MORTGAGE, ASSIGNMENT OF LEASES, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT FROM ENERGY CORPORATION OF AMERICA, as MORTGAGOR TO THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE OF ECA MARCELLUS TRUST I, as MORTGAGEE Dated as...
Exhibit 10.11
Execution Version
WHEN RECORDED OR FILED, |
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PLEASE RETURN TO: |
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Xxxxxx & Xxxxxx L.L.P. |
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0000 Xxxxxx Xxxxxx, Xxxxx 0000 |
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Xxxxxxx, Xxxxx 00000 |
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Attention: Xxxxx Xxxxxxxxx |
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| Space above for County Recorder’s Use |
MORTGAGE, ASSIGNMENT OF LEASES,
SECURITY AGREEMENT, FIXTURE FILING
AND FINANCING STATEMENT
SECURITY AGREEMENT, FIXTURE FILING
AND FINANCING STATEMENT
FROM
ENERGY CORPORATION OF AMERICA,
as MORTGAGOR
TO
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
AS TRUSTEE OF ECA MARCELLUS TRUST I,
as MORTGAGEE
Dated as of July 7, 2010
A CARBON, PHOTOGRAPHIC, FACSIMILE, OR OTHER REPRODUCTION OF THIS
INSTRUMENT IS SUFFICIENT AS A FINANCING STATEMENT.
INSTRUMENT IS SUFFICIENT AS A FINANCING STATEMENT.
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS.
THIS INSTRUMENT SECURES PAYMENT OF FUTURE ADVANCES PURSUANT TO 42 PA.C.S. § 8144.
THIS INSTRUMENT COVERS PRODUCTS AND PROCEEDS OF THE MORTGAGED PROPERTIES.
THIS INSTRUMENT COVERS MINERALS AND OTHER SUBSTANCES OF VALUE WHICH MAY BE EXTRACTED FROM THE EARTH
(INCLUDING WITHOUT LIMITATION OIL AND GAS) AND THE ACCOUNTS RELATED THERETO, WHICH WILL BE FINANCED
AT THE WELLHEADS OF THE WELL OR XXXXX LOCATED ON THE MORTGAGED PROPERTIES DESCRIBED HEREIN. THIS
FINANCING STATEMENT IS TO BE FILED OR FILED FOR RECORD, AMONG OTHER PLACES, IN THE REAL ESTATE
RECORDS OR SIMILAR RECORDS OF THE RECORDERS OF THE COUNTIES LISTED ON THE EXHIBITS HERETO. THE
MORTGAGOR HAS AN INTEREST OF RECORD IN THE REAL ESTATE AND IMMOVABLE PROPERTY CONCERNED, WHICH
INTEREST IS DESCRIBED IN THE EXHIBITS ATTACHED HERETO.
PORTIONS OF THE MORTGAGED PROPERTIES ARE GOODS WHICH ARE OR ARE TO BECOME AFFIXED TO OR FIXTURES ON
THE LAND DESCRIBED IN OR REFERRED TO IN THE EXHIBITS HERETO. THIS FINANCING STATEMENT IS TO BE
FILED FOR RECORD OR RECORDED, AMONG OTHER PLACES, IN THE REAL ESTATE RECORDS OR SIMILAR RECORDS OF
EACH COUNTY IN WHICH SAID LAND OR ANY PORTION THEREOF IS LOCATED. THE MORTGAGOR IS THE OWNER OF
RECORD INTEREST IN THE REAL ESTATE CONCERNED. THIS INSTRUMENT IS ALSO TO BE INDEXED IN THE INDEX
OF FINANCING STATEMENTS OR THE UCC RECORDS.
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MORTGAGE, ASSIGNMENT OF LEASES,
SECURITY AGREEMENT, FIXTURE FILING
AND FINANCING STATEMENT
SECURITY AGREEMENT, FIXTURE FILING
AND FINANCING STATEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING
STATEMENT (this “Mortgage”) is entered into as of July 7, 2010 by Energy Corporation of America, a
West Virginia corporation (herein called “Mortgagor”), whose address for notice is 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000, and The Bank of New York Mellon Trust Company, N.A.,
acting not in its individual capacity but solely as trustee of ECA Marcellus Trust I, a Delaware
statutory trust (the “Trust”), as mortgagee (“Mortgagee”) whose address for notice is x/x Xxx Xxxx
xx Xxx Xxxx Xxxxxx Trust Company, N.A., 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx 00000.
R E C I T A L S:
A. By means of (1) a Term Overriding Royalty Interest Conveyance (PUD) dated as of July 7,
2010 (the “Term Conveyance (PUD)”) from Mortgagor to Eastern Marketing Corporation, a true and
correct copy of which is annexed hereto as Annex A-1 and made a part hereof, (2) a Term Overriding
Royalty Interest Conveyance (PDP) dated as of July 7, 2010 (the “Term Conveyance (PDP)” and
together with Term Conveyance (PUD) collectively the “Term Conveyances”) from Mortgagor to Eastern
Marketing Corporation, a true and correct copy of which is annexed hereto as Annex A-2 and made a
part hereof, (3) a Perpetual Overriding Royalty Interest Conveyance (PUD) dated as of July 7, 2010
(the “Perpetual Conveyance (PUD)”) from Mortgagor to Mortgagee, a true and correct copy of which is
annexed hereto as Annex A-3 and made a part hereof, and (4) a Perpetual Overriding Royalty Interest
Conveyance (PDP) dated as of July 7, 2010 (the “Perpetual Conveyance (PDP)” and together with the
Perpetual Conveyance (PUD) collectively the “Perpetual Conveyances”) from Mortgagor to Mortgagee, a
true and correct copy of which is annexed hereto as Annex A-4 and made a part hereof, Mortgagor has
conveyed and assigned to Mortgagee or Eastern Marketing Corporation, as applicable, the “Royalty
Interest”, as defined therein and herein so called. Each of the Term Conveyances and the Perpetual
Conveyances are hereinafter referred to each individually a “Conveyance,” and collectively
“Conveyances.” Reference is made to the Conveyances for the meaning of capitalized terms that are
defined therein (and not otherwise defined herein), which terms shall have the same meanings when
used herein.
B. Eastern Marketing Corporation has assigned the Term Conveyances and all rights
thereunder to the Mortgagee, and consequently the Mortgagee holds all of the Royalty Interest
described above.
C. Mortgagor is executing and delivering this Mortgage in order to provide protection to
the Trust, in the event of a bankruptcy of Mortgagor, against the risk that the Royalty Interests
created by the Conveyances to Mortgagee or Eastern Marketing Corporation, as applicable, were not
considered a real property interest.
