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HomeMy WebLinkAbout975142Prepared by and when recorded return to: Ari J. Rotenberg Frederic Dorwart Lawyers Old City Hall 124 East Fourth Street Tulsa, Oklahoma 74103 975142 1/30/2014 3:24 PM LINCOLN COUNTY FEES: $126.00 PAGE 1 OF 39 BOOK: 827 PAGE: 577 MTG, AMENDMENTS JEANNE WAGNER, LINCOLN COUNTY CLERK 11 Ilil II IIII (II II11111 IIIII (I 11111 III I (CA, CO, KS, LA, MS, NM, TX, WY) Space above for County Recorder's Use FOURTH AMENDMENT TO MORTGAGE, DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT DATED AS OF DECEMBER J3 2013, BUT EFFECTIVE AS OF JUNE 30, 2013 FROM MERRION OIL GAS CORPORATION a New Mexico corporation (TRUSTOR AND DEBTOR) TO PAM SCHLOEDER, SUCCESSOR TRUSTEE AND BOKF, NA, DBA BANK OF OKLAHOMA (BENEFICIARY AND SECURED PARTY) The mailing address of both Beneficiary and Trustee is: do BOKF, NA, dba Bank of Oklahoma, Bank of Oklahoma Tower, One Williams Center, Energy Dept. /8 Floor, Tulsa, Oklahoma 74172, and the mailing address of Trustor and Debtor is 610 Reilly Avenue, Farmington, New Mexico 87401. 1 1111 III IIII 1111 ATTENTION OF RECORDING OFFICERS: THIS INSTRUMENT COVERS OIL, GAS, MINERALS, FIXTURES AND AS- EXTRACTED COLLATERAL AND OTHER SUBSTANCES OF VALUE WHICH MAY BE EXTRACTED FROM THE EARTH (INCLUDING WITHOUT LIMITATION OIL AND GAS AND OTHER HYDROCARBONS), AND THE ACCOUNTS RELATED THERETO, WHICH WILL BE FINANCED AT THE WELLHEADS OF THE WELL OR WELLS LOCATED ON THE PROPERTIES DESCRIBED AS MORTGAGED PROPERTY HEREIN, AND COVERS PROCEEDS OF THE MORTGAGED PROPERTY, AND IS AMONG OTHER THINGS, A CHATTEL MORTGAGE, A FIXTURE FILING AND A SECURITY AGREEMENT AND FINANCING STATEMENT UNDER THE UCC (AS HEREINAFTER DEFINED). THIS INSTRUMENT IS TO BE FILED AND RECORDED AS A MORTGAGE AND AS A FINANCING STATEMENT OR CHATTEL MORTGAGE (COVERING FIXTURES, OIL, GAS, OTHER MINERALS AND AS- EXTRACTED COLLATERAL) IN THE REAL ESTATE RECORDS OR SIMILAR RECORDS OF EACH COUNTY IN WHICH THE LANDS OF TRUSTOR DESCRIBED IN EXHIBIT A HERETO ARE LOCA1'ks'D AND, WHERE APPLICABLE, IS TO BE TRACT INDEXED WITH RESPECT TO ALL LANDS DESCRIBED IN SAID EXHIBIT A. TRUSTOR HAS AN INTEREST OF RECORD IN THE REAL ESTATE/IMMOVABLE PROPERTY CONCERNED, WHICH INTEREST IS DESCRIBED IN THIS INSTRUMENT. WHERE APPLICABLE, THIS INSTRUMENT IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS. THE ADDRESSES OF TRUSTOR, TRUSTEE AND BENEFICIARY ARE CONTAINED IN THIS INSTRUMENT. WHERE APPLICABLE, A POWER OF SALE HAS BEEN GRANTED IN THE MORTGAGE AND /OR DEED OF TRUST AMENDED BY THIS INSTRUMENT. A POWER OF SALE MAY ALLOW THE TRUSTEE TO TAKE THE MORTGAGED PROPERTY LOCATED IN CERTAIN STATES AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE TRUSTOR. A CARBON, PHOTOGRAPHIC, OR OTHER REPRODUCTION OF THIS INSTRUMENT IS SUFFICIENT AS A FINANCING STATEMENT. THE FINAL MATURITY DATE OF THE INDEBTEDNESS SECURED HEREBY IS AS SET FORTH IN THE CREDIT AGREEMENT, UNLESS SUCH MATURITY DATE IS SOONER ACCELERATED IN ACCORDANCE WITH THIS INSTRUMENT OR THE OTHER LOAN DOUCMENTS. THE MORTGAGE AND /OR DEED OF TRUST AMENDED BY THIS INSTRUMENT SECURES, INTER ALIA, OBLIGATIONS WHICH MAY PROVIDE FOR A VARIABLE RATE OF INTEREST; AND /OR FUTURE AND /OR REVOLVING CREDIT ADVANCES OR READVANCES, WHICH WHEN MADE, SHALL HAVE THE SAME PRIORITY AS ADVANCES OR READVANCES MADE ON THE DATE HEREOF WHETHER OR NOT (i) ANY ADVANCES OR READVANCES WERE MADE ON THE DATE HEREOF AND (ii) ANY INDEBTEDNESS IS OUTSTANDING AT THE TIME ANY ADVANCE OR READVANCE IS MADE. NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED OF RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER THE MORTGAGE AND /OR DEED OF TRUST AMENDED BY THIS INSTRUMENT IS A MULTI —STATE SECURITY INSTRUMENT, WHICH SECURED MORTGAGED PROPERTY LOCATED IN, AND IS THEREBY BEING CONTEMPORANEOUSLY RECORDED IN, THE STATES OF CALIFORNIA, 2 3 COLORADO, KANSAS, LOUISIANA, MISSISSIPPI, NEW MEXICO, TEXAS AND WYOMING, RESPECTIVELY. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAWS, BENEFICIARY MAY FORECLOSE UPON WHATEVER MORTGAGED PROPERTY OR COLLATERAL, WHEREVER LOCATED, AS BENEFICIARY MAY ELECT FROM TIME TO TIME, OR OTHERWISE EXERCISE ITS OTHER REMEDIES, WHETHER HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENTS, IN WHATEVER MANNER BENEFICIARY MAY ELECT AT ANY TIME AND FROM TIME TO TIME. FOURTH AMENDMENT TO MORTGAGE, DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT KNOW ALL MEN BY THESE PRESENTS: THIS Fourth Amendment to Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment (hereinafter referred to as this "Fourth Amendment dated as of December 2013, but effective as of June 30, 2013, is executed by MERRION OIL GAS CORPORATION, a New Mexico corporation, which has a mailing address of 610 Reilly Avenue, Farmington, New Mexico 87401 ("Trustor"), to PAM SCHLOEDER, as Successor Trustee (hereinafter together with his successors and substitutes in trust, referred to as "Trustee whose address is d o Bank of Oklahoma Tower, One Williams Center, Energy Dept./8 Floor, Tulsa, Oklahoma 74172, and BOKF, NA, dba Bank of Oklahoma ("Beneficiary"), which has a mailing address do Bank of Oklahoma Tower, One Williams Center, Energy Dept. /8 Floor, Tulsa, Oklahoma 74172. WITNESSETH: WHEREAS, Trustor, as borrower, and Beneficiary, as lender, entered into that certain First Amended and Restated Revolving Credit Agreement dated as of June 30, 2010, as amended by that certain First Amendment thereto dated as of June 30, 2011, that certain letter agreement dated as of January 12, 2012, and that certain Second Amendment thereto dated June 30, 2012, pursuant to which Beneficiary agreed to extend to Borrower a commitment for a $40,000,000.00 revolving credit loan (subject to certain borrowing base limitations set forth therein) and a guidance line of credit facility (subject to applicable 1SDA Agreements, as defined therein) upon the terms and conditions therein set forth (as so amended, collectively, the "Existing Credit Agreement and WHEREAS, as security for the indebtedness incurred by the Trustor under the Existing Credit Agreement, Trustor executed and delivered to Trustee and to Beneficiary, as mortgagee, that certain Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment dated as of June 30, 1999 (the "Original Deed of Trust which Original Deed of Trust affects the real property described on Exhibit A attached hereto and made a part hereof, was recorded as set forth in Schedule I annexed hereto and made a part hereof. The Original Deed of Trust (together with the other instruments comprising the Existing Deed of Trust) is incorporated herein by reference to the recording data set forth on Schedule I, with the same force and effect as if fully set forth herein verbatim; and WHEREAS, in connection with certain of the prior amendments to the Existing Credit Agreement, the Trustor executed and delivered to the Trustee and to the Beneficiary, as mortgagee, the following modifications to the Original Deed of Trust: (i) that certain First Amendment to Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment dated as of June 30, 2003 "First Mortgage Amendment which First Mortgage Amendment affects the real property described on Exhibit A attached hereto and made a part hereof and was recorded as set forth in Schedule II annexed hereto and made a part hereof, and which such First Mortgage Amendment is incorporated herein by reference to the recording data set forth on Schedule II with the same force and effect as if fully set forth herein verbatim; (ii) that certain Second Amendment to Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment dated as of June 30, 2004 "Second Mortgage Amendment which Second Mortgage Amendment affects the real property described on Exhibit A attached hereto and made a part hereof and was recorded as set forth on Schedule III annexed hereto and made a part hereof, and which such Second Mortgage Amendment is incorporated herein verbatim by reference to such recording data on Schedule III; and (iii) that certain Third Amendment to Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment dated as of November 30, 2010 "Third Mortgage Amendment which Third Mortgage Amendment affects the real property described on Exhibit A attached hereto and made a part hereof and was recorded as set forth on Schedule IV annexed hereto and made a part hereof, and which such Third Mortgage Amendment is incorporated herein verbatim by reference to such recording data on Schedule IV (the Original Deed of Trust, as amended by the First Mortgage Amendment, the Second Mortgage Amendment, and the 4 5 Third Mortgage Amendment, collectively the "Existing Deed of Trust The Existing Deed of Trust is incorporated herein by reference to the recording data set forth on Schedule I, Schedule II, Schedule III, and Schedule IV, respectively, with the same force and effect as if fully set forth herein verbatim; WHEREAS, on June 30, 2013, Trustor and Beneficiary entered into that certain Third Amendment to the Existing Credit Agreement (the "Third Amendment to Credit Agreement whereby Beneficiary has agreed to, among other things, (i) amend certain terms of the existing Revolver Commitment established under the Existing Credit Agreement "Existing Revolver Commitment until the extended Revolver Commitment final scheduled maturity date of June 30, 2015, and (ii) subject to applicable ISDA Agreements (as defined in the Existing Credit Agreement) continue in full force and effect and increase the existing guidance facility established under the Existing Credit Agreement "Existing Guidance Commitment due on a demand basis until the extended Guidance Commitment final maturity date of June 30, 2016 (the Existing Credit Agreement, as amended by the Third Amendment to Credit Agreement, and as hereafter amended, modified, restated, extended or supplemented from time to time, collectively, the "Credit Agreement and WHEREAS, in order to induce Beneficiary to enter into the Third Amendment to Credit Agreement, to amend the terms and to extend and renew the Existing Revolver Commitment and to extend, renew and increase the Existing Guidance Commitment, Trustor has agreed to ratify, confirm and continue the liens, pledges, security interests and assignments of the Existing Deed of Trust, pursuant to the terms and provisions of this Fourth Amendment, as collateral and security for the Indebtedness described herein and in the Credit Agreement; and WHEREAS, for purposes of both this Fourth Amendment as well as the Deed of Trust (as defined below), the term "Lands described in Exhibit A" shall include any and all Iands (collectively, the "Lands the description of which is either: (a) contained in Exhibit A attached hereto (or in Exhibit A to any of the Original Deed of Trust, the First Mortgage Amendment, the Second Mortgage Amendment, or the Third Mortgage Amendment, respectively, as applicable, which prior instruments have been filed of record and recorded as set forth in Schedule I, Schedule II, Schedule III, and Schedule IV, respectively, attached hereto); (b) incorporated in Exhibit A hereto by reference to another instrument or document, including any of the Original Deed of Trust, the First Mortgage Amendment, the Second Mortgage Amendment and/or the Third Mortgage Amendment); and/or (c) now or hereafter acquired and included in or constituting a part of any lands now or hereafter unitized or pooled with any such lands that are either described in Exhibit A (or in Exhibit A to any of the Original Deed of Trust, the First Mortgage Amendment, the Second Mortgage Amendment, or the Third Mortgage Amendment, respectively), or the description of which is incorporated in Exhibit A by reference (whether as set forth in any of Schedule I, Schedule II, Schedule III, and/or S hedule IV, respectively, or otherwise), including, without limitation, all of Trustor's rights, titles and interests in and to the Oil and Gas Properties (as defined in Original Deed of Trust); and WHEREAS, Trustor represents that all acts necessary to constitute the Existing Deed of Trust, as amended by this Fourth Amendment, a valid mortgage, deed of trust, security agreement, financing statement and assignment with respect to the right, title and interest of Trustor in the Mortgaged Property as security for the Indebtedness as defined in the Existing Deed of Trust, as amended by this Fourth Amendment, have heretofore been done; NOW, THEREFORE, Trustor, on behalf of itself and its successors in interest, for and in consideration of the premises and of the debts and Indebtedness (as hereinafter defined) herein mentioned, to secure the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Indebtedness and the performance of the covenants and obligations herein contained, Trustor does by these presents hereby: (a) GRANT, BARGAIN, SELL, CONVEY, TRANSFER, ASSIGN AND SET OVER to Trustee, its successors and assigns, for the benefit of Beneficiary and its successors and assigns, and grant to Trustee, its successors and assigns, for the benefit of Beneficiary and its successors and assigns, a POWER OF SALE (pursuant to the Deed of Trust (as hereinafter defined) and applicable laws) with respect to, those of the following described properties, rights and interests which are located in (or cover or relate to properties located in or governed by) the States of California, Colorado, Mississippi and Texas, respectively (collectively, the "Deed of Trust States or which are located within (or cover or relate to properties located within or governed by) the outer continental shelf or other offshore areas adjacent to such Deed of Trust States over which the United States of America asserts jurisdiction and to which the laws of any such Deed of Trust State are applicable with respect to the Deed of Trust and/or the Liens or security interests created thereby; (b) GRANT, BARGAIN, WARRANT, MORTGAGE, ASSIGN, TRANSFER and CONVEY to Beneficiary, its successors and assigns, with mortgage covenants, and upon the statutory mortgage condition for the breach of which the Deed of Trust may be subject to foreclosure as provided by applicable laws, with respect to those of the following described properties, rights and interests which are located in (or cover or relate to properties located in or governed by) the State of New Mexico; and (c) GRANT, BARGAIN, SELL, MORTGAGE, ASSIGN, WARRANT, PLEDGE AND HYPOTHECATE to Beneficiary, its successors and assigns, and grant to the Beneficiary, its successors and assigns, a POWER OF SALE (pursuant to the Deed of Trust and applicable laws) with respect to, those of the following described properties, rights, and interests which are not granted to Trustee or Beneficiary in clauses (a) and (b) above (including, without limitation, those of the following described properties, rights and interests which are located in (or cover or relate to properties located in or governed by) the States of Kansas, Louisiana and Wyoming (collectively, and together with the State of New Mexico, the "Mortgage States or which are located within (or cover or relate to properties located within or governed by) the outer continental shelf or other offshore areas adjacent to such Mortgage State over which the United States of America asserts jurisdiction and to which the laws of any such Mortgage State are applicable with respect to the Deed of Trust and/or the Liens or security interests created thereby); all of Trustor's and its successors in interests' rights, titles and interests, whether now owned or hereafter acquired, in the following: GRANTING CLAUSE ONE The Lands and the Oil and gas leases, the mineral, overriding royalty, royalty and other interests which cover or relate to such Lands, whether or not such rights, titles and interests be correctly or sufficiently described or referred to herein or therein, GRANTING CLAUSE TWO The right to operate and the operating, unitization and pooling agreements and orders of regulatory agencies providing for pooling and unitization (whether now or hereafter made) and the properties covered and the units created thereby (including all units formed under orders, regulations, rules or other official acts of any federal, state, provincial or other governmental agency having jurisdiction) which are specifically described in Exhibit A or which relate to any of the Lands, whether or not such agreements and orders be described in Exhibit A hereto (or in Exhibit A to any of the Original Deed of Trust, the First Mortgage Amendment, the Second Mortgage Amendment, or the Third Mortgage Amendment, respectively), and the operating agreements, transportation contracts, lease records, well records and production records which relate to any of such Lands, GRANTING CLAUSE THREE All hydrocarbons including all oil, gas, casinghead gas, drip gasoline, natural gasoline and condensate, natural gasoline liquids, all other liquid and gaseous hydrocarbons, and all other minerals, whether similar to the foregoing or not (herein collectively called "Hydrocarbons which are now or hereafter accruing to or produced from or in, under or upon any of the Lands and/or to which Trustor now or hereafter may be entitled as a result of or by virtue of its record and/or beneficial ownership of any one or more of such Lands, including without limitation, all As Extracted Collateral, as defined in the Uniform Commercial Code in effect in the applicable jurisdiction in which such portion of the Mortgaged Property may be located (as applicable, and as the same may be in force and effect from time to time and as hereinafter amended, revised or enacted, the "UCC GRANTING CLAUSE FOUR -6- The Production Sale Contracts, GRANTING CLAUSE FIVE The Operating Equipment, GRANTING CLAUSE SIX AU Accounts (including without limitation, all contracts and contract rights), Contract Rights, Goods (including Inventory and Equipment including, without limitation, all wells, pumping units, wellhead equipment, tanks, pipelines, flow lines, gathering lines, compressors, dehydration units, separators, meters, injection