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HomeMy WebLinkAbout876051 DORTGAGE WITH POWER OF SALE, DEED'OF TRUST, SE~URI~ FINANCING STATEMENT AND ASSIGNM~-I, ~,,,, .... A POWER OF SALE HAS BEEN G~NTED IN'THIS MOR~'~G~ POWER OF SALE MAY ALLOW THE MORTGAGEE TO TAKE THE MORTGAGED PROPERW AND SELL IT WITHOUT GOING TO COURT I'N A FORECLOSURE ACTION UPON DEFAULT BY THE MORTGAGOR UNDER THIS MORTGAGE. KNOW ALL MEN BY THESE PRESENTS THAT: On this 31't day of Adgust, 2001, CDX GAS, L.L.C., a Texas limited',liability company (hereinafter referred.~to as "Mo~gagor") with its principal o~ce and mailing address at 5485 Beltline Road, SUite 280, Dallas, Texas 75240, has modgaged, and does hereby modgage, grant, barga[..~, sell, grant a security interest in and.convey unto DART ENERGY CORP0~T!ON,. ?a MiChigan corporation (hereinafter referred to as "Mo~gagee'', 'which'term shall b~e construed to include successors and assigns), having its principal mailing address at 60C~,Da~ Road, P.O. Box 177, Mason, Michigan, 48854-0177, and specifically grants to and ;~;onfers upon Modgagee the power to sell in ihe manner provided in the Power of Sab~ Mo~gage Foreclosure Act of the staie in which this Mo~gage. is filed, as the same Pnay be amended from time to time, the prope~y described in Exhibit ."A" a~ached hereto ~all of which constitute non-producing prope~ies; as of the date hereo0 and made a pa~?t hereof by reference, including but not limited to, the following: , A. All of Mo~gagor's right, title and interest now owned or hereafter acquired in the oil, gas, coal bed methane and mineral leases (the "Leases") and/or minerals, mineral interests and estates in and u~der the real prope~ies described in Exhibit "A" a~ached hereto and made a pa~ here~ff (the "Lands"), including Without limitation, all leasehold interests, operating rights, royalties overriding royalties, net profits interests, and production payments, if any, therefrom, and all'interest of Mo~gagor in all other oil, gas, coal. bed methane and .minera~ interests-with which any of the aforementioned interests and estates of Mo~gagor in the~ Lands are now or may hereafter be unitized (hereinafter 'called "Hydrocarbon Interests"); B. All of Mo~gagor'~ interest in and to all oil wells, gas wells, coal bed methane wells, water wells, injection wells, casing, tubing, rod~'wate~ systems, flow lines, pipe lines, tools, communications systems, compressors, valves,', tanks, separators, pumps, engines, christmas trees, der~"~cks, heater treaters, machine~ tools, .equipment, oil in storage, power plants, poles, transformers, sta~ers and controllers, buildings, structures, supplies, and all other persor.:al prope~y and improvements, if any, now or hereafter .located upon the Lands or us. ed in connection with any of the Hydrocarbon Interests, whether classified as fi~ures or not, and expressly including all personal prope~y of whatsoever kind used in the production of oil, gas, coal bed methane gas, casinghead gas or other hydrocarbon substanc~t:~s whether located below or above ground, and all oil gas, coal bed methane gas, casinghead gas or other hydrocarbons owned by the Mortgagor and heretofore or hereafter prodaced from the Hydrocarbon Interests; C.. All of Mortgag0r's'.interest in, to and under all contracts, including without limitation contracts for the sal~;, purchase, exchange or processing of oil, gas, coal bed methane gas and other hy¢';¢ocarbons, operating agreements, farmout agreements, development'agreements, righls of way, easements, 'surface leases, permits, franchises, licenses, pooling or unitization agreements, pooling designations and pooling orders, now or hereafter affecting any of th:~:'interests now or hereafter, covered hereby, or which are useful or appropriate in drilling.or producing, treating, handling, storing transporting or marketing oil, gas coal bed .methane gas or other hydrocarbons from any of the Hydrocarbon Interests or other properties unitized therewith; D. All other tangibles, miscellaneous interests or other assets on or u'sed in connection with the Leases,. the Lands, and the Mortgaged Properties, including, without limitation, all lease file:s, land files, well files, production records, division order filesl, engineering reports, abstracts, title opinions, and contract files, seismic data, maps, and geophysical or geological interpretations or data; and E. The proceeds and:products of the foregoing, and all accounts resulting from the sale of oil, gas, coal bed, methane gas and other hydrocarbons at the wellhead, together with any and. all corrections or amendments to, or renewals, extensions or ratification of any of the same,,': or of any instrument relating thereto, all of which are hereinafter sometimes referred 'IQ as the "Mortgaged Properties"; TO HAVE AND TO HOLD,. the Mortgaged. Properties unto Mortgagee forever, together with all and singular 'i:he tenements, hereditaments and appurtenances now or hereafter belonging to or appertaining to the Mortgagor's present or future rights, title, interest or estate, in and to all or any part thereof. ARTICLE I ,~i;I~:'.'CU RED INDEBTEDNESS 1.01. Indebtedness. TI:e Mortgage is given to secure the following indebtedness, to wit: (a) Limited GUaranty. The Mortgagor's obligations under that certain Limited Guaranty to Mortgagee dated July 25, 2001, as amended, by that certain First Amendment to Limited Guaranty dated of even date herewith (colleCtively, the "Guaranty"); such Guaranty being given to secure that certain Promissory Note dated of even date herewith, executed by CDX Property Holdings, LLC and payable to'Mortgagee ir, the aggregate principal amount of Fifty Million and No/100 MORTGAGE WITH PC, WER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT Page 2 Dollars ($50,000,000.00)(the "Promissory Note") which Promissory Note bears interest as provided.therein and contains provisions for acceleration of maturity as therein set forth; .. (b) Mortgage.:~ All indebtedness incurred or arising pursuant to the provisions of this Mortgagee with Power of Sale, Deed of Trust,-Security Agreement, Financing Statement an¢ Assignment (herein called the "Mortgage"); (c) Renewals.: All guarantees given in substitution for the Guaranty and all renewals or exten~iqi'ns of any of the indebtedness hereinabove mentioned together will all ~nterest,:,.