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D. Each Royalty Interest is carved out of the applicable Subject Interests. Mortgagor’s
interests in each of the Subject Interests (including Mortgagor’s reversionary interests therein),
after giving effect to the Conveyances, are herein called the “Retained Interests.”
E. The Mortgaged Properties (as hereinafter defined) include (but are not limited to)
interests in the Subject Lands described on Exhibit A to each of the Conveyances attached hereto
and conveyed to Mortgagee or Eastern Marketing Corporation, as applicable, which Exhibits A are
incorporated herein by reference for all purposes. This Mortgage is to be recorded in Xxxxxx
County, Pennsylvania.
F. Mortgagee has conditioned its execution and delivery of the Conveyances upon the execution
and delivery by Mortgagor of this Mortgage, and Mortgagor has agreed to enter into this Mortgage.
NOW, THEREFORE, in order to comply with the terms and conditions of the Conveyances and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Mortgagor hereby agrees with Mortgagee as follows:
ARTICLE I.
Granting Clauses; Secured Obligations
Section 1.1 Grant and Mortgage. Mortgagor, in order to secure the payment and
performance of the secured obligations hereinafter referred to and the performance of the
obligations, covenants, agreements, warranties and undertakings of Mortgagor hereinafter described,
does hereby GRANT, BARGAIN, SELL, ALIEN, CONVEY, TRANSFER, MORTGAGE, ASSIGN, WARRANT, PLEDGE,
HYPOTHECATE and CONFIRM to Mortgagee, its successors and assigns, for the benefit of Mortgagee,
with mortgage covenants, and upon the statutory mortgage condition for the breach of which this
Mortgage may be subject to foreclosure as provided by applicable law, all of the following
described rights, interests and properties, to the extent applicable and subject to the
Conveyances, which are located in Xxxxxx County, Pennsylvania (the “Mortgaged Properties”):
(a) All of Mortgagor’s right, title, interest and estate, if any, in and to the Subject
Interests conveyed to Mortgagee or Eastern Marketing Corporation, as applicable, pursuant to
the Conveyances, including those certain oil, gas or other mineral leases (the “Gas Leases”)
in the Subject Lands more particularly described on Exhibit “A” to the Conveyances attached
hereto and Additional Leases within the Target Formation within the AMI Area, except the
Retained Interests (the “Mortgaged Interests”) and expressly limited to such Mortgaged
Interests pertaining to Gas in, under and that may be produced, saved or sold from the
Target Formation from the wellbores of the Xxxxx or the Development Xxxxx, sufficient to
cause the Trust to receive a volume of Trust Gas or Assignee Gas, as applicable, calculated
in accordance with the provisions of the Conveyances;
(b) All rights, titles, interests and estates now owned or hereafter acquired by
Mortgagor in and to all Subject Gas, including all oil, gas, casinghead gas, condensate,
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distillate, liquid hydrocarbons, gaseous hydrocarbons and all products refined
therefrom and all other minerals (collectively called the “Hydrocarbons”) which may be
produced and saved from or are attributable to the Mortgaged Interests, including all oil in
tanks and all profits, proceeds, products, revenues and other income from or attributable to
the Hydrocarbons produced from the Mortgaged Interests, except the Retained Interests
(collectively the “Mortgaged Gas”) and expressly limited to such Mortgaged Gas pertaining to
Gas in, under and that may be produced, saved or sold from the Target Formation from the
wellbores of the Xxxxx or the Development Xxxxx, sufficient to cause the Trust to receive a
volume of Trust Gas or Assignee Gas, as applicable, calculated in accordance with the
provisions of the Conveyances;
(c) All easements, servitudes, rights-of-way, surface leases and other surface rights
on and over the Subject Lands (the “Surface Rights”) which are now or hereafter used, or
held for use, in connection with the Mortgaged Interest;
(d) All licenses, permits and other regulatory approvals held by Mortgagor to the
extent relating to the Mortgaged Interests;
(e) All proceeds of all of the rights, titles and interests of Mortgagor described in
the foregoing paragraphs (a) through (d) whether such proceeds or payments are goods, money,
documents, instruments, chattel paper, securities, accounts, payment intangibles, general
intangibles, fixtures, real, personal or other assets; and
(f) Any and all liens, security interests, financing statements or similar interests of
Mortgagor attributable to the Mortgaged Interests or the Mortgaged Gas and proceeds of runs
therefrom arising under or created by any statutory provision, judicial decision or
otherwise.
TO HAVE AND TO HOLD the Mortgaged Properties unto Mortgagee, and Mortgagee’s successor and
assigns, for the benefit of the Mortgagee, upon the terms, provisions and conditions herein set
forth.
Section 1.2 Grant of Security Interest; Fixture Filing. In order to further secure
the payment of the secured obligations hereinafter referred to and the performance of the
obligations, covenants, agreements, warranties, indemnities and undertakings of Mortgagor
hereinafter described, Mortgagor does hereby grant to Mortgagee a security interest in and to the
Mortgaged Properties (whether now owned or hereafter acquired by operation of law or otherwise)
insofar as the Mortgaged Properties consists of personal property of any kind or character defined
in and subject to the provisions of Article 9 of the Uniform Commercial Code as in effect from time
to time as part of the laws applicable to this Mortgage (the “Applicable UCC”), including the
proceeds and products from any and all of such personal property (such personal property and
proceeds and products therefrom being herein sometimes collectively called the “Collateral”).
Except as otherwise expressly provided in this Mortgage, all terms in this Mortgage relating to the
Mortgaged Properties and the grant of the foregoing security interest which are defined in the
Applicable UCC shall have the meanings assigned to them in Article 9 (or, absent definition in
Article 9, in any other Article) of the Applicable UCC, as those meanings may be amended,
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revised or replaced from time to time. Notwithstanding the foregoing, the parties intend that
the terms used herein which are defined in the Applicable UCC have, at all times, the broadest and
most inclusive meanings possible. If the Applicable UCC shall in the future be amended or held by
a court to define any term used herein more narrowly, or less inclusively, than the UCC in effect
on the date of this Mortgage, such amendment or holding shall be disregarded in defining terms used
in this Mortgage.