facilities, salt water disposal facilities and power, telephone and telegraph lines and other items and types of goods of whatever description) and all Goods that are or are to become Fixtures, General Intangibles, Payment Intangibles, Instruments (including promissory notes), Documents, Chattel Paper (including Electronic Chattel Paper), Supporting Obligations, Letters of Credit, Letter of Credit Rights, Investment Property, Deposit Accounts, Commercial Tort Claims, As- Extracted Collateral and any and all Proceeds of any of the foregoing (as all such capitalized terms as used in this Granting Clause Six but not otherwise defined are now or hereafter defined in Article 9 of the UCC) relating to or arising out of the sale, purchase, marketing, exchange, processing, treating, compressing, handling, transporting, transmitting, gathering or other disposition of oil, gas, as- extracted collateral and other Hydrocarbons from time to time produced from the Lands, including without limitation, any and all contracts, contract rights, accounts, general intangibles and payment intangibles or any other rights to the payment of money or other monies due or to become due (of whatever type, nature, item or category) from Beneficiary to Trustor or any monetary or economic benefit or other value added, accrued, created or arising under, out of or pursuant to any Hedging Agreement, together with all schedules, annexes, exhibits and other attachments thereto, or any transactions entered into in connection with such Hedging Agreement, whether now existing or hereafter entered into by Trustor in connection therewith or pursuant thereto, and GRANTING CLAUSE SEVEN All other interests and rights of every kind, type and character in all of the Lands and the real and personal properties included therein (including all of the royalty interests and overriding royalty interests therein) which Trustor may now own or hereafter acquire at any time prior to the indefeasible payment in full of all Indebtedness, together with all proceeds thereof, and any and all corrections, amendments or restatements to, or renewals, extensions or ratifications of, any of the same, or of any instrument relating thereto, and all fixtures, rights -of -way, franchises, permits, licenses, improvements, easements, tenements, hereditaments and appurtenances now existing or in the future obtained in connection with any of the aforesaid, and all other things of value and incident thereto to which Trustor might at any time have been or may hereafter become entitled, together with any additions to any of the foregoing which may be subjected to the Lien of the Deed of Trust by means of any additional supplements hereto or to the Existing Deed of Trust, all the aforesaid properties, rights and interests, together with any additions thereto which may be subjected to the Lien of this instrument by means of supplements hereto, all of the above being hereinafter collectively called the "Mortgaged Property which Mortgaged Property shall be subject only to such Permitted Encumbrances (as defined in the Original Deed of Trust) as are permitted by the Credit Agreement, as well as the condition that Trustee and Beneficiary shall not be liable in any respect for the performance of any covenant or obligation of Trustor or its successors in interest in respect of any of the Mortgaged Property. -7- TO HAVE AND TO HOLD the Mortgaged Property, together with all and singular the rights, privileges, contracts and appurtenances now or hereafter at any time before the foreclosure or release hereof, in anywise appertaining or belonging thereto, unto the Trustee and its Trustee's successors or assigns hereunder for the benefit of Beneficiary and its successors and assigns, forever, and Trustor hereby binds and obligates itself and its successors in interest, to warrant and forever defend, all and singular, the Mortgaged Property unto the Trustee and its Trustee's successors or assigns hereunder for the benefit of Beneficiary and its successors and assigns, against the lawful claims of any and all Persons whomsoever claiming, or to claim the same, or any part thereof. This conveyance is made in trust, however, upon the terms and provisions hereinafter set out, to secure the full and fmal payment of all sums owing or to become owing, including principal, interest and attorneys' fees, upon the Note (as hereinafter defined), the other Loan Documents (as hereinafter defined), and the other Indebtedness (as hereinafter defined) to the Beneficiary, as described in Article I below. And Trustor for itself and its successors in interest has COVENANTED, DECLARED AND AGREED with the Trustee and its Trustee's successors or assigns hereunder for the benefit of Beneficiary and its successors and assigns, and does by these presents COVENANT, DECLARE AND AGREE as follows: ARTICLE I Unless otherwise indicated herein and notwithstanding anything to the contrary contained in the Existing Deed of Trust, the following terms as used herein and in the Existing Deed of Trust, as amended and supplemented by this Fourth Amendment, shall have the following respective meanings (and the Existing Deed of Trust is hereby amended to reflect said meanings): A. "Deed of Trust" is hereby amended to mean the Existing Deed of Trust as amended by this Fourth Amendment; B. "Default Rate" is hereby amended to mean the definition of Default Rate as set forth in the Credit Agreement. C. "Hydrocarbons" is hereby amended to mean the definition of Hydrocarbons as set forth herein above, collectively. D. "Indebtedness" is hereby deleted in its entirety and replaced with the following paragraphs, and any reference to Indebtedness in the Existing Deed of Trust is deemed to include the following: (i) All amounts owing or to become owing upon that certain Promissory Note (Revolver Note) dated as of June 30, 2013, executed by Trustor, payable to the order of Beneficiary in the maximum principal amount of $40,000,000.00 and evidencing a revolver line of credit made by Beneficiary for the benefit of Trustor and described in the Credit Agreement as the Revolver Note (the "Revolver Note and in connection with any Letters of Credit issued by Beneficiary or any Bank Affiliate in connection with the Credit Agreement. The Revolver Note contains customary provisions for acceleration of maturity in the event of the contingencies therein stated, all as provided and set out in the Revolver Note which is incorporated herein by reference and made a part hereof for all purposes; (ii) All amounts owing or to become owing, or incurred pursuant to one or more Hedging Agreements and/or ISDA Agreements, together with schedules, annexes, exhibits and other attachments thereto and amendments thereof, and all confirmations and other transactions entered into thereunder or pursuant thereto, entered into by and -8- between Trustor, one of its subsidiaries or Affiliates and Beneficiary or a Bank Affiliate in connection with that certain Guidance Commitment described and defined in the Credit Agreement for the limited purpose of using hedge products to provide product or interest rate price protection for Trustor's oil and natural gas production, including without limitation, to the extent such hedging is with another financial institution or another counter -party acceptable to Beneficiary, the issuance from time to time by Beneficiary of standby Letters of Credit for Trustor's account in the name of such other counter -party, as beneficiary, in connection with the Hedging Agreements or ISDA Agreements; (iii) All renewals, extensions, substitutions, changes in form, replacements, modifications, exchanges, consolidations and rearrangements of the indebtedness described in (i) and (ii) above; (iv) All costs, expenses, fees, liabilities, obligations and payments incurred or made by Beneficiary pursuant to the provisions of the Credit Agreement or other Loan Documents, including, without limitation, the following provisions in the Original Deed of Trust: Section 2.2(i), 2.2(k), 2.2(q), 2.3, 3.1(a), 3.9, 6.3, 6.11, 6.12 and 8.11(f) thereof; together with the interest accrued thereon; (v) Any and all existing indebtedness or contingent liabilities now or hereafter owing by Trustor to Beneficiary or a Bank Affiliate and any and all future changes in or with respect to the Indebtedness now or hereafter secured hereby (including but not limited to changes in interest rate) which may hereafter be agreed upon by Trustor and Beneficiary or a Bank Affiliate or any holder or holders of the Revolver Note, the Hedging Agreements or the ISDA Agreements; and (vi) Other Indebtedness and Future Loans and Indebtedness Secured: This Deed of Trust shall further secure all sums now owing or hereafter owing at any time prior to the final release hereof to become owing by Trustor to Beneficiary, whether direct or indirect, primary or secondary, fixed or contingent, including future advances, and shall further secure all unpaid balances, whether by renewals, extensions, substitutions, rearrangements or otherwise, of all of said items." E. "Lands described in Exhibit A" is hereby amended to mean the definition of Lands as set forth in the recitals herein above, collectively. F. Loan(s)" is hereby amended to mean the definition of Loan(s) as set forth in the Credit Agreement. G. "Loan Documents" is hereby amended to mean the definition of Loan Documents as set forth in the Credit Agreement. H. "Mortgage" has the meaning set forth in the Credit Agreement I. "Mortgage Modification" has the meaning set forth in the Credit Agreement. 9 J. "Note" is hereby amended to mean the above described Revolver Note and the Hedging Agreements and ISDA Agreements, collectively, and any reference thereto is deemed to include any renewals, extensions, substitutions, changes in form, restatements, replacements, modifications and rearrangements thereof. K. "Security Instrument" is hereby amended to mean the definition of Security Instrument as set forth in the Credit Agreement L. The definitions of "Affiliate "Bank Affiliate "Hedging Agreements "ISDA Agreements "Letters of Credit "Persons and all other capitalized terms used herein but not otherwise defined, shall have the meanings ascribed thereto in the Credit Agreement. M. Any term used in this Fourth Amendment which is defined or explained in the Existing Deed of Trust shall have the respective meaning ascribed to it in the Existing Deed of Trust (as modified hereby), unless the definition or meaning of said term is amended, modified or supplemented hereby or unless the context hereof otherwise requires. ARTICLE II 2.1 Trustor hereby TRANSFERS, ASSIGNS, GRANTS, CONVEYS AND SETS OVER to Beneficiary and its successors and assigns as the holder of the Indebtedness secured hereby, and grants to such Persons as Secured Party (as defined in the UCC) a first priority security interest and Lien in all of the items, properties, interests and things described in subsections (a), (b) and (c) of Section 3.1 of the Original Deed of Trust (as amended by the First Mortgage Amendment, the Second Mortgage Amendment, the Third Mortgage Amendment and this Fourth Amendment), which are hereby repeated and incorporated herein by reference as if set forth fully herein. 2.2 Trustor, as Debtor (as defined in the UCC), expressly GRANTS unto Beneficiary and its successors and assigns as the holder of the Indebtedness, as Secured Party, a first and prior continuing security interest in all of the Mortgaged Property (now or hereafter existing including all proceeds and products thereof) which may be subject to the UCC, and Trustor grants unto Beneficiary and its successors and assigns as the holder of the Indebtedness a first and prior continuing security interest in all present and future Accounts (as defined in Article 9 of the UCC), including without limitation contracts and contract rights, Goods (as defined in Article 9 of the UCC), including Equipment (as defined in Article 9 of the UCC) and Inventory (as defined in Article 9 of the UCC), General Intangibles (as defined in Article 9 of the UCC), Payment Intangibles (as defined in Article 9 of the UCC), Instruments as (defined in Article 9 of the UCC), Chattel Paper (as defined in Article 9 of the UCC), and Proceeds (as defined in Article 9 of the UCC) relating to or arising out of the production, sale, processing, storage, treatment, marketing, handling, transporting or other disposition of any Hydrocarbons from time to time produced from the Mortgaged Property, and including without limitation, any and all contracts, contract rights, accounts, accounts receivable, general intangibles, payment intangibles, supporting obligations and any other rights to the payment of money or other monies now or hereafter due or to become due (of whatever type, nature, item or category and howsoever created) from Beneficiary or any Bank Affiliate to Trustor or any subsidiary or Affiliate thereof or any monetary or economic benefit or other value added, accrued, created or arising under, out of or pursuant to the Hedging Agreements, including without limitation, ISDA Agreements, together with all schedules, annexes, exhibits and other attachments thereto, and all amendments thereof, or any options or other transactions entered into in connection with such Hedging Agreements or ISDA Agreements, whether now existing or hereafter entered into by and between Trustor or any subsidiary or Affiliate thereof and the Beneficiary or any Bank Affiliate, as the applicable counter party. ARTICLE III Trustor agrees that its interests in the Mortgaged Property shall remain mortgaged, hypothecated and pledged until full and final indefeasible payment in cash in full of the principal of and interest on the Note and any and all other amounts owing by Trustor to Beneficiary, including the Indebtedness, and hereby binds Trustor, and its -10- successors in interest, not to sell, alienate or encumber the Mortgaged Property or any part thereof to the prejudice hereof. ARTICLE IV 4.1 Each of Sections 3.2 and 8.5, respectively, of the Original Deed of Trust is hereby amended by substituting the Beneficiary's new mailing address as set forth in this Fourth Amendment for the prior address of Beneficiary set forth in the Original Deed of Trust. 4.2 Except as expressly amended by this Fourth Amendment, the Existing Deed of Trust is in all respects ratified and reconfirmed, and the Lien thereof is hereby re- granted, re- conveyed, and spread to encompass, in addition to the Mortgaged Property heretofore granted and conveyed by Trustor to Trustee for the benefit of Beneficiary under the Existing Deed of Trust, such additional Mortgaged Property as is now being encumbered pursuant to this Fourth Amendment, and each and every term, covenant, condition and warranty contained in the Existing Deed of Trust is hereby incorporated in this Fourth Amendment by reference and is hereby restated specifically with respect to all of the Mortgaged Property now encumbered by the Deed of Trust. Except to the extent expressly modified by this Fourth Amendment, all the terms, provisions, representations, warranties, covenants and conditions set forth in the Existing Deed of Trust shall be and remain in full force and effect as if set forth fully herein. 4.3 Trustor hereby covenants and warrants that no Liens, charges or encumbrances have been created by Trustor on any of the Mortgaged Property subsequent to the execution and delivery of the Existing Deed of Trust as amended by this Fourth Amendment, except the Lien hereof. 4.4 Trustor represents and, warrants to Trustee and Beneficiary that (i) Trustor has good title all of the Mortgaged Property now encumbered by the Deed of Trust, and Trustor has the right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the same, (ii) all Oil and gas leases or interests therein and all processing contracts, franchises, licenses and other contracts and agreements (including all Production Sales Contracts) relating to all of the Mortgaged Property now encumbered by the Deed of Trust are valid and in full force and effect, and (iii) Trustor owns all of the Mortgaged Property now encumbered by the Deed of Trust free and clear of all Liens, encumbrances and charges whatsoever except for the Liens in favor of Beneficiary. To the best of Trustor's knowledge, there presently exist no matters that could materially adversely affect or interfere with the value, or materially adversely affect or interfere with the current use or operation, of any of the Mortgaged Property now encumbered by the Deed of Trust, or the security intended to be provided by the Deed of Trust or the ability of Trustor to repay the Indebtedness or any other amounts owing under the Credit Agreement or the other Loan Documents or to perform its obligations thereunder in accordance with the terms thereof. Trustor shall forever warrant, defend and preserve the title and the validity and priority of the Lien of the Deed of Trust with respect to all of the Mortgaged Property now encumbered thereby, and shall forever warrant and defend the same to Trustee and Beneficiary against the claims of all Persons whomsoever. ARTICLE V 5.1 It is the intent of Trustor, Trustee and Beneficiary that this Fourth Amendment does not constitute a novation of any of the obligations secured by the Existing Deed of Trust (all such obligations continuing to be secured by the Deed of Trust, without interruption in priority of the Lien inuring to Beneficiary thereunder, as amended hereby). This Fourth Amendment relates only to the specific matters covered herein and shall not constitute a consent to or waiver or modification of any other provision, term or condition of the Existing Deed of Trust, the Credit Agreement or any other Loan Document. All terms, provisions, covenants, representations, warranties, agreements and conditions contained in the Existing Deed of Trust, the Credit Agreement or any other Loan Document shall remain in full force and effect, except as expressly provided herein. 