Remedies of Grantee. (a) At any time and from time to time until the termination of the Production Payment, if Grantor shall fail to perform or observe any of the covenants or agreements provided herein or in the Conveyance to be performed or observed by Grantor, Grantee (or Grantee's designee), in addition to Grantee's right to recover damages and all other remedies available to Grantee at law or in equity, may, if such failure shall continue unremedied after five (5) business days after written notice thereof is delivered to Grantor: (i) perform (or cause to be performed) on behalf of and at the expense of Grantor, any obligation which has not been performed or observed by Grantor, in which event Grantee may advance funds and incur and pay bills for expenses for such purpose and shall be reimbursed out of the proceeds attributable to Grantor's interest in the Subject Interests, together with interest on the unpaid amounts thereof at the rate of interest publicly announced by Citibank, N.A. as its prime or base rate plus five percent (5%), but not to exceed the maximum nonusurious rate permitted by applicable law (the "Agreed Rate"), from the date of such advance or payment by Grantee until the date reimbursed by Grantor. Grantor and Grantee agree that none of the terms and/or provisions contained herein or in the Conveyance 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 charged by applicable law from time to time in effect. The parties to this agreement or the Conveyance shall never be required to pay interest in excess of the maximum amount that may be lawfully charged under applicable law from time to time in effect. Notwithstanding any provision of the Conveyance or this Agreement to the contrary, if Grantee advances any funds on behalf of Grantor under the terms of this Section 15., in addition to Grantee having a right to be reimbursed for such costs out of the proceeds attributable to Grantor's interest in the Subject Interests, Grantee shall have the right to be reimbursed for all such funds, together with the Agreed Rate, out of any proceeds attributable to the interests of Grantor arising from or out of any written contracts between Grantor and any third party, including, but not limited to (i) any fees or revenues payable to Grantor as gathering, transportation and/or pipeline operator fees for any gas or liquids or liquefiable Hydrocarbons produced from the Subject Lands or any lands contiguous to the Subject Lands; (ii) any fees or revenues payable to Grantor arising from or out of the treating, compressing, dehydrating and/or processing of Hydrocarbons produced from the Subject Lands or any lands contiguous to the Subject Lands; (iii) any fees or revenues payable to Grantor from the sale of any Subject Xxxxx and/or Facilities; and (iv) any proceeds resulting from court judgments, arbitration awards and/or settlement of claims in favor of Grantor arising from or out of any contracts relating to or affecting the Subject Lands, Leases and/or the Subject Interests, and Grantee shall have the right to receive all of such proceeds from Grantor, or directly from any applicable third parties, and to apply any or all of such funds against such advanced funds; (ii) upon written notice to Grantor, succeed to and exercise (or appoint Grantee's designee to succeed to and exercise) any and all rights of the Grantor with respect to the possession, operation and development of the Subject Interests and Subject Xxxxx, and use in connection therewith all property of Grantor as may be useful or appropriate for the production, treating, storing, gathering, transporting, compressing and/or dehydrating of Hydrocarbons or other minerals (including but not limited to the Facilities as defined in the Conveyance), and all other properties and rights of a similar character then held by Grantor and situated upon or useful or held for future use in connection with the exploration, development or operation of the Subject Interests and Subject Xxxxx for the production, treating, storing, gathering, transporting, compressing and/or dehydrating of Hydrocarbons or other minerals, and the Grantee shall have the right on behalf and for the account of Grantor, to sell and utilize (a) all of the Hydrocarbons attributable to Grantor's interest in the Subject Interests and (b) any or all of the Facilities not essential to production, and to receive from the purchasers of the Hydrocarbons and/or the Facilities all proceeds attributable thereto, and to apply the proceeds thereof to the costs and expenses of the operation and development of the same as reimbursement to Grantee for any amounts so expended by Grantee; (iii) pay (or cause to be paid) any of the costs, expenses, Taxes (which Taxes are not being contested in good faith by the Grantor) or other amounts which the Grantor has agreed to pay under the Conveyance and/or this Agreement which have become delinquent, and to be reimbursed out of the proceeds of the Hydrocarbons attributable to the Grantor's interest in the Subject Interests, together with interest on the unliquidated amounts thereof, at the Agreed Rate from the date of such payment; and/or (iv) apply to a court of equity for the specific performance or observance of any such covenant or condition and in aid of the execution of any power herein granted and for the appointment of a receiver of the Subject Lands, Leases and/or Subject Interests and the Hydrocarbons produced therefrom.