This Mortgage constitutes a security agreement, fixture filing and financing statement as
those terms are used in the Uniform Commercial Code of the State in which the Mortgaged Property is
located (the “PA UCC”). For purposes of this Section 1.2, this Mortgage is to be filed and
recorded in, among other places, the real estate records of the County in which the Mortgaged
Properties are is located and the following information is included: (1) Mortgagor shall be deemed
the “Debtor” with the address set forth for Mortgagor on the first page of this Mortgage which
Mortgagor certifies is accurate; (2) Mortgagee shall be deemed to be the “Secured Party” with the
address set forth for Mortgagee on the first page of this Mortgage and shall have all of the rights
of a secured party under the PA UCC; (3) this Mortgage covers goods which are or are to become
fixtures; (4) the name of the record owner of the Mortgaged Properties is Energy Corporation of
America, the Debtor; (5) the organizational identification number of the Debtor is none; (6) the
Debtor is a corporation organized under the laws of the State of West Virginia; and (7) the legal
name of the Debtor is Energy Corporation of America. The Debtor hereby authorizes Mortgagee to
file any financing statements and terminations thereof or amendments or modifications thereto
without the signature of the Debtor, where permitted by law; provided, however, this authorization
does not release Mortgagor from its general duty under this Mortgage, or the Conveyances to take
all actions necessary to perfect and maintain the perfected interest of Mortgagee in the Mortgaged
Properties.
Section 1.3 Assignment of Leases and Income.
(a) This Mortgage is also an absolute and unconditional assignment to Mortgagee of the
Gas Leases, whether now in existence or hereafter arising, for the purpose of vesting in
Mortgagee, subject to the Permitted Encumbrances (as defined in the Conveyances attached
hereto as Annex X-0, Xxxxx X-0, Xxxxx X-0 and Annex A-4), a, perfected security interest in
the Gas Leases. Mortgagor hereby assigns, transfers and sets over to Mortgagee all of the
Gas Leases insofar and only insofar to the extent pertaining to the Mortgaged Interests.
(b) So long as no default (as hereinafter defined) has occurred and is then continuing,
Mortgagor shall have a license, revocable at the will of Mortgagee following the occurrence
and continuation of a default, to enforce the Gas Leases and exercise Mortgagor’s rights
thereunder.
(c) Notwithstanding any legal presumption to the contrary, Mortgagee shall not be
obligated by reason of its acceptance of this assignment to perform any obligation of
Mortgagor as lessee under any Gas Lease. The acceptance of this assignment shall not
constitute a waiver of any rights of Mortgagee under the Conveyances or constitute a cure of
any default by Mortgagor thereunder.
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Section 1.4 Conveyances and Other Obligations. This Mortgage is made to secure and
enforce the payment and performance of the following, obligations, indebtedness and liabilities in
the event that the Mortgagor has filed for bankruptcy and the Royalty Interest is determined by a
bankruptcy court to be not a real property interest:
(a) The full performance of all obligations, covenants, agreements and undertakings of
and by Mortgagor from time to time owing to Mortgagee under the Conveyances for the delivery
of such volume of Trust Gas or Assignee Gas, as applicable, calculated in accordance with
the provisions of the Conveyances;
(b) Any sums advanced or expenses or costs incurred by the Mortgagee (or any receiver
appointed hereunder) which are made or incurred pursuant to, or permitted by, the terms
hereof, plus interest thereon at the Applicable Rate (as defined hereinafter) or otherwise
agreed upon, from the date of the advances or the incurring of such expenses or costs until
reimbursed; and
(c) Without limiting the generality of the foregoing, all post-petition interest,
expenses, and other duties, damages and liabilities with respect to indebtedness or other
obligations described above in this Section 1.4, which would be owed but for the
fact that they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization, or similar proceeding.
Section 1.5 Secured Obligations. The obligations referred to in Section 1.4,
and all renewals, extensions and modifications thereof, and all substitutions therefor, in whole or
in part, are herein sometimes referred to as the “secured obligations” or the “obligations secured
hereby”. It is contemplated and acknowledged that the secured obligations may include obligations
hereafter arising and that this Mortgage shall have effect, as of the date hereof, to secure all
secured obligations, regardless of whether any amounts exist on the date hereof or arise on a later
date or, whether having arisen or been advanced, are later repaid in part or in whole and further
obligations arise or advances are made at a later date.
Section 1.6 Maturity Date. The obligations, covenants, agreements and undertakings of
and by Mortgagor from time to time owing to Mortgagee are due to be performed on and before the
date that the Trust is terminated, such date of termination of the Trust shall be the maturity date
of this Mortgage.
ARTICLE II.
Covenants
Section 2.1 Subject to the Conveyances, Mortgagor warrants, represents, covenants and agrees
that at the time of the execution of Conveyances to Mortgagee or Eastern Marketing Corporation, as
applicable, the Mortgaged Properties were free and clear of all liens, security interests and other
Encumbrances, subject only to the Permitted Encumbrances and the Drilling Support Lien, and that,
to Mortgagor’s knowledge, as of the date of the Conveyances, Mortgagor was lawfully seized of the
estates and interests granted to Mortgagor under the Gas Leases and any instruments evidencing
Surface Rights. Mortgagor has heretofore conveyed its interest in and to
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the Mortgaged Properties to Mortgagee or Eastern Marketing Corporation, as applicable, and
this Mortgage is only being granted to provide protection to the Trust in the event of bankruptcy
of Mortgagor against the risk that the Royalty Interests were not real property interests. This
Mortgage is subject to (but in no event shall this Mortgage be an assumption of) the Permitted
Encumbrances and the Drilling Support Lien, in each case to the extent and only for so long as the
same are valid and subsisting and affect title to the Mortgaged Properties; provided that, with the
exception of the Drilling Support Lien, the foregoing is not intended to, and shall not,
subordinate the first priority lien on the entire right, title and interest, if any, of the
Mortgagor in the Mortgaged Properties created hereby.
Section 2.2 Mortgagor hereby covenants with the Mortgagee as follows:
(a) Further Assurance. Mortgagor will, on request of Mortgagee, (i) promptly
correct any defect, error or omission which may be discovered in the contents of this
Mortgage, or in the execution or acknowledgment of this Mortgage; (ii) execute,
acknowledge, deliver and record or file such further instruments (including further
mortgages, security agreements, financing statements, continuation statements, and
assignments of accounts, funds, contract rights, and general intangibles) and do such
further acts as may be necessary, desirable or proper to carry out more effectively the
purposes of this Mortgage; and (iii) execute, acknowledge, deliver, and file or record any
document or instrument (including specifically any financing statement) reasonably requested
by Mortgagee to protect the lien or the security interest hereunder against the rights or
interests of third persons. Mortgagor shall pay all reasonable costs connected with any of
the foregoing.
(b) Name and Place of Business. Mortgagor will not cause or permit any change
to be made in its name, identity, limited liability company structure, federal employer
identification number or state of organization (whether by merger or otherwise) unless
Mortgagor shall have notified Mortgagee of such change at least ten (10) days prior to the
effective date of such change, and shall have first taken all action required by Mortgagee
for the purpose of further perfecting or protecting the liens and security interests in the
Mortgaged Properties created hereby. Mortgagor’s exact name is the name set forth in this
Mortgage. Mortgagor is a corporation organized under the laws of the State of West
Virginia.
ARTICLE III.