5.2 Notwithstanding anything to the contrary set forth on Exhibit A to each instrument comprising the Existing Deed of Trust, for all purposes of this Fourth Amendment and the Deed of Trust, the "Lands described in Exhibit A" (as such phrase, or phrases of similar import, is used in the Existing Deed of Trust) shall hereafter mean and include any and all of the Lands. The "Lands described in Exhibit A" and the "Mortgaged Property" (as such terms are defined in the Existing Deed of Trust) shall be deemed to include all of the mineral, overriding royalty, royalty and other interests now or hereafter inuring to Trustor in connection with such Hydrocarbons or any of the other Collateral granted to Beneficiary by any of the "Granting Clauses" set forth in any instrument comprising the Deed of Trust, and which cover or relate to any of the foregoing, whether or not such rights, titles and interests are correctly or sufficiently described or referred to in Exhibit A hereto (or in Exhibit A to any instrument comprising the Existing Deed of Trust). 5.3 With respect to any portions of the Mortgaged Property located in any Mortgage State the laws of which do not provide for the use or enforcement of a deed of trust or the office, rights and authority of Trustee as therein provided, the general language of conveyance hereof to Trustee is intended and the same shall be deemed to mean and be construed as words of mortgage unto and in favor of Beneficiary and its successors and assigns, as mortgagee, and the rights and authority granted to Trustee herein may be enforced and asserted by Beneficiary (and its successors and assigns) as mortgagee in accordance with the laws of the jurisdiction in such Mortgage States in which such portion of the Mortgaged Property is located and the same may be foreclosed in accordance with all applicable laws therein at the option of Beneficiary (or its successors and assigns), including, without limitation, with the power of sale (as set forth in the Deed of Trust) in all such Mortgage States where applicable laws permit same, as to any or all such portions of the Mortgaged Property in any manner permitted by the laws of the jurisdiction in such Mortgage States where such portions of the Mortgaged Property is situated. The Existing Deed of Trust (as modified by this Fourth Amendment) may be construed as a mortgage, deed of trust, chattel mortgage, conveyance, assignment, security agreement, pledge, financing statement, hypothecation or contract, or any one or more of them, in order fully to effectuate the Liens hereof and the purposes and agreements herein set forth. Trustor's grant and mortgage in the "Granting Clauses" herein above are to Beneficiary (and its successors and assigns) and are made with mortgage covenants, for the breach of which the Beneficiary (and its successors and assigns) may exercise the remedies under the Credit Agreement, including, without limitation, foreclosure as provided by applicable law (including power of sale, where applicable). All covenants and representations made to, and rights and powers conferred upon, Trustee under this instrument shall, with respect to the Mortgaged Property located in any Mortgage State which do not provide for the use or enforcement of a deed of trust or the office, rights and authority of Trustee as therein provided, be deemed conferred upon Beneficiary (and its successors and assigns), to the fullest extent consistent with applicable laws, as necessary to give the Existing Deed of Trust, as amended by this Fourth Amendment, its intended effect with respect to such Mortgaged Property located in any such Mortgage State. 5.4 INSOFAR AS PERMITTED BY APPLICABLE LAW, THIS FOURTH AMENDMENT AND THE OBLIGATIONS SECURED HEREBY AND BY THE MORTGAGE/DEED OF TRUST SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF OKLAHOMA; PROVIDED, HOWEVER, THAT THE LAWS OF THE STATE IN WHICH THE MORTGAGED PROPERTY OR COLLATERAL IS LOCATED SHALL APPLY TO THE EXTENT OF PROCEDURAL AND SUBSTANTIVE MATTERS RELATING ONLY TO THE CREATION, PERFECTION, FORECLOSURE OF LIENS, AND ENFORCEMENT OF RIGHTS AND REMEDIES AGAINST SUCH MORTGAGED PROPERTY OR COLLATERAL 5.5 The provisions of this Fourth Amendment are severable, and if any one clause or provision hereof shall be held invalid or unenforceable in whole or in part, then such invalidity or unenforceability shall affect only such clause or provision, or part thereof, and not any other clause or provision of this Fourth Amendment. 5.6 This Fourth Amendment is being executed in counterparts, each of which shall for all purposes be deemed to be an original and all such counterparts shall together constitute but one and the same instrument, except, -12- ARTICLE VI 13 to facilitate recordation: (1) if the Mortgaged Property is situated in more than one county, descriptions of only those portions of the Mortgaged Property located in the county in which a particular counterpart is recorded may be attached as an exhibit thereto without also including descriptions of the other Mortgaged Property located elsewhere, (2) an exhibit containing an identical description as that set forth on the exhibits to this Fourth Amendment will be attached to a financing statement amendment referencing and supplementing the financing statements filed in connection with the Existing Deed of Trust and to which a counterpart of such Existing Deed of Trust may have been attached; and (3) in those counties where tract indexing is not conducted, Schedule I, Schedule II, Schedule III or Schedule IV may be omitted and reference is hereby made to Exhibit A to the applicable instrument comprising the Deed of Trust (as applicable) for all purposes; provided, however, counterparts with complete copies of Schedule I, Schedule II, Schedule III, Schedule IV and Exhibit A hereto are being delivered to Beneficiary. 5.7 Trustor shall pay all taxes, charges, filing, registration and recording fees, excises and levies payable with respect to this Fourth Amendment and the transactions contemplated hereby. 5.8 From and after the execution of this Fourth Amendment by the parties hereto, (i) each reference in the Existing Deed of Trust to "this Deed of Trust "hereof', "herein "hereby" or words of like import shall be deemed to be a reference to the Existing Deed of Trust as amended and supplemented by this Fourth Amendment, (ii) subject to Section 5.6 hereof, each reference in the Existing Deed of Trust to "Mortgaged Property" shall mean and refer to the amended definition of Mortgaged Property as set forth within this Fourth Amendment, including, without limitation, as said definition has been amended by Exhibit A attached to this Fourth Amendment, and as the same may from time to time be further amended or supplemented, (iii) this Fourth Amendment shall constitute both a "Loan Document" and a "Mortgage Modification" pursuant to the Credit Agreement, and (iv) the Deed of Trust shall constitute both a "Mortgage" and a "Security Instrument" pursuant to the Credit Agreement. State Specific Provisions. The terms and provisions set forth below in this Article VI shall be construed, to the greatest extent possible, consistently with those set forth elsewhere in this Fourth Amendment and the Deed of Trust as being in addition to and supplementing such other terms and provisions set forth elsewhere herein or therein; however, notwithstanding anything to the contrary set forth elsewhere in this Fourth Amendment or the Deed of Trust, in the event of any conflict or inconsistency between the terms and provisions of this Article VI and the terms and provisions set forth elsewhere in this Fourth Amendment or the Deed of Trust, the following terms and provisions of this Article VI (and the applicable laws of the applicable Mortgage State or Deed of Trust State where such portions of the Mortgaged Property are situated) shall govern and control: 6.1 New Mexico State Specific Provisions. With respect to the Mortgaged Property now or hereafter located in, or otherwise subject to the laws of the State of New Mexico (and, if applicable, for any other Mortgaged Property located in any other Mortgage State or Deed of Trust State, as applicable): (a) if Beneficiary forecloses on its mortgage Lien on the Mortgaged Property, Trustor agrees, pursuant to N.M.S.A. 39 -5 -19, 1978 as amended, that the redemption period as to such Mortgaged Property situated in the State of New Mexico shall not extend for a period of greater than one (1) month (instead of nine (9) months as provided in N.M.S.A. 39 -5 -19, 1978 as amended); (b) to the extent, if at all, N.M.S.A. 56 -7 -1, 1978 as amended is applicable to the Deed of Trust and the other Loan Documents described in the Credit Agreement, any agreement to indemnify given by Trustor to Beneficiary or any other indemnitee, including certain types of insurance coverage as set forth in N.M.S.A. 56 -7 -1, 1978 as amended, will not extend to liability, claims, damages, losses or expenses, including fees of attorneys, arising out of (i) the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications by Beneficiary or any other indemnitee, or the agents or employees of Beneficiary or any other indemnitee, or (ii) the giving of or the failure to give directions or instructions by Beneficiary or indemnitee, or the agents or employees of Beneficiary or indemnitee, where such giving or failure to give directions or instructions is the primary cause of bodily injury to persons or damage to property, or (iii) the negligence, act or omission of the indemnitee or additional insured, as the case may be, its officers, employees or agents and shall further be modified, if required, by the provisions of N.M.S.A. 56 -7 -1 (B), 1978 as amended; (c) Trustor grants and mortgages to Beneficiary the Mortgaged Property with mortgage covenants and upon the statutory mortgage condition; (d) Trustor confirms that Trustor is aware of the provisions of N.M.S.A. 58 -6 -5, 1978 as amended providing that no contract, promise or commitment to loan money to or grant, extend or renew credit or any modification thereof, in any amount greater than $25,000.00, not primarily for personal, family or household purposes, made by a financial institution, including Beneficiary, is enforceable unless in writing and signed by the party to be charged, or by that party's authorized representative. This section is also deemed to be incorporated by reference into each and every Loan Document; and (e) The maximum amount secured by the Deed of Trust at any given time shall be Forty Million And No /100 Dollars ($40,000,000.00). 6.2 Louisiana State Specific Provisions. With respect to the Mortgaged Property now or hereafter located in, or otherwise subject to the laws of, the State of Louisiana (and, if applicable, for any other Mortgaged Property located in any other Mortgage State or Deed of Trust State, as applicable): (a) THE OUTSTANDING INDEBTEDNESS SECURED BY MORTGAGED PROPERTY LOCATED IN THE STATE OF LOUISIANA SHALL NOT, AT ANY TIME OR FROM TIME TO TIME, EXCEED AN AGGREGATE MAXIMUM AMOUNT OF FORTY MILLION AND NO /100 DOLLARS ($40,000,000.00); (b) Trustor hereby grants, sells, assigns, sets over and mortgages unto Trustee for the benefit of Beneficiary during the term of the Deed of Trust, all of Trustor's rights and interests pursuant to any provision of applicable law granting producers of Hydrocarbons a Lien on the Hydrocarbons produced and on the resulting accounts receivable, including, without limitation, the provisions of Section 9.343 of the UCC of the State of Louisiana, hereby vesting in Trustee for the benefit of Beneficiary all of Trustor's rights as an interest owner to the continuing security interest in and Lien upon the Mortgaged Property; (c) Without limiting the obligations of Trustor under any other provision of the Deed of Trust, upon the request of Beneficiary, Trustor shall take or cause to be taken all actions (other than any actions required to be taken by Beneficiary) requested by Beneficiary to cause Beneficiary to have "control" (within the meaning of Sections 9.104, 9.105, 9.106 and 9.107 of the UCC of the State of Louisiana) over any Mortgaged Property or Collateral constituting Deposit Accounts, Electronic Chattel Paper, Investment Property or Letter -of- Credit Rights (as all such terms are defined within the UCC of the State of Louisiana), including, without limitation, executing and delivering any agreements, in form and substance satisfactory to Beneficiary, with securities intermediaries, issuers or other Persons in order to establish "control and Trustor shall promptly notify Beneficiary of Trustor's acquisition of any such Collateral, and be a "protected purchase?' (as defined in the UCC of the State of Louisiana). With respect to Collateral other than Goods (as such term is defined within the UCC of the State of Louisiana) covered by a Document (as such term is defined within the UCC of the State of Louisiana) in the possession of a Person other than Trustor or Beneficiary, Trustor shall obtain written acknowledgment that such Person holds possession for Beneficiary's benefit, and with respect to any Collateral constituting Goods that are in the possession of a bailee, Trustor shall provide prompt notice to Beneficiary of any such Collateral then in the possession of such bailee, and Trustor shall take or cause to be taken all actions (other than any actions required to be taken by Beneficiary) necessary or requested by Beneficiary to cause Beneficiary to have a perfected security interest in such Mortgaged Property or Collateral under applicable law. This Section 14 6.2(c) and the obligations imposed on Trustor hereby shall be interpreted as broadly as possible in favor of Trustee and Beneficiary in order to effectuate the purpose and intent of the Deed of Trust; (d) Trustor acknowledges the secured Indebtedness, whether now existing or to arise hereafter, and for Trustor, Trustor's heirs, devisees, personal representatives, successors and assigns, hereby confesses judgment for the full amount of the secured Indebtedness in favor of the Beneficiary. Trustor further agrees that Beneficiary may cause all or any part of the Mortgaged Property to be seized and sold after due process of law, Trustor waiving the benefit of all laws or parts of laws relative to the appraisement of property seized and sold under executory process or other legal process, and consenting that all or any part of the Mortgaged Property may be sold without appraisement, either in its entirety or in lots and parcels, as Beneficiary may determine, to the highest bidder for cash or on such terms as the plaintiff in such proceedings may direct. Trustor hereby waives (i) the benefit of appraisement provided for in articles 2332, 2336, 2723, and 2724 of the Louisiana Code of Civil Procedure and all other laws conferring the same; (ii) the demand and three (3) days' notice of demand as provided in articles 2639 and 2721 of the Louisiana Code of Civil Procedure; (iii) the notice of seizure provided for in articles 2293 and 2721 of the Louisiana Code of Civil Procedure; (iv) the three (3) days' delay provided for in articles 2331 and 2722 of the Louisiana Code of Civil Procedure; (v) all other benefits provided under articles 2331, 2722 and 2723 of the Louisiana Code of Civil Procedure; and (vi) all other laws providing rights of notice, demand, appraisement, or delay under all other articles not specifically mentioned above, Trustor expressly authorizes and agrees that Beneficiary shall have the right to appoint a keeper of such Mortgaged Property pursuant to the terms and provisions of La. R.S. 9:5131 et seq. and La. R.S. 9 :5136 et seq., which keeper may be Beneficiary, any employee thereof, or any other Person. (e) For purposes of Louisiana law, including but not limited to the availability of executory process, Trustor has appeared on this date before the undersigned Notary Public and witnesses in order to execute this Fourth Amendment. Trustor attaches, as Annex I, to counterparts hereof being recorded in Louisiana certified resolutions of its board of directors authorizing the execution and delivery of this Fourth Amendment, with the same force and effect as if Trustor had heretofore executed the Original Deed of Trust. (t) As used in the Deed of Trust (but without intending to alter the choice of Oklahoma law contained in Section 5.4 above): the terms "real property" and "real estate" shall be deemed to include immovable property; the term "fee estate" shall include full ownership; the term "personal property" shall be deemed to include movable property; the term "tangible property" shall be deemed to include corporeal property; the term "intangible property" shall be deemed to include incorporeal property; the term "easements" shall be deemed to include servitudes; the term "buildings" shall be deemed to include other constructions; the phrase "covenant running with the land" and other words of similar import shall be deemed to include a real right or a recorded lease of immovable property; the term "county" shall be deemed to include a parish; the term "joint and several liability" shall be deemed to include in solido liability; the terms "deed in lieu of foreclosure "conveyance in lieu of foreclosure" and words of similar import shall include a dation en paiement; references to the UCC shall include the Louisiana Commercial Laws, La. R.S.10: 1 -101 et seq.; and references to a "receiver" or words of similar import shall include a keeper appointed pursuant to La. R.S. 9:5136 through 5140.2, inclusive, as the same may be amended. (g) Trustor grants a continuing security interest to Beneficiary in all present and future goods, other than consumer goods and manufactured homes, that after placement on or incorporation in the Mortgaged Property will become a component part of such immovable property as provided in Civil Code articles 463, 465 or 466 or that are hereafter