cubic feet of Gas, measured and expressed at the same temperature, pressure, and other conditions of measurement (a) provided in any contract for the purchase of Gas from the Subject Interests or, (b) if no such contract exists, provided by applicable state law for purposes of reporting production to Governmental Authorities.

 

Mineral(s) ” means Oil, Gas and Gas Liquids.

 

MMBtu ” means one million British thermal units.

 

Mortgages ” has the meaning given such term in the Development Agreement.

 

Non-Affiliate ” means, for any specified Person, any other Person that is not an Affiliate of the specified Person.

 

Notice ” means any notice, advice, invoice, demand or other communication required or permitted by this Conveyance.

 

Oil ” means crude oil, condensate and other liquid hydrocarbons recovered by field equipment or facilities, excluding Gas Liquids.

 

Party ,” when capitalized, refers to Assignor or Assignee. “ Parties ,” when capitalized, refers to Assignor and Assignee.

 

Permitted Encumbrances ” means:

 

(a) the Production Burdens;

 

(b) contractual obligations arising under operating agreements, Farmout Agreements, production sales contracts, leases, assignments and other similar agreements that may affect the Subject Interests;

 

(c) pooling and unitization agreements, declarations, orders or Legal Requirements to secure payment of amounts not yet delinquent;

 

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(d) liens and security interests that arise in the normal course of operations, such as liens for unpaid taxes, statutory liens securing unpaid suppliers and contractors, and contractual liens under operating agreements, in any case, that are not yet delinquent or, if delinquent, are being contested in good faith in the normal course of business;

 

(e) conventional rights of reassignment that obligate Assignor to reassign all or part of any Subject Interest to a Third Person if Assignor intends to release or abandon such interest before the expiration of the primary term or other termination of such interest;

 

(f) easements, rights-of-way, servitudes, permits, surface leases, surface use restrictions and other surface uses and impediments on, over or in respect of the Subject Interests that are not such as to interfere materially with the operation, value or use of the Subject Interests;

 

(g) rights reserved to or vested in any Governmental Authority to control or regulate any Subject Interests in any manner, and all applicable Legal Requirements;

 

(h) the terms of the instruments creating the Subject Interests and Subject Lands; and

 

(i) the Mortgages;

 

provided , that such aforementioned encumbrances are of the type and nature customary in the oil and gas industry, and provided , further , that such aforementioned encumbrances do not, alone or in the aggregate, materially and adversely affect the operation, value or use of any Subject Interests, and all to the extent, and for so long as, such Permitted Encumbrances are otherwise valid and enforceable against the Subject Interests, without recognizing, expressly or by implication, any rights or interests in any Third Person or Governmental Authority that such Third Person or Governmental Authority does not otherwise lawfully possess.

 

Perpetual Development Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (Development) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Perpetual PDP Kansas Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Perpetual PDP Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Person ” means any natural person, corporation, partnership, trust, estate, or other entity, organization or association.

 

Post Production Cost Charge ” is defined in Section 3.02(b).

 

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Prime Interest Rate ” is defined in Section 5.02(b).

 

Production Burdens ” means, with respect to any Subject Lands, Subject Interests or Subject Minerals, all royalty interests, overriding royalty interests, production payments, net profits interests and other similar interests that constitute a burden on, are measured by, or are payable out of the production of Minerals or the proceeds realized from the sale or other disposition thereof.

 

Quarterly Payment Date ” is defined in Section 5.01(b).

 

Reasonably Prudent Operator Standard ” means the standard of conduct of a reasonably prudent oil and gas operator in the AMI under the same or similar circumstances, acting with respect to its own property and disregarding the existence of the Royalty Interest as a burden on such property.

 

Royalty Interest ” is defined in Section 1.01.

 

Sales Price ” means the price received by Assignor for Assignee Minerals determined in accordance with the following provisions:

 

(a) “sale” refers to any sale, exchange or other disposition of Assignee Minerals for value, the value of such Minerals that is exchanged or otherwise disposed of for valuable consideration being the sales price that Assignor receives for any such Minerals sold pursuant to Section 4.01 for any such Minerals;

 

(b) amounts of money not paid to Assignor when due by any purchaser of Assignee Minerals (for example, Taxes or other amounts withheld or deducted by any such purchaser) shall not be included within the Sales Price until actually received by, or credited to the account of, Assignor;

 

(c) advance payments and prepayments for future deliveries of Assignee Minerals shall be included within the Sales Price, without interest, when that volume of Minerals subject to the advance payments or prepayments is actually produced;

 

(d) loan proceeds received by Assignor shall not be treated as a component of the applicable Sales Price; and

 

(e) if a controversy or possible controversy exists, whether by reason of any statute, order, decree, rule, regulation, contract or otherwise, between Assignor and any purchaser of Assignee Minerals or any other Person, about the correct Sales Price of any Assignee Minerals, about deductions from the Sales Price, about Assignor’s right to receive the proceeds of any sale of Assignee Minerals, or about any other matter, then monies withheld by the purchaser or deposited by it with an escrow agent or if Assignor receives any monies and promptly deposits such monies with a Third Person escrow agent as a result of such controversy, such monies shall not be included within the Sales Price until received by or returned to Assignor, as applicable.

 

SandRidge ” means SandRidge Energy, Inc., a Delaware corporation.

 

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Subject Interests ” means Assignor’s undivided interests in the Subject Lands as described on Exhibit A hereto, whether as lessee under leases, as an owner of the Subject Minerals (or the right to extract such Minerals) or otherwise, by virtue of which undivided interests Assignor has the right to conduct exploration, drilling, development and Mineral production operations on the Subject Lands, or to cause such operations to be conducted, or to participate in such operations by paying and bearing all or any part of the costs, risks and liabilities of such operations, to drill, test, complete, equip, operate and produce wells to exploit the Minerals.  The “Subject Interests” (a) may be owned by Assignor pursuant to leases, deeds, operating, pooling or unitization agreements, orders or any other instruments, agreements or documents, recorded or unrecorded, (b) include any and all extensions or renewals of leases covering the Subject Lands (or any portion thereof) obtained by Assignor, or any Affiliate thereof, within six (6) months after the expiration or termination of any such lease, and (c) are subject to the Permitted Encumbrances.  For the avoidance of doubt, the “Subject Interests” do not include:  (i) Assignor’s interests in the Excluded Assets; (ii) Assignor’s rights to substances other than Minerals; (iii) Assignor’s rights to Minerals (other than Assignee Minerals) under contracts for the purchase, sale, transportation, storage, processing or other handling or disposition of Minerals; (iv) Assignor’s interests in, or rights to Minerals (other than Assignee Minerals) held in pipelines, gathering systems, storage facilities, processing facilities or other equipment or facilities; or (v) any additional or enlarged interests in the Development Wells, Subject Lands or Subject Minerals acquired by Assignor after the Closing Time, except (1) to the extent any such additional or enlarged interest becomes a part of the Subject Interests by amendment to this Conveyance pursuant to Section 3.01 or 3.02 of the Development Agreement, (2) as may result from the operation of the terms of the instruments creating the Subject Interests, or (3) as may be reflected in extensions and renewals covered by the preceding sentence.

 

Subject Lands ” means the lands subject to or covered by the oil and gas leases described in Exhibit A hereto, insofar and only insofar as they cover the Target Formation, subject to the exceptions, exclusions and reservations set forth on such Exhibit A hereto.

 

Subject Minerals ” means all Minerals in and under, and that may be produced, saved and sold from a Development Well, from and after the Effective Time, insofar and only insofar as such Minerals are produced from the Target Formation, subject to the following exclusions:  Minerals that are (a) lost in the production, gathering or marketing of Minerals; (b) used (i) in conformity with ordinary and prudent operations on the Subject Lands, including drilling and production operations with respect to a Development Well or (ii) in connection with operations (whether on or off the Subject Lands) for processing or compressing the Subject Minerals; (c) taken by a Third Person to recover costs, or some multiple of costs, paid or incurred by that Third Person under any operating agreement, unit agreement or other agreement in connection with nonconsent operations conducted (or participated in) by that Third Person; and (d) retained by a Third Person for gathering, transportation, processing or marketing services related to the Subject Minerals in lieu of or in addition to cash payment for such services, to the extent such agreement is permitted under this Conveyance.

 

Target Formation ” means (i) with respect to Barber County, Kansas, the “Target Formation” being defined as being the interval between the base of the Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4744’ and the Devonian-aged Chattanooga Shale or its stratigraphic equivalent at a depth of 5096’ in the SandRidge Energy Stephanie SWD

 

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1-3 located in 3-35S-10W (API No. 15007237990000); (ii) with respect to Comanche County, Kansas, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,511’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 6,786’ in the Sho-Bar #1-29 Wayne located in section 29, Township 34 South, Range 20 West (API No. 15033213800000); (iii) with respect to Harper County, Kansas, the “Target Formation” being defined as being the interval between the base of the Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4800’ and the Devonian-aged Chattanooga Shale or its stratigraphic equivalent at a depth of 5096’ in the SandRidge Energy Shea SWD 1-17 located in 17-35S-7W (API No. 15077217810000); and (iv) with respect to Sumner County, Kansas, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Red Fork Zone or its stratigraphic equivalent at a depth of 4,660’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,112’ in the Quinton Little Company #1-18 Wolff located in section 18, Township 35 South, Range 4 West (API No. 15191201870000).

 

Taxes ” is defined in Section 3.02(c).

 

Term Development Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (Development) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Third Person ” means a Person other than Assignor, Assignee or Trustee.

 

Transfer ” including its syntactical variants, means any assignment, sale, transfer, conveyance or disposition of any property; provided , that Transfer as used herein does not include the granting of a mortgage on or security interest in Assignor’s interest in any property, including the Development Wells, the Subject Interests and/or the Subject Lands.

 

Trust ” means SandRidge Mississippian Trust II, a Delaware statutory trust.

 

Trustee ” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America with its principal place of business in New York, New York, as trustee, acting not in its individual capacity but solely as trustee of the Trust.

 

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ARTICLE III.
CALCULATION OF ASSIGNEE MINERALS

 

Section 3.01 Definition . “ Assignee Minerals ” is that volume of Minerals with respect to each Development Well calculated in accordance with the following formula:
Thirty-Five Percent (35%) X (Assignor’s Net Share of Minerals).

 

Section 3.02 Chargeable Costs.

 

(a)  Definition . For each Computation Period, “ Chargeable Costs ” means the sum of (i) the Post Production Cost Charge, plus (ii) Excess Costs from prior Computation Periods, plus (iii) Taxes incurred, accrued or paid by Assignor; provided, that such costs are actually paid by Assignor during the relevant Computation Period or paid by Assignor during a prior Computation Period and not included in any prior Computation Period’s Chargeable Costs.  For the avoidance of doubt, all costs associated with, incurred or paid in connection with the drilling, testing, completing and equipping for production of the Development Wells shall be borne solely by Assignor and shall not be included as Chargeable Costs.

 

(b)  Post Production Cost Charge . “ Post Production Cost Charge ” means those costs incurred by Assignor (including internal costs and Third Person costs) to gather, store, transport, compress, process, treat, dehydrate and market, as applicable, the Subject Minerals, including any costs as may be required to deliver such Minerals to market; provided , that any costs charged by Assignor and its Affiliates as part of the Post Production Cost Charge shall not materially exceed the costs prevailing in the area where the Subject Minerals are being produced for similar services; and provided , further , that with respect to marketing costs, only Non-Affiliate marketing fees and costs shall be included, and marketing costs of Assignor and its Affiliates with respect to any Subject Minerals will be specifically excluded from the Post Production Cost Charge.  Any costs, fees or expenses that are properly charged or allocated to Assignee Minerals pursuant to another provision of this Conveyance (including, as provided for in the definition of Subject Minerals) shall not be included as part of the Post Production Cost Charge.

 

(c)  Taxes . “ Taxes ” means general property, ad valorem, production, severance, sales, windfall profit, excise and other taxes, except income taxes, assessed or levied on or in connection with the Subject Interests, the Royalty Interest, this Conveyance, production of Subject Minerals, Assignor’s Net Share of Minerals, Assignee Minerals (or the proceeds from the sale thereof) or facilities or equipment on the Subject Lands that are used for the production, dehydration, treatment, processing, gathering or transportation of Subject Minerals, or against Assignor as owner of the Subject Interests or paid by Assignor on behalf of Assignee as owner of the Royalty Interest.

 

(d)  Operating and Drilling Costs . For the avoidance of doubt, all costs associated with or paid or incurred in connection with the drilling, testing, completing, developing and operating the Development Wells or otherwise incurred in connection with the ownership or operation of the Subject Interests other than Taxes and Post Production Cost Charges shall be borne solely by Assignor and shall not be included as Chargeable Costs, and Assignor may use any Subject Minerals in such operations without any duty to account to Assignee.

 

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Section 3.03 Assignee Proceeds . “ Assignee Proceeds ” means, for any Computation Period, (a) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals, with the amount of such proceeds being determined by multiplying (i) the volume of Assignee Minerals produced (expressed (A) for Gas, in Mcf or MMBtu, (B) for Gas Liquids, in Bbls and (C) for Oil, in Bbls) by (ii) the relevant Sales Price (expressed (A) for Gas, on a per Mcf or MMBtu basis, (B) for Gas Liquids, on a per Bbl basis and (C) for Oil, on a per Bbl basis), less (b) the Chargeable Costs associated with such Assignee Minerals.

 

ARTICLE IV.
MARKETING OF ASSIGNEE MINERALS

 

Section 4.01 Rights and Duties Regarding Sale of Assignee Minerals . Assignor shall market or shall cause to be marketed Assignor’s Net Share of Minerals (including Assignee Minerals) in good faith and in accordance with the Reasonably Prudent Operator Standard and Section 4.02(d).  Assignor shall use its reasonable efforts in connection with any sale of Assignor’s Net Share of Minerals (including Assignee Minerals) to obtain, as soon as reasonably practicable, full payment for such Minerals; provided , however , that it shall not be considered a breach of Assignor’s marketing duty or standard of conduct for Assignor to market such Minerals to an Affiliate of Assignor, so long as Assignor does not market such Minerals at a volume-weighted average price lower than the volume-weighted average price upon which Assignor pays royalties to the owners of the other royalty interests in the Subject Minerals, save and excepting Chargeable Costs provided for in Article III hereof.

 

Section 4.02 Assignee’s Agent and Representative.

 

(a)  Appointment . Assignee appoints Assignor as Assignee’s agent and representative to market and deliver or cause to be marketed and delivered all Assignee Minerals and to collect and receive all payments therefrom under any Minerals purchase agreement or contract without deduction (except to the extent Chargeable Costs are deducted for any Computation Period).  The appointment of Assignor as Assignee’s agent and representative for such purpose is a material item of consideration to the Parties in connection with the execution and delivery of this Conveyance.  Assignee may not remove Assignor from office as Assignee’s agent and representative, except for cause upon a material breach by Assignor of its duties to Assignee under this Conveyance.

 

(b)  Duties and Powers . As Assignee’s agent and representative, Assignor shall receive all payments for the sale of Assignee Minerals and account to Assignee, receive and make all communications with the purchaser of such Minerals, and otherwise act and speak for Assignee in connection with the sale of Assignee Minerals.  Third Persons may rely conclusively on the authority of Assignor to market Assignee Minerals, and with respect to Third Persons only, Assignee shall be conclusively bound by the acts of Assignor in connection with the sale of Assignee Minerals.  It shall not be necessary for Assignee to join Assignor in the execution of any division order, transfer order or other instrument, agreement or document relating to the sale of Assignee Minerals.  Third Persons may pay all Assignee Proceeds for the sale of such Minerals directly to Assignor, without the necessity of any joinder by or consent of Assignee or any inquiry into the use or disposition of such proceeds by Assignor.  In no event, however, shall

 

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the authority granted in this Section 4.02 or elsewhere in this Conveyance relieve Assignor of any liability for breach of this Conveyance.

 

(c)  Prohibited Acts . Assignor may not act for or bind Assignee on any matter, except the marketing and delivery of Assignee Minerals under this Article IV.

 

(d)  Standard of Conduct . In exercising its powers and performing its duties as Assignee’s agent and representative, Assignor shall act in good faith and in accordance with the Reasonably Prudent Operator Standard.  It shall not be a violation of such standard of conduct for Assignor (i) to sell Assignor’s Net Share of Minerals or Assignee Minerals to an Affiliate pursuant to any purchase agreement or contract, or (ii) to delegate some or all of Assignor’s duties as Assignee’s agent and representative to its Affiliates (so long as such Affiliates perform in good faith and in accordance with the Reasonably Prudent Operator Standard), with Assignor remaining liable to Assignee for the performance of such duties.

 

(e)  Termination of Authority . Assignor may not resign as Assignee’s agent and representative without the prior written consent of Assignee, except that Assignor may resign as Assignee’s agent and representative without such consent with respect to any Subject Interests assigned, sold, transferred or conveyed by Assignor in accordance with the terms of this Conveyance.  If such sale is made subject to the Royalty Interest, Assignor must cause the purchaser to assume the duties of Assignee’s agent and representative with respect to the Subject Interests acquired by that purchaser and to be bound by the provisions of this Article IV.

 

Section 4.03 Delivery of Subject Minerals . Assignor (whether or not it is serving as Assignee’s agent and representative) shall deliver or cause to be delivered Assignor’s Net Share of Minerals (including Assignee Minerals) to the purchasers thereof.

 

Section 4.04 Processing . Assignor may, or may by contract cause a Third Person to, dehydrate, separate, treat, compress or otherwise process Assignor’s Net Share of Minerals (including Assignee Minerals) and may commit any of the Subject Interests (including the Royalty Interest attributable thereto) to an agreement for processing Minerals (pursuant to which, for example, the plant owner or operator receives a portion of the Subject Minerals or plant products therefrom or proceeds of the sale thereof as a fee for processing), so long as (a) Assignor enters into such processing arrangements in good faith and in accordance with the Reasonably Prudent Operator Standard, and (b) any such processing arrangements entered into with Affiliates of Assignor contain rates and charges that are comparable to the prevailing charges for similar services in the applicable area.  Assignee shall be bound by such arrangements and shall permit Assignor’s Net Share of Minerals (including Assignee Minerals) to be processed by Assignor or its contractor.  Assignee shall not, however, be personally liable for any costs or risks associated with such processing operations, but Assignee shall indirectly suffer the energy content reduction and volume reductions associated with processing through corresponding reductions in the content and volumes of Assignee Minerals.

 

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ARTICLE V.
PAYMENT

 

Section 5.01 Obligation to Pay.

 

(a)  The Obligation .  After each Computation Period and on or before the Quarterly Payment Date for that Computation Period, Assignor shall tender to Assignee the Assignee Proceeds for the applicable Computation Period, plus , to the extent applicable, (i) all of the proceeds to be paid to Assignee from the sale of Assignee Minerals produced during any prior Computation Periods, to the extent not previously paid to Assignee for such prior Computation Periods, (ii) any damages payable to Assignee under Section 1.05(b) (subject to the right of set-off in Section 1.05(c)) during the most recently completed Computation Period, and (iii) any amounts (including any interest earned thereon) that were previously deposited with a Third Person escrow agent in accordance with Section 5.01(d) and subsequently determined by Assignor to be validly owing to Assignee.  All such amounts shall be transmitted to Assignee by Assignor by means of wire transfer of funds to a bank account specified by Assignee pursuant to written instructions which shall remain in effect until and unless changed by subsequent written notice to Assignor.

 

For purposes of determining the amount of Assignee Proceeds for any Computation Period, if, when calculating Assignee Minerals for any Computation Period, Assignor is unable to determine the precise volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals, then Assignor shall, in good faith and in accordance with the Reasonably Prudent Operator Standard, estimate the volume of such Minerals produced, sold and attributable to Assignor’s Net Share of Minerals.  Assignor shall adjust the calculation of Assignee Proceeds upward or downward, as the case may be, in the next or subsequent Computation Periods to reflect the difference between the estimated volume of Minerals established pursuant to this Section 5.01(a) and the actual volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals in the Computation Period for which such estimate was made.

 

(b)  Quarterly Payment Date . “ Quarterly Payment Date ” for each Computation Period means the forty-fifth (45th) day after the end of such Computation Period or, for the last Computation Period, the forty-fifth (45th) day after the Termination Date.  If such day is not a Business Day, the Quarterly Payment Date shall be the next Business Day.

 

(c)  No Segregated Account . Prior to the Quarterly Payment Date, all amounts received by Assignor from the sale of Assignor’s Net Share of Minerals and Assignee Minerals, as applicable, for any Computation Period shall be held by Assignor in one of its general bank accounts and Assignor will not be required to maintain a segregated account for such funds.

 

(d)  Disputed Proceeds . If Assignor receives any amounts of money from the sale of Assignee Minerals that is subject to controversy or, in the reasonable opinion of Assignor, possible controversy, Assignor shall promptly deposit the money with a Third Person escrow agent in a segregated interest-bearing account.  Such amount shall not be treated as a portion of Assignee Proceeds so long as it remains with such escrow agent, but shall be treated as a portion of Assignee Proceeds, along with the accrued interest, when received from such escrow agent and paid over to Assignee.

 

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Section 5.02 Interest on Past Due Payments.

 

(a)  Obligation to Pay . Any Assignee Proceeds or other amounts of money not paid by Assignor to Assignee when due shall bear, and Assignor will pay, interest at the Prime Interest Rate on the overdue amount commencing on the sixth (6th) day after such due date until such amount is paid.

 

(b)  Definition . “ Prime Interest Rate ” means the lesser of (i) the rate of interest per annum publicly announced from time to time by The Bank of New York Mellon Trust Company, N.A. as its “prime rate” in effect at its principal office in New York City (each change in the “prime rate” to be effective on the date such change is publicly announced), with the understanding that such bank’s “prime rate” may be one of several base rates, may serve as a basis upon which effective rates are from time to time calculated for loans making reference thereto, and may not be the lowest of such bank’s base rates, and (ii) the maximum rate of interest permitted under any applicable Legal Requirement.

 

Section 5.03 Overpayments and Refunds .

 

(a)  Overpayments . If Assignor ever pays Assignee more than the amount of money then due and payable to Assignee under this Conveyance, Assignee shall not be obligated to return the overpayment, but Assignor may at any time thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to the overpayment.

 

(b)  Refunds . If Assignor is ever legally obligated to pay any Third Person, including any Minerals purchaser or Governmental Authority, any refund, interest, penalty or other amount of money, because any payment of Assignee Proceeds received by Assignor for the account of Assignee exceeded, or allegedly exceeded, the amount due or lawful under any applicable contract, Legal Requirement, or other obligation, Assignor may thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to such payment.

 

Section 5.04 Protection of Assignee Proceeds . It is the intent of Assignor and Assignee that Assignee is an “interest owner” with an interest separate and distinct from that of Assignor within the meaning and for the purposes of the Kansas Statutes Annotated 84-9-339a, and that Assignee is entitled to all the benefits of said statute.  To the extent required for Assignee to obtain the benefit of said statute, Assignor shall cause to be filed an affidavit of production with respect to each Development Well with the appropriate Governmental Authority in Kansas.

 

ARTICLE VI.
RECORDS AND REPORTS

 

Section 6.01 Books, Records and Accounts.

 

(a)  Obligation to Maintain . Assignor shall maintain true and correct books, records and accounts of (i) all transactions required or permitted by this Conveyance, and (ii) the financial information necessary to effect such transactions, including the financial information needed to calculate each installment of Assignee Proceeds.

 

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(b)  Right of Inspection . Assignee or its representative, at Assignee’s expense, may inspect and copy such books, records and accounts in the offices of Assignor during normal business hours and upon reasonable notice.

 

Section 6.02 Statements.

 

(a)  Quarterly Statements . On each Quarterly Payment Date, Assignor shall deliver to Assignee a statement showing the computation of Assignee Minerals and Assignee Proceeds for the applicable Computation Period.

 

(b)  Annual Statements . On the first Quarterly Payment Date after the end of each calendar year and on the Quarterly Payment Date after the Termination Date, such statement shall also show the computation of Assignee Proceeds for the preceding calendar year or, for the Quarterly Payment Date after the Termination Date, for the portion of the calendar year from 12:01 a.m. Central Time on January 1 of that same year through the Termination Date.

 

(c)  Contents of Statements . Without limiting the generality of the foregoing provisions in this Section 6.02, each statement delivered by Assignor to Assignee pursuant to this Section 6.02 shall state, for the relevant period, (i) the total volumes of Subject Minerals produced from the Subject Lands, (ii) the total volumes of Assignor’s Net Share of Minerals, (iii) the total volumes of Assignee Minerals, (iv) the applicable Sales Price, (v) the Chargeable Costs, (vi) the amount of Assignee Proceeds due and payable for the relevant period, and (vii) the amounts of money, if any, due and payable by any purchaser of the Subject Minerals or Assignee Minerals, the nonpayment of which resulted in a reduction in Assignee Proceeds for the relevant period.

 

Section 6.03 Assignee’s Exceptions to Quarterly Statements . If Assignee takes exception to any item or items included in any quarterly statement required by Section 6.02, Assignee must notify Assignor in writing within sixty (60) days after Assignee’s receipt of such quarterly statement.  Such Notice must set forth in reasonable detail the specific charges complained of and to which exception is taken.  Adjustments shall be made for all complaints and exceptions that are justified.  Notwithstanding anything to the contrary herein, all matters reflected in Assignor’s statements for the preceding calendar year (or portion thereof) that are not objected to by Assignee in the manner provided by this Section 6.03 shall be deemed correct as rendered by Assignor to Assignee.

 

Section 6.04 Other Information.

 

(a)  Disclosure . At Assignee’s request, subject to applicable restrictions on disclosure and transfer of information, Assignor shall give Assignee and its designated representatives reasonable access in Assignor’s office during normal business hours to all title, geological (to the extent not prohibited by any applicable license agreement), Development Well and production data in Assignor’s possession or Assignor’s Affiliates’ possession, relating to operations on the Subject Interests.

 

(b)  Disclaimer of Warranties and Liability . Assignor makes no representations or warranties about the accuracy or completeness of any data, reports, studies or other

 

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information made available to Assignee and shall have no liability to Assignee or any other Person resulting from such data, studies, reports or other information.

 

(c)  No Attribution . Assignee shall not, in any securities filings or reports made by Assignee, attribute to Assignor or to the consulting engineers any reports or studies made available to Assignee, or the contents thereof.

 

(d)  Confidentiality . All information furnished to Assignee and its designated representatives pursuant to this Section 6.04 is confidential and for the sole benefit of Assignee and shall not be disclosed by Assignee or its designated representatives to any other Person, except to the extent that such information (i) is required in any report, statement or testimony submitted to any Governmental Authority having or claiming to have jurisdiction over Assignee or submitted to bank examiners or similar organizations or their successors, (ii) is required in response to any summons or subpoena or in connection with any litigation, (iii) is reasonably believed to be required in order to comply with any applicable Legal Requirement to Assignee, (iv) was publicly available or otherwise known to the recipient at the time of disclosure or (v) subsequently becomes publicly available other than through any act or omission of the recipient; provided , however , that with respect to the disclosures with respect to items (i), (ii) and (iii) above, Assignee will notify Assignor prior to any such disclosure in order to provide Assignor an opportunity to seek to limit any such required disclosure.  In connection with the marketing of the Trust’s assets upon termination of the Trust, Assignee and its designated representatives may, on a confidential basis in accordance with this Section 6.04(d), provide any potential purchaser of such assets with the same information Assignee has access to pursuant to Section 6.04.

 

ARTICLE VII.
NO LIABILITY OF ASSIGNEE

 

Assignee shall not be personally liable or responsible under this Conveyance for any cost, risk, liability or obligation associated in any way with the ownership or operation of the Subject Lands, the Subject Interests, the Development Wells or the Subject Minerals.  The foregoing sentence does not restrict the right of Assignor to deduct Chargeable Costs in calculating the volumes of Assignee Minerals or Assignee Proceeds.

 

ARTICLE VIII.
OPERATIONS

 

Section 8.01 Standards of Conduct . Except as otherwise specifically provided in this Conveyance, Assignor shall (a) operate and maintain the Subject Interests, and (b) make elections under each applicable lease, operating agreement, unit agreement, contract for development and other similar instrument or agreement (including elections concerning abandonment of any Development Well or release of any Subject Interest) in good faith and in accordance with the Reasonably Prudent Operator Standard.

 

Section 8.02 Abandonment of Properties . Nothing in this Conveyance shall obligate Assignor to continue to operate any Development Well or to operate or maintain in force or attempt to maintain in force any Subject Interest when such Development Well or

 

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Subject Interest ceases to produce, or Assignor determines that such Development Well or Subject Interest is not capable of producing Minerals in paying quantities, or that such Development Well or Subject Interest is sufficiently unlikely to be made capable of producing Minerals in paying quantities such that additional operations are unwarranted, all in accordance with Section 8.01 above.  The expiration of a Subject Interest in accordance with the terms and conditions applicable thereto shall not be considered to be a voluntary surrender or abandonment thereof.

 

ARTICLE IX.
POOLING AND UNITIZATION

 

Section 9.01 Pooling of Subject Interests . Certain Subject Interests have been, or may have been, heretofore pooled and unitized for the production of Minerals.  Such Subject Interests are and shall be subject to the terms and provisions of the applicable pooling and unitization agreements and orders, and the Royalty Interest in each pooled or unitized Subject Interest shall apply to and affect only the Minerals produced from such units that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreements and orders.

 

Section 9.02 Pooling and Unitization.

 

(a)  Right to Pool . Assignor has the exclusive executive right and power (as between Assignor and Assignee) to pool or unitize any Subject Interest and to alter, change, amend or terminate any pooling or unitization agreements heretofore or hereafter entered into, as to all or any part of the Subject Lands, as to any one or more of the formations or horizons, and as to any Minerals, upon such terms and provisions as Assignor shall in its sole discretion deem appropriate.

 

(b)  Effect of Pooling . If and whenever through the exercise of such right and power, or pursuant to any Legal Requirement now existing or hereafter enacted or promulgated, any Subject Interest is pooled or unitized in any manner, the Royalty Interest shall apply to and affect only the Minerals production that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreement or order.  It shall not be necessary for Assignee to agree to, consent to, ratify, confirm or adopt any exercise of pooling or unitization of any Subject Interest by Assignor.

 

ARTICLE X.
GOVERNMENT REGULATION

 

Section 10.01 Legal Requirements . Except as provided in Section 10.03, all obligations of Assignor under this Conveyance are, and shall be, subject to all applicable Legal Requirements and the instruments, documents and agreements creating the Subject Interests.

 

Section 10.02 Filings . Assignor shall use its reasonable discretion in making filings for itself and on behalf of Assignee with any Governmental Authority having jurisdiction with respect to matters affecting the Subject Interests, the Subject Lands or the Subject Minerals.

 

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Section 10.03 Superseding Effect. By acceptance of this Conveyance, Assignee agrees, for itself and its successors and assigns, immediate and remote, that the timing of payment, accrual of interest and reporting requirements with respect to the Royalty Interest shall be as provided by the terms of this Conveyance and not as prescribed by Kansas Statutes Annotated 55-1614 through 55-1622b (the “ Act ”), or any similar Legal Requirement.  Assignee expressly waives any rights it may have under the Act, including, without limitation, interest on payments related to Assignee Proceeds at the rate provided in Kansas Statutes Annotated 55-1614(h) and the reporting requirements provided in Kansas Statutes Annotated 55-1620.

 

ARTICLE XI.
ASSIGNMENT AND SALE OF SUBJECT INTERESTS

 

Section 11.01 Assignment by Assignor Subject to Royalty Interest.

 

(a)  Right to Sell . Assignor may not Transfer any interest in the Development Wells, the Subject Interests or any part thereof or any undivided interest therein in violation of Section 11.04.  Subject to Section 11.02 and 11.04, Assignor may from time to time Transfer, mortgage or pledge its interest in the Development Wells, the Subject Interests, or any part thereof or undivided interest therein, if and only if (i) such Transfer, mortgage or pledge is made expressly subject to and burdened with the Royalty Interest and this Conveyance; (ii) solely in connection with a Transfer other than a Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has caused the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer; and (iii) in connection with any Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has used commercially reasonable efforts to cause the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer.  Any assumption and agreement to discharge shall be by appropriate written instrument for the express benefit of and enforceable by Assignee.  For the avoidance of doubt, nothing in this Section 11.01(a) is intended to permit any assignee, purchaser, transferee or grantee to acquire any interest in the Development Wells, the Subject Interests or any part thereof or undivided interest therein without being subject to and burdened with the Royalty Interest and this Conveyance.  Assignee shall not be required to recognize any purported Transfer, mortgage or pledge not made in conformance with this Section 11.01(a) and, notwithstanding any such purported Transfer, mortgage or pledge, Assignor shall remain obligated under this Conveyance just as if such Transfer, mortgage or pledge attempt had not been made and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, any purported Transfer not made in conformance with this Section 11.01(a) shall be void and of no effect.

 

(b)  Effect of Sale . From and after the actual date of any such Transfer by Assignor made in full compliance with Section 11.01(a) (and only upon such full compliance), Assignor shall be relieved of all obligations, requirements and responsibilities arising under this

 

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Conveyance with respect to the Subject Interests Transferred, as the same pertain to Assignee Minerals produced from and after (but not prior to) said date of such Transfer.

 

(c)  Allocation of Consideration . Assignee is not entitled to receive any share of the sales proceeds received by Assignor in any transaction permitted by this Section 11.01.

 

(d)  Separate Interest . Notwithstanding any provision to the contrary in Article IV, effective on the effective date of any Transfer of any Subject Interest made in full compliance with Section 11.01(a), Assignee Minerals and Assignee Proceeds shall thereafter be computed separately with respect to such Subject Interests, and the assignee, buyer, transferee or grantee of such Subject Interests shall thereafter serve as Assignee’s agent and representative under Article IV with respect to such interests and shall pay all corresponding Assignee Proceeds directly to Assignee.

 

Section 11.02 Sale and Assignment of Properties.

 

(a)  Transfer . Subject to Section 11.04, Assignor may from time to time, Transfer the Development Wells, the Subject Interests, or any part thereof or undivided interest therein, free of the Royalty Interest and this Conveyance provided that the aggregate Fair Value of all Royalty Interests assigned with respect to the Assignor Conveyances during any twelve (12) month period shall not exceed $5,000,000.

 

(b)  Payments . In connection with any Transfer pursuant to this Section 11.02, Assignor shall remit to Assignee an amount equal to the Fair Value of the Royalty Interest being assigned.  Assignor shall make such payment to Assignee on the Quarterly Payment Date for the Computation Period in which Assignor receives the payment with respect to any such Transfer of the Subject Interest.

 

(c)  Assignment . In connection with any Transfer provided for in Section 11.02(a), Assignee shall, upon request of Assignor, execute, acknowledge and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that assigns the Royalty Interest in the Development Well and the related Subject Interests and Subject Lands being Transferred, to Assignor, or to one or more assignees, as Assignor may direct.

 

(d)  Effect of Sale . From and after the actual date of any such Transfer by Assignor, Assignor and any assignee, purchaser, transferee or grantee of such Subject Interest shall be relieved of all obligations, requirements and responsibilities arising under the Royalty Interest or this Conveyance with respect to the Development Well or Subject Interests Transferred, except for those that accrued prior to such date.

 

Section 11.03 Farmouts.

 

(a)  Farmout . Assignor may from time to time enter into Farmout Agreements with Third Persons with respect to the Subject Interests.  In the event that Assignor enters into any Farmout Agreement with a Third Person (a “ Farmee ”), (i) the Royalty Interest and this Conveyance shall only burden Assignor’s retained interest in the Subject Interests after giving effect to any interest in the Subject Interests that the Farmee may earn under such Farmout

 

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Agreement, and (ii) only Assignor’s retained interest in the Subject Interest will count towards SandRidge’s obligation to drill Development Wells under the Development Agreement.

 

(b)  Assignment . In connection with Assignor entering into any Farmout Agreement, Assignee shall, upon request of Assignor, execute, acknowledge and deliver to the Farmee a recordable instrument (reasonably acceptable to Assignor) that assigns to the Farmee the Royalty Interest insofar and only insofar as it burdens the Subject Interests being transferred to the Farmee pursuant to such Farmout Agreement; provided , that (i) such assignment shall expressly provide that the Royalty Interest so assigned shall merge with the Subject Interests being transferred to the Farmee and shall not thereafter be subject to or governed by the Conveyance, and (ii) the Royalty Interest shall continue to burden the Subject Interests retained by Assignor.

 

Section 11.04 Transfer of Subject Lands . Assignor will not Transfer any Development Well or any of the Subject Interests comprising a part of the Subject Lands pursuant to Sections 11.01 and 11.02 prior to the Drilling Obligation Completion Date, and in the event of any attempted Transfer in violation of this Section 11.04, Assignor shall remain liable and a party hereto, just as if no Transfer attempt had been made, and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, such attempted Transfer in violation of this Section 11.04 shall be void and of no force or effect.  Assignor expressly states and recognizes that the restrictions on Transfer imposed on Assignor in this Section 11.04 and in Section 11.01(a) are made in reasonable protection of an interest of Assignee created hereunder.

 

Section 11.05 Change in Ownership.

 

(a)  Obligation to Give Notice . No change of ownership or of the right to receive payment of the Royalty Interest, or of any part thereof, however accomplished, shall bind Assignor until notice thereof is furnished to Assignor by the Person making the transfer and the Person claiming the benefit thereof, and then only with respect to payments made after such Notice is furnished.

 

(b)  Notice of Sale . Notice of sale, transfer, conveyance or assignment shall consist of a certified copy of the recorded instrument accomplishing the same.

 

(c)  Notice of Other Changes of Ownership . Notice of change of ownership or of the right to receive payment accomplished in any other manner ( e.g. , by dissolution of Assignee) shall consist of certified copies of recorded documents and complete proceedings legally binding and conclusive of the rights of all Persons.

 

(d)  Effect of Lack of Notice . Until such Notice accompanied by such documentation is furnished to Assignor in the manner provided above, Assignor may, at Assignor’s election, either (i) continue to pay or tender all sums payable on the Royalty Interest in the same manner provided in this Conveyance, precisely as if no such change in interest or ownership or right to receive payment had occurred, or (ii) suspend payment of Assignee Proceeds without interest until such documentation is furnished.

 

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(e)  Effect of Nonconforming Notices . The kinds of Notice provided by this Section 11.05 shall be exclusive, and no other kind, whether actual or constructive, shall bind Assignor.

 

Section 11.06 One Payee . Assignor shall never be obligated to pay Assignee Proceeds to more than one Person.  If more than one Person is ever entitled to receive payment of any part of Assignee Proceeds, Assignor may suspend payments of all Assignee Proceeds until the concurrent owners or claimants of the Royalty Interest or the right to receive payment of Assignee Proceeds appoint one Person in writing to receive all payments of Assignee Proceeds on their behalf.  Assignor may thereafter conclusively rely upon the authority of that Person to receive payments of Assignee Proceeds and shall be under no further duty to inquire into the authority or performance of such Person.

 

Section 11.07 Rights of Mortgagee . If Assignee executes a mortgage or deed of trust covering all or part of the Royalty Interest, the mortgagees or trustees therein named or the holders of any obligation secured thereby shall be entitled, to the extent that such mortgage or deed of trust so provides, to exercise the rights, remedies, powers and privileges conferred upon Assignee by this Conveyance and to give or withhold all consents required to be obtained from Assignee.  This Section 11.07 shall not be deemed or construed to impose upon Assignor any obligation or liability undertaken by Assignee under such mortgage or deed of trust or under the obligation secured thereby.

 

Section 11.08 No Drainage . Subsequent to the Drilling Obligation Completion Date, neither Assignor nor any of its Affiliates shall drill any Mineral well that will have a perforation or a stimulation site in the Target Formation that will be within six hundred sixty feet (660’) of any perforation or stimulation site of any Development Well which produces oil or gas from the Target Formation.

 

ARTICLE XII.
FORCE MAJEURE

 

Section 12.01 Nonperformance . Assignor shall not be responsible to Assignee for any loss or damage to Assignee resulting from any delay in performing or failure to perform any obligation under this Conveyance (other than Assignor’s obligation to make payments of Assignee Proceeds to Assignee) to the extent such failure or delay is caused by Force Majeure.

 

Section 12.02 Force Majeure . “ Force Majeure ” means any of the following, to the extent they are not caused solely by the breach by Assignor of its duty to perform certain obligations under this Conveyance in accordance with the Reasonably Prudent Operator Standard:

 

(a) act of God, fire, lightning, landslide, earthquake, storm, hurricane, hurricane warning, flood, high water, washout, tidal wave or explosion;

 

(b) strike, lockout, or other similar industrial disturbance, act of the public enemy, war, military operation, blockade, insurrection, riot, epidemic, arrest or restraint of Governmental Authority or people, or national emergency;

 

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(c) the inability of Assignor, or any Affiliate of Assignor, to acquire, or the delay on the part of any Third Person (other than an Affiliate of Assignor) in acquiring, materials, supplies, machinery, equipment, servitudes, right-of-way grants, easements, permits, licenses, approvals or authorizations necessary to enable such Party to perform hereunder;

 

(d) any breakage of or accident to machinery, equipment or lines of pipe, the repair, maintenance, improvement, replacement, alteration to a plant or line of pipe or related facility, the testing of machinery, equipment or line of pipe, or the freezing of a line of pipe;

 

(e) any Legal Requirement or the affected Party’s compliance therewith; or

 

(f) any other cause, whether similar or dissimilar to the causes enumerated in (a) through (e) above, not reasonably within the control of Assignor.

 

Section 12.03 Force Majeure Notice . Assignor will give Assignee a Notice of each Force Majeure as soon as reasonably practicable after the occurrence of such Force Majeure.

 

Section 12.04 Remedy . Assignor will use its reasonable efforts to remedy each Force Majeure and resume full performance under this Conveyance as soon as reasonably practicable, except that the settlement of strikes, lockouts or other labor disputes shall be entirely within the discretion of Assignor.

 

ARTICLE XIII.
NOTICE

 

Section 13.01 Written Notice . Except as otherwise provided by this Conveyance, each Notice shall be in writing.

 

Section 13.02 Methods of Giving Notice . Notice may be given by any reasonable means, including email, telecopier, hand delivery, overnight courier or U.S. mail.

 

Section 13.03 Charges . All Notices shall be properly addressed to the recipient, with all postage and other charges being paid by the Party giving Notice.

 

Section 13.04 Effective Date. Notice shall be effective when actually received by the Party being notified; provided , however , that Notices given by email or telecopy on any day other than a Business Day, or on a Business Day but after 5:00 p.m. local time at the location of the Party being notified, shall be deemed received on the next Business Day, unless receipt is acknowledged prior to the next Business Day.

 

Section 13.05 Addresses . The addresses of the Parties for purposes of Notice are the addresses in the introductory paragraph to this Conveyance.

 

Section 13.06 Change of Address . Either Party may change its address to another address within the continental United States by giving ten (10) days’ Notice to the other Party.

 

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ARTICLE XIV.
OTHER PROVISIONS

 

Section 14.01 Successors and Assigns . The provisions and conditions contained in this Conveyance shall run with the land and the respective interests of Assignor and Assignee in, or related to, the Subject Lands, and, subject to the limitation and restrictions on the assignment or delegation by the Parties of their rights and interests under this Conveyance, this Conveyance binds and inures to the benefit of Assignor, Assignee and their respective successors, assigns and legal representatives.

 

Section 14.02 Governing Law . THIS CONVEYANCE SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF KANSAS WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

Section 14.03 Construction of Conveyance . In construing this Conveyance, the following principles shall be followed:

 

(a) no consideration shall be given to the captions of the articles, sections, subsections or clauses, which are inserted for convenience in locating the provisions of this Conveyance and not as an aid in its construction;

 

(b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Conveyance;

 

(c) the word “includes” and its syntactical variants mean “includes, but is not limited to” and corresponding syntactical variant expressions;

 

(d) a defined term has its defined meaning throughout this Conveyance, regardless of whether it appears before or after the place in this Conveyance where it is defined;

 

(e) the plural shall be deemed to include the singular, and vice versa, unless the context otherwise requires; and

 

(f) each exhibit, attachment and schedule to this Conveyance is a part of this Conveyance, but if there is any conflict or inconsistency between the main body of this Conveyance and any exhibit, attachment or schedule, the provisions of the main body of this Conveyance shall prevail.

 

Section 14.04 No Waiver . Failure of either Party to require performance of any provision of this Conveyance shall not affect either Party’s right to require full performance thereof at any time thereafter, and the waiver by either Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.

 

Section 14.05 Relationship of Parties . This Conveyance does not create a partnership, mining partnership, joint venture or relationship of trust or agency (except with

 

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respect to Assignor’s agency relationship with respect to those matters set forth in Articles IV and V above) between the Parties.

 

Section 14.06 Further Assurances . Each Party shall execute, acknowledge and deliver to the other Party all additional instruments and other documents reasonably required to describe more specifically any interests subject hereto, to vest more fully in Assignee the Royalty Interest conveyed (or intended to be conveyed) by this Conveyance, or to evidence or effect any transaction contemplated by this Conveyance.  Assignor shall also execute and deliver all additional instruments and other documents reasonably required to transfer interests in state, federal or Indian lease interests in compliance with applicable Legal Requirements or agreements.  Upon expiration of the Term, Assignee shall, on request, execute, acknowledge and deliver to Assignor sufficient numbers of recordable instruments releasing all of the Subject Lands from this Conveyance.

 

Section 14.07 The 12:01 A.M. Convention . Except as otherwise provided in this Conveyance, each calendar day, month, quarter and year shall be deemed to begin at 12:01 a.m. Central Time on the stated day or on the first day of the stated month, quarter or year, and to end at 12:00 a.m. Central Time on the next day or on first day of the next month, quarter or year, respectively.

 

Section 14.08 Counterpart Execution . This Conveyance may be executed in any number of counterparts, all of which are identical except that to facilitate filing and recording, counterparts to be filed and recorded in the appropriate records of each county may have included in Exhibit A hereto only those portions of Exhibit A hereto that contain descriptions of the lands and leases located in said county.  Every counterpart of this Conveyance shall be deemed to be an original for all purposes, and all such counterparts together shall constitute one and the same instrument.  An executed counterpart of this Conveyance containing the full text to the entire Exhibits and Annexes is recorded in the real property records of Barber County, Kansas.  Counterparts of this Conveyance with all portions of Exhibit A hereto will be kept at the offices of Assignor and Assignee at the addresses indicated in the introductory paragraph to this Conveyance.  As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf shall be deemed an original hereto.

 

Section 14.09 Present and Absolute Conveyance . It is the express intention of Assignor and Assignee that the Royalty Interest is, and shall be construed for all purposes as, a present, fully-vested and absolute conveyance.

 

Section 14.10 Tax Treatment. Notwithstanding that this Royalty Interest may be a real property interest for purposes of applicable state law, the Parties agree to treat this Royalty Interest as a mortgage loan for federal income tax purposes pursuant to Section 636(a) of the Code (and for the purposes of any similarly calculated state income or franchise taxes) but for no other purposes, and the Parties agree to file all federal income tax and state income tax and franchise tax returns consistent with this Section 14.10.  For avoidance of doubt, the Parties acknowledge that Assignor (and not Assignee) is entitled to all tax credits and other applicable tax attributes attributable to this Royalty Interest and the production of Minerals attributable thereto.

 

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Section 14.11 Severability . In case any provision, covenant or obligation under this Conveyance is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions, covenants or obligations of this Conveyance are declared to be severable and not in any way affected or impaired thereby.

 

[ Remainder of page intentionally left blank. ]

 

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IN WITNESS WHEREOF, each Party has caused this Conveyance to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Conveyance, to be effective as of the Effective Time.

 

 

 

SANDRIDGE EXPLORATION AND PRODUCTION, LLC

 

 

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

Signature Page to Term Overriding Royalty Interest
Conveyance (Kansas) (Development)

 



 

 

MISTMADA OIL COMPANY, INC.

 

 

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

Signature Page to Term Overriding Royalty Interest
Conveyance (Kansas) (Development)

 



 

STATE OF OKLAHOMA

§

 

§

COUNTY OF OKLAHOMA

§

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb, President and Chief Operating Officer of SandRidge Exploration and Production, LLC, a Delaware limited liability company, on behalf of said limited liability company.

 

 

 

 

/s/ Janis L. Roberts

 

 

NOTARY PUBLIC,

 

 

 

 

 

State of Oklahoma

 

 

 

 

 

Janis L. Roberts

 

 

(printed name)

 

 

 

 

 

 

My commission expires: May 22, 2012

 

 

 

 

 

 

 

 

SEAL or STAMP

 

 

 

Acknowledgment Page to Term Overriding Royalty Interest
Conveyance (Kansas) (Development)

 



 

STATE OF OKLAHOMA

§

 

 

§

COUNTY OF OKLAHOMA

§

 

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb as President and Chief Operating Officer of Mistmada Oil Company, Inc., an Oklahoma corporation, on behalf of said corporation.

 

 

 

 

/s/ Janis L. Roberts

 

 

NOTARY PUBLIC,

 

 

 

 

 

State of Oklahoma

 

 

 

 

 

Janis L. Roberts

 

 

(printed name)

 

 

 

 

 

 

My commission expires: May 22, 2012

 

 

 

 

 

 

 

 

SEAL or STAMP

 

 

 

Acknowledgment Page to Term Overriding Royalty Interest
Conveyance (Kansas) (Development)

 



 

Exhibit A

 

(Subject Lands)

 

See attached.

 



 

Exhibit B

 

(Excluded Assets)

 

None.

 


Exhibit 10.4

 

Execution Copy

 

TERM OVERRIDING ROYALTY INTEREST

CONVEYANCE (OKLAHOMA) (DEVELOPMENT)

 

This TERM OVERRIDING ROYALTY INTEREST CONVEYANCE (OKLAHOMA) (DEVELOPMENT) (this “ Conveyance ”) from SandRidge Exploration and Production, LLC, a Delaware limited liability company, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ Assignor ”), to Mistmada Oil Company, Inc., an Oklahoma corporation, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ Assignee ”), is delivered to be effective as of the Effective Time.  All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Article II below.

 

ARTICLE I.
CONVEYANCE

 

Section 1.01 The Grant . For and in consideration of good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby BARGAIN, SELL, GRANT, CONVEY, TRANSFER, ASSIGN, SET OVER, and DELIVER unto Assignee, subject to the terms of this Conveyance and for the Term, as an overriding royalty interest (the “ Royalty Interest ”), an undivided interest in and to all Minerals that may be produced and saved from the Target Formation underlying the Subject Lands through the wellbores of the Development Wells, sufficient to cause Assignee to receive the Assignee Minerals.  To the extent any interest conveyed hereunder is created out of a mineral interest, rather than out of an oil and gas leasehold interest, the term “overriding royalty interest” shall be interpreted to mean a non-participating royalty interest with respect to that particular interest, but any such interest shall still be subject to, and shall have the rights and obligations set forth in, this Conveyance.

 

Section 1.02 Non-Operating, Non-Expense Bearing Interest.  The Royalty Interest conveyed hereby is a non-operating, non-expense-bearing overriding royalty interest for a limited term in and to the Subject Interests, free of all cost, risk and expense of production, operations and marketing.  In no event shall Assignee ever be liable or personally obligated for payment of any cost, expenses or liabilities attributable to the Subject Interests (or any part thereof) or incurred in connection with the production, saving or marketing of Assignee Minerals, subject, however, to Assignor’s right hereinafter provided to deduct Chargeable Costs in determining Assignee Proceeds, which right shall be solely a matter of deduction from the proceeds from the sale of Assignee Minerals and not a personal obligation of Assignee.  This Conveyance is a conveyance of an interest in real property.

 

Section 1.03 Term.  The term of the Royalty Interest (the “ Term ”) shall begin at the Effective Time and end on December 31, 2031 (the “ Termination Date ”).  At the end of the Term, all of Assignee’s interest in and to the Royalty Interest shall automatically terminate and immediately revert to and revest in Assignor.

 

Section 1.04 Habendum Clause . TO HAVE AND TO HOLD the Royalty Interest, together with all and singular the rights and appurtenances thereto in anywise belonging,

 



 

unto Assignee, its successors and assigns, for the Term, subject to terms and provisions of this Conveyance.

 

Section 1.05 Warranty.

 

(a)  The Warranty . Assignor warrants to Assignee, its successors and assigns, that the Royalty Interest is free of all Encumbrances created by, through or under Assignor, but not otherwise, except for the Permitted Encumbrances.

 

(b)  Remedies . In the event of a breach of the foregoing warranty, Assignee’s sole remedy shall be to receive payment on each applicable Quarterly Payment Date, out of Assignor’s Net Share of Minerals from other Development Wells in excess of that subject to the Royalty Interest and the royalty interest created pursuant to the Perpetual Development Oklahoma Conveyance (the “ Assignor Retained Minerals ”), subject to offset as provided below and without interest (except such interest payable under this Conveyance on payments made after the applicable due date as described in Section 5.02 below), of an amount equal to the difference between (x) Assignee Proceeds that Assignee would have received with respect to such Development Well in the applicable Computation Period if such warranty had not been breached, and (y) Assignee Proceeds that Assignee actually received during that Computation Period with respect to that Development Well, to the extent such difference is attributable to the breach of the warranty, but not to the extent that such difference is attributable to any other cause, and any such amounts of Assignor Retained Minerals shall be treated as Assignee Minerals.

 

(c)  Right of Offset . If any Subject Interest ever proves to be larger as of the Effective Date than the Subject Interest reflected in Exhibit A hereto and if, as a result, Assignee receives a greater amount of Assignee Minerals (or the proceeds from the sale thereof) with respect to that Subject Interest than Assignee would otherwise have received if the Subject Interest had been the size reflected on Exhibit A hereto, then such increased amounts, whenever received by Assignee, may be treated by Assignor as a credit or offset (without interest) against any amounts payable to Assignee under Section 1.05(b).

 

(d)  DISCLAIMER . EXCEPT FOR THE WARRANTIES OF TITLE GIVEN IN SECTION 1.05(a), ASSIGNOR MAKES THIS CONVEYANCE AND ASSIGNS THE ROYALTY INTEREST WITHOUT RECOURSE, COVENANT OR WARRANTY OF TITLE OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY.  ANY COVENANTS OR WARRANTIES IMPLIED BY STATUTE OR LAW BY THE USE HEREIN OF THE WORDS “ GRANT ”, “ CONVEY ” OR OTHER SIMILAR WORDS ARE HEREBY EXPRESSLY DISCLAIMED, WAIVED AND NEGATED.  WITHOUT LIMITING THE GENERALITY OF THE TWO PRECEDING SENTENCES, ASSIGNEE ACKNOWLEDGES THAT ASSIGNOR HAS NOT MADE, AND ASSIGNOR HEREBY EXPRESSLY DISCLAIMS AND NEGATES, AND ASSIGNEE HEREBY EXPRESSLY WAIVES, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO (i) PRODUCTION RATES, RECOMPLETION OPPORTUNITIES, DECLINE RATES OR THE QUALITY, QUANTITY OR VOLUME OF THE RESERVES OF MINERALS, IF ANY, ATTRIBUTABLE TO THE SUBJECT INTERESTS, (ii) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (iii) ANY IMPLIED OR

 

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EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iv) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, AND (v) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER ANY APPLICABLE LEGAL REQUIREMENT; IT BEING THE EXPRESS INTENTION OF BOTH ASSIGNEE AND ASSIGNOR THAT THE ROYALTY INTEREST IS HEREBY ASSIGNED TO ASSIGNEE ON AN “AS IS” AND “WHERE IS” BASIS WITH ALL FAULTS, AND THAT ASSIGNEE HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS ASSIGNEE DEEMS APPROPRIATE.  ASSIGNOR AND ASSIGNEE AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LEGAL REQUIREMENTS TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS SECTION ARE “CONSPICUOUS” DISCLAIMERS FOR THE PURPOSES OF ANY APPLICABLE LEGAL REQUIREMENT.

 

(e)  Substitution of Warranty . This instrument is made with full substitution and subrogation of Assignee in and to all covenants of warranty by Third Persons (other than Affiliates of Assignor) heretofore given or made with respect to the Development Wells, the Subject Interests or any part thereof or interest therein.

 

Section 1.06 Reconveyance of Excess Acreage . After the Drilling Obligation Completion Date, Assignee shall, on request, execute, acknowledge and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that reconveys to Assignor the Royalty Interest except with respect to all Subject Minerals that may be produced from any wellbore of any Development Well.

 

ARTICLE II.
DEFINITIONS

 

This Article II defines certain capitalized words, terms, and phrases used in this Conveyance. Certain other capitalized words, terms, and phrases used in this Conveyance are defined elsewhere in this Conveyance.

 

Act ” is defined in Section 10.03.

 

Affiliate ” means, for any specified Person, another Person that controls, is controlled by, or is under common control with, the specified Person.  “ Control ,” in the preceding sentence, refers to the possession by one Person, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.

 

AMI ” means that area described in Exhibit A to the Development Agreement, as such area may be extended or exchanged pursuant to Article III of the Development Agreement.

 

Assignee ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignee.

 

Assignee Minerals ” is defined in Section 3.01.

 

Assignee Proceeds ” is defined in Section 3.03.

 

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Assignor ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignor.

 

Assignor Conveyances ” means the Assignor Oklahoma Conveyances and the Assignor Kansas Conveyances.

 

Assignor Kansas Conveyances ” means the Long-Term Development Kansas Conveyance, the Term Development Kansas Conveyance, the Perpetual PDP Kansas Conveyance and the Term PDP Kansas Conveyance.

 

Assignor Oklahoma Conveyances ” means this Conveyance, the Perpetual Development Oklahoma Conveyance, the Perpetual PDP Oklahoma Conveyance and the Term PDP Oklahoma Conveyance.

 

Assignor Retained Minerals ” is defined in Section 1.05(b).

 

Assignor’s Net Revenue Interest ” means the interest, stated as a decimal fraction, in Subject Minerals production from a Development Well attributable to the Subject Interests in that Development Well, net of Production Burdens.

 

Assignor’s Net Share of Minerals ” means the share of Subject Minerals from each Development Well that is attributable to Assignor’s Net Revenue Interest in that Development Well determined prior to giving effect to this Conveyance.

 

Bbl ” means one stock tank barrel, or 42 U.S. gallons liquid volume, in reference to Oil or Gas Liquids.

 

Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the New York Stock Exchange, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.

 

Chargeable Costs ” is defined in Section 3.02(a).

 

Closing Time ” means 12:01 a.m. Central Time, on April 23, 2012.

 

Computation Period ” means each calendar quarter commencing on or after 12:01 a.m., Central Time, on January 1, 2012, with each such calendar quarter being deemed to have begun at 12:01 a.m. Central Time on the first day of such calendar quarter and to have ended at 12:00 a.m. Central Time on the first day of the next calendar quarter.

 

Conveyance ” is defined in the introductory paragraph to this Conveyance.

 

Development Agreement ” means that certain Development Agreement by and among SandRidge, Assignor and the Trust, dated as of even date herewith and effective as of the Effective Time.

 

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Development Well ” has the meaning given to such term in the Development Agreement.

 

Drilling Obligation Completion Date ” has the meaning given to such term in the Development Agreement.

 

Effective Time ” means 12:01 a.m., Central Time, on January 1, 2012; provided , however , that with respect to each oil and gas lease described in Exhibit A that has a date after January 1, 2012, the Effective Time, with respect to each such oil and gas lease, shall be 12:01 a.m., Central Time, on the date of such oil and gas lease.

 

Encumbrance ” means any mortgage, lien, security interest, pledge, charge, encumbrance, limitation, preferential right to purchase, consent to assignment, irregularity, burden or defect.

 

Excess Costs ” means, in any Computation Period, the excess of (x) Chargeable Costs associated with Assignee Minerals for that Computation Period over (y) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals (with the amount in clause (y) calculated as provided in Section 3.03(a) hereof).  Excess Costs shall bear interest at the Prime Interest Rate from the end of the Computation Period in which such costs were incurred to the date that Assignor recovers such amounts from Assignee Proceeds.

 

Excluded Assets ” means (a) those oil and gas wells that are the subject of the Term PDP Oklahoma Conveyance and the Perpetual PDP Oklahoma Conveyance, and (b) those oil and gas wells that are described in Exhibit B hereto.

 

Fair Value ” means, with respect to any portion of the Royalty Interest to be assigned pursuant to Section 11.02 in connection with a Transfer of any Development Well or Subject Interests, an amount of net proceeds that could reasonably be expected to be obtained from the sale of such portion of the Royalty Interest to a party that is not an Affiliate of either Assignor or Assignee on an arms’-length negotiated basis, taking into account relevant market conditions and factors existing at the time of any such proposed Transfer, such net proceeds to be determined by deducting Assignee’s proportionate share of sales costs, commissions and brokerage fees, if any (based on the ratio of (i) the fair market value of the portion of the Royalty Interest being assigned to (ii) the fair market value of the Development Wells and Subject Interests being Transferred (including the value of the Royalty Interest being assigned)).

 

Farmout Agreements ” means any farmout agreement, participation agreement, exploration agreement, development agreement or any similar agreement.

 

Force Majeure ” is defined in Section 12.02.

 

Gas ” means natural gas and all other gaseous hydrocarbons or minerals, including helium, but specifically excluding any Gas Liquids.

 

Gas Liquids ” means those natural gas liquids and other liquid similar hydrocarbons, including ethane, propane, butane and natural gasoline, and mixtures thereof, that

 

5



 

are removed from a gas stream by the liquids extraction process of any field facility or gas processing plant and delivered by the facility or plant as natural gas liquids.

 

Governmental Authority ” means the United States of America, any state, commonwealth, territory, or possession thereof, and any political subdivision of any of the foregoing, including courts, departments, commissions, boards, bureaus, agencies and other instrumentalities.

 

Legal Requirement ” means any law, statute, ordinance, decree, requirement, order, judgment, rule, or regulation of, including the terms of any license or permit issued by, any Governmental Authority.

 

Long-Term Development Kansas Conveyance ” means that certain Long-Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Mcf ” means one thousand cubic feet of Gas, measured and expressed at the same temperature, pressure, and other conditions of measurement (a) provided in any contract for the purchase of Gas from the Subject Interests or, (b) if no such contract exists, provided by applicable state law for purposes of reporting production to Governmental Authorities.

 

Mineral(s) ” means Oil, Gas and Gas Liquids.

 

MMBtu ” means one million British thermal units.

 

Mortgages ” has the meaning given such term in the Development Agreement.

 

Non-Affiliate ” means, for any specified Person, any other Person that is not an Affiliate of the specified Person.

 

Notice ” means any notice, advice, invoice, demand or other communication required or permitted by this Conveyance.

 

Oil ” means crude oil, condensate and other liquid hydrocarbons recovered by field equipment or facilities, excluding Gas Liquids.

 

Party ,” when capitalized, refers to Assignor or Assignee. “ Parties ,” when capitalized, refers to Assignor and Assignee.

 

Permitted Encumbrances ” means:

 

(a) the Production Burdens;

 

(b) contractual obligations arising under operating agreements, Farmout Agreements, production sales contracts, leases, assignments and other similar agreements that may affect the Subject Interests;

 

6



 

(c) pooling and unitization agreements, declarations, orders or Legal Requirements to secure payment of amounts not yet delinquent;

 

(d) liens and security interests that arise in the normal course of operations, such as liens for unpaid taxes, statutory liens securing unpaid suppliers and contractors, and contractual liens under operating agreements, in any case, that are not yet delinquent or, if delinquent, are being contested in good faith in the normal course of business;

 

(e) conventional rights of reassignment that obligate Assignor to reassign all or part of any Subject Interest to a Third Person if Assignor intends to release or abandon such interest before the expiration of the primary term or other termination of such interest;

 

(f) easements, rights-of-way, servitudes, permits, surface leases, surface use restrictions and other surface uses and impediments on, over or in respect of the Subject Interests that are not such as to interfere materially with the operation, value or use of the Subject Interests;

 

(g) rights reserved to or vested in any Governmental Authority to control or regulate any Subject Interests in any manner, and all applicable Legal Requirements;

 

(h) the terms of the instruments creating the Subject Interests and Subject Lands; and

 

(i) the Mortgages;

 

provided , that such aforementioned encumbrances are of the type and nature customary in the oil and gas industry, and provided , further , that such aforementioned encumbrances do not, alone or in the aggregate, materially and adversely affect the operation, value or use of any Subject Interests, and all to the extent, and for so long as, such Permitted Encumbrances are otherwise valid and enforceable against the Subject Interests, without recognizing, expressly or by implication, any rights or interests in any Third Person or Governmental Authority that such Third Person or Governmental Authority does not otherwise lawfully possess.

 

Perpetual Development Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (Development) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Perpetual PDP Kansas Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Perpetual PDP Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and the Trust, dated as of April 23, 2012 and effective as of the Effective Time.

 

Person ” means any natural person, corporation, partnership, trust, estate, or other entity, organization or association.

 

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Post Production Cost Charge ” is defined in Section 3.02(b).

 

Prime Interest Rate ” is defined in Section 5.02(b).

 

Production Burdens ” means, with respect to any Subject Lands, Subject Interests or Subject Minerals, all royalty interests, overriding royalty interests, production payments, net profits interests and other similar interests that constitute a burden on, are measured by, or are payable out of the production of Minerals or the proceeds realized from the sale or other disposition thereof.

 

Quarterly Payment Date ” is defined in Section 5.01(b).

 

Reasonably Prudent Operator Standard ” means the standard of conduct of a reasonably prudent oil and gas operator in the AMI under the same or similar circumstances, acting with respect to its own property and disregarding the existence of the Royalty Interest as a burden on such property.

 

Royalty Interest ” is defined in Section 1.01.

 

Sales Price ” means the price received by Assignor for Assignee Minerals determined in accordance with the following provisions:

 

(a) “sale” refers to any sale, exchange or other disposition of Assignee Minerals for value, the value of such Minerals that is exchanged or otherwise disposed of for valuable consideration being the sales price that Assignor receives for any such Minerals sold pursuant to Section 4.01 for any such Minerals;

 

(b) amounts of money not paid to Assignor when due by any purchaser of Assignee Minerals (for example, Taxes or other amounts withheld or deducted by any such purchaser) shall not be included within the Sales Price until actually received by, or credited to the account of, Assignor;

 

(c) advance payments and prepayments for future deliveries of Assignee Minerals shall be included within the Sales Price, without interest, when that volume of Minerals subject to the advance payments or prepayments is actually produced;

 

(d) loan proceeds received by Assignor shall not be treated as a component of the applicable Sales Price; and

 

(e) if a controversy or possible controversy exists, whether by reason of any statute, order, decree, rule, regulation, contract or otherwise, between Assignor and any purchaser of Assignee Minerals or any other Person, about the correct Sales Price of any Assignee Minerals, about deductions from the Sales Price, about Assignor’s right to receive the proceeds of any sale of Assignee Minerals, or about any other matter, then monies withheld by the purchaser or deposited by it with an escrow agent or if Assignor receives any monies and promptly deposits such monies with a Third Person escrow agent as a result of such controversy, such monies shall not be included within the Sales Price until received by or returned to Assignor, as applicable.

 

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SandRidge ” means SandRidge Energy, Inc., a Delaware corporation.

 

Subject Interests ” means Assignor’s undivided interests in the Subject Lands as described on Exhibit A hereto, whether as lessee under leases, as an owner of the Subject Minerals (or the right to extract such Minerals) or otherwise, by virtue of which undivided interests Assignor has the right to conduct exploration, drilling, development and Mineral production operations on the Subject Lands, or to cause such operations to be conducted, or to participate in such operations by paying and bearing all or any part of the costs, risks and liabilities of such operations, to drill, test, complete, equip, operate and produce wells to exploit the Minerals.  The “Subject Interests” (a) may be owned by Assignor pursuant to leases, deeds, operating, pooling or unitization agreements, orders or any other instruments, agreements or documents, recorded or unrecorded, (b) include any and all extensions or renewals of leases covering the Subject Lands (or any portion thereof) obtained by Assignor, or any Affiliate thereof, within six (6) months after the expiration or termination of any such lease, and (c) are subject to the Permitted Encumbrances.  For the avoidance of doubt, the “Subject Interests” do not include:  (i) Assignor’s interests in the Excluded Assets; (ii) Assignor’s rights to substances other than Minerals; (iii) Assignor’s rights to Minerals (other than Assignee Minerals) under contracts for the purchase, sale, transportation, storage, processing or other handling or disposition of Minerals; (iv) Assignor’s interests in, or rights to Minerals (other than Assignee Minerals) held in pipelines, gathering systems, storage facilities, processing facilities or other equipment or facilities; or (v) any additional or enlarged interests in the Development Wells, Subject Lands or Subject Minerals acquired by Assignor after the Closing Time, except (1) to the extent any such additional or enlarged interest becomes a part of the Subject Interests by amendment to this Conveyance pursuant to Section 3.01 or 3.02 of the Development Agreement, (2) as may result from the operation of the terms of the instruments creating the Subject Interests, or (3) as may be reflected in extensions and renewals covered by the preceding sentence.

 

Subject Lands ” means the lands subject to or covered by the oil and gas leases described in Exhibit A hereto, insofar and only insofar as they cover the Target Formation, subject to the exceptions, exclusions and reservations set forth on such Exhibit A hereto.

 

Subject Minerals ” means all Minerals in and under, and that may be produced, saved and sold from a Development Well, from and after the Effective Time, insofar and only insofar as such Minerals are produced from the Target Formation, subject to the following exclusions:  Minerals that are (a) lost in the production, gathering or marketing of Minerals; (b) used (i) in conformity with ordinary and prudent operations on the Subject Lands, including drilling and production operations with respect to a Development Well or (ii) in connection with operations (whether on or off the Subject Lands) for processing or compressing the Subject Minerals; (c) taken by a Third Person to recover costs, or some multiple of costs, paid or incurred by that Third Person under any operating agreement, unit agreement or other agreement in connection with nonconsent operations conducted (or participated in) by that Third Person; and (d) retained by a Third Person for gathering, transportation, processing or marketing services related to the Subject Minerals in lieu of or in addition to cash payment for such services, to the extent such agreement is permitted under this Conveyance.

 

Target Formation ” means (i) with respect to Alfalfa County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged

 

9



 

Morrow or its stratigraphic equivalent at a depth of 4,833’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,344’ in the SandRidge Energy Dorado SWD 1-32 located in section 32, Township 29 North, Range 9 West (API No. 35003219830000); (ii) with respect to Grant County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,395’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 6,060’ in the SandRidge Energy Orion 1-22 SWD located in section 22, Township 25 North, Range 5 West (API No. 35053227710000); (iii) with respect to Kay County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4,387’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 4,619’ in the Jefferson-WMS State School Land 5-36 located in section 36, Township 25 North, Range 2 West (API No. 35071224500000); (iv) with respect to Noble County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4,523’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 4,783’ in the SandRidge Energy County Line SWD 1-2 located in section 2, Township 24 North, Range 2 West (API No. 35103242860000); and (v) with respect to Woods County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,204’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,704’ in the SandRidge Energy Koppitz SWD 1-31 located in section 31, Township 28 North, Range 13 West (API No. 35151232750000).

 

Taxes ” is defined in Section 3.02(c).

 

Term Development Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Third Person ” means a Person other than Assignor, Assignee or Trustee.

 

Transfer ” including its syntactical variants, means any assignment, sale, transfer, conveyance or disposition of any property; provided , that Transfer as used herein does not include the granting of a mortgage on or security interest in Assignor’s interest in any property, including the Development Wells, the Subject Interests and/or the Subject Lands.

 

Trust ” means SandRidge Mississippian Trust II, a Delaware statutory trust.

 

Trustee ” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America with its principal

 

10



 

place of business in New York, New York, as trustee, acting not in its individual capacity but solely as trustee of the Trust.

 

ARTICLE III.
CALCULATION OF ASSIGNEE MINERALS

 

Section 3.01 Definition . “ Assignee Minerals ” is that volume of Minerals with respect to each Development Well calculated in accordance with the following formula: Thirty-Five Percent (35%) X (Assignor’s Net Share of Minerals).

 

Section 3.02 Chargeable Costs.

 

(a)  Definition . For each Computation Period, “ Chargeable Costs ” means the sum of (i) the Post Production Cost Charge, plus (ii) Excess Costs from prior Computation Periods, plus (iii) Taxes incurred, accrued or paid by Assignor; provided, that such costs are actually paid by Assignor during the relevant Computation Period or paid by Assignor during a prior Computation Period and not included in any prior Computation Period’s Chargeable Costs.  For the avoidance of doubt, all costs associated with, incurred or paid in connection with the drilling, testing, completing and equipping for production of the Development Wells shall be borne solely by Assignor and shall not be included as Chargeable Costs.

 

(b)  Post Production Cost Charge . “ Post Production Cost Charge ” means those costs incurred by Assignor (including internal costs and Third Person costs) to gather, store, transport, compress, process, treat, dehydrate and market, as applicable, the Subject Minerals, including any costs as may be required to deliver such Minerals to market; provided , that any costs charged by Assignor and its Affiliates as part of the Post Production Cost Charge shall not materially exceed the costs prevailing in the area where the Subject Minerals are being produced for similar services; and provided , further , that with respect to marketing costs, only Non-Affiliate marketing fees and costs shall be included, and marketing costs of Assignor and its Affiliates with respect to any Subject Minerals will be specifically excluded from the Post Production Cost Charge.  Any costs, fees or expenses that are properly charged or allocated to Assignee Minerals pursuant to another provision of this Conveyance (including, as provided for in the definition of Subject Minerals) shall not be included as part of the Post Production Cost Charge.

 

(c)  Taxes . “ Taxes ” means general property, ad valorem, production, severance, sales, windfall profit, excise and other taxes, except income taxes, assessed or levied on or in connection with the Subject Interests, the Royalty Interest, this Conveyance, production of Subject Minerals, Assignor’s Net Share of Minerals, Assignee Minerals (or the proceeds from the sale thereof) or facilities or equipment on the Subject Lands that are used for the production, dehydration, treatment, processing, gathering or transportation of Subject Minerals, or against Assignor as owner of the Subject Interests or paid by Assignor on behalf of Assignee as owner of the Royalty Interest.

 

(d)  Operating and Drilling Costs . For the avoidance of doubt, all costs associated with or paid or incurred in connection with the drilling, testing, completing, developing and operating the Development Wells or otherwise incurred in connection with the

 

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ownership or operation of the Subject Interests other than Taxes and Post Production Cost Charges shall be borne solely by Assignor and shall not be included as Chargeable Costs, and Assignor may use any Subject Minerals in such operations without any duty to account to Assignee.

 

Section 3.03 Assignee Proceeds . “ Assignee Proceeds ” means, for any Computation Period, (a) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals, with the amount of such proceeds being determined by multiplying (i) the volume of Assignee Minerals produced (expressed (A) for Gas, in Mcf or MMBtu, (B) for Gas Liquids, in Bbls and (C) for Oil, in Bbls) by (ii) the relevant Sales Price (expressed (A) for Gas, on a per Mcf or MMBtu basis, (B) for Gas Liquids, on a per Bbl basis and (C) for Oil, on a per Bbl basis), less (b) the Chargeable Costs associated with such Assignee Minerals.

 

ARTICLE IV.
MARKETING OF ASSIGNEE MINERALS

 

Section 4.01 Rights and Duties Regarding Sale of Assignee Minerals . Assignor shall market or shall cause to be marketed Assignor’s Net Share of Minerals (including Assignee Minerals) in good faith and in accordance with the Reasonably Prudent Operator Standard and Section 4.02(d).  Assignor shall use its reasonable efforts in connection with any sale of Assignor’s Net Share of Minerals (including Assignee Minerals) to obtain, as soon as reasonably practicable, full payment for such Minerals; provided , however , that it shall not be considered a breach of Assignor’s marketing duty or standard of conduct for Assignor to market such Minerals to an Affiliate of Assignor, so long as Assignor does not market such Minerals at a volume-weighted average price lower than the volume-weighted average price upon which Assignor pays royalties to the owners of the other royalty interests in the Subject Minerals, save and excepting Chargeable Costs provided for in Article III hereof.

 

Section 4.02 Assignee’s Agent and Representative.

 

(a)  Appointment . Assignee appoints Assignor as Assignee’s agent and representative to market and deliver or cause to be marketed and delivered all Assignee Minerals and to collect and receive all payments therefrom under any Minerals purchase agreement or contract without deduction (except to the extent Chargeable Costs are deducted for any Computation Period).  The appointment of Assignor as Assignee’s agent and representative for such purpose is a material item of consideration to the Parties in connection with the execution and delivery of this Conveyance.  Assignee may not remove Assignor from office as Assignee’s agent and representative, except for cause upon a material breach by Assignor of its duties to Assignee under this Conveyance.

 

(b)  Duties and Powers . As Assignee’s agent and representative, Assignor shall receive all payments for the sale of Assignee Minerals and account to Assignee, receive and make all communications with the purchaser of such Minerals, and otherwise act and speak for Assignee in connection with the sale of Assignee Minerals.  Third Persons may rely conclusively on the authority of Assignor to market Assignee Minerals, and with respect to Third Persons only, Assignee shall be conclusively bound by the acts of Assignor in connection with the sale of

 

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Assignee Minerals.  It shall not be necessary for Assignee to join Assignor in the execution of any division order, transfer order or other instrument, agreement or document relating to the sale of Assignee Minerals.  Third Persons may pay all Assignee Proceeds for the sale of such Minerals directly to Assignor, without the necessity of any joinder by or consent of Assignee or any inquiry into the use or disposition of such proceeds by Assignor.  In no event, however, shall the authority granted in this Section 4.02 or elsewhere in this Conveyance relieve Assignor of any liability for breach of this Conveyance.

 

(c)  Prohibited Acts . Assignor may not act for or bind Assignee on any matter, except the marketing and delivery of Assignee Minerals under this Article IV.

 

(d)  Standard of Conduct . In exercising its powers and performing its duties as Assignee’s agent and representative, Assignor shall act in good faith and in accordance with the Reasonably Prudent Operator Standard.  It shall not be a violation of such standard of conduct for Assignor (i) to sell Assignor’s Net Share of Minerals or Assignee Minerals to an Affiliate pursuant to any purchase agreement or contract, or (ii) to delegate some or all of Assignor’s duties as Assignee’s agent and representative to its Affiliates (so long as such Affiliates perform in good faith and in accordance with the Reasonably Prudent Operator Standard), with Assignor remaining liable to Assignee for the performance of such duties.

 

(e)  Termination of Authority . Assignor may not resign as Assignee’s agent and representative without the prior written consent of Assignee, except that Assignor may resign as Assignee’s agent and representative without such consent with respect to any Subject Interests assigned, sold, transferred or conveyed by Assignor in accordance with the terms of this Conveyance.  If such sale is made subject to the Royalty Interest, Assignor must cause the purchaser to assume the duties of Assignee’s agent and representative with respect to the Subject Interests acquired by that purchaser and to be bound by the provisions of this Article IV.

 

Section 4.03 Delivery of Subject Minerals . Assignor (whether or not it is serving as Assignee’s agent and representative) shall deliver or cause to be delivered Assignor’s Net Share of Minerals (including Assignee Minerals) to the purchasers thereof.

 

Section 4.04 Processing . Assignor may, or may by contract cause a Third Person to, dehydrate, separate, treat, compress or otherwise process Assignor’s Net Share of Minerals (including Assignee Minerals) and may commit any of the Subject Interests (including the Royalty Interest attributable thereto) to an agreement for processing Minerals (pursuant to which, for example, the plant owner or operator receives a portion of the Subject Minerals or plant products therefrom or proceeds of the sale thereof as a fee for processing), so long as (a) Assignor enters into such processing arrangements in good faith and in accordance with the Reasonably Prudent Operator Standard, and (b) any such processing arrangements entered into with Affiliates of Assignor contain rates and charges that are comparable to the prevailing charges for similar services in the applicable area.  Assignee shall be bound by such arrangements and shall permit Assignor’s Net Share of Minerals (including Assignee Minerals) to be processed by Assignor or its contractor.  Assignee shall not, however, be personally liable for any costs or risks associated with such processing operations, but Assignee shall indirectly suffer the energy content reduction and volume reductions associated with processing through corresponding reductions in the content and volumes of Assignee Minerals.

 

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ARTICLE V.
PAYMENT

 

Section 5.01 Obligation to Pay.

 

(a)  The Obligation .  After each Computation Period and on or before the Quarterly Payment Date for that Computation Period, Assignor shall tender to Assignee the Assignee Proceeds for the applicable Computation Period, plus , to the extent applicable, (i) all of the proceeds to be paid to Assignee from the sale of Assignee Minerals produced during any prior Computation Periods, to the extent not previously paid to Assignee for such prior Computation Periods, (ii) any damages payable to Assignee under Section 1.05(b) (subject to the right of set-off in Section 1.05(c)) during the most recently completed Computation Period, and (iii) any amounts (including any interest earned thereon) that were previously deposited with a Third Person escrow agent in accordance with Section 5.01(d) and subsequently determined by Assignor to be validly owing to Assignee.  All such amounts shall be transmitted to Assignee by Assignor by means of wire transfer of funds to a bank account specified by Assignee pursuant to written instructions which shall remain in effect until and unless changed by subsequent written notice to Assignor.

 

For purposes of determining the amount of Assignee Proceeds for any Computation Period, if, when calculating Assignee Minerals for any Computation Period, Assignor is unable to determine the precise volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals, then Assignor shall, in good faith and in accordance with the Reasonably Prudent Operator Standard, estimate the volume of such Minerals produced, sold and attributable to Assignor’s Net Share of Minerals.  Assignor shall adjust the calculation of Assignee Proceeds upward or downward, as the case may be, in the next or subsequent Computation Periods to reflect the difference between the estimated volume of Minerals established pursuant to this Section 5.01(a) and the actual volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals in the Computation Period for which such estimate was made.

 

(b)  Quarterly Payment Date . “ Quarterly Payment Date ” for each Computation Period means the forty-fifth (45th) day after the end of such Computation Period or, for the last Computation Period, the forty-fifth (45th) day after the Termination Date.  If such day is not a Business Day, the Quarterly Payment Date shall be the next Business Day.

 

(c)  No Segregated Account . Prior to the Quarterly Payment Date, all amounts received by Assignor from the sale of Assignor’s Net Share of Minerals and Assignee Minerals, as applicable, for any Computation Period shall be held by Assignor in one of its general bank accounts and Assignor will not be required to maintain a segregated account for such funds.

 

(d)  Disputed Proceeds . If Assignor receives any amounts of money from the sale of Assignee Minerals that is subject to controversy or, in the reasonable opinion of Assignor, possible controversy, Assignor shall promptly deposit the money with a Third Person escrow agent in a segregated interest-bearing account.  Such amount shall not be treated as a portion of Assignee Proceeds so long as it remains with such escrow agent, but shall be treated as a portion

 

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of Assignee Proceeds, along with the accrued interest, when received from such escrow agent and paid over to Assignee.

 

Section 5.02 Interest on Past Due Payments.

 

(a)  Obligation to Pay . Any Assignee Proceeds or other amounts of money not paid by Assignor to Assignee when due shall bear, and Assignor will pay, interest at the Prime Interest Rate on the overdue amount commencing on the sixth (6th) day after such due date until such amount is paid.

 

(b)  Definition . “ Prime Interest Rate ” means the lesser of (i) the rate of interest per annum publicly announced from time to time by The Bank of New York Mellon Trust Company, N.A. as its “prime rate” in effect at its principal office in New York City (each change in the “prime rate” to be effective on the date such change is publicly announced), with the understanding that such bank’s “prime rate” may be one of several base rates, may serve as a basis upon which effective rates are from time to time calculated for loans making reference thereto, and may not be the lowest of such bank’s base rates, and (ii) the maximum rate of interest permitted under any applicable Legal Requirement.

 

Section 5.03 Overpayments and Refunds .

 

(a)  Overpayments . If Assignor ever pays Assignee more than the amount of money then due and payable to Assignee under this Conveyance, Assignee shall not be obligated to return the overpayment, but Assignor may at any time thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to the overpayment.

 

(b)  Refunds . If Assignor is ever legally obligated to pay any Third Person, including any Minerals purchaser or Governmental Authority, any refund, interest, penalty or other amount of money, because any payment of Assignee Proceeds received by Assignor for the account of Assignee exceeded, or allegedly exceeded, the amount due or lawful under any applicable contract, Legal Requirement, or other obligation, Assignor may thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to such payment.

 

Section 5.04 Protection of Assignee Proceeds . It is the intent of Assignor and Assignee that Assignee is an “interest owner” with an interest separate and distinct from that of Assignor within the meaning and for the purposes of the Oil and Gas Owners’ Lien Act of 2010, Okla. Stat. tit. 52, § 549.1, et . seq ., and that Assignee is entitled to all the benefits of such Act.

 

ARTICLE VI.
RECORDS AND REPORTS

 

Section 6.01 Books, Records and Accounts.

 

(a)  Obligation to Maintain . Assignor shall maintain true and correct books, records and accounts of (i) all transactions required or permitted by this Conveyance, and (ii) the financial information necessary to effect such transactions, including the financial information needed to calculate each installment of Assignee Proceeds.

 

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(b)  Right of Inspection . Assignee or its representative, at Assignee’s expense, may inspect and copy such books, records and accounts in the offices of Assignor during normal business hours and upon reasonable notice.

 

Section 6.02 Statements.

 

(a)  Quarterly Statements . On each Quarterly Payment Date, Assignor shall deliver to Assignee a statement showing the computation of Assignee Minerals and Assignee Proceeds for the applicable Computation Period.

 

(b)  Annual Statements . On the first Quarterly Payment Date after the end of each calendar year and on the Quarterly Payment Date after the Termination Date, such statement shall also show the computation of Assignee Proceeds for the preceding calendar year or, for the Quarterly Payment Date after the Termination Date, for the portion of the calendar year from 12:01 a.m. Central Time on January 1 of that same year through the Termination Date.

 

(c)  Contents of Statements . Without limiting the generality of the foregoing provisions in this Section 6.02, each statement delivered by Assignor to Assignee pursuant to this Section 6.02 shall state, for the relevant period, (i) the total volumes of Subject Minerals produced from the Subject Lands, (ii) the total volumes of Assignor’s Net Share of Minerals, (iii) the total volumes of Assignee Minerals, (iv) the applicable Sales Price, (v) the Chargeable Costs, (vi) the amount of Assignee Proceeds due and payable for the relevant period, and (vii) the amounts of money, if any, due and payable by any purchaser of the Subject Minerals or Assignee Minerals, the nonpayment of which resulted in a reduction in Assignee Proceeds for the relevant period.

 

Section 6.03 Assignee’s Exceptions to Quarterly Statements . If Assignee takes exception to any item or items included in any quarterly statement required by Section 6.02, Assignee must notify Assignor in writing within sixty (60) days after Assignee’s receipt of such quarterly statement.  Such Notice must set forth in reasonable detail the specific charges complained of and to which exception is taken.  Adjustments shall be made for all complaints and exceptions that are justified.  Notwithstanding anything to the contrary herein, all matters reflected in Assignor’s statements for the preceding calendar year (or portion thereof) that are not objected to by Assignee in the manner provided by this Section 6.03 shall be deemed correct as rendered by Assignor to Assignee.

