SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
July 7, 2010
Date of Report (Date of earliest event reported)
ECA MARCELLUS TRUST I
(Exact name of Registrant as specified in its charter)
         
Delaware
(State or other jurisdiction
of incorporation)
  001-34800
(Commission
File Number)
  27-6522024
(IRS Employer
Identification Number)
919 Congress Avenue
Austin, Texas 78701

(Address of principal executive offices)

(800) 852-1422
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 


 

Item 1.01 Entry into a Material Definitive Agreement.
     On July 7, 2010 (the “Closing Date”) The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) of ECA Marcellus Trust I (the “Trust”), not in its individual capacity but solely as trustee of the Trust, and Energy Corporation of America (“ECA”) entered into (a) a Perpetual Overriding Royalty Interest Conveyance (PDP) and (b) a Perpetual Overriding Royalty Conveyance (PUD) (collectively, the “Conveyances”) pursuant to which ECA transferred to the Trust perpetual royalty interests in certain natural gas properties in which ECA holds interests. The description of the Conveyances contained in the section entitled “Description of the Royalty Interests” of the Trust’s final prospectus dated June 30, 2010 (File No. 333-165833) and filed on July 1, 2010 with the Commission pursuant to Rule 424(b)(1) under the Securities Act (the “Final Prospectus”) is incorporated herein by reference. Copies of the respective Conveyances are filed as Exhibits 10.1 and 10.2 to this Form 8-K and are incorporated herein by reference.
     On the Closing Date, the Trustee, not in its individual capacity but solely as trustee of the Trust, and certain private investors of ECA (the “Private Investors”) entered into an Assignment of Royalty Interests pursuant to which the Private Investors transferred to the Trust perpetual royalty interests in certain natural gas properties in which the Private Investors had interests. The Private Investors conveyed royalty interests identical in nature to the Perpetual Overriding Royalty Interest Conveyance (PDP) conveyed by ECA to the Trust. The description of the Assignment of Royalty Interests contained in the section entitled “Certain Transactions” of the Final Prospectus is incorporated by reference herein. A copy of the Assignment of Royalty Interests is filed as Exhibit 10.3 to this Form 8-K and is incorporated herein by reference.
     On the Closing Date the Trustee, not in its individual capacity but solely as trustee of the Trust, and Eastern Marketing Corporation, a wholly owned subsidiary of ECA (“EMCO”), entered into an Assignment of Royalty Interest (the “EMCO Conveyance”) pursuant to which EMCO transferred to the Trust (a) a Term Overriding Royalty Conveyance (PDP) and (b) a Term Overriding Royalty Conveyance (PUD) initially transferred from ECA to EMCO. Descriptions of the Term Overriding Royalty Conveyance (PDP), the Term Overriding Royalty Conveyance (PUD) and the EMCO Conveyance contained in the section entitled “Description of the Royalty Interests” of the Final Prospectus is incorporated herein by reference. Copies of the respective conveyances are filed as Exhibits 10.4, 10.5 and 10.6 to this Form 8-K and are incorporated herein by reference.
     On the Closing Date ECA and the Trustee, not in its individual capacity but solely as trustee of the Trust, also entered into an Administrative Services Agreement (the “Administrative Services Agreement”) pursuant to which ECA has agreed to provide the Trust with accounting, bookkeeping and informational services to be performed by ECA on behalf of the Trust relating to the royalty interests in exchange for an annual administrative services fee of $60,000 to be paid to ECA on a quarterly basis. The description of the Administrative Services Agreement contained in the section entitled “The Trust – Administrative Services Agreement and Development Agreement” of the Final Prospectus is incorporated herein by reference. A copy of the Administrative Services Agreement is filed as Exhibit 10.7 to this Form 8-K and is incorporated herein by reference.
     On the Closing Date ECA and the Trustee, not in its individual capacity but solely as trustee of the Trust, also entered into a Development Agreement (the “Development Agreement”) pursuant to which ECA has agreed to drill certain wells as described in the Final Prospectus. The description of the Development Agreement contained in the section entitled “The Trust – Administrative Services Agreement and Development Agreement” of the Final Prospectus is incorporated herein by reference. A copy of the Development Agreement is filed as Exhibit 10.8 to this Form 8-K and is incorporated herein by reference.
     On the Closing Date ECA and the Trust also entered into a Swap Agreement (the “Swap Agreement”) pursuant to which ECA has agreed to provide the Trust with the benefit of certain contracts entered into between ECA and third parties relating to a portion of the estimated natural gas expected to be produced from the properties in which the Trust has an interest from April 1, 2010 through March 31, 2014, all as described in the Final Prospectus. The description of the Swap Agreement contained in the section entitled “Description of the Royalty Interests –Hedging Contracts Transferred to the Trust” of the Final Prospectus is incorporated herein by reference. A copy of the Swap Agreement is filed as Exhibit 10.9 to this Form 8-K and is incorporated herein by reference.

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     On the Closing Date ECA and the Trustee, not in its individual capacity but solely as trustee of the Trust, also entered into a Mortgage, Assignment of Leases, Security Agreement, Fixture Filing and Financing Statement (the “Drilling Support Lien Agreement”) pursuant to which ECA has granted to the Trust a lien on ECA’s interest in the Marcellus Shale formation in the AMI (as described in the Final Prospectus) (except for certain producing wells and any other wells which are not subject to the Royalty Interests described in the Final Prospectus) in order to secure the estimated amount of the drilling costs for the wells ECA has agreed to drill as described in the Final Prospectus. The description of the Drilling Support Lien Agreement contained in the section entitled “The Trust – Administrative Services Agreement and Development Agreement” of the Final Prospectus is incorporated herein by reference. A copy of the Drilling Support Lien Agreement is filed as Exhibit 10.10 to this Form 8-K and is incorporated herein by reference.
     On the Closing Date, ECA and the Trustee, not in its individual capacity but solely as trustee of the Trust, also entered into a Mortgage, Assignment of Leases, Security Agreement, Fixture Filing and Financing Statement (the “Royalty Interest Lien Agreement”) pursuant to which ECA has granted to the Trust a lien on the Subject Interest and the Subject Gas (both as described in the Final Prospectus), to the extent described in the Final Prospectus, to provide protection to the Trust in case the royalty interests were not considered real property interests in the event of a bankruptcy of ECA, all as described in the Final Prospectus. The description of the Royalty Interest Lien Agreement contained in the section entitled “Description of the Royalty Interests – Royalty Interest Lien” of the Final Prospectus is incorporated herein by reference. A copy of the Royalty Interest Lien Agreement is filed as Exhibit 10.11 to this Form 8-K and is incorporated herein by reference.
     On the Closing Date, ECA, certain affiliates of ECA and the Trust entered into a Registration Rights Agreement (the “Registration Rights Agreement”) pursuant to which ECA, such affiliates and certain permitted transferees holding registrable securities would be entitled, beginning 180 days after the date of the Registration Rights Agreement, to demand that the Trust use its reasonable best efforts to effect the registration of the registrable securities under the Securities Act of 1933, as amended (the “Securities Act”). The holders of the registrable securities are entitled to demand a maximum of three such registrations. The description of the Registration Rights Agreement contained in the section entitled “Trust Units Eligible for Future Sale – Registration Rights” of the Final Prospectus is incorporated herein by reference. A copy of the Registration Rights Agreement is filed as Exhibit 10.12 to this Form 8-K and is incorporated herein by reference.
     The Bank of New York Mellon Trust Company, N.A. also serves as trustee of Eastern American Natural Gas Trust (“NGT”). NGT was formed by ECA. The Bank of New York Mellon Trust Company, N.A., in its capacity as trustee of NGT, is a party to an Amended and Restated Trust Agreement and related agreements with ECA and its affiliates, including EMCO.
Item 3.02 Unregistered Sales of Equity Securities
     The Trust also issued to certain private investors (the “Private Investors”) 1,313,879 Common Units in exchange for the conveyance of certain natural gas royalties to the Trust. ECA has previously agreed to purchase 209,312 Common Units from certain of these Private Investors following the closing of the offering. The foregoing transactions were undertaken in reliance upon the exemption from the registration requirements of the Securities Act contained in Section 4(2) thereof.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
     On the Closing Date ECA, the Trustee, not in its individual capacity but solely as trustee of the Trust, and Corporation Trust Company, as Delaware trustee of the Trust, entered into an Amended and Restated Trust Agreement (the “Amended and Restated Trust Agreement”) in connection with the closing of the transactions contemplated by the underwriting agreement dated June 30, 2010 (the “Underwriting Agreement”) among the Trust, ECA and the underwriters named therein. The description of the Amended and Restated Trust Agreement contained in the section entitled “Description of the Trust Agreement” of the Final Prospectus is incorporated herein by reference. A copy of the Amended and Restated Trust Agreement is filed as Exhibit 3.1 to this Form 8-K and is incorporated herein by reference.

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Item 7.01 Regulation FD Disclosure
     On July 7, 2010, the Trust announced it had completed its initial public offering of 8,802,500 Common Units. A copy of the press release is furnished as Exhibit 99.1 hereto and is incorporated herein by reference.
     The information furnished pursuant to this Item 7.01, including Exhibit 99.1, shall not be deemed to be “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934 and will not be incorporated by reference into any filing under the Securities Act unless specifically identified therein as being incorporated therein by reference.

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Item 9.01. Financial Statements and Other Exhibits
     (d) Exhibits
     
Exhibit No.   Description
3.1
  Amended and Restated Trust Agreement of ECA Marcellus Trust I, dated July 7, 2010, by and among Energy Corporation of America, The Bank of New York Mellon Trust Company, N.A., as Trustee, and Corporation Trust Company, as Delaware Trustee.
 
   
10.1
  Perpetual Overriding Royalty Interest Conveyance (PDP), dated effective April 1, 2010, from Energy Corporation of America to The Bank of New York Mellon Trust Company, N.A., as Trustee.
 
   
10.2
  Perpetual Overriding Royalty Interest Conveyance (PUD), dated effective April 1, 2010, from Energy Corporation of America to The Bank of New York Mellon Trust Company, N.A., as Trustee.
 
   
10.3
  Private Investor Conveyance, dated July 7, 2010, by and among ECA Marcellus Trust I and certain private investors named therein
 
   
10.4
  Assignment of Royalty Interest, dated effective April 1, 2010, from Eastern Marketing Corporation to The Bank of New York Mellon Trust Company, N.A., as Trustee.
 
   
10.5
  Term Overriding Royalty Interest Conveyance (PDP), dated effective April 1, 2010, from Energy Corporation of America to Eastern Marketing Corporation.
 
   
10.6
  Term Overriding Royalty Interest Conveyance (PUD), dated effective April 1, 2010, from Energy Corporation of America to Eastern Marketing Corporation.
 
   
10.7
  Administrative Services Agreement, dated July 7, 2010, by and between Energy Corporation of America and The Bank of New York Mellon Trust Company, N.A., as Trustee.
 
   
10.8
  Development Agreement, dated July 7, 2010, by and between Energy Corporation of America and The Bank of New York Mellon Trust Company, N.A., as Trustee.
 
   
10.9
  Swap Agreement, dated July 7, 2010, by and between Energy Corporation of America and ECA Marcellus Trust I.
 
   
10.10
  Drilling Support Lien Agreement, dated July 7, 2010, by and between Energy Corporation of America and The Bank of New York Mellon Trust Company, N.A.
 
   
10.11
  Royalty Interest Lien Agreement, dated July 7 2010, by and between Energy Corporation of America and The Bank of New York Mellon Trust Company, N.A., as Trustee.
 
   
10.12
  Registration Rights Agreement, dated July 7, 2010, by and among ECA Marcellus Trust I, Energy Corporation of America, John Mork and Julie Mork.
 
   
99.1
  Press Release issued July 7, 2010

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SIGNATURES
     Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
         
  ECA MARCELLUS TRUST I
(Registrant)


By: The Bank of New York Mellon Trust
        Company, N.A. as Trustee
 
 
  /s/ Mike J. Ulrich    
  Mike J. Ulrich   
  Vice President   
 
Dated: July 13, 2010

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Exhibit Index
Item 9.01. Financial Statements and Other Exhibits
     (d) Exhibits
     
Exhibit No.   Description
3.1
  Amended and Restated Trust Agreement of ECA Marcellus Trust I, dated July 7, 2010, by and among Energy Corporation of America, The Bank of New York Mellon Trust Company, N.A., as Trustee, and Corporation Trust Company, as Delaware Trustee.
 
   
10.1
  Perpetual Overriding Royalty Interest Conveyance (PDP), dated effective April 1, 2010, from Energy Corporation of America to The Bank of New York Mellon Trust Company, N.A., as Trustee.
 
   
10.2
  Perpetual Overriding Royalty Interest Conveyance (PUD), dated effective April 1, 2010, from Energy Corporation of America to The Bank of New York Mellon Trust Company, N.A., as Trustee.
 
   
10.3
  Private Investor Conveyance, dated July 7, 2010, by and among ECA Marcellus Trust I and certain private investors named therein
 
   
10.4
  Assignment of Royalty Interest, dated effective April 1, 2010, from Eastern Marketing Corporation to The Bank of New York Mellon Trust Company, N.A., as Trustee.
 
   
10.5
  Term Overriding Royalty Interest Conveyance (PDP), dated effective April 1, 2010, from Energy Corporation of America to Eastern Marketing Corporation.
 
   
10.6
  Term Overriding Royalty Interest Conveyance (PUD), dated effective April 1, 2010, from Energy Corporation of America to Eastern Marketing Corporation.
 
   
10.7
  Administrative Services Agreement, dated July 7, 2010, by and between Energy Corporation of America and The Bank of New York Mellon Trust Company, N.A., as Trustee.
 
   
10.8
  Development Agreement, dated July 7, 2010, by and between Energy Corporation of America and The Bank of New York Mellon Trust Company, N.A., as Trustee.
 
   
10.9
  Swap Agreement, dated July 7, 2010, by and between Energy Corporation of America and ECA Marcellus Trust I.
 
   
10.10
  Drilling Support Lien Agreement, dated July 7, 2010, by and between Energy Corporation of America and The Bank of New York Mellon Trust Company, N.A.
 
   
10.11
  Royalty Interest Lien Agreement, dated July 7 2010, by and between Energy Corporation of America and The Bank of New York Mellon Trust Company, N.A., as Trustee.
 
   
10.12
  Registration Rights Agreement, dated July 7, 2010, by and among ECA Marcellus Trust I, Energy Corporation of America, John Mork and Julie Mork.
 
   
99.1
  Press Release issued July 7, 2010

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Exhibit 3.1
Execution Version
AMENDED AND RESTATED
TRUST AGREEMENT
OF
ECA MARCELLUS TRUST I
Among
ENERGY CORPORATION OF AMERICA
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
and
CORPORATION TRUST COMPANY
Dated: As of July 7, 2010

 


 

TABLE OF CONTENTS
         
    Page  
ARTICLE I DEFINITIONS
    2  
 
       
ARTICLE II NAME AND PURPOSE OF THE TRUST; DECLARATION OF TRUST
    9  
 
       
Section 2.01 Name; Certificate of Trust
    9  
Section 2.02 Purpose
    9  
Section 2.03 Transfer of Trust Property to the Trust
    10  
Section 2.04 Creation of the Trust
    11  
Section 2.05 Principal Offices
    12  
 
       
ARTICLE III ADMINISTRATION OF THE TRUST AND POWERS OF THE TRUSTEE AND THE DELAWARE TRUSTEE
    12  
 
       
Section 3.01 General Authority
    12  
Section 3.02 Limited Power of Disposition of the Trust
    12  
Section 3.03 No Power to Engage in Business or Make Investments or Issue Additional Securities
    14  
Section 3.04 Interest on Cash Reserves
    15  
Section 3.05 Power to Settle Claims
    15  
Section 3.06 Power to Contract for Services
    15  
Section 3.07 Payment of Liabilities of Trust
    16  
Section 3.08 Income and Principal
    16  
Section 3.09 Term of Contracts
    17  
Section 3.10 Transactions with Entity Serving as the Trustee or the Delaware Trustee
    17  
Section 3.11 No Security Required
    17  
Section 3.12 Filing of Securities Act Registration Statement, Exchange Act Registration Statement and Other Reports, Listing of Trust Units, etc.; Certain Fees and Expenses
    17  
Section 3.13 Reserve Report
    18  
Section 3.14 No Liability for Recordation
    18  
Section 3.15 Quarterly Cash Distributions
    18  
Section 3.16 Entity-Level Taxation
    19  
 
       
ARTICLE IV TRUST UNITS AND UNCERTIFICATED BENEFICIAL INTEREST
    20  
 
       
Section 4.01 Creation and Distribution
    20  
Section 4.02 Rights of Trust Unitholders; Limitation on Personal Liability of Trust Unitholders
    20  
Section 4.03 Effect of Transfer
    21  
Section 4.04 Determination of Ownership
    21  
 
       
ARTICLE V ACCOUNTING AND DISTRIBUTIONS; REPORTS
    22  
 
       
Section 5.01 Fiscal Year and Accounting Method
    22  
Section 5.02 Quarterly Cash Distribution Amount
    22  
Section 5.03 Reports to Trust Unitholders and Others
    22  

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    Page  
Section 5.04 Reports from ECA to the Trustee
    22  
Section 5.05 Federal Income Tax Provisions
    23  
 
       
ARTICLE VI LIABILITY OF DELAWARE TRUSTEE AND TRUSTEE AND METHOD OF SUCCESSION
    23  
 
       
Section 6.01 Liability of Delaware Trustee, Trustee and Agents
    23  
Section 6.02 Indemnification of Trustee or Delaware Trustee
    24  
Section 6.03 Resignation of Delaware Trustee and Trustee
    26  
Section 6.04 Removal of Delaware Trustee and Trustee
    26  
Section 6.05 Appointment of Successor Delaware Trustee or Trustee
    26  
Section 6.06 Laws of Other Jurisdictions
    27  
Section 6.07 Reliance on Experts
    28  
Section 6.08 Force Majeure
    28  
Section 6.09 Failure of Action by ECA
    28  
Section 6.10 Action Upon Instructions
    29  
Section 6.11 Management of Trust Estate
    29  
Section 6.12 Validity
    29  
Section 6.13 Rights and Powers; Litigation
    29  
Section 6.14 No Duty to Act Under Certain Circumstances
    29  
 
       
ARTICLE VII COMPENSATION OF THE TRUSTEE AND THE DELAWARE TRUSTEE
    30  
 
       
Section 7.01 Compensation of Trustee and Delaware Trustee
    30  
Section 7.02 Reimbursement of ECA
    30  
Section 7.03 Source of Funds
    30  
Section 7.04 Ownership of Units by ECA, the Delaware Trustee and the Trustee
    30  
 
       
ARTICLE VIII MEETINGS OF TRUST UNITHOLDERS
    31  
 
       
Section 8.01 Purpose of Meetings
    31  
Section 8.02 Call and Notice of Meetings
    31  
Section 8.03 Method of Voting and Vote Required
    31  
Section 8.04 Conduct of Meetings
    32  
 
       
ARTICLE IX DURATION, REVOCATION AND TERMINATION OF TRUST
    32  
 
       
Section 9.01 Revocation
    32  
Section 9.02 Termination
    32  
Section 9.03 Disposition and Distribution of Assets and Properties
    32  
Section 9.04 Reorganization or Business Combination
    34  
 
       
ARTICLE X AMENDMENTS
    35  
 
       
Section 10.01 Prohibited Amendments
    35  
Section 10.02 Permitted Amendments
    35  
 
       
ARTICLE XI ARBITRATION
    36  
 
       
ARTICLE XII MISCELLANEOUS
    38  
 
       
Section 12.01 Inspection of Books
    38  
Section 12.02 Disability of a Trust Unitholder
    38  

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    Page  
Section 12.03 Merger or Consolidation of Delaware Trustee or Trustee
    39  
Section 12.04 Change in Trust Name
    39  
Section 12.05 Filing of this Agreement
    39  
Section 12.06 Choice of Law
    39  
Section 12.07 Separability
    40  
Section 12.08 Notices
    40  
Section 12.09 Counterparts
    41  
     
Annex A —
  Subordination and Incentive Thresholds
 
   
Exhibit A —
  Federal Income Tax Provisions
Exhibit B —
  Common Units Issued to Private Investors
 
   
Schedule A —
  Fee Schedule of Trustee

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AMENDED AND RESTATED
TRUST AGREEMENT
OF
ECA MARCELLUS TRUST I
     This Amended and Restated Trust Agreement of ECA Marcellus Trust I (the “ Trust ”) is entered into effective as of the 7th day of July, 2010, by and among ENERGY CORPORATION OF AMERICA, a West Virginia corporation with its principal office in Denver, Colorado (“ ECA ”) as trustor, CORPORATION TRUST COMPANY, a corporation organized under the laws of the State of Delaware with its principal office in Wilmington, Delaware (“ Corporation Trust ”), as Delaware Trustee (as hereinafter defined), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association organized under the laws of the State of New York with its principal place of business in New York, New York (the “ Bank ”), as Trustee (as hereinafter defined).
WITNESSETH:
     WHEREAS, ECA is engaged in the exploration, development, production, transportation and marketing of natural gas and oil and owns oil and gas leasehold interests in properties located in Greene County, Pennsylvania containing proved reserves of natural gas; and
     WHEREAS, ECA, Eastern Marketing Corporation, a West Virginia corporation (“ ECA Sub ”), and the Private Investors (hereinafter defined) have determined to convey to the Trust the Royalty Interests (hereinafter defined) pursuant to the Conveyances (hereinafter defined) and the Floor Agreements (hereinafter defined) pursuant to the Assignment of Floor Agreements (hereinafter defined) in exchange for cash, 4,401,250 Common Units (hereinafter defined), 4,401,250 Subordinated Units (hereinafter defined) and the right of ECA to receive Incentive Distributions (hereinafter defined) and the Reimbursement Amount (hereinafter defined) on the terms set forth herein; and
     WHEREAS, ECA and the Trust have determined to enter into the Swap Agreement (hereinafter defined) to provide the Trust with the benefit of swap contracts entered into between ECA and third parties; and
     WHEREAS, ECA and the Trust have determined to enter into the Administrative Services Agreement (hereinafter defined) outlining ECA’s provision of administrative services to the Trust and its compensation therefor and a Development Agreement (hereinafter defined) outlining ECA’s drilling obligation to the Trust; and
     WHEREAS, ECA has determined to grant the Drilling Support Lien to the Trust to secure its drilling obligation to the Trust and the Royalty Interest Lien to provide protection to the trust in the event of a bankruptcy of ECA; and
     WHEREAS, ECA, Corporation Trust and the Acting Trustee have previously formed the Trust pursuant to the Organizational Trust Agreement (hereinafter defined) in accordance with the provisions of the Trust Act (hereinafter defined) and, in connection therewith, ECA has previously delivered to the Acting Trustee, on behalf of the Trust, good and valuable

 


 

consideration, which the Acting Trustee has accepted, to have and to hold, in trust, such consideration, for the purposes and subject to the terms and conditions hereinafter provided; and
     WHEREAS, on May 7, 2010, ECA, the Acting Trustee, Corporation Trust and the Bank agreed to amend the Organizational Trust Agreement and remove the Acting Trustee from his service as trustee and replace the Acting Trustee with the Bank; and
     WHEREAS, ECA, ECA Sub and the Private Investors have agreed to deliver to the Bank, on behalf of the Trust, good and valuable consideration, which the Bank has agreed to accept, to have and to hold, in trust, such consideration and all other properties that may hereafter be acquired hereunder, for the purposes and subject to the terms and conditions hereinafter provided; and
     NOW, THEREFORE, ECA, the Acting Trustee, Corporation Trust and the Bank hereby amend and restate the Organizational Trust Agreement of ECA Marcellus Trust I in its entirety.
ARTICLE I
DEFINITIONS
     As used herein, the following terms have the meanings indicated:
     “ Acting Trustee ” means the natural person acting as Trustee before the Organizational Trust Agreement was amended on May 7, 2010.
     “ Administrative Services Agreement ” means the Administrative Services Agreement dated July 7, 2010 entered into between ECA and the Trust.
     “ Affiliate ” means, for any specified Person, another Person that, directly or through one or more intermediaries, controls, is controlled by, or is under common control with, the specified Person. “ Control ,” in the preceding sentence, refers to the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.
     “ Agent ” means, with respect to a Person, an agent, employees, officer, director, custodian, nominee or attorney of such Person.
     “ Agreement ” means this Amended and Restated Trust Agreement of ECA Marcellus Trust I, as it may be further amended, supplemented or restated from time to time.
     “ Assignment of Floor Agreements ” means the Novation dated July 7, 2010 among BP Energy Company, ECA and the Trustee on behalf of the Trust and the Novation dated July 7, 2010 by and among the Company, the Trust and Wells Fargo Capital Finance, Inc.
     “ Assignment of Royalty Interest ” means the Assignment of Royalty Interest dated July 7, 2010 between ECA Sub and the Trustee on behalf of the Trust.
     “ Bank ” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the State of New York, and its successors and assigns.