declared to be a component part of such immovable property under Civil Code article 467. (h) Subject to the provisions of the Credit Agreement, upon the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies provided for in the Credit -15- Agreement and/or the other Loan Documents, or elsewhere in the Deed of Trust, Beneficiary may cause all and singular of the Mortgaged Property to be seized and sold under executory or other legal process, at Beneficiary's sole option, in accordance with applicable Louisiana laws, to the highest bidder for cash or credit, either as an entirety or in lots or parcels, all as Beneficiary may determine, with or without appraisement, and without the necessity of making further demand upon Trustor or further notifying or placing Trustor in default, all of which are expressly waived by Trustor. (i) In the event any proceedings are taken hereunder by way of executory or other process, any and all declaration of facts made by authentic act before a notary public and in the presence of two witnesses by a person or persons declaring that such facts lie within his or her knowledge shall constitute authentic evidence of such facts for the purposes of such executory or other process and also for purposes of La. R.S. 3509.1, R.S. 9:3504(D)(6), and La. R.S. 10:9 -508, where applicable. (j) In the event the Mortgaged Property, or any part thereof, is seized as an incident to an action for the recognition or enforcement of the Deed of Trust by executory process, ordinary process, sequestration, writ of fieri facias or otherwise, Trustor and Beneficiary agree that the court issuing any such order shall, if petitioned for by Beneficiary, direct the applicable sheriff to appoint as a keeper of the Mortgaged Property, Beneficiary or any agent designated by Beneficiary or any Person named by Beneficiary at the time such seizure is effected; this designation is pursuant to La. R.S. 9:5136 through 5140.2, inclusive, as the same may be amended, and Beneficiary shall be entitled to all the rights and benefits afforded thereunder. It is hereby agreed that the keeper shall be entitled to receive as compensation, in excess of its reasonable costs and expenses incurred in the administration or preservation of the Mortgaged Property, a reasonable fee. The designation of keeper made herein shall not be deemed to require Beneficiary to provoke the appointment of such a keeper. Trustor agrees to pay the fees and all expenses of such keeper, and this obligation shall be secured by the Deed of Trust as additional Indebtedness secured by the Deed of Trust. (k) The Deed of Trust constitutes an assignment of Production Sale Contracts, leases and rents pursuant to R.S. 9:4401, a collateral assignment and pledge of insurance proceeds and other incorporeal rights pursuant to R.S. 9:5386, and a grant of authority to carry out and enforce rights pursuant to R.S. 9:5388. To the extent applicable, any powers of attorney and similar grants of authority given by Trustor to Beneficiary in the Deed of Trust shall be deemed given pursuant to the provisions of La. R.S. 9:5388. (1) The Indebtedness has a final maturity date as set forth in the Credit Agreement, subject to acceleration as provided herein and in the Credit Agreement. (m) The acceptance of the Deed of Trust by Beneficiary and the consent by Beneficiary to the terms and conditions of the Deed of Trust is presumed and, under the provisions of Louisiana Civil Code article 3289, Beneficiary is not required to sign this Fourth Amendment. (n) The production of mortgage, conveyance, tax research or other certificates is waived by consent, and Trustor and Beneficiary agree to hold the undersigned Notary Public, harmless for failure to procure and attach same. Neither the Note nor any other document evidencing the Indebtedness has been delivered to the undersigned Notary Public for purposes of paraphing it for identification with the Deed of Trust. 6.3. Kansas State Specific Provisions. With respect to the Mortgaged Property now or hereafter located in, or otherwise subject to the laws of, the State of Kansas (and, if applicable, for any other Mortgaged Property located in any other Mortgage State or Deed of Trust State, as applicable): 16 17 (a) THE MAXIMUM PRINCIPAL AMOUNT SECURED BY THE DEED OF TRUST IS TWO HUNDRED FIFTY NINE THOUSAND EIGHT HUNDRED NINETY EIGHT AND NO /100 DOLLARS ($259,898.00); (b) The Loans evidenced by the Note, Credit Agreement, Deed of Trust and all of the other Loan Documents is a business loan within the meaning of K.S.A. 16 -207 and Beneficiary shall have the right to exercise any and all remedies permitted under K.S.A. 58 -2343. (c) The Deed of Trust secures any and all future advances of Indebtedness from Beneficiary to Trustor under the Credit Agreement and shall have priority under the Lien of the Deed of Trust from the date this Fourth Amendment is recorded. 6.4. Mississippi State Specific Provisions. With respect to the Mortgaged Property now or hereafter located in, or otherwise subject to the laws of, the State of Mississippi (and, if applicable, for any other Mortgaged Property located in any other Mortgage State or Deed of Trust State, as applicable): (a) The Deed of Trust secures, among other things, a revolving line of credit loan as defined and authorized under Miss. Code Ann. Section 89 -1-49, and it shall secure not only presently existing Indebtedness under the Credit Agreement and the other Loan Documents but also future advances that constitute Indebtedness under the Credit Agreement (whether such advances are obligatory or to be made at the option of Beneficiary, or otherwise), plus interest thereon, to the same extent and with the same priority as if such future advances were made on the date of the execution of this Fourth Amendment and without regard as to whether or not there is any advance made at the time of execution of the Deed of Trust and without regard as to whether or not there is any Indebtedness outstanding at the time any advance is made. The Deed of Trust secures all present and future disbursements of the Loans under the Credit Agreement, and all other sums from time to time owing to the holders of the Indebtedness by Trustor, together with interest thereon. To the fullest extent permitted by applicable law, the Lien of the Deed of Trust, as to all such sums so advanced, shall have priority over all subsequent Liens and encumbrances, including statutory Liens (excepting solely taxes and assessments levied on the Mortgaged Property secured by the Deed of Trust). The Deed of Trust shall be released and cancelled only upon the final and indefeasible payment, in full, of the Indebtedness and the termination of Beneficiary's obligation, whether or not mandatory, to make any Loans or other advances under the Credit Agreement. The absence of an outstanding balance shall not affect the Lien or priority of the Deed of Trust as to all advances made, from time to time, pursuant to such line of credit. (b) The Indebtedness has a final maturity date as set forth in the Credit Agreement, subject to acceleration as provided herein and in the Credit Agreement. (c) Certain of the Indebtedness secured by the Deed of Trust bears interest at one or more variable rates, which rates shall change from time to time upon changes in the applicable LIBOR (as defined in the Credit Agreement) rate and/or the Applicable Prime Rate (as defined in the Credit Agreement), as well as upon the satisfaction or the failure to satisfy, as applicable, certain performance criteria as more particularly set forth in, and subject to the applicable terms and conditions of; the Credit Agreement. (d) Sale of the Mortgaged Property pursuant to the power of sale granted herein shall be advertised for three (3) consecutive weeks preceding the sale in a newspaper published in the county where such Mortgaged Property is situated, or if none is so published, then in some newspaper having a general circulation therein, and by posting notice of sale for the same time at the courthouse of the same county. The notice and advertisement shall disclose the name of the original Trustor in the Deed of Trust. Trustor waives the provisions of Section 89 -1 -55 of the Mississippi Code of 1972, and Section 111 of the Constitution of the State of Mississippi, as far as such provisions restrict the right of Trustee to offer at sale more than one hundred sixty (160) acres at a time, and Trustee may offer the Mortgaged Property herein conveyed as a whole or in any part(s), regardless of how it is described. If the Mortgaged Property is situated in two or more counties, or in two judicial districts of the same county, Trustee shall have full power to select in which county, or judicial district, the sale of the Mortgaged Property is to be made, newspaper advertisement published and notice of sale posted, and Trustee's selection shall be binding upon Trustor and Beneficiary. Upon the occurrence and during ,the continuance of an Event of Default, which Event of Default may be declared by any officer of Beneficiary when Beneficiary believes that such an Event of Default then exists pursuant to the Loan Documents, whereupon any such officer of Beneficiary may request that Trustee sell the Mortgaged Property. Beneficiary shall have the same right to purchase the Mortgaged Property at the foreclosure sale as would a purchaser who is not a party to the Deed of Trust. At any sale hereunder, Trustee may, from time to time, adjourn said sale to a later date without readvertising the sale by giving notice of the time and place of such continued sale at the time Trustee shall make said adjournment. Trustee shall have full power to conduct any sale hereunder through an agent duly appointed by Trustee for that purpose and said appointment need not be in writing or recorded. Notwithstanding the foregoing, Beneficiary may sue and recover judgment on the Indebtedness or any part thereof without first requesting Trustee to exercise the power of sale granted hereunder (and without first exercising its rights and remedies under any of the other Loan Documents) and may seek to collect any judgment so obtained by exercising the power of sale hereunder. If instituting suit on the Indebtedness or any part thereof, Beneficiary may later abandon, stay or postpone such suit and request Trustee to exercise the power of sale granted hereunder and thereafter recover judgment on the Indebtedness to the extent remaining unsatisfied. The power of sale granted hereunder may be exercised, at Beneficiary's discretion, as to all or any part of the Mortgaged Property, and Beneficiary may sue and recover judgment on the Indebtedness to the extent remaining unsatisfied after the sale. Neither institution of suit on the Indebtedness or any part thereof nor exercise of the power of sale granted hereunder as to less than all of the Mortgaged Property shall affect the Deed of Trust as to those portions of the Mortgaged Property not sold (if any) pursuant to the power of sale granted hereunder. (e) Beneficiary may without notice to any party to the Deed of Trust or to their successors or permitted assigns, and without regard to the willingness or inability of Trustee to act, or to execute this trust, appoint another Person or succession of Persons to act as trustee herein, and such appointee(s) or substitute(s) shall have all the title, authority and powers in the execution and enforcement of this trust as are vested in Trustee. Such appointment by Beneficiary may be made by any one of its officers, agents or other Persons authorized to act on behalf of Beneficiary. No one exercise of this power of appointment, the power of sale, or any other power or right given in the Deed of Trust shall exhaust the right to exercise such power, but all rights and powers herein given may be exercised as often as may be necessary to achieve the collection of all amounts and the indefeasible payment of the Indebtedness and the full performance of all obligations of Trustor secured by the Deed of Trust until said amounts and obligations are fully, finally and indefeasibly paid and discharged. Trustee shall not be liable for any error of judgment or act done by Trustee in good faith. Trustee shall have the right to resign at any time. 6.5. Colorado State Specific Provisions. With respect to the Mortgaged Property now or hereafter located in, or otherwise subject to the laws of, the State of Colorado (and, if applicable, for any other Mortgaged Property located in any other Mortgage State or Deed of Trust State, as applicable): (a) The Deed of Trust secures future advances (subject to the terms and conditions of the Credit Agreement) up to a total maximum principal amount of Forty Million And No /100 Dollars ($40,000,000.00), plus interest thereon, and shall be effective to secure payment of all advances, both obligatory and optional, up to such maximum principal amount (plus interest thereon) to the same extent and with the same effect and priority as if such total maximum principal amount had been fully disbursed on or before the date this Fourth Amendment was recorded; provided, however, that the foregoing limitation shall apply only to the maximum amount of the Lien created by the Deed of Trust, and it shall not in any manner limit, affect or impair any grant of a security interest or other right in favor of Beneficiary under the provisions of the Credit Agreement or under any of the other Loan Documents at any time executed by Trustor. Without limiting any other provision of the Deed of Trust, the Deed of Trust shall also secure, to the same extent and with the same effect and priority, all expenses associated with the collection of the Indebtedness secured thereby or foreclosure of the Deed of Trust and all additional 18 amounts as set forth in Section 38 -39 -106, C.R.S., as amended, together with interest thereon as set forth in the Deed of Trust, regardless of whether such additional amounts, when added to the principal amount of the Indebtedness, exceed the maximum principal amount stated above. The Deed of Trust is made pursuant to a revolving credit arrangement, and, subject to the applicable terms and conditions set forth in the Credit Agreement, a part of the principal balance of the Indebtedness under the Credit Agreement may be advanced to the Trustor, repaid by the Trustor and re- advanced to the Trustor from time to time, the Deed of Trust continuing to secure the full principal amount stated above regardless of any such repayments by the Trustor, even if there is at any time no principal balance outstanding under the Credit Agreement, until the Deed of Trust is released by Beneficiary. To the fullest extent permitted by applicable laws, the Lien of the Deed of Trust, as to all such sums so advanced, shall have priority over all subsequent Liens and encumbrances, including statutory Liens (excepting solely taxes and assessments levied on the Mortgaged Property secured by the Deed of Trust). (b) Trustor represents and warrants to Beneficiary that, to Trustor's knowledge, none of the Mortgaged Property is "agricultural property" as that term is defined in Section 38 -38- 103.3(1), C.R.S., as amended. (c) Notwithstanding the availability of legal remedies, upon the occurrence and during the continuance of an Event of Default, Beneficiary will be entitled to obtain specific performance, mandatory or prohibitory injunctive relief or other equitable relief requiring Trustor to cure or refrain from repeating any default. (d) Upon the occurrence and during the continuance of an Event of Default, Beneficiary may make any payment or perform any other obligation under the Loan Documents that Trustor has failed to make or perform, and Trustor hereby irrevocably appoints Beneficiary as the true and lawful attorney -in -fact for Trustor to make any such payment and perform any such obligation in the name of Trustor. All payments made and expenses (including attorneys' fees) incurred by Beneficiary in this connection, together with interest thereon at the appropriate rate set forth in the Credit Agreement from the date paid or incurred until repaid, will be part of the Indebtedness and will be immediately due and payable by Trustor to Beneficiary. In lieu of advancing Beneficiary's own funds for such purposes, Beneficiary may use any funds of Trustor that may be in Beneficiary's possession. (e) Upon the occurrence and during the continuance of an Event of Default, Beneficiary may foreclose this Deed of Trust, insofar as it encumbers the Mortgaged Property, either by judicial action or through Trustee in the manner provided by the applicable laws of this Deed of Trust State. (f) Upon the occurrence and during the continuance of an Event of Default, Beneficiary shall be entitled, as a matter of absolute right and without regard to the value of any security for the Indebtedness or the solvency of any Person liable therefor, to the appointment of a receiver for the Mortgaged Property on ex parte application to any court of competent jurisdiction. Trustor waives any right to any hearing or notice of hearing prior to the appointment of a receiver. Such receiver and its agents shall be empowered (i) to take possession of the Mortgaged Property and any businesses conducted by Trustor or any other Person thereon and any business assets used in connection therewith, (ii) to exclude Trustor and Trustor's agents, servants and employees from the Mortgaged Property, or, at the option of the receiver, in lieu of such exclusion, to collect a fair market rental from any such Persons occupying or using any part of the Mortgaged Property, (iii) to collect the rents, issues, profits and income therefrom, (iv) to complete any construction that may be in progress, (v) to do such maintenance and make such repairs and alterations as the receiver deems necessary, (vi) to use all stores of materials, supplies and maintenance equipment on the Mortgaged Property and replace such items at the expense of the receivership estate, (vii) to pay all taxes and assessments against the Mortgaged Property, all premiums for insurance thereon, all utility and other operating expenses, and all sums due under any prior or subsequent encumbrance, (viii) to borrow from Beneficiary such funds as may reasonably be necessary to the effective exercise of the receiver's powers, on such terms as may be agreed upon by the receiver and Beneficiary, and (ix) generally to do anything that Trustor could legally do if Trustor was in possession of the Mortgaged Property. All expenses incurred by the receiver or its agents, including obligations to repay funds borrowed by the receiver, shall constitute a 19 part of the Indebtedness secured by the Deed of Trust Any revenues collected by the receiver shall be applied first to the expenses of the receivership, including attorneys' fees incurred by the receiver and by Beneficiary, together with interest thereon at the appropriate rate set forth in the Credit Agreement from the date incurred until repaid, and the balance shall be applied toward the Indebtedness or in such other manner as the court may direct. Unless sooner terminated with the express consent of Beneficiary, any such receivership will continue until the Indebtedness has been indefeasibly paid and otherwise discharged in full, or until title to the Mortgaged Property has passed after foreclosure sale and all applicable periods of redemption have expired. (g) The last date for payment of the principal balance of the Loans is as set forth in the Credit Agreement, subject to acceleration and extension as provided herein and in the Credit Agreement. (h) Trustor represents and warrants that Trustor does not own any water rights affecting the Mortgaged Property which are evidenced by stock in a ditch or reservoir company. 