 

Section 6.04 Other Information.

 

(a)  Disclosure . At Assignee’s request, subject to applicable restrictions on disclosure and transfer of information, Assignor shall give Assignee and its designated representatives reasonable access in Assignor’s office during normal business hours to all title, geological (to the extent not prohibited by any applicable license agreement), Development Well and production data in Assignor’s possession or Assignor’s Affiliates’ possession, relating to operations on the Subject Interests.

 

(b)  Disclaimer of Warranties and Liability . Assignor makes no representations or warranties about the accuracy or completeness of any data, reports, studies or other

 

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information made available to Assignee and shall have no liability to Assignee or any other Person resulting from such data, studies, reports or other information.

 

(c)  No Attribution . Assignee shall not, in any securities filings or reports made by Assignee, attribute to Assignor or to the consulting engineers any reports or studies made available to Assignee, or the contents thereof.

 

(d)  Confidentiality . All information furnished to Assignee and its designated representatives pursuant to this Section 6.04 is confidential and for the sole benefit of Assignee and shall not be disclosed by Assignee or its designated representatives to any other Person, except to the extent that such information (i) is required in any report, statement or testimony submitted to any Governmental Authority having or claiming to have jurisdiction over Assignee or submitted to bank examiners or similar organizations or their successors, (ii) is required in response to any summons or subpoena or in connection with any litigation, (iii) is reasonably believed to be required in order to comply with any applicable Legal Requirement to Assignee, (iv) was publicly available or otherwise known to the recipient at the time of disclosure or (v) subsequently becomes publicly available other than through any act or omission of the recipient; provided , however , that with respect to the disclosures with respect to items (i), (ii) and (iii) above, Assignee will notify Assignor prior to any such disclosure in order to provide Assignor an opportunity to seek to limit any such required disclosure.  In connection with the marketing of the Trust’s assets upon termination of the Trust, Assignee and its designated representatives may, on a confidential basis in accordance with this Section 6.04(d), provide any potential purchaser of such assets with the same information Assignee has access to pursuant to Section 6.04.

 

ARTICLE VII.
NO LIABILITY OF ASSIGNEE

 

Assignee shall not be personally liable or responsible under this Conveyance for any cost, risk, liability or obligation associated in any way with the ownership or operation of the Subject Lands, the Subject Interests, the Development Wells or the Subject Minerals.  The foregoing sentence does not restrict the right of Assignor to deduct Chargeable Costs in calculating the volumes of Assignee Minerals or Assignee Proceeds.

 

ARTICLE VIII.
OPERATIONS

 

Section 8.01 Standards of Conduct . Except as otherwise specifically provided in this Conveyance, Assignor shall (a) operate and maintain the Subject Interests, and (b) make elections under each applicable lease, operating agreement, unit agreement, contract for development and other similar instrument or agreement (including elections concerning abandonment of any Development Well or release of any Subject Interest) in good faith and in accordance with the Reasonably Prudent Operator Standard.

 

Section 8.02 Abandonment of Properties . Nothing in this Conveyance shall obligate Assignor to continue to operate any Development Well or to operate or maintain in force or attempt to maintain in force any Subject Interest when such Development Well or

 

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Subject Interest ceases to produce, or Assignor determines that such Development Well or Subject Interest is not capable of producing Minerals in paying quantities, or that such Development Well or Subject Interest is sufficiently unlikely to be made capable of producing Minerals in paying quantities such that additional operations are unwarranted, all in accordance with Section 8.01 above.  The expiration of a Subject Interest in accordance with the terms and conditions applicable thereto shall not be considered to be a voluntary surrender or abandonment thereof.

 

ARTICLE IX.
POOLING AND UNITIZATION

 

Section 9.01 Pooling of Subject Interests . Certain Subject Interests have been, or may have been, heretofore pooled and unitized for the production of Minerals.  Such Subject Interests are and shall be subject to the terms and provisions of the applicable pooling and unitization agreements and orders, and the Royalty Interest in each pooled or unitized Subject Interest shall apply to and affect only the Minerals produced from such units that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreements and orders.

 

Section 9.02 Pooling and Unitization.

 

(a)  Right to Pool . Assignor has the exclusive executive right and power (as between Assignor and Assignee) to pool or unitize any Subject Interest and to alter, change, amend or terminate any pooling or unitization agreements heretofore or hereafter entered into, as to all or any part of the Subject Lands, as to any one or more of the formations or horizons, and as to any Minerals, upon such terms and provisions as Assignor shall in its sole discretion deem appropriate.

 

(b)  Effect of Pooling . If and whenever through the exercise of such right and power, or pursuant to any Legal Requirement now existing or hereafter enacted or promulgated, any Subject Interest is pooled or unitized in any manner, the Royalty Interest shall apply to and affect only the Minerals production that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreement or order.  It shall not be necessary for Assignee to agree to, consent to, ratify, confirm or adopt any exercise of pooling or unitization of any Subject Interest by Assignor.

 

ARTICLE X.
GOVERNMENT REGULATION

 

Section 10.01 Legal Requirements . Except as provided in Section 10.03, all obligations of Assignor under this Conveyance are, and shall be, subject to all applicable Legal Requirements and the instruments, documents and agreements creating the Subject Interests.

 

Section 10.02 Filings . Assignor shall use its reasonable discretion in making filings for itself and on behalf of Assignee with any Governmental Authority having jurisdiction with respect to matters affecting the Subject Interests, the Subject Lands or the Subject Minerals.

 

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Section 10.03 Superseding Effect. By acceptance of this Conveyance, Assignee agrees, for itself and its successors and assigns, immediate and remote, that the timing of payment, accrual of interest and reporting requirements with respect to the Royalty Interest shall be as provided by the terms of this Conveyance and not as prescribed by the Oklahoma Production Revenue Standards Act, as amended, codified at Title 52, Section 570.1, et seq. of the Oklahoma Statutes (the “ Act ”).  Assignee expressly waives any rights it may have under the Act, including, without limitation, interest on payments related to Assignee Proceeds at the rate provided in Title 52, Section 570.10, et seq. of the Oklahoma Statutes and the reporting requirements provided in Title 52, Section 570.12, et seq. of the Oklahoma Statutes, or any similar Legal Requirement.

 

ARTICLE XI.
ASSIGNMENT AND SALE OF SUBJECT INTERESTS

 

Section 11.01 Assignment by Assignor Subject to Royalty Interest.

 

(a)  Right to Sell . Assignor may not Transfer any interest in the Development Wells, the Subject Interests or any part thereof or any undivided interest therein in violation of Section 11.04.  Subject to Section 11.02 and 11.04, Assignor may from time to time Transfer, mortgage or pledge its interest in the Development Wells, the Subject Interests, or any part thereof or undivided interest therein, if and only if (i) such Transfer, mortgage or pledge is made expressly subject to and burdened with the Royalty Interest and this Conveyance; (ii) solely in connection with a Transfer other than a Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has caused the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer; and (iii) in connection with any Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has used commercially reasonable efforts to cause the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer.  Any assumption and agreement to discharge shall be by appropriate written instrument for the express benefit of and enforceable by Assignee.  For the avoidance of doubt, nothing in this Section 11.01(a) is intended to permit any assignee, purchaser, transferee or grantee to acquire any interest in the Development Wells, the Subject Interests or any part thereof or undivided interest therein without being subject to and burdened with the Royalty Interest and this Conveyance.  Assignee shall not be required to recognize any purported Transfer, mortgage or pledge not made in conformance with this Section 11.01(a) and, notwithstanding any such purported Transfer, mortgage or pledge, Assignor shall remain obligated under this Conveyance just as if such Transfer, mortgage or pledge attempt had not been made and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, any purported Transfer not made in conformance with this Section 11.01(a) shall be void and of no effect.

 

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(b)  Effect of Sale . From and after the actual date of any such Transfer by Assignor made in full compliance with Section 11.01(a) (and only upon such full compliance), Assignor shall be relieved of all obligations, requirements and responsibilities arising under this Conveyance with respect to the Subject Interests Transferred, as the same pertain to Assignee Minerals produced from and after (but not prior to) said date of such Transfer.

 

(c)  Allocation of Consideration . Assignee is not entitled to receive any share of the sales proceeds received by Assignor in any transaction permitted by this Section 11.01.

 

(d)  Separate Interest . Notwithstanding any provision to the contrary in Article IV, effective on the effective date of any Transfer of any Subject Interest made in full compliance with Section 11.01(a), Assignee Minerals and Assignee Proceeds shall thereafter be computed separately with respect to such Subject Interests, and the assignee, buyer, transferee or grantee of such Subject Interests shall thereafter serve as Assignee’s agent and representative under Article IV with respect to such interests and shall pay all corresponding Assignee Proceeds directly to Assignee.

 

Section 11.02 Sale and Assignment of Properties.

 

(a)  Transfer . Subject to Section 11.04, Assignor may from time to time, Transfer the Development Wells, the Subject Interests, or any part thereof or undivided interest therein, free of the Royalty Interest and this Conveyance provided that the aggregate Fair Value of all Royalty Interests assigned with respect to the Assignor Conveyances during any twelve (12) month period shall not exceed $5,000,000.

 

(b)  Payments . In connection with any Transfer pursuant to this Section 11.02, Assignor shall remit to Assignee an amount equal to the Fair Value of the Royalty Interest being assigned.  Assignor shall make such payment to Assignee on the Quarterly Payment Date for the Computation Period in which Assignor receives the payment with respect to any such Transfer of the Subject Interest.

 

(c)  Assignment . In connection with any Transfer provided for in Section 11.02(a), Assignee shall, upon request of Assignor, execute, acknowledge and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that assigns the Royalty Interest in the Development Well and the related Subject Interests and Subject Lands being Transferred, to Assignor, or to one or more assignees, as Assignor may direct.

 

(d)  Effect of Sale . From and after the actual date of any such Transfer by Assignor, Assignor and any assignee, purchaser, transferee or grantee of such Subject Interest shall be relieved of all obligations, requirements and responsibilities arising under the Royalty Interest or this Conveyance with respect to the Development Well or Subject Interests Transferred, except for those that accrued prior to such date.

 

Section 11.03 Farmouts.

 

(a)  Farmout . Assignor may from time to time enter into Farmout Agreements with Third Persons with respect to the Subject Interests.  In the event that Assignor enters into any Farmout Agreement with a Third Person (a “ Farmee ”), (i) the Royalty Interest and this

 

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Conveyance shall only burden Assignor’s retained interest in the Subject Interests after giving effect to any interest in the Subject Interests that the Farmee may earn under such Farmout Agreement, and (ii) only Assignor’s retained interest in the Subject Interest will count towards SandRidge’s obligation to drill Development Wells under the Development Agreement.

 

(b)  Assignment . In connection with Assignor entering into any Farmout Agreement, Assignee shall, upon request of Assignor, execute, acknowledge and deliver to the Farmee a recordable instrument (reasonably acceptable to Assignor) that assigns to the Farmee the Royalty Interest insofar and only insofar as it burdens the Subject Interests being transferred to the Farmee pursuant to such Farmout Agreement; provided , that (i) such assignment shall expressly provide that the Royalty Interest so assigned shall merge with the Subject Interests being transferred to the Farmee and shall not thereafter be subject to or governed by the Conveyance, and (ii) the Royalty Interest shall continue to burden the Subject Interests retained by Assignor.

 

Section 11.04 Transfer of Subject Lands . Assignor will not Transfer any Development Well or any of the Subject Interests comprising a part of the Subject Lands pursuant to Sections 11.01 and 11.02 prior to the Drilling Obligation Completion Date, and in the event of any attempted Transfer in violation of this Section 11.04, Assignor shall remain liable and a party hereto, just as if no Transfer attempt had been made, and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, such attempted Transfer in violation of this Section 11.04 shall be void and of no force or effect.  Assignor expressly states and recognizes that the restrictions on Transfer imposed on Assignor in this Section 11.04 and in Section 11.01(a) are made in reasonable protection of an interest of Assignee created hereunder.

 

Section 11.05 Change in Ownership.

 

(a)  Obligation to Give Notice . No change of ownership or of the right to receive payment of the Royalty Interest, or of any part thereof, however accomplished, shall bind Assignor until notice thereof is furnished to Assignor by the Person making the transfer and the Person claiming the benefit thereof, and then only with respect to payments made after such Notice is furnished.

 

(b)  Notice of Sale . Notice of sale, transfer, conveyance or assignment shall consist of a certified copy of the recorded instrument accomplishing the same.

 

(c)  Notice of Other Changes of Ownership . Notice of change of ownership or of the right to receive payment accomplished in any other manner ( e.g. , by dissolution of Assignee) shall consist of certified copies of recorded documents and complete proceedings legally binding and conclusive of the rights of all Persons.

 

(d)  Effect of Lack of Notice . Until such Notice accompanied by such documentation is furnished to Assignor in the manner provided above, Assignor may, at Assignor’s election, either (i) continue to pay or tender all sums payable on the Royalty Interest in the same manner provided in this Conveyance, precisely as if no such change in interest or

 

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ownership or right to receive payment had occurred, or (ii) suspend payment of Assignee Proceeds without interest until such documentation is furnished.

 

(e)  Effect of Nonconforming Notices . The kinds of Notice provided by this Section 11.05 shall be exclusive, and no other kind, whether actual or constructive, shall bind Assignor.

 

Section 11.06 One Payee . Assignor shall never be obligated to pay Assignee Proceeds to more than one Person.  If more than one Person is ever entitled to receive payment of any part of Assignee Proceeds, Assignor may suspend payments of all Assignee Proceeds until the concurrent owners or claimants of the Royalty Interest or the right to receive payment of Assignee Proceeds appoint one Person in writing to receive all payments of Assignee Proceeds on their behalf.  Assignor may thereafter conclusively rely upon the authority of that Person to receive payments of Assignee Proceeds and shall be under no further duty to inquire into the authority or performance of such Person.

 

Section 11.07 Rights of Mortgagee . If Assignee executes a mortgage or deed of trust covering all or part of the Royalty Interest, the mortgagees or trustees therein named or the holders of any obligation secured thereby shall be entitled, to the extent that such mortgage or deed of trust so provides, to exercise the rights, remedies, powers and privileges conferred upon Assignee by this Conveyance and to give or withhold all consents required to be obtained from Assignee.  This Section 11.07 shall not be deemed or construed to impose upon Assignor any obligation or liability undertaken by Assignee under such mortgage or deed of trust or under the obligation secured thereby.

 

Section 11.08 No Drainage . Subsequent to the Drilling Obligation Completion Date, neither Assignor nor any of its Affiliates shall drill any Mineral well that will have a perforation or a stimulation site in the Target Formation that will be within six hundred sixty feet (660’) of any perforation or stimulation site of any Development Well which produces oil or gas from the Target Formation.

 

ARTICLE XII.
FORCE MAJEURE

 

Section 12.01 Nonperformance . Assignor shall not be responsible to Assignee for any loss or damage to Assignee resulting from any delay in performing or failure to perform any obligation under this Conveyance (other than Assignor’s obligation to make payments of Assignee Proceeds to Assignee) to the extent such failure or delay is caused by Force Majeure.

 

Section 12.02 Force Majeure . “ Force Majeure ” means any of the following, to the extent they are not caused solely by the breach by Assignor of its duty to perform certain obligations under this Conveyance in accordance with the Reasonably Prudent Operator Standard:

 

(a) act of God, fire, lightning, landslide, earthquake, storm, hurricane, hurricane warning, flood, high water, washout, tidal wave or explosion;

 

22



 

(b) strike, lockout, or other similar industrial disturbance, act of the public enemy, war, military operation, blockade, insurrection, riot, epidemic, arrest or restraint of Governmental Authority or people, or national emergency;

 

(c) the inability of Assignor, or any Affiliate of Assignor, to acquire, or the delay on the part of any Third Person (other than an Affiliate of Assignor) in acquiring, materials, supplies, machinery, equipment, servitudes, right-of-way grants, easements, permits, licenses, approvals or authorizations necessary to enable such Party to perform hereunder;

 

(d) any breakage of or accident to machinery, equipment or lines of pipe, the repair, maintenance, improvement, replacement, alteration to a plant or line of pipe or related facility, the testing of machinery, equipment or line of pipe, or the freezing of a line of pipe;

 

(e) any Legal Requirement or the affected Party’s compliance therewith; or

 

(f) any other cause, whether similar or dissimilar to the causes enumerated in (a) through (e) above, not reasonably within the control of Assignor.

 

Section 12.03 Force Majeure Notice . Assignor will give Assignee a Notice of each Force Majeure as soon as reasonably practicable after the occurrence of such Force Majeure.

 

Section 12.04 Remedy . Assignor will use its reasonable efforts to remedy each Force Majeure and resume full performance under this Conveyance as soon as reasonably practicable, except that the settlement of strikes, lockouts or other labor disputes shall be entirely within the discretion of Assignor.

 

ARTICLE XIII.
NOTICE

 

Section 13.01 Written Notice . Except as otherwise provided by this Conveyance, each Notice shall be in writing.

 

Section 13.02 Methods of Giving Notice . Notice may be given by any reasonable means, including email, telecopier, hand delivery, overnight courier or U.S. mail.

 

Section 13.03 Charges . All Notices shall be properly addressed to the recipient, with all postage and other charges being paid by the Party giving Notice.

 

Section 13.04 Effective Date. Notice shall be effective when actually received by the Party being notified; provided , however , that Notices given by email or telecopy on any day other than a Business Day, or on a Business Day but after 5:00 p.m. local time at the location of the Party being notified, shall be deemed received on the next Business Day, unless receipt is acknowledged prior to the next Business Day.

 

Section 13.05 Addresses . The addresses of the Parties for purposes of Notice are the addresses in the introductory paragraph to this Conveyance.

 

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Section 13.06 Change of Address . Either Party may change its address to another address within the continental United States by giving ten (10) days’ Notice to the other Party.

 

ARTICLE XIV.
OTHER PROVISIONS

 

Section 14.01 Successors and Assigns . The provisions and conditions contained in this Conveyance shall run with the land and the respective interests of Assignor and Assignee in, or related to, the Subject Lands, and, subject to the limitation and restrictions on the assignment or delegation by the Parties of their rights and interests under this Conveyance, this Conveyance binds and inures to the benefit of Assignor, Assignee and their respective successors, assigns and legal representatives.

 

Section 14.02 Governing Law . THIS CONVEYANCE SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF OKLAHOMA WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

Section 14.03 Construction of Conveyance . In construing this Conveyance, the following principles shall be followed:

 

(a) no consideration shall be given to the captions of the articles, sections, subsections or clauses, which are inserted for convenience in locating the provisions of this Conveyance and not as an aid in its construction;

 

(b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Conveyance;

 

(c) the word “includes” and its syntactical variants mean “includes, but is not limited to” and corresponding syntactical variant expressions;

 

(d) a defined term has its defined meaning throughout this Conveyance, regardless of whether it appears before or after the place in this Conveyance where it is defined;

 

(e) the plural shall be deemed to include the singular, and vice versa, unless the context otherwise requires; and

 

(f) each exhibit, attachment and schedule to this Conveyance is a part of this Conveyance, but if there is any conflict or inconsistency between the main body of this Conveyance and any exhibit, attachment or schedule, the provisions of the main body of this Conveyance shall prevail.

 

Section 14.04 No Waiver . Failure of either Party to require performance of any provision of this Conveyance shall not affect either Party’s right to require full performance thereof at any time thereafter, and the waiver by either Party of a breach of any provision hereof

 

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shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.

 

Section 14.05 Relationship of Parties . This Conveyance does not create a partnership, mining partnership, joint venture or relationship of trust or agency (except with respect to Assignor’s agency relationship with respect to those matters set forth in Articles IV and V above) between the Parties.

 

Section 14.06 Further Assurances . Each Party shall execute, acknowledge and deliver to the other Party all additional instruments and other documents reasonably required to describe more specifically any interests subject hereto, to vest more fully in Assignee the Royalty Interest conveyed (or intended to be conveyed) by this Conveyance, or to evidence or effect any transaction contemplated by this Conveyance.  Assignor shall also execute and deliver all additional instruments and other documents reasonably required to transfer interests in state, federal or Indian lease interests in compliance with applicable Legal Requirements or agreements.  Upon expiration of the Term, Assignee shall, on request, execute, acknowledge and deliver to Assignor sufficient numbers of recordable instruments releasing all of the Subject Lands from this Conveyance.

 

Section 14.07 The 12:01 A.M. Convention . Except as otherwise provided in this Conveyance, each calendar day, month, quarter and year shall be deemed to begin at 12:01 a.m. Central Time on the stated day or on the first day of the stated month, quarter or year, and to end at 12:00 a.m. Central Time on the next day or on first day of the next month, quarter or year, respectively.

 

Section 14.08 Counterpart Execution . This Conveyance may be executed in any number of counterparts, all of which are identical except that to facilitate filing and recording, counterparts to be filed and recorded in the appropriate records of each county may have included in Exhibit A hereto only those portions of Exhibit A hereto that contain descriptions of the lands and leases located in said county.  Every counterpart of this Conveyance shall be deemed to be an original for all purposes, and all such counterparts together shall constitute one and the same instrument.  An executed counterpart of this Conveyance containing the full text to the entire Exhibits and Annexes is recorded in the real property records of Alfalfa County, Oklahoma.  Counterparts of this Conveyance with all portions of Exhibit A hereto will be kept at the offices of Assignor and Assignee at the addresses indicated in the introductory paragraph to this Conveyance.  As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf shall be deemed an original hereto.

 

Section 14.09 Present and Absolute Conveyance . It is the express intention of Assignor and Assignee that the Royalty Interest is, and shall be construed for all purposes as, a present, fully-vested and absolute conveyance.

 

Section 14.10 Tax Treatment. Notwithstanding that this Royalty Interest may be a real property interest for purposes of applicable state law, the Parties agree to treat this Royalty Interest as a mortgage loan for federal income tax purposes pursuant to Section 636(a) of the Code (and for the purposes of any similarly calculated state income or franchise taxes) but for no other purposes, and the Parties agree to file all federal income tax and state income tax and

 

25



 

franchise tax returns consistent with this Section 14.10.  For avoidance of doubt, the Parties acknowledge that Assignor (and not Assignee) is entitled to all tax credits and other applicable tax attributes attributable to this Royalty Interest and the production of Minerals attributable thereto.

 

Section 14.11 Severability . In case any provision, covenant or obligation under this Conveyance is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions, covenants or obligations of this Conveyance are declared to be severable and not in any way affected or impaired thereby.

 

[ Remainder of page intentionally left blank. ]

 

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IN WITNESS WHEREOF, each Party has caused this Conveyance to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Conveyance, to be effective as of the Effective Time.

 

 

 

SANDRIDGE EXPLORATION AND PRODUCTION, LLC

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name: Matthew K. Grubb

 

 

Title:   President and Chief Operating Officer

 

Signature Page to Term Overriding Royalty Interest

Conveyance (Oklahoma) (Development)

 



 

 

MISTMADA OIL COMPANY, INC.

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name: Matthew K. Grubb

 

 

Title:   President and Chief Operating Officer

 

Signature Page to Term Overriding Royalty Interest

Conveyance (Oklahoma) (Development)

 



 

STATE OF OKLAHOMA

§

 

 

 

 

 

§

 

 

 

COUNTY OF OKLAHOMA

§

 

 

 

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb, President and Chief Operating Officer of SandRidge Exploration and Production, LLC, a Delaware limited liability company, on behalf of said limited liability company.

 

 

/s/ Janis L. Roberts

 

NOTARY PUBLIC,

 

 

 

State of Oklahoma

 

 

 

Janis L. Roberts

 

(printed name)

 

 

My commission expires: May 22, 2012

 

 

 

 

 

SEAL or STAMP

 

 

 

Acknowledgment Page to Term Overriding Royalty Interest

Conveyance (Oklahoma) (Development)

 



 

STATE OF OKLAHOMA

§

 

 

 

 

 

§

 

 

 

COUNTY OF OKLAHOMA

§

 

 

 

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb as President and Chief Operating Officer of Mistmada Oil Company, Inc., an Oklahoma corporation, on behalf of said corporation.

 

 

/s/ Janis L. Roberts

 

NOTARY PUBLIC,

 

 

 

State of Oklahoma

 

 

 

Janis L. Roberts

 

(printed name)

 

 

My commission expires: May 22, 2012

 

 

 

 

 

SEAL or STAMP

 

 

 

Acknowledgment Page to Term Overriding Royalty Interest

Conveyance (Oklahoma) (Development)

 



 

Exhibit A

 

(Subject Lands)

 

See attached.

 



 

Exhibit B

 

(Excluded Assets)

 

None.

 


Exhibit 10.5

 

Execution Copy

 

PERPETUAL OVERRIDING ROYALTY INTEREST

CONVEYANCE (KANSAS) (PDP)

 

This PERPETUAL OVERRIDING ROYALTY INTEREST CONVEYANCE (KANSAS) (PDP) (this “ Conveyance ”) from SandRidge Exploration and Production, LLC, a Delaware limited liability company, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ Assignor ”), to SandRidge Mississippian Trust II, a statutory trust formed under the laws of the State of Delaware, with offices at c/o The Bank of New York Mellon Trust Company, N.A., 919 Congress Avenue, Suite 500, Austin, Texas 78701 (“ Assignee ”), is delivered to be effective as of the Effective Time.  All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Article II below.

 

ARTICLE I.
CONVEYANCE

 

Section 1.01 The Grant . For and in consideration of good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby BARGAIN, SELL, GRANT, CONVEY, TRANSFER, ASSIGN, SET OVER, and DELIVER unto Assignee, subject to the terms of this Conveyance, as a perpetual overriding royalty interest (the “ Royalty Interest ”), an undivided interest in and to all Minerals that may be produced and saved from the Target Formation underlying the Subject Lands through the wellbores of the Wells, sufficient to cause Assignee to receive the Assignee Minerals.  To the extent any interest conveyed hereunder is created out of a mineral interest, rather than out of an oil and gas leasehold interest, the term “overriding royalty interest” shall be interpreted to mean a non-participating royalty interest with respect to that particular interest, but any such interest shall still be subject to, and shall have the rights and obligations set forth in, this Conveyance.

 

Section 1.02 Non-Operating, Non-Expense Bearing Interest.  The Royalty Interest conveyed hereby is a non-operating, non-expense-bearing overriding royalty interest in and to the Subject Interests, free of all cost, risk and expense of production, operations and marketing.  In no event shall Assignee ever be liable or personally obligated for payment of any cost, expenses or liabilities attributable to the Subject Interests (or any part thereof) or incurred in connection with the production, saving or marketing of Assignee Minerals, subject, however, to Assignor’s right hereinafter provided to deduct Chargeable Costs in determining Assignee Proceeds, which right shall be solely a matter of deduction from the proceeds from the sale of Assignee Minerals and not a personal obligation of Assignee.

 

Section 1.03 Habendum Clause . TO HAVE AND TO HOLD the Royalty Interest, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Assignee, its successors and assigns, subject to terms and provisions of this Conveyance.

 



 

Section 1.04 Warranty.

 

(a)  The Warranty . Assignor warrants to Assignee, its successors and assigns, that the Royalty Interest is free of all Encumbrances created by, through or under Assignor, but not otherwise, except for the Permitted Encumbrances.

 

(b)  Remedies . In the event of a breach of the foregoing warranty, Assignee’s sole remedy shall be to receive payment on each applicable Quarterly Payment Date, out of Assignor’s Net Share of Minerals from other Wells in excess of that subject to the Royalty Interest and the royalty interest created pursuant to the Term PDP Kansas Conveyance (the “ Assignor Retained Minerals ”), subject to offset as provided below and without interest (except such interest payable under this Conveyance on payments made after the applicable due date as described in Section 5.02 below), of an amount equal to the difference between (x) Assignee Proceeds that Assignee would have received with respect to such Well in the applicable Computation Period if such warranty had not been breached, and (y) Assignee Proceeds that Assignee actually received during that Computation Period with respect to that Well, to the extent such difference is attributable to the breach of the warranty, but not to the extent that such difference is attributable to any other cause, and any such amounts of Assignor Retained Minerals shall be treated as Assignee Minerals.

 

(c)  Right of Offset . If any Subject Interest ever proves to be larger as of the Effective Date than the Subject Interest reflected in Exhibit A hereto and if, as a result, Assignee receives a greater amount of Assignee Minerals (or the proceeds from the sale thereof) with respect to that Subject Interest than Assignee would otherwise have received if the Subject Interest had been the size reflected on Exhibit A hereto, then such increased amounts, whenever received by Assignee, may be treated by Assignor as a credit or offset (without interest) against any amounts payable to Assignee under Section 1.04(b).

 

(d)  DISCLAIMER . EXCEPT FOR THE WARRANTIES OF TITLE GIVEN IN SECTION 1.04(a), ASSIGNOR MAKES THIS CONVEYANCE AND ASSIGNS THE ROYALTY INTEREST WITHOUT RECOURSE, COVENANT OR WARRANTY OF TITLE OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY.  ANY COVENANTS OR WARRANTIES IMPLIED BY STATUTE OR LAW BY THE USE HEREIN OF THE WORDS “ GRANT ”, “ CONVEY ” OR OTHER SIMILAR WORDS ARE HEREBY EXPRESSLY DISCLAIMED, WAIVED AND NEGATED.  WITHOUT LIMITING THE GENERALITY OF THE TWO PRECEDING SENTENCES, ASSIGNEE ACKNOWLEDGES THAT ASSIGNOR HAS NOT MADE, AND ASSIGNOR HEREBY EXPRESSLY DISCLAIMS AND NEGATES, AND ASSIGNEE HEREBY EXPRESSLY WAIVES, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO (i) PRODUCTION RATES, RECOMPLETION OPPORTUNITIES, DECLINE RATES OR THE QUALITY, QUANTITY OR VOLUME OF THE RESERVES OF MINERALS, IF ANY, ATTRIBUTABLE TO THE SUBJECT INTERESTS, (ii) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (iii) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iv) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, AND (v) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER ANY APPLICABLE LEGAL REQUIREMENT; IT BEING THE EXPRESS INTENTION OF BOTH

 

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ASSIGNEE AND ASSIGNOR THAT THE ROYALTY INTEREST IS HEREBY ASSIGNED TO ASSIGNEE ON AN “AS IS” AND “WHERE IS” BASIS WITH ALL FAULTS, AND THAT ASSIGNEE HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS ASSIGNEE DEEMS APPROPRIATE.  ASSIGNOR AND ASSIGNEE AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LEGAL REQUIREMENTS TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS SECTION ARE “CONSPICUOUS” DISCLAIMERS FOR THE PURPOSES OF ANY APPLICABLE LEGAL REQUIREMENT.

 

(e)  Substitution of Warranty . This instrument is made with full substitution and subrogation of Assignee in and to all covenants of warranty by Third Persons (other than Affiliates of Assignor) heretofore given or made with respect to the Wells, the Subject Interests or any part thereof or interest therein.

 

ARTICLE II.
DEFINITIONS

 

This Article II defines certain capitalized words, terms, and phrases used in this Conveyance. Certain other capitalized words, terms, and phrases used in this Conveyance are defined elsewhere in this Conveyance.

 

Act ” is defined in Section 10.03.

 

Affiliate ” means, for any specified Person, another Person that controls, is controlled by, or is under common control with, the specified Person.  “ Control ,” in the preceding sentence, refers to the possession by one Person, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.

 

AMI ” means that area described in Exhibit A to the Development Agreement, as such area may be extended or exchanged pursuant to Article III of the Development Agreement.

 

Assignee ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignee.

 

Assignee Minerals ” is defined in Section 3.01.

 

Assignee Proceeds ” is defined in Section 3.03.

 

Assignor ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignor.

 

Assignor Conveyances ” means the Assignor Kansas Conveyances and the Assignor Oklahoma Conveyances.

 

Assignor Kansas Conveyances ” means this Conveyance, the Term PDP Kansas Conveyance, the Long-Term Development Kansas Conveyance and the Term Development Kansas Conveyance.

 

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Assignor Oklahoma Conveyances ” means the Perpetual Development Oklahoma Conveyance, the Term Development Oklahoma Conveyance, the Perpetual PDP Oklahoma Conveyance and the Term PDP Oklahoma Conveyance.

 

Assignor Retained Minerals ” is defined in Section 1.04(b).

 

Assignor’s Net Revenue Interest ” means the interest, stated as a decimal fraction, in Subject Minerals production from a Well attributable to the Subject Interests in that Well, net of Production Burdens.

 

Assignor’s Net Share of Minerals ” means the share of Subject Minerals from each Well that is attributable to Assignor’s Net Revenue Interest in that Well determined prior to giving effect to this Conveyance.

 

Bbl ” means one stock tank barrel, or 42 U.S. gallons liquid volume, in reference to Oil or Gas Liquids.

 

Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the New York Stock Exchange, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.

 

Chargeable Costs ” is defined in Section 3.02(a).

 

Closing Time ” means 12:01 a.m. Central Time, on April 23, 2012.

 

Computation Period ” means each calendar quarter commencing on or after 12:01 a.m., Central Time, on January 1, 2012, with each such calendar quarter being deemed to have begun at 12:01 a.m. Central Time on the first day of such calendar quarter and to have ended at 12:00 a.m. Central Time on the first day of the next calendar quarter.

 

Conveyance ” is defined in the introductory paragraph to this Conveyance.

 

Development Agreement ” means that certain Development Agreement by and among SandRidge, Assignor and Assignee, dated as of even date herewith and effective as of the Effective Time.

 

Drilling Obligation Completion Date ” has the meaning given to such term in the Development Agreement.

 

Effective Time ” means 12:01 a.m., Central Time, on January 1, 2012; provided , however , that with respect to each oil and gas lease described in Exhibit A that has a date after January 1, 2012, the Effective Time, with respect to each such oil and gas lease, shall be 12:01 a.m., Central Time, on the date of such oil and gas lease.

 

Encumbrance ” means any mortgage, lien, security interest, pledge, charge, encumbrance, limitation, preferential right to purchase, consent to assignment, irregularity, burden or defect.

 

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Excess Costs ” means, in any Computation Period, the excess of (x) Chargeable Costs associated with Assignee Minerals for that Computation Period over (y) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals (with the amount in clause (y) calculated as provided in Section 3.03(a) hereof).  Excess Costs shall bear interest at the Prime Interest Rate from the end of the Computation Period in which such costs were incurred to the date that Assignor recovers such amounts from Assignee Proceeds.

 

Excluded Assets ” means (a) those oil and gas wells that are the subject of the Term Development Kansas Conveyance and the Long-Term Development Kansas Conveyance, and (b) those oil and gas wells that are described in Exhibit B hereto.

 

Fair Value ” means, with respect to any portion of the Royalty Interest to be assigned pursuant to Section 11.02 in connection with a Transfer of any Well or Subject Interests, an amount of net proceeds that could reasonably be expected to be obtained from the sale of such portion of the Royalty Interest to a party that is not an Affiliate of either Assignor or Assignee on an arms’-length negotiated basis, taking into account relevant market conditions and factors existing at the time of any such proposed Transfer, such net proceeds to be determined by deducting Assignee’s proportionate share of sales costs, commissions and brokerage fees, if any (based on the ratio of (i) the fair market value of the portion of the Royalty Interest being assigned to (ii) the fair market value of the Wells and Subject Interests being Transferred (including the value of the Royalty Interest being assigned)).

 

Farmout Agreements ” means any farmout agreement, participation agreement, exploration agreement, development agreement or any similar agreement.

 

Force Majeure ” is defined in Section 12.02.

 

Gas ” means natural gas and all other gaseous hydrocarbons or minerals, including helium, but specifically excluding any Gas Liquids.

 

Gas Liquids ” means those natural gas liquids and other liquid similar hydrocarbons, including ethane, propane, butane and natural gasoline, and mixtures thereof, that are removed from a gas stream by the liquids extraction process of any field facility or gas processing plant and delivered by the facility or plant as natural gas liquids.

 

Governmental Authority ” means the United States of America, any state, commonwealth, territory, or possession thereof, and any political subdivision of any of the foregoing, including courts, departments, commissions, boards, bureaus, agencies and other instrumentalities.

 

Legal Requirement ” means any law, statute, ordinance, decree, requirement, order, judgment, rule, or regulation of, including the terms of any license or permit issued by, any Governmental Authority.

 

Long-Term Development Kansas Conveyance ” means that certain Long-Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

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Mcf ” means one thousand cubic feet of Gas, measured and expressed at the same temperature, pressure, and other conditions of measurement (a) provided in any contract for the purchase of Gas from the Subject Interests or, (b) if no such contract exists, provided by applicable state law for purposes of reporting production to Governmental Authorities.

 

Mineral(s) ” means Oil, Gas and Gas Liquids.

 

MMBtu ” means one million British thermal units.

 

Mortgages ” has the meaning given such term in the Development Agreement.

 

Non-Affiliate ” means, for any specified Person, any other Person that is not an Affiliate of the specified Person.

 

Notice ” means any notice, advice, invoice, demand or other communication required or permitted by this Conveyance.

 

Oil ” means crude oil, condensate and other liquid hydrocarbons recovered by field equipment or facilities, excluding Gas Liquids.

 

Party ,” when capitalized, refers to Assignor or Assignee. “ Parties ,” when capitalized, refers to Assignor and Assignee.

 

Permitted Encumbrances ” means:

 

(a) the Production Burdens;

 

(b) contractual obligations arising under operating agreements, Farmout Agreements, production sales contracts, leases, assignments and other similar agreements that may affect the Subject Interests;

 

(c) pooling and unitization agreements, declarations, orders or Legal Requirements to secure payment of amounts not yet delinquent;

 

(d) liens and security interests that arise in the normal course of operations, such as liens for unpaid taxes, statutory liens securing unpaid suppliers and contractors, and contractual liens under operating agreements, in any case, that are not yet delinquent or, if delinquent, are being contested in good faith in the normal course of business;

 

(e) conventional rights of reassignment that obligate Assignor to reassign all or part of any Subject Interest to a Third Person if Assignor intends to release or abandon such interest before the expiration of the primary term or other termination of such interest;

 

(f) easements, rights-of-way, servitudes, permits, surface leases, surface use restrictions and other surface uses and impediments on, over or in respect of the Subject Interests that are not such as to interfere materially with the operation, value or use of the Subject Interests;

 

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(g) rights reserved to or vested in any Governmental Authority to control or regulate any Subject Interests in any manner, and all applicable Legal Requirements;

 

(h) the terms of the instruments creating the Subject Interests and Subject Lands; and

 

(i) the Mortgages;

 

provided , that such aforementioned encumbrances are of the type and nature customary in the oil and gas industry, and provided , further , that such aforementioned encumbrances do not, alone or in the aggregate, materially and adversely affect the operation, value or use of any Subject Interests, and all to the extent, and for so long as, such Permitted Encumbrances are otherwise valid and enforceable against the Subject Interests, without recognizing, expressly or by implication, any rights or interests in any Third Person or Governmental Authority that such Third Person or Governmental Authority does not otherwise lawfully possess.

 

Perpetual Development Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (Development) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Perpetual PDP Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Person ” means any natural person, corporation, partnership, trust, estate, or other entity, organization or association.

 

Post Production Cost Charge ” is defined in Section 3.02(b).

 

Prime Interest Rate ” is defined in Section 5.02(b).

 

Production Burdens ” means, with respect to any Subject Lands, Subject Interests or Subject Minerals, all royalty interests, overriding royalty interests, production payments, net profits interests and other similar interests that constitute a burden on, are measured by, or are payable out of the production of Minerals or the proceeds realized from the sale or other disposition thereof.

 

Quarterly Payment Date ” is defined in Section 5.01(b).

 

Reasonably Prudent Operator Standard ” means the standard of conduct of a reasonably prudent oil and gas operator in the AMI under the same or similar circumstances, acting with respect to its own property and disregarding the existence of the Royalty Interest as a burden on such property.

 

Royalty Interest ” is defined in Section 1.01.

 

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Sales Price ” means the price received by Assignor for Assignee Minerals determined in accordance with the following provisions:

 

(a) “sale” refers to any sale, exchange or other disposition of Assignee Minerals for value, the value of such Minerals that is exchanged or otherwise disposed of for valuable consideration being the sales price that Assignor receives for any such Minerals sold pursuant to Section 4.01 for any such Minerals;

 

(b) amounts of money not paid to Assignor when due by any purchaser of Assignee Minerals (for example, Taxes or other amounts withheld or deducted by any such purchaser) shall not be included within the Sales Price until actually received by, or credited to the account of, Assignor;

 

(c) advance payments and prepayments for future deliveries of Assignee Minerals shall be included within the Sales Price, without interest, when that volume of Minerals subject to the advance payments or prepayments is actually produced;

 

(d) loan proceeds received by Assignor shall not be treated as a component of the applicable Sales Price; and

 

(e) if a controversy or possible controversy exists, whether by reason of any statute, order, decree, rule, regulation, contract or otherwise, between Assignor and any purchaser of Assignee Minerals or any other Person, about the correct Sales Price of any Assignee Minerals, about deductions from the Sales Price, about Assignor’s right to receive the proceeds of any sale of Assignee Minerals, or about any other matter, then monies withheld by the purchaser or deposited by it with an escrow agent or if Assignor receives any monies and promptly deposits such monies with a Third Person escrow agent as a result of such controversy, such monies shall not be included within the Sales Price until received by or returned to Assignor, as applicable.

 

SandRidge ” means SandRidge Energy, Inc., a Delaware corporation.

 

SandRidge Sub ” means Mistmada Oil Company, Inc., an Oklahoma corporation.

 

Subject Interests ” means Assignor’s undivided interests in the Subject Lands as described on Exhibit A hereto, whether as lessee under leases, as an owner of the Subject Minerals (or the right to extract such Minerals) or otherwise, by virtue of which undivided interests Assignor has the right to conduct exploration, drilling, development and Mineral production operations on the Subject Lands, or to cause such operations to be conducted, or to participate in such operations by paying and bearing all or any part of the costs, risks and liabilities of such operations, to drill, test, complete, equip, operate and produce wells to exploit the Minerals.  The “Subject Interests” (a) may be owned by Assignor pursuant to leases, deeds, operating, pooling or unitization agreements, orders or any other instruments, agreements or documents, recorded or unrecorded, (b) include any and all extensions or renewals of leases covering the Subject Lands (or any portion thereof) obtained by Assignor, or any Affiliate thereof, within six (6) months after the expiration or termination of any such lease, and (c) are subject to the Permitted Encumbrances.  For the avoidance of doubt, the “Subject Interests” do not include:  (i) Assignor’s interests in the Excluded Assets; (ii) Assignor’s rights to substances

 

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other than Minerals; (iii) Assignor’s rights to Minerals (other than Assignee Minerals) under contracts for the purchase, sale, transportation, storage, processing or other handling or disposition of Minerals; (iv) Assignor’s interests in, or rights to Minerals (other than Assignee Minerals) held in pipelines, gathering systems, storage facilities, processing facilities or other equipment or facilities; or (v) any additional or enlarged interests in the Wells, Subject Lands or Subject Minerals acquired by Assignor after the Closing Time, except (1) to the extent any such additional or enlarged interest becomes a part of the Subject Interests by amendment to this Conveyance pursuant to Section 3.01 or 3.02 of the Development Agreement, (2) as may result from the operation of the terms of the instruments creating the Subject Interests, or (3) as may be reflected in extensions and renewals covered by the preceding sentence.

 

Subject Lands ” means the lands subject to or covered by the oil and gas leases described in Exhibit A hereto, insofar and only insofar as they cover the Target Formation, subject to the exceptions, exclusions and reservations set forth on such Exhibit A hereto.

 

Subject Minerals ” means all Minerals in and under, and that may be produced, saved and sold from a Well, from and after the Effective Time, insofar and only insofar as such Minerals are produced from the Target Formation, subject to the following exclusions:  Minerals that are (a) lost in the production, gathering or marketing of Minerals; (b) used (i) in conformity with ordinary and prudent operations on the Subject Lands, including drilling and production operations with respect to a Well or (ii) in connection with operations (whether on or off the Subject Lands) for processing or compressing the Subject Minerals; (c) taken by a Third Person to recover costs, or some multiple of costs, paid or incurred by that Third Person under any operating agreement, unit agreement or other agreement in connection with nonconsent operations conducted (or participated in) by that Third Person; and (d) retained by a Third Person for gathering, transportation, processing or marketing services related to the Subject Minerals in lieu of or in addition to cash payment for such services, to the extent such agreement is permitted under this Conveyance.

 

Target Formation ” means (i) with respect to Barber County, Kansas, the “Target Formation” being defined as being the interval between the base of the Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4744’ and the Devonian-aged Chattanooga Shale or its stratigraphic equivalent at a depth of 5096’ in the SandRidge Energy Stephanie SWD 1-3 located in 3-35S-10W (API No. 15007237990000); (ii) with respect to Comanche County, Kansas, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,511’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 6,786’ in the Sho-Bar #1-29 Wayne located in section 29, Township 34 South, Range 20 West (API No. 15033213800000); (iii) with respect to Harper County, Kansas, the “Target Formation” being defined as being the interval between the base of the Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4800’ and the Devonian-aged Chattanooga Shale or its stratigraphic equivalent at a depth of 5096’ in the SandRidge Energy Shea SWD 1-17 located in 17-35S-7W (API No. 15077217810000); and (iv) with respect to Sumner County, Kansas, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Red Fork Zone or its stratigraphic equivalent at a depth of 4,660’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,112’ in the Quinton Little

 

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Company #1-18 Wolff located in section 18, Township 35 South, Range 4 West (API No. 15191201870000).

 

Taxes ” is defined in Section 3.02(c).

 

Term Development Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term Development Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (Development) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Third Person ” means a Person other than Assignor, Assignee or Trustee.

 

Transfer ” including its syntactical variants, means any assignment, sale, transfer, conveyance or disposition of any property; provided , that Transfer as used herein does not include the granting of a mortgage on or security interest in Assignor’s interest in any property, including the Wells, the Subject Interests and/or the Subject Lands.

 

Trustee ” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America with its principal place of business in New York, New York, as trustee, acting not in its individual capacity but solely as trustee of Assignee.

 

Well ” means the borehole of each Mineral well more particularly described in Exhibit C hereto.

 

ARTICLE III.
CALCULATION OF ASSIGNEE MINERALS

 

Section 3.01 Definition . “ Assignee Minerals ” is that volume of Minerals with respect to each Well calculated in accordance with the following formula: Forty Percent (40%) X (Assignor’s Net Share of Minerals).

 

Section 3.02 Chargeable Costs.

 

(a)  Definition . For each Computation Period, “ Chargeable Costs ” means the sum of (i) the Post Production Cost Charge, plus (ii) Excess Costs from prior Computation Periods, plus (iii) Taxes incurred, accrued or paid by Assignor; provided, that such costs are actually paid

 

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by Assignor during the relevant Computation Period or paid by Assignor during a prior Computation Period and not included in any prior Computation Period’s Chargeable Costs.  For the avoidance of doubt, all costs associated with, incurred or paid in connection with the drilling, testing, completing and equipping for production of the Wells shall be borne solely by Assignor and shall not be included as Chargeable Costs.

 

(b)  Post Production Cost Charge . “ Post Production Cost Charge ” means those costs incurred by Assignor (including internal costs and Third Person costs) to gather, store, transport, compress, process, treat, dehydrate and market, as applicable, the Subject Minerals, including any costs as may be required to deliver such Minerals to market; provided , that any costs charged by Assignor and its Affiliates as part of the Post Production Cost Charge shall not materially exceed the costs prevailing in the area where the Subject Minerals are being produced for similar services; and provided , further , that with respect to marketing costs, only Non-Affiliate marketing fees and costs shall be included, and marketing costs of Assignor and its Affiliates with respect to any Subject Minerals will be specifically excluded from the Post Production Cost Charge.  Any costs, fees or expenses that are properly charged or allocated to Assignee Minerals pursuant to another provision of this Conveyance (including, as provided for in the definition of Subject Minerals) shall not be included as part of the Post Production Cost Charge.

 

(c)  Taxes . “ Taxes ” means general property, ad valorem, production, severance, sales, windfall profit, excise and other taxes, except income taxes, assessed or levied on or in connection with the Subject Interests, the Royalty Interest, this Conveyance, production of Subject Minerals, Assignor’s Net Share of Minerals, Assignee Minerals (or the proceeds from the sale thereof) or facilities or equipment on the Subject Lands that are used for the production, dehydration, treatment, processing, gathering or transportation of Subject Minerals, or against Assignor as owner of the Subject Interests or paid by Assignor on behalf of Assignee as owner of the Royalty Interest.

 

(d)  Operating and Drilling Costs . For the avoidance of doubt, all costs associated with or paid or incurred in connection with the drilling, testing, completing, developing and operating the Wells or otherwise incurred in connection with the ownership or operation of the Subject Interests other than Taxes and Post Production Cost Charges shall be borne solely by Assignor and shall not be included as Chargeable Costs, and Assignor may use any Subject Minerals in such operations without any duty to account to Assignee.

 

Section 3.03 Assignee Proceeds . “ Assignee Proceeds ” means, for any Computation Period, (a) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals, with the amount of such proceeds being determined by multiplying (i) the volume of Assignee Minerals produced (expressed (A) for Gas, in Mcf or MMBtu, (B) for Gas Liquids, in Bbls and (C) for Oil, in Bbls) by (ii) the relevant Sales Price (expressed (A) for Gas, on a per Mcf or MMBtu basis, (B) for Gas Liquids, on a per Bbl basis and (C) for Oil, on a per Bbl basis), less (b) the Chargeable Costs associated with such Assignee Minerals.

 

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ARTICLE IV.
MARKETING OF ASSIGNEE MINERALS

 

Section 4.01 Rights and Duties Regarding Sale of Assignee Minerals . Assignor shall market or shall cause to be marketed Assignor’s Net Share of Minerals (including Assignee Minerals) in good faith and in accordance with the Reasonably Prudent Operator Standard and Section 4.02(d).  Assignor shall use its reasonable efforts in connection with any sale of Assignor’s Net Share of Minerals (including Assignee Minerals) to obtain, as soon as reasonably practicable, full payment for such Minerals; provided , however , that it shall not be considered a breach of Assignor’s marketing duty or standard of conduct for Assignor to market such Minerals to an Affiliate of Assignor, so long as Assignor does not market such Minerals at a volume-weighted average price lower than the volume-weighted average price upon which Assignor pays royalties to the owners of the other royalty interests in the Subject Minerals, save and excepting Chargeable Costs provided for in Article III hereof.

 

Section 4.02 Assignee’s Agent and Representative.

 

(a)  Appointment . Assignee appoints Assignor as Assignee’s agent and representative to market and deliver or cause to be marketed and delivered all Assignee Minerals and to collect and receive all payments therefrom under any Minerals purchase agreement or contract without deduction (except to the extent Chargeable Costs are deducted for any Computation Period).  The appointment of Assignor as Assignee’s agent and representative for such purpose is a material item of consideration to the Parties in connection with the execution and delivery of this Conveyance.  Assignee may not remove Assignor from office as Assignee’s agent and representative, except for cause upon a material breach by Assignor of its duties to Assignee under this Conveyance.

 

(b)  Duties and Powers . As Assignee’s agent and representative, Assignor shall receive all payments for the sale of Assignee Minerals and account to Assignee, receive and make all communications with the purchaser of such Minerals, and otherwise act and speak for Assignee in connection with the sale of Assignee Minerals.  Third Persons may rely conclusively on the authority of Assignor to market Assignee Minerals, and with respect to Third Persons only, Assignee shall be conclusively bound by the acts of Assignor in connection with the sale of Assignee Minerals.  It shall not be necessary for Assignee to join Assignor in the execution of any division order, transfer order or other instrument, agreement or document relating to the sale of Assignee Minerals.  Third Persons may pay all Assignee Proceeds for the sale of such Minerals directly to Assignor, without the necessity of any joinder by or consent of Assignee or any inquiry into the use or disposition of such proceeds by Assignor.  In no event, however, shall the authority granted in this Section 4.02 or elsewhere in this Conveyance relieve Assignor of any liability for breach of this Conveyance.

 

(c)  Prohibited Acts . Assignor may not act for or bind Assignee on any matter, except the marketing and delivery of Assignee Minerals under this Article IV.

 

(d)  Standard of Conduct . In exercising its powers and performing its duties as Assignee’s agent and representative, Assignor shall act in good faith and in accordance with the Reasonably Prudent Operator Standard.  It shall not be a violation of such standard of conduct for Assignor (i) to sell Assignor’s Net Share of Minerals or Assignee Minerals to an Affiliate pursuant to any purchase agreement or contract, or (ii) to delegate some or all of Assignor’s duties as Assignee’s agent and representative to its Affiliates (so long as such Affiliates perform

 

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in good faith and in accordance with the Reasonably Prudent Operator Standard), with Assignor remaining liable to Assignee for the performance of such duties.

 

(e)  Termination of Authority . Assignor may not resign as Assignee’s agent and representative without the prior written consent of Assignee, except that Assignor may resign as Assignee’s agent and representative without such consent with respect to any Subject Interests assigned, sold, transferred or conveyed by Assignor in accordance with the terms of this Conveyance.  If such sale is made subject to the Royalty Interest, Assignor must cause the purchaser to assume the duties of Assignee’s agent and representative with respect to the Subject Interests acquired by that purchaser and to be bound by the provisions of this Article IV.

 

Section 4.03 Delivery of Subject Minerals . Assignor (whether or not it is serving as Assignee’s agent and representative) shall deliver or cause to be delivered Assignor’s Net Share of Minerals (including Assignee Minerals) to the purchasers thereof.

 

Section 4.04 Processing . Assignor may, or may by contract cause a Third Person to, dehydrate, separate, treat, compress or otherwise process Assignor’s Net Share of Minerals (including Assignee Minerals) and may commit any of the Subject Interests (including the Royalty Interest attributable thereto) to an agreement for processing Minerals (pursuant to which, for example, the plant owner or operator receives a portion of the Subject Minerals or plant products therefrom or proceeds of the sale thereof as a fee for processing), so long as (a) Assignor enters into such processing arrangements in good faith and in accordance with the Reasonably Prudent Operator Standard, and (b) any such processing arrangements entered into with Affiliates of Assignor contain rates and charges that are comparable to the prevailing charges for similar services in the applicable area.  Assignee shall be bound by such arrangements and shall permit Assignor’s Net Share of Minerals (including Assignee Minerals) to be processed by Assignor or its contractor.  Assignee shall not, however, be personally liable for any costs or risks associated with such processing operations, but Assignee shall indirectly suffer the energy content reduction and volume reductions associated with processing through corresponding reductions in the content and volumes of Assignee Minerals.

 

ARTICLE V.
PAYMENT

 

Section 5.01 Obligation to Pay.

 

(a)  The Obligation .  After each Computation Period and on or before the Quarterly Payment Date for that Computation Period, Assignor shall tender to Assignee the Assignee Proceeds for the applicable Computation Period, plus , to the extent applicable, (i) all of the proceeds to be paid to Assignee from the sale of Assignee Minerals produced during any prior Computation Periods, to the extent not previously paid to Assignee for such prior Computation Periods, (ii) any damages payable to Assignee under Section 1.04(b) (subject to the right of set-off in Section 1.04(c)) during the most recently completed Computation Period, and (iii) any amounts (including any interest earned thereon) that were previously deposited with a Third Person escrow agent in accordance with Section 5.01(d) and subsequently determined by Assignor to be validly owing to Assignee.  All such amounts shall be transmitted to Assignee by Assignor by means of wire transfer of funds to a bank account specified by Assignee pursuant to

 

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written instructions which shall remain in effect until and unless changed by subsequent written notice to Assignor.

 

For purposes of determining the amount of Assignee Proceeds for any Computation Period, if, when calculating Assignee Minerals for any Computation Period, Assignor is unable to determine the precise volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals, then Assignor shall, in good faith and in accordance with the Reasonably Prudent Operator Standard, estimate the volume of such Minerals produced, sold and attributable to Assignor’s Net Share of Minerals.  Assignor shall adjust the calculation of Assignee Proceeds upward or downward, as the case may be, in the next or subsequent Computation Periods to reflect the difference between the estimated volume of Minerals established pursuant to this Section 5.01(a) and the actual volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals in the Computation Period for which such estimate was made.

 

(b)  Quarterly Payment Date . “ Quarterly Payment Date ” for each Computation Period means the forty-fifth (45th) day after the end of such Computation Period.  If such day is not a Business Day, the Quarterly Payment Date shall be the next Business Day.

 

(c)  No Segregated Account . Prior to the Quarterly Payment Date, all amounts received by Assignor from the sale of Assignor’s Net Share of Minerals and Assignee Minerals, as applicable, for any Computation Period shall be held by Assignor in one of its general bank accounts and Assignor will not be required to maintain a segregated account for such funds.

 

(d)  Disputed Proceeds . If Assignor receives any amounts of money from the sale of Assignee Minerals that is subject to controversy or, in the reasonable opinion of Assignor, possible controversy, Assignor shall promptly deposit the money with a Third Person escrow agent in a segregated interest-bearing account.  Such amount shall not be treated as a portion of Assignee Proceeds so long as it remains with such escrow agent, but shall be treated as a portion of Assignee Proceeds, along with the accrued interest, when received from such escrow agent and paid over to Assignee.

 

Section 5.02 Interest on Past Due Payments.

 

(a)  Obligation to Pay . Any Assignee Proceeds or other amounts of money not paid by Assignor to Assignee when due shall bear, and Assignor will pay, interest at the Prime Interest Rate on the overdue amount commencing on the sixth (6th) day after such due date until such amount is paid.

 

(b)  Definition . “ Prime Interest Rate ” means the lesser of (i) the rate of interest per annum publicly announced from time to time by The Bank of New York Mellon Trust Company, N.A. as its “prime rate” in effect at its principal office in New York City (each change in the “prime rate” to be effective on the date such change is publicly announced), with the understanding that such bank’s “prime rate” may be one of several base rates, may serve as a basis upon which effective rates are from time to time calculated for loans making reference thereto, and may not be the lowest of such bank’s base rates, and (ii) the maximum rate of interest permitted under any applicable Legal Requirement.

 

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Section 5.03 Overpayments and Refunds .

 

(a)  Overpayments . If Assignor ever pays Assignee more than the amount of money then due and payable to Assignee under this Conveyance, Assignee shall not be obligated to return the overpayment, but Assignor may at any time thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to the overpayment.

 

(b)  Refunds . If Assignor is ever legally obligated to pay any Third Person, including any Minerals purchaser or Governmental Authority, any refund, interest, penalty or other amount of money, because any payment of Assignee Proceeds received by Assignor for the account of Assignee exceeded, or allegedly exceeded, the amount due or lawful under any applicable contract, Legal Requirement, or other obligation, Assignor may thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to such payment.

 

Section 5.04 Protection of Assignee Proceeds . It is the intent of Assignor and Assignee that Assignee is an “interest owner” with an interest separate and distinct from that of Assignor within the meaning and for the purposes of the Kansas Statutes Annotated 84-9-339a, and that Assignee is entitled to all the benefits of said statute.  To the extent required for Assignee to obtain the benefit of said statute, Assignor shall cause to be filed an affidavit of production with respect to each Well with the appropriate Governmental Authority in Kansas.

 

ARTICLE VI.
RECORDS AND REPORTS

 

Section 6.01 Books, Records and Accounts.

 

(a)  Obligation to Maintain . Assignor shall maintain true and correct books, records and accounts of (i) all transactions required or permitted by this Conveyance, and (ii) the financial information necessary to effect such transactions, including the financial information needed to calculate each installment of Assignee Proceeds.

 

(b)  Right of Inspection . Assignee or its representative, at Assignee’s expense, may inspect and copy such books, records and accounts in the offices of Assignor during normal business hours and upon reasonable notice.

 

Section 6.02 Statements.

 

(a)  Quarterly Statements . On each Quarterly Payment Date, Assignor shall deliver to Assignee a statement showing the computation of Assignee Minerals and Assignee Proceeds for the applicable Computation Period.

 

(b)  Annual Statements . On the first Quarterly Payment Date after the end of each calendar year, such statement shall also show the computation of Assignee Proceeds for the preceding calendar year.

 

(c)  Contents of Statements . Without limiting the generality of the foregoing provisions in this Section 6.02, each statement delivered by Assignor to Assignee pursuant to this Section 6.02 shall state, for the relevant period, (i) the total volumes of Subject Minerals

 

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produced from the Subject Lands, (ii) the total volumes of Assignor’s Net Share of Minerals, (iii) the total volumes of Assignee Minerals, (iv) the applicable Sales Price, (v) the Chargeable Costs, (vi) the amount of Assignee Proceeds due and payable for the relevant period, and (vii) the amounts of money, if any, due and payable by any purchaser of the Subject Minerals or Assignee Minerals, the nonpayment of which resulted in a reduction in Assignee Proceeds for the relevant period.

 

Section 6.03 Assignee’s Exceptions to Quarterly Statements . If Assignee takes exception to any item or items included in any quarterly statement required by Section 6.02, Assignee must notify Assignor in writing within sixty (60) days after Assignee’s receipt of such quarterly statement.  Such Notice must set forth in reasonable detail the specific charges complained of and to which exception is taken.  Adjustments shall be made for all complaints and exceptions that are justified.  Notwithstanding anything to the contrary herein, all matters reflected in Assignor’s statements for the preceding calendar year (or portion thereof) that are not objected to by Assignee in the manner provided by this Section 6.03 shall be deemed correct as rendered by Assignor to Assignee.

 

Section 6.04 Other Information.

 

(a)  Disclosure . At Assignee’s request, subject to applicable restrictions on disclosure and transfer of information, Assignor shall give Assignee and its designated representatives reasonable access in Assignor’s office during normal business hours to all title, geological (to the extent not prohibited by any applicable license agreement), Well and production data in Assignor’s possession or Assignor’s Affiliates’ possession, relating to operations on the Subject Interests.

 

(b)  Disclaimer of Warranties and Liability . Assignor makes no representations or warranties about the accuracy or completeness of any data, reports, studies or other information made available to Assignee and shall have no liability to Assignee or any other Person resulting from such data, studies, reports or other information.

 

(c)  No Attribution . Assignee shall not, in any securities filings or reports made by Assignee, attribute to Assignor or to the consulting engineers any reports or studies made available to Assignee, or the contents thereof.

 

(d)  Confidentiality . All information furnished to Assignee and its designated representatives pursuant to this Section 6.04 is confidential and for the sole benefit of Assignee and shall not be disclosed by Assignee or its designated representatives to any other Person, except to the extent that such information (i) is required in any report, statement or testimony submitted to any Governmental Authority having or claiming to have jurisdiction over Assignee or submitted to bank examiners or similar organizations or their successors, (ii) is required in response to any summons or subpoena or in connection with any litigation, (iii) is reasonably believed to be required in order to comply with any applicable Legal Requirement to Assignee, (iv) was publicly available or otherwise known to the recipient at the time of disclosure or (v) subsequently becomes publicly available other than through any act or omission of the recipient; provided , however , that with respect to the disclosures with respect to items (i), (ii) and (iii) above, Assignee will notify Assignor prior to any such disclosure in order to provide

 

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Assignor an opportunity to seek to limit any such required disclosure.  In connection with the marketing of Assignee’s assets upon termination of Assignee, Assignee and its designated representatives may, on a confidential basis in accordance with this Section 6.04(d), provide any potential purchaser of such assets with the same information Assignee has access to pursuant to Section 6.04.

 

ARTICLE VII.
NO LIABILITY OF ASSIGNEE

 

Assignee shall not be personally liable or responsible under this Conveyance for any cost, risk, liability or obligation associated in any way with the ownership or operation of the Subject Lands, the Subject Interests, the Wells or the Subject Minerals.  The foregoing sentence does not restrict the right of Assignor to deduct Chargeable Costs in calculating the volumes of Assignee Minerals or Assignee Proceeds.

 

ARTICLE VIII.
OPERATIONS

 

Section 8.01 Standards of Conduct . Except as otherwise specifically provided in this Conveyance, Assignor shall (a) operate and maintain the Subject Interests, and (b) make elections under each applicable lease, operating agreement, unit agreement, contract for development and other similar instrument or agreement (including elections concerning abandonment of any Well or release of any Subject Interest) in good faith and in accordance with the Reasonably Prudent Operator Standard.

 

Section 8.02 Abandonment of Properties . Nothing in this Conveyance shall obligate Assignor to continue to operate any Well or to operate or maintain in force or attempt to maintain in force any Subject Interest when such Well or Subject Interest ceases to produce, or Assignor determines that such Well or Subject Interest is not capable of producing Minerals in paying quantities, or that such Well or Subject Interest is sufficiently unlikely to be made capable of producing Minerals in paying quantities such that additional operations are unwarranted, all in accordance with Section 8.01 above.  The expiration of a Subject Interest in accordance with the terms and conditions applicable thereto shall not be considered to be a voluntary surrender or abandonment thereof.

 

ARTICLE IX.
POOLING AND UNITIZATION

 

Section 9.01 Pooling of Subject Interests . Certain Subject Interests have been, or may have been, heretofore pooled and unitized for the production of Minerals.  Such Subject Interests are and shall be subject to the terms and provisions of the applicable pooling and unitization agreements and orders, and the Royalty Interest in each pooled or unitized Subject Interest shall apply to and affect only the Minerals produced from such units that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreements and orders.

 

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Section 9.02 Pooling and Unitization.

 

(a)  Right to Pool . Assignor has the exclusive executive right and power (as between Assignor and Assignee) to pool or unitize any Subject Interest and to alter, change, amend or terminate any pooling or unitization agreements heretofore or hereafter entered into, as to all or any part of the Subject Lands, as to any one or more of the formations or horizons, and as to any Minerals, upon such terms and provisions as Assignor shall in its sole discretion deem appropriate.

 

(b)  Effect of Pooling . If and whenever through the exercise of such right and power, or pursuant to any Legal Requirement now existing or hereafter enacted or promulgated, any Subject Interest is pooled or unitized in any manner, the Royalty Interest shall apply to and affect only the Minerals production that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreement or order.  It shall not be necessary for Assignee to agree to, consent to, ratify, confirm or adopt any exercise of pooling or unitization of any Subject Interest by Assignor.

 

ARTICLE X.
GOVERNMENT REGULATION

 

Section 10.01 Legal Requirements . Except as provided in Section 10.03, all obligations of Assignor under this Conveyance are, and shall be, subject to all applicable Legal Requirements and the instruments, documents and agreements creating the Subject Interests.

 

Section 10.02 Filings . Assignor shall use its reasonable discretion in making filings for itself and on behalf of Assignee with any Governmental Authority having jurisdiction with respect to matters affecting the Subject Interests, the Subject Lands or the Subject Minerals.

 

Section 10.03 Superseding Effect. By acceptance of this Conveyance, Assignee agrees, for itself and its successors and assigns, immediate and remote, that the timing of payment, accrual of interest and reporting requirements with respect to the Royalty Interest shall be as provided by the terms of this Conveyance and not as prescribed by Kansas Statutes Annotated 55-1614 through 55-1622b (the “ Act ”), or any similar Legal Requirement.  Assignee expressly waives any rights it may have under the Act, including, without limitation, interest on payments related to Assignee Proceeds at the rate provided in Kansas Statutes Annotated 55-1614(h) and the reporting requirements provided in Kansas Statutes Annotated 55-1620.

 

ARTICLE XI.
ASSIGNMENT AND SALE OF SUBJECT INTERESTS

 

Section 11.01 Assignment by Assignor Subject to Royalty Interest.

 

(a)  Right to Sell . Assignor may not Transfer any interest in the Wells, the Subject Interests or any part thereof or any undivided interest therein in violation of Section 11.03.  Subject to Section 11.02 and 11.03, Assignor may from time to time Transfer, mortgage or pledge its interest in the Wells, the Subject Interests, or any part thereof or undivided interest therein, if and only if (i) such Transfer, mortgage or pledge is made expressly subject to and burdened with the Royalty Interest and this Conveyance; (ii) solely in connection with a Transfer

 

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other than a Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has caused the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer; and (iii) in connection with any Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has used commercially reasonable efforts to cause the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer.  Any assumption and agreement to discharge shall be by appropriate written instrument for the express benefit of and enforceable by Assignee.  For the avoidance of doubt, nothing in this Section 11.01(a) is intended to permit any assignee, purchaser, transferee or grantee to acquire any interest in the Wells, the Subject Interests or any part thereof or undivided interest therein without being subject to and burdened with the Royalty Interest and this Conveyance.  Assignee shall not be required to recognize any purported Transfer, mortgage or pledge not made in conformance with this Section 11.01(a) and, notwithstanding any such purported Transfer, mortgage or pledge, Assignor shall remain obligated under this Conveyance just as if such Transfer, mortgage or pledge attempt had not been made and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, any purported Transfer not made in conformance with this Section 11.01(a) shall be void and of no effect.

 

(b)  Effect of Sale . From and after the actual date of any such Transfer by Assignor made in full compliance with Section 11.01(a) (and only upon such full compliance), Assignor shall be relieved of all obligations, requirements and responsibilities arising under this Conveyance with respect to the Subject Interests Transferred, as the same pertain to Assignee Minerals produced from and after (but not prior to) said date of such Transfer.

 

(c)  Allocation of Consideration . Assignee is not entitled to receive any share of the sales proceeds received by Assignor in any transaction permitted by this Section 11.01.

 

(d)  Separate Interest . Notwithstanding any provision to the contrary in Article IV, effective on the effective date of any Transfer of any Subject Interest made in full compliance with Section 11.01(a), Assignee Minerals and Assignee Proceeds shall thereafter be computed separately with respect to such Subject Interests, and the assignee, buyer, transferee or grantee of such Subject Interests shall thereafter serve as Assignee’s agent and representative under Article IV with respect to such interests and shall pay all corresponding Assignee Proceeds directly to Assignee.

 

Section 11.02 Sale and Assignment of Properties.

 

(a)  Transfer . Subject to Section 11.03, Assignor may from time to time, Transfer the Wells, the Subject Interests, or any part thereof or undivided interest therein, free of the Royalty Interest and this Conveyance provided that the aggregate Fair Value of all Royalty

 

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Interests assigned with respect to the Assignor Conveyances during any twelve (12) month period shall not exceed $5,000,000.

 

(b)  Payments . In connection with any Transfer pursuant to this Section 11.02, Assignor shall remit to Assignee an amount equal to the Fair Value of the Royalty Interest being assigned.  Assignor shall make such payment to Assignee on the Quarterly Payment Date for the Computation Period in which Assignor receives the payment with respect to any such Transfer of the Subject Interest.

 

(c)  Assignment . In connection with any Transfer provided for in Section 11.02(a), Assignee shall, upon request of Assignor, execute, acknowledge and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that assigns the Royalty Interest in the Well and the related Subject Interests and Subject Lands being Transferred, to Assignor, or to one or more assignees, as Assignor may direct.

 

(d)  Effect of Sale . From and after the actual date of any such Transfer by Assignor, Assignor and any assignee, purchaser, transferee or grantee of such Subject Interest shall be relieved of all obligations, requirements and responsibilities arising under the Royalty Interest or this Conveyance with respect to the Well or Subject Interests Transferred, except for those that accrued prior to such date.

 

Section 11.03 Transfer of Subject Lands . Assignor will not Transfer any Well or any of the Subject Interests comprising a part of the Subject Lands pursuant to Sections 11.01 and 11.02 prior to the Drilling Obligation Completion Date, and in the event of any attempted Transfer in violation of this Section 11.03, Assignor shall remain liable and a party hereto, just as if no Transfer attempt had been made, and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, such attempted Transfer in violation of this Section 11.03 shall be void and of no force or effect.  Assignor expressly states and recognizes that the restrictions on Transfer imposed on Assignor in this Section 11.03 and in Section 11.01(a) are made in reasonable protection of an interest of Assignee created hereunder.

 

Section 11.04 Change in Ownership.

 

(a)  Obligation to Give Notice . No change of ownership or of the right to receive payment of the Royalty Interest, or of any part thereof, however accomplished, shall bind Assignor until notice thereof is furnished to Assignor by the Person making the transfer and the Person claiming the benefit thereof, and then only with respect to payments made after such Notice is furnished.

 

(b)  Notice of Sale . Notice of sale, transfer, conveyance or assignment shall consist of a certified copy of the recorded instrument accomplishing the same.

 

(c)  Notice of Other Changes of Ownership . Notice of change of ownership or of the right to receive payment accomplished in any other manner ( e.g. , by dissolution of Assignee) shall consist of certified copies of recorded documents and complete proceedings legally binding and conclusive of the rights of all Persons.

 

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(d)  Effect of Lack of Notice . Until such Notice accompanied by such documentation is furnished to Assignor in the manner provided above, Assignor may, at Assignor’s election, either (i) continue to pay or tender all sums payable on the Royalty Interest in the same manner provided in this Conveyance, precisely as if no such change in interest or ownership or right to receive payment had occurred, or (ii) suspend payment of Assignee Proceeds without interest until such documentation is furnished.

 

(e)  Effect of Nonconforming Notices . The kinds of Notice provided by this Section 11.04 shall be exclusive, and no other kind, whether actual or constructive, shall bind Assignor.

 

Section 11.05 One Payee . Assignor shall never be obligated to pay Assignee Proceeds to more than one Person.  If more than one Person is ever entitled to receive payment of any part of Assignee Proceeds, Assignor may suspend payments of all Assignee Proceeds until the concurrent owners or claimants of the Royalty Interest or the right to receive payment of Assignee Proceeds appoint one Person in writing to receive all payments of Assignee Proceeds on their behalf.  Assignor may thereafter conclusively rely upon the authority of that Person to receive payments of Assignee Proceeds and shall be under no further duty to inquire into the authority or performance of such Person.

 

Section 11.06 Rights of Mortgagee . If Assignee executes a mortgage or deed of trust covering all or part of the Royalty Interest, the mortgagees or trustees therein named or the holders of any obligation secured thereby shall be entitled, to the extent that such mortgage or deed of trust so provides, to exercise the rights, remedies, powers and privileges conferred upon Assignee by this Conveyance and to give or withhold all consents required to be obtained from Assignee.  This Section 11.06 shall not be deemed or construed to impose upon Assignor any obligation or liability undertaken by Assignee under such mortgage or deed of trust or under the obligation secured thereby.

 

Section 11.07 No Drainage . Subsequent to the Drilling Obligation Completion Date, neither Assignor nor any of its Affiliates shall drill any Mineral well that will have a perforation or a stimulation site in the Target Formation that will be within six hundred sixty feet (660’) of any perforation or stimulation site of any Well which produces oil or gas from the Target Formation.

 

ARTICLE XII.
FORCE MAJEURE

 

Section 12.01 Nonperformance . Assignor shall not be responsible to Assignee for any loss or damage to Assignee resulting from any delay in performing or failure to perform any obligation under this Conveyance (other than Assignor’s obligation to make payments of Assignee Proceeds to Assignee) to the extent such failure or delay is caused by Force Majeure.

 

Section 12.02 Force Majeure . “ Force Majeure ” means any of the following, to the extent they are not caused solely by the breach by Assignor of its duty to perform certain obligations under this Conveyance in accordance with the Reasonably Prudent Operator Standard:

 

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(a) act of God, fire, lightning, landslide, earthquake, storm, hurricane, hurricane warning, flood, high water, washout, tidal wave or explosion;

 

(b) strike, lockout, or other similar industrial disturbance, act of the public enemy, war, military operation, blockade, insurrection, riot, epidemic, arrest or restraint of Governmental Authority or people, or national emergency;

 

(c) the inability of Assignor, or any Affiliate of Assignor, to acquire, or the delay on the part of any Third Person (other than an Affiliate of Assignor) in acquiring, materials, supplies, machinery, equipment, servitudes, right-of-way grants, easements, permits, licenses, approvals or authorizations necessary to enable such Party to perform hereunder;

 

(d) any breakage of or accident to machinery, equipment or lines of pipe, the repair, maintenance, improvement, replacement, alteration to a plant or line of pipe or related facility, the testing of machinery, equipment or line of pipe, or the freezing of a line of pipe;

 

(e) any Legal Requirement or the affected Party’s compliance therewith; or

 

(f) any other cause, whether similar or dissimilar to the causes enumerated in (a) through (e) above, not reasonably within the control of Assignor.

 

Section 12.03 Force Majeure Notice . Assignor will give Assignee a Notice of each Force Majeure as soon as reasonably practicable after the occurrence of such Force Majeure.

 

Section 12.04 Remedy . Assignor will use its reasonable efforts to remedy each Force Majeure and resume full performance under this Conveyance as soon as reasonably practicable, except that the settlement of strikes, lockouts or other labor disputes shall be entirely within the discretion of Assignor.

 

ARTICLE XIII.
NOTICE

 

Section 13.01 Written Notice . Except as otherwise provided by this Conveyance, each Notice shall be in writing.

 

Section 13.02 Methods of Giving Notice . Notice may be given by any reasonable means, including email, telecopier, hand delivery, overnight courier or U.S. mail.

 

Section 13.03 Charges . All Notices shall be properly addressed to the recipient, with all postage and other charges being paid by the Party giving Notice.

 

Section 13.04 Effective Date. Notice shall be effective when actually received by the Party being notified; provided , however , that Notices given by email or telecopy on any day other than a Business Day, or on a Business Day but after 5:00 p.m. local time at the location of the Party being notified, shall be deemed received on the next Business Day, unless receipt is acknowledged prior to the next Business Day.

 

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Section 13.05 Addresses . The addresses of the Parties for purposes of Notice are the addresses in the introductory paragraph to this Conveyance.

 

Section 13.06 Change of Address . Either Party may change its address to another address within the continental United States by giving ten (10) days’ Notice to the other Party.

 

ARTICLE XIV.
OTHER PROVISIONS

 

Section 14.01 Successors and Assigns . The provisions and conditions contained in this Conveyance shall run with the land and the respective interests of Assignor and Assignee in, or related to, the Subject Lands, and, subject to the limitation and restrictions on the assignment or delegation by the Parties of their rights and interests under this Conveyance, this Conveyance binds and inures to the benefit of Assignor, Assignee and their respective successors, assigns and legal representatives.

 

Section 14.02 Governing Law . THIS CONVEYANCE SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF KANSAS WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

Section 14.03 Construction of Conveyance . In construing this Conveyance, the following principles shall be followed:

 

(a) no consideration shall be given to the captions of the articles, sections, subsections or clauses, which are inserted for convenience in locating the provisions of this Conveyance and not as an aid in its construction;

 

(b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Conveyance;

 

(c) the word “includes” and its syntactical variants mean “includes, but is not limited to” and corresponding syntactical variant expressions;

 

(d) a defined term has its defined meaning throughout this Conveyance, regardless of whether it appears before or after the place in this Conveyance where it is defined;

 

(e) the plural shall be deemed to include the singular, and vice versa, unless the context otherwise requires; and

 

(f) each exhibit, attachment and schedule to this Conveyance is a part of this Conveyance, but if there is any conflict or inconsistency between the main body of this Conveyance and any exhibit, attachment or schedule, the provisions of the main body of this Conveyance shall prevail.

 

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Section 14.04 No Waiver . Failure of either Party to require performance of any provision of this Conveyance shall not affect either Party’s right to require full performance thereof at any time thereafter, and the waiver by either Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.

 

Section 14.05 Relationship of Parties . This Conveyance does not create a partnership, mining partnership, joint venture or relationship of trust or agency (except with respect to Assignor’s agency relationship with respect to those matters set forth in Articles IV and V above) between the Parties.

 

Section 14.06 Further Assurances . Each Party shall execute, acknowledge and deliver to the other Party all additional instruments and other documents reasonably required to describe more specifically any interests subject hereto, to vest more fully in Assignee the Royalty Interest conveyed (or intended to be conveyed) by this Conveyance, or to evidence or effect any transaction contemplated by this Conveyance.  Assignor shall also execute and deliver all additional instruments and other documents reasonably required to transfer interests in state, federal or Indian lease interests in compliance with applicable Legal Requirements or agreements.

 

Section 14.07 The 12:01 A.M. Convention . Except as otherwise provided in this Conveyance, each calendar day, month, quarter and year shall be deemed to begin at 12:01 a.m. Central Time on the stated day or on the first day of the stated month, quarter or year, and to end at 12:00 a.m. Central Time on the next day or on first day of the next month, quarter or year, respectively.

 

Section 14.08 Counterpart Execution . This Conveyance may be executed in any number of counterparts, all of which are identical except that to facilitate filing and recording, counterparts to be filed and recorded in the appropriate records of each county may have included in Exhibit A hereto only those portions of Exhibit A hereto that contain descriptions of the lands and leases located in said county.  Every counterpart of this Conveyance shall be deemed to be an original for all purposes, and all such counterparts together shall constitute one and the same instrument.  An executed counterpart of this Conveyance containing the full text to the entire Exhibits and Annexes is recorded in the real property records of Barber County, Kansas.  Counterparts of this Conveyance with all portions of Exhibit A hereto will be kept at the offices of Assignor and Assignee at the addresses indicated in the introductory paragraph to this Conveyance.  As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf shall be deemed an original hereto.

 

Section 14.09 Present and Absolute Conveyance . It is the express intention of Assignor and Assignee that the Royalty Interest is, and shall be construed for all purposes as, a present, fully-vested and absolute conveyance.

 

Section 14.10 Limitation of Liability.  It is expressly understood and agreed by the Parties hereto that (a) this Conveyance is executed and delivered by the Trustee not individually or personally, but solely as Trustee in the exercise of the powers and authority conferred and vested in it, and (b) under no circumstances shall the Trustee be liable for the

 

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breach or failure of any obligation, representation, warranty or covenant made or undertaken by Assignee under this Conveyance.

 

Section 14.11 Severability . In case any provision, covenant or obligation under this Conveyance is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions, covenants or obligations of this Conveyance are declared to be severable and not in any way affected or impaired thereby.

 

[ Remainder of page intentionally left blank. ]

 

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IN WITNESS WHEREOF, each Party has caused this Conveyance to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Conveyance, to be effective as of the Effective Time.

 

 

SANDRIDGE EXPLORATION AND PRODUCTION, LLC

 

 

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

Signature Page to Perpetual Overriding Royalty Interest

Conveyance (Kansas) (PDP)

 



 

 

SANDRIDGE MISSISSIPPIAN TRUST II

 

 

 

By:

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

Name:

Michael J. Ulrich

 

 

Title:

Vice-President

 

Signature Page to Perpetual Overriding Royalty Interest

Conveyance (Kansas) (PDP)

 



 

STATE OF OKLAHOMA

§

 

§

COUNTY OF OKLAHOMA

§

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb, President and Chief Operating Officer of SandRidge Exploration and Production, LLC, a Delaware limited liability company, on behalf of said limited liability company.

 

 

 

/s/ Janis L. Roberts

 

NOTARY PUBLIC,

 

 

 

State of Oklahoma

 

 

 

Janis L. Roberts

 

(printed name)

 

My commission expires: May 22, 2012

 

 

 

 

SEAL or STAMP

 

 

Acknowledgment Page to Perpetual Overriding Royalty Interest

Conveyance (Kansas) (PDP)

 



 

STATE OF TEXAS

§

 

§

COUNTY OF TRAVIS

§

 

This instrument was acknowledged before me on April 17, 2012, by Michael J. Ulrich, Vice President of The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, as Trustee of SandRidge Mississippian Trust II, a Delaware statutory trust, on behalf of said national banking association and said trust.

 

 

 

/s/ Sarah Newell

 

NOTARY PUBLIC,

 

 

 

State of Texas

 

 

 

Sarah Newell

 

(printed name)

 

My commission expires: February 16, 2014

 

 

 

 

SEAL or STAMP

 

 

Acknowledgment Page to Perpetual Overriding Royalty Interest

Conveyance (Kansas) (PDP)

 



 

Exhibit A

 

(Subject Lands)

 

See attached.

 



 

Exhibit B

 

(Excluded Assets)

 

None.

 



 

Exhibit C

 

(Wells)

 

See attached.

 


Exhibit 10.6

 

Execution Copy

 

PERPETUAL OVERRIDING ROYALTY INTEREST

CONVEYANCE (OKLAHOMA) (PDP)

 

This PERPETUAL OVERRIDING ROYALTY INTEREST CONVEYANCE (OKLAHOMA) (PDP) (this “ Conveyance ”) from SandRidge Exploration and Production, LLC, a Delaware limited liability company, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ Assignor ”), to SandRidge Mississippian Trust II, a statutory trust formed under the laws of the State of Delaware, with offices at c/o The Bank of New York Mellon Trust Company, N.A., 919 Congress Avenue, Suite 500, Austin, Texas 78701 (“ Assignee ”), is delivered to be effective as of the Effective Time.  All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Article II below.

 

ARTICLE I.
CONVEYANCE

 

Section 1.01 The Grant . For and in consideration of good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby BARGAIN, SELL, GRANT, CONVEY, TRANSFER, ASSIGN, SET OVER, and DELIVER unto Assignee, subject to the terms of this Conveyance, as a perpetual overriding royalty interest (the “ Royalty Interest ”), an undivided interest in and to all Minerals that may be produced and saved from the Target Formation underlying the Subject Lands through the wellbores of the Wells, sufficient to cause Assignee to receive the Assignee Minerals.  To the extent any interest conveyed hereunder is created out of a mineral interest, rather than out of an oil and gas leasehold interest, the term “overriding royalty interest” shall be interpreted to mean a non-participating royalty interest with respect to that particular interest, but any such interest shall still be subject to, and shall have the rights and obligations set forth in, this Conveyance.

 

Section 1.02 Non-Operating, Non-Expense Bearing Interest.  The Royalty Interest conveyed hereby is a non-operating, non-expense-bearing overriding royalty interest in and to the Subject Interests, free of all cost, risk and expense of production, operations and marketing.  In no event shall Assignee ever be liable or personally obligated for payment of any cost, expenses or liabilities attributable to the Subject Interests (or any part thereof) or incurred in connection with the production, saving or marketing of Assignee Minerals, subject, however, to Assignor’s right hereinafter provided to deduct Chargeable Costs in determining Assignee Proceeds, which right shall be solely a matter of deduction from the proceeds from the sale of Assignee Minerals and not a personal obligation of Assignee.  This Conveyance is a conveyance of an interest in real property.

 

Section 1.03 Habendum Clause . TO HAVE AND TO HOLD the Royalty Interest, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Assignee, its successors and assigns, subject to terms and provisions of this Conveyance.

 



 

Section 1.04 Warranty.

 

(a)  The Warranty . Assignor warrants to Assignee, its successors and assigns, that the Royalty Interest is free of all Encumbrances created by, through or under Assignor, but not otherwise, except for the Permitted Encumbrances.