2


 

     “ Beneficial Interest ” means the aggregate beneficial ownership interest of all Trust Unitholders in the Trust Estate, including without limitation the proceeds from the conversion of the Royalty Interests to cash, which beneficial interest is expressed in Trust Units, but such beneficial interest does not include any ownership interest, legal or equitable, in or to the Royalty Interests, or any part thereof, or in or to any other asset of the Trust Estate to the extent that an interest in such asset would cause the interest of a Trust Unitholder to be treated as other than an intangible personal property interest.
     “ Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the NYSE Regulation, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.
     “ Closing ” means the first closing of the initial public offering of Common Units contemplated by the Securities Act Registration Statement.
     “ Closing Date ” means the date of Closing.
     “ Commission ” means the Securities and Exchange Commission.
     “ Common Unit ” means a fractional part of the Beneficial Interest having the rights and obligations specified with respect to a Common Unit in this Agreement. The term “Common Unit” does not refer to or include any Subordinated Unit prior to its conversion into a Common Unit pursuant to the terms hereof.
     “ Conveyances ” means (a) that certain Term Overriding Royalty Interest Conveyance (PDP) dated July 7, 2010 among ECA Sub and ECA and that certain Term Overriding Royalty Interest Conveyance (PUD) dated July 7, 2010 among ECA Sub and ECA (collectively, the “ Term Royalty Conveyances ”), and (b) that certain Perpetual Overriding Royalty Interest Conveyance (PDP) dated July 7, 2010 among ECA and the Trustee on behalf of the Trust, that certain Perpetual Overriding Royalty Interest Conveyance (PUD) dated July 7, 2010 among ECA and the Trustee on behalf of the Trust and that certain Perpetual Overriding Royalty Interest Conveyance (PDP) dated July 7, 2010 among the Private Investors and the Trustee on behalf of the Trust (collectively, the “ Perpetual Royalty Conveyances ”).
     “ Corporation Trust ” means Corporation Trust Company, a corporation organized under the laws of the State of Delaware, and its successors and assigns.
     “ Delaware Trustee ” means the Entity serving as a trustee (other than as the Trustee) hereunder having its principal place of business in Delaware, not in its individual capacity but solely in its fiduciary capacity, and having the rights and obligations specified with respect to the Delaware Trustee in this Agreement. Furthermore, any benefit, indemnity, release or protection granted to the Delaware Trustee herein shall extend to and shall be fully applicable and effective with regard to any Entity serving as the Delaware Trustee, including, without limitation, Corporation Trust Company.
     “ Development Agreement ” means the Development Agreement dated July 7, 2010 entered into between ECA and the Trust.

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     “ Drilling Obligation Completion Date ” has the meaning assigned to such term in the Development Agreement.
     “ Drilling Support Lien ” means that certain Mortgage, Assignment of Leases, Security Agreement, Fixture Filing and Financing Statement from Energy Corporation of America, as Mortgagor, to The Bank of New York Mellon Trust Company, N.A., as trustee of ECA Marcellus Trust I, as Mortgagee, dated as of July 7, 2010 securing ECA’s obligations under the Development Agreement.
     “ ECA ” means Energy Corporation of America, a West Virginia corporation and its successors and permitted assigns.
     “ ECA Sub ” means Eastern Marketing Corporation, a West Virginia corporation, and its successors and permitted assigns.
     “ Entity ” means a corporation, partnership, limited liability company, trust, estate or other entity, organization or association.
     “ Environmental Laws ” means all laws relating to pollution or protection of the environment, including laws relating to emissions, discharges, releases or threatened releases, treatment, storage or disposal of pollutants, contaminants, hazardous substances or industrial or hazardous wastes into the environment (including ambient air, surface water, groundwater, land surface or subsurface strata), including laws relating to the protection, preservation, or enhancement of endangered or threatened species, historic and archaeological resources, or wetlands and tidelands, as well as all codes, decrees, injunctions, judgments, orders, rules or regulations issued, entered, promulgated or approved thereunder pursuant to the requirements of applicable administrative procedures, acts and agency procedural rules.
     “ Estimated Incremental Quarterly Tax Amount ” has the meaning assigned such term in Section 3.16 .
     “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
     “ Exchange Act Registration Statement ” means the registration statement on Form 8-A pursuant to which the Trust Units may be registered under Section 12 of the Exchange Act.
     “ Expenses ” has the meaning assigned to that term in Section 6.02(a ).
     “ Fair Value ” means, with respect to any portion of the Royalty Interests to be released or sold pursuant to Section 3.02(c) in connection with a sale of Underlying Properties, an amount of net proceeds which could reasonably be expected to be obtained from the sale of such portion of the Royalty Interests to a party that is not an Affiliate of either ECA or the Trust on an arms’-length negotiated basis, taking into account relevant market conditions and factors existing at the time of any such proposed sale or release, such net proceeds to be determined by deducting the Trust’s proportionate share of sales costs, commissions and brokerage fees, if any (based on the ratio of (a) the fair market value of the portion of the Royalty Interest being released to (b) the fair market value of the Underlying Properties being transferred including the value of the Royalty Interests being released).

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     “ Floor Agreements ” the natural gas floor price contracts for the sale of volumes of natural gas subject to the Royalty Interests assigned by ECA to the Trust pursuant to the Assignment of Floor Agreements.
     “ Hedge Agreements ” means the Swap Agreement together with the Floor Agreements.
     “ Incentive Distributions ” means, with respect to each Quarterly Period during the Subordination Period, distributions made pursuant to Section 3.15(a)(i)(D)(x) and Section 3.15(a)(i)(E)(x) .
     “ Incentive Threshold ” means, with respect to each Quarterly Period during the Subordination Period, the amount shown under the heading “Incentive Threshold” for such Quarterly Period on Annex A or calculated in accordance with the formula set forth on Annex A .
     “ Incremental Income Tax ” has the meaning assigned to that term in Section 3.16 .
     “ Independent Reserve Engineers ” means Ryder Scott Company, L.P., independent petroleum engineers, or any other petroleum engineering consultants employed by the Trust to provide information and reports with respect to the Royalty Interests.
     “ Initial Common Units ” means the Common Units sold to the Underwriters on the Closing Date.
     “ Liquidation Date ” means March 31, 2030.
     “ Organizational Trust Agreement ” means the Trust Agreement of ECA Marcellus Trust I, entered into and effective as of March 19, 2010, by and among ECA, the Acting Trustee and Corporation Trust, as amended.
     “ Overallotment Option ” means the overallotment option granted to the Underwriters by the Trust pursuant to the Underwriting Agreement.
     “ Overallotment Option Closing ” means any closing of the exercise of the Overallotment Option.
     “ Overallotment Option Closing Date ” means the date on which any Overallotment Option Closing occurs.
     “ Overallotment Option Common Units ” means the Common Units sold to the Underwriters on the Overallotment Option Closing Dates (other than the Initial Common Units).
     “ Perpetual Royalty Interests ” means the Royalty Interests conveyed to the Trust by the Perpetual Royalty Conveyances.
     “ Person ” means a natural person or an Entity.

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     “ Private Investors ” means those private investors identified in that certain Perpetual Overriding Royalty Interest Conveyance (PDP) dated July 7, 2010 among the Private Investors and the Trustee on behalf of the Trust and set forth on Exhibit B hereto.
     “ Prospectus ” means the final prospectus constituting a part of the Securities Act Registration Statement, as filed pursuant to Rule 424(b) of the Commission.
     “ Quarterly Cash Distribution Amount ” means, for each Quarterly Period prior to the Liquidation Date, without duplication:
     (a) the sum of (i) all cash received by the Trust on or before the 45th calendar day following the end of such Quarterly Period under the Conveyances and the Hedge Agreements made with respect to such Quarterly Period, plus (ii) all other cash receipts of the Trust received during such Quarterly Period (excluding Sales Proceeds Amounts), plus (iii) any cash released on or before the 45th calendar day following the end of such Quarterly Period from any cash reserve established in a prior Quarterly Period by the Trustee for the payment of liabilities, including contingent liabilities, of the Trust, and plus (iv) any interest earned on cash reserves invested pursuant to Section 3.04 that is received by the Trust on or before the 45th calendar day following the end of such Quarterly Period, less
     (b) the sum of (i) the liabilities of the Trust paid during such Quarterly Period, plus (ii) any cash added on or before the 45th calendar day following the end of such Quarterly Period to any cash reserve for the payment of liabilities, including contingent liabilities, of the Trust.
     “ Quarterly Payment Date ” means, for each Quarterly Period, the 60 th day following the end of the previous Quarterly Period, or if such day is not a Business Day, on the next Business Day.
     “ Quarterly Period ” means each of the calendar quarters ending on the last day of March, June, September and December of each year.
     “ Quarterly Record Date ” means, for each Quarterly Period, the close of business on the 45th day following the end of such Quarterly Period (or the Business Day next following such day if such day is not a Business Day) or such other date established by the Trustee in order to comply with applicable law or the rules of any securities exchange or quotation system on which the Common Units may be listed or admitted to trading, in which event “Quarterly Record Date” means such other date.
     “ Record Date Trust Unitholders ” has the meaning assigned to that term in Section 8.02 hereof.
     “ Registration Rights Agreement ” means the Registration Rights Agreement dated July 7, 2010 entered into among ECA, certain of the Private Investors and the Trust.
     “ Reimbursement Amount ” has the meaning assigned to that term in Section 3.15(a)(i)(D) .

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     “ Responsible Officer ” means (a) with respect to the Delaware Trustee, any officer in the Corporate Trust Administration office of the Delaware Trustee having direct responsibility for the administration of this Agreement, and with respect to a particular corporate trust matter, any officer of the Delaware Trustee to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject, and (b) with respect to the Trustee, any officer in the Corporate Trust Administration office of the Trustee having direct responsibility for the administration of this Agreement, and with respect to a particular corporate trust matter, any officer of the Trustee to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.
     “ Royalty Interests ” means, collectively, the Perpetual Royalty Interests and the Term Royalty Interests.
     “ Royalty Interest Lien ” means that certain Mortgage, Assignment, Security Agreement, Fixture Filing and Financing Statement from Energy Corporation of America, as Mortgagor, to ECA Marcellus Trust I, as Mortgagee, dated as of July 7, 2010 to provide protection to the Trust in the event of a bankruptcy of ECA against the risk that the Royalty Interests are not considered a real property interest.
     “ Sales Proceeds Amounts ” means any cash paid to the Trust upon the sale of Royalty Interests or other assets of the Trust pursuant to Section 3.02 or Section 9.03 hereof after deduction of Trust expenses related to such sale or the establishment by the Trustee of cash reserves in such amounts as the Trustee in its discretion deems appropriate for contingent liabilities related thereto in accordance with Section 3808 of the Trust Act.
     “ Sarbanes-Oxley Act ” means the Sarbanes-Oxley Act of 2002, as amended.
     “ Securities Act ” means the Securities Act of 1933, as amended.
     “ Securities Act Registration Statement ” means the Registration Statement on Form S-1 (Registration No. 333-165833) as it has been or as it may be amended or supplemented from time to time, filed by ECA and the Trust with the Commission under the Securities Act to register the offering and sale of the Common Units.
     “ Sponsor Units ” has the meaning assigned to such term in Section 2.03 .
     “ Subordinated Unit ” means a fractional part of the Beneficial Interest having the rights and obligations specified with respect to a Subordinated Unit in this Agreement.
     “ Subordination Period ” means the period beginning April 1, 2010 and ending on the last day of the fourth full calendar quarter following the Drilling Obligation Completion Date (as defined in the Development Agreement); provided that ECA has delivered to the Trustee a certificate executed by the President or any Vice President of ECA certifying that ECA’s drilling obligation was satisfied as of the Drilling Obligation Completion Date.
     “ Subordination Threshold ” means, with respect to each Quarterly Period during the Subordination Period, the amount shown under the heading “Subordination Threshold” for such Quarterly Period on Annex A or calculated in accordance with the formula set forth on Annex A .

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     “ Swap Agreement ” means the Swap Agreement dated July 7, 2010 entered into between ECA and the Trust.
     “ Target Distribution ” means, with respect to each Quarterly Period during the Subordination Period, the amount shown under the heading “Target Distribution” for such Quarterly Period on Annex A .
     “ Term Royalty Interests ” means the royalty interests conveyed to the Trust by the Term Royalty Conveyance.
     “ Transaction Documents ” means this Agreement, the Underwriting Agreement, the Securities Act Registration Statement, the Prospectus, the Assignment of Royalty Interest, the Conveyances, the Development Agreement, the Administrative Services Agreement, the Hedge Agreements, the Assignment of Floor Agreements, the Registration Rights Agreement and the Drilling Support Lien and the Royalty Interest Lien.
     “ Transferee ” means, as to any Trust Unitholder or former Trust Unitholder, any Person succeeding to the interest of such Trust Unitholder or former Trust Unitholder in one or more Trust Units, whether as purchaser, donee, legatee or otherwise.
     “ Trust ” means ECA Marcellus Trust I, the Delaware statutory trust created pursuant to the Organizational Trust Agreement and continued by and administered under the terms of this Agreement.
     “ Trust Act ” means the Delaware Statutory Trust Act, Title 12, Chapter 38 of the Delaware Code, Sections 3801 et seq., as amended from time to time during the term of this Agreement.
     “ Trust Estate ” means the assets held by the Trust under this Agreement, including both income and principal.
     “ Trust Units ” means Subordinated Units and Common Units, collectively, which are uncertificated, undivided pro rata fractional interests in the Beneficial Interest, determined as hereinafter provided.
     “ Trust Unitholder ” means the owner of one or more Trust Units as reflected on the books of the Trustee pursuant to Section 4.01 or in the records of The Depository Trust Company.
     “ Trustee ” means the Entity serving as a trustee (other than the Delaware Trustee) under this Agreement, not in its individual capacity but solely in its fiduciary capacity. Furthermore, any benefit, indemnity, release or protection granted to the Trustee herein shall extend to and shall be fully applicable and effective with regard to any Entity serving as Trustee, including, without limitation, the Bank. The term “principal office” of the Trustee shall mean the principal office of the Trustee in Austin, Texas, or the principal office at which at any particular time its institutional or corporate trust business may be administered.

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     “ Underlying Properties ” means the Subject Interests, Development Wells and Wells subject to the Royalty Interests, as “Subject Interests,” “Development Wells” and “Wells” are defined in the Conveyances.
     “ Underwriters ” means each Person named as an underwriter in Schedule I to the Underwriting Agreement who purchases Common Units pursuant thereto.
     “ Underwriting Agreement ” means the Underwriting Agreement dated as of June 30, 2010 among the Underwriters, the Trustee on behalf of the Trust and ECA, providing for the purchase of the Initial Common Units and the Overallotment Option Common Units.
     “ Unit Majority ” means (i) with respect to a transaction or agreement resulting in a material disproportionate benefit to ECA or its Affiliates compared to other owners of Common Units, a majority of the outstanding Trust Units and a majority of the outstanding Common Units (excluding Common Units owned by ECA and its Affiliates) and (ii) with respect to a transaction or agreement not resulting in a material disproportionate benefit to ECA or its Affiliates compared to other owners of Common Units, a majority of the outstanding Trust Units.
ARTICLE II
NAME AND PURPOSE OF THE TRUST; DECLARATION OF TRUST
     Section 2.01 Name; Certificate of Trust . The Trust continued by this Agreement shall remain a Delaware statutory trust under the Trust Act. The Trust shall continue to be known as the ECA Marcellus Trust I, and the Trustee may transact the Trust’s affairs in that name. The continuation and operation of the Trust shall be in accordance with this Agreement, which shall constitute the “governing instrument” of the Trust within the meaning of Section 3801(f) of the Trust Act. In the event that a Responsible Officer of either the Delaware Trustee or the Trustee becomes aware that any statement contained or matter described in the Trust’s Certificate of Trust has changed, making it false in any material respect, it will notify the other trustee and the Delaware Trustee shall promptly file or cause to be filed in the office of the Secretary of State of Delaware an amendment of same at the written direction of the Trustee, duly executed in accordance with Section 3811 of the Trust Act, in order to effect such change thereto, such filing to be in accordance with Section 3810(b) of the Trust Act.
     Section 2.02 Purpose . The purposes of the Trust are, and the Trust (and the Trustee on behalf of the Trust) shall have the power and authority and is hereby authorized:
     (a) to acquire, hold, protect and conserve the Trust Estate for the benefit of the Trust Unitholders;
     (b) to receive and hold the Royalty Interests, the Hedge Agreements, the Development Agreement, the Administrative Services Agreement, the Drilling Support Lien, the Royalty Interest Lien and the other assets of the Trust Estate;
     (c) to issue the Subordinated Units and the Initial Common Units on the Closing Date and, if the Underwriters exercise the Overallotment Option, to issue the Overallotment Option Units on the Overallotment Option Closing Date, and to perform its obligations with respect thereto;

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     (d) to use the net proceeds from any issuance of Overallotment Option Units to repurchase from ECA an equal number of Common Units, at which time such repurchased Common Units shall be cancelled and no longer issued and outstanding;
     (e) to receive payments with respect to the Royalty Interests as provided in the Conveyances;
     (f) to receive or make payments with respect to the Hedge Agreements as provided in the Hedge Agreements;
     (g) to invest cash reserves as provided in Section 3.04;
     (h) to pay, or provide for the payment of, any liabilities incurred in carrying out the purposes of the Trust;
     (i) to distribute the Quarterly Cash Distribution Amount and any Sales Proceeds Amounts in accordance with Section 3.15 ;
     (j) to incur indebtedness in order to pay the liabilities of the Trust as they become due, if necessary, any such indebtedness to be unsecured except as provided in Section 7:03 ;
     (k) to sell Royalty Interests in accordance with Sections 3.02, 9.02 and 9.03 ;
     (l) to enter into, execute, deliver and perform its obligations and enforce its rights under the Transaction Documents to which it is a party;
     (m) to cause to be prepared and file (i) reports required to be filed under the Exchange Act, (ii) any reports required by the rules of any securities exchange or quotation system on which the Trust Units are listed or admitted to trading, and (iii) any reports, forms or returns required to be filed pursuant to tax laws and other applicable laws and regulations, and to establish, evaluate and maintain a system of internal control over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act;
     (n) to conduct or wind up its business as described in the Securities Act Registration Statement; and
     (o) to engage in such other activities as are necessary or convenient for the attainment of any of the foregoing or are incident thereto and which may be engaged in or carried on by a statutory trust under the Trust Act.
The Trust hereby authorizes the Transaction Documents and the activities contemplated therein.
     Section 2.03 Transfer of Trust Property to the Trust . Upon the formation of the Trust, ECA paid good and valuable consideration to the Trust, in trust, for the uses and purposes provided in the Organizational Trust Agreement and in this Agreement. At (and subject to the occurrence of) the Closing the following transactions will occur:

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     (a) ECA and the Private Investors shall convey to the Trust the Perpetual Royalty Interests in exchange for 3,087,371 Common Units and 4,401,250 Subordinated Units to be issued to ECA and 1,313,879 Common Units to be issued to the Private Investors as set forth on Exhibit B hereto (collectively, the “ Sponsor Units ”);
     (b) the Trust shall issue the Initial Common Units to the Underwriters for the cash consideration and on the terms set forth in the Underwriting Agreement;
     (c) ECA shall assign the Floor Agreements to the Trust pursuant to the Assignment of Floor Agreements;
     (d) ECA shall enter into the Swap Agreement with the Trust;
     (e) ECA Sub shall convey to the Trust the Term Royalty Interests in exchange for $160,500,000 in cash;
     (f) ECA and the Trust shall enter into the Development Agreement and the Administrative Services Agreement;
     (g) ECA, certain of the Private Investors and the Trust shall enter into the Registration Rights Agreement; and
     (h) ECA shall grant the Drilling Support Lien and the Royalty Interest Lien to the Trust.
If the Underwriters exercise the Overallotment Option, on any Overallotment Option Closing Date the Trust shall issue the applicable number of Overallotment Option Common Units to the Underwriters for the cash consideration and on the terms set forth in the Underwriting Agreement. The issuance of the Initial Common Units, the Overallotment Option Units, the Sponsor Units and the 4,401,250 Subordinated Units is hereby duly authorized and, upon issuance at the Closing or the Overallotment Option Closing, as applicable, such Trust Units shall be duly and validly issued and outstanding and, upon receipt by the Trust at the Closing or the Overallotment Option Closing of the consideration described above, the Trust Units will be fully paid and nonassessable without the requirement of any further consideration.
     Section 2.04 Creation of the Trust . The Trustee declares that it shall hold the Trust Estate in trust for the benefit of the Trust Unitholders, upon the terms and conditions set forth in this Agreement. As set forth above and amplified herein, the Trust is intended to be a passive entity limited to the receipt of revenues attributable to the Royalty Interests, the Hedge Agreements and the distribution of such revenues, after payment of or provision for Trust expenses and liabilities, to the Trust Unitholders. It is not the intention of the parties hereto to create, and nothing in this Agreement shall be construed as creating, for purposes other than tax purposes, a joint venture, joint stock company or similar business association, between or among Trust Unitholders, present or future, or between or among Trust Unitholders, or any of them, the Delaware Trustee, the Trustee, ECA, ECA Sub and/or the Private Investors. Neither the Trustee nor the Delaware Trustee, in its individual capacity, or otherwise, makes any representation as to the validity or sufficiency of this Trust Agreement.