Assignment of Production, Accounts, and Proceeds
Section 3.1 Assignment of Production. Subject to the Conveyances, to further secure
the secured obligations, Mortgagor hereby assigns, transfers and conveys unto Mortgagee, its
successors and assigns, all of Mortgagor’s right, title and interests in and to the Hydrocarbons
attributable to the Trust Gas or Assignee Gas (but specifically excluding all Gas pertaining to the
Retained Interests) and the revenues and proceeds attributable to such Hydrocarbons and all
accounts arising therefrom or in connection therewith and all payments in lieu of such Hydrocarbons
such as “take or pay” payments or settlements (all of the foregoing, the “Production
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Proceeds”). Upon the occurrence and during the continuation of a default, Mortgagee is fully
authorized to receive and receipt for the Production Proceeds; to endorse and cash any and all
checks and drafts payable to the order of Mortgagor or Mortgagee for the account of Mortgagor
received from or in connection with the Production Proceeds; and to execute transfer and division
orders in the name of Mortgagor, or otherwise, with warranties binding Mortgagor. All Production
Proceeds received by Mortgagee pursuant to this Section 3.1 during the continuance of a
default, or otherwise from time to time in the possession of Mortgagee, shall be applied to the
secured obligations due hereunder and in the event no secured obligations are currently due or are
fully paid, any remaining Production Proceeds will be paid to Mortgagor. Mortgagee shall not be
liable for any delay, neglect or failure to effect collection of any Production Proceeds or to take
any other action in connection therewith or hereunder; but Mortgagee shall have the right,
exercisable at its election at any time after a default has occurred and is continuing, in the name
of Mortgagor or otherwise, to prosecute and defend any and all actions or legal proceedings deemed
advisable by Mortgagee in order to collect such funds and to protect the interests of Mortgagee or
Mortgagor, with all costs, expenses and attorneys’ fees incurred in connection therewith being paid
by Mortgagor and until so paid being a part of the secured obligations secured by this Mortgage.
Mortgagor agrees to perform all such acts, and to execute all such further assignments, transfer
orders and division orders, and other instruments as may be required or desired by Mortgagee or any
party in order to effectuate the provisions contained in this Section 3.1.
Section 3.2 No Modification of Payment Obligations. Nothing herein contained shall
modify or otherwise alter, limit or modify the absolute obligation of Mortgagor to make prompt
payment of all secured obligations when and as the same become due regardless of whether the
Production Proceeds are sufficient to pay the same and the rights provided in accordance with the
foregoing assignment provision shall be cumulative of all other security of any and every character
now or hereafter existing to secure payment of the secured obligations.
Section 3.3 Effectuating Payment of Production Proceeds to Mortgagee. If under any
existing sales agreements, other than division orders or transfer orders, any Production Proceeds
are required to be paid by the purchaser to Mortgagor so that under such existing agreements
payment cannot be made of such Production Proceeds to Mortgagee, Mortgagor’s interest in all
Production Proceeds under such sales agreements and in all other Production Proceeds which for any
reason may be paid to Mortgagor during the continuance of a default shall, when received by
Mortgagor, constitute trust funds in Mortgagor’s hands and shall be immediately paid over to
Mortgagee.
Section 3.4 Release from Liability. Mortgagee and its successors and assigns are
hereby released and absolved from all liability for failure to enforce collection of the Production
Proceeds and from all other responsibility in connection therewith, except the responsibility of
each to account to Mortgagor for funds actually received by each.
ARTICLE IV.
Remedies Upon Default
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Section 4.1 Default. The term “default” as used in this Mortgage means:
(a) Mortgagor or its successor shall (i) voluntarily commence any proceeding or file
any petition seeking liquidation, reorganization or other relief under any federal or state
bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii)
consent to the institution of, or fail to contest within 60 days in an appropriate manner,
any involuntary bankruptcy, insolvency or receivership proceeding or petition commenced or
filed against Mortgagor (collectively, a “Bankruptcy Proceeding”) and the Mortgaged
Properties are in any way determined by the applicable bankruptcy court to be a part of the
Mortgagor’s bankruptcy estate; and
(b) failure by the Mortgagor, within thirty (30) days after notice thereof from the
Mortgagee, to cure a breach of payment default occurring under the Conveyances existing at
the time of, or occurring after, such filing of the Bankruptcy Proceeding.
Section 4.2 Remedies.
(a) If a default shall occur and be continuing, to the extent provided by applicable
law, the Mortgagee shall have the right and option to (i) proceed with an action in mortgage
foreclosure and to sell all or any portion of such Mortgaged Properties at one or more
sales, as an entirety or in parcels, at such place or places in otherwise such manner and
upon such notice as may be required by law, or, in the absence of any such requirement, as
the Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers;
or (ii) obtain a judgment for the secured obligations (including amounts advanced by
Mortgagee hereunder to protect the Mortgaged Properties or the liens and security interests
in the Mortgaged Properties created hereby, all costs and expenses of collection and suit,
including any bankruptcy or insolvency proceeding affecting Mortgagor, and reasonable
attorneys’ fees incurred in connection with the foregoing) together with interest on such
judgment until payment in full is received by Mortgagee. Mortgagee shall have the authority
while so in possession to insure (at Mortgagor’s expense) against all risks by reason of
having taken such possession and Mortgagor will transfer and deliver to the Mortgagee all
policies of insurance upon the Mortgaged Properties not theretofore transferred and
delivered to Mortgagee and Mortgagee shall have the right to obtain execution upon the
Mortgaged Properties on account of such judgment. Where the Mortgaged Properties are
situated in more than one jurisdiction, notice as above provided shall be posted and filed
in all such jurisdictions (if such notices are required by applicable law), and all such
Mortgaged Properties may be sold in any such jurisdiction and any such notice shall
designate the jurisdiction where such Mortgaged Properties are to be sold. Nothing
contained in this Section 4.2 shall be construed so as to limit in any way any
rights to sell the Mortgaged Properties or any portion thereof by private sale if and to the
extent that such private sale is permitted under the applicable law of the applicable
jurisdiction or by public or private sale after entry of a judgment by any court of
competent jurisdiction so ordering. The Mortgagor hereby irrevocably appoints, effective
upon the occurrence and during the continuance of a default, the Mortgagee, with full power
of substitution, to be the attorney-in-fact of the Mortgagor and in the name and on behalf
of the Mortgagor to execute and deliver any deeds, transfers, conveyances,
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assignments, assurances and notices which the Mortgagor ought to execute and deliver
and do and perform any and all such acts and things which the Mortgagor ought to do and
perform under the covenants herein contained and generally, to use the name of the Mortgagor
in the exercise of all or any of the powers hereby conferred on the Mortgagee. At any such
sale: (1) it shall not be necessary for the Mortgagee to have physical or constructive
possession of the Mortgaged Properties (the Mortgagor hereby covenanting and agreeing to
deliver any portion of the Mortgaged Properties not actually or constructively possessed by
the Mortgagee immediately upon the Mortgagee’s demand) and the title to and right of
possession of any such property shall pass to the purchaser thereof as completely as if the
same had been actually present and delivered to purchaser at such sale, (2) each instrument
of conveyance executed by the Mortgagee shall contain a special warranty of title, binding
upon the Mortgagor and its successors and assigns, (3) each and every recital contained in
any instrument of conveyance made by the Mortgagee shall conclusively establish the truth
and accuracy of the matters recited therein, including, without limitation, nonpayment or
nonperformance of the secured obligations, advertisement and conduct of such sale in
accordance with applicable law, (4) any and all prerequisites to the validity thereof shall
be conclusively presumed to have been performed, (5) the receipt of the Mortgagee or of such
other party or officer making the sale shall be a sufficient discharge to the purchaser or
purchasers for its purchase money and no such purchaser or purchasers, or its assigns or
personal representatives, shall thereafter be obligated to see to the application of such
purchase money, or be in any way answerable for any loss, misapplication or nonapplication
thereof, (6) to the fullest extent permitted by applicable law, the Mortgagor shall be
completely and irrevocably divested of all of its right, title, interest, claim and demand
whatsoever, either at law or in equity, in and to the Mortgaged Property sold and such sale
shall be a perpetual bar both at law and in equity against the Mortgagor, and against any
and all other persons claiming or to claim the property sold or any part thereof, by,
through or under the Mortgagor, and (7) to the extent and under such circumstances as are
permitted by law, the Mortgagee may be a purchaser at any such sale, and shall have the
right, after paying or accounting for all costs of said sale or sales, to credit the amount
of the bid upon the amount of the secured obligations (in the order of priority set forth in
Section 4.4) in lieu of cash payment.