Appears in 2 contracts
Samples: Production Agreement, Production Agreement (Adino Energy Corp)
Remedies of Grantee. (a) At any time and from time to time until the termination of the Production Payment, if Grantor shall fail to perform or observe any of the covenants or agreements provided herein herein, the Purchase Agreement or in the Conveyance to be performed or observed by Grantor, Grantee (or Grantee's designee), in addition to Grantee's right to recover damages and all other remedies available to Grantee at law or in equity, may, if such failure shall continue unremedied after five (5) business 45 days after written notice thereof is delivered to Grantor:
(i) perform (or cause not to be performed) performed on behalf of and at the expense of Grantor, any obligation which has not been performed or observed by Grantor, in which event Grantee may advance funds and incur and pay bills for expenses for such purpose and shall be reimbursed out of the proceeds attributable to Grantor's interest in the Subject Interests, together with interest on the unpaid amounts thereof at the highest rate of interest publicly announced by Citibank, N.A. as its prime or base rate plus five percent (5%), but not to exceed the maximum nonusurious rate permitted by allowed under applicable law (the "Agreed Rate"), from the date of such advance or payment by Grantee until the date reimbursed by Grantor. Grantor and Grantee agree that none of the terms and/or provisions contained herein or in the Conveyance 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 charged by applicable law from time to time in effect. The parties to this agreement or the Conveyance shall never be required to pay interest in excess of the maximum amount that may be lawfully charged under applicable law from time to time in effect. Notwithstanding any provision of the Conveyance or this Agreement to the contrary, if Grantee advances any funds on behalf of Grantor under the terms of this Section 15., in addition to Grantee having a right to be reimbursed for such costs out of the proceeds attributable to Grantor's interest in the Subject Interests, Grantee shall have the right to be reimbursed for all such funds, together with the Agreed Rate, out of any proceeds attributable to the interests of Grantor arising from or out of any written contracts between Grantor and any third party, including, but not limited to (i) any fees or revenues payable to Grantor as gathering, transportation and/or pipeline operator fees for any gas or liquids or liquefiable Hydrocarbons produced from the Subject Lands or any lands contiguous to the Subject Lands; (ii) any fees or revenues payable to Grantor arising from or out of the treating, compressing, dehydrating and/or processing of Hydrocarbons produced from the Subject Lands or any lands contiguous to the Subject Lands; (iii) any fees or revenues payable to Grantor from the sale of any Subject Xxxxx and/or Facilities; and (iv) any proceeds resulting from court judgments, arbitration awards and/or settlement of claims in favor of Grantor arising from or out of any contracts relating to or affecting the Subject Lands, Leases and/or the Subject Interests, and Grantee shall have the right to receive all of such proceeds from Grantor, or directly from any applicable third parties, and to apply any or all of such funds against such advanced funds;
(ii) upon written notice to Grantor, Grantor and only as to a default in performance of obligations of Grantor other than those existing under Section 9 succeed to and exercise (or appoint Grantee's designee to succeed to and exercise) any and all rights of the Grantor with respect to as the possession, operation and development owner of the Subject Interests and Subject XxxxxInterests, and use in connection therewith all property of Grantor as may be useful or appropriate for the production, treating, storing, gathering, transporting, compressing and/or dehydrating storing or transportation of Hydrocarbons or other minerals (including but not limited Oil prior to delivery to the Facilities as defined in the Conveyance)Delivery Points, and all other properties and rights of a similar character then held by Grantor and situated upon or useful or held for future use in connection with the exploration, development or operation of the Subject Interests and Subject Xxxxx for the production, treating, storing, gathering, transporting, compressing and/or dehydrating or transportation of Hydrocarbons or other mineralsOil prior to delivery to the Delivery Points and Grantee, and the Grantee shall have the right right, on behalf and for the account of Grantor, to sell and utilize (a) all of the Hydrocarbons Oil attributable to Grantor's interest in the Subject Interests and (b) any or all of the Facilities not essential to production, and to receive from the purchasers of the Hydrocarbons and/or the Facilities all proceeds attributable thereto, and to apply the proceeds thereof to the costs and expenses of the operation and development of the same as reimbursement to reimburse Grantee for any amounts so expended by Grantee, and Grantor shall reimburse Grantee upon demand for all amounts so expended by Grantee, to the extent such amounts are not paid out of Grantor's interest in the proceeds of such Oil, together with interest on such amounts at the highest rate allowed under applicable law from the date expended to the date repaid;
