EXHIBIT 10.45
[CA]
DEED OF TRUST,
ASSIGNMENT, SECURITY AGREEMENT, FIXTURE FILING
AND FINANCING STATEMENT
FROM
SAN XXXXX BAY PIPELINE COMPANY,
a California corporation
(Organizational I.D. Number 1848132)
TO
CHICAGO TITLE COMPANY, a California corporation, TRUSTEE
FOR THE BENEFIT OF AND TO
X. XXXX & COMPANY, AGENT
Dated as of November 30, 2006
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS, SECURES PAYMENT OF
FUTURE ADVANCES, AND COVERS PROCEEDS OF COLLATERAL.
THIS INSTRUMENT COVERS, AMONG OTHER THINGS, GOODS WHICH ARE OR ARE TO BECOME
FIXTURES RELATED TO THE REAL PROPERTY DESCRIBED HEREIN. THIS INSTRUMENT IS TO BE
FILED FOR RECORD, AMONG OTHER PLACES, IN THE REAL ESTATE OR COMPARABLE RECORDS
OF THE COUNTIES REFERENCED IN EXHIBIT A HERETO AND SUCH FILING SHALL SERVE,
AMONG OTHER PURPOSES, AS A FIXTURE FILING. THE MORTGAGOR HAS AN INTEREST OF
RECORD IN THE REAL ESTATE CONCERNED, WHICH INTEREST IS DESCRIBED IN SECTION 1.1
OF THIS INSTRUMENT.
A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW
AGENT OR THE TRUSTEE (AS HEREINAFTER DEFINED) TO SELL THE MORTGAGED PROPERTIES
WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE MORTGAGOR (AS
HEREINAFTER DEFINED) UNDER THIS MORTGAGE.
DEED OF TRUST,
ASSIGNMENT, SECURITY AGREEMENT, FIXTURE FILING
AND FINANCING STATEMENT
(this "Mortgage")
ARTICLE I.
Granting Clauses; Secured Indebtedness
Section 1.1. Grant and Mortgage. SAN XXXXX BAY PIPELINE COMPANY, a
California corporation (herein called "Mortgagor"), for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to secure the payment of the secured indebtedness hereinafter referred
to and the performance of the obligations, covenants, agreements, warranties and
undertakings of Mortgagor hereinafter described, does hereby GRANT, BARGAIN,
SELL, CONVEY, TRANSFER, ASSIGN AND SET OVER to Chicago Title Company, a
California corporation, Trustee (the "Trustee"), IN TRUST for the benefit of X.
Xxxx & Company, as Agent ("Agent"), WITH POWER OF SALE (pursuant to this
Mortgage and applicable law) the entirety of Mortgagor's interest in and to the
following described properties, rights, and interests (the "Mortgaged
Properties"):
(a) Those certain tracts of land (including submerged lands) located
anywhere in the United States of America or located offshore the United States
of America but within the offshore area over which the United States of America
or any State thereof asserts jurisdiction (the "Fee Lands"), and other interests
in land described in Exhibit A, attached hereto and made a part hereof (such Fee
Lands and the lands covered by the other interests in lands being herein
collectively called the "Sites"), together with all plants, batteries, injector
stations, truck stations, warehouses, offices, pumps, pump stations, pipelines,
heaters, compressors, equipment and other fixtures, personal property and
improvements (whether now owned or hereafter acquired by operation of law or
otherwise) located on or under the Sites (collectively the "Facilities") or
used, held for use in connection with, or in any way related to the Pipeline
Systems (as hereinafter defined), the plants, equipment, compressors, fixtures,
personal property and improvements described or depicted in Exhibit A hereto or
relating thereto;
(b) The rights, interests and estates created under those certain
servitudes, easements, rights of way, privileges, franchises, prescriptions,
licenses, leases, permits, deeds, assignments and/or other rights described in
Exhibit A, attached hereto and made a part hereof, and all of Mortgagor's right,
title and interest (whether now owned or hereafter acquired by operation of law
or otherwise) in any servitudes, easements, rights of way, privileges,
franchises, prescriptions, licenses, leases, permits and/or other rights in and
to any land, in any county and section shown on Exhibit A even though they may
be incorrectly described in or omitted therefrom, together with any amendments,
renewals, extensions, supplements, modifications or other agreements related to
the foregoing, and further together with any other servitudes, easements, rights
of way, privileges, prescriptions, franchises, licenses, permits, deeds,
assignments and/or other rights (whether presently existing or hereafter created
and
whether now owned or hereafter acquired by operation of law or otherwise) used,
held for use in connection with, or in any way related to the Pipeline Systems
(as hereinafter defined), the Sites, the Facilities, and/or pipelines
transporting natural gas, natural gas liquids, and/or other hydrocarbons to,
from or between Pipeline Systems and/or the Sites and/or the Facilities (the
rights, interests and estates described in this item (b) are herein collectively
called the "Servitudes");
(c) All other right, title and interest of Mortgagor of whatever kind
or character (whether now owned or hereafter acquired by operation of law or
otherwise) in and to (i) the Sites, the Facilities, the Fee Lands, and/or the
Servitudes, and (ii) the lands described or referred to in Exhibit A (or
described in any of the instruments described or referred to in Exhibit A);
(d) Without limitation of the foregoing, those certain transportation,
gathering and transmission systems described and/or depicted on Exhibit A,
attached hereto and made a part hereof, or otherwise associated with the
Servitudes, and all pipes, valves, gauges, meters and other measuring equipment,
regulators, heaters, extractors, tubing, pipelines, fuel lines, facilities,
improvements, fittings, materials and other improvements, fixtures, equipment,
inventory, goods, and/or personal property (whether now owned or hereafter
acquired by operation of law or otherwise, and including, without limitation,
those more particularly described in Exhibit A hereto) located on or under the
Servitudes, and/or in or on or otherwise related to the transportation,
gathering and transmission systems described and/or depicted on Exhibit A (the
properties, rights and interests described in this item (d) are herein
collectively called the "Pipeline Systems");
(e) All of Mortgagor's right, title and interest (whether now owned or
hereafter acquired by operation of law or otherwise) in and to all improvements,
fixtures, and other real and/or personal property (including, without
limitation, all equipment, inventory, goods, tanks, pipelines, flow lines,
gathering lines, compressors, dehydration units, separators, meters, metering
stations, buildings, fittings, pipe, pipe connector, valves, regulators, drips,
storage facilities, absorbers, heaters, dehydrators, and power, telephone and
telegraph lines) located on or under, or which in any way relate to, the Sites,
the Facilities, the Servitudes and/or the Pipeline Systems;
(f) All of Mortgagor's right, title and interest, whether presently
existing or hereafter created and whether now owned or hereafter acquired by
operation of law or otherwise, in and to:
(i) all purchase, sale, gathering, processing, transportation,
storage and other contracts or agreements covering or otherwise
relating to the ownership or operation of the Sites, the Facilities,
the Servitudes and/or the Pipeline Systems, and/or to the purchase,
sale or transportation of natural gas, natural gas liquids, and/or
other hydrocarbons, or to the separation, treatment, stabilization
and/or processing of the same, including, without limitation, those
contracts or agreements described in Exhibit A, attached hereto and
made a part hereof;
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(ii) all of Mortgagor's rights under or arising out of any
agreement under which any of the Property, as hereinafter defined, was
acquired, including without limitation any and all representations,
warranties, or covenants and any and all rights of indemnity or to
rebate of the purchase price; all equipment leases, maintenance
agreements, electrical supply contracts, option agreements, and other
contracts and/or agreements, whether now existing or hereafter entered
into, which cover, affect, or otherwise relate to the Sites, the
Facilities, the Servitudes and/or the Pipeline Systems, and/or any of
the other Mortgaged Properties described above, or to the purchase,
sale, transportation, gathering, separation, treatment, stabilization,
dehydration, processing, delivery and/or redelivery of natural gas,
natural gas liquids, and/or other hydrocarbons transported, gathered,
separated, treated, stabilized, dehydrated, processed, delivered
and/or redelivered by or in the Sites, the Facilities, and/or the
Pipeline Systems, including, without limitation those contracts listed
in Exhibit A hereto, as same may be amended or supplemented from time
to time;
(the contractual rights, contracts and other agreements described in this
item (f) are herein sometimes collectively called the "Contracts");
(g) All rights, estates, powers and privileges appurtenant to the
foregoing rights, interests and properties;
(h) without duplication of any other provision of this granting
clause, all other Accounts, Certificated Securities, Chattel Paper, Commodity
Accounts, Commodity Contracts, Deposit Accounts, Documents, Equipment, Fixtures,
General Intangibles, Goods, Instruments, Inventory, Investment Property,
Proceeds, Securities, Securities Accounts, Security Entitlements or
Uncertificated Securities arising from, or relating to, the properties and other
interests described in Exhibit A; and
(i) any and all liens and security interests in Hydrocarbons (as
defined in the Credit Agreement, hereinafter defined) securing the payment of
proceeds from the sale of Hydrocarbons,
together with any and all corrections or amendments to, or renewals, extensions
or ratifications of, or replacements or substitutions for, any of the same, or
any instrument relating thereto, and all accounts, contracts, contract rights,
options, nominee agreements, operating agreements, processing agreements, joint
venture agreements, partnership agreements, support agreements, surface use and
surface damage agreements, Hedging Contracts (as defined in the Credit
Agreement), insurance policies, title opinions, title abstracts, title opinions,
title abstracts, title materials and information, files, records, writings, data
bases, information, systems, logs, gathering and transportation data and
reports, maps, geophysical, geological and chemical data and information,
interpretative and analytical reports of any kind or nature (including, without
limitation, reserve studies and reserve evaluations), computer hardware and
software and all documentation therefore or relating thereto (including, without
limitation, all licenses relating to or covering such computer hardware,
software and/or documentation), trade secrets, trademarks, service marks and
business names and the goodwill of the business relating thereto, copyrights,
copyright registrations, unpatented inventions,
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patent applications and patents, rights-of-way, franchises, bonds, easements,
servitudes, surface leases, permits, licenses, tenements, hereditaments,
appurtenances, concessions, occupancy agreements, privileges, development
rights, condemnation awards, claims against third parties, general intangibles,
letters of credit and letter-of-credit rights, money, payment intangibles,
rents, royalties, issues, profits, products, proceeds, distributions on, rights
arising out of, returns of and from, and any and all claims and/or insurance
payments arising out of the loss or non-conformity, or interference with the use
of, defects or infringement of rights in, or damage to, in each case whether now
or hereafter existing or arising, used or useful in connection with, covering,
relating to, or arising from or in connection with, any of the aforesaid items
(a) through (i), inclusive, in this granting clause mentioned, and all other
things of value and incident thereto (including, without limitation, any and all
liens, lien rights, security interests and other properties, rights and
interests) which the Mortgagor might at any time have or be entitled to,
all of the aforesaid properties, rights and interests, together with any
additions thereto which may be subjected to the lien and security interest of
this instrument by means of supplements hereto, being hereinafter called the
"Mortgaged Property".
