AMENDED AND RESTATED MORTGAGE, DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT OF PRODUCTION
Exhibit
10.8
AMENDED
AND RESTATED MORTGAGE,
DEED
OF TRUST, SECURITY AGREEMENT, FINANCING
STATEMENT
AND ASSIGNMENT OF PRODUCTION
THIS
AMENDED AND RESTATED MORTGAGE, DEED OF TRUST, SECURITY AGREEMENT, FINANCING
STATEMENT AND ASSIGNMENT OF PRODUCTION (this “Mortgage”) is from NEW CENTURY
ENERGY CORP., a Colorado corporation, and CENTURY RESOURCES, INC., a Delaware
corporation, together as Mortgagors (individually and together, “Mortgagors”),
to ▇▇▇▇▇▇ GRIN, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as Trustee
(“Trustee”) for the benefit of LV ADMINISTRATIVE SERVICES, INC., a Delaware
corporation, as administrative and collateral agent for VALENS U.S. SPV I,
LLC,
a Delaware limited liability company, and VALENS OFFSHORE SPV II, CORP., a
Delaware corporation (collectively, “Mortgagee”) dated as of November 30,
2007.
RECITALS
WHEREAS,
Mortgagors entered into a Mortgage, Deed of Trust, Security Agreement, Financing
Statement and Assignment of Production, dated as of November 20, 2007, in favor
of Mortgagee, which has been recorded as set forth in Schedule 1 (the “Original
Mortgage”);
WHEREAS,
in order to secure the Secured Indebtedness (defined below), each Mortgagor
has
agreed to execute and deliver this Mortgage pursuant to which, among other
things, the Mortgaged Property (defined below) is granted and assigned by
Mortgagors to Mortgagee to further secure the Secured Indebtedness (defined
below).
NOW,
THEREFORE, in consideration of the sum of $10.00 and other good and valuable
consideration, in hand paid by Mortgagee, the receipt and adequacy of which
are
hereby acknowledged and confessed by Mortgagors, Mortgagors hereby agree as
follows:
ARTICLE
I
DEFINITIONS
1.1. Certain
Defined Terms. For all purposes of this Mortgage, unless the context
otherwise requires:
“Accounts
and Contract Rights” shall mean all accounts (including accounts in the form of
joint interest ▇▇▇▇▇▇▇▇ under applicable operating agreements), contract rights
and general intangibles of Mortgagors now or hereafter existing, or hereafter
acquired by, or on behalf of, Mortgagors, or Mortgagors’ successors in interest,
relating to or arising from the ownership, operation and development of the
Mortgaged Property and to the production, processing, treating, sale, purchase,
exchange or transportation of Hydrocarbons (defined below) produced or to be
produced from or attributable to the Mortgaged Property or any units or pooled
interest units in which all or a portion of the Mortgaged Property forms a
part,
together with all accounts and proceeds accruing to Mortgagors attributable
to
the sale of Hydrocarbons produced from the Mortgaged Property or any units
or
pooled interest units in which all or a portion of the Mortgaged Property forms
a part.
“Article”
shall mean and refer to an Article of this Mortgage, unless specifically
indicated otherwise.
“Code”
shall mean the Uniform Commercial Code in effect from time to time in each
of
the jurisdictions where the Mortgaged Property or a portion thereof is
situated.
“Credit
Agreements” shall mean, collectively, the Securities Purchase Agreement the
Related Agreements as defined therein, the Guaranty Agreements, and “Credit
Agreement” shall mean any one of the foregoing.
“Event
of
Default” shall mean the occurrence of any breach by Mortgagors of any term or
provision of this Mortgage or the occurrence of any Event of Default under
and
as defined in the applicable Credit Agreement.
“Exhibit
A” and “Exhibit B” shall mean, unless specifically indicated otherwise,
respectively Exhibit A and Exhibit B attached hereto and incorporated herein
by
reference for all purposes.
“Gas
Balancing Agreement” means any agreement or arrangement whereby Mortgagors, or
any other party having an interest in any Hydrocarbons to be produced from
mineral interests in which Mortgagors own an interest, have a right or an
obligation to take more or less than their proportionate share of production
therefrom.
“Guaranties”
shall mean, collectively, each Guaranty dated as of the date hereof executed
by
Mortgagors in favor of Mortgagee pursuant to which Mortgagors guaranteed all
debts, liabilities and obligations of Gulf Coast Oil Corporation to Mortgagee,
as the same may be amended, modified and supplemented from time to
time.
“Guaranty
Agreements” shall mean, collectively, the Guaranties and all the other
documents, instruments and agreements executed in connection therewith, as
each
of the same may be amended, modified and supplemented from time to
time.
“Guaranty
Obligations” shall mean all present and future indebtednesses of Mortgagors
arising pursuant to any Guaranty Agreement.
“Hydrocarbons”
shall mean oil, gas, coalbed methane gas, casinghead gas, drip gasolines,
natural gasoline, condensate, distillate, as-extracted collateral and all other
liquid or gaseous hydrocarbons produced or to be produced in conjunction
therewith, and all products, byproducts and all other substances derived
therefrom or the processing thereof, and all other minerals and substances,
including, but not limited to, sulphur, lignite, coal, uranium, thorium, iron,
geothermal steam, water, carbon dioxide, helium and any and all other minerals,
ores, or substances of value and the products and proceeds therefrom, including,
without limitation, all gas resulting from the in-situ combustion of coal or
lignite.
“Lands”
shall mean the lands described in Exhibit A, shall include any lands the
description of which is incorporated in Exhibit A by reference to another
instrument or document, including, without limitation, all lands described
in
the Oil and Gas Leases listed on Exhibit
A
hereto, and shall also include any lands now or hereafter unitized, pooled,
spaced or otherwise combined, whether by statute, order, agreement, declaration
or otherwise, with lands the description of which is contained in Exhibit A
or
is incorporated in Exhibit A by reference.
-2-
“Lien”
shall mean any mortgage, deed of trust, collateral assignment, lien, pledge,
charge, security interest or other encumbrance.
“Loans”
shall mean, collectively, all amounts advanced by the Mortgagee to Mortgagors
under the Notes and the Credit Agreements.
“Material
Adverse Effect” shall mean a material adverse effect on (a) the assets,
liabilities, financial condition, results of operations or prospects of any
Mortgagor, (b) the right or ability of any Mortgagor to fully, completely and
timely perform its obligations under the Credit Agreements or Guaranty
Agreements, or (c) the validity or enforceability of any Credit Agreement or
Guaranty Agreement against any Mortgagor, or the rights or remedies of Mortgagee
thereunder.
“Mortgaged
Property” shall have the meaning stated in Article 2 of this
Mortgage.
“Net
Revenue Interest” shall mean Mortgagors’ share of all Hydrocarbons produced from
the Lands, after deducting the appropriate proportionate part of all lessors’
royalties, overriding royalties, production payments and other payments out
of
or measured by production which burden Mortgagors’ share of all such production,
subject to non-consent provisions contained in joint operating
agreements.
“Notes”
shall have the meaning set forth in the Securities Purchase
Agreement.
“Obligations”
shall mean all present and future indebtedness, obligations, and liabilities
(including, without limitation, all Guaranty Obligations) and all renewals,
refinancings and extensions thereof, or any part thereof, of Mortgagors to
Mortgagee arising pursuant to any of the Credit Agreements, or arising pursuant
to any commodity, interest rate, currency or other swap, option, collar, futures
contract or other contract pursuant to which a Person ▇▇▇▇▇▇ risks related
to
commodity prices, interest rates, currency exchange rates, securities prices
or
financial market conditions and any other commodity price hedging agreements
by
and between Mortgagors and Mortgagee and all interest accrued on any of the
foregoing, and reasonable costs, expenses, and attorneys’ fees incurred in the
enforcement or collection thereof, regardless of whether such indebtedness,
obligations and liabilities are direct, indirect, fixed, contingent, liquidated,
unliquidated, joint, several or joint and several.
“Oil
and
Gas Leases” shall mean oil, gas and mineral leases, oil and gas leases, oil
leases, gas leases, other mineral leases, subleases, top leases, any rights
resulting in an ownership interest in Hydrocarbons and all operating rights
relating to any of the foregoing (whether operated by virtue of such leases,
or
assignments or applicable operating agreements) and all other interests
pertaining to any of the foregoing, including, without limitation, all royalty
and overriding royalty interests, production payments and net profit interests,
production payments and net profit interests, mineral fee interests, and all
reversionary, remainder, carried and contingent
interests relating to any of the foregoing and all other rights therein which
are described and/or to which reference may be made on Exhibit
A.
-3-
“Operating
Equipment” shall mean all Personal Property and fixtures affixed or situated
upon all or any part of the Mortgaged Property, including, without limitation,
all surface or subsurface machinery, equipment, facilities or other property
of
whatsoever kind or nature now or hereafter located on any of the Lands which
are
useful for the production, treatment, storage or transportation of oil or gas,
including, but not by way of limitation, all oil ▇▇▇▇▇, gas ▇▇▇▇▇, water ▇▇▇▇▇,
injection ▇▇▇▇▇, casing, tubing, rods, pumping units and engines, Christmas
trees, derricks, separators, gun barrels, flow lines, tanks, gas systems (for
gathering, treating and compression), water systems (for treating, disposal
and
injection), power plants, poles, lines, transformers, starters and controllers,
machine shops, tools, storage yards and equipment stored therein, buildings
and
camps, telegraph, telephone and other communication systems, roads, loading
racks and shipping facilities.