(iii) pay (or cause to be paid) any of the costs, expenses, Taxes (which Taxes are not being contested in good faith by the Grantor) or other amounts which the Grantor has agreed to pay under the Conveyance and/or this Agreement which have become delinquent, and to be reimbursed out of the proceeds of the Hydrocarbons Oil attributable to the Grantor's interest in the Subject Interests, together with interest on the unliquidated amounts thereof, thereof at the Agreed Rate highest rate allowed under applicable law from the date of such paymentpayment by Grantee to the date repaid; and/or
(iv) apply to a court of equity for the specific performance or observance of any such covenant or condition and in aid of the execution of any power herein granted and for the appointment of a receiver of the Subject Lands, Leases and/or Subject Interests and the Hydrocarbons Oil produced therefrom. Grantee's exercise of the remedies provided in subclauses (i) through (iii) above shall be made in accordance with any and all obligations, duties or responsibilities of Grantor under any agreement then in effect and covering or affecting the Subject Interests, including, without limitation, the obligations and duties of Grantor under any of the Leases. Grantee shall promptly advise Grantor in writing of any actions it may take according to this Section 11. Following any default by Grantor in the performance or payment of the obligations outstanding hereunder and under the Purchase Agreement, and the passage of 45 days of the giving by Grantee to Grantor of notice of such default without same having been cured by Grantor, any purchaser of Oil from or attributable to the Subject Interests is authorized and directed to make payment to Grantee out of the Oil attributable to Grantor's interest in the Subject Interests for any amount which Grantee shall certify to such purchaser that it has paid and which Grantor is obligated to pay hereunder. Any insurer is authorized and directed to make payment to Grantee of proceeds of insurance described in Section 6(a) for any amount which Grantee shall certify to such insurer that it has expended in redrilling, rebuilding, reconstructing, repairing, restoring or replacing damaged or lost property which Grantor has failed or refused to do promptly pursuant to Section 6(b). Grantor hereby designates Grantee as its agent and attorney in fact to execute any instruments which may be necessary or appropriate, including, without limitation, designations of operator, to enable Grantee to exercise its rights under this Section 11. This designation and appointment shall be irrevocable as long as the Production Payment remains in effect.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Mercury Montana Inc), Production and Delivery Agreement (Mercury Montana Inc)
Remedies of Grantee. (a) At Upon an Event of Default under this Deed of Trust, the Note or any time other document or instrument now or hereafter additionally securing the Obligations, Grantee may, at its option and from time without notice or demand to time until the termination Grantor, take immediate possession of the Production PaymentMortgaged Premises and Chattel Property, if Grantor shall fail to with or without appointment of a receiver or application thereof, perform or observe cause to be performed any and all of the covenants work and labor necessary to complete any improvements, being constructed on the Mortgaged Premises substantially in accordance with the plans and specifications thereof and may employ watchmen to protect the Mortgaged Premises from depreciation or agreements provided herein injury. Grantee, at its option, may also use all drawings, specifications, computations, sketches, test data, survey results, models, photographs, renderings and other material relating to any such improvements. Grantee may, at its option, advance the proceeds of the loan evidenced by the Note or any part thereof to any contractor, subcontractor or any person furnishing labor, material, fixtures or equipment in connection with any such improvements on the Mortgaged Premises. In the event the improvements have been completed at the time Grantee takes possession of them, Grantee may either sell the