~tto[ney fees, and other charges thereon or incurred in connection therewith. 1.02. Definition of. se~iured Indebtedness. The indebtedness referred to in subheadings (a), (b) and (c) of Section 1.01 hereinabove, and all renewals and extensions thereof and all substitutions ~herefor, are sometimes hereinafter referred to as the ,. "Secured Indebtedness.." ARTICLE REPRESENTA*qONS, WARRANTIES AND COVENANTS 2.01. Representations ai':~d Warranties. Mortgagor hereby represents and warrants as follows: (a) AUthority. Mortgagor is the lawful owner of the Mortgaged Properties, and has good right and lawful authority to grant, sell, transfer and mortgage the same. (b) No EncumSrances. The Mortgaged Properties are free and clear of all lens and encumbran:ies securing debt or indebtedness for borrowed money of whatsoever kind and nat.~re. (c) Right to i;-~roceeds immediately prior to the execution of this Mortgage, if applicable, Mortgagor was entitled to receive all proceeds for present and future production of t}il, gas, coal bed methane gas, casinghead gas, and other hydrocarbons attributabl~ to the Hydrocarbon Interest co.vered by this Mortgage. (d) Status of !~.eases. To the best of Mortgagor's current knowledge, all Leases and oil and gas ~nd/or.coal bed methane leasehold estates covered by this Mortgage are valid and subsisting and are in full force and effect and will be maintained as such, or iflnot so maintained shall be replaced hereunder by oil, gas or coal bed methane p~'~perties of equal or greater value; and, if applicable, all lease bonuses, rents an'.] royalties due and payable thereunder and all severance MORTGAGE WITH PQ'WER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FIH~,';,NOING STATEMENT AND ASSIGNMENT Page 3 and production taxes p~:~yable with respect to the production therefrom have been duly paid. (e) Status of Wells. As of the 'date hereof, there are no producing 'wells located on the Mortgagedi,prOpert es or properties unitized therewith. (f) "Take or pay,, Obligations. Mortgagor is not obligated, by virtue of any prepayment under a:nY contract providing for the sale by Mortgagor of oil, gas, coal bed methane gas or other hydrocarbons which contains a "take or pay" clause or under any similar arrangement, to deliver oil, gas, coal bed methane gas or other hydrocarbons at some future time without then or thereafter receiving full payment therefor. (g) Title. Mortgago[ will warrant and forever defend Mortgagor's title to the Mortgaged PropertieS..aga nst the claims of all persons whomsoever claiming, or to claim the same or any part thereof by, through or under Mortgagor or otherwise. If the validity'or priority of this Mortgage, or any rights, titles, lien.or interests created or evide~ced hereby with resPect to the Mortgaged Properties, or any part thereof, shall be:endangered or questioned, or shall be attacked, directly or indirectly, or if any le~l~l proceedings are instituted against Mortgagor in respect thereto, Mortgagor will giv.¢ written notice thereof to Mortgagee, and at Mortgagor's own cost and expense¢'~.~Vill'idiligently endeavor to cure any defects that may be developed or claimed, and will take all necessary and proper steps for the prosecution or defense ,:If'such legal proceedings, including, but not limited to, the employment of counsel,the Prosecution or defense of litigation and the .release or discharge of all adverse claims. Mortgagee is hereby authorized and empowered to take such additional s!:eps as in Mortgagee's judgment or discretion may be necessary or proper in the prosecution or defense of such legal proceedings, including, but not limited to, the employment of independent counsel, the prosecution or defense of litigation, and the compromise or discharge of any adverse claims made wi'th respect to the Mortgaged Properties, and all expenses so incurred of every kir;d and character shall be.a demand obligation owing by Mortgagor and shall bear interest from the date of expenditUre until paid at the same rate as is provided in the Note for interest on past due principal, and shall be secured by the lien evidenced by this instrument, and the party incurring such expense shall be subrogated;to all rights of the person receiving such payment. 2.02. Covenants. So' I°ng as the Secured I~debtedness or any part thereof remains unpaid, and whether or not Mortgagor is the operator of the Mortgaged Properties, Mortgagor further covenants and agrees that either 'persona!ly or through an operatdr (and at Mortgagor's exp;~.nse): (a) Sale or Encumbrance. Mortgagor will not at any time during the existence hereof, without: first obtaining Mortgagee's prior written: consent, sell, MORTGAGE WITH P(:~i:-_-R OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FIN:Al'ICING STATEMENT AND ASSIGNMENT Page 4 assign, transfer, mortgag·e, encumber or otherwise disposa of any of the Mortgaged Properties, or, ·except as'provided in subheading (c) of this Section 2.02, remove or permit to be removed, ':: any personal or other removable property at any time covered hereby from the i'¢remises upon which the same may be situated. (b) Extension.'i::rand Renewals. By agreement with the maker or makers of any instrument 'evidi~:ncing any indebtedness at any time secured hereby, Mortgagee, without notii~ib to or consent of any other party to this Mortgage, may from time to time exte~ the time of payment of the whole or any part of such indebtedness, or may !.