Subject, however, to (i) the restrictions, exceptions, reservations,
conditions, limitations, interests and other matters, if any, set forth or
referred to in the specific descriptions of such properties and interests in
Exhibit A, (ii) prohibitions against the granting of liens in the Mortgaged
Property contained in any Contract or otherwise relating to the Mortgage
Property, to the extent such prohibition is enforceable and the violation of
which would cause or result in a default under any of such Contracts, (iii) the
assignment of rents contained in Article III hereof, but only insofar and so
long as said assignment of rents is not inoperative under the provisions of
Section 3.5 hereof, and (iv) the condition that none of the Trustee, the Agent
and the other Lenders shall be liable in any respect for the performance of any
covenant or obligation (including, without limitation, measures required to
comply with Environmental Laws, as defined in the Credit Agreement) of the
Mortgagor in respect of the Mortgaged Property.
TO HAVE AND TO HOLD the Mortgaged Properties unto the Trustee, and its
successors or substitutes in this trust, and to its or their successors and
assigns, in trust, however, upon the terms, provisions and conditions herein set
forth. Mortgagor will warrant and defend title to the Property (as hereinafter
defined), free and clear of all liens, security interests, and encumbrances
except for Permitted Liens (as defined in the Credit Agreement) against the
claims and demands of all persons claiming or to claim the same or any part
thereof.
Section 1.2. Scope of Mortgage. This Mortgage is a deed of trust and
mortgage of both real and personal property, a security agreement, a financing
statement and an assignment, and also covers goods which are or are to become
fixtures, as-extracted collateral, and all proceeds thereof.
Section 1.3. Grant of Security Interest. In order to further secure the
payment of the secured indebtedness hereinafter referred to and the performance
of the obligations, covenants, agreements, warranties, and undertakings of
Mortgagor hereinafter described, Mortgagor hereby grants to Agent a security
interest in the entire interest of Mortgagor (whether now owned or hereafter
acquired by operation of law or otherwise) in and to:
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(a) Rents (as defined in Section 3.1 hereof), together with all
proceeds of the Rents, and together with all liens and security interests
seeming payment of the Rents, including those liens and security interests
provided for under (i) statutes enacted in the jurisdictions in which the
Mortgaged Properties are located, or (ii) statutes made applicable to the
Mortgaged Properties under federal law (or some combination of federal and state
law);
(b) all equipment, inventory, improvements, fixtures, accessions,
goods and other personal property of whatever nature now or hereafter located on
or used or held for use in connection with the Mortgaged Properties (or in
connection with the operation thereof), and all licenses and permits of whatever
nature now or hereafter used or held for use in connection with the Mortgaged
Properties (or in connection with the operation thereof), and all renewals or
replacements of the foregoing or substitutions for the foregoing;
(c) all contracts, contract rights, choses in action (i.e., rights to
enforce contracts or to bring claims thereunder) and other general intangibles
(regardless of whether the same arose, and/or the events which gave rise to the
same occurred, on or before or after the date hereof) related to the Mortgaged
Properties, the operation thereof (whether Mortgagor is operator or
non-operator), or the Rents; provided, however, that to the extent the granting
of the security interest under this Mortgage is prohibited by any of such
contracts and would cause or result in a default under any of such contracts,
Mortgagor shall not be deemed to have granted such security interest in such
contracts to the extent such prohibition is enforceable;
(d) without limitation of the generality of the foregoing, any rights
and interests of Mortgagor under any present or future hedge or swap agreements,
cap, floor, collar, exchange, forward or other hedge or protection agreements or
transactions relating to interest rates or to crude oil, natural gas or other
hydrocarbons, or any option with respect to any such agreement or transaction
now existing or hereafter entered into by or on behalf of Mortgagor;
(e) all engineering, accounting, title, legal, and other technical or
business data concerning the Mortgaged Properties, the Rents or any other item
of Property (as hereinafter defined) which are now or hereafter in the
possession of Mortgagor or in which Mortgagor can otherwise grant a security
interest, and all books, files, records, magnetic media, and other forms of
recording or obtaining access to such data;
(f) without limitation of or by any of the foregoing, all rights,
titles and interests now owned or hereafter acquired by Mortgagor in any and all
goods, inventory, equipment, as-extracted collateral, documents, money,
instruments, intellectual property, certificated securities, uncertificated
securities, investment property, letters of credit, rights to proceeds of
written letters of credit and other letter-of-credit rights, commercial tort
claims, deposit accounts, payment intangibles, general intangibles, contract
rights, chattel paper (including electronic chattel paper and tangible chattel
paper), rights to payment evidenced by chattel paper, software, supporting
obligations and accounts, wherever located, and all rights and privileges with
respect thereto (all of the properties, rights and interests described in
subsections (a), (b), (c), (d) and (e) above, subsection (g) below, and this
subsection (f) being herein sometimes collectively called the "Collateral"); and
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(g) all proceeds of the Collateral (the Mortgaged Properties, the
Collateral and the proceeds of the Mortgaged Properties and of the Collateral
being herein sometimes collectively called the "Property").
Except as otherwise expressly provided in this Mortgage, all terms in this
Mortgage relating to the Collateral and the grant of the foregoing security
interest which are defined in the applicable Uniform Commercial Code (the "UCC")
shall have the meanings assigned to them in Article 9 (or, absent definition in
Article 9, in any other Article) of the UCC, as those meanings may be amended,
revised or replaced from time to time. Notwithstanding the foregoing, the
parties intend that the terms used herein which are defined in the UCC have, at
all times, the broadest and most inclusive meanings possible. Accordingly, if
the UCC shall in the future be amended or held by a court to define any term
used herein more broadly or inclusively than the UCC in effect on the date of
this Mortgage, then such term, as used herein, shall be given such broadened
meaning. If the UCC shall in the future be amended or held by a court to define
any term used herein more narrowly, or less inclusively, than the UCC in effect
on the date of this Mortgage, such amendment or holding shall be disregarded in
defining terms used in this Mortgage.
Section 1.4. Loan Documents and Other Obligations. This Mortgage is made to
secure and enforce the payment and performance of the following obligations,
indebtedness, loans, and liabilities:
(a) All indebtedness and other obligations of Pacific Energy Resources
Ltd., a Delaware corporation ("Parent"), or any other Credit Party (as defined
in the Credit Agreement), including Mortgagor, now or hereafter incurred or
arising pursuant to the provisions of that certain Credit and Guaranty Agreement
dated as of November 30, 2006 among Parent, certain Subsidiaries of Parent
(including Mortgagor), X. Xxxx & Company, individually and in its capacity as
Administrative Agent for the benefit of the Lenders, and the lenders from time
to time parties thereto (such lenders being herein called "Lenders") and all
supplements thereto and amendments or modifications thereof, and all agreements
given in substitution therefor or in restatement, renewal or extension thereof,
in whole or in part (such Credit Agreement as the same may from time to time be
supplemented, amended or modified, and all other agreements given in
substitution therefor or in restatement, renewal or extension thereof, in whole
or in part, being herein called the "Credit Agreement");
(b) The Loans (as defined in the Credit Agreement) that may be made
from time to time by Lenders to Parent pursuant to the Credit Agreement, and all
promissory notes evidencing such Loans, bearing interest as provided in the
Credit Agreement;
(c) Payment of and performance of any and all present or future
obligations of Parent, Mortgagor or any other Credit Party (defined in the
Credit Agreement) according to the terms of any agreement providing for options,
swaps, floors, caps, collars, forward sales or forward purchases involving
interest rates, commodities or commodity prices, equities, currencies, bonds, or
indexes based on any of the foregoing, or any other derivative agreement or
other similar agreement or arrangement, in each case now existing or hereafter
entered into between Parent, Mortgagor or such Credit Party and one or more
Lenders (or any one or more affiliates of any Lenders); provided that if any
such counterparty ceases to be a Lender under
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the Credit Agreement or an affiliate of a Lender under the Credit Agreement,
such obligations shall be included in the secured indebtedness only to the
extent such obligations arise from transactions entered into prior to the time
such counterparty ceased to be a Lender under the Credit Agreement or an
affiliate of a Lender under the Credit Agreement;
(d) All indebtedness, covenants and other obligations now or hereafter
incurred or arising pursuant to the provisions of the Credit Agreement, this
Mortgage or any other instrument now or hereafter evidencing, governing,
guaranteeing or securing the "secured indebtedness" (as hereinafter defined) or
any part thereof or otherwise executed in connection with any advance or loan
evidenced or governed by the Credit Agreement (the Credit Agreement, this
Mortgage and such other instruments being herein sometimes collectively called
the "Loan Documents"); and
(e) Without limiting the generality of the foregoing, all
post-petition interest, expenses, and other duties and liabilities with respect
to indebtedness or other obligations described above in this Section 1.4, which
would be owed but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization, or similar proceeding.