(b) If a default shall occur and be continuing, Mortgagee may exercise its rights of
enforcement with respect to the Collateral under the Applicable UCC, or under any other
statute in force in any state to the extent the same is applicable law. Cumulative of the
foregoing and the other provisions of this Section 4.2, to the extent permitted by
applicable law:
(i) upon the occurrence and during the continuance of a default Mortgagee may
enter upon the Mortgaged Properties or otherwise upon Mortgagor’s premises to take
possession of, assemble and collect the Collateral or to render it unusable;
(ii) upon the occurrence and during the continuance of a default Mortgagee may
require Mortgagor to assemble the Collateral and make it available
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at a place Mortgagee designates which is mutually convenient to allow Mortgagee
to take possession or dispose of the Collateral;
(iii) written notice mailed to Mortgagor as provided herein at least ten (10)
days prior to the date of public sale of the Collateral or prior to the date after
which private sale of the Collateral will be made shall constitute reasonable
notice;
(iv) in the event of a foreclosure of the liens, privileges or security
interests evidenced hereby, the Collateral, or any part thereof, and the Mortgaged
Properties, or any part thereof, may, at the option of Mortgagee, be sold, as a
whole or in parts, together or separately (including, without limitation, where a
portion of the Mortgaged Properties is sold, the Collateral related thereto may be
sold in connection therewith);
(v) the expenses of sale provided for in clause FIRST of Section 4.4
shall include the reasonable expenses of retaking the Collateral, or any part
thereof, holding the same and preparing the same for sale or other disposition;
(vi) should, under this subsection, the Collateral be disposed of other than by
sale, any proceeds of such disposition shall be treated as if the same were sales
proceeds; and
(vii) upon the occurrence and during the continuance of a default, Mortgagee
may, to the extent permitted under applicable law, elect to treat the fixtures
included in the Collateral either as real property or as personal property, or both,
and proceed to exercise such rights as apply thereto. With respect to any sale of
real property included in the Mortgaged Properties made under the powers of sale
herein granted and conferred, Mortgagee may, to the extent permitted by applicable
law, include in such sale any personal property and fixtures included in the
Collateral and relating to such real property.
(c) To the extent permitted by applicable law, the sale hereunder of less than the
whole of the Mortgaged Properties shall not exhaust the right to judicial foreclosure, and
one or more successive sales may be made until the whole of the Mortgaged Properties shall
be sold, and, if the proceeds of such sale of less than the whole of the Mortgaged
Properties shall be less than the aggregate of the obligations secured hereby and the
expense of conducting such sale, this Mortgage and the liens, privileges and security
interests hereof shall remain in full force and effect as to the unsold portion of the
Mortgaged Properties just as though no sale had been made; provided, however, that Mortgagor
shall never have any right to require the sale of less than the whole of the Mortgaged
Properties. In the event any sale hereunder is not completed or is defective in the opinion
of Mortgagee, such sale shall not exhaust the right to judicial foreclosure, and Mortgagee
shall have the right to cause a subsequent sale or sales to be made. 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 law. Any and all statements of fact or other
recitals made in any deed or deeds, or other instruments of transfer, given in
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connection with a sale as to nonpayment of the secured obligations or as to the
occurrence of any default, or as all of the secured obligations having been declared to be
due and payable, or as to the request to sell, or as to notice of time, place and terms of
sale and the properties to be sold having been duly given, or as to any other act or thing
having been duly done, shall be taken as rebuttably presumptive evidence of the truth of the
facts so stated and recited. Notwithstanding any reference herein to the Conveyances, all
persons dealing with the Mortgaged Properties shall be entitled to rely on any document, or
certificate, of Mortgagee as to the occurrence of an event, such as a default, and shall not
be charged with or forced to review any provision of any other document to determine the
accuracy thereof. With respect to any sale held in foreclosure of the liens or security
interests covered hereby, it shall not be necessary for the Mortgagee, any public officer
acting under execution or order of the court or any other party to have physically present
or constructively in his/her or its possession, either at the time of or prior to such sale,
the Mortgaged Properties or any part thereof.
Section 4.3 Receiver. In addition to all other remedies herein provided for,
Mortgagor agrees that, during the continuance of a default, Mortgagee shall as a matter of right be
entitled to the appointment of a receiver or receivers for all or any part of the Mortgaged
Properties, whether such receivership be incident to a proposed sale (or sales) of such property or
otherwise, and without regard to the value of the Mortgaged Properties or the solvency of any
person or persons liable for the payment of the obligations secured hereby, and Mortgagor does
hereby consent to the appointment of such receiver or receivers, waives any and all defenses to
such appointment, and agrees not to oppose any application therefor by Mortgagee. Mortgagor
expressly waives the necessity for bond or an accounting by the receiver. Nothing herein is to be
construed to deprive Mortgagee of any other right, remedy or privilege it may now or hereafter have
under the law to have a receiver appointed. Any money advanced by Mortgagee in connection with any
such receivership shall be a demand obligation (which obligation Mortgagor hereby expressly
promises to pay) owing by Mortgagor to Mortgagee and shall bear interest (the “Applicable Rate”),
from the date of making such advancement by Mortgagee until paid, provided, however, that in no
instance will the Applicable Rate be greater than the highest rate of interest that Mortgagee may
charge to Mortgagor under applicable law.