 

(b)  Remedies . In the event of a breach of the foregoing warranty, Assignee’s sole remedy shall be to receive payment on each applicable Quarterly Payment Date, out of Assignor’s Net Share of Minerals from other Wells in excess of that subject to the Royalty Interest and the royalty interest created pursuant to the Term PDP Oklahoma Conveyance (the “ Assignor Retained Minerals ”), subject to offset as provided below and without interest (except such interest payable under this Conveyance on payments made after the applicable due date as described in Section 5.02 below), of an amount equal to the difference between (x) Assignee Proceeds that Assignee would have received with respect to such Well in the applicable Computation Period if such warranty had not been breached, and (y) Assignee Proceeds that Assignee actually received during that Computation Period with respect to that Well, to the extent such difference is attributable to the breach of the warranty, but not to the extent that such difference is attributable to any other cause, and any such amounts of Assignor Retained Minerals shall be treated as Assignee Minerals.

 

(c)  Right of Offset . If any Subject Interest ever proves to be larger as of the Effective Date than the Subject Interest reflected in Exhibit A hereto and if, as a result, Assignee receives a greater amount of Assignee Minerals (or the proceeds from the sale thereof) with respect to that Subject Interest than Assignee would otherwise have received if the Subject Interest had been the size reflected on Exhibit A hereto, then such increased amounts, whenever received by Assignee, may be treated by Assignor as a credit or offset (without interest) against any amounts payable to Assignee under Section 1.04(b).

 

(d)  DISCLAIMER . EXCEPT FOR THE WARRANTIES OF TITLE GIVEN IN SECTION 1.04(a), ASSIGNOR MAKES THIS CONVEYANCE AND ASSIGNS THE ROYALTY INTEREST WITHOUT RECOURSE, COVENANT OR WARRANTY OF TITLE OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY.  ANY COVENANTS OR WARRANTIES IMPLIED BY STATUTE OR LAW BY THE USE HEREIN OF THE WORDS “ GRANT ”, “ CONVEY ” OR OTHER SIMILAR WORDS ARE HEREBY EXPRESSLY DISCLAIMED, WAIVED AND NEGATED.  WITHOUT LIMITING THE GENERALITY OF THE TWO PRECEDING SENTENCES, ASSIGNEE ACKNOWLEDGES THAT ASSIGNOR HAS NOT MADE, AND ASSIGNOR HEREBY EXPRESSLY DISCLAIMS AND NEGATES, AND ASSIGNEE HEREBY EXPRESSLY WAIVES, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO (i) PRODUCTION RATES, RECOMPLETION OPPORTUNITIES, DECLINE RATES OR THE QUALITY, QUANTITY OR VOLUME OF THE RESERVES OF MINERALS, IF ANY, ATTRIBUTABLE TO THE SUBJECT INTERESTS, (ii) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (iii) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iv) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, AND (v) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER ANY APPLICABLE LEGAL REQUIREMENT; IT BEING THE EXPRESS INTENTION OF BOTH

 

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ASSIGNEE AND ASSIGNOR THAT THE ROYALTY INTEREST IS HEREBY ASSIGNED TO ASSIGNEE ON AN “AS IS” AND “WHERE IS” BASIS WITH ALL FAULTS, AND THAT ASSIGNEE HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS ASSIGNEE DEEMS APPROPRIATE.  ASSIGNOR AND ASSIGNEE AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LEGAL REQUIREMENTS TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS SECTION ARE “CONSPICUOUS” DISCLAIMERS FOR THE PURPOSES OF ANY APPLICABLE LEGAL REQUIREMENT.

 

(e)  Substitution of Warranty . This instrument is made with full substitution and subrogation of Assignee in and to all covenants of warranty by Third Persons (other than Affiliates of Assignor) heretofore given or made with respect to the Wells, the Subject Interests or any part thereof or interest therein.

 

ARTICLE II.
DEFINITIONS

 

This Article II defines certain capitalized words, terms, and phrases used in this Conveyance. Certain other capitalized words, terms, and phrases used in this Conveyance are defined elsewhere in this Conveyance.

 

Act ” is defined in Section 10.03.

 

Affiliate ” means, for any specified Person, another Person that controls, is controlled by, or is under common control with, the specified Person.  “ Control ,” in the preceding sentence, refers to the possession by one Person, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.

 

AMI ” means that area described in Exhibit A to the Development Agreement, as such area may be extended or exchanged pursuant to Article III of the Development Agreement.

 

Assignee ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignee.

 

Assignee Minerals ” is defined in Section 3.01.

 

Assignee Proceeds ” is defined in Section 3.03.

 

Assignor ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignor.

 

Assignor Conveyances ” means the Assignor Oklahoma Conveyances and the Assignor Kansas Conveyances.

 

Assignor Kansas Conveyances ” means the Long-Term Development Kansas Conveyance, the Term Development Kansas Conveyance, the Perpetual PDP Kansas Conveyance and the Term PDP Kansas Conveyance.

 

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Assignor Oklahoma Conveyances ” means this Conveyance, the Term PDP Oklahoma Conveyance, the Perpetual Development Oklahoma Conveyance and the Term Development Oklahoma Conveyance.

 

Assignor Retained Minerals ” is defined in Section 1.04(b).

 

Assignor’s Net Revenue Interest ” means the interest, stated as a decimal fraction, in Subject Minerals production from a Well attributable to the Subject Interests in that Well, net of Production Burdens.

 

Assignor’s Net Share of Minerals ” means the share of Subject Minerals from each Well that is attributable to Assignor’s Net Revenue Interest in that Well determined prior to giving effect to this Conveyance.

 

Bbl ” means one stock tank barrel, or 42 U.S. gallons liquid volume, in reference to Oil or Gas Liquids.

 

Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the New York Stock Exchange, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.

 

Chargeable Costs ” is defined in Section 3.02(a).

 

Closing Time ” means 12:01 a.m. Central Time, on April 23, 2012.

 

Computation Period ” means each calendar quarter commencing on or after 12:01 a.m., Central Time, on January 1, 2012, with each such calendar quarter being deemed to have begun at 12:01 a.m. Central Time on the first day of such calendar quarter and to have ended at 12:00 a.m. Central Time on the first day of the next calendar quarter.

 

Conveyance ” is defined in the introductory paragraph to this Conveyance.

 

Development Agreement ” means that certain Development Agreement by and among SandRidge, Assignor and Assignee, dated as of even date herewith and effective as of the Effective Time.

 

Drilling Obligation Completion Date ” has the meaning given to such term in the Development Agreement.

 

Effective Time ” means 12:01 a.m., Central Time, on January 1, 2012; provided , however , that with respect to each oil and gas lease described in Exhibit A that has a date after January 1, 2012, the Effective Time, with respect to each such oil and gas lease, shall be 12:01 a.m., Central Time, on the date of such oil and gas lease.

 

Encumbrance ” means any mortgage, lien, security interest, pledge, charge, encumbrance, limitation, preferential right to purchase, consent to assignment, irregularity, burden or defect.

 

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Excess Costs ” means, in any Computation Period, the excess of (x) Chargeable Costs associated with Assignee Minerals for that Computation Period over (y) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals (with the amount in clause (y) calculated as provided in Section 3.03(a) hereof).  Excess Costs shall bear interest at the Prime Interest Rate from the end of the Computation Period in which such costs were incurred to the date that Assignor recovers such amounts from Assignee Proceeds.

 

Excluded Assets ” means (a) those oil and gas wells that are the subject of the Term Development Oklahoma Conveyance and the Perpetual Development Oklahoma Conveyance, and (b) those oil and gas wells that are described in Exhibit B hereto.

 

Fair Value ” means, with respect to any portion of the Royalty Interest to be assigned pursuant to Section 11.02 in connection with a Transfer of any Well or Subject Interests, an amount of net proceeds that could reasonably be expected to be obtained from the sale of such portion of the Royalty Interest to a party that is not an Affiliate of either Assignor or Assignee on an arms’-length negotiated basis, taking into account relevant market conditions and factors existing at the time of any such proposed Transfer, such net proceeds to be determined by deducting Assignee’s proportionate share of sales costs, commissions and brokerage fees, if any (based on the ratio of (i) the fair market value of the portion of the Royalty Interest being assigned to (ii) the fair market value of the Wells and Subject Interests being Transferred (including the value of the Royalty Interest being assigned)).

 

Farmout Agreements ” means any farmout agreement, participation agreement, exploration agreement, development agreement or any similar agreement.

 

Force Majeure ” is defined in Section 12.02.

 

Gas ” means natural gas and all other gaseous hydrocarbons or minerals, including helium, but specifically excluding any Gas Liquids.

 

Gas Liquids ” means those natural gas liquids and other liquid similar hydrocarbons, including ethane, propane, butane and natural gasoline, and mixtures thereof, that are removed from a gas stream by the liquids extraction process of any field facility or gas processing plant and delivered by the facility or plant as natural gas liquids.

 

Governmental Authority ” means the United States of America, any state, commonwealth, territory, or possession thereof, and any political subdivision of any of the foregoing, including courts, departments, commissions, boards, bureaus, agencies and other instrumentalities.

 

Legal Requirement ” means any law, statute, ordinance, decree, requirement, order, judgment, rule, or regulation of, including the terms of any license or permit issued by, any Governmental Authority.

 

Long-Term Development Kansas Conveyance ” means that certain Long-Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

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Mcf ” means one thousand cubic feet of Gas, measured and expressed at the same temperature, pressure, and other conditions of measurement (a) provided in any contract for the purchase of Gas from the Subject Interests or, (b) if no such contract exists, provided by applicable state law for purposes of reporting production to Governmental Authorities.

 

Mineral(s) ” means Oil, Gas and Gas Liquids.

 

MMBtu ” means one million British thermal units.

 

Mortgages ” has the meaning given such term in the Development Agreement.

 

Non-Affiliate ” means, for any specified Person, any other Person that is not an Affiliate of the specified Person.

 

Notice ” means any notice, advice, invoice, demand or other communication required or permitted by this Conveyance.

 

Oil ” means crude oil, condensate and other liquid hydrocarbons recovered by field equipment or facilities, excluding Gas Liquids.

 

Party ,” when capitalized, refers to Assignor or Assignee. “ Parties ,” when capitalized, refers to Assignor and Assignee.

 

Permitted Encumbrances ” means:

 

(a) the Production Burdens;

 

(b) contractual obligations arising under operating agreements, Farmout Agreements, production sales contracts, leases, assignments and other similar agreements that may affect the Subject Interests;

 

(c) pooling and unitization agreements, declarations, orders or Legal Requirements to secure payment of amounts not yet delinquent;

 

(d) liens and security interests that arise in the normal course of operations, such as liens for unpaid taxes, statutory liens securing unpaid suppliers and contractors, and contractual liens under operating agreements, in any case, that are not yet delinquent or, if delinquent, are being contested in good faith in the normal course of business;

 

(e) conventional rights of reassignment that obligate Assignor to reassign all or part of any Subject Interest to a Third Person if Assignor intends to release or abandon such interest before the expiration of the primary term or other termination of such interest;

 

(f) easements, rights-of-way, servitudes, permits, surface leases, surface use restrictions and other surface uses and impediments on, over or in respect of the Subject Interests that are not such as to interfere materially with the operation, value or use of the Subject Interests;

 

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(g) rights reserved to or vested in any Governmental Authority to control or regulate any Subject Interests in any manner, and all applicable Legal Requirements;

 

(h) the terms of the instruments creating the Subject Interests and Subject Lands; and

 

(i) the Mortgages;

 

provided , that such aforementioned encumbrances are of the type and nature customary in the oil and gas industry, and provided , further , that such aforementioned encumbrances do not, alone or in the aggregate, materially and adversely affect the operation, value or use of any Subject Interests, and all to the extent, and for so long as, such Permitted Encumbrances are otherwise valid and enforceable against the Subject Interests, without recognizing, expressly or by implication, any rights or interests in any Third Person or Governmental Authority that such Third Person or Governmental Authority does not otherwise lawfully possess.

 

Perpetual Development Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (Development) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Perpetual PDP Kansas Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Person ” means any natural person, corporation, partnership, trust, estate, or other entity, organization or association.

 

Post Production Cost Charge ” is defined in Section 3.02(b).

 

Prime Interest Rate ” is defined in Section 5.02(b).

 

Production Burdens ” means, with respect to any Subject Lands, Subject Interests or Subject Minerals, all royalty interests, overriding royalty interests, production payments, net profits interests and other similar interests that constitute a burden on, are measured by, or are payable out of the production of Minerals or the proceeds realized from the sale or other disposition thereof.

 

Quarterly Payment Date ” is defined in Section 5.01(b).

 

Reasonably Prudent Operator Standard ” means the standard of conduct of a reasonably prudent oil and gas operator in the AMI under the same or similar circumstances, acting with respect to its own property and disregarding the existence of the Royalty Interest as a burden on such property.

 

Royalty Interest ” is defined in Section 1.01.

 

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Sales Price ” means the price received by Assignor for Assignee Minerals determined in accordance with the following provisions:

 

(a) “sale” refers to any sale, exchange or other disposition of Assignee Minerals for value, the value of such Minerals that is exchanged or otherwise disposed of for valuable consideration being the sales price that Assignor receives for any such Minerals sold pursuant to Section 4.01 for any such Minerals;

 

(b) amounts of money not paid to Assignor when due by any purchaser of Assignee Minerals (for example, Taxes or other amounts withheld or deducted by any such purchaser) shall not be included within the Sales Price until actually received by, or credited to the account of, Assignor;

 

(c) advance payments and prepayments for future deliveries of Assignee Minerals shall be included within the Sales Price, without interest, when that volume of Minerals subject to the advance payments or prepayments is actually produced;

 

(d) loan proceeds received by Assignor shall not be treated as a component of the applicable Sales Price; and

 

(e) if a controversy or possible controversy exists, whether by reason of any statute, order, decree, rule, regulation, contract or otherwise, between Assignor and any purchaser of Assignee Minerals or any other Person, about the correct Sales Price of any Assignee Minerals, about deductions from the Sales Price, about Assignor’s right to receive the proceeds of any sale of Assignee Minerals, or about any other matter, then monies withheld by the purchaser or deposited by it with an escrow agent or if Assignor receives any monies and promptly deposits such monies with a Third Person escrow agent as a result of such controversy, such monies shall not be included within the Sales Price until received by or returned to Assignor, as applicable.

 

SandRidge ” means SandRidge Energy, Inc., a Delaware corporation.

 

SandRidge Sub ” means Mistmada Oil Company, Inc., an Oklahoma corporation.

 

Subject Interests ” means Assignor’s undivided interests in the Subject Lands as described on Exhibit A hereto, whether as lessee under leases, as an owner of the Subject Minerals (or the right to extract such Minerals) or otherwise, by virtue of which undivided interests Assignor has the right to conduct exploration, drilling, development and Mineral production operations on the Subject Lands, or to cause such operations to be conducted, or to participate in such operations by paying and bearing all or any part of the costs, risks and liabilities of such operations, to drill, test, complete, equip, operate and produce wells to exploit the Minerals.  The “Subject Interests” (a) may be owned by Assignor pursuant to leases, deeds, operating, pooling or unitization agreements, orders or any other instruments, agreements or documents, recorded or unrecorded, (b) include any and all extensions or renewals of leases covering the Subject Lands (or any portion thereof) obtained by Assignor, or any Affiliate thereof, within six (6) months after the expiration or termination of any such lease, and (c) are subject to the Permitted Encumbrances.  For the avoidance of doubt, the “Subject Interests” do not include:  (i) Assignor’s interests in the Excluded Assets; (ii) Assignor’s rights to substances

 

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other than Minerals; (iii) Assignor’s rights to Minerals (other than Assignee Minerals) under contracts for the purchase, sale, transportation, storage, processing or other handling or disposition of Minerals; (iv) Assignor’s interests in, or rights to Minerals (other than Assignee Minerals) held in pipelines, gathering systems, storage facilities, processing facilities or other equipment or facilities; or (v) any additional or enlarged interests in the Wells, Subject Lands or Subject Minerals acquired by Assignor after the Closing Time, except (1) to the extent any such additional or enlarged interest becomes a part of the Subject Interests by amendment to this Conveyance pursuant to Section 3.01 or 3.02 of the Development Agreement, (2) as may result from the operation of the terms of the instruments creating the Subject Interests, or (3) as may be reflected in extensions and renewals covered by the preceding sentence.

 

Subject Lands ” means the lands subject to or covered by the oil and gas leases described in Exhibit A hereto, insofar and only insofar as they cover the Target Formation, subject to the exceptions, exclusions and reservations set forth on such Exhibit A hereto.

 

Subject Minerals ” means all Minerals in and under, and that may be produced, saved and sold from a Well, from and after the Effective Time, insofar and only insofar as such Minerals are produced from the Target Formation, subject to the following exclusions:  Minerals that are (a) lost in the production, gathering or marketing of Minerals; (b) used (i) in conformity with ordinary and prudent operations on the Subject Lands, including drilling and production operations with respect to a Well or (ii) in connection with operations (whether on or off the Subject Lands) for processing or compressing the Subject Minerals; (c) taken by a Third Person to recover costs, or some multiple of costs, paid or incurred by that Third Person under any operating agreement, unit agreement or other agreement in connection with nonconsent operations conducted (or participated in) by that Third Person; and (d) retained by a Third Person for gathering, transportation, processing or marketing services related to the Subject Minerals in lieu of or in addition to cash payment for such services, to the extent such agreement is permitted under this Conveyance.

 

Target Formation ” means (i) with respect to Alfalfa County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4,833’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,344’ in the SandRidge Energy Dorado SWD 1-32 located in section 32, Township 29 North, Range 9 West (API No. 35003219830000); (ii) with respect to Grant County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,395’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 6,060’ in the SandRidge Energy Orion 1-22 SWD located in section 22, Township 25 North, Range 5 West (API No. 35053227710000); (iii) with respect to Kay County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4,387’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 4,619’ in the Jefferson-WMS State School Land 5-36 located in section 36, Township 25 North, Range 2 West (API No. 35071224500000); (iv) with respect to Noble County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4,523’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 4,783’ in the SandRidge Energy County Line SWD 1-2 located in section 2, Township 24

 

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North, Range 2 West (API No. 35103242860000); and (v) with respect to Woods County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,204’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,704’ in the SandRidge Energy Koppitz SWD 1-31 located in section 31, Township 28 North, Range 13 West (API No. 35151232750000).

 

Taxes ” is defined in Section 3.02(c).

 

Term Development Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term Development Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (Development) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Third Person ” means a Person other than Assignor, Assignee or Trustee.

 

Transfer ” including its syntactical variants, means any assignment, sale, transfer, conveyance or disposition of any property; provided , that Transfer as used herein does not include the granting of a mortgage on or security interest in Assignor’s interest in any property, including the Wells, the Subject Interests and/or the Subject Lands.

 

Trustee ” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America with its principal place of business in New York, New York, as trustee, acting not in its individual capacity but solely as trustee of Assignee.

 

Well ” means the borehole of each Mineral well more particularly described in Exhibit C hereto.

 

ARTICLE III.
CALCULATION OF ASSIGNEE MINERALS

 

Section 3.01 Definition . “ Assignee Minerals ” is that volume of Minerals with respect to each Well calculated in accordance with the following formula: Forty Percent (40%) X (Assignor’s Net Share of Minerals).

 

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Section 3.02 Chargeable Costs.

 

(a)  Definition . For each Computation Period, “ Chargeable Costs ” means the sum of (i) the Post Production Cost Charge, plus (ii) Excess Costs from prior Computation Periods, plus (iii) Taxes incurred, accrued or paid by Assignor; provided, that such costs are actually paid by Assignor during the relevant Computation Period or paid by Assignor during a prior Computation Period and not included in any prior Computation Period’s Chargeable Costs.  For the avoidance of doubt, all costs associated with, incurred or paid in connection with the drilling, testing, completing and equipping for production of the Wells shall be borne solely by Assignor and shall not be included as Chargeable Costs.

 

(b)  Post Production Cost Charge . “ Post Production Cost Charge ” means those costs incurred by Assignor (including internal costs and Third Person costs) to gather, store, transport, compress, process, treat, dehydrate and market, as applicable, the Subject Minerals, including any costs as may be required to deliver such Minerals to market; provided , that any costs charged by Assignor and its Affiliates as part of the Post Production Cost Charge shall not materially exceed the costs prevailing in the area where the Subject Minerals are being produced for similar services; and provided , further , that with respect to marketing costs, only Non-Affiliate marketing fees and costs shall be included, and marketing costs of Assignor and its Affiliates with respect to any Subject Minerals will be specifically excluded from the Post Production Cost Charge.  Any costs, fees or expenses that are properly charged or allocated to Assignee Minerals pursuant to another provision of this Conveyance (including, as provided for in the definition of Subject Minerals) shall not be included as part of the Post Production Cost Charge.

 

(c)  Taxes . “ Taxes ” means general property, ad valorem, production, severance, sales, windfall profit, excise and other taxes, except income taxes, assessed or levied on or in connection with the Subject Interests, the Royalty Interest, this Conveyance, production of Subject Minerals, Assignor’s Net Share of Minerals, Assignee Minerals (or the proceeds from the sale thereof) or facilities or equipment on the Subject Lands that are used for the production, dehydration, treatment, processing, gathering or transportation of Subject Minerals, or against Assignor as owner of the Subject Interests or paid by Assignor on behalf of Assignee as owner of the Royalty Interest.

 

(d)  Operating and Drilling Costs . For the avoidance of doubt, all costs associated with or paid or incurred in connection with the drilling, testing, completing, developing and operating the Wells or otherwise incurred in connection with the ownership or operation of the Subject Interests other than Taxes and Post Production Cost Charges shall be borne solely by Assignor and shall not be included as Chargeable Costs, and Assignor may use any Subject Minerals in such operations without any duty to account to Assignee.

 

Section 3.03 Assignee Proceeds . “ Assignee Proceeds ” means, for any Computation Period, (a) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals, with the amount of such proceeds being determined by multiplying (i) the volume of Assignee Minerals produced (expressed (A) for Gas, in Mcf or MMBtu, (B) for Gas Liquids, in Bbls and (C) for Oil, in Bbls) by (ii) the relevant Sales Price (expressed (A) for Gas, on a per Mcf or MMBtu basis, (B) for Gas Liquids, on a per Bbl

 

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basis and (C) for Oil, on a per Bbl basis), less (b) the Chargeable Costs associated with such Assignee Minerals.

 

ARTICLE IV.
MARKETING OF ASSIGNEE MINERALS

 

Section 4.01 Rights and Duties Regarding Sale of Assignee Minerals . Assignor shall market or shall cause to be marketed Assignor’s Net Share of Minerals (including Assignee Minerals) in good faith and in accordance with the Reasonably Prudent Operator Standard and Section 4.02(d).  Assignor shall use its reasonable efforts in connection with any sale of Assignor’s Net Share of Minerals (including Assignee Minerals) to obtain, as soon as reasonably practicable, full payment for such Minerals; provided , however , that it shall not be considered a breach of Assignor’s marketing duty or standard of conduct for Assignor to market such Minerals to an Affiliate of Assignor, so long as Assignor does not market such Minerals at a volume-weighted average price lower than the volume-weighted average price upon which Assignor pays royalties to the owners of the other royalty interests in the Subject Minerals, save and excepting Chargeable Costs provided for in Article III hereof.

 

Section 4.02 Assignee’s Agent and Representative.

 

(a)  Appointment . Assignee appoints Assignor as Assignee’s agent and representative to market and deliver or cause to be marketed and delivered all Assignee Minerals and to collect and receive all payments therefrom under any Minerals purchase agreement or contract without deduction (except to the extent Chargeable Costs are deducted for any Computation Period).  The appointment of Assignor as Assignee’s agent and representative for such purpose is a material item of consideration to the Parties in connection with the execution and delivery of this Conveyance.  Assignee may not remove Assignor from office as Assignee’s agent and representative, except for cause upon a material breach by Assignor of its duties to Assignee under this Conveyance.

 

(b)  Duties and Powers . As Assignee’s agent and representative, Assignor shall receive all payments for the sale of Assignee Minerals and account to Assignee, receive and make all communications with the purchaser of such Minerals, and otherwise act and speak for Assignee in connection with the sale of Assignee Minerals.  Third Persons may rely conclusively on the authority of Assignor to market Assignee Minerals, and with respect to Third Persons only, Assignee shall be conclusively bound by the acts of Assignor in connection with the sale of Assignee Minerals.  It shall not be necessary for Assignee to join Assignor in the execution of any division order, transfer order or other instrument, agreement or document relating to the sale of Assignee Minerals.  Third Persons may pay all Assignee Proceeds for the sale of such Minerals directly to Assignor, without the necessity of any joinder by or consent of Assignee or any inquiry into the use or disposition of such proceeds by Assignor.  In no event, however, shall the authority granted in this Section 4.02 or elsewhere in this Conveyance relieve Assignor of any liability for breach of this Conveyance.

 

(c)  Prohibited Acts . Assignor may not act for or bind Assignee on any matter, except the marketing and delivery of Assignee Minerals under this Article IV.

 

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(d)  Standard of Conduct . In exercising its powers and performing its duties as Assignee’s agent and representative, Assignor shall act in good faith and in accordance with the Reasonably Prudent Operator Standard.  It shall not be a violation of such standard of conduct for Assignor (i) to sell Assignor’s Net Share of Minerals or Assignee Minerals to an Affiliate pursuant to any purchase agreement or contract, or (ii) to delegate some or all of Assignor’s duties as Assignee’s agent and representative to its Affiliates (so long as such Affiliates perform in good faith and in accordance with the Reasonably Prudent Operator Standard), with Assignor remaining liable to Assignee for the performance of such duties.

 

(e)  Termination of Authority . Assignor may not resign as Assignee’s agent and representative without the prior written consent of Assignee, except that Assignor may resign as Assignee’s agent and representative without such consent with respect to any Subject Interests assigned, sold, transferred or conveyed by Assignor in accordance with the terms of this Conveyance.  If such sale is made subject to the Royalty Interest, Assignor must cause the purchaser to assume the duties of Assignee’s agent and representative with respect to the Subject Interests acquired by that purchaser and to be bound by the provisions of this Article IV.

 

Section 4.03 Delivery of Subject Minerals . Assignor (whether or not it is serving as Assignee’s agent and representative) shall deliver or cause to be delivered Assignor’s Net Share of Minerals (including Assignee Minerals) to the purchasers thereof.

 

Section 4.04 Processing . Assignor may, or may by contract cause a Third Person to, dehydrate, separate, treat, compress or otherwise process Assignor’s Net Share of Minerals (including Assignee Minerals) and may commit any of the Subject Interests (including the Royalty Interest attributable thereto) to an agreement for processing Minerals (pursuant to which, for example, the plant owner or operator receives a portion of the Subject Minerals or plant products therefrom or proceeds of the sale thereof as a fee for processing), so long as (a) Assignor enters into such processing arrangements in good faith and in accordance with the Reasonably Prudent Operator Standard, and (b) any such processing arrangements entered into with Affiliates of Assignor contain rates and charges that are comparable to the prevailing charges for similar services in the applicable area.  Assignee shall be bound by such arrangements and shall permit Assignor’s Net Share of Minerals (including Assignee Minerals) to be processed by Assignor or its contractor.  Assignee shall not, however, be personally liable for any costs or risks associated with such processing operations, but Assignee shall indirectly suffer the energy content reduction and volume reductions associated with processing through corresponding reductions in the content and volumes of Assignee Minerals.

 

ARTICLE V.
PAYMENT

 

Section 5.01 Obligation to Pay.

 

(a)  The Obligation .  After each Computation Period and on or before the Quarterly Payment Date for that Computation Period, Assignor shall tender to Assignee the Assignee Proceeds for the applicable Computation Period, plus , to the extent applicable, (i) all of the proceeds to be paid to Assignee from the sale of Assignee Minerals produced during any prior Computation Periods, to the extent not previously paid to Assignee for such prior

 

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Computation Periods, (ii) any damages payable to Assignee under Section 1.04(b) (subject to the right of set-off in Section 1.04(c)) during the most recently completed Computation Period, and (iii) any amounts (including any interest earned thereon) that were previously deposited with a Third Person escrow agent in accordance with Section 5.01(d) and subsequently determined by Assignor to be validly owing to Assignee.  All such amounts shall be transmitted to Assignee by Assignor by means of wire transfer of funds to a bank account specified by Assignee pursuant to written instructions which shall remain in effect until and unless changed by subsequent written notice to Assignor.

 

For purposes of determining the amount of Assignee Proceeds for any Computation Period, if, when calculating Assignee Minerals for any Computation Period, Assignor is unable to determine the precise volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals, then Assignor shall, in good faith and in accordance with the Reasonably Prudent Operator Standard, estimate the volume of such Minerals produced, sold and attributable to Assignor’s Net Share of Minerals.  Assignor shall adjust the calculation of Assignee Proceeds upward or downward, as the case may be, in the next or subsequent Computation Periods to reflect the difference between the estimated volume of Minerals established pursuant to this Section 5.01(a) and the actual volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals in the Computation Period for which such estimate was made.

 

(b)  Quarterly Payment Date . “ Quarterly Payment Date ” for each Computation Period means the forty-fifth (45th) day after the end of such Computation Period.  If such day is not a Business Day, the Quarterly Payment Date shall be the next Business Day.

 

(c)  No Segregated Account . Prior to the Quarterly Payment Date, all amounts received by Assignor from the sale of Assignor’s Net Share of Minerals and Assignee Minerals, as applicable, for any Computation Period shall be held by Assignor in one of its general bank accounts and Assignor will not be required to maintain a segregated account for such funds.

 

(d)  Disputed Proceeds . If Assignor receives any amounts of money from the sale of Assignee Minerals that is subject to controversy or, in the reasonable opinion of Assignor, possible controversy, Assignor shall promptly deposit the money with a Third Person escrow agent in a segregated interest-bearing account.  Such amount shall not be treated as a portion of Assignee Proceeds so long as it remains with such escrow agent, but shall be treated as a portion of Assignee Proceeds, along with the accrued interest, when received from such escrow agent and paid over to Assignee.

 

Section 5.02 Interest on Past Due Payments.

 

(a)  Obligation to Pay . Any Assignee Proceeds or other amounts of money not paid by Assignor to Assignee when due shall bear, and Assignor will pay, interest at the Prime Interest Rate on the overdue amount commencing on the sixth (6th) day after such due date until such amount is paid.

 

(b)  Definition . “ Prime Interest Rate ” means the lesser of (i) the rate of interest per annum publicly announced from time to time by The Bank of New York Mellon Trust Company,

 

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N.A. as its “prime rate” in effect at its principal office in New York City (each change in the “prime rate” to be effective on the date such change is publicly announced), with the understanding that such bank’s “prime rate” may be one of several base rates, may serve as a basis upon which effective rates are from time to time calculated for loans making reference thereto, and may not be the lowest of such bank’s base rates, and (ii) the maximum rate of interest permitted under any applicable Legal Requirement.

 

Section 5.03 Overpayments and Refunds .

 

(a)  Overpayments . If Assignor ever pays Assignee more than the amount of money then due and payable to Assignee under this Conveyance, Assignee shall not be obligated to return the overpayment, but Assignor may at any time thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to the overpayment.

 

(b)  Refunds . If Assignor is ever legally obligated to pay any Third Person, including any Minerals purchaser or Governmental Authority, any refund, interest, penalty or other amount of money, because any payment of Assignee Proceeds received by Assignor for the account of Assignee exceeded, or allegedly exceeded, the amount due or lawful under any applicable contract, Legal Requirement, or other obligation, Assignor may thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to such payment.

 

Section 5.04 Protection of Assignee Proceeds . It is the intent of Assignor and Assignee that Assignee is an “interest owner” with an interest separate and distinct from that of Assignor within the meaning and for the purposes of the Oil and Gas Owners’ Lien Act of 2010, Okla. Stat. tit. 52, § 549.1, et . seq ., and that Assignee is entitled to all the benefits of such Act.

 

ARTICLE VI.
RECORDS AND REPORTS

 

Section 6.01 Books, Records and Accounts.

 

(a)  Obligation to Maintain . Assignor shall maintain true and correct books, records and accounts of (i) all transactions required or permitted by this Conveyance, and (ii) the financial information necessary to effect such transactions, including the financial information needed to calculate each installment of Assignee Proceeds.

 

(b)  Right of Inspection . Assignee or its representative, at Assignee’s expense, may inspect and copy such books, records and accounts in the offices of Assignor during normal business hours and upon reasonable notice.

 

Section 6.02 Statements.

 

(a)  Quarterly Statements . On each Quarterly Payment Date, Assignor shall deliver to Assignee a statement showing the computation of Assignee Minerals and Assignee Proceeds for the applicable Computation Period.

 

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(b)  Annual Statements . On the first Quarterly Payment Date after the end of each calendar year, such statement shall also show the computation of Assignee Proceeds for the preceding calendar year.

 

(c)  Contents of Statements . Without limiting the generality of the foregoing provisions in this Section 6.02, each statement delivered by Assignor to Assignee pursuant to this Section 6.02 shall state, for the relevant period, (i) the total volumes of Subject Minerals produced from the Subject Lands, (ii) the total volumes of Assignor’s Net Share of Minerals, (iii) the total volumes of Assignee Minerals, (iv) the applicable Sales Price, (v) the Chargeable Costs, (vi) the amount of Assignee Proceeds due and payable for the relevant period, and (vii) the amounts of money, if any, due and payable by any purchaser of the Subject Minerals or Assignee Minerals, the nonpayment of which resulted in a reduction in Assignee Proceeds for the relevant period.

 

Section 6.03 Assignee’s Exceptions to Quarterly Statements . If Assignee takes exception to any item or items included in any quarterly statement required by Section 6.02, Assignee must notify Assignor in writing within sixty (60) days after Assignee’s receipt of such quarterly statement.  Such Notice must set forth in reasonable detail the specific charges complained of and to which exception is taken.  Adjustments shall be made for all complaints and exceptions that are justified.  Notwithstanding anything to the contrary herein, all matters reflected in Assignor’s statements for the preceding calendar year (or portion thereof) that are not objected to by Assignee in the manner provided by this Section 6.03 shall be deemed correct as rendered by Assignor to Assignee.

 

Section 6.04 Other Information.

 

(a)  Disclosure . At Assignee’s request, subject to applicable restrictions on disclosure and transfer of information, Assignor shall give Assignee and its designated representatives reasonable access in Assignor’s office during normal business hours to all title, geological (to the extent not prohibited by any applicable license agreement), Well and production data in Assignor’s possession or Assignor’s Affiliates’ possession, relating to operations on the Subject Interests.

 

(b)  Disclaimer of Warranties and Liability . Assignor makes no representations or warranties about the accuracy or completeness of any data, reports, studies or other information made available to Assignee and shall have no liability to Assignee or any other Person resulting from such data, studies, reports or other information.

 

(c)  No Attribution . Assignee shall not, in any securities filings or reports made by Assignee, attribute to Assignor or to the consulting engineers any reports or studies made available to Assignee, or the contents thereof.

 

(d)  Confidentiality . All information furnished to Assignee and its designated representatives pursuant to this Section 6.04 is confidential and for the sole benefit of Assignee and shall not be disclosed by Assignee or its designated representatives to any other Person, except to the extent that such information (i) is required in any report, statement or testimony submitted to any Governmental Authority having or claiming to have jurisdiction over Assignee

 

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or submitted to bank examiners or similar organizations or their successors, (ii) is required in response to any summons or subpoena or in connection with any litigation, (iii) is reasonably believed to be required in order to comply with any applicable Legal Requirement to Assignee, (iv) was publicly available or otherwise known to the recipient at the time of disclosure or (v) subsequently becomes publicly available other than through any act or omission of the recipient; provided , however , that with respect to the disclosures with respect to items (i), (ii) and (iii) above, Assignee will notify Assignor prior to any such disclosure in order to provide Assignor an opportunity to seek to limit any such required disclosure.  In connection with the marketing of Assignee’s assets upon termination of Assignee, Assignee and its designated representatives may, on a confidential basis in accordance with this Section 6.04(d), provide any potential purchaser of such assets with the same information Assignee has access to pursuant to Section 6.04.

 

ARTICLE VII.
NO LIABILITY OF ASSIGNEE

 

Assignee shall not be personally liable or responsible under this Conveyance for any cost, risk, liability or obligation associated in any way with the ownership or operation of the Subject Lands, the Subject Interests, the Wells or the Subject Minerals.  The foregoing sentence does not restrict the right of Assignor to deduct Chargeable Costs in calculating the volumes of Assignee Minerals or Assignee Proceeds.

 

ARTICLE VIII.
OPERATIONS

 

Section 8.01 Standards of Conduct . Except as otherwise specifically provided in this Conveyance, Assignor shall (a) operate and maintain the Subject Interests, and (b) make elections under each applicable lease, operating agreement, unit agreement, contract for development and other similar instrument or agreement (including elections concerning abandonment of any Well or release of any Subject Interest) in good faith and in accordance with the Reasonably Prudent Operator Standard.

 

Section 8.02 Abandonment of Properties . Nothing in this Conveyance shall obligate Assignor to continue to operate any Well or to operate or maintain in force or attempt to maintain in force any Subject Interest when such Well or Subject Interest ceases to produce, or Assignor determines that such Well or Subject Interest is not capable of producing Minerals in paying quantities, or that such Well or Subject Interest is sufficiently unlikely to be made capable of producing Minerals in paying quantities such that additional operations are unwarranted, all in accordance with Section 8.01 above.  The expiration of a Subject Interest in accordance with the terms and conditions applicable thereto shall not be considered to be a voluntary surrender or abandonment thereof.

 

ARTICLE IX.
POOLING AND UNITIZATION

 

Section 9.01 Pooling of Subject Interests . Certain Subject Interests have been, or may have been, heretofore pooled and unitized for the production of Minerals.  Such Subject

 

17



 

Interests are and shall be subject to the terms and provisions of the applicable pooling and unitization agreements and orders, and the Royalty Interest in each pooled or unitized Subject Interest shall apply to and affect only the Minerals produced from such units that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreements and orders.

 

Section 9.02 Pooling and Unitization.

 

(a)  Right to Pool . Assignor has the exclusive executive right and power (as between Assignor and Assignee) to pool or unitize any Subject Interest and to alter, change, amend or terminate any pooling or unitization agreements heretofore or hereafter entered into, as to all or any part of the Subject Lands, as to any one or more of the formations or horizons, and as to any Minerals, upon such terms and provisions as Assignor shall in its sole discretion deem appropriate.

 

(b)  Effect of Pooling . If and whenever through the exercise of such right and power, or pursuant to any Legal Requirement now existing or hereafter enacted or promulgated, any Subject Interest is pooled or unitized in any manner, the Royalty Interest shall apply to and affect only the Minerals production that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreement or order.  It shall not be necessary for Assignee to agree to, consent to, ratify, confirm or adopt any exercise of pooling or unitization of any Subject Interest by Assignor.

 

ARTICLE X.
GOVERNMENT REGULATION

 

Section 10.01 Legal Requirements . Except as provided in Section 10.03, all obligations of Assignor under this Conveyance are, and shall be, subject to all applicable Legal Requirements and the instruments, documents and agreements creating the Subject Interests.

 

Section 10.02 Filings . Assignor shall use its reasonable discretion in making filings for itself and on behalf of Assignee with any Governmental Authority having jurisdiction with respect to matters affecting the Subject Interests, the Subject Lands or the Subject Minerals.

 

Section 10.03 Superseding Effect. By acceptance of this Conveyance, Assignee agrees, for itself and its successors and assigns, immediate and remote, that the timing of payment, accrual of interest and reporting requirements with respect to the Royalty Interest shall be as provided by the terms of this Conveyance and not as prescribed by the Oklahoma Production Revenue Standards Act, as amended, codified at Title 52, Section 570.1, et seq. of the Oklahoma Statutes (the “ Act ”).  Assignee expressly waives any rights it may have under the Act, including, without limitation, interest on payments related to Assignee Proceeds at the rate provided in Title 52, Section 570.10, et seq. of the Oklahoma Statutes and the reporting requirements provided in Title 52, Section 570.12, et seq. of the Oklahoma Statutes, or any similar Legal Requirement.

 

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ARTICLE XI.
ASSIGNMENT AND SALE OF SUBJECT INTERESTS

 

Section 11.01 Assignment by Assignor Subject to Royalty Interest.

 

(a)  Right to Sell . Assignor may not Transfer any interest in the Wells, the Subject Interests or any part thereof or any undivided interest therein in violation of Section 11.03.  Subject to Section 11.02 and 11.03, Assignor may from time to time Transfer, mortgage or pledge its interest in the Wells, the Subject Interests, or any part thereof or undivided interest therein, if and only if (i) such Transfer, mortgage or pledge is made expressly subject to and burdened with the Royalty Interest and this Conveyance; (ii) solely in connection with a Transfer other than a Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has caused the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer; and (iii) in connection with any Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has used commercially reasonable efforts to cause the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer.  Any assumption and agreement to discharge shall be by appropriate written instrument for the express benefit of and enforceable by Assignee.  For the avoidance of doubt, nothing in this Section 11.01(a) is intended to permit any assignee, purchaser, transferee or grantee to acquire any interest in the Wells, the Subject Interests or any part thereof or undivided interest therein without being subject to and burdened with the Royalty Interest and this Conveyance.  Assignee shall not be required to recognize any purported Transfer, mortgage or pledge not made in conformance with this Section 11.01(a) and, notwithstanding any such purported Transfer, mortgage or pledge, Assignor shall remain obligated under this Conveyance just as if such Transfer, mortgage or pledge attempt had not been made and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, any purported Transfer not made in conformance with this Section 11.01(a) shall be void and of no effect.

 

(b)  Effect of Sale . From and after the actual date of any such Transfer by Assignor made in full compliance with Section 11.01(a) (and only upon such full compliance), Assignor shall be relieved of all obligations, requirements and responsibilities arising under this Conveyance with respect to the Subject Interests Transferred, as the same pertain to Assignee Minerals produced from and after (but not prior to) said date of such Transfer.

 

(c)  Allocation of Consideration . Assignee is not entitled to receive any share of the sales proceeds received by Assignor in any transaction permitted by this Section 11.01.

 

(d)  Separate Interest . Notwithstanding any provision to the contrary in Article IV, effective on the effective date of any Transfer of any Subject Interest made in full compliance with Section 11.01(a), Assignee Minerals and Assignee Proceeds shall thereafter be

 

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computed separately with respect to such Subject Interests, and the assignee, buyer, transferee or grantee of such Subject Interests shall thereafter serve as Assignee’s agent and representative under Article IV with respect to such interests and shall pay all corresponding Assignee Proceeds directly to Assignee.

 

Section 11.02 Sale and Assignment of Properties.

 

(a)  Transfer . Subject to Section 11.03, Assignor may from time to time, Transfer the Wells, the Subject Interests, or any part thereof or undivided interest therein, free of the Royalty Interest and this Conveyance provided that the aggregate Fair Value of all Royalty Interests assigned with respect to the Assignor Conveyances during any twelve (12) month period shall not exceed $5,000,000.

 

(b)  Payments . In connection with any Transfer pursuant to this Section 11.02, Assignor shall remit to Assignee an amount equal to the Fair Value of the Royalty Interest being assigned.  Assignor shall make such payment to Assignee on the Quarterly Payment Date for the Computation Period in which Assignor receives the payment with respect to any such Transfer of the Subject Interest.

 

(c)  Assignment . In connection with any Transfer provided for in Section 11.02(a), Assignee shall, upon request of Assignor, execute, acknowledge and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that assigns the Royalty Interest in the Well and the related Subject Interests and Subject Lands being Transferred, to Assignor, or to one or more assignees, as Assignor may direct.

 

(d)  Effect of Sale . From and after the actual date of any such Transfer by Assignor, Assignor and any assignee, purchaser, transferee or grantee of such Subject Interest shall be relieved of all obligations, requirements and responsibilities arising under the Royalty Interest or this Conveyance with respect to the Well or Subject Interests Transferred, except for those that accrued prior to such date.

 

Section 11.03 Transfer of Subject Lands . Assignor will not Transfer any Well or any of the Subject Interests comprising a part of the Subject Lands pursuant to Sections 11.01 and 11.02 prior to the Drilling Obligation Completion Date, and in the event of any attempted Transfer in violation of this Section 11.03, Assignor shall remain liable and a party hereto, just as if no Transfer attempt had been made, and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, such attempted Transfer in violation of this Section 11.03 shall be void and of no force or effect.  Assignor expressly states and recognizes that the restrictions on Transfer imposed on Assignor in this Section 11.03 and in Section 11.01(a) are made in reasonable protection of an interest of Assignee created hereunder.

 

Section 11.04 Change in Ownership.

 

(a)  Obligation to Give Notice . No change of ownership or of the right to receive payment of the Royalty Interest, or of any part thereof, however accomplished, shall bind Assignor until notice thereof is furnished to Assignor by the Person making the transfer and the

 

20



 

Person claiming the benefit thereof, and then only with respect to payments made after such Notice is furnished.

 

(b)  Notice of Sale . Notice of sale, transfer, conveyance or assignment shall consist of a certified copy of the recorded instrument accomplishing the same.

 

(c)  Notice of Other Changes of Ownership . Notice of change of ownership or of the right to receive payment accomplished in any other manner ( e.g. , by dissolution of Assignee) shall consist of certified copies of recorded documents and complete proceedings legally binding and conclusive of the rights of all Persons.

 

(d)  Effect of Lack of Notice . Until such Notice accompanied by such documentation is furnished to Assignor in the manner provided above, Assignor may, at Assignor’s election, either (i) continue to pay or tender all sums payable on the Royalty Interest in the same manner provided in this Conveyance, precisely as if no such change in interest or ownership or right to receive payment had occurred, or (ii) suspend payment of Assignee Proceeds without interest until such documentation is furnished.

 

(e)  Effect of Nonconforming Notices . The kinds of Notice provided by this Section 11.04 shall be exclusive, and no other kind, whether actual or constructive, shall bind Assignor.

 

Section 11.05 One Payee . Assignor shall never be obligated to pay Assignee Proceeds to more than one Person.  If more than one Person is ever entitled to receive payment of any part of Assignee Proceeds, Assignor may suspend payments of all Assignee Proceeds until the concurrent owners or claimants of the Royalty Interest or the right to receive payment of Assignee Proceeds appoint one Person in writing to receive all payments of Assignee Proceeds on their behalf.  Assignor may thereafter conclusively rely upon the authority of that Person to receive payments of Assignee Proceeds and shall be under no further duty to inquire into the authority or performance of such Person.

 

Section 11.06 Rights of Mortgagee . If Assignee executes a mortgage or deed of trust covering all or part of the Royalty Interest, the mortgagees or trustees therein named or the holders of any obligation secured thereby shall be entitled, to the extent that such mortgage or deed of trust so provides, to exercise the rights, remedies, powers and privileges conferred upon Assignee by this Conveyance and to give or withhold all consents required to be obtained from Assignee.  This Section 11.06 shall not be deemed or construed to impose upon Assignor any obligation or liability undertaken by Assignee under such mortgage or deed of trust or under the obligation secured thereby.

 

Section 11.07 No Drainage . Subsequent to the Drilling Obligation Completion Date, neither Assignor nor any of its Affiliates shall drill any Mineral well that will have a perforation or a stimulation site in the Target Formation that will be within six hundred sixty feet (660’) of any perforation or stimulation site of any Well which produces oil or gas from the Target Formation.

 

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ARTICLE XII.
FORCE MAJEURE

 

Section 12.01 Nonperformance . Assignor shall not be responsible to Assignee for any loss or damage to Assignee resulting from any delay in performing or failure to perform any obligation under this Conveyance (other than Assignor’s obligation to make payments of Assignee Proceeds to Assignee) to the extent such failure or delay is caused by Force Majeure.

 

Section 12.02 Force Majeure . “ Force Majeure ” means any of the following, to the extent they are not caused solely by the breach by Assignor of its duty to perform certain obligations under this Conveyance in accordance with the Reasonably Prudent Operator Standard:

 

(a) act of God, fire, lightning, landslide, earthquake, storm, hurricane, hurricane warning, flood, high water, washout, tidal wave or explosion;

 

(b) strike, lockout, or other similar industrial disturbance, act of the public enemy, war, military operation, blockade, insurrection, riot, epidemic, arrest or restraint of Governmental Authority or people, or national emergency;

 

(c) the inability of Assignor, or any Affiliate of Assignor, to acquire, or the delay on the part of any Third Person (other than an Affiliate of Assignor) in acquiring, materials, supplies, machinery, equipment, servitudes, right-of-way grants, easements, permits, licenses, approvals or authorizations necessary to enable such Party to perform hereunder;

 

(d) any breakage of or accident to machinery, equipment or lines of pipe, the repair, maintenance, improvement, replacement, alteration to a plant or line of pipe or related facility, the testing of machinery, equipment or line of pipe, or the freezing of a line of pipe;

 

(e) any Legal Requirement or the affected Party’s compliance therewith; or

 

(f) any other cause, whether similar or dissimilar to the causes enumerated in (a) through (e) above, not reasonably within the control of Assignor.

 

Section 12.03 Force Majeure Notice . Assignor will give Assignee a Notice of each Force Majeure as soon as reasonably practicable after the occurrence of such Force Majeure.

 

Section 12.04 Remedy . Assignor will use its reasonable efforts to remedy each Force Majeure and resume full performance under this Conveyance as soon as reasonably practicable, except that the settlement of strikes, lockouts or other labor disputes shall be entirely within the discretion of Assignor.

 

ARTICLE XIII.
NOTICE

 

Section 13.01 Written Notice . Except as otherwise provided by this Conveyance, each Notice shall be in writing.

 

Section 13.02 Methods of Giving Notice . Notice may be given by any reasonable means, including email, telecopier, hand delivery, overnight courier or U.S. mail.

 

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Section 13.03 Charges . All Notices shall be properly addressed to the recipient, with all postage and other charges being paid by the Party giving Notice.

 

Section 13.04 Effective Date. Notice shall be effective when actually received by the Party being notified; provided , however , that Notices given by email or telecopy on any day other than a Business Day, or on a Business Day but after 5:00 p.m. local time at the location of the Party being notified, shall be deemed received on the next Business Day, unless receipt is acknowledged prior to the next Business Day.

 

Section 13.05 Addresses . The addresses of the Parties for purposes of Notice are the addresses in the introductory paragraph to this Conveyance.

 

Section 13.06 Change of Address . Either Party may change its address to another address within the continental United States by giving ten (10) days’ Notice to the other Party.

 

ARTICLE XIV.
OTHER PROVISIONS

 

Section 14.01 Successors and Assigns . The provisions and conditions contained in this Conveyance shall run with the land and the respective interests of Assignor and Assignee in, or related to, the Subject Lands, and, subject to the limitation and restrictions on the assignment or delegation by the Parties of their rights and interests under this Conveyance, this Conveyance binds and inures to the benefit of Assignor, Assignee and their respective successors, assigns and legal representatives.

 

Section 14.02 Governing Law . THIS CONVEYANCE SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF OKLAHOMA WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

Section 14.03 Construction of Conveyance . In construing this Conveyance, the following principles shall be followed:

 

(a) no consideration shall be given to the captions of the articles, sections, subsections or clauses, which are inserted for convenience in locating the provisions of this Conveyance and not as an aid in its construction;

 

(b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Conveyance;

 

(c) the word “includes” and its syntactical variants mean “includes, but is not limited to” and corresponding syntactical variant expressions;

 

(d) a defined term has its defined meaning throughout this Conveyance, regardless of whether it appears before or after the place in this Conveyance where it is defined;

 

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(e) the plural shall be deemed to include the singular, and vice versa, unless the context otherwise requires; and

 

(f) each exhibit, attachment and schedule to this Conveyance is a part of this Conveyance, but if there is any conflict or inconsistency between the main body of this Conveyance and any exhibit, attachment or schedule, the provisions of the main body of this Conveyance shall prevail.

 

Section 14.04 No Waiver . Failure of either Party to require performance of any provision of this Conveyance shall not affect either Party’s right to require full performance thereof at any time thereafter, and the waiver by either Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.

 

Section 14.05 Relationship of Parties . This Conveyance does not create a partnership, mining partnership, joint venture or relationship of trust or agency (except with respect to Assignor’s agency relationship with respect to those matters set forth in Articles IV and V above) between the Parties.

 

Section 14.06 Further Assurances . Each Party shall execute, acknowledge and deliver to the other Party all additional instruments and other documents reasonably required to describe more specifically any interests subject hereto, to vest more fully in Assignee the Royalty Interest conveyed (or intended to be conveyed) by this Conveyance, or to evidence or effect any transaction contemplated by this Conveyance.  Assignor shall also execute and deliver all additional instruments and other documents reasonably required to transfer interests in state, federal or Indian lease interests in compliance with applicable Legal Requirements or agreements.

 

Section 14.07 The 12:01 A.M. Convention . Except as otherwise provided in this Conveyance, each calendar day, month, quarter and year shall be deemed to begin at 12:01 a.m. Central Time on the stated day or on the first day of the stated month, quarter or year, and to end at 12:00 a.m. Central Time on the next day or on first day of the next month, quarter or year, respectively.

 

Section 14.08 Counterpart Execution . This Conveyance may be executed in any number of counterparts, all of which are identical except that to facilitate filing and recording, counterparts to be filed and recorded in the appropriate records of each county may have included in Exhibit A hereto only those portions of Exhibit A hereto that contain descriptions of the lands and leases located in said county.  Every counterpart of this Conveyance shall be deemed to be an original for all purposes, and all such counterparts together shall constitute one and the same instrument.  An executed counterpart of this Conveyance containing the full text to the entire Exhibits and Annexes is recorded in the real property records of Alfalfa County, Oklahoma.  Counterparts of this Conveyance with all portions of Exhibit A hereto will be kept at the offices of Assignor and Assignee at the addresses indicated in the introductory paragraph to this Conveyance.  As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf shall be deemed an original hereto.

 

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Section 14.09 Present and Absolute Conveyance . It is the express intention of Assignor and Assignee that the Royalty Interest is, and shall be construed for all purposes as, a present, fully-vested and absolute conveyance.

 

Section 14.10 Limitation of Liability.  It is expressly understood and agreed by the Parties hereto that (a) this Conveyance is executed and delivered by the Trustee not individually or personally, but solely as Trustee in the exercise of the powers and authority conferred and vested in it, and (b) under no circumstances shall the Trustee be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by Assignee under this Conveyance.

 

Section 14.11 Severability . In case any provision, covenant or obligation under this Conveyance is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions, covenants or obligations of this Conveyance are declared to be severable and not in any way affected or impaired thereby.

 

[ Remainder of page intentionally left blank. ]

 

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IN WITNESS WHEREOF, each Party has caused this Conveyance to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Conveyance, to be effective as of the Effective Time.

 

 

 

SANDRIDGE EXPLORATION AND PRODUCTION, LLC

 

 

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

Signature Page to Perpetual Overriding Royalty Interest

Conveyance (Oklahoma) (PDP)

 



 

 

SANDRIDGE MISSISSIPPIAN TRUST II

 

 

 

By:

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

Name:

Michael J. Ulrich

 

 

Title:

Vice-President

 

Signature Page to Perpetual Overriding Royalty Interest

Conveyance (Oklahoma) (PDP)

 



 

STATE OF OKLAHOMA

§

 

§

COUNTY OF OKLAHOMA

§

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb, President and Chief Operating Officer of SandRidge Exploration and Production, LLC, a Delaware limited liability company, on behalf of said limited liability company.

 

 

 

 

/s/ Janis L. Roberts

 

 

NOTARY PUBLIC,

 

 

 

 

 

State of Oklahoma

 

 

 

 

 

Janis L. Roberts

 

 

(printed name)

 

 

 

 

 

 

My commission expires: May 22, 2012

 

 

 

 

 

 

 

 

 

 

 

SEAL or STAMP

 

 

 

Acknowledgment Page to Perpetual Overriding Royalty Interest

Conveyance (Oklahoma) (PDP)

 



 

STATE OF TEXAS

§

 

§

COUNTY OF TRAVIS

§

 

This instrument was acknowledged before me on April 17, 2012, by Michael J. Ulrich, Vice President of The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, as Trustee of SandRidge Mississippian Trust II, a Delaware statutory trust, on behalf of said national banking association and said trust.

 

 

 

 

/s/ Sarah Newell

 

 

NOTARY PUBLIC,

 

 

 

 

 

State of Texas

 

 

 

 

 

Sarah Newell

 

 

(printed name)

 

 

 

 

 

 

 

 

 

My commission expires: February 16, 2014

 

 

 

 

 

 

 

 

 

 

 

SEAL or STAMP

 

 

 

Acknowledgment Page to Perpetual Overriding Royalty Interest

Conveyance (Oklahoma) (PDP)

 



 

Exhibit A

 

(Subject Lands)

 

See attached.

 



 

Exhibit B

 

(Excluded Assets)

 

None.

 



 

Exhibit C

 

(Wells)

 

See attached.

 


Exhibit 10.7

 

Execution Copy

 

LONG-TERM OVERRIDING ROYALTY INTEREST

CONVEYANCE (KANSAS) (DEVELOPMENT)

 

This LONG-TERM OVERRIDING ROYALTY INTEREST CONVEYANCE (KANSAS) (DEVELOPMENT) (this “ Conveyance ”) from SandRidge Exploration and Production, LLC, a Delaware limited liability company, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ Assignor ”), to SandRidge Mississippian Trust II, a statutory trust formed under the laws of the State of Delaware, with offices at c/o The Bank of New York Mellon Trust Company, N.A., 919 Congress Avenue, Suite 500, Austin, Texas 78701 (“ Assignee ”), is delivered to be effective as of the Effective Time.  All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Article II below.

 

ARTICLE I.
CONVEYANCE

 

Section 1.01 The Grant . For and in consideration of good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby BARGAIN, SELL, GRANT, CONVEY, TRANSFER, ASSIGN, SET OVER, and DELIVER unto Assignee, subject to the terms of this Conveyance, as an overriding royalty interest (the “ Royalty Interest ”), an undivided interest in and to all Minerals that may be produced and saved from the Target Formation underlying the Subject Lands through the wellbores of the Development Wells, sufficient to cause Assignee to receive the Assignee Minerals.  To the extent any interest conveyed hereunder is created out of a mineral interest, rather than out of an oil and gas leasehold interest, the term “overriding royalty interest” shall be interpreted to mean a non-participating royalty interest with respect to that particular interest, but any such interest shall still be subject to, and shall have the rights and obligations set forth in, this Conveyance.

 

Section 1.02 Non-Operating, Non-Expense Bearing Interest.  The Royalty Interest conveyed hereby is a non-operating, non-expense-bearing overriding royalty interest in and to the Subject Interests, free of all cost, risk and expense of production, operations and marketing.  In no event shall Assignee ever be liable or personally obligated for payment of any cost, expenses or liabilities attributable to the Subject Interests (or any part thereof) or incurred in connection with the production, saving or marketing of Assignee Minerals, subject, however, to Assignor’s right hereinafter provided to deduct Chargeable Costs in determining Assignee Proceeds, which right shall be solely a matter of deduction from the proceeds from the sale of Assignee Minerals and not a personal obligation of Assignee.

 

Section 1.03 Habendum Clause . TO HAVE AND TO HOLD the Royalty Interest, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Assignee, its successors and assigns, subject to terms and provisions of this Conveyance, for twenty-one (21) years from the Effective Time, and if the Royalty Interest vests during said twenty-one (21) years, so long thereafter as the Subject Interests remain in force.

 



 

Section 1.04 Warranty.

 

(a)  The Warranty . Assignor warrants to Assignee, its successors and assigns, that the Royalty Interest is free of all Encumbrances created by, through or under Assignor, but not otherwise, except for the Permitted Encumbrances.

 

(b)  Remedies . In the event of a breach of the foregoing warranty, Assignee’s sole remedy shall be to receive payment on each applicable Quarterly Payment Date, out of Assignor’s Net Share of Minerals from other Development Wells in excess of that subject to the Royalty Interest and the royalty interest created pursuant to the Term Development Kansas Conveyance (the “ Assignor Retained Minerals ”), subject to offset as provided below and without interest (except such interest payable under this Conveyance on payments made after the applicable due date as described in Section 5.02 below), of an amount equal to the difference between (x) Assignee Proceeds that Assignee would have received with respect to such Development Well in the applicable Computation Period if such warranty had not been breached, and (y) Assignee Proceeds that Assignee actually received during that Computation Period with respect to that Development Well, to the extent such difference is attributable to the breach of the warranty, but not to the extent that such difference is attributable to any other cause, and any such amounts of Assignor Retained Minerals shall be treated as Assignee Minerals.

 

(c)  Right of Offset . If any Subject Interest ever proves to be larger as of the Effective Date than the Subject Interest reflected in Exhibit A hereto and if, as a result, Assignee receives a greater amount of Assignee Minerals (or the proceeds from the sale thereof) with respect to that Subject Interest than Assignee would otherwise have received if the Subject Interest had been the size reflected on Exhibit A hereto, then such increased amounts, whenever received by Assignee, may be treated by Assignor as a credit or offset (without interest) against any amounts payable to Assignee under Section 1.04(b).

 

(d)  DISCLAIMER . EXCEPT FOR THE WARRANTIES OF TITLE GIVEN IN SECTION 1.04(a), ASSIGNOR MAKES THIS CONVEYANCE AND ASSIGNS THE ROYALTY INTEREST WITHOUT RECOURSE, COVENANT OR WARRANTY OF TITLE OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY.  ANY COVENANTS OR WARRANTIES IMPLIED BY STATUTE OR LAW BY THE USE HEREIN OF THE WORDS “ GRANT ”, “ CONVEY ” OR OTHER SIMILAR WORDS ARE HEREBY EXPRESSLY DISCLAIMED, WAIVED AND NEGATED.  WITHOUT LIMITING THE GENERALITY OF THE TWO PRECEDING SENTENCES, ASSIGNEE ACKNOWLEDGES THAT ASSIGNOR HAS NOT MADE, AND ASSIGNOR HEREBY EXPRESSLY DISCLAIMS AND NEGATES, AND ASSIGNEE HEREBY EXPRESSLY WAIVES, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO (i) PRODUCTION RATES, RECOMPLETION OPPORTUNITIES, DECLINE RATES OR THE QUALITY, QUANTITY OR VOLUME OF THE RESERVES OF MINERALS, IF ANY, ATTRIBUTABLE TO THE SUBJECT INTERESTS, (ii) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (iii) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iv) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, AND (v) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER ANY APPLICABLE LEGAL REQUIREMENT; IT BEING THE EXPRESS INTENTION OF BOTH

 

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ASSIGNEE AND ASSIGNOR THAT THE ROYALTY INTEREST IS HEREBY ASSIGNED TO ASSIGNEE ON AN “AS IS” AND “WHERE IS” BASIS WITH ALL FAULTS, AND THAT ASSIGNEE HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS ASSIGNEE DEEMS APPROPRIATE.  ASSIGNOR AND ASSIGNEE AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LEGAL REQUIREMENTS TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS SECTION ARE “CONSPICUOUS” DISCLAIMERS FOR THE PURPOSES OF ANY APPLICABLE LEGAL REQUIREMENT.

 

(e)  Substitution of Warranty . This instrument is made with full substitution and subrogation of Assignee in and to all covenants of warranty by Third Persons (other than Affiliates of Assignor) heretofore given or made with respect to the Development Wells, the Subject Interests or any part thereof or interest therein.

 

Section 1.05 Reconveyance of Excess Acreage . After the Drilling Obligation Completion Date, Assignee shall, on request, execute, acknowledge and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that reconveys to Assignor the Royalty Interest except with respect to all Subject Minerals that may be produced from any wellbore of any Development Well.

 

ARTICLE II.
DEFINITIONS

 

This Article II defines certain capitalized words, terms, and phrases used in this Conveyance. Certain other capitalized words, terms, and phrases used in this Conveyance are defined elsewhere in this Conveyance.

 

Act ” is defined in Section 10.03.

 

Affiliate ” means, for any specified Person, another Person that controls, is controlled by, or is under common control with, the specified Person.  “ Control ,” in the preceding sentence, refers to the possession by one Person, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.

 

AMI ” means that area described in Exhibit A to the Development Agreement, as such area may be extended or exchanged pursuant to Article III of the Development Agreement.

 

Assignee ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignee.

 

Assignee Minerals ” is defined in Section 3.01.

 

Assignee Proceeds ” is defined in Section 3.03.

 

Assignor ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignor.

 

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Assignor Conveyances ” means the Assignor Kansas Conveyances and the Assignor Oklahoma Conveyances.

 

Assignor Kansas Conveyances ” means this Conveyance, the Term Development Kansas Conveyance, the Perpetual PDP Kansas Conveyance and the Term PDP Kansas Conveyance.

 

Assignor Oklahoma Conveyances ” means the Perpetual Development Oklahoma Conveyance, the Term Development Oklahoma Conveyance, the Perpetual PDP Oklahoma Conveyance and the Term PDP Oklahoma Conveyance.

 

Assignor Retained Minerals ” is defined in Section 1.04(b).

 

Assignor’s Net Revenue Interest ” means the interest, stated as a decimal fraction, in Subject Minerals production from a Development Well attributable to the Subject Interests in that Development Well, net of Production Burdens.

 

Assignor’s Net Share of Minerals ” means the share of Subject Minerals from each Development Well that is attributable to Assignor’s Net Revenue Interest in that Development Well determined prior to giving effect to this Conveyance.

 

Bbl ” means one stock tank barrel, or 42 U.S. gallons liquid volume, in reference to Oil or Gas Liquids.

 

Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the New York Stock Exchange, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.

 

Chargeable Costs ” is defined in Section 3.02(a).

 

Closing Time ” means 12:01 a.m. Central Time, on April 23, 2012.

 

Computation Period ” means each calendar quarter commencing on or after 12:01 a.m., Central Time, on January 1, 2012, with each such calendar quarter being deemed to have begun at 12:01 a.m. Central Time on the first day of such calendar quarter and to have ended at 12:00 a.m. Central Time on the first day of the next calendar quarter.

 

Conveyance ” is defined in the introductory paragraph to this Conveyance.

 

Development Agreement ” means that certain Development Agreement by and among SandRidge, Assignor and Assignee, dated as of even date herewith and effective as of the Effective Time.

 

Development Well ” has the meaning given to such term in the Development Agreement.

 

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Drilling Obligation Completion Date ” has the meaning given to such term in the Development Agreement.

 

Effective Time ” means 12:01 a.m., Central Time, on January 1, 2012; provided , however , that with respect to each oil and gas lease described in Exhibit A that has a date after January 1, 2012, the Effective Time, with respect to each such oil and gas lease, shall be 12:01 a.m., Central Time, on the date of such oil and gas lease.

 

Encumbrance ” means any mortgage, lien, security interest, pledge, charge, encumbrance, limitation, preferential right to purchase, consent to assignment, irregularity, burden or defect.

 

Excess Costs ” means, in any Computation Period, the excess of (x) Chargeable Costs associated with Assignee Minerals for that Computation Period over (y) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals (with the amount in clause (y) calculated as provided in Section 3.03(a) hereof).  Excess Costs shall bear interest at the Prime Interest Rate from the end of the Computation Period in which such costs were incurred to the date that Assignor recovers such amounts from Assignee Proceeds.

 

Excluded Assets ” means (a) those oil and gas wells that are the subject of the Term PDP Kansas Conveyance and the Perpetual PDP Kansas Conveyance, and (b) those oil and gas wells that are described in Exhibit B hereto.

 

Fair Value ” means, with respect to any portion of the Royalty Interest to be assigned pursuant to Section 11.02 in connection with a Transfer of any Development Well or Subject Interests, an amount of net proceeds that could reasonably be expected to be obtained from the sale of such portion of the Royalty Interest to a party that is not an Affiliate of either Assignor or Assignee on an arms’-length negotiated basis, taking into account relevant market conditions and factors existing at the time of any such proposed Transfer, such net proceeds to be determined by deducting Assignee’s proportionate share of sales costs, commissions and brokerage fees, if any (based on the ratio of (i) the fair market value of the portion of the Royalty Interest being assigned to (ii) the fair market value of the Development Wells and Subject Interests being Transferred (including the value of the Royalty Interest being assigned)).

 

Farmout Agreements ” means any farmout agreement, participation agreement, exploration agreement, development agreement or any similar agreement.

 

Force Majeure ” is defined in Section 12.02.

 

Gas ” means natural gas and all other gaseous hydrocarbons or minerals, including helium, but specifically excluding any Gas Liquids.

 

Gas Liquids ” means those natural gas liquids and other liquid similar hydrocarbons, including ethane, propane, butane and natural gasoline, and mixtures thereof, that are removed from a gas stream by the liquids extraction process of any field facility or gas processing plant and delivered by the facility or plant as natural gas liquids.

 

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Governmental Authority ” means the United States of America, any state, commonwealth, territory, or possession thereof, and any political subdivision of any of the foregoing, including courts, departments, commissions, boards, bureaus, agencies and other instrumentalities.

 

Legal Requirement ” means any law, statute, ordinance, decree, requirement, order, judgment, rule, or regulation of, including the terms of any license or permit issued by, any Governmental Authority.

 

Mcf ” means one thousand cubic feet of Gas, measured and expressed at the same temperature, pressure, and other conditions of measurement (a) provided in any contract for the purchase of Gas from the Subject Interests or, (b) if no such contract exists, provided by applicable state law for purposes of reporting production to Governmental Authorities.

 

Mineral(s) ” means Oil, Gas and Gas Liquids.

 

MMBtu ” means one million British thermal units.

 

Mortgages ” has the meaning given such term in the Development Agreement.

 

Non-Affiliate ” means, for any specified Person, any other Person that is not an Affiliate of the specified Person.

 

Notice ” means any notice, advice, invoice, demand or other communication required or permitted by this Conveyance.

 

Oil ” means crude oil, condensate and other liquid hydrocarbons recovered by field equipment or facilities, excluding Gas Liquids.

 

Party ,” when capitalized, refers to Assignor or Assignee. “ Parties ,” when capitalized, refers to Assignor and Assignee.

 

Permitted Encumbrances ” means:

 

(a) the Production Burdens;

 

(b) contractual obligations arising under operating agreements, Farmout Agreements, production sales contracts, leases, assignments and other similar agreements that may affect the Subject Interests;

 

(c) pooling and unitization agreements, declarations, orders or Legal Requirements to secure payment of amounts not yet delinquent;

 

(d) liens and security interests that arise in the normal course of operations, such as liens for unpaid taxes, statutory liens securing unpaid suppliers and contractors, and contractual liens under operating agreements, in any case, that are not yet delinquent or, if delinquent, are being contested in good faith in the normal course of business;

 

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(e) conventional rights of reassignment that obligate Assignor to reassign all or part of any Subject Interest to a Third Person if Assignor intends to release or abandon such interest before the expiration of the primary term or other termination of such interest;

 

(f) easements, rights-of-way, servitudes, permits, surface leases, surface use restrictions and other surface uses and impediments on, over or in respect of the Subject Interests that are not such as to interfere materially with the operation, value or use of the Subject Interests;

 

(g) rights reserved to or vested in any Governmental Authority to control or regulate any Subject Interests in any manner, and all applicable Legal Requirements;

 

(h) the terms of the instruments creating the Subject Interests and Subject Lands; and

 

(i) the Mortgages;

 

provided , that such aforementioned encumbrances are of the type and nature customary in the oil and gas industry, and provided , further , that such aforementioned encumbrances do not, alone or in the aggregate, materially and adversely affect the operation, value or use of any Subject Interests, and all to the extent, and for so long as, such Permitted Encumbrances are otherwise valid and enforceable against the Subject Interests, without recognizing, expressly or by implication, any rights or interests in any Third Person or Governmental Authority that such Third Person or Governmental Authority does not otherwise lawfully possess.

 

Perpetual Development Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (Development) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Perpetual PDP Kansas Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Perpetual PDP Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Person ” means any natural person, corporation, partnership, trust, estate, or other entity, organization or association.

 

Post Production Cost Charge ” is defined in Section 3.02(b).

 

Prime Interest Rate ” is defined in Section 5.02(b).

 

Production Burdens ” means, with respect to any Subject Lands, Subject Interests or Subject Minerals, all royalty interests, overriding royalty interests, production payments, net profits interests and other similar interests that constitute a burden on, are measured by, or are

 

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payable out of the production of Minerals or the proceeds realized from the sale or other disposition thereof.

 

Quarterly Payment Date ” is defined in Section 5.01(b).

 

Reasonably Prudent Operator Standard ” means the standard of conduct of a reasonably prudent oil and gas operator in the AMI under the same or similar circumstances, acting with respect to its own property and disregarding the existence of the Royalty Interest as a burden on such property.

 

Royalty Interest ” is defined in Section 1.01.

 

Sales Price ” means the price received by Assignor for Assignee Minerals determined in accordance with the following provisions:

 

(a) “sale” refers to any sale, exchange or other disposition of Assignee Minerals for value, the value of such Minerals that is exchanged or otherwise disposed of for valuable consideration being the sales price that Assignor receives for any such Minerals sold pursuant to Section 4.01 for any such Minerals;

 

(b) amounts of money not paid to Assignor when due by any purchaser of Assignee Minerals (for example, Taxes or other amounts withheld or deducted by any such purchaser) shall not be included within the Sales Price until actually received by, or credited to the account of, Assignor;

 

(c) advance payments and prepayments for future deliveries of Assignee Minerals shall be included within the Sales Price, without interest, when that volume of Minerals subject to the advance payments or prepayments is actually produced;

 

(d) loan proceeds received by Assignor shall not be treated as a component of the applicable Sales Price; and

 

(e) if a controversy or possible controversy exists, whether by reason of any statute, order, decree, rule, regulation, contract or otherwise, between Assignor and any purchaser of Assignee Minerals or any other Person, about the correct Sales Price of any Assignee Minerals, about deductions from the Sales Price, about Assignor’s right to receive the proceeds of any sale of Assignee Minerals, or about any other matter, then monies withheld by the purchaser or deposited by it with an escrow agent or if Assignor receives any monies and promptly deposits such monies with a Third Person escrow agent as a result of such controversy, such monies shall not be included within the Sales Price until received by or returned to Assignor, as applicable.

 

SandRidge ” means SandRidge Energy, Inc., a Delaware corporation.

 

SandRidge Sub ” means Mistmada Oil Company, Inc., an Oklahoma corporation.

 

Subject Interests ” means Assignor’s undivided interests in the Subject Lands as described on Exhibit A hereto, whether as lessee under leases, as an owner of the Subject

 

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Minerals (or the right to extract such Minerals) or otherwise, by virtue of which undivided interests Assignor has the right to conduct exploration, drilling, development and Mineral production operations on the Subject Lands, or to cause such operations to be conducted, or to participate in such operations by paying and bearing all or any part of the costs, risks and liabilities of such operations, to drill, test, complete, equip, operate and produce wells to exploit the Minerals.  The “Subject Interests” (a) may be owned by Assignor pursuant to leases, deeds, operating, pooling or unitization agreements, orders or any other instruments, agreements or documents, recorded or unrecorded, (b) include any and all extensions or renewals of leases covering the Subject Lands (or any portion thereof) obtained by Assignor, or any Affiliate thereof, within six (6) months after the expiration or termination of any such lease, and (c) are subject to the Permitted Encumbrances.  For the avoidance of doubt, the “Subject Interests” do not include:  (i) Assignor’s interests in the Excluded Assets; (ii) Assignor’s rights to substances other than Minerals; (iii) Assignor’s rights to Minerals (other than Assignee Minerals) under contracts for the purchase, sale, transportation, storage, processing or other handling or disposition of Minerals; (iv) Assignor’s interests in, or rights to Minerals (other than Assignee Minerals) held in pipelines, gathering systems, storage facilities, processing facilities or other equipment or facilities; or (v) any additional or enlarged interests in the Development Wells, Subject Lands or Subject Minerals acquired by Assignor after the Closing Time, except (1) to the extent any such additional or enlarged interest becomes a part of the Subject Interests by amendment to this Conveyance pursuant to Section 3.01 or 3.02 of the Development Agreement, (2) as may result from the operation of the terms of the instruments creating the Subject Interests, or (3) as may be reflected in extensions and renewals covered by the preceding sentence.

 

Subject Lands ” means the lands subject to or covered by the oil and gas leases described in Exhibit A hereto, insofar and only insofar as they cover the Target Formation, subject to the exceptions, exclusions and reservations set forth on such Exhibit A hereto.

 

Subject Minerals ” means all Minerals in and under, and that may be produced, saved and sold from a Development Well, from and after the Effective Time, insofar and only insofar as such Minerals are produced from the Target Formation, subject to the following exclusions:  Minerals that are (a) lost in the production, gathering or marketing of Minerals; (b) used (i) in conformity with ordinary and prudent operations on the Subject Lands, including drilling and production operations with respect to a Development Well or (ii) in connection with operations (whether on or off the Subject Lands) for processing or compressing the Subject Minerals; (c) taken by a Third Person to recover costs, or some multiple of costs, paid or incurred by that Third Person under any operating agreement, unit agreement or other agreement in connection with nonconsent operations conducted (or participated in) by that Third Person; and (d) retained by a Third Person for gathering, transportation, processing or marketing services related to the Subject Minerals in lieu of or in addition to cash payment for such services, to the extent such agreement is permitted under this Conveyance.

 

Target Formation ” means (i) with respect to Barber County, Kansas, the “Target Formation” being defined as being the interval between the base of the Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4744’ and the Devonian-aged Chattanooga Shale or its stratigraphic equivalent at a depth of 5096’ in the SandRidge Energy Stephanie SWD 1-3 located in 3-35S-10W (API No. 15007237990000); (ii) with respect to Comanche County, Kansas, the “Target Formation” being defined as being the interval between the base of

 

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Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,511’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 6,786’ in the Sho-Bar #1-29 Wayne located in section 29, Township 34 South, Range 20 West (API No. 15033213800000); (iii) with respect to Harper County, Kansas, the “Target Formation” being defined as being the interval between the base of the Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4800’ and the Devonian-aged Chattanooga Shale or its stratigraphic equivalent at a depth of 5096’ in the SandRidge Energy Shea SWD 1-17 located in 17-35S-7W (API No. 15077217810000); and (iv) with respect to Sumner County, Kansas, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Red Fork Zone or its stratigraphic equivalent at a depth of 4,660’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,112’ in the Quinton Little Company #1-18 Wolff located in section 18, Township 35 South, Range 4 West (API No. 15191201870000).

 

Taxes ” is defined in Section 3.02(c).

 

Term Development Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term Development Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (Development) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Third Person ” means a Person other than Assignor, Assignee or Trustee.

 

Transfer ” including its syntactical variants, means any assignment, sale, transfer, conveyance or disposition of any property; provided , that Transfer as used herein does not include the granting of a mortgage on or security interest in Assignor’s interest in any property, including the Development Wells, the Subject Interests and/or the Subject Lands.

 

Trustee ” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America with its principal place of business in New York, New York, as trustee, acting not in its individual capacity but solely as trustee of Assignee.

 

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ARTICLE III.
CALCULATION OF ASSIGNEE MINERALS

 

Section 3.01 Definition . “ Assignee Minerals ” is that volume of Minerals with respect to each Development Well calculated in accordance with the following formula:
Thirty-Five Percent (35%) X (Assignor’s Net Share of Minerals).

 

Section 3.02 Chargeable Costs.

 

(a)  Definition . For each Computation Period, “ Chargeable Costs ” means the sum of (i) the Post Production Cost Charge, plus (ii) Excess Costs from prior Computation Periods, plus (iii) Taxes incurred, accrued or paid by Assignor; provided, that such costs are actually paid by Assignor during the relevant Computation Period or paid by Assignor during a prior Computation Period and not included in any prior Computation Period’s Chargeable Costs.  For the avoidance of doubt, all costs associated with, incurred or paid in connection with the drilling, testing, completing and equipping for production of the Development Wells shall be borne solely by Assignor and shall not be included as Chargeable Costs.

 

(b)  Post Production Cost Charge . “ Post Production Cost Charge ” means those costs incurred by Assignor (including internal costs and Third Person costs) to gather, store, transport, compress, process, treat, dehydrate and market, as applicable, the Subject Minerals, including any costs as may be required to deliver such Minerals to market; provided , that any costs charged by Assignor and its Affiliates as part of the Post Production Cost Charge shall not materially exceed the costs prevailing in the area where the Subject Minerals are being produced for similar services; and provided , further , that with respect to marketing costs, only Non-Affiliate marketing fees and costs shall be included, and marketing costs of Assignor and its Affiliates with respect to any Subject Minerals will be specifically excluded from the Post Production Cost Charge.  Any costs, fees or expenses that are properly charged or allocated to Assignee Minerals pursuant to another provision of this Conveyance (including, as provided for in the definition of Subject Minerals) shall not be included as part of the Post Production Cost Charge.

 

(c)  Taxes . “ Taxes ” means general property, ad valorem, production, severance, sales, windfall profit, excise and other taxes, except income taxes, assessed or levied on or in connection with the Subject Interests, the Royalty Interest, this Conveyance, production of Subject Minerals, Assignor’s Net Share of Minerals, Assignee Minerals (or the proceeds from the sale thereof) or facilities or equipment on the Subject Lands that are used for the production, dehydration, treatment, processing, gathering or transportation of Subject Minerals, or against Assignor as owner of the Subject Interests or paid by Assignor on behalf of Assignee as owner of the Royalty Interest.

 

(d)  Operating and Drilling Costs . For the avoidance of doubt, all costs associated with or paid or incurred in connection with the drilling, testing, completing, developing and operating the Development Wells or otherwise incurred in connection with the ownership or operation of the Subject Interests other than Taxes and Post Production Cost Charges shall be borne solely by Assignor and shall not be included as Chargeable Costs, and Assignor may use any Subject Minerals in such operations without any duty to account to Assignee.

 

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Section 3.03 Assignee Proceeds . “ Assignee Proceeds ” means, for any Computation Period, (a) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals, with the amount of such proceeds being determined by multiplying (i) the volume of Assignee Minerals produced (expressed (A) for Gas, in Mcf or MMBtu, (B) for Gas Liquids, in Bbls and (C) for Oil, in Bbls) by (ii) the relevant Sales Price (expressed (A) for Gas, on a per Mcf or MMBtu basis, (B) for Gas Liquids, on a per Bbl basis and (C) for Oil, on a per Bbl basis), less (b) the Chargeable Costs associated with such Assignee Minerals.

 

ARTICLE IV.
MARKETING OF ASSIGNEE MINERALS

 

Section 4.01 Rights and Duties Regarding Sale of Assignee Minerals . Assignor shall market or shall cause to be marketed Assignor’s Net Share of Minerals (including Assignee Minerals) in good faith and in accordance with the Reasonably Prudent Operator Standard and Section 4.02(d).  Assignor shall use its reasonable efforts in connection with any sale of Assignor’s Net Share of Minerals (including Assignee Minerals) to obtain, as soon as reasonably practicable, full payment for such Minerals; provided , however , that it shall not be considered a breach of Assignor’s marketing duty or standard of conduct for Assignor to market such Minerals to an Affiliate of Assignor, so long as Assignor does not market such Minerals at a volume-weighted average price lower than the volume-weighted average price upon which Assignor pays royalties to the owners of the other royalty interests in the Subject Minerals, save and excepting Chargeable Costs provided for in Article III hereof.

 

Section 4.02 Assignee’s Agent and Representative.

 

(a)  Appointment . Assignee appoints Assignor as Assignee’s agent and representative to market and deliver or cause to be marketed and delivered all Assignee Minerals and to collect and receive all payments therefrom under any Minerals purchase agreement or contract without deduction (except to the extent Chargeable Costs are deducted for any Computation Period).  The appointment of Assignor as Assignee’s agent and representative for such purpose is a material item of consideration to the Parties in connection with the execution and delivery of this Conveyance.  Assignee may not remove Assignor from office as Assignee’s agent and representative, except for cause upon a material breach by Assignor of its duties to Assignee under this Conveyance.

 

(b)  Duties and Powers . As Assignee’s agent and representative, Assignor shall receive all payments for the sale of Assignee Minerals and account to Assignee, receive and make all communications with the purchaser of such Minerals, and otherwise act and speak for Assignee in connection with the sale of Assignee Minerals.  Third Persons may rely conclusively on the authority of Assignor to market Assignee Minerals, and with respect to Third Persons only, Assignee shall be conclusively bound by the acts of Assignor in connection with the sale of Assignee Minerals.  It shall not be necessary for Assignee to join Assignor in the execution of any division order, transfer order or other instrument, agreement or document relating to the sale of Assignee Minerals.  Third Persons may pay all Assignee Proceeds for the sale of such Minerals directly to Assignor, without the necessity of any joinder by or consent of Assignee or any inquiry into the use or disposition of such proceeds by Assignor.  In no event, however, shall

 

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the authority granted in this Section 4.02 or elsewhere in this Conveyance relieve Assignor of any liability for breach of this Conveyance.

 

(c)  Prohibited Acts . Assignor may not act for or bind Assignee on any matter, except the marketing and delivery of Assignee Minerals under this Article IV.

 

(d)  Standard of Conduct . In exercising its powers and performing its duties as Assignee’s agent and representative, Assignor shall act in good faith and in accordance with the Reasonably Prudent Operator Standard.  It shall not be a violation of such standard of conduct for Assignor (i) to sell Assignor’s Net Share of Minerals or Assignee Minerals to an Affiliate pursuant to any purchase agreement or contract, or (ii) to delegate some or all of Assignor’s duties as Assignee’s agent and representative to its Affiliates (so long as such Affiliates perform in good faith and in accordance with the Reasonably Prudent Operator Standard), with Assignor remaining liable to Assignee for the performance of such duties.

 

(e)  Termination of Authority . Assignor may not resign as Assignee’s agent and representative without the prior written consent of Assignee, except that Assignor may resign as Assignee’s agent and representative without such consent with respect to any Subject Interests assigned, sold, transferred or conveyed by Assignor in accordance with the terms of this Conveyance.  If such sale is made subject to the Royalty Interest, Assignor must cause the purchaser to assume the duties of Assignee’s agent and representative with respect to the Subject Interests acquired by that purchaser and to be bound by the provisions of this Article IV.

 

Section 4.03 Delivery of Subject Minerals . Assignor (whether or not it is serving as Assignee’s agent and representative) shall deliver or cause to be delivered Assignor’s Net Share of Minerals (including Assignee Minerals) to the purchasers thereof.

 

Section 4.04 Processing . Assignor may, or may by contract cause a Third Person to, dehydrate, separate, treat, compress or otherwise process Assignor’s Net Share of Minerals (including Assignee Minerals) and may commit any of the Subject Interests (including the Royalty Interest attributable thereto) to an agreement for processing Minerals (pursuant to which, for example, the plant owner or operator receives a portion of the Subject Minerals or plant products therefrom or proceeds of the sale thereof as a fee for processing), so long as (a) Assignor enters into such processing arrangements in good faith and in accordance with the Reasonably Prudent Operator Standard, and (b) any such processing arrangements entered into with Affiliates of Assignor contain rates and charges that are comparable to the prevailing charges for similar services in the applicable area.  Assignee shall be bound by such arrangements and shall permit Assignor’s Net Share of Minerals (including Assignee Minerals) to be processed by Assignor or its contractor.  Assignee shall not, however, be personally liable for any costs or risks associated with such processing operations, but Assignee shall indirectly suffer the energy content reduction and volume reductions associated with processing through corresponding reductions in the content and volumes of Assignee Minerals.