Section 1.5. Secured Indebtedness. The indebtedness referred to in Section
1.4, and all renewals, extensions and modifications thereof, and all
substitutions therefor, in whole or in part, are herein sometimes referred to as
the "secured indebtedness" or the "indebtedness secured hereby."
Section 1.6. Limit on Secured Indebtedness and Collateral. It is the
intention of Mortgagor, Agent and Lenders that this Mortgage not constitute a
fraudulent transfer or fraudulent conveyance under any state or federal law that
may be applied hereto. Mortgagor, and by their acceptance hereof, Agent and
Lenders hereby acknowledge and agree that, notwithstanding any other provision
of this Mortgage: (a) the indebtedness secured hereby shall be limited to the
maximum amount of indebtedness that can be incurred or secured by Mortgagor
without rendering this Mortgage voidable under applicable law relating to
fraudulent conveyances or fraudulent transfers, and (b) the Property granted by
Mortgagor hereunder shall be limited to the maximum amount of Property that can
be granted by Mortgagor without rendering this Mortgage voidable under
applicable law relating to fraudulent conveyances or fraudulent transfers.
ARTICLE II.
Representations, Warranties and Covenants
Section 2.1. Mortgagor represents, warrants, and covenants as follows:
(a) Certain Representations and Warranties. The Mortgagor represents
and warrants to each of the Trustee, the Agent and the other Lenders that (a)
the Mortgagor has good and marketable title to each property right or interest
constituting the Mortgaged Property
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and has a good and legal right to grant and convey the same to the Trustee, (b)
the Mortgaged Property is free from all encumbrances or liens whatsoever, except
as may be specifically permitted by the provisions of Section 2.2(c) hereof, and
(c) (i) the cover page to this instrument lists the true legal name and state of
incorporation or organization of the Mortgagor as registered in the jurisdiction
in which the Mortgagor is organized, formed or incorporated, (ii) the Mortgagor
is not now and has not been known by any trade name, and (iii) the Mortgagor has
not been known by any legal name different from the one set forth on the cover
page of this instrument, nor has the Mortgagor been the subject of any merger or
other corporate reorganization.
(b) Defense of Mortgage. If the validity or priority of this Mortgage
or of any rights, titles, liens or security interests created or evidenced
hereby with respect to the Property or any part thereof or the title of
Mortgagor to the Property shall be endangered or questioned or shall be attacked
directly or indirectly or if any legal proceedings are instituted against
Mortgagor with respect thereto, Mortgagor will give prompt written notice
thereof to Agent and at Mortgagor's own cost and expense will diligently
endeavor to cure any defect that may be developed or claimed, and will take all
reasonably necessary and proper steps for the defense of such legal proceedings,
including the employment of counsel, the prosecution or defense of litigation
and the release or discharge of all adverse claims, and Trustee and Agent, or
either of them (whether or not named as parties to legal proceedings with
respect thereto), are hereby authorized and empowered to take such additional
steps as in their judgment and discretion may be reasonably necessary or proper
for the defense of any such legal proceedings or the protection of the validity
or priority of this Mortgage and the rights, titles, liens and security
interests created or evidenced hereby, including the employment of independent
counsel, the prosecution or defense of litigation, the compromise or discharge
of any adverse claims made with respect to the Property, the purchase of any tax
title and the removal of prior liens or security interests, and all expenditures
so made of every kind and character shall be a demand obligation (which
obligation Mortgagor hereby expressly promises to pay) owing by Mortgagor to
Agent or Trustee (as the case may be) and shall bear interest from the date
expended until paid at the rate described in Section 2.4 hereof, and the party
incurring such expenses shall be subrogated to all rights of the person
receiving such payment.
(c) Insurance. Mortgagor will carry insurance as required under the
Credit Agreement. In the event of foreclosure of this Mortgage, or other
transfer of title to the Property in extinguishment in whole or in part of the
secured indebtedness, all right, title and interest of Mortgagor in and to such
policies then in force concerning the Property and all proceeds payable
thereunder shall thereupon vest in the purchaser at such foreclosure or other
transferee in the event of such other transfer of title.
(d) Further Assurances. Mortgagor will, on request of Agent, (i)
promptly correct any defect, error or omission which may be discovered in the
contents of this Mortgage, or in any other Loan Document, or in the execution or
acknowledgment of this Mortgage or any other Loan Document; and (ii) execute,
acknowledge, deliver and record and/or file such further instruments (including
further deeds of trust, mortgages, security agreements, financing statements,
continuation statements, and assignments of production, accounts, funds,
contract rights, general intangibles, and proceeds) and do such further acts as
may be necessary,
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desirable or proper to carry out more effectively the purposes of this Mortgage
and the other Loan Documents and to more fully identify and subject to the liens
and security interests hereof any property intended to be covered hereby,
including any renewals, additions, substitutions, replacements, or appurtenances
to the Property. Mortgagor shall pay all reasonable costs connected with any of
the foregoing.
(e) Not a Foreign Person. Mortgagor is not a "foreign person" within
the meaning of the Internal Revenue Code of 1986, as amended, (hereinafter
called the "Code"), Sections 1445 and 7701 (i.e. Mortgagor is not a non-resident
alien, foreign corporation, foreign partnership, foreign trust or foreign estate
as those terms are defined in the Code and any regulations promulgated
thereunder).
Section 2.2. Operation of the Mortgaged Property. As long as the secured
indebtedness or any part thereof remains unpaid, and whether or not the
Mortgagor is the operator of the Mortgaged Property, the Mortgagor shall, at the
Mortgagor's own reasonable expense:
(a) Do all commercially reasonable things necessary to keep unimpaired
the Mortgagor's rights in the Mortgaged Property and not, except in the ordinary
course of business, forfeit, surrender or release any rights in the Mortgaged
Property, without the prior written consent of the Trustee and the Agent;
(b) Cause to be paid, promptly as and when due and payable, all
rentals, if applicable, payable in respect of the Mortgaged Property, and all
expenses incurred in or arising from the operation of the Mortgaged Property
except for those amounts being contested by the Mortgagor in good faith in such
manner as not to jeopardize the rights of the Trustee, the Agent and the other
Lenders in and to the Mortgaged Property;
(c) Cause the Mortgaged Property to be kept free and clear of liens,
charges and encumbrances of every character, other than Permitted Liens (as
defined in the Credit Agreement);
(d) Not initiate or acquiesce in any change in any material zoning or
other land use or classification now or hereafter in effect and affecting the
Mortgaged Property or any part thereof; and
(e) Appear in and defend, with counsel acceptable to the Agent in its
reasonable discretion, any action or proceeding purporting to affect the
security hereof or the rights or powers of the Trustee, the Agent or the other
Lenders; and pay all costs and expenses, including cost of evidence of title and
attorneys' fees in a reasonable sum, in any such action or proceeding in which
the Trustee, the Agent or the other Lenders may appear.
Section 2.3. Right of Entry.
(a) To the full extent the Mortgagor has the right to do so, and as
provided by Section 5.3 of the Credit Agreement, the Mortgagor will permit the
Trustee, the Agent or any other Lender, or the agents of any of them, at the
reasonable cost and expense of the Mortgagor, to enter upon the Mortgaged
Property and all parts thereof, for the purpose of
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investigating and inspecting the condition and operation thereof, and shall
permit reasonable access to the field offices and other offices, including the
principal place of business, of the Mortgagor to inspect and examine the
Mortgaged Property and to inspect, review and reproduce as reasonably necessary
any books, records, accounts, contracts or other documents of the Mortgagor.
(b) Without limiting the generality of the foregoing, the Trustee, the
Agent and any Lender shall have the right, on twenty-four (24) hours prior
notice to the Mortgagor, to cause such persons and entities as any of them may
designate to enter the Mortgaged Property to conduct (at the reasonable cost and
expense of the Mortgagor), or to cause the Mortgagor to conduct (at the
reasonable cost and expense of the Mortgagor), such tests and investigations as
any of them deems necessary to determine whether any hazardous substance or
solid waste is being generated, transported, stored, or disposed of in
accordance with applicable Environmental Laws (as defined in the Credit
Agreement). Such tests and investigations may include, without limitation,
underground borings, ground water analyses and borings from the floors, ceilings
and walls of any improvements located on the Mortgaged Property. This Section
2.3 shall not be construed to affect or limit the obligations of the Mortgagor
pursuant to Section 2.2 hereof.