same either in its own name or in the Conveyance to be performed or observed by name of Grantor, and receive the issues, sale proceeds and profits thereof, as the case may be, and apply the same, after payment of all necessary charges and expenses including commissions for marketing, collection or management services, to the indebtedness secured by this Deed of Trust. Said issues, sale proceeds and profits, as the case may be, are hereby assigned to Grantee (and Grantor hereby grants Grantee a security interest in all of Grantor's right, title and interest in the same. To implement the rights of Grantee hereunder, Grantor hereby irrevocably appoints Grantee its true and lawful attorney‑in‑fact, with full power of substitution in the premises and upon the occurrence of an Event of Default to complete any improvements being constructed on the Mortgaged Premises, to deal with any contractor, architect, subcontractor or Grantee's designee), in addition to Grantee's right to recover damages engineer for any and all other remedies available purposes in connection therewith in the name of Grantor, to pay all bills and expenses incurred thereby and Grantor hereby empowers Grantee at law or in equity, may, if such failure shall continue unremedied after five (5) business days after written notice thereof is delivered as attorney‑in‑fact to Grantoract for Grantor as follows:
(i) perform (or cause to be performed) on behalf of and at the expense use any funds of Grantor, including the balance of the loan proceeds, as the same is evidenced by the Note, for the purpose of completing any obligation which has not been performed or observed by Grantorimprovements on the Mortgaged Premises; (ii) to complete such improvements substantially in accordance with any plans and specifications thereof and in connection therewith to employ such contractors, in which event Grantee may advance funds agents, architects and incur and pay bills for expenses for such purpose and inspectors as shall be reimbursed out of the proceeds attributable required to Grantor's interest in the Subject Interests, together with interest on the unpaid amounts thereof at the rate of interest publicly announced by Citibank, N.A. as its prime or base rate plus five percent so do; (5%), but not to exceed the maximum nonusurious rate permitted by applicable law (the "Agreed Rate"), from the date of such advance or payment by Grantee until the date reimbursed by Grantor. Grantor and Grantee agree that none of the terms and/or provisions contained herein or in the Conveyance shall ever be construed to create a contract iii) to pay, settle or compromise all existing bills and claims which may be or become liens against the Mortgaged Premises or improvements thereon, or as may be necessary or desirable for completion of such improvements or for the useclearance of title to the Mortgaged Premises; (iv) to execute all applications, forbearance certificates or detention instruments in the name of moneyGrantor which may be required by any governmental authority or contract, and to do any and every act which Grantor might do in its own behalf; (v) to manage, market, and let, as the case may be, the Mortgaged Premises and the improvements thereon and to collect any management fees, sales proceeds, issues or profits, as the case may be, with full power to bring suit for the collection of the same; and (vi) to do and perform all and every act necessary to be done to effect those rights set forth in (i) through (v) immediately preceding. It is further understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Grantee, as attorney‑in‑fact of Grantor, shall also have the power to pay any amounts of costs which are to be (but are not) paid by Grantor hereunder or in connection with the construction of any improvements on the Mortgaged Premises and to prosecute and defend any actions and proceedings in connection with any such improvements and the Mortgaged Premises, including actions by or against any contractor or architect, and to take such action and require such performance under any surety bond or other obligation or to execute in the name of Grantor such further bonds or obligations as may be reasonably required in connection with the work. Grantor hereby assigns and quit claims to Grantee all sums not advanced under the Note conditioned upon the use of such sums in trust for the completion of any improvements being constructed on the Mortgaged Premises, such assignment to become effective only upon an Event of Default. Any amounts paid or advanced by Grantee in excess of the maximum amount of interest permitted to obligation evidenced by the Note shall, nevertheless, be charged by applicable law from time to time in effect. The parties to this agreement or the Conveyance shall never be required to pay interest in