 

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ARTICLE V.
PAYMENT

 

Section 5.01 Obligation to Pay.

 

(a)  The Obligation .  After each Computation Period and on or before the Quarterly Payment Date for that Computation Period, Assignor shall tender to Assignee the Assignee Proceeds for the applicable Computation Period, plus , to the extent applicable, (i) all of the proceeds to be paid to Assignee from the sale of Assignee Minerals produced during any prior Computation Periods, to the extent not previously paid to Assignee for such prior Computation Periods, (ii) any damages payable to Assignee under Section 1.04(b) (subject to the right of set-off in Section 1.04(c)) during the most recently completed Computation Period, and (iii) any amounts (including any interest earned thereon) that were previously deposited with a Third Person escrow agent in accordance with Section 5.01(d) and subsequently determined by Assignor to be validly owing to Assignee.  All such amounts shall be transmitted to Assignee by Assignor by means of wire transfer of funds to a bank account specified by Assignee pursuant to written instructions which shall remain in effect until and unless changed by subsequent written notice to Assignor.

 

For purposes of determining the amount of Assignee Proceeds for any Computation Period, if, when calculating Assignee Minerals for any Computation Period, Assignor is unable to determine the precise volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals, then Assignor shall, in good faith and in accordance with the Reasonably Prudent Operator Standard, estimate the volume of such Minerals produced, sold and attributable to Assignor’s Net Share of Minerals.  Assignor shall adjust the calculation of Assignee Proceeds upward or downward, as the case may be, in the next or subsequent Computation Periods to reflect the difference between the estimated volume of Minerals established pursuant to this Section 5.01(a) and the actual volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals in the Computation Period for which such estimate was made.

 

(b)  Quarterly Payment Date . “ Quarterly Payment Date ” for each Computation Period means the forty-fifth (45th) day after the end of such Computation Period.  If such day is not a Business Day, the Quarterly Payment Date shall be the next Business Day.

 

(c)  No Segregated Account . Prior to the Quarterly Payment Date, all amounts received by Assignor from the sale of Assignor’s Net Share of Minerals and Assignee Minerals, as applicable, for any Computation Period shall be held by Assignor in one of its general bank accounts and Assignor will not be required to maintain a segregated account for such funds.

 

(d)  Disputed Proceeds . If Assignor receives any amounts of money from the sale of Assignee Minerals that is subject to controversy or, in the reasonable opinion of Assignor, possible controversy, Assignor shall promptly deposit the money with a Third Person escrow agent in a segregated interest-bearing account.  Such amount shall not be treated as a portion of Assignee Proceeds so long as it remains with such escrow agent, but shall be treated as a portion of Assignee Proceeds, along with the accrued interest, when received from such escrow agent and paid over to Assignee.

 

Section 5.02 Interest on Past Due Payments.

 

(a)  Obligation to Pay . Any Assignee Proceeds or other amounts of money not paid by Assignor to Assignee when due shall bear, and Assignor will pay, interest at the Prime

 

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Interest Rate on the overdue amount commencing on the sixth (6th) day after such due date until such amount is paid.

 

(b)  Definition . “ Prime Interest Rate ” means the lesser of (i) the rate of interest per annum publicly announced from time to time by The Bank of New York Mellon Trust Company, N.A. as its “prime rate” in effect at its principal office in New York City (each change in the “prime rate” to be effective on the date such change is publicly announced), with the understanding that such bank’s “prime rate” may be one of several base rates, may serve as a basis upon which effective rates are from time to time calculated for loans making reference thereto, and may not be the lowest of such bank’s base rates, and (ii) the maximum rate of interest permitted under any applicable Legal Requirement.

 

Section 5.03 Overpayments and Refunds .

 

(a)  Overpayments . If Assignor ever pays Assignee more than the amount of money then due and payable to Assignee under this Conveyance, Assignee shall not be obligated to return the overpayment, but Assignor may at any time thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to the overpayment.

 

(b)  Refunds . If Assignor is ever legally obligated to pay any Third Person, including any Minerals purchaser or Governmental Authority, any refund, interest, penalty or other amount of money, because any payment of Assignee Proceeds received by Assignor for the account of Assignee exceeded, or allegedly exceeded, the amount due or lawful under any applicable contract, Legal Requirement, or other obligation, Assignor may thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to such payment.

 

Section 5.04 Protection of Assignee Proceeds . It is the intent of Assignor and Assignee that Assignee is an “interest owner” with an interest separate and distinct from that of Assignor within the meaning and for the purposes of the Kansas Statutes Annotated 84-9-339a, and that Assignee is entitled to all the benefits of said statute.  To the extent required for Assignee to obtain the benefit of said statute, Assignor shall cause to be filed an affidavit of production with respect to each Development Well with the appropriate Governmental Authority in Kansas.

 

ARTICLE VI.
RECORDS AND REPORTS

 

Section 6.01 Books, Records and Accounts.

 

(a)  Obligation to Maintain . Assignor shall maintain true and correct books, records and accounts of (i) all transactions required or permitted by this Conveyance, and (ii) the financial information necessary to effect such transactions, including the financial information needed to calculate each installment of Assignee Proceeds.

 

(b)  Right of Inspection . Assignee or its representative, at Assignee’s expense, may inspect and copy such books, records and accounts in the offices of Assignor during normal business hours and upon reasonable notice.

 

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Section 6.02 Statements.

 

(a)  Quarterly Statements . On each Quarterly Payment Date, Assignor shall deliver to Assignee a statement showing the computation of Assignee Minerals and Assignee Proceeds for the applicable Computation Period.

 

(b)  Annual Statements . On the first Quarterly Payment Date after the end of each calendar year, such statement shall also show the computation of Assignee Proceeds for the preceding calendar year.

 

(c)  Contents of Statements . Without limiting the generality of the foregoing provisions in this Section 6.02, each statement delivered by Assignor to Assignee pursuant to this Section 6.02 shall state, for the relevant period, (i) the total volumes of Subject Minerals produced from the Subject Lands, (ii) the total volumes of Assignor’s Net Share of Minerals, (iii) the total volumes of Assignee Minerals, (iv) the applicable Sales Price, (v) the Chargeable Costs, (vi) the amount of Assignee Proceeds due and payable for the relevant period, and (vii) the amounts of money, if any, due and payable by any purchaser of the Subject Minerals or Assignee Minerals, the nonpayment of which resulted in a reduction in Assignee Proceeds for the relevant period.

 

Section 6.03 Assignee’s Exceptions to Quarterly Statements . If Assignee takes exception to any item or items included in any quarterly statement required by Section 6.02, Assignee must notify Assignor in writing within sixty (60) days after Assignee’s receipt of such quarterly statement.  Such Notice must set forth in reasonable detail the specific charges complained of and to which exception is taken.  Adjustments shall be made for all complaints and exceptions that are justified.  Notwithstanding anything to the contrary herein, all matters reflected in Assignor’s statements for the preceding calendar year (or portion thereof) that are not objected to by Assignee in the manner provided by this Section 6.03 shall be deemed correct as rendered by Assignor to Assignee.

 

Section 6.04 Other Information.

 

(a)  Disclosure . At Assignee’s request, subject to applicable restrictions on disclosure and transfer of information, Assignor shall give Assignee and its designated representatives reasonable access in Assignor’s office during normal business hours to all title, geological (to the extent not prohibited by any applicable license agreement), Development Well and production data in Assignor’s possession or Assignor’s Affiliates’ possession, relating to operations on the Subject Interests.

 

(b)  Disclaimer of Warranties and Liability . Assignor makes no representations or warranties about the accuracy or completeness of any data, reports, studies or other information made available to Assignee and shall have no liability to Assignee or any other Person resulting from such data, studies, reports or other information.

 

(c)  No Attribution . Assignee shall not, in any securities filings or reports made by Assignee, attribute to Assignor or to the consulting engineers any reports or studies made available to Assignee, or the contents thereof.

 

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(d)  Confidentiality . All information furnished to Assignee and its designated representatives pursuant to this Section 6.04 is confidential and for the sole benefit of Assignee and shall not be disclosed by Assignee or its designated representatives to any other Person, except to the extent that such information (i) is required in any report, statement or testimony submitted to any Governmental Authority having or claiming to have jurisdiction over Assignee or submitted to bank examiners or similar organizations or their successors, (ii) is required in response to any summons or subpoena or in connection with any litigation, (iii) is reasonably believed to be required in order to comply with any applicable Legal Requirement to Assignee, (iv) was publicly available or otherwise known to the recipient at the time of disclosure or (v) subsequently becomes publicly available other than through any act or omission of the recipient; provided , however , that with respect to the disclosures with respect to items (i), (ii) and (iii) above, Assignee will notify Assignor prior to any such disclosure in order to provide Assignor an opportunity to seek to limit any such required disclosure.  In connection with the marketing of Assignee’s assets upon termination of Assignee, Assignee and its designated representatives may, on a confidential basis in accordance with this Section 6.04(d), provide any potential purchaser of such assets with the same information Assignee has access to pursuant to Section 6.04.

 

ARTICLE VII.
NO LIABILITY OF ASSIGNEE

 

Assignee shall not be personally liable or responsible under this Conveyance for any cost, risk, liability or obligation associated in any way with the ownership or operation of the Subject Lands, the Subject Interests, the Development Wells or the Subject Minerals.  The foregoing sentence does not restrict the right of Assignor to deduct Chargeable Costs in calculating the volumes of Assignee Minerals or Assignee Proceeds.

 

ARTICLE VIII.
OPERATIONS

 

Section 8.01 Standards of Conduct . Except as otherwise specifically provided in this Conveyance, Assignor shall (a) operate and maintain the Subject Interests, and (b) make elections under each applicable lease, operating agreement, unit agreement, contract for development and other similar instrument or agreement (including elections concerning abandonment of any Development Well or release of any Subject Interest) in good faith and in accordance with the Reasonably Prudent Operator Standard.

 

Section 8.02 Abandonment of Properties . Nothing in this Conveyance shall obligate Assignor to continue to operate any Development Well or to operate or maintain in force or attempt to maintain in force any Subject Interest when such Development Well or Subject Interest ceases to produce, or Assignor determines that such Development Well or Subject Interest is not capable of producing Minerals in paying quantities, or that such Development Well or Subject Interest is sufficiently unlikely to be made capable of producing Minerals in paying quantities such that additional operations are unwarranted, all in accordance with Section 8.01 above.  The expiration of a Subject Interest in accordance with the terms and conditions applicable thereto shall not be considered to be a voluntary surrender or abandonment thereof.

 

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ARTICLE IX.
POOLING AND UNITIZATION

 

Section 9.01 Pooling of Subject Interests . Certain Subject Interests have been, or may have been, heretofore pooled and unitized for the production of Minerals.  Such Subject Interests are and shall be subject to the terms and provisions of the applicable pooling and unitization agreements and orders, and the Royalty Interest in each pooled or unitized Subject Interest shall apply to and affect only the Minerals produced from such units that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreements and orders.

 

Section 9.02 Pooling and Unitization.

 

(a)  Right to Pool . Assignor has the exclusive executive right and power (as between Assignor and Assignee) to pool or unitize any Subject Interest and to alter, change, amend or terminate any pooling or unitization agreements heretofore or hereafter entered into, as to all or any part of the Subject Lands, as to any one or more of the formations or horizons, and as to any Minerals, upon such terms and provisions as Assignor shall in its sole discretion deem appropriate.

 

(b)  Effect of Pooling . If and whenever through the exercise of such right and power, or pursuant to any Legal Requirement now existing or hereafter enacted or promulgated, any Subject Interest is pooled or unitized in any manner, the Royalty Interest shall apply to and affect only the Minerals production that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreement or order.  It shall not be necessary for Assignee to agree to, consent to, ratify, confirm or adopt any exercise of pooling or unitization of any Subject Interest by Assignor.

 

ARTICLE X.
GOVERNMENT REGULATION

 

Section 10.01 Legal Requirements . Except as provided in Section 10.03, all obligations of Assignor under this Conveyance are, and shall be, subject to all applicable Legal Requirements and the instruments, documents and agreements creating the Subject Interests.

 

Section 10.02 Filings . Assignor shall use its reasonable discretion in making filings for itself and on behalf of Assignee with any Governmental Authority having jurisdiction with respect to matters affecting the Subject Interests, the Subject Lands or the Subject Minerals.

 

Section 10.03 Superseding Effect. By acceptance of this Conveyance, Assignee agrees, for itself and its successors and assigns, immediate and remote, that the timing of payment, accrual of interest and reporting requirements with respect to the Royalty Interest shall be as provided by the terms of this Conveyance and not as prescribed by Kansas Statutes Annotated 55-1614 through 55-1622b (the “ Act ”), or any similar Legal Requirement.  Assignee expressly waives any rights it may have under the Act, including, without limitation, interest on payments related to Assignee Proceeds at the rate provided in Kansas Statutes Annotated 55-1614(h) and the reporting requirements provided in Kansas Statutes Annotated 55-1620.

 

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ARTICLE XI.
ASSIGNMENT AND SALE OF SUBJECT INTERESTS

 

Section 11.01 Assignment by Assignor Subject to Royalty Interest.

 

(a)  Right to Sell . Assignor may not Transfer any interest in the Development Wells, the Subject Interests or any part thereof or any undivided interest therein in violation of Section 11.04.  Subject to Section 11.02 and 11.04, Assignor may from time to time Transfer, mortgage or pledge its interest in the Development Wells, the Subject Interests, or any part thereof or undivided interest therein, if and only if (i) such Transfer, mortgage or pledge is made expressly subject to and burdened with the Royalty Interest and this Conveyance; (ii) solely in connection with a Transfer other than a Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has caused the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer; and (iii) in connection with any Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has used commercially reasonable efforts to cause the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer.  Any assumption and agreement to discharge shall be by appropriate written instrument for the express benefit of and enforceable by Assignee.  For the avoidance of doubt, nothing in this Section 11.01(a) is intended to permit any assignee, purchaser, transferee or grantee to acquire any interest in the Development Wells, the Subject Interests or any part thereof or undivided interest therein without being subject to and burdened with the Royalty Interest and this Conveyance.  Assignee shall not be required to recognize any purported Transfer, mortgage or pledge not made in conformance with this Section 11.01(a) and, notwithstanding any such purported Transfer, mortgage or pledge, Assignor shall remain obligated under this Conveyance just as if such Transfer, mortgage or pledge attempt had not been made and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, any purported Transfer not made in conformance with this Section 11.01(a) shall be void and of no effect.

 

(b)  Effect of Sale . From and after the actual date of any such Transfer by Assignor made in full compliance with Section 11.01(a) (and only upon such full compliance), Assignor shall be relieved of all obligations, requirements and responsibilities arising under this Conveyance with respect to the Subject Interests Transferred, as the same pertain to Assignee Minerals produced from and after (but not prior to) said date of such Transfer.

 

(c)  Allocation of Consideration . Assignee is not entitled to receive any share of the sales proceeds received by Assignor in any transaction permitted by this Section 11.01.

 

(d)  Separate Interest . Notwithstanding any provision to the contrary in Article IV, effective on the effective date of any Transfer of any Subject Interest made in full compliance with Section 11.01(a), Assignee Minerals and Assignee Proceeds shall thereafter be

 

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computed separately with respect to such Subject Interests, and the assignee, buyer, transferee or grantee of such Subject Interests shall thereafter serve as Assignee’s agent and representative under Article IV with respect to such interests and shall pay all corresponding Assignee Proceeds directly to Assignee.

 

Section 11.02 Sale and Assignment of Properties.

 

(a)  Transfer . Subject to Section 11.04, Assignor may from time to time, Transfer the Development Wells, the Subject Interests, or any part thereof or undivided interest therein, free of the Royalty Interest and this Conveyance provided that the aggregate Fair Value of all Royalty Interests assigned with respect to the Assignor Conveyances during any twelve (12) month period shall not exceed $5,000,000.

 

(b)  Payments . In connection with any Transfer pursuant to this Section 11.02, Assignor shall remit to Assignee an amount equal to the Fair Value of the Royalty Interest being assigned.  Assignor shall make such payment to Assignee on the Quarterly Payment Date for the Computation Period in which Assignor receives the payment with respect to any such Transfer of the Subject Interest.

 

(c)  Assignment . In connection with any Transfer provided for in Section 11.02(a), Assignee shall, upon request of Assignor, execute, acknowledge and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that assigns the Royalty Interest in the Development Well and the related Subject Interests and Subject Lands being Transferred, to Assignor, or to one or more assignees, as Assignor may direct.

 

(d)  Effect of Sale . From and after the actual date of any such Transfer by Assignor, Assignor and any assignee, purchaser, transferee or grantee of such Subject Interest shall be relieved of all obligations, requirements and responsibilities arising under the Royalty Interest or this Conveyance with respect to the Development Well or Subject Interests Transferred, except for those that accrued prior to such date.

 

Section 11.03 Farmouts.

 

(a)  Farmout . Assignor may from time to time enter into Farmout Agreements with Third Persons with respect to the Subject Interests.  In the event that Assignor enters into any Farmout Agreement with a Third Person (a “ Farmee ”), (i) the Royalty Interest and this Conveyance shall only burden Assignor’s retained interest in the Subject Interests after giving effect to any interest in the Subject Interests that the Farmee may earn under such Farmout Agreement, and (ii) only Assignor’s retained interest in the Subject Interest will count towards SandRidge’s obligation to drill Development Wells under the Development Agreement.

 

(b)  Assignment . In connection with Assignor entering into any Farmout Agreement, Assignee shall, upon request of Assignor, execute, acknowledge and deliver to the Farmee a recordable instrument (reasonably acceptable to Assignor) that assigns to the Farmee the Royalty Interest insofar and only insofar as it burdens the Subject Interests being transferred to the Farmee pursuant to such Farmout Agreement; provided , that (i) such assignment shall expressly provide that the Royalty Interest so assigned shall merge with the Subject Interests being transferred to the Farmee and shall not thereafter be subject to or governed by the

 

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Conveyance, and (ii) the Royalty Interest shall continue to burden the Subject Interests retained by Assignor.

 

Section 11.04 Transfer of Subject Lands . Assignor will not Transfer any Development Well or any of the Subject Interests comprising a part of the Subject Lands pursuant to Sections 11.01 and 11.02 prior to the Drilling Obligation Completion Date, and in the event of any attempted Transfer in violation of this Section 11.04, Assignor shall remain liable and a party hereto, just as if no Transfer attempt had been made, and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, such attempted Transfer in violation of this Section 11.04 shall be void and of no force or effect.  Assignor expressly states and recognizes that the restrictions on Transfer imposed on Assignor in this Section 11.04 and in Section 11.01(a) are made in reasonable protection of an interest of Assignee created hereunder.

 

Section 11.05 Change in Ownership.

 

(a)  Obligation to Give Notice . No change of ownership or of the right to receive payment of the Royalty Interest, or of any part thereof, however accomplished, shall bind Assignor until notice thereof is furnished to Assignor by the Person making the transfer and the Person claiming the benefit thereof, and then only with respect to payments made after such Notice is furnished.

 

(b)  Notice of Sale . Notice of sale, transfer, conveyance or assignment shall consist of a certified copy of the recorded instrument accomplishing the same.

 

(c)  Notice of Other Changes of Ownership . Notice of change of ownership or of the right to receive payment accomplished in any other manner ( e.g. , by dissolution of Assignee) shall consist of certified copies of recorded documents and complete proceedings legally binding and conclusive of the rights of all Persons.

 

(d)  Effect of Lack of Notice . Until such Notice accompanied by such documentation is furnished to Assignor in the manner provided above, Assignor may, at Assignor’s election, either (i) continue to pay or tender all sums payable on the Royalty Interest in the same manner provided in this Conveyance, precisely as if no such change in interest or ownership or right to receive payment had occurred, or (ii) suspend payment of Assignee Proceeds without interest until such documentation is furnished.

 

(e)  Effect of Nonconforming Notices . The kinds of Notice provided by this Section 11.05 shall be exclusive, and no other kind, whether actual or constructive, shall bind Assignor.

 

Section 11.06 One Payee . Assignor shall never be obligated to pay Assignee Proceeds to more than one Person.  If more than one Person is ever entitled to receive payment of any part of Assignee Proceeds, Assignor may suspend payments of all Assignee Proceeds until the concurrent owners or claimants of the Royalty Interest or the right to receive payment of Assignee Proceeds appoint one Person in writing to receive all payments of Assignee Proceeds on their behalf.  Assignor may thereafter conclusively rely upon the authority of that Person to

 

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receive payments of Assignee Proceeds and shall be under no further duty to inquire into the authority or performance of such Person.

 

Section 11.07 Rights of Mortgagee . If Assignee executes a mortgage or deed of trust covering all or part of the Royalty Interest, the mortgagees or trustees therein named or the holders of any obligation secured thereby shall be entitled, to the extent that such mortgage or deed of trust so provides, to exercise the rights, remedies, powers and privileges conferred upon Assignee by this Conveyance and to give or withhold all consents required to be obtained from Assignee.  This Section 11.07 shall not be deemed or construed to impose upon Assignor any obligation or liability undertaken by Assignee under such mortgage or deed of trust or under the obligation secured thereby.

 

Section 11.08 No Drainage . Subsequent to the Drilling Obligation Completion Date, neither Assignor nor any of its Affiliates shall drill any Mineral well that will have a perforation or a stimulation site in the Target Formation that will be within six hundred sixty feet (660’) of any perforation or stimulation site of any Development Well which produces oil or gas from the Target Formation.

 

ARTICLE XII.
FORCE MAJEURE

 

Section 12.01 Nonperformance . Assignor shall not be responsible to Assignee for any loss or damage to Assignee resulting from any delay in performing or failure to perform any obligation under this Conveyance (other than Assignor’s obligation to make payments of Assignee Proceeds to Assignee) to the extent such failure or delay is caused by Force Majeure.

 

Section 12.02 Force Majeure . “ Force Majeure ” means any of the following, to the extent they are not caused solely by the breach by Assignor of its duty to perform certain obligations under this Conveyance in accordance with the Reasonably Prudent Operator Standard:

 

(a) act of God, fire, lightning, landslide, earthquake, storm, hurricane, hurricane warning, flood, high water, washout, tidal wave or explosion;

 

(b) strike, lockout, or other similar industrial disturbance, act of the public enemy, war, military operation, blockade, insurrection, riot, epidemic, arrest or restraint of Governmental Authority or people, or national emergency;

 

(c) the inability of Assignor, or any Affiliate of Assignor, to acquire, or the delay on the part of any Third Person (other than an Affiliate of Assignor) in acquiring, materials, supplies, machinery, equipment, servitudes, right-of-way grants, easements, permits, licenses, approvals or authorizations necessary to enable such Party to perform hereunder;

 

(d) any breakage of or accident to machinery, equipment or lines of pipe, the repair, maintenance, improvement, replacement, alteration to a plant or line of pipe or related facility, the testing of machinery, equipment or line of pipe, or the freezing of a line of pipe;

 

(e) any Legal Requirement or the affected Party’s compliance therewith; or

 

22



 

(f) any other cause, whether similar or dissimilar to the causes enumerated in (a) through (e) above, not reasonably within the control of Assignor.

 

Section 12.03 Force Majeure Notice . Assignor will give Assignee a Notice of each Force Majeure as soon as reasonably practicable after the occurrence of such Force Majeure.

 

Section 12.04 Remedy . Assignor will use its reasonable efforts to remedy each Force Majeure and resume full performance under this Conveyance as soon as reasonably practicable, except that the settlement of strikes, lockouts or other labor disputes shall be entirely within the discretion of Assignor.

 

ARTICLE XIII.
NOTICE

 

Section 13.01 Written Notice . Except as otherwise provided by this Conveyance, each Notice shall be in writing.

 

Section 13.02 Methods of Giving Notice . Notice may be given by any reasonable means, including email, telecopier, hand delivery, overnight courier or U.S. mail.

 

Section 13.03 Charges . All Notices shall be properly addressed to the recipient, with all postage and other charges being paid by the Party giving Notice.

 

Section 13.04 Effective Date. Notice shall be effective when actually received by the Party being notified; provided , however , that Notices given by email or telecopy on any day other than a Business Day, or on a Business Day but after 5:00 p.m. local time at the location of the Party being notified, shall be deemed received on the next Business Day, unless receipt is acknowledged prior to the next Business Day.

 

Section 13.05 Addresses . The addresses of the Parties for purposes of Notice are the addresses in the introductory paragraph to this Conveyance.

 

Section 13.06 Change of Address . Either Party may change its address to another address within the continental United States by giving ten (10) days’ Notice to the other Party.

 

ARTICLE XIV.
OTHER PROVISIONS

 

Section 14.01 Successors and Assigns . The provisions and conditions contained in this Conveyance shall run with the land and the respective interests of Assignor and Assignee in, or related to, the Subject Lands, and, subject to the limitation and restrictions on the assignment or delegation by the Parties of their rights and interests under this Conveyance, this Conveyance binds and inures to the benefit of Assignor, Assignee and their respective successors, assigns and legal representatives.

 

23



 

Section 14.02 Governing Law . THIS CONVEYANCE SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF KANSAS WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

Section 14.03 Construction of Conveyance . In construing this Conveyance, the following principles shall be followed:

 

(a) no consideration shall be given to the captions of the articles, sections, subsections or clauses, which are inserted for convenience in locating the provisions of this Conveyance and not as an aid in its construction;

 

(b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Conveyance;

 

(c) the word “includes” and its syntactical variants mean “includes, but is not limited to” and corresponding syntactical variant expressions;

 

(d) a defined term has its defined meaning throughout this Conveyance, regardless of whether it appears before or after the place in this Conveyance where it is defined;

 

(e) the plural shall be deemed to include the singular, and vice versa, unless the context otherwise requires;

 

(f) each exhibit, attachment and schedule to this Conveyance is a part of this Conveyance, but if there is any conflict or inconsistency between the main body of this Conveyance and any exhibit, attachment or schedule, the provisions of the main body of this Conveyance shall prevail; and

 

(g) the Parties intend that this Conveyance be for the maximum duration permitted by applicable Legal Requirements, including Kansas Statutes Annotated 59-3401 through 59-3408; however, due to uncertainties in Kansas law regarding application of the rule against perpetuities to the interests created herein and the time of vesting of such interests, the Habendum Clause of this Conveyance has been written to ensure the validity of the interests conveyed herein as if the rule against perpetuities were applicable and the vesting of such interests was to occur with the first production of Minerals from the relevant Subject Interests.  However, to the extent permitted by applicable Legal Requirements, the Parties intend that the Royalty Interests should be fully vested interests at the time of the grant that are not subject to the rule against perpetuities.

 

Section 14.04 No Waiver . Failure of either Party to require performance of any provision of this Conveyance shall not affect either Party’s right to require full performance thereof at any time thereafter, and the waiver by either Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.

 

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Section 14.05 Relationship of Parties . This Conveyance does not create a partnership, mining partnership, joint venture or relationship of trust or agency (except with respect to Assignor’s agency relationship with respect to those matters set forth in Articles IV and V above) between the Parties.

 

Section 14.06 Further Assurances . Each Party shall execute, acknowledge and deliver to the other Party all additional instruments and other documents reasonably required to describe more specifically any interests subject hereto, to vest more fully in Assignee the Royalty Interest conveyed (or intended to be conveyed) by this Conveyance, or to evidence or effect any transaction contemplated by this Conveyance.  Assignor shall also execute and deliver all additional instruments and other documents reasonably required to transfer interests in state, federal or Indian lease interests in compliance with applicable Legal Requirements or agreements.

 

Section 14.07 The 12:01 A.M. Convention . Except as otherwise provided in this Conveyance, each calendar day, month, quarter and year shall be deemed to begin at 12:01 a.m. Central Time on the stated day or on the first day of the stated month, quarter or year, and to end at 12:00 a.m. Central Time on the next day or on first day of the next month, quarter or year, respectively.

 

Section 14.08 Counterpart Execution . This Conveyance may be executed in any number of counterparts, all of which are identical except that to facilitate filing and recording, counterparts to be filed and recorded in the appropriate records of each county may have included in Exhibit A hereto only those portions of Exhibit A hereto that contain descriptions of the lands and leases located in said county.  Every counterpart of this Conveyance shall be deemed to be an original for all purposes, and all such counterparts together shall constitute one and the same instrument.  An executed counterpart of this Conveyance containing the full text to the entire Exhibits and Annexes is recorded in the real property records of Barber County, Kansas.  Counterparts of this Conveyance with all portions of Exhibit A hereto will be kept at the offices of Assignor and Assignee at the addresses indicated in the introductory paragraph to this Conveyance.  As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf shall be deemed an original hereto.

 

Section 14.09 Present and Absolute Conveyance . It is the express intention of Assignor and Assignee that the Royalty Interest is, and shall be construed for all purposes as, a present, fully-vested and absolute conveyance.

 

Section 14.10 Limitation of Liability.  It is expressly understood and agreed by the Parties hereto that (a) this Conveyance is executed and delivered by the Trustee not individually or personally, but solely as Trustee in the exercise of the powers and authority conferred and vested in it, and (b) under no circumstances shall the Trustee be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by Assignee under this Conveyance.

 

Section 14.11 Severability . In case any provision, covenant or obligation under this Conveyance is held to be invalid, illegal or unenforceable, the validity, legality and

 

25



 

enforceability of the remaining provisions, covenants or obligations of this Conveyance are declared to be severable and not in any way affected or impaired thereby.

 

[ Remainder of page intentionally left blank. ]

 

26



 

IN WITNESS WHEREOF, each Party has caused this Conveyance to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Conveyance, to be effective as of the Effective Time.

 

 

SANDRIDGE EXPLORATION AND PRODUCTION, LLC

 

 

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

Signature Page to Long-Term Overriding Royalty Interest

Conveyance (Kansas) (Development)

 



 

 

SANDRIDGE MISSISSIPPIAN TRUST II

 

 

 

By:

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

Name:

Michael J. Ulrich

 

 

Title:

Vice-President

 

Signature Page to Long-Term Overriding Royalty Interest

Conveyance (Kansas) (Development)

 



 

STATE OF OKLAHOMA

§

 

 

§

 

COUNTY OF OKLAHOMA

§

 

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb, President and Chief Operating Officer of SandRidge Exploration and Production, LLC, a Delaware limited liability company, on behalf of said limited liability company.

 

 

/s/ Janis L. Roberts

 

NOTARY PUBLIC,

 

 

 

State of Texas

 

 

 

Janis L. Roberts

 

(printed name)

 

 

 

 

My commission expires: May 22, 2012

 

 

 

 

 

SEAL or STAMP

 

 

Acknowledgment Page to Long-Term Overriding Royalty Interest

Conveyance (Kansas) (Development)

 



 

STATE OF TEXAS

§

 

 

§

 

COUNTY OF TRAVIS

§

 

 

This instrument was acknowledged before me on April 17, 2012, by Michael J. Ulrich, Vice President of The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, as Trustee of SandRidge Mississippian Trust II, a Delaware statutory trust, on behalf of said national banking association and said trust.

 

 

/s/ Sarah Newell

 

NOTARY PUBLIC,

 

 

 

State of Texas

 

 

 

Sarah Newell

 

(printed name)

 

 

 

 

My commission expires: February 16, 2014

 

 

 

 

 

SEAL or STAMP

 

 

Acknowledgment Page to Long-Term Overriding Royalty Interest

Conveyance (Kansas) (Development)

 



 

Exhibit A

 

(Subject Lands)

 

See attached.

 



 

Exhibit B

 

(Excluded Assets)

 

None.

 


Exhibit 10.8

 

Execution Copy

 

PERPETUAL OVERRIDING ROYALTY INTEREST

CONVEYANCE (OKLAHOMA) (DEVELOPMENT)

 

This PERPETUAL OVERRIDING ROYALTY INTEREST CONVEYANCE (OKLAHOMA) (DEVELOPMENT) (this “ Conveyance ”) from SandRidge Exploration and Production, LLC, a Delaware limited liability company, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ Assignor ”), to SandRidge Mississippian Trust II, a statutory trust formed under the laws of the State of Delaware, with offices at c/o The Bank of New York Mellon Trust Company, N.A., 919 Congress Avenue, Suite 500, Austin, Texas 78701 (“ Assignee ”), is delivered to be effective as of the Effective Time.  All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Article II below.

 

ARTICLE I.
CONVEYANCE

 

Section 1.01 The Grant . For and in consideration of good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby BARGAIN, SELL, GRANT, CONVEY, TRANSFER, ASSIGN, SET OVER, and DELIVER unto Assignee, subject to the terms of this Conveyance, as a perpetual overriding royalty interest (the “ Royalty Interest ”), an undivided interest in and to all Minerals that may be produced and saved from the Target Formation underlying the Subject Lands through the wellbores of the Development Wells, sufficient to cause Assignee to receive the Assignee Minerals.  To the extent any interest conveyed hereunder is created out of a mineral interest, rather than out of an oil and gas leasehold interest, the term “overriding royalty interest” shall be interpreted to mean a non-participating royalty interest with respect to that particular interest, but any such interest shall still be subject to, and shall have the rights and obligations set forth in, this Conveyance.

 

Section 1.02 Non-Operating, Non-Expense Bearing Interest.  The Royalty Interest conveyed hereby is a non-operating, non-expense-bearing overriding royalty interest in and to the Subject Interests, free of all cost, risk and expense of production, operations and marketing.  In no event shall Assignee ever be liable or personally obligated for payment of any cost, expenses or liabilities attributable to the Subject Interests (or any part thereof) or incurred in connection with the production, saving or marketing of Assignee Minerals, subject, however, to Assignor’s right hereinafter provided to deduct Chargeable Costs in determining Assignee Proceeds, which right shall be solely a matter of deduction from the proceeds from the sale of Assignee Minerals and not a personal obligation of Assignee.  This Conveyance is a conveyance of an interest in real property.

 

Section 1.03 Habendum Clause . TO HAVE AND TO HOLD the Royalty Interest, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Assignee, its successors and assigns, subject to terms and provisions of this Conveyance.

 



 

Section 1.04 Warranty.

 

(a)  The Warranty . Assignor warrants to Assignee, its successors and assigns, that the Royalty Interest is free of all Encumbrances created by, through or under Assignor, but not otherwise, except for the Permitted Encumbrances.

 

(b)  Remedies . In the event of a breach of the foregoing warranty, Assignee’s sole remedy shall be to receive payment on each applicable Quarterly Payment Date, out of Assignor’s Net Share of Minerals from other Development Wells in excess of that subject to the Royalty Interest and the royalty interest created pursuant to the Term Development Oklahoma Conveyance (the “ Assignor Retained Minerals ”), subject to offset as provided below and without interest (except such interest payable under this Conveyance on payments made after the applicable due date as described in Section 5.02 below), of an amount equal to the difference between (x) Assignee Proceeds that Assignee would have received with respect to such Development Well in the applicable Computation Period if such warranty had not been breached, and (y) Assignee Proceeds that Assignee actually received during that Computation Period with respect to that Development Well, to the extent such difference is attributable to the breach of the warranty, but not to the extent that such difference is attributable to any other cause, and any such amounts of Assignor Retained Minerals shall be treated as Assignee Minerals.

 

(c)  Right of Offset . If any Subject Interest ever proves to be larger as of the Effective Date than the Subject Interest reflected in Exhibit A hereto and if, as a result, Assignee receives a greater amount of Assignee Minerals (or the proceeds from the sale thereof) with respect to that Subject Interest than Assignee would otherwise have received if the Subject Interest had been the size reflected on Exhibit A hereto, then such increased amounts, whenever received by Assignee, may be treated by Assignor as a credit or offset (without interest) against any amounts payable to Assignee under Section 1.04(b).

 

(d)  DISCLAIMER . EXCEPT FOR THE WARRANTIES OF TITLE GIVEN IN SECTION 1.04(a), ASSIGNOR MAKES THIS CONVEYANCE AND ASSIGNS THE ROYALTY INTEREST WITHOUT RECOURSE, COVENANT OR WARRANTY OF TITLE OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY.  ANY COVENANTS OR WARRANTIES IMPLIED BY STATUTE OR LAW BY THE USE HEREIN OF THE WORDS “ GRANT ”, “ CONVEY ” OR OTHER SIMILAR WORDS ARE HEREBY EXPRESSLY DISCLAIMED, WAIVED AND NEGATED.  WITHOUT LIMITING THE GENERALITY OF THE TWO PRECEDING SENTENCES, ASSIGNEE ACKNOWLEDGES THAT ASSIGNOR HAS NOT MADE, AND ASSIGNOR HEREBY EXPRESSLY DISCLAIMS AND NEGATES, AND ASSIGNEE HEREBY EXPRESSLY WAIVES, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO (i) PRODUCTION RATES, RECOMPLETION OPPORTUNITIES, DECLINE RATES OR THE QUALITY, QUANTITY OR VOLUME OF THE RESERVES OF MINERALS, IF ANY, ATTRIBUTABLE TO THE SUBJECT INTERESTS, (ii) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (iii) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iv) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, AND (v) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER ANY APPLICABLE LEGAL REQUIREMENT; IT BEING THE EXPRESS INTENTION OF BOTH

 

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ASSIGNEE AND ASSIGNOR THAT THE ROYALTY INTEREST IS HEREBY ASSIGNED TO ASSIGNEE ON AN “AS IS” AND “WHERE IS” BASIS WITH ALL FAULTS, AND THAT ASSIGNEE HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS ASSIGNEE DEEMS APPROPRIATE.  ASSIGNOR AND ASSIGNEE AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LEGAL REQUIREMENTS TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS SECTION ARE “CONSPICUOUS” DISCLAIMERS FOR THE PURPOSES OF ANY APPLICABLE LEGAL REQUIREMENT.

 

(e)  Substitution of Warranty . This instrument is made with full substitution and subrogation of Assignee in and to all covenants of warranty by Third Persons (other than Affiliates of Assignor) heretofore given or made with respect to the Development Wells, the Subject Interests or any part thereof or interest therein.

 

Section 1.05 Reconveyance of Excess Acreage . After the Drilling Obligation Completion Date, Assignee shall, on request, execute, acknowledge and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that reconveys to Assignor the Royalty Interest except with respect to all Subject Minerals that may be produced from any wellbore of any Development Well.

 

ARTICLE II.
DEFINITIONS

 

This Article II defines certain capitalized words, terms, and phrases used in this Conveyance. Certain other capitalized words, terms, and phrases used in this Conveyance are defined elsewhere in this Conveyance.

 

Act ” is defined in Section 10.03.

 

Affiliate ” means, for any specified Person, another Person that controls, is controlled by, or is under common control with, the specified Person.  “ Control ,” in the preceding sentence, refers to the possession by one Person, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.

 

AMI ” means that area described in Exhibit A to the Development Agreement, as such area may be extended or exchanged pursuant to Article III of the Development Agreement.

 

Assignee ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignee.

 

Assignee Minerals ” is defined in Section 3.01.

 

Assignee Proceeds ” is defined in Section 3.03.

 

Assignor ” is defined in the introductory paragraph to this Conveyance and also includes all permitted successors and assigns of Assignor.

 

3



 

Assignor Conveyances ” means the Assignor Oklahoma Conveyances and the Assignor Kansas Conveyances.

 

Assignor Kansas Conveyances ” means the Long-Term Development Kansas Conveyance, the Term Development Kansas Conveyance, the Perpetual PDP Kansas Conveyance and the Term PDP Kansas Conveyance.

 

Assignor Oklahoma Conveyances ” means this Conveyance, the Term Development Oklahoma Conveyance, the Perpetual PDP Oklahoma Conveyance and the Term PDP Oklahoma Conveyance.

 

Assignor Retained Minerals ” is defined in Section 1.04(b).

 

Assignor’s Net Revenue Interest ” means the interest, stated as a decimal fraction, in Subject Minerals production from a Development Well attributable to the Subject Interests in that Development Well, net of Production Burdens.

 

Assignor’s Net Share of Minerals ” means the share of Subject Minerals from each Development Well that is attributable to Assignor’s Net Revenue Interest in that Development Well determined prior to giving effect to this Conveyance.

 

Bbl ” means one stock tank barrel, or 42 U.S. gallons liquid volume, in reference to Oil or Gas Liquids.

 

Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the New York Stock Exchange, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.

 

Chargeable Costs ” is defined in Section 3.02(a).

 

Closing Time ” means 12:01 a.m. Central Time, on April 23, 2012.

 

Computation Period ” means each calendar quarter commencing on or after 12:01 a.m., Central Time, on January 1, 2012, with each such calendar quarter being deemed to have begun at 12:01 a.m. Central Time on the first day of such calendar quarter and to have ended at 12:00 a.m. Central Time on the first day of the next calendar quarter.

 

Conveyance ” is defined in the introductory paragraph to this Conveyance.

 

Development Agreement ” means that certain Development Agreement by and among SandRidge, Assignor and Assignee, dated as of even date herewith and effective as of the Effective Time.

 

Development Well ” has the meaning given to such term in the Development Agreement.

 

4



 

Drilling Obligation Completion Date ” has the meaning given to such term in the Development Agreement.

 

Effective Time ” means 12:01 a.m., Central Time, on January 1, 2012; provided , however , that with respect to each oil and gas lease described in Exhibit A that has a date after January 1, 2012, the Effective Time, with respect to each such oil and gas lease, shall be 12:01 a.m., Central Time, on the date of such oil and gas lease.

 

Encumbrance ” means any mortgage, lien, security interest, pledge, charge, encumbrance, limitation, preferential right to purchase, consent to assignment, irregularity, burden or defect.

 

Excess Costs ” means, in any Computation Period, the excess of (x) Chargeable Costs associated with Assignee Minerals for that Computation Period over (y) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals (with the amount in clause (y) calculated as provided in Section 3.03(a) hereof).  Excess Costs shall bear interest at the Prime Interest Rate from the end of the Computation Period in which such costs were incurred to the date that Assignor recovers such amounts from Assignee Proceeds.

 

Excluded Assets ” means (a) those oil and gas wells that are the subject of the Term PDP Oklahoma Conveyance and the Perpetual PDP Oklahoma Conveyance, and (b) those oil and gas wells that are described in Exhibit B hereto.

 

Fair Value ” means, with respect to any portion of the Royalty Interest to be assigned pursuant to Section 11.02 in connection with a Transfer of any Development Well or Subject Interests, an amount of net proceeds that could reasonably be expected to be obtained from the sale of such portion of the Royalty Interest to a party that is not an Affiliate of either Assignor or Assignee on an arms’-length negotiated basis, taking into account relevant market conditions and factors existing at the time of any such proposed Transfer, such net proceeds to be determined by deducting Assignee’s proportionate share of sales costs, commissions and brokerage fees, if any (based on the ratio of (i) the fair market value of the portion of the Royalty Interest being assigned to (ii) the fair market value of the Development Wells and Subject Interests being Transferred (including the value of the Royalty Interest being assigned)).

 

Farmout Agreements ” means any farmout agreement, participation agreement, exploration agreement, development agreement or any similar agreement.

 

Force Majeure ” is defined in Section 12.02.

 

Gas ” means natural gas and all other gaseous hydrocarbons or minerals, including helium, but specifically excluding any Gas Liquids.

 

Gas Liquids ” means those natural gas liquids and other liquid similar hydrocarbons, including ethane, propane, butane and natural gasoline, and mixtures thereof, that are removed from a gas stream by the liquids extraction process of any field facility or gas processing plant and delivered by the facility or plant as natural gas liquids.

 

5



 

Governmental Authority ” means the United States of America, any state, commonwealth, territory, or possession thereof, and any political subdivision of any of the foregoing, including courts, departments, commissions, boards, bureaus, agencies and other instrumentalities.

 

Legal Requirement ” means any law, statute, ordinance, decree, requirement, order, judgment, rule, or regulation of, including the terms of any license or permit issued by, any Governmental Authority.

 

Long-Term Development Kansas Conveyance ” means that certain Long-Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Mcf ” means one thousand cubic feet of Gas, measured and expressed at the same temperature, pressure, and other conditions of measurement (a) provided in any contract for the purchase of Gas from the Subject Interests or, (b) if no such contract exists, provided by applicable state law for purposes of reporting production to Governmental Authorities.

 

Mineral(s) ” means Oil, Gas and Gas Liquids.

 

MMBtu ” means one million British thermal units.

 

Mortgages ” has the meaning given such term in the Development Agreement.

 

Non-Affiliate ” means, for any specified Person, any other Person that is not an Affiliate of the specified Person.

 

Notice ” means any notice, advice, invoice, demand or other communication required or permitted by this Conveyance.

 

Oil ” means crude oil, condensate and other liquid hydrocarbons recovered by field equipment or facilities, excluding Gas Liquids.

 

Party ,” when capitalized, refers to Assignor or Assignee. “ Parties ,” when capitalized, refers to Assignor and Assignee.

 

Permitted Encumbrances ” means:

 

(a) the Production Burdens;

 

(b) contractual obligations arising under operating agreements, Farmout Agreements, production sales contracts, leases, assignments and other similar agreements that may affect the Subject Interests;

 

(c) pooling and unitization agreements, declarations, orders or Legal Requirements to secure payment of amounts not yet delinquent;

 

6



 

(d) liens and security interests that arise in the normal course of operations, such as liens for unpaid taxes, statutory liens securing unpaid suppliers and contractors, and contractual liens under operating agreements, in any case, that are not yet delinquent or, if delinquent, are being contested in good faith in the normal course of business;

 

(e) conventional rights of reassignment that obligate Assignor to reassign all or part of any Subject Interest to a Third Person if Assignor intends to release or abandon such interest before the expiration of the primary term or other termination of such interest;

 

(f) easements, rights-of-way, servitudes, permits, surface leases, surface use restrictions and other surface uses and impediments on, over or in respect of the Subject Interests that are not such as to interfere materially with the operation, value or use of the Subject Interests;

 

(g) rights reserved to or vested in any Governmental Authority to control or regulate any Subject Interests in any manner, and all applicable Legal Requirements;

 

(h) the terms of the instruments creating the Subject Interests and Subject Lands; and

 

(i) the Mortgages;

 

provided , that such aforementioned encumbrances are of the type and nature customary in the oil and gas industry, and provided , further , that such aforementioned encumbrances do not, alone or in the aggregate, materially and adversely affect the operation, value or use of any Subject Interests, and all to the extent, and for so long as, such Permitted Encumbrances are otherwise valid and enforceable against the Subject Interests, without recognizing, expressly or by implication, any rights or interests in any Third Person or Governmental Authority that such Third Person or Governmental Authority does not otherwise lawfully possess.

 

Perpetual PDP Kansas Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Perpetual PDP Oklahoma Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and Assignee, dated as of April 23, 2012 and effective as of the Effective Time.

 

Person ” means any natural person, corporation, partnership, trust, estate, or other entity, organization or association.

 

Post Production Cost Charge ” is defined in Section 3.02(b).

 

Prime Interest Rate ” is defined in Section 5.02(b).

 

Production Burdens ” means, with respect to any Subject Lands, Subject Interests or Subject Minerals, all royalty interests, overriding royalty interests, production payments, net

 

7



 

profits interests and other similar interests that constitute a burden on, are measured by, or are payable out of the production of Minerals or the proceeds realized from the sale or other disposition thereof.

 

Quarterly Payment Date ” is defined in Section 5.01(b).

 

Reasonably Prudent Operator Standard ” means the standard of conduct of a reasonably prudent oil and gas operator in the AMI under the same or similar circumstances, acting with respect to its own property and disregarding the existence of the Royalty Interest as a burden on such property.

 

Royalty Interest ” is defined in Section 1.01.

 

Sales Price ” means the price received by Assignor for Assignee Minerals determined in accordance with the following provisions:

 

(a) “sale” refers to any sale, exchange or other disposition of Assignee Minerals for value, the value of such Minerals that is exchanged or otherwise disposed of for valuable consideration being the sales price that Assignor receives for any such Minerals sold pursuant to Section 4.01 for any such Minerals;

 

(b) amounts of money not paid to Assignor when due by any purchaser of Assignee Minerals (for example, Taxes or other amounts withheld or deducted by any such purchaser) shall not be included within the Sales Price until actually received by, or credited to the account of, Assignor;

 

(c) advance payments and prepayments for future deliveries of Assignee Minerals shall be included within the Sales Price, without interest, when that volume of Minerals subject to the advance payments or prepayments is actually produced;

 

(d) loan proceeds received by Assignor shall not be treated as a component of the applicable Sales Price; and

 

(e) if a controversy or possible controversy exists, whether by reason of any statute, order, decree, rule, regulation, contract or otherwise, between Assignor and any purchaser of Assignee Minerals or any other Person, about the correct Sales Price of any Assignee Minerals, about deductions from the Sales Price, about Assignor’s right to receive the proceeds of any sale of Assignee Minerals, or about any other matter, then monies withheld by the purchaser or deposited by it with an escrow agent or if Assignor receives any monies and promptly deposits such monies with a Third Person escrow agent as a result of such controversy, such monies shall not be included within the Sales Price until received by or returned to Assignor, as applicable.

 

SandRidge ” means SandRidge Energy, Inc., a Delaware corporation.

 

SandRidge Sub ” means Mistmada Oil Company, Inc., an Oklahoma corporation.

 

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Subject Interests ” means Assignor’s undivided interests in the Subject Lands as described on Exhibit A hereto, whether as lessee under leases, as an owner of the Subject Minerals (or the right to extract such Minerals) or otherwise, by virtue of which undivided interests Assignor has the right to conduct exploration, drilling, development and Mineral production operations on the Subject Lands, or to cause such operations to be conducted, or to participate in such operations by paying and bearing all or any part of the costs, risks and liabilities of such operations, to drill, test, complete, equip, operate and produce wells to exploit the Minerals.  The “Subject Interests” (a) may be owned by Assignor pursuant to leases, deeds, operating, pooling or unitization agreements, orders or any other instruments, agreements or documents, recorded or unrecorded, (b) include any and all extensions or renewals of leases covering the Subject Lands (or any portion thereof) obtained by Assignor, or any Affiliate thereof, within six (6) months after the expiration or termination of any such lease, and (c) are subject to the Permitted Encumbrances.  For the avoidance of doubt, the “Subject Interests” do not include:  (i) Assignor’s interests in the Excluded Assets; (ii) Assignor’s rights to substances other than Minerals; (iii) Assignor’s rights to Minerals (other than Assignee Minerals) under contracts for the purchase, sale, transportation, storage, processing or other handling or disposition of Minerals; (iv) Assignor’s interests in, or rights to Minerals (other than Assignee Minerals) held in pipelines, gathering systems, storage facilities, processing facilities or other equipment or facilities; or (v) any additional or enlarged interests in the Development Wells, Subject Lands or Subject Minerals acquired by Assignor after the Closing Time, except (1) to the extent any such additional or enlarged interest becomes a part of the Subject Interests by amendment to this Conveyance pursuant to Section 3.01 or 3.02 of the Development Agreement, (2) as may result from the operation of the terms of the instruments creating the Subject Interests, or (3) as may be reflected in extensions and renewals covered by the preceding sentence.

 

Subject Lands ” means the lands subject to or covered by the oil and gas leases described in Exhibit A hereto, insofar and only insofar as they cover the Target Formation, subject to the exceptions, exclusions and reservations set forth on such Exhibit A hereto.

 

Subject Minerals ” means all Minerals in and under, and that may be produced, saved and sold from a Development Well, from and after the Effective Time, insofar and only insofar as such Minerals are produced from the Target Formation, subject to the following exclusions:  Minerals that are (a) lost in the production, gathering or marketing of Minerals; (b) used (i) in conformity with ordinary and prudent operations on the Subject Lands, including drilling and production operations with respect to a Development Well or (ii) in connection with operations (whether on or off the Subject Lands) for processing or compressing the Subject Minerals; (c) taken by a Third Person to recover costs, or some multiple of costs, paid or incurred by that Third Person under any operating agreement, unit agreement or other agreement in connection with nonconsent operations conducted (or participated in) by that Third Person; and (d) retained by a Third Person for gathering, transportation, processing or marketing services related to the Subject Minerals in lieu of or in addition to cash payment for such services, to the extent such agreement is permitted under this Conveyance.

 

Target Formation ” means (i) with respect to Alfalfa County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4,833’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,344’ in the SandRidge Energy Dorado SWD

 

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1-32 located in section 32, Township 29 North, Range 9 West (API No. 35003219830000); (ii) with respect to Grant County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,395’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 6,060’ in the SandRidge Energy Orion 1-22 SWD located in section 22, Township 25 North, Range 5 West (API No. 35053227710000); (iii) with respect to Kay County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4,387’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 4,619’ in the Jefferson-WMS State School Land 5-36 located in section 36, Township 25 North, Range 2 West (API No. 35071224500000); (iv) with respect to Noble County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4,523’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 4,783’ in the SandRidge Energy County Line SWD 1-2 located in section 2, Township 24 North, Range 2 West (API No. 35103242860000); and (v) with respect to Woods County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,204’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,704’ in the SandRidge Energy Koppitz SWD 1-31 located in section 31, Township 28 North, Range 13 West (API No. 35151232750000).

 

Taxes ” is defined in Section 3.02(c).

 

Term Development Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (Development) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term Development Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (Development) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Kansas Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Kansas) (PDP) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Term PDP Oklahoma Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (PDP) by and between Assignor and SandRidge Sub, dated as of April 23, 2012 and effective as of the Effective Time.

 

Third Person ” means a Person other than Assignor, Assignee or Trustee.

 

Transfer ” including its syntactical variants, means any assignment, sale, transfer, conveyance or disposition of any property; provided , that Transfer as used herein does not include the granting of a mortgage on or security interest in Assignor’s interest in any property, including the Development Wells, the Subject Interests and/or the Subject Lands.

 

Trustee ” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America with its principal

 

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place of business in New York, New York, as trustee, acting not in its individual capacity but solely as trustee of Assignee.

 

ARTICLE III.
CALCULATION OF ASSIGNEE MINERALS

 

Section 3.01 Definition . “ Assignee Minerals ” is that volume of Minerals with respect to each Development Well calculated in accordance with the following formula: Thirty-Five Percent (35%) X (Assignor’s Net Share of Minerals).

 

Section 3.02 Chargeable Costs.

 

(a)  Definition . For each Computation Period, “ Chargeable Costs ” means the sum of (i) the Post Production Cost Charge, plus (ii) Excess Costs from prior Computation Periods, plus (iii) Taxes incurred, accrued or paid by Assignor; provided, that such costs are actually paid by Assignor during the relevant Computation Period or paid by Assignor during a prior Computation Period and not included in any prior Computation Period’s Chargeable Costs.  For the avoidance of doubt, all costs associated with, incurred or paid in connection with the drilling, testing, completing and equipping for production of the Development Wells shall be borne solely by Assignor and shall not be included as Chargeable Costs.

 

(b)  Post Production Cost Charge . “ Post Production Cost Charge ” means those costs incurred by Assignor (including internal costs and Third Person costs) to gather, store, transport, compress, process, treat, dehydrate and market, as applicable, the Subject Minerals, including any costs as may be required to deliver such Minerals to market; provided , that any costs charged by Assignor and its Affiliates as part of the Post Production Cost Charge shall not materially exceed the costs prevailing in the area where the Subject Minerals are being produced for similar services; and provided , further , that with respect to marketing costs, only Non-Affiliate marketing fees and costs shall be included, and marketing costs of Assignor and its Affiliates with respect to any Subject Minerals will be specifically excluded from the Post Production Cost Charge.  Any costs, fees or expenses that are properly charged or allocated to Assignee Minerals pursuant to another provision of this Conveyance (including, as provided for in the definition of Subject Minerals) shall not be included as part of the Post Production Cost Charge.

 

(c)  Taxes . “ Taxes ” means general property, ad valorem, production, severance, sales, windfall profit, excise and other taxes, except income taxes, assessed or levied on or in connection with the Subject Interests, the Royalty Interest, this Conveyance, production of Subject Minerals, Assignor’s Net Share of Minerals, Assignee Minerals (or the proceeds from the sale thereof) or facilities or equipment on the Subject Lands that are used for the production, dehydration, treatment, processing, gathering or transportation of Subject Minerals, or against Assignor as owner of the Subject Interests or paid by Assignor on behalf of Assignee as owner of the Royalty Interest.

 

(d)  Operating and Drilling Costs . For the avoidance of doubt, all costs associated with or paid or incurred in connection with the drilling, testing, completing, developing and operating the Development Wells or otherwise incurred in connection with the

 

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ownership or operation of the Subject Interests other than Taxes and Post Production Cost Charges shall be borne solely by Assignor and shall not be included as Chargeable Costs, and Assignor may use any Subject Minerals in such operations without any duty to account to Assignee.

 

Section 3.03 Assignee Proceeds . “ Assignee Proceeds ” means, for any Computation Period, (a) the amount of proceeds actually received by Assignor during such Computation Period in respect of Assignee Minerals, with the amount of such proceeds being determined by multiplying (i) the volume of Assignee Minerals produced (expressed (A) for Gas, in Mcf or MMBtu, (B) for Gas Liquids, in Bbls and (C) for Oil, in Bbls) by (ii) the relevant Sales Price (expressed (A) for Gas, on a per Mcf or MMBtu basis, (B) for Gas Liquids, on a per Bbl basis and (C) for Oil, on a per Bbl basis), less (b) the Chargeable Costs associated with such Assignee Minerals.

 

ARTICLE IV.
MARKETING OF ASSIGNEE MINERALS

 

Section 4.01 Rights and Duties Regarding Sale of Assignee Minerals . Assignor shall market or shall cause to be marketed Assignor’s Net Share of Minerals (including Assignee Minerals) in good faith and in accordance with the Reasonably Prudent Operator Standard and Section 4.02(d).  Assignor shall use its reasonable efforts in connection with any sale of Assignor’s Net Share of Minerals (including Assignee Minerals) to obtain, as soon as reasonably practicable, full payment for such Minerals; provided , however , that it shall not be considered a breach of Assignor’s marketing duty or standard of conduct for Assignor to market such Minerals to an Affiliate of Assignor, so long as Assignor does not market such Minerals at a volume-weighted average price lower than the volume-weighted average price upon which Assignor pays royalties to the owners of the other royalty interests in the Subject Minerals, save and excepting Chargeable Costs provided for in Article III hereof.

 

Section 4.02 Assignee’s Agent and Representative.

 

(a)  Appointment . Assignee appoints Assignor as Assignee’s agent and representative to market and deliver or cause to be marketed and delivered all Assignee Minerals and to collect and receive all payments therefrom under any Minerals purchase agreement or contract without deduction (except to the extent Chargeable Costs are deducted for any Computation Period).  The appointment of Assignor as Assignee’s agent and representative for such purpose is a material item of consideration to the Parties in connection with the execution and delivery of this Conveyance.  Assignee may not remove Assignor from office as Assignee’s agent and representative, except for cause upon a material breach by Assignor of its duties to Assignee under this Conveyance.

 

(b)  Duties and Powers . As Assignee’s agent and representative, Assignor shall receive all payments for the sale of Assignee Minerals and account to Assignee, receive and make all communications with the purchaser of such Minerals, and otherwise act and speak for Assignee in connection with the sale of Assignee Minerals.  Third Persons may rely conclusively on the authority of Assignor to market Assignee Minerals, and with respect to Third Persons only, Assignee shall be conclusively bound by the acts of Assignor in connection with the sale of

 

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Assignee Minerals.  It shall not be necessary for Assignee to join Assignor in the execution of any division order, transfer order or other instrument, agreement or document relating to the sale of Assignee Minerals.  Third Persons may pay all Assignee Proceeds for the sale of such Minerals directly to Assignor, without the necessity of any joinder by or consent of Assignee or any inquiry into the use or disposition of such proceeds by Assignor.  In no event, however, shall the authority granted in this Section 4.02 or elsewhere in this Conveyance relieve Assignor of any liability for breach of this Conveyance.

 

(c)  Prohibited Acts . Assignor may not act for or bind Assignee on any matter, except the marketing and delivery of Assignee Minerals under this Article IV.

 

(d)  Standard of Conduct . In exercising its powers and performing its duties as Assignee’s agent and representative, Assignor shall act in good faith and in accordance with the Reasonably Prudent Operator Standard.  It shall not be a violation of such standard of conduct for Assignor (i) to sell Assignor’s Net Share of Minerals or Assignee Minerals to an Affiliate pursuant to any purchase agreement or contract, or (ii) to delegate some or all of Assignor’s duties as Assignee’s agent and representative to its Affiliates (so long as such Affiliates perform in good faith and in accordance with the Reasonably Prudent Operator Standard), with Assignor remaining liable to Assignee for the performance of such duties.

 

(e)  Termination of Authority . Assignor may not resign as Assignee’s agent and representative without the prior written consent of Assignee, except that Assignor may resign as Assignee’s agent and representative without such consent with respect to any Subject Interests assigned, sold, transferred or conveyed by Assignor in accordance with the terms of this Conveyance.  If such sale is made subject to the Royalty Interest, Assignor must cause the purchaser to assume the duties of Assignee’s agent and representative with respect to the Subject Interests acquired by that purchaser and to be bound by the provisions of this Article IV.

 

Section 4.03 Delivery of Subject Minerals . Assignor (whether or not it is serving as Assignee’s agent and representative) shall deliver or cause to be delivered Assignor’s Net Share of Minerals (including Assignee Minerals) to the purchasers thereof.

 

Section 4.04 Processing . Assignor may, or may by contract cause a Third Person to, dehydrate, separate, treat, compress or otherwise process Assignor’s Net Share of Minerals (including Assignee Minerals) and may commit any of the Subject Interests (including the Royalty Interest attributable thereto) to an agreement for processing Minerals (pursuant to which, for example, the plant owner or operator receives a portion of the Subject Minerals or plant products therefrom or proceeds of the sale thereof as a fee for processing), so long as (a) Assignor enters into such processing arrangements in good faith and in accordance with the Reasonably Prudent Operator Standard, and (b) any such processing arrangements entered into with Affiliates of Assignor contain rates and charges that are comparable to the prevailing charges for similar services in the applicable area.  Assignee shall be bound by such arrangements and shall permit Assignor’s Net Share of Minerals (including Assignee Minerals) to be processed by Assignor or its contractor.  Assignee shall not, however, be personally liable for any costs or risks associated with such processing operations, but Assignee shall indirectly suffer the energy content reduction and volume reductions associated with processing through corresponding reductions in the content and volumes of Assignee Minerals.

 

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ARTICLE V.
PAYMENT

 

Section 5.01 Obligation to Pay.

 

(a)  The Obligation .  After each Computation Period and on or before the Quarterly Payment Date for that Computation Period, Assignor shall tender to Assignee the Assignee Proceeds for the applicable Computation Period, plus , to the extent applicable, (i) all of the proceeds to be paid to Assignee from the sale of Assignee Minerals produced during any prior Computation Periods, to the extent not previously paid to Assignee for such prior Computation Periods, (ii) any damages payable to Assignee under Section 1.04(b) (subject to the right of set-off in Section 1.04(c)) during the most recently completed Computation Period, and (iii) any amounts (including any interest earned thereon) that were previously deposited with a Third Person escrow agent in accordance with Section 5.01(d) and subsequently determined by Assignor to be validly owing to Assignee.  All such amounts shall be transmitted to Assignee by Assignor by means of wire transfer of funds to a bank account specified by Assignee pursuant to written instructions which shall remain in effect until and unless changed by subsequent written notice to Assignor.

 

For purposes of determining the amount of Assignee Proceeds for any Computation Period, if, when calculating Assignee Minerals for any Computation Period, Assignor is unable to determine the precise volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals, then Assignor shall, in good faith and in accordance with the Reasonably Prudent Operator Standard, estimate the volume of such Minerals produced, sold and attributable to Assignor’s Net Share of Minerals.  Assignor shall adjust the calculation of Assignee Proceeds upward or downward, as the case may be, in the next or subsequent Computation Periods to reflect the difference between the estimated volume of Minerals established pursuant to this Section 5.01(a) and the actual volume of Minerals produced, sold and attributable to Assignor’s Net Share of Minerals in the Computation Period for which such estimate was made.

 

(b)  Quarterly Payment Date . “ Quarterly Payment Date ” for each Computation Period means the forty-fifth (45th) day after the end of such Computation Period.  If such day is not a Business Day, the Quarterly Payment Date shall be the next Business Day.

 

(c)  No Segregated Account . Prior to the Quarterly Payment Date, all amounts received by Assignor from the sale of Assignor’s Net Share of Minerals and Assignee Minerals, as applicable, for any Computation Period shall be held by Assignor in one of its general bank accounts and Assignor will not be required to maintain a segregated account for such funds.

 

(d)  Disputed Proceeds . If Assignor receives any amounts of money from the sale of Assignee Minerals that is subject to controversy or, in the reasonable opinion of Assignor, possible controversy, Assignor shall promptly deposit the money with a Third Person escrow agent in a segregated interest-bearing account.  Such amount shall not be treated as a portion of Assignee Proceeds so long as it remains with such escrow agent, but shall be treated as a portion of Assignee Proceeds, along with the accrued interest, when received from such escrow agent and paid over to Assignee.

 

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Section 5.02 Interest on Past Due Payments.

 

(a)  Obligation to Pay . Any Assignee Proceeds or other amounts of money not paid by Assignor to Assignee when due shall bear, and Assignor will pay, interest at the Prime Interest Rate on the overdue amount commencing on the sixth (6th) day after such due date until such amount is paid.

 

(b)  Definition . “ Prime Interest Rate ” means the lesser of (i) the rate of interest per annum publicly announced from time to time by The Bank of New York Mellon Trust Company, N.A. as its “prime rate” in effect at its principal office in New York City (each change in the “prime rate” to be effective on the date such change is publicly announced), with the understanding that such bank’s “prime rate” may be one of several base rates, may serve as a basis upon which effective rates are from time to time calculated for loans making reference thereto, and may not be the lowest of such bank’s base rates, and (ii) the maximum rate of interest permitted under any applicable Legal Requirement.

 

Section 5.03 Overpayments and Refunds .

 

(a)  Overpayments . If Assignor ever pays Assignee more than the amount of money then due and payable to Assignee under this Conveyance, Assignee shall not be obligated to return the overpayment, but Assignor may at any time thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to the overpayment.

 

(b)  Refunds . If Assignor is ever legally obligated to pay any Third Person, including any Minerals purchaser or Governmental Authority, any refund, interest, penalty or other amount of money, because any payment of Assignee Proceeds received by Assignor for the account of Assignee exceeded, or allegedly exceeded, the amount due or lawful under any applicable contract, Legal Requirement, or other obligation, Assignor may thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to such payment.

 

Section 5.04 Protection of Assignee Proceeds . It is the intent of Assignor and Assignee that Assignee is an “interest owner” with an interest separate and distinct from that of Assignor within the meaning and for the purposes of the Oil and Gas Owners’ Lien Act of 2010, Okla. Stat. tit. 52, § 549.1, et . seq ., and that Assignee is entitled to all the benefits of such Act.

 

ARTICLE VI.
RECORDS AND REPORTS

 

Section 6.01 Books, Records and Accounts.

 

(a)  Obligation to Maintain . Assignor shall maintain true and correct books, records and accounts of (i) all transactions required or permitted by this Conveyance, and (ii) the financial information necessary to effect such transactions, including the financial information needed to calculate each installment of Assignee Proceeds.

 

(b)  Right of Inspection . Assignee or its representative, at Assignee’s expense, may inspect and copy such books, records and accounts in the offices of Assignor during normal business hours and upon reasonable notice.

 

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Section 6.02 Statements.

 

(a)  Quarterly Statements . On each Quarterly Payment Date, Assignor shall deliver to Assignee a statement showing the computation of Assignee Minerals and Assignee Proceeds for the applicable Computation Period.

 

(b)  Annual Statements . On the first Quarterly Payment Date after the end of each calendar year, such statement shall also show the computation of Assignee Proceeds for the preceding calendar year.

 

(c)  Contents of Statements . Without limiting the generality of the foregoing provisions in this Section 6.02, each statement delivered by Assignor to Assignee pursuant to this Section 6.02 shall state, for the relevant period, (i) the total volumes of Subject Minerals produced from the Subject Lands, (ii) the total volumes of Assignor’s Net Share of Minerals, (iii) the total volumes of Assignee Minerals, (iv) the applicable Sales Price, (v) the Chargeable Costs, (vi) the amount of Assignee Proceeds due and payable for the relevant period, and (vii) the amounts of money, if any, due and payable by any purchaser of the Subject Minerals or Assignee Minerals, the nonpayment of which resulted in a reduction in Assignee Proceeds for the relevant period.

 

Section 6.03 Assignee’s Exceptions to Quarterly Statements . If Assignee takes exception to any item or items included in any quarterly statement required by Section 6.02, Assignee must notify Assignor in writing within sixty (60) days after Assignee’s receipt of such quarterly statement.  Such Notice must set forth in reasonable detail the specific charges complained of and to which exception is taken.  Adjustments shall be made for all complaints and exceptions that are justified.  Notwithstanding anything to the contrary herein, all matters reflected in Assignor’s statements for the preceding calendar year (or portion thereof) that are not objected to by Assignee in the manner provided by this Section 6.03 shall be deemed correct as rendered by Assignor to Assignee.

 

Section 6.04 Other Information.

 

(a)  Disclosure . At Assignee’s request, subject to applicable restrictions on disclosure and transfer of information, Assignor shall give Assignee and its designated representatives reasonable access in Assignor’s office during normal business hours to all title, geological (to the extent not prohibited by any applicable license agreement), Development Well and production data in Assignor’s possession or Assignor’s Affiliates’ possession, relating to operations on the Subject Interests.

 

(b)  Disclaimer of Warranties and Liability . Assignor makes no representations or warranties about the accuracy or completeness of any data, reports, studies or other information made available to Assignee and shall have no liability to Assignee or any other Person resulting from such data, studies, reports or other information.

 

(c)  No Attribution . Assignee shall not, in any securities filings or reports made by Assignee, attribute to Assignor or to the consulting engineers any reports or studies made available to Assignee, or the contents thereof.

 

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(d)  Confidentiality . All information furnished to Assignee and its designated representatives pursuant to this Section 6.04 is confidential and for the sole benefit of Assignee and shall not be disclosed by Assignee or its designated representatives to any other Person, except to the extent that such information (i) is required in any report, statement or testimony submitted to any Governmental Authority having or claiming to have jurisdiction over Assignee or submitted to bank examiners or similar organizations or their successors, (ii) is required in response to any summons or subpoena or in connection with any litigation, (iii) is reasonably believed to be required in order to comply with any applicable Legal Requirement to Assignee, (iv) was publicly available or otherwise known to the recipient at the time of disclosure or (v) subsequently becomes publicly available other than through any act or omission of the recipient; provided , however , that with respect to the disclosures with respect to items (i), (ii) and (iii) above, Assignee will notify Assignor prior to any such disclosure in order to provide Assignor an opportunity to seek to limit any such required disclosure.  In connection with the marketing of Assignee’s assets upon termination of Assignee, Assignee and its designated representatives may, on a confidential basis in accordance with this Section 6.04(d), provide any potential purchaser of such assets with the same information Assignee has access to pursuant to Section 6.04.

 

ARTICLE VII.
NO LIABILITY OF ASSIGNEE

 

Assignee shall not be personally liable or responsible under this Conveyance for any cost, risk, liability or obligation associated in any way with the ownership or operation of the Subject Lands, the Subject Interests, the Development Wells or the Subject Minerals.  The foregoing sentence does not restrict the right of Assignor to deduct Chargeable Costs in calculating the volumes of Assignee Minerals or Assignee Proceeds.

 

ARTICLE VIII.
OPERATIONS

 

Section 8.01 Standards of Conduct . Except as otherwise specifically provided in this Conveyance, Assignor shall (a) operate and maintain the Subject Interests, and (b) make elections under each applicable lease, operating agreement, unit agreement, contract for development and other similar instrument or agreement (including elections concerning abandonment of any Development Well or release of any Subject Interest) in good faith and in accordance with the Reasonably Prudent Operator Standard.

 

Section 8.02 Abandonment of Properties . Nothing in this Conveyance shall obligate Assignor to continue to operate any Development Well or to operate or maintain in force or attempt to maintain in force any Subject Interest when such Development Well or Subject Interest ceases to produce, or Assignor determines that such Development Well or Subject Interest is not capable of producing Minerals in paying quantities, or that such Development Well or Subject Interest is sufficiently unlikely to be made capable of producing Minerals in paying quantities such that additional operations are unwarranted, all in accordance with Section 8.01 above.  The expiration of a Subject Interest in accordance with the terms and conditions applicable thereto shall not be considered to be a voluntary surrender or abandonment thereof.

 

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ARTICLE IX.
POOLING AND UNITIZATION

 

Section 9.01 Pooling of Subject Interests . Certain Subject Interests have been, or may have been, heretofore pooled and unitized for the production of Minerals.  Such Subject Interests are and shall be subject to the terms and provisions of the applicable pooling and unitization agreements and orders, and the Royalty Interest in each pooled or unitized Subject Interest shall apply to and affect only the Minerals produced from such units that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreements and orders.

 

Section 9.02 Pooling and Unitization.

 

(a)  Right to Pool . Assignor has the exclusive executive right and power (as between Assignor and Assignee) to pool or unitize any Subject Interest and to alter, change, amend or terminate any pooling or unitization agreements heretofore or hereafter entered into, as to all or any part of the Subject Lands, as to any one or more of the formations or horizons, and as to any Minerals, upon such terms and provisions as Assignor shall in its sole discretion deem appropriate.

 

(b)  Effect of Pooling . If and whenever through the exercise of such right and power, or pursuant to any Legal Requirement now existing or hereafter enacted or promulgated, any Subject Interest is pooled or unitized in any manner, the Royalty Interest shall apply to and affect only the Minerals production that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreement or order.  It shall not be necessary for Assignee to agree to, consent to, ratify, confirm or adopt any exercise of pooling or unitization of any Subject Interest by Assignor.

 

ARTICLE X.
GOVERNMENT REGULATION

 

Section 10.01 Legal Requirements . Except as provided in Section 10.03, all obligations of Assignor under this Conveyance are, and shall be, subject to all applicable Legal Requirements and the instruments, documents and agreements creating the Subject Interests.

 

Section 10.02 Filings . Assignor shall use its reasonable discretion in making filings for itself and on behalf of Assignee with any Governmental Authority having jurisdiction with respect to matters affecting the Subject Interests, the Subject Lands or the Subject Minerals.

 

Section 10.03 Superseding Effect. By acceptance of this Conveyance, Assignee agrees, for itself and its successors and assigns, immediate and remote, that the timing of payment, accrual of interest and reporting requirements with respect to the Royalty Interest shall be as provided by the terms of this Conveyance and not as prescribed by the Oklahoma Production Revenue Standards Act, as amended, codified at Title 52, Section 570.1, et seq. of the Oklahoma Statutes (the “ Act ”).  Assignee expressly waives any rights it may have under the Act, including, without limitation, interest on payments related to Assignee Proceeds at the rate provided in Title 52, Section 570.10, et seq. of the Oklahoma Statutes and the reporting

 

18



 

requirements provided in Title 52, Section 570.12, et seq. of the Oklahoma Statutes, or any similar Legal Requirement.

 

ARTICLE XI.
ASSIGNMENT AND SALE OF SUBJECT INTERESTS

 

Section 11.01 Assignment by Assignor Subject to Royalty Interest.

 

(a)  Right to Sell . Assignor may not Transfer any interest in the Development Wells, the Subject Interests or any part thereof or any undivided interest therein in violation of Section 11.04.  Subject to Section 11.02 and 11.04, Assignor may from time to time Transfer, mortgage or pledge its interest in the Development Wells, the Subject Interests, or any part thereof or undivided interest therein, if and only if (i) such Transfer, mortgage or pledge is made expressly subject to and burdened with the Royalty Interest and this Conveyance; (ii) solely in connection with a Transfer other than a Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has caused the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer; and (iii) in connection with any Transfer pursuant to a foreclosure on any mortgage or security interest, Assignor has used commercially reasonable efforts to cause the assignee, purchaser, transferee or grantee of any such transaction to (A) acknowledge that the affected Subject Interests are taken subject to and burdened with the Royalty Interest and this Conveyance, and (B) assume and agree to discharge Assignor’s obligations under this Conveyance with respect to such Subject Interests from and after the actual date of any such Transfer.  Any assumption and agreement to discharge shall be by appropriate written instrument for the express benefit of and enforceable by Assignee.  For the avoidance of doubt, nothing in this Section 11.01(a) is intended to permit any assignee, purchaser, transferee or grantee to acquire any interest in the Development Wells, the Subject Interests or any part thereof or undivided interest therein without being subject to and burdened with the Royalty Interest and this Conveyance.  Assignee shall not be required to recognize any purported Transfer, mortgage or pledge not made in conformance with this Section 11.01(a) and, notwithstanding any such purported Transfer, mortgage or pledge, Assignor shall remain obligated under this Conveyance just as if such Transfer, mortgage or pledge attempt had not been made and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, any purported Transfer not made in conformance with this Section 11.01(a) shall be void and of no effect.

 

(b)  Effect of Sale . From and after the actual date of any such Transfer by Assignor made in full compliance with Section 11.01(a) (and only upon such full compliance), Assignor shall be relieved of all obligations, requirements and responsibilities arising under this Conveyance with respect to the Subject Interests Transferred, as the same pertain to Assignee Minerals produced from and after (but not prior to) said date of such Transfer.

 

(c)  Allocation of Consideration . Assignee is not entitled to receive any share of the sales proceeds received by Assignor in any transaction permitted by this Section 11.01.

 

19



 

(d)  Separate Interest . Notwithstanding any provision to the contrary in Article IV, effective on the effective date of any Transfer of any Subject Interest made in full compliance with Section 11.01(a), Assignee Minerals and Assignee Proceeds shall thereafter be computed separately with respect to such Subject Interests, and the assignee, buyer, transferee or grantee of such Subject Interests shall thereafter serve as Assignee’s agent and representative under Article IV with respect to such interests and shall pay all corresponding Assignee Proceeds directly to Assignee.

 

Section 11.02 Sale and Assignment of Properties.

 

(a)  Transfer . Subject to Section 11.04, Assignor may from time to time, Transfer the Development Wells, the Subject Interests, or any part thereof or undivided interest therein, free of the Royalty Interest and this Conveyance provided that the aggregate Fair Value of all Royalty Interests assigned with respect to the Assignor Conveyances during any twelve (12) month period shall not exceed $5,000,000.

 

(b)  Payments . In connection with any Transfer pursuant to this Section 11.02, Assignor shall remit to Assignee an amount equal to the Fair Value of the Royalty Interest being assigned.  Assignor shall make such payment to Assignee on the Quarterly Payment Date for the Computation Period in which Assignor receives the payment with respect to any such Transfer of the Subject Interest.

 

(c)  Assignment . In connection with any Transfer provided for in Section 11.02(a), Assignee shall, upon request of Assignor, execute, acknowledge and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that assigns the Royalty Interest in the Development Well and the related Subject Interests and Subject Lands being Transferred, to Assignor, or to one or more assignees, as Assignor may direct.

 

(d)  Effect of Sale . From and after the actual date of any such Transfer by Assignor, Assignor and any assignee, purchaser, transferee or grantee of such Subject Interest shall be relieved of all obligations, requirements and responsibilities arising under the Royalty Interest or this Conveyance with respect to the Development Well or Subject Interests Transferred, except for those that accrued prior to such date.

 

Section 11.03 Farmouts.

 

(a)  Farmout . Assignor may from time to time enter into Farmout Agreements with Third Persons with respect to the Subject Interests.  In the event that Assignor enters into any Farmout Agreement with a Third Person (a “ Farmee ”), (i) the Royalty Interest and this Conveyance shall only burden Assignor’s retained interest in the Subject Interests after giving effect to any interest in the Subject Interests that the Farmee may earn under such Farmout Agreement, and (ii) only Assignor’s retained interest in the Subject Interest will count towards SandRidge’s obligation to drill Development Wells under the Development Agreement.

 

(b)  Assignment . In connection with Assignor entering into any Farmout Agreement, Assignee shall, upon request of Assignor, execute, acknowledge and deliver to the Farmee a recordable instrument (reasonably acceptable to Assignor) that assigns to the Farmee the Royalty Interest insofar and only insofar as it burdens the Subject Interests being transferred

 

20



 

to the Farmee pursuant to such Farmout Agreement; provided , that (i) such assignment shall expressly provide that the Royalty Interest so assigned shall merge with the Subject Interests being transferred to the Farmee and shall not thereafter be subject to or governed by the Conveyance, and (ii) the Royalty Interest shall continue to burden the Subject Interests retained by Assignor.

 

Section 11.04 Transfer of Subject Lands . Assignor will not Transfer any Development Well or any of the Subject Interests comprising a part of the Subject Lands pursuant to Sections 11.01 and 11.02 prior to the Drilling Obligation Completion Date, and in the event of any attempted Transfer in violation of this Section 11.04, Assignor shall remain liable and a party hereto, just as if no Transfer attempt had been made, and Assignee shall continue to deal with Assignor to the exclusion of the purported transferee.  Further, to the extent permitted by applicable Legal Requirements, such attempted Transfer in violation of this Section 11.04 shall be void and of no force or effect.  Assignor expressly states and recognizes that the restrictions on Transfer imposed on Assignor in this Section 11.04 and in Section 11.01(a) are made in reasonable protection of an interest of Assignee created hereunder.

 

Section 11.05 Change in Ownership.

 

(a)  Obligation to Give Notice . No change of ownership or of the right to receive payment of the Royalty Interest, or of any part thereof, however accomplished, shall bind Assignor until notice thereof is furnished to Assignor by the Person making the transfer and the Person claiming the benefit thereof, and then only with respect to payments made after such Notice is furnished.

 

(b)  Notice of Sale . Notice of sale, transfer, conveyance or assignment shall consist of a certified copy of the recorded instrument accomplishing the same.

 

(c)  Notice of Other Changes of Ownership . Notice of change of ownership or of the right to receive payment accomplished in any other manner ( e.g. , by dissolution of Assignee) shall consist of certified copies of recorded documents and complete proceedings legally binding and conclusive of the rights of all Persons.

 

(d)  Effect of Lack of Notice . Until such Notice accompanied by such documentation is furnished to Assignor in the manner provided above, Assignor may, at Assignor’s election, either (i) continue to pay or tender all sums payable on the Royalty Interest in the same manner provided in this Conveyance, precisely as if no such change in interest or ownership or right to receive payment had occurred, or (ii) suspend payment of Assignee Proceeds without interest until such documentation is furnished.

 

(e)  Effect of Nonconforming Notices . The kinds of Notice provided by this Section 11.05 shall be exclusive, and no other kind, whether actual or constructive, shall bind Assignor.

 

Section 11.06 One Payee . Assignor shall never be obligated to pay Assignee Proceeds to more than one Person.  If more than one Person is ever entitled to receive payment of any part of Assignee Proceeds, Assignor may suspend payments of all Assignee Proceeds until the concurrent owners or claimants of the Royalty Interest or the right to receive payment of

 

21



 

Assignee Proceeds appoint one Person in writing to receive all payments of Assignee Proceeds on their behalf.  Assignor may thereafter conclusively rely upon the authority of that Person to receive payments of Assignee Proceeds and shall be under no further duty to inquire into the authority or performance of such Person.

 

Section 11.07 Rights of Mortgagee . If Assignee executes a mortgage or deed of trust covering all or part of the Royalty Interest, the mortgagees or trustees therein named or the holders of any obligation secured thereby shall be entitled, to the extent that such mortgage or deed of trust so provides, to exercise the rights, remedies, powers and privileges conferred upon Assignee by this Conveyance and to give or withhold all consents required to be obtained from Assignee.  This Section 11.07 shall not be deemed or construed to impose upon Assignor any obligation or liability undertaken by Assignee under such mortgage or deed of trust or under the obligation secured thereby.

 

Section 11.08 No Drainage . Subsequent to the Drilling Obligation Completion Date, neither Assignor nor any of its Affiliates shall drill any Mineral well that will have a perforation or a stimulation site in the Target Formation that will be within six hundred sixty feet (660’) of any perforation or stimulation site of any Development Well which produces oil or gas from the Target Formation.

 

ARTICLE XII.
FORCE MAJEURE

 

Section 12.01 Nonperformance . Assignor shall not be responsible to Assignee for any loss or damage to Assignee resulting from any delay in performing or failure to perform any obligation under this Conveyance (other than Assignor’s obligation to make payments of Assignee Proceeds to Assignee) to the extent such failure or delay is caused by Force Majeure.

 

Section 12.02 Force Majeure . “ Force Majeure ” means any of the following, to the extent they are not caused solely by the breach by Assignor of its duty to perform certain obligations under this Conveyance in accordance with the Reasonably Prudent Operator Standard:

 

(a) act of God, fire, lightning, landslide, earthquake, storm, hurricane, hurricane warning, flood, high water, washout, tidal wave or explosion;

 

(b) strike, lockout, or other similar industrial disturbance, act of the public enemy, war, military operation, blockade, insurrection, riot, epidemic, arrest or restraint of Governmental Authority or people, or national emergency;

 

(c) the inability of Assignor, or any Affiliate of Assignor, to acquire, or the delay on the part of any Third Person (other than an Affiliate of Assignor) in acquiring, materials, supplies, machinery, equipment, servitudes, right-of-way grants, easements, permits, licenses, approvals or authorizations necessary to enable such Party to perform hereunder;

 

(d) any breakage of or accident to machinery, equipment or lines of pipe, the repair, maintenance, improvement, replacement, alteration to a plant or line of pipe or related facility, the testing of machinery, equipment or line of pipe, or the freezing of a line of pipe;

 

22



 

(e) any Legal Requirement or the affected Party’s compliance therewith; or

 

(f) any other cause, whether similar or dissimilar to the causes enumerated in (a) through (e) above, not reasonably within the control of Assignor.

 

Section 12.03 Force Majeure Notice . Assignor will give Assignee a Notice of each Force Majeure as soon as reasonably practicable after the occurrence of such Force Majeure.

 

Section 12.04 Remedy . Assignor will use its reasonable efforts to remedy each Force Majeure and resume full performance under this Conveyance as soon as reasonably practicable, except that the settlement of strikes, lockouts or other labor disputes shall be entirely within the discretion of Assignor.

 

ARTICLE XIII.
NOTICE

 

Section 13.01 Written Notice . Except as otherwise provided by this Conveyance, each Notice shall be in writing.

 

Section 13.02 Methods of Giving Notice . Notice may be given by any reasonable means, including email, telecopier, hand delivery, overnight courier or U.S. mail.

 

Section 13.03 Charges . All Notices shall be properly addressed to the recipient, with all postage and other charges being paid by the Party giving Notice.

 

Section 13.04 Effective Date. Notice shall be effective when actually received by the Party being notified; provided , however , that Notices given by email or telecopy on any day other than a Business Day, or on a Business Day but after 5:00 p.m. local time at the location of the Party being notified, shall be deemed received on the next Business Day, unless receipt is acknowledged prior to the next Business Day.