(c) None of the Trustee, the Agent and the Lenders shall have any duty
to visit or observe the Mortgaged Property or to conduct tests, and no site
visit, observation or testing by the Trustee, Agent or such Lenders shall impose
any liability on any of them, nor shall the Mortgagor or any other Credit Party
(as defined in the Credit Agreement) be entitled to rely on any visit,
observation or testing by any of them in any respect. Each of the Trustee, the
Agent and the Lenders shall, at the request and expense of the Mortgagor,
disclose to the Mortgagor or may, upon contemporaneous notice to the Mortgagor,
disclose to any Governmental Authority (as defined in the Credit Agreement) or
may, upon prior notice to the Mortgagor, disclose to any other Person, any
report or finding made as a result of, or in connection with, any site visit,
observation or testing by any of them. The Mortgagor agrees that none of the
Trustee, the Agent and the Lenders makes any warranty or representation to the
Mortgagor or any other Credit Party (as defined in the Credit Agreement)
regarding the truth, accuracy or completeness of any such report or findings so
disclosed. The Mortgagor also acknowledges that, depending upon the results of
any site visit, observation or testing by the Trustee, the Agent and the Lenders
and disclosed to the Mortgagor, the Mortgagor may have a legal obligation to
notify one or more governmental agencies of such results, that such reporting
requirements are site-specific, and are to be evaluated by the Mortgagor without
advice or assistance from the Agent.
Section 2.4. Performance on Mortgagor's Behalf. Mortgagor agrees that, if
Mortgagor fails to perform any act or to take any action which hereunder
Mortgagor is required to perform or take, or to pay any money which hereunder
Mortgagor is required to pay, Agent, in Mortgagor's name or its own name, may,
but shall not be obligated to, perform or cause to be performed such act or take
such action or pay such money, and any expenses so incurred by Agent and any
money so paid by Agent shall be a demand obligation owing by Mortgagor to Agent
(which obligation Mortgagor hereby expressly promises to pay) and Agent, upon
making such payment, shall be subrogated to all of the rights of the person,
corporation or body politic receiving such payment. Each amount due and owing by
Mortgagor to Trustee and/or Agent
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and/or any Lender pursuant to this Section 2.4 or other sections of this
Mortgage that specifically refer to this Section 2.4 shall bear interest each
day, from the date of such expenditure or payment until paid, at a rate as
provided for past due principal on the Loans as set forth in Section 2.8 of the
Credit Agreement; all such amounts, together with such interest thereon, shall
be a part of the secured indebtedness and shall be secured by this Mortgage.
Section 2.5. Recording. Mortgagor will cause this Mortgage and all
amendments and supplements thereto and substitutions therefor and all financing
statements and continuation statements relating thereto to be recorded, filed,
re-recorded and refiled in such manner and in such places as Trustee or Agent
shall reasonably request and will pay all such recording, filing, re-recording
and refiling taxes, fees and other charges.
Section 2.6. Reporting Compliance. Mortgagor agrees to comply with any and
all reporting requirements applicable to the transaction evidenced by the
secured indebtedness which are set forth in any law, statute, ordinance, rule,
regulation, order or determination of any governmental authority, and further
agrees upon request of Agent to furnish Agent with evidence of such compliance.
Section 2.7. Release of Mortgage. If all of the secured indebtedness is
paid as it becomes due and payable and all of the covenants, warranties,
undertakings and agreements made in this Mortgage are kept and performed and no
further obligation shall exist to provide credit or advance funds to Mortgagor
or the maker of any promissory note (or other obligor with respect to other
indebtedness) secured hereby, then, at Mortgagor's request and expense, this
Mortgage shall be released as provided in the Credit Agreement; provided,
however, that, notwithstanding such release, the indemnifications, and other
rights, which are provided herein or in the Credit Agreement to continue
following the release hereof shall continue in effect unaffected by such
release; and provided that if any payment to any Lender or Agent is held to
constitute a preference or a voidable transfer under applicable state or federal
laws or if for any other reason any Lender or Agent is required to refund such
payment to the payor thereof or to pay the amount thereof to any third party,
this Mortgage shall be reinstated to the extent of such payment or payments.
ARTICLE III.
Assignment of Rents
Section 3.1. Assignment. As further security for the payment of the secured
indebtedness, the Mortgagor hereby transfers, assigns, warrants and conveys to
the Agent, for itself and as agent for each of the Lenders, effective as of
November 1, 2006, at 7:02 A.M., central standard time, all rents, issues,
profits, revenue, income and other benefits derived from the Mortgaged
Properties or arising from the operation thereof or from any of the Contracts,
including Hydrocarbons (as defined in the Credit Agreement) and all proceeds
thereof (the "Rents"). Following the occurrence and during the continuance of an
Event of Default, Mortgagor authorizes and empowers the Agent to demand,
collect, receive and receipt for all Rents. MORTGAGOR IRREVOCABLY APPOINTS THE
AGENT AS THE AGENT AND
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ATTORNEY-IN-FACT OF MORTGAGOR, FOR THE PURPOSE OF EXECUTING ANY PAYMENT ORDERS,
RECEIPTS, RELEASES OR OTHER INSTRUMENTS (COLLECTIVELY, "RECEIPTS") THAT THE
AGENT DEEMS REASONABLY NECESSARY IN ORDER FOR THE AGENT TO DEMAND COLLECT,
RECEIVE AND RECEIPT FOR RENTS FOLLOWING THE OCCURRENCE OF AN EVENT OF DEFAULT.
In addition, the Mortgagor agrees that, during the continuance of an Event of
Default or upon the Agent's reasonable request, Mortgagor shall promptly execute
and deliver to the Agent such Receipts as the Agent may deem reasonably
necessary in connection with the payment and delivery directly to the Agent of
all Rents and to effectuate the purposes of this paragraph. All parties
receiving any Rents or having Rents in their possession for which they or others
are accountable to the Agent by virtue of the provisions of this Article III,
are authorized and directed to treat and regard the Agent as the assignee and
transferee of the Mortgagor and entitled in the Mortgagor's place and stead to
receive Rents; and said parties and each of them shall be fully protected in so
treating and regarding the Agent and shall be under no obligation to see to the
application by the Agent of any Rents received by it. Notwithstanding the
foregoing, the Agent, for itself and as Agent for the Lenders, has agreed not to
exercise its right to directly receive delivery and payment of Rents
immediately. Rather, each party receiving or paying Rents may continue to make
such delivery or payment to the Mortgagor until such time as such party has
received notice from the Agent that an Event of Default has occurred and that
such party is directed to make delivery or payment directly to the Agent.
Section 3.2. Application of Rents. All payments received by the Agent
pursuant to Section 3.1 hereof shall be applied by Agent in accordance with the
provisions of the Credit Agreement.
Section 3.3. No Liability of the Agent in Collecting. The Agent is hereby
absolved from all liability for failure to enforce collection of any proceeds so
assigned (and no such failure shall be deemed to be a waiver of any right of the
Agent under this Article III) and from all other responsibility in connection
therewith, except the responsibility to account to the Mortgagor for funds
actually received and for the gross negligence or willful misconduct of the
Agent.
Section 3.4. Assignment Not a Restriction on the Agent's Rights. Nothing
herein contained shall detract from or limit the absolute obligation of the
Mortgagor or the Parent to make payment of the secured indebtedness regardless
of whether the proceeds assigned by this Article III would be sufficient to pay
the same, and the rights under this Article III shall be in addition to all
other security now or hereafter existing to secure the payment of the secured
indebtedness.
Section 3.5. Status of Assignment. Notwithstanding the other provisions of
this Article III and in addition to the other rights hereunder, the Trustee, the
Agent or any receiver or keeper appointed in judicial proceedings for the
enforcement of this instrument shall have the right to receive all of the Rents
after the secured indebtedness has been declared due and payable in accordance
with the provisions of Article IV hereof and to apply all of said proceeds as
provided in Section 3.2 hereof. Upon any sale of the Mortgaged Property or any
part thereof pursuant to Article IV, such Mortgaged Property shall pass to the
purchaser free and clear of the assignment contained in this Article III.
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Section 3.6. Release From Liability; Indemnification. Agent and its
successors and assigns are hereby released and absolved from all liability for
failure to enforce collection of the Rents and from all other responsibility in
connection therewith, except the responsibility of each to account to Mortgagor
for funds actually received by each. Mortgagor agrees to indemnify and hold
harmless Agent (for purposes of this paragraph, the term "Agent" shall include
the directors, officers, partners, employees and agents of Agent and any persons
or entities owned or controlled by or affiliated with Agent) from and against
all claims, demands, liabilities, losses, damages (including consequential
damages), causes of action, judgments, penalties, costs and expenses (including
reasonable attorneys' fees and expenses) imposed upon, asserted against or
incurred or paid by Agent by reason of the assertion that Agent received, either
before or after payment in full of the secured indebtedness, funds from the
Rents claimed by third persons, and Agent shall have the right to defend against
any such claims or actions, employing attorneys of its own selection, and if not
furnished with indemnity satisfactory to it, Agent shall have the right to
compromise and adjust any such claims, actions and judgments, and in addition to
the rights to be indemnified as herein provided, all amounts paid by Agent in
compromise, satisfaction or discharge of any such claim, action or judgment, and
all court costs, attorneys' fees and other expenses of every character expended
by Agent pursuant to the provisions of this section shall be a demand obligation
(which obligation Mortgagor hereby expressly promises to pay) owing by Mortgagor
to Agent and shall bear interest, from the date expended until paid, at the rate
described in Section 2.4 hereof. The foregoing indemnities shall not terminate
upon the release, foreclosure or other termination of this Mortgage but will
survive such release, foreclosure of this Mortgage or conveyance in lieu of
foreclosure, or other termination, and the repayment of the secured indebtedness
and the discharge and release of this Mortgage and the other documents
evidencing and/or securing the secured indebtedness. WITHOUT LIMITATION, IT IS
THE INTENTION OF MORTGAGOR AND MORTGAGOR AGREES THAT THE FOREGOING RELEASES AND
INDEMNITIES SHALL APPLY TO EACH INDEMNIFIED PARTY WITH RESPECT TO ALL CLAIMS,
DEMANDS, LIABILITIES, LOSSES, DAMAGES (INCLUDING CONSEQUENTIAL DAMAGES), CAUSES
OF ACTION, JUDGMENTS, PENALTIES, COSTS AND EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES AND EXPENSES) WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE
OUT OF THE NEGLIGENCE, WHETHER ACTIVE OR PASSIVE, OF SUCH (AND/OR ANY OTHER)
INDEMNIFIED PARTY. However, such indemnities shall not apply to any particular
indemnified party (but shall apply to the other indemnified parties) to the
extent the subject of the indemnification is caused by or arises out of the
gross negligence or willful misconduct of such particular indemnified party.