“Permitted
Encumbrances” shall mean with respect to the Mortgaged Property:
(a) Liens
securing the Secured Indebtedness;
(b) the
Senior Liens;
(c) minor
defects in title which do not secure the payment of money and otherwise have
no
material adverse effect on the value or operation of the Subject Properties,
including, without limitation, easements, rights-of-way, servitudes, permits,
surface leases, and other similar rights in respect of surface operations,
and
easements for pipelines, streets, alleys, highways, telephone lines, power
lines, railways and other easements and rights-of-way, on, over or in respect
of
any of the properties of Mortgagors that are customarily granted in the oil
and
gas industry;
(d) inchoate
statutory or operators’ Liens securing obligations for labor, services,
materials and supplies furnished for operations on the Lands, which are not
more
than 60 days delinquent;
(e)
mechanic’s, materialman’s, warehouseman’s, journeyman’s and carrier’s Liens, and
other similar Liens arising by operation of law in the ordinary course of
business, securing obligations which are not more than 60 days
delinquent;
(f)
Liens for taxes or assessments not yet due or not yet delinquent, or, if
delinquent, that are being contested in good faith in the normal course of
business by appropriate action;
(g) lease
burdens payable to third parties which are deducted in the calculation of
discounted present value in any reserve report delivered by Mortgagors pursuant
to the Credit Agreements, including, without limitation, any royalty, overriding
royalty, net profits interest, production payment, carried interest or
reversionary working interest; and
(h) Liens,
charges and encumbrances upon Mortgagors’ assets, other than Proved Mineral
Interests, which in the aggregate do not have a value in excess of
$50,000.
-4-
“Person”
shall mean any individual, corporation, partnership, limited liability company,
association, trust, other entity or organization, or any court or governmental
department, commission, board, bureau, agency, or instrumentality of any nation
or of any province, state, commonwealth, nation, territory, possession, county,
parish, or municipality, whether now or hereafter constituted or
existing.
“Personal
Property” shall mean that portion of the Mortgaged Property that is personal
property.
“Proved
Mineral Interests” shall mean, collectively, Proved Producing Mineral Interests,
Proved Nonproducing Mineral Interests, and Proved Undeveloped Mineral
Interests.
“Proved
Nonproducing Mineral Interests” shall mean all Subject Properties which
constitute proved developed nonproducing reserves.
“Proved
Producing Mineral Interests” shall mean all Subject Properties which constitute
proved developed producing reserves.
“Proved
Undeveloped Mineral Interests” shall mean all Subject Properties which
constitute proved undeveloped reserves.
“Section”
shall mean and refer to a section of this Mortgage, unless specifically
indicated otherwise.
“Secured
Indebtedness” shall have the meaning stated in Article 3 of this
Mortgage.
“Securities
Purchase Agreement” shall mean the Securities Purchase Agreement dated as of
November 30, 2007, among Mortgagors and Mortgagee, as the same may be amended,
modified and supplemented from time to time.
“Senior
Liens” means the liens against and security interests in the Mortgaged Property
granted by Mortgagors and described more particularly on Exhibit B.
“Subject
Properties” shall have the meaning stated in Article 2 of this
Mortgage.
“Subsidiary”
shall mean, for any Person, any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority
of
the board of directors or other persons performing similar functions (including
that of a general partner) are at the time directly or indirectly owned,
collectively, by such Person and any Subsidiaries of such
Person. “Subsidiary” shall include Subsidiaries of Subsidiaries (and
so on).
“Well
Data” shall mean all logs, drilling reports, division orders, transfer orders,
operating agreements, contracts and other agreements, abstracts, title opinions,
files, records, seismic
data, memoranda and other information in the possession or control of Mortgagors
or to which Mortgagors have access relating to the Lands and/or any ▇▇▇▇▇
located thereon.
1.2. Other
Terms. Unless otherwise defined or indicated herein, all terms
with their initial letter capitalized shall have the meaning given such terms
in
the Credit Agreements.
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ARTICLE
II
GRANTING
CLAUSE: MORTGAGED PROPERTY
For
and
in consideration of the sum of $10.00 and other good and valuable consideration,
in hand paid by Mortgagee, the receipt and adequacy of which are hereby
acknowledged and confessed by Mortgagors, and for and in consideration of the
debt and purposes hereinafter set forth, to secure the full and complete payment
and performance of the Secured Indebtedness and to secure the performance of
the
covenants, obligations, agreements and undertakings of Mortgagors hereinafter
described, Mortgagors hereby acknowledge, confirm and agree that Mortgagee
has
and shall continue to have a security interest and mortgage lien in all of
the
Mortgaged Property heretofore granted by Mortgagors to Mortgagee pursuant to
the
Original Mortgage, and Mortgagors have GRANTED, BARGAINED, WARRANTED, MORTGAGED,
ASSIGNED, TRANSFERRED and CONVEYED, and by these presents do GRANT, BARGAIN,
WARRANT, MORTGAGE, ASSIGN, TRANSFER and CONVEY unto Trustee and Trustee’s
substitutes or successors, and his and their assigns, for the uses and purposes
herein set forth, with warranties and covenants of title only to the extent
provided herein and in the Credit Agreements, all of Mortgagors’ right, title
and interest, whether now owned or hereafter acquired, in all of the hereinafter
described properties, rights and interests; and, insofar as such properties,
rights and interests consist of equipment, general intangibles, accounts,
contract rights, inventory, goods, chattel paper, instruments, documents, money,
fixtures, as extracted collateral, proceeds and products of collateral or any
other Personal Property of a kind or character defined in or subject to the
applicable provisions of the Code, Mortgagors hereby grants to Mortgagee a
security interest therein, whether now owned or hereafter acquired,
namely:
(a) all
of those certain Oil and Gas Leases and Lands (all such Oil and Gas Leases
and
Lands being herein called the “Subject Properties,” as hereinafter further
defined) which are described in Exhibit A and/or to which reference may be
made
in Exhibit A and/or which are covered by any of the leases described on Exhibit
A, which Exhibit A is made a part of this Mortgage for all purposes, and is
incorporated herein by reference as fully as if copied at length in the body
of
this Mortgage at this point;
(b) all
rights, titles, interests and estates now owned or hereafter acquired by
Mortgagors in and to (i) any and all properties now or hereafter pooled or
unitized with any of the Subject Properties, and (ii) all presently existing
or
future operating agreements and unitization, communitization and pooling
agreements and the units operated thereby to the extent the same relate to
all
or any part of the Subject Properties, including, without limitation, all units
formed under or pursuant to any applicable laws (the rights, titles, interests
and estates described in this clause (b) also being included within the term
“Subject Properties” as used herein);
(c) all
presently existing and future agreements entered into between Mortgagors and
any
third party that provide for the acquisition by Mortgagors of any interest
in
any of the properties or interests specifically described in Exhibit A or which
relate to any of the properties and interests specifically described in Exhibit
A;
(d) the
Hydrocarbons (including inventory) which are in, under, upon, produced or to
be
produced from or attributable to the Lands from and after the date of this
Mortgage;
(e) the
Accounts and Contract Rights;
(f)
the Operating Equipment;
(g) the
Well Data;
(h) the
rights and security interests of Mortgagors held by Mortgagors to secure the
obligation of the first purchaser to pay the purchase price of the
Hydrocarbons;
(i)
all surface leases, rights-of-way, franchises, easements, servitudes, licenses,
privileges, tenements, hereditaments and appurtenances now existing or in the
future obtained in connection with any of the aforesaid, and all other items
of
value and incident thereto which Mortgagors may, at any time, have or be
entitled; and
(j)
all and any different and additional rights of any nature, of value or
convenience in the enjoyment, development, operation or production, in any
way,
of any property or interest included in any of the foregoing clauses, and in
all
revenues, income, rents, issues, profits and other benefits arising therefrom
or
from any contract now in existence or hereafter entered into pertaining thereto,
and in all rights and claims accrued or to accrue for the removal by anyone
of
Hydrocarbons from, or other act causing damage to, any of such properties or
interests.
All
the
aforesaid properties, rights and interests, together with any and all
substitutions, replacements, corrections or amendments thereto, or renewals,
extensions or ratifications thereof, or of any instrument relating thereto,
and
together with any additions thereto which may be subjected to the Lien of this
Mortgage by means of supplements hereto, being hereinafter called the “Mortgaged
Property”.
Subject,
however, to (i) Permitted Encumbrances, and (ii) the condition that Mortgagee
shall not be liable in any respect for the performance of any covenant or
obligation of Mortgagors with respect to the Mortgaged Property.
TO
HAVE
AND TO HOLD the Mortgaged Property unto Mortgagee and its successors, legal
representatives and assigns, forever, subject to Section 7.3 hereof, to secure,
in each such instance, the payment and performance of the Secured Indebtedness
and the performance of the covenants, obligations, agreements, and undertakings
of Mortgagors described herein.