 

Section 13.05 Addresses . The addresses of the Parties for purposes of Notice are the addresses in the introductory paragraph to this Conveyance.

 

Section 13.06 Change of Address . Either Party may change its address to another address within the continental United States by giving ten (10) days’ Notice to the other Party.

 

ARTICLE XIV.
OTHER PROVISIONS

 

Section 14.01 Successors and Assigns . The provisions and conditions contained in this Conveyance shall run with the land and the respective interests of Assignor and Assignee in, or related to, the Subject Lands, and, subject to the limitation and restrictions on the assignment or delegation by the Parties of their rights and interests under this Conveyance, this Conveyance binds and inures to the benefit of Assignor, Assignee and their respective successors, assigns and legal representatives.

 

23



 

Section 14.02 Governing Law . THIS CONVEYANCE SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF OKLAHOMA WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

Section 14.03 Construction of Conveyance . In construing this Conveyance, the following principles shall be followed:

 

(a) no consideration shall be given to the captions of the articles, sections, subsections or clauses, which are inserted for convenience in locating the provisions of this Conveyance and not as an aid in its construction;

 

(b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Conveyance;

 

(c) the word “includes” and its syntactical variants mean “includes, but is not limited to” and corresponding syntactical variant expressions;

 

(d) a defined term has its defined meaning throughout this Conveyance, regardless of whether it appears before or after the place in this Conveyance where it is defined;

 

(e) the plural shall be deemed to include the singular, and vice versa, unless the context otherwise requires; and

 

(f) each exhibit, attachment and schedule to this Conveyance is a part of this Conveyance, but if there is any conflict or inconsistency between the main body of this Conveyance and any exhibit, attachment or schedule, the provisions of the main body of this Conveyance shall prevail.

 

Section 14.04 No Waiver . Failure of either Party to require performance of any provision of this Conveyance shall not affect either Party’s right to require full performance thereof at any time thereafter, and the waiver by either Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.

 

Section 14.05 Relationship of Parties . This Conveyance does not create a partnership, mining partnership, joint venture or relationship of trust or agency (except with respect to Assignor’s agency relationship with respect to those matters set forth in Articles IV and V above) between the Parties.

 

Section 14.06 Further Assurances . Each Party shall execute, acknowledge and deliver to the other Party all additional instruments and other documents reasonably required to describe more specifically any interests subject hereto, to vest more fully in Assignee the Royalty Interest conveyed (or intended to be conveyed) by this Conveyance, or to evidence or effect any transaction contemplated by this Conveyance.  Assignor shall also execute and deliver all additional instruments and other documents reasonably required to transfer interests in state,

 

24



 

federal or Indian lease interests in compliance with applicable Legal Requirements or agreements.

 

Section 14.07 The 12:01 A.M. Convention . Except as otherwise provided in this Conveyance, each calendar day, month, quarter and year shall be deemed to begin at 12:01 a.m. Central Time on the stated day or on the first day of the stated month, quarter or year, and to end at 12:00 a.m. Central Time on the next day or on first day of the next month, quarter or year, respectively.

 

Section 14.08 Counterpart Execution . This Conveyance may be executed in any number of counterparts, all of which are identical except that to facilitate filing and recording, counterparts to be filed and recorded in the appropriate records of each county may have included in Exhibit A hereto only those portions of Exhibit A hereto that contain descriptions of the lands and leases located in said county.  Every counterpart of this Conveyance shall be deemed to be an original for all purposes, and all such counterparts together shall constitute one and the same instrument.  An executed counterpart of this Conveyance containing the full text to the entire Exhibits and Annexes is recorded in the real property records of Alfalfa County, Oklahoma.  Counterparts of this Conveyance with all portions of Exhibit A hereto will be kept at the offices of Assignor and Assignee at the addresses indicated in the introductory paragraph to this Conveyance.  As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf shall be deemed an original hereto.

 

Section 14.09 Present and Absolute Conveyance . It is the express intention of Assignor and Assignee that the Royalty Interest is, and shall be construed for all purposes as, a present, fully-vested and absolute conveyance.

 

Section 14.10 Limitation of Liability.  It is expressly understood and agreed by the Parties hereto that (a) this Conveyance is executed and delivered by the Trustee not individually or personally, but solely as Trustee in the exercise of the powers and authority conferred and vested in it, and (b) under no circumstances shall the Trustee be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by Assignee under this Conveyance.

 

Section 14.11 Severability . In case any provision, covenant or obligation under this Conveyance is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions, covenants or obligations of this Conveyance are declared to be severable and not in any way affected or impaired thereby.

 

[ Remainder of page intentionally left blank. ]

 

25



 

IN WITNESS WHEREOF, each Party has caused this Conveyance to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Conveyance, to be effective as of the Effective Time.

 

 

 

SANDRIDGE EXPLORATION AND PRODUCTION, LLC

 

 

 

 

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

Signature Page to Perpetual Overriding Royalty Interest

Conveyance (Oklahoma) (Development)

 



 

 

SANDRIDGE MISSISSIPPIAN TRUST II

 

 

 

By:

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

Name:

Michael J. Ulrich

 

 

Title:

Vice-President

 

Signature Page to Perpetual Overriding Royalty Interest

Conveyance (Oklahoma) (Development)

 



 

STATE OF OKLAHOMA

§

 

§

COUNTY OF OKLAHOMA

§

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb, President and Chief Operating Officer of SandRidge Exploration and Production, LLC, a Delaware limited liability company, on behalf of said limited liability company.

 

 

 

/s/ Janis L. Roberts

 

NOTARY PUBLIC,

 

 

 

State of Oklahoma

 

 

 

Janis L. Roberts

 

(printed name)

 

 

My commission expires: May 22, 2012

 

 

 

 

SEAL or STAMP

 

 

Acknowledgment Page to Perpetual Overriding Royalty Interest

Conveyance (Oklahoma) (Development)

 



 

STATE OF TEXAS

 

§

 

 

§

COUNTY OF TRAVIS

 

§

 

 

This instrument was acknowledged before me on April 17, 2012, by Michael J. Ulrich, Vice President of The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, as Trustee of SandRidge Mississippian Trust II, a Delaware statutory trust, on behalf of said national banking association and said trust.

 

 

 

/s/ Sarah Newell

 

NOTARY PUBLIC,

 

 

 

State of Texas

 

 

 

Sarah Newell

 

(printed name)

 

 

My commission expires: February 16, 2014

 

 

 

 

SEAL or STAMP

 

 

Acknowledgment Page to Perpetual Overriding Royalty Interest

Conveyance (Oklahoma) (Development)

 



 

Exhibit A

 

(Subject Lands)

 

See attached.

 



 

Exhibit B

 

(Excluded Assets)

 

None.

 


Exhibit 10.9

 

Execution Copy

 

WHEN RECORDED

PLEASE RETURN TO :

 

Mistmada Oil Company, Inc.

Attn: Philip T. Warman

123 Robert S. Kerr Avenue

Oklahoma City, OK 73102-6406

 

ASSIGNMENT OF OVERRIDING ROYALTY INTEREST (KANSAS)

 

KNOW ALL MEN BY THESE PRESENTS THAT:

 

This ASSIGNMENT OF OVERRIDING ROYALTY INTEREST (KANSAS) (this “ Assignment ”) from Mistmada Oil Company, Inc., an Oklahoma corporation, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73012-6406 (“ Assignor ”), to SandRidge Mississippian Trust II, a statutory trust formed under the laws of the State of Delaware, with offices at c/o The Bank of New York Mellon Trust Company, N.A., 919 Congress Avenue, Suite 500, Austin, Texas 78701 (the “ Trust ” or the “ Assignee ”), is delivered to be effective as of 12:01 a.m. Central Time, January 1, 2012 (the “ Effective Time ”); provided , however , that with respect to each oil and gas lease described in Exhibit A that has a date after January 1, 2012, the Effective Time, with respect to each such oil and gas lease, shall be 12:01 a.m. Central Time, on the date of such oil and gas lease. Assignor and Assignee are sometimes referred to herein individually as a “ Party ” and collectively as “ Parties .”

 

RECITALS

 

WHEREAS , Assignor is the owner of (i) a certain term overriding royalty interest covering the lands and leases described in Exhibit A hereto assigned to Assignor by SandRidge Exploration and Production, LLC, a Delaware limited liability company (“ SandRidge E&P ”), and further described in that certain recorded instrument entitled “Term Overriding Royalty Interest Conveyance (Kansas) (PDP)” (the “ PDP Conveyance ”), and (ii) a certain term overriding royalty interest covering the lands and leases described in Exhibit A hereto assigned to Assignor by SandRidge E&P and further described in that certain recorded instrument entitled “Term Overriding Royalty Interest Conveyance (Kansas) (Development)” (the “ Development Conveyance ” and, together with the PDP Conveyance, the “ Conveyances ”); and

 

WHEREAS , the Conveyances were filed in the records of the County Clerks of Barber, Comanche, Harper and Sumner Counties, Kansas as described in Exhibit B hereto.

 

NOW, THEREFORE , for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 



 

1.             Conveyance . Effective as of the Effective Time, Assignor, for good and valuable consideration in hand paid by Assignee, hereby GRANTS, BARGAINS, SELLS, ASSIGNS, TRANSFERS, CONVEYS, SETS OVER AND DELIVERS to Assignee, without recourse or warranty (except the special warranty expressly provided below) or representation of any kind, all of its right, title and interest in and to the “Royalty Interest” (as defined in the PDP Conveyance) and the “Royalty Interest” (as defined in the Development Conveyance) (collectively, the “ Transferred Interests ”), and any and all of the other rights arising from or under the Conveyances with respect to the Transferred Interests (collectively, the “ Assigned Rights ”). All persons are referred to the Conveyances for the terms thereof and for specific descriptions of the “Royalty Interest” created under each Conveyance.

 

Assignor hereby binds itself, its successors and assigns to warrant and forever defend the title to the Transferred Interests and the Assigned Rights herein granted, conveyed, assigned and transferred unto Assignee, its successors and assigns, against the lawful claims and demands of every person whomsoever claiming or to claim the same or any part thereof, by, through or under Assignor, but not otherwise.

 

2.             Assumption; Acceptance . Assignee hereby assumes the express obligations of the “Assignee” under the Conveyances with respect to the Transferred Interests and the Assigned Rights to the extent such obligations arise under the terms of the Conveyances, and agrees to accept, take subject to and be bound by the terms and conditions of the Conveyances to the same extent as if Assignee, in such capacity, were the “Assignee” under the Conveyances.

 

3.             Counterparts . This Assignment may be executed in any number of counterparts, all of which are identical, except that to facilitate filing and recording, counterparts to be filed and recorded in the appropriate records of each county may have included in Exhibit A hereto only those portions of Exhibit A hereto that contain descriptions of the lands and leases located in said county. Every counterpart of this Assignment shall be deemed to be an original for all purposes, and all such counterparts together shall constitute one and the same instrument.  An executed counterpart of this Assignment containing a complete Exhibit A is recorded in the real property records of Barber County, Kansas.  Counterparts of this Assignment with all portions of Exhibit A and Exhibit B hereto will be kept at the offices of Assignor and Assignee at the addresses indicated in the introductory paragraph of this Assignment.  As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf. shall be deemed an original hereto.

 

4.             Governing Law . WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, THIS ASSIGNMENT SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF KANSAS.

 

5.             Limitation of Liability . It is expressly understood and agreed by the Parties that (i) this Assignment is executed and delivered by The Bank of New York Mellon Trust Company, N.A. (“ Trustee ”), not individually or personally, but solely as trustee to the Trust in the exercise of the powers and authority conferred and vested in it and (ii) under no

 

2



 

circumstances shall the Trustee be personally liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by Assignee under this Assignment.

 

6.             Further Assurances . Each of the Parties shall execute, acknowledge and deliver, at the reasonable request of the other Party, such additional documents, instruments, conveyances and assurances and take such further actions as such other Party may reasonably request to carry out the provisions hereof and give effect to the transactions contemplated by this Assignment.

 

7.             Construction of Assignment . In construing this Assignment, the following principles shall be followed:

 

(a) no consideration shall be given to the captions of the articles, sections, subsections or clauses, which are inserted for convenience in locating the provisions of this Assignment and not as an aid in its construction;

 

(b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Assignment;

 

(c) a defined term has its defined meaning throughout this Assignment, regardless of whether it appears before or after the place in this Assignment where it is defined;

 

(d) the plural shall be deemed to include the singular, and vice versa, unless the context otherwise requires; and

 

(e) each exhibit, attachment and schedule to this Assignment is a part of this Assignment, but if there is any conflict or inconsistency between the main body of this Assignment and any exhibit, attachment or schedule, the provisions of the main body of this Assignment shall prevail.

 

8.             No Waiver .  Failure of either Party to require performance of any provision of this Assignment shall not affect either Party’s right to require full performance thereof at any time thereafter, and the waiver by either Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.

 

9.             Relationship of Parties . This Assignment does not create a partnership, mining partnership, joint venture or relationship of trust or agency between the Parties.

 

10.           Present and Absolute Assignment .  It is the express intention of Assignor and Assignee that each of the Transferred Interests and Assigned Rights is, and shall be construed for all purposes as, a present, fully-vested and absolute assignment.

 

11.           Severability .  In case any provision, covenant or obligation under this Assignment is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions, covenants or obligations of this Assignment are declared to be severable and not in any way affected or impaired thereby.

 

3



 

12.           Delivery and Acceptance .  Notwithstanding the date(s) of execution of this Assignment as reflected in the acknowledgments below, this Assignment has been delivered by Assignor and accepted by Assignee immediately following the delivery of the Conveyances by SandRidge E&P and the acceptance thereof by Assignor.

 

[ Signature page follows ]

 

4



 

IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.

 

 

Mistmada Oil Company, Inc.

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

 

[ Signature Page to Assignment ]

 



 

 

SandRidge Mississippian Trust II

 

 

 

By:

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

 

Name:

Michael J. Ulrich

 

 

 

Title:

Vice President

 

 

[ Signature Page to Assignment ]

 



 

STATE OF OKLAHOMA

§

 

§

COUNTY OF OKLAHOMA

§

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb as President and Chief Operating Officer of Mistmada Oil Company, Inc., an Oklahoma corporation, on behalf of said corporation.

 

WITNESS my hand and official seal this 23rd day of April, 2012.

 

 

 

/s/ Janis L. Roberts

 

NOTARY PUBLIC,

 

 

 

State of Oklahoma

 

 

 

Janis L. Roberts

 

(printed name)

 

 

 

 

My commission expires: May 22, 2012

 

 

 

 

 

 

SEAL

 

 

 

 

[Acknowledgment Page to Assignment]

 



 

STATE OF TEXAS

§

 

§

COUNTY OF TRAVIS

§

 

This instrument was acknowledged before me on April 17, 2012, by Michael J. Ulrich as Vice President of The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, the Trustee of SandRidge Mississippian Trust II, a Delaware statutory trust, on behalf of said national banking association and trust.

 

WITNESS my hand and official seal this 17th day of April, 2012.

 

 

 

/s/ Sarah Newell

 

NOTARY PUBLIC,

 

 

 

State of Texas

 

 

 

Sarah Newell

 

(printed name)

 

 

 

 

My commission expires: February 16, 2014

 

 

 

 

 

 

SEAL

 

 

 

 

[Acknowledgment Page to Assignment]

 



 

EXHIBIT A

 

(Kansas Lease Exhibit)

 



 

EXHIBIT B

 

1.             Term Overriding Royalty Interest Conveyance (Kansas) (PDP), by and between SandRidge Exploration and Production, LLC, a Delaware limited liability company, as Assignor, and, Mistmada Oil Company, Inc., an Oklahoma corporation, as Assignee.

 

County

 

Book / Page Number

 

File Number
(if applicable)

 

Date Recorded

 

Harper County, Kansas

 

 

 

 

 

, 2012

 

Comanche County, Kansas

 

 

 

 

 

, 2012

 

Sumner County, Kansas

 

 

 

 

 

, 2012

 

Barber County, Kansas

 

 

 

 

 

, 2012

 

 

2.             Term Overriding Royalty Interest Conveyance (Kansas) (Development), by and between SandRidge Exploration and Production, LLC, a Delaware limited liability company, as Assignor, and Mistmada Oil Company, Inc., an Oklahoma corporation, as Assignee.

 

County

 

Book / Page Number

 

File Number
(if applicable)

 

Date Recorded

 

Harper County, Kansas

 

 

 

 

 

, 2012

 

Comanche County, Kansas

 

 

 

 

 

, 2012

 

Sumner County, Kansas

 

 

 

 

 

, 2012

 

Barber County, Kansas

 

 

 

 

 

, 2012

 

 


Exhibit 10.10

 

Execution Copy

 

WHEN RECORDED

PLEASE RETURN TO :

 

Mistmada Oil Company, Inc.

Attn: Philip T. Warman

123 Robert S. Kerr Avenue

Oklahoma City, OK 73102-6406

 

ASSIGNMENT OF OVERRIDING ROYALTY INTEREST (OKLAHOMA)

 

KNOW ALL MEN BY THESE PRESENTS THAT:

 

This ASSIGNMENT OF OVERRIDING ROYALTY INTEREST (OKLAHOMA) (this “ Assignment ”) from Mistmada Oil Company, Inc., an Oklahoma corporation, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73012-6406 (“ Assignor ”), to SandRidge Mississippian Trust II, a statutory trust formed under the laws of the State of Delaware, with offices at c/o The Bank of New York Mellon Trust Company, N.A., 919 Congress Avenue, Suite 500, Austin, Texas 78701 (the “ Trust ” or the “ Assignee ”), is delivered to be effective as of 12:01 a.m. Central Time, January 1, 2012 (the “ Effective Time ”); provided , however , that with respect to each oil and gas lease described in Exhibit A that has a date after January 1, 2012, the Effective Time, with respect to each such oil and gas lease, shall be 12:01 a.m. Central Time, on the date of such oil and gas lease. Assignor and Assignee are sometimes referred to herein individually as a “ Party ” and collectively as “ Parties .”

 

RECITALS

 

WHEREAS , Assignor is the owner of (i) a certain term overriding royalty interest covering the lands and leases described in Exhibit A hereto assigned to Assignor by SandRidge Exploration and Production, LLC, a Delaware limited liability company (“ SandRidge E&P ”), and further described in that certain recorded instrument entitled “Term Overriding Royalty Interest Conveyance (Oklahoma) (PDP)” (the “ PDP Conveyance ”), and (ii) a certain term overriding royalty interest covering the lands and leases described in Exhibit A hereto assigned to Assignor by SandRidge E&P and further described in that certain recorded instrument entitled “Term Overriding Royalty Interest Conveyance (Oklahoma) (Development)” (the “ Development Conveyance ” and, together with the PDP Conveyance, the “ Conveyances ”); and

 

WHEREAS , the Conveyances were filed in the records of the County Clerks of Alfalfa, Grant, Kay, Noble and Woods Counties, Oklahoma as described in Exhibit B hereto.

 



 

NOW, THEREFORE , for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1.             Conveyance . Effective as of the Effective Time, Assignor, for good and valuable consideration in hand paid by Assignee, hereby GRANTS, BARGAINS, SELLS, ASSIGNS, TRANSFERS, CONVEYS, SETS OVER AND DELIVERS to Assignee, without recourse or warranty (except the special warranty expressly provided below) or representation of any kind, all of its right, title and interest in and to the “Royalty Interest” (as defined in the PDP Conveyance) and the “Royalty Interest” (as defined in the Development Conveyance) (collectively, the “ Transferred Interests ”), and any and all of the other rights arising from or under the Conveyances with respect to the Transferred Interests (collectively, the “ Assigned Rights ”). All persons are referred to the Conveyances for the terms thereof and for specific descriptions of the “Royalty Interest” created under each Conveyance.

 

Assignor hereby binds itself, its successors and assigns to warrant and forever defend the title to the Transferred Interests and the Assigned Rights herein granted, conveyed, assigned and transferred unto Assignee, its successors and assigns, against the lawful claims and demands of every person whomsoever claiming or to claim the same or any part thereof, by, through or under Assignor, but not otherwise.

 

2.             Assumption; Acceptance . Assignee hereby assumes the express obligations of the “Assignee” under the Conveyances with respect to the Transferred Interests and the Assigned Rights to the extent such obligations arise under the terms of the Conveyances, and agrees to accept, take subject to and be bound by the terms and conditions of the Conveyances to the same extent as if Assignee, in such capacity, were the “Assignee” under the Conveyances.

 

3.             Counterparts . This Assignment may be executed in any number of counterparts, all of which are identical, except that to facilitate filing and recording, counterparts to be filed and recorded in the appropriate records of each county may have included in Exhibit A hereto only those portions of Exhibit A hereto that contain descriptions of the lands and leases located in said county. Every counterpart of this Assignment shall be deemed to be an original for all purposes, and all such counterparts together shall constitute one and the same instrument.  An executed counterpart of this Assignment containing a complete Exhibit A is recorded in the real property records of Alfalfa County, Oklahoma.  Counterparts of this Assignment with all portions of Exhibit A and Exhibit B hereto will be kept at the offices of Assignor and Assignee at the addresses indicated in the introductory paragraph of this Assignment.  As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf. shall be deemed an original hereto.

 

4.             Governing Law . WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, THIS ASSIGNMENT SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF OKLAHOMA.

 

2



 

5.             Limitation of Liability . It is expressly understood and agreed by the Parties that (i) this Assignment is executed and delivered by The Bank of New York Mellon Trust Company, N.A. (“ Trustee ”), not individually or personally, but solely as trustee to the Trust in the exercise of the powers and authority conferred and vested in it and (ii) under no circumstances shall the Trustee be personally liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by Assignee under this Assignment.

 

6.             Further Assurances . Each of the Parties shall execute, acknowledge and deliver, at the reasonable request of the other Party, such additional documents, instruments, conveyances and assurances and take such further actions as such other Party may reasonably request to carry out the provisions hereof and give effect to the transactions contemplated by this Assignment.

 

7.             Construction of Assignment . In construing this Assignment, the following principles shall be followed:

 

(a) no consideration shall be given to the captions of the articles, sections, subsections or clauses, which are inserted for convenience in locating the provisions of this Assignment and not as an aid in its construction;

 

(b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Assignment;

 

(c) a defined term has its defined meaning throughout this Assignment, regardless of whether it appears before or after the place in this Assignment where it is defined;

 

(d) the plural shall be deemed to include the singular, and vice versa, unless the context otherwise requires; and

 

(e) each exhibit, attachment and schedule to this Assignment is a part of this Assignment, but if there is any conflict or inconsistency between the main body of this Assignment and any exhibit, attachment or schedule, the provisions of the main body of this Assignment shall prevail.

 

8.             No Waiver .  Failure of either Party to require performance of any provision of this Assignment shall not affect either Party’s right to require full performance thereof at any time thereafter, and the waiver by either Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.

 

9.             Relationship of Parties . This Assignment does not create a partnership, mining partnership, joint venture or relationship of trust or agency between the Parties.

 

10.           Present and Absolute Assignment .  It is the express intention of Assignor and Assignee that each of the Transferred Interests and Assigned Rights is, and shall be construed for all purposes as, a present, fully-vested and absolute assignment.

 

3



 

11.           Severability .  In case any provision, covenant or obligation under this Assignment is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions, covenants or obligations of this Assignment are declared to be severable and not in any way affected or impaired thereby.

 

12.           Delivery and Acceptance .  Notwithstanding the date(s) of execution of this Assignment as reflected in the acknowledgments below, this Assignment has been delivered by Assignor and accepted by Assignee immediately following the delivery of the Conveyances by SandRidge E&P and the acceptance thereof by Assignor.

 

[ Signature page follows ]

 

4



 

 

IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.

 

 

Mistmada Oil Company, Inc.

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

 

[ Signature Page to Assignment ]

 



 

 

SandRidge Mississippian Trust II

 

 

 

By:

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

 

Name:

Michael J. Ulrich

 

 

 

Title:

Vice President

 

 

[ Signature Page to Assignment ]

 



 

STATE OF OKLAHOMA

§

 

§

COUNTY OF OKLAHOMA

§

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb as President and Chief Operating Officer of Mistmada Oil Company, Inc., an Oklahoma corporation, on behalf of said corporation.

 

WITNESS my hand and official seal this 23rd day of April, 2012.

 

 

 

/s/ Janis L. Roberts

 

NOTARY PUBLIC,

 

 

 

State of Oklahoma

 

 

 

Janis L. Roberts

 

(printed name)

 

 

 

 

My commission expires: May 22, 2012

 

 

 

 

 

 

SEAL

 

 

 

 

[Acknowledgment Page to Assignment]

 



 

STATE OF TEXAS

§

 

§

COUNTY OF TRAVIS

§

 

This instrument was acknowledged before me on April 17, 2012, by Michael J. Ulrich as Vice President of The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, the Trustee of SandRidge Mississippian Trust II, a Delaware statutory trust, on behalf of said national banking association and trust.

 

WITNESS my hand and official seal this 17th day of April, 2012.

 

 

 

/s/ Sarah Newell

 

NOTARY PUBLIC,

 

 

 

State of Texas

 

 

 

Sarah Newell

 

(printed name)

 

 

 

 

My commission expires: February 16, 2012

 

 

 

 

 

 

SEAL

 

 

 

 

[Acknowledgment Page to Assignment]

 



 

EXHIBIT A

 

(Oklahoma Lease Exhibit)

 



 

EXHIBIT B

 

1.             Term Overriding Royalty Interest Conveyance (Oklahoma) (PDP), by and between SandRidge Exploration and Production, LLC, a Delaware limited liability company, as Assignor, and, Mistmada Oil Company, Inc., an Oklahoma corporation, as Assignee.

 

County

 

Book/Page Number

 

Date Recorded

Noble County, Oklahoma

 

 

 

, 2012

Kay County, Oklahoma

 

 

 

, 2012

Alfalfa County, Oklahoma

 

 

 

, 2012

Grant County, Oklahoma

 

 

 

, 2012

Woods County, Oklahoma

 

 

 

, 2012

 

2.             Term Overriding Royalty Interest Conveyance (Oklahoma) (Development), by and between SandRidge Exploration and Production, LLC, a Delaware limited liability company, as Assignor, and Mistmada Oil Company, Inc., an Oklahoma corporation, as Assignee.

 

County

 

Book/Page Number

 

Date Recorded

Noble County, Oklahoma

 

 

 

, 2012

Kay County, Oklahoma

 

 

 

, 2012

Alfalfa County, Oklahoma

 

 

 

, 2012

Grant County, Oklahoma

 

 

 

, 2012

Woods County, Oklahoma

 

 

 

, 2012

 


Exhibit 10.11

 

Execution Copy

 

ADMINISTRATIVE SERVICES AGREEMENT

 

This Administrative Services Agreement (this “ Agreement ”) by and between SandRidge Energy, Inc., a Delaware corporation, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (the “ Company ”), and SandRidge Mississippian Trust II, a statutory trust formed under the laws of the State of Delaware (the “ Trust ”) is delivered to be effective as of 12:01 a.m., Central Time, January 1, 2012 (the “ Effective Time ”).  The Company and the Trust may hereinafter be referred to collectively as the “ Parties ” and each individually as a “ Party ”.  All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Article I below.

 

WHEREAS, pursuant to (A) that certain Term Overriding Royalty Interest Conveyance (Oklahoma)(PDP), that certain Term Overriding Royalty Interest Conveyance (Oklahoma)(Development), that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma)(PDP) and that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma)(Development), in each case, filed in Oklahoma and effective as of the effective time specified therein (collectively, the “ OK Conveyances ”), and (B) that certain Term Overriding Royalty Interest Conveyance (Kansas)(PDP), that certain Term Overriding Royalty Interest Conveyance (Kansas)(Development), that certain Perpetual Overriding Royalty Interest Conveyance (Kansas)(PDP) and that certain Long-Term Overriding Royalty Interest Conveyance (Kansas)(Development), in each case, filed in Kansas and effective as of the effective time specified therein (collectively, the “ KS Conveyances ”, and together with the OK Conveyances, the “ Conveyances ”), SandRidge Exploration and Production, LLC, a Delaware limited liability company, has caused to be conveyed to the Trust or Mistmada Oil Company, Inc., an Oklahoma corporation (the “ Company Subsidiary ”), as applicable, overriding royalty interests in certain oil and natural gas properties located in the Mississippian formation in northern Oklahoma and southern Kansas (the “ Royalty Interests ”);

 

WHEREAS, the Company Subsidiary has assigned all of its Royalty Interests to the Trust, and consequently the Trust holds all of the Royalty Interests; and

 

WHEREAS, in connection with the Conveyances, the Company has agreed to provide certain administrative services for the Trust in exchange for an administrative services fee as described herein.

 

NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intended to be legally bound hereby, it is agreed as follows:

 

ARTICLE I
DEFINITIONS

 

SECTION 1.01. Definitions . As used in this Agreement, the following terms have the respective meanings set forth below:

 

AAA ” has the meaning set forth in Section 2.07.

 



 

Administrative Services Fee ” has the meaning set forth in Section 3.01.

 

Affiliate ” means, with respect to any specified Person, another Person that directly or indirectly controls, is controlled by, or is under common control with, the specified Person.  As used in this definition, “control” (and the correlative terms “controlled by,” and “under common control”) means the possession by one Person, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract or otherwise.

 

Agreement ” has the meaning set forth in the introductory paragraph to this Agreement.

 

Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the New York Stock Exchange, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.

 

Claimant ” has the meaning set forth in Section 2.07.

 

Closing Date ” means April 23, 2012.

 

Company ” has the meaning set forth in the introductory paragraph to this Agreement.

 

Company Subsidiary ” has the meaning set forth in the recitals to this Agreement.

 

Conveyances ” has the meaning set forth in the recitals to this Agreement.

 

Derivatives Agreement ” means that certain Derivatives Agreement, dated as of April 23, 2012, by and between the Company and the Trust, as the same may be amended from time to time.

 

Development Agreement ” means that certain Development Agreement, effective as of the Effective Time, by and among the Company, SandRidge Exploration and Production, LLC, and the Trust, as the same may be amended from time to time.

 

Direct Hedge Contracts ” means the Initial Direct Hedges and the Future Direct Hedges, in each case, as such contracts may be restructured, amended or modified from time to time.

 

Effective Time ” has the meaning set forth in the introductory paragraph to this Agreement.

 

Excess Hedged Volumes ” has the meaning set forth in Section 2.02(c).

 

External Expenses ” means the actual out-of-pocket fees, costs and expenses incurred by the Company in connection with the provision of the Services.

 

2



 

Force Majeure ” shall mean any cause beyond the reasonable control of the Company, including acts of God, strikes, lockouts, acts of the public enemy, wars or warlike action (whether actual or impending), arrests and other restraints of government (civil or military), blockades, embargoes, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, sabotage, tornadoes, named tropical storms and hurricanes, and floods, civil disturbances, terrorism, mechanical breakdown of machinery or equipment, explosions, confiscation or seizure by any government or other public authority, any order of any court of competent jurisdiction, regulatory agency or governmental body having jurisdiction.

 

Future Direct Hedges ” means oil derivative contracts that are entered into by the Trust after the Closing Date (i) upon the assignment, novation or other transfer of any of the SandRidge Hedge Contracts (or any portion thereof), or the replacement of SandRidge Hedge Contracts (or any portion thereof), in each case in accordance with the terms of the Derivatives Agreement, or (ii) in connection with the Reset of existing Direct Hedge Contracts in accordance with Section 2.02(c) of this Agreement.

 

Initial Direct Hedges ” means those oil derivative contracts specified on Schedule 1 to the Trust Agreement, which contracts are to be entered into by the Trust with counterparties on or substantially concurrent with the Closing Date.

 

KS Conveyances ” has the meaning set forth in the recitals to this Agreement.

 

OK Conveyances ” has the meaning set forth in the recitals to this Agreement.

 

Party ” has the meaning set forth in the introductory paragraph to this Agreement.

 

Person ” means any natural person, corporation, partnership, limited liability company, joint venture, trust, estate, unincorporated association or other entity, organization, or association.

 

Registration Rights Agreement ” means that certain Registration Rights Agreement, dated as of April 23, 2012, by and between the Trust and the Company.

 

Reset ” has the meaning set forth in Section 2.02(c).

 

Respondent ” has the meaning set forth in Section 2.07.

 

Royalty Interests ” has the meaning set forth in the recitals to this Agreement.

 

Rules ” has the meaning set forth in Section 2.07.

 

SandRidge Hedge Contracts ” means those oil derivative contracts identified on Exhibit A to the Derivatives Agreement, as such contracts may be restructured, amended or modified from time to time.

 

Services ” has the meaning set forth in Section 2.01.

 

Special Provisions ” has the meaning set forth in Section 2.07.

 

3



 

Termination Date ” has the meaning set forth in Section 5.01.

 

Trust ” has the meaning set forth in the introductory paragraph to this Agreement.

 

Trust Agreement ” means that certain Amended and Restated Trust Agreement of the Trust, dated as of April 23, 2012 (as may be amended from time to time), by and among the Company, the Trustee and The Corporation Trust Company, as Delaware trustee.

 

Trustee ” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America with its principal place of business in New York, New York, as trustee, acting not in its individual capacity but solely as trustee of the Trust.

 

SECTION 1.02. Construction .  Article, Section and subsection references in this Agreement are references to the corresponding Article, Section and subsection to this Agreement, unless otherwise specified.  If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb).  Unless the context of this Agreement clearly requires otherwise, the singular shall include the plural and the plural shall include the singular wherever and as often as may be appropriate.  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 “includes” or “including” shall mean “including but not limited to” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.  Any reference in this Agreement to “$” or “dollars” shall mean the lawful currency of the United States of America.  When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded.  If the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day.  The words “hereof,” “hereby,” “herein,” “hereinafter,” “hereof,” “hereunder” and similar terms refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.  All accounting terms or calculations used or made herein shall be in accordance with the generally accepted accounting principles of the United States. The division of this Agreement into Articles, Sections and other subdivisions are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement.

 

ARTICLE II
SERVICES

 

SECTION 2.01. Services . Subject to the terms of this Agreement and in exchange for the payments described in Section 3.01, the Company hereby agrees to provide the Trust with (a) services as are necessary to fulfill the purposes of the Trust as set forth in Section 2.02 of the Trust Agreement, including such accounting, bookkeeping and informational services as may be necessary for the preparation of reports the Trust is or may be required to prepare and/or file in accordance with applicable tax and securities laws, exchange listing rules and other requirements, including reserve reports, tax returns and Forms K-1 in each case, that the Trust may reasonably request the Company provide during the term of this Agreement; (b) services of

 

4



 

a similar character and scope to those in the foregoing clause (a); (c) services that may be required to satisfy the Trust’s obligations under the Registration Rights Agreement; and (d) services described in Section 2.02 of this Agreement related to the Trust’s hedging arrangements (all of the foregoing services, the “ Services ”). As a component of the Services, the Company shall, upon request of the Trust at any time, certify to the Trust the information necessary to make or confirm the calculations, computations and determinations required to be made from time to time under the various agreements to which the Company and the Trust (or Trustee) are parties, including, without limitation, all amounts and other facts necessary to make the various calculations, computations and determinations to be made under the Development Agreement.

 

SECTION 2.02. Hedge Manager Services .

 

(a) The Company shall serve as hedge manager for the Trust.  In this capacity, the Company shall administer, on behalf of the Trust, the Direct Hedge Contracts, including determining amounts owed by or to the Trust under the Direct Hedge Contracts, reviewing amounts determined by the Calculation Agent (as defined in the Direct Hedge Contracts), reviewing and taking appropriate action in response to notices and other communications from counterparties to the Direct Hedge Contracts, drafting and delivering any confirmations, notices or other documents related to the Direct Hedge Contracts and taking any and all other actions that the Company, in its sole discretion, deems necessary or appropriate to administer the Direct Hedge Contracts.

 

(b) As hedge manager, the Company shall have the power and authority to negotiate on behalf of the Trust, with counterparties the terms and conditions of any Future Direct Hedge to be entered into by the Trust, including in connection with any assignment, novation or other transfer to the Trust of a SandRidge Hedge Contract or the replacement of a SandRidge Hedge Contract with a Future Direct Hedge, in each case, in accordance with the Derivatives Agreement, or upon the Reset of a Direct Hedge Contract in accordance with Section 2.02(c) of this Agreement.

 

(c) If at any time the Company reasonably determines that the remaining volumes of oil hedged under the Direct Hedge Contracts and SandRidge Hedge Contracts exceed projected production of oil attributable to the Royalty Interests for the period or periods covered by such Direct Hedge Contracts and SandRidge Hedge Contracts (such difference, the “ Excess Hedged Volumes ”), the Company may, in its sole discretion, negotiate, on behalf of the Trust, with the Trust’s counterparties under the Direct Hedge Contracts to reset, terminate or replace, or otherwise modify, the terms of all or any portion of the Direct Hedge Contracts in order for the Trust to eliminate or reduce such Excess Hedged Volumes (any such reset, termination, replacement or modification, a “ Reset ”). The Company shall use commercially reasonable efforts to negotiate terms that would effect any such Reset in a manner that is cash neutral or advantageous to the Trust, but shall have no affirmative duty to negotiate for, or actually cause a Reset or other modification with respect to any Direct Hedge Contracts on behalf of the Trust. In connection with any Reset in accordance with this Section 2.02(c), the Company shall provide the Trust with (i) written notice identifying the Direct Hedge Contracts (or portions thereof) being reset and describing the material terms of the Reset, including a summary of the volumes, periods, and prices affected by the Reset, and (ii) copies of any revised or new transaction

 

5



 

confirmations or other documents evidencing the Future Direct Hedges proposed to be entered into by the Trust in conjunction with such Reset. For the avoidance of doubt, the Company shall have no affirmative duty to undertake any Reset and shall incur no liability in connection with affirmatively undertaking (or failing to undertake) a Reset (other than a failure to use its commercially reasonable efforts in effecting a Reset as expressly set forth in this Section 2.02(c) or for undertaking a Reset in bad faith).

 

(d) The Trustee shall cooperate with the Company in connection with any Reset or any other action the Company takes with respect to the Direct Hedge Contracts, to the extent reasonably requested to do so by the Company, including executing definitive documentation with counterparties. However, the Trustee shall have neither the right nor the responsibility to approve the terms and conditions of any Reset, which authority and responsibility shall rest solely with the Company, as hedge manager for the Trust.

 

SECTION 2.03. Performance of Services by Others . The Parties hereby agree that in discharging the Company’s obligations under this Agreement, the Company may, in its sole discretion, engage any other Person, including its Affiliates, to perform the Services (or any part of the Services) on its behalf and that, subject to the Company’s right to reimbursement for External Expenses in accordance with this Agreement, the performance of the Services (or any part of the Services) by any such Person shall be treated as if the Company performed such Services itself. Notwithstanding the foregoing, nothing contained herein shall relieve the Company of its obligations hereunder.

 

SECTION 2.04. Intellectual Property . Any (a) inventions, whether patentable or not, developed or invented, or (b) copyrightable material (and the intangible rights of copyright therein) developed, in each case by the Company, its Affiliates or its or their employees in connection with the performance of the Services shall be the property of the Company; provided , that the Trust shall be granted an irrevocable, royalty-free, non-exclusive and non-transferable right and license to use such inventions or material; provided , further , that the Trust shall only be granted such a right and license to the extent such grant does not conflict with, or result in a breach, default or violation of a right or license to use such inventions or material granted to the Company by any Person other than an Affiliate of the Company. Notwithstanding the foregoing, the Company will use all commercially reasonable efforts to grant such right and license to the Trust.

 

SECTION 2.05. Independent Status . It is expressly acknowledged by the Parties that each Party is an “independent contractor” and nothing in this Agreement is intended nor shall be construed to create an employer/employee, joint venture or partnership relationship between the Parties, or to allow any Party to exercise control or direction over the other Party. Except as required in connection with the performance of the Services, neither the Company nor any agent, employee, servant, contractor or subcontractor of the Company or any of its Affiliates shall have the authority to bind the Trust to any contract, agreement or arrangement. Neither the Trust nor the Trustee shall be liable for the salary, wages or benefits, including workers’ compensation insurance and unemployment insurance, of any employee, agent, servant, contractor or subcontractor of the Company or its Affiliates by virtue of this Agreement.  The Company shall not be a fiduciary with respect to the Trust or Trustee and shall owe no fiduciary duties or liabilities to the Trust or Trustee.

 

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SECTION 2.06. Warranties; Limitation of Liability . The Company will use commercially reasonable efforts to provide the Services in a good and workmanlike manner in accordance with the sound and prudent practices of providers of similar services. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, THE COMPANY MAKES NO (AND HEREBY DISCLAIMS AND NEGATES ANY AND ALL) WARRANTIES OR REPRESENTATIONS WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES. IN NO EVENT WILL THE COMPANY OR ANY OF ITS AFFILIATES BE LIABLE TO ANY OF THE PERSONS RECEIVING ANY SERVICES OR TO ANY OTHER PERSON FOR ANY EXEMPLARY, PUNITIVE, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES RESULTING FROM ANY ERROR IN THE PERFORMANCE OF SUCH SERVICES, REGARDLESS OF WHETHER THE PERSON PROVIDING SUCH SERVICES, ITS AFFILIATES OR OTHERS MAY BE WHOLLY, CONCURRENTLY, PARTIALLY OR SOLELY NEGLIGENT OR OTHERWISE AT FAULT, EXCEPT TO THE EXTENT SUCH EXEMPLARY, PUNITIVE, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARE PAID BY THE PARTY INCURRING SUCH DAMAGES TO A PERSON THAT IS NOT A PARTY TO THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 2.06 WILL SURVIVE TERMINATION OF THIS AGREEMENT.

 

SECTION 2.07. Disputes . ANY DISPUTE, CONTROVERSY OR CLAIM THAT MAY ARISE BETWEEN OR AMONG THE COMPANY (ON THE ONE HAND) AND THE TRUST (ON THE OTHER HAND) IN CONNECTION WITH OR OTHERWISE RELATING TO THIS AGREEMENT, THE NATURE OR QUALITY OF THE SERVICES, THE CALCULATION OR ALLOCATION OF THE ADMINISTRATIVE SERVICES FEE OR EXTERNAL EXPENSES OR THE APPLICATION, IMPLEMENTATION, VALIDITY OR ALLEGED OR ACTUAL BREACH OF THIS AGREEMENT, SHALL BE FINALLY, CONCLUSIVELY AND EXCLUSIVELY SETTLED BY BINDING ARBITRATION IN OKLAHOMA CITY, OKLAHOMA IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES (THE “ RULES ”) OF THE AMERICAN ARBITRATION ASSOCIATION OR ANY SUCCESSOR THERETO (“ AAA ”) THEN IN EFFECT. THE COMPANY AND THE TRUST HEREBY EXPRESSLY WAIVE THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO TRIAL BY JURY, WITH RESPECT TO ANY MATTER SUBJECT TO ARBITRATION PURSUANT TO THIS SECTION 2.07. EITHER THE COMPANY OR THE TRUST MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, IN ANY COURT HAVING JURISDICTION, TO COMPEL ARBITRATION OF ANY DISPUTE, CONTROVERSY OR CLAIM TO WHICH THIS SECTION 2.07 APPLIES. EXCEPT WITH RESPECT TO THE FOLLOWING PROVISIONS (THE “ SPECIAL PROVISIONS ”) WHICH SHALL APPLY WITH RESPECT TO ANY ARBITRATION PURSUANT TO THIS SECTION 2.07, THE INITIATION AND CONDUCT OF ARBITRATION SHALL BE AS SET FORTH IN THE RULES, WHICH RULES ARE INCORPORATED IN THIS AGREEMENT BY REFERENCE WITH THE SAME EFFECT AS IF THEY WERE ACTUALLY PRINTED HEREIN.

 

(a) In the event of any inconsistency between the Rules and the Special Provisions, the Special Provisions shall control. References in the Rules to a sole arbitrator shall be deemed to refer to the tribunal of arbitrators provided for under subparagraph (c) below in this Section 2.07.

 

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(b) The arbitration shall be administered by AAA.

 

(c) The arbitration shall be conducted by a tribunal of three arbitrators. Within ten days after arbitration is initiated pursuant to the Rules, the initiating party or parties (the “ Claimant ”) shall send written notice to the other party or parties (the “ Respondent ”), with a copy to the Oklahoma City, Oklahoma office of AAA (if no such office exists, to the Dallas, Texas office of AAA), designating the first arbitrator (who shall not be a representative or agent of any party but may or may not be an AAA panel member and, in any case, shall be reasonably believed by the Claimant to possess the requisite experience, education and expertise in respect of the matters to which the claim relates to enable such person to completely perform arbitral duties). Within ten days after receipt of such notice, the Respondent shall send written notice to the Claimant, with a copy to the Oklahoma City, Oklahoma office of AAA (if no such office exists, to the Dallas, Texas office of AAA) and to the first arbitrator, designating the second arbitrator (who shall not be a representative or agent of any party, but may or may not be an AAA panel member and, in any case, shall be reasonably believed by the Respondent to possess the requisite experience, education and expertise in respect of the matters to which the claim relates to enable such person to competently perform arbitral duties). Within ten days after such notice from the Respondent is received by the Claimant, the Respondent and the Claimant shall cause their respective designated arbitrators to select any mutually agreeable AAA panel member as the third arbitrator. If the respective designated arbitrators of the Respondent and the Claimant cannot so agree within said ten day period, then the third arbitrator will be determined pursuant to the Rules. For purposes of this Section 2.07, the Company (on the one hand) and the Trust (on the other hand) shall each be entitled to the selection of one arbitrator. Prior to commencement of the arbitration proceeding, each arbitrator shall have provided the parties with a resume outlining such arbitrator’s background and qualifications and shall certify that such arbitrator is not a representative or agent of any of the parties. If any arbitrator shall die, fail to act, resign, become disqualified or otherwise cease to act, then the arbitration proceeding shall be delayed for fifteen days and the party by or on behalf of whom such arbitrator was appointed shall be entitled to appoint a substitute arbitrator (meeting the qualifications set forth in this Section 2.07) within such fifteen day period; provided , that if the party by or on behalf of whom such arbitrator was appointed shall fail to appoint a substitute arbitrator within such fifteen day period, the substitute arbitrator shall be a neutral arbitrator appointed by the AAA arbitrator within fifteen days thereafter.

 

(d) All arbitration hearings shall be commenced within one hundred twenty days after arbitration is initiated pursuant to the Rules, unless, upon a showing of good cause by a party to the arbitration, the tribunal of arbitrators permits the extension of the commencement of such hearing; provided , that any such extension shall not be longer than sixty days.

 

(e) All claims presented for arbitration shall be particularly identified and the parties to the arbitration shall each prepare a statement of their position with the recommended courses of action. These statements of position and recommended courses of action shall be submitted to the tribunal of arbitrators chosen as provided hereinabove for binding decision. The tribunal of arbitrators shall not be empowered to make decisions beyond the scope of the position papers.

 

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(f) The arbitration proceeding will be governed by the substantive laws of the State of New York and will be conducted in accordance with such procedures as shall be fixed for such purpose by the tribunal of arbitrators, except that (i) discovery in connection with any arbitration proceeding shall be conducted in accordance with the Federal Rules of Civil Procedure and applicable case law, (ii) the tribunal of arbitrators shall have the power to compel discovery and (iii) unless the parties otherwise agree and except as may be provided in this Section 2.07, the arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. §§ 1-16, to the exclusion of any provision of state law or other applicable law or procedure inconsistent therewith or which would produce a different result. The parties shall preserve their right to assert and to avail themselves of the attorney-client and attorney-work-product privileges, and any other privileges to which they may be entitled pursuant to applicable law. No party to the arbitration or any arbitrator may compel or require mediation and/or settlement conferences without the prior written consent of all such parties and the tribunal of arbitrators.

 

(g) The tribunal of arbitrators shall make an arbitration award as soon as possible after the later of the close of evidence or the submission of final briefs, and in all cases the award shall be made not later than thirty days following submission of the matter. The finding and decision of a majority of the arbitrators shall be final and shall be binding upon the parties. Judgment upon the arbitration award or decision may be entered in any court having jurisdiction thereof or application may be made to any such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The tribunal of arbitrators shall have the authority to assess liability for pre-award and post-award interest on the claims, attorneys’ fees, expert witness fees and all other expenses of arbitration as such arbitrators shall deem appropriate based on the outcome of the claims arbitrated. Unless otherwise agreed by the parties to the arbitration in writing, the arbitration award shall include findings of fact and conclusions of law.

 

(h) Nothing in this Section 2.07 shall be deemed to (i) limit the applicability of any otherwise applicable statute of limitations or repose or any waivers contained in this Agreement, (ii) constitute a waiver by any Party of the protections afforded by 12 U.S.C. § 91 or any successor statute thereto or any substantially equivalent state law, (iii) restrict the right of the Trustee to make application to any state or federal district court having jurisdiction in Oklahoma City, Oklahoma to appoint a successor Trustee or to request instructions with regard to any provision in this Agreement when the Trustee is unsure of its obligations thereunder, or (iv) apply to the Delaware Trustee (as defined in the Trust Agreement).

 

(i) The provisions of this Section 2.07 will survive termination of this Agreement.

 

ARTICLE III
ADMINISTRATIVE SERVICES FEE; REIMBURSEMENT OF EXPENSES

 

SECTION 3.01. Administrative Services Fee; Reimbursement of External Expenses .

 

(a)           The Trust shall pay to the Company an annual administrative services fee of $300,000 (the “ Administrative Services Fee ”), which shall be paid in immediately available funds and in equal quarterly installments, on or before the 45th day following each calendar quarter. In the event that this Agreement is terminated during a calendar quarter pursuant to

 

9



 

Section 5.01, the amount of the Administrative Services Fee for such calendar quarter shall be based upon the pro rata portion of the Administrative Services Fee that shall have accrued during such quarter up to and including the Termination Date.

 

(b)           In addition to the Administrative Services Fee, the Trust shall reimburse the Company on or before the 45th day following each calendar quarter for all reasonable and necessary External Expenses associated with the provision of Services in the preceding quarter as set forth in a reasonably detailed invoice provided by the Company to the Trust on or before the 15th day following each calendar quarter.

 

SECTION 3.02. Set-Off . In the event that the Company or any of its Affiliates owes the Trust a sum certain in an uncontested amount under any other agreement, then any such amounts may, in the sole discretion of the Company, be aggregated and the Trust and the Company (and the Company’s Affiliates, as the case may be) shall discharge their obligations by netting those amounts against any amounts owed by the Trust to the Company under this Agreement.

 

ARTICLE IV
FORCE MAJEURE

 

SECTION 4.01. Force Majeure . The Company’s obligation under this Agreement shall be excused when and to the extent its performance of that obligation is prevented due to Force Majeure. The Company shall promptly notify the Trustee that it is prevented from performing its obligations by reason of Force Majeure and shall exercise due diligence to end its inability to perform as promptly as practicable. Notwithstanding the foregoing, the Company shall not be required to settle any strike, lockout or other labor dispute in which it or any of its Affiliates may be involved.

 

ARTICLE V
MISCELLANEOUS

 

SECTION 5.01. Term and Termination .

 

(a) This Agreement shall become effective on the date of this Agreement and shall continue until the date (the “ Termination Date ”) that is the earliest of:

 

(i) the date the Trust shall have dissolved and commenced winding up its business and affairs in accordance with Section 9.02 of the Trust Agreement;

 

(ii) the date that all of the Conveyances have been terminated or are no longer held by the Trust;

 

(iii) the date that either the Company or the Trustee may designate by delivering a written notice no less than 90 days prior to such date; provided , that the Company’s drilling obligations under the Development Agreement shall have been completed by such date; provided , further , that the Company shall not terminate this Agreement except in connection with the Company’s transfer of some or all of the Subject Interests (as defined in the Conveyances) and then only with respect to the

 

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Services to be provided with respect to the Subject Interests being transferred, and only upon the delivery to the Trustee of an agreement of the transferee of such Subject Interests, reasonably satisfactory to the Trustee, in which such transferee assumes the responsibility to perform the Services relating to the Subject Interests being transferred; and

 

(iv) the date as mutually agreed in writing by the Parties.

 

(b) Upon termination of this Agreement in accordance with Section 5.01(a)(i) or (ii), all rights and obligations under this Agreement shall cease except for (i) obligations that expressly survive termination of this Agreement, (ii) liabilities and obligations that have accrued prior to the Termination Date, including the obligation to pay any amounts that have become due and payable prior to such Termination Date and (iii) the obligation to pay any portion of the Administrative Services Fee that has accrued prior to such Termination Date, even if such portion has not become due and payable at such time. Upon termination of this Agreement in accordance with Section 5.01(a)(iii), the Company’s obligations to provide Services shall cease only with respect to the Subject Interests transferred, and shall otherwise continue unabated. In the event that the Company terminates this Agreement with respect to Subject Interests transferred in accordance with Section 5.01(a)(iii), the Administrative Services Fee shall be proportionately reduced, unless the Company certifies to the Trustee that such transfer of the Subject Interests will not result in a material decrease in the Company’s costs of providing the Services to the Trust with respect to the remaining Subject Interests.

 

SECTION 5.02. Notices . All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, by facsimile, by courier guaranteeing overnight delivery or by first-class mail, return receipt requested, and shall be deemed given (i) when made, if made by hand delivery, (ii) upon confirmation, if made by facsimile, (iii) one Business Day after being deposited with such courier, if made by overnight courier or (iv) on the date indicated on the notice of receipt, if made by first-class mail, to the Parties as follows:

 

(a)           if to the Trust or the Trustee, to:

 

SandRidge Mississippian Trust II
c/o The Bank of New York Mellon Trust Company, N.A.
Institutional Trust Services
919 Congress Avenue, Suite 500
Austin, Texas 78701
Attention: Michael J. Ulrich
Facsimile No.: (512) 479-2253

 

With a copy to:

 

Bracewell & Giuliani LLP
111 Congress Avenue
Suite 2300
Austin, Texas 78701

 

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Attention: Thomas W. Adkins
Facsimile No.: (512) 479-3940

 

(b)           if to the Company, to:

 

SandRidge Energy, Inc.

123 Robert S. Kerr Avenue
Oklahoma City, OK 73102-6406

Attention: Philip T. Warman

Facsimile No.: (405) 429-5983

 

With a copy to:

 

Covington & Burling LLP

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Attention: David H. Engvall

Facsimile No. (202) 778 5307

 

or to such other address as such Person may have furnished to the other Persons identified in this Section 5.02 in writing in accordance herewith.

 

SECTION 5.03. Entire Agreement; Supersedure; Third Party Beneficiaries . This Agreement, together with all other agreements and documents contemplated to be executed and delivered in connection with the transactions contemplated hereby, constitutes the entire agreement of the Parties relating to the matters contained herein, and supersedes all prior contracts, agreements and understandings, whether written or oral, relating to the matters contained herein. This Agreement does not confer upon any Person, other than the Parties, any rights or remedies.

 

SECTION 5.04. Effect of Waiver or Consent . Except as otherwise provided in this Agreement, a waiver or consent, express or implied, to or of any breach or default by any Party in the performance by that Party of its obligations under this Agreement is not a consent or waiver to or of any other breach or default in the performance by that Party of the same or any other obligations of that Party under this Agreement.

 

SECTION 5.05. Amendment or Modification . This Agreement may be amended or modified from time to time only by a written instrument executed by each of the Parties.

 

SECTION 5.06. Assignment . Except as provided in Section 2.03, and except for any transfer of the rights of the Trustee hereunder to a successor trustee of the Trust, no Party shall have the right to assign its rights or obligations under this Agreement without the written consent of the other Party.

 

SECTION 5.07. Counterparts . This Agreement may be executed in any number of counterparts with the same effect as if all Parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.

 

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SECTION 5.08. Severability . If any provision of this Agreement or the application thereof to any Party or circumstance shall be held invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to the other Party or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law.

 

SECTION 5.09. Further Assurances . In connection with this Agreement and all transactions contemplated by this Agreement, each Party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.

 

SECTION 5.10. Governing Law . THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.

 

SECTION 5.11. Limitation of Trustee’s Liability . It is expressly understood and agreed by the Parties hereto that (a) this Agreement is executed and delivered by the Trustee not individually or personally, but solely as Trustee in the exercise of the powers and authority conferred and vested in it and (b) under no circumstances shall the Trustee be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Agreement. Further, the Trust’s obligations under the Direct Hedge Contracts shall be the sole liability and responsibility of the Trust, and the Trustee shall have no liability for any amounts due under any Direct Hedge Contract, SandRidge Hedge Contract or Reset.

 

[Page deliberately left blank]

 

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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

 

 

SandRidge Energy, Inc.

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

 

[ Signature Page to Administrative Services Agreement ]

 



 

 

SandRidge Mississippian Trust II

 

 

 

By:

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

 

Name:

Michael J. Ulrich

 

 

 

Title:

Vice President

 

 

[ Signature Page to Administrative Services Agreement ]

 


Exhibit 10.12

 

Execution Copy

 

DEVELOPMENT AGREEMENT

 

This Development Agreement (this “ Development Agreement ”) by and among SandRidge Energy, Inc., a Delaware corporation, with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ SandRidge Parent ”), SandRidge Exploration and Production, LLC, a Delaware limited liability company and wholly owned subsidiary of SandRidge Parent with offices at 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102-6406 (“ Assignor ” and, together with SandRidge Parent, “ SandRidge ”) and SandRidge Mississippian Trust II, a statutory trust formed under the laws of the State of Delaware (the “ Trust ”), is delivered to be effective as of 12:01 a.m., Central Time, January 1, 2012 (the “ Effective Time ”).  All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Article I below.

 

WHEREAS , Assignor and the Trust have entered into that certain Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (Development) and that certain Long-Term Overriding Royalty Interest Conveyance (Kansas) (Development), each to be effective as of the Effective Time (collectively, the “ Perpetual Development Conveyances ”);

 

WHEREAS , Assignor and Mistmada Oil Company, Inc., an Oklahoma corporation and wholly owned subsidiary of SandRidge Parent (“ SandRidge Sub ”), have entered into that certain Term Overriding Royalty Interest Conveyance (Oklahoma) (Development) and that certain Term Overriding Royalty Interest Conveyance (Kansas) (Development), each to be effective as of the Effective Time (collectively, the “ Term Development Conveyances ,” and together with the Perpetual Development Conveyances, the “ Conveyances ”), which Term Development Conveyances have been assigned as of the Effective Time by SandRidge Sub to the Trust; and

 

WHEREAS , in connection with the Conveyances, SandRidge has agreed to undertake certain obligations with respect to the drilling and completion of the Development Wells.

 

NOW, THEREFORE , in consideration of the premises and the covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intended to be legally bound hereby, it is agreed as follows:

 

ARTICLE I

 

DEFINITIONS

 

This Article I defines certain capitalized words, terms and phrases used in this Development Agreement. Certain other capitalized words, terms and phrases used in this Development Agreement are defined elsewhere in this Development Agreement.

 

Additional Interest ” is defined in Section 3.01.

 

Additional Lease ” is defined in Section 3.01.

 

Adjusted Development Well Amount ” means the amount, for each Development Well, equal to the product of (a) the NRI Factor for such well, multiplied by (b) the Lateral

 



 

Distance Factor for such well.  For example, in the case of a Development Well for which the NRI Factor is 1.5 and the Lateral Distance Factor is 1.0, the Adjusted Development Well Amount would be equal to: NRI Factor (1.5) x Lateral Distance Factor (1.0) = 1.5.  Therefore, such Development Well would have a 1.5 Adjusted Development Well Amount.  The Adjusted Development Well Amount shall be rounded to the nearest ten thousandth ( i.e. , four decimal places to the right of the decimal point).

 

Affiliate ” means, for any specified Person, another Person that controls, is controlled by, or is under common control with, the specified Person.  “ Control ,” in the preceding sentence, refers to the possession by one Person, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract or otherwise.

 

AMI ” means that area described in Exhibit A to this Development Agreement, as such area may be extended or exchanged pursuant to Article III below.

 

Assignee Minerals ” means, collectively, the “Assignee Minerals” as defined under each of the Conveyances.

 

Assignor ” is defined in the introductory paragraph to this Development Agreement.

 

Assignor’s Net Revenue Interest ” means the interest, stated as a decimal fraction, in Subject Minerals production from a Development Well attributable to Subject Interests in that Development Well, net of Production Burdens.

 

Closing Time ” means 12:01 a.m., Central Time, on April 23, 2012.

 

Conveyances ” is defined in the recitals to this Development Agreement.

 

Development Agreement ” is defined in the introductory paragraph to this Development Agreement.

 

Development Area ” means each governmental section outside the AMI but adjacent to a governmental section included in the AMI, except for any governmental section outside the AMI that comprises a part of the Area of Mutual Interest with respect to SandRidge Mississippian Trust I or any other royalty trust sponsored by SandRidge Parent.

 

Development Well ” means any Mineral well located on the Subject Lands, or on lands with which the Subject Lands are pooled or unitized, that is spud after December 31, 2011 and drilled horizontally to, and perforated (or made ready to commence stimulation) for completion in, the Target Formation, on or prior to the Drilling Obligation Completion Date.

 

Drilling Obligation Completion Date ” means the date that the Total Drilling Target is reached; provided that the “Drilling Obligation Completion Date” shall not be deemed to have been achieved unless SandRidge Parent shall have delivered to the Trustee, within a reasonable time thereafter, (a) a certificate substantially in the form of Exhibit B to this Development Agreement, executed by its Chief Executive Officer, President or any Vice President, certifying that the Total Drilling Target was achieved as of such date and identifying each Development

 

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Well, and (b) such other documentation as the Trustee may reasonably request to establish satisfaction of SandRidge’s drilling obligation hereunder.

 

Effective Time ” is defined in the introductory paragraph to this Development Agreement.

 

Exchange Acreage ” is defined in Section 3.02.

 

Excluded Assets ” means those Mineral wells that are described in Exhibit B to each of the Conveyances.

 

Gas ” means natural gas and all other gaseous hydrocarbons or minerals, including helium, but specifically excluding any Gas Liquids.

 

Gas Liquids ” means those natural gas liquids and other similar liquid hydrocarbons, including ethane, propane, butane and natural gasoline, and mixtures thereof, that are removed from a gas stream by the liquids extraction process of any field facility or gas processing plant and delivered by the facility or plant as natural gas liquids.

 

Kansas Cap ” is defined in Section 2.05(d).

 

Kansas Mortgage ” is defined in Section 2.05(b).

 

Lateral Distance Factor ” means:

 

(a)     for each Development Well with a Perforated Length of less than 3,500 feet, the quotient obtained by dividing such well’s Perforated Length by 3,500 feet;

 

(b)     for each Development Well with a Perforated Length of more than 4,500 feet, the quotient obtained by dividing such well’s Perforated Length by 4,500 feet; and

 

(c)      for each Development Well with a Perforated Length from and including 3,500 feet to and including 4,500 feet, a factor equal to 1.0.

 

For example, if the Perforated Length of a Development Well is 3,000 feet, the computation would be: 3,000 feet / 3,500 feet = 0.8571. Therefore, such Development Well would have a Lateral Distance Factor of 0.8571.  If the Perforated Length of a Development Well is 5,000 feet, however, the computation would be: 5,000 feet / 4,500 feet = 1.1111. Therefore, such Development Well would have a Lateral Distance Factor of 1.1111.  If the Perforated Length of a Development Well is 4,000 feet, the Lateral Distance Factor for such Development Well would be 1.0.  The Lateral Distance Factor for each Development Well shall be rounded to the nearest ten thousandth ( i.e. , four decimal places to the right of the decimal point).

 

Mineral(s)  “ means Oil, Gas and Gas Liquids.

 

Mortgages ” is defined in Section 2.05(b).

 

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NRI Factor ” means, with respect to each Development Well, the fraction obtained by dividing Assignor’s Net Revenue Interest for such well by 47.3967%.  For example, if Assignor’s Net Revenue Interest in a Development Well is 70.0%, the computation would be: 70.0% / 47.3967% = 1.4769.  Therefore, such Development Well would have a NRI Factor of 1.4769.  The NRI Factor for each Development Well shall be rounded to the nearest ten thousandth ( i.e. , four decimal places to the right of the decimal point).

 

Oil ” means crude oil, condensate and other liquid hydrocarbons recovered by field equipment or facilities, excluding Gas Liquids.

 

Oklahoma Cap ” is defined in Section 2.05(d).

 

Oklahoma Mortgage ” is defined in Section 2.05(b).

 

Party ,” when capitalized, refers to SandRidge Parent, Assignor or the Trust. “ Parties ,” when capitalized, refers to SandRidge Parent, Assignor and the Trust.

 

Perforated Length ” means the perforated length (in feet) of the well bore of a Development Well, measured from the first perforation or stimulation site along the measured depth to the last perforation or stimulation site along the measured depth.

 

Perpetual Development Conveyances ” is defined in the recitals to this Development Agreement.

 

Person ” means any natural person, corporation, partnership, trust, estate or other entity, organization or association.

 

Production Burdens ” means, with respect to any Subject Lands, Subject Interests or Subject Minerals, all royalty interests, overriding royalty interests, production payments, net profits interests and other similar interests that constitute a burden on, are measured by or are payable out of the production of Minerals or the proceeds realized from the sale or other disposition thereof.

 

Reasonably Prudent Operator Standard ” means the standard of conduct of a reasonably prudent oil and gas operator in the AMI under the same or similar circumstances, acting with respect to its own property and disregarding the existence of the Royalty Interests as a burden on such property.

 

Royalty Interests ” means, collectively, the royalty interests created under each of the Conveyances.

 

SandRidge ” is defined in the introductory paragraph to this Development Agreement.

 

SandRidge Parent ” is defined in the introductory paragraph to this Development Agreement.

 

SandRidge Sub ” is defined in the recitals to this Development Agreement.

 

4



 

Subject Interests ” means Assignor’s undivided interests in the Subject Lands as described on Exhibit A to each of the Conveyances, whether as lessee under leases, as an owner of the Subject Minerals (or the right to extract such Minerals) or otherwise, by virtue of which undivided interests Assignor has the right to conduct exploration, drilling, development and Mineral production operations on the Subject Lands, or to cause such operations to be conducted, or to participate in such operations by paying and bearing all or any part of the costs, risks and liabilities of such operations, to drill, test, complete, equip, operate and produce wells to exploit the Minerals. The “Subject Interests” (a) may be owned by Assignor pursuant to leases, deeds, operating, pooling or unitization agreements, orders or any other instruments, agreements or documents, recorded or unrecorded, (b) include any and all extensions or renewals of leases covering the Subject Lands (or any portion thereof) obtained by Assignor, or any Affiliate thereof, within six (6) months after the expiration or termination of any such lease, and (c) are subject to the Permitted Encumbrances (as defined in each of the Conveyances). For the avoidance of doubt, the “Subject Interests” do not include: (i) Assignor’s interests in the Excluded Assets; (ii) Assignor’s rights to substances other than Minerals; (iii) Assignor’s rights to Minerals (other than Assignee Minerals) under contracts for the purchase, sale, transportation, storage, processing or other handling or disposition of Minerals; (iv) Assignor’s interests in, or rights to Minerals (other than Assignee Minerals) held in pipelines, gathering systems, storage facilities, processing facilities or other equipment or facilities; or (v) any additional or enlarged interests in the Development Wells, Subject Lands or Subject Minerals acquired by Assignor after the Closing Time, except (1) to the extent any such additional or enlarged interest becomes a part of the Subject Interests by amendment to the applicable Conveyance pursuant to Section 3.01 or Section 3.02 below, (2) as may result from the operation of the terms of the instruments creating the Subject Interests, or (3) as may be reflected in extensions and renewals covered by the preceding sentence.

 

Subject Lands ” means the lands subject to or covered by the oil and gas leases described in Exhibit A to each of the Conveyances, insofar and only insofar as they cover the Target Formation, subject to the exceptions, exclusions and reservations set forth on each such Exhibit A.

 

Subject Minerals ” means all Minerals in and under, and that may be produced, saved and sold from a Development Well, from and after the Effective Time, insofar and only insofar as such Minerals are produced from the Target Formation, subject to the following exclusions: Minerals that are (a) lost in the production, gathering or marketing of Minerals; (b) used (i) in conformity with ordinary and prudent operations on the Subject Lands, including drilling and production operations with respect to a Development Well, or (ii) in connection with operations (whether on or off the Subject Lands) for processing or compressing the Subject Minerals; (c) taken by a Third Person to recover costs, or some multiple of costs, paid or incurred by that Third Person under any operating agreement, unit agreement or other agreement in connection with nonconsent operations conducted (or participated in) by that Third Person; and (d) retained by a Third Person for gathering, transportation, processing or marketing services related to the Subject Minerals in lieu of or in addition to cash payment for such services, to the extent such agreement is permitted under the Conveyances.

 

Target Formation ” means (i) with respect to Alfalfa County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow

 

5



 

or its stratigraphic equivalent at a depth of 4,833’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,344’ in the SandRidge Energy Dorado SWD 1-32 located in section 32, Township 29 North, Range 9 West (API No. 35003219830000); (ii) with respect to Grant County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,395’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 6,060’ in the SandRidge Energy Orion 1-22 SWD located in section 22, Township 25 North, Range 5 West (API No. 35053227710000); (iii) with respect to Kay County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4,387’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 4,619’ in the Jefferson-WMS State School Land 5-36 located in section 36, Township 25 North, Range 2 West (API No. 35071224500000); (iv) with respect to Noble County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4,523’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 4,783’ in the SandRidge Energy County Line SWD 1-2 located in section 2, Township 24 North, Range 2 West (API No. 35103242860000); (v) with respect to Woods County, Oklahoma, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,204’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,704’ in the SandRidge Energy Koppitz SWD 1-31 located in section 31, Township 28 North, Range 13 West (API No. 35151232750000); (vi) with respect to Barber County, Kansas, the “Target Formation” being defined as being the interval between the base of the Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4744’ and the Devonian-aged Chattanooga Shale or its stratigraphic equivalent at a depth of 5096’ in the SandRidge Energy Stephanie SWD 1-3 located in 3-35S-10W (API No. 15007237990000); (vii) with respect to Comanche County, Kansas, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 5,511’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 6,786’ in the Sho-Bar #1-29 Wayne located in section 29, Township 34 South, Range 20 West (API No. 15033213800000); (viii) with respect to Harper County, Kansas, the “Target Formation” being defined as being the interval between the base of the Pennsylvanian-aged Morrow or its stratigraphic equivalent at a depth of 4800’ and the Devonian-aged Chattanooga Shale or its stratigraphic equivalent at a depth of 5096’ in the SandRidge Energy Shea SWD 1-17 located in 17-35S-7W (API No. 15077217810000); and (ix) with respect to Sumner County, Kansas, the “Target Formation” being defined as being the interval between the base of Pennsylvanian-aged Red Fork Zone or its stratigraphic equivalent at a depth of 4,660’ and the Devonian-aged Woodford Shale or its stratigraphic equivalent at a depth of 5,112’ in the Quinton Little Company #1-18 Wolff located in section 18, Township 35 South, Range 4 West (API No. 15191201870000).

 

Term Development Conveyances ” is defined in the recitals to this Development Agreement.

 

Third Person ” means a Person other than SandRidge or the Trustee.

 

6



 

Total Drilling Target ” means that number of Development Wells where the cumulative sum of all the Adjusted Development Well Amounts for such Development Wells drilled or caused to be drilled by SandRidge equals 206.

 

Trust ” is defined in the introductory paragraph to this Development Agreement.

 

Trust Agreement ” means the Amended and Restated Trust Agreement of the Trust, dated as of April 23, 2012 (as may be amended from time to time), among SandRidge Parent, the Trustee and The Corporation Trust Company, as Delaware trustee.

 

Trustee ” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America with its principal place of business in New York, New York, as trustee, acting not in its individual capacity but solely as trustee of the Trust.

 

ARTICLE II

 

DEVELOPMENT OF THE SUBJECT LANDS

 

Section 2.01 Drilling Program .

 

(a)  Obligation to Drill . SandRidge shall, subject to the terms of this Article II, drill or cause to be drilled such number of Development Wells that is necessary to achieve the Total Drilling Target on or prior to December 31, 2016.

 

(b)  Drilling Standard . SandRidge shall drill or caused to be drilled, at SandRidge’s sole cost and expense, each of the Development Wells in a diligent manner in accordance with the Reasonably Prudent Operator Standard.

 

Section 2.02 Obligation to Complete and Equip . SandRidge shall, at SandRidge’s sole cost and expense, (a) attempt to complete in the Target Formation each Development Well that reasonably appears to SandRidge, acting in accordance with the Reasonably Prudent Operator Standard, to be capable of producing Minerals in quantities sufficient to pay completion, equipping and operating costs, (b) equip for production each Development Well that is successfully completed and, when it is equipped and connected to a gathering line, pipeline or other storage or marketing facility, commence production, and (c) plug and abandon all Development Wells that are unsuccessful to the extent required by applicable law.

 

Section 2.03 Costs and Expenses of Development Wells . All costs and expenses associated with or paid or incurred in connection with the spudding, drilling, testing, completing and equipping for production, operating and/or plugging and abandoning of the Development Wells shall be borne solely by SandRidge, but SandRidge may use any Subject Minerals in such operations without any duty to account to the Trustee or the Trust.

 

Section 2.04 Title Due Diligence . Prior to commencing the drilling of any Development Well, SandRidge shall perform such title due diligence and such title curative work as would be performed by an oil and gas operator drilling a well and acting in accordance with the Reasonably Prudent Operator Standard.

 

7



 

Section 2.05 Wells .

 

(a) Prior to the Drilling Obligation Completion Date, SandRidge shall not, and shall cause its Affiliates not to, drill and/or complete any well to the Target Formation in the AMI, other than Development Wells in furtherance of its drilling obligation in Section 2.01 above.

 

(b) In order to secure the performance of SandRidge’s drilling obligation under Section 2.01 above, Assignor hereby covenants and agrees to enter into (i) a Mortgage by which Assignor will grant to the Trust a mortgage lien in and to any of the undeveloped portions of the Subject Interests (including, by amendment to such mortgage, any Additional Lease, Additional Interest or Exchange Acreage that becomes part of the Subject Interests) located in those parts of the AMI located in Oklahoma (the “ Oklahoma Mortgage ”), and (ii) a Mortgage by which Assignor will grant to the Trust a mortgage lien in and to any of the undeveloped portions of the Subject Interests (including, by amendment to such mortgage, any Additional Lease, Additional Interest or Exchange Acreage that becomes part of the Subject Interests) located in those parts of the AMI located in Kansas (the “ Kansas Mortgage ” and, together with the Oklahoma Mortgage, the “ Mortgages ”).

 

(c) If SandRidge fails to achieve the Total Drilling Target by December 31, 2016, SandRidge shall be in default of its obligations under this Development Agreement and the Trust shall be entitled to pursue, in its sole discretion, any and all remedies available pursuant to Article III of each of the Mortgages.  Other than as set forth in the Mortgages, the Trust shall have no separate cause of action for default by SandRidge under Article II of this Development Agreement.  If SandRidge fails to perform its obligations under this Development Agreement (other than its obligations under Article II above), SandRidge shall be in default and the Trust shall be entitled to pursue, in its sole discretion, any and all remedies available at law and in equity.  Notwithstanding anything to the contrary contained herein, the Trust hereby waives any and all claims or rights of action to compel specific performance of SandRidge’s obligations under this Development Agreement.

 

(d) Notwithstanding Section 2.05(c), the maximum amount recoverable upon a failure by SandRidge to satisfy its obligations under Section 2.01 above shall initially be $239,499,000 with respect to the Oklahoma Mortgage (the “ Oklahoma Cap ”) and $29,601,000 with respect to the Kansas Mortgage (the “ Kansas Cap ”); provided , that, from and after such time as SandRidge has drilled or caused to be drilled that number of Development Wells where the cumulative total of all Adjusted Development Well Amounts for such Development Wells equals or exceeds 103, the Oklahoma Cap and the Kansas Cap shall be reduced, for each additional Development Well drilled or caused to be drilled by SandRidge (whether located in Oklahoma or Kansas), as follows:

 

(i) the Oklahoma Cap shall automatically be reduced (but not below zero) by an amount that is equal to (A) $2,325,233.01 multiplied by (B) the Adjusted Development Well Amount for such Development Well; and

 

(ii)           the Kansas Cap shall automatically be reduced (but not below zero) by an amount that is equal to (A) $287,388.35 multiplied by (B) the Adjusted Development Well Amount for such Development Well.

 

8



 

For the avoidance of doubt, each of the Oklahoma Cap and the Kansas Cap shall be equal to zero once SandRidge has drilled or caused to be drilled such number of Development Wells that is necessary to achieve the Total Drilling Target.  In addition, upon Assignor’s request and at Assignor’s expense, the lien and security interest evidenced by the applicable Mortgage shall be released as to each Development Well located on the Subject Lands subject to such Mortgage as the same is completed or perforated (or made ready to commence stimulation) for completion in accordance with this Development Agreement, including wells that are completed or perforated (or made ready to commence stimulation) for completion and then plugged and abandoned in the Target Formation.

 

ARTICLE III

 

AMI

 

Section 3.01 Additional Leases and Additional Interests . In the event that, after the Closing Time and prior to the Drilling Obligation Completion Date, Assignor (a) acquires additional leases (other than renewals or extensions of leases that already constitute a part of the Subject Interests) covering lands lying within the AMI (each, an “ Additional Lease ”) or (b) acquires through forced pooling or otherwise by operation of law or pursuant to any applicable contract any rights or interests that increase Assignor’s Net Revenue Interest in any Development Well, whether before or after the drilling of such well (each such increase in Assignor’s Net Revenue Interest, an “ Additional Interest ”), at Assignor’s option and subject to Section 3.03 below, upon notice from Assignor, the Trust shall execute, acknowledge and deliver (i) an instrument that amends the applicable Conveyance so that each such Additional Lease or Additional Interest will be subject to the Royalty Interest and be part of the Subject Interests and Subject Lands, and (ii) an instrument that amends the applicable Mortgage so that each such Additional Lease will be subject to such Mortgage.

 

Section 3.02 Exchange of Subject Lands . At Assignor’s option and subject to Section 3.03 below, at any time prior to the Drilling Obligation Completion Date, upon notice from Assignor, the Trust shall execute, acknowledge and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that reconveys to Assignor the Royalty Interest relating to such undeveloped portions of the Subject Interests as Assignor may elect, and releases such Subject Interests from the applicable Mortgage, in connection with Assignor’s exchange of such Subject Interests for other undeveloped acreage either within the AMI or outside the AMI but within the Development Area (the “ Exchange Acreage ”).  Concurrently with such reconveyance and release, Assignor and the Trust shall execute, acknowledge and deliver (a) an instrument that amends the applicable Conveyance so that such Exchange Acreage will be subject to the Royalty Interest and be part of the Subject Interests and Subject Lands, and (b) an instrument that amends the applicable Mortgage so that such Exchange Acreage will be subject to such Mortgage.  In no event shall Assignor extend any well into any Exchange Acreage unless and until the applicable Conveyance is amended to include such Exchange Acreage as part of the Subject Interests.

 

Section 3.03 Limitations . In no event may (i) any Additional Lease or Additional Interest be made subject to the Royalty Interest pursuant to Section 3.01 above, or (ii) any

 

9



 

exchange involving Exchange Acreage be effected pursuant to Section 3.02 above, unless Assignor certifies to the Trust that:

 

(a) the aggregate acreage attributable to all Additional Leases, Additional Interests and Exchange Acreage will not exceed 5% of the Subject Interests as such exist as of the Closing Time;

 

(b) in the case of an Additional Lease only, the reserve profile of the acreage subject to such Additional Lease is consistent with the reserve profiles of other portions of the Subject Interests;

 

(c) in the case of Exchange Acreage only, the reasonably projected quantity of proved undeveloped reserves and probable reserves attributable to the Exchange Acreage does not significantly differ from the reasonably projected quantity of proved undeveloped reserves and probable reserves attributable to the portion of the Subject Interests to be given in exchange therefor; and

 

(d) the addition of any Additional Leases, Additional Interests, or Exchange Acreage, as applicable, to the Conveyances will not cause any adverse federal income tax consequence to any unitholder of the Trust.

 

The Trustee is hereby authorized and directed to rely on any such certification from Assignor, and shall have no authority or responsibility to exercise any discretion in connection with any transaction authorized by this Article III.

 

ARTICLE IV

 

OTHER PROVISIONS

 

Section 4.01 Successors and Assigns .  Subject to the limitation and restrictions on the assignment or delegation by the Parties of their rights and interests under this Development Agreement, all of the covenants and agreements of SandRidge Parent, Assignor and the Trust contained herein shall be deemed to be covenants running with the land and shall be binding upon the successors and assigns of SandRidge Parent’s and Assignor’s interests in the Subject Interests or this Development Agreement and SandRidge Sub’s and the Trust’s interest in the Royalty Interests and shall inure to the benefit of SandRidge Sub and the Trust and their respective successors and permitted assigns.  The foregoing notwithstanding, nothing herein is intended to modify or shall have the effect of modifying the restrictions on assignment set forth in the Conveyances regarding assignments, transfer or pooling of SandRidge Parent’s and Assignor’s interests in the Subject Interests; and the preceding sentence shall not be deemed to permit any assignment or other transfer of the interest of SandRidge Parent or Assignor in any of the Subject Interests that is not specifically permitted by the provisions of the Conveyances.  Nothing contained in this Development Agreement or in the Conveyances shall in any way limit or restrict the right of the Trust, or the Trust’s respective successors and assigns, to sell, convey, assign or mortgage the Royalty Interests in whole or in part.  If the Trust, or the Trust’s successors and assigns, at any time shall execute a mortgage, pledge or deed of trust covering all or any part of the Royalty Interests as security for any obligation, the mortgagee, the pledgee or the trustee therein named or the holder of the obligation secured thereby shall be entitled, to the

 

10



 

extent such mortgage, pledge or deed of trust so provides and upon the occurrence or existence of the event or condition therein stated, if so conditioned, to exercise all of the rights, remedies, powers and privileges herein conferred upon the Trust, and to give or withhold all consents herein required or permitted to be obtained from the Trust.

 

Section 4.02 Governing Law .  THIS DEVELOPMENT AGREEMENT SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF OKLAHOMA WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

Section 4.03 Construction of Development Agreement . In construing this Development Agreement, the following principles shall be followed:

 

(a) no consideration shall be given to the captions of the articles, sections, subsections or clauses, which are inserted for convenience in locating the provisions of this Development Agreement and not as an aid in its construction;

 

(b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Development Agreement;

 

(c) the word “includes” and its syntactical variants mean “includes, but is not limited to” and corresponding syntactical variant expressions;

 

(d) a defined term has its defined meaning throughout this Development Agreement, regardless of whether it appears before or after the place in this Development Agreement where it is defined;

 

(e) unless the context clearly indicates to the contrary, references to any Party shall be construed to include all permitted successors and assigns of such Party and references to the Trustee shall be construed to include all successor and substitute trustees under the Trust Agreement;

 

(f) the plural shall be deemed to include the singular, and vice versa; and

 

(g) each exhibit, attachment and schedule to this Development Agreement is a part of this Development Agreement, but if there is any conflict or inconsistency between the main body of this Development Agreement and any exhibit, attachment or schedule, the provisions of the main body of this Development Agreement shall prevail.

 

Section 4.04 No Waiver . Failure of any Party to require performance of any provision of this Development Agreement shall not affect any Party’s right to require full performance thereof at any time thereafter, and the waiver by any Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.

 

11



 

Section 4.05 Relationship of Parties . This Development Agreement does not create a partnership, mining partnership, joint venture or relationship of trust or agency between the Parties.

 

Section 4.06 Further Assurances . Each Party shall execute, acknowledge and deliver to the other Parties all additional instruments and other documents reasonably required to evidence or effect any transaction contemplated by this Development Agreement.

 

Section 4.07 The 12:01 A.M. Convention . Except as otherwise provided in this Development Agreement, each calendar day, month, quarter, and year shall be deemed to begin at 12:01 a.m. Central Time on the stated day or on the first day of the stated month, quarter, or year, and to end at 12:00 a.m. Central Time on the next day or on first day of the next month, quarter or year, respectively.

 

Section 4.08 Counterpart Execution . This Development Agreement may be executed in any number of counterparts with the same effect as if all the Parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.

 

Section 4.09 Notices . Any and all notices or demands permitted or required to be given under this Development Agreement shall be in writing and shall be validly given or made if (a) personally delivered, (b) delivered and confirmed by facsimile or like instantaneous transmission service, or by Federal Express or other overnight courier delivery service, which shall be effective as of confirmation of receipt by the courier at the address for notice hereinafter stated or (c) deposited in the United States mail, first class, postage prepaid, certified or registered, return receipt requested, addressed as follows:

 

If to the Trust, to:

 

SandRidge Mississippian Trust II

c/o The Bank of New York Mellon Trust Company, N.A.

Institutional Trust Services

919 Congress Avenue, Suite 500

Austin, Texas 78701

Attention: Michael J. Ulrich

Facsimile No.: (512) 479-2253

 

With a copy (which shall not constitute notice) to:

 

Bracewell & Giuliani LLP

111 Congress Avenue

Suite 2300

Austin, Texas 78701

Attention: Thomas W. Adkins

Facsimile No.: (512) 479-3940

 

12



 

If to SandRidge, to:

 

123 Robert S. Kerr Avenue

Oklahoma City, OK 73102-6406

Attention: Philip T. Warman

Facsimile No.: (405) 429-5983

 

With a copy (which shall not constitute notice) to:

 

Covington & Burling LLP

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Attention: David H. Engvall

Facsimile No. (202) 778 5307

 

Section 4.10 Limitation of Liability . It is expressly understood and agreed by the Parties that (a) this Development Agreement is executed and delivered by the Trustee not individually or personally, but solely as the Trustee in the exercise of the powers and authority conferred and vested in it, and (b) under no circumstances shall the Trustee be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Development Agreement.  It is further expressly understood and agreed by the Parties that neither the Trust nor the Trustee, in its capacity as the Trustee or individually, shall have any authority over, or responsibility or liability for, the drilling of the Development Wells or any of the other business or commercial activities contemplated by this Development Agreement, all of which are hereby agreed to be the sole responsibility of SandRidge, and SandRidge hereby agrees to and hereby does indemnify and agree to hold harmless each of the Trust and the Trustee, in its capacity as the Trustee and individually, from and against any and all damages, liabilities, expenses, fines, judgments, amounts paid in settlement, reasonable attorneys’ fees and costs of investigation, and other expenses reasonably incurred by any of them in connection with or as a result of any of the business or commercial activities contemplated by this Development Agreement or any other matter arising out of this Development Agreement or any such matter. SandRidge further agrees to advance any such attorneys’ fees, costs of investigation and other expenses described above as they are incurred.

 

Section 4.11 Severability . If any provision of this Development Agreement or the application thereof to any Party or circumstance shall be held invalid or unenforceable to any extent, the remainder of this Development Agreement and the application of such provision to the other Parties or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law.