excess considered part of the maximum amount that may obligations and shall be lawfully charged under applicable law from time secured hereby to time in effectthe same extent said proceeds are secured. Notwithstanding any provision of the Conveyance or this Agreement anything contained herein to the contrary, if Grantee advances any funds on behalf the power of Grantor under the terms of attorney granted pursuant to this Section 15., in addition to Grantee having a right to be reimbursed for such costs out of the proceeds attributable to Grantor's interest in the Subject Interests, Grantee shall have the right to be reimbursed for all such funds, together with the Agreed Rate, out of any proceeds attributable to the interests of Grantor arising from or out of any written contracts between Grantor paragraph and any third party, including, but not limited to (i) any fees or revenues payable to Grantor as gathering, transportation and/or pipeline operator fees for any gas or liquids or liquefiable Hydrocarbons produced from the Subject Lands or any lands contiguous to the Subject Lands; (ii) any fees or revenues payable to Grantor arising from or out of the treating, compressing, dehydrating and/or processing of Hydrocarbons produced from the Subject Lands or any lands contiguous to the Subject Lands; (iii) any fees or revenues payable to Grantor from the sale of any Subject Xxxxx and/or Facilities; and (iv) any proceeds resulting from court judgments, arbitration awards and/or settlement of claims in favor of Grantor arising from or out of any contracts relating to or affecting the Subject Lands, Leases and/or the Subject Interests, and Grantee shall have the right to receive all of such proceeds from Grantor, or directly from any applicable third parties, and to apply any or all of such funds against such advanced funds;
(ii) upon written notice to Grantor, succeed to and exercise (or appoint Grantee's designee to succeed to and exercise) any and all rights of the Grantor with respect to the possession, operation and development of the Subject Interests and Subject Xxxxx, and use assignments made in connection therewith all property of Grantor herewith shall not be construed as may be useful an obligation upon Grantee to complete any such improvements or appropriate for make any repairs upon the production, treating, storing, gathering, transporting, compressing and/or dehydrating of Hydrocarbons Mortgaged Premises or other minerals (including but not limited to the Facilities act as defined in the Conveyance), and all other properties and rights of a similar character then held by Grantor and situated upon or useful or held for future use in connection with the exploration, development or operation of the Subject Interests and Subject Xxxxx for the production, treating, storing, gathering, transporting, compressing and/or dehydrating of Hydrocarbons or other mineralssuch attorney‑in‑fact, and the Grantee Grantee, and its agent, shall have not be liable for other than active malfeasance in the right on behalf and for the account event of Grantor, to sell and utilize (a) all its actions hereunder or its management or possession of the Hydrocarbons attributable to Grantor's interest in the Subject Interests and (b) any or all of the Facilities not essential to productionMortgaged Premises. Moreover, and to receive from the purchasers of the Hydrocarbons and/or the Facilities all proceeds attributable thereto, and to apply the proceeds thereof to the costs and expenses of the operation and development of the same as reimbursement to Grantee for any amounts so expended by Grantee;
(iii) pay (or cause to be paid) any of the costs, expenses, Taxes (which Taxes are not being contested in good faith by the Grantor) or other amounts which the Grantor has agreed to pay under the Conveyance and/or this Agreement which have become delinquent, and to be reimbursed out of the proceeds of the Hydrocarbons attributable to the Grantor's interest in the Subject Interests, together with interest no failure on the unliquidated amounts part of Grantee to exercise and no delay in exercising any rights hereunder shall operate as a waiver thereof, at the Agreed Rate from the date of such payment; and/or
(iv) apply to a court of equity for the specific performance nor shall any single or observance partial exercise by Grantee of any such covenant right hereunder preclude any further exercise thereof, or condition and in aid of the execution exercise of any power herein other right. Each and every right granted hereunder or in connection herewith or to which Grantee is entitled in law or equity shall be deemed cumulative and for the appointment of a receiver of the Subject Lands, Leases and/or Subject Interests and the Hydrocarbons produced therefrommay be exercised from time to time.