Section 4.4 Proceeds of Foreclosure. The proceeds of any sale held in foreclosure of
the liens or security interests evidenced hereby shall be applied as follows, except as otherwise
required by applicable law:
FIRST, to the payment of all necessary costs and expenses incident to such
foreclosure sale, including but not limited to reasonable attorney’s fees, all court costs
and charges of every character in the event foreclosed by suit or any judicial proceeding,
if any;
SECOND, to be applied to the secured obligations as described in Section
1.4(a); and
THIRD, the remainder, if any there shall be, shall be paid to Mortgagor, or to
Mortgagor’s successors or assigns, or such other persons as may be entitled thereto by law.
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Section 4.5 Foreclosure as to Matured Debt. If a default shall occur and be
continuing, Mortgagee shall have the right to proceed with foreclosure of the liens, privileges or
security interests evidenced hereby without any requirement that the entire secured obligations
have become due, and in such event, any such foreclosure sale may be made subject to the unmatured
part of the secured obligations, in which event such foreclosure sale shall not in any manner
affect the unmatured part of the secured obligations but, as to such unmatured part, this Mortgage
shall remain in full force and effect as though no sale had been made. The proceeds of such sale
shall be applied as provided in Section 4.4. Several sales may be made hereunder without
exhausting the right of sale for any unmatured part of the secured obligations.
Section 4.6 Remedies Cumulative. All remedies herein provided for are cumulative of
each other and of all other remedies existing at law or in equity and are cumulative of any and all
other remedies provided for in the Conveyances, if any, and, in addition to the remedies herein
provided, there shall continue to be available all such other remedies as may now or hereafter
exist at law or in equity for the collection of the secured obligations and the enforcement of the
covenants herein and the foreclosure of the liens or security interests evidenced hereby, and the
resort to any remedy provided for hereunder or under the Conveyances, if any, or provided for by
applicable law shall not prevent the concurrent or subsequent employment of any other appropriate
remedy or remedies.
Section 4.7 Discretion as to Security. Mortgagee may resort to any security given by
this Mortgage or to any guaranty of the obligations secured hereby, in whole or in part, and in
such portions and in such order as may seem best to Mortgagee in its sole and uncontrolled
discretion, and any such action shall not in any way be considered as a waiver of any of the
rights, benefits, liens or security interests evidenced by this Mortgage.
Section 4.8 Mortgagor’s Waiver of Certain Rights. To the full extent Mortgagor may do
so, Mortgagor agrees that Mortgagor will not at any time insist upon, plead, claim or take the
benefit or advantage of any law now or hereafter in force providing for any appraisement,
valuation, stay, extension or redemption, and Mortgagor, for Mortgagor, Mortgagor’s successors and
assigns, and for any and all persons ever claiming any interest in the Mortgaged Properties, to the
extent permitted by applicable law, hereby waives and releases all rights of appraisement,
valuation, stay of execution, redemption, notice of intention to mature or declare due the whole of
the secured obligations, notice of election to mature or declare due the whole of the secured
obligations and all rights to a marshaling of assets of Mortgagor, including the Mortgaged
Properties, or to a sale in inverse order of alienation in the event of foreclosure of the liens or
security interests hereby created. Mortgagor shall not have or assert any right under any statute
or rule of law pertaining to the marshaling of assets, sale in inverse order of alienation, the
exemption of homestead, the administration of estates of decedents, or other matters whatever to
defeat, reduce or affect the right under the terms of this Mortgage to a sale of the Mortgaged
Properties for the collection of the secured obligations without any prior or different resort for
collection, or the right under the terms of this Mortgage to the payment of the secured obligations
out of the proceeds of sale of the Mortgaged Properties in preference to every other claimant
whatever. If any law referred to in this section and now in force, of which Mortgagor or
Mortgagor’s successors or assigns or any other persons claiming any interest in the Mortgaged
Properties or the Collateral
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might take advantage despite this section, shall hereafter be repealed or cease to be in
force, such law shall not thereafter be deemed to preclude the application of this section.
Section 4.9 No Release of Obligations. Neither Mortgagor nor any other Person
hereafter obligated for payment of all or any part of the secured obligations shall be relieved of
such secured obligations by reason of (i) the failure of Mortgagee or any other Person so obligated
to foreclose the lien of this Mortgage or to enforce any provision hereunder; or (ii) the release,
regardless of consideration, of the Mortgaged Properties or any portion thereof or interest therein
or the addition of any other property to the Mortgaged Properties. Mortgagee may release,
regardless of consideration, any part of the Mortgaged Properties without, as to the remainder, in
any way impairing, affecting, subordinating or releasing the lien or security interest created in
or evidenced by this Mortgage or its stature as a first and prior lien and security interest in and
to the Mortgaged Properties, and without in any way releasing or diminishing the liability of any
person or entity liable for the repayment or performance of the secured obligations. For payment
of the secured obligations, Mortgagee may resort to any other security therefor held by Mortgagee
in such order and manner as Mortgagee may elect.
Section 4.10 Discontinuance of Proceedings. In case Mortgagee shall have proceeded to
invoke any right, remedy or recourse permitted hereunder or under the Conveyances and shall
thereafter elect to discontinue or abandon same for any reason, Mortgagee shall have the
unqualified right to do so and, in such an event, Mortgagor and Mortgagee shall be restored to
their former positions with respect to the secured obligations, this Mortgage, the Conveyances, the
Mortgaged Properties and otherwise, and the rights, remedies, recourses and powers of Mortgagee
shall continue as if same had never been invoked.
ARTICLE V.
Miscellaneous
Section 5.1 Effective as a Financing Statement. This Mortgage, among other things,
covers goods which are or are to become fixtures on the real property described herein and covers
as-extracted collateral related to the real property described herein. This Mortgage shall be
effective as a financing statement (i) filed as a fixture filing with respect to all fixtures
included within the Mortgaged Properties, (ii) covering all as-extracted collateral included within
the Mortgaged Properties (including all oil, gas, other minerals and other substances of value
which may be extracted from the earth at the wellhead or minehead) and (iii) covering all other
Mortgaged Properties. This Mortgage is to be filed for record in the real property records of each
county where any part of the Mortgaged Properties is situated and may also be filed in the offices
of the Bureau of Land Management or any relevant state agency (or any successor agencies). The
mailing address of Mortgagor is the address of Mortgagor set forth at the end of this Mortgage and
the address of Mortgagee from which information concerning the security interests hereunder may be
obtained is the address of Mortgagee set forth at the end of this Mortgage. Nothing contained in
this paragraph shall be construed to limit the scope of this Mortgage nor its effectiveness as a
financing statement covering any type of Mortgaged Properties.