6.6. Texas State Specific Provisions. With respect to the Mortgaged Property now or hereafter located in, or otherwise subject to the laws of, the State of Texas (and, if applicable, for any other Mortgaged Property located in any other Mortgage State or Deed of Trust State, as applicable): (a) The following provisions shall apply with respect to the Trustee: (i) No Required Action. Trustee shall not be required to take any action toward the execution and enforcement of the trust hereby created or to institute, appear in, or defend any action, suit, or other proceeding in connection therewith where, in Trustee's opinion, such action would be likely to involve Trustee in expense or liability, unless requested so to do by a written instrument signed by Beneficiary and, if Trustee so requests, unless Trustee is tendered security and indemnity satisfactory to Trustee against any and all cost, expense, and liability arising therefrom. Trustee shall not be responsible for the execution, acknowledgment, or validity of the Loan Documents, or for the proper authorization thereof, or for the sufficiency of the Lien and security interest purported to be created hereby, and Trustee makes no representation in respect thereof or in respect of the rights, remedies, and recourses of Beneficiary; (ii) Certain Rights. With the approval of Beneficiary, Trustee shall have the right to take any and all of the following actions (1) to select, employ, and advise with counsel (who may be, but need not be, counsel for Beneficiary) upon any matters arising hereunder, including the preparation, execution, interpretation and enforcement of the Loan Documents, and shall be fully protectedin relying as to legal matters on the advice of counsel, (2) to execute any of the trusts and powers hereof and to perform any duty hereunder either directly or through its agents or attorneys, (3) to select and employ, in and about the execution of its duties hereunder, suitable accountants, engineers and other experts, agents and attorneys -in -fact, either corporate or individual, not regularly in the employ of Trustee, and Trustee shall not be answerable for any act, default, negligence, or misconduct of any such accountant, engineer or other expert, agent or attorney -in -fact, if selected with reasonable care, or for any error of judgment or act done by Trustee in good faith, or be otherwise responsible or accountable under any circumstances whatsoever, except for Trustee's gross negligence or bad faith, and (4) any and all other lawful action as Beneficiary may instruct Trustee to take to protect or enforce Beneficiary's rights hereunder. Trustee shall not be personally liable in case of entry by Trustee, or anyone entering by virtue of the powers herein granted to Trustee, upon the Mortgaged Property for debts contracted for or liability or damages incurred in the management or operation of the Mortgaged Property. Trustee shall have the right to rely on any instrument, document, or signature authorizing or supporting any action taken or proposed to be taken by Trustee hereunder, believed by Trustee in good faith to be genuine. Trustee shall be entitled to reimbursement for expenses actually incurred by Trustee in the performance of Trustee's duties hereunder and to reasonable and customary compensation for such of Trustee's services hereunder as shall be rendered. Trustor will, from time to time, pay the compensation due to Trustee hereunder and reimburse Trustee for, and save Trustee harmless against, any and all liability and expenses which may be incurred by Trustee in the performance of Trustee's duties; (iii) Retention of Money. All moneys received by Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated in any manner from any other moneys (except to the extent required 20 by applicable law) and Trustee shall be under no liability for interest on any moneys received by Trustee hereunder; (iv) Successor Trustees. Trustee may resign by the giving of notice of such resignation in writing or verbally to Beneficiary. If Trustee shall die, resign, or become disqualified from acting in the execution of this trust, or if for any reason, Beneficiary shall prefer to appoint a substitute Trustee or multiple substitute Trustees, or successive substitute Trustees or successive multiple substitute Trustees, to act instead of the aforenamed Trustee, Beneficiary shall have full power to appoint a substitute Trustee (or, if preferred, multiple substitute Trustees) in succession who shall succeed (and if multiple substitute Trustees are appointed, each of such multiple substitute Trustees shall succeed) to all the estates, rights, powers, and duties of the aforenamed Trustee. Such appointment may be executed by any authorized agent of Beneficiary, and if such Beneficiary be an entity and such appointment be executed in its behalf by any officer of such entity, such appointment shall be conclusively presumed to be executed with authority and shall be valid and sufficient without proof of any action by the board of directors or any superior officer of the entity. Trustor hereby ratifies and confirms any and all acts which the aforenamed Trustee, or Trustee's successors in this trust, shall do lawfully by virtue hereof. If multiple substitute Trustees are appointed, each of such multiple substitute Trustees shall be empowered and authorized to act alone without the necessity of the joinder of the other multiple substitute Trustees, whenever any action or undertaking of such substitute Trustees is requested or required under or pursuant to the Deed of Trust or applicable law; (v) Perfection of Appointment. Should any deed, conveyance, or instrument of any nature be required from Trustor by any Trustee or its substitutes or successors to more fully and certainly vest in and confirm to the Trustee or such substitutes or successors such estates, rights, powers, and duties, then, upon request by the Trustee or such substitutes or successors, any and all such deeds, conveyances and instruments shall be made, executed, acknowledged, and delivered and shall be caused to be recorded and/or filed by Trustor; (vi) Succession Instruments. Any substitute or successor Trustee appointed pursuant to any of the provisions hereof shall, without any further act, deed, or conveyance, become vested with all the estates, properties, rights, powers, and trusts of its or his/her predecessor in the rights hereunder with like effect as if originally named as Trustee herein; but nevertheless, upon the written request of Beneficiary or of the substitute or successor trustee, the Trustee ceasing to act shall execute and deliver any instrument transferring to such substitute or successor trustee, upon the trusts herein expressed, all the estates, properties, rights, powers, and trusts of the Trustee so ceasing to act, and shall duly assign, transfer and deliver any of the property and moneys held by such Trustee to such substitute or successor so appointed in the Trustee's place; and (vii) No Representation by Trustee or Beneficiary. By accepting or approving anything required to be observed, performed, or fulfilled or to be given to Trustee or Beneficiary pursuant to the Loan Documents, including without limitation, any officer's certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, neither Trustee nor Beneficiary shall be deemed to have warranted, consented to, or affirmed the sufficiency, legality, effectiveness, or legal effect of the same, or of any term, provision, or condition thereof, and such acceptance or approval thereof shall not be or constitute any warranty or affirmation with respect thereto by Trustee or Beneficiary. (b) TEXAS FINANCE CODE $307.052 COLLATERAL PROTECTION INSURANCE NOTICE: (i) TRUSTOR IS REQUIRED TO (1) KEEP THE MORTGAGED PROPERTY INSURED AGAINST DAMAGE IN THE AMOUNT BENEFICIARY SPECIFIES, (2) PURCHASE THE INSURANCE FROM AN INSURER THAT IS AUTHORIZED TO DO BUSINESS IN THE STATE OF TEXAS OR AN ELIGIBLE SURPLUS LINES INSURER, AND (3) NAME BENEFICIARY AS THE PERSON TO BE PAD) UNDER THE POLICY IN THE EVENT OF A LOSS; (ii) TRUSTOR MUST, IF REQUIRED BY BENEFICIARY. DELIVER TO BENEFICIARY A COPY OF THE POLICY AND PROOF OF THE PAYMENT OF PREMIUMSk AND (iii) IF TRUSTOR FAILS TO MEET ANY REQUIREMENT LISTED IN SUBSECTIONS (b)(i)'_ OR (b)(ii) IMMEDIATELY ABOVE, BENEFICIARY MAY OBTAIN COLLATERAL PROTECTION INSURANCE ON BEHALF OF TRUSTOR AT TRUSTOR'S EXPENSE, WHICH COSTS SHALL CONSTITUTE ADDITIONAL INDEBTEDNESS SECURED BY THE DEED OF TRUST. -21- (c) Waiver of Deficiency Statute. Provided that any foreclosure or other sale contemplated by the Deed of Trust is conducted in a commercially reasonable manner, then: (i) Waiver. In the event an interest in any of the Mortgaged Property is foreclosed upon pursuant to a judicial or non judicial foreclosure sale, Trustor agrees as follows: notwithstanding the provisions of Sections 51.003, 51.004, and 51.005 of the Texas Property Code (as the same may be amended from time to time), and to the extent permitted by law, Trustor agrees that Beneficiary shall be entitled to seek a deficiency judgment from Trustor and any other party obligated pursuant the Loan Documents equal to the difference between the amount owing pursuant the Loan Documents and the amount for which the Mortgaged Property was sold pursuant to judicial or non judicial foreclosure sale. Trustor expressly recognizes that these provisions constitute a waiver of the above-cited provisions of the Texas Property Code which would otherwise permit Trustor and other Persons against whom recovery of deficiencies is sought independently (even absent the initiation of deficiency proceedings against them) to present competent evidence of the fair market value of the Mortgaged Property as of the date of the foreclosure sale and offset against any deficiency the amount by which the foreclosure sale price is determined to be less than such fair market value. Trustor further recognizes and agrees that this waiver creates an irrebuttable presumption that the foreclosure sale price is equal to the fair market value of the Mortgaged Property for purposes of calculating deficiencies owed by Trustor and others against whom recovery of a deficiency is sought; or (ii) Alternative to Waiver. Alternatively, in the event the waiver provided for in subsection (c)(i) immediately above is determined by a court of competent jurisdiction to be unenforceable, the following shall be the basis for the finder of fact's determination of the fair market value of the Mortgaged Property as of the date of the foreclosure sale in proceedings governed by Sections 51.003, 51.004 and 51.005 of the Texas Property Code (as amended from time to time): (1) the Mortgaged Property shall be valued in an "as is" condition as of the date of the foreclosure sale, without any assumption or expectation that the Mortgaged Property will be repaired or improved in any manner before a resale of the Mortgaged Property after foreclosure; (2) the valuation shall be based upon an assumption that the foreclosure purchaser desires a resale of the Mortgaged Property for cash promptly (but no later than nine (9) months) following the foreclosure sale; (3) all reasonable closing costs customarily borne by the seller in commercial real estate transactions should be deducted from the gross fair market value of the Mortgaged Property, including, without limitation, brokerage commissions, title insurance, a survey of the Mortgaged Property, tax prorations, attorneys' fees, and marketing costs; (4) the gross fair market value of the Mortgaged Property shall be further discounted to account for any estimated holding costs associated with maintaining the Mortgaged Property pending sale, including, without limitation, utilities expenses, property management fees, taxes and assessments (to the extent not accounted for in (3) above), and other maintenance, operational and ownership expenses; and (5) any expert opinion testimony given or considered in connection with a determination of the fair market value of the Mortgaged Property must be given by Persons having at least five (5) years' experience in appraising property similar to the Mortgaged Property and who have conducted and prepared a complete written appraisal of the Mortgaged Property taking into consideration, without limitation, the factors set forth above. (d) NOTICE OF INDEMNIFICATION. TRUSTOR ACKNOWLEDGES THAT THE DEED OF TRUST AND OTHER LOAN DOCUMENTS PROVIDE FOR INDEMNIFICATION OF THE INDEMNITEES DESCRIBED THEREIN BY TRUSTOR, PURSUANT TO THE APPLICABLE TERMS AND PROVISIONS SET FORTH THEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS. (e) Revolving Credit; Future Advances. The Indebtedness is, in part, a revolving line of credit facility as authorized pursuant to the Credit Agreement, and the total amount secured the Deed of Trust may decrease or increase from time to time accordingly. It is contemplated by Trustor and Beneficiary that proceeds of the Loans and protective advances may be advanced (whether or not obligatory) to or on behalf of Trustor from time to time (collectively, "Future Advances The Deed of Trust shall secure not only presently existing Indebtedness under the Credit Agreement and the other Loan Documents but also the Future Advances, which shall all constitute Indebtedness secured by the Deed of Trust and the Credit Agreement (whether such advances are obligatory or to be made at the option of Beneficiary, or otherwise), 22 together with interest thereon, to the same extent and with the same priority as if such Future Advances were made on the date of the execution of this Fourth Amendment and without regard as to whether or not there is any advance made at the time of execution hereof and without regard as to whether or not there is any Indebtedness outstanding at the time any advance is made. The Deed of Trust secures all present and future disbursements of the Loans under the Credit Agreement (including all Future Advances), and all other sums from time to time owing to Beneficiary by Trustor under the Loan Documents, plus interest thereon, and any disbursements made by Beneficiary for the payment of taxes, special assessments, insurance and any other protective advances respecting the Mortgaged Property, with interest on such disbursements. To the fullest extent permitted by applicable laws, the Lien of the Deed of Trust, as to all such sums so advanced, shall have priority over all subsequent Liens and encumbrances, including statutory Liens (excepting solely taxes and assessments levied on the Mortgaged Property secured by the Deed of Trust). (f) The last date for payment of the principal balance of the Loans is as set forth in the Credit Agreement, subject to acceleration and extension as provided herein and in the Credit Agreement. (g) The following provisions shall, without limitation, apply respecting Beneficiary's rights and remedies in and to the Mortgaged Property: (1) Foreclosure. Upon the occurrence and during the continuance of an Event of Default, Trustee and its successors are authorized and empowered and it shall be Trustee's and its successors' special duty at the request of Beneficiary to sell the Mortgaged Property or any part thereof situated in the State of Texas at public auction to the highest bidder for cash, with or without having taken possession of same. Any such sale (including notice thereof) shall comply with the applicable requirements, at the time of sale, of Section 51.002 of the Texas Property Code or, if and to the extent such statute is not then in force, with the applicable requirements at the time of sale, of the successor statute or statutes, if any, governing sales of Texas real property under power of sale conferred by deeds of trust. If there is no statute in force at the time of the sale governing sales of Texas real property under power of sale conferred by deeds of trust, such sale shall comply with applicable law, at the time of sale, governing sales of Texas real property under powers of sale conferred by deeds of trust. Any sale made by Trustee hereunder may be as an entirety or in such parcels as Beneficiary may request, and