-6-
ARTICLE
III
SECURED
INDEBTEDNESS
This
Mortgage is given to secure the Loans and all of the Obligations under and
as
described in the Credit Agreements and the Guaranty Agreements, including,
without limitation:
(a) interest
on all credit outstanding under the Credit Agreements at the rates provided
in
the Credit Agreements;
(b) the
Loans, including, without limitation, the indebtedness evidenced by the
Notes;
(c) the
Obligations;
(d) payment
and performance of any and all present and future obligations of Mortgagors
according to the terms of any present or future hedge transaction, including,
without limitation, any present or future swap agreements, cap, floor, collar,
exchange transaction, forward agreement or other exchange or protection
agreements relating to any such transaction now existing or hereafter entered
into between Mortgagors and Mortgagee;
(e) any
sums advanced as expenses or costs incurred by, or on behalf of, Mortgagee
which
are made or incurred pursuant to the terms of this Mortgage or any Credit
Agreement, plus interest thereon at the rate set forth in Section 1.1 of the
Notes from the date of advance or expenditure until reimbursed; and
(f)
all other and additional debts, obligations and liabilities of every kind and
character of Mortgagors now existing or hereafter arising in connection with
any
of the Credit Agreements or otherwise (all of the obligations and indebtedness
referred to in this Article 3, and all renewals, refinancings, extensions and
modifications thereof, and all substitutions therefor, in whole or in part,
are
herein sometimes referred to as the “Secured Indebtedness”).
ARTICLE
IV
COVENANTS,
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF MORTGAGORS
Mortgagors
hereby covenant, represent, warrant and agree that:
4.1. Payment
of Indebtedness. Mortgagors will duly and punctually pay or cause
to be paid when due all of the Secured Indebtedness.
4.2. Warranties. a) Mortgagors,
to the extent of the interests specified in Exhibit A, have good and defensible
title, subject to Permitted Encumbrances, to each property right or interest
constituting the Mortgaged Property, and have a good and legal right to make
the
grant and conveyance made in this Mortgage; (b) Mortgagors’ present Net Revenue
Interest in the Mortgaged Property is not less than that specified in Exhibit
A
and if no interest is specified, includes all their interests however specified
in and to the Oil and Gas Leases and Lands described on Exhibit A; and (c)
the
Mortgaged Property is free from all Liens other than Permitted
Encumbrances. Mortgagors will warrant and forever defend (subject to
those Permitted Encumbrances described in clauses (b) and (f) of the definition
of “Permitted Encumbrances” set forth above) the Mortgaged Property unto
Mortgagee and Mortgagee’s successors, legal representatives and assigns, and
Trustee and Trustee’s successors, legal representatives and assigns, against
every Person whomsoever lawfully claiming the same or any part thereof, and
Mortgagors will maintain and preserve the Lien hereby created so long as any
of
the Secured Indebtedness remains unpaid, except where such failure to comply
would not have a Material Adverse Effect.
-7-
4.3. Further
Assurances. Mortgagors will execute and deliver such other and
further instruments and will do such other and further acts as in the reasonable
discretion of Mortgagee may be necessary or desirable to carry out more
effectively the purposes of this Mortgage, including, without limiting the
generality of the foregoing, (a) prompt correction of any material defect which
may hereafter be discovered in the title to the Mortgaged Property or in the
execution and acknowledgment of this Mortgage, any Notes, the Credit Agreements,
or any other document used in connection herewith or at any time delivered
to
Mortgagee in connection with any of the Secured Indebtedness, and (b) if
required by Section 8.1 hereof, prompt execution and delivery of all division
or
transfer orders that in the reasonable discretion of Mortgagee are needed to
transfer effectively the assigned proceeds of production from the Mortgaged
Property to Mortgagee.
4.4. Taxes. To
the extent and in the manner required by the Credit Agreements, and to the
extent not prohibited by applicable law, Mortgagors will promptly pay, or cause
to be paid, all taxes legally imposed upon this Mortgage or upon the Mortgaged
Property or upon the interest of Mortgagee therein, or upon the income, profits,
proceeds and other revenues thereof.
4.5. Operation
of the Mortgaged Property. So long as the Secured Indebtedness or
any part thereof remains unpaid:
(a) Mortgagors
shall maintain and operate the Mortgaged Property in a good and workmanlike
manner and will observe and comply with all of the terms and provisions, express
or implied, of all Oil and Gas Leases relating to the Mortgaged Property so
long
as such Oil and Gas Leases are capable of producing Hydrocarbons in paying
quantities, except where such failure to comply would not have a Material
Adverse Effect;
(b) Mortgagors
shall comply with all contracts and agreements applicable to or relating to
the
Mortgaged Property or the production and sale of Hydrocarbons therefrom, except
to the extent a failure to so comply would not have a Material Adverse
Effect;
(c) Mortgagors
shall, at all times, maintain, preserve and keep all Operating Equipment used
with respect to the Mortgaged Property in proper repair, working order and
condition, and make all necessary or appropriate repairs, renewals,
replacements, additions and improvements thereto so that the efficiency of
such
Operating Equipment shall at all times be properly preserved and maintained,
except where such failure to comply would not have a Material Adverse Effect;
provided that no item of Operating Equipment need be so repaired, renewed,
replaced, added to or improved, if Mortgagors shall in good faith determine
that
such action
is
not necessary or desirable for the continued efficient and profitable operation
of the Mortgaged Property;
-8-
(d) Mortgagors
shall cause the Mortgaged Property to be kept free and clear of all Liens other
than Permitted Encumbrances;
(e) Mortgagors
shall comply with the terms of the Credit Agreements with respect to maintenance
of insurance. All loss payable clauses or provisions in said policy
or policies shall be endorsed in favor of and made payable to Mortgagee, as
its
interest may appear. Mortgagee shall have the right to collect, and
Mortgagors hereby assign to Mortgagee, any and all monies that may become
payable under any such policies of insurance by reason of damage, loss or
destruction of any of the Mortgaged Property, and Mortgagee may, at its
election, either apply all or any part of the sums so collected toward payment
of the Secured Indebtedness, whether or not such Secured Indebtedness, or any
portion thereof, is then due and payable, in such manner as Mortgagee may elect,
or release same to Mortgagors; and
(f) Mortgagors
shall not sell, lease, transfer, abandon or otherwise dispose of any portion
of
the Mortgaged Property or any of Mortgagors’ rights, titles or interests therein
or thereto, except as specifically permitted in the Credit
Agreements.
4.6. Recording. Mortgagors
will promptly, and at Mortgagors’ sole cost and expense, record, register,
deposit and file this Mortgage and every other instrument in addition
or supplemental hereto in such offices and places and at such times
and as often as may be necessary to place of record and perfect the Lien hereof
as a perfected Lien on real or personal property, as the case may be, subject
only to Permitted Encumbrances, and the rights and remedies of Mortgagee, and
otherwise will do and perform all matters or things necessary or expedient
to be
done or observed by reason of any law or regulation of any state or of the
United States or of any other competent authority, for the purpose of
effectively operating, maintaining and preserving the Lien hereof on the
Mortgaged Property.
4.7. Records,
Statements and Reports. Mortgagors will keep proper books of
record and account in which complete and correct entries will be made of
Mortgagors’ transactions in accordance with sound accounting principles,
consistently applied and will, to the extent required by the Credit Agreements,
furnish or cause to be furnished to Mortgagee (a) all reports required under
the
Credit Agreements, and (b) such other information concerning the business and
affairs and financial condition of Mortgagors as Mortgagee may, from time to
time reasonably request.
4.8. No
Government Approvals. Mortgagors warrant that no approval or
consent of any Person is necessary to authorize the execution and delivery
of
this Mortgage or any of the other Credit Agreements or the Notes, or
to authorize the observance or performance by Mortgagors of the covenants herein
or therein contained.
4.9. Right
of Entry. Mortgagors will permit Mortgagee, or the agents or
designated representatives of Mortgagee, to enter upon the Mortgaged Property,
and all parts thereof, for the purposes of investigating and inspecting the
condition and operation thereof.
-9-
The
representations and warranties set forth in the Credit Agreements are
incorporated herein by reference as if set forth herein, and each such
representation and warranty is true and correct.
ARTICLE
V
ADDITIONS
TO MORTGAGED PROPERTY
It
is
understood and agreed that Mortgagors may periodically subject additional
properties to the Lien of this Mortgage. In the event that additional
properties are to be subjected to the Lien hereof, the parties hereto agree
to
execute a supplemental mortgage, satisfactory in form and substance to
Mortgagee, together with any security agreement, financing statement or other
security instrument required by Mortgagee, all in form and substance
satisfactory to Mortgagee and in a sufficient number of executed (and, where
necessary or appropriate, acknowledged) counterparts for recording
purposes. Upon execution of such supplemental mortgage, all
additional properties thereby subjected to the Lien of this Mortgage shall
become part of the Mortgaged Property for all purposes.