Appears in 2 contracts
Samples: Deed of Trust, Deed of Trust
Remedies of Grantee. (a) At any time and from time to time until the termination of the Production Payment, if Grantor shall fail to perform or observe any of the covenants or agreements provided herein or in the Conveyance to be performed or observed by Grantor, Grantee (or Grantee's designee), in addition to Grantee's right to recover damages and all other remedies available to Grantee at law or in equity, may, if such failure shall continue unremedied after five (5) business days after written notice thereof is delivered to Grantor:
(i) perform (or cause to be performed) on behalf of and at the expense of Grantor, any obligation which has not been performed or observed by Grantor, in which event Grantee may advance funds and incur and pay bills for expenses for such purpose and shall be reimbursed out of the proceeds attributable to Grantor's interest in the Subject Interests, together with interest on the unpaid amounts thereof at the rate of interest publicly announced by Citibank, N.A. as its prime or base rate plus five percent (5%), but not to exceed the maximum nonusurious rate permitted by applicable law (the "Agreed Rate"), from the date of such advance or payment by Grantee until the date reimbursed by Grantor. Grantor and Grantee agree that none of the terms and/or provisions contained herein or in the Conveyance 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 charged by applicable law from time to time in effect. The parties to this agreement or the Conveyance shall never be required to pay interest in excess of the maximum amount that may be lawfully charged under applicable law from time to time in effect. Notwithstanding any provision of the Conveyance or this Agreement to the contrary, if Grantee advances any funds on behalf of Grantor under the terms of this Section 15., in addition to Grantee having a right to be reimbursed for such costs out of the proceeds attributable to Grantor's interest in the Subject Interests, Grantee shall have the right to be reimbursed for all such funds, together with the Agreed Rate, out of any proceeds attributable to the interests of Grantor arising from or out of any written contracts between Grantor and any third party, including, but not limited to (i) any fees or revenues payable to Grantor as gathering, transportation and/or pipeline operator fees for any gas or liquids or liquefiable Hydrocarbons produced from the Subject Lands or any lands contiguous to the Subject Lands; (ii) any fees or revenues payable to Grantor arising from or out of the treating, compressing, dehydrating and/or processing of Hydrocarbons produced from the Subject Lands or any lands contiguous to the Subject Lands; (iii) any fees or revenues payable to Grantor from the sale of any Subject Xxxxx and/or Facilities; and (iv) any proceeds resulting from court judgments, arbitration awards and/or settlement of claims in favor of Grantor arising from or out of any contracts relating to or affecting the Subject Lands, Leases and/or the Subject Interests, and Grantee shall have the right to receive all of such proceeds from Grantor, or directly from any applicable third parties, and to apply any or all of such funds against such advanced funds;
(ii) upon written notice to Grantor, succeed to and exercise (or appoint Grantee's designee to succeed to and exercise) any and all rights of the Grantor with respect to the possession, operation and development of the Subject Interests and Subject Xxxxx, and use in connection therewith all property of Grantor as may be useful or appropriate for the production, treating, storing, gathering, transporting, compressing and/or dehydrating of Hydrocarbons or other minerals (including but not limited to the Facilities as defined in the Conveyance), and all other properties and rights of a similar character then held by Grantor and situated upon or useful or held for future use in connection with the exploration, development or operation of the Subject Interests and Subject Xxxxx for the production, treating, storing, gathering, transporting, compressing and/or dehydrating of Hydrocarbons or other minerals, and the Grantee shall have the right on behalf and for the account of Grantor, to sell and utilize (a) all of the Hydrocarbons attributable to Grantor's interest in the Subject Interests and (b) any or all of the Facilities not essential to production, and to receive from the purchasers of the Hydrocarbons and/or the Facilities all proceeds attributable thereto, and to apply the proceeds thereof to the costs and expenses of the operation and development of the same as reimbursement to Grantee for any amounts so expended by Grantee;
(iii) pay (or cause to be paid) any of the costs, expenses, Taxes (which Taxes are not being contested in good faith by the Grantor) or other amounts which the Grantor has agreed to pay under the Conveyance and/or this Agreement which have become delinquent, and to be reimbursed out of the proceeds of the Hydrocarbons attributable to the Grantor's interest in the Subject Interests, together with interest on the unliquidated amounts thereof, at the Agreed Rate from the date of such payment; and/or
(iv) apply to a court of equity for the specific performance or observance of any such covenant or condition and in aid of the execution of any power herein granted and for the appointment of a receiver of the Subject Lands, Leases and/or Subject Interests and the Hydrocarbons produced therefrom.