any sale may be adjourned by announcement at the time and place appointed for such sale without further notice except as may be required by applicable laws. Further, any sale made by Trustee hereunder may, in lieu of cash, be upon such other terms and conditions as Beneficiary may from time to time hereafter elect. The sale by Trustee of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Trustee is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold and, if the proceeds of such sale of less than the whole of the Mortgaged Property shall be less than the aggregate of the Indebtedness secured hereby and the expense of executing this trust as provided herein, the Deed of Trust and the Lien hereof shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale had been made; provided, however, that Trustor shall never have any right to require the sale of less than the whole of the Mortgaged Property but Beneficiary shall have the right, at its sole election, to request Trustee to sell less than the whole of the Mortgaged Property. After each sale, Trustee shall make to the purchaser or purchasers at such sale good and sufficient conveyances in the name of the Trustor, conveying the property so sold to the purchaser or purchasers in fee simple with warranty of title, and shall receive the proceeds of said sale or sales and apply the same as herein provided. Payment of the purchase price to Trustee shall satisfy the obligation of purchaser at such sale therefor, and such purchaser shall not be responsible for the application thereof. The power of sale granted herein 23 shall not be exhausted by any sale held hereunder by Trustee or its successors, and such power of sale may be exercised from time to time and as many times as Beneficiary may deem necessary until all of the Mortgaged Property has been sold and all the Indebtedness have been fully and indefeasibly paid. If the Deed of Trust is foreclosed upon, or judgment is entered upon any Indebtedness secured hereby, or if Trustee and/or Beneficiary exercises its power of sale, execution may be made upon, or Trustee and/or Beneficiary may exercise its power of sale against, any one or more of the properties, lots, parcels or Production Sale Contracts, leases and rents, and not upon the others, or upon all of such properties or parcels, either together or separately, and at different times or at the same time, and execution sales or sales by advertisement may likewise be conducted separately or concurrently, in each case at Trustee's and/or Beneficiary's election. In the event any sale hereunder is not completed or is defective in the opinion of Beneficiary, such sale shall not exhaust the power of sale hereunder and Beneficiary shall have the right to cause a subsequent sale or sales to be made hereunder. Any and all statements of fact or other recitals made in any deed or deeds given by Trustee or any successor appointed hereunder as to nonpayment of the Indebtedness secured hereby, or as to the occurrence of any Event of Default, or as to Beneficiary having declared all of such Indebtedness to be due and payable, or as to the request to sell, or as to notice of time, place and terms of sale and of the properties to be sold having been duly given, or as to the refusal, failure or inability to act of Trustee or any successor, or as to the appointment of any substitute or successor trustee, or as to any other act or thing having been duly done by Beneficiary or by such Trustee or its successor, shall be taken as conclusive evidence of the truth of the facts so stated and recited. Trustee and its successors, 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 Trustee, including the posting of notices and the conduct of sale, but in the name and on behalf of Trustee and its successors; (2) Judicial Foreclosure. The Deed of Trust shall be effective as a mortgage as well as a deed of trust and upon the occurrence and during the continuance of an Event of Default may be foreclosed as to any of the Mortgaged Property in any manner permitted by the laws of the State of Texas, and any foreclosure suit may be brought by Trustee or by Beneficiary. In the event a foreclosure hereunder shall be commenced by Trustee or its successor, Beneficiary may at any time before the sale of the Mortgaged Property direct the said Trustee to abandon the sale, and may then institute suit for the collection of the Indebtedness, and for the foreclosure of the Deed of Trust. It is agreed that if Beneficiary should institute a suit for the collection of the Indebtedness and for the foreclosure of the Deed of Trust, Beneficiary may at any time before the entry of a final judgment in said suit dismiss the same, and require Trustee or its successor to sell the Mortgaged Property in accordance with the provisions of the Deed of Trust; (3) Proceeds of Sale. The proceeds of any sale held by Trustee or its successor or any receiver or public officer in foreclosure of the Liens evidenced hereby shall be applied in accordance with the terms of the Deed of Trust and/or the other Loan Documents; (4) Beneficiary as Purchaser. Beneficiary shall have the right to become the purchaser at any sale held by any Trustee or its successor or by any receiver or public officer, and Beneficiary purchasing at any such sale shall have the right to credit upon the amount of the bid made therefor, to the extent necessary to satisfy such bid, the Indebtedness; (5) Partial Foreclosure. In the event of a default in the payment of any part of the Indebtedness beyond any applicable notice and cure period (if any) provided for in the Credit Agreement or the other Loan Documents, Beneficiary shall have the right to 24 proceed with foreclosure of the Liens and security interests evidenced by the Note without declaring the entire Indebtedness due, and in such event any such foreclosure sale may be made subject to the unmatured part of the Indebtedness; and any such sale shall not in any manner affect the unmatured part of the Indebtedness, but as to such unmatured part, the Deed of Trust shall remain in full force and effect just as though no sale had been made. The proceeds of any such sale shall be applied as provided in the Deed of Trust and/or the other Loan Documents except that the amounts thereby paid shall be only for the matured portions of the Indebtedness, and any proceeds of such sale in excess of those provided for in such provisions of the Loan Documents shall be applied to unpaid principal and interest on the Indebtedness. Several sales may be made hereunder without exhausting the right of sale for any unmatured part of the Indebtedness; (6) Uniform Commercial Code. Upon the occurrence and during the continuance of an Event of Default, Beneficiary may, subject to the terms and conditions of the applicable Loan Documents, exercise its rights of enforcement under the UCC with respect to those items or types of personal property covered by the UCC of the State of Texas in which Trustor has granted Beneficiary a security interest pursuant thereto (all of such personal property is herein called the "UCC Property and in conjunction therewith, in addition to or in substitution for the rights and remedies under the UCC of the State of Texas, Beneficiary may and Trustor agrees as follows (i) without demand or notice to Trustor, enter upon the Mortgaged Property to take possession of, assemble, receive, and collect the UCC Property, or any part thereof, or to render it unusable, (ii) Beneficiary may require Trustor to assemble the UCC Property and make it available at a place Beneficiary designates which is mutually convenient to allow Beneficiary to take possession or dispose of the UCC Property, (iii) written notice mailed to Trustor as provided herein at least ten (10) days prior to the date of public sale of the UCC Property or prior to the date after which private sale of the UCC Property will be made shall constitute reasonable notice, (iv) any sale made pursuant to the provisions of this subsection shall be deemed to have been a public sale conducted in a commercially reasonable manner if held contemporaneously with the sale of the other Mortgaged Property under power of sale as provided herein upon giving the same notice with respect to the sale of the UCC Property hereunder as is required for such sale of the other Mortgaged Property under power of sale, and such sale shall be deemed to be pursuant to a security agreement covering both real and personal property under Section 9.604 of the UCC of the State of Texas, (v) in the event of a foreclosure sale, whether made by the Trustee under the terms hereof, or under judgment of a court, the UCC Property and the other Mortgaged Property may, at the option of Beneficiary, be sold as a whole or in separate parts, (vi) it shall not be necessary that Beneficiary take possession of the UCC Property, or any part thereof, prior to the time that any sale pursuant to the provisions of this subsection is conducted, and it shall not be necessary that the UCC Property or any part thereof be present at the location of such sale, (vii) prior to application of proceeds of disposition of the UCC Property to the Indebtedness, such proceeds shall be applied to the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like, and the reasonable attorneys' fees and legal expenses incurred by Beneficiary, (viii) after notification, Beneficiary may sell, lease, or otherwise dispose of the UCC Property, or any part thereof, in one or more parcels at public or private sale or sales, at Beneficiary's offices or elsewhere, for cash, on credit, or for future delivery. Trustor shall be liable for all expenses of retaking, holding, preparing for sale, or the like, and all attorneys' fees, legal expenses, and all other costs and expenses incurred by Beneficiary in connection with the collection of the Indebtedness and the enforcement of Beneficiary's rights under the Loan Documents. Beneficiary shall apply the proceeds of the sale of the UCC Property against the Indebtedness in accordance with the applicable 25 provisions of the Deed of Trust and the other Loan Documents. Trustor shall remain liable for any deficiency if the proceeds of any sale or disposition of the UCC Property are insufficient to pay the Indebtedness in full. Trustor waives all rights of marshaling in respect of the UCC Property, (ix) any and all statements of fact or other recitals made in any bill of sale or assignment or other instrument evidencing any foreclosure sale hereunder, the nonpayment of the Indebtedness, the occurrence of any Event of Default, Beneficiary having declared all or a portion of such Indebtedness to be due and payable, the notice of time, place, and terms of sale and of the properties to be sold having been duly given, or any other act or thing having been duly done by Beneficiary, shall be taken as prima facie evidence of the truth of the facts so stated and recited, (x) Beneficiary may dispose of the UCC Property in its then present condition, has no duty to repair or clean the UCC Property prior to sale and may disclaim warranties of title, possession, quiet enjoyment and the like with respect to the UCC Property, all without affecting the commercial reasonableness of the sale, (xi) Beneficiary 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 Beneficiary, including the sending of notices and the conduct of the sale, but in the name and on behalf of Beneficiary, and (xii) Beneficiary shall have the right at any time to enforce Trustor's rights against account debtors and obligors; (7) Waivers. Provided that any foreclosure or other sale contemplated by the Deed of Trust is conducted in a commercially reasonable manner, then: (i) to the full extent Trustor may do so, Trustor agrees that Trustor will not at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in force pertaining to the rights and remedies (whether of sureties, or otherwise), or providing for any appraisement, valuation, stay, extension or redemption, and Trustor, for Trustor and Trustor's heirs, devisees, representatives, successors and assigns, and for any and all Persons ever claiming any interest in the Mortgaged Property, to the extent permitted by law, hereby waive and release all rights of redemption, valuation, appraisement, stay of execution, notice of intention to mature or declare due the whole of the Indebtedness, notice of intent to accelerate, notice of acceleration, and all rights to a marshaling of the assets of Trustor, including the Mortgaged Property, or to a sale in inverse order of alienation in the event of foreclosure of the Liens and security interests hereby created; (ii) Trustor 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 of Beneficiary under the terms of the Deed of Trust to a sale of the Mortgaged Property for the collection of the Indebtedness without any prior or different resort for collection, or the right of Beneficiary under the terms of the Deed of Trust to the payment of such Indebtedness out of the proceeds of sale of the Mortgaged Property in preference to every other claimant whatever; and (iii) if any law referred to in this paragraph and now in force, of which Trustor or Trustor's heirs, devisees, representatives, successors and assigns and such other Persons claiming any interest in the Mortgaged Property might take advantage despite this paragraph, shall hereafter be repealed and cease to be in force, such law shall not thereafter be deemed to preclude the application of this paragraph; and (8) Delivery of Possession After Foreclosure. In the event there is a foreclosure sale hereunder and at the time of such sale Trustor or Trustor's heirs, devisees, representatives, successors or assigns or any other Persons claiming any interest in the Mortgaged Property by, through or under Trustor are occupying or using the Mortgaged Property, or any part thereof, each and all shall immediately become the tenant of the purchaser at such sale, which tenancy shall be a tenancy from day -to -day, terminable at the will of either landlord or tenant, at a reasonable rental per day based upon the value of -26- 27 the property occupied or used, such rental to be due daily to the purchaser. In the event the tenant fails to surrender possession of said property upon demand, the purchaser shall be entitled to institute and maintain an action for forcible entry and detainer of said property in the Justice of the Peace Court in the Justice Precinct in which such property, or any part thereof, is situated. 6.7. California State Specific Provisions. With respect to the Mortgaged Property now or hereafter located in, or otherwise subject to the laws of, the State of California (and, if applicable, for any other Mortgaged Property located in any other Mortgage State or Deed of Trust State, as applicable): (a) THIS INSTRUMENT IS A FINANCING STATEMENT FILED AS A FIXTURE FILING UNDER §9502 OF UCC OF THE STATE OF CALIFORNIA COVERING ALL GOODS AS PROVIDED IN GRANTING CLAUSES WHICH ARE OR SHALL BECOME FIXTURES RELATED TO SUCH MORTGAGED PROPERTY DESCRIBED IN EXHIBIT A; (b) Revolving Credit Future Advances. The Deed of Trust is given to secure the Indebtedness, as the same may relate to a "revolving credit" loan as authorized under the Credit Agreement, and respecting not only presently existing Indebtedness thereunder but also future Indebtedness that may arise thereunder in connection with future advances that may hereafter be disbursed pursuant to the Credit Agreement (whether such advances are obligatory or to be made at the option of Beneficiary, whether for the payment of taxes, special assessments, or insurance on the Mortgaged Property, or otherwise, with interest on all such disbursements), together with all interest accrued thereon, to the same extent and with the same priority as if such future advances were made on the date of the execution of this Fourth Amendment and without regard as to whether or net there is any advance made at the time of execution of this Fourth Amendment and without regard as to whether or not there is any Indebtedness outstanding at the time any advance is made. The Deed of Trust secures all present and future obligations of Trustor under the Loan Documents in connection with all sums from time to time owing to Beneficiary thereunder, plus interest accrued thereon. To the fullest extent permitted by applicable laws, the Lien of the Deed of Trust, as to all such sums so owing to Beneficiary shall have priority over all subsequent Liens and encumbrances, including statutory Liens (excepting solely taxes and assessments levied on the Mortgaged Property secured by the Deed of Trust). (c) Trustee Provisions. (i) Trustee, by acceptance of the Deed of Trust, covenants to faithfully perform and fulfill the trusts herein created, being liable, however, only for gross negligence or willful misconduct, and hereby waives any statutory fee and agrees to accept reasonable and customary compensation, in lieu thereof, for any services rendered by Trustee in accordance with the terms hereof. Trustee accepts this trust, when this Fourth Amendment, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee; and (ii) Trustee shall be under no duty to take any action hereunder except as expressly required hereunder or by law, or to perform any act which would involve Trustee in any expense or liability or to institute or defend any suit in respect hereof, unless properly indemnified to Trustee's reasonable satisfaction. Beneficiary, or any successor in ownership of any Indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, in the manner prescribed by law. Beneficiary, or any successor in ownership of any Indebtedness secured hereby, may from time to time, remove Trustee and select a successor trustee. In the event of the death, removal, resignation, refusal to act, or inability to act of Trustee, or in its sole discretion for any reason whatsoever, Beneficiary may, without notice and without specifying any reason therefor and without