ARTICLE
VI
ENFORCEMENT
OF THE SECURITY
6.1. General
Remedies. Upon the occurrence and during the continuance of an
Event of Default, Mortgagee may perform or direct Trustee to perform any one
or
more of the following acts, subject to and in accordance with any applicable
provision of the Credit Agreements and to any mandatory requirements or
limitations of applicable law then in force:
(a) exercise
all of the rights, remedies, powers and privileges of Mortgagors with respect
to
the Mortgaged Property or any part thereof, give or withhold all consents
required therein which, with respect to the Mortgaged Property or any part
thereof, Mortgagors would otherwise be entitled to give or withhold and perform
or attempt to perform any covenants in this Mortgage which Mortgagors are
obligated to perform; provided that no payment or performance by Mortgagee
shall
constitute a waiver of any Event of Default, and Mortgagee shall be subrogated
to all rights and Liens securing the payment of any debt, claim, tax or
assessment for the payment of which Mortgagee may make an advance or which
Mortgagee may pay;
(b) execute
and deliver to such Person or Persons as may be designated by Mortgagee
appropriate powers of attorney to act for and on behalf of Mortgagors in all
transactions with any federal, state or local agency with respect to any of
the
Mortgaged Property;
(c) exercise
any and all other rights or remedies granted to Mortgagee pursuant to the
provisions of any of the Credit Agreements and applicable law;
(d) if
Mortgagors have failed to keep or perform any covenant whatsoever contained
in
any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform
or
attempt to perform such covenant. Any payment made or expense
incurred in the performance or attempted performance of any such covenant shall
be a part of the Secured Indebtedness, and Mortgagors promise, upon demand,
to
pay to Mortgagee, at the place where the Notes are payable,
or at such other place as Mortgagee may direct by written notice, all sums
so
advanced or paid by Mortgagee, with interest at the rate set forth in Section
2.2 of the Notes from the date when paid or incurred by Mortgagee. No
such payment by Mortgagee shall constitute a waiver of any Event of
Default;
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(e) Mortgagee
may, at its option, without notice, demand, presentment, notice of intent to
accelerate or of acceleration, or notice of protest, all of which are hereby
expressly waived by Mortgagors, declare the entire unpaid balance of the Secured
Indebtedness, or any part thereof, immediately due and payable, and upon such
declaration it shall be immediately due and payable, and the Liens hereof shall
then be subject to foreclosure in accordance with applicable law;
and
(f)
upon the occurrence of an Event of Default, this Mortgage may be foreclosed
as
to the Mortgaged Property, or any part thereof, in any manner permitted by
applicable law.
Mortgagee
may request Trustee to, and in such event Trustee is hereby authorized and
empowered and it shall be his or her special duty upon such request of Mortgagee
and to the extent permitted by applicable law, proceed with foreclosure and
sell
all or any part of the Mortgaged Property at one or more sales, as an entirety
or in parcels, at such place or places and otherwise in such manner and upon
such notice as may be required by applicable law or, in the absence of any
such
requirement, as Trustee or Mortgagee may deem appropriate, and to make
conveyance to the purchaser or purchasers thereof. Any such sale
shall be made to the highest bidder or bidders for cash, at the courthouse
door
of the county wherein the Mortgaged Property is situated; provided that, if
the
Mortgaged Property is situated in more than one county, such sale of the
Mortgaged Property, or part thereof, may be made in any county wherein any
part
of the Mortgaged Property is situated. Such sale shall be made at
public outcry, on the day of any month, during the hours of such day, and after
written notices thereof have been publicly posted in such places and for such
time periods and all Persons entitled to notice thereof have been sent such
notice, all as required by applicable law. If the applicable law in
force as of the date of execution hereof should hereafter be amended to require
a different notice of sale applicable to sales of property of the nature of
the
Mortgaged Property under powers of sale conferred by mortgages or deeds of
trust, Trustee may, in his or her sole discretion, to the extent permitted
by
applicable law, give either the notice of sale required by applicable law in
effect on the date of execution hereof or the notice of sale prescribed by
the
amended law; and nothing herein shall be deemed to require Mortgagee or Trustee
to do, and Mortgagee and Trustee shall not be required to do, any act other
than
as required by applicable law in effect at the time of any such
sale. After such sale, Trustee shall make to the purchaser or
purchasers thereunder good and sufficient deeds, assignments or bills of sale
in
the name of Mortgagors, conveying or transferring the Mortgaged Property, or
any
part thereof, so sold to the purchaser or purchasers containing such warranties
of title as are customarily given, which warranties shall be binding upon
Mortgagors.
Sale
of a
part of the Mortgaged Property shall not exhaust the power of sale granted
hereby, but sales may be made from time to time until the Secured Indebtedness
is paid and performed in full. It shall not be necessary to have
present or to exhibit at any such sale any of the Personal
Property. In addition to the rights and other powers of sale granted
under the preceding
provisions of this Section 6.1(f), if default is made in the payment of any
installment of the Secured Indebtedness, Mortgagee may, at its option, at once
or at any time thereafter while any matured installment remains unpaid, without
declaring the entire Secured Indebtedness to be due and payable, orally or
in
writing, enforce, or direct Trustee to enforce (as provided by applicable law),
the Liens created by this Mortgage and sell the Mortgaged Property subject
to
such matured indebtedness and the Liens securing its payment, in the same
manner, on the same terms, at the same place and time and after having given
notice in the same manner, all as provided in the preceding provisions of this
Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by
applicable law) shall make due conveyance to the purchaser or
purchasers. Sales made without maturing the Secured Indebtedness may
be made hereunder whenever there is a default in the payment of any installment
of the Secured Indebtedness without exhausting the power of sale granted hereby
and without affecting in any way the power of sale granted under this Section
6.1(f), the unmatured balance of the Secured Indebtedness (except as to any
proceeds of any sale which Mortgagee may apply as prepayment of the Secured
Indebtedness), or the Liens securing payment of the Secured
Indebtedness. The sale or sales of less than the whole of the
Mortgaged Property shall not exhaust the power of sale herein granted, and
Mortgagee or Trustee (as provided by applicable law) is specifically empowered
to make successive sale or sales under such power until the whole of the
Mortgaged Property shall be sold. It is intended by each of the
foregoing provisions of this Section 6.1(f) that Trustee may, after any request
or direction by Mortgagee, sell not only the Subject Properties but also all
other items constituting a part of the Mortgaged Property along with the Subject
Properties, or any part thereof, all as a unit and as a part of a single sale,
or may sell any part of the Mortgaged Property separately from the remainder
of
the Mortgaged Property. If the proceeds of such sale or sales of less
than the whole of such Mortgaged Property shall be less than the aggregate
of
the Secured Indebtedness and the expense of enforcing the trust created by
this
Mortgage, the Liens of this Mortgage shall remain in full force and effect as to
the unsold portion of the Mortgaged Property just as though no sale or sale
of
less than the whole of the Mortgaged Property had occurred, but Mortgagee shall
have the right, at its sole election, to request Trustee to sell less than
the
whole of the Mortgaged Property. In the event any questions should be
raised as to the regularity or validity of any sale hereunder, Mortgagee or
Trustee (as provided by applicable law) shall have the right and is hereby
authorized to make resale of said property so as to remove any questions or
doubt as to the regularity or validity of the previous sale, and as many resales
may be made as may be appropriate. It is agreed that, in any deed or
deeds given by Mortgagee or Trustee (as provided by applicable law), any and
all
statements of fact or other recitals therein made as to the identity of
Mortgagee, or as to the occurrence or existence of any Event of Default, or
as
to the request to sell, notice of sale, time, place, terms, and manner of sale,
and receipt, distribution, and application of the money realized therefrom,
or
as to the due and proper appointment of a substitute trustee, and, without
being
limited by the foregoing, as to any other act or thing having been duly done
by
Mortgagee or by Trustee shall be taken by any Governmental Authority as prima
facie evidence that the said statements or recitals are true and correct and
are
without further question to be so accepted, and Mortgagors do hereby ratify
and
confirm any and all acts that Trustee or Mortgagee may lawfully do in the
premises by virtue hereof. In the event of the resignation or death
of Trustee, or his or her failure, refusal, or inability, for any reason, to
make any such sale or to perform any of the trusts herein declared, or, at
the
option of Mortgagee, without cause, Mortgagee may appoint at its sole
discretion, in writing, a substitute trustee, who shall thereupon succeed to
all
the estates, titles, rights, powers, and trusts herein granted to and vested
in
Trustee. If Mortgagee is a national banking association or a
corporation, such appointment may be made on behalf of such Mortgagee by any
Person who is then the president, or any vice-president, or the cashier or
secretary, or any other authorized officer or agent of Mortgagee. In
the event of the resignation or death of any such substitute trustee, or his
or
her failure, refusal, or inability to make such sale or perform such trusts,
or,
at the option of Mortgagee, without cause, Mortgagee may appoint successive
substitute trustees from time to time in the same manner. Wherever
herein the word “Trustee” is used, the same shall mean the Person who is the
duly appointed Trustee or substitute trustee hereunder at the time in
question.
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(g) Mortgagee
may, or Trustee may upon written request of Mortgagee, in lieu of or in addition
to exercising the power of sale provided for in Section 6.1(f) hereof, proceed
by suit or suits, at law or in equity, to enforce the payment and performance
of
the Secured Indebtedness in accordance with the terms hereof and of the Credit
Agreements evidencing it, to foreclose the Liens of this Mortgage as against
all
or any part of the Mortgaged Property, and to have all or any part of the
Mortgaged Property sold under the judgment or decree of a court of competent
jurisdiction.
(h) To
the extent permitted by law, upon the acceleration of the Secured Indebtedness,
Mortgagee, as a matter of right and without regard to the sufficiency of the
Mortgaged Property, and without any showing of insolvency, fraud or
mismanagement on the part of Mortgagors, and without the necessity of filing
any
judicial or other proceeding other than the proceeding for appointment of a
receiver, shall be entitled to the appointment of a receiver or receivers of
the
Mortgaged Property, or any part thereof, and of the income, royalties, revenues,
bonuses, production payments, delay rentals, benefits, rents, issues and profits
thereof. Mortgagors hereby consent to the appointment of such
receiver or receivers and agree not to oppose any application therefor by
Trustee or Mortgagee.
(i)
Upon the acceleration of the Secured Indebtedness, Mortgagee may (without
notification, if permitted by applicable law) enter upon the Mortgaged Property,
take possession of the Mortgaged Property and remove the Personal Property
or
any part thereof, with or without judicial process and, in connection therewith,
without any responsibility or liability on the part of Mortgagee, take
possession of any property located on or in the Mortgaged Property which is
not
a part of the Mortgaged Property and hold or store such property at Mortgagors’
expense. If necessary to obtain the possession provided for in this
Section 6.1 (i), Mortgagee or Trustee may undertake any and all remedies to
dispossess Mortgagors, including, specifically, one or more actions for forcible
entry and detainer, trespass to try title and restitution.