Section 3.7. Mortgagor's Absolute Obligation to Pay Loans. Nothing herein
contained shall detract from or limit the obligations of Mortgagor to make
prompt payment of the Loans, and any and all other secured indebtedness, at the
time and in the manner provided herein and in the Loan Documents, regardless of
whether the Rents herein assigned are sufficient to pay same, and the rights
under this Article III shall be cumulative of all other rights under the Loan
Documents.
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ARTICLE IV.
Remedies Upon Default
Section 4.1. Default. The term "default" as used in this Mortgage shall
mean the occurrence of an "Event of Default" as defined in the Credit Agreement.
Section 4.2. Acceleration of Secured Indebtedness. The secured indebtedness
may be (and in certain circumstances shall automatically be) accelerated as
provided in the Credit Agreement
Section 4.3. Pre-Foreclosure Remedies. Upon the occurrence of a default,
Agent is authorized, prior or subsequent to the institution of any foreclosure
proceedings, to enter upon the Property, or any part thereof, and to take
possession of the Property and all books and records relating thereto, and to
exercise without interference from Mortgagor any and all rights which Mortgagor
has with respect to the management, possession, operation, protection or
preservation of the Property. If necessary to obtain the possession provided for
above, Agent may invoke any and all remedies to dispossess Mortgagor. Mortgagor
agrees to peacefully surrender possession of the Property upon default if
requested by Agent. All costs, expenses and liabilities of every character
incurred by Agent in managing, operating, maintaining, protecting or preserving
the Property shall constitute a demand obligation (which obligation Mortgagor
hereby expressly promises to pay) owing by Mortgagor to Agent and shall bear
interest from date of expenditure until paid at the rate described in Section
2.4 hereof, all of which shall constitute a portion of the secured indebtedness
and shall be secured by this Mortgage and by any other instrument securing the
secured indebtedness. In connection with any action taken by Agent pursuant to
this Section 4.3, AGENT SHALL NOT BE LIABLE FOR ANY LOSS SUSTAINED BY MORTGAGOR
RESULTING FROM ANY ACT OR OMISSION OF AGENT (INCLUDING AGENT'S OWN NEGLIGENCE,
WHETHER ACTIVE OR PASSIVE) IN MANAGING THE PROPERTY UNLESS SUCH LOSS IS CAUSED
BY THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BAD FAITH OF AGENT, nor shall
Agent be obligated to perform or discharge any obligation, duty or liability of
Mortgagor arising under any agreement forming a part of the Property or arising
under any Permitted Lien (as defined in the Credit Agreement) or otherwise
arising. Mortgagor hereby assents to, ratifies and confirms any and all actions
of Agent with respect to the Property taken under this Section 4.3, other than
gross negligence, willful misconduct, or bad faith of Agent.
Section 4.4. Foreclosure.
(a) Upon the occurrence of a default;
(i) Trustee is authorized and empowered and it shall be Trustee's
special duty at the request of Agent to sell the Mortgaged Properties, or
any part thereof, as an entirety or in parcels as Agent may elect, at such
place or places and otherwise in the manner and upon such notice as may be
required by law or, in the absence of any such requirement, as Trustee may
deem appropriate. If Trustee shall have given notice of sale hereunder, any
successor or substitute Trustee thereafter appointed may complete the sale
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and the conveyance of the property pursuant thereto as if such notice had
been given by the successor or substitute Trustee conducting the sale. As
to those Mortgaged Properties located in the State of California (or within
the offshore area over which the United States of America asserts
jurisdiction and to which the laws of such state are applicable with
respect to this Mortgage and/or the liens or security interests created
hereby), Trustee is requested, authorized and empowered to record a written
notice of default and election to sell and, after a lapse of such time as
is required by law, following recordation of such notice, give a notice of
sale as required by law and sell such Mortgaged Properties at the time and
place of sale fixed in such notice to the highest bidder for cash. Trustee
shall deliver to such purchaser or purchasers thereof a trustee's deed
conveying the property so sold, which shall not contain any covenant or
warranty, express or implied. The recitals in such deed of any matters or
facts shall be conclusive proof of the truthfulness thereof.
A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY
ALLOW AGENT OR TRUSTEE TO SELL THE MORTGAGED PROPERTIES WITHOUT GOING
TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS
MORTGAGE.;
(ii) Commence an action to foreclosure this Mortgage; and/or
(iii) Exercise all other rights and remedies provided herein, in
this Mortgage or any other Loan Document or other document or agreement now
or hereafter securing all or any portion of the secured indebtedness, or
otherwise as provided by applicable law.
(b) Upon the occurrence of a default, Agent may exercise its rights of
enforcement with respect to the Collateral under the applicable Uniform
Commercial Code or any other statute in force in any state to the extent the
same is applicable law. Cumulative of the foregoing and the other provisions of
this Section 4.4:
(i) Agent may enter upon the Mortgaged Properties or otherwise
upon Mortgagor's premises to take possession of, assemble and collect the
Collateral or to render it unusable; and
(ii) Agent may require Mortgagor to assemble the Collateral and
make it available at a place Agent designates which is mutually convenient
to allow Agent to take possession or dispose of the Collateral; and
(iii) written notice mailed to Mortgagor as provided herein at
least five (5) days prior to the date of public sale of the Collateral or
prior to the date after which private sale of the Collateral will be made
shall constitute reasonable notice; and
(iv) in the event of a foreclosure of the liens and/or security
interests evidenced hereby, the Collateral, or any part thereof, and the
Mortgaged Properties, or
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any part thereof, may, at the option of Agent, be sold, as a whole or in
parts, together or separately (including where a portion of the Mortgaged
Properties is sold, the Collateral related thereto may be sold in
connection therewith); and
(v) the expenses of sale provided for in clause FIRST of Section
4.7 shall include the reasonable expenses of retaking the Collateral, or
any part thereof, holding the same and preparing the same for sale or other
disposition; and
(vi) should, under this subsection, the Collateral be disposed of
other than by sale, any proceeds of such disposition shall be treated under
Section 4.7 as if the same were sales proceeds.
(c) To the extent permitted by applicable law, the sale hereunder of
less than the whole of the Property shall not exhaust the powers of sale herein
granted or the right to judicial foreclosure, and successive sale or sales may
be made until the whole of the Property shall be sold, and, if the proceeds of
such sale of less than the whole of the Property shall be less than the
aggregate of the indebtedness secured hereby and the expense of conducting such
sale, this Mortgage and the liens and security interests hereof shall remain in
full force and effect as to the unsold portion of the Property just as though no
sale had been made; provided, however, that Mortgagor shall never have any right
to require the sale of less than the whole of the Property. In the event any
sale hereunder is not completed or is defective in the opinion of Agent, such
sale shall not exhaust the powers of sale hereunder or the right to judicial
foreclosure, and Agent shall have the right to cause a subsequent sale or sales
to be made. Any sale may be adjourned by announcement at the time and place
appointed for such sale without further notice except as may be required by law.
The Trustee or his successor or substitute acting under power of sale may
appoint or delegate any one or more persons as agent to perform any act or acts
necessary or incident to any sale held by it (including the posting of notices
and the conduct of sale), and such appointment need not be in writing or
recorded. Any and all statements of fact or other recitals made in any deed or
deeds, or other instruments of transfer, given in connection with a sale as to
nonpayment of the secured indebtedness or as to the occurrence of any default,
or as to all of the secured indebtedness having been declared to be due and
payable, or as to the request to sell, or as to notice of time, place and terms
of sale and the properties to be sold having been duly given, or, with respect
to any sale by the Trustee, or any successor or substitute trustee, as to the
refusal, failure or inability to act of Trustee or any substitute or successor
trustee or the appointment of any substitute or successor trustee, or as to any
other act or thing having been duly done, shall be taken as prima facie evidence
of the truth of the facts so stated and recited. Notwithstanding any reference
herein to the Credit Agreement or any other Loan Document, all persons dealing
with the Mortgaged Properties shall be entitled to rely on any document, or
certificate, of Agent as to the occurrence of an event, such as an Event of
Default, and shall not be charged with or forced to review any provision of any
other document to determine the accuracy thereof. With respect to any sale held
in foreclosure of the liens and/or security interests covered hereby, it shall
not be necessary for the Trustee, Agent, any public officer acting under
execution or order of the court or any other party to have physically present or
constructively in his/her or its possession, either at the time of or prior to
such sale, the Property or any part thereof.