(b) Any purchaser of Hydrocarbons from or attributable to the Subject Interests is authorized and directed to make payment to the Grantee of all proceeds from the sale of Hydrocarbons attributable to Grantor's interest in the Subject Interests upon written notification from Grantee of Grantor's unremedied breach in any material respect of any provision of this Agreement and/or the Conveyance, and of Grantee's exercise of Grantee's rights under this Section 15. Any insurer is authorized and directed to make payment to the Grantee of proceeds of insurance described in Section 10.(a) hereof for any amount which Grantee shall certify to such insurer that it has expended in redrilling, rebuilding, reconstructing, repairing, restoring or replacing damaged or lost property which Grantor has failed or refused to do promptly pursuant to Section 10.(b) hereof.
(c) Grantor hereby designates Grantee as its agent and attorney in fact to execute any instruments which may be necessary or appropriate, including without limitation designations of operator, to enable Grantee to exercise its rights under this Section 15. This designation and appointment shall be irrevocable as long as the Production Payment remains in effect.
(d) Notwithstanding any provision of this Agreement to the contrary, for the purposes of this Section 15. and Section 9.(b), any written notice of default sent by Grantee to Grantor to the telecopy number, email address and/or the mailing address for Grantor set forth in this Agreement shall be effective on the date such notice is (i) sent by telecopy (as confirmed transmitted by written report generated at the point of origin of such facsimile or telecopy transmission); or (ii) sent by email (as confirmed transmitted by written printout of such email transmittal by Grantee), with hard copy of such notice of default to be transmitted by certified mail (as evidenced by the postmark stamp on the "Receipt for Certified Mail" held by the sender of such notice), and Grantee shall not be required to take any further action to notify Grantor of such default prior to Grantee exercising any of Grantee's remedies set forth in this Section.