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Section 5.2 Reproduction of Mortgage as Financing Statement; Authorization to File. A
carbon, photographic, facsimile or other reproduction of this Mortgage or of any financing
statement relating to this Mortgage shall be sufficient as a financing statement for any of the
purposes referred to in Section 5.1. Without limiting any other provision herein,
Mortgagor hereby authorizes Mortgagee to file, in any filing or recording office, one or more
financing statements describing the Collateral and any renewal or continuation statements thereof.
Section 5.3 Notice to Account Debtors. In addition to, but without limitation of, the
rights granted in Article IV hereof, Mortgagee may, at any time after a default has a occurred that
is continuing, notify the account debtors or obligors of any accounts, chattel paper, negotiable
instruments or other evidences of obligations included in the Collateral to pay Mortgagee directly.
Section 5.4 Waivers. Mortgagee may at any time and from time to time in writing waive
compliance by Mortgagor with any covenant herein made by Mortgagor to the extent and in the manner
specified in such writing, or consent to Mortgagor’s doing any act which hereunder Mortgagor is
prohibited from doing, or to Mortgagor’s failing to do any act which hereunder Mortgagor is
required to do, to the extent and in the manner specified in such writing, or release any part of
the Mortgaged Properties or any interest therein or any Production Proceeds from the lien and
security interest of this Mortgage. Any party liable, either directly or indirectly, for the
secured obligations or for any covenant herein or in the Conveyances may be released from all or
any part of such obligations without impairing or releasing the liability of any other party. No
such act shall in any way impair any rights or powers hereunder except to the extent specifically
agreed to in such writing.
Section 5.5 No Impairment of Security. To the extent allowed by applicable law, the
lien, privilege, security interest and other security rights hereunder shall not be impaired by any
indulgence, moratorium or release which may be granted including, but not limited to, any renewal,
extension or modification which may be granted with respect to any secured obligations, or any
surrender, compromise, release, renewal, extension, exchange or substitution which may be granted
in respect of the Mortgaged Properties (including Production Proceeds), or any part thereof or any
interest therein, or any release or indulgence granted to any endorser, guarantor or surety of any
secured obligations.
Section 5.6 Acts Not Constituting Waiver. Any default may be waived without waiving
any other prior or subsequent default. Any default may be remedied without waiving the default
remedied. Neither failure to exercise, nor delay in exercising, any right, power or remedy upon
any default shall be construed as a waiver of such default or as a waiver of the right to exercise
any such right, power or remedy at a later date. No single or partial exercise of any right, power
or remedy hereunder shall exhaust the same or shall preclude any other or further exercise thereof,
and every such right, power or remedy hereunder may be exercised at any time and from time to time.
No modification or waiver of any provision hereof nor consent to any departure by Mortgagor
therefrom shall in any event be effective unless the same shall be in writing and signed by
Mortgagee and then such waiver or consent shall be effective only in the specific instances, for
the purpose for which given and to the extent therein specified. No notice nor demand on Mortgagor
in any case shall of itself entitle Mortgagor to any other or further notice or demand in similar
or other circumstances. Acceptance of any payment in an amount less than the amount
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then due on any secured obligations shall be deemed an acceptance on account only and shall
not in any way excuse the existence of a default hereunder.
Section 5.7 Forbearance or Extension. No forbearance and no extension of the time for
the payment of the obligations secured hereby, shall operate to release, discharge, modify, change
or affect, in whole or in part, the liability of Mortgagor hereunder for the payment of the
obligations or performance of the obligations secured hereby, or the liability of any other person
hereunder or for the payment of the obligations secured hereby.
Section 5.8 Place of Payment. All secured obligations which may be owing hereunder at
any time by Mortgagor shall be payable at the place designated in the Conveyances (or if no such
designation is made, at the address of Mortgagee indicated at the end of this Mortgage), or at such
other place as Mortgagee may designate in writing.
Section 5.9 Application of Payments to Certain Obligations. If any part of the
secured obligations cannot be lawfully secured by this Mortgage or if any part of the Mortgaged
Properties cannot be lawfully subject to the lien, privilege and security interest hereof to the
full extent of such obligations, then all payments made shall be applied on said obligations first
in discharge of that portion thereof which is not secured by this Mortgage.
Section 5.10 Compliance With Usury Laws. It is the intent of Mortgagor and Mortgagee
to contract in strict compliance with applicable usury law from time to time in effect. In
furtherance thereof, it is stipulated and agreed that none of the terms and provisions contained
herein, or in the Conveyances shall ever be construed to create a contract to pay, for the use,
forbearance or detention of money, interest in excess of the maximum amount of interest permitted
to be collected, charged, taken, reserved or received by applicable law from time to time in
effect.
Section 5.11 Release of Mortgage. Upon the termination of the Trust, Mortgagee shall
promptly cause satisfaction, discharge and release of this Mortgage to be entered upon the record
at the expense of Mortgagor and shall execute and deliver or cause to be executed and delivered
such instruments of satisfaction, reassignment and/or release as may be appropriate.
Section 5.12 Notice. All notices, requests, consents, demands and other
communications required or permitted hereunder shall be in writing and shall be deemed sufficiently
given or furnished if delivered by personal delivery, by telefacsimile, by delivery service with
proof of delivery, or by registered or certified United States mail, postage prepaid, at the
addresses specified at the end of this Mortgage (unless changed by similar notice in writing given
by the particular party whose address is to be changed). Any such notice or communication shall be
deemed to have been given (a) in the case of personal delivery or delivery service, as of the date
of first attempted delivery at the address and in the manner provided herein, (b) in the case of
telefacsimile, upon receipt, and (c) in the case of registered or certified United States mail,
three (3) days after deposit in the mail. Notwithstanding the foregoing, any notice given in
connection with a foreclosure of the liens or security interests created hereunder, or otherwise in
connection with the exercise by Mortgagee of its rights hereunder, which is given in a manner
permitted by applicable law shall constitute proper notice; without limitation of the foregoing,
notice given in a
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form required or permitted by statute shall (as to the portion of the Mortgaged Properties to
which such statute is applicable) constitute proper notice.
Section 5.13 Invalidity of Certain Provisions. A determination that any provision of
this Mortgage is unenforceable or invalid shall not affect the enforceability or validity of any
other provision and the determination that the application of any provision of this Mortgage to any
person or circumstance is illegal or unenforceable shall not affect the enforceability or validity
of such provision as it may apply to other persons or circumstances.