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     Section 2.05 Principal Offices . Unless and until changed by the Trustee, the address of the principal office of the Trustee is 919 Congress Avenue, Suite 500, Austin, Texas 78701. Unless and until changed by the Delaware Trustee, the principal place of business of the Delaware Trustee is 1209 Orange Street, Wilmington, Delaware 19801, Attention: Corporate Trust Administration. The Trust may maintain offices at such other place or places within or without the State of Delaware as the Trustee deems advisable.
ARTICLE III
ADMINISTRATION OF THE TRUST AND POWERS OF THE TRUSTEE
AND THE DELAWARE TRUSTEE
     Section 3.01 General Authority .
     (a) The Trustee accepts the trust hereby continued and agrees to perform its duties hereunder with respect to the same, but only upon the express terms of this Agreement. Subject to the limitations set forth in this Agreement, the Trustee, acting alone, without the approval or consent of, or notice to, the Delaware Trustee or any Trust Unitholder, is authorized to take such action as in its judgment is necessary, desirable or advisable to best achieve the purposes and powers of the Trust set forth in Section 2.02 hereof. The Trustee shall not (i) dispose of any part of the Trust Estate except as expressly provided herein or (ii) except as permitted by Section 10.02 of this Agreement, agree to amend or waive any provision of, give any consent or release with respect to, or terminate the Transaction Documents to which the Trust is a party without the Trust Unitholder approval, if any, required by Section 10.02 .
     (b) The Delaware Trustee accepts the Trust hereby continued and agrees to perform its duties hereunder with respect to the same, but only upon the express terms of this Agreement. The Delaware Trustee is authorized to take only such actions, and shall be required to perform only such duties and obligations, with respect to the Trust as are specifically set forth in this Agreement, and no implied duties, obligations or powers shall be read into this Agreement in respect to the Delaware Trustee. The Delaware Trustee shall not otherwise manage or take part in the business or affairs of the Trust in any manner.
     (c) Notwithstanding any other provision of this Agreement, unless specifically authorized in writing by the Trustee and consented to by the Delaware Trustee, the Delaware Trustee shall not participate in any decisions or possess any authority with respect to the administration of the Trust, the investment of the Trust’s property or the payment of distributions of income or principal to the Trust Unitholders. The Delaware Trustee shall have the power and authority to execute, deliver, acknowledge and file all necessary documents and to maintain all necessary records of the Trust as required by the Trust Act. The Delaware Trustee shall provide prompt written notice to the Trustee of its performance of any of the foregoing acts. The Trustee shall reasonably keep the Delaware Trustee informed of any material action taken by the Trustee with respect to the Trust.
     Section 3.02 Limited Power of Disposition of the Trust . The Trustee may sell all or part of the Royalty Interests only in the following circumstances.

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     (a) An election by the Trustee to sell all or part of the Trust Estate, at any time and from time to time, that is approved by the holders of a Unit Majority at a meeting duly called and held in accordance with Article VIII, subject to ECA’s right of first refusal as provided in Section 9.03 of this Agreement.
     (b) After the Drilling Obligation Completion Date, ECA may at any time, and from time to time sell, but only in accordance with the terms of the Conveyances, a divided or undivided portion of its interests in the Underlying Properties, free from and unburdened by the Royalty Interests, without the consent of the Trustee or the Trust Unitholders except as set forth below; provided the following conditions are met:
     (i) the Trust receives Fair Value for the Royalty Interests to be released by the Trustee in connection with the sale of the Underlying Properties;
     (ii) the aggregate Fair Value to be received by the Trust with respect to such Royalty Interests to be released by the Trustee and any other Royalty Interests previously released by the Trustee pursuant to this Section 3.02(b) during the most recently completed 12 calendar months would not exceed $5,000,000; and
     (iii) the Trustee shall have received (A) in the event that the gross purchase price to be received by ECA for the sale of Underlying Properties in a single transaction or a series of related transactions is less than $5,000,000, a certificate from ECA executed by the President or any Vice President thereof certifying to the Trustee and the Trust that the cash to be received by the Trust pursuant to this Section 3.02(b) above represents the Fair Value to the Trust for the Royalty Interests to be released by the Trustee in connection therewith (and the Trustee is hereby authorized and directed to rely thereon) or (B) in the event that the gross purchase price to be received by ECA for the sale of Underlying Properties in a single transaction or a series of related transactions is more than $5,000,000, at the expense of ECA, an appraisal of such Underlying Properties from an independent appraiser in the business of evaluating or appraising natural gas properties selected by mutual agreement of ECA and the Trustee, which appraisal confirms that the cash to be received by the Trust pursuant to this Section 3.02(b) represents the Fair Value to the Trust for the Royalty Interests to be released by the Trust in connection therewith (and the Trustee is hereby authorized and directed to rely thereon). Notwithstanding the foregoing, any sale of Underlying Properties pursuant to this Section 3.02(b) , in a single transaction or a series of related transactions, where the gross purchase price to be received by ECA is greater than $5,000,000 shall require the consent of at least a majority of the then outstanding Trust Units.
     (c) In the event that a portion of the Royalty Interests is to be released pursuant to Section 3.02(b) of this Agreement, upon receipt of (i) funds equal to the required payment, (ii) an accurate description of said portion of the Royalty Interests and (iii) sufficient information to evidence conclusively that the conditions to purchase referred to in Section 3.02(b) and in the applicable section of the Conveyances have been satisfied, then within a reasonable time thereafter, and upon advice of such experts as may be retained by the Trustee with the written consent of ECA, the Trustee shall execute and deliver a conveyance covering said Royalty Interests to ECA or its assignee and upon receipt of written notice of such a sale given by ECA,

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the Trustee shall execute and deliver at the closing of such sale a partial release and consent, and such other instruments, agreements and documents as ECA may reasonably request, to evidence or effect the transfer of such portion of ECA’s interests in the Underlying Properties, free from and unburdened by the Royalty Interests. Except as provided herein, any other sale of all or any portion of the Underlying Properties will not relieve ECA of its obligations with respect to the Royalty Interests.
     (d) In addition to the sales permitted by Section 3.02(c) and subject to the terms of the Conveyances, ECA may at any time or from time to time after the Drilling Obligation Completion Date sell a divided or undivided portion of its interest in the Underlying Properties, provided, however, that such sale is subject to and burdened by the Royalty Interests that burden such portion of ECA’s interest, without the consent of the Trust Unitholders. Promptly after completion of any such sale, ECA shall so notify the Trustee in writing. Any purchaser of such Underlying Properties shall be the assignee of ECA to the extent of the interest sold and shall be bound by the obligations of ECA under this Agreement and the Conveyances to such extent.
     (e) Subject to the terms of the Conveyances, ECA may at its option at any time prior to the Drilling Obligation Completion Date, cause the Trust to exchange leased acreage subject to the Royalty Interests, fee and clear of such Royalty Interests, for other leased acreage within the AMI (as defined in the Conveyances). Such leased acreage exchanged to the Trust shall then be subject to the Royalty Interests as set forth in the Conveyances. Additionally, the Conveyances provide that, in the event ECA acquires any additional leases in the AMI prior to the Drilling Obligation Completion Date, ECA may at its option make such additional lease subject to the Royalty Interests. Provided, however , in no event may any additional lease be made subject to the Royalty Interests, or any exchange of acreage be effected, unless ECA certifies to the Trust that, among other things, all of the aggregate acreage attributable to the additional leases and exchange leases shall not exceed 5% of the Subject Lands (as defined in the Conveyances) as such exist as of the date of this Agreement and, in the case of an exchange, the reasonable projected quantity of proved undeveloped reserves attributable to the exchange acreage does not significantly differ from the acreage exchanged therefor.
     (f) Anything herein to the contrary notwithstanding, the Trustee shall not agree to any distribution of the Royalty Interests or any other asset of the Trust that would cause the interest of a Trust Unitholder to be treated as other than an intangible personal property interest. Unless required to sell pursuant to this Section 3.02 , or pursuant to Section 9.03 hereof, or to distribute the Quarterly Cash Distribution Amount or Sales Proceeds Amount pursuant to Section 3.15 hereof, the Trustee is authorized to retain any part of the Trust Estate in the form in which such property was transferred to the Trustee, without regard to any requirement to diversify investments or other requirements.
     Section 3.03 No Power to Engage in Business or Make Investments or Issue Additional Securities . Neither the Trustee nor the Delaware Trustee shall cause or permit the Trust to (a) acquire any asset other than the assets conveyed or transferred to the Trust pursuant to Section 2.03, the rights of the Trust to enforce the terms and provisions of the Transaction Documents to which it is a party, and other amounts paid to the Trust as set forth herein, or (b) engage in any business or investment activity of any kind whatsoever, except for the activities permitted herein or issue Trust Units or other securities after the Closing Date other than Overallotment Option

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Units. Neither the Trustee nor the Delaware Trustee shall have any responsibility or authority relating to the development or operations of the Underlying Properties or the marketing of any production therefrom or any other business decision affecting the assets of the Trust.
     Section 3.04 Interest on Cash Reserves . Cash being held by the Trustee as a reserve for a payment of the Quarterly Cash Distribution Amount or Sales Proceeds Amounts or for the payment of any liabilities, other than current routine administrative costs, shall be placed by the Trustee with one or more banks or financial institutions (which, to the extent to which authorized pursuant to the Trust Act and other applicable laws, may be, or may include, any bank serving as the Trustee or the Delaware Trustee) and invested in (a) accounts payable on demand without penalty (which may be non-interest bearing), (b) interest bearing obligations issued by (or unconditionally guaranteed by) the United States of America or any agency or instrumentality thereof (provided such agency or instrumentality obligations are guaranteed by the full faith and credit of the United States of America), (c) repurchase agreements secured by obligations qualifying under (b) above or (d) certificates of deposit of any bank or banks having combined capital, surplus and undivided profits in excess of $100,000,000 which, in the case of (b), (c) and (d) above, mature prior to the date on which such Quarterly Cash Distribution Amount or any Sales Proceeds Amount is to be distributed or any such liability is to be paid. Any government obligation, repurchase agreement or certificate of deposit held by the Trustee shall be held until maturity. The interest rate on reserves placed with any bank or financial institution serving as the Trustee or the Delaware Trustee shall be the interest rate that such bank pays in the normal course of business on amounts placed with it, taking into account the amount involved, the period held and other relevant factors. Subject to Section 6.01 , the Trustee shall not be liable for its selection of permitted investments or for any investment losses resulting from such investments. Notwithstanding anything herein to the contrary, the Delaware Trustee shall not be obligated to accept any such cash or other assets for investment or otherwise. To the extent that the Delaware Trustee decides in its sole and absolute discretion to accept cash for investment pursuant to this Section 3.04 , the Delaware Trustee shall invest such cash pursuant to the written instructions of the Trustee, and the Delaware Trustee shall not be liable to the Trust for any losses resulting from such investments absent its own fraud or acts or omissions in bad faith or which constitute gross negligence.
     Section 3.05 Power to Settle Claims . Subject to the rights and obligations of the Tax Matters Partner under Subsection 6(c) of Exhibit A hereto, the Trustee is authorized to prosecute or defend, and to settle by arbitration or otherwise, any claim of or against the Trustee, the Trust or the Trust Estate, to waive or release rights of any kind, to settle any dispute with ECA or any other Person, and to pay or satisfy any debt, tax or claim upon any evidence by it deemed sufficient, without the joinder or consent of any Trust Unitholder, including enforcing the rights of the Trust under the Transaction Documents to which it is a party. The Trust Unitholders shall have no power to prosecute any claim of the Trust or the Trust Estate against any Person other than to prosecute a claim to compel performance by the Trustee on behalf of the Trust or the Trust Estate.
     Section 3.06 Power to Contract for Services . In the administration of the Trust, the Trustee is empowered to employ oil and natural gas consultants (which may include the Independent Reserve Engineers), accountants (with the consent of ECA, which consent shall not be unreasonably withheld or delayed), attorneys (who may, but need not be, counsel to ECA) and

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other professional and expert Persons, to employ or contract for clerical and other administrative assistance (including assistance from ECA), to delegate to Agents any matter, whether ministerial or discretionary, and to act through such Agents and to make payments of all fees for services or expenses in any manner thus incurred out of the Trust Estate.
     Section 3.07 Payment of Liabilities of Trust . Except as otherwise provided herein, the Trustee may and shall use all money received by it for the payment or reimbursement of all liabilities of the Trust, including but without limiting the generality of the foregoing, all expenses, taxes, compensation to it for its services hereunder, as provided for in Article VII , and compensation to such parties as may be employed as provided for in Section 3.06 hereof. With respect to any liability that is contingent or uncertain in amount or that otherwise is not currently due and payable, the Trustee may, but is not obligated to, establish a cash reserve for the payment of such liability. Except to the extent permitted under applicable law, the Trustee shall not pay any liability of the Trust with funds set aside pursuant to Section 5.02 hereof for the payment of a Quarterly Cash Distribution Amount of Sales Proceeds Amount. If at any time the cash on hand and to be received by the Trustee and available to pay liabilities is not, or will not be, in the judgment of the Trustee, sufficient to pay liabilities of the Trust as they become due, the Trustee is authorized to cause the Trust to borrow the funds required to pay such liabilities. In such event, no further distributions will be made to Trust Unitholders (except in respect of any previously determined Quarterly Cash Distribution Amount or Sales Proceeds Amount) until the indebtedness created by such borrowings, including interest thereon, has been paid in full. Such funds may be borrowed from any Person, including, without limitation, the Bank while serving as Trustee or any other Entity serving as a fiduciary hereunder, on an unsecured basis only; provided , however , that neither the Bank nor any other Entity shall be required to make any such loan. Under no circumstances shall the Trustee or the Delaware Trustee be personally liable for any indebtedness or other liability of the Trust. If such funds are loaned to the Trust by the Trustee or any other such Entity while the Trustee or such other Entity is serving as a fiduciary hereunder, the terms of such indebtedness shall be similar to the terms which the Trustee or such other Entity would grant to a similarly situated commercial customer with whom it did not have, directly or indirectly, a fiduciary relationship, and the Trustee or such other Entity shall be entitled to enforce its rights with respect to any such indebtedness as if it were not, directly or indirectly, and had never been, directly or indirectly, the Trustee or a fiduciary hereunder. No provision of this Trust Agreement shall require either the Delaware Trustee, the Trustee or any other Entity serving as a fiduciary hereunder, to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. In any event, the Trustee and the Delaware Trustee or any other Entity serving as fiduciary hereunder, shall be indemnified and held harmless by ECA for any liability incurred in the performance of any of its duties hereunder. In no event shall the Trustee be responsible for the payment of any Quarterly Cash Distribution Amount or Sales Proceeds Amount or other amount except to the extent that it has sufficient cash on hand on behalf of the Trust to make such payment.
     Section 3.08 Income and Principal . The Trustee shall not be required to keep separate accounts or records for income and principal. However, if the Trustee does keep such separate accounts or records, then the Trustee is authorized to treat all or any part of the receipts from the Royalty Interests or the Hedge Agreements as income or principal, without having to maintain

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any reserve therefor, and in general to determine all questions as between income and principal and to credit or charge to income or principal or to apportion between them any receipt or gain and any charge, disbursement or loss as is deemed advisable under the circumstances of each case.
     Section 3.09 Term of Contracts . In exercising the rights and powers granted hereunder, the Trustee is authorized to make the term of any transaction or contract or other instrument extend beyond the term of the Trust.
     Section 3.10 Transactions with Entity Serving as the Trustee or the Delaware Trustee . To the extent such conduct is not prohibited by applicable law and except as otherwise provided herein, each of the Trustee and the Delaware Trustee is authorized in exercising its powers under this Agreement to make contracts and have dealings with itself or its Affiliates, directly and indirectly, in any other fiduciary or individual capacity.
     Section 3.11 No Security Required . No Entity serving as a trustee hereunder shall be required to furnish any bond or security of any kind.
     Section 3.12 Filing of Securities Act Registration Statement, Exchange Act Registration Statement and Other Reports, Listing of Trust Units, etc.; Certain Fees and Expenses .
     (a) The Trustee, on behalf of the Trust and acting upon the advice of counsel, shall cause the Trust to comply with all applicable rules, orders and regulations of the Commission and the national securities exchange on which the Common Units are listed or admitted for quotation and to take all such other actions necessary for the Common Units to remain registered under the Exchange Act and listed on such national securities exchange until the Trust is terminated. In addition, the Trustee is authorized to make, and the Trustee shall take, all actions to prepare and, to the extent required by this Agreement or by law, mail to Trust Unitholders any reports, press releases or statements, financial or otherwise, that the Trustee determines are required to be provided to Trust Unitholders by applicable law or governmental regulation or the requirements of any securities exchange or quotation system on which the Trust Units are listed or admitted to trading. In addition, the Trustee, on behalf of the Trust and acting upon the advice of counsel, shall cause the Trust to comply with all of the provisions of the Sarbanes-Oxley Act and the rules and regulations of the Commission related thereto, including but not limited to, establishing, evaluating and maintaining a system of internal control over financial reporting in compliance with the requirements of Section 404 thereof and making all required certifications pursuant to the Sarbanes-Oxley Act and the rules and regulations adopted by the Commission related thereto.
     (b) The Trustee shall execute, by and on behalf of the Trust, any documents incidental or related to the objectives specified in Section 3.12(a) .
     (c) The Trust is hereby authorized and empowered to take all steps, make all filings and applications and pay all fees necessary, customary or appropriate to the accomplishment of the objectives set forth in Section 3.12(a) .
     (d) Except as otherwise provided in Article VI of this Agreement, the fees, charges, expenses, disbursements and other costs incurred by the Trustee or the Delaware Trustee in

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connection with the discharge of its duties pursuant to this Agreement, including, without limitation, trustee fees, engineering, audit, accounting and legal fees, printing and mailing costs, amounts reimbursed or paid to ECA pursuant to Section 3.06 or Section 7.02 hereof, and the fees and expenses of legal counsel for the Trustee, the Delaware Trustee, and the Trust (including legal fees and expenses incurred by the Trustee or the Delaware Trustee in connection with the formation of the Trust and issuance of Trust Units), shall be paid out of the Trust Estate as an administrative expense of the Trust; provided, however , that the Trustee’s and the Delaware Trustee’s acceptance fees paid by ECA upon execution hereof shall be reimbursed to ECA. All other organizational expenses of the Trust will be paid by ECA, and ECA shall not be entitled to reimbursement thereof.
     Section 3.13 Reserve Report . The Trustee shall cause a reserve report to be prepared by or for the Trust by the Independent Reserve Engineers as of December 31 of each year in accordance with criteria established by the Commission showing estimated proved natural gas reserves attributable to the Royalty Interests as of December 31 of such year and other reserve information required to comply with Section 5.03 of this Agreement. ECA, to the extent it is the operator of the Underlying Properties, shall use commercially reasonable efforts to cooperate with the Trust and the Independent Reserve Engineers in connection with the preparation of any such reserve report, and to the extent it is not operator of the Underlying Properties and has not sold its interest in the same pursuant to Section 3.02(d) , shall use commercially reasonable efforts to obtain and provide to the Trustee and the Independent Reserve Engineers such information as may be reasonably necessary in connection with the preparation of the reserve report. The Trustee shall cause each reserve report prepared pursuant to this Section 3.13 to be completed and delivered to it within 60 days of the last day of the prior calendar year or such shorter period as may be required to enable the Trustee to comply with the provisions of Section 5.03 .
     Section 3.14 No Liability for Recordation . ECA shall be solely responsible, and the Trustee and the Delaware Trustee shall have no responsibility, for the filing of the Conveyances, the Drilling Support Lien and the Royalty Interest Lien in the real property records of any jurisdiction in which the Underlying Properties are located. Neither the Trustee, the Delaware Trustee, the Bank nor any of their respective Agents shall be liable to the Trust Estate or any Trust Unitholder for any loss, claim or damage resulting from, or arising out of, the failure to file, or failure to properly file, the Conveyances, the Drilling Support Lien and The Royalty Interest Lien in any real property records of any jurisdiction.
     Section 3.15 Quarterly Cash Distributions .
     (a) all payments of Quarterly Cash Distribution Amounts, regardless of the source or character of the assets to be distributed, shall be made in the following order of priority:
     (i) During the Subordination Period:
     (A) First, 100% to the Common Unitholders on a pro rata basis with respect to each Common Unit until there has been distributed with respect to each Common Unit for such quarterly period an amount equal to the Subordination Threshold for such Quarterly Period as set forth on Annex A hereto;