Appears in 1 contract
Remedies of Grantee. (a) Mortgage and Security Interest. At any time and from time to time until the termination of the Production Payment, if Grantor shall fail to perform or observe any of the covenants or agreements provided herein or in the Conveyance to be performed or observed by Grantor, Grantee (or Grantee's designee), in addition to Grantee's right to recover damages and all other remedies available to Grantee at law or in equity, may, if such failure shall continue unremedied after five (5) business 45 days after written notice thereof is delivered to Grantor:
(i) perform (or cause to be performed) performed on behalf of and at the expense of Grantor, any obligation which has not been performed or observed by Grantor, in which event Grantee may advance funds and incur and pay bills for expenses for such purpose and shall be reimbursed out of the proceeds attributable to Grantor's interest in the Subject Interests, together with interest on the unpaid amounts thereof at the rate of interest publicly announced by Citibank, N.A. as its prime or base rate plus five percent (5%), but not to exceed the maximum nonusurious rate permitted by applicable law (the "Agreed Floating Rate"), from the date of such advance or payment by Grantee until the date reimbursed by Grantor. Grantor and Grantee agree that none of the terms and/or provisions contained herein or in the Conveyance 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 charged by applicable law from time to time in effect. The parties to this agreement or the Conveyance shall never be required to pay interest in excess of the maximum amount that may be lawfully charged under applicable law from time to time in effect. Notwithstanding any provision of the Conveyance or this Agreement to the contrary, if Grantee advances any funds on behalf of Grantor under the terms of this Section 15., in addition to Grantee having a right to be reimbursed for such costs out of the proceeds attributable to Grantor's interest in the Subject Interests, Grantee shall have the right to be reimbursed for all such funds, together with the Agreed Rate, out of any proceeds attributable to the interests of Grantor arising from or out of any written contracts between Grantor and any third party, including, but not limited to (i) any fees or revenues payable to Grantor as gathering, transportation and/or pipeline operator fees for any gas or liquids or liquefiable Hydrocarbons produced from the Subject Lands or any lands contiguous to the Subject Lands; (ii) any fees or revenues payable to Grantor arising from or out of the treating, compressing, dehydrating and/or processing of Hydrocarbons produced from the Subject Lands or any lands contiguous to the Subject Lands; (iii) any fees or revenues payable to Grantor from the sale of any Subject Xxxxx and/or Facilities; and (iv) any proceeds resulting from court judgments, arbitration awards and/or settlement of claims in favor of Grantor arising from or out of any contracts relating to or affecting the Subject Lands, Leases and/or the Subject Interests, and Grantee shall have the right to receive all of such proceeds from Grantor, or directly from any applicable third parties, and to apply any or all of such funds against such advanced funds;
(ii) upon written notice to Grantor, Grantor and only as to a default in performance of obligations of Grantor other than those existing under Section 13 succeed to and exercise (or appoint Grantee's designee to succeed to and exercise) any and all rights of the Grantor with respect to as the possession, operation and development owner of the Subject Interests and Subject XxxxxInterests, and use in connection therewith all property of Grantor as may be useful or appropriate for the production, treating, storing, gathering, transporting, compressing and/or dehydrating storing or transportation of Hydrocarbons or other minerals (including but not limited prior to delivery to the Facilities as defined in the Conveyance)Delivery Points, and all other properties and rights of a similar character then held by Grantor and situated upon or useful or held for future use in connection with the exploration, development or operation of the Subject Interests and Subject Xxxxx for the production, treating, storing, gathering, transporting, compressing and/or dehydrating or transportation of Hydrocarbons or other mineralsprior to delivery to the Delivery Points and Grantee, and the Grantee shall have the right right, on behalf and for the account of Grantor, to sell and utilize (a) all of the Hydrocarbons attributable to Grantor's interest in the Subject Interests and (b) any or all of the Facilities not essential to production, and to receive from the purchasers of the Hydrocarbons and/or the Facilities all proceeds attributable thereto, and to apply the proceeds thereof to the costs and expenses of the operation and development of the same as reimbursement Subject Interests and to reimburse Grantee for any amounts so expended by Grantee;
(iii) pay (or cause , and Grantor shall reimburse Grantee upon demand for all amounts so expended by Grantee, to be paid) any of the costs, expenses, Taxes (which Taxes extent such amounts are not being contested in good faith by the Grantor) or other amounts which the Grantor has agreed to pay under the Conveyance and/or this Agreement which have become delinquent, and to be reimbursed out of the proceeds of the Hydrocarbons attributable to the Grantor's interest in the Subject Interests, together with interest on the unliquidated amounts thereof, at the Agreed Rate from the date of such payment; and/or
(iv) apply to a court of equity for the specific performance or observance of any such covenant or condition and in aid of the execution of any power herein granted and for the appointment of a receiver of the Subject Lands, Leases and/or Subject Interests and the Hydrocarbons produced therefrom.paid out
Appears in 1 contract