 

Section 4.12 Termination . This Development Agreement shall terminate and be deemed null and void as of and following the Drilling Obligation Completion Date.

 

Section 4.13 Joint and Several Liability . The Parties acknowledge and agree that the obligations of SandRidge contained in this Development Agreement are the joint and several obligations of SandRidge Parent and Assignor.

 

13



 

[ Remainder of page intentionally left blank .]

 

14



 

IN WITNESS WHEREOF, each Party has caused this Development Agreement to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Development Agreement, to be effective as of the Effective Time.

 

 

SANDRIDGE ENERGY, INC.

 

 

 

 

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

 

 

 

 

 

 

 

 

SANDRIDGE EXPLORATION AND PRODUCTION, LLC

 

 

 

 

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

 

Signature Page to Development Agreement

 



 

 

SANDRIDGE MISSISSIPPIAN TRUST II

 

 

 

 

By:

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

Name:

Michael J. Ulrich

 

 

Title:

Vice President

 

 

Signature Page to Development Agreement

 



 

STATE OF OKLAHOMA

§

 

 

§

 

COUNTY OF OKLAHOMA

§

 

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb, President and Chief Operating Officer of SandRidge Energy Inc., a Delaware corporation, on behalf of said corporation.

 

 

 

/s/ Janis L. Roberts

 

NOTARY PUBLIC,

 

 

 

State of Oklahoma

 

 

 

Janis L. Roberts

 

(printed name)

 

 

 

 

My commission expires: May 22, 2012

 

 

 

 

 

SEAL or STAMP

 

 

 

Acknowledgment Page to Development Agreement

 



 

STATE OF OKLAHOMA

§

 

 

§

 

COUNTY OF OKLAHOMA

§

 

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb, President and Chief Operating Officer of SandRidge Exploration and Production, LLC, a Delaware limited liability company, on behalf of said limited liability company.

 

 

 

/s/ Janis L. Roberts

 

NOTARY PUBLIC,

 

 

 

State of Oklahoma

 

 

 

Janis Roberts

 

(printed name)

 

 

 

 

My commission expires: May 22, 2012

 

 

 

 

 

SEAL or STAMP

 

 

 

Acknowledgment Page to Development Agreement

 



 

STATE OF TEXAS

§

 

 

§

 

COUNTY OF TRAVIS

§

 

 

This instrument was acknowledged before me on April 17, 2012, by Michael J. Ulrich, Vice President of The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, as Trustee of SandRidge Mississippian Trust II, a Delaware statutory trust, on behalf of said national banking association and said trust.

 

 

 

/s/ Sarah Newell

 

NOTARY PUBLIC,

 

 

 

State of Texas

 

 

 

Sarah Newell

 

(printed name)

 

 

 

 

My commission expires: February 16, 2014

 

 

 

 

 

SEAL or STAMP

 

 

 

Acknowledgment Page to Development Agreement

 



 

Exhibit A

 

(Description of AMI)

 

See attached.

 



 

Exhibit B

 

[Letterhead of SandRidge Energy, Inc.]

 

[Date]

 

Reference is made to that certain Development Agreement (the “ Development Agreement ”), by and between SandRidge Energy, Inc. (“ SandRidge ”), SandRidge Exploration and Production, LLC and SandRidge Mississippian Trust II, a Delaware statutory trust, delivered to be effective as of January 1, 2012.  Capitalized terms used but not defined herein have the meaning given them in the Development Agreement.

 

SandRidge hereby certifies to the Trust that SandRidge achieved the Total Drilling Target on [insert date] and, therefore, such date shall be, for all purposes, established as the Drilling Obligation Completion Date.

 

The Development Wells drilled to achieve the Total Drilling Target are listed in the attachment to this letter.

 

Please sign and return an executed copy of this letter to certify that you require no additional documentation to establish SandRidge’s satisfaction of its drilling obligation under the Development Agreement and that [insert date] shall be, for all purposes, established as the Drilling Obligation Completion Date.

 

 

SandRidge Energy, Inc.

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

Acknowledged and agreed:

 

 

SandRidge Mississippian Trust II

 

 

 

By:

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 


Exhibit 10.13

 

Execution Copy

 

DERIVATIVES AGREEMENT

 

This DERIVATIVES AGREEMENT, delivered as of April 23, 2012, is between SandRidge Energy, Inc., a Delaware corporation (“ SandRidge ”), and SandRidge Mississippian Trust II, a Delaware statutory trust (the “ Trust ”) and is delivered to be effective as of 12:01 a.m., Central Time, April 1, 2012.

 

R E C I T A L S

 

WHEREAS, the Trust is governed by that certain Amended and Restated Trust Agreement dated as of April 23, 2012 by and among SandRidge, The Corporation Trust Company, as Delaware trustee, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “ Trustee ”, and such agreement, the “ Trust Agreement ”);

 

WHEREAS, SandRidge Exploration and Production, LLC (“ SandRidge Sub ”), a Delaware limited liability company and a wholly-owned subsidiary of SandRidge, has conveyed (or caused to be conveyed) to the Trust certain royalty interests pursuant to (i) those certain Term Royalty Conveyances (as defined in the Trust Agreement), (ii) those certain Perpetual Royalty Conveyances (as defined in the Trust Agreement), (iii) and the Assignments of Overriding Royalty Interest (as defined in the Trust Agreement), in each case delivered to be effective as of the effective time specified in such conveyances (collectively, the “ Conveyances ”), pursuant to which SandRidge Sub will from time to time distribute cash proceeds to the Trust;

 

WHEREAS, SandRidge has entered into certain commodity derivatives transactions with Barclays Bank PLC (“ Barclays ”), Citibank, N.A. (“ Citibank ”), and Morgan Stanley Capital Group Inc. (“ Morgan Stanley ”);

 

WHEREAS, SandRidge and the Trust desire to allocate among themselves certain of the economic benefits and costs associated with these transactions;

 

NOW, THEREFORE, in consideration of the premises herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I
DEFINITIONS; TERMS GENERALLY

 

Section 1.01 Definitions . As used herein, terms defined above have the meanings given such terms above and the following terms have the following meanings:

 

Agreement ” means this Derivatives Agreement, as the same may be amended, supplemented or otherwise modified from time to time.

 

Approved Trust Counterparty ” means any Person regularly engaged in the hedging of commodities who has (or who has a provider of credit support identified in such Person’s ISDA trade documentation that has) a long term corporate debt rating of A-/A3 (or the then-equivalent) by S&P or Moody’s or higher and who is a party to the Collateral Agency Agreement.

 



 

Bankruptcy Code ” has the meaning given in Section 4.07(b).

 

Barclays ” has the meaning given in the recitals to this Agreement.

 

Barclays Trade Documents ” means the ISDA Master Agreement dated as of November 16, 2007 between SandRidge and Barclays, including the Schedule thereto and each Confirmation entered into thereunder, in each case in effect on the date hereof.

 

Business Day ” means a day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.

 

Citibank ” has the meaning given in the recitals to this Agreement.

 

Citibank Trade Documents ” means the ISDA Master Agreement dated as of October 1, 2011 between SandRidge and Citibank, including the Schedule thereto and each Confirmation entered into thereunder, in each case in effect on the date hereof.

 

Collateral Agency Agreement ” means that certain Collateral Agency Agreement to be entered into by and among Wilmington Trust, National Association as Collateral Agent, the Trust and the other parties thereto, as amended, restated, supplemented, replaced or otherwise modified from time to time.

 

Confirmations ” means the collective reference to each Confirmation attached hereto as Exhibit A.

 

Counterparties ” means the collective reference to Barclays, Citibank and Morgan Stanley.

 

Defaulting Party ” means, with respect to any Trade on any date of determination, any Person: (a) that is a “Defaulting Party” or an “Affected Party” with respect to such Trade on such date under the applicable Trade Documents (as such terms are defined therein) or (b) in respect of which a “Potential Event of Default” or an “Event of Default” has occurred and is continuing on such date under the applicable Trade Documents (as such terms are defined therein).

 

Excess Hedged Volumes ” has the meaning given in Section 3.02.

 

Excluded Amount ” means any amount payable by one party to another party pursuant to any Trade Documents on account of indemnity or reimbursement obligations (including additional amounts owing in respect of tax gross up obligations), costs, fees, expenses (including attorneys fees) or default interest.

 

Illegality ” has the meaning specified in the applicable Trade Documents; provided that the term “Illegality” when used herein in reference to any Trade will only be deemed to have occurred with respect to such Trade if either (a) the Counterparty is an “Affected Party” (as defined in the applicable Trade Documents) with respect to such Illegality; or (b) both (i) SandRidge is an “Affected Party” (as defined in the applicable Trade Documents) with

 

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respect to such Illegality and (ii) the Trust would have been an “Affected Party” (as defined in the applicable Trade Documents) with respect to such Illegality if it were a party to such Trade.

 

Illegality Termination Payment ” means any Termination Payment that becomes due and payable as the result of the termination of any Trade prior to the stated termination date thereof based on the occurrence of an Illegality.

 

Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto that is a nationally recognized rating agency.

 

Morgan Stanley ” has the meaning given in the recitals to this Agreement.

 

Morgan Stanley Trade Documents ” means the ISDA Master Agreement dated as of February 22, 2008, between SandRidge and Morgan Stanley, including the Schedule thereto and each Confirmation entered into thereunder, in each case as in effect on the date hereof.

 

Period End Date ” means March 31, June 30, September 30 and December 31 of each calendar year.

 

Person ” means any natural person, corporation, limited liability company, trust, estate, joint venture, association, company, partnership, governmental authority or other entity or organization.

 

Quarterly Payment Date ” means, with respect to any Quarterly Period, the date that is forty-five (45) days after the last day of such Quarterly Period.

 

Quarterly Period ” means each period from but excluding one Period End Date to and including the next Period End Date.

 

Replaced Trade ” has the meaning given in Section 3.01(b).

 

Reset ” and “ Reset Trade ” have the meanings given in Section 3.02.

 

Royalty Interests ” means the royalty interests conveyed to the Trust by the Conveyances.

 

S&P ” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc., and any successor thereto that is a nationally recognized rating agency.

 

SandRidge Gross Up Amount ” means, in relation to any Scheduled Payments or any Illegality Termination Payments required to be made by the Counterparties during any Quarterly Period, an amount equal to the sum of all such Scheduled Payments or Illegality Termination Payments, as the case may be, that were due and payable by the Counterparties but not paid by the Counterparties to SandRidge during such Quarterly Period (a) on account of the exercise of any right of netting or set-off against (i) obligations owed by SandRidge or its affiliates to the Counterparties or their affiliates under agreements or instruments other than the Trade Documents or (ii) any obligation of SandRidge to pay an Excluded Amount pursuant to the Trade Documents; or (b) to the extent that any Counterparty (i) set-off any such Scheduled

 

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Payments or Illegality Termination Payments, as the case may be, against any posted collateral held by SandRidge (or any obligation of SandRidge to transfer that posted collateral) or (ii) withheld payment of any such Scheduled Payments or Illegality Termination Payments, as the case may be, up to the value of any posted collateral held by SandRidge.

 

Scheduled Payment ” means, with respect to any Trade, the net payment required to be made by one party thereto to the other party thereto on a “Payment Date” or a “Settlement Payment Date” pursuant to the related Confirmation, without giving effect to the existence of any “Potential Event of Default”, “Event of Default” or the designation of an “Early Termination Date” (as such terms are defined in the applicable Trade Documents) or any right of setoff, counterclaim or defense, and excluding, for the avoidance of doubt: (a) any obligation to transfer cash collateral or other collateral, (b) any Termination Payment and (c) any Excluded Amount.

 

Termination Payment ” means, with respect to any Trade or group of Trades: (a) the net amount which is due and payable by one party thereto to the other party thereto in respect of the early termination of such Trade or group of Trades, as determined pursuant to the applicable Trade Documents (including, for the avoidance of doubt, any unpaid amounts), but (b) without giving effect to any right of set-off and/or right to apply any margin, collateral, guarantees or other credit support delivered or held in connection with such Trade, and (c) excluding any Scheduled Payments (other than unpaid amounts) and any Excluded Amounts.

 

Trades ” means the collective reference to each transaction evidenced by the Confirmations.

 

Trade Documents ” means the collective reference to the Barclays Trade Documents, Citibank Trade Documents, and Morgan Stanley Trade Documents.

 

Transfer ” and “ Transferred Trade ” have the meanings given in Section 3.01(a).

 

Trust Direct Hedges ” means oil hedge contracts to which the Trust is a counterparty, including, but not limited to, (i) the hedge contracts specified on Schedule 1 to the Trust Agreement, (ii) Transferred Trades and (iii) Trust Replacement Trades, in each case as such hedge contracts may be restructured, amended or otherwise modified from time to time.

 

Trust Gross Up Amount ” means, in relation to any Scheduled Payments or any Illegality Termination Payments required to be made by SandRidge during any Quarterly Period, an amount equal to the sum of all such Scheduled Payments or Illegality Termination Payments, as the case may be, that were due and payable by SandRidge but not paid by SandRidge to the Counterparties during such Quarterly Period to the extent that SandRidge (i) set-off any such Scheduled Payments or Illegality Termination Payments, as the case may be, against any posted collateral held by the Counterparties (or any obligation of the Counterparties to transfer that posted collateral) or (ii) withheld payment of any such Scheduled Payments or Illegality Termination Payments, as the case may be, up to the value of any posted collateral held by the Counterparties.

 

Trust Replacement Trade ” has the meaning given in Section 3.01(b).

 

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Section 1.02 Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise: (a) any reference herein to any law shall be construed as referring to such law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time; (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to the restrictions contained in this Agreement); (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof and (d) any reference herein to Sections or Exhibits shall be construed to refer to Sections of, or Exhibits to, this Agreement.

 

ARTICLE II
PAYMENTS

 

Section 2.01 Payments . On the Quarterly Payment Date for each Quarterly Period, commencing with the Quarterly Period ending June 30, 2012:

 

(a) SandRidge will pay to the Trust an amount equal to the sum of the following (without duplication): (i) all Scheduled Payments received by SandRidge from the Counterparties under all Trades during such Quarterly Period plus (ii) the SandRidge Gross Up Amount, if any, related to Scheduled Payments required to be made by the Counterparties to SandRidge under all Trades during such Quarterly Period plus (iii) the amount of any Scheduled Payment required to be made by any Counterparty to SandRidge under any Trade during such Quarterly Period that was not received by SandRidge from such Counterparty, but only if SandRidge was a Defaulting Party on the date such Scheduled Payment was required to be made by such Counterparty;

 

(b) the Trust will pay to SandRidge an amount equal to the sum of the following: (i) all Scheduled Payments made by SandRidge to the Counterparties under all Trades during such Quarterly Period plus (ii) the Trust Gross Up Amount, if any, related to Scheduled Payments required to be made by SandRidge to the Counterparties under all Trades during such Quarterly Period, excluding, in the case of both clauses (i) and (ii) of this subsection (b), any Scheduled Payment made by SandRidge to any Counterparty under any Trade with respect to which SandRidge (x) was a Defaulting Party on the date such Scheduled Payment was required to be made by SandRidge and (y) continues to be a Defaulting Party on the Quarterly Payment Date;

 

(c) SandRidge will pay to the Trust an amount equal to the sum of the following: (i) all Illegality Termination Payments received by SandRidge from the Counterparties under all Trades during such Quarterly Period plus (ii) the SandRidge Gross Up Amount, if any, related to Illegality Termination Payments required to be made by the Counterparties to SandRidge under all Trades during such Quarterly Period;

 

(d) the Trust will pay to SandRidge an amount equal to the sum of the following: (i) all Illegality Termination Payments made by SandRidge to the Counterparties under all Trades during such Quarterly Period plus (ii) the Trust Gross Up Amount, if any, related to

 

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Illegality Termination Payments required to be made by SandRidge to the Counterparties under all Trades during such Quarterly Period;

 

(e) if any Trade has been terminated prior to its stated termination date other than as the result of the occurrence of an Illegality, then notwithstanding the termination of such Trade, SandRidge will pay to the Trust an amount equal to the sum of each Scheduled Payment that would have become due and payable by the relevant Counterparty to SandRidge during such Quarterly Period if such Trade had not been so terminated; and

 

(f) if any Trade has been terminated prior to its stated termination date other than as the result of the occurrence of an Illegality, then notwithstanding the termination of such Trade, the Trust will pay to SandRidge an amount equal to the sum of each Scheduled Payment that would have become due and payable by SandRidge to the relevant Counterparty during such Quarterly Period if such Trade had not been so terminated.

 

Section 2.02 Netting of Payments Under this Agreement .

 

(a) If, on any Quarterly Payment Date, identical amounts would otherwise be payable by each party to the other pursuant to Section 2.01, then, on such date, each party’s obligation to make payment of any such amount will be automatically satisfied and discharged.

 

(b) If, on any Quarterly Payment Date, the aggregate amount that would otherwise have been payable by one party pursuant to Section 2.01 exceeds the aggregate amount that would otherwise have been payable by the other party, then the party that owes the larger aggregate amount must pay to the other party the excess of the larger aggregate amount over the smaller aggregate amount.

 

Section 2.03 General Conditions . All payments made hereunder shall be made in immediately available funds to the account or accounts from time to time specified by the relevant payee. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day.  SandRidge shall determine the amounts due to (or from) the Trust under this Agreement, and all such determinations shall (in the absence of manifest error) be final and binding on each party.

 

Section 2.04 Certain Notices . SandRidge shall promptly notify the Trust of the designation of an “ Early Termination Date ” pursuant to any Trade Document and the termination of any Trade, and shall provide the Trust with any documentation or other information related thereto as the Trust may reasonably request from time to time.

 

ARTICLE III
TRANSFER AND REPLACEMENT OF TRADES; RESETTING OF TRADES

 

Section 3.01 Transferred Trades; Replaced Trades .

 

(a) Subject to Section 3.01(b) below, SandRidge may, at any time and in its sole discretion, assign, novate or otherwise transfer (each, a “ Transfer ”) any Trade, or any portion of any Trade, to the Trust.  Any such Transfer shall constitute the complete assignment, novation or other transfer of all of SandRidge’s obligations and agreements, and all of SandRidge’s rights,

 

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remedies, and powers, under such Trade (or any portion thereof).  Any such Transfer of a Trade (or any portion thereof) shall be subject to the conditions set forth in Section 3.01(c) below.  Trades (or portions thereof) that are Transferred to the Trust in accordance with this Section 3.01(a) are referred to herein as “ Transferred Trades .”  Each of the Trust and SandRidge shall pay its respective fees and expenses relating to any Transfer of a Trade (or portion thereof), including attorneys’ fees and expenses.

 

(b) In addition, SandRidge may, at any time and in its sole discretion, request the Trust to enter into new commodity derivatives transactions (each, a “ Trust Replacement Trade ”) to replace all or any portion of the volumes hedged under Trades that have not been assigned, novated or otherwise transferred to the Trust pursuant to Section 3.01(a) above.  The execution of any Trust Replacement Trade shall be subject to the conditions set forth in Section 3.01(c) below.  Trades (or portions thereof) that are replaced with Trust Replacement Trades in accordance with this Section 3.01(b) are referred to herein as “ Replaced Trades .”  Replaced Trades may not be assigned, novated or otherwise transferred to the Trust pursuant to Section 3.01(a) above.

 

(c) Any Transfer of a Trade (or any portion thereof), and any entry by the Trust into a Trust Replacement Trade, shall be subject to the conditions that, upon the effectiveness of such proposed Transfer or the execution of such proposed Trust Replacement Trade, as the case may be, (i) the counterparty to such Transferred Trade or Trust Replacement Trade shall be an Approved Trust Counterparty, (ii) the hedging effects of such Transferred Trade or Trust Replacement Trade shall, in SandRidge’s sole determination, be economically equivalent to the hedging effects of the Transferred Trade or the Replaced Trade, as the case may be, immediately prior to the proposed Transfer or replacement, and (iii) immediately prior to the Transfer of any Trade pursuant to Section 3.01(a) or immediately prior to the entering into a Trust Replacement Trade pursuant to Section 3.01(b), as the case may be, no default, event of default, termination event, early termination event, potential event of default or potential termination event shall have occurred and be continuing and no early termination date shall have been specified or shall have occurred, with respect to such Transferred Trade or Trade replaced with such Trust Replacement Trade, as the case may be.  For the avoidance of doubt, in determining whether such Transferred Trades or Trust Replacement Trades have economically equivalent hedging effects as the existing Trades, the presence or absence of collateral supporting the Trust’s obligations under Transferred Trades or Trust Replacement Trades shall not be considered.  The Trust hereby consents to any Transfer of a Trade, and any entry by the Trust into a Trust Replacement Trade, meeting the foregoing conditions, and the Trust acknowledges that no further review or approval by the Trust shall be required to effect any such Transfer or to execute any such Trust Replacement Trade.  The Trust agrees that it will execute, or cause to be executed, such confirmations, acknowledgements, notices, and other documents requested by SandRidge, or that may otherwise be necessary or desirable, to effect any Transfer of a Trade or enter into any Trust Replacement Trade.  In addition, the written instrument or instruments governing any Transfer and/or any Transferred Trade shall include an acknowledgement by the counterparty to the Transferred Trade that SandRidge is not a party to, nor does SandRidge have any obligations under, the Transferred Trade effective as of and following the time of such Transfer.

 

(d) In connection with any Transferred Trade or Trust Replacement Trade in accordance with this Section 3.01, SandRidge shall provide the Trust with written notice

 

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identifying the Trade or portion of a Trade being Transferred or replaced with a Trust Replacement Trade.  In addition, at least five (5) Business Days prior to the anticipated date of any Transfer or any execution of a Trust Replacement Trade, SandRidge shall provide the Trust with substantially complete drafts of all relevant documentation relating to such Transferred Trade or Trust Replacement Trade, including the ISDA master agreement, related schedules, and transaction confirmations.  Upon the effective date of any Transfer or execution of any Trust Replacement Trade, all of the obligations of SandRidge and the Trust under this Agreement with respect to the volumes covered by the Transferred Trade or Replaced Trade will cease, and SandRidge shall deliver to the Trust a revised Exhibit A, reflecting the removal from such Exhibit A of the Confirmations (or portions thereof) covered by the Transferred Trade or the Replaced Trade, as applicable.

 

Section 3.02 Resetting of Trades .  If at any time SandRidge reasonably determines that the remaining volumes of oil hedged under the Trades and Trust Direct Hedges exceed projected production of oil attributable to the Royalty Interests for the period or periods covered by such Trades and Trust Direct Hedges (such difference, the “ Excess Hedged Volumes ”), SandRidge may, in its sole discretion, reset, terminate or replace, or otherwise modify, the terms of all or any portion of the Trades in order to eliminate or reduce such Excess Hedged Volumes (any such action, a “ Reset ”).  SandRidge shall use commercially reasonable efforts to effect any such Reset in a manner that is cash neutral (or advantageous) to the Trust, but shall have no affirmative duty to reset or otherwise modify any Trades.  In connection with any Reset in accordance with this Section 3.02, SandRidge shall provide the Trust with (i) written notice identifying the Trades or portions thereof being reset and describing the material terms of the Reset, including a summary of the volumes, periods, and prices affected by the Reset, and (ii) copies of any revised or new transaction confirmations evidencing new transactions entered into in conjunction with such Reset (“ Reset Trades ”).  Upon the effective date of any Reset, SandRidge shall deliver to the Trust a revised Exhibit A, reflecting the replacement of the Confirmations (or portions thereof) affected by the Reset with the transaction confirmations evidencing the Reset Trades.  The Trust agrees that it will execute, or cause to be executed, such acknowledgements, notices, and other documents requested by SandRidge, or that may otherwise be necessary or desirable, to give effect to the foregoing.  For the avoidance of doubt, SandRidge shall have no affirmative duty to undertake any Reset and shall incur no liability in connection with affirmatively undertaking (or failing to undertake) a Reset (other than a failure to use its commercially reasonable efforts in effecting a Reset as expressly set forth in this Section 3.02 or for undertaking a Reset in bad faith).

 

ARTICLE IV
MISCELLANEOUS

 

Section 4.01 Amendments . Any amendment, modification or waiver in respect of this Agreement will only be effective if in writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties hereto.  Except as set forth in Article III, SandRidge will not make any material amendment to the terms of the Trades without the Trust’s consent.

 

Section 4.02 No Waiver . No failure on the part of any party to exercise and no delay in exercising, and no course of dealing with respect to, any right, power or privilege, or

 

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any abandonment or discontinuance of steps to enforce such right, power or privilege, under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

 

Section 4.03 Remedies Cumulative; Non-Exclusive; Etc . All rights, powers, privileges, remedies, and recourses granted in this Agreement or otherwise available at law or equity: (a) shall be cumulative and concurrent; (b) may be pursued separately, successively, or concurrently; (c) may be exercised as often as the occasion therefor shall arise, it being agreed that the exercise or failure to exercise or the beginning, or the abandonment, or the delay of any of same, shall in no event be construed as a waiver or release thereof or of any other right, remedy, or recourse and (d) are intended to be, and shall be, nonexclusive.

 

Section 4.04 Successors and Assigns . The provisions of this Agreement shall be binding upon each party and its successors and permitted assigns and shall inure, together with all the rights and remedies hereunder, to the benefit of such party and its respective successors and assigns; provided that no party may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the other party, and any such purported assignment, transfer or delegation shall be null and void.

 

Section 4.05 Severability . Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof or thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

 

Section 4.06 Survival; Revival; Restatement . To the extent that any payments made hereunder are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor in possession, receiver or other Person or entity under any bankruptcy law, common law or equitable cause, then to such extent, the obligations so satisfied shall be revived and continue as if such payment had not been received and the rights, powers and remedies under this Agreement shall continue in full force and effect. In such event, this Agreement shall be automatically reinstated and each party shall take such action as may be reasonably requested by any other party to effect such reinstatement.

 

Section 4.07 Acknowledgments .

 

(a) Each party hereby acknowledges that (i) no party has any fiduciary relationship with or duty to any other party arising out of or in connection with this Agreement; (ii) no joint venture is created hereby or otherwise exists by virtue of the transactions contemplated hereby among the parties hereto; (iii) no other party is acting as a fiduciary or financial or investment advisor for it; (iv) it is not relying upon any representations (whether written or oral) of any other party; (v) no other party has given to it (directly or indirectly through any other Person) any advice, counsel, assurance, guarantee, or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence, or benefit (either legal, regulatory, tax, financial, accounting, or otherwise) of this Agreement; (vi) it has made its own investment, hedging, and trading decisions based

 

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upon its own judgment and upon any advice from such advisors as it has deemed necessary, and not upon any view expressed by the other party; (vii) all trading decisions have been the result of arm’s length negotiations between the parties; (viii) it has a duty to read the Trade Documents and agrees that it is charged with notice and knowledge of the terms of the Trade Documents; that it has in fact read the Trade Documents and is fully informed and has full notice and knowledge of the terms, conditions and effects thereof and (ix) it is entering into this Agreement with a full understanding of all of the risks hereof (economic and otherwise) and it is capable of assuming and willing to assume (financially and otherwise) those risks.

 

(b) Without limiting the applicability of any other provision of the U.S. Bankruptcy Code as amended (the “ Bankruptcy Code ”) (including Sections 362, 546, 556, and 560 thereof and the applicable definitions in Section 101 thereof), the parties intend that the transactions contemplated by this Agreement will constitute “forward contracts” or “swap agreements” as defined in Section 101 of the Bankruptcy Code, and that the parties are entitled to the rights under, and protections afforded by, Sections 362, 546, 556, and 560 of the Bankruptcy Code.

 

(c) Each party represents to the other party that it is an “eligible contract participant” within the meaning of the Commodity Exchange Act, Section 1a(12).

 

Section 4.08 No Agency Relationship, No Assignment of Trades. Each of the parties hereto acknowledges and agrees that no agency relationship is created hereby or otherwise exists by virtue of the transactions contemplated hereby among the parties hereto, it being expressly understood and agreed that SandRidge has entered into the Trades and the Trade Documents related thereto as principal on its own behalf, and SandRidge is not acting as an agent of the Trust with respect to any Trade nor is SandRidge acting in any other capacity on behalf of the Trust, fiduciary or otherwise. Nothing contained herein shall be interpreted to create or operate as an assignment, transfer or novation of any Trade, any Trade Document or any interest or obligation therein or thereunder.

 

Section 4.09 Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

 

Section 4.10 Counterparts . This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. In making proof of this Agreement, it shall not be necessary to produce or account for any counterpart other than one signed by the party against which enforcement is sought. Delivery of an executed counterpart of a signature page of this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.

 

Section 4.11 ENTIRE AGREEMENT . THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AS TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

 

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Section 4.12 No Third Party Beneficiaries . This Agreement is solely for the benefit of the parties hereto and no other Person (including any Counterparty or Trust unitholder) shall have any rights, claims, remedies or privileges hereunder against any party hereto for any reason whatsoever. There are no third party beneficiaries.

 

Section 4.13 Limitation of Liability . It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered for the Trust by The Bank of New York Mellon Trust Company, N.A. (the “ Bank ”), as Trustee of the Trust, not individually or personally, but solely as Trustee in the exercise of the powers and authority conferred and vested in it as Trustee of the Trust and (b) under no circumstances shall the Bank or Trustee be liable for any liability or obligation of the Trust hereunder.  It is further expressly understood and agreed by the parties hereto that neither the Bank nor the Trustee shall have any authority over, or responsibility or liability for, the transactions contemplated by this Agreement, all of which are hereby agreed to be the sole responsibility of SandRidge and the Trust.

 

Section 4.14 Tax Hedge Designation . Unless otherwise specifically identified, the Trust hereby identifies and designates this Agreement and the economic benefits and costs associated with the underlying commodity derivatives transactions as a hedging transaction for tax purposes under Section 1221(a)(7) of the Internal Revenue Code of 1986, as amended and Section 1.1221-2 of the Treasury regulations promulgated under the Internal Revenue Code.  The transactions being hedged are as follows (in each case by SandRidge attributable to the Trust):

 

the sale of:

 

688,875 Bbl of oil production during the period April 1, 2012 to December 31, 2012 (equivalent to approximately 2,505 Bbl per day of oil production during such period);

 

1,058,500 Bbl of oil production during 2013 (equivalent to approximately 2,900 Bbl per day of oil production during such period); and

 

900,000 Bbl of oil production during 2014 (equivalent to approximately 2,465.75 Bbl per day of oil production during such period).

 

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IN WITNESS WHEREOF, intending to be legally bound, each of the parties hereto has caused this Agreement to be duly executed as of the date first above written.

 

 

SandRidge Energy, Inc.

 

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

 

[ Signature Page to Derivatives Agreement ]

 



 

 

 SandRidge Mississippian Trust II

 

 

 

 

By:

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

Name:

Michael J. Ulrich

 

 

Title:

Vice President

 

 

[ Signature Page to Derivatives Agreement ]

 



 

EXHIBIT A

 

CONFIRMATIONS

 


Exhibit 10.14

 

Execution Copy

 

WHEN RECORDED

PLEASE RETURN TO :

SandRidge Energy, Inc.

Attn:  Phillip T. Warman

123 Robert S. Kerr Avenue

Oklahoma City, OK  73102-6406

 

Space above for County Recorder’s Use

 

MORTGAGE (Kansas)

 

FROM

 

SANDRIDGE EXPLORATION AND PRODUCTION, LLC,

as MORTGAGOR

TO

 

SANDRIDGE MISSISSIPPIAN TRUST II,

as MORTGAGEE

 

Dated as of April 23, 2012

 

THIS INSTRUMENT IS TO BE FILED AND RECORDED AS A MORTGAGE IN THE REAL ESTATE RECORDS OF EACH COUNTY IN WHICH THE LANDS DESCRIBED IN EXHIBIT A, OR ANY PORTION THEREOF, ARE LOCATED.

 



 

MORTGAGE (Kansas)

 

THIS MORTGAGE (Kansas) (this “ Mortgage ”) is entered into as of April 23, 2012, by SandRidge Exploration and Production, LLC, a Delaware limited liability company, as mortgagor (“ Mortgagor ”), whose address for notice is 123 Robert S. Kerr Avenue, Oklahoma City, Oklahoma 73102-6406, and SandRidge Mississippian Trust II, a statutory trust formed under the laws of the State of Delaware, as mortgagee (“ Mortgagee ”), whose address for notice is c/o The Bank of New York Mellon Trust Company, N.A.,  919 Congress Avenue, Suite 500, Austin Texas 78701.

 

R E C I T A L S :

 

A.            By means of (1) a Term Overriding Royalty Interest Conveyance (Kansas) (Development),  effective as of January 1, 2012, from Mortgagor to Mistmada Oil Company, Inc., an Oklahoma corporation (“ SandRidge Sub ”), a true and correct copy of which is annexed hereto as Annex A-1 and made a part hereof (the “ Term Conveyance (Development) ”), (2) an Assignment of Overriding Royalty Interest (Kansas), effective as of January 1, 2012, from SandRidge Sub to Mortgagee, a true and correct copy of which is annexed hereto as Annex A-2 and made a part hereof (the “ Assignment ”), and (3) a Long-Term Overriding Royalty Interest Conveyance (Kansas) (Development), effective as of January 1, 2012, from Mortgagor to Mortgagee, a true and correct copy of which is annexed hereto as Annex A-3 and made a part hereof (the “ Long-Term Conveyance (Development) ” and, together with the Term Conveyance (Development), collectively the “ Conveyances ”), the “ Royalty Interest ” (as defined in the Conveyances) has been conveyed and assigned to Mortgagee, as applicable, from Mortgagor and SandRidge Sub.  Capitalized terms used herein and not otherwise defined shall have the meanings given such terms in the Conveyances.

 

B.            SandRidge Energy, Inc. (“ SandRidge Parent ”), the sole member of Mortgagor, has undertaken certain obligations with respect to the properties described in the Conveyances under that certain Development Agreement, dated as of April 23, 2012, between SandRidge Parent, Mortgagor and Mortgagee (the “ Development Agreement ”), and Mortgagor is executing this Mortgage to secure the obligations of Mortgagor and SandRidge Parent under the Development Agreement.

 

C.            Mortgagor is concurrently executing a mortgage granting Mortgagee a mortgage lien in certain of Mortgagor’s properties located in Oklahoma to further secure the obligations of Mortgagor and SandRidge Parent under the Development Agreement.

 

D.            Mortgagee has conditioned its execution and delivery of the Long-Term Conveyance (Development), the Assignment and the Development Agreement upon the execution and delivery by Mortgagor of this Mortgage, and Mortgagor has agreed to enter into this Mortgage.

 

NOW, THEREFORE, in order to comply with the terms and conditions of the Development Agreement and for other good and valuable consideration, the receipt and

 



 

sufficiency of which are hereby acknowledged, Mortgagor hereby agrees with Mortgagee as follows:

 

ARTICLE I.
Granting Clauses; Secured Obligations

 

Section 1.1            Grant and Mortgage .  Mortgagor, in order to secure the payment and performance of the secured obligations hereinafter referred to and the performance of the obligations, covenants, agreements, warranties and undertakings of Mortgagor hereinafter described, does hereby GRANT, BARGAIN, SELL, ALIEN, CONVEY, TRANSFER, MORTGAGE, ASSIGN, WARRANT, PLEDGE, HYPOTHECATE and CONFIRM to Mortgagee, its successors and assigns, the following described rights, titles, interests, properties and estates of Mortgagor (sometimes hereinafter collectively referred to as the “ Mortgaged Properties ”): all of Mortgagor’s right, title, interest and estate in, to and under the oil, gas or other mineral leases described in Exhibit A attached hereto and made a part hereof (the “ Leases ”); insofar as and only insofar as such Leases cover and pertain to the Target Formation, including such rights in and under the Leases as may be necessary to drill to, complete in and produce and market crude oil, natural gas and natural gas liquids (collectively, “ Hydrocarbons ”) from the Target Formation; but specifically excluding, however, all of Mortgagor’s rights, title, and interests in and to (i) any oil, gas, water supply, saltwater disposal or other well of any nature whatsoever now or hereafter located on the Subject Lands (including, but not limited to, those which are producing from, injecting into, or otherwise being operated with regard to the Target Formation) at the time of or prior to a foreclosure sale of the Mortgaged Properties, including, without limitation any Development Wells (each a “ Well ” and collectively, the “ Wells ”) together with such corresponding rights (and only such rights) in and to the Leases pertaining to each such Well as are reasonably necessary for Mortgagor to own and operate such Well and to produce, store, treat, condition, process, compress, dehydrate, gather, transport or market Hydrocarbons produced from such Well, and dispose of saltwater or other substances produced therefrom (collectively, the “ Wellbore Leasehold Rights ”); and (ii) all personal property, fixtures and equipment in or on or acquired or used in connection with the ownership or operation of the Wells or the production, storage, treating, conditioning, processing, compressing, dehydrating, gathering, transporting or marketing of Hydrocarbons produced from the Wells, or the disposal of saltwater or other substances, produced therefrom.

 

TO HAVE AND TO HOLD the Mortgaged Properties unto Mortgagee, and Mortgagee’s successor and assigns, upon the terms, provisions and conditions herein set forth.

 

Section 1.2            Mortgage of the Mortgaged Properties .  This Mortgage is an absolute and unconditional mortgage to Mortgagee of the Mortgaged Properties, whether now in existence or hereafter arising, for the purpose of vesting in Mortgagee, subject to the Permitted Encumbrances (as defined in the Conveyances attached hereto as Annex A-1 and Annex A-3), a perfected mortgage lien in the Mortgaged Properties.

 

Section 1.3            Development Agreement and Other Obligations .  This Mortgage is made to secure and enforce the payment and performance of the following, obligations, indebtedness and liabilities:

 

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(a)           The full performance of all obligations, covenants, agreements and undertakings of and by SandRidge Parent and Mortgagor from time to time owing to Mortgagee under Article II of the Development Agreement;

 

(b)           Any sums advanced or expenses or costs incurred by the Mortgagee (or any receiver appointed hereunder) which are made or incurred pursuant to, or permitted by, the terms hereof, plus interest thereon at a rate of interest equal to the lesser of (i) five percent (5%) per annum or (ii) the maximum rate permitted under applicable law (the “ Applicable Rate ”) or otherwise agreed upon, from the date of the advances or the incurring of such expenses or costs until reimbursed; and

 

(c)           Without limiting the generality of the foregoing, all post-petition interest, expenses, and other duties, damages and liabilities with respect to indebtedness or other obligations described above in this Section 1.3, which would be owed but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization, or similar proceeding.

 

Section 1.4            Secured Obligations .  The obligations referred to in Section 1.3, and all renewals, extensions and modifications thereof, and all substitutions therefor, in whole or in part, are herein sometimes referred to as the “ secured obligations ” or the “ obligations secured hereby ”.  It is contemplated and acknowledged that the secured obligations may include obligations hereafter arising and that this Mortgage shall have effect, as of the date hereof, to secure all secured obligations, regardless of whether any amounts exist on the date hereof or arise on a later date or, whether having arisen or been advanced, are later repaid in part or in whole and further obligations arise or advances are made at a later date.

 

Section 1.5            Limitation on Obligations .  The Mortgagor and Mortgagee hereby agree and acknowledge that, as of the date hereof, the maximum amount recoverable under this Mortgage for any failure by SandRidge Parent or Mortgagor to perform the obligations described in Section 1.3(a) above is $29,601,000; provided , that such amount will be adjusted downward, from time to time, pursuant to Section 2.05(d) of the Development Agreement (such amount, as reduced  from time to time, the “ Maximum Liability ”).  Mortgagor and Mortgagee further agree and acknowledge that pursuant to Section 1.1 above, the mortgage lien created by this Mortgage does not cover or extend to any Wells or Wellbore Leasehold Rights.  Accordingly, the mortgage lien created by this Mortgage shall automatically terminate as to each Development Well drilled after the date hereof as the same is completed, along with each such Development Well’s corresponding Wellbore Leasehold Rights.  Upon Mortgagor’s request and at Mortgagor’s expense, Mortgagee shall promptly execute and deliver a partial release, which will evidence the release in full of the mortgage lien created by this Mortgage with respect to any Development Well and corresponding Wellbore Leasehold Rights.

 

Section 1.6            Maturity Date .  The obligations, covenants, agreements and undertakings described in Section 1.3(a) of this Mortgage are due to be performed on and before December 31, 2016 (the “ Maturity Date ”).

 

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ARTICLE II.
Covenants

 

Section 2.1            Title Warranty .  Mortgagor warrants, represents, covenants and agrees that the Mortgaged Properties are free and clear of all liens, security interests and other Encumbrances, subject only to the Permitted Encumbrances and that, to Mortgagor’s knowledge, Mortgagor is lawfully seized of the estates and interests granted to Mortgagor under the Leases.  This Mortgage is subject to (but in no event shall this Mortgage be an assumption of) the Permitted Encumbrances, in each case to the extent and only for so long as the same are valid and subsisting and affect title to the Mortgaged Properties; provided , that the foregoing is not intended to, and shall not, subordinate the lien created hereby.

 

Section 2.2            Mortgagor hereby covenants with the Mortgagee as follows:

 

(a)           Further Assurance .  Mortgagor will, on request of Mortgagee, (i) promptly correct any defect, error or omission which may be discovered in the contents of this Mortgage, or in the execution or acknowledgment of this Mortgage; (ii) execute, acknowledge, deliver and record or file such further instruments and do such further acts as may be necessary, desirable or proper to carry out more effectively the purposes of this Mortgage; and (iii) execute, acknowledge, deliver, and file or record any document or instrument  reasonably requested by Mortgagee to protect the mortgage lien hereunder against the rights or interests of third persons. Mortgagor shall pay all reasonable costs connected with any of the foregoing.

 

(b)           Name and Place of Business .  Mortgagor will not cause or permit any change to be made in its name, identity, limited liability company structure, federal employer identification number or state of organization (whether by merger or otherwise) unless Mortgagor shall have notified Mortgagee of such change at least ten (10) days prior to the effective date of such change, and shall have first taken all action required by Mortgagee for the purpose of further perfecting or protecting the mortgage lien in the Mortgaged Properties created hereby. Mortgagor’s exact name is the name set forth in this Mortgage. Mortgagor is a limited liability company organized under the laws of the State of Delaware.

 

Section 2.3            Transfer Restriction .  Except as permitted in Sections 11.02 and 11.03 of the applicable Conveyance, Mortgagor will not Transfer any of the Mortgaged Properties without the prior written consent of the Mortgagee.  If any Mortgaged Property is permitted to be Transferred pursuant to Sections 11.02 and 11.03 of the applicable Conveyance, the Mortgagee will promptly execute, acknowledge and deliver a release of this Mortgage to the extent applicable to such Mortgaged Properties proposed to be Transferred pursuant to Sections 11.02 and 11.03 of the applicable Conveyance.

 

ARTICLE III.
Remedies Upon Default

 

Section 3.1            Default .  The term “ default ” as used in this Mortgage means:

 

(a)           the failure by SandRidge Parent or the Mortgagor to perform any obligation required to be performed by it under Section 2.01 of the Development Agreement on or before the Maturity Date;

 

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(b)           failure by SandRidge Parent, within thirty (30) days after notice thereof from the Mortgagee, to cure a breach in the due performance or observance of any other covenant or agreement contained in Article II of the Development Agreement other than under Section 2.01 of the Development Agreement;

 

(c)           failure by the Mortgagor, within thirty (30) days after notice thereof from the Mortgagee, to cure a breach in the due performance or observance of any covenant or agreement contained in this Mortgage; or

 

(d)           this Mortgage shall fail to constitute a mortgage lien on any part of the Mortgaged Properties (subject only to Permitted Encumbrances), and such failure is not cured within thirty (30) days after written notice to Mortgagor or Mortgagor otherwise obtains knowledge thereof.

 

Section 3.2            Remedies .

 

(a)           After (i) the occurrence of a default under Section 3.1(a) of this Mortgage or (ii) the occurrence of any other default by Mortgagor under this Mortgage and during the continuance of such default, the lien evidenced hereby shall be subject to foreclosure, as Mortgagee may elect, in any manner provided for herein or provided for or required by law.  The existence of any default under Section 3.1(a) can be determined only at the Maturity Date.  Accordingly, notwithstanding any provision hereof or of law to the contrary, the secured obligations set forth in Section 2.01 of the Development Agreement are not subject to acceleration.

 

(b)           After (i) the occurrence of a default under Section 3.1(a) of this Mortgage or (ii) the occurrence of any other default by Mortgagor under this Mortgage and during the continuance of such default, Mortgagee is authorized prior or subsequent to the institution of any foreclosure proceedings to enter upon and to cause its agents to enter upon, the Mortgaged Properties, or any part thereof, and to exercise without interference from Mortgagor any and all rights which Mortgagor has with respect to the management, possession and operation of the Mortgaged Properties.  All costs, expenses and liabilities of every character incurred by Mortgagee in managing such properties shall constitute demand obligations owing by Mortgagor and constitute a portion of the secured obligations.

 

(c)           After (i) the occurrence of a default under Section 3.1(a) of this Mortgage or (ii) the occurrence of any other default by Mortgagor under this Mortgage and during the continuance of such default, Mortgagee shall have the right and power to sell, to the extent permitted by law, at one or more sales, as an entirety or in parcels, as Mortgagee may elect, the Mortgaged Properties, at such place or places and otherwise in such manner and upon such notice as may be required by law, or, in the absence of any such requirement, as Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers.  Mortgagee may postpone the sale of all or any portion of the Mortgaged Properties by public announcement at the time and place of such sale and from time to time thereafter may further postpone such sale by public announcement made at the time of sale fixed by the preceding postponement.  The right of sale hereunder shall not be exhausted by one or any sale, and Mortgagee may make other and successive sales until all of the Mortgaged Properties be legally sold.

 

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(d)           After the occurrence of a default under Section 3.1(a) of this Mortgage, Mortgagee, in lieu of or in addition to exercising the power of sale hereinabove and hereafter given, may proceed by a suit or suits in equity or at law, for one or more of the following: (i) a foreclosure hereunder or in aid of the execution of any power herein granted, (ii) the appointment of a receiver pending any foreclosure hereunder or the sale of the Mortgaged Properties, or (iii) the collection of damages from Mortgagor or SandRidge Parent for failure to perform Mortgagor’s or SandRidge Parent’s obligations under Section 2.01 of the Development Agreement on or before the Maturity Date; provided , that in no event shall Mortgagor or SandRidge Parent be personally liable to Mortgagee for failure to perform Mortgagor’s or SandRidge Parent’s obligations under Section 2.01 of the Development Agreement in excess of the Maximum Liability at the time of determination of such damages.  After the occurrence of any default by Mortgagor under this Mortgage other than under Section 3.1(a) of this Mortgage and during the continuance of such default, Mortgagee, in lieu of or in addition to exercising the power of sale hereinabove and hereafter given, may proceed by a suit or suits in equity or at law, for one or more of the following: (i) a foreclosure hereunder or in aid of the execution of any power herein granted, (ii) the appointment of a receiver pending any foreclosure hereunder or the sale of the Mortgaged Properties, or (iii) the enforcement of any other appropriate legal or equitable remedy.  In addition to all other remedies herein provided for, Mortgagor agrees that after a default has occurred, Mortgagee shall, as a matter of right, be entitled to the appointment of a receiver or receivers to be designated by Mortgagee for all or any part of the Mortgaged Properties whether such receivership be incident to a proposed sale of such properties (or any of them) or otherwise, and Mortgagor does hereby consent to the appointment of such receiver or receivers, and to the maximum extent permitted by law, waive any and all rights to notice and hearing regarding such appointment or appointments.

 

(e)           Mortgagee shall have the right to become the purchaser at any sale held by Mortgagee or by any court, receiver or public officer, and shall have the right to credit upon the amount of the bid made therefor the amount payable out of the net proceeds of such sale to it.

 

(f)            All costs and expenses (including attorneys’ fees) incurred by Mortgagee in protecting and enforcing the rights of Mortgagee hereunder, shall constitute a demand obligation owing by Mortgagor to Mortgagee, all of which shall constitute a portion of the secured obligations.

 

(g)           Any sale by Mortgagee of the Mortgaged Properties may be made in any county in which any part of the Mortgaged Properties to be sold at such sale may be situated.  Mortgagee may, from time to time, postpone the sale by public announcement thereof at the time and place noticed therefor.  If the Mortgaged Properties consists of several parcels or interests, Mortgagee may designate the order in which the same shall be offered for sale or sold.  Mortgagor waives all rights to direct the order in which any of the Mortgaged Properties will be sold in the event of any sale under this Mortgage, and also any right to have any of the Mortgaged Properties marshaled upon any sale.

 

(h)           Notwithstanding any other provisions of this Mortgage, any lease of Minerals covered by this Mortgage which are subject to the Mineral Leasing Act of 1920 as amended, and the regulations promulgated thereunder, shall not be sold or otherwise disposed of to any party other than the citizens of the United States, or to associations of such citizens or to any

 

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corporation organized under the laws of the United States, or any state or territory thereof that are qualified to own or control interests in such leases under the provisions of such Act and regulations, or to Persons who may acquire ownership or interest in such leases under the provisions of 30 U.S.C. §184(g) if applicable, as such Act or regulations are now or may be from time to time in effect.

 

(i)            NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, MORTGAGEE WAIVES ANY AND ALL CLAIMS OR RIGHTS OF ACTION TO COMPEL SPECIFIC PERFORMANCE OF MORTGAGOR’S OBLIGATIONS UNDER THIS MORTGAGE OR THE DEVELOPMENT AGREEMENT.   NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY NO PARTY HERETO SHALL BE LIABLE HEREUNDER FOR EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OTHER LAW OR OTHERWISE; PROVIDED THAT SUCH WAIVER OF CONSEQUENTIAL DAMAGES SHALL NOT APPLY TO ANY LIABILITY OF MORTGAGOR FOR BREACH OF ITS OBLIGATIONS UNDER SECTION 2.01 OF THE DEVELOPMENT AGREEMENT, PROVIDED THAT, IN NO EVENT SHALL MORTGAGOR’S OR SANDRIDGE PARENT’S LIABILITY FOR BREACH OF MORTGAGOR’S OR SANDRIDGE PARENT’S OBLIGATIONS UNDER SECTION 2.01 OF THE DEVELOPMENT AGREEMENT EXCEED THE MAXIMUM LIABILITY.

 

Section 3.3            Proceeds of Foreclosure .  The proceeds of any sale held in foreclosure of the mortgage lien evidenced hereby shall be applied as follows, except as otherwise required by applicable law:

 

FIRST , to the payment of all necessary costs and expenses incident to such foreclosure sale, including but not limited to reasonable attorney’s fees, trustees’ or receivers’ fees, accountants’ fees, all court costs and charges of every character in the event foreclosed by suit or any judicial proceeding, if any;

 

SECOND , to the payment of the secured obligations up to the amount of the Maximum Liability;

 

THIRD , to the extent funds are available therefor out of the sale proceeds or any rents and, to the extent known by Mortgagee, to the payment of any debt or obligation secured by a subordinate mortgage on or security interest in the Mortgaged Properties; and

 

FOURTH , the remainder, if any there shall be, shall be paid to Mortgagor, or to Mortgagor’s successors or assigns, or such other Persons as may be entitled thereto by law.

 

Section 3.4            Remedies Cumulative .  All remedies herein provided for are cumulative of each other and of all other remedies existing at law or in equity and are cumulative of any and all other remedies provided for in the Development Agreement, and, in addition to the remedies herein provided, there shall continue to be available all such other remedies as may now or hereafter exist at law or in equity for the collection of the secured obligations and the enforcement of the covenants herein and the foreclosure of the mortgage lien evidenced hereby,

 

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and the resort to any remedy provided for hereunder or under the Development Agreement or provided for by applicable law shall not prevent the concurrent or subsequent employment of any other appropriate remedy or remedies.

 

Section 3.5            Discretion as to Security .  Mortgagee may resort to any security given by this Mortgage or to any guaranty of the obligations secured hereby, in whole or in part, and in such portions and in such order as may seem best to Mortgagee in its sole and uncontrolled discretion, and any such action shall not in any way be considered as a waiver of any of the rights, benefits, liens or security interests evidenced by this Mortgage.

 

Section 3.6            Mortgagor’s Waiver of Certain Rights .  To the full extent Mortgagor may do so, Mortgagor agrees that Mortgagor will not at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in force providing for any valuation, stay, extension or redemption, and Mortgagor, for Mortgagor, Mortgagor’s successors and assigns, and for any and all Persons ever claiming any interest in the Mortgaged Properties, to the extent permitted by applicable law, hereby waives and releases all rights of valuation, stay of execution, redemption, notice of intention to mature or declare due the whole of the secured obligations,  notice of election to mature or declare due the whole of the secured obligations and all rights to a marshaling of assets of Mortgagor, including the Mortgaged Properties, or to a sale in inverse order of alienation in the event of foreclosure of the mortgage lien hereby created; provided, however, that in the event of any foreclosure of this Mortgage with respect to the Mortgaged Properties, or any part thereof, appraisement of the Mortgaged Properties is hereby waived or not waived, at the option of Mortgagee, such option to be exercised at the time of the entry of the foreclosure judgment or any time prior thereto.  Mortgagor shall not have or assert any right under any statute or rule of law pertaining to the marshaling of assets, sale in inverse order of alienation, the exemption of homestead, the administration of estates of decedents or other matters whatever to defeat, reduce or affect the right under the terms of this Mortgage to a sale of the Mortgaged Properties for the collection of the secured obligations without any prior or different resort for collection, or the right under the terms of this Mortgage to the payment of the secured obligations out of the proceeds of sale of the Mortgaged Properties in preference to every other claimant whatever.  If any law referred to in this section and now in force, of which Mortgagor or Mortgagor’s successors or assigns or any other Persons claiming any interest in the Mortgaged Properties might take advantage despite this section, shall hereafter be repealed or cease to be in force, such law shall not thereafter be deemed to preclude the application of this section.  To the extent permitted by applicable law, Mortgagor expressly waives any rule or applicable law pertaining to or prohibiting splitting of causes of action and further consent and agrees that the Mortgagee may institute one or more causes of action (including one or more foreclosure proceedings) as a remedy, simultaneously or consecutively.  Mortgagor expressly acknowledges and consents to Mortgagee commencing separate lawsuits seeking to recover on the secured obligations and/or foreclosure.

 

Section 3.7            No Release of Obligations .  Neither Mortgagor nor any other Person hereafter obligated for payment of all or any part of the secured obligations shall be relieved of such secured obligations by reason of (a) the failure of Mortgagee or any other Person so obligated to foreclose the lien of this Mortgage or to enforce any provision hereunder or under the Development Agreement; or (b) the release, regardless of consideration, of the Mortgaged Properties or any portion thereof or interest therein or the addition of any other property to the

 

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Mortgaged Properties.  Mortgagee may release, regardless of consideration, any part of the Mortgaged Properties without, as to the remainder, in any way impairing, affecting, subordinating or releasing the mortgage lien created in or evidenced by this Mortgage or its stature as a first and prior lien and security interest in and to the Mortgaged Properties, and without in any way releasing or diminishing the liability of any Person liable for the repayment or performance of the secured obligations.  For payment of the secured obligations, Mortgagee may resort to any other security therefor held by Mortgagee in such order and manner as Mortgagee may elect.

 

Section 3.8            Discontinuance of Proceedings .  In case Mortgagee shall have proceeded to invoke any right, remedy or recourse permitted hereunder or under the Development Agreement and shall thereafter elect to discontinue or abandon same for any reason, Mortgagee shall have the unqualified right to do so and, in such an event, Mortgagor and Mortgagee shall be restored to their former positions with respect to the secured obligations, this Mortgage, the Development Agreement, the Mortgaged Properties and otherwise, and the rights, remedies, recourses and powers of Mortgagee shall continue as if same had never been invoked.

 

ARTICLE IV.
Miscellaneous

 

Section 4.1            Filing .  This Mortgage is to be filed for record in the real property records (including the tract index) of each county where any part of the Mortgaged Properties is situated.  The mailing address of Mortgagor is the address of Mortgagor set forth at the end of this Mortgage and the address of Mortgagee from which information concerning the mortgage lien hereunder may be obtained is the address of Mortgagee set forth at the end of this Mortgage.  Nothing contained in this paragraph shall be construed to limit the scope of this Mortgage.

 

Section 4.2            Waivers .  Mortgagee may at any time and from time to time in writing waive compliance by Mortgagor with any covenant herein made by Mortgagor to the extent and in the manner specified in such writing, or consent to Mortgagor’s doing any act which hereunder Mortgagor is prohibited from doing, or to Mortgagor’s failing to do any act which hereunder Mortgagor is required to do, to the extent and in the manner specified in such writing, or release any part of the Mortgaged Properties or any interest therein from the mortgage lien of this Mortgage.  Any party liable, either directly or indirectly, for the secured obligations or for any covenant herein or in the Development Agreement may be released from all or any part of such obligations without impairing or releasing the liability of any other party.  No such act shall in any way impair any rights or powers hereunder except to the extent specifically agreed to in such writing.

 

Section 4.3            No Impairment of Security .  To the extent allowed by applicable law, the lien, privilege, security interest and other security rights hereunder shall not be impaired by any indulgence, moratorium or release which may be granted including, but not limited to, any renewal, extension or modification which may be granted with respect to any secured obligations, or any surrender, compromise, release, renewal, extension, exchange or substitution which may be granted in respect of the Mortgaged Properties, or any part thereof or any interest therein, or any release or indulgence granted to any endorser, guarantor or surety of any secured obligations.

 

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Section 4.4            Acts Not Constituting Waiver .  Any default may be waived without waiving any other prior or subsequent default.  Any default may be remedied without waiving the default remedied.  Neither failure to exercise, nor delay in exercising, any right, power or remedy upon any default shall be construed as a waiver of such default or as a waiver of the right to exercise any such right, power or remedy at a later date.  No single or partial exercise of any right, power or remedy hereunder shall exhaust the same or shall preclude any other or further exercise thereof, and every such right, power or remedy hereunder may be exercised at any time and from time to time.  No modification or waiver of any provision hereof nor consent to any departure by Mortgagor therefrom shall in any event be effective unless the same shall be in writing and signed by Mortgagee and then such waiver or consent shall be effective only in the specific instances, for the purpose for which given and to the extent therein specified.  No notice nor demand on Mortgagor in any case shall of itself entitle Mortgagor to any other or further notice or demand in similar or other circumstances.  Acceptance of any payment in an amount less than the amount then due on any secured obligations shall be deemed an acceptance on account only and shall not in any way excuse the existence of a default hereunder.

 

Section 4.5            Forbearance or Extension .  No forbearance and no extension of the time for the payment of the obligations secured hereby, shall operate to release, discharge, modify, change or affect, in whole or in part, the liability of Mortgagor hereunder for the payment of the obligations or performance of the obligations secured hereby, or the liability of any other Person hereunder or for the payment of the obligations secured hereby.

 

Section 4.6            Place of Payment .  All secured obligations which may be owing hereunder at any time by Mortgagor shall be payable at the place designated in the Development Agreement (or if no such designation is made, at the address of Mortgagee indicated at the end of this Mortgage), or at such other place as Mortgagee may designate in writing.

 

Section 4.7            Application of Payments to Certain Obligations .  If any part of the secured obligations cannot be lawfully secured by this Mortgage or if any part of the Mortgaged Properties cannot be lawfully subject to the lien, privilege and security interest hereof to the full extent of such obligations, then all payments made shall be applied on said obligations first in discharge of that portion thereof which is not secured by this Mortgage.

 

Section 4.8            Compliance With Usury Laws .  It is the intent of Mortgagor and Mortgagee to contract in strict compliance with applicable usury law from time to time in effect.  In furtherance thereof, it is stipulated and agreed that none of the terms and provisions contained herein, in the Development Agreement or in the Conveyances shall ever be construed to create a contract to pay, for the use, forbearance or detention of money, interest in excess of the maximum amount of interest permitted to be collected, charged, taken, reserved or received by applicable law from time to time in effect.

 

Section 4.9            Release of Mortgage .  In addition to the partial releases required pursuant to Section 1.5 hereof, if Mortgagor has satisfied its obligations under Article II of the Development Agreement, the mortgage lien created by this Mortgage shall automatically terminate and upon request by Mortgagor, Mortgagee shall promptly cause satisfaction, discharge and release of this Mortgage to be entered upon the record at the expense of Mortgagor

 

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and shall execute and deliver or cause to be executed and delivered such instruments of satisfaction, reassignment and/or release as may be appropriate.

 

Section 4.10          Notice .  All notices, requests, consents, demands and other communications required or permitted hereunder or under the Development Agreement shall be in writing and, unless otherwise specifically provided in the Development Agreement, shall be deemed sufficiently given or furnished if delivered by personal delivery, by telefacsimile, by delivery service with proof of delivery, or by registered or certified United States mail, postage prepaid, at the addresses specified at the end of this Mortgage (unless changed by similar notice in writing given by the particular party whose address is to be changed).  Any such notice or communication shall be deemed to have been given (a) in the case of personal delivery or delivery service, as of the date of first attempted delivery at the address and in the manner provided herein, (b) in the case of telefacsimile, upon receipt, and (c) in the case of registered or certified United States mail, three (3) days after deposit in the mail.  Notwithstanding the foregoing, or anything else in the Development Agreement which may appear to the contrary, any notice given in connection with a foreclosure of the mortgage lien created hereunder, or otherwise in connection with the exercise by Mortgagee of its rights hereunder or under the Development Agreement, which is given in a manner permitted by applicable law shall constitute proper notice; without limitation of the foregoing, notice given in a form required or permitted by statute shall (as to the portion of the Mortgaged Properties to which such statute is applicable) constitute proper notice.

 

Section 4.11          Invalidity of Certain Provisions .  A determination that any provision of this Mortgage is unenforceable or invalid shall not affect the enforceability or validity of any other provision and the determination that the application of any provision of this Mortgage to any Person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to other Persons or circumstances.

 

Section 4.12          Gender; Titles; Construction .  All references in this Mortgage to articles, sections, subsections and other subdivisions refer to corresponding articles, sections, subsections and other subdivisions of this Mortgage unless expressly provided otherwise.  Titles appearing at the beginning of any of such subdivisions are for convenience only and shall not constitute part of such subdivisions and shall be disregarded in construing the language contained in such subdivisions.  The words “ this Mortgage ”, “ this instrument ”, “ herein ”, “ hereof ”, “ hereunder ” and words of similar import refer to this Mortgage as a whole and not to any particular subdivision unless expressly so limited.  Unless the context otherwise requires: “ including ” and its grammatical variations mean “including without limitation”; “ or ” is not exclusive; words in the singular form shall be construed to include the plural and vice versa; words in any gender include all other genders; references herein to any instrument or agreement refer to such instrument or agreement as it may be from time to time amended or supplemented; and references herein to any Person include such Person’s successors and assigns.  All references in this Mortgage to Exhibits and Annexes refer to Exhibits and Annexes to this Mortgage unless expressly provided otherwise, and all such Exhibits and Annexes are hereby incorporated herein by reference and made a part hereof for all purposes.  This Mortgage has been drafted with the joint participation of Mortgagor and Mortgagee and shall be construed neither against nor in favor of either such party but rather in accordance with the fair meaning hereof.

 

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Section 4.13          Recording .  Mortgagor will cause this Mortgage and all amendments and supplements thereto and substitutions therefor to be recorded, filed, re-recorded and refiled in such manner and in such places as Mortgagee shall reasonably request and will pay all such recording, filing, re-recording and refiling taxes, fees and other charges.

 

Section 4.14          Certain Obligations of Mortgagor .  Without limiting Mortgagor’s obligations hereunder, Mortgagor’s liability hereunder and the obligations secured hereby shall extend to and include all post-petition interest, expenses and other duties and liabilities with respect to Mortgagor’s obligations hereunder which would be owed but for the fact that the same may be unenforceable due to the existence of a bankruptcy, reorganization or similar proceeding.

 

Section 4.15          Authority of Mortgagee .  All Persons shall be entitled to rely on the releases, waivers, consents, approvals, notifications and other acts of Mortgagee without the joinder of any party other than Mortgagee in such releases, waivers, consents, approvals, notifications or other acts.

 

Section 4.16          Counterparts .  This Mortgage may be executed in several counterparts, all of which are identical.  All of the counterparts hereof together shall constitute one and the same instrument.

 

Section 4.17          Successors and Assigns .  The terms, provisions, covenants, representations, indemnifications and conditions hereof shall be binding upon Mortgagor, and the successors and assigns of Mortgagor, and shall inure to the benefit of Mortgagee and its respective successors and assigns, and shall constitute covenants running with the Mortgaged Properties.  All references in this Mortgage to Mortgagor or Mortgagee shall be deemed to include all such successors and assigns.

 

Section 4.18          FINAL AGREEMENT OF THE PARTIES .  THE WRITTEN TRANSACTION DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PAR TIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

 

Section 4.19          CHOICE OF LAW .  WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT MAY CAUSE THE APPLICATION OF LAWS OF ANY OTHER JURISDICTION, THIS MORTGAGE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF KANSAS .

 

Section 4.20          EXCULPATION PROVISIONS .  EACH OF THE PARTIES HERETO SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS MORTGAGE; AND AGREES THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS OF THIS MORTGAGE; THAT IT HAS IN FACT READ THIS MORTGAGE AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS MORTGAGE; THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL

 

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COUNSEL OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS MORTGAGE; AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS MORTGAGE; AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS MORTGAGE RESULT IN ONE PARTY ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF THIS MORTGAGE ON THE BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT “CONSPICUOUS.”

 

Section 4.21          Release of Trustee. It is expressly understood and agreed by the parties hereto that (a) this Mortgage is executed and delivered for SandRidge Mississippian Trust II, as Mortgagee hereunder, by The Bank of New York Mellon Trust Company, N.A. (the “Trustee”) not individually or personally, but solely as Trustee on behalf of SandRidge Mississippian Trust II in the exercise of the powers and authority conferred and vested in it and (b) under no circumstances shall the Trustee be liable for any liability of the Trust or for any action taken or not taken by the Trust or Trustee under or in connection with this Mortgage. Mortgagor hereby unconditionally and irrevocably releases the Trustee from any and all claims of Mortgagor, whether now existing or arising in the future, arising out of, based upon, or otherwise related to, any action taken or not taken by the Trust or Trustee under or in connection with this Mortgage.

 

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IN WITNESS WHEREOF, this Mortgage is executed by Mortgagor on the date set forth in the acknowledgement below, to be effective immediately after the granting of the Conveyances and the Assignment and simultaneously with the execution and delivery of the Development Agreement.

 

 

SANDRIDGE EXPLORATION AND PRODUCTION, LLC

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

The address of Mortgagor is:

 

SandRidge Exploration and Production, LLC

123 Robert S. Kerr Avenue

Oklahoma City, OK  73102-6406

Attention:  Philip T. Warman

Facsimile No.: (405) 429-5983

 

With a copy to:

 

Hinkle Law Firm LLC

301 North Main Street

Suite 2000

Wichita, KS  67202-4820

Attention:  John W. Broomes, Esq.

Facsimile No.: (316) 264-1518

 

 

SIGNATURE PAGE TO MORTGAGE

 



 

 

SANDRIDGE MISSISSIPPIAN TRUST II

 

 

 

By:

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

Name:

Michael J. Ulrich

 

 

Title:

Vice-President

 

 

I do hereby certify that the address of Mortgagee is:

 

The Bank of New York Mellon Trust Company, N.A.

919 Congress Avenue, Suite 500

Austin, Texas 78701

Attn: Michael J. Ulrich

 

 

SIGNATURE PAGE TO MORTGAGE

 



 

STATE OF OKLAHOMA

§

 

 

§

 

COUNTY OF OKLAHOMA

§

 

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb as President and Chief Operating Officer of SandRidge Exploration and Production, LLC, a Delaware limited liability company, on behalf of said limited liability company.

 

WITNESS my hand and official seal this 23rd day of April, 2012.

 

 

 

/s/ Janis L. Roberts

 

NOTARY PUBLIC,

 

 

 

State of Oklahoma

 

 

 

Janis L. Roberts

 

(printed name)

 

 

My commission expires: May 22, 2012

 

 

 

 

 

[SEAL]

 



 

STATE OF TEXAS

§

 

 

§

 

COUNTY OF TRAVIS

§

 

 

This instrument was acknowledged before me on April 17, 2012, by Michael J. Ulrich as Vice-President of The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, as Trustee of SandRidge Mississippian Trust II, a Delaware statutory trust, on behalf of said national banking association and said trust.

 

WITNESS my hand and official seal this 17th day of April, 2012.

 

 

 

/s/ Sarah Newell

 

NOTARY PUBLIC,

 

 

 

State of Texas

 

 

 

Sarah Newell

 

(printed name)

 

 

My commission expires: February 16, 2014

 

 

 

 

 

[SEAL]

 



 

ANNEX A-1
COPY OF TERM ROYALTY CONVEYANCE (KANSAS) (DEVELOPMENT)

 

See attached.

 



 

ANNEX A-2
COPY OF ASSIGNMENT (KANSAS)

 

See attached.

 



 

ANNEX A-3
COPY OF LONG-TERM ROYALTY CONVEYANCE (KANSAS) (DEVELOPMENT)

 

See attached.

 



 

EXHIBIT A
MORTGAGED PROPERTIES

 

See attached.

 


Exhibit 10.15

 

Execution Copy

 

WHEN RECORDED

PLEASE RETURN TO :

SandRidge Energy, Inc.

Attn:  Phillip T. Warman

123 Robert S. Kerr Avenue

Oklahoma City, OK  73102-6406

 

Space above for County Recorder’s Use

 

A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE.  A POWER OF SALE MAY ALLOW THE MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO A COURT IN A FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS MORTGAGE.

 

MORTGAGE (Oklahoma)

 

FROM

 

SANDRIDGE EXPLORATION AND PRODUCTION, LLC,

as MORTGAGOR

TO

 

SANDRIDGE MISSISSIPPIAN TRUST II,

as MORTGAGEE

 

Dated as of April 23, 2012

 

THIS INSTRUMENT IS TO BE FILED AND RECORDED AS A MORTGAGE IN THE REAL ESTATE RECORDS OF EACH COUNTY IN WHICH THE LANDS DESCRIBED IN EXHIBIT A, OR ANY PORTION THEREOF, ARE LOCATED.

 

THIS MORTGAGE IS A MORTGAGE ON OIL AND GAS LEASES AND LEASEHOLD ESTATES, AS SUCH, NO REAL ESTATE MORTGAGE TAX IS DUE.

 



 

MORTGAGE (Oklahoma)

 

THIS MORTGAGE (Oklahoma) (this “ Mortgage ”) is entered into as of April 23, 2012, by SandRidge Exploration and Production, LLC, a Delaware limited liability company, as mortgagor (“ Mortgagor ”), whose address for notice is 123 Robert S. Kerr Avenue, Oklahoma City, Oklahoma 73102-6406, and SandRidge Mississippian Trust II, a statutory trust formed under the laws of the State of Delaware, as mortgagee (“ Mortgagee ”), whose address for notice is c/o The Bank of New York Mellon Trust Company, N.A.,  919 Congress Avenue, Suite 500, Austin Texas 78701.

 

R E C I T A L S :

 

A.                                     By means of (1) a Term Overriding Royalty Interest Conveyance (Oklahoma) (Development),  effective as of January 1, 2012, from Mortgagor to Mistmada Oil Company, Inc., an Oklahoma corporation (“ SandRidge Sub ”), a true and correct copy of which is annexed hereto as Annex A-1 and made a part hereof (the “ Term Conveyance (Development) ”), (2) an Assignment of Overriding Royalty Interest (Oklahoma), effective as of January 1, 2012, from SandRidge Sub to Mortgagee, a true and correct copy of which is annexed hereto as Annex A-2 and made a part hereof (the “ Assignment ”), and (3) a Perpetual Overriding Royalty Interest Conveyance (Oklahoma) (Development), effective as of January 1, 2012, from Mortgagor to Mortgagee, a true and correct copy of which is annexed hereto as Annex A-3 and made a part hereof (the “ Perpetual Conveyance (Development) ” and, together with the Term Conveyance (Development), collectively the “ Conveyances ”), the “ Royalty Interest ” (as defined in the Conveyances) has been conveyed and assigned to Mortgagee, as applicable, from Mortgagor and SandRidge Sub.  Capitalized terms used herein and not otherwise defined shall have the meanings given such terms in the Conveyances.

 

B.                                     SandRidge Energy, Inc. (“ SandRidge Parent ”), the sole member of Mortgagor, has undertaken certain obligations with respect to the properties described in the Conveyances under that certain Development Agreement, dated as of April 23, 2012, between SandRidge Parent, Mortgagor and Mortgagee (the “ Development Agreement ”), and Mortgagor is executing this Mortgage to secure the obligations of Mortgagor and SandRidge Parent under the Development Agreement.

 

C.                                     Mortgagor is concurrently executing a mortgage granting Mortgagee a mortgage lien in certain of Mortgagor’s properties located in Kansas to further secure the obligations of Mortgagor and SandRidge Parent under the Development Agreement.

 

D.                                     Mortgagee has conditioned its execution and delivery of the Perpetual Conveyance (Development), the Assignment and the Development Agreement upon the execution and delivery by Mortgagor of this Mortgage, and Mortgagor has agreed to enter into this Mortgage.

 

NOW, THEREFORE, in order to comply with the terms and conditions of the Development Agreement and for other good and valuable consideration, the receipt and

 



 

sufficiency of which are hereby acknowledged, Mortgagor hereby agrees with Mortgagee as follows:

 

ARTICLE I.
Granting Clauses; Secured Obligations

 

Section 1.1                                     Grant and Mortgage .  Mortgagor, in order to secure the payment and performance of the secured obligations hereinafter referred to and the performance of the obligations, covenants, agreements, warranties and undertakings of Mortgagor hereinafter described, does hereby GRANT, BARGAIN, SELL, ALIEN, CONVEY, TRANSFER, MORTGAGE, ASSIGN, WARRANT, PLEDGE, HYPOTHECATE and CONFIRM to Mortgagee, its successors and assigns, the following described rights, titles, interests, properties and estates of Mortgagor (sometimes hereinafter collectively referred to as the “ Mortgaged Properties ”): all of Mortgagor’s right, title, interest and estate in, to and under the oil, gas or other mineral leases described in Exhibit A attached hereto and made a part hereof (the “ Leases ”); insofar as and only insofar as such Leases cover and pertain to the Target Formation, including such rights in and under the Leases as may be necessary to drill to, complete in and produce and market crude oil, natural gas and natural gas liquids (collectively, “ Hydrocarbons ”) from the Target Formation; but specifically excluding, however, all of Mortgagor’s rights, title, and interests in and to (i) any oil, gas, water supply, saltwater disposal or other well of any nature whatsoever now or hereafter located on the Subject Lands (including, but not limited to, those which are producing from, injecting into, or otherwise being operated with regard to the Target Formation) at the time of or prior to a foreclosure sale of the Mortgaged Properties, including, without limitation any Development Wells (each a “ Well ” and collectively, the “ Wells ”) together with such corresponding rights (and only such rights) in and to the Leases pertaining to each such Well as are reasonably necessary for Mortgagor to own and operate such Well and to produce, store, treat, condition, process, compress, dehydrate, gather, transport or market Hydrocarbons produced from such Well, and dispose of saltwater or other substances produced therefrom (collectively, the “ Wellbore Leasehold Rights ”); and (ii) all personal property, fixtures and equipment in or on or acquired or used in connection with the ownership or operation of the Wells or the production, storage, treating, conditioning, processing, compressing, dehydrating, gathering, transporting or marketing of Hydrocarbons produced from the Wells, or the disposal of saltwater or other substances, produced therefrom.

 

TO HAVE AND TO HOLD the Mortgaged Properties unto Mortgagee, and Mortgagee’s successor and assigns, upon the terms, provisions and conditions herein set forth.

 

Section 1.2                                     Mortgage of the Mortgaged Properties .  This Mortgage is an absolute and unconditional mortgage to Mortgagee of the Mortgaged Properties, whether now in existence or hereafter arising, for the purpose of vesting in Mortgagee, subject to the Permitted Encumbrances (as defined in the Conveyances attached hereto as Annex A-1 and Annex A-3), a perfected mortgage lien in the Mortgaged Properties.

 

Section 1.3                                     Development Agreement and Other Obligations .  This Mortgage is made to secure and enforce the payment and performance of the following, obligations, indebtedness and liabilities:

 

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(a)                                  The full performance of all obligations, covenants, agreements and undertakings of and by SandRidge Parent and Mortgagor from time to time owing to Mortgagee under Article II of the Development Agreement;

 

(b)                                  Any sums advanced or expenses or costs incurred by the Mortgagee (or any receiver appointed hereunder) which are made or incurred pursuant to, or permitted by, the terms hereof, plus interest thereon at a rate of interest equal to the lesser of (i) five percent (5%) per annum or (ii) the maximum rate permitted under applicable law (the “ Applicable Rate ”) or otherwise agreed upon, from the date of the advances or the incurring of such expenses or costs until reimbursed; and

 

(c)                                   Without limiting the generality of the foregoing, all post-petition interest, expenses, and other duties, damages and liabilities with respect to indebtedness or other obligations described above in this Section 1.3, which would be owed but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization, or similar proceeding.

 

Section 1.4                                     Secured Obligations .  The obligations referred to in Section 1.3, and all renewals, extensions and modifications thereof, and all substitutions therefor, in whole or in part, are herein sometimes referred to as the “ secured obligations ” or the “ obligations secured hereby ”.  It is contemplated and acknowledged that the secured obligations may include obligations hereafter arising and that this Mortgage shall have effect, as of the date hereof, to secure all secured obligations, regardless of whether any amounts exist on the date hereof or arise on a later date or, whether having arisen or been advanced, are later repaid in part or in whole and further obligations arise or advances are made at a later date.

 

Section 1.5                                     Limitation on Obligations .  The Mortgagor and Mortgagee hereby agree and acknowledge that, as of the date hereof, the maximum amount recoverable under this Mortgage for any failure by SandRidge Parent or Mortgagor to perform the obligations described in Section 1.3(a) above is $239,499,000; provided , that such amount will be adjusted downward, from time to time, pursuant to Section 2.05(d) of the Development Agreement (such amount, as reduced from time to time, the “ Maximum Liability ”).  Mortgagor and Mortgagee further agree and acknowledge that pursuant to Section 1.1 above, the mortgage lien created by this Mortgage does not cover or extend to any Wells or Wellbore Leasehold Rights.  Accordingly, the mortgage lien created by this Mortgage shall automatically terminate as to each Development Well drilled after the date hereof as the same is completed, along with each such Development Well’s corresponding Wellbore Leasehold Rights.  Upon Mortgagor’s request and at Mortgagor’s expense, Mortgagee shall promptly execute and deliver a partial release, which will evidence the release in full of the mortgage lien created by this Mortgage with respect to any Development Well and corresponding Wellbore Leasehold Rights.

 

Section 1.6                                     Maturity Date .  The obligations, covenants, agreements and undertakings described in Section 1.3(a) of this Mortgage are due to be performed on and before December 31, 2016 (the “ Maturity Date ”).

 

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ARTICLE II.
Covenants

 

Section 2.1                                     Title Warranty .  Mortgagor warrants, represents, covenants and agrees that the Mortgaged Properties are free and clear of all liens, security interests and other Encumbrances, subject only to the Permitted Encumbrances and that, to Mortgagor’s knowledge, Mortgagor is lawfully seized of the estates and interests granted to Mortgagor under the Leases.  This Mortgage is subject to (but in no event shall this Mortgage be an assumption of) the Permitted Encumbrances, in each case to the extent and only for so long as the same are valid and subsisting and affect title to the Mortgaged Properties; provided , that the foregoing is not intended to, and shall not, subordinate the lien created hereby.

 

Section 2.2                                     Mortgagor hereby covenants with the Mortgagee as follows:

 

(a)                                  Further Assurance .  Mortgagor will, on request of Mortgagee, (i) promptly correct any defect, error or omission which may be discovered in the contents of this Mortgage, or in the execution or acknowledgment of this Mortgage; (ii) execute, acknowledge, deliver and record or file such further instruments and do such further acts as may be necessary, desirable or proper to carry out more effectively the purposes of this Mortgage; and (iii) execute, acknowledge, deliver, and file or record any document or instrument reasonably requested by Mortgagee to protect the mortgage lien hereunder against the rights or interests of third persons. Mortgagor shall pay all reasonable costs connected with any of the foregoing.

 

(b)                                  Name and Place of Business .  Mortgagor will not cause or permit any change to be made in its name, identity, limited liability company structure, federal employer identification number or state of organization (whether by merger or otherwise) unless Mortgagor shall have notified Mortgagee of such change at least ten (10) days prior to the effective date of such change, and shall have first taken all action required by Mortgagee for the purpose of further perfecting or protecting the mortgage lien in the Mortgaged Properties created hereby. Mortgagor’s exact name is the name set forth in this Mortgage. Mortgagor is a limited liability company organized under the laws of the State of Delaware.

 

Section 2.3                                     Transfer Restriction .  Except as permitted in Sections 11.02 and 11.03 of the applicable Conveyance, Mortgagor will not Transfer any of the Mortgaged Properties without the prior written consent of the Mortgagee.  If any Mortgaged Property is permitted to be Transferred pursuant to Sections 11.02 and 11.03 of the applicable Conveyance, the Mortgagee will promptly execute, acknowledge and deliver a release of this Mortgage to the extent applicable to such Mortgaged Properties proposed to be Transferred pursuant to Sections 11.02 and 11.03 of the applicable Conveyance.

 

ARTICLE III.
Remedies Upon Default

 

Section 3.1                                     Default .  The term “ default ” as used in this Mortgage means:

 

(a)                                  the failure by SandRidge Parent or the Mortgagor to perform any obligation required to be performed by it under Section 2.01 of the Development Agreement on or before the Maturity Date;

 

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(b)                                  failure by SandRidge Parent, within thirty (30) days after notice thereof from the Mortgagee, to cure a breach in the due performance or observance of any other covenant or agreement contained in Article II of the Development Agreement other than under Section 2.01 of the Development Agreement;

 

(c)                                   failure by the Mortgagor, within thirty (30) days after notice thereof from the Mortgagee, to cure a breach in the due performance or observance of any covenant or agreement contained in this Mortgage; or

 

(d)                                  this Mortgage shall fail to constitute a mortgage lien on any part of the Mortgaged Properties (subject only to Permitted Encumbrances), and such failure is not cured within thirty (30) days after written notice to Mortgagor or Mortgagor otherwise obtains knowledge thereof.

 

Section 3.2                                     Remedies .

 

(a)                                  After (i) the occurrence of a default under Section 3.1(a) of this Mortgage or (ii) the occurrence of any other default by Mortgagor under this Mortgage and during the continuance of such default, the lien evidenced hereby shall be subject to foreclosure, as Mortgagee may elect, in any manner provided for herein or provided for or required by law.  The existence of any default under Section 3.1(a) can be determined only at the Maturity Date.  Accordingly, notwithstanding any provision hereof or of law to the contrary, the secured obligations set forth in Section 2.01 of the Development Agreement are not subject to acceleration.

 

(b)                                  After (i) the occurrence of a default under Section 3.1(a) of this Mortgage or (ii) the occurrence of any other default by Mortgagor under this Mortgage and during the continuance of such default, Mortgagee is authorized prior or subsequent to the institution of any foreclosure proceedings to enter upon and to cause its agents to enter upon, the Mortgaged Properties, or any part thereof, and to exercise without interference from Mortgagor any and all rights which Mortgagor has with respect to the management, possession and operation of the Mortgaged Properties.  All costs, expenses and liabilities of every character incurred by Mortgagee in managing such properties shall constitute demand obligations owing by Mortgagor and constitute a portion of the secured obligations.

 

(c)                                   After (i) the occurrence of a default under Section 3.1(a) of this Mortgage or (ii) the occurrence of any other default by Mortgagor under this Mortgage and during the continuance of such default, Mortgagee shall have the right and power to sell, to the extent permitted by law, at one or more sales, as an entirety or in parcels, as Mortgagee may elect, the Mortgaged Properties, at such place or places and otherwise in such manner and upon such notice as may be required by law, or, in the absence of any such requirement, as Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers.  Mortgagee may postpone the sale of all or any portion of the Mortgaged Properties by public announcement at the time and place of such sale and from time to time thereafter may further postpone such sale by public announcement made at the time of sale fixed by the preceding postponement.  The right of sale hereunder shall not be exhausted by one or any sale, and Mortgagee may make other and successive sales until all of the Mortgaged Properties be legally sold.

 

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(d)                                  After the occurrence of a default under Section 3.1(a) of this Mortgage, Mortgagee, in lieu of or in addition to exercising the power of sale hereinabove and hereafter given, may proceed by a suit or suits in equity or at law, for one or more of the following: (i) a foreclosure hereunder or in aid of the execution of any power herein granted, (ii) the appointment of a receiver pending any foreclosure hereunder or the sale of the Mortgaged Properties, or (iii) the collection of damages from Mortgagor or SandRidge Parent for failure to perform Mortgagor’s or SandRidge Parent’s obligations under Section 2.01 of the Development Agreement on or before the Maturity Date; provided , that in no event shall Mortgagor or SandRidge Parent be personally liable to Mortgagee for failure to perform Mortgagor’s or SandRidge Parent’s obligations under Section 2.01 of the Development Agreement in excess of the Maximum Liability at the time of determination of such damages.  After the occurrence of any default by Mortgagor under this Mortgage other than under Section 3.1(a) of this Mortgage and during the continuance of such default, Mortgagee, in lieu of or in addition to exercising the power of sale hereinabove and hereafter given, may proceed by a suit or suits in equity or at law, for one or more of the following: (i) a foreclosure hereunder or in aid of the execution of any power herein granted, (ii) the appointment of a receiver pending any foreclosure hereunder or the sale of the Mortgaged Properties, or (iii) the enforcement of any other appropriate legal or equitable remedy.  In addition to all other remedies herein provided for, Mortgagor agrees that after a default has occurred, Mortgagee shall, as a matter of right, be entitled to the appointment of a receiver or receivers to be designated by Mortgagee for all or any part of the Mortgaged Properties whether such receivership be incident to a proposed sale of such properties (or any of them) or otherwise, and Mortgagor does hereby consent to the appointment of such receiver or receivers, and to the maximum extent permitted by law, waive any and all rights to notice and hearing regarding such appointment or appointments.

 

(e)                                   Mortgagee shall have the right to become the purchaser at any sale held by Mortgagee or by any court, receiver or public officer, and shall have the right to credit upon the amount of the bid made therefor the amount payable out of the net proceeds of such sale to it.

 

(f)                                    Any sale or sales of the Mortgaged Properties, whether under the power of sale herein granted and conferred or by virtue of judicial proceedings, shall operate to divest all right, title, interest, claim and demand whatsoever either at law or in equity, of Mortgagor of, in and to the premises and the property sold, and shall be a perpetual bar, both at law and in equity, against Mortgagor, Mortgagor’s successors or assigns, and against any and all Persons claiming or who shall thereafter claim all or any of the property sold from, through or under Mortgagor, or Mortgagor’s successors or assigns.