(j)
Mortgagee may require Mortgagors to assemble any Personal Property and any
other
items of the Mortgaged Property, or any part thereof, and make it available
to
Mortgagee at a place reasonably convenient to Mortgagors and Mortgagee to be
designated by Mortgagee.
(k) Mortgagee
may surrender the insurance policies maintained pursuant to the Credit
Agreements, or any part thereof, and receive and apply the unearned premiums
as
a credit on the Secured Indebtedness, and, in connection therewith, Mortgagors
hereby appoint Mortgagee as the agent and attorney-in-fact for Mortgagors (with
full powers of substitution) to collect
such premiums, which power of attorney shall be deemed to be a power coupled
with an interest and therefore irrevocable until the release of the Liens
evidenced by this Mortgage.
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(l)
Mortgagee may retain the Personal Property and any other items of the Mortgaged
Property, or any part thereof, in satisfaction or partial satisfaction of the
Secured Indebtedness whenever the circumstances are such that Mortgagee is
entitled to do so under the Code.
(m) Mortgagee
shall have the right to become the purchaser at any sale of the Mortgaged
Property held by Mortgagee, Trustee or by any court, receiver or public officer,
and Mortgagee shall have the right to credit upon the amount of the bid made
therefor, the amount payable out of the net proceeds of such sale to
Mortgagee. Recitals contained in any conveyance made to any purchaser
at any sale made hereunder shall conclusively establish the truth and accuracy
of the matters therein stated, including, without limiting the generality of
the
foregoing, nonpayment of the unpaid principal sum of, interest accrued on,
and
fees payable in respect of the Secured Indebtedness after the same have become
due and payable, and advertisement and conduct of such sale in the manner
provided herein or appointment of any successor Trustee hereunder.
(n) Mortgagee
may buy any Personal Property and any other items of the Mortgaged Property
or
any part thereof at any private disposition if the Mortgaged Property or the
part thereof being disposed of is a type customarily sold in a recognized market
or a type which is the subject of widely distributed standard price
quotations.
(o) Mortgagee
shall have and may exercise any and all other rights which Mortgagee may have
under the Code, by virtue of the Credit Agreements, this Mortgage, at law,
in
equity or otherwise.
Mortgagee
shall have no obligation to do, or refrain from doing, any of the acts, or
to
make or refrain from making any payment, referred to in this Section
6.1.
6.2. Foreclosure
by Judicial Proceedings. Upon the occurrence of an Event of
Default, Mortgagee may proceed, where permitted by law, by a suit or suits
in
equity or at law, whether for a foreclosure hereunder, or for the sale of the
Mortgaged Property, or for the specific performance of any covenant or agreement
herein contained or in aid of the execution of any power herein granted, or
for
the appointment of a receiver pending any foreclosure hereunder or the sale
of
the Mortgaged Property, or for the enforcement of any other appropriate legal
or
equitable remedy.
6.3. Receipt
to Purchaser. Upon any sale by virtue of judicial proceedings,
the receipt of the officer making such sale under judicial proceedings shall
be
sufficient discharge to the purchaser or purchasers at any sale for his or
their
purchase money, and such purchaser or purchasers, or his or their assigns or
personal representatives, shall not, after paying such purchase money and
receiving such receipt of such officer therefor, be obligated to see to the
application of such purchase money or be in any way answerable for any loss,
misapplication or non-application thereof.
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6.4. Effect
of Sale. Any sale or sales of the Mortgaged Property or portions
thereof where permitted by law shall operate to divest all right, title,
interest, claim and demand whatsoever either at law or in equity, of Mortgagors
of, in and to the premises and the property sold and shall be a perpetual bar,
both at law and in equity, against Mortgagors, and Mortgagors’ successors, legal
representatives or assigns, and against any and all Persons claiming or who
shall thereafter claim all or any of the property sold by, through or under
Mortgagors, or Mortgagors’ successors, legal representatives and
assigns. Nevertheless, Mortgagors, if requested by Mortgagee to do
so, shall join in the execution and delivery of all proper conveyances,
assignments and transfers of the properties so sold.
6.5. Application
of Proceeds. The proceeds of any sale of or other realization on
the Mortgaged Property, or any part thereof, shall be applied by Mortgagee
to
the Secured Indebtedness in such order as Mortgagee shall elect.
6.6. Mortgagors’
Waiver of Right to Appraisement, Marshaling, etc. Mortgagors
agree, to the full extent that Mortgagors may lawfully so agree, that Mortgagors
will not at any time, insist upon or plead or, in any manner whatsoever, claim
the benefit of any stay, extension or redemption law now or hereafter in force
in order to prevent or hinder the enforcement or foreclosure of this Mortgage
or
the absolute sale of the Mortgaged Property or any portion thereof or the
possession thereof by any purchaser at any sale made pursuant to any provision
hereof or pursuant to the decree of any court of competent jurisdiction; but
Mortgagors, and all who may claim through or under Mortgagors, so far as
Mortgagors or those claiming through or under Mortgagors now or hereafter
lawfully may, hereby waive the benefit of all such laws. Mortgagors
and all who may claim through or under Mortgagors, waive, to the extent that
Mortgagors or those claiming through or under Mortgagors may lawfully do so,
any
and all rights of appraisement and any and all right to have the Mortgaged
Property marshaled upon any foreclosure of the Lien hereof or sold in inverse
order of alienation and agree that any court having jurisdiction to foreclose
such Lien may sell the Mortgaged Property as an entirety. If any law
in this Section 6.6 referred to and now in force, of which Mortgagors or
Mortgagors’ successor or successors might take advantage despite the provisions
hereof, shall hereafter be repealed or cease to be in force, such law shall
not
thereafter be deemed to constitute any part of the contract herein contained
or
to preclude the operation or application of the provisions of this Section
6.6.
6.7. Costs
and Expenses. All reasonable costs, expenses (including
attorneys’ fees) and payments incurred or made by Mortgagee in protecting and
enforcing its rights hereunder shall constitute a demand obligation owing by
Mortgagors to the party incurring such or making such costs, expenses or
payments and shall bear interest at a rate per annum equal to the rate set
forth
in Section 2.2 of the Notes, all of which shall constitute a portion of the
Secured Indebtedness.
6.8. Mineral
Leasing Act. Notwithstanding any other provisions of this Mortgage, any Oil
and Gas Leases covered by this Mortgage which are subject to the Mineral Leasing
Act of 1920, as amended, and the regulations promulgated thereunder, shall
not
be sold or otherwise disposed of to any party other than citizens of the United
States, or to associations of such citizens or to any corporation organized
under the laws of the United States, or any state or territory
thereof that are qualified to own or control interests in such Oil and Gas
Leases under the provisions of such Mineral Leasing Act and regulations, or
to
Persons who may acquire ownership or interest in such Oil and Gas Leases under
the provisions of 30 U.S.C. § 184(g), if applicable, as such Mineral Leasing Act
or regulations are now or may be from time to time in
effect.
-14-
6.9. Operation
of the Mortgaged Property by Mortgagee. Upon the occurrence of an
Event of Default that is continuing and the acceleration of the Secured
Indebtedness under any Credit Agreement, and in addition to all other rights
herein conferred on Mortgagee, Mortgagee (or any Person designated by Mortgagee)
shall, to the extent permitted by applicable law, have the right and power,
but
not the obligation, to enter upon and take possession of any of the Mortgaged
Property and to exclude Mortgagors, and Mortgagors’ agents or servants, wholly
therefrom and to hold, use, administer, manage and operate the same to the
extent that Mortgagors shall be at the time entitled to do any of such things
and in Mortgagors’ place and stead. Mortgagee (or any Person
designated by Mortgagee) may operate the same without any liability or duty
to
Mortgagors in connection with such operations, except to use ordinary care
in
the operation of such Mortgaged Property, and Mortgagee or any Person designated
by Mortgagee shall have the right to collect and receive all Hydrocarbons
produced and sold from the Mortgaged Property, the proceeds of which shall
be
applied to the Secured Indebtedness in such order as Mortgagee shall elect,
to
make repairs, purchase machinery and equipment, conduct workover operations,
drill additional ▇▇▇▇▇ and to exercise every power, right and privilege of
Mortgagors with respect to the Mortgaged Property. When and if such
expenses of such operation and development (including costs of unsuccessful
workover operations or additional ▇▇▇▇▇) have been paid and the Secured
Indebtedness paid and performed in full, such Mortgaged Property shall, if
there
has been no sale or foreclosure thereof, be returned to Mortgagors.
