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4. Existing natural gas pipeline within easement under Right-of-Way Agreement dated <br />September 4th, 2002, recorded at Reception No. 838426 and re-recorded at Reception No. <br />891580), located in the affected land. <br />5. Existing Zellitti 34-9 34-1 Well (API #05-067-08766) together with associated production <br />facilities including a pumping unit, 2 500 bbl vertical water tanks, meter run, separator, dehy <br />unit and 90 bbl pit tank and associated pipeline and natural gas pipelines, lying in the SE 114 of <br />the SEIt4 of Section 34, Township 34 North, Range 9 West, N.M.P.M., La Plata County, <br />Colorado within two hundred (200) feet of the affected land, under Surface Damage Agreement dated <br />August 271h, 2002, recorded at Reception No. 838424, and Surface Damage Agreement dated September <br />4`h, 2002, recorded at Reception No. 838427. <br />NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable <br />consideration, Elam agrees to a minimum setback, from the exterior boundary of XTO's <br />easement of 15 feet for every 10 feet of depth below the surface grade which now exist, and <br />also agrees to compensate XTO for any damage(s) to the Facilities incurred as a result of Elam's <br />mining activities. <br />NOTICES: <br />All notices under this Agreement by either party shall be sufficiently given and served if sent by United <br />States mail, postage prepaid and addressed to either party at the address as designated below; or to such <br />other place as either party may from time to time designate by notice to the other: <br />XTO Energy Inc. <br />810 Houston Street, <br />Fort Worth, TX 761.02-6298 <br />Local Office: 970-247-7708 <br />Elam Construction, Inc. <br />556 Struthers Ave., <br />Grand Junction, CO 81501 <br />970-242-5370 <br />XTO Energy Inc., a Delaware corporation <br />By: /z tt4, <br />Name: Edwin S. Ryan, Jr. DC-F <br />Title: Senior Vice President - Land Administration <br />Page 2 of 3