 

(g)                                   All costs and expenses (including attorneys’ fees) incurred by Mortgagee in protecting and enforcing the rights of Mortgagee hereunder, shall constitute a demand obligation owing by Mortgagor to Mortgagee, all of which shall constitute a portion of the secured obligations.

 

(h)                                  Any sale by Mortgagee of the Mortgaged Properties may be made in any county in which any part of the Mortgaged Properties to be sold at such sale may be situated.  Mortgagee may, from time to time, postpone the sale by public announcement thereof at the time and place noticed therefor.  If the Mortgaged Properties consists of several parcels or interests, Mortgagee may designate the order in which the same shall be offered for sale or sold.

 

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Mortgagor waives all rights to direct the order in which any of the Mortgaged Properties will be sold in the event of any sale under this Mortgage, and also any right to have any of the Mortgaged Properties marshaled upon any sale.

 

(i)                                      Notwithstanding any other provisions of this Mortgage, any lease of Minerals covered by this Mortgage which are subject to the Mineral Leasing Act of 1920 as amended, and the regulations promulgated thereunder, shall not be sold or otherwise disposed of to any party other than the citizens of the United States, or to associations of such citizens or to any corporation organized under the laws of the United States, or any state or territory thereof that are qualified to own or control interests in such leases under the provisions of such Act and regulations, or to Persons who may acquire ownership or interest in such leases under the provisions of 30 U.S.C. §184(g) if applicable, as such Act or regulations are now or may be from time to time in effect.

 

(j)                                     Without limitation of any of the foregoing remedies, Mortgagor hereby grants to and confers on Mortgagee the power to sell all or any portion of the Mortgaged Properties in the manner and pursuant to the procedures set forth in the “Oklahoma Power of Sale Mortgage Foreclosure Act,” 46 O.S. Supp. §§ 40-49, as the same may be hereafter amended and in effect from time to time (the “ Oklahoma POS Act ”) or pursuant to other applicable statutory or judicial authority.  If no cure is effected within the time limits set forth in the Oklahoma POS Act, Mortgagee may then proceed in the manner and subject to the conditions of the Oklahoma POS Act to send to Mortgagor and other necessary parties a notice of sale and may sell and convey the Mortgaged Properties in accordance with the Oklahoma POS Act.  Mortgagee may foreclose this Mortgage by exercising said power of sale or, at Mortgagee’s sole option, by judicial foreclosure proceedings as provided by law.  No action of Mortgagee based upon the provisions contained herein or in the Oklahoma POS Act, including, without limitation, the giving of the notice of intent to foreclose by power of sale or the notice of sale, shall constitute an election of remedies which would preclude Mortgagee from accelerating the secured obligations and pursuing judicial foreclosure before or at any time after commencement of the power of sale foreclosure procedure.  Notwithstanding anything contained in this Mortgage to the contrary, any notices of sale given in accordance with the requirements of the Oklahoma POS Act shall constitute sufficient notice of sale.  The conduct of a sale pursuant to a power of sale shall be sufficient hereunder if conducted in accordance with the requirements of the Oklahoma POS Act and other governmental requirements of the State of Oklahoma in effect at the time of such sale, notwithstanding any other provision contained in this Mortgage to the contrary.  In the event of conflict between the provisions hereof and the Oklahoma POS Act, the Oklahoma POS Act shall control.  A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE.  A POWER OF SALE MAY ALLOW THE MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO A COURT IN A FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS MORTGAGE.

 

(k)                                  NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, MORTGAGEE WAIVES ANY AND ALL CLAIMS OR RIGHTS OF ACTION TO COMPEL SPECIFIC PERFORMANCE OF MORTGAGOR’S OBLIGATIONS UNDER THIS MORTGAGE OR THE DEVELOPMENT AGREEMENT.   NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY NO PARTY HERETO SHALL BE LIABLE HEREUNDER FOR

 

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EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OTHER LAW OR OTHERWISE; PROVIDED THAT SUCH WAIVER OF CONSEQUENTIAL DAMAGES SHALL NOT APPLY TO ANY LIABILITY OF MORTGAGOR FOR BREACH OF ITS OBLIGATIONS UNDER SECTION 2.01 OF THE DEVELOPMENT AGREEMENT, PROVIDED THAT, IN NO EVENT SHALL MORTGAGOR’S OR SANDRIDGE PARENT’S LIABILITY FOR BREACH OF MORTGAGOR’S OR SANDRIDGE PARENT’S OBLIGATIONS UNDER SECTION 2.01 OF THE DEVELOPMENT AGREEMENT EXCEED THE MAXIMUM LIABILITY.

 

Section 3.3                                     Proceeds of Foreclosure .  The proceeds of any sale held in foreclosure of the mortgage lien evidenced hereby shall be applied as follows, except as otherwise required by applicable law:

 

FIRST , to the payment of all necessary costs and expenses incident to such foreclosure sale, including but not limited to reasonable attorney’s fees, trustees’ or receivers’ fees, accountants’ fees, all court costs and charges of every character in the event foreclosed by suit or any judicial proceeding, if any;

 

SECOND , to the payment of the secured obligations up to the amount of the Maximum Liability;

 

THIRD , to the extent funds are available therefor out of the sale proceeds or any rents and, to the extent known by Mortgagee, to the payment of any debt or obligation secured by a subordinate mortgage on or security interest in the Mortgaged Properties; and

 

FOURTH , the remainder, if any there shall be, shall be paid to Mortgagor, or to Mortgagor’s successors or assigns, or such other Persons as may be entitled thereto by law.

 

Section 3.4                                     Remedies Cumulative .  All remedies herein provided for are cumulative of each other and of all other remedies existing at law or in equity and are cumulative of any and all other remedies provided for in the Development Agreement, and, in addition to the remedies herein provided, there shall continue to be available all such other remedies as may now or hereafter exist at law or in equity for the collection of the secured obligations and the enforcement of the covenants herein and the foreclosure of the mortgage lien evidenced hereby, and the resort to any remedy provided for hereunder or under the Development Agreement or provided for by applicable law shall not prevent the concurrent or subsequent employment of any other appropriate remedy or remedies.

 

Section 3.5                                     Discretion as to Security .  Mortgagee may resort to any security given by this Mortgage or to any guaranty of the obligations secured hereby, in whole or in part, and in such portions and in such order as may seem best to Mortgagee in its sole and uncontrolled discretion, and any such action shall not in any way be considered as a waiver of any of the rights, benefits, liens or security interests evidenced by this Mortgage.

 

Section 3.6                                     Mortgagor’s Waiver of Certain Rights .  To the full extent Mortgagor may do so, Mortgagor agrees that Mortgagor will not at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in force providing for any

 

8



 

valuation, stay, extension or redemption, and Mortgagor, for Mortgagor, Mortgagor’s successors and assigns, and for any and all Persons ever claiming any interest in the Mortgaged Properties, to the extent permitted by applicable law, hereby waives and releases all rights of valuation, stay of execution, redemption, notice of intention to mature or declare due the whole of the secured obligations,  notice of election to mature or declare due the whole of the secured obligations and all rights to a marshaling of assets of Mortgagor, including the Mortgaged Properties, or to a sale in inverse order of alienation in the event of foreclosure of the mortgage lien hereby created; provided, however, that in the event of any foreclosure of this Mortgage with respect to the Mortgaged Properties, or any part thereof, appraisement of the Mortgaged Properties is hereby waived or not waived, at the option of Mortgagee, such option to be exercised at the time of the entry of the foreclosure judgment or any time prior thereto.  Mortgagor shall not have or assert any right under any statute or rule of law pertaining to the marshaling of assets, sale in inverse order of alienation, the exemption of homestead, the administration of estates of decedents or other matters whatever to defeat, reduce or affect the right under the terms of this Mortgage to a sale of the Mortgaged Properties for the collection of the secured obligations without any prior or different resort for collection, or the right under the terms of this Mortgage to the payment of the secured obligations out of the proceeds of sale of the Mortgaged Properties in preference to every other claimant whatever.  If any law referred to in this section and now in force, of which Mortgagor or Mortgagor’s successors or assigns or any other Persons claiming any interest in the Mortgaged Properties might take advantage despite this section, shall hereafter be repealed or cease to be in force, such law shall not thereafter be deemed to preclude the application of this section.  To the extent permitted by applicable law, Mortgagor expressly waives any rule or applicable law pertaining to or prohibiting splitting of causes of action and further consent and agrees that the Mortgagee may institute one or more causes of action (including one or more foreclosure proceedings) as a remedy, simultaneously or consecutively.  Mortgagor expressly acknowledges and consents to Mortgagee commencing separate lawsuits seeking to recover on the secured obligations and/or foreclosure.

 

Section 3.7                                     No Release of Obligations .  Neither Mortgagor nor any other Person hereafter obligated for payment of all or any part of the secured obligations shall be relieved of such secured obligations by reason of (a) the failure of Mortgagee or any other Person so obligated to foreclose the lien of this Mortgage or to enforce any provision hereunder or under the Development Agreement; or (b) the release, regardless of consideration, of the Mortgaged Properties or any portion thereof or interest therein or the addition of any other property to the Mortgaged Properties.  Mortgagee may release, regardless of consideration, any part of the Mortgaged Properties without, as to the remainder, in any way impairing, affecting, subordinating or releasing the mortgage lien created in or evidenced by this Mortgage or its stature as a first and prior lien and security interest in and to the Mortgaged Properties, and without in any way releasing or diminishing the liability of any Person liable for the repayment or performance of the secured obligations.  For payment of the secured obligations, Mortgagee may resort to any other security therefor held by Mortgagee in such order and manner as Mortgagee may elect.

 

Section 3.8                                     Discontinuance of Proceedings .  In case Mortgagee shall have proceeded to invoke any right, remedy or recourse permitted hereunder or under the Development Agreement and shall thereafter elect to discontinue or abandon same for any reason, Mortgagee shall have the unqualified right to do so and, in such an event, Mortgagor and

 

9



 

Mortgagee shall be restored to their former positions with respect to the secured obligations, this Mortgage, the Development Agreement, the Mortgaged Properties and otherwise, and the rights, remedies, recourses and powers of Mortgagee shall continue as if same had never been invoked.

 

ARTICLE IV.
Miscellaneous

 

Section 4.1                                     Filing .  This Mortgage is to be filed for record in the real property records (including the tract index) of each county where any part of the Mortgaged Properties is situated.  The mailing address of Mortgagor is the address of Mortgagor set forth at the end of this Mortgage and the address of Mortgagee from which information concerning the mortgage lien hereunder may be obtained is the address of Mortgagee set forth at the end of this Mortgage.  Nothing contained in this paragraph shall be construed to limit the scope of this Mortgage.

 

Section 4.2                                     Waivers .  Mortgagee may at any time and from time to time in writing waive compliance by Mortgagor with any covenant herein made by Mortgagor to the extent and in the manner specified in such writing, or consent to Mortgagor’s doing any act which hereunder Mortgagor is prohibited from doing, or to Mortgagor’s failing to do any act which hereunder Mortgagor is required to do, to the extent and in the manner specified in such writing, or release any part of the Mortgaged Properties or any interest therein from the mortgage lien of this Mortgage.  Any party liable, either directly or indirectly, for the secured obligations or for any covenant herein or in the Development Agreement may be released from all or any part of such obligations without impairing or releasing the liability of any other party.  No such act shall in any way impair any rights or powers hereunder except to the extent specifically agreed to in such writing.

 

Section 4.3                                     No Impairment of Security .  To the extent allowed by applicable law, the lien, privilege, security interest and other security rights hereunder shall not be impaired by any indulgence, moratorium or release which may be granted including, but not limited to, any renewal, extension or modification which may be granted with respect to any secured obligations, or any surrender, compromise, release, renewal, extension, exchange or substitution which may be granted in respect of the Mortgaged Properties, or any part thereof or any interest therein, or any release or indulgence granted to any endorser, guarantor or surety of any secured obligations.

 

Section 4.4                                     Acts Not Constituting Waiver .  Any default may be waived without waiving any other prior or subsequent default.  Any default may be remedied without waiving the default remedied.  Neither failure to exercise, nor delay in exercising, any right, power or remedy upon any default shall be construed as a waiver of such default or as a waiver of the right to exercise any such right, power or remedy at a later date.  No single or partial exercise of any right, power or remedy hereunder shall exhaust the same or shall preclude any other or further exercise thereof, and every such right, power or remedy hereunder may be exercised at any time and from time to time.  No modification or waiver of any provision hereof nor consent to any departure by Mortgagor therefrom shall in any event be effective unless the same shall be in writing and signed by Mortgagee and then such waiver or consent shall be effective only in the specific instances, for the purpose for which given and to the extent therein specified.  No notice nor demand on Mortgagor in any case shall of itself entitle Mortgagor to

 

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any other or further notice or demand in similar or other circumstances.  Acceptance of any payment in an amount less than the amount then due on any secured obligations shall be deemed an acceptance on account only and shall not in any way excuse the existence of a default hereunder.

 

Section 4.5                                     Forbearance or Extension .  No forbearance and no extension of the time for the payment of the obligations secured hereby, shall operate to release, discharge, modify, change or affect, in whole or in part, the liability of Mortgagor hereunder for the payment of the obligations or performance of the obligations secured hereby, or the liability of any other Person hereunder or for the payment of the obligations secured hereby.

 

Section 4.6                                     Place of Payment .  All secured obligations which may be owing hereunder at any time by Mortgagor shall be payable at the place designated in the Development Agreement (or if no such designation is made, at the address of Mortgagee indicated at the end of this Mortgage), or at such other place as Mortgagee may designate in writing.

 

Section 4.7                                     Application of Payments to Certain Obligations .  If any part of the secured obligations cannot be lawfully secured by this Mortgage or if any part of the Mortgaged Properties cannot be lawfully subject to the lien, privilege and security interest hereof to the full extent of such obligations, then all payments made shall be applied on said obligations first in discharge of that portion thereof which is not secured by this Mortgage.

 

Section 4.8                                     Compliance With Usury Laws .  It is the intent of Mortgagor and Mortgagee to contract in strict compliance with applicable usury law from time to time in effect.  In furtherance thereof, it is stipulated and agreed that none of the terms and provisions contained herein, in the Development Agreement or in the Conveyances shall ever be construed to create a contract to pay, for the use, forbearance or detention of money, interest in excess of the maximum amount of interest permitted to be collected, charged, taken, reserved or received by applicable law from time to time in effect.

 

Section 4.9                                     Release of Mortgage .  In addition to the partial releases required pursuant to Section 1.5 hereof, if Mortgagor has satisfied its obligations under Article II of the Development Agreement, the mortgage lien created by this Mortgage shall automatically terminate and upon request by Mortgagor, Mortgagee shall promptly cause satisfaction, discharge and release of this Mortgage to be entered upon the record at the expense of Mortgagor and shall execute and deliver or cause to be executed and delivered such instruments of satisfaction, reassignment and/or release as may be appropriate.

 

Section 4.10                              Notice .  All notices, requests, consents, demands and other communications required or permitted hereunder or under the Development Agreement shall be in writing and, unless otherwise specifically provided in the Development Agreement, shall be deemed sufficiently given or furnished if delivered by personal delivery, by telefacsimile, by delivery service with proof of delivery, or by registered or certified United States mail, postage prepaid, at the addresses specified at the end of this Mortgage (unless changed by similar notice in writing given by the particular party whose address is to be changed).  Any such notice or communication shall be deemed to have been given (a) in the case of personal delivery or delivery service, as of the date of first attempted delivery at the address and in the manner

 

11



 

provided herein, (b) in the case of telefacsimile, upon receipt, and (c) in the case of registered or certified United States mail, three (3) days after deposit in the mail.  Notwithstanding the foregoing, or anything else in the Development Agreement which may appear to the contrary, any notice given in connection with a foreclosure of the mortgage lien created hereunder, or otherwise in connection with the exercise by Mortgagee of its rights hereunder or under the Development Agreement, which is given in a manner permitted by applicable law shall constitute proper notice; without limitation of the foregoing, notice given in a form required or permitted by statute shall (as to the portion of the Mortgaged Properties to which such statute is applicable) constitute proper notice.

 

Section 4.11                                 Invalidity of Certain Provisions .  A determination that any provision of this Mortgage is unenforceable or invalid shall not affect the enforceability or validity of any other provision and the determination that the application of any provision of this Mortgage to any Person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to other Persons or circumstances.

 

Section 4.12                                 Gender; Titles; Construction .  All references in this Mortgage to articles, sections, subsections and other subdivisions refer to corresponding articles, sections, subsections and other subdivisions of this Mortgage unless expressly provided otherwise.  Titles appearing at the beginning of any of such subdivisions are for convenience only and shall not constitute part of such subdivisions and shall be disregarded in construing the language contained in such subdivisions.  The words “ this Mortgage ”, “ this instrument ”, “ herein ”, “ hereof ”, “ hereunder ” and words of similar import refer to this Mortgage as a whole and not to any particular subdivision unless expressly so limited.  Unless the context otherwise requires: “ including ” and its grammatical variations mean “including without limitation”; “ or ” is not exclusive; words in the singular form shall be construed to include the plural and vice versa; words in any gender include all other genders; references herein to any instrument or agreement refer to such instrument or agreement as it may be from time to time amended or supplemented; and references herein to any Person include such Person’s successors and assigns.  All references in this Mortgage to Exhibits and Annexes refer to Exhibits and Annexes to this Mortgage unless expressly provided otherwise, and all such Exhibits and Annexes are hereby incorporated herein by reference and made a part hereof for all purposes.  This Mortgage has been drafted with the joint participation of Mortgagor and Mortgagee and shall be construed neither against nor in favor of either such party but rather in accordance with the fair meaning hereof.

 

Section 4.13                                 Recording .  Mortgagor will cause this Mortgage and all amendments and supplements thereto and substitutions therefor to be recorded, filed, re-recorded and refiled in such manner and in such places as Mortgagee shall reasonably request and will pay all such recording, filing, re-recording and refiling taxes, fees and other charges.

 

Section 4.14                                 Certain Obligations of Mortgagor .  Without limiting Mortgagor’s obligations hereunder, Mortgagor’s liability hereunder and the obligations secured hereby shall extend to and include all post-petition interest, expenses and other duties and liabilities with respect to Mortgagor’s obligations hereunder which would be owed but for the fact that the same may be unenforceable due to the existence of a bankruptcy, reorganization or similar proceeding.

 

Section 4.15                                 Authority of Mortgagee .  All Persons shall be entitled to rely on

 

12



 

the releases, waivers, consents, approvals, notifications and other acts of Mortgagee without the joinder of any party other than Mortgagee in such releases, waivers, consents, approvals, notifications or other acts.

 

Section 4.16                                 Counterparts .  This Mortgage may be executed in several counterparts, all of which are identical, except that, to facilitate recordation, certain counterparts hereof may include only that portion of Exhibit A and the applicable Exhibit A to the Conveyances which contains descriptions of the properties located in (or otherwise subject to the recording or filing requirements 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 and the applicable Exhibit A to the Conveyances shall be included in such counterparts by reference only.  All of the counterparts hereof together shall constitute one and the same instrument.  An executed counterpart of this Mortgage containing the full text of Exhibit A and Annexes A-1, A-2 and A-3 (although omitting the exhibits and schedules to such Annexes) is recorded in the real property records of Alfalfa County, Oklahoma.

 

Section 4.17                                 Successors and Assigns .  The terms, provisions, covenants, representations, indemnifications and conditions hereof shall be binding upon Mortgagor, and the successors and assigns of Mortgagor, and shall inure to the benefit of Mortgagee and its respective successors and assigns, and shall constitute covenants running with the Mortgaged Properties.  All references in this Mortgage to Mortgagor or Mortgagee shall be deemed to include all such successors and assigns.

 

Section 4.18                                 FINAL AGREEMENT OF THE PARTIES .  THE WRITTEN TRANSACTION DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PAR TIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

 

Section 4.19                                 CHOICE OF LAW .  WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT MAY CAUSE THE APPLICATION OF LAWS OF ANY OTHER JURISDICTION, THIS MORTGAGE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF OKLAHOMA .

 

Section 4.20                                 EXCULPATION PROVISIONS .  EACH OF THE PARTIES HERETO SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS MORTGAGE; AND AGREES THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS OF THIS MORTGAGE; THAT IT HAS IN FACT READ THIS MORTGAGE AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS MORTGAGE; THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS MORTGAGE; AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS MORTGAGE; AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS MORTGAGE RESULT IN ONE PARTY

 

13



 

ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF THIS MORTGAGE ON THE BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT “CONSPICUOUS.”

 

Section 4.21                                 Release of Trustee. It is expressly understood and agreed by the parties hereto that (a) this Mortgage is executed and delivered for SandRidge Mississippian Trust II, as Mortgagee hereunder, by The Bank of New York Mellon Trust Company, N.A. (the “Trustee”) not individually or personally, but solely as Trustee on behalf of SandRidge Mississippian Trust II in the exercise of the powers and authority conferred and vested in it and (b) under no circumstances shall the Trustee be liable for any liability of the Trust or for any action taken or not taken by the Trust or Trustee under or in connection with this Mortgage. Mortgagor hereby unconditionally and irrevocably releases the Trustee from any and all claims of Mortgagor, whether now existing or arising in the future, arising out of, based upon, or otherwise related to, any action taken or not taken by the Trust or Trustee under or in connection with this Mortgage.

 

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IN WITNESS WHEREOF, this Mortgage is executed by Mortgagor on the date set forth in the acknowledgement below, to be effective immediately after the granting of the Conveyances and the Assignment and simultaneously with the execution and delivery of the Development Agreement.

 

 

SANDRIDGE EXPLORATION AND PRODUCTION, LLC

 

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name:

Matthew K. Grubb

 

 

Title:

President and Chief Operating Officer

 

 

The address of Mortgagor is:

 

SandRidge Exploration and Production, LLC

123 Robert S. Kerr Avenue

Oklahoma City, OK  73102-6406

Attention:  Philip T. Warman

Facsimile No.: (405) 429-5983

 

With a copy to:

 

McAfee & Taft A Professional Corporation

10 th  Floor, Two Leadership Square

211 N. Robinson

Oklahoma City, OK  73102

Attention:  C. David Stinson, Esq.

Facsimile No.: (405) 235-0439

 

 

Signature Page to Mortgage

 



 

 

SANDRIDGE MISSISSIPPIAN TRUST II

 

 

 

 

By:

The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

Name:

Michael J. Ulrich

 

 

Title:

Vice-President

 

 

I do hereby certify that the address of Mortgagee is:

 

The Bank of New York Mellon Trust Company, N.A.

919 Congress Avenue, Suite 500

Austin, Texas 78701

Attn: Michael J. Ulrich

 

 

Signature Page to Mortgage

 



 

STATE OF OKLAHOMA

§

 

§

COUNTY OF OKLAHOMA

§

 

This instrument was acknowledged before me on April 23, 2012, by Matthew K. Grubb as President and Chief Operating Officer of SandRidge Exploration and Production, LLC, a Delaware limited liability company, on behalf of said limited liability company.

 

WITNESS my hand and official seal this 23rd day of April, 2012.

 

 

 

/s/ Janis L. Roberts

 

NOTARY PUBLIC,

 

 

 

State of Oklahoma

 

 

 

Janis L. Roberts

 

(printed name)

 

 

My commission expires: May 22, 2012

 

 

 

SEAL

 

 

 



 

STATE OF TEXAS

§

 

§

COUNTY OF TRAVIS

§

 

This instrument was acknowledged before me on April 17, 2012, by Michael J. Ulrich as Vice-President of The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, as Trustee of SandRidge Mississippian Trust II, a Delaware statutory trust, on behalf of said national banking association and said trust.

 

WITNESS my hand and official seal this 17th day of April, 2012.

 

 

 

/s/ Sarah Newell

 

NOTARY PUBLIC,

 

 

 

State of Texas

 

 

 

Sarah Newell

 

(printed name)

 

 

My commission expires: February 16, 2014

 

 

 

SEAL

 

 

 



 

ANNEX A-1
COPY OF TERM ROYALTY CONVEYANCE (OKLAHOMA) (DEVELOPMENT)

 

See attached.

 



 

ANNEX A-2
COPY OF ASSIGNMENT (OKLAHOMA)

 

See attached.

 



 

ANNEX A-3
COPY OF PERPETUAL ROYALTY CONVEYANCE (OKLAHOMA) (DEVELOPMENT)

 

See attached.

 



 

EXHIBIT A
MORTGAGED PROPERTIES

 

See attached.

 


Exhibit 10.16

 

Execution Copy

 

REGISTRATION RIGHTS AGREEMENT

 

BY AND BETWEEN

 

SANDRIDGE MISSISSIPPIAN TRUST II

 

AND

 

SANDRIDGE ENERGY, INC.,

 

DATED AS OF APRIL 23, 2012

 



 

This Registration Rights Agreement (the “ Agreement ”) is made and entered into as of April 23, 2012, by and between SandRidge Mississippian Trust II, a statutory trust formed under the laws of the State of Delaware (the “ Trust ”), and SandRidge Energy, Inc. (“ SandRidge ”), a Delaware corporation.

 

WHEREAS , in connection with the initial public offering of common units of beneficial interests of the Trust, the Trust has agreed to file a registration statement or registration statements relating to the sales by SandRidge, SandRidge Exploration and Production, LLC (“ SandRidge E&P ”), a Delaware limited liability company and wholly owned subsidiary of SandRidge, and their respective Transferees of certain of the Trust Units (as each capitalized term is defined below).

 

NOW , THEREFORE , in consideration of the premises and the covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, it is agreed as follows:

 

SECTION 1.                             Definitions . As used in this Agreement, the following terms shall have the following meanings:

 

Affiliate ” means with respect to a specified person, any person that directly or indirectly controls, is controlled by, or is under common control with, the specified person. As used in this definition, the term “control” (and the correlative terms “controlling,” “controlled by,” and “under common control”) shall mean the possession, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of a person, whether through ownership of voting securities, by contract or otherwise.

 

Agreement ” has the meaning set forth in the introductory paragraph hereof.

 

Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the New York Stock Exchange, Inc., as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed.

 

Common Units ” has the meaning set forth in the Trust Agreement.

 

Deferral Notice ” has the meaning set forth in Section 3(j) hereof.

 

Deferral Period ” has the meaning set forth in Section 3(j) hereof.

 

Demand Notice ” has the meaning set forth in Section 2(a) hereof.

 

Demand Registration ” has the meaning set forth in Section 2(a) hereof.

 

Demanding Qualified Holder(s) ” shall mean, with respect to any Demand Registration, the Qualified Holder(s) delivering the relevant Demand Notice.

 

Effective Period ” means the period commencing on the 180th day after the date hereof and ending on the date that all Registrable Securities have ceased to be Registrable Securities.

 



 

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the SEC thereunder.

 

Expenses ” has the meaning set forth in Section 6(a) hereof.

 

FINRA ” has the meaning set forth in Section 3(o) hereof.

 

Indemnified Party ” has the meaning set forth in Section 6(d) hereof.

 

Indemnifying Party ” has the meaning set forth in Section 6(d) hereof.

 

Material Event ” has the meaning set forth in Section 3(j) hereof.

 

Notice ” has the meaning set forth in Section 2(d) hereof.

 

person ” shall mean any individual, partnership, limited liability company, corporation, estate, trust, joint venture, unincorporated association, governmental body or other entity, organization or association.

 

Prospectus ” means the prospectus included in any Registration Statement (including a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A, Rule 430B or Rule 430C promulgated under the Securities Act), as amended or supplemented by any amendment, prospectus supplement or free writing prospectus (as defined in Rule 405 promulgated under the Securities Act), including post-effective amendments, and all materials incorporated by reference or explicitly deemed to be incorporated by reference in such Prospectus.

 

Qualified Holder ” shall mean SandRidge, SandRidge E&P and any Transferee of SandRidge or SandRidge E&P, to whom Registrable Securities are permitted to be transferred in accordance with the terms of this Agreement and, in each case, who continues to be entitled to the rights of a Qualified Holder hereunder.

 

Registrable Securities ” means the Trust Units held by the Qualified Holders and any securities into or for which such Trust Units have been converted or exchanged, and any security issued with respect thereto upon any dividend, split or similar event until, in the case of any such Trust Units or other security, the earliest of (i) its effective registration under the Securities Act and resale in accordance with the Registration Statement covering it, (ii) its disposal pursuant to Rule 144 (or any similar provision then in force) under the Securities Act, (iii) its sale in a private transaction in which the transferor’s rights under this Agreement are not assigned to the transferee of the securities, (iv) its being held by the Trust, (v) 10 years after a Qualified Holder of such security ceases to be an Affiliate of the Trust or (vi) if such security has been sold in a private transaction in which the transferor’s rights under this Agreement are assigned to the transferee and such transferee is not an Affiliate of the Trust, the time that is one year following the transfer of such security to such transferee.

 

Registration Statement ” means any registration statement of the Trust, including any Shelf Registration Statement, that covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such

 

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registration statement, including post-effective amendments, all exhibits and all materials incorporated by reference or deemed to be incorporated by reference in such registration statement.

 

Required Information ” has the meaning set forth in Section 4(a) hereof.

 

Rule 144 ” means Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.

 

Rule 144A ” means Rule 144A under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.

 

SandRidge” has the meaning set forth in the introductory paragraph hereof.

 

SandRidge E&P” has the meaning set forth in the recitals hereof.

 

SEC ” means the U.S. Securities and Exchange Commission.

 

Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated by the SEC thereunder.

 

Shelf Registration Statement ” means a Registration Statement for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC) registering the resale of Registrable Securities from time to time by any Qualified Holder.

 

Special Counsel ” means Covington & Burling LLP or such other successor counsel as shall be specified in writing by Qualified Holders holding a majority of all Registrable Securities.

 

Subordinated Units ” has the meaning set forth in the Trust Agreement.

 

Transferee ” means any person or group of persons that purchases any Registrable Securities from SandRidge or SandRidge E&P or otherwise holds any Registrable Securities as a result of any sale, liquidation, dividend or distribution by SandRidge, SandRidge E&P or any of their respective Affiliates; provided , that such person or group (i) agrees to be designated as a Transferee hereunder, (ii) is specifically designated as a Transferee hereunder in writing by SandRidge to the Trust, (iii) holds Registrable Securities representing at least 100,000 of the then-outstanding Registrable Securities and (iv) in the case of a group, such group shall collectively agree to constitute a single Transferee for purposes of this Agreement (including for purposes of exercising any Demand Registration right transferred to such group hereunder).

 

Trust ” has the meaning set forth in the introductory paragraph hereof.

 

Trust Agreement ” means that certain Amended and Restated Trust Agreement of the Trust, dated as of the date hereof.

 

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Trust Units ” means Common Units and Subordinated Units.

 

Trustee ” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America with its principal place of business in New York, New York, as trustee, acting not in its individual capacity but solely as trustee of the Trust.

 

SECTION 2.                             Demand Registration Rights .

 

(a)                                  During the Effective Period, a Qualified Holder shall have the right, by delivering a written notice to the Trust (the “ Demand Notice ”), to require the Trust to register, pursuant to the terms of this Agreement and in accordance with the provisions of the Securities Act, the number of Registrable Securities requested to be so registered (a “ Demand Registration ”). A Demand Notice must specify the number of Registrable Securities to be registered and the Qualified Holder’s intended method of disposition thereof.

 

(b)                                  The Qualified Holders shall be entitled to up to five Demand Registrations. Notwithstanding any other provision of this Section 2, in no event shall more than one Demand Registration occur during any six-month period (measured from the effective date of the Registration Statement to the date of the next Demand Notice).

 

(c)                                   No Demand Registration shall be deemed to have occurred for purposes of this Section 2 if the Registration Statement relating thereto does not become effective, or its effectiveness is not maintained, for the period required pursuant to Section 2(e), in which case the Demanding Qualified Holders shall be entitled to an additional Demand Registration in lieu thereof.

 

(d)                                  Within ten (10) days after receipt by the Trust of a Demand Notice, the Trust shall give written notice (the “ Notice ”) of such Demand Notice to all other Qualified Holders and shall, subject to the provisions of Section 2(f) hereof, include in such registration all Registrable Securities held by such Qualified Holders with respect to which the Trust received written requests for inclusion therein within ten (10) days after such Notice is given by the Trust to such holders.

 

(e)                                   The Trust shall be required to maintain the effectiveness of the Registration Statement with respect to any Demand Registration for a period of ninety (90) days after the effective date thereof or, in the case of a Shelf Registration Statement, until such time as all Registrable Securities covered by such Shelf Registration Statement have ceased to be Registrable Securities; provided , that such period shall be extended for a period of time equal to the period the holders of Registrable Securities refrain from selling any securities included in such registration at the request of (i) an underwriter of the Trust or (ii) the Trust pursuant to this Agreement.

 

(f)                                    If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter advises the holders of such securities in writing that in its view the total amount of securities proposed to be sold in such offering (including securities proposed to be sold by persons other than Demanding Qualified Holders pursuant to incidental or piggyback registration

 

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rights) is such as to adversely affect the success of such offering, then the amount of securities to be offered for the account of Demanding Qualified Holders and for the account of persons other than Demanding Qualified Holders shall be reduced to the extent necessary to reduce the total amount of securities to be included in such offering to the amount recommended by such managing underwriter by:

 

(i)                                      First, reducing, or eliminating if necessary, all securities requested to be included by persons other than Demanding Qualified Holders, and

 

(ii)                                   Second, if necessary, reducing the Registrable Securities requested to be included by the Demanding Qualified Holders, pro rata among such Demanding Qualified Holders on the basis of the percentage of the total Registrable Securities requested to be included in such Registration Statement by each such holder.

 

In connection with any Demand Registration to which the provisions of this Section 2(f) apply, no securities other than Registrable Securities shall be covered by such Demand Registration except in accordance with this Section 2(f), and such registration shall not reduce the number of Demand Registrations available to the Qualified Holders under Section 2(b) if the Registration Statement excludes more than 25% of the aggregate number of Registrable Securities that the Demanding Qualified Holders requested be included.

 

(g)                                   The Trust shall be entitled to postpone (but not more than once in any 12-month period), for a reasonable period of time not in excess of 90 days, the filing of a Registration Statement if the Trust delivers to the Demanding Qualified Holders a certificate signed by the Trust certifying that, in its good faith judgment, it would be detrimental to the Trust and its unitholders for such Registration Statement to be filed and it therefore would be beneficial to defer the filing of such Registration Statement. If the Trust shall so postpone the filing of a Registration Statement, the Demanding Qualified Holders shall have the right to withdraw the request for registration by giving written notice to the Trust within 20 days of the anticipated termination date of the postponement period, as provided in the certificate delivered by the Trust, and in the event of such withdrawal, such request shall not reduce the number of available registrations with respect to the Qualified Holders under this Section 2.

 

(h)                                  Whenever the Trust shall effect a Demand Registration pursuant to this Section 2 in connection with an underwritten offering, no securities other than Registrable Securities shall be covered by such Demand Registration, unless (i) the managing underwriter of such offering shall have advised each holder of Registrable Securities requesting such registration in writing that it believes that the inclusion of such other securities would not adversely affect such offering or (ii) the inclusion of such other securities is approved by the affirmative vote of the holders of at least a majority of the Registrable Securities included in such Demand Registration by the Demanding Qualified Holders.

 

SECTION 3.                             Registration Procedures . Following receipt of a Demand Notice, the Trust shall:

 

(a)                                  Use its reasonable best efforts to (i) prepare and file with the SEC, no later than 45 days after receiving the Demand Notice, a Registration Statement or Registration

 

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Statements (including, if so requested by the Qualified Holders, a Shelf Registration Statement), on any appropriate form under the Securities Act available for the sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof, and (ii) cause each such Registration Statement to become effective as promptly as practicable after filing and remain effective for the period of time provided in Section 2(e); provided , that before filing any Registration Statement or Prospectus or any amendments or supplements thereto with the SEC (but excluding reports filed with the SEC under the Exchange Act), the Trust shall furnish to the Qualified Holders, the Special Counsel and the managing underwriters, if any, copies of any such document at least three (3) Business Days prior to the filing thereof;

 

(b)                                  Subject to Section 3(j), (i) prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective during the period provided herein with respect to the disposition of all securities covered by such Registration Statement; (ii) cause the related Prospectus to be supplemented by any required prospectus supplement or free writing prospectus, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and (iii) use reasonable best efforts to comply with the provisions of the Securities Act applicable to the Trust with respect to the disposition of all securities covered by such Registration Statement during the period provided herein with respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or such Prospectus as so supplemented;

 

(c)                                   Subject to Section 3(j), as promptly as practicable after the date a Registration Statement is declared effective and the Required Information is delivered pursuant to Section 4 hereof:

 

(i)                                      if required by applicable law, file with the SEC a post-effective amendment to the Registration Statement, a supplement to the related Prospectus, a supplement or amendment to any document incorporated in the Prospectus by reference and/or any other document required to be filed so that the Qualified Holder delivering such Required Information is named as a selling securityholder in the Registration Statement and the related Prospectus in such a manner as to permit such Qualified Holder to deliver such Prospectus to purchasers of the Registrable Securities in accordance with applicable law and, if the Trust shall file a post-effective amendment to the Registration Statement, use reasonable best efforts to cause such post-effective amendment to be declared effective under the Securities Act as promptly as practicable; and

 

(ii)                                   provide such Qualified Holder copies of any documents filed pursuant to Section 3(c)(i) and notify such Qualified Holder as promptly as practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section 3(c)(i); provided , that if the Required Information is delivered during a Deferral Period, the Trust shall so inform the Qualified Holder delivering such Required Information. Notwithstanding anything contained herein to the contrary, the Trust shall be under no obligation to name any Qualified Holder that has failed to deliver the Required Information in the manner

 

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set forth in Section 4 hereof as a selling securityholder in any Registration Statement or related Prospectus;

 

(d)                                  As promptly as practicable, give notice to the Qualified Holders, the Special Counsel and the managing underwriters, if any, (i) when any Prospectus, Registration Statement or post-effective amendment to a Registration Statement has been filed with the SEC and, with respect to a Registration Statement or any post-effective amendment thereto, when the same has been declared effective, (ii) of any request, following the effectiveness of any Registration Statement under the Securities Act, by the SEC or any other federal or state governmental authority for amendments or supplements to any Registration Statement or related Prospectus, (iii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of any Registration Statement or the initiation or threatening of any proceedings for that purpose, (iv) of the receipt by the Trust of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (v) of the occurrence of, but not the nature of or details concerning, a Material Event (as defined below) and (vi) of the determination by the Trust that a post-effective amendment to a Registration Statement will be filed with the SEC, which notice may, at the discretion of the Trust (or as required pursuant to Section 3(j)), state that it constitutes a Deferral Notice, in which event the provisions of Section 3(j) shall apply;

 

(e)                                   Use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in either case as promptly as practicable, and provide prompt notice to each Qualified Holder of the withdrawal of any such order;

 

(f)                                    If requested by the managing underwriters, if any, or the Qualified Holders of the Registrable Securities being sold in connection with an underwritten offering, promptly include in a prospectus supplement or post-effective amendment such information as the managing underwriters, if any, or such Qualified Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Trust has received such request; provided, that the Trust shall not be required to take any actions under this Section 3(f) that are not, in the opinion of counsel for the Trust, in compliance with applicable law;

 

(g)                                   As promptly as practicable, furnish to each Qualified Holder, the Special Counsel and each managing underwriter, if any, upon request, at least one (1) conformed copy of the Registration Statement and any amendment thereto, including exhibits and, if requested, all documents incorporated or deemed to be incorporated therein by reference;

 

(h)                                  Deliver to each Qualified Holder, the Special Counsel and each managing underwriter, if any, in connection with any sale of Registrable Securities pursuant to a Registration Statement as many copies of the Prospectus relating to such Registrable Securities (including each preliminary Prospectus) and any amendment or supplement thereto as such

 

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persons may reasonably request. In addition, the Trust hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked and subject to Section 3(j)(ii) hereof) to the use of such Prospectus or each such amendment or supplement thereto by each Qualified Holder and the underwriters, if any, in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein;

 

(i)                                      Use reasonable best efforts to (i) prior to any public offering of the Registrable Securities pursuant to a Registration Statement, register or qualify or cooperate with the Qualified Holders, the Special Counsel and the underwriters, if any, in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Qualified Holder or underwriter reasonably requests in writing (which request may be included with the Required Information) and (ii) keep each such registration or qualification (or exemption therefrom) effective during the period provided herein with respect to the disposition of all securities covered by such Registration Statement in connection with such Qualified Holder’s offer and sale of Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the relevant Registration Statement and the related Prospectus; provided , that neither the Trust nor the Trustee shall be required to (i) qualify as a foreign entity or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject;

 

(j)                                     Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of any Registration Statement or the initiation of proceedings with respect to any Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any fact as a result of which (x) any Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (y) any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (each of subclauses (x) and (y) hereof, a “ Material Event ”), or (C) the occurrence or existence of any pending development of the Trust that, in the reasonable discretion of the Trust, makes it appropriate to suspend the availability of any Registration Statement and the related Prospectus:

 

(i)                                      in the case of clause (B) above, subject to clause (ii) below, as promptly as practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement, a supplement to the related Prospectus, a supplement or amendment to any document incorporated in the Prospectus by reference and/or any other document required to be filed so that such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances

 

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under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Registration Statement, subject to clause (ii) below, use reasonable best efforts to cause it to be declared effective as promptly as practicable;

 

(ii)                                   give notice to the Qualified Holders and the Special Counsel, if any, that the availability of any Registration Statement is suspended (a “ Deferral Notice ”) and, upon receipt of any Deferral Notice, each Qualified Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Qualified Holder’s receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Trust that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus, in which case such Qualified Holder will use the Prospectus as so supplemented or amended in connection with any offering and sale of Registrable Securities covered thereby; and

 

(iii)                                use reasonable best efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the sole judgment of the Trust, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of the Trust or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter, and (z) in the case of clause (C) above, as soon as, in the reasonable discretion of the Trust, such suspension is no longer appropriate.

 

The time period from the date the Trust sends the Deferral Notice to the date the Registration Statement and relevant Prospectus are no longer unavailable to make sales of the securities is known as the “ Deferral Period ”;

 

(k)                                  If reasonably requested by a Qualified Holder or any underwriter participating in any disposition of Registrable Securities, if any, in writing in connection with a disposition by such Qualified Holder of Registrable Securities pursuant to a Registration Statement, make reasonably available for inspection during normal business hours by representatives of such Qualified Holders of such Registrable Securities (including any broker-dealers, underwriters, attorneys and accountants retained by such Qualified Holders, and any attorneys or other agents retained by a broker-dealer or underwriter engaged by such Qualified Holders), all relevant financial and other records and pertinent documents and properties of the Trust, and cause the appropriate employees and agents of the Trust to make reasonably available for inspection during normal business hours on reasonable notice all relevant information reasonably requested by such representatives in each case as is customary for similar “due diligence” examinations; provided , that (i) the Trust shall not be obligated to make available for inspection any information that, based on the reasonable advice of counsel to the Trust, could subject the Trust to the loss of privilege with respect thereto and (ii) such persons shall first agree in writing with the Trust that any information that is reasonably designated by the Trust as confidential at the time of delivery of such information shall be kept confidential by such persons and shall be used solely for the purposes of exercising rights under this Agreement, unless (a) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (b) disclosure of such information is required by

 

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law (including any disclosure requirements pursuant to federal securities laws in connection with the filing of any Registration Statement or the use of any Prospectus referred to in this Agreement) or (c) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by any such person; and provided, further , that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of all the Qualified Holders and the other parties entitled thereto by Special Counsel, if any, or another representative selected by the Qualified Holders holding a majority of Registrable Securities being registered pursuant to such Registration Statement. Any person legally compelled or required by administrative or court order or by a regulatory authority to disclose any such confidential information made available for inspection shall provide the Trust with prompt prior written notice of such requirement so that the Trust may seek a protective order or other appropriate remedy;

 

(l)                                      Use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to the Trust’s unitholders earnings statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) for a 12-month period commencing on the first day of the first fiscal quarter of the Trust commencing after the effective date of a Registration Statement, which statements shall be made available no later than the next succeeding Business Day after such statements are required to be filed with the SEC;

 

(m)                              Cooperate with each Qualified Holder and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities sold or to be sold pursuant to a Registration Statement, which certificates shall not bear any restrictive legends stating that the Registrable Securities evidenced by the certificates are “restricted securities” (as defined by Rule 144), and cause such Registrable Securities to be registered in such names as such Qualified Holder or the managing underwriters, if any, may request in writing at least two (2) Business Days prior to any sale of such Registrable Securities;

 

(n)                                  Provide a CUSIP number for all Registrable Securities covered by each Registration Statement not later than the effective date of such Registration Statement;

 

(o)                                  Cooperate with and assist each Qualified Holder, the Special Counsel and any underwriters participating in any disposition of Registrable Securities in preparing any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“ FINRA ”) in connection with the filing or effectiveness of any Registration Statement, any post-effective amendment thereto or any offer or sale of Registrable Securities thereunder;

 

(p)                                  In the case of a proposed sale pursuant to a Registration Statement involving an underwritten offering, enter into such customary agreements (including, if requested, an underwriting agreement in reasonably customary form containing standard representations, warranties, covenants and indemnities of the Trust similar to those representations and warranties, covenants and indemnities given by issuers of securities in underwritten offerings of securities) and take all such other action, if any, as Qualified Holders holding a majority of the Registrable Securities being sold or any managing underwriters reasonably shall request in order to facilitate any disposition of the Registrable Securities

 

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pursuant to such Registration Statement, including using reasonable best efforts to cause (i) its counsel to deliver an opinion or opinions in reasonably customary form, (ii) its officers to execute and deliver all customary documents and certificates on behalf of the Trust and (iii) its independent public accountants and independent reserve engineers to provide a comfort letters in reasonably customary form;

 

(q)                                 Use reasonable best efforts to support the marketing of the Registrable Securities covered by the Registration Statement;

 

(r)                                    Upon either (i) the filing of any Registration Statement or (ii) the effectiveness of any Registration Statement, announce the same, in each case by press release disseminated by means of a widely used wire service or similar method; and

 

(s)                                   Use reasonable best efforts to cause all Registrable Securities covered by a Demand Registration to be listed on each securities exchange on which similar securities issued by the Trust are listed or traded.

 

SECTION 4.                            Qualified Holder’s Obligations .

 

(a)                                 Each Qualified Holder agrees that if such Qualified Holder wishes to sell Registrable Securities pursuant to a Registration Statement and related Prospectus, it will do so only in accordance with this Agreement. The Trust may require each Qualified Holder selling Registrable Securities as to which any registration is being effected to furnish to the Trust in writing such information required in connection with such registration regarding such seller and the distribution of such Registrable Securities as the Trust may, from time to time, reasonably request in writing (the “ Required Information ”) and the Trust may exclude from such registration the Registrable Securities of any seller who fails to furnish such information within a reasonable time after receiving such request. In addition, following the date that a Registration Statement is declared effective, each Qualified Holder wishing to sell Registrable Securities pursuant to a Registration Statement and related Prospectus agrees to deliver, promptly upon written request by the Trust, any additional information (which additional information shall be deemed part of the Required Information) the Trust may reasonably request to complete or amend the information required by any Registration Statement.

 

(b)                                 Each Qualified Holder agrees, by acquisition of the Registrable Securities, that no Qualified Holder shall be entitled to sell any of such Registrable Securities pursuant to a Registration Statement or to receive a Prospectus relating thereto unless such Qualified Holder has furnished the Trust with (i) the Required Information, (ii) any information required to be disclosed in order to make the information previously furnished to the Trust by such Qualified Holder not misleading and (iii) any other information regarding such Qualified Holder and the distribution of such Registrable Securities as the Trust may from time to time reasonably request. The sale of any Registrable Securities by any Qualified Holder shall constitute a representation and warranty by such Qualified Holder that the information relating to such Qualified Holder and its plan of distribution is as set forth in the Prospectus delivered by such Qualified Holder in connection with such disposition, that such Prospectus does not as of the time of such sale contain any untrue statement of a material fact relating to or provided by such Qualified Holder or its plan of distribution and that such Prospectus does not as of the time of such sale omit to

 

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state any material fact relating to or provided by such Qualified Holder or its plan of distribution necessary in order to make the statements in such Prospectus, in the light of the circumstances under which they were made, not misleading.

 

SECTION 5.                            Registration Expenses . The relevant Qualified Holder(s) shall bear all out-of-pocket fees and expenses incurred by the Trust in connection with the performance of its obligations under Sections 2 and 3 of this Agreement whether or not any Registration Statement is declared effective. Such fees and expenses shall include, without limitation, (i) all registration and filing fees (including fees and expenses incurred with respect to (x) filings required to be made with FINRA and (y) compliance with federal and state securities or Blue Sky laws (including reasonable fees and disbursements of the Special Counsel, if any, in connection with Blue Sky qualifications of the Registrable Securities under the laws of such jurisdictions as Qualified Holders holding a majority of the Registrable Securities being sold pursuant to a Registration Statement may designate)), (ii) printing expenses (including expenses of printing certificates for Registrable Securities in a form eligible for deposit with The Depository Trust Company), (iii) duplication expenses relating to copies of any Registration Statement or Prospectus delivered to any Qualified Holders hereunder, (iv) fees and disbursements of counsel for the Trust and the Special Counsel, if any, in connection with any Registration Statement, (v) fees of accountants and reserve engineers for consents and comfort letters and (vi) fees and expenses incurred in connection with the listing by the Trust of the Registrable Securities on any securities exchange on which similar securities of the Trust are then listed. However, the Trust shall pay the internal expenses of the Trust (including all salaries and expenses of employees and agents performing legal or accounting duties), the expense of any annual audit and annual reserve report and the other fees and expenses of the accountants and independent reserve engineers for the Trust not covered by clause (v) of the preceding sentence, other than any expense that would not have otherwise been incurred but for the fact of the filing of the Registration Statement or the timing thereof, the fees and expenses of any person, including special experts, retained by the Trust and the fees and expenses of any transfer agent for the Registrable Securities. Notwithstanding the provisions of this Section 5, each seller of Registrable Securities shall pay its own selling expenses, including any underwriting discount and commissions, all registration expenses to the extent required by applicable law and, except as otherwise provided herein, fees and expenses of counsel.

 

SECTION 6.                            Indemnification and Contribution .

 

(a)                                 Indemnification by the Trust . The Trust shall indemnify and hold harmless SandRidge, each Qualified Holder and each person, if any, who controls SandRidge or any Qualified Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including any reasonable legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) (“ Expenses ”) to which SandRidge, any Qualified Holder or any controlling person of SandRidge or any Qualified Holder may become subject, under or with respect to the Securities Act, the Exchange Act, any other federal or state securities law or otherwise, insofar as such Expenses are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement at the date and time as of which such Registration Statement was declared effective by the SEC, any preliminary Prospectus or the Prospectus, or caused by any omission or alleged omission to state therein a

 

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material fact required to be stated therein or necessary in order to make the statements therein (in the case of a preliminary Prospectus or Prospectus, in light of the circumstances under which they were made), not misleading, but in each case only with respect to written information relating to the Trust furnished by or on behalf of the Trust specifically for inclusion in the documents referred to in the foregoing indemnity. Subject to Section 6(e) of this Agreement, the Trust shall reimburse SandRidge, the Qualified Holders and, in each case, any controlling persons thereof for any legal or other expenses reasonably incurred by SandRidge, the Qualified Holders or, in each case, any controlling persons thereof in connection with the investigation or defense of any Expenses with respect to which SandRidge and the Qualified Holders or any controlling persons thereof are entitled to indemnity by the Trust under this Agreement.

 

(b)                                 Indemnification by SandRidge . SandRidge shall indemnify and hold harmless each Qualified Holder (other than SandRidge and SandRidge E&P), the Trust and the Trustee and any agents thereof, individually and as trustee, as the case may be, and each person, if any, who controls such Qualified Holder, the Trust or the Trustee within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any Expenses (excluding, however, any taxes, fees and other charges payable by the Trust on, based on or measured by any fees, commissions or compensation received by the Trust for its services under this Agreement) to which such Qualified Holder, the Trust, the Trustee or any agent thereof or any controlling person of such Qualified Holder, the Trust or the Trustee may become subject, under or with respect to the Securities Act, the Exchange Act, any other federal or state securities law or otherwise, insofar as such Expenses are caused by (i) an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or an omission or alleged omission to state a material fact required to be stated in or necessary to make the statements therein not misleading at the date and time as of which such Registration Statement was declared effective by the SEC, (ii) an untrue statement or alleged untrue statement of a material fact contained in any preliminary Prospectus or any Prospectus or an omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading as of the date of such preliminary Prospectus or Prospectus and as of the closing of the sale of Trust Units sold thereunder or (iii) any untrue statement or alleged untrue statement of a material fact contained in any other filing, report or other action taken with respect to the Securities Act, the Exchange Act or any other federal or state securities law, the listing of the Trust Units on the New York Stock Exchange or another national securities exchange or any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, that SandRidge shall not be liable to and shall not indemnify the Qualified Holders (other than SandRidge and SandRidge E&P), the Trust, the Trustee or any agents or controlling persons thereof, individually or as trustee, as the case may be, in any such case under the preceding clauses (i) and (ii) of this Section 6(b) to the extent that any such Expense arises out of, is based upon or is connected with information relating to (a) the Trust in its individual capacity or (b) such Qualified Holder, in either case prepared or furnished by the Trust or such Qualified Holder, as the case may be, expressly for use in any Registration Statement, any preliminary Prospectus or any Prospectus; and provided, further , that SandRidge shall not be liable to the Qualified Holders (other than SandRidge and SandRidge E&P), the Trust or any agents or controlling persons thereof, individually or as trustee, as the case may be, in any such case under the preceding clause (iii) of this Section 6(b) to the extent that any such Expense arises out of, is based upon or is connected with information relating to (a) the Trust in its

 

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individual capacity prepared or furnished by the Trust and the Trust is found liable or (b) such Qualified Holder prepared or furnished by such Qualified Holder and such Qualified Holder is found liable. Subject to Section 6(e) of this Agreement, SandRidge shall reimburse the Qualified Holders (other than SandRidge and SandRidge E&P), the Trust and the Trustee and any agents or controlling persons thereof for any legal or other expenses reasonably incurred by the Qualified Holders (other than SandRidge and SandRidge E&P), the Trust and the Trustee or any agent or controlling persons thereof in connection with the investigation or defense of any Expenses with respect to which the Qualified Holders (other than SandRidge and SandRidge E&P), the Trust and the Trustee or any agent or controlling persons thereof is entitled to indemnity by SandRidge under this Agreement.

 

(c)                                  Indemnification by Certain of the Qualified Holders . Each Qualified Holder (other than SandRidge), severally and not jointly, shall indemnify and hold harmless SandRidge, the Trust, the Trustee and any agents thereof, individually and as trustee, and any other Qualified Holder and each person, if any, who controls SandRidge, the Trust, the Trustee and any agents thereof, individually and as trustee, or any other Qualified Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all Expenses to which SandRidge, the Trust, the Trustee and any agents thereof, individually and as trustee, any other Qualified Holder or any controlling person of SandRidge, the Trust, the Trustee and any agents thereof, individually and as trustee, or any other Qualified Holder may become subject, under or with respect to the Securities Act, the Exchange Act, any other federal or state securities law or otherwise, insofar as such Expenses are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement at the date and time as of which such Registration Statement was declared effective by the SEC, any preliminary Prospectus or the Prospectus, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein (in the case of a preliminary Prospectus or Prospectus, in light of the circumstances under which they were made), not misleading, but in each case only with respect to written information relating to such Qualified Holder (other than SandRidge) furnished by or on behalf of such Qualified Holder specifically for inclusion in the documents referred to in the foregoing indemnity. Subject to Section 6(e) of this Agreement, such Qualified Holder shall reimburse SandRidge, the Trust, the Trustee and any agents thereof, individually and as trustee, the other Qualified Holders and any agents or controlling persons thereof for any legal or other expenses reasonably incurred by SandRidge, the Trust, the Trustee and any agents thereof, individually and as trustee, the other Qualified Holders or any agent or controlling persons thereof in connection with the investigation or defense of any Expenses with respect to which SandRidge, the Trust, the Trustee and any agents thereof, individually and as trustee, and the other Qualified Holders or any agent or controlling persons thereof is entitled to indemnity by such Qualified Holder under this Agreement.

 

(d)                                 Conduct of Indemnification Proceedings . If any proceeding (including any governmental investigation) is instituted involving any person in respect of which indemnification may be sought pursuant to Sections 6(a), 6(b) or 6(c) hereof, such person (the “ Indemnified Party ”) shall promptly notify the person against whom such indemnity may be sought (the “ Indemnifying Party ”) in writing and the Indemnifying Party, upon the request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and any other persons the Indemnifying Party may designate in

 

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such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be incurred at the expense of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, other than solely by virtue of the rights and obligations of the Indemnifying Party and the Indemnified Party under this Section 6. It is understood that the Indemnifying Party shall not, in respect of the legal expenses of any Indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such Indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by, in the case of parties indemnified pursuant to Section 6(a), the Qualified Holders holding a majority of the Registrable Securities covered by the Registration Statement held by Qualified Holders that are indemnified parties pursuant to Section 6(a) and, in the case of parties indemnified pursuant to Section 6(b) or Section 6(c), the Trust. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final, non-appealable judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any Expenses by reason of such settlement or judgment. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding.

 

(e)                                  Contribution . To the extent that the indemnification provided for in Sections 6(a), 6(b) or 6(c) is unavailable to an Indemnified Party or insufficient in respect of any Expenses referred to therein, then each Indemnifying Party under such paragraph, in lieu of indemnifying such Indemnified Party thereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Indemnifying Party or Indemnifying Parties on the one hand and the Indemnified Party or Indemnified Parties on the other hand or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Indemnifying Party or Indemnifying Parties on the one hand and of the Indemnified Party or Indemnified Parties on the other hand in connection with the statements or omissions that resulted in such Expenses, as well as any other relevant equitable considerations. The relative fault of SandRidge and the other Qualified Holders on the one hand and the Trust on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact required to be stated or necessary in order to make the statements (in the case of a preliminary Prospectus or Prospectus, in light of the circumstances under which they were made) not misleading, relates to information supplied by SandRidge, the other Qualified Holders or by the Trust, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Qualified Holders’ respective obligations to

 

15



 

contribute pursuant to this Section 6 are several in proportion to the respective number of Registrable Securities they have sold pursuant to a Registration Statement, and not joint.

 

The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6(e) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Party as a result of the Expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

 

(f)                                   The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to an Indemnified Party at law or in equity, hereunder or otherwise.

 

(g)                                  The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Qualified Holder, any person controlling SandRidge or any other Qualified Holder or any Affiliate of SandRidge or any other Qualified Holder or by or on behalf of the Trust, its employees or agents or any person controlling the Trust and (iii) the sale of any Registrable Securities by any Qualified Holder.

 

SECTION 7.                            Information Requirements . The Trust covenants that, if at any time before the end of the Effective Period the Trust is not subject to the reporting requirements of the Exchange Act, it will cooperate with any Qualified Holder and take such further reasonable action as any Qualified Holder may reasonably request in writing (including making such reasonable representations as any such Qualified Holder may reasonably request), to enable such Qualified Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 or Rule 144A under the Securities Act and customarily taken in connection with sales pursuant to such exemptions. Upon the written request of any Qualified Holder, the Trust shall deliver to such Qualified Holder a written statement as to whether the Trust has complied with such filing requirements. Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to require the Trust to register any of the Trust’s securities under any section of the Exchange Act.

 

SECTION 8.                            Underwritten Registrations . Qualified Holders of Registrable Securities covered by any Registration Statement may sell such Registrable Securities to an underwriter in an underwritten offering for reoffering to the public. If any of the Registrable Securities covered by any Registration Statement are to be sold in an underwritten offering, the underwriters that will administer the offering will be selected by the Qualified Holders holding a majority of such Registrable Securities included in such offering, subject to the consent of the Trust (which shall not be unreasonably withheld or delayed), and such Qualified Holders shall be responsible for all underwriting commissions and discounts and any transfer taxes in connection therewith. No person may participate in any underwritten registration hereunder unless such person (i) agrees to sell such person’s Registrable Securities on the basis reasonably provided in any underwriting

 

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arrangements approved by the persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.

 

SECTION 9.                            Miscellaneous .

 

(a)                                 Amendments and Waivers . The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, without the written consent of the Trust, SandRidge and Qualified Holders holding a majority of Registrable Securities. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Qualified Holders whose securities are being sold pursuant to a Registration Statement and that does not directly or indirectly affect the rights of other Qualified Holders may be given by Qualified Holders of at least a majority of the Registrable Securities being sold by such Qualified Holders pursuant to such Registration Statement; provided , that the provisions of this sentence may not be amended, modified or supplemented except in accordance with the provisions of the immediately preceding sentence. Notwithstanding the foregoing, this Agreement may be amended by written agreement signed by the Trust, without the consent of the Qualified Holders of Registrable Securities, to cure any ambiguity or to correct or supplement any provision contained herein that may be defective or inconsistent with any other provision contained herein, or to make such other provisions in regard to matters or questions arising under this Agreement that shall not adversely affect the interests of the Qualified Holders of Registrable Securities. Each Qualified Holder of Registrable Securities outstanding at the time of any such amendment, modification, supplement, waiver or consent or thereafter shall be bound by any such amendment, modification, supplement, waiver or consent effected pursuant to this Section 9(a), whether or not any notice, writing or marking indicating such amendment, modification, supplement, waiver or consent appears on the Registrable Securities or is delivered to such Qualified Holder.

 

(b)                                 Notices . All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, by facsimile, by courier guaranteeing overnight delivery or by first-class mail, return receipt requested, and shall be deemed given (i) when made, if made by hand delivery, (ii) upon confirmation, if made by facsimile, (iii) one (1) Business Day after being deposited with such courier, if made by overnight courier or (iv) on the date indicated on the notice of receipt, if made by first-class mail, to the parties as follows:

 

(i)                                     if to a Qualified Holder other than SandRidge or SandRidge E&P, at the most current address of such Qualified Holder on file with the Trust;

 

if to the Trust or the Trustee, to:

 

SandRidge Mississippian Trust II

c/o The Bank of New York Mellon Trust Company, N.A.

Institutional Trust Services

919 Congress Avenue, Suite 500

Austin, Texas 78701

 

17



 

Attention: Michael J. Ulrich

Facsimile No.: (512) 479-2253

 

with a copy to:

 

Bracewell & Giuliani LLP

111 Congress Avenue

Suite 2300

Austin, Texas 78701

Attention: Thomas W. Adkins

Fax: (512) 479-3940

 

if to SandRidge or SandRidge E&P, to:

 

SandRidge Energy, Inc.

123 Robert S. Kerr Avenue

Oklahoma City, OK 73102-6406

Attention: Philip T. Warman

Facsimile No.: (405) 429-5983

 

with a copy to:

 

Covington & Burling LLP

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Attention: David H. Engvall

Facsimile No. (202) 778 5307

 

or to such other address as such person may have furnished to the other persons identified in this Section 9(b) in writing in accordance herewith.

 

(c)                                  Approval of Qualified Holders . Whenever the consent or approval of Qualified Holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities held by Affiliates of the Trust (other than SandRidge, SandRidge E&P or other Qualified Holders if such Qualified Holders are deemed to be Affiliates of the Trust solely by reason of their holding of such Registrable Securities) shall not be counted in determining whether such consent or approval was given by the Qualified Holders of such required percentage.

 

(d)                                 Successors and Assigns . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns (including Transferees); provided , that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms hereof. The Registrable Securities acquired by Transferees shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities, each such Transferee shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such person shall be entitled to receive the benefits hereof.

 

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(e)                                  No Third-Party Beneficiaries . This Agreement is for the sole benefit of the parties hereto, SandRidge E&P, and their respective successors and permitted assigns (including Transferees) and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

 

(f)                                   Counterparts . This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

 

(g)                                  Construction .  Section and subsection references in this Agreement are references to the corresponding Section and subsection to this Agreement, unless otherwise specified.  If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb).  Unless the context of this Agreement clearly requires otherwise, the singular shall include the plural and the plural shall include the singular wherever and as often as may be appropriate.  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 “includes” or “including” shall mean “including but not limited to” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.  Any reference in this Agreement to “$” or “dollars” shall mean the lawful currency of the United States of America.  When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded.  If the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day.  The words “hereof,” “hereby,” “herein,” “hereinafter,” “hereof,” “hereunder” and similar terms refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.  All accounting terms or calculations used or made herein shall be in accordance with the generally accepted accounting principles of the United States. The division of this Agreement into Sections and other subdivisions are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement.

 

(h)                                 Governing Law . THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

(i)                                     Severability . If any term, provision, covenant or restriction of this Agreement is held to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, and the parties hereto shall use their reasonable best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction, it being intended that all of the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law.

 

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(j)                                    Entire Agreement . This Agreement is intended by the parties as a final expression of their agreement and is intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the registration rights granted by the Trust with respect to the Registrable Securities. There are no restrictions, promises, understandings, warranties or undertakings, other than those set forth or referred to herein, with respect to the registration rights granted by the Trust with respect to the Registrable Securities. This Agreement supersedes all prior agreements and undertakings among the parties with respect to such registration rights.

 

(k)                                 Termination . This Agreement and the obligations of the parties hereunder shall terminate upon the end of the Effective Period, except for any liabilities or obligations under Sections 4, 5 and 6 hereof, each of which shall remain in effect in accordance with its terms.

 

(l)                                     Specific Enforcement; Venue . The parties hereto acknowledge and agree that each would be irreparably damaged if any of the provisions of this Agreement are not performed by the other in accordance with their specific terms or are otherwise breached. It is accordingly agreed that each party shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement by the other and to enforce this Agreement and the terms and provisions hereof specifically against the other, in addition to any other remedy to which such aggrieved party may be entitled at law or in equity. Any action or proceeding seeking to enforce any provision of, or based on any rights arising out of, this Agreement may be brought against any of the parties in the federal and Oklahoma state courts sitting in Oklahoma City, Oklahoma and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world.

 

(m)                             Limitation of Liability. It is expressly understood and agreed by the Parties hereto that (i) this Agreement is executed and delivered by the Trustee not individually or personally, but solely as Trustee in the exercise of the powers and authority conferred and vested in it and (ii) under no circumstances shall the Trustee be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Agreement.

 

[Signature page follows]

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

 

 

SandRidge Mississippian Trust II

 

 

 

By: The Bank of New York Mellon Trust Company, N.A., as Trustee

 

 

 

By:

/s/ Michael J. Ulrich

 

 

Name: Michael J. Ulrich

 

 

Title: Vice President

 

 

[ Signature page to Registration Rights Agreement ]

 



 

 

SandRidge Energy, Inc.

 

 

 

By:

/s/ Matthew K. Grubb

 

 

Name: Matthew K. Grubb

 

 

Title: President and Chief Operating Officer

 

 

[ Signature page to Registration Rights Agreement ]

 


Exhibit 10.17

 

Execution Copy

 

ISDA®

 

International Swaps and Derivatives Association, Inc.

 

NOVATION AGREEMENT

 

dated as of April 23, 2012  among:

 

BARCLAYS BANK PLC (the “ Remaining Party ”),
SANDRIDGE ENERGY, INC. (the “ Transferor ”)

 

AND

 

SANDRIDGE MISSISSIPPIAN TRUST II (the “ Transferee ”).

 

The Transferor and the Remaining Party have entered into one or more Transactions as identified in the attached Annex A-2 (each an “ Old Transaction ”), each evidenced by a Confirmation (an “ Old Confirmation ”) attached hereto subject to an ISDA Master Agreement dated as of November 16, 2007 (the “ Old Agreement ”).

 

The Remaining Party and the Transferee have entered into an ISDA Master Agreement dated as of April 23, 2012 (the “ New Agreement ”).

 

With effect from and including April 1, 2012 (the “ Novation Date ”) the Transferor wishes to transfer by novation to the Transferee, and the Transferee wishes to accept the transfer by novation of, all the rights, liabilities, duties and obligations of the Transferor under and in respect of the Old Transactions insofar as they cover the volumes identified in the attached Annex A-1 (the “ Transferred Volumes ”), with the effect that the Remaining Party and the Transferee enter into new transactions (each a “ New Transaction ”) between them and otherwise having economic terms identical to those of the Old Transactions to the extent of the Transferred Volumes, as more particularly described below.  The daily Notional Quantity for each New Transaction shall bear the same relationship to the total Notional Quantity as the daily Notional Quantity of the related Old Transaction bears to the total Notional Quantity of the Old Transaction.

 

The Remaining Party wishes to accept the Transferee as its sole counterparty with respect to the New Transactions.

 

The Transferor and the Remaining Party wish to have released and discharged, as a result and to the extent of the transfer described above, their respective obligations under and in respect of the Old Transactions, only with respect to the Transferred Volumes.

 

Accordingly, the parties agree as follows: —

 

1.      Definitions.

 

Terms defined in the ISDA Master Agreement as published in 2002 by the International Swaps and Derivatives Association, Inc., (the “ 2002 ISDA Master Agreement ”) are used herein as so defined, unless otherwise provided herein.

 

2.      Transfer, Release, Discharge and Undertakings.

 

With effect from and including the Novation Date and in consideration of the mutual representations, warranties and covenants contained in this Novation Agreement and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the parties) and limited, in each case, to the extent they relate to the Transferred Volumes:

 



 

(a)             the Remaining Party and the Transferor are each released and discharged from further obligations to each other with respect to the Old Transactions (insofar as they relate to the Transferred Volumes) and their respective rights against each other thereunder are cancelled, provided that such release and discharge shall not affect any rights, liabilities or obligations of the parties existing on or prior to the Novation Date and remaining unpaid or unperformed on the Novation Date, and all such payments and obligations shall be paid or performed by the Remaining Party or the Transferor in accordance with the terms of the Old Transaction;

 

(b)              in respect of the New Transactions, the Remaining Party and the Transferee each undertake liabilities and obligations towards the other and acquire rights against each other identical to those liabilities, obligations and rights corresponding to each Old Transaction insofar as they relate to the Transferred Volumes (and, for the avoidance of doubt, as if the Transferee were the Transferor and with the Remaining Party remaining the Remaining Party, save for any rights, liabilities or obligations with respect to payments or other obligations due and payable or due to be performed between the Remaining Party and the Transferor on or prior to the Novation Date); and

 

(c)              each New Transaction shall be governed by and form part of the New Agreement and the relevant Old Confirmation (which, in conjunction and as deemed modified consistent with this Novation Agreement to include only the Transferred Volumes, shall be deemed to be a Confirmation between the Remaining Party and the Transferee), and the offices of the Remaining Party and the Transferee for purposes of each New Transaction shall be the New York office and Austin, Texas office, respectively.  The Old Confirmations shall be deemed modified consistent with this Novation Agreement to exclude the Transferred Volumes.

 

3.      Representations and Warranties.

 

(a)             On the date of this Novation Agreement and on the Novation Date:

 

(i)          Each of the parties makes to each of the other parties those representations and warranties set forth in Section 3(a) of the 2002 ISDA Master Agreement with references in such Section to “this Agreement” or “any Credit Support Document” being deemed references to this Novation Agreement alone.

 

(ii)         The Remaining Party and the Transferor each makes to the other, and the Remaining Party and the Transferee each makes to the other, the representation set forth in Section 3(b) of the 2002 ISDA Master Agreement, in each case with respect to the Old Agreement or the New Agreement, as the case may be, and taking into account the parties entering into and performing their obligations under this Novation Agreement.

 

(iii)       Each of the Transferor and the Remaining Party represents and warrants to each other and to the Transferee that:

 

(A)        it has made no prior transfer (whether by way of security or otherwise) of the Old Agreement or any interest or obligation in or under the Old Agreement or in respect of the Old Transactions; and

 

(B)        as of the Novation Date, all obligations of the Transferor and the Remaining Party under the Old Transactions required to be performed on or before the Novation Date have been fulfilled.

 

(b)             The Transferor makes no representation or warranty and does not assume any responsibility with respect to the legality, validity, effectiveness, adequacy or enforceability of any New Transaction or the New Agreement or any documents relating thereto and assumes no responsibility for the condition, financial or otherwise, of the Remaining Party, the Transferee or any other person or for the performance and observance by the Remaining Party, the Transferee or any other person of any of its obligations under any New Transaction or the New Agreement or any document relating

 

2



 

thereto and any and all such conditions and warranties, whether express or implied by law or otherwise, are hereby excluded.

 

4.      Counterparts.

 

This Novation Agreement (and each amendment, modification and waiver in respect of it) may be executed and delivered in counterparts (including by facsimile transmission), each of which will be deemed an original.

 

5.      Costs and Expenses.

 

The parties will each pay their own costs and expenses (including legal fees) incurred in connection with this Novation Agreement and as a result of the negotiation, preparation and execution of this Novation Agreement.

 

6.      Amendments.

 

No amendment, modification or waiver in respect of this Novation Agreement will be effective unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties or confirmed by an exchange of telexes or electronic messages on an electronic messaging system.

 

7.      (a)    Governing Law.

 

This Novation Agreement will be governed by and construed in accordance with the laws of the State of New York without reference to the conflict of laws provisions thereof.

 

(b)    Jurisdiction.

 

The terms of Section 13(b) of the 2002 ISDA Master Agreement shall apply to this Novation Agreement with references in such Section to “this Agreement” being deemed references to this Novation Agreement alone.

 

3



 

IN WITNESS WHEREOF the parties have executed this Novation Agreement on the respective dates specified below with effect from and including the Novation Date.

 

 

BARCLAYS BANK PLC

SANDRIDGE ENERGY, INC.

 

      (Name of Remaining Party)

 

   (Name of Transferor)

 

 

 

 

 

 

 

 

By:

/s/ Troy Black

 

By:

/s/ Matthew K. Grubb

 

Name:

Troy Black

 

Name:

Matthew K. Grubb

 

Title:

Managing Director

 

Title:

President and Chief Operating Officer

 

Date:

April 20, 2012

 

Date:

April 23, 2012

 

 

 

 

 

 

 

 

SANDRIDGE MISSISSIPPIAN TRUST II

 

 

 

   (Name of Transferee)

 

 

 

 

 

 

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

 

 

Name:

Michael J. Ulrich

 

 

 

Title:

Vice President

 

 

 

Date:

April 23, 2012

 

 

 

4



 

ANNEX A-1

 

Confirmation
Reference No.

 

Period Covered

 

Transferred Volumes
(Bbls)

 

Volumes Remaining in
the Old Transaction
(Bbls)

 

29082229

 

4/1/2012-6/30/2012

 

75,860

 

38,117.5

 

29082229

 

7/1/2012-9/30/2012

 

76,694

 

38,536

 

29082229

 

10/1/2012-12/31/2012

 

76,694

 

38,536

 

29082289

 

1/1/2013-3/31/2013

 

55,000

 

75,500

 

29082289

 

4/1/2013-6/30/2013

 

55,612

 

76,338

 

29082289

 

7/1/2013-9/30/2013

 

56,223

 

77,177

 

29082289

 

10/1/2013-12/31/2013

 

56,223

 

77,177

 

29242099

 

1/1/2014-3/31/2014

 

42,280

 

70,220

 

29242099

 

4/1/2014-6/30/2014

 

42,280

 

70,220

 

29242099

 

7/1/2014-9/30/2014

 

42,280

 

70,220

 

29242099

 

10/1/2014-12/31/2014

 

42,280

 

70,220

 

 

5



 

Annex A-2

 

Old Confirmations

 

[See attached]

 

6


Exhibit 10.18

 

Execution Copy

 

ISDA®

 

International Swaps and Derivatives Association, Inc.

 

NOVATION AGREEMENT

 

dated as of April 23, 2012  among:

 

CITIBANK, N.A. (the “ Remaining Party ”),
SANDRIDGE ENERGY, INC. (the “ Transferor ”)

 

AND

 

 

SANDRIDGE MISSISSIPPIAN TRUST II (the “ Transferee ”).

 

The Transferor and the Remaining Party have entered into one or more Transactions as identified in the attached Annex A-2 (each an “ Old Transaction ”), each evidenced by a Confirmation (an “ Old Confirmation ”) attached hereto subject to an ISDA Master Agreement dated as of October 1, 2011 (the “ Old Agreement ”).

 

The Remaining Party and the Transferee have entered into an ISDA Master Agreement dated as of April 23, 2012 (the “ New Agreement ”).

 

With effect from and including April 1, 2012 (the “ Novation Date ”) the Transferor wishes to transfer by novation to the Transferee, and the Transferee wishes to accept the transfer by novation of, all the rights, liabilities, duties and obligations of the Transferor under and in respect of the Old Transactions insofar as they cover the volumes identified in the attached Annex A-1 (the “ Transferred Volumes ”), with the effect that the Remaining Party and the Transferee enter into new transactions (each a “ New Transaction ”) between them and otherwise having economic terms identical to those of the Old Transactions to the extent of the Transferred Volumes, as more particularly described below.  The daily Notional Quantity for each New Transaction shall bear the same relationship to the total Notional Quantity as the daily Notional Quantity of the related Old Transaction bears to the total Notional Quantity of the Old Transaction.

 

The Remaining Party wishes to accept the Transferee as its sole counterparty with respect to the New Transactions.

 

The Transferor and the Remaining Party wish to have released and discharged, as a result and to the extent of the transfer described above, their respective obligations under and in respect of the Old Transactions, only with respect to the Transferred Volumes.

 

Accordingly, the parties agree as follows: —

 

1.               Definitions.

 

Terms defined in the ISDA Master Agreement as published in 2002 by the International Swaps and Derivatives Association, Inc., (the “ 2002 ISDA Master Agreement ”) are used herein as so defined, unless otherwise provided herein.

 

2.               Transfer, Release, Discharge and Undertakings.

 

With effect from and including the Novation Date and in consideration of the mutual representations, warranties and covenants contained in this Novation Agreement and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the parties) and limited, in each case, to the extent they relate to the Transferred Volumes:

 



 

(a)                                     the Remaining Party and the Transferor are each released and discharged from further obligations to each other with respect to the Old Transactions (insofar as they relate to the Transferred Volumes) and their respective rights against each other thereunder are cancelled, provided that such release and discharge shall not affect any rights, liabilities or obligations of the parties existing on or prior to the Novation Date and remaining unpaid or unperformed on the Novation Date, and all such payments and obligations shall be paid or performed by the Remaining Party or the Transferor in accordance with the terms of the Old Transaction;

 

(b)                                        in respect of the New Transactions, the Remaining Party and the Transferee each undertake liabilities and obligations towards the other and acquire rights against each other identical to those liabilities, obligations and rights corresponding to each Old Transaction insofar as they relate to the Transferred Volumes (and, for the avoidance of doubt, as if the Transferee were the Transferor and with the Remaining Party remaining the Remaining Party, save for any rights, liabilities or obligations with respect to payments or other obligations due and payable or due to be performed between the Remaining Party and the Transferor on or prior to the Novation Date); and

 

(c)                                         each New Transaction shall be governed by and form part of the New Agreement and the relevant Old Confirmation (which, in conjunction and as deemed modified consistent with this Novation Agreement to include only the Transferred Volumes, shall be deemed to be a Confirmation between the Remaining Party and the Transferee), and the offices of the Remaining Party and the Transferee for purposes of each New Transaction shall be the New York office and Austin, Texas office, respectively.  The Old Confirmations shall be deemed modified consistent with this Novation Agreement to exclude the Transferred Volumes.

 

3.               Representations and Warranties.

 

(a)                                        On the date of this Novation Agreement and on the Novation Date:

 

(i)

Each of the parties makes to each of the other parties those representations and warranties set forth in Section 3(a) of the 2002 ISDA Master Agreement with references in such Section to “this Agreement” or “any Credit Support Document” being deemed references to this Novation Agreement alone.

 

 

(ii)

The Remaining Party and the Transferor each makes to the other, and the Remaining Party and the Transferee each makes to the other, the representation set forth in Section 3(b) of the 2002 ISDA Master Agreement, in each case with respect to the Old Agreement or the New Agreement, as the case may be, and taking into account the parties entering into and performing their obligations under this Novation Agreement.

 

 

(iii)

Each of the Transferor and the Remaining Party represents and warrants to each other and to the Transferee that:

 

(A)                      it has made no prior transfer (whether by way of security or otherwise) of the Old Agreement or any interest or obligation in or under the Old Agreement or in respect of the Old Transactions; and

 

(B)                      as of the Novation Date, all obligations of the Transferor and the Remaining Party under the Old Transactions required to be performed on or before the Novation Date have been fulfilled.

 

(b)                                     The Transferor makes no representation or warranty and does not assume any responsibility with respect to the legality, validity, effectiveness, adequacy or enforceability of any New Transaction or the New Agreement or any documents relating thereto and assumes no responsibility for the condition, financial or otherwise, of the Remaining Party, the Transferee or any other person or for the performance and observance by the Remaining Party, the Transferee or any other person of any of its obligations under any New Transaction or the New Agreement or any document relating

 

2



 

thereto and any and all such conditions and warranties, whether express or implied by law or otherwise, are hereby excluded.

 

4.               Counterparts.

 

This Novation Agreement (and each amendment, modification and waiver in respect of it) may be executed and delivered in counterparts (including by facsimile transmission), each of which will be deemed an original.

 

5.               Costs and Expenses.

 

The parties will each pay their own costs and expenses (including legal fees) incurred in connection with this Novation Agreement and as a result of the negotiation, preparation and execution of this Novation Agreement.

 

6.               Amendments.

 

No amendment, modification or waiver in respect of this Novation Agreement will be effective unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties or confirmed by an exchange of telexes or electronic messages on an electronic messaging system.

 

7.               (a)           Governing Law.

 

This Novation Agreement will be governed by and construed in accordance with the laws of the State of New York without reference to the conflict of laws provisions thereof.

 

(b)           Jurisdiction.

 

The terms of Section 13(b) of the 2002 ISDA Master Agreement shall apply to this Novation Agreement with references in such Section to “this Agreement” being deemed references to this Novation Agreement alone.

 

3



 

IN WITNESS WHEREOF the parties have executed this Novation Agreement on the respective dates specified below with effect from and including the Novation Date.

 

 

CITIBANK, N.A.

SANDRIDGE ENERGY, INC.

 

      (Name of Remaining Party)

 

   (Name of Transferor)

 

 

 

 

 

 

 

 

By:

/s/ Victoria T. Sharp

 

By:

/s/ Matthew K. Grubb

 

Name:

Victoria T. Sharp

 

 

Name:

Matthew K. Grubb

 

Title:

Vice President, Citibank, N.A.

 

 

Title:

President and Chief Operating Officer

 

Date:

April 23, 2012

 

 

Date:

April 23, 2012

 

 

 

 

 

 

 

 

 

 

SANDRIDGE MISSISSIPPIAN TRUST II

 

 

   (Name of Transferee)

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

 

Name:

Michael J. Ulrich

 

 

 

Title:

Vice President

 

 

 

Date:

April 23, 2012

 

 

 

4



 

ANNEX A-1

 

Confirmation
Reference No.

 

Period Covered

 

Transferred Volumes
(Bbls)

 

Volumes Remaining in
the Old Transaction
(Bbls)

 

11110347

 

4/1/2012-12/31/2012

 

229,247

 

115,190.5

 

11110351

 

1/1/2013-12/31/2013

 

223,059

 

306,191

 

 

5



 

Annex A-2

 

Old Confirmations

 

[See attached]

 

6


Exhibit 10.19

 

Execution Copy

 

ISDA®

International Swaps and Derivatives Association, Inc.

 

NOVATION AGREEMENT

 

dated as of April 23, 2012  among:

 

MORGAN STANLEY CAPITAL GROUP INC. (the “ Remaining Party ”),
SANDRIDGE ENERGY, INC. (the “ Transferor ”)

 

AND

 

SANDRIDGE MISSISSIPPIAN TRUST II (the “ Transferee ”).

 

The Transferor and the Remaining Party have entered into one or more Transactions as identified in the attached Annex A-2 (each an “ Old Transaction ”), each evidenced by a Confirmation (an “ Old Confirmation ”) attached hereto subject to an ISDA Master Agreement dated as of February 22, 2008 (the “ Old Agreement ”).

 

The Remaining Party and the Transferee have entered into an ISDA Master Agreement dated as of April 23, 2012 (the “ New Agreement ”).

 

With effect from and including April 23, 2012 (the “ Novation Date ”) the Transferor wishes to transfer by novation to the Transferee, and the Transferee wishes to accept the transfer by novation of, all the rights, liabilities, duties and obligations of the Transferor under and in respect of the Old Transactions insofar as they cover the volumes identified in the attached Annex A-1 (the “ Transferred Volumes ”), with the effect that the Remaining Party and the Transferee enter into new transactions (each a “ New Transaction ”) between them and otherwise having economic terms identical to those of the Old Transactions to the extent of the Transferred Volumes, as more particularly described below.  The daily Notional Quantity for each New Transaction shall bear the same relationship to the total Notional Quantity as the daily Notional Quantity of the related Old Transaction bears to the total Notional Quantity of the Old Transaction.

 

The Remaining Party wishes to accept the Transferee as its sole counterparty with respect to the New Transactions.

 

The Transferor and the Remaining Party wish to have released and discharged, as a result and to the extent of the transfer described above, their respective obligations under and in respect of the Old Transactions, only with respect to the Transferred Volumes.

 

Accordingly, the parties agree as follows: —

 

1.     Definitions.

 

Terms defined in the ISDA Master Agreement as published in 2002 by the International Swaps and Derivatives Association, Inc., (the “ 2002 ISDA Master Agreement ”) are used herein as so defined, unless otherwise provided herein.

 

2.     Transfer, Release, Discharge and Undertakings.

 

With effect from and including the Novation Date and in consideration of the mutual representations, warranties and covenants contained in this Novation Agreement and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the parties) and limited, in each case, to the extent they relate to the Transferred Volumes:

 



 

(a)                                     the Remaining Party and the Transferor are each released and discharged from further obligations to each other with respect to the Old Transactions (insofar as they relate to the Transferred Volumes) and their respective rights against each other thereunder are cancelled, provided that such release and discharge shall not affect any rights, liabilities or obligations of the parties existing on or prior to the Novation Date and remaining unpaid or unperformed on the Novation Date, and all such payments and obligations shall be paid or performed by the Remaining Party or the Transferor in accordance with the terms of the Old Transaction;

 

(b)                                        in respect of the New Transactions, the Remaining Party and the Transferee each undertake liabilities and obligations towards the other and acquire rights against each other identical to those liabilities, obligations and rights corresponding to each Old Transaction insofar as they relate to the Transferred Volumes (and, for the avoidance of doubt, as if the Transferee were the Transferor and with the Remaining Party remaining the Remaining Party, save for any rights, liabilities or obligations with respect to payments or other obligations due and payable or due to be performed between the Remaining Party and the Transferor on or prior to the Novation Date); and

 

(c)                                         each New Transaction shall be governed by and form part of the New Agreement and the relevant Old Confirmation (which, in conjunction and as deemed modified consistent with this Novation Agreement to include only the Transferred Volumes, shall be deemed to be a Confirmation between the Remaining Party and the Transferee), and the offices of the Remaining Party and the Transferee for purposes of each New Transaction shall be the New York office and Austin, Texas office, respectively.  The Old Confirmations shall be deemed modified consistent with this Novation Agreement to exclude the Transferred Volumes.