~ccept from said maker or makers one or more new instruments in the same..:or different form in renewal of or by way of substitution for any instrument of indebtedness without in any manner impairing or affecting the lien of this Mortgage or any 61f Mortgagee's rights hereunder. (c) Maintenan!;e and Repair. If applicable, Mortgagor shall cause to be kept and maintained in ~ood repair and sufficient operating condition all buildings, structures, machinery, i.l,equipment, fixtures or other personal property and improvements now or !~ereafter constituting part of the Mortgaged Properties, including' the making ofi~all necessary repairs, renewals, replacements, additions and improvements. (d) Operation ;' of Mortgaged Properties. If appliCable, Mortgagor will cause the Mortgaged PrOperties to be operated in a good and workmanlike manner as would a prudent operator in accordance with generally accepted practices, all applicable rules, regulations and orders promulgated by all duly constituted authorities and in accordance with the provisions of the Leases and any and all other agreements or i~struments comprising or applicable to the Mortgaged Properties. (e) Enforceme~nt of Leases and Agreements. Mortgagor will cause all of the terms and provisioi,'~s, express or implied~ of the Leases, and of any other agreements or.instCume~i~ts, applicable to the Hydrocarbon Interests or. comprising the Mortgaged'Pr°Pertie¢~ to be observed and performed. 'If apPliCable, except with the prior written consen~ of the Mortgagee, Mortgagor will not amend or terminate any 'of such agreements or surrender or abandon or release any of the Leases or other Hydrocarbon inter:~;sts in whole or in part so long as any well situated on the Lands, or located on any unit containing all or any part of the Lands, is capable of producing oil, gas, coal bed methane gas, casingl~ead gas or other hydrocarbons in paying quantities, and ¥?ill cause to be promptly discharged all obligations to the ' holders of royalty intere¢its and all other interests in the Hydrocarbon Interests 'and will cause to be perf°~!med all covenants and conditions, express or implied, imposed upon the or¢!inal lessee or other owner of anY of the Hydrocarbon Interests or upon Mortgagor under the agreements comprising or applicable to the · Mortgaged Properties..' MORTGAGE WITH POWER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT Page 5 (f) Maintenar~ce of Existence. Mortgagor will Continue to maintain Mortgagor's existence a!~d Mortgagor's right to do business in the States of Texas, Oklahoma and in'each 'other state where any part of the Mortgaged Properties are situated, and will pay 'r? . cause to be paid all franchise, license, or other fees or taxes necessary to preserVe the existence· of every signatory hereto, in every state wherein any of the Mort~;~aged Properties may be situated (g) Taxes. Mortgagor will promptly pay, or cause to be·paid, before delinquent, all taxes, ass~essments and other governmental charges of every kind and character now or hereafter levied, imposed or assessed against the Mortgaged Properties, or any part thereof, or which might become a lien thereon, including, if applicable, all such .taxes as may be incident to the operation, development or maintenance of said properties, or the production of oil, gas, coal bed methane gas, casinghead gas or other~I hydrocarbons from the Hydrocarbon Interests, ahd will cause to be discharged all obligations to the holders of royalty interests, and of' other interests in the Hydrocarbon Interests and will cause all covenants and conditions, express or iiimplied, imposed upon the original lessee or assigns or successors by every Le~e and every other agreement relative to the Hydrocarbon Interests to be fully and ~promptly performed and do all things and perform all acts necessary or proper.to accomplish the foregoing and prevent the breach or forfeiture of any such.-; Lease or other agreement; provided, however, that if Mortgagor shall ·fail, at~.any time, to make such payments, Mortgagee shall be entitled to do so on its behalf, and any such payments by Mortgagee shall not reduce the amount of ~i.ndebtedness secured hereby but shall be added to and become a part thereof. ':'. (h) Debts an0i Liabilities. Mortgagor will promptly pay, or cause to be paid, all debts and liabilities of any character, including without limitation all debts and liabilities for labor.~ material and equipment-incurred in the operation and development of the Morl:gaged Properties. (i) · Business i~,ecords. Mortgagor will keep accurate books and records in accordance with generally accepted accounting principles, in which full, true and correct entries shall be Pr?mptly made as to all information and reports received by Mortgagor, including bu~. not limited to, all information concerning the status of the Mortgaged Properties and all land records concerning the Mortgaged Properties, contracts concerning the Mortgaged Properties, records as to the existence and validity of the Leases, an¢:, if applicable, all inforrd'ation .·concerning operation on the Mortgaged. Properties and all such books and records shall at all times during reasonable business hours be subject to inspection by MOrtgagee and Mortgagee's duly accredited represe~ntatiVes, and if and as often as requested by Mortgagee,. Mortgagor ·shall· provide:~e, opies of all reports of operations received by Mortgagor from operators of the Mortgaged Properties, setting out full dates 'as to production and revenues from the Mortgaged Properties attributable to Mortgagor's interests. MORTGAGE WITH PC'W,t:ER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT Page 6 (j) Insurance.i~ In the event that there are ever any producing wells or other operatic'ns locater_, on the Mortgaged Properties, Mortgagor will cause to be procured and kept-in ~°.r~ie in a company or companies acceptable to Mortgagee, all such workers' compens~tion and public liability insurance as may from time to time be required by Mo'rtgag.