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Section 4.5. Effective as Mortgage. This instrument shall be effective as a
mortgage as well as a deed of trust and upon the occurrence of a default may be
foreclosed as to the Mortgaged Properties, or any portion thereof, in any manner
permitted by applicable law, and any foreclosure suit may be brought by Trustee
or by Agent. To the extent, if any, required to cause this instrument to be so
effective as a mortgage as well as a deed of trust, Mortgagor hereby mortgages
the Mortgaged Properties to Agent. In the event a foreclosure hereunder as to
the Mortgaged Properties, or any part thereof, shall be commenced by Trustee, or
his substitute or successor, Agent may at any time before the sale of such
properties direct Trustee to abandon the sale, and may then institute suit for
the foreclosure of this Mortgage as to such properties. It is agreed that if
Agent should institute a suit for the foreclosure of this Mortgage, Agent may at
any time before the entry of a final judgment in said suit dismiss the same, and
require Trustee, its substitute or successor, to sell the Mortgaged Properties,
or any part thereof, in accordance with the provisions of this Mortgage.
Section 4.6. Receiver. In addition to all other remedies herein provided
for, Mortgagor agrees that, upon the occurrence of a default, Agent shall as a
matter of right be entitled to the appointment of a receiver or receivers for
all or any part of the Property, whether such receivership be incident to a
proposed sale (or sales) of such property or otherwise, and without regard to
the value of the Property or the solvency of any person or persons liable for
the payment of the indebtedness secured hereby, and Mortgagor does hereby
consent to the appointment of such receiver or receivers, waives any and all
defenses to such appointment, and agrees not to oppose any application therefor
by Agent, and agrees that such appointment shall in no manner impair, prejudice
or otherwise affect the rights of Agent under Article III hereof. Mortgagor
expressly waives notice of a hearing for appointment of a receiver and the
necessity for bond or an accounting by the receiver. Nothing herein is to be
construed to deprive Agent or any Lender of any other right, remedy or privilege
it may now or hereafter have under the law to have a receiver appointed. Any
money advanced by Agent in connection with any such receivership shall be a
demand obligation (which obligation Mortgagor hereby expressly promises to pay)
owing by Mortgagor to Agent and shall bear interest, from the date of making
such advancement by Agent until paid, at the rate described in Section 2.4
hereof.
Section 4.7. Proceeds of Foreclosure. The proceeds of any sale held in
foreclosure of the liens and/or security interests evidenced hereby shall be
applied:
FIRST, to the payment of all necessary costs and expenses incident to
such foreclosure sale, including all court costs and charges of every
character in the event foreclosed by suit or any judicial proceeding and
including a reasonable fee to the Trustee if such sale was made by the
Trustee acting under the provisions of Section 4.4.(a);
SECOND, to the payment of the secured indebtedness (including the
principal, interest and attorneys' fees due and unpaid under the Credit
Agreement and the amounts due and unpaid and owed under this Mortgage) in
such manner and order as provided by the Credit Agreement; and
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THIRD, the remainder, if any there shall be, shall be paid to
Mortgagor, or to Mortgagor's heirs, devisees, representatives, successors
or assigns, or such other persons as may be entitled thereto by law.
Section 4.8. Lender as Purchaser. Any Lender shall have the right to become
the purchaser at any sale held in foreclosure of the liens and/or security
interests evidenced hereby, and any Lender purchasing at any such sale shall
have the right to credit upon the amount of the bid made therefor, to the extent
necessary to satisfy such bid, the secured indebtedness owing to such Lender, or
if such Lender holds less than all of such indebtedness, the pro rata part
thereof owing to such Lender, accounting to all other Lenders not joining in
such bid in cash for the portion of such bid or bids apportionable to such
non-bidding Lender or Lenders.
Section 4.9. Foreclosure as to Matured Debt. Upon the occurrence of a
default, Agent shall have the right to proceed with foreclosure of the liens
and/or security interests evidenced hereby without declaring the entire secured
indebtedness due, and in such event, any such foreclosure sale may be made
subject to the unmatured part of the secured indebtedness and shall not in any
manner affect the unmatured part of the secured indebtedness, but as to such
unmatured part, this Mortgage shall remain in full force and effect just as
though no sale had been made. The proceeds of such sale shall be applied as
provided in Section 4.7 except that the amount paid under clause SECOND thereof
shall be only the matured portion of the secured indebtedness and any proceeds
of such sale in excess of those provided for in clauses FIRST and SECOND
(modified as provided above) shall be applied as provided in Section 3.2 hereof.
Several sales may be made hereunder without exhausting the right of sale for any
unmatured part of the secured indebtedness.
Section 4.10. Remedies Cumulative. All remedies herein provided for are
cumulative of each other and of all other remedies existing at law or in equity
and are cumulative of any and all other remedies provided for in any other Loan
Document, and, in addition to the remedies herein provided, there shall continue
to be available all such other remedies as may now or hereafter exist at law or
in equity for the collection of the secured indebtedness and the enforcement of
the covenants herein and the foreclosure of the liens and/or security interests
evidenced hereby, and the resort to any remedy provided for hereunder or under
any such other Loan Document or provided for by law shall not prevent the
concurrent or subsequent employment of any other appropriate remedy or remedies.
Section 4.11. Discretion as to Security. Agent may resort to any security
given by this Mortgage or to any other security now existing or hereafter given
to secure the payment of the secured indebtedness, in whole or in part, and in
such portions and in such order as may seem best to Agent in its sole and
absolute discretion, and any such action shall not in any way be considered as a
waiver of any of the rights, benefits, liens or security interests evidenced by
this Mortgage.
Section 4.12. Mortgagor's Waiver of Certain Rights. To the full extent
Mortgagor may do so, Mortgagor agrees that Mortgagor will not at any time insist
upon, plead, claim or take the benefit or advantage of any law now or hereafter
in force providing for any appraisement, valuation, stay, extension or
redemption, and Mortgagor, for Mortgagor, Mortgagor's heirs,
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devisees, representatives, successors and assigns, and for any and all persons
ever claiming any interest in the Property, to the extent permitted by
applicable law, hereby waives and releases all rights of appraisement,
valuation, stay of execution, redemption, notice of intention to mature or
declare due the whole of the secured indebtedness, notice of election to mature
or declare due the whole of the secured indebtedness and all rights to a
marshaling of assets of Mortgagor, including the Property, or to a sale in
inverse order of alienation in the event of foreclosure of the liens and/or
security interests hereby created. Mortgagor shall not have or assert any right
under any statute or rule of law pertaining to the marshaling of assets, sale in
inverse order of alienation, the exemption of homestead, the administration of
estates of decedents, or other matters whatever to defeat, reduce or affect the
right under the terms of this Mortgage to a sale of the Property for the
collection of the secured indebtedness without any prior or different resort for
collection, or the right under the terms of this Mortgage to the payment of the
secured indebtedness out of the proceeds of sale of the Property in preference
to every other claimant whatever. If any law referred to in this section and now
in force, of which Mortgagor or Mortgagor's heirs, devisees, representatives,
successors or assigns or any other persons claiming any interest in the
Mortgaged Properties or the Collateral might take advantage despite this
section, shall hereafter be repealed or cease to be in force, such law shall not
thereafter be deemed to preclude the application of this section.
Section 4.13. Mortgagor as Tenant Post-Foreclosure. In the event there is a
foreclosure sale hereunder and at the time of such sale Mortgagor or Mortgagor's
representatives, successors or assigns or any other persons claiming any
interest in the Property by, through or under Mortgagor are occupying or using
the Property, or any part thereof, each and all shall immediately become the
tenant of the purchaser at such sale, which tenancy shall be a tenancy from day
to day, terminable at the will of either landlord or tenant, at a reasonable
rental per day based upon the value of the property occupied, such rental to be
due daily to the purchaser. To the extent permitted by applicable law, the
purchaser at such sale shall, notwithstanding any language herein apparently to
the contrary, have the sole option to demand immediate possession following the
sale or to permit the occupants to remain as tenants at will, hi the event the
tenant fails to surrender possession of said property upon demand, the purchaser
shall be entitled to institute and maintain a summary action for possession of
the property (such as an action for forcible entry and detainer) in any court
having jurisdiction.
Section 4.14. Request for Notice. Notwithstanding the notice provisions in
Section 5.13, Mortgagor hereby requests a copy of any notice of default and that
any notice of sale hereunder be mailed to it at the address set forth below its
signature on this Mortgage.
ARTICLE V.
Miscellaneous
Section 5.1. Effective as a Financing Statement. This Mortgage covers goods
which are or are to become fixtures on the real property described herein, and
this Mortgage shall be effective as a financing statement filed as a fixture
filing with respect to all fixtures included within the Property. This Mortgage
shall also be effective as a financing statement, filed as a
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fixture filing, covering as-extracted collateral, minerals and other substances
of value which may be extracted from the earth (including oil and gas), and
accounts related thereto, which will be financed at the wellhead or minehead of
the xxxxx or mines located on the Mortgaged Properties. This Mortgage is to be
filed for record in the real property or other appropriate records of each
county where any part of the Mortgaged Properties is situated or which lies
shoreward of any Mortgaged Property (i.e., to the extent a Mortgaged Property
lies offshore within the projected seaward extension of the relevant county
boundaries), and may also be filed in the offices of the Bureau of Land
Management or the Minerals Management Service or any relevant state agency (or
any successor agencies). This Mortgage shall also be effective as a financing
statement covering any other Property and may be filed in any other appropriate
filing or recording office. The mailing address of Mortgagor is the address of
Mortgagor set forth at the end of this Mortgage and the address of Agent from
which information concerning the security interests hereunder may be obtained is
the address of Agent set forth at the end of this Mortgage.