 

3.                                       Representations and Warranties.

 

(a)            On the date of this Novation Agreement and on the Novation Date:

 

(i)

 

Each of the parties makes to each of the other parties those representations and warranties set forth in Section 3(a) of the 2002 ISDA Master Agreement with references in such Section to “this Agreement” or “any Credit Support Document” being deemed references to this Novation Agreement alone.

 

 

 

(ii)

 

The Remaining Party and the Transferor each makes to the other, and the Remaining Party and the Transferee each makes to the other, the representation set forth in Section 3(b) of the 2002 ISDA Master Agreement, in each case with respect to the Old Agreement or the New Agreement, as the case may be, and taking into account the parties entering into and performing their obligations under this Novation Agreement.

 

 

 

(iii)

 

Each of the Transferor and the Remaining Party represents and warrants to each other and to the Transferee that:

 

(A)        it has made no prior transfer (whether by way of security or otherwise) of the Old Agreement or any interest or obligation in or under the Old Agreement or in respect of the Old Transactions; and

 

(B)        as of the Novation Date, all obligations of the Transferor and the Remaining Party under the Old Transactions required to be performed on or before the Novation Date have been fulfilled.

 

(b)            The Transferor makes no representation or warranty and does not assume any responsibility with respect to the legality, validity, effectiveness, adequacy or enforceability of any New Transaction or the New Agreement or any documents relating thereto and assumes no responsibility for the condition, financial or otherwise, of the Remaining Party, the Transferee or any other person or for the performance and observance by the Remaining Party, the Transferee or any other person of any of its obligations under any New Transaction or the New Agreement or any document relating

 

2



 

thereto and any and all such conditions and warranties, whether express or implied by law or otherwise, are hereby excluded.

 

4.               Counterparts.

 

This Novation Agreement (and each amendment, modification and waiver in respect of it) may be executed and delivered in counterparts (including by facsimile transmission), each of which will be deemed an original.

 

5.               Costs and Expenses.

 

The parties will each pay their own costs and expenses (including legal fees) incurred in connection with this Novation Agreement and as a result of the negotiation, preparation and execution of this Novation Agreement.

 

6.               Amendments.

 

No amendment, modification or waiver in respect of this Novation Agreement will be effective unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties or confirmed by an exchange of telexes or electronic messages on an electronic messaging system.

 

7.               (a)   Governing Law.

 

This Novation Agreement will be governed by and construed in accordance with the laws of the State of New York without reference to the conflict of laws provisions thereof.

 

(b)           Jurisdiction.

 

The terms of Section 13(b) of the 2002 ISDA Master Agreement shall apply to this Novation Agreement with references in such Section to “this Agreement” being deemed references to this Novation Agreement alone.

 

3



 

IN WITNESS WHEREOF the parties have executed this Novation Agreement on the respective dates specified below with effect from and including the Novation Date.

 

 

MORGAN STANLEY CAPITAL GROUP INC.

SANDRIDGE ENERGY, INC.

(Name of Remaining Party)

(Name of Transferor)

 

 

 

 

 

 

By:

/s/ Deborah L. Hart

 

By:

/s/ Matthew K. Grubb

 

Name:

Deborah L. Hart

 

Name:

Matthew K. Grubb

 

 

Title:

Vice President

 

Title:

President and Chief Operating Officer

 

 

Date:

April 23, 2012

 

Date:

April 23, 2012

 

 

 

 

 

 

 

 

 

 

 

SANDRIDGE MISSISSIPPIAN TRUST II

 

 

 

(Name of Transferee)

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

/s/ Michael J. Ulrich

 

 

 

 

 

Name:

Michael J. Ulrich

 

 

 

 

Title:

Vice President

 

 

 

 

Date:

April 23, 2012

 

 

 

 

4



 

ANNEX A-1

 

Confirmation
Reference No.

 

Period Covered

 

Transferred Volumes
(Bbls)

 

Volumes Remaining in
the Old Transaction
(Bbls)

 

T84070899-1

 

1/1/2014-12/31/2014

 

169,121.5

 

380,878.5

 

 

5



 

Annex A-2

 

Old Confirmations

 

[See attached]

 

6


Exhibit 10.20

 

Execution Copy

 

WHEN RECORDED OR FILED,
PLEASE RETURN TO :
Jones Day
717 Texas, Suite 3300
Houston, Texas 77002-2712
Attention: Cassandra G. Mott

 

 

 

 

 

 

 

Space above for County Recorder’s Use

 

A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE.  A POWER OF SALE MAY ALLOW THE MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO A COURT IN A FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS MORTGAGE.

 

MORTGAGE AND SECURITY AGREEMENT (OKLAHOMA)

 

from

 

SANDRIDGE MISSISSIPPIAN TRUST II,

as Mortgagor,

 

to

 

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Collateral Agent, as Mortgagee,

 

for the benefit of

 

THE SECURED PERSONS

 

Dated as of April 23, 2012

 

THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS AND SECURES PAYMENT OF FUTURE ADVANCES.  THIS MORTGAGE ALSO SECURES OTHER AMOUNTS PROVIDED HEREIN AND AT LAW.  THIS INSTRUMENT SECURES AN OBLIGATION THAT MAY INCREASE OR DECREASE FROM TIME TO TIME.

 

THE OIL AND GAS INTERESTS INCLUDED IN THE MORTGAGED PROPERTY WILL BE FINANCED AT THE WELLHEADS OF THE WELLS LOCATED ON THE PROPERTIES DESCRIBED IN EXHIBIT A HERETO.  THE MORTGAGED PROPERTY COVERED BY THIS INSTRUMENT INCLUDES AS-EXTRACTED COLLATERAL (INCLUDING BOTH (A) OIL, GAS AND OTHER MINERALS AND (B) ACCOUNTS ARISING OUT OF THE SALE THEREOF AT THE WELLHEADS OF

 

i



 

THE WELLS LOCATED NOW OR HEREAFTER ON THE REAL PROPERTY DESCRIBED IN EXHIBIT A HERETO.  THIS INSTRUMENT IS TO BE FILED OF RECORD, AMONG OTHER PLACES, IN THE REAL ESTATE RECORDS OF THE COUNTIES REFERENCED IN EXHIBIT A HERETO AND SUCH FILING SHALL SERVE, AMONG OTHER PURPOSES, AS A UCC FINANCING STATEMENT.  A CARBON, PHOTOGRAPHIC, FACSIMILE OR OTHER REPRODUCTION OF THIS INSTRUMENT IS SUFFICIENT AS A FINANCING STATEMENT.  THE MORTGAGOR HAS AN INTEREST OF RECORD IN THE REAL ESTATE CONCERNED, WHICH INTEREST IS DESCRIBED IN EXHIBIT A HERETO.

 

THIS INSTRUMENT IS TO BE FILED AGAINST THE TRACT INDEX IN THE REAL ESTATE RECORDS OF EACH OKLAHOMA COUNTY WHERE ANY PART OF THE MORTGAGED PROPERTY DESCRIBED IN EXHIBIT A, OR ANY PORTION THEREOF IS LOCATED.

 

THIS MORTGAGE IS A MORTGAGE ON OIL AND GAS LEASES AND LEASEHOLD ESTATES, AS SUCH, NO REAL ESTATE MORTGAGE TAX IS DUE.

 

ii



 

THIS MORTGAGE AND SECURITY AGREEMENT (OKLAHOMA) (this “ Mortgage ”) is entered into as of April 23, 2012 (the “ Effective Date ”) by SandRidge Mississippian Trust II, a Delaware statutory trust (the “ Mortgagor ”), whose address for notice is c/o The Bank of New York Mellon Trust Company, N.A., 919 Congress Avenue, Suite 500, Austin, Texas 78701, in favor of Wilmington Trust, National Association, as Collateral Agent (the “ Mortgagee ”), whose address for notice is 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, for the benefit of the Secured Persons (as defined below) with respect to all Mortgaged Property (as defined below).

 

RECITALS

 

A.            On even date herewith, the Mortgagor, Swap Counterparties and the Mortgagee, as collateral agent, are executing a Collateral Agency Agreement (such agreement, as may from time to time be amended, restated, amended and restated, modified or supplemented, the “ Collateral Agency Agreement ”), pursuant to which, upon the terms and conditions stated therein, the Mortgagee, as collateral agent, has agreed to act on behalf of all Swap Counterparties with respect to the Collateral and to define the rights, duties, authority and responsibilities of the Mortgagee and the relationship among the Swap Counterparties regarding their interests in the Collateral.

 

B.            The Mortgagee and the other Secured Persons (as defined herein) have conditioned their obligations under the Secured Documents (as defined herein) upon the execution and delivery by the Mortgagor of this Mortgage.

 

C.            Therefore, in order to comply with the terms and conditions of the Secured Documents and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Mortgagor hereby agrees as follows:

 

ARTICLE I
DEFINITIONS

 

Section 1.01          Terms Defined Above .  As used in this Mortgage, each term defined above has the meaning indicated above.

 

Section 1.02          Terms Defined in the Collateral Agency Agreement .  Unless otherwise defined herein, each term defined in the Collateral Agency Agreement and used herein has the meaning given to it in the Collateral Agency Agreement.

 

Section 1.03          Terms Defined in the UCC .  Unless otherwise defined herein or in the Collateral Agency Agreement, each capitalized term defined in the Applicable UCC and used herein has the meaning given to it in the Applicable UCC.

 

Section 1.04          Certain Defined Terms .  As used in this Mortgage, the following terms have the meanings specified below:

 

Applicable UCC ” means the provisions of the Uniform Commercial Code presently in effect in the jurisdiction in which the relevant UCC Collateral is situated or which otherwise is applicable to the creation, perfection, the effect of perfection or nonperfection, or the priority of the Liens described herein or the rights and remedies of Mortgagee under this Mortgage.

 

1



 

Collateral ” means, collectively, all the Mortgaged Property and all the UCC Collateral.

 

Event of Default ” has the meaning assigned to such term in Section 4.01 .

 

Hydrocarbon Interests ” means all rights, titles, interests and estates now owned or hereafter acquired by the Mortgagor in and to the oil and gas leases, oil, gas and mineral leases, wellbore interests, and/or other liquid or gaseous hydrocarbon leases, mineral fee interests, overriding royalty and royalty interests, net profit interests and production payment interests, and other interests and estates and the lands and premises covered or affected thereby, including any reserved or residual interests of whatever nature, in each case, that are described on Exhibit A ; and it is the intention of the Mortgagor and the Mortgagee herein to cover and affect hereby all interests which the Mortgagor may now own or may hereafter acquire in and to the interests and Property described on Exhibit A , even though the Mortgagor’s interests or the Property be incorrectly described on Exhibit A or a description of a part or all of the interests or Property described on Exhibit A or the Mortgagor’s interests therein be omitted, and notwithstanding that the interests as specified on Exhibit A may be limited to particular lands, specified depths or particular types of property interests.

 

Hydrocarbons ” means all oil, gas, casinghead gas, drip gasoline, natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and all products refined or separated therefrom and all other minerals which may be produced and saved from or attributable to the Oil and Gas Properties of the Mortgagor, including all oil in tanks, and all rents, issues, profits, proceeds, products, revenues and other incomes from or attributable to the Hydrocarbon Interests or other properties constituting Oil and Gas Properties.

 

Indemnified Parties ” means the Mortgagee and each other Secured Person, their respective Affiliates, and each such Person’s officers, directors, employees, representatives, agents, attorneys, accountants and experts.

 

Mortgaged Property ” means the properties and assets described in Section 2.01(a)  through Section 2.01(d) .

 

Oil and Gas Properties ” means the Hydrocarbon Interests; the Properties now or hereafter pooled or unitized with the Hydrocarbon Interests; and all presently existing or future unitization, communitization, pooling agreements and declarations of pooled units and the units created thereby (including without limitation all units created under orders, regulations and rules or other official acts of any Governmental Authority and units created solely among working interest owners pursuant to operating agreements or otherwise) which may affect all or any portion of the Hydrocarbon Interests, the lands pooled or unitized therewith and the Mortgagor’s interests therein, together with all additions, substitutions, replacements and accessions to any and all of the foregoing.

 

Permitted Liens ” means all Liens permitted to be placed on the Mortgaged Properties under Section 14(a)  of the Collateral Agency Agreement.

 

Release Date ” means the date upon which (a) all Secured Obligations (including, without limitation, all Swap Obligations (including interest accruing during the pendency of an insolvency or liquidation proceeding, regardless of whether allowed or allowable in such insolvency or liquidation proceeding) and all fees, costs, expenses and other amounts payable under the Principal Documents) shall

 

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have been paid in full in cash (other than contingent indemnification obligations) and (b) no Approved Swap Agreement is outstanding and in effect.

 

Secured Documents ” means the collective reference to the Collateral Agency Agreement and each Approved Swap Agreement.

 

Secured Obligations ” has the meaning assigned to such term in Section 2.04 .

 

Secured Persons ” means the Collateral Agent, each Swap Counterparty, each Indemnified Party and any legal owner, holder, assignee or pledgee of any of the Secured Obligations.

 

UCC Collateral ” has the meaning assigned to such term in Section 2.02 .

 

ARTICLE II
GRANT OF MORTGAGE AND SECURED OBLIGATIONS

 

Section 2.01          Grant of Mortgage .  To secure payment of the Secured Obligations and the performance of the covenants and obligations herein contained, the Mortgagor does by these presents hereby GRANT, BARGAIN, SELL, ALIEN, CONVEY, TRANSFER, MORTGAGE, ASSIGN, WARRANT, PLEDGE, HYPOTHECATE and CONFIRM to the Mortgagee for the benefit of the Secured Persons, all of the following described rights, titles, interests, properties and estates of Mortgagor:

 

(a)           All rights, titles, interests and estates now owned or hereafter acquired by the Mortgagor in and to the Oil and Gas Properties.

 

(b)           All rights, titles, interests and estates now owned or hereafter acquired by the Mortgagor in and to all geological, geophysical, engineering, accounting, title, legal and other technical or business data concerning the Oil and Gas Properties, the Hydrocarbons or any other item of property which are in the possession of the Mortgagor, including all books, files, records, magnetic media, computer records and other forms of recording or obtaining access to such data.

 

(c)           Any Property that may from time to time hereafter, by delivery or by writing of any kind, be subjected to the Liens hereof by the Mortgagor or by anyone on the Mortgagor’s behalf; and the Mortgagee is hereby authorized to receive the same at any time as additional security hereunder.

 

(d)           All other rights, titles, interests and estates now owned or hereafter acquired by the Mortgagor in and to the Oil and Gas Properties and every part and parcel thereof, including, without limitation, any rights, titles, interests and estates as the same may be enlarged by the discharge of any payments out of production or by the removal of any charges or Permitted Liens to which any of such Oil and Gas Properties or other rights, titles, interests or estates are subject or otherwise; all rights of the Mortgagor to Liens securing payment of proceeds from the sale of production from any of such Oil and Gas Properties, together with any and all renewals and extensions of any of such related rights, titles, interests or estates; all contracts and agreements supplemental to or amendatory of or in substitution for the contracts and agreements described or mentioned above; and any and all additional interests of any kind hereafter acquired by the Mortgagor in and to the such related rights, titles, interests or estates.

 

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TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee for the use and benefit of the Mortgagee and the Secured Persons and to its and their successors and assigns, upon the terms, provisions and conditions herein set forth.

 

This Mortgage is an absolute and unconditional mortgage to Mortgagee of the Mortgaged Property, whether now in existence or hereafter arising, for the purpose of vesting in Mortgagee, subject to the Permitted Liens, a perfected mortgage lien in the Mortgaged Property.

 

Any fractions or percentages specified on Exhibit A in referring to the Mortgagor’s interests are solely for purposes of the warranties made by the Mortgagor pursuant to Section 3.01 and shall in no manner limit the quantum of interest affected by this Section 2.01 with respect to any Oil and Gas Property or with respect to any unit or well identified on Exhibit A .

 

Section 2.02          Grant of Security Interest .  The Mortgagor hereby grants to the Mortgagee, for the benefit of the Secured Persons, a security interest in and to all of the Mortgagor’s rights, titles and interests in and to the following Property of the Mortgagor now owned or at any time hereafter acquired by the Mortgagor or in which the Mortgagor now has or at any time in the future may acquire any right, title or interest and whether now existing or hereafter coming into existence (collectively, the “ UCC Collateral ”) as collateral security for the prompt and complete payment when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations:

 

(a)           all as-extracted collateral produced or arising from the Property described on Exhibit A ;

 

(b)           all Accounts arising from the sale, assignment, transfer or disposition of Hydrocarbons;

 

(c)           all Deposit Accounts holding proceeds from the sale, assignment, transfer or disposition of Hydrocarbons (each, a “ Pledged Deposit Account ”);

 

(d)           all Mortgaged Property in which, but only to the extent that, a security interest can be created under Article 9 of the Uniform Commercial Code of the State of Oklahoma; and

 

(e)           to the extent not otherwise included, all Proceeds of any and all of the foregoing UCC Collateral and all supporting obligations given with respect thereto; provided, however, that the foregoing grant of a security interest, and the provisions of this Mortgage, shall not apply to up to $1,000,000 in cash held by The Bank of New York Mellon Trust Company, N.A., as Trustee of Mortgagor, as a reserve for the payment of Mortgagor’s administrative expenses.

 

Section 2.03          Deposit Account Control Agreements .

 

(a)           The Mortgagor shall cause or arrange for the Mortgagee to have control, in accordance with Section 9-104 of the Applicable UCC, over each Pledged Deposit Account that the Mortgagor at any time opens or maintains.

 

(b)           So long as no Event of Default shall have occurred and be continuing, the Mortgagor shall have the sole right to direct the disposition of funds with respect to each Pledged Deposit Account.

 

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(c)           If an Event of Default shall have occurred and be continuing, the Mortgagee may, at any time and without notice to, or consent from, the Mortgagor transfer, or direct the transfer of, funds from any Pledged Deposit Account to satisfy the Secured Obligations (as defined in the Collateral Agency Agreement).

 

(d)           Upon the occurrence and during the continuance of any Event of Default, the Mortgagee shall be authorized to send each bank at which a Pledged Deposit Account is maintained (with a copy to the Mortgagor) a notice instructing such bank that Mortgagee shall thereafter, and Mortgagee shall be authorized to, exercise exclusive control of the applicable Pledged Deposit Account.

 

Section 2.04          Secured Obligations .  This Mortgage is executed and delivered by the Mortgagor to secure and enforce the payment of the following (the “ Secured Obligations ”):

 

(a)           any sums which may be advanced or paid by the Mortgagee or the Swap Counterparties under the terms hereof or of the Collateral Agency Agreement or other Secured Documents on account of the failure of the Mortgagor to comply with the covenants of the Mortgagor contained herein, or the failure of the Mortgagor or other obligor to comply with the covenants of the Mortgagor; and all other obligations of the Mortgagor arising pursuant to the provisions of this Mortgage, including penalties, indemnities, legal and other fees, charges and expenses, and amounts advanced by and expenses incurred in order to preserve any Collateral, whether due after acceleration or otherwise;

 

(b)           all interest (including, without limitation, interest accruing at any post-default rate (including the Default Rate) and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) in respect of all of the Secured Obligations and all costs of collection and attorneys’ fees, all as provided herein and in the Collateral Agency Agreement, Approved Swap Agreements and other Security Instruments;

 

(c)           all Swap Obligations, indebtedness, obligations and liabilities, whether now in existence or hereafter arising, whether by acceleration or otherwise, of the Mortgagor to any Swap Counterparty under any Approved Swap Agreement, including, without limitation, any amounts payable in respect of a liquidation of, an acceleration of obligations under, or an early termination of, such Approved Swap Agreement, and any unpaid amounts owing in respect thereof;

 

(d)           all other obligations and liabilities of the Mortgagor to the Secured Persons, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Secured Documents, in each case, whether on account of principal, interest, reimbursement obligations, payments in respect of an early termination date, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Secured Persons that are required to be paid by the Mortgagor pursuant to the terms of any of the Secured Documents); and

 

(e)           any and all renewals, modifications, substitutions, rearrangements or extensions of any of the foregoing, whether in whole or in part.

 

Section 2.05          Pro Rata Benefit .  This Mortgage is executed and granted for the pro rata benefit and security of the Secured Persons to secure the Secured Obligations for so long as same remains unpaid and thereafter until the Release Date.  This Section 2.05 shall not be construed to nor grant any of the

 

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Secured Persons the right to enforce the terms and provision of this Mortgage, such right being granted solely to the Mortgagee.

 

ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS

 

The Mortgagor hereby represents, warrants and covenants as follows:

 

Section 3.01          Title .  To the extent of the undivided interests specified on Exhibit A , the Mortgagor has good and defensible title to and is possessed of the Mortgaged Property.  The Mortgagor has valid title to the UCC Collateral.  The Collateral is free of all Liens except Permitted Liens.

 

Section 3.02          Defend Title .  This Mortgage is, and always will be kept, a direct first priority Lien upon the Collateral; provided that Permitted Liens may exist as provided in the Collateral Agency Agreement, but no intent to subordinate the priority of the Liens created hereby is intended or inferred by such existence.  The Mortgagor will not create or suffer to be created or permit to exist any Lien prior or junior to or on a parity with the Lien of this Mortgage upon the Collateral or any part thereof other than such Permitted Liens.  The Mortgagor will warrant and defend the title to the Collateral, subject to the Permitted Liens, against the claims and demands of all other Persons whomsoever and will maintain and preserve the Lien created hereby (and its priority) until the Release Date.  If (i) an adverse claim be made against or a cloud develop upon the title to any part of the Collateral other than a Permitted Lien or (ii) any Person, including the holder of a Permitted Lien, shall challenge the priority or validity of the Liens created by this Mortgage, then the Mortgagor agrees, upon obtaining knowledge thereof, to immediately defend against such adverse claim, take appropriate action to remove such cloud or subordinate such Permitted Lien, in each case, at the Mortgagor’s sole cost and expense.  The Mortgagor further agrees that the Mortgagee may take such other action as it reasonably deems advisable to protect and preserve its interest in the Collateral, and in such event the Mortgagor will indemnify the Mortgagee against any and all cost, attorneys’ fees and other expenses which they may incur in defending against any such adverse claim or taking action to remove any such cloud.

 

Section 3.03          Not a Foreign Person .  The Mortgagor is not a “foreign person” within the meaning of sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended (i.e., the Mortgagor is not a non-resident alien, foreign corporation, foreign partnership, foreign trust or foreign estate as those terms are defined in such Code and any regulations promulgated thereunder).

 

Section 3.04          Power to Create Lien and Security .  The Mortgagor has full trust power and lawful authority to grant, bargain, sell, assign, transfer, mortgage and convey a Lien on all of the Collateral in the manner and form herein provided.

 

Section 3.05          Abandon, Sales .  The Mortgagor will not sell, lease, assign, transfer or otherwise dispose or abandon any of the Collateral before the Release Date except (i) for the sale, assignment, transfer and disposition of Hydrocarbons in the ordinary course of business, (ii) as consented to by a Dual-Vote Majority and/or (iii) as otherwise contemplated by this Mortgage.

 

Section 3.06          Failure to Perform .  The Mortgagor agrees that if it fails to perform any act or to take any action which it is required to perform or take hereunder or pay any money which the Mortgagor is required to pay hereunder, the Mortgagee, in the Mortgagor’s name or its own name, may, but shall not be obligated to, perform or cause to perform such act or take such action or pay such money, and any

 

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expenses so incurred by it and any money so paid by it shall be a demand obligation owing by the Mortgagor to the Mortgagee, and the Mortgagee, upon making such payment, shall be subrogated to all of the rights of the Person receiving such payment.  Each amount due and owing by the Mortgagor to the Mortgagee pursuant to this Mortgage shall bear interest from the date of demand on Mortgagor therefor until paid at the Default Rate.

 

ARTICLE IV
RIGHTS AND REMEDIES

 

Section 4.01          Event of Default .  A Triggering Event under the Collateral Agency Agreement shall be an “ Event of Default ” under this Mortgage.

 

Section 4.02          Foreclosure and Other Remedies .

 

(a)           After the occurrence of an Event of Default, the lien evidenced hereby shall be subject to foreclosure, as Mortgagee may elect, in any manner provided for herein or provided for or required by law.

 

(b)           After the occurrence of an Event of Default, and if such event shall be continuing, Mortgagee shall have the right and power to sell, to the extent permitted by law, at one or more sales, as an entirety or in parcels, as Mortgagee may elect, the Mortgaged Properties, at such place or places and otherwise in such manner and upon such notice as may be required by law, or, in the absence of any such requirement, as Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers.  Mortgagee may postpone the sale of all or any portion of the Mortgaged Properties by public announcement at the time and place of such sale and from time to time thereafter may further postpone such sale by public announcement made at the time of sale fixed by the preceding postponement.

 

(c)           If any of the Secured Obligations shall become due and payable and shall not be promptly paid, the Mortgagee shall have the right and power to proceed by a suit or suits in equity or at law, whether for the specific performance of any covenant or agreement herein contained or in aid of the execution of any power herein granted, or for any foreclosure hereunder or for the sale of the Collateral under the judgment or decree of any court or courts of competent jurisdiction, or for the appointment of a receiver pending any foreclosure hereunder or the sale of the Collateral under the order of a court or courts of competent jurisdiction or under executory or other legal process, or for the enforcement of any other appropriate legal or equitable remedy.  Any money advanced by the Mortgagee in connection with any such receivership shall be a demand obligation (which obligation the Mortgagor hereby expressly promises to pay) owing by the Mortgagor to the Mortgagee and shall bear interest from the date of making such advance by the Mortgagee until paid at the Default Rate.

 

(d)           Mortgagee shall have the right to become the purchaser at any sale held by Mortgagee or by any court, receiver or public officer, and shall have the right to credit upon the amount of the bid made therefor the amount payable out of the net proceeds of such sale to it.

 

(e)           Any sale or sales of the Mortgaged Properties, whether under the power of sale herein granted and conferred or by virtue of judicial proceedings, shall operate to divest all right, title, interest, claim and demand whatsoever either at law or in equity, of Mortgagor of, in and to the premises and the property sold, and shall be a perpetual bar, both at law and in equity, against Mortgagor,

 

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Mortgagor’s successors or assigns, and against any and all Persons claiming or who shall thereafter claim all or any of the property sold from, through or under Mortgagor, or Mortgagor’s successors or assigns.

 

(f)            Any sale by Mortgagee of the Mortgaged Properties may be made in any county in which any part of the Mortgaged Properties to be sold at such sale may be situated.  Mortgagee may, from time to time, postpone the sale by public announcement thereof at the time and place noticed therefor.  If the Mortgaged Properties consists of several parcels or interests, Mortgagee may designate the order in which the same shall be offered for sale or sold.  Mortgagor waives all rights to direct the order in which any of the Mortgaged Properties will be sold in the event of any sale under this Mortgage, and also any right to have any of the Mortgaged Properties marshaled upon any sale.

 

(g)           Notwithstanding any other provisions of this Mortgage, any lease of Minerals covered by this Mortgage which are subject to the Mineral Leasing Act of 1920 as amended, and the regulations promulgated thereunder, shall not be sold or otherwise disposed of to any party other than the citizens of the United States, or to associations of such citizens or to any corporation organized under the laws of the United States, or any state or territory thereof that are qualified to own or control interests in such leases under the provisions of such Act and regulations, or to Persons who may acquire ownership or interest in such leases under the provisions of 30 U.S.C. §184(g) if applicable, as such Act or regulations are now or may be from time to time in effect.

 

(h)           Without limitation of any of the foregoing remedies, Mortgagor hereby grants to and confers on Mortgagee the power to sell all or any portion of the Mortgaged Properties in the manner and pursuant to the procedures set forth in the “Oklahoma Power of Sale Mortgage Foreclosure Act,” 46 O.S. Supp. §§ 40-49, as the same may be hereafter amended and in effect from time to time (the “ Oklahoma POS Act ”) or pursuant to other applicable statutory or judicial authority.  If no cure is effected within the time limits set forth in the Oklahoma POS Act, Mortgagee may then proceed in the manner and subject to the conditions of the Oklahoma POS Act to send to Mortgagor and other necessary parties a notice of sale and may sell and convey the Mortgaged Properties in accordance with the Oklahoma POS Act.  Mortgagee may foreclose this Mortgage by exercising said power of sale or, at Mortgagee’s sole option, by judicial foreclosure proceedings as provided by law.  No action of Mortgagee based upon the provisions contained herein or in the Oklahoma POS Act, including, without limitation, the giving of the notice of intent to foreclose by power of sale or the notice of sale, shall constitute an election of remedies which would preclude Mortgagee from accelerating the secured obligations and pursuing judicial foreclosure before or at any time after commencement of the power of sale foreclosure procedure.  Notwithstanding anything contained in this Mortgage to the contrary, any notices of sale given in accordance with the requirements of the Oklahoma POS Act shall constitute sufficient notice of sale.  The conduct of a sale pursuant to a power of sale shall be sufficient hereunder if conducted in accordance with the requirements of the Oklahoma POS Act and other governmental requirements of the State of Oklahoma in effect at the time of such sale, notwithstanding any other provision contained in this Mortgage to the contrary.  In the event of conflict between the provisions hereof and the Oklahoma POS Act, the Oklahoma POS Act shall control.

 

A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE.  A POWER OF SALE MAY ALLOW THE MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO A COURT IN A FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS MORTGAGE.

 

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(i)            If an Event of Default shall occur and be continuing, then (i) the Mortgagee shall be entitled to all of the rights, powers and remedies afforded a secured party by the Applicable UCC with reference to the UCC Collateral and (ii) the Mortgagee may proceed as to any UCC Collateral in accordance with the rights and remedies granted under this Mortgage or applicable law in respect of the UCC Collateral.  Such rights, powers and remedies shall be cumulative and in addition to those granted to the Mortgagee under any other provision of this Mortgage or under any other Secured Document.  Written notice mailed to Mortgagor as provided herein at least ten (10) days prior to the date of public sale of any part of the Collateral which is personal property subject to the provisions of the Applicable UCC, or prior to the date after which private sale of any such part of the Collateral will be made, shall constitute reasonable notice.  Without in any manner limiting the generality of any of the other provisions of this Mortgage, this Mortgage is effective as a financing statement and may be filed of record in the real estate records with respect to all as-extracted collateral comprising any part of the Collateral pursuant to the Applicable UCC.  Mortgagor hereby authorizes Mortgagee to file, in any filing or recording office, one or more UCC financing statements describing the UCC Collateral and any renewal, continuation or amendment statements thereof.

 

(j)            The Collateral may be sold in one or more parcels and to the extent permitted by applicable law in such manner and order as the Mortgagee, in its sole discretion, may elect, it being expressly understood and agreed that the right of sale arising out of any Event of Default shall not be exhausted by any one or more sales.

 

(k)           The Mortgagee may appoint or delegate any one or more Persons as agent to perform any act or acts necessary or incident to any sale held by the Mortgagee, including the posting of notices, in the name and on behalf of the Mortgagee.

 

Section 4.03          Possession of Mortgaged Property .  If an Event of Default shall have occurred and be continuing, then, to the extent permitted by applicable law, the Mortgagee shall have the right and power to enter into and upon and take possession of all or any part of the Collateral in the possession of the Mortgagor, its successors or assigns, or its or their agents or servants, and may exclude the Mortgagor, its successors or assigns, and all persons claiming under the Mortgagor, and its or their agents or servants wholly or partly therefrom; and, holding the same, the Mortgagee may use, administer, manage, operate and control the Collateral and conduct the business thereof to the same extent as the Mortgagor, its successors or assigns, might at the time do and may exercise all rights and powers of the Mortgagor, in the name, place and stead of the Mortgagor, or otherwise as the Mortgagee shall deem best.  All costs, expenses and liabilities of every character incurred by the Mortgagee in administering, managing, operating, and controlling the Mortgaged Property shall constitute a demand obligation (which obligation the Mortgagor hereby expressly promises to pay) owing by the Mortgagor to the Mortgagee and shall bear interest from the date of demand on Mortgagor therefor until paid at the Default Rate.

 

Section 4.04          Remedies Cumulative, Concurrent and Nonexclusive .  Every right, power, privilege and remedy herein given to the Mortgagee shall be cumulative and in addition to every other right, power and remedy herein specifically given or now or hereafter existing in equity, at law or by statute.  Each and every right, power, privilege and remedy whether specifically herein given or otherwise existing may be exercised from time to time and so often and in such order as may be deemed expedient by the Mortgagee, and the exercise, or the beginning of the exercise, or the abandonment, of any such right, power, privilege or remedy shall not be deemed a waiver of the right to exercise, at the same time or thereafter any other right, power, privilege or remedy.  No delay or omission by the Mortgagee or any other Secured Person in the exercise of any right, power or remedy shall impair any such right, power,

 

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privilege or remedy or operate as a waiver thereof or of any other right, power, privilege or remedy then or thereafter existing.

 

Section 4.05          Discontinuance of Proceedings .  If the Mortgagee shall have proceeded to invoke any right, remedy or recourse permitted hereunder or under any Secured Document or available at law and shall thereafter elect to discontinue or abandon same for any reason, then it shall have the unqualified right so to do and, in such an event, the parties shall be restored to their former positions with respect to the Secured Obligations, this Mortgage, the Collateral Agency Agreement, the Collateral and otherwise, and the rights, remedies, recourses and powers of the Mortgagee, as applicable, shall continue as if same had never been invoked.

 

Section 4.06          No Release of Obligations .  Neither the Mortgagor nor any other Person hereafter obligated for payment of all or any part of the Secured Obligations shall be relieved of such obligation by reason of:  the failure of any Person so obligated to foreclose the Lien of this Mortgage or to enforce any provision hereunder or under the Collateral Agency Agreement or any other Secured Document;  the release, regardless of consideration, of the Collateral or any portion thereof or interest therein or the addition of any other property to the Collateral; or by any other act or occurrence save and except upon the occurrence of the Release Date.

 

Section 4.07          Release of and Resort to Collateral .  The Mortgagee may release, regardless of consideration, any part of the Collateral without, as to the remainder, in any way impairing, affecting, subordinating or releasing the Lien created in or evidenced by this Mortgage or its stature as a first and prior Lien in and to the Collateral and without in any way releasing or diminishing the liability of any Person liable for the repayment of the Secured Obligations.  For payment of the Secured Obligations, the Mortgagee may resort to any other security therefor held by the Mortgagee in such order and manner as the Mortgagee may elect.

 

Section 4.08          Waiver of Redemption, Notice and Marshalling of Assets, Etc.   To the fullest extent permitted by law, the Mortgagor hereby irrevocably and unconditionally waives and releases all benefits that might accrue to the Mortgagor by virtue of any present or future moratorium law or other law exempting the Collateral from attachment, levy or sale on execution or providing for any appraisement, valuation, stay of execution, exemption from civil process, redemption or extension of time for payment;  all notices of any Event of Default or of the Mortgagee’s or any other Secured Person’s intention to accelerate the Secured Obligations or of any election to exercise or any actual exercise of any right, remedy or recourse provided for hereunder or under any Secured Document or available at law; and any right to a marshalling of assets or a sale in inverse order of alienation.  Notwithstanding the foregoing, in the event of any judicial foreclosure of this Mortgage with respect to the Mortgaged Property, or any part thereof, appraisement of the Mortgaged Property is hereby waived or not waived, at the option of Mortgagee, such option to be exercised at the time of the entry of the foreclosure judgment or any time prior thereto.  If any law referred to in this Mortgage and now in force, of which the Mortgagor or its successor or successors might take advantage despite the provisions hereof, shall hereafter be repealed or cease to be in force, such law shall thereafter be deemed not to constitute any part of the contract herein contained or to preclude the operation or application of the provisions hereof.  If the laws of any state which provides for a redemption period do not permit the redemption period to be waived, the redemption period shall be specifically reduced to the minimum amount of time allowable by statute.

 

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Section 4.09          Application of Proceeds .  The proceeds of any foreclosure sale of the Collateral or any part thereof and all other monies received in any other proceedings for the enforcement hereof shall be applied:

 

(a)           First, to the payment of all reasonable expenses incurred by the Mortgagee incident to the enforcement of this Mortgage, the Collateral Agency Agreement or any Secured Document to collect any portion of the Secured Obligations (including, without limiting the generality of the foregoing, expenses of any entry or taking of possession, of any sale, of advertisement thereof, and of conveyances, and court costs, compensation of agents and employees, and legal fees), and to the payment of all other reasonable charges, expenses, liabilities and advances incurred or made by the Mortgagee under this Mortgage or in executing any trust or power hereunder; and

 

(b)           Second, as set forth in Section 6(b)  of the Collateral Agency Agreement (but without duplication of the amounts applied in (a) above).

 

Section 4.10          Indemnity .  THE INDEMNIFIED PARTIES SHALL NOT BE LIABLE, IN CONNECTION WITH ANY ACTION TAKEN, FOR ANY LOSS SUSTAINED BY THE MORTGAGOR RESULTING FROM AN ASSERTION THAT THE MORTGAGEE HAS RECEIVED FUNDS FROM THE PRODUCTION OF HYDROCARBONS CLAIMED BY THIRD PERSONS OR ANY ACT OR OMISSION OF ANY INDEMNIFIED PARTY IN ADMINISTERING, MANAGING, OPERATING OR CONTROLLING THE COLLATERAL INCLUDING SUCH LOSS WHICH MAY RESULT FROM THE ORDINARY NEGLIGENCE OF AN INDEMNIFIED PARTY UNLESS SUCH LOSS IS CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE RELEVANT INDEMNIFIED PARTY.  NO INDEMNIFIED PARTY WILL BE OBLIGATED TO PERFORM OR DISCHARGE ANY OBLIGATION, DUTY OR LIABILITY OF THE MORTGAGOR.  THE MORTGAGOR SHALL AND DOES HEREBY AGREE TO INDEMNIFY EACH INDEMNIFIED PARTY FOR, AND TO HOLD EACH INDEMNIFIED PARTY HARMLESS FROM, ANY AND ALL LIABILITY, LOSS OR DAMAGE WHICH MAY OR MIGHT BE INCURRED BY ANY INDEMNIFIED PARTY BY REASON OF THIS MORTGAGE OR THE EXERCISE OF RIGHTS OR REMEDIES HEREUNDER, UNLESS SUCH LIABILITY, LOSS OR DAMAGE IS CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE RELEVANT INDEMNIFIED PARTY.  IF ANY INDEMNIFIED PARTY SHALL MAKE ANY EXPENDITURE ON ACCOUNT OF ANY SUCH LIABILITY, LOSS OR DAMAGE, THE AMOUNT THEREOF, INCLUDING COSTS, EXPENSES AND REASONABLE ATTORNEYS’ FEES, SHALL BE A DEMAND OBLIGATION (WHICH OBLIGATION THE MORTGAGOR HEREBY EXPRESSLY PROMISES TO PAY) OWING BY THE MORTGAGOR TO SUCH INDEMNIFIED PARTY AND SHALL BEAR INTEREST FROM THE DATE OF DEMAND THEREFOR UNTIL PAID AT THE DEFAULT RATE.  THE MORTGAGOR HEREBY ASSENTS TO, RATIFIES AND CONFIRMS ANY AND ALL ACTIONS OF EACH INDEMNIFIED PARTY WITH RESPECT TO THE COLLATERAL TAKEN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS MORTGAGE.  THE LIABILITIES OF THE MORTGAGOR AS SET FORTH IN THIS SECTION 4.10 SHALL SURVIVE THE TERMINATION OF THIS MORTGAGE.

 

Section 4.11          Limitations on Rights and Waivers .  All rights, powers and remedies herein conferred shall be exercisable by 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.

 

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ARTICLE V
MISCELLANEOUS

 

Section 5.01          Instrument Construed.   This Mortgage may be construed as a mortgage, conveyance, assignment, security agreement, hypothecation or contract, or any one or more of them, in order fully to effectuate the Lien hereof and the purposes and agreements herein set forth.

 

Section 5.02          Recording .  Mortgagor will cause this Mortgage and all amendments and supplements thereto and substitutions therefor to be recorded, filed, re-recorded and refiled in such manner and in such places as Mortgagee shall reasonably request and will pay all such recording, filing, re-recording and refiling taxes, fees and other charges.

 

Section 5.03          Releases .

 

(a)           Full Release .  Upon the Release Date, (i) all Liens granted hereunder shall automatically be released without any further action on the part of any Person and (ii) the Mortgagee shall forthwith cause satisfaction and discharge of this Mortgage to be entered upon the record at the expense of the Mortgagor and shall promptly execute and deliver or cause to be executed and delivered to the Mortgagor such instruments of satisfaction, release, re-conveyance and reassignment or other documents as may be appropriate.  Otherwise, this Mortgage shall remain and continue in full force and effect.

 

(b)           Partial Release .  If any of the Collateral shall be sold, assigned, transferred or otherwise disposed of by the Mortgagor in a transaction that is not prohibited by Section 3.05 of this Mortgage, then (i) such Collateral shall be so sold, assigned, transferred or otherwise disposed of free and clear of all Liens thereon granted hereunder (and such Liens on such Collateral shall automatically be released without further action on the part of any Person) and (ii) the Mortgagee, at the request and sole expense of the Mortgagor, shall promptly execute and deliver or cause to be executed and delivered to the Mortgagor such instruments of release, re-conveyance and reassignment or other documents reasonably necessary or desirable for the release of the Liens created hereby on such Collateral.

 

Section 5.04          Severability .  If any provision hereof is invalid or unenforceable in any jurisdiction, the other provisions hereof shall remain in full force and effect in such jurisdiction and the remaining provisions hereof shall be liberally construed in favor of the Mortgagee and the other Secured Persons in order to effectuate the provisions hereof.  The invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of any such provision in any other jurisdiction.

 

Section 5.05          Successors and Assigns .  The terms used to designate any party or group of Persons shall be deemed to include the respective heirs, legal representatives, successors and assigns of such Persons.

 

Section 5.06          Application of Payments to Certain Obligations .  If any part of the Secured Obligations cannot be lawfully secured by this Mortgage or if any part of the Collateral cannot be lawfully subject to the Lien hereof to the full extent of the Secured Obligations, then all payments made shall be applied on said Secured Obligations first in discharge of that portion thereof which is not secured by this Mortgage.

 

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Section 5.07          Nature of Covenants .  The covenants and agreements herein contained shall constitute covenants running with the land and interests covered or affected hereby and shall be binding upon the heirs, legal representatives, successors and assigns of the parties hereto.

 

Section 5.08          Notices .  All notices, requests, consents, demands and other communications required or permitted hereunder shall be in writing and shall be deemed sufficiently given or furnished if delivered by registered or certified United States mail, postage prepaid, or by personal service (including express or courier service) at their respective addresses below:

 

If to Mortgagor:

 

SandRidge Mississippian Trust II

 

 

c/o The Bank of New York Mellon Trust Company, N.A.

 

 

Institutional Trust Services

 

 

919 Congress Avenue, Suite 500

 

 

Austin, Texas 78701

 

 

Attention: Michael J. Ulrich

 

 

 

If to Mortgagee:

 

Wilmington Trust, National Association, as Collateral Agent

 

 

50 South Sixth Street, Suite 1290

 

 

Minneapolis, MN 55402

 

 

Attention: Jeffery Rose

 

(unless changed by similar notice in writing given by the particular party whose address is to be changed). Any such notice or communication shall be deemed to have been given either at the time of personal delivery or, in the case of delivery at the address and in the manner provided herein, upon receipt; provided that, service of notice as required by the laws of any state in which portions of the Collateral may be situated shall for all purposes be deemed appropriate and sufficient with the giving of such notice.

 

Section 5.09          Counterparts .  This Mortgage is being executed in several counterparts, all of which are identical,.  Each of such counterparts shall for all purposes be deemed to be an original and all such counterparts shall together constitute but one and the same instrument.

 

Section 5.10          Governing Law .  Insofar as permitted by otherwise applicable law, this Mortgage shall be construed under and governed by the laws of the State of Oklahoma.

 

Section 5.11          Exculpation Provisions EACH OF THE PARTIES HERETO SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS MORTGAGE; AND AGREES THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS OF THIS MORTGAGE; THAT IT HAS IN FACT READ THIS MORTGAGE AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS MORTGAGE; THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS MORTGAGE; AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS MORTGAGE; AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS MORTGAGE RESULT IN ONE PARTY ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY.  EACH PARTY HERETO AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY

 

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EXCULPATORY PROVISION OF THIS MORTGAGE ON THE BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT “CONSPICUOUS.”

 

Section 5.12          Amendments .  Subject to the provisions of the Collateral Agency Agreement, this Mortgage may be amended or modified by the Mortgagor and the Mortgagee in writing.

 

Section 5.13          Entire Agreement; Collateral Agency Agreement Controlling .  THIS WRITTEN MORTGAGE AND THE OTHER PRINCIPAL DOCUMENTS TOGETHER REPRESENT THE FINAL AGREEMENT BETWEEN 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 BETWEEN THE PARTIES.  In the event of a conflict between any provision hereof and any provision of the Collateral Agency Agreement, the provisions of the Collateral Agency Agreement shall govern and control.

 

Section 5.14          Execution of Financing Statements .  Pursuant to the Applicable UCC, the Mortgagor authorizes the Mortgagee, its counsel or its representative, at any time and from time to time, to file or record financing statements, continuation statements, amendments thereto and other filing or recording documents or instruments with respect to the Collateral without the signature of the Mortgagor in such form and in such offices as the Mortgagee reasonably determines appropriate to perfect the security interests of the Mortgagee under this Mortgage.

 

In that regard, the following information is provided:

 

Name of Debtor:

 

SandRidge Mississippian Trust II

Address of Debtor:

 

c/o The Bank of New York Mellon Trust Company, N.A.

 

 

Institutional Trust Services

 

 

919 Congress Avenue, Suite 500

 

 

Austin, Texas 78701

 

 

Attention: Michael J. Ulrich

State of Formation/Location:

 

Delaware

 

Section 5.15          References .  The words “herein,” “hereof,” “hereunder” and other words of similar import when used in this Mortgage refer to this Mortgage as a whole, and not to any particular article, section or subsection.  Any reference herein to a Section shall be deemed to refer to the applicable Section of this Mortgage unless otherwise stated herein.  Any reference herein to an exhibit or schedule shall be deemed to refer to the applicable exhibit or schedule attached hereto unless otherwise stated herein.  The words “include,” “includes” and “including” as used in this Mortgage shall be deemed to be followed by the phrase “without limitation.”

 

[SIGNATURES BEGIN NEXT PAGE]

 

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Executed on this 16th day of April, 2012, to be effective as of the Effective Date.

 

 

 

SANDRIDGE MISSISSIPPIAN TRUST II

 

 

 

 

 

By:

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee

 

 

 

 

 

 

 

 

 

 

By:

  /s/Michael J. Ulrich

 

 

 

Michael J. Ulrich

 

 

 

Vice President

 

 

STATE OF TEXAS

§

 

 

§

 

COUNTY OF TRAVIS

§

 

 

 

This instrument was acknowledged before me on April 16, 2012 by Michael J. Ulrich, Vice President of The Bank of New York Mellon Trust Company, N.A., a national banking association, on behalf of said association as the Trustee of SandRidge Mississippian Trust II, a Delaware statutory trust.

 

 

 

  /s/ Sarah Newell

 

Notary Public

 

 

 

Seal:

 

 

Signature Page - Trust Mortgage

 



 

EXHIBIT A

 

(See attached.)

 

Exhibit A-1


Exhibit 10.21

 

Execution Copy

 

WHEN RECORDED OR FILED,

PLEASE RETURN TO :

Jones Day

717 Texas, Suite 3300

Houston, Texas  77002-2712

Attention:  Cassandra G. Mott

 

 

 

 

Space above for County Recorder’s Use

 

MORTGAGE AND SECURITY AGREEMENT (KANSAS)

 

from

 

SANDRIDGE MISSISSIPPIAN TRUST II,

as Mortgagor,

 

to

 

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Collateral Agent, as Mortgagee,

 

for the benefit of

 

THE SECURED PERSONS

 

Dated as of April 23, 2012

 

THIS INSTRUMENT IS TO BE FILED AND RECORDED AS A MORTGAGE IN THE REAL ESTATE RECORDS OF EACH COUNTY IN WHICH THE HYDROCARBON INTERESTS DESCRIBED IN EXHIBIT A, OR ANY PORTION THEREOF, ARE LOCATED.

 

NOTWITHSTANDING ANY OTHER PROVISIONS HEREOF, THE INDEBTEDNESS SECURED HEREUNDER BY A MORTGAGE ON REAL PROPERTY WITHIN THE STATE OF KANSAS EXCLUDING FINANCE CHARGES AND INTEREST SHALL NOT EXCEED $8,649,000.

 

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THIS MORTGAGE AND SECURITY AGREEMENT (KANSAS) (this “ Mortgage ”) is entered into as of April 23, 2012 (the “ Effective Date ”) by SandRidge Mississippian Trust II, a Delaware statutory trust (the “ Mortgagor ”), whose address for notice is c/o The Bank of New York Mellon Trust Company, N.A., 919 Congress Avenue, Suite 500, Austin, Texas 78701, in favor of Wilmington Trust, National Association, as Collateral Agent (the “ Mortgagee ”), whose address for notice is 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, for the benefit of the Secured Persons (as defined below) with respect to all Mortgaged Property (as defined below).

 

RECITALS

 

A.            On even date herewith, the Mortgagor, Swap Counterparties and the Mortgagee, as collateral agent, are executing a Collateral Agency Agreement (such agreement, as may from time to time be amended, restated, amended and restated, modified or supplemented, the “ Collateral Agency Agreement ”), pursuant to which, upon the terms and conditions stated therein, the Mortgagee, as collateral agent, has agreed to act on behalf of all Swap Counterparties with respect to the Collateral and to define the rights, duties, authority and responsibilities of the Mortgagee and the relationship among the Swap Counterparties regarding their interests in the Collateral.

 

B.            The Mortgagee and the other Secured Persons (as defined herein) have conditioned their obligations under the Secured Documents (as defined herein) upon the execution and delivery by the Mortgagor of this Mortgage.

 

C.            Therefore, in order to comply with the terms and conditions of the Secured Documents and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Mortgagor hereby agrees as follows:

 

ARTICLE I
DEFINITIONS

 

Section 1.01          Terms Defined Above .  As used in this Mortgage, each term defined above has the meaning indicated above.

 

Section 1.02          Terms Defined in the Collateral Agency Agreement .  Unless otherwise defined herein, each term defined in the Collateral Agency Agreement and used herein has the meaning given to it in the Collateral Agency Agreement.

 

Section 1.03          Terms Defined in the UCC .  Unless otherwise defined herein or in the Collateral Agency Agreement, each capitalized term defined in the Applicable UCC and used herein has the meaning given to it in the Applicable UCC.

 

Section 1.04          Certain Defined Terms .  As used in this Mortgage, the following terms have the meanings specified below:

 

Applicable UCC ” means the provisions of the Uniform Commercial Code presently in effect in the jurisdiction in which the relevant UCC Collateral is situated or which otherwise is applicable to the creation, perfection, the effect of perfection or nonperfection, or the priority of the Liens described herein or the rights and remedies of Mortgagee under this Mortgage.

 

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Collateral ” means, collectively, all the Mortgaged Property and all the UCC Collateral.

 

Event of Default ” has the meaning assigned to such term in Section 4.01 .

 

Hydrocarbon Interests ” means all rights, titles, interests and estates now owned or hereafter acquired by the Mortgagor in and to the oil and gas leases, oil, gas and mineral leases, wellbore interests, and/or other liquid or gaseous hydrocarbon leases, mineral fee interests, overriding royalty and royalty interests, net profit interests and production payment interests, and other interests and estates and the lands and premises covered or affected thereby, including any reserved or residual interests of whatever nature, in each case, that are described on Exhibit A ; and it is the intention of the Mortgagor and the Mortgagee herein to cover and affect hereby all interests which the Mortgagor may now own or may hereafter acquire in and to the interests and Property described on Exhibit A , even though the Mortgagor’s interests or the Property be incorrectly described on Exhibit A or a description of a part or all of the interests or Property described on Exhibit A or the Mortgagor’s interests therein be omitted, and notwithstanding that the interests as specified on Exhibit A may be limited to particular lands, specified depths or particular types of property interests.

 

Hydrocarbons ” means all oil, gas, casinghead gas, drip gasoline, natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and all products refined or separated therefrom and all other minerals which may be produced and saved from or attributable to the Oil and Gas Properties of the Mortgagor, including all oil in tanks, and all rents, issues, profits, proceeds, products, revenues and other incomes from or attributable to the Hydrocarbon Interests or other properties constituting Oil and Gas Properties.

 

Indemnified Parties ” means the Mortgagee and each other Secured Person, their respective Affiliates, and each such Person’s officers, directors, employees, representatives, agents, attorneys, accountants and experts.

 

Mortgaged Property ” means the properties and assets described in Section 2.01(a)  through Section 2.01(d) .

 

Oil and Gas Properties ” means  the Hydrocarbon Interests;  the Properties now or hereafter pooled or unitized with the Hydrocarbon Interests; and  all presently existing or future unitization, communitization, pooling agreements and declarations of pooled units and the units created thereby (including without limitation all units created under orders, regulations and rules or other official acts of any Governmental Authority and units created solely among working interest owners pursuant to operating agreements or otherwise) which may affect all or any portion of the Hydrocarbon Interests, the lands pooled or unitized therewith and the Mortgagor’s interests therein, together with all additions, substitutions, replacements and accessions to any and all of the foregoing.

 

Permitted Liens ” means all Liens permitted to be placed on the Mortgaged Properties under Section 14(a)  of the Collateral Agency Agreement.

 

Release Date ” means the date upon which (a) all Secured Obligations (including, without limitation, all Swap Obligations (including interest accruing during the pendency of an insolvency or liquidation proceeding, regardless of whether allowed or allowable in such insolvency or liquidation proceeding) and all fees, costs, expenses and other amounts payable under the Principal Documents) shall

 

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have been paid in full in cash (other than contingent indemnification obligations) and (b) no Approved Swap Agreement is outstanding and in effect.

 

Secured Documents ” means the collective reference to the Collateral Agency Agreement and each Approved Swap Agreement.

 

Secured Obligations ” has the meaning assigned to such term in Section 2.04 .

 

Secured Persons ” means the Collateral Agent, each Swap Counterparty, each Indemnified Party and any legal owner, holder, assignee or pledgee of any of the Secured Obligations.

 

UCC Collateral ” has the meaning assigned to such term in Section 2.02 .

 

ARTICLE II
GRANT OF MORTGAGE AND SECURED OBLIGATIONS

 

Section 2.01          Grant of Mortgage .  To secure payment of the Secured Obligations and the performance of the covenants and obligations herein contained, the Mortgagor does by these presents hereby GRANT, BARGAIN, SELL, ALIEN, CONVEY, TRANSFER, MORTGAGE, ASSIGN, WARRANT, PLEDGE, HYPOTHECATE and CONFIRM to the Mortgagee for the benefit of the Secured Persons, all of the following described rights, titles, interests, properties and estates of Mortgagor:

 

(a)           All rights, titles, interests and estates now owned or hereafter acquired by the Mortgagor in and to the Oil and Gas Properties.

 

(b)           All rights, titles, interests and estates now owned or hereafter acquired by the Mortgagor in and to all geological, geophysical, engineering, accounting, title, legal and other technical or business data concerning the Oil and Gas Properties, the Hydrocarbons or any other item of property which are in the possession of the Mortgagor, including all books, files, records, magnetic media, computer records and other forms of recording or obtaining access to such data.

 

(c)           Any Property that may from time to time hereafter, by delivery or by writing of any kind, be subjected to the Liens hereof by the Mortgagor or by anyone on the Mortgagor’s behalf; and the Mortgagee is hereby authorized to receive the same at any time as additional security hereunder.

 

(d)           All other rights, titles, interests and estates now owned or hereafter acquired by the Mortgagor in and to the Oil and Gas Properties and every part and parcel thereof, including, without limitation, any rights, titles, interests and estates as the same may be enlarged by the discharge of any payments out of production or by the removal of any charges or Permitted Liens to which any of such Oil and Gas Properties or other rights, titles, interests or estates are subject or otherwise; all rights of the Mortgagor to Liens securing payment of proceeds from the sale of production from any of such Oil and Gas Properties, together with any and all renewals and extensions of any of such related rights, titles, interests or estates; all contracts and agreements supplemental to or amendatory of or in substitution for the contracts and agreements described or mentioned above; and any and all additional interests of any kind hereafter acquired by the Mortgagor in and to the such related rights, titles, interests or estates.

 

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TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee for the use and benefit of the Mortgagee and the Secured Persons and to its and their successors and assigns, upon the terms, provisions and conditions herein set forth.

 

This Mortgage is an absolute and unconditional mortgage to Mortgagee of the Mortgaged Property, whether now in existence or hereafter arising, for the purpose of vesting in Mortgagee, subject to the Permitted Liens, a perfected mortgage lien in the Mortgaged Property.

 

Any fractions or percentages specified on Exhibit A in referring to the Mortgagor’s interests are solely for purposes of the warranties made by the Mortgagor pursuant to Section 3.01 and shall in no manner limit the quantum of interest affected by this Section 2.01 with respect to any Oil and Gas Property or with respect to any unit or well identified on Exhibit A .

 

Section 2.02          Grant of Security Interest .  The Mortgagor hereby grants to the Mortgagee, for the benefit of the Secured Persons, a security interest in and to all of the Mortgagor’s rights, titles and interests in and to the following Property of the Mortgagor now owned or at any time hereafter acquired by the Mortgagor or in which the Mortgagor now has or at any time in the future may acquire any right, title or interest and whether now existing or hereafter coming into existence (collectively, the “ UCC Collateral ”) as collateral security for the prompt and complete payment when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations:

 

(a)           all as-extracted collateral produced or arising from the Property described on Exhibit A ;

 

(b)           all Accounts arising from the sale, assignment, transfer or disposition of Hydrocarbons;

 

(c)           all Deposit Accounts holding proceeds from the sale, assignment, transfer or disposition of Hydrocarbons (each, a “ Pledged Deposit Account ”);

 

(d)           all Mortgaged Property in which, but only to the extent that, a security interest can be created under Article 9 of the Uniform Commercial Code of the State of Kansas; and

 

(e)           to the extent not otherwise included, all Proceeds of any and all of the foregoing UCC Collateral and all supporting obligations given with respect thereto; provided, however, that the foregoing grant of a security interest, and the provisions of this Mortgage, shall not apply to up to $1,000,000 in cash held by The Bank of New York Mellon Trust Company, N.A., as Trustee of Mortgagor, as a reserve for the payment of Mortgagor’s administrative expenses.

 

Section 2.03          Deposit Account Control Agreements .

 

(a)           The Mortgagor shall cause or arrange for the Mortgagee to have control, in accordance with Section 9-104 of the Applicable UCC, over each Pledged Deposit Account that the Mortgagor at any time opens or maintains.

 

(b)           So long as no Event of Default shall have occurred and be continuing, the Mortgagor shall have the sole right to direct the disposition of funds with respect to each Pledged Deposit Account.

 

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(c)           If an Event of Default shall have occurred and be continuing, the Mortgagee may, at any time and without notice to, or consent from, the Mortgagor transfer, or direct the transfer of, funds from any Pledged Deposit Account to satisfy the Secured Obligations (as defined in the Collateral Agency Agreement).

 

(d)           Upon the occurrence and during the continuance of any Event of Default, the Mortgagee shall be authorized to send each bank at which a Pledged Deposit Account is maintained (with a copy to the Mortgagor) a notice instructing such bank that Mortgagee shall thereafter, and Mortgagee shall be authorized to, exercise exclusive control of the applicable Pledged Deposit Account.

 

Section 2.04          Secured Obligations .  This Mortgage is executed and delivered by the Mortgagor to secure and enforce the payment of the following (the “ Secured Obligations ”):

 

(a)           any sums which may be advanced or paid by the Mortgagee or the Swap Counterparties under the terms hereof or of the Collateral Agency Agreement or other Secured Documents on account of the failure of the Mortgagor to comply with the covenants of the Mortgagor contained herein, or the failure of the Mortgagor or other obligor to comply with the covenants of the Mortgagor; and all other obligations of the Mortgagor arising pursuant to the provisions of this Mortgage, including penalties, indemnities, legal and other fees, charges and expenses, and amounts advanced by and expenses incurred in order to preserve any Collateral, whether due after acceleration or otherwise;

 

(b)           all interest (including, without limitation, interest accruing at any post-default rate (including the Default Rate) and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) in respect of all of the Secured Obligations and all costs of collection and attorneys’ fees, all as provided herein and in the Collateral Agency Agreement, Approved Swap Agreements and other Security Instruments;

 

(c)           all Swap Obligations, indebtedness, obligations and liabilities, whether now in existence or hereafter arising, whether by acceleration or otherwise, of the Mortgagor to any  Swap Counterparty under any Approved Swap Agreement, including, without limitation, any amounts payable in respect of a liquidation of, an acceleration of obligations under, or an early termination of, such Approved Swap Agreement, and any unpaid amounts owing in respect thereof;

 

(d)           all other obligations and liabilities of the Mortgagor to the Secured Persons, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Secured Documents, in each case, whether on account of principal, interest, reimbursement obligations, payments in respect of an early termination date, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Secured Persons that are required to be paid by the Mortgagor pursuant to the terms of any of the Secured Documents); and

 

(e)           any and all renewals, modifications, substitutions, rearrangements or extensions of any of the foregoing, whether in whole or in part.

 

Section 2.05          Pro Rata Benefit .  This Mortgage is executed and granted for the pro rata benefit and security of the Secured Persons to secure the Secured Obligations for so long as same remains unpaid and thereafter until the Release Date.  This Section 2.05 shall not be construed to nor grant any of the

 

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Secured Persons the right to enforce the terms and provision of this Mortgage, such right being granted solely to the Mortgagee.

 

Section 2.06.  Maximum Secured Obligation .  The maximum amount of all obligations secured by this Mortgage, not including interest, collection costs, and attorneys’ fees, is $8,649,000.

 

ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS

 

The Mortgagor hereby represents, warrants and covenants as follows:

 

Section 3.01          Title .  To the extent of the undivided interests specified on Exhibit A , the Mortgagor has good and defensible title to and is possessed of the Mortgaged Property.  The Mortgagor has valid title to the UCC Collateral.  The Collateral is free of all Liens except Permitted Liens.

 

Section 3.02          Defend Title .  This Mortgage is, and always will be kept, a direct first priority Lien upon the Collateral; provided that Permitted Liens may exist as provided in the Collateral Agency Agreement, but no intent to subordinate the priority of the Liens created hereby is intended or inferred by such existence.  The Mortgagor will not create or suffer to be created or permit to exist any Lien prior or junior to or on a parity with the Lien of this Mortgage upon the Collateral or any part thereof other than such Permitted Liens.  The Mortgagor will warrant and defend the title to the Collateral, subject to the Permitted Liens, against the claims and demands of all other Persons whomsoever and will maintain and preserve the Lien created hereby (and its priority) until the Release Date.  If (i) an adverse claim be made against or  a cloud develop upon the title to any part of the Collateral other than a Permitted Lien or (ii) any Person, including the holder of a Permitted Lien, shall challenge the priority or validity of the Liens created by this Mortgage, then the Mortgagor agrees, upon obtaining knowledge thereof, to immediately defend against such adverse claim, take appropriate action to remove such cloud or subordinate such Permitted Lien, in each case, at the Mortgagor’s sole cost and expense.  The Mortgagor further agrees that the Mortgagee may take such other action as it reasonably deems advisable to protect and preserve its interest in the Collateral, and in such event the Mortgagor will indemnify the Mortgagee against any and all cost, attorneys’ fees and other expenses which they may incur in defending against any such adverse claim or taking action to remove any such cloud.

 

Section 3.03          Not a Foreign Person .  The Mortgagor is not a “foreign person” within the meaning of sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended (i.e., the Mortgagor is not a non-resident alien, foreign corporation, foreign partnership, foreign trust or foreign estate as those terms are defined in such Code and any regulations promulgated thereunder).

 

Section 3.04          Power to Create Lien and Security .  The Mortgagor has full trust power and lawful authority to grant, bargain, sell, assign, transfer, mortgage and convey a Lien on all of the Collateral in the manner and form herein provided.

 

Section 3.05          Abandon, Sales .  The Mortgagor will not sell, lease, assign, transfer or otherwise dispose or abandon any of the Collateral before the Release Date except (i) for the sale, assignment, transfer and disposition of Hydrocarbons in the ordinary course of business, (ii) as consented to by a Dual-Vote Majority and/or (iii) as otherwise contemplated by this Mortgage.

 

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Section 3.06          Failure to Perform .  The Mortgagor agrees that if it fails to perform any act or to take any action which it is required to perform or take hereunder or pay any money which the Mortgagor is required to pay hereunder, the Mortgagee, in the Mortgagor’s name or its own name, may, but shall not be obligated to, perform or cause to perform such act or take such action or pay such money, and any expenses so incurred by it and any money so paid by it shall be a demand obligation owing by the Mortgagor to the Mortgagee, and the Mortgagee, upon making such payment, shall be subrogated to all of the rights of the Person receiving such payment.  Each amount due and owing by the Mortgagor to the Mortgagee pursuant to this Mortgage shall bear interest from the date of demand on Mortgagor therefor until paid at the Default Rate.

 

ARTICLE IV
RIGHTS AND REMEDIES

 

Section 4.01          Event of Default .  A Triggering Event under the Collateral Agency Agreement shall be an “ Event of Default ” under this Mortgage.

 

Section 4.02          Foreclosure and Other Remedies .

 

(a)           After the occurrence of an Event of Default, the lien evidenced hereby shall be subject to foreclosure, as Mortgagee may elect, in any manner provided for herein or provided for or required by law.

 

(b)           After the occurrence of an Event of Default, and if such event shall be continuing, Mortgagee shall have the right and power to sell, to the extent permitted by law, at one or more sales, as an entirety or in parcels, as Mortgagee may elect, the Mortgaged Properties, at such place or places and otherwise in such manner and upon such notice as may be required by law, or, in the absence of any such requirement, as Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers.  Mortgagee may postpone the sale of all or any portion of the Mortgaged Properties by public announcement at the time and place of such sale and from time to time thereafter may further postpone such sale by public announcement made at the time of sale fixed by the preceding postponement.

 

(c)           If any of the Secured Obligations shall become due and payable and shall not be promptly paid, the Mortgagee shall have the right and power to proceed by a suit or suits in equity or at law, whether for the specific performance of any covenant or agreement herein contained or in aid of the execution of any power herein granted, or for any foreclosure hereunder or for the sale of the Collateral under the judgment or decree of any court or courts of competent jurisdiction, or for the appointment of a receiver pending any foreclosure hereunder or the sale of the Collateral under the order of a court or courts of competent jurisdiction or under executory or other legal process, or for the enforcement of any other appropriate legal or equitable remedy.  Any money advanced by the Mortgagee in connection with any such receivership shall be a demand obligation (which obligation the Mortgagor hereby expressly promises to pay) owing by the Mortgagor to the Mortgagee and shall bear interest from the date of making such advance by the Mortgagee until paid at the Default Rate.

 

(d)           Mortgagee shall have the right to become the purchaser at any sale held by Mortgagee or by any court, receiver or public officer, and shall have the right to credit upon the amount of the bid made therefor the amount payable out of the net proceeds of such sale to it.

 

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(e)           Any sale by Mortgagee of the Mortgaged Properties may be made in any county in which any part of the Mortgaged Properties to be sold at such sale may be situated.  Mortgagee may, from time to time, postpone the sale by public announcement thereof at the time and place noticed therefor.  If the Mortgaged Properties consists of several parcels or interests, Mortgagee may designate the order in which the same shall be offered for sale or sold.  Mortgagor waives all rights to direct the order in which any of the Mortgaged Properties will be sold in the event of any sale under this Mortgage, and also any right to have any of the Mortgaged Properties marshaled upon any sale.

 

(f)            Notwithstanding any other provisions of this Mortgage, any lease of Minerals covered by this Mortgage which are subject to the Mineral Leasing Act of 1920 as amended, and the regulations promulgated thereunder, shall not be sold or otherwise disposed of to any party other than the citizens of the United States, or to associations of such citizens or to any corporation organized under the laws of the United States, or any state or territory thereof that are qualified to own or control interests in such leases under the provisions of such Act and regulations, or to Persons who may acquire ownership or interest in such leases under the provisions of 30 U.S.C. §184(g) if applicable, as such Act or regulations are now or may be from time to time in effect.

 

(g)           If an Event of Default shall occur and be continuing, then (i) the Mortgagee shall be entitled to all of the rights, powers and remedies afforded a secured party by the Applicable UCC with reference to the UCC Collateral and (ii) the Mortgagee may proceed as to any UCC Collateral in accordance with the rights and remedies granted under this Mortgage or applicable law in respect of the UCC Collateral.  Such rights, powers and remedies shall be cumulative and in addition to those granted to the Mortgagee under any other provision of this Mortgage or under any other Secured Document.  Written notice mailed to Mortgagor as provided herein at least ten (10) days prior to the date of public sale of any part of the Collateral which is personal property subject to the provisions of the Applicable UCC, or prior to the date after which private sale of any such part of the Collateral will be made, shall constitute reasonable notice.  Without in any manner limiting the generality of any of the other provisions of this Mortgage, this Mortgage is effective as a financing statement and may be filed of record in the real estate records with respect to all as-extracted collateral comprising any part of the Collateral pursuant to the Applicable UCC.  Mortgagor hereby authorizes Mortgagee to file, in any filing or recording office, one or more UCC financing statements describing the UCC Collateral and any renewal, continuation or amendment statements thereof.

 

(h)           The Collateral may be sold in one or more parcels and to the extent permitted by applicable law in such manner and order as the Mortgagee, in its sole discretion, may elect, it being expressly understood and agreed that the right of sale arising out of any Event of Default shall not be exhausted by any one or more sales.

 

(i)            The Mortgagee may appoint or delegate any one or more Persons as agent to perform any act or acts necessary or incident to any sale held by the Mortgagee, including the posting of notices, in the name and on behalf of the Mortgagee.

 

Section 4.03          Possession of Mortgaged Property .  If an Event of Default shall have occurred and be continuing, then, to the extent permitted by applicable law, the Mortgagee shall have the right and power to enter into and upon and take possession of all or any part of the Collateral in the possession of the Mortgagor, its successors or assigns, or its or their agents or servants, and may exclude the Mortgagor, its successors or assigns, and all persons claiming under the Mortgagor, and its or their agents or servants wholly or partly therefrom; and, holding the same, the Mortgagee may use, administer, manage, operate

 

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and control the Collateral and conduct the business thereof to the same extent as the Mortgagor, its successors or assigns, might at the time do and may exercise all rights and powers of the Mortgagor, in the name, place and stead of the Mortgagor, or otherwise as the Mortgagee shall deem best.  All costs, expenses and liabilities of every character incurred by the Mortgagee in administering, managing, operating, and controlling the Mortgaged Property shall constitute a demand obligation (which obligation the Mortgagor hereby expressly promises to pay) owing by the Mortgagor to the Mortgagee and shall bear interest from the date of demand on Mortgagor therefor until paid at the Default Rate.

 

Section 4.04          Remedies Cumulative, Concurrent and Nonexclusive .  Every right, power, privilege and remedy herein given to the Mortgagee shall be cumulative and in addition to every other right, power and remedy herein specifically given or now or hereafter existing in equity, at law or by statute.  Each and every right, power, privilege and remedy whether specifically herein given or otherwise existing may be exercised from time to time and so often and in such order as may be deemed expedient by the Mortgagee, and the exercise, or the beginning of the exercise, or the abandonment, of any such right, power, privilege or remedy shall not be deemed a waiver of the right to exercise, at the same time or thereafter any other right, power, privilege or remedy.  No delay or omission by the Mortgagee or any other Secured Person in the exercise of any right, power or remedy shall impair any such right, power, privilege or remedy or operate as a waiver thereof or of any other right, power, privilege or remedy then or thereafter existing.

 

Section 4.05          Discontinuance of Proceedings .  If the Mortgagee shall have proceeded to invoke any right, remedy or recourse permitted hereunder or under any Secured Document or available at law and shall thereafter elect to discontinue or abandon same for any reason, then it shall have the unqualified right so to do and, in such an event, the parties shall be restored to their former positions with respect to the Secured Obligations, this Mortgage, the Collateral Agency Agreement, the Collateral and otherwise, and the rights, remedies, recourses and powers of the Mortgagee, as applicable, shall continue as if same had never been invoked.

 

Section 4.06          No Release of Obligations .  Neither the Mortgagor nor any other Person hereafter obligated for payment of all or any part of the Secured Obligations shall be relieved of such obligation by reason of:  the failure of any Person so obligated to foreclose the Lien of this Mortgage or to enforce any provision hereunder or under the Collateral Agency Agreement or any other Secured Document;  the release, regardless of consideration, of the Collateral or any portion thereof or interest therein or the addition of any other property to the Collateral; or  by any other act or occurrence save and except upon the occurrence of the Release Date.

 

Section 4.07          Release of and Resort to Collateral .  The Mortgagee may release, regardless of consideration, any part of the Collateral without, as to the remainder, in any way impairing, affecting, subordinating or releasing the Lien created in or evidenced by this Mortgage or its stature as a first and prior Lien in and to the Collateral and without in any way releasing or diminishing the liability of any Person liable for the repayment of the Secured Obligations.  For payment of the Secured Obligations, the Mortgagee may resort to any other security therefor held by the Mortgagee in such order and manner as the Mortgagee may elect.

 

Section 4.08          Waiver of Redemption, Notice and Marshalling of Assets, Etc.   To the fullest extent permitted by law, the Mortgagor hereby irrevocably and unconditionally waives and releases  all benefits that might accrue to the Mortgagor by virtue of any present or future moratorium law or other law exempting the Collateral from attachment, levy or sale on execution or providing for any

 

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appraisement, valuation, stay of execution, exemption from civil process, redemption or extension of time for payment;  all notices of any Event of Default or of the Mortgagee’s or any other Secured Person’s intention to accelerate the Secured Obligations or of any election to exercise or any actual exercise of any right, remedy or recourse provided for hereunder or under any Secured Document or available at law; and  any right to a marshalling of assets or a sale in inverse order of alienation.  Notwithstanding the foregoing, in the event of any judicial foreclosure of this Mortgage with respect to the Mortgaged Property, or any part thereof, appraisement of the Mortgaged Property is hereby waived or not waived, at the option of Mortgagee, such option to be exercised at the time of the entry of the foreclosure judgment or any time prior thereto.  If any law referred to in this Mortgage and now in force, of which the Mortgagor or its successor or successors might take advantage despite the provisions hereof, shall hereafter be repealed or cease to be in force, such law shall thereafter be deemed not to constitute any part of the contract herein contained or to preclude the operation or application of the provisions hereof.  If the laws of any state which provides for a redemption period do not permit the redemption period to be waived, the redemption period shall be specifically reduced to the minimum amount of time allowable by statute.

 

Section 4.09          Application of Proceeds .  The proceeds of any foreclosure sale of the Collateral or any part thereof and all other monies received in any other proceedings for the enforcement hereof shall be applied:

 

(a)           First, to the payment of all reasonable expenses incurred by the Mortgagee incident to the enforcement of this Mortgage, the Collateral Agency Agreement or any Secured Document to collect any portion of the Secured Obligations (including, without limiting the generality of the foregoing, expenses of any entry or taking of possession, of any sale, of advertisement thereof, and of conveyances, and court costs, compensation of agents and employees, and legal fees), and to the payment of all other reasonable charges, expenses, liabilities and advances incurred or made by the Mortgagee under this Mortgage or in executing any trust or power hereunder; and

 

(b)           Second, as set forth in Section 6(b)  of the Collateral Agency Agreement (but without duplication of the amounts applied in (a) above).

 

Section 4.10          Indemnity .  THE INDEMNIFIED PARTIES SHALL NOT BE LIABLE, IN CONNECTION WITH ANY ACTION TAKEN, FOR ANY LOSS SUSTAINED BY THE MORTGAGOR RESULTING FROM AN ASSERTION THAT THE MORTGAGEE HAS RECEIVED FUNDS FROM THE PRODUCTION OF HYDROCARBONS CLAIMED BY THIRD PERSONS OR ANY ACT OR OMISSION OF ANY INDEMNIFIED PARTY IN ADMINISTERING, MANAGING, OPERATING OR CONTROLLING THE COLLATERAL INCLUDING SUCH LOSS WHICH MAY RESULT FROM THE ORDINARY NEGLIGENCE OF AN INDEMNIFIED PARTY UNLESS SUCH LOSS IS CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE RELEVANT INDEMNIFIED PARTY.  NO INDEMNIFIED PARTY WILL BE OBLIGATED TO PERFORM OR DISCHARGE ANY OBLIGATION, DUTY OR LIABILITY OF THE MORTGAGOR.  THE MORTGAGOR SHALL AND DOES HEREBY AGREE TO INDEMNIFY EACH INDEMNIFIED PARTY FOR, AND TO HOLD EACH INDEMNIFIED PARTY HARMLESS FROM, ANY AND ALL LIABILITY, LOSS OR DAMAGE WHICH MAY OR MIGHT BE INCURRED BY ANY INDEMNIFIED PARTY BY REASON OF THIS MORTGAGE OR THE EXERCISE OF RIGHTS OR REMEDIES HEREUNDER, UNLESS SUCH LIABILITY, LOSS OR DAMAGE IS CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE RELEVANT INDEMNIFIED PARTY.  IF ANY INDEMNIFIED PARTY SHALL MAKE ANY EXPENDITURE ON ACCOUNT OF ANY SUCH LIABILITY, LOSS OR DAMAGE, THE AMOUNT THEREOF, INCLUDING COSTS, EXPENSES AND REASONABLE ATTORNEYS’ FEES, SHALL BE A DEMAND OBLIGATION (WHICH OBLIGATION THE MORTGAGOR HEREBY EXPRESSLY PROMISES TO PAY) OWING BY THE

 

10



 

MORTGAGOR TO SUCH INDEMNIFIED PARTY AND SHALL BEAR INTEREST FROM THE DATE OF DEMAND THEREFOR UNTIL PAID AT THE DEFAULT RATE.  THE MORTGAGOR HEREBY ASSENTS TO, RATIFIES AND CONFIRMS ANY AND ALL ACTIONS OF EACH INDEMNIFIED PARTY WITH RESPECT TO THE COLLATERAL TAKEN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS MORTGAGE.  THE LIABILITIES OF THE MORTGAGOR AS SET FORTH IN THIS SECTION 4.10 SHALL SURVIVE THE TERMINATION OF THIS MORTGAGE.

 

Section 4.11          Limitations on Rights and Waivers .  All rights, powers and remedies herein conferred shall be exercisable by 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 V
MISCELLANEOUS

 

Section 5.01          Instrument Construed.   This Mortgage may be construed as a mortgage, conveyance, assignment, security agreement, hypothecation or contract, or any one or more of them, in order fully to effectuate the Lien hereof and the purposes and agreements herein set forth.

 

Section 5.02          Recording .  Mortgagor will cause this Mortgage and all amendments and supplements thereto and substitutions therefor to be recorded, filed, re-recorded and refiled in such manner and in such places as Mortgagee shall reasonably request and will pay all such recording, filing, re-recording and refiling taxes, fees and other charges.

 

Section 5.03          Releases .

 

(a)           Full Release .  Upon the Release Date, (i) all Liens granted hereunder shall automatically be released without any further action on the part of any Person and (ii) the Mortgagee shall forthwith cause satisfaction and discharge of this Mortgage to be entered upon the record at the expense of the Mortgagor and shall promptly execute and deliver or cause to be executed and delivered to the Mortgagor such instruments of satisfaction, release, re-conveyance and reassignment or other documents as may be appropriate.  Otherwise, this Mortgage shall remain and continue in full force and effect.

 

(b)           Partial Release .  If any of the Collateral shall be sold, assigned, transferred or otherwise disposed of by the Mortgagor in a transaction that is not prohibited by Section 3.05 of this Mortgage, then (i) such Collateral shall be so sold, assigned, transferred or otherwise disposed of free and clear of all Liens thereon granted hereunder (and such Liens on such Collateral shall automatically be released without further action on the part of any Person) and (ii) the Mortgagee, at the request and sole expense of the Mortgagor, shall promptly execute and deliver or cause to be executed and delivered to the Mortgagor such instruments of release, re-conveyance and reassignment or other documents reasonably necessary or desirable for the release of the Liens created hereby on such Collateral.

 

Section 5.04          Severability .  If any provision hereof is invalid or unenforceable in any jurisdiction, the other provisions hereof shall remain in full force and effect in such jurisdiction and the remaining provisions hereof shall be liberally construed in favor of the Mortgagee and the other Secured Persons in order to effectuate the provisions hereof.  The invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of any such provision in any other jurisdiction.

 

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Section 5.05          Successors and Assigns .  The terms used to designate any party or group of Persons shall be deemed to include the respective heirs, legal representatives, successors and assigns of such Persons.

 

Section 5.06          Application of Payments to Certain Obligations .  If any part of the Secured Obligations cannot be lawfully secured by this Mortgage or if any part of the Collateral cannot be lawfully subject to the Lien hereof to the full extent of the Secured Obligations, then all payments made shall be applied on said Secured Obligations first in discharge of that portion thereof which is not secured by this Mortgage.

 

Section 5.07          Nature of Covenants .  The covenants and agreements herein contained shall constitute covenants running with the land and interests covered or affected hereby and shall be binding upon the heirs, legal representatives, successors and assigns of the parties hereto.

 

Section 5.08          Notices .  All notices, requests, consents, demands and other communications required or permitted hereunder shall be in writing and shall be deemed sufficiently given or furnished if delivered by registered or certified United States mail, postage prepaid, or by personal service (including express or courier service) at their respective addresses below:

 

If to Mortgagor:

 

SandRidge Mississippian Trust II

 

 

c/o The Bank of New York Mellon Trust Company, N.A.

 

 

Institutional Trust Services

 

 

919 Congress Avenue, Suite 500

 

 

Austin, Texas 78701

 

 

Attention: Michael J. Ulrich

 

 

 

If to Mortgagee:

 

Wilmington Trust, National Association, as Collateral Agent

 

 

50 South Sixth Street, Suite 1290

 

 

Minneapolis, MN 55402

 

 

Attention: Jeffery Rose

 

(unless changed by similar notice in writing given by the particular party whose address is to be changed). Any such notice or communication shall be deemed to have been given either at the time of personal delivery or, in the case of delivery at the address and in the manner provided herein, upon receipt; provided that, service of notice as required by the laws of any state in which portions of the Collateral may be situated shall for all purposes be deemed appropriate and sufficient with the giving of such notice.

 

Section 5.09          Counterparts .  This Mortgage is being executed in several counterparts, all of which are identical,.  Each of such counterparts shall for all purposes be deemed to be an original and all such counterparts shall together constitute but one and the same instrument.

 

Section 5.10          Governing Law .  Insofar as permitted by otherwise applicable law, this Mortgage shall be construed under and governed by the laws of the State of Kansas.

 

Section 5.11          Exculpation Provisions EACH OF THE PARTIES HERETO SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS MORTGAGE; AND AGREES THAT IT IS CHARGED WITH

 

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NOTICE AND KNOWLEDGE OF THE TERMS OF THIS MORTGAGE; THAT IT HAS IN FACT READ THIS MORTGAGE AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS MORTGAGE; THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS MORTGAGE; AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS MORTGAGE; AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS MORTGAGE RESULT IN ONE PARTY ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY.  EACH PARTY HERETO AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF THIS MORTGAGE ON THE BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT “CONSPICUOUS.”

 

Section 5.12          Amendments .  Subject to the provisions of the Collateral Agency Agreement, this Mortgage may be amended or modified by the Mortgagor and the Mortgagee in writing.

 

Section 5.13          Entire Agreement; Collateral Agency Agreement Controlling .  THIS WRITTEN MORTGAGE AND THE OTHER PRINCIPAL DOCUMENTS TOGETHER REPRESENT THE FINAL AGREEMENT BETWEEN 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 BETWEEN THE PARTIES.  In the event of a conflict between any provision hereof and any provision of the Collateral Agency Agreement, the provisions of the Collateral Agency Agreement shall govern and control.

 

Section 5.14          Execution of Financing Statements .  Pursuant to the Applicable UCC, the Mortgagor authorizes the Mortgagee, its counsel or its representative, at any time and from time to time, to file or record financing statements, continuation statements, amendments thereto and other filing or recording documents or instruments with respect to the Collateral without the signature of the Mortgagor in such form and in such offices as the Mortgagee reasonably determines appropriate to perfect the security interests of the Mortgagee under this Mortgage.

 

In that regard, the following information is provided:

 

Name of Debtor:

 

SandRidge Mississippian Trust II

Address of Debtor:

 

c/o The Bank of New York Mellon Trust Company, N.A.

 

 

Institutional Trust Services

 

 

919 Congress Avenue, Suite 500

 

 

Austin, Texas 78701

 

 

Attention: Michael J. Ulrich

State of Formation/Location:

 

Delaware

 

Section 5.15          References .  The words “herein,” “hereof,” “hereunder” and other words of similar import when used in this Mortgage refer to this Mortgage as a whole, and not to any particular article, section or subsection.  Any reference herein to a Section shall be deemed to refer to the applicable Section of this Mortgage unless otherwise stated herein.  Any reference herein to an exhibit or schedule shall be deemed to refer to the applicable exhibit or schedule attached hereto unless otherwise stated herein.   The words “include,” “includes” and “including” as used in this Mortgage shall be deemed to be followed by the phrase “without limitation.”

 

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[SIGNATURES BEGIN NEXT PAGE]

 

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Executed on this 16th day of April, 2012, to be effective as of the Effective Date.

 

 

 

SANDRIDGE MISSISSIPPIAN TRUST II

 

 

 

By:

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee

 

 

 

 

 

 

 

 

By:

  /s/Michael J. Ulrich

 

 

 

Michael J. Ulrich

 

 

 

Vice President

 

 

STATE OF TEXAS

§

 

 

§

 

COUNTY OF TRAVIS

§

 

 

 

This instrument was acknowledged before me on April 16, 2012 by Michael J. Ulrich, Vice President of The Bank of New York Mellon Trust Company, N.A., a national banking association, on behalf of said association as the Trustee of SandRidge Mississippian Trust II, a Delaware statutory trust.

 

 

 

/s/ Sarah Newell

 

Notary Public

 

 

 

Seal:

 

 

Signature Page - Trust Mortgage

 



 

EXHIBIT A

 

(See attached.)

 

Exhibit A-1