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     (B) Second, 100% to the Subordinated Unitholders on a pro rata basis with respect to each Subordinated Unit until there has been distributed with respect to each Subordinated Unit for such quarterly period an amount equal to the Subordination Threshold for such Quarterly Period set forth on Annex A hereto;
     (C) Third, 100% to the Trust Unitholders on a pro rata basis with respect to each Trust Unit until aggregate per Unit distributions to holders of Trust Units for such Quarterly Period equal the Incentive Threshold for such Quarterly Period;
     (D) Fourth, (x) 50% to ECA in respect of its right to receive Incentive Distributions and (y) 50% to ECA until ECA has received aggregate distributions pursuant to this Section 3.15(a)(i)(D)(y) of $4,957,920 (representing ECA’s costs in establishing the Floor Agreements), plus compound interest on the unreimbursed amount accrued from April 8, 2010 at 10% per annum (such aggregate amount described in this clause (y) the “ Reimbursement Amount ”); and
     (E) Thereafter, (x) 50% to ECA in respect of its right to receive Incentive Distributions and (y) 50% to the Trust Unitholders on a pro rata basis with respect to each Trust Unit.
     (ii) After the Subordination Period, 100% to the holders of Common Units (including Subordinated Units converted to Common Units) on a pro rata basis with respect to each Common Unit.
     (b) At the expiration of the Subordination Period, all Subordinated Units shall automatically convert to Common Units on a one-for-one basis.
     (c) All Sales Proceeds Amounts shall be distributed 100% to the holders of Trust Units on a pro rata basis on the Quarterly Payment Date following the Quarterly Period in which such sale occurred.
     (d) All distributions made under this Section 3.15 to Trust Unitholders shall be made to the holders of record of the applicable Trust Units on the Quarterly Record Date and ECA, as applicable.
     Section 3.16 Entity-Level Taxation . If legislation is enacted or the official interpretation of existing legislation is modified by a governmental authority, which after giving effect to such enactment or modification, results in the Trust’s becoming subject to U.S. federal, state or local or non-U.S. income or withholding taxes in excess of the amount of such taxes due from the Trust prior to such enactment or modification (including, for the avoidance of doubt, any increase in the rate of such taxation applicable to the Trust), then the Trustee may, in its sole discretion, reduce the Target Distribution by the amount of such income or withholding taxes that are payable by reason of any such new legislation or interpretation (the “ Incremental Income Tax ”), or any portion thereof selected by the Trustee, in the manner provided in this Section 3.16 . If the Trustee elects to reduce the Target Distribution for any Quarterly Period

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with respect to all or a portion of the Incremental Income Taxes, the Trustee shall estimate for such Quarterly Period the Trust’s liability (the “ Estimated Incremental Quarterly Tax Amount ”) for all (or the relevant portion of) such Incremental Income Taxes; provided that any difference between such estimate and the actual liability for Incremental Income Taxes (or the relevant portion thereof) for such Quarterly Period may, to the extent determined by the Trustee, be taken into account in determining the Estimated Incremental Quarterly Tax Amount with respect to each Quarterly Period in which any such difference can be determined. For each such Quarterly Period, the Target Distribution shall be the product obtained by multiplying (a) the amount therefor that is set out herein prior to the application of this Section 3.16 times (b) the quotient obtained by dividing (i) cash and cash equivalents available for distribution with respect to such Quarterly Period by (ii) the sum of cash and cash equivalents available for distribution with respect to such Quarterly Period and the Estimated Incremental Quarterly Tax Amount for such Quarterly Period, as determined by the Trustee. For purposes of the foregoing, cash and cash equivalents available for distribution with respect to a Quarterly Period will be deemed reduced by the Estimated Incremental Quarterly Tax Amount for that Quarterly Period. After reducing the Target Distribution in accordance with this Section 3.16 , the Subordination Threshold shall be adjusted to 80% of the reduced Target Distribution and the Incentive Threshold shall be adjusted to 120% of the reduced Target Distribution.
ARTICLE IV
TRUST UNITS AND UNCERTIFICATED BENEFICIAL INTEREST
     Section 4.01 Creation and Distribution . Ownership of the entire Beneficial Interest shall be divided into 17,605,000 Trust Units, of which 13,203,750 shall be Common Units and 4,401,250 shall be Subordinated Units. The Trust Units shall be uncertificated and ownership thereof evidenced by entry of a notation in an ownership ledger maintained for such purpose by the Trustee or a transfer agent designated by the Trustee. The holders of the Trust Units from time to time shall be the sole beneficiaries of principal and interest of the Trust.
     Section 4.02 Rights of Trust Unitholders; Limitation on Personal Liability of Trust Unitholders . Each Trust Unit shall represent pro rata undivided ownership of the Beneficial Interest and shall entitle its holder to participate pro rata, subject to the distinctions between Subordinated Units and Common Units provided in Section 3.15 hereof, in the rights and benefits of Trust Unitholders under this Agreement. A Trust Unitholder (whether by assignment or otherwise) shall take and hold each Trust Unit subject to all the terms and provisions of the Transaction Documents which shall be binding upon and inure to the benefit of the successors, assigns, legatees, heirs and personal representatives of such Trust Unitholder. By an assignment or a transfer of one or more Trust Units, the assignor thereby shall, with respect to such assigned or transferred Trust Unit or Trust Units, part with, except as required by federal or state tax laws and as provided in Section 4.03 hereof in the case of a transfer after a Quarterly Record Date and prior to the corresponding Quarterly Payment Date, (a) all of its Beneficial Interest attributable to such Trust Unit or Trust Units and (b) all interests, rights and benefits of a Trust Unitholder under the Trust and this Agreement that are attributable to such Trust Unit or Trust Units as against all other Trust Unitholders, the Trust and the Trustee, including, without limiting the generality of the foregoing, any and all rights to receive cash distributions pursuant to Section 3.15 with respect to the Trust Units so assigned or transferred, for any Quarterly Period or Quarterly Periods subsequent to the Quarterly Period which relates to the last Quarterly Record

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Date on which the assignor owned such Trust Units. The Trust Units and the rights, benefits and interests evidenced thereby (including, without limiting the foregoing, the entire Beneficial Interest) are and, for all purposes, shall be construed, to be in all respects intangible personal property, and the Trust Units shall be bequeathed, assigned, disposed of and distributed as intangible personal property. No Trust Unitholder as such shall have any title, legal or equitable, in or to any real property interest or tangible personal property interest that may be considered a part of the Trust Estate, including, without limiting the foregoing, the Royalty Interests or any part thereof, or in or to any asset of the Trust Estate to the extent that an interest in such asset would cause the interest of a Trust Unitholder to be treated as other than an intangible personal property interest, but the sole interest of each Trust Unitholder shall be his ownership in the Beneficial Interest. No Trust Unitholder shall have the right to call for or demand or secure any partition or distribution of the Royalty Interests or any other asset of the Trust Estate or any accounting during the continuance of the Trust or during the period of liquidation and winding up under Section 9.03 of this Agreement. Pursuant to Section 3803(a) of the Trust Act, the Trust Unitholders shall be entitled, to the fullest extent permitted by law, to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware.
     Section 4.03 Effect of Transfer . As to matters affecting the title, ownership, warranty or transfer of Trust Units, Article 8 of the Uniform Commercial Code, the Uniform Act for Simplification of Fiduciary Security Transfers, and other statutes and rules with respect to the transfer of securities, each as is adopted and then in force in the State of Delaware, shall govern and apply. The death of any Trust Unitholder shall not entitle the Transferee of such Trust Unitholder to an accounting or valuation for any purpose pursuant to the terms hereof.
     Section 4.04 Determination of Ownership . In the event of any disagreement between Persons claiming to be Transferees of any Trust Unit, or in the event of any question on the part of the Trustee when presented with a request for transfer of a Trust Unit, which the Trustee believes is not fully resolved by opinions of counsel or other documents obtained in connection therewith, then, in addition to other rights which it may have under applicable law, the Trustee shall be entitled at its option to refuse to recognize any such claim so long as such disagreement or question shall continue. In so refusing, the Trustee, and any Entity serving in such capacity, may elect to refrain or refuse to act with respect to the interest represented by the Trust Unit involved, or any part thereof, or of any sum or sums of money accrued or accruing thereunder, and, in so doing, the Trustee shall not be or become liable to any Person for the failure or refusal of the Trustee to comply with such conflicting claims or requests for transfer, and shall be entitled to continue so to refrain and refuse so to act, until:
     (a) the rights of the adverse claimants or the questions of the Trustee have been adjudicated by a final nonappealable judgment of a court assuming and having jurisdiction of the parties and the interest and money involved or
     (b) all differences have been adjusted by valid agreement between said parties and the Trustee shall have been notified thereof in writing signed by all of the interested parties.

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ARTICLE V
ACCOUNTING AND DISTRIBUTIONS; REPORTS
     Section 5.01 Fiscal Year and Accounting Method . The Trust shall adopt the calendar year as its fiscal year and shall maintain its books on an appropriate basis to comply with Sections 5.03 and 5.04 , except to the extent such books must be maintained on any other basis pursuant to applicable law or pursuant to Exhibit A .
     Section 5.02 Quarterly Cash Distribution Amount . On (or, to the extent reasonably practicable, prior to) the Quarterly Record Date, the Trustee shall, in the manner required by the rules of any securities exchange or quotation system on which the Trust Units are listed or admitted to trading, communicate to the Trust Unitholders the amount of the Quarterly Cash Distribution Amount or any Sales Proceeds Amount for the relevant Quarterly Period.
     Section 5.03 Reports to Trust Unitholders and Others .
     (a) Within 45 days following the end of each of the first three Quarterly Periods of each calendar year or such shorter period of time as may be required by the rules and regulations of the Commission adopted with respect to the Exchange Act or by the rules of any securities exchange or quotation system on which the Trust Units are listed or admitted to trading, the Trustee shall mail to each Person who was a Trust Unitholder of record on the Quarterly Record Date for such Quarterly Period a report, which may be a copy of the Trust’s Quarterly Report on Form 10-Q under the Exchange Act, which shall show in reasonable detail the assets and liabilities and receipts and disbursements of the Trust for such Quarterly Period; provided, however, the obligation to mail a report to each Trust Unitholder of record shall be deemed to be satisfied if the Trustee files a copy of the Trust’s quarterly report on Form 10-Q on the Electronic Data Gathering, Analysis, and Retrieval system (EDGAR) maintained by the Commission or any successor system or otherwise makes such report publicly available on an Internet website that is generally accessible to the public. Within 90 days following the end of each fiscal year or such shorter period of time as may be required by the rules and regulations of the Commission adopted with respect to the Exchange Act or by the rules of any securities exchange or quotation system on which the Trust Units are listed or admitted to trading, the Trustee shall mail to each Person who was a Trust Unitholder of record on a date to be selected by the Trustee an annual report, containing financial statements audited by a independent registered public accounting firm selected by the Trustee, plus such annual reserve information regarding the Royalty Interests as may be required by any regulatory authority having jurisdiction.
     (b) Notwithstanding any time limit imposed by Section 5.03(a) , if, due to a delay in receipt by the Trustee of information necessary for preparation of a report or reports required by such paragraphs, the Trustee shall be unable to prepare and mail such report or reports within such time limit, the Trustee shall prepare and mail such report or reports as soon thereafter as practicable.
     Section 5.04 Reports from ECA to the Trustee . Promptly at the end of each Quarterly Period and following the completion of each fiscal year, ECA shall deliver to the Trustee a statement of the computation of the proceeds for each Quarterly Period or fiscal year, as the case

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may be, as well as an update on the number of development wells that have been drilled pursuant to the Development Agreement and production information for such Quarterly Period.
     Section 5.05 Federal Income Tax Provisions . The provisions attached hereto as Exhibit A (the “ Tax Provisions ”) are intended to comply with federal income tax law governing the allocation of such items of income, gain, loss and deduction of the Trust (in its status as a partnership for tax purposes) and the maintenance of the capital accounts of the Trust Unitholders and are incorporated herein by reference. Any conflict between the provisions of this Agreement and the Tax Provisions shall be governed by the Tax Provisions.
ARTICLE VI
LIABILITY OF DELAWARE TRUSTEE AND TRUSTEE AND
METHOD OF SUCCESSION
     Section 6.01 Liability of Delaware Trustee, Trustee and Agents .
     (a) Notwithstanding any other provision of this Agreement, each of the Delaware Trustee and the Trustee, in carrying out its powers and performing its duties, may act directly or in its discretion, at the expense of the Trust, through Agents pursuant to agreements entered into with any of them, and each Entity serving as Delaware Trustee or Trustee shall be personally or individually liable only for (i) its own fraud or acts or omissions in bad faith or which constitute gross negligence and (ii) taxes, fees or other charges on, based on or measured by any fees, commissions or compensation received by it in connection with any of the transactions contemplated by this Agreement, and shall not otherwise be individually or personally liable under any circumstances whatsoever, including but not limited to any act or omission of any Agent unless such Entity has acted with fraud or in bad faith or with gross negligence in the selection, retention or supervision of such Agent. Notwithstanding any other provision of this Agreement, each Agent of the Delaware Trustee and the Trustee (including ECA and any of the Affiliates when acting as Agents), in carrying out its powers and performing its duties, may act directly or in its discretion, at the expense of the Trust, through agents or attorneys engaged by such Agent, and shall not otherwise be individually or personally liable for any act or omission unless such Agent has acted with fraud or in bad faith or with gross negligence. Neither the Trustee nor the Delaware Trustee shall have any liability to any Persons other than the Trust Unitholders in accordance with Section 3803 of the Trust Act and, for the avoidance of any doubt, shall not have any liability hereunder to the Trust Unitholders absent its own fraud or acts or omissions in bad faith or which constitute gross negligence. No Entity serving as Trustee or Delaware Trustee shall be individually liable by reason of any act or omission of any other Entity serving as Trustee or Delaware Trustee.
     (b) Each of the Delaware Trustee and the Trustee, and each Entity serving in any such fiduciary capacity or as an Agent of the Delaware Trustee or the Trustee (including ECA and any of its Affiliates when acting as Agents), shall be protected in relying or reasonably acting upon any notice, certificate, assignment, opinion or advice of counsel or tax advisors, report of certified accountant, petroleum engineer, geologist, auditor or other expert, credential, or any other document or instrument. Each of the Delaware Trustee and the Trustee, and each Entity serving in any such fiduciary capacity or as an Agent of the Delaware Trustee or the Trustee (including ECA and any of its Affiliates when acting as Agents), is specifically

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authorized to rely upon the application of Article 8 of the Uniform Commercial Code, the application of the Uniform Act for Simplification of Fiduciary Security Transfers and the application of other statutes and rules with respect to the transfer of securities, each as adopted and then in force in the State of Delaware, as to all matters affecting title, ownership, warranty or transfer of the Trust Units, without any personal liability for such reliance, and the indemnity granted under Section 6.02 of this Agreement shall specifically extend to any matters arising as a result thereof. Further, and without limiting the foregoing, each of the Delaware Trustee, the Trustee and each Entity serving in either such capacity is specifically authorized and directed to rely upon the validity of each of the Conveyances and the title held by the Trust in the Royalty Interests pursuant thereto and the validity of the Hedge Agreements, and is further specifically authorized and directed to rely upon opinions of counsel in the Commonwealth of Pennsylvania where the Underlying Properties are located, and on any notice, certificate or other statement of ECA or information furnished by ECA without any liability in any capacity for such reliance.
     Section 6.02 Indemnification of Trustee or Delaware Trustee.
     (a) Each Entity serving as the Trustee or the Delaware Trustee, as well as each of their respective Agents (including ECA and any of its Affiliates when acting as Agents) and equityholders, shall be indemnified and held harmless by, and receive reimbursement from, the Trust Estate against and from any and all liabilities, obligations, actions, suits, costs, expenses, claims, damages, losses, penalties, taxes, fees and other charges (collectively, “ Expenses ,” excluding, however, any taxes and fees payable by the Trustee and the Delaware Trustee on, based on or measured by any fees, commissions or compensation received by the Trustee and the Delaware Trustee for their services hereunder) incurred by it individually in the administration of the Trust and the Trust Estate or any part or parts thereof, or in the doing of any act done or performed or omission occurring on account of its being Trustee or Delaware Trustee, as applicable, except such Expenses as to which it is liable under Section 6.01 of this Agreement (it being understood that each Entity serving as the Trustee or the Delaware Trustee (and their respective Agents and (including ECA and any of its Affiliates when acting as Agents) and equityholders) shall be indemnified by, and receive reimbursement from, the Trust Estate against such Entity’s own negligence which does not constitute gross negligence). Each Entity serving as the Trustee or the Delaware Trustee shall have a lien upon the Trust Estate for payment of such indemnification and reimbursement (including, without limitation, repayment of any funds borrowed from any Entity serving as a fiduciary hereunder), as well as for compensation to be paid to such Entity, in each case entitling such Entity to priority as to payment thereof over payment to any other Person under this Agreement. Neither the Trustee, the Delaware Trustee nor any Entity serving in either of such capacities, nor any Agent thereof shall be entitled to any reimbursement or indemnification from any Trust Unitholder for any Expense incurred by the Delaware Trustee or the Trustee or any such Entity or Agent thereof, their right of reimbursement and indemnification, if any, except as provided in Section 6.02(b ) below, being limited solely to the Trust Estate, whether or not the Trust Estate is exhausted without full reimbursement or indemnification of the Trustee, the Delaware Trustee or any such Entity or Agent thereof. All legal or other expenses reasonably incurred by the Trustee or the Delaware Trustee in connection with the investigation or defense of any Expenses as to which such Entity is entitled to indemnity under this Section 6.02(a) shall be paid out of the Trust Estate.

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     (b) ECA shall indemnify and hold harmless each Entity serving as the Delaware Trustee or the Trustee (but not the Trust Estate or Trust Unitholders), and any Agents and stockholders thereof, individually and as trustee, against any Expenses to which such Entity or Agent thereof may become subject as a result of its position and service as trustee under or with respect to any Environmental Law, insofar as such Expenses arise out of, are based upon or connected with the Underlying Properties, except for Expenses arising from any acts of such Entity or Agent (other than ECA) not contemplated hereunder. The obligations of ECA hereunder may be assigned or transferred to any Entity acquiring the Underlying Property to which each Expense relates; provided , however , such Entity unconditionally agrees in writing, reasonably satisfactory to the Trustee and the Delaware Trustee, to assume ECA’s obligations under this Section 6.02(b) .
     (c) If any action or proceeding shall be brought or asserted against the Trustee or the Delaware Trustee or any Agent or equityholder thereof (each referred to as an “ Indemnified Party ” and, collectively, the “ Indemnified Parties ”) in respect of which indemnity may be sought from ECA (the “ Indemnifying Party ”) pursuant to Section 6.02(b) hereof, of which the Indemnified Party shall have received notice, the Indemnified Party shall promptly notify the Indemnifying Party in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all expenses. The Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the Indemnifying Party has agreed to pay such fees and expenses, (ii) the Indemnifying Party shall have failed to assume the defense of such action or proceeding and employ counsel reasonably satisfactory (including the qualifications of such counsel) to the Indemnified Party in respect of any such action or proceeding or (iii) the named parties to any such action or proceeding include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party (in which case, if the Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such action or proceeding on behalf of the Indemnified Party and the Indemnified Party may employ such counsel for the defense of such action or proceeding as is reasonably satisfactory to the Indemnifying Party; it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys for the Indemnified Parties at any time). The Indemnifying Party shall not be liable for any settlement of any such action or proceeding effected without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditional or delayed), but, if settled with such written consent, or if there be a final judgment for the plaintiff in any such action or proceeding, the Indemnifying Party agrees (to the extent stated above) to indemnify and hold harmless the Indemnified Party from and against any loss or liability by reason of such settlement or judgment.
     (d) Any claim for indemnification pursuant to this Section 6.02 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party.