6.10. Additional
Waivers. In order to enforce this Mortgage, Mortgagee or Trustee
shall not be obligated (a) to foreclose any other mortgage or deed of trust
covering Mortgaged Property located in another State, seek a deficiency after
any such foreclosure or otherwise enforce Mortgagee’s rights in any of the other
Mortgaged Property; or (b) to seek an injunction (prohibitive or mandatory),
the
appointment of a receiver, an order modifying any stay in any federal or state
bankruptcy, reorganization or other insolvency proceedings relating to any
of
the Mortgaged Property or any portion thereof, or any other extraordinary
relief. Mortgagors waive, to the fullest extent permitted by law, any
defense Mortgagors may have to any liability hereunder based on Mortgagee’s
failure or refusal to prosecute, or any lack of diligence or delay in
prosecuting, any action or proceeding to enforce any other mortgage or deed
of
trust. If Mortgagee elects to enforce this Mortgage before, or
without, enforcing its rights with respect to any Mortgaged Property covered
by
any other Mortgage, Mortgagors waive, to the fullest extent permitted by law,
any right Mortgagors may have, whether statutory or otherwise, to set off the
value of any other Mortgaged Property, or any portion thereof, against the
Secured Indebtedness. If Mortgagee elects to enforce its mortgages or
deeds of trust covering all or any portion of the Mortgaged Property located
in
other States, or in conjunction with the enforcement of this Mortgage, Mortgagee
is authorized to purchase all or any part of such other Mortgaged Property
at
public or private sale or as otherwise provided by applicable law, and to credit
the purchase price against the Secured Indebtedness in such order or manner
as
Mortgagee determines in its sole
discretion and to preserve Mortgagee’s rights and Liens under this Mortgage for
any portion of the Secured Indebtedness that remains
unpaid. Mortgagors waive to the fullest extent permitted by
applicable law any right to claim or seek any credit against the Secured
Indebtedness in excess of the actual amount bid or received by Mortgagee in
connection with the foreclosure of Mortgagee’s Liens on any of the Mortgaged
Property located in such other States. Mortgagors further agree that
Mortgagee shall not be required (a) to seek or obtain a deficiency judgment
in
or pursuant to any action or proceeding to foreclose this Mortgage as a
condition of later enforcing any mortgage or deed of trust covering Mortgaged
Property located in another State, or (b) to seek or obtain a deficiency
judgment in or pursuant to any action or proceeding to foreclose any such other
mortgage or deed of trust as a condition of later enforcing this
Mortgage. Notwithstanding the foregoing, if Mortgagee in good faith
believes that it may be required either to obtain a deficiency judgment to
enforce this Mortgage after enforcement of a mortgage or deed of trust covering
Mortgaged Property located in another State or to enforce another mortgage
or
deed of trust after enforcement of this Mortgage then Mortgagors agree that
Mortgagee shall be entitled to seek and obtain such a deficiency judgment
notwithstanding any contrary or inconsistent provision contained in any Credit
Agreement.
-15-
ARTICLE
VII
MISCELLANEOUS
7.1. Advances
by Mortgagee. Each and every covenant herein contained shall be
performed and kept by Mortgagors solely at Mortgagors’ expense. If
Mortgagors shall fail to perform or keep any of the covenants of whatsoever
kind
or nature contained in this Mortgage, Mortgagee or any receiver appointed
hereunder may, but shall not be obligated to, make advances to perform the
same
on Mortgagors’ behalf, and Mortgagors hereby agree to repay such sums upon
demand plus interest at a rate per annum equal to the rate of interest set
forth
in Section 2.2 of the Notes. No such advance shall be deemed to
relieve Mortgagors from any Event of Default hereunder.
7.2. Defense
of Claims. Mortgagors will notify Mortgagee, in writing, promptly
of the commencement of any legal proceedings of which Mortgagors have notice
affecting or which could adversely effect the Lien hereof or the status of
or
title to the Mortgaged Property or any material part thereof and will take
such
action, employing attorneys agreeable to Mortgagee, as may be necessary to
preserve Mortgagors’ or Mortgagee’s rights affected thereby; and should
Mortgagors fail or refuse to take any such action, Mortgagee may take such
action on behalf and in the name of Mortgagors and at Mortgagors’ sole cost and
expense. Moreover, Mortgagee may take such independent action in
connection therewith as it may, in its sole discretion, deem proper without any
liability or duty to Mortgagors except to use ordinary care, Mortgagors hereby
agreeing that all sums advanced or all expenses incurred in such actions plus
interest at a rate per annum equal to the rate of interest set forth in Section
2.2 of the Notes will, on demand, be reimbursed to Mortgagee or any receiver
appointed hereunder.
7.3. Defeasance. If
the Secured Indebtedness shall be paid and discharged in full then, and in
that
case only, this Mortgage shall be null and void and the interests of Mortgagor
in the Mortgaged Property shall become wholly clear of the Lien created hereby,
and such Lien shall be released in due course at the cost of
Mortgagors. Mortgagee will, at Mortgagors’ sole expense, execute
and deliver to Mortgagors all releases and other instruments reasonably
requested of the Lien created hereunder. Otherwise, this Mortgage
shall remain and continue in full force and effect.
7.4. Renewals,
Amendments and Other Security. Renewals, refinancings and
extensions of the Secured Indebtedness may be given at any time, and amendments
may be made to this Mortgage, the Credit Agreements, and any other agreements
relating to any part of the Secured Indebtedness, and Mortgagee may take or
may
hold other security for the Secured Indebtedness. Any amendment of
this Mortgage shall be by written instrument and need be executed only by the
party against whom enforcement of such amendment is
asserted. Mortgagee may resort first to such other security or any
part thereof or first to the security herein given or any part thereof, or
from
time to time to either or both, even to the partial or complete abandonment
of
either security, and such action shall not be a waiver of any rights conferred
by this Mortgage, which shall continue as a first Lien upon the Mortgaged
Property not expressly released until all Secured Indebtedness secured hereby
is
fully paid and discharged.
7.5. Instrument
and Assignment, etc. This Mortgage shall be deemed to be and may
be enforced from time to time as an assignment, chattel mortgage, contract,
financing statement, real estate mortgage, pledge, security agreement, or any
combination thereof, and to the extent that any particular jurisdiction wherein
a portion of the Mortgaged Property is situated does not recognize or permit
Mortgagors to grant, bargain, sell, warrant, mortgage, assign, transfer or
convey Mortgagors’ rights, titles and interests to Mortgagee in the manner
herein adopted, with respect to the Mortgaged Property located in such
jurisdiction, Mortgagors do hereby grant, bargain, sell, warrant, mortgage,
assign, transfer and convey unto Mortgagee the Mortgaged Property to secure
the
Secured Indebtedness and the obligations of Mortgagors contained
herein.
7.6. Limitation
on Interest. Regardless of any provision contained in this
Mortgage or any of the Credit Agreements, Mortgagee shall never be entitled
to
receive, collect, or apply, as interest on the Loans, any amount in excess
of
the Maximum Lawful Rate, and in the event Mortgagee ever receives, collects
or
applies as interest any such excess, such amount which would be deemed excessive
interest shall be deemed a partial prepayment of principal and treated hereunder
as such; and if the Loans are paid or discharged in full, any remaining excess
shall promptly be paid to Mortgagors. In determining whether or not
the interest paid or payable under any specific contingency exceeds the Maximum
Lawful Rate, Mortgagors shall, to the extent permitted under applicable law,
(a)
characterize any non-principal payment as an expense, fee or premium rather
than
as interest, (b) exclude voluntary prepayments and the effect thereof, and
(c) amortize, prorate, allocate and spread, in equal parts, the total
amount of the interest throughout the entire contemplated term of the particular
Note, so that the interest rate is the Maximum Lawful Rate throughout the entire
term of such Note; provided, however, that if the unpaid principal balance
thereof is paid and performed in full prior to the end of the full contemplated
term thereof, and if the interest received for the actual period of existence
thereof exceeds the Maximum Lawful Rate, Mortgagee shall refund to Mortgagors
the amount of such excess, and, in such event, Mortgagee shall not be subject
to
any penalties provided by any laws for contracting for, charging, taking,
reserving or receiving interest in excess of the Maximum Lawful
Rate.
-16-
7.7. Unenforceable
or Inapplicable Provisions. If any provision of this Mortgage or
in any of the Credit Agreements is invalid or unenforceable in any jurisdiction,
the other provisions hereof or of any of the Credit Agreements shall remain
in
full force and effect in such jurisdiction, and the remaining provisions hereof
shall be liberally construed in favor of Mortgagee in order to effectuate the
provisions hereof, and the invalidity of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of any such
provision in any other jurisdiction. Any reference herein contained
to statutes or laws of a state in which no part of the Mortgaged Property is
situated shall be deemed inapplicable to, and not used in, the interpretation
hereof.
7.8. Rights
Cumulative. Each and every right, power and remedy herein given
to Mortgagee shall be cumulative and not exclusive; and each and every right,
power and remedy whether specifically herein given or otherwise existing may
be
exercised from time to time and so often and in such order as may be deemed
expedient by Mortgagee, and the exercise, or the beginning of the exercise,
of
any such right, power or remedy shall not be deemed a waiver of the right to
exercise, at the same time and thereafter, any other right, power or
remedy. No delay or omission by Mortgagee in the exercise of any
right, power or remedy shall impair any such right, power or remedy or operate
as a waiver thereof or of any other right, power or remedy then or thereafter
existing.
7.9. Waiver
by Mortgagee. Any and all covenants in this Mortgage may, from
time to time, by instrument in writing signed by Mortgagee be waived to such
extent and in such manner as Mortgagee may desire, but no such waiver shall
ever
affect or impair Mortgagee’s rights and remedies or Liens hereunder, except to
the extent specifically stated in such written instrument.
7.10. Successors
and Assigns. This Mortgage is binding upon Mortgagors, and
Mortgagors’ heirs, devisees, successors, personal and legal representatives and
assigns, and shall inure to the benefit of Mortgagee and Trustee and their
successors, legal representatives and assigns, and the provisions hereof shall
likewise be covenants running with the Lands.