Section 5.14 Gender; Titles; Construction. All references in this Mortgage to
articles, sections, subsections and other subdivisions refer to corresponding articles, sections,
subsections and other subdivisions of this Mortgage unless expressly provided otherwise. Titles
appearing at the beginning of any of such subdivisions are for convenience only and shall not
constitute part of such subdivisions and shall be disregarded in construing the language contained
in such subdivisions. The words “this Mortgage”, “this instrument”, “herein”, “hereof”,
"hereunder"' and words of similar import refer to this Mortgage as a whole and not to any
particular subdivision unless expressly so limited. Unless the context otherwise requires:
"including” and its grammatical variations mean “including without limitation”; “or” is not
exclusive; words in the singular form shall be construed to include the plural and vice versa;
words in any gender include all other genders; references herein to any instrument or agreement
refer to such instrument or agreement as it may be from time to time amended or supplemented; and
references herein to any Person include such Person’s successors and assigns. All references in
this Mortgage to exhibits and schedules refer to exhibits and schedules to this Mortgage unless
expressly provided otherwise, and all such exhibits and schedules are hereby incorporated herein by
reference and made a part hereof for all purposes. This Mortgage has been drafted with the joint
participation of Mortgagor and Mortgagee and shall be construed neither against nor in favor of
either such party but rather in accordance with the fair meaning hereof.
Section 5.15 Recording. Mortgagor will cause this Mortgage and all amendments and
supplements thereto and substitutions therefor and all financing statements and continuation
statements relating thereto to be recorded, filed, re-recorded and refiled in such manner and in
such places as Mortgagee shall reasonably request and will pay all such recording, filing,
re-recording and refiling taxes, fees and other charges.
Section 5.16 Certain Obligations of Mortgagor. Without limiting Mortgagor’s
obligations hereunder, Mortgagor’s liability hereunder and the obligations secured hereby shall
extend to and include all post petition interest, expenses and other duties and liabilities with
respect to Mortgagor’s obligations hereunder which would be owed but for the fact that the same may
be unenforceable due to the existence of a bankruptcy, reorganization or similar proceeding.
Section 5.17 Authority of Mortgagee. All persons shall be entitled to rely on the
releases, waivers, consents, approvals, notifications and other acts of Mortgagee without the
joinder of any party other than Mortgagee in such releases, waivers, consents, approvals,
notifications or other acts.
- 16 -
Section 5.18 Counterparts. This Mortgage may be executed in several counterparts, all
of which are identical, except that, to facilitate recordation, certain counterparts hereof may
include only that portion of the applicable Exhibit A to the Conveyances which contains
descriptions of the properties located in (or otherwise subject to the recording or filing
requirements or protections of the recording or filing acts or regulations of) the recording
jurisdiction in which the particular counterpart is to be recorded, and other portions of the
applicable Exhibit A to the Conveyances shall be included in such counterparts by reference only.
All of the counterparts hereof together shall constitute one and the same instrument. An executed
counterpart of this Mortgage containing the full text to the entire Exhibit is recorded in the real
property records of Xxxxxx County, Pennsylvania.
Section 5.19 Successors and Assigns. The terms, provisions, covenants,
representations, indemnifications and conditions hereof shall be binding upon Mortgagor, and the
successors and assigns of Mortgagor, and shall inure to the benefit of Mortgagee and its respective
successors and assigns, and shall constitute covenants running with the Mortgaged Properties. All
references in this Mortgage to Mortgagor or Mortgagee shall be deemed to include all such
successors and assigns.
Section 5.20 FINAL AGREEMENT OF THE PARTIES. THE WRITTEN TRANSACTION DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
Section 5.21 CHOICE OF LAW. WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW THAT MAY CAUSE THE APPLICATION OF LAWS OF ANY OTHER JURISDICTION, THIS MORTGAGE SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA.
Section 5.22 Exculpation Provisions. EACH OF THE PARTIES HERETO
SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS MORTGAGE; AND AGREES THAT IT IS CHARGED WITH
NOTICE AND KNOWLEDGE OF THE TERMS OF THIS MORTGAGE; THAT IT HAS IN FACT READ THIS MORTGAGE AND IS
FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS
MORTGAGE; THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE
NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS MORTGAGE; AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY
IN ENTERING INTO THIS MORTGAGE; AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS MORTGAGE
RESULT IN ONE PARTY ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION AND
RELIEVING THE OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO AGREES AND
COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF
THIS MORTGAGE ON THE BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE
PROVISION IS NOT “CONSPICUOUS.”
- 17 -
[Signature Page Follows]
- 18 -
IN WITNESS WHEREOF, this Mortgage is executed by Mortgagor on the date set forth in the
acknowledgement below, to be effective simultaneously with the execution and delivery of the
Conveyances.
| ENERGY CORPORATION OF AMERICA |
|||||
| By: | /s/ Xxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxx | ||||
| Title: | Senior Vice President | ||||
The address of Mortgagor is:
Energy Corporation of America
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
000 00xx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No. (000) 000-0000
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No. (000) 000-0000
Prepared by:
Xxxxxx & Xxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxx
Signature Page to Mortgage
CERTIFICATE OF RESIDENCE
I do hereby certify that the address of Mortgagee is:
The Bank of New York Mellon Trust Company, N.A.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
By: The Bank of New York Mellon Trust Company, N.A.
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Authorized Signatory | |||
Signature Page to Mortgage
THE STATE OF COLORADO
|
§ | |
| § | ||
COUNTY OF DENVER
|
§ |
On
this, the 7th day of July, 2010, before me Xxxxx Xxx Xxxxxx, a Notary public,
personally appeared Xxxxxx X. Xxxxxx, who acknowledged himself to be the Senior Vice President of
Energy Corporation of America, a West Virginia corporation, and that he as such Senior Vice
President, being authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing the name of the corporation by himself as Senior Vice President.
In witness whereof, I hereunto set my hand and official seal.
[SEAL] |
||
| /s/ Xxxxx Xxx Xxxxxx |
My Commission Expires: 4-26-2014
Acknowledgment to Signature Page to Mortgage
ANNEX A-1
COPY OF TERM ROYALTY CONVEYANCE (PUD)
Annex A-1 to Mortgage
ANNEX A-2
COPY OF TERM ROYALTY CONVEYANCE (PDP)
Annex A-2 to Mortgage
ANNEX A-3
COPY OF PERPETUAL ROYALTY CONVEYANCE (PUD)
Annex A-3 to Mortgage
ANNEX A-4
COPY OF PERPETUAL ROYALTY CONVEYANCE (PDP)
Annex A-4 to Mortgage