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     (e) Except as expressly set forth in this Agreement, none of the Trustee, the Delaware Trustee or any other Indemnified Party shall have any duties or liabilities, including fiduciary duties, to the Trust or any Trust Unitholder, and the provisions of this Agreement, to the extent they restrict, eliminate or otherwise modify the duties and liabilities, including fiduciary duties, of any Indemnified Party otherwise existing at law or in equity, are agreed by the Trust Unitholders to replace such other duties and liabilities of such Indemnified Party. To the extent that, at law or in equity, an Indemnified Party has duties, including fiduciary duties, and liabilities relating thereto to the Trust or any Trust Unitholder, any Indemnified Party acting in connection with the Trust’s business or affairs shall not be liable to the Trust or to any Trust Unitholder for its good faith reliance on the provisions of this Agreement.
     Section 6.03 Resignation of Delaware Trustee and Trustee . Any Entity serving as the Delaware Trustee or the Trustee may resign, as such, with or without cause, at any time by written notice to ECA, to any other Entity serving as the Delaware Trustee or the Trustee. Upon receiving the notice of resignation from the Delaware Trustee or the Trustee, as applicable, ECA shall provide notice to each of the then Trust Unitholders of record in accordance with Section 12.08 of this Agreement. Such notice shall specify a date when such resignation shall take effect, which shall be a Business Day not less than 60 days after the date such notice is mailed; provided , however , that in no event shall any resignation of the Trustee be effective until a successor Trustee (including a temporary trustee appointed pursuant to Section 6.05 of this Agreement) has accepted its appointment as Trustee pursuant to the terms hereof; and provided, further, that in no event shall any resignation of the Delaware Trustee be effective until a successor Delaware Trustee has accepted its appointment as Delaware Trustee pursuant to the terms hereof.
     Section 6.04 Removal of Delaware Trustee and Trustee . Each Entity serving as the Delaware Trustee or the Trustee may be removed as trustee hereunder, with or without cause, by the vote of not less than a majority of the then outstanding Trust Units at a meeting held in accordance with the requirements of Article VIII ; provided , however , that any removal of the Delaware Trustee shall be effective only at such time as a successor Delaware Trustee, fulfilling the requirements of Section 3807(a) of the Trust Act, has been appointed and has accepted such appointment; and provided , further , that any removal of the Trustee shall be effective only at such time as a successor Trustee has been appointed and has accepted such appointment in accordance with Section 6.05 .
     Section 6.05 Appointment of Successor Delaware Trustee or Trustee . In the event of the resignation or removal of the Entity serving as the Delaware Trustee or the Trustee or if any such Entity has given notice of its intention to resign as the Delaware Trustee or the Trustee, (i) with respect to the Delaware Trustee, the Trustee may appoint a successor Delaware Trustee, or (ii) with respect to either the Delaware Trustee or the Trustee, the Trust Unitholders represented at a meeting held in accordance with the requirements of Article VIII may appoint a successor trustee. Nominees for appointment may be made by (i) ECA, (ii) the resigned, resigning or removed trustee or (iii) any Trust Unitholder or Trust Unitholders owning of record at least 10% of the then outstanding Trust Units. Any successor to the Trustee shall be a bank or trust company having combined capital, surplus and undivided profits of at least $100,000,000. Any successor to the Delaware Trustee shall be a bank or trust company having its principal place of business in the State of Delaware and having combined capital, surplus and undivided profits of

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at least $20,000,000. Notwithstanding any provision herein to the contrary, in the event that a new trustee has not been approved within 60 days after a notice of resignation, a vote of Trust Unitholders removing a Trustee or other occurrence of a vacancy, a successor trustee may be appointed by any State or Federal District Court having jurisdiction in New Castle County, Delaware, upon the application of any Trust Unitholder, ECA or the Entity tendering its resignation or being removed as trustee filed with such court, and in the event any such application is filed, such court may appoint a temporary trustee at any time after such application is filed, which shall, pending the final appointment of a trustee, have such powers and duties as the court appointing such temporary trustee shall provide in its order of appointment, consistent with the provisions of this Agreement. Any such temporary trustee need not meet the minimum standards of capital, surplus and undivided profits otherwise required of a successor trustee under this Section 6.05 . Nothing herein shall prevent the same Entity from serving as both the Delaware Trustee and the Trustee if it meets the qualifications thereof.
     Immediately upon the appointment of any successor trustee, all rights, titles, duties, powers and authority of the predecessor trustee hereunder (except to the predecessor trustee’s rights to amounts payable under Article VII or Section 6.02 hereof accruing through the appointment of such successor trustee) shall be vested in and undertaken by the successor trustee, which shall be entitled to receive from the predecessor trustee all of the Trust Estate held by it hereunder and all records and files of the predecessor trustee in connection therewith. Any resigning or removed trustee shall account to its successor for its administration of the Trust. All successor trustees shall be fully protected in relying upon such accounting and no successor trustee shall be obligated to examine or seek alteration of any account of any preceding trustee, nor shall any successor trustee be personally liable for failing to do so or for any act or omission of any preceding trustee. The preceding sentence shall not prevent any successor trustee or anyone else from taking any action otherwise permissible in connection with any such account.
     Section 6.06 Laws of Other Jurisdictions . If notwithstanding the other provisions of this Agreement (including, without limitation, Section 12.06 hereof) the laws of jurisdictions other than the State of Delaware (each being referred to below as “such jurisdiction”) apply to the administration of the Trust or the Trust Estate under this Agreement, the following provisions shall apply. If it is necessary or advisable for a trustee to serve in such jurisdiction and if the Trustee is disqualified from serving in such jurisdiction or for any other reason fails or ceases to serve there, the ancillary trustee in such jurisdiction shall be such Entity, which need not meet the requirements set forth in the third sentence of Section 6.05 of this Agreement, as shall be designated in writing by ECA and the Trustee. To the extent permitted under the laws of such jurisdiction, ECA and the Trustee may remove the trustee in such jurisdiction, without cause and without necessity of court proceeding, and may or may not appoint a successor trustee in such jurisdiction from time to time. The trustee serving in such jurisdiction shall, to the extent not prohibited under the laws of such jurisdiction, appoint the Trustee to handle the details of administration in such jurisdiction. The trustee in such jurisdiction shall have all rights, powers, discretions, responsibilities and duties as are delegated in writing by the Trustee, subject to such limitations and directions as shall be specified by the Trustee in the instrument evidencing such appointment. Any trustee in such jurisdiction shall be responsible to the Trustee for all assets with respect to which such trustee is empowered to act. To the extent the provisions of this Agreement and Delaware law cannot be made applicable to the administration in such jurisdiction, the rights, powers, duties and liabilities of the trustee in such jurisdiction shall be the

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same (or as near the same as permitted under the laws of such jurisdiction if applicable) as if governed by Delaware law. In all events, the administration in such jurisdiction shall be as free and independent of court control and supervision as permitted under the laws of such jurisdiction. The fees and expenses of any ancillary trustee shall constitute an administrative expense of the Trust payable from the Trust Estate. Whenever the term “Trustee” is applied in this Agreement to the administration in such jurisdiction, it shall refer only to the trustee then serving in such jurisdiction.
     Section 6.07 Reliance on Experts . The Trustee and the Delaware Trustee may, but shall not be required to, consult with counsel (which may but need not be counsel to ECA), accountants, tax advisors, geologists, engineers and other parties (including employees of the Trustee or Delaware Trustee, as applicable) deemed by the Trustee or the Delaware Trustee to be qualified as experts on the matters submitted to them, and, subject to Section 6.01 but notwithstanding any other provision of this Agreement, the opinion or advice of any such party on any matter submitted to it by the Trustee or the Delaware Trustee shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Trustee or the Delaware Trustee hereunder in good faith in reliance upon and in accordance with the opinion or advice of any such party. Each of the Trustee and the Delaware Trustee is authorized to make payments of all reasonable fees for services and expenses thus incurred out of the Trust Estate. Neither the Delaware Trustee nor the Trustee shall incur any liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee and the Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner or ascertainment of which is not specifically prescribed herein, the Delaware Trustee and the Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or any assistant treasurer and by the secretary or any assistant secretary of the relevant party (including without limitation ECA), as to such fact or matter, and such certificate shall constitute full protection and authorization to the Delaware Trustee and the Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.
     Section 6.08 Force Majeure . The Trustee and the Delaware Trustee shall not incur any liability to any Trust Unitholder if, by reason of any current or future law or regulation thereunder of the federal government or any other governmental authority, or by reason of any act of God, war or other circumstance beyond its control (whether or not similar to any of the foregoing), the Trustee or the Delaware Trustee is prevented or forbidden from doing or performing any act or thing required by the terms hereof to be done or performed; nor shall the Trustee or the Delaware Trustee incur any liability to any Trust Unitholder by reason of any nonperformance or delay caused as aforesaid in the performance of any act or thing required by the terms hereof to be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for herein caused as aforesaid.
     Section 6.09 Failure of Action by ECA . In the event that ECA shall fail or is unable to take any action as required under any provision of the Transaction Documents, the Trustee is empowered (but shall not be required) to take such action.

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     Section 6.10 Action Upon Instructions . Whenever the Delaware Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision of this Agreement, the Delaware Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Trustee requesting instruction as to the course of action to be adopted, and, to the extent the Delaware Trustee acts in good faith in accordance with any such instruction received, the Delaware Trustee shall not be liable on account of such action to any Person. If the Delaware Trustee shall not have received appropriate instructions within ten calendar days of sending such notice to the Trustee (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this Agreement, and the Delaware Trustee shall have no liability to any Person for any such action or inaction.
     Section 6.11 Management of Trust Estate . The Delaware Trustee shall have no duty or obligation to manage, control, prepare, file or maintain any report, license or registration, use, sell, dispose of or otherwise deal with the Trust Estate, or otherwise to take or refrain from taking any action under or in connection with this Agreement, or any other document or instrument, except as expressly required hereby.
     Section 6.12 Validity . The Delaware Trustee shall not be responsible for or in respect of and makes no representations as to the validity or sufficiency of any provision of this Agreement or for the due execution hereof by the other parties hereto or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Estate, and the Delaware Trustee shall in no event assume or incur any liability, duty or obligation to ECA, the Trustee or any Trust Unitholder, other than as expressly provided for herein. The Delaware Trustee shall at no time have any responsibility or liability for or with respect to the legality, validity and enforceability of any of the Trust Units.
     Section 6.13 Rights and Powers; Litigation . The Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation or arbitration under this Agreement or otherwise or in relation to this Agreement, at the request, order or direction of the Trustee, any Trust Unitholder or ECA unless the Trustee, Trust Unitholder or ECA, as the case may be, has or have offered to the Delaware Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be incurred by the Delaware Trustee therein or thereby. The Delaware Trustee shall be under no obligation to appear in, prosecute or defend any action, or to take any other action other than the giving of notices, which in its opinion may require it to incur any out-of-pocket expense or any liability unless it shall be furnished with such security and indemnity against such expense or liability as it may reasonably require. The right of the Delaware Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Delaware Trustee shall not be personally liable or accountable for the performance of any such act except as specifically provided in Section 6.01 .
     Section 6.14 No Duty to Act Under Certain Circumstances . Notwithstanding anything contained herein to the contrary, the Delaware Trustee will not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action would (i) require

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the consent of approval or authorization or order of or the giving of notice to, or the registration with or taking of any action in respect of, any state or other governmental authority or agency of any jurisdiction other than in the State of Delaware, (ii) result in any fee, tax or governmental charge under the laws of any jurisdiction or any political subdivisions thereof other than the State of Delaware becoming payable by the Delaware Trustee or (iii) subject the Delaware Trustee to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by the Delaware Trustee contemplated hereby.
ARTICLE VII
COMPENSATION OF THE TRUSTEE AND THE DELAWARE TRUSTEE
     Section 7.01 Compensation of Trustee and Delaware Trustee . The Entity serving as the Trustee hereunder shall receive compensation for its services as the Trustee as set forth on Schedule A . The Entity serving as the Delaware Trustee hereunder shall receive an annual fee of $2,400 as compensation for its services as the Delaware Trustee hereunder. Entities serving as the Trustee or the Delaware Trustee hereunder shall be reimbursed for all actual expenditures made in connection with administration of the Trust, including those made on account of any unusual duties in connection with matters pertaining to the Trust and the reasonable compensation and expenses of their counsel, accountants or other skilled persons and of all other persons not regularly in their employ. Any unusual or extraordinary services rendered by the Entity serving as Trustee or by the Entity serving as Delaware Trustee in connection with the administration of the Trust shall be treated as trustee administrative services for purpose of computing the respective administrative fee to be paid to each Entity serving as trustee hereunder.
     Section 7.02 Reimbursement of ECA . ECA shall be entitled to reimbursement from the Trust for all out-of-pocket costs and expenses paid by ECA, acting in its capacity as Agent of the Trust (including without limitation legal, accounting, engineering and printing costs) but excluding those costs and expenses specified in Section 3.12(c) and in Section 6.02(b) of this Agreement as costs and expenses to be paid by ECA and excluding any costs and expenses which have been or will be reimbursed pursuant to the Administrative Services Agreement, promptly upon submission of written evidence thereof to the Trustee.
     Section 7.03 Source of Funds . Except as provided in Section 3.12 and Section 6.02(b) of this Agreement, all compensation, reimbursements, and other charges owing to any Entity as a result of its services as a trustee hereunder shall constitute indebtedness hereunder, shall be payable by the Trust out of the Trust Estate and such Entity shall have a lien on the Trust Estate for payment of such compensation, reimbursements and other charges, entitling such Entity to priority as to payment thereof over payment to any other Person under this Agreement.
     Section 7.04 Ownership of Units by ECA, the Delaware Trustee and the Trustee . Each of the Delaware Trustee and, the Trustee, in its individual or other capacity, may become the owner or pledgee of Trust Units with the same rights it would have if it were not a trustee hereunder. ECA and the Private Investors are owners of Trust Units, and each of them and its Affiliates may become the owner of additional Trust Units, with the same rights and entitled to

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the same benefits as any other Trust Unitholder, except to the extent the Subordinated Unitholders have different rights than Common Unitholders.
ARTICLE VIII
MEETINGS OF TRUST UNITHOLDERS
     Section 8.01 Purpose of Meetings . A meeting of the Trust Unitholders may be called at any time and from time to time pursuant to the provisions of this Article VIII to transact any matter that the Trust Unitholders may be authorized to transact.
     Section 8.02 Call and Notice of Meetings . Any such meeting of the Trust Unitholders may be called by the Trustee or by Trust Unitholders owning of record not less than 10% in number of the then outstanding Trust Units. The Trustee may, but shall not be obligated to, call meetings of Trust Unitholders to consider amendments, waivers, consents and other changes relating to the Transaction Documents to which the Trust is a party. In addition, at the written request of the Delaware Trustee, unless the Trustee appoints a successor Delaware Trustee in accordance with Section 6.05 , the Trustee shall call such a meeting but only for the purpose of appointing a successor to the Delaware Trustee upon its resignation. All such meetings shall be held at such time and at such place as the notice of any such meeting may designate. Except as may otherwise be required by any applicable law or by the rules of any securities exchange or quotation system on which the Trust Units may be listed or admitted to trading, written notice of every meeting of the Trust Unitholders signed by the Trustee or the Trust Unitholders calling the meeting, setting forth the time and place of the meeting and in general terms the matters proposed to be acted upon at such meeting, shall be given in person or by mail not more than 60 nor less than 20 days before such meeting is to be held to all of the Trust Unitholders of record at the close of business on a record date selected by the Trustee (the “ Record Date Trust Unitholders ”), which shall be not more than 60 days before the date of such mailing. If such notice is given to any Trust Unitholder by mail, it shall be directed to such Trust Unitholder at its last address as shown by the ownership ledger of the Trustee and shall be deemed duly given when so addressed and deposited in the United States mail, postage paid. No matter other than that stated in the notice shall be acted upon at any meeting unless such action is approved by the Trust Unitholders. Only Record Date Trust Unitholders shall be entitled to notice of and to exercise rights at or in connection with the meeting. All costs associated with calling any meeting of the Trust Unitholders shall be borne by the Trust other than a meeting of the Trust Unitholders called by Trust Unitholders owning of record not less than 10% in number of the then outstanding Trust Units, which costs shall be borne by the Trust Unitholders that called such meeting of Trust Unitholders.
     Section 8.03 Method of Voting and Vote Required . Each Record Date Trust Unitholder shall be entitled to one vote for each Trust Unit owned by such Record Date Trust Unitholder, and any Record Date Trust Unitholder may vote in person or by duly executed written proxy. At any such meeting, the presence in person or by proxy of Record Date Trust Unitholders holding a majority of the Trust Units held by all Record Date Trust Unitholders shall constitute a quorum, and, except as otherwise provided herein, any matter shall be deemed to have been approved by the Trust Unitholders (including, but not limited to, appointment of a successor trustee) if it is approved by the vote of Record Date Trust Unitholders holding more than 50% of the Trust Units represented at the meeting.

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     Section 8.04 Conduct of Meetings . The Trustee may make such reasonable regulations consistent with the provisions hereof as it may deem advisable for any meeting of the Trust Unitholders, for the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, the preparation and use at the meeting of a list authenticated by or on behalf of the Trustee of the Trust Unitholders entitled to vote at the meeting and such other matters concerning the conduct of the meeting as it shall deem advisable.
ARTICLE IX
DURATION, REVOCATION AND TERMINATION OF TRUST
     Section 9.01 Revocation . The Trust is and shall be irrevocable, and ECA, as trustor, after the Closing, retains no power to alter, amend (except as provided otherwise in this Article IX and in Section 10.02 hereof), revoke or terminate the Trust. The Trust shall be terminable only as provided in Section 9.02 of this Agreement, and shall continue until so terminated.
     Section 9.02 Termination . The Trust shall dissolve and commence winding-up its business and affairs upon the first to occur of the following events or times:
     (a) the disposition of all of the Royalty Interests and other assets (other than cash), tangible or intangible, including accounts receivable and claims or rights to payment, constituting the Trust Estate;
     (b) an election by the Trustee to dissolve the Trust that is approved by the holders of a Unit Majority at a meeting duly called and held in accordance with Article VIII ;
     (c) gross proceeds received by the Trust attributable to the Royalty Interests and the Hedge Agreements (after deducting any amounts owed to ECA pursuant to the Swap Agreements) are less than $1.5 million for any four consecutive quarters;
     (d) the entry of a decree of judicial dissolution of the Trust pursuant to the provisions of the Trust Act; and
     (e) the Liquidation Date.
     Section 9.03 Disposition and Distribution of Assets and Properties . Notwithstanding the dissolution of the Trust pursuant to Section 9.02 , the Trustee and the Delaware Trustee shall continue to act as trustees of the Trust Estate and as such shall exercise the powers granted under this Agreement until their duties have been fully performed and the Trust Estate finally distributed so that the affairs of the Trust have been wound up.
     Upon the sale of all or a portion of the Trust Estate pursuant to Section 3.02 of this Agreement or the dissolution of the Trust pursuant to Section 9.02 , the Trustee shall sell for cash in one or more sales all of the properties other than cash then constituting the Trust Estate after any reconveyance of assets to ECA pursuant to the Conveyances; provided, however, ECA shall have a right of first refusal to acquire the subject properties being offered in each sale pursuant to the following procedures:

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     (a) Within 30 days of the Liquidation Date, or after the date such sale pursuant to Section 3.02 , is approved, as applicable, the Trustee shall use commercially reasonable efforts to retain a third-party advisor to market the subject properties;
     (b) If the Trustee receives a bid from a proposed purchaser other than ECA and desires to sell all or part of the subject properties pursuant to this Section 9.03 , then the Trustee shall give notice (the “ Offer Notice ”) to ECA, identifying the proposed purchaser from whom it has received a bona fide offer and setting forth the proposed sale price, payment terms and other material terms under which the Trustee is proposing to sell such subject properties to the proposed purchaser. ECA shall have 30 days from receipt of the Offer Notice to elect, by notice to the Trustee, to purchase the subject properties offered for sale on the terms and conditions set forth in the Offer Notice.
     (c) If ECA makes such election, the notice of election shall state a closing date not later than 60 days after the date of the Offer Notice. Furthermore, if ECA makes such election, the proposed purchaser identified in the Offer Notice shall be entitled to receive reimbursement of its reasonable and documented expenses incurred in connection with its review and analysis of the subject properties and bid preparation. ECA shall pay the proposed purchaser 50 percent of such reimbursement, and the Trust shall pay the proposed purchaser 50 percent of such reimbursement; provided, however, the amount of such reimbursement shall be limited to 5 percent of the sales price received by the Trust for the subject properties.
     (d) If ECA does not give notice within the 30-day period following the Offer Notice that it elects to purchase such subject properties, the Trustee may, within 60 days after the end of such 30-day period, sell such subject properties to the identified purchaser on terms and conditions that are substantially the same as those previously set forth in such Offer Notice. In the event the Trustee shall desire to offer such subject properties for sale on terms and conditions other than terms and conditions that are substantially the same as those previously set forth in an Offer Notice, the procedures set forth in this Section 9.03 must again be initiated and applied with respect to the terms and conditions as modified.
     (e) If, after a reasonable marketing period, no bid is received on any or all of the subject properties from any party other than ECA, then ECA shall obtain, at the Trust’s expense, and deliver to the Trustee, a fairness opinion from a nationally-recognized valuation firm with expertise in fairness opinions stating that the proposed sale price to be paid by ECA to the Trust for the subject properties is fair to the Trust.
     The Trustee shall not be required to obtain approval of the Trust Unitholders prior to performing any of its duties pursuant to this Section 9.03 . Notwithstanding anything herein to the contrary, in no event may the Trustee distribute the Royalty Interests to the Trust Unitholders. Upon completion of the dissolution and winding up of the Trust in accordance with Sections 9.02 and 9.03 hereof and Section 3808 of the Trust Act, the Trustee shall direct the Delaware Trustee to execute and file, and the Delaware Trustee shall execute and file or cause to be filed, a certificate of cancelation of the Trust’s Certificate of Trust in accordance with Section 3811 of the Trust Act. Upon the filing of such certificate of cancellation, neither the Trustee nor any Entity serving in such capacity shall have any further duty or obligation hereunder, and

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neither the Trustee nor the Entity serving in such capacity shall be under further liability except as provided in Section 6.01 .
      Section 9.04 Reorganization or Business Combination.
     (a) The Trust may merge or consolidate with or into one or more limited partnerships, general partnerships, corporations, statutory trusts, common law trusts, limited liability companies, or associations, or unincorporated businesses in accordance with Section 3815 of the Trust Act if such transaction (i) is agreed to by the Trustee, (ii) is approved by the holders of a Unit Majority at a meeting duly called and held in accordance with Article VIII , and (iii) is permitted under the Trust Act and any other applicable law. The Trustee shall give prompt notice of such reorganization or business combination to the Delaware Trustee. Pursuant to and in accordance with the provisions of Section 3815(f) of the Trust Act, and notwithstanding anything else herein, an agreement of merger or consolidation approved in accordance with this Section 9.04 and Section 3815(a) of the Trust Act may effect any amendment to this Agreement or effect the adoption of a new trust agreement if it is the surviving or resulting trust in the merger or consolidation.
     (b) Upon the effective date of a certificate of merger duly filed in accordance with the Trust Act, the following shall be deemed to occur, in addition to such effects as may be specified under the Trust Act as then in effect:
     (i) all of the rights, privileges and powers of each of the business entities that have merged or consolidated, and all property, real, personal and mixed, and all debts due to any of those business entities and all other things and causes of action belonging to each of those business entities shall be vested in the surviving business entity and, after the merger or consolidation, shall be the property of the surviving business entity to the extent they were part of each constituent business entity;
     (ii) the title to any real property vested by deed or otherwise in any of those constituent business entities shall not revert and shall not be in any way impaired because of the merger or consolidation;
     (iii) all rights of creditors and all liens on or security interest in property of any of those constituent business entities shall be preserved unimpaired;
     (iv) all debts, liabilities and duties of those constituent business entities shall attach to the surviving or resulting business entity, and may be enforced against it to the same extent as if the debts, liabilities and duties had been incurred or contacted by it; and
     (v) if the Trust is the surviving or resulting entity, the governing instrument of the Trust shall be amended or a new governing instrument adopted as set forth in the certificate of merger.
     (c) A merger or consolidation effected pursuant to this Section 9.04 shall not be deemed to result in a transfer or assignment of assets or liabilities from one entity to another having occurred.