~.e with respect to the Mortgaged Properties, or any part thereof; and will cause t!? be kept such part of the Mortgaged Properties which is of an insurable nature and~!of a character usually insured by persons operating similar properties insured with companies of recognized responsibility satisfactory to Mortgagee against loss; or damage by fire and from other causes customarily .insured against; and shi:.~ll notify all insurers that Mortgagee is a loss payee under all applicable policies. ~dl policies evidencing such insurance shall contain clauses providing that the proce!~ds thereof shall be payable to Mortgagee as Mortgagee's interest may appear; a!iii~d in the event of any loss under any of said 'policies, Mortgagee shall have the right to collect the same. All amounts so received shall be applied toward costs charges and expenses incurred in the collection thereof, then to the payment of the Secured Indebtedness, any balance remaining shall be subject to the order of ~'l, ortgagor; provided, however, that Mortgagor, if Mortgagee consents thereto in writing, may receive all or a portion of said proceeds'so collected for the sole purpose of reimbursing Mortgagor for expenditures made in repairing and restoring the damaged property, and Mortgagee is hereby authorized but not obligated to enilorce in Mortgagee's name or' in the name of Mortgagor, payment of any or all said policies or to settle or compromise any claim in respect thereof, and to collect arid make receipts for the proceeds thereof. (k) Rents, Rc~;/alties and Expenses. Mortgagor will cause to be paid, promptly as and when d:he and payable, all rentals and royalties payable in respect of the Hydrocarbon Inte?ests, and, if applicable, all expenses incurred in or arising from the operation or ~development of the Hydrocarbon Interests (except as 'contested in good faith ~'r~d by appropriate judicial or other proceedings). (I) Further A~:~isurances. Whenever and as often as requested by Mortgagee, Mortgagor F?omptly shall execute and deliver,, or cause to be executed and delivered, all such~iother and further instruments, documents or assurances (including all such as m'.~y from time to time be required by pipeline companies or other purchasing partie-';') and promptly shall do or cause to be done all such other and further things as r~ay, by Mortgagee be deemed necessary, expedient or advisable in order to bei:ter and more fully preserve or vest in Mortgagee all rights, interests, powers, benei~i~ts privileges and advan~ges~.conferred or intended to be conferred by this Mortg~ge, or by any other instrument delivered simultaneously or '~ pursuant hereto. (m) Third Pa~i Compliance. As to any part of the Mortgaged Properties which is not a leasehoid or working interest, Mortgagor agrees to take all such action and to exercise all rights and remedies as are available .to Mortgagor to MORTGAGE WITH P'.i)WER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FI~,iANCING STATEMENT AND ASSIGNMENT Page 7 cause the owner or owmi, rs of the working interest in such properties to comply with the covenants and agre~i~ents contained herein. (n) Mortgagee~!.S Right to Perform; Subrogation. Mortgagor agrees that if Mortgagor fails to perfor~:'i any act or to take any action which hereunder Mortgagor is required to perform o!'~!ake, or to pay any money which hereunder Mortgagor is required to pay, Mortga.qee, in Mortgagor's name, or in Mortgagee's own name, may, but shall not be ob;ligated to perform or cause to be performed, such act or take such action or pay..";uch money and any expenses so incurred by Mortgagee and any money so paid. by Mortgagee shall be a demand obligation owing by Mortgagor, and shall bea~i interest from the date of making such payment until paid, at the same rate as provided in the Note for interest on past dUe principal and shall be a part of the Securect .Indebtedness and shall be secured bythis Mortgage and by any other instrumentiilsecuring the Secured Indebtedness. Mortgages, upon making any such paym.~J~t, shall be subrogated to all of the rights of the person, corporation or body politic:', receiving such payment. 2.03. Continuing Effect; ~:The above and foregoing representations, warranties and covenants shall at all times be construed to be covenants for the benefit of Mortgagee and they shall remain in full force :,and effect, notwithstanding the assignment hereof or the payment of all the indebtednes,.!!secured hereby, and the release, either partially or wholly, of the lien hereof, or anY forecle.~ure thereof. ARTICLE III ASSIGNMI:.:NT OF PRODUCTION, ACCOUNTS, CON'i"i:'i~.CT RIGHTS AND PROCEEDS 3.0'1. Assignment and Paiyment. As further security for the payment of all Secured Indebtedness and to facilitate th~; discharge of all such indebtedness and as cumulative of any and all rights herein proviJed for, Mortgagor hereby warrants, bargains, conveys, sells, transfers, assigns, set an:J delivers unto Mortgagee, and Mortgagee's successors and assigns, all oil, gas, coal bed methane gas, casinghead gas and other hydrocarbons produced from or allocated to the Mortgaged Properties which accrue to Mortgagor's Hydrocarbon Interests, and all proceeds from the sale thereof and all accounts and contract rights of Mortgagor ur. der which such proceeds may arise, which assignment shall be effective from and afte~ ::he day next following tl~'e date of first production (all such accounts and contract rights and proceeds being hereinafter referred to as the "Proceeds of Runs"). Although it is the intention of the parties that this assignment shall be a present assignment, it is expressly' understood and agreed, anything to the contrary notwithstanding, that as to each purchaser of oil, gas, coal bed methane gas, casinghead gas and other hydrocarbons a.liocated to the Mortgaged Properties (hereinafter called a "Purchaser"), Mortgagor shall be :entitled 'to receive all Proceeds of Runs until the Purchaser receives formal writt:en notice from Mortgagee to begin remitting Proceeds of MORTGAGE WITH P(_',.WER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FIk', ~CING STATEMENT AND ASSIGNMENT Page 8 i, Runs directly to Mortgagee (h(~'ireinafter called "Mortgagee's Notice"). Mortgagor directs and instructs each Purchaser. tq,.