7.11. Article
and Section Headings. The article and section headings in this
Mortgage are inserted for convenience and shall not be considered a part of
this
Mortgage or used in its interpretation.
7.12. Counterparts. This
Mortgage may be executed in any number of counterparts, each of which shall
for
all purposes be deemed to be an original and all of which are identical, except
that, to facilitate recordation in any particular county or parish, counterpart
portions of Exhibit A which describe properties situated in counties or parishes
other than the county or parish in which such counterpart is to be recorded
may
be omitted.
7.13. Special
Filing as Financing Statements. This Mortgage shall likewise be a
security agreement and a financing statement by virtue of Mortgagors, as
debtors, granting to Mortgagee, its successors, legal representatives and
assigns, as secured party, a security interest in all personal property,
as-extracted collateral, fixtures, accounts, contract rights, general
intangibles, inventory, goods, chattel paper, instruments, documents and money
described or referred to in granting clauses (a) through (j) of Article 2 hereof
and all proceeds and products from
the
sale, lease or other disposition of the Mortgaged Property or any part
thereof. The addresses shown in Section 7.14 hereof are the addresses
of Mortgagors and Mortgagee and information concerning the security interest
may
be obtained from Mortgagee at its address. Without in any manner
limiting the generality of any of the foregoing provisions hereof: (a) some
portion of the goods described or to which reference is made herein are or
are
to become fixtures on the Lands described or to which reference is made herein;
(b) the minerals and the like (including oil and gas) included in the Mortgaged
Property and the accounts resulting from the sale thereof will be financed
at
the wellhead(s) or minehead(s) of the well(s) or mine(s) located on the Lands
described or to which reference is made herein; and (c) this Mortgage is to
be
filed of record, among other places, in the real estate records of each county
or parish in which the Lands, or any part thereof, are situated, as a financing
statement, but the failure to do so will not otherwise affect the validity
or
enforceability of this Mortgage. Mortgagors authorize Mortgagee to
file such amendments to this Mortgage, financing statements and amendments
thereto, and continuation statements as Mortgagee deems reasonable or necessary
to perfect and maintain the perfection of the Liens granted herein, including
such Liens with respect to any additions to the Mortgaged Property as provided
in Article 5.
-17-
7.14. Notices. Whenever
this Mortgage requires or permits any consent, approval, notice, request or
demand from one party to another, such consent, approval, notice or demand
shall, unless otherwise required under applicable law, be given in accordance
with the provisions of the Credit Agreements, addressed to the party to be
notified at the address stated below (or such other address as may have been
designated in accordance with the provisions of the Credit
Agreements):
|
MORTGAGORS-DEBTORS
|
MORTGAGEE-SECURED
PARTY
|
|
Attn:
Chief Financial Officer
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
Century
Resources, Inc.
Attn:
Chief Financial Officer
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
|
LV
Administrative Services, Inc.
c/o
Laurus Capital Management, LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
|
|
with
copies to:
|
with
copies to:
|
|
▇▇▇▇▇
▇. ▇▇▇▇, Esquire
The
Loev Law Firm, PC
▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
|
Loeb
& Loeb, LLP
Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
and
to:
▇▇▇▇▇▇▇
▇▇▇▇▇▇ L.L.P.
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
|
7.15. GOVERNING
LAW. THIS MORTGAGE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND THE LAWS OF THE UNITED STATES
OF
AMERICA.
7.16. Future
Advances: Maximum Secured Amount. This Mortgage covers not only
the proceeds of the Loan, but all advances hereafter made by Mortgagee to or
for
the benefit of Mortgagors (the “Future Advances”), including, without
limitation, any amounts advanced by Mortgagee in satisfying, on Mortgagors’
behalf, any of the Secured Indebtedness, and any advances made in accordance
herewith by Mortgagee to protect its security, and any other advances by
Mortgagee. The maximum amount secured hereby may be advanced and
repaid, and again advanced and repaid from time to time, in Mortgagee’ sole and
absolute discretion, and this Mortgage shall become enforceable upon recording
and shall have priority over all other parties whose rights arose after the
recording hereof, with respect to all funds advanced by Mortgagee to Mortgagors,
regardless of whether such funds were advanced before or after the arising
of
such other party’s rights. Nothing herein shall be interpreted as
requiring Mortgagee to make any Future Advances hereunder.
7.17. Recording. Executed
original counterparts of this Mortgage are to be filed for record in the records
of the Counties wherein the Mortgaged Property is situated, and shall have
annexed thereto as Exhibit A, only the portions or divisions containing specific
descriptions of the Mortgaged Property relating to the Lands located in such
Counties. Whenever a recorded counterpart of this Mortgage contains
specific descriptions which are less than all of the descriptions contained
in
any full counterpart lodged with Mortgagee, the omitted descriptions are hereby
included by reference in such recorded counterpart as if each recorded
counterpart conformed to any full counterpart lodged with
Mortgagee.
-18-
ARTICLE
VIII
ASSIGNMENT
OF PRODUCTION
8.1. Assignment. For
the purpose of further securing the Secured Indebtedness and the performance
of
Mortgagors’ covenants hereunder, Mortgagors do hereby TRANSFER, ASSIGN, AND
CONVEY unto Mortgagee any and all of the interests of Mortgagors in and to
the
Hydrocarbons that may be produced from, or attributable to, the Mortgaged
Property on and after
the
date of execution hereof, together with the proceeds of the sale thereof and
attributable thereto. This assignment is made upon the following
terms and conditions: (a) pipeline companies and others purchasing the oil,
gas,
minerals and other substances listed above produced and to be produced from
said
property are hereby authorized and directed to pay directly to Mortgagee the
interests of Mortgagors in and to the proceeds of the sale of the oil, gas,
minerals and other substances listed above produced, to be produced and
attributable to said property and to continue such payments until they have
been
furnished with a release hereof executed in writing by Mortgagee, and the
receipt of Mortgagee for monies so paid to it shall be a full and complete
release, discharge and acquittance to any such pipeline company or other
purchaser, to the extent of all amounts so paid; (b) Mortgagee is hereby
authorized to receive and collect the proceeds of the sale of the oil, gas,
minerals and other substances listed above assigned to it hereunder and to
apply
the funds so received first toward the payment of the expenses, if any, incurred
in the collection thereof then toward the payment of the Secured Indebtedness,
any balance remaining after the full and final payment of the Secured
Indebtedness to be held subject to the order of Mortgagors; (c) Mortgagee shall
have the right, at its sole option, at any time, and from time to time, to
release to, or on the order of, Mortgagors all or any portion of the funds
assigned to Mortgagee hereunder, and no such releases shall affect or impair
the
Lien of this Mortgage or the validity and effect of the assignment contained
in
this Article 8; (d) Mortgagee shall never be under any obligation to enforce
the
collection of the funds assigned to it hereunder, nor shall it ever be liable
for failure to exercise diligence in the collection of such funds, but it shall
only be accountable for the sums that it shall actually receive; (e) Mortgagors
covenant to cause all pipeline companies or other purchasers of the oil, gas,
minerals and other substances listed above produced from and attributable to
said property to pay promptly to Mortgagee, at the office of Mortgagee at the
address of Mortgagee stated above, the interests of Mortgagors in and to the
proceeds of the sale thereof; and (f) upon the full and final payment of the
Secured Indebtedness, Mortgagee, at the request of Mortgagors, at Mortgagors’
sole cost and expense, shall execute and deliver to Mortgagors a reassignment
hereof, without recourse, representations or
warranties. Notwithstanding the foregoing provisions of this Section
8.1, so long as no Event of Default has occurred and shall be continuing,
Mortgagors may continue to receive from the purchasers of production all such
Hydrocarbons and proceeds of the sale thereof, subject, however, to the Liens
created under this Mortgage. If an Event of Default has occurred and
is continuing, Mortgagee may exercise all rights and remedies granted hereunder,
including, without limitation, the right to obtain possession of all
Hydrocarbons and proceeds of the sale thereof then held by Mortgagors or to
receive directly from the purchasers all other Hydrocarbons and proceeds of
the
sale thereof.
8.2. Power
of Attorney. In consideration of the Loans evidenced by the
Notes, Mortgagors hereby designate and appoint Mortgagee as Mortgagors’ true and
lawful agent and attorney-in-fact (with full power of substitution, either
generally or for such limited periods or purposes as Mortgagee may, from time
to
time, prescribe) with full power and authority for and on behalf and in the
name
of Mortgagors upon the occurrence of an Event of Default that is continuing,
to
execute, acknowledge and deliver all such division orders, transfer orders,
certificates and any and all other documents of every nature as may, from time
to time, be necessary or proper to effectuate the intent and purpose of the
assignment contained in Section 8.1 hereof. Mortgagors shall be
bound thereby as fully and effectively as if Mortgagors had personally executed,
acknowledged and delivered any such division order, transfer order, certificate
or other documents. The powers and authorities herein conferred on
Mortgagee may be exercised by any authorized officer or director of
Mortgagee. The power of attorney conferred by this Section 8.2 is
granted for a valuable consideration and hence is coupled with an interest
and
is irrevocable so long as the Secured Indebtedness, or any part thereof, shall
remain unpaid. All Persons dealing with Mortgagee, any officer or
director thereof above designated or any substitute thereof shall be fully
protected in treating the powers and authorizations conferred by this Section
8.2 as continuing in full force and effect until advised by Mortgagee that
all
of the Secured Indebtedness is fully and finally paid.