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ARTICLE X
AMENDMENTS
     Section 10.01 Prohibited Amendments . After the Closing, no amendment may be made to any provision of this Agreement that would:
     (a) increase the power of the Delaware Trustee or the Trustee to engage in business or investment activities;
     (b) alter the right of the Trust Unitholders vis-a-vis each other, decrease the Incentive Threshold (except as provided in Section 3.16), increase the Subordination Threshold, or increase the percentage of the Quarterly Cash Distribution Amount payable as Incentive Distributions or increase the Reimbursement Amount; or
     (c) unless consented to in writing by ECA, have the effect of amending Sections 3.02 , 6.02 , 7.02 , 9.02 , 9.03 , 10.01 or 10.02 hereof.
     Section 10.02 Permitted Amendments . After the Closing, subject to Section 10.01 , the Trustee and the Delaware Trustee may amend the Transaction Documents to which the Trust is a party as follows:
     (a) The Delaware Trustee and the Trustee may, jointly, from time to time supplement or amend the Transaction Documents to which the Trust is a party without the approval of Trust Unitholders in order to cure any ambiguity, to correct or supplement any provision contained herein or therein which may be defective or inconsistent with any other provisions herein or therein, to grant any benefit to all of the Trust Unitholders, to add collateral to the Drilling Support Lien or the Royalty Interest Lien or to change the name of the Trust; provided , however , that such supplement or amendment does not adversely affect the interests of the Trust Unitholders; and provided , further , that any amendment to this Agreement made to change the name of the Trust in accordance with Section 12.04 hereof or otherwise shall be conclusively deemed not to affect adversely the interests of the Trust Unitholders or result in a variance of the investment of the Trust or the Trust Unitholders.
     (b) Notwithstanding Section 10.02(a) , the Trustee may, from time to time supplement or amend the Administrative Services Agreement without the approval of the Trust Unitholders; provided, however , that such supplement or amendment would not increase the costs or expenses of the Trust or adversely affect the economic interests of Trust Unitholders.
     (c) All other permitted amendments to the provisions of the Transaction Documents to which the Trust is a party may be made only by a vote of the holders of a Unit Majority at a meeting held in accordance with the requirements of Article VIII .
     (d) No amendment that increases the obligations, duties or liabilities or affects the rights of the Delaware Trustee, the Trustee or any Entity serving in any such capacity shall be effective without the express written approval of such trustee or Entity.

35


 

ARTICLE XI
ARBITRATION
     THE TRUST UNITHOLDERS, TRUSTEE AND ECA AGREE THAT, EXCEPT AS PROVIDED IN PARAGRAPH (I) OF THIS ARTICLE XI , ANY DISPUTE, CONTROVERSY OR CLAIM THAT MAY ARISE BETWEEN OR AMONG ECA (ON THE ONE HAND) AND THE TRUST OR THE TRUSTEE (ON THE OTHER HAND) IN CONNECTION WITH OR OTHERWISE RELATING TO THE TRANSACTION DOCUMENTS TO WHICH THE TRUST IS A PARTY, OR THE APPLICATION, IMPLEMENTATION, VALIDITY OR BREACH OF THE TRANSACTION DOCUMENTS TO WHICH THE TRUST IS A PARTY OR ANY PROVISION OF THE TRANSACTION DOCUMENTS TO WHICH THE TRUST IS A PARTY (INCLUDING, WITHOUT LIMITATION, CLAIMS BASED ON CONTRACT, TORT OR STATUTE), SHALL BE FINALLY, CONCLUSIVELY AND EXCLUSIVELY SETTLED BY BINDING ARBITRATION IN CHARLESTON, WEST VIRGINIA IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES (THE “ RULES ”) OF THE AMERICAN ARBITRATION ASSOCIATION OR ANY SUCCESSOR THERETO (“ AAA ”) THEN IN EFFECT. THE TRUST UNITHOLDERS, THE TRUSTEE (ON BEHALF OF ITSELF AND ON BEHALF OF THE TRUST) AND ECA HEREBY EXPRESSLY WAIVE THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO TRIAL BY JURY, WITH RESPECT TO ANY MATTER SUBJECT TO ARBITRATION PURSUANT TO THIS ARTICLE XI . THE TRUST UNITHOLDERS, TRUSTEE AND ECA MAY BRING AN ACTION, INCLUDING, WITHOUT LIMITATION, A SUMMARY OR EXPEDITED PROCEEDING, IN ANY COURT HAVING JURISDICTION, TO COMPEL ARBITRATION OF ANY DISPUTE, CONTROVERSY OR CLAIM TO WHICH THIS ARTICLE XI APPLIES. EXCEPT WITH RESPECT TO THE FOLLOWING PROVISIONS (THE “ SPECIAL PROVISIONS ”) WHICH SHALL APPLY WITH RESPECT TO ANY ARBITRATION PURSUANT TO THIS ARTICLE XI , THE INITIATION AND CONDUCT OF ARBITRATION SHALL BE AS SET FORTH IN THE RULES, WHICH RULES ARE INCORPORATED IN THIS AGREEMENT BY REFERENCE WITH THE SAME EFFECT AS IF THEY WERE SET FORTH IN THIS AGREEMENT.
     (a) In the event of any inconsistency between the Rules and the Special Provisions, the Special Provisions shall control. References in the Rules to a sole arbitrator shall be deemed to refer to the tribunal of arbitrators provided for under subparagraph (c) below in this Article XI .
     (b) The arbitration shall be administered by AAA.
     (c) The arbitration shall be conducted by a tribunal of three arbitrators. Within ten days after arbitration is initiated pursuant to the Rules, the initiating party or parties (the “ Claimant ”) shall send written notice to the other party or parties (the “ Respondent ”), with a copy to the East Providence, Rhode Island office of AAA, designating the first arbitrator (who shall not be a representative or agent of any party but may or may not be an AAA panel member and, in any case, shall be reasonably believed by the Claimant to possess the requisite experience, education and expertise in respect of the matters to which the claim relates to enable such person to completely perform arbitral duties). Within ten days after receipt of such notice, the Respondent shall send written notice to the Claimant, with a copy to the East Providence, Rhode Island office of AAA and to the first arbitrator, designating the second arbitrator (who

36


 

shall not be a representative or agent of any party, but may or may not be an AAA panel member and, in any case, shall be reasonably believed by the Respondent to possess the requisite experience, education and expertise in respect of the matters to which the claim relates to enable such person to competently perform arbitral duties). Within ten days after such notice from the Respondent is received by the Claimant, the Respondent and the Claimant shall cause their respective designated arbitrators to select any mutually agreeable AAA panel member as the third arbitrator. If the respective designated arbitrators of the Respondent and the Claimant cannot so agree within said ten day period, then the third arbitrator will be determined pursuant to the Rules. For purposes of this Article XI , ECA (on the one hand) and the Trust and the Trustee (on the other hand) shall each be entitled to the selection of one arbitrator. Prior to commencement of the arbitration proceeding, each arbitrator shall have provided the parties with a resume outlining such arbitrator’s background and qualifications and shall certify that such arbitrator is not a representative or agent of any of the parties. If any arbitrator shall die, fail to act, resign, become disqualified or otherwise cease to act, then the arbitration proceeding shall be delayed for 15 days and the party by or on behalf of whom such arbitrator was appointed shall be entitled to appoint a substitute arbitrator (meeting the qualifications set forth in this Article XI ) within such 15-day period; provided , however , that if the party by or on behalf of whom such arbitrator was appointed shall fail to appoint a substitute arbitrator within such 15-day period, the substitute arbitrator shall be a neutral arbitrator appointed by the AAA arbitrator within fifteen days thereafter.
     (d) All arbitration hearings shall be commenced within 120 days after arbitration is initiated pursuant to the Rules, unless, upon a showing of good cause by a party to the arbitration, the tribunal of arbitrators permits the extension of the commencement of such hearing; provided , however , that any such extension shall not be longer than 60 days.
     (e) All claims presented for arbitration shall be particularly identified and the parties to the arbitration shall each prepare a statement of their position with recommended courses of action. These statements of position and recommended courses of action shall be submitted to the tribunal of arbitrators chosen as provided hereinabove for binding decision. The tribunal of arbitrators shall not be empowered to make decisions beyond the scope of the position papers.
     (f) The arbitration proceeding will be governed by the substantive laws of the State of Delaware and will be conducted in accordance with such procedures as shall be fixed for such purpose by the tribunal of arbitrators, except that (i) discovery in connection with any arbitration proceeding shall be conducted in accordance with the Federal Rules of Civil Procedure and applicable case law, (ii) the tribunal of arbitrators shall have the power to compel discovery and (iii) unless the parties otherwise agree and except as may be provided in this Article XI , the arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. §§ 1-16, to the exclusion of any provision of state law or other applicable law or procedure inconsistent therewith or which would produce a different result. The parties shall preserve their right to assert and to avail themselves of the attorney-client and attorney-work-product privileges, and any other privileges to which they may be entitled pursuant to applicable law. No party to the arbitration or any arbitrator may compel or require mediation and/or settlement conferences without the prior written consent of all such parties and the tribunal of arbitrators.

37


 

     (g) The tribunal of arbitrators shall make an arbitration award as soon as possible after the later of the close of evidence or the submission of final briefs, and in all cases the award shall be made not later than thirty days following submission of the matter. The finding and decision of a majority of the arbitrators shall be final and shall be binding upon the parties. Judgment upon the arbitration award or decision may be entered in any court having jurisdiction thereof or application may be made to any such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The tribunal of arbitrators shall have the authority to assess liability for pre-award and post-award interest on the claims, attorneys’ fees, expert witness fees and all other expenses of arbitration as such arbitrators shall deem appropriate based on the outcome of the claims arbitrated. Unless otherwise agreed by the parties to the arbitration in writing, the arbitration award shall include findings of fact and conclusions of law.
     (h) Nothing in this Article XI shall be deemed to (i) limit the applicability of any otherwise applicable statute of limitations or repose or any waivers contained in this Agreement, (ii) constitute a waiver by any party hereto of the protections afforded by 12 U.S.C. § 91 or any successor statute thereto or any substantially equivalent state law, (iii) restrict the right of the Trustee to make application to any state or federal district court having jurisdiction in Charleston, West Virginia, to appoint a successor Trustee or to request instructions with regard to any provision in this Agreement when the Trustee is unsure of its obligations thereunder, or (iv) apply to the Delaware Trustee.
     (i) This Article XI shall preclude participation by the Trust in any class action brought against ECA by any Person who is not a Trust Unitholder and the Trustee shall opt out of any such class action in which the Trust is a purported class member, but shall not preclude participation by the Trust in any such action brought by a Trust Unitholders or in which Trust Unitholders holding more than 50% of the Trust Units represented at a duly called and held meeting of the Trust Unitholders in accordance with Section 8.02 request the Trustee to participate.
ARTICLE XII
MISCELLANEOUS
     Section 12.01 Inspection of Books . Each Trust Unitholder and its duly authorized agents and attorneys shall have the right, at its own expense and during reasonable business hours upon reasonable prior notice, to examine and inspect the records (including, without limitation, the ownership ledger) of the Trust and the Trustee in reference thereto for any purpose reasonably related to the Trust Unitholder’s interest as a Trust Unitholder. The Trustee and its duly authorized Agents shall have the right, at the expense of the Trust and during reasonable business hours upon reasonable prior written notice, to examine and inspect the records of ECA relating to the Royalty Interests and the Underlying Properties.
     Section 12.02 Disability of a Trust Unitholder . Any payment or distribution to a Trust Unitholder may be made by check of the Trustee drawn to the order of the Trust Unitholder, regardless of whether or not the Trust Unitholder is a minor or under other legal disability, without the Trustee having further responsibility with respect to such payment or distribution. This Section 12.02 shall not be deemed to prevent the Trustee from making any payment or distribution by any other method that is appropriate under law.

38


 

     Section 12.03 Merger or Consolidation of Delaware Trustee or Trustee . Neither a change of name of either the Delaware Trustee or the Trustee, nor any merger or consolidation of its corporate powers with another bank or with a trust company, nor the sale or transfer of all or substantially all of its institutional and corporate trust operations to a separate bank, trust company, corporation or other business entity shall adversely affect such resulting or successor party’s right or capacity to act hereunder; provided , however , that the Delaware Trustee or any successor thereto shall maintain its principal place of business in the State of Delaware; and provided , further , that, in the case of any successor Trustee or Delaware Trustee, it shall continue to meet the requirements of Section 6.05 of this Agreement.
     Section 12.04 Change in Trust Name . Upon the written request by ECA submitted to the Trustee and the Delaware Trustee, the Trustee shall, without the vote or consent of any Trust Unitholders, take all action necessary to change the name of the Trust to a name mutually agreeable to the Trustee and ECA and, upon effecting such name change, the Delaware Trustee, acting pursuant to the written instructions of the Trustee, shall amend the Certificate of Trust on file in the office of the Secretary of State of Delaware to reflect such name change.
     Section 12.05 Filing of this Agreement . There is no obligation on the part of the Trustee that this Agreement or any executed copy hereof be filed in any county in which any of the Trust Estate is located or elsewhere, but the same may be filed for record in any county by the Trustee. In order to avoid the necessity of filing this Agreement for record, each of the Delaware Trustee and the Trustee agrees that for the purpose of vesting the record title to the Trust Estate in any successor trustee, the succeeded trustee shall, upon appointment of any successor trustee, execute and deliver to such successor trustee appropriate assignments or conveyances.
     Section 12.06 Choice of Law . This Agreement and the Trust shall be governed by the laws of the State of Delaware (without regard to the conflict of laws principles thereof) in effect at any applicable time in all matters, including the validity, construction and administration of this Agreement and the Trust, the enforceability of the provisions of this Agreement, all rights and remedies hereunder, and the services of the Delaware Trustee and Trustee hereunder. Furthermore, except as otherwise provided in this Agreement, the rights, powers, duties and liabilities of the Delaware Trustee, the Trustee and the Trust Unitholders shall be as provided under the Trust Act and other applicable laws of the State of Delaware and the United States of America in effect at any applicable time; provided , however , that there shall not be applicable to the Trustee, the Delaware Trustee, the Trust Unitholders, the Trust or this Agreement any provision of the laws (common or statutory) of the State of Delaware pertaining to trusts that relate to or regulate, in a manner inconsistent with the terms hereof, (i) the filing with any court or governmental body or agency of trustee accounts or schedules of trustee fees and charges, (ii) affirmative requirements to post bonds for trustees, officers, agents or employees of a trust, (iii) the necessity for obtaining court or other governmental approval concerning the acquisition, holding or disposition of real or personal property, (iv) fees or other sums payable to trustees, officers, agents or employees of a trust, (v) the allocation of receipts and expenditures to income or principal, (vi) restrictions or limitations on the permissible nature, amount or concentration of trust investments or requirements relating to the titling, storage or other manner of holding or investing trust assets or (vii) the establishment of fiduciary or other standards of responsibility or limitations on the acts or powers of trustees that are inconsistent with the limitations or

39


 

authorities and powers of the trustees hereunder as set forth or referenced in this Agreement. Section 3540 of Title 12 of the Delaware Code shall not apply to the Trust.
     Section 12.07 Separability . If any provision of this Agreement or the application thereof to any Person or circumstances shall be finally determined by a court of proper jurisdiction to be illegal, invalid or unenforceable to any extent, the remainder of this Agreement or the application of such provision to Persons or circumstances other than those as to which it is held illegal, invalid or unenforceable shall not be affected thereby, and every remaining provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
     Section 12.08 Notices . Any and all notices or demands permitted or required to be given under this Agreement shall be in writing and shall be validly given or made if (a) personally delivered, (b) delivered and confirmed by facsimile or like instantaneous transmission service, or by Federal Express or other overnight courier delivery service, which shall be effective as of confirmation of receipt by the courier at the address for notice hereinafter stated, (c) solely in the case of notice to any Trust Unitholder, by press release in a nationally recognized and distributed media, or (d) deposited in the United States mail, first class, postage prepaid, certified or registered, return receipt requested, addressed as follows:
If to the Trustee, to:
The Bank of New York Mellon Trust Company, N.A.
Institutional Trust Services
919 Congress Avenue, Suite 500
Austin, Texas 78701
Attention: Mike J. Ulrich
Facsimile No.: (512) 479-2253
With a copy to:
Bracewell & Giuliani LLP
111 Congress Avenue
Suite 2300
Austin, Texas 78701
Attention: Thomas W. Adkins
Facsimile No.: (512) 479-3940
With a copy to:
Richards, Layton & Finger, P.A.
One Rodney Square
920 North King Street
Wilmington, Delaware 19801
Attention: Tara Hoffner
Facsimile No.: (302) 498-7708

40


 

If to the Delaware Trustee, to:
Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
Attention: Corporate Trust Administration
Facsimile No.: (302) 658-5459
If to ECA, to:
4643 South Ulster Street
Suite 1100
Denver, Colorado 80237
Attention: Michael S. Fletcher
Facsimile No.: (303) 694-2763
With a copy to:
501 56th Street
Charleston, West Virginia 25304
Attention: Donald C. Supcoe
Facsimile No.: (304) 925-3285
With a copy to:
Vinson & Elkins L.L.P.
1001 Fannin Street, Suite 3500
Houston, Texas 77002
Attention: David P. Oelman
Facsimile No. (713) 615-5861
If to a Trust Unitholder, to:
     The Trust Unitholder at its last address as shown on the ownership records maintained by the Trustee
     Notice that is mailed in the manner specified shall be conclusively deemed given three days after the date postmarked or upon receipt, whichever is sooner. Any party to this Agreement may change its address for the purpose of receiving notices or demands by notice given as provided in this Section 12.08 .
     Section 12.09 Counterparts . This Agreement may be executed in a number of counterparts, each of which shall constitute an original, but such counterparts shall together constitute but one and the same instrument.
[ Signature page follows ]

41


 

     IN WITNESS WHEREOF, ECA, the Trustee and the Delaware Trustee have caused this Agreement to be duly executed the day and year first above written.
             
ATTEST:   ENERGY CORPORATION OF AMERICA
 
           
 /s/ Julie Ann Kitano
  By:   /s/ John Mork 
 
       
Name:
  Julie Ann Kitano        John Mork
Title:
  Witness        President and Chief Executive Officer
 
           
ATTEST:   THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
 
           
/s/ Julie Ann Kitano
  By:   /s/ Michael J. Ulrich 
 
       
Name:
  Julie Ann Kitano        Michael J. Ulrich
Title:
  Witness        Authorized Signatory
 
           
ATTEST:   CORPORATION TRUST COMPANY
 
           
/s/ Milanie McGrath
  By:   /s/ Jennifer A Schwartz 
 
       
Name:
  Milanie McGrath        Jennifer A Schwartz
Title:
  Staffing Specialist        Assistant Vice President
[Signature Page to Amended and Restated Trust Agreement]

 


 

ANNEX A
                         
Target Distributions and Subordination and Incentive Thresholds
(per unit)
Quarter   Subordination   Target   Incentive
Ending   Threshold (1)   Distribution   Threshold (1)
June 30, 2010
  $ 0.1814     $ 0.2267     $ 0.2721  
September 30, 2010
    0.3340       0.4175       0.5010  
December 31, 2010
    0.4776       0.5970       0.7164  
March 31, 2011
    0.4460       0.5575       0.6690  
June 30, 2011
    0.4510       0.5637       0.6764  
September 30, 2011
    0.5503       0.6878       0.8254  
December 31, 2011
    0.5649       0.7061       0.8473  
March 31, 2012
    0.5740       0.7175       0.8609  
June 30, 2012
    0.6017       0.7521       0.9025  
September 30, 2012
    0.6244       0.7804       0.9365  
December 31, 2012
    0.7010       0.8762       1.0514  
March 31, 2013
    0.7564       0.9455       1.1346  
June 30, 2013
    0.7539       0.9424       1.1308  
September 30, 2013
    0.7011       0.8764       1.0517  
December 31, 2013
    0.6593       0.8241       0.9889  
March 31, 2014
    0.6102       0.7627       0.9152  
June 30, 2014
    0.5885       0.7357       0.8828  
September 30, 2014
    0.5705       0.7132       0.8558  
December 31, 2014
    0.5493       0.6866       0.8239  
March 31, 2015
    0.5192       0.6490       0.7788  
June 30, 2015
            0.6366          
September 30, 2015
            0.6256          
December 31, 2015
            0.6093          
March 31, 2016
            0.5880          
June 30, 2016
            0.5750          
September 30, 2016
            0.5692          
December 31, 2016
            0.5580          
March 31, 2017
            0.5355          
June 30, 2017
            0.5321          
September 30, 2017
            0.5289          
December 31, 2017
            0.5201          
March 31, 2018
            0.5004          
June 30, 2018
            0.4983          
September 30, 2018
            0.4963          
December 31, 2018
            0.4888          
March 31, 2019
            0.4708          
June 30, 2019
            0.4692          
September 30, 2019
            0.4676          
December 31, 2019
            0.4606          
March 31, 2020
            0.4487          
June 30, 2020
            0.4421          
September 30, 2020
            0.4405          
December 31, 2020
            0.4340          
March 31, 2021
            0.4180          
June 30, 2021
            0.4166          
September 30, 2021
            0.4151          
December 31, 2021
            0.4088          
March 31, 2022
            0.3937          
June 30, 2022
            0.3924          

Annex A - 1


 

                         
Target Distributions and Subordination and Incentive Thresholds
(per unit)
Quarter   Subordination   Target   Incentive
Ending   Threshold (1)   Distribution   Threshold (1)
September 30, 2022
            0.3909          
December 31, 2022
            0.3850          
March 31, 2023
            0.3708          
June 30, 2023
            0.3695          
September 30, 2023
            0.3681          
December 31, 2023
            0.3625          
March 31, 2024
            0.3530          
June 30, 2024
            0.3478          
September 30, 2024
            0.3464          
December 31, 2024
            0.3412          
March 31, 2025
            0.3284          
June 30, 2025
            0.3272          
September 30, 2025
            0.3260          
December 31, 2025
            0.3210          
March 31, 2026
            0.3089          
June 30, 2026
            0.3078          
September 30, 2026
            0.3066          
December 31, 2026
            0.3019          
March 31, 2027
            0.2905          
June 30, 2027
            0.2895          
September 30, 2027
            0.2866          
December 31, 2027
            0.2802          
March 31, 2028
            0.2708          
June 30, 2028
            0.2648          
September 30, 2028
            0.2619          
December 31, 2028
            0.2560          
March 31, 2029
            0.2445          
June 30, 2029
            0.2419          
September 30, 2029
            0.2392          
December 31, 2029
            0.2338          
March 31, 2030
            2.8904          
 
(1)   For each quarter, the Subordination Threshold equals 80% of the Target Distribution, and the Incentive Threshold equals 120% of the Target Distribution.