~ pay directly to Mortgagee upon Purchaser's receipt of the Mortgagee's Notice all, .or a'nYii'.portion so designated by Mortgagee, of the Proceeds of Runs accruing to Mortgagor's !:.interest until the sooner of such time thereafter as such Purchaser has been furnished !?Y Mortgagee with evidence that all Secured Indebtedness has been paid and that the I~er:,:s evidenced hereby have been released, or such time as Mortgagee directs otherwise. Delivery to Purchaser of Letters in Lieu of Division Orders or Transfer Orders, or of Transf!.~r Orders, executed by the parties, including any such instruments as are executed contemporaneously with the execution of this Mortgage, shall constitute such Mortgagee's Fiotce Mortgagor authorizes Mortgagee to receive and collect all sums of money deri~ed from the Proceeds of Runs assigned hereunder from .and after Mortgagee's Notice,:iand no Purchaser shall have any responsibility for the application of any funds paid to;iMortgagee. The receipt of Mortgagee for monies;so paid to Mortgagee shall be a full andl complete release, discharge and acquittance to any such pipeline company or other purbhaser to the extent of all sums so Paid. This instrument shall be and constitute full andi.:~,complete authority to and for any Purchaser, or any other person liable therefor, to .make' payment to Mortgagee, 'and Mortgagee's successors or assigns; of Mortgagor's prop~irtionate part of the Proceeds of RUns, or such lesser designated portion thereof, fro~n and after the date set forth in the Mortgagee's Notice. The office where the records oflMortgagor with respect to the accounts and contract rights concerning the Mortgaged ProPerties are kept is located at Mortgagor's address set forth herein, and Mortgagor agrees,::!that the place where such records are kept will not be changed without the prior consent of Mortgagee. 3.02. Transfer and Divi:Sion Orders. Independent of the foregoing provisions and aUthorities herein granted, Mortgagor agrees to execute and deliver, if applicable, any and all transfer orders, dMsion or~ders and other instruments that may be .' requested by Mortgagee at any time, including prospectively, or that may be required by any Purchaser for the purpose of effectuating i:!~e payment of the Proceeds of the Runs to Mortgagee. If, under any existing sales agre~:ments, other than division orders or transfer orders, any Proceeds of Runs are required, i to be paid by the Purchaser to Mortgagor, so that under such existing agreement paym~;nt, cannot, be made of such proceeds to Mortgagee upon .receipt of Mortgagee's Notice, !!Mortgagor's interest in all Proceeds of Runs under such sales agreements and all othe? Proceeds of Runs under such sales agreements and all their .Proceeds of Runs whichi: for any reason, may be paid to Mortgagor shall, when received by Mortgagor, constit~!~te trust funds in Mortgagor's hands and shall immediately .i be paid over to Mortgagee. 3.03.. Mortgagee's Right; to Payment.' Should any PurChaser fail to make payment prom'lStly to Mortgagee of the :hereby assigned Proceeds of Runs following receipt of Mortgagee's Notice, Mortgagee shall have the right to make or require Mortgagor to make a change'of connection, to the!extent the same is reasonably available, and the right to designate or approve the purc~iaser with whose facilities a new connection shall be made, without liability or~ responsibility!~in connection therewith so long as ordinary care is used in making such designations, an!!Mortgagor agrees to pay to the Mortgagee, on demand in MORTGAGE WITH POWER OF SALE DEED OF TRUST, SECURITY AGREEMENT, FI:qANCING STATEMENT AND ASSIGNMENT Page 9 writing therefor from Mortgagee; the amount of any Proceeds of Runs paid to Mortgagor rather than to Mortgagee by .any'person having responsibility therefor. 3.04. No Duty to Enf0rc~ Collection. Mortgagee and Mortgagee's successors and assigns are hereby absolved from any liability for failure to enforce collection of Proceeds of Runs and all other responsibility in connection therewith, except the responsibility to account to Mortgagor for funds actually received. The payment of the Proceeds of Runs as aforesaid, or the release to;,iMortgagor of any of the Proceeds of Runs which would otherwise be applicable hereunder to the Secured Indebtedness shall not affect or impair Mortgagee's right thereafter to r~tain in full all such payments or in any way impair or affect the lien of this Mortgage and the!ipriority thereof or any of the Mortgagee's rights hereunder orthe amount of the SecUred Ir'~'debtedness. 3.05. Indemnification A~]'ainst Third Party. Claims. Mortgagor agrees to indemnify and hold harmless Mortgagee,.'~nd MOrtgagee's successors and assigns, against any and all liabilities, actions, claims, j~.~dgments, costs, .charges and attorney's fees paid by or received bY. Mortgagee, eithe~r before, or after the payment in full of. the Secured Indebtedness and Mortgagee ~shall have the right to defend against any such claims or actions, employing attorneys i!0f M.ortgagee's selection, and if not furnished with a satisfactory indemnity, Mortga§,~e shall have the right to compromise and adjust any such cl.aims, actions and 'judgmer!