applying to any court, remove Trustee and select and appoint a successor trustee, by an instrument recorded wherever the Deed of Trust is recorded and all powers, rights, duties and authority of Trustee, as aforesaid, shall thereupon become vested in such successor. Such substitute trustee shall not be required to give bond for the faithful performance of the duties of Trustee hereunder unless required by Beneficiary. The procedure provided for in these provisions for substitution of Trustee shall be in addition to and not in exclusion of any other provisions for substitution, by law or otherwise. (d) General State Specific Provisions. (i) Pursuant to the UCC of the State of California, as amended and re- codified from time to time, the Deed of Trust shall be effective from the date of this Fourth Amendment's recording as a financing statement filed as a fixture filing with respect to all goods constituting part of the Mortgaged Property which are or are to become fixtures. The Deed of Trust shall also be effective as a financing statement covering minerals or the like (including oil and gas and other Hydrocarbons) and is to be filed for record in the real estate records of each county where the Mortgaged Property is situated. The mailing address of Trustor and the address of Beneficiary from which information concerning the security interests may be obtained are set forth in this Fourth Amendment. Some or all of the collateral may be or become a fixture in which Beneficiary has a security interest under the Loan Documents, and the purpose of these provisions is to create a fixture filing under the UCC of the State of California, as amended or re- codified from time to time. The rights, remedies and interests of Beneficiary under the Deed of Trust and the provisions under the other Loan Documents are independent and cumulative, and there shall be no merger of any security interest created by the Credit Agreement or other Loan Documents with any Lien created under the other provisions of the Deed of Trust. Beneficiary may elect to exercise or enforce any of its rights, remedies, or interests set forth under any of the Loan Documents (including, without limitation, the Credit Agreement and the Deed of Trust) as Beneficiary may from time to time deem appropriate; (ii) Trustor and Beneficiary agree that (1) this provision shall constitute Beneficiary's written request for information (and Trustor's response) concerning the environmental condition of the real property security as required by California Code of Civil Procedure Section 726.5, and (2) each representation and warranty and covenant in the Credit Agreement or the Deed of Trust (together with any indemnity applicable to a breach of any such representation and warranty) with respect to the environmental condition of the Mortgaged Property is intended by Beneficiary and Trustor to be an "environmental provision" for purposes of California Code of Civil Procedure Section 736; (iii) TRUSTOR HEREIN NAMED REQUESTS THAT A COPY OF ANY NOTICE OF DEFAULT AND ANY NOTICE OF SALE BE MAILED TO TRUSTOR'S ADDRESS AS SET FORTH IN THIS FOURTH AMENDMENT; (iv) At any time or from time to time, without liability therefor and without notice, upon written request of Trustor and Beneficiary (or solely upon the request of Beneficiary after an Event of Default) and payment of a reasonable and customary fee, if any, and presentation of the Deed of Trust, without affecting the liability of any Person for the payment of the Indebtedness, Trustee may (1) consent to the making of any map or plat of the Mortgaged Property, (2) join in granting any easement or creating any restriction thereon, (3) join in any subordination or other agreement affecting the Deed of Trust or the Lien or charge thereof, and (4) at any time, or from time to time, without liability therefor and without notice, upon written request from Beneficiary (without any request from Trustor), and payment of a reasonable and customary fee, if any, and presentation of the Deed of Trust, without affecting the liability of any Person for the payment of the Indebtedness, Trustee may re- convey, without warranty, all or any part of the Mortgaged Property; (v) No delay or omission of Trustee or Beneficiary to exercise any right, power or remedy accruing upon any Event of Default shall exhaust or impair any such right, power or remedy, or waive the provisions hereof, or be construed to waive any such Event of Default or to constitute acquiescence therein. Every right, power and remedy given to Trustee or Beneficiary may be exercised from time to time and as often as may be deemed expedient by Beneficiary; (vi) Trustor agrees that, upon request of Beneficiary from time to time, it will execute, acknowledge and deliver all such additional instruments and further assurances of title and will do or cause to be done all such further acts and things as may reasonably be necessary to fully effectuate the intent of the Deed of Trust; and (vii) Trustor shall pay all reasonable and customary costs, fees and expenses incurred by Trustee and Trustee's agents and counsel in connection with the performance by Trustee of Trustee's duties hereunder and all such costs, fees and expenses shall be secured by the Deed of Trust as additional Indebtedness. (e) Power of Sale Provisions. (i) Upon the occurrence and during the continuance of an Event of Default, Trustee, or the agent or successor of Trustee, at the request of Beneficiary, shall sell or offer for sale the Mortgaged Property in such portions, order and parcels as Beneficiary may determine with or without having first taken possession of same, to the highest bidder for cash at one or more public auctions 28 in accordance with the terms and provisions of applicable laws. Such sale shall be made at the area within the courthouse of the county in which the Mortgaged Property (or any portion thereof to be sold) is situated (whether the parts or parcels thereof, if any, in different counties are contiguous or not, and without the necessity of having any personal property hereby secured present at such sale) which is designated by the applicable court of such county as the area in which public sales are to take place, or, if no such area is designated, at the area at the courthouse designated in the notice of sale as the area in which the sale will take place, on such day and at such times as permitted under applicable laws, after advertising the time, place and terms of sale of that portion of the Mortgaged Property in accordance with such laws, and after having served written or printed notice of the proposed sale by certified mail on Trustor according to the records of Beneficiary in accordance with applicable laws. The affidavit of any Person having knowledge of the facts to the effect that such service was completed shall be prima facie evidence of the fact of service; (ii) At any such public sale, Trustee may execute and deliver in the name of Trustor to the purchaser a conveyance of the Mortgaged Property or any part of the Mortgaged Property in fee simple. In the event of any sale under the Deed of Trust by virtue of the exercise of the powers herein granted, or pursuant to any order in any judicial proceeding or otherwise, the Mortgaged Property may be sold in its entirety or in separate parcels and in such manner or order as Beneficiary in its sole discretion may elect, and if Beneficiary so elects, Trustee may sell the personal property covered by the Deed of Trust at one or more separate sales in any manner permitted by applicable laws, and one or more exercises of the powers herein granted shall not extinguish or exhaust such powers, until all the Mortgaged Property is sold or the Indebtedness is indefeasibly paid and satisfied in full. If the Indebtedness is now or hereafter further secured by any chattel mortgages, pledges, contracts or guaranty, assignments of lease, or other deed of trusts, Beneficiary at its option may exhaust the remedies granted under any of said instruments either concurrently or independently, and in such order as Beneficiary may determine; (iii) Upon any foreclosure sale or sales of all or any portion of the Mortgaged Property under the power herein granted, Beneficiary may bid for and purchase the Mortgaged Property and shall be entitled to apply all or any part of the Indebtedness as a credit to the purchase price; (iv) In the event of a foreclosure or a sale of all or any portion of the Mortgaged Property under the power herein granted, the proceeds of said sale shall be applied, in whatever order Beneficiary in its sole discretion may decide, to the expenses of such sale and of all proceedings in connection therewith (including, without limitation, attorneys' fees and expenses), to fees and expenses of Trustee (including, without limitation, Trustee's attorneys' fees and expenses), to insurance premiums, liens, assessments, taxes and charges (including, without limitation, utility charges advanced by Beneficiary), to payment of the outstanding principal balance of the Indebtedness, and to the accrued interest on all of the foregoing; and the remainder, if any, shall be paid to Trustor, or to the Person lawfully entitled thereto; and (v) Trustee agrees that upon written request of Beneficiary stating that all Indebtedness secured hereby have been paid or satisfied, or that the Deed of Trust is otherwise to be re- conveyed, or partially re- conveyed, in accordance with the terms of the Loan Documents, and upon surrender of the Deed of Trust or a copy hereof and the Note or other documents evidencing the Indebtedness to Trustee for cancellation (if appropriate) and retention, and upon payment of the fees, Trustee shall re- convey, without warranty, the Mortgaged Property (or the appropriate portion thereof) then held hereunder. The grantee in any re- conveyance may be described as the "Person or Persons legally entitled thereto," and the recitals therein of any matters or facts shall be conclusive proof of the truthfulness thereof. Trustor agrees to pay a reasonable and customary Trustee's fee for full or partial re- conveyance, together with a reasonable recording fee for said re- conveyance. Five (5) years after issuance of such full re- conveyance, Trustee may destroy the Deed of Trust and any documents retained by Trustee (unless directed in such request to retain them). (f) Remedies Generally. Beneficiary or Trustee may take such action, without notice or demand, as it deems advisable to protect and enforce its rights against Trustor and in and to the Mortgaged Property by Beneficiary itself or through Trustee or otherwise, including, without limitation, the following actions, each of which may be pursued concurrently or otherwise, at such time and in such order as Beneficiary may determine, in its sole discretion, without impairing or otherwise affecting the other rights and remedies of Beneficiary: (i) declare the entire Indebtedness to be immediately due and payable; (ii) institute a proceeding or proceedings, judicial or non judicial, by advertisement or otherwise, for the complete 29 foreclosure of the Deed of Trust in which case the Mortgaged Property or any interest therein may be sold for cash or upon credit in one or more parcels or in several interests or portions and in any order or manner; (iii) with or without entry, to the extent permitted and pursuant to the procedures provided by applicable laws, institute proceedings for the partial foreclosure of the Deed of Trust for the portion of the Indebtedness then due and payable, subject to the continuing Lien of the Deed of Trust for the balance of the Indebtedness not then due; (iv) sell for cash or upon credit the Mortgaged Property or any part thereof and all estate, claim, demand, right, title and interest of Trustor therein and rights of redemption thereof, pursuant to the power of sale contained herein or otherwise, at one or more sales, as an entirety or in parcels, at such time and place, upon such terms and after such notice thereof as may be required or permitted by law; (v) institute an action, suit or proceeding in equity for the specific performance of any covenant, condition or agreement contained herein, or in any of the other Loan Documents; (vi) recover judgment on the Loans either before, during or after any proceedings for the enforcement of the Deed of Trust; (vii) apply for the appointment of a trustee, receiver, liquidator or conservator of the Mortgaged Property, without notice and without regard for the adequacy of the security for the Indebtedness and without regard for the solvency of Trustor or of any other Person liable for the payment of the Indebtedness; (viii) enforce Beneficiary's interest in the Production Sale Contracts, leases and rents and enter into or upon the Mortgaged Property, either personally or by its agents, nominees or attorneys and dispossess Trustor and its agents and servants therefrom, and thereupon Beneficiary may (A) use, operate, manage, control, insure, maintain, repair, restore and otherwise deal with all and every part of the Mortgaged Property and conduct the business thereat, (B) complete any construction on the Mortgaged Property in such manner and form as Beneficiary deems advisable, (C) make alterations, additions, renewals, replacements and improvements to or on the Mortgaged Property, (D) exercise all rights and powers of Trustor with respect to the Mortgaged Property, whether in the name of Trustor or otherwise, including, without limitation, the right to make, cancel, enforce or modify Production Sale Contracts and leases, obtain and evict tenants, and demand, sue for, collect and receive all rents and proceeds, and (R) apply the receipts from the Mortgaged Property to the payment of Indebtedness, after deducting therefrom all expenses (including reasonable attorneys' fees and disbursements) incurred in connection with the aforesaid operations and all amounts necessary to pay the taxes, assessments insurance and other charges in connection with the Mortgaged Property, as well as just and reasonable compensation for the services of Beneficiary and Trustee, and their respective counsel, agents and employees; (ix) if Beneficiary or Trustee have not commenced foreclosure proceedings, until such time as foreclosure is commenced, require Trustor to pay monthly in advance to Beneficiary, or any receiver appointed to collect the rents and proceeds, the fair and reasonable value for the use and occupation of any portion of the Mortgaged Property occupied and/or used by Trustor or any other Person and require Trustor or any other Person to vacate and surrender possession to Beneficiary of the Mortgaged Property or to such receiver and, in default thereof, evict Trustor or any other Person by summary proceedings or otherwise; (x) pursue such other rights and remedies as may be available at law or in equity or under the UCC of the State of California, including without limitation, the right to receive and/or establish a lock box for all rents, proceeds, and any other receivables or rights to payments of Trustor relating to the Mortgaged Property; (xi) in the event of a sale, by foreclosure or otherwise, of less than all of the Mortgaged Property, the Deed of Trust shall continue as a Lien on the remaining portion of the Mortgaged Property; (xii) Beneficiary may exercise its rights of enforcement and remedies available to it pursuant to the UCC of the State of California; (xiii) if the Mortgaged Property or any portion thereof or any interest therein becomes property of any bankruptcy estate or subject to any state or federal insolvency proceeding, or in the event of the filing of any voluntary or involuntary petition under any applicable federal, state or other bankruptcy, insolvency or similar debtor relief laws (as amended from time to time), and all rules and regulations promulgated thereunder (collectively, the "Debtor Relief Laws by or against Trustor, then Beneficiary shall immediately become entitled, in addition to all other relief to which Beneficiary may be entitled under the Deed of Trust, the other Loan Documents, at law or in equity, to obtain (A) an order from any bankruptcy court or other appropriate court granting immediate relief from the automatic stay of the Debtor Relief Laws so as to permit Beneficiary to pursue its rights and remedies against Trustor as provided under the Deed of Trust, the other Loan Documents and all other rights and remedies of Beneficiary at law and in equity under any applicable law, and (B) an order from the bankruptcy court prohibiting Trustor's use of all "cash collateral" 30 as defined under any Debtor Relief Laws. Moreover, Trustor shall not (X) assert or request any other Person to assert, that the automatic stay under any Debtor Relief Laws operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Beneficiary to enforce any rights it has by virtue of the Deed of Trust, or any other rights that Beneficiary has, whether now or hereafter acquired, against any guarantor of the Indebtedness, (Y) seek a supplemental stay or any other relief, whether injunctive or otherwise, pursuant to any Debtor Relief Laws to stay, interdict, condition, reduce or inhibit the ability of Beneficiary to enforce any rights it has by virtue of the Deed of Trust against any guarantor of the Indebtedness. Any bankruptcy petition or other action taken by Trustor to stay, condition, or inhibit Beneficiary from exercising its remedies are hereby admitted by Trustor to be in bad faith and Trustor further admits that Beneficiary would have just cause for relief from the automatic stay in order to take such actions authorized under any Debtor Relief Laws. Trustor covenants to give prompt written notice to Beneficiary of the insolvency or bankruptcy filing (whether voluntary or involuntary) of Trustor, or the death, insolvency or bankruptcy filing (whether voluntary or involuntary) of Trustor; (xiv) the proceeds of any sale made under or by virtue of