Annex A - 2


 

EXHIBIT A
TO
AMENDED AND RESTATED
TRUST AGREEMENT OF ECA MARCELLUS TRUST I
FEDERAL INCOME TAX PROVISIONS
          1. Purpose and Scope; Definitions; Use of Agents .
          (a) For federal income tax purposes, the ECA Marcellus Trust I (the “ Trust ”) will be classified and treated as a partnership and the Trust Unitholders will be treated as the partners in such partnership. A partnership is not a taxable entity and incurs no federal income tax liability. Instead, each partner is required to take into account his allocable share of items of income, gain, loss, deduction and credit of the partnership in computing his federal income tax liability. This Exhibit A contains provisions necessary to permit the Trust to comply with the federal income tax law applicable to the Trust, including provisions governing the allocation of items of income, gain, loss and deduction of the Trust and the maintenance of the Capital Accounts of the Trust Unitholders.
          (b) For purposes of this Exhibit A, the “ Partnership ” means the Trust, “ Partner(s )” means Trust Unitholder(s), “ Partnership Interest ” means the ownership interest in the Trust held by a Trust Unitholder, and “ Capital Contribution ” means a Trust Unitholder’s initial investment in the Trust. Other terms used in this Exhibit A have the meanings set forth in Section 7 below or in the Amended and Restated Trust Agreement of ECA Marcellus Trust I dated as of July 7, 2010 (the “ Trust Agreement ”), as applicable.
          (c) This Exhibit A provides that under certain circumstances the Trustee is either required to take or has the discretion to take actions relating to the Trust’s status as a partnership for federal income tax purposes. Pursuant to Section 6.01 of the Trust, the Trustee will generally take such required actions, and where such actions are discretionary, will generally exercise its discretion to take such actions, through its Agents, i.e., its accountants (selected pursuant to Section 3.06) and ECA. Pursuant to Section 3.01 of the Trust, when exercising its discretion under this Exhibit A, Trustee shall take action as in its judgment is necessary, desirable or advisable to best achieve the purpose of the trust.
          2. Capital Accounts .
          (a) The Partnership shall maintain for each Partner (or a beneficial owner of Partnership Interests held by a nominee in any case in which the nominee has furnished the identity of such owner to the Partnership in accordance with Section 6031(c) of the Code or any other method acceptable to the Trustee) owning a Partnership Interest a separate capital account (“ Capital Account ”) with respect to such Partnership Interest in accordance with the rules of Treasury Regulation Section 1.704-1(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of all Capital Contributions made to the Partnership with respect to such Partnership Interest and (ii) all items of Net Income and other items of Partnership income and gain (including, without limitation, Simulated Gain and income and gain exempt from tax) computed in accordance with Section 2(b) and allocated with respect to such Partnership Interest pursuant

Exhibit A - 1


 

to Section 3, and decreased by (x) the amount of cash distributions made with respect to such Partnership Interest and (y) all items of Partnership Net Loss and other items of deduction and loss (including Simulated Depletion and Simulated Loss) computed in accordance with Section 2(b) and allocated with respect to such Partnership Interest pursuant to Section 3.
          (b) For purposes of computing Net Income, Net Loss and the amount of any item of income, gain, loss, deduction, Simulated Depletion, Simulated Gain or Simulated Loss which is to be allocated pursuant to Section 3 and is to be reflected in the Partners’ Capital Accounts, the determination, recognition and classification of any such item shall be the same as its determination, recognition and classification for federal income tax purposes; provided , however , that:
               (i) All fees and other expenses incurred by the Partnership to promote the sale of (or to sell) a Partnership Interest that can neither be deducted nor amortized under Section 709 of the Code, if any, shall, for purposes of Capital Account maintenance, be treated as an item of deduction at the time such fees and other expenses are incurred and shall be allocated among the Partners pursuant to Section 3.
               (ii) Except as otherwise provided in Treasury Regulation Section 1.704-1(b)(2)(iv)(m), the computation of all items of income, gain, loss, deduction, Simulated Depletion, Simulated Gain and Simulated Loss shall be made without regard to any election under Section 754 of the Code which may be made by the Partnership and, as to those items described in Section 705(a)(1)(B) or Section 705(a)(2)(B) of the Code, without regard to the fact that such items are not includable in gross income or are neither currently deductible nor capitalized for federal income tax purposes. To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) or Section 743(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment in the Capital Accounts shall be treated as an item of gain or loss.
               (iii) Any income, gain, loss, Simulated Gain or Simulated Loss attributable to the taxable disposition of any Partnership property shall be determined as if the adjusted basis of such property as of such date of disposition were equal in amount to the Partnership’s Carrying Value with respect to such property as of such date.
               (iv) In accordance with the requirements of Section 704(b) of the Code, any deductions for depreciation, cost recovery, amortization or Simulated Depletion attributable to any Contributed Property shall be determined as if the adjusted basis of such property on the date it was acquired by the Partnership were equal to the Agreed Value of such property, and any such deductions shall reduce the Carrying Value of such Contributed Property.
          (c) A transferee of a Partnership Interest shall succeed to a pro rata portion of the Capital Account of the transferor relating to the Partnership Interest so transferred.
          (d) Subject to Section 5(b), immediately prior to the transfer of a Sponsor Common Unit, the Capital Account maintained for the transferor with respect to its Sponsor Common Units will (A) first, be apportioned to the Sponsor Common Units to be transferred in

Exhibit A - 2


 

an amount equal to the product of (x) the number of such Sponsor Common Units to be transferred and (y) the Uniform Per Unit Capital Amount, and (B) second, any remaining balance in such Capital Account will be retained by the transferor and apportioned to its retained Sponsor Common Units. Following any such apportionment, the transferor’s Capital Account maintained with respect to the retained Sponsor Common Units will have a balance equal to the amount allocated under clause (B) hereinabove, the transferee’s Capital Account established with respect to the transferred Sponsor Common Units will have a balance equal to the amount allocated under clause (A) hereinabove, and the transferred Sponsor Common Units shall cease to be Sponsor Common Units.
     3.  Allocations for Capital Account Purposes . For purposes of maintaining the Capital Accounts and in determining the rights of the Partners among themselves, the Partnership’s items of income, gain, loss, deduction, Simulated Depletion, Simulated Gain and Simulated Loss (computed in accordance with Section 2(b)) shall be allocated among the Partners for each Allocation Year as provided herein below.
          (a) Net Income and Net Loss. After giving effect to the special allocations set forth in Section 3(b) and Section 3(c), Net Income and Net Loss for each taxable year and all items of income, gain, loss and deduction taken into account in computing Net Income and Net Loss for such Allocation Year shall be allocated to the Partners in accordance with their respective Percentage Interests.
          (b) Special Allocations. Notwithstanding any other provision of this Section 3, the following special allocations shall be made for such taxable period:
               (i) Partnership Minimum Gain Chargeback. Notwithstanding any other provision of this Section 3, if there is a net decrease in Partnership Minimum Gain during any Partnership Allocation Year, each Partner shall be allocated items of Partnership income, gain and Simulated Gain for such period (and, if necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections 1.704-2(f)(6), 1.704-2(g)(2) and 1.704-2(j)(2)(i), or any successor provision. For purposes of this Section 3(b), each Partner’s Adjusted Capital Account balance shall be determined, and the allocation of income, gain and Simulated Gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 3(b) with respect to such Allocation Year (other than an allocation pursuant to Sections 3(b)(vi) and 3(b)(vii)). This Section 3(b)(i) is intended to comply with the Partnership Minimum Gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.
               (ii) Chargeback of Partner Nonrecourse Debt Minimum Gain. Notwithstanding the other provisions of this Section 3(b) (other than Section 3(b)(i)), except as provided in Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Partner Nonrecourse Debt Minimum Gain during any Partnership Allocation Year, any Partner with a share of Partner Nonrecourse Debt Minimum Gain at the beginning of such Allocation Year shall be allocated items of Partnership income, gain and Simulated Gain for such period (and, if necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii), or any successor provisions. For purposes of this Section 3(b), each Partner’s Adjusted Capital Account balance shall be determined, and the

Exhibit A - 3


 

allocation of income, gain and Simulated Gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 3(b), other than Section 3(b)(i) and other than an allocation pursuant to Sections 3(b)(vi) and 3(b)(vii), with respect to such Allocation Year. This Section 3(b)(ii) is intended to comply with the chargeback of items of income and gain requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.
               (iii) Priority Allocations. If the amount of cash distributed to any Trust Unitholder with respect to its Trust Units for any Allocation Year is greater (on a per Trust Unit basis) than the amount of cash distributed to any other Trust Unitholder with respect to its Trust Units (on a per Trust Unit basis), then there shall be allocated gross income and gain to each Trust Unitholder receiving such greater cash or property distribution until the aggregate amount of such items allocated pursuant to this Section 3(b)(iii) for the current Allocation Year to such Trust Unitholder is equal to the product of (aa) the amount by which the distribution (on a per Trust Unit basis) to such Trust Unitholder exceeds the distribution (on a per Trust Unit basis) to the Trust Unitholders receiving the smallest distribution and (bb) the number of Trust Units owned by the Trust Unitholder receiving the greater distribution. In the event and to the extent that the allocations required by this Section 3(b)(iii), cannot be made due to an insufficiency of income or gain available for allocation hereunder, such unfulfilled allocations shall be treated as being required pursuant to this Section 3(b)(ii) in the next succeeding Allocation Year (and thereafter until made). For purposes of this Section 3(b)(iii), distributions under Section 3.15(a)(i)(D)(y) of the Trust Agreement representing the $4,957,920 million principal component of the Reimbursement Amount shall not be treated as cash distributions to a Trust Unitholder, but distributions under Section 3.15(a)(i)(D)(y) of the Trust Agreement representing the interest component of the Reimbursement Amount shall be treated as cash distributions to a Trust Unitholder.
               (iv) Qualified Income Offset. In the event any Partner unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), items of Partnership income, gain and Simulated Gain shall be specially allocated to such Partner in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations promulgated under Section 704(b) of the Code, the deficit balance, if any, in its Adjusted Capital Account created by such adjustments, allocations or distributions as quickly as possible unless such deficit balance is otherwise eliminated pursuant to Section 3(b)(i) or 3(b)(ii).
               (v) Gross Income Allocations. In the event any Partner has a deficit balance in its Capital Account at the end of any Partnership Allocation Year in excess of the sum of (A) the amount, if any, such Partner is required to restore pursuant to the provisions of this Exhibit and (B) the amount such Partner is deemed obligated to restore pursuant to Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5), such Partner shall be specially allocated items of Partnership gross income, gain and Simulated Gain in the amount of such excess as quickly as possible; provided , however , that an allocation pursuant to this Section 3(b)(v) shall be made only if and to the extent that such Partner would have a deficit balance in its Capital Account as adjusted after all other allocations provided for in this Section 3 have been tentatively made as if this Section 3(b)(v) were not in this Agreement.

Exhibit A - 4


 

               (vi) Nonrecourse Deductions. Nonrecourse Deductions for any Allocation Year shall be allocated to the Partners in accordance with their respective Percentage Interests. If the Trustee determines that the Partnership’s Nonrecourse Deductions should be allocated in a different ratio to satisfy the safe harbor requirements of the Treasury Regulations promulgated under Section 704(b) of the Code, the Trustee is authorized, upon notice to the other Partners, to revise the prescribed ratio to the numerically closest ratio that does satisfy such requirements.
               (vii) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any Allocation Year shall be allocated 100% to the Partner that bears the Economic Risk of Loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i). If more than one Partner bears the Economic Risk of Loss with respect to a Partner Nonrecourse Debt, such Partner Nonrecourse Deductions attributable thereto shall be allocated between or among such Partners in accordance with the ratios in which they share such Economic Risk of Loss.
               (viii) Nonrecourse Liabilities. For purposes of Treasury Regulation Section 1.752-3(a)(3), the Partners agree that Nonrecourse Liabilities of the Partnership in excess of the sum of (A) the amount of Partnership Minimum Gain and (B) the total amount of Nonrecourse Built-in Gain shall be allocated among the Partners in accordance with their respective Percentage Interests.
               (ix) Code Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain or Simulated Gain (if the adjustment increases the basis of the asset) or loss or Simulated Loss (if the adjustment decreases such basis), and such item of gain or loss shall be specially allocated to the Partners in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such section of the Treasury Regulations.
               (x) Economic Uniformity. At the election of the Trustee with respect to any taxable period, all or a portion of the remaining items of Partnership gross income, gain or Simulated Gain for such taxable period shall be allocated 100% to each Partner holding Sponsor Common Units, until each such Partner has been allocated an amount of gross income, gain or Simulated Gain that increases the Capital Account maintained with respect to such Sponsor Common Units to an amount that, after taking into account the other allocations of income, gain, loss, deduction, Simulated Depletion, Simulated Gain and Simulated Loss to be made with respect to such Allocation Year, will equal the product of (A) the number of Sponsor Common Units held by such Partner and (B) the Uniform Per Unit Capital Amount. The purpose of this allocation is to establish uniformity between the Capital Accounts underlying Sponsor Common Units and the Capital Accounts underlying Public Common Units. This allocation method for establishing such economic uniformity will be available to the Trustee only if the method for apportioning the Capital Account maintained with respect to the Sponsor Common Units between the transferred and retained Sponsor Common Units pursuant to Section 2(d) does not otherwise provide such economic uniformity to the Sponsor Common Units.

Exhibit A - 5


 

               (xi) Curative Allocation.
                    (A) Notwithstanding any other provision of this Section 3, other than the Required Allocations, the Required Allocations shall be taken into account in making the Agreed Allocations so that, to the extent possible, the net amount of items of income, gain, loss, deduction, Simulated Depletion, Simulated Gain and Simulated Loss allocated to each Partner pursuant to the Required Allocations and the Agreed Allocations, together, shall be equal to the net amount of such items that would have been allocated to each such Partner under the Agreed Allocations had the Required Allocations and the related Curative Allocation not otherwise been provided in this Section 3. Notwithstanding the preceding sentence, Required Allocations relating to (1) Nonrecourse Deductions shall not be taken into account except to the extent that there has been a decrease in Partnership Minimum Gain and (2) Partner Nonrecourse Deductions shall not be taken into account except to the extent that there has been a decrease in Partner Nonrecourse Debt Minimum Gain. Allocations pursuant to this Section 3(b)(xi)(A) shall only be made with respect to Required Allocations to the extent the Trustee determines that such allocations will otherwise be inconsistent with the economic agreement among the Partners. Further, allocations pursuant to this Section 3(b)(xi)(A) shall be deferred with respect to allocations pursuant to clauses (1) and (2) hereof to the extent the Trustee determines that such allocations are likely to be offset by subsequent Required Allocations.
                    (B) The Trustee shall, with respect to each Allocation Year, (1) apply the provisions of Section 3(b)(xi)(A) in whatever order is most likely to minimize the economic distortions that might otherwise result from the Required Allocations, and (2) divide all allocations pursuant to Section 3(b)(xi)(A) among the Partners in a manner that is likely to minimize such economic distortions.
               (xii) Liquidation. Notwithstanding any other provision of this Section 3, for the Allocation Year that includes the liquidation of the Trust (and any prior Allocation Year to the extent the Trustee determines it is appropriate), items of income, gain, loss, deduction and Simulated Gain (other than the Required Allocations) shall be specially allocated among the Partners in the manner determined appropriate by the Trustee so as to cause, to the maximum extent possible, the Capital Account in respect of each Unit to equal the amount such Unit will receive in liquidating distributions from the Trust.
          (c) Simulated Basis, Simulated Depletion, Simulated Gain and Simulated Loss.
               (i) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(k), Simulated Basis and Simulated Depletion with respect to each Depletable Property shall be determined using the simulated cost depletion method described in Treasury Regulation Section 1.704-1(b)(2)(iv)(K)(2) and shall be allocated among the Partners in accordance with their respective Percentage Interests.
               (ii) Simulated Gain shall be allocated in the same manner as an item of gain in a corresponding amount would be allocated pursuant to Section 4(a).

Exhibit A - 6


 

               (iii) Simulated Loss with respect to the disposition of an Depletable Property shall be allocated among the Partners in proportion to their allocable shares of total amount realized from such disposition under Section 4(c)(i)).
          4. Allocations for Tax Purposes .
          (a) Except as otherwise provided in this Section 4, for federal income tax purposes, each item of income, gain, loss and deduction shall be allocated among the Partners in the same manner as its correlative item of “book” income, gain, loss or deduction is allocated pursuant to Section 3.
          (b) The deduction for depletion with respect to each separate Depletable Property shall be computed for federal income tax purposes separately by the Partners rather than by the Partnership in accordance with Section 613A(c)(7)(D) of the Code.
     (i) Except as provided in Section 4(b)(ii), for purposes of such computation (before taking into account any adjustments resulting from an election made by the Partnership under Section 754 of the Code), the adjusted tax basis of each Depletable Property shall be allocated among the Partners in accordance with their respective Percentage Interests.
     (ii) The Partners recognize that with respect to Depletable Property that is Contributed Property there may be a difference between the Carrying Value of such property at the time of contribution and the adjusted tax basis of such property at that time. In order to take into account the disparities between the Carrying Values and the adjusted tax bases with respect to such properties in accordance with the principles of Treasury Regulation Section 1.704-3(d), the adjusted tax basis of each Depletable Property shall be allocated among the Partners in such a manner that, to the maximum extent possible, each Partner (other than the Property Contributor) shall be allocated an amount of the Depletable Property’s adjusted tax basis equal to its share of the Partnership’s Simulated Basis in such Depletable Property.
     Each Partner shall separately keep records of his share of the adjusted tax basis in each Depletable Property, allocated as provided above, adjust such share of the adjusted tax basis for any cost or percentage depletion allowable with respect to such property, and use such adjusted tax basis in the computation of its cost depletion or in the computation of his gain or loss on the disposition of such property by the Partnership.
          (c) For the purposes of the separate computation of gain or loss by each Partner on the sale or disposition of each separate Depletable Property, the Partnership’s “amount realized” (as such term is defined in Section 1001(b) of the Code) from such sale or disposition shall be allocated for federal income tax purposes among the Partners as follows:
     (i) first, to the extent such amount realized constitutes a recovery of the Simulated Basis of the property, to the Partners in the same proportion as the adjusted tax basis of such property was allocated to the Partners pursuant to Section 4(b);

Exhibit A - 7


 

     (ii) second, to any Partner that contributed the Depletable Property to the Partnership in an amount equal (as of the time of such contribution) to the excess, if any, of the Simulated Basis of such property allocated to Partners other than the Property Contributor pursuant to Section 3(c)(i) over the sum of the amount of the adjusted basis therein allocated to such other Partners pursuant to Section 4(b)(ii) less the cumulative amount of remedial deductions, if any, allocated to such other Partners with respect to such Depletable Property pursuant to clause (ii) of Section 4(d);
     (iii) third, the remainder of such amount realized, if any, to the Partners so that, to the maximum extent possible, the amount realized allocated to each Partner under this Section 4(c)(iii) will equal such Partner’s share of the Simulated Gain recognized by the Partnership from such sale or disposition; and
     (iv) any elections or other decisions relating to such allocations shall be made by the Trustee in any manner that reasonably reflects the purpose and intention of the Agreement.
          (d) In an attempt to eliminate Book-Tax Disparities attributable to a Contributed Property (i) in the case of Contributed Property other than Depletable Property, (A) items of income, gain and loss shall be allocated for federal income tax purposes among the Partners in any manner permissible under Section 704(c) of the Code that takes into account the variation between the Agreed Value of such property and its adjusted basis at the time of contribution; and (B) any item of Residual Gain or Residual Loss attributable to such Contributed Property shall be allocated among the Partners in the same manner as its correlative item of “book” gain or loss is allocated pursuant to Section 3; and (ii) in the case of a Contributed Property that is a Depletable Property in which a Public Unitholder’s allocable share of the Simulated Basis under Section 3(c)(i) exceeds his allocated share of the adjusted tax basis immediately after formation of the Partnership under Section 4(b), the Trustee shall make allocations, to the extent possible consistent with the Treasury Regulations under Sections 613A and 704 of the Code, of tax items applying the principles of Treasury Regulation Section 1.704-3(d) as necessary to eliminate such Book-Tax Disparity.
          (e) For the proper administration of the Partnership and for the preservation of uniformity of the Trust Units, the Trustee shall (i) make special allocations for federal income tax purposes of income (including, without limitation, gross income) or deductions; and (ii) amend the provisions of this Exhibit as appropriate (x) to reflect the proposal or promulgation of Treasury Regulations under Section 704(b) or Section 704(c) of the Code or (y) otherwise to preserve or achieve uniformity of the Trust Units. The Trustee may adopt such conventions, make such allocations and make such amendments to this Exhibit as provided in this Section 4(e) only if such conventions, allocations or amendments would not have a material adverse effect on the Partners or the Partnership, and if such allocations are consistent with the principles of Section 704 of the Code.
          (f) All items of income, gain, loss, deduction and credit recognized by the Partnership for federal income tax purposes and allocated to the Partners in accordance with the provisions hereof shall be determined without regard to any election under Section 754 of the