~S. All amounts paid by. Mortgagee in compromise, satisfaction or discharge of a~y such claim, action or judgment, and all court costs, attorneys's fees and other expe.~ses of every character incurred by Mortgagee pursuant to the provisions of this Section 3~.~5 shall be a demand obligation owing by Mortgagor and shall bear interest from date of ~xpenditure until paid at the same rate as is provided in the Note for interest on past due principal, and shall be part of the Secured Indebtedness and shall be secured by this Mortgage and by any-other instrument securing the Secured Indebtedness. ; ' 3.06. Continuing Obligation. Nothing herein contained shall detract from or limit the absolute obligation of Mortgagor under this Mortgage regardless of whether the Proceeds of Runs herein assigned are sufficient to pay the Secured Indebtedness, and the rights of this assignment shall be cumulative of all other security of any and every character now or hereafter existing to secure the payment of the Mortgage and all other Secured Indebtedness. MORTGAGE WITH P(::WER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FII',i~,iNCING STATEMENT AND ASSIGNMENT Page 10 0S7605/. i':. ARTICLE IV .'. WA['¢ER AND PARTIAL RELEASE 4.01. Waiver. Mortgag,;ee may at any time and from time to time in writing (a) waive compliance of Mortgagor,?.with any covenant herein made by Mortgagor to the extent and in the manner specified in;such writing; and (b) consent to Mortgagor doing any act ' which hereunder MortgagOr is prohibited from doing, or to Mortgagor failing to do any act which Mortgagor hereunder is r,equired to do, to the extent and in the manner specified in such writing. No such act shall .in any way impair the rights of Mortgagee in such writing. 4.02. No Impairment of Lien. The lien and other Security rights of Mortgagee hereunder shall not be impaired by any indulgence, including but not limited to"(a) any renewal, extension or modification which Mortgagee may grant with respect to any Secured Indebtedness; (b) ar,!y surrender, compromise, release, renewal, extension, exchange or substitution whiCh Mortgagee may grant in respect of any item of' the Mortgaged Properties or any Raft thereof, or interest therein, or any of the Proceeds of Runs; and (c) any release or i~.ildulgence granted to.any endorser, guarantor or surety to any Secured Indebtedness. 4.0;3. Release of Acrea.,...]le. Notwithstanding anything herein to the contrary, upon the provision to Mortgagee by Mortgagor and D&J Oil Company, Inc. of (a) an application for.permit to drill a well, and (b)'~ plat describing the property constituting the proration unit to be assigned to such well (ti'ile '!Drilling Unit"), Mortgagee shall execute and deliver a partial release of this Mortgag~'ireleasing that part of the Mortgaged Property constituting the Drilling Unit. .. ~ ARTICLE V POSSESSION UNTIL DEFAULT, DEFEASANCE 5.01. Possession by .k:iortgagor. Unless a Default as defined and specified in Section 6.01 hereof shall occt?r and be continuing, Mortgagor shall retain custody and control of the Mortgaged Prop~irties, except the Proceeds'of'Runs, if aPplicable, following Mortgagee's Notice as provid~d under Article III above, and shall manage, operate, develop and use the same and every part thereof; subject, however, to the terms and provisions of this Mortgage. ARTICLE VI DEFAULT AND REMEDIES IN EVENT OF DEFAULT. 6.01. Events of Default:.; The term "Default" as used in this Mortgage shall mean the occurrence of any of the fol. iowing events: MORTGAGE WITH POWER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FIN&NOING STATEMENT AND ASSIGNMENT ! Page 11 0 7(i05 L :, c 0 8 (i) The failure of CDX Properties, LLC to make due and punctual payments of the Promi~,;ory Note or of any other Secured Indebtedness or of any installment of principal .Or interest or any part of any of them, as the same shall become due and payab!e; (ii) Following Mortgagee's Notice pursuant to Section 3.01 herein, the failure of Mortgagor to pay over to Mortgagee any Proceeds of Runs which are paid to Mortgagor rather thap to Mortgagee within five (5) business.days of receipt thereof; (iii) The failure any covenant, agreement, warranty or condition herein required to be observed, kept or performed and i~i:Jch failure is not remedied within ten (10) business days after receipt by Mortgag!~.~' of written notice.of such failure from Mortgagee; (iv) Mortgagor: becomes insolvent or makes an assignment for benefit of creditors; (v) Institution of receivership proceedings against Mortgagor °r involving any of .the Mortgaged, Properties, or in the event of the institution of any proceedings by or agai?~.st Mortgagor under the Federal Bankruptcy Act as now existing or hereafter amended, provided that, in the case of an involuntary proceeding the proceed(ig remains undismissed or unstayed for a period of sixty · (60) days; (vi) If the lien and security interest and priority of this Mortgage are not fully maintained at all times, or Mortgagor is found or adjudged not to be lawfully seized of any right'.title, interest or estate herein covenanted or warranted to be held or owned by Mort§agor, Or Mortgagor is found or adjudged not to have good right and 'lawful authority to encumber and otherwise involve the Mortgaged Properties or any. part thereof, as herein provided; or 6.02: Remedies·.: Upo.~: the occurrence of a DefaUlt; 'Mortgagee "shall haVe the option, by giving notice in writin.