8.3. Amendment
and Restatement. As of the date of this Mortgage, the terms,
conditions, covenants, agreements, representations and warranties contained
in
the Original Mortgage shall be deemed amended and restated in their entirety
as
set forth in this Mortgage and the Original Mortgage shall be consolidated
with
and into and superseded by this Mortgage; provided, however, that nothing
contained in this Mortgage shall impair, limit or affect the liens or security
interests heretofore granted, pledged and/or assigned to Mortgagee as security
for the Secured Indebtedness under the Original Mortgage.
[Signature
Page to Follow]
-19-
IN
WITNESS WHEREOF, Mortgagors, acting by and through their duly authorized
officers have executed this Mortgage on the date of its
acknowledgment.
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
President
and Chief Executive
Officer
CENTURY
RESOURCES, INC.
By: /s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
President
and Chief Executive
Officer
The
addresses of Mortgagors are:
▇▇▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Century
Resources, Inc.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
This
Mortgage was prepared by, and recorded counterparts should be returned
to:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇ L.L.P.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
-▇▇-
▇▇▇
▇▇▇▇▇
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇
BEFORE
ME, the undersigned authority, on this day personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, President and Chief Executive Officer of New Century Energy
Corp., a Colorado corporation, and known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that
he
executed the same for the purposes and considerations therein expressed, as
the
act and deed of such corporation and in the capacity therein
stated.
GIVEN
UNDER MY HAND AND SEAL OF OFFICE this 30th day of November,
2007.
/s/
▇▇▇▇▇▇ ▇▇▇▇
Notary
Public, State of Texas
THE
STATE
OF
TEXAS
COUNTY
OF
▇▇▇▇▇▇
BEFORE
ME, the undersigned authority, on this day personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, President and Chief Executive Officer of Century Resources,
Inc., a Delaware corporation, and known to me to
be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and considerations
therein expressed, as the act and deed of such corporation and in the capacity
therein stated.
GIVEN
UNDER MY HAND AND SEAL OF OFFICE this 30th day of November,
2007.
/s/
▇▇▇▇▇▇ ▇▇▇▇
Notary
Public, State of Texas
-21-
Schedule
1
to
AMENDED
AND RESTATED MORTGAGE, DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT
AND ASSIGNMENT OF PRODUCTION
NEW
CENTURY ENERGY CORP. AND CENTURY RESOURCES, INC.
The
Original Mortgage
|
Mortgage,
Deed of Trust, Security Agreement, Financing Statement and Assignment
of
Production, dated as of November 20, 2007, from New Century Energy
Corp.
and Century Resources, Inc., as Mortgagors, to ▇▇▇▇▇▇ Grin, as Trustee,
for the benefit of LV Administrative Services, Inc., as administrative
and
collateral agent for Valens U.S. SPV I, LLC, and Valens Offshore
SPV II,
Corp., collectively as Mortgagee, filed and recorded as
follows:
|
|
|
JURISDICTION
|
FILING
DATA
|
|
Goliad
County
|
Filed
on November 20, 2007, under Instrument No. 00120746, Volume 302 Page
421
|
|
▇▇▇
▇▇▇▇ County
|
Filed
on November 20, 2007
|
|
Matagorda
County
|
Filed
on November 20, 2007, under Instrument ▇▇. ▇▇▇▇▇▇
|
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
Filed
on November 20, 2007, under Instrument No. 63226, Volume 176
Page 223
|
|
▇▇▇▇▇▇▇
County
|
Filed
on November 20, 2007, under Instrument No. 277730, Official
Records
|
-22-
Exhibit
A
to
AMENDED
AND RESTATED MORTGAGE, DEED OF TRUST, SECURITY AGREEMENT, FINANCING
STATEMENT AND ASSIGNMENT OF PRODUCTION
NEW
CENTURY ENERGY CORP. AND CENTURY RESOURCES, INC.
Schedule
of Leases and Rights-of-Way
[CONFIDENTIAL
INFORMATION REMOVED]
Exhibit
B
to
AMENDED
AND RESTATED MORTGAGE, DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT
AND ASSIGNMENT OF PRODUCTION
NEW
CENTURY ENERGY CORP. AND CENTURY RESOURCES, INC.
Senior
Liens
|
1.
|
Mortgage,
Deed of Trust, Security Agreement, Financing Statement and Assignment
of
Production, from New Century Energy Corp. and Century Resources,
Inc., as
Mortgagors, to ▇▇▇▇▇▇ Grin, as Trustee, for the benefit of Laurus
Master
Fund, Ltd., as Mortgagee, dated June 30, 2005, filed and recorded
as
follows:
|
|
|
JURISDICTION
|
FILING
DATA
|
|
|
Matagorda
County
|
Filed
on July 5, 2005, under Instrument No. 055103, Official
Records
|
|
|
▇▇▇▇▇▇▇
County
|
Filed
on July 5, 2005, under Instrument No. 255765, Volume 614 Page 333,
Official Records
|
|
|
2.
|
UCC-1
Financing Statement reflecting New Century Energy Corp. and Century
Resources, Inc., as Debtors, and Laurus Master Fund, Ltd., as Secured
Party, relating to the Mortgage dated as of June 30, 2005, and covering
fixtures and as-extracted collateral, filed and recorded as
follows:
|
|
|
JURISDICTION
|
FILING
DATA
|
|
|
Matagorda
County
|
Filed
on July 5, 2005, under Instrument No. 055104, Official
Records
|
|
|
▇▇▇▇▇▇▇
County
|
Filed
on July 5, 2005, under Instrument No. 255766, Volume 614 Page 358,
Official Records
|
|
|
3.
|
Mortgage,
Deed of Trust, Security Agreement, Financing Statement and Assignment
of
Production from New Century Energy Corp. and Century Resources, Inc.,
as
Mortgagors, to ▇▇▇▇▇▇ Grin, as Trustee, for the benefit of Laurus
Master
Fund, Ltd., as Mortgagee, dated as of September 19, 2005, filed and
recorded as follows:
|
|
|
JURISDICTION
|
FILING
DATA
|
|
|
Matagorda
County
|
Filed
on September 20, 2005, under Instrument No. 057328, Official
Records
|
|
|
▇▇▇▇▇▇▇▇
County
|
Filed
on September 20, 2005, Volume 163 Page 276
|
|
|
▇▇▇▇▇▇▇
County
|
Filed
on September 21, 2005, under Instrument No. 257742, Volume 624
Page 304, Official Records
|
|
-32-
|
4.
|
UCC-1
Financing Statement reflecting New Century Energy Corp. and Century
Resources, Inc., as Debtors, and Laurus Master Fund, Ltd., as Secured
Party, relating to the Mortgage dated as of September 19, 2005, and
covering fixtures and as-extracted collateral, filed and recorded
as
follows:
|
|
|
JURISDICTION
|
FILING
DATA
|
|
|
Matagorda
County
|
Filed
on September 20, 2005, under Instrument No. 057329, Official
Records
|
|
|
▇▇▇▇▇▇▇▇
County
|
Filed
on September 20, 2005, Volume 163 Page 308
|
|
|
▇▇▇▇▇▇▇
County
|
Filed
on September 21, 2005, under Instrument No. 257743, Volume 624
Page 330, Official Records
|
|
|
5.
|
Amended
and Restated Mortgage, Deed of Trust, Security Agreement, Financing
Statement and Assignment of Production from New Century Energy Corp.
and
Century Resources, Inc., as Mortgagors, to ▇▇▇▇▇▇ Grin, as Trustee,
for
the benefit of Laurus Master Fund, Ltd., as Mortgagee, dated April
26,
2006, filed and recorded as follows:
|
|
|
JURISDICTION
|
FILING
DATA
|
|
|
Matagorda
County
|
Filed
on April 27, 2006, under Instrument No. 063043, Official
Records
|
|
|
▇▇▇▇▇▇▇▇
County
|
Filed
on April 27, 2006, Volume 168 Page 336
|
|
|
▇▇▇▇▇▇▇
County
|
Filed
on April 27, 2006, under Instrument No. 263022, Volume 650 Page 320,
Official Records
|
|
|
6.
|
UCC-1
Financing Statement reflecting New Century Energy Corp. and Century
Resources, Inc., as Debtors, and Laurus Master Fund, Ltd., as Secured
Party, relating to the Mortgage dated April 26, 2006, and covering
fixtures and as-extracted collateral, filed and recorded as
follows:
|
|
|
JURISDICTION
|
FILING
DATA
|
|
|
TEXAS
|
||
|
Matagorda
County
|
Filed
on April 28, 2006, under Instrument ▇▇. ▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
Filed
on April 28, 2006, Volume 168 Page 413
|
|
|
▇▇▇▇▇▇▇
County
|
Filed
on April 28, 2006, under Instrument No. 263056, Volume 650 Page 481,
Official Records
|
|
|
7.
|
UCC-1
Financing Statement reflecting New Century Energy Corp. and Century
Resources, Inc., as Debtors, and Laurus Master Fund, Ltd., as Secured
Party, covering fixtures and as-extracted collateral, filed and recorded
as follows:
|
|
|
JURISDICTION
|
FILING
DATA
|
|
|
TEXAS
|
||
|
Matagorda
County
|
Filed
on January 5, 2007, under Instrument No. 070109, Official
Records
|
|
|
▇▇▇▇▇▇▇▇
County
|
Filed
on January 9, 2007, Volume 173 Page 13
|
|
|
▇▇▇▇▇▇▇
County
|
Filed
on January 5, 2007, under Instrument No. 269469, Volume 683 Page
99,
Official Records
|
|
-33-