the Deed of Trust, together with any other sums which then may be held by Beneficiary under the Deed of Trust, shall be applied by Beneficiary to the payment of the Indebtedness in such priority and proportion as Beneficiary in its sole discretion shall deem proper; (xv) Beneficiary may adjourn from time to time any sale by it to be made under or by virtue of the Deed of Trust by announcement at the time and place appointed for such sale or for such adjourned sale or sales, and, except as otherwise provided by any applicable provision of law, Beneficiary or Trustee, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned; (xvi) upon the completion of any sale or sales pursuant hereto, Beneficiary, Trustee, or an officer of any court empowered to do so, shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold. To effectuate any sale or sales pursuant hereto, Beneficiary and Trustee are hereby irrevocably appointed the true and lawful attorney of Trustor, in its name and stead, to make all necessary conveyances, assignments, transfers and deliveries of the Mortgaged Property and rights so sold and for that purpose Beneficiary and Trustee may execute all necessary instruments of conveyance, assignment and transfer, and may substitute one or more Persons with like power, Trustor hereby ratifying and confirming all that its said attorney or such substitute or substitutes shall lawfully do by virtue hereof. Any sale or sales made under or by virtue of the Deed of Trust, whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of Trustor in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against Trustor and against any and all Persons claiming or who may claim the same, or any part thereof from, through or under Trustor; (xvii) upon any sale made under or by virtue of the Deed of Trust, whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, Beneficiary may bid for and acquire the Mortgaged Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting, in whole or in part, against the Indebtedness the net sale price (subject to the limitations of Section 580(a) of the California Code of Civil Procedure, if applicable, and any other applicable laws) after deducting therefrom the expenses of the sale and costs of the action and any other sums which Beneficiary is authorized to deduct under the Deed of Trust; (xviii) no recovery of any judgment by Beneficiary and no levy of an execution under any judgment upon the Mortgaged Property or upon any other property of Trustor shall affect in any manner or to any extent the Lien of the Deed of Trust upon the Mortgaged Property or any part thereof, or any Liens, rights, powers or remedies of Beneficiary hereunder, but such Liens, rights, powers and remedies of Beneficiary shall continue unimpaired as before; (xix) Beneficiary may terminate or rescind any proceeding or other action brought in connection with its exercise of the remedies provided in the Deed of Trust at any time before the conclusion thereof, as determined in Beneficiary's sole discretion and without prejudice to Beneficiary; (xx) Beneficiary may resort to any remedies and the security given by the Deed of Trust or the Loan Documents in whole or in part, and in such portions and in such order as determined by Beneficiary's sole discretion. No such action shall in any way be considered a waiver of any rights, benefits or remedies evidenced or provided by the Deed of Trust or any of the other Loan Documents. The failure of -31- Beneficiary or Trustee to exercise any right, remedy or option provided in the Deed of Trust or any of the other Loan Documents shall not be deemed a waiver of such right, remedy or option or of any covenant or obligation secured the Deed of Trust or the other Loan Documents. No acceptance by Beneficiary of any payment after the occurrence of any Event of Default and no payment by Beneficiary of any obligation for which Trustor is liable hereunder shall be deemed to waive or cure any Event of Default with respect to Trustor, or Trustor's liability to pay such obligation. No sale of all or any portion of the Mortgaged Property, no forbearance on the part of Beneficiary or Trustee, and no extension of time for the payment of the whole or any portion of the Indebtedness or any other indulgence given by Beneficiary or Trustee to Trustor, shall operate to release or in any manner affect the interest of Beneficiary in the remaining Mortgaged Property or the liability of Trustor to pay the Indebtedness. No waiver by Beneficiary or Trustee shall be effective unless it is in writing and then only to the extent specifically stated. All costs and expenses of Beneficiary and Trustee in exercising the rights and remedies under the Deed of Trust (including reasonable attorneys' fees and disbursements to the extent permitted by law), shall be paid by Trustor immediately upon notice from Beneficiary or Trustee, with interest accruing on such costs and expenses at the applicable interest rate provided for under the Credit Agreement during the occurrence and continuance of an Event of Default, for the period after notice from Beneficiary or Trustee, and such costs and expenses shall constitute a portion of the Indebtedness and shall be secured by the Deed of Trust; (xxi) the interests and rights of Beneficiary under the Deed of Trust or in any of the other Loan Documents shall not be impaired by any indulgence, including (A) any renewal, extension or modification which Beneficiary may grant with respect to any of the Indebtedness, (B) any surrender, compromise, release, renewal, extension, exchange or substitution which Beneficiary may grant with respect to the Mortgaged Property or any portion thereof, or (C) any release or indulgence granted to any maker, endorser, guarantor or surety of any of the Indebtedness; and (xxii) upon the occurrence and during the continuance of any Event of Default, Beneficiary shall not be obligated to render any performance to Trustor under the Loan Documents. (g) Waiver Provisions. Trustor, in the broadest and most comprehensive sense permitted by applicable laws, hereby waives any and all claims, rights, or defenses that may be asserted, whether by a guarantor or surety or otherwise, against Beneficiary, including, without limitation the foregoing: (i) Trustor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of receivership or bankruptcy of any Person, protest or notice with respect to any of the obligations of any Person, setoffs and counterclaims and all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance, and all other demands whatsoever (and shall not require that the same be made on any other Person as a condition precedent to the obligations of Trustor), and covenants that the Loan Documents will not be discharged, except by complete payment and performance of the obligations evidenced and secured thereby, except only as limited by the express contractual provisions of the Loan Documents. Trustor further waives all notices that the principal amount, or any portion thereof, and/or any interest on any instrument or document evidencing all or any part of the obligations of any Person to Beneficiary is due, notices of any and all proceedings to collect from any Person (including any endorser or guarantor of all or any part of their obligations), and notices of exchange, sale, surrender or other handling of any security or collateral given to Beneficiary to secure payment of all or any part of the obligations of Trustor; (ii) except to the extent expressly provided otherwise in the Credit Agreement, Trustor hereby agrees that all of its obligations under the Deed of Trust shall remain in full force and effect, without defense, offset or counterclaim of any kind, notwithstanding that any right of Trustor against any other Person or defense of Trustor against Beneficiary may be iimpaired, destroyed, or otherwise affected by reason of any action or inaction on the part of Beneficiary. Trustor waives all rights and defenses arising out of an election of remedies by Beneficiary, even though that election of remedies, may have destroyed Trustor's rights of subrogation and reimbursement against any other Person; (iii) Beneficiary is hereby authorized, without notice or demand, from time to time, (A) to renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, all or any part of the obligations of Trustor (subject to any limitations on such changes pursuant to the other Loan Documents), (B) to accept partial payments on all or any part of the obligations of Trustor, (C) to take and hold security or collateral for the payment of all or any part of the obligations of -32- Trustor, (D) to exchange, enforce, waive and release any such security or collateral for such obligations, (E) to apply such security or collateral and direct the order or manner of sale thereof as in its discretion it may determine, and (F) to settle, release, exchange, enforce, waive, compromise or collect or otherwise liquidate all or any part of such obligations and any security or collateral for such obligations. Any of the foregoing may be done in any manner, and Trustor agrees that the same shall not affect or impair the Indebtedness of Trustor under the Deed of Trust or other Loan Documents; (iv) Trustor hereby assumes responsibility for keeping itself informed of the financial condition of any and all endorsers and/or other guarantors of all or any part of the Indebtedness, if any, and of all other circumstances bearing upon the risk of nonpayment of such Indebtedness, and Trustor hereby agrees that Beneficiary shall have no duty to advise Trustor of information known to it regarding such condition or any such circumstances; (v) Trustor agrees that neither Beneficiary nor any Person acting for or on behalf of Beneficiary shall be under any obligation to marshal any assets in favor of Trustor or against or in payment of any or all of the Indebtedness secured hereby. Trustor further agrees that, to the extent that any guarantor of all or any part of the Indebtedness makes a payment or payments to Beneficiary, or Beneficiary receives any proceeds of collateral for any of the Indebtedness, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid or refunded, then, to the extent of such payment or repayment, the part of such Indebtedness which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the time immediately preceding such initial payment, reduction or satisfaction; (vi) Trustor (A) shall have no right of subrogation with respect to the Indebtedness, (B) waives any right to enforce any remedy that Beneficiary now has or may hereafter have against any Person, and (C) waives any benefit of and any right to participate in, any security or collateral given to Beneficiary to secure the payment or performance of all or any part of such Indebtedness; (vii) Trustor agrees that any and all claims that it may have against any other Person, or against any of their respective properties, shall be subordinate and subject in right of payment to the prior indefeasible payment in full of all Indebtedness secured hereby. Notwithstanding any right of Trustor to ask, demand, sue for, take or receive any payment from any other Person, all rights, liens and security interests of Trustor, whether now or hereafter arising and howsoever existing, in any assets of any of any other Person shall be and hereby are subordinated to the rights of Beneficiary in those assets; and (viii) Trustor waives all rights and defenses that Trustor may have because the Indebtedness is secured by real property. This means, among other things (A) Beneficiary may collect from the real or personal property of Trustor before collecting against any other Person (including, without first foreclosing on any real or personal property collateral pledged by any other Person), (B) if Beneficiary forecloses on any real property collateral pledged by Trustor, then the amount of the Indebtedness may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (C) the waivers set forth in these provisions are an unconditional and irrevocable waiver of any rights and defenses that Trustor may have because the Indebtedness is secured by real property, including, but not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure. Trustor waives all rights and defenses arising out of an election of remedies by Beneficiary, even though that election of remedies, such as a non -judicial foreclosure with respect to real property collateral provided by Trustor for the Indebtedness, has destroyed Trustor's rights of subrogation and reimbursement against any other Person, whether by the operation of Section 580d of the California Code of Civil Procedure or otherwise. Trustor further waives all rights of subrogation, reimbursement, indemnification and contribution and any other rights and defenses that are or may become available to Trustor by reason of Sections 2787 to 2855 inclusive, of the California Civil Code and agrees that Trustor will not assert any of the foregoing defenses in any action or proceeding which Beneficiary may commence to enforce the Deed of Trust or any other Loan Documents. Trustor acknowledges and agrees that Trustor intends the foregoing to be express waivers of each and every one of said rights and/or defenses as contemplated under California Civil Code Section 2856. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNED AND NOTARIZED COUNTERPARTS FOLLOW ON NEXT PAGES.] 33 IN WITNESS WHEREOF, this Fourth Amendment is executed and delivered effective as of the day and year first above written. TRUSTOR HEREBY DECLARES AND ACKNOWLEDGES THAT IT HAS RECEIVED, WITHOUT CHARGE, A TRUE COPY OF THIS INSTRUMENT. WITNESSES: r'�, ByN l 4 ,/j Printed Name: Ar thcZ Goats My Commission Number: My Commission Expires: /e as 4? [SEAL] TRUSTOR AND DEBTOR: MERRION OIL GAS CORPORATION, a New Mexico corpor. tion By r STATE OF 14,Et,3 iVtzyu C.o ss. `1 COUNTY OF �Ftt■S N RN The foregoing instrument was acknowledged before me this ay of December, 2013, by T. Greg Merrion, as President of Merrion Oil Gas Corporation, a New Mexico corporation. 34 T. Greg Merrion, President Wztko Notary Public WITNESSES: By: c2Ovrrw Printed Name: 7 n r ,y FPac By: :'I. Printed Name: Kate e r B STATE OF OKLAHOMA) COUNTY OF TULSA My Commission Number: My Commission Expires: [SEAL] ss. TRUSTEE: ,xuQ -g-e� m Schloeder, Successor Trustee The foregoing instrument was acknowledged before me this_ ay of December, 2013, by Pam Schloeder, as SuccessorTrustee. �fC? i Notary Public State of Oklahoma LINDA L. GALLMAN TULSA COUNTY COMMISSION '12003504 Comm. Ex 04.11 -2016 35 Notary Public WITNESSES: By: By: ol� Printed Name: o� it Printed ame: K i STATE OF OKLAHOMA) COUNTY OF TULSA My Commission Number: My Commission Expires: v r 7errie I4 ss. Notary Public 8t#t0 of Oklahoma LINDA L. GALLMAN TULSA COUNTY COMMISSION 212003504 Comm. Ex.. 04.11 -2016 BENEFICIARY AND SECURED PARTY: BOKF, NA, dba Bank of Oklahoma By: 36 aniel aub, Vice President The foregoing instrument was acknowledged before me this ay of December, 2013, by Daniel Weintraub, as Vice President of BOKF, NA, dba Bank of Oklahoma. Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment dated June 30, 1999, naming Merrion Oil Gas Corporation, as Trustor and Debtor: Recording Office San Miguel County, Colorado Instrument #330434 Eddy County, New Mexico 366 165 UCC #990417 Rio Arriba County, New Mexico 258 294 San Juan County, New Mexico 1292 161 Converse County, Wyoming 1153 255 Johnson County, Wyoming 279 599 First Amendment to Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment Dated June 30, 2003, Naming Men Oil Gas Corporation, as Trustor and Debtor: Recording Office San Miguel County, Colorado Eddy County, New Mexico Rio Arriba County, New Mexico San Juan County, New Mexico Converse County, Wyoming Johnson County, Wyoming Recording Office San Miguel County, Colorado Eddy County, New Mexico Rio Arriba County, New Mexico San Juan County, New Mexico Converse County, Wyoming Johnson County, Wyoming SCHEDULE 1 Book Page SCHEDULE II Book Page Instrument #358959 514 812 459 1368 1226 297 SCHEDULE 111 1 182 980 734 108 Recording Date November 8, 1999 November 12, 1999 November 8, 1999 November 15, 1999 November 8, 1999 November 5, 1999 Recording Date July 28, 2003 July 25, 2003 August 20, 2003 July 25, 2003 August 12, 2003 August 7, 2003 Second Amendment to Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment dated June 30, 2004, naming Men -ion Oil Gas Corporation, as Trustor and Debtor: Book Page Recording Date N/A 370952 December 9, 2004 576 0953 N/A December 10, 2004 N/A 200500174 January 10, 2005 1400 556 200421716 December 9, 2004 1254 0503 908175 December 8, 2004 302 343 033462 December 8, 2004 Recording Office SCHEDULE IV Third Amendment to Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment dated November 30, 2009, naming Merr ion Oil Gas Corporation, as Trustor and Debtor: Book Page Instrument No. Recordina Date San Miguel County, Colorado n/a 410860 January 25, 2010 Eddy County, New Mexico 801 0001 1000017 January 4, 2010 Rio Arriba County, New Mexico 532 8078 200908078 December 30, 2009 San Juan County, New Mexico 1504 7 201000007 January 4, 2010 Converse County, Wyoming 1381 152 968151 December 31, 2009 Johnson County, Wyoming 327 1 519 096521 December 31, 2009 LANDS: WELL: EXHIIBIT A Oil Gas Properties Located in Lincoln County, Wyoming ALL RIGHT, TITLE AND INTEREST owned by Merrion Oil Gas Corporation in the oil and gas properties located in the lands listed below including any and all oil and gas leases in force and effect covering these lands, as well as all ownership interests in the well(s) listed below and all on -site operating equipment associated directly with the listed well(s). Township 23 North, Range 112 West Section 13: W2 Lincoln County, WY Well Name: Farson Road Unit 2 Legal Description: Township 23 North, Range 112 West Section 13 Well Location: SENW Producing Formation(s): Frontier Spacing Unit: 400 acres Primary Lease: W- 115953 (Federal)