Section 5.2. Reproduction of Mortgage as Financing Statement. A carbon,
photographic, facsimile or other reproduction of this Mortgage or of any
financing statement relating to this Mortgage shall be sufficient as a financing
statement for any of the purposes referred to in Section 5.1. Without limiting
any other provision herein, Mortgagor hereby authorizes Agent to file one or
more financing statements, or renewal or continuation statements thereof,
describing the Collateral.
Section 5.3. Notice to Account Debtors. In addition to, but without
limitation of, the rights granted in Article III hereof, Agent may, at any time
after a default has occurred that is continuing, notify the account debtors or
obligors of any accounts, chattel paper, negotiable instruments or other
evidences of indebtedness included in the Collateral to pay Agent directly.
Section 5.4. Waivers. Agent may at any time and from time to time in
writing waive compliance by Mortgagor with any covenant herein made by Mortgagor
to the extent and in the manner specified in such writing, or consent to
Mortgagor's doing any act which hereunder Mortgagor is prohibited from doing, or
to Mortgagor's failing to do any act which hereunder Mortgagor is required to
do, to the extent and in the manner specified in such writing, or release any
part of the Property or any interest therein or any Rents from the lien and
security interest of this Mortgage, without the joinder of Trustee. Any party
liable, either directly or indirectly, for the secured indebtedness or for any
covenant herein or in any other Loan Document may be released from all or any
part of such obligations without impairing or releasing the liability of any
other party. No such act shall in any way impair any rights or powers hereunder
except to the extent specifically agreed to in such writing.
Section 5.5. No Impairment of Security. The lien, security interest and
other security rights hereunder shall not be impaired by any indulgence,
moratorium or release which may be granted, including any renewal, extension or
modification which may be granted with respect to any secured indebtedness, or
any surrender, compromise, release, renewal, extension, exchange or substitution
which may be granted in respect of the Property (including Rents), or any part
thereof or any interest therein, or any release or indulgence granted to any
endorser, guarantor or surety of any secured indebtedness.
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Section 5.6. Acts Not Constituting Waiver. Any default may be waived
without waiving any other prior or subsequent default. Any default may be
remedied without constituting a waiver by Agent or any Lender of the default
remedied. Neither failure to exercise, nor delay in exercising, any right, power
or remedy upon any default shall be construed as a waiver of such default or as
a waiver of the right to exercise any such right, power or remedy at a later
date. No single or partial exercise of any right, power or remedy hereunder
shall exhaust the same or shall preclude any other or further exercise thereof,
and every such right, power or remedy hereunder may be exercised at any time and
from time to time. No modification or waiver of any provision hereof nor consent
to any departure by Mortgagor therefrom shall in any event be effective unless
the same shall be in writing and signed by Agent and then such waiver or consent
shall be effective only in the specific instances, for the purpose for which
given and to the extent therein specified. No notice to nor demand on Mortgagor
in any case shall of itself entitle Mortgagor to any other or further notice or
demand in similar or other circumstances. Acceptance of any payment in an amount
less than the amount then due on any secured indebtedness shall be deemed an
acceptance on account only and shall not in any way excuse the existence of a
default hereunder (except to the extent waived by Required Lenders (as defined
in the Credit Agreement) in writing in compliance with Section 10.5 of the
Credit Agreement).
Section 5.7. Mortgagor's Successors. In the event the ownership of the
Property or any part thereof becomes vested in a person other than Mortgagor,
then, without notice to Mortgagor, such successor or successors in interest may
be dealt with, with reference to this Mortgage and to the indebtedness secured
hereby, in the same manner as with Mortgagor, without in any way vitiating or
discharging Mortgagor's liability hereunder or for the payment of the
indebtedness or performance of the obligations secured hereby. No transfer of
the Property, no forbearance, and no extension of the time for the payment of
the indebtedness secured hereby shall operate to release, discharge, modify,
change or affect, in whole or in part, the liability of Mortgagor hereunder or
for the payment of the indebtedness or performance of the obligations secured
hereby or the liability of any other person hereunder or for the payment of the
indebtedness secured hereby.
Section 5.8. Subrogation to Existing Liens. The proceeds of the Loans have
been used to pay indebtedness secured by certain outstanding liens, security
interests, charges or prior encumbrances against the Property (including those
in favor of Laurus Master Fund, Ltd. and Erato Corp.), such proceeds have been
advanced at Mortgagor's request, and the Lenders (and Trustee and Mortgagee on
behalf of the Lenders) shall be subrogated to any and all rights, security
interests and liens owned by any owner or holder of such outstanding liens,
security interests, charges or encumbrances, irrespective of whether said liens,
security interests, charges or encumbrances are released, and it is expressly
understood that, in consideration of the payment of such indebtedness, Mortgagor
hereby waives and releases all demands and causes of action for offsets and
payments to, upon and in connection with the said indebtedness.
Section 5.9. Application of Payments to Certain Indebtedness. If any part
of the secured indebtedness cannot be lawfully secured by this Mortgage or if
any part of the Property cannot be lawfully subject to the lien and security
interest hereof to the full extent of such indebtedness, then all payments made
shall be applied on said indebtedness first in discharge of that portion thereof
which is not secured by this Mortgage.
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Section 5.10. Compliance With Usury Laws. It is the intent of Mortgagor,
Lender and all other parties to the Loan Documents to contract in strict
compliance with applicable usury law from time to time in effect. In furtherance
thereof, it is stipulated and agreed that, as more fully provided in the Credit
Agreement, none of the terms and provisions contained herein shall ever be
construed to create a contract to pay, for the use, forbearance or detention of
money, interest in excess of the maximum amount of interest permitted to be
collected, charged, taken, reserved, or received by applicable law from time to
time in effect.
Section 5.11. Substitute Trustee. The Trustee may resign by an instrument
in writing addressed to Agent, or Trustee may be removed at any time with or
without cause by an instrument in writing executed by Agent. In case of the
death, resignation, removal, or disqualification of Trustee, or if for any
reason Agent shall deem it desirable to appoint a substitute or successor
trustee to act instead of the herein named trustee or any substitute or
successor trustee, then Agent shall have the right and is hereby authorized and
empowered to appoint a successor trustee, or a substitute trustee, without other
formality than appointment and designation in writing executed by Agent and the
authority hereby conferred shall extend to the appointment of other successor
and substitute trustees successively until the indebtedness secured hereby has
been paid in full, or until the Property is sold hereunder. Such appointment and
designation by Agent shall be full evidence of the right and authority to make
the same and of all facts therein recited. If Agent is a corporation or
association and such appointment is executed in its behalf by an officer of such
corporation or association, such appointment shall be conclusively presumed to
be executed with authority and shall be valid and sufficient without proof of
any action by the board of directors or any superior officer of the corporation
or association. Agent may act through an agent or attorney-in-fact in
substituting trustees. Upon the making of any such appointment and designation,
all of the estate and title of Trustee in the Mortgaged Properties shall vest in
the named successor or substitute Trustee and such successor or substitute shall
thereupon succeed to, and shall hold, possess and execute, all the rights,
powers, privileges, immunities and duties herein conferred upon Trustee; but
nevertheless, upon the written request of Agent or of the successor or
substitute Trustee, the Trustee ceasing to act shall execute and deliver an
instrument transferring to such successor or substitute Trustee all of the
estate and title in the Mortgaged Properties of the Trustee so ceasing to act,
together with all the rights, powers, privileges, immunities and duties herein
conferred upon the Trustee, and shall duly assign, transfer and deliver any of
the properties and moneys held by said Trustee hereunder to said successor or
substitute Trustee. All references herein to Trustee shall be deemed to refer to
Trustee (including any successor or substitute appointed and designated as
herein provided) from time to time acting hereunder.
Section 5.12. No Liability for Trustee. THE TRUSTEE SHALL NOT BE LIABLE FOR
ANY ERROR OF JUDGMENT OR ACT DONE BY TRUSTEE IN GOOD FAITH, OR BE OTHERWISE
RESPONSIBLE OR ACCOUNTABLE UNDER ANY CIRCUMSTANCES WHATSOEVER (INCLUDING THE
TRUSTEE'S NEGLIGENCE), EXCEPT FOR TRUSTEE'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. The Trustee shall have the right to rely on any instrument, document
or signature authorizing or supporting any action taken or proposed to be taken
by the Trustee hereunder, believed by the Trustee in good faith to be genuine.
All moneys received by Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need not be
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segregated in any manner from any other moneys (except to the extent required by
law), and Trustee shall be under no liability for interest on any moneys
received by him hereunder. Mortgagor hereby ratifies and confirms any and all
acts which the herein named Trustee or its successor or successors, substitute
or substitutes, shall do lawfully by virtue hereof. Mortgagor will reimburse
Trustee for, and indemnify and save Trustee harmless against, any and all
liability and expenses (including attorneys fees) which may be incurred by
Trustee in the performance of his duties. The foregoing indemnities shall not
terminate upon the release, foreclosure or other termination of this Mortgage
but will survive such release, termination and/or foreclosure of this Mortgage,
or conveyance in lieu of foreclosure, and the repayment of the secured
indebtedness and the discharge and release of this Mortgage and the other
documents evidencing and/or securing the secured indebtedness. Any amount to be
paid hereunder by Mortgagor to Trustee shall be a demand obligation owing by
Mortgagor to Trustee and shall be subject to and covered by the provisions of
Section 2.4 hereof.
Section 5.13. Notices. All notices, requests, consents, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed sufficiently given or furnished if delivered in compliance with and
according to Section 10.1 of the Credit Agreement. Notwithstanding the
foregoing, or anything else in the Loan Documents which may appear to the
contrary, any notice given in connection with a foreclosure of the liens and/or
security interests created hereunder, or otherwise in connection with the
exercise by Agent, any Lender or Trustee of their respective rights hereunder or
under any other Loan Document, which is given in a manner permitted by
applicable law shall constitute proper notice; without limitation of the
foregoing, notice given in a form required or permitted by statute shall (as to
the portion of the Property to which such statute is applicable) constitute
proper notice.
Section 5.14. Invalidity of Certain Provisions. A determination that any
provision of this Mortgage is unenforceable or invalid shall not affect the
enforceability or validity of any other provision and the determination that the
application of any provision of this Mortgage to any person or circumstance is
illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
Section 5.15. Interpretation, etc. Within this Mortgage, words of any
gender shall be held and construed to include any other gender, and words in the
singular number shall be held and construed to include the plural, unless the
context otherwise requires. Titles appearing at the beginning of any
subdivisions hereof are for convenience only, do not constitute any part of such
subdivisions, and shall be disregarded in construing the language contained in
such subdivisions. References herein to any Section or Exhibit shall be to a
Section or an Exhibit, as the case may be, hereof unless otherwise specifically
provided. The word "or" is not exclusive. The use herein of the word "include"
or "including", when following any general statement, term or matter, shall not
be construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
This Mortgage has been reviewed and negotiated by sophisticated parties with
access to legal
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counsel and no rule of construction shall apply hereto or thereto which would
require or allow this Mortgage to be construed against any party because of its
role in drafting this Mortgage.
Section 5.16. Certain Consents. Except where otherwise expressly provided
herein, in any instance hereunder where the approval, consent or the exercise of
judgment of Agent or any Lender is required, the granting or denial of such
approval or consent and the exercise of such judgment shall be within the sole
discretion of such party, and such party shall not, for any reason or to any
extent, be required to grant such approval or consent or exercise such judgment
in any particular manner, regardless of the reasonableness of either the request
or the judgment of such party.
Section 5.17. Certain Obligations of Mortgagor. Without limiting
Mortgagor's obligations hereunder, Mortgagor's liability hereunder shall extend
to and include all post-petition interest, expenses, and other duties and
liabilities with respect to Mortgagor's obligations hereunder which would be
owed but for the fact that the same may be unenforceable due to the existence of
a bankruptcy, reorganization or similar proceeding.
Section 5.18. Authority of Agent. The persons constituting Lenders may, by
agreement among themselves, provide for and regulate the exercise of rights and
remedies hereunder, but, unless and until modified to the contrary in writing
signed by all such persons and recorded in the same counties as this Mortgage is
recorded, (i) all persons other than Mortgagor and its affiliates shall be
entitled to rely on the releases, waivers, consents, approvals, notifications
and other acts (including the appointment of substitute or successor trustee, or
trustees, hereunder and the bidding in of all or any part of the secured
indebtedness held by any one or more Lenders, whether the same be conducted
under the provisions hereof or otherwise) of Agent, without inquiry into any
such agreements or the existence of required consent or approval of any persons
constituting Lender and without the joinder of any party other than Agent in
such releases, waivers, consents, approvals, notifications or other acts and
(ii) all notices, requests, consents, demands and other communications required
or permitted to be given hereunder may be given to Agent.
Section 5.19. Counterparts. This Mortgage may be executed in several
counterparts, all of which are identical, except that, to facilitate
recordation, certain counterparts hereof may include only those portions of
Exhibit A which contains descriptions of the properties located in (or otherwise
subject to the recording or filing requirements and/or protections of the
recording or filing acts or regulations of) the recording jurisdiction in which
the particular counterpart is to be recorded, and other portions of Exhibit A
shall be included in such counterparts by reference only. All of such
counterparts together shall constitute one and the same instrument. Complete
copies of this Mortgage containing the entire Exhibit A have been retained by
Mortgagor and Agent.
Section 5.20. Successors and Assigns. The terms, provisions, covenants,
representations, indemnifications and conditions hereof shall be binding upon
Mortgagor, and the successors and assigns of Mortgagor, and shall inure to the
benefit of Agent, Trustee and each person constituting Lender and their
respective successors and assigns, and shall constitute covenants running with
the Mortgaged Properties. Should the agency under which Agent serves be
24
terminated, or otherwise cease to exist, Lenders (including the respective
successors and assigns of each person constituting Lender named herein) shall be
deemed to be the successors to Agent. All references in this Mortgage to
Mortgagor, Agent, Trustee or Lenders shall be deemed to include all such
successors and assigns.
Section 5.21. FINAL AGREEMENT OF THE PARTIES. THE WRITTEN LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 5.22. CHOICE OF LAW. WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW, THIS MORTGAGE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND
TO BE PERFORMED ENTIRELY WITHIN SUCH STATE AND THE LAWS OF THE UNITED STATES OF
AMERICA, EXCEPT THAT TO THE EXTENT THAT THE LAW OF A STATE IN WHICH A PORTION OF
THE PROPERTY IS LOCATED (OR WHICH IS OTHERWISE APPLICABLE TO A PORTION OF THE
PROPERTY) NECESSARILY GOVERNS WITH RESPECT TO PROCEDURAL AND SUBSTANTIVE MATTERS
RELATING TO THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIENS, SECURITY
INTERESTS AND OTHER RIGHTS AND REMEDIES OF THE TRUSTEE OR THE AGENT GRANTED
HEREIN, THE LAW OF SUCH STATE SHALL APPLY AS TO THAT PORTION OF THE PROPERTY
LOCATED IN (OR WHICH IS OTHERWISE SUBJECT TO THE LAWS OF) SUCH STATE.
Section 5.23. Place of Payment. All secured indebtedness which may be owing
hereunder at any time by Mortgagor shall be payable at the place designated in
the Credit Agreement (or if no such designation is made, at the address of Agent
indicated at the end of this Mortgage), or at such other place as Agent may
designate in writing.
Section 5.24. Waivers. In addition to all the other waivers agreed to and
made by Mortgagor as set forth in this Mortgage, by executing this Mortgage,
Mortgagor freely, irrevocably and unconditionally waives all rights and defenses
that the Mortgagor may have because the Parent's debt is secured by any other
mortgage or interest in real property. This means, among other things:
(a) Agent may collect from the Mortgagor without first foreclosing on
any real or personal property collateral pledged by Parent or any other obligor.
(b) If Agent forecloses on any real property collateral pledged by the
Parent or any other obligor:
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(i) The amount of the debt may be reduced only by the price for
which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price; and
(ii) The Agent may exercise its rights and remedies under this
Mortgage, even if the Agent, by foreclosing on other real property
collateral, has destroyed any right the Mortgagor may have to collect from
Parent. This is an unconditional and irrevocable waiver of any rights and
defenses the Mortgagor may have because Parent's debt is secured by real
property. These rights and defenses include, but are not limited to, any
rights or defenses based upon Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure otherwise available as the result of
foreclosure on any real property other than the Mortgaged Properties;
(c) Mortgagor waives all rights and defenses arising out of an
election of remedies by Agent, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed obligation,
has destroyed the Mortgagor's rights of subrogation and reimbursement against
the principal by the operation of Section 580d of the California Code of Civil
Procedure or otherwise; and
(d) Mortgagor waives the Mortgagor's or other surety's rights of
subrogation, reimbursement, indemnification and contribution and other rights,
benefits and defenses, if any, otherwise available to Mortgagor pursuant to
California law, including, without limitation, the rights, benefits or defenses
set forth in California Civil Code Sections 2787 to 2855, inclusive, 2899 or
3433.
Section 5.25. Escrow; Priority. Mortgagor is delivering this Mortgage as
part of a series of related transactions pursuant to which the liens and
security interests under this Mortgage are granted by Mortgagor. This Mortgage
is being placed in escrow with U.S. Bank National Association, under an escrow
agreement that provides for the delivery and release of this Mortgage.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, Mortgagor has executed this Mortgage on the date set
forth in the acknowledgment below and has deposited this Mortgage in escrow with
U.S. Bank National Association, to be released from escrow and delivered on
behalf and as the act of Mortgagor as described in Section 5.25 above. This
Mortgage shall be deemed delivered upon such release from escrow, at which time
this Mortgage shall become effective as of 7:02 a.m., Pacific time, on November
1,2006.
SAN XXXXX BAY PIPELTNE COMPANY
By: /s/ Xxxxxx Xxxxx
------------------------------
Xxxxxx Xxxxx
President
The address of Agent is: The address of Mortgagor is:
00 Xxxxx Xxxxxx 000 Xxxx Xxxxx Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxx 0000
Xxxx Xxxxx, XX 00000
The address of the Trustee is: Attention: Xxxxxx Xxxxx
000 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