~, to. Mortgagor, of declaring all Secured Indebtedness in its entirety to be immediately due and payable, and Mortgagee shall thereupon have any and all of the following remedies: (a) .Right to :'ossession. Mortgagee' may take possession of the Mortgaged Properties 0~- any part thereof (Mortgagor agreeing to give immediate · peaceable possession) aad, to the full extent of Mortgag0r's right to do so, (i) act in 'Mortgagor's stead under any and all operating agreements, farmout agreements, development agreements and/or other agreements comprising the Mortgaged Properties, and (ii) ccd~._.ct and maintain, operate or control the Mortgaged Properties, and, if applicable, may apply all or any part of the income and Proceeds of Runs to the paymeni: of any development, operation or maintenance expense MORTGAGE WITH PC,WER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FIIv.,~I,qCING STATEMENT AND ASSIGNMENT : Page 12 0 9 incident to the Mortgages.'j Properties in any order of application as Mortgagee may elect; provided, that in tl~;e event of any dispute or question whatsoever concerning such income and. prboeieds.or the application thereof, Mortgagee may hold the same in a special accm..i:nt, without interest until such dispute or question is finally settled to Mortgagee's s~itisfaction. Should Mortgagee elect to collect such income and proceeds by formi~l notification as in Section 3.01 provided herein, this Mortgage shall constitute full and complete authority to any Purchaser to deliver directly to Mortgagee al{.,or any designated portion of, the Proceeds of Runs, and notice hereof, as conten'!plated in Section 3.01 herein, without the requirement of anything more, shall coOtitute an unqualified order on the Purchaser to make such delivery. Every Purchas~.r is hereby authorized and directed to accept as sufficient 'Mortgagee's written stat~ment to the effect that a Default has occurred hereunder and that Mortgagee is.entitled to such proceeds; and every such purchaser is hereby relieved from all:i?esp0nsibility with· respect to the delivery or application of said proceeds or Mortga~;]ee's application thereof. (b) JUdicial F~ireclosure. Mortgagee may institute suit to foreclose the lien of this Mortgage in i~nY Court having jUrisdiction. In any such suit, Mortgagee .may, at Mortgagee's option, apply for and shall be entitled, as a matter of right, to the appointment of a re(;~:eiver to take possession and control of, operate, maintain and preserve the Mortgaged Properties or any part thereof, including the right to act ' in Mortgagor's stead unc~:er any and all operating agreements, farmout agreements, development agreemenlis and/or other agreements comprising the Mortgaged Properties, and the r ght:!o the production and sale of all oil, gas, coal bed methane gas, casinghead gas an:i!t other hydrocarbons, to the full extent of Mortgagor's right to do so, and to d sburse the Proceeds of Runs for application upon the Secured Indebtedness u'ntil the Same and all costs are fully paid. Said receiver may be authorized to sell or dislSose of all or any part of the Mortgaged Properties under orders of the Court appqinting the receiver as such. Mortgagor agrees that in the event of any foreclosure, isale, the Mortgaged Properties or any part thereof may be sold With or without app;?aisement as Mortgagee may elect, and such election may be exercised· at any time prior to the entry of the decree of forecloSure;.· Should Mortgagee 'elect to 'have .the Mortgaged' Properties sold without appraisement, then Mortgagor hereby exprelssly waives appraisement. Mortgagee may elect to have the Mortgaged Properti6s Sold together or in separate tracts or leasehold blocks; and the highest bidder ri"~.ay become the purchaser, free of any right of Mortgagor to redeem or repurchase ~ the same. The proceeds of such sale, after paying therefrom the costs ad0anced or incurred by Mortgagee in the foreclosure suit, including the costs of Ssie and any costs and expenseS:incurred in the operation of "the Mortgaged Properties by a receiver appointed upon the application of Mortgagee, shall be applied FIRST to the payment of all costs and expenses incurred by Mortgagee'!~ Mortgagee's operation of the Mortgaged Properties if the same are so operated! and any and all sums advanced by Mortgagee for the purpose of protecting th.9 security, with interest .at the legal rate; SECOND, to the payment of all' indebtedRess of other sums then secured hereby, including interest 'MORTGAGE WITH PQWER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FIN/~NOtNG STATEMENT AND ASSIGNMENT Page 13 and attorney's fees, in :such order of app!ication as Mortgagee may elect; and THIRD, any remaining balance to Mortgagor. (c) .Foreclosui:~¢ by Power of 'Sale. Mortgagee, as an alternative to judicial foreclosure, shall;have the power'to sell the Mortgaged Properties without resort of judicial process!;: At its sole option, Mortgagee may elect to exercise the power of sale as prow,d.d under and pursuant to the Power of Sale Mortgage Foreclosure Act of the s:!ate in which this Mortgage is filed, as the same may be amended from time ts:,: time, and for such purposes Mortgagor authorizes Mortgagee or Mortgage~e's attorney or agent, and grants to Mortgagee and Mortgagee's attorney o~i agent the power to sell and convey the Mortgaged Properties to a purchas,e::ir (which such purchaser may be the Mortgagee) and to foreclose all right, title,,, i interest and estate of Mortgagor and all other 'persons having an interest 'sUbjii'ii~t to the lien of this Mortgage in and to the Mortgaged Properties. ..~i A POWER OF SALE FtAs BEEN.GRANTED IN .THIS MQRTGAGE. A POWER OF SALE MAY ALLOW THE MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE.MORTGAGOR UNDER THIS MORTGAGE. (d) Remedies "Cumulative. All remedies herein expressly provided for are cumulative of any and all other remedies existing at law or in equity, and Mortgagee shall, in addition to the remedies herein provided, be entitled to avail itself of all such other remedies as may now or hereafter exist at law or in equity for the collection Of the SeCured Indebtedness and enforcement of the covenants herein, and the foreclos~Ure of the liens evidenced hereby and the 'resort to any remedy provided for hereunder or provided for by law shall not prevent the concurrent or subseqL~;i~ent employment of any other appropriate remedy or remedies. :~ MORTGAGE WITH POWER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT Page 14 ARTICLE VII MISCELLANEOUS 7.01. Security interest.:':r.This instrument is a mortgage of both real and personal property and, if applicable, Mo~;!gagor does hereby grant a security interest to Mortgagee in the Mortgaged Properties<i.: This instrument therefore shall constitute a security agreement and a financing statement under the Uniform Commercial Code of each state in which any of the Mortgagedi,!Properties is located, as now and ·hereafter in effect (the "Commercial Code"), and shalll cover all of the collateral hereinabove described and all proceeds of collateral. T° effe.:'.:tuate the purposes of the foregoing and to further secure the indebtedness evidenced b''!/the Guaranty, Mortgagor hereby grants to Moilgagee, effective as of the date that-Mo!':,tgagor has rights in the collateral, a security interest in and to the Mortgaged Properties ir!,sofar as the Mortgaged Properties consist of equipment, apparatus, machinery, fixtures and any and all other personal property of any kind or character attached 'to the real isroperty or defined in.and sUbject to the provisions of the Commercial Code, including th!i,~ proceeds and products from any and all of sUch personal property. In addition to all Other rights, powers, privileges and remedies, upon the occurrence of one Or more eve~ts of Default as herein provided, if applicable, Mortgagee shall be entitled to exercise all q!f the rights, powers, privileges and remedies available to a secured party upon default ander the Commercial Code, and under the Uniform Commercial Code of each stat~,:! in which any of the Mortgaged Properties is located. The Mortgage shall be filed for record, among other places, in the real estate records of each county in which the oil and gas:and/or coal bed ·methane interests described in Exhibit "A" hereto, or any part thereof, are situated and, when filed in such counties shall be effective as a financing statement covedng fixtures located on oil and gas and/or coal bed methane properties (and accounts arisin.(i therefrom) which are to be financed at the wellhead of the wells located on the real estate described in Exhibit "A" hereto. 7.02. No Waivers by MOrtgagee. All options and rights of election herein Provided for the benefit of Mortgagee ar*~ continuing and the failure to exercise any such option or right or election upon a partici:ilar default Or breach or upon any subsequent default or breach shall not be construed ~s a waiver of the right to exercise such option or election at any later date. No exercise of the rights and powers herein granted and no delay or omission in the exercise of such rights or powers shall be held to exhaust the same or be construed· as a waiver thereof,: and every such right and power may be exercised at any time and from time to time. :"' "7.03. Notice. Any not'i;ce, request, demand or other instrument which may be required or permitted to be giw, n or furnished to or served upon Mortgagor or Mortgagee shall be addressed to (i) Mortgagor at the address shown above, (ii) Mortgagee at the address shoWn above, or (iii) :i Mortgagor or Mortgagee at such different address(es) as shall have been designated by i¢~tritten notice actually received by Mortgagee or Mortgagor, MORTGAGE WITH P:i2,~NER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, Fli,iANCING STATEMENT AND ASSIGNMENT Page 15 as applicable, at least ten (10), days in advance of the date upon which such change of address shall be effective un.d.e;;'::his Section 7.03. 7.04. Binding Effect. Ail:terms, conditions, covenants, warranties and agreements contained herein shall be bir!ding, upon the heirs, executors, adrn n strators, personal representatives, successors and assigns of Mortgagor, and shall be deemed to be covenants running with the estate or in the land and all said provisions shall likewise inure to the benefit of Mortgagee, and Mortgagee's successors and assigns. 7.05. Severability. The invalidity of any provision or provisions hereof shall not in any way affect the remaining ProVisions of this Modgage. 7.06. Counterparts. This Mortgage may be executed in numerous counterparts, each of which shall be deemed, an original, and all of which are identical and together shall constitute one' and the same instrument; provided that, to facilitate recordation, in any particular counterpart portions of Exhibit "A" hereto whiCh describe properties situated in counties other than the county in. which such counterpart is to be recorded may have been omitted. (REMAINDER OF PAGE INENTIONALLY LEFT BLANK) MORTGAGE WITH POWER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FINANC NG STATEMENT AND ASSIGNMENT Page 16 IN WITNESS WHEREOF, this instrument has been executed and delivered as of the date hereinabove written. MORTGAGOR: CDX GAS, L. LC.' By: 'Mo.~Fl'.T~iAI, Managing Director MORTGAGE WITH POWER OF SALE, DEED OF TRUST, SECURITY AGREEMENT, FIqANCING STATEMENT AND ASSIGNMENT Signature Page OS,?f[.-~05'~ A C KN OWLE DG EMENT STATE OF OKLAHOMA ) ,~, COUNTY OF TULSA ) Before me, the undersigned, a Notary Public, in and for this State, on this ~} day of August, 2001 personally appeared Monty H. Rial to me known to be identical person who subscribed the name of the maker thereof to the foregoing instrument as its Managing Director and acknowledged to me that he executed the same as his free and voluntary, act and'deed, for the uses and purposes therein set forth. ' Given under my hand and' seal of office the day and year last above written. 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