Exhibit A - 8


 

Code that may be made by the Partnership; provided , however , that such allocations, once made, shall be adjusted (in the manner determined by the Trustee) to take into account those adjustments permitted or required by Sections 734 and 743 of the Code.
          (g) Each item of Partnership income, gain, loss and deduction shall for federal income tax purposes, be determined on an annual basis and allocated on a monthly basis and shall be allocated to the Partners as of the opening of the New York Stock Exchange on the first Business Day of each month; provided , however , such items for the period beginning on the Closing Date and ending on the last day of the month in which the Option Closing Date or the expiration of the Over-Allotment Option occurs shall be allocated to the Partners as of the opening of the New York Stock Exchange on the first Business Day of the next succeeding month; and provided , further , that gain or loss on a sale or other disposition of any assets of the Partnership or any other extraordinary item of income or loss realized and recognized other than in the ordinary course of business, as determined by the Trustee, shall be allocated to the Partners as of the opening of the New York Stock Exchange on the first Business Day of the month in which such gain or loss is recognized for federal income tax purposes. The Trustee may revise, alter or otherwise modify such methods of allocation to the extent permitted or required by Section 706 of the Code and the regulations or rulings promulgated thereunder.
          (h) Allocations that would otherwise be made to a Trust Unitholder under the provisions of this Section 4 shall instead be made to the beneficial owner of Trust Units held by a nominee in any case in which the nominee has furnished the identity of such owner to the Partnership in accordance with Section 6031(c) of the Code or any other method determined by the Trustee.
          (i) The allocations pursuant to this Section 4 are solely for purposes of federal and state income taxes and will not affect, or in any way be taken into account in computing, a Partner’s Capital Account.
          5. Special Provisions Relating to the Subordinated Unitholders .
          (a) Immediately upon the conversion of Subordinated Units into Common Units pursuant to Section 3.15(b) of the Trust Agreement, the Trust Unitholder holding a Subordinated Unit shall possess with respect to such units all of the rights and obligations of a Trust Unitholder holding Common Units hereunder, including the right to vote as a Common Unitholder and the right to participate in allocations of income, gain, loss, deduction, Simulated Depletion, Simulated Gain and Simulated Loss and distributions made with respect to Common Units; provided, however , that such converted Subordinated Units shall be treated as Sponsor Common Units that remain subject to the provisions of Sections 2(d), 3(b)(x), and 5(b).
          (b) The Trust Unitholder holding a Sponsor Common Unit shall not be permitted to transfer such Sponsor Common Unit until such time as the Trustee determines, based on advice of counsel, that each such Sponsor Common Unit should have, as a substantive matter, like intrinsic economic and federal income tax characteristics, in all material respects, to the intrinsic economic and federal income tax characteristics of a Public Common Unit. In connection with the condition imposed by this Section 5(b), the Trustee may take whatever steps are required to provide economic uniformity to such Sponsor Common Units in preparation for a

Exhibit A - 9


 

transfer thereof, including the application of Sections 2(d) and 4(b)(x); provided, however , that no such steps may be taken that would have a material adverse effect on the Trust Unitholders holding Public Common Units.
          6. Tax Matters .
          (a) Tax Returns and Information. The Trustee shall timely file or cause to be filed all returns and reports of the Partnership that are required for federal, state and local income tax purposes on the basis of the accrual method and a taxable year ending on December 31. In the event the Partnership is required to use a taxable period other than a year ending on December 31, the Trustee shall use reasonable efforts to change the taxable period of the Partnership to a year ending on December 31. The tax information reasonably required by Record Holders for federal and state income tax reporting purposes with respect to each Allocation Year shall be furnished to them within 90 days of the close of the calendar year in which the Partnership’s Allocation Year ends. The classification, realization and recognition of income, gain, losses and deductions and other items shall be on the accrual method of accounting for federal income tax purposes.
          (b) Tax Elections.
               (i) The Partnership shall make the election under Section 754 of the Code in accordance with applicable regulations thereunder, subject to the reservation of the right to seek to revoke any such election upon the Trustee’s determination that such revocation is in the best interests of the Trust Unitholders. Notwithstanding any other provision herein contained, for the purposes of computing the adjustments under Section 743(b) of the Code, the Trustee shall be authorized (but not required) to adopt a convention whereby the price paid by a transferee of a Trust Unit will be deemed to be the lowest quoted closing price of the Trust Units on the New York Stock Exchange during the calendar month in which such transfer is deemed to occur pursuant to Section 4(f) without regard to the actual price paid by such transferee.
               (ii) Except as otherwise provided herein, the Trustee shall determine whether the Partnership should make any other elections permitted by the Code.
          (c) Tax Controversies. Subject to the provisions hereof, Energy Corporation of America is designated the Tax Matters Partner (as defined in the Code) and is authorized and required to represent the Partnership (at the Partnership’s expense) in connection with all examinations of the Partnership’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Partnership funds for professional services and costs associated therewith. Each Partner agrees to cooperate with the Trustee and to do or refrain from doing any or all things reasonably required by the Trustee to conduct such proceedings.
          (d) Withholding. Notwithstanding any other provision of this Exhibit, the Trustee is authorized to take any action that may be required to cause the Partnership to comply with any withholding requirements established under the Code or any other federal, state or local law including, without limitation, pursuant to Sections 1441, 1442, 1445 and 1446 of the Code. To the extent that the Partnership is required or elects to withhold and pay over to any taxing authority any amount resulting from the allocation or distribution of income to any Partner

Exhibit A - 10


 

(including, without limitation, by reason of Section 1446 of the Code), the Trustee may treat the amount withheld as a distribution of cash in the amount of such withholding from such Partner. If the payment is made to a taxing authority on behalf of a Partner whose identity cannot be determined, the Trustee may treat the amount withheld as a distribution of cash to all current Partners.
          7. Additional Definitions .
     “ Adjusted Capital Account ” means the Capital Account maintained for each Partner as of the end of each Allocation Year of the Partnership, (a) increased by any amounts that such Partner is obligated to restore under the standards set by Treasury Regulation Section 1.704-1(b)(2)(ii)(c) (or is deemed obligated to restore under Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5)) and (b) decreased by (i) the amount of all losses and deductions that, as of the end of such Allocation Year, are reasonably expected to be allocated to such Partner in subsequent years under Sections 704(e)(2) and 706(d) of the Code and Treasury Regulation Section 1.751-1(b)(2)(ii), and (ii) the amount of all distributions that, as of the end of such Allocation Year, are reasonably expected to be made to such Partner in subsequent years in accordance with the terms of this Agreement or otherwise to the extent they exceed offsetting increases to such Partner’s Capital Account that are reasonably expected to occur during (or prior to) the year in which such distributions are reasonably expected to be made (other than increases as a result of a minimum gain chargeback pursuant to Section 3(b)(i) or 3(b)(ii)). The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
     “ Agreed Allocation ” means any allocation, other than a Required Allocation, of an item of income, gain, loss or deduction pursuant to the provisions of Section 3, including, without limitation, a Curative Allocation (if appropriate to the context in which the term “Agreed Allocation” is used).
     “ Agreed Value ” of any Contributed Property means the fair market value of such property or other consideration at the time of contribution as determined by the Trustee.
     “ Allocation Year ” means (i) the period commencing on the Closing Date and ending on December 31, 2010, (ii) any subsequent period commencing on the first day of January and ending on the last day of December, or (iii) any portion of the period described in clause (ii) for which the Partnership is required to allocate Net Income, Net Loss, and any other items of Partnership income, gain, loss or deduction pursuant to Section 3.
     “ Book-Tax Disparity ” means with respect to any item of Contributed Property, as of the date of any determination, the difference between the Carrying Value of such Contributed Property and the adjusted basis thereof for federal income tax purposes as of such date. A Partner’s share of the Partnership’s Book-Tax Disparities in all of its Contributed Property will be reflected by the difference between such Partner’s Capital Account balance as maintained pursuant to Section 2 and the hypothetical balance of such Partner’s Capital Account computed as if it had been maintained strictly in accordance with federal income tax accounting principles.

Exhibit A - 11


 

     “ Capital Account ” means the capital account maintained for a Partner pursuant to Section 2.
     “ Capital Contribution ” means any cash, cash equivalents or the Net Agreed Value of Contributed Property that a Partner contributes to the Partnership or that is contributed or deemed contributed to the Partnership on behalf of a Partner (including, in the case of an underwritten offering of Trust Units, the amount of any underwriting discounts or commissions).
     “ Carrying Value ” means (a) the Agreed Value of Contributed Property, and (b) with respect to any other Partnership property, the adjusted basis of such property for federal income tax purposes, all as of the time of determination.
     “ Code ” means the Internal Revenue Code of 1986, as amended and in effect from time to time. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of any successor law.
     “ Common Unit ” has the meaning ascribed to such term in the Trust Agreement.
     “ Contributed Property ” means each property or other asset, in such form as may be permitted by the Trust Act, but excluding cash, contributed to the Partnership.
     “ Curative Allocation ” means any allocation of an item of income, gain, deduction, loss or credit pursuant to the provisions of Section 3(b)(xi).
     “ Depletable Property ” means each separate oil and gas property as defined in Section 614 of the Code, provided , however , Depletable Property shall not include any interest in an oil and gas property that is treated as a production payment within the meaning of Section 636 of the Code.
     “ Economic Risk of Loss ” has the meaning set forth in Treasury Regulation Section 1.752-2(a).
     “ Net Agreed Value ” means the Agreed Value of any Contributed Property reduced by any liabilities either assumed by the Partnership upon such contribution or to which such property is subject when contributed.
     “ Net Income ” means, for any Allocation Year, the excess, if any, of the Partnership’s items of income and gain for such Allocation Year over the Partnership’s items of loss and deduction for such Allocation Year. The items included in the calculation of Net Income shall be determined in accordance with Section 2(b) and shall not include any items specially allocated under Section 3(b) or Section 3(c).
     “ Net Loss ” means, for any Allocation Year, the excess, if any, of the Partnership’s items of loss and deduction for such Allocation Year over the Partnership’s items of income and gain for such Allocation Year. The items included in the calculation of Net Loss shall be determined in accordance with Section 2(b) and shall not include any items specially allocated under Section 3(b) or Section 3(c).

Exhibit A - 12


 

     “ Nonrecourse Built-in Gain ” means with respect to any Contributed Properties or Adjusted Properties that are subject to a mortgage or pledge securing a Nonrecourse Liability, the amount of any taxable gain that would be allocated to the Partners pursuant to Sections 4(d)(i)(A) and 4(d)(ii) if such properties were disposed of in a taxable transaction in full satisfaction of such liabilities and for no other consideration.
     “ Nonrecourse Deductions ” means any and all items of loss, deduction or expenditure (including, without limitation, any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(b), are attributable to a Nonrecourse Liability.
     “ Nonrecourse Liability ” has the meaning set forth in Treasury Regulation Section 1.752-2(b)(3).
     “ Option Closing Date ” means the date or dates on which any Trust Units are sold by the Partnership to the Underwriters upon exercise of the Over-Allotment Option.
     “ Over-Allotment Option ” means the over-allotment option granted to the Underwriters by the Partnership pursuant to the Underwriting Agreement.
     “ Partner Nonrecourse Debt ” has the meaning set forth in Treasury Regulation Section 1.704-2(b)(4).
     “ Partner Nonrecourse Debt Minimum Gain ” has the meaning set forth in Treasury Regulation Section 1.704-2(i)(2).
     “ Partner Nonrecourse Deductions ” means any and all items of loss, deduction or expenditure (including, without limitation, any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(i), are attributable to a Partner Nonrecourse Debt.
     “ Partnership Minimum Gain ” means that amount determined in accordance with the principles of Treasury Regulation Sections 1.704-2(b)(2) and 1.704-2(d).
     “ Percentage Interest ” means as of any date of determination as to any Trust Unitholder holding Trust Units, the quotient obtained by dividing (A) the number of Trust Units held by such Trust Unitholder by (B) the total number of all outstanding Trust Units.
     “ Property Contributor ” means any Person that transfers Contributed Property to the Partnership in exchange for Trust Units.
     “ Public Common Unit ” means any Common Unit originally issued by the Trust solely for cash.
     “ Record Holder ” means the Person in whose name a Trust Unit is registered on the books of the transfer agent as of the opening of business on a particular Business Day.

Exhibit A - 13


 

     “ Required Allocations ” means any allocation of an item of income, gain, loss or deduction pursuant to Section 3(b)(i), Section 3(b)(ii), Section 3(b)(iv), Section 3(b)(v), Section 3(b)(vi), Section 3(b)(vii), Section 3(b)(viii) or Section 3(b)(ix).
     “ Residual Gain ” or “ Residual Loss ” means any item of gain or loss, as the case may be, of the Partnership recognized for federal income tax purposes resulting from a sale, exchange or other disposition of a Contributed Property (other than Depletable Property), to the extent such item of gain or loss is not allocated pursuant to Section 4(d)(i)(A) to eliminate Book-Tax Disparities.
     “ Simulated Basis ” means the Carrying Value of any Depletable Property.
     “ Simulated Depletion ” means, with respect to a Depletable Property, a depletion allowance computed solely for the purposes of maintaining Capital Accounts in accordance with Section 2(b)(iv) and in the manner specified in Treasury Regulation Section 1.704-1(b)(2)(iv)(k)(2). For purposes of computing Simulated Depletion with respect to any property, the Simulated Basis of such property shall be deemed to be the Carrying Value of such property, and in no event shall such allowance for Simulated Depletion, in the aggregate, exceed such Simulated Basis.
     “ Simulated Gain ” means the excess, if any, of the amount realized from the sale or other disposition of a Depletable Property over the Carrying Value thereof.
     “ Simulated Loss ” means the excess, if any, of the Carrying Value of a Depletable Property over the amount realized from the sale or other disposition of such property.
     “ Sponsor Common Unit ” means any Common Unit held by a Person that (i) holds, or at any time from and after the creation of the Partnership has held, one or more Subordinated Units and (ii) has a Capital Account that differs (or prior to the end of the Subordination Period, could differ) in amount from the (i) product of the number of Subordinated Units, if any, and Common Units held by such Person times (ii) the Uniform Per Unit Capital Amount.
     “ Subordinated Unit ” has the meaning ascribed to such term in the Trust Agreement.
     “ Trust Act ” has the meaning ascribed to such term in the Trust Agreement.
     “ Trust Unit ” means a beneficial, undivided interest in the Partnership represented by a Common Unit or a Subordinated Unit.
Uniform Per Unit Capital Amount ” means, as of any date of determination, the Capital Account, stated on a per Trust Unit basis, underlying any Public Common Unit.

Exhibit A - 14


 

EXHIBIT B
TO
AMENDED AND RESTATED
TRUST AGREEMENT OF ECA MARCELLUS TRUST I
COMMON UNITS ISSUED TO PRIVATE INVESTORS
         
Private Investor   Number of Units
W. Gaston Caperton, III
    24,933  
Clark Clement
    18,700  
Mike Cochran
    6,233  
Peter H. Coors
    62,333  
Rodney Cox
    6.233  
L.B. Curtis
    14,461  
John J. Dorgan
    12,467  
Randy Farkosh
    6,233  
John S. Fischer
    62,333  
Michael S. Fletcher
    6,233  
J. Michael Forbes
    8,677  
Mark Fry
    6.233  
Thomas R. Goodwin
    37,400  
Dan Graham
    15,040  
Clink Hipke
    8,677  
Dave Jordan
    6,233  
F.H. McCullough III
    97,240  
Denny McGowan
    6,233  
John Mork*
    766,451  
Julie M. Mork*
    766,451  
Kyle M. Mork
    72,307  
Arthur C. Nielsen, Jr.
    6,233  
George O’Malley
    6,363  
Jay S. Pifer
    6,233  
Niki Randolph
    11,569  
Peter Rebstock
    6.233  
Kent Schamp
    7,665  
Pete Sullivan
    6,233  
Donald C. Supcoe
    12,467  
Rod Winters
    6,233  
 
*   766,451 represents gross number of Common Units held by John & Julie M. Mork.

Exhibit B - 1


 

SCHEDULE A
FEE SCHEDULE OF TRUSTEE
          1. The fee will be $150,000 annually until January 1, 2016.
          2. The fee will be adjusted annually thereafter, up or down, by the amount of the change in the All Urban Consumers (CPI-U) — US City Average for the immediately preceding calendar year, not to exceed +/- 3% in any one year.

Schedule A - 1

Exhibit 10.1
PERPETUAL OVERRIDING ROYALTY INTEREST CONVEYANCE
(PDP)
COMMONWEALTH OF PENNSYLVANIA
INTRODUCTION
     THIS PERPETUAL OVERRIDING ROYALTY INTEREST CONVEYANCE (this “ Conveyance ”) from ENERGY CORPORATION OF AMERICA, a West Virginia corporation, with offices at 4643 South Ulster Street, Suite 100, Denver, Colorado 80237-2867 “ Assignor ”), to The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the State of New York, with offices at 919 Congress Avenue, Suite 500, Austin, Texas 78701, as trustee (the “ Trustee ”), acting not in its individual capacity but solely as trustee of the ECA Marcellus Trust I (the “ Trust ”) under that certain Amended and Restated Trust Agreement dated as of July 7, 2010 (the “ Trust Agreement ”), is delivered to be effective as of 7:00 a.m., Eastern Time, April 1, 2010 (the “ Effective Time ”). All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Article II below.
ARTICLE I
CONVEYANCE
      Section 1.01 The Grant . For and in consideration of good and valuable consideration paid by Trustee on behalf of the Trust to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor has, subject to the terms of this Conveyance, BARGAINED, SOLD, GRANTED, CONVEYED, TRANSFERRED, ASSIGNED, SET OVER, and DELIVERED, and by these presents does hereby BARGAIN, SELL, GRANT, CONVEY, TRANSFER, ASSIGN, SET OVER, and DELIVER unto Trustee on behalf of the Trust, as a perpetual net overriding royalty interest (the “ Royalty Interest ”), a variable undivided interest in and to the Subject Interests, to the extent that the Subject Interests pertain to Gas in, under and that may be produced and saved from the wellbores of the Wells, sufficient to cause the Trust to receive the Trust Gas or proceeds thereof calculated and paid in money in accordance with the further terms and conditions of this Conveyance.
      Section 1.02 Habendum Clause . TO HAVE AND TO HOLD the Royalty Interest, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Trustee on behalf of the Trust, its successors and assigns, subject to terms and provisions of this Conveyance.
      Section 1.03 Warranty .
          (a)  The Warranty . Assignor warrants to the Trust, its successors and assigns, that the Subject Interests are free of all Encumbrances created by, through, or under Assignor, but not otherwise, except for the Permitted Encumbrances, and that Assignor’s title to the Wells entitles Assignor to a Net Revenue Interest with respect to the Target Formation in

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each such Well no less than the Net Revenue Interest with respect to the Target Formation for that Well set forth in Exhibit A .
          (b)  Sole Remedy . In the event of a breach of the foregoing warranty for any Subject Interest, the Trust’s sole remedy shall be to receive payment on each applicable Quarterly Payment Date, out of Assignor’s Net Share of Gas from other Wells in excess of that subject to the Royalty Interest, the royalty interest created pursuant to the Term PDP Conveyance and the royalty interest created pursuant to the Investor Conveyance (“ Assignor Retained Gas ”), subject to offset as provided below and without interest (except such interest payable under this Conveyance on payments made after the applicable due date as described in Section 5.02 below), of an amount equal to the difference between (i) Trust Gas (or the proceeds from the sale thereof) that the Trust would have received with respect to such Well in the applicable Computation Period if such warranty had not been breached and (ii) Trust Gas (or the proceeds from the sale thereof) that the Trust actually received during that Computation Period with respect to that Well, to the extent such difference is attributable to the breach of the warranty, but not to the extent that such difference is attributable to any other cause, and any such amounts of Assignor Retained Gas shall be treated as Trust Gas.
          (c)  Right of Offset . If any Subject Interest owned by Assignor ever proves to be larger as of the Effective Date than the Subject Interest reflected in the exhibits to this Conveyance and if, as a result, the Trust receives a greater amount of Trust Gas (or the proceeds from the sale thereof) with respect to that Subject Interest than the Trust would otherwise have received if the Subject Interest had been the size warranted, then such increased amounts, whenever received by the Trust, may be treated by Assignor as a credit or offset (without interest) against any amounts payable to the Trust under Section 1.03(b).
          (d)  DISCLAIMER . EXCEPT FOR THE WARRANTIES OF TITLE GIVEN IN SECTION 1.03(a), ASSIGNOR MAKES THIS CONVEYANCE AND ASSIGNS THE ROYALTY INTEREST WITHOUT RECOURSE, COVENANT OR WARRANTY OF TITLE OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. ANY COVENANTS OR WARRANTIES IMPLIED BY STATUTE OR LAW BY THE USE HEREIN OF THE WORDS “ GRANT ”, “ CONVEY ” OR OTHER SIMILAR WORDS ARE HEREBY EXPRESSLY DISCLAIMED, WAIVED AND NEGATED. WITHOUT LIMITING THE GENERALITY OF THE TWO PRECEDING SENTENCES, TRUSTEE ON BEHALF OF THE TRUST ACKNOWLEDGES THAT ASSIGNOR HAS NOT MADE, AND ASSIGNOR HEREBY EXPRESSLY DISCLAIMS AND NEGATES, AND THE TRUSTEE ON BEHALF OF THE TRUST HEREBY EXPRESSLY WAIVES, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO (i) PRODUCTION RATES, RECOMPLETION OPPORTUNITIES, DECLINE RATES OR THE QUALITY, QUANTITY OR VOLUME OF THE RESERVES OF HYDROCARBONS, IF ANY, ATTRIBUTABLE TO THE SUBJECT INTERESTS, (ii) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (iii) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iv) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, AND (v) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER ANY APPLICABLE LEGAL REQUIREMENT; IT BEING THE EXPRESS INTENTION OF BOTH THE TRUST AND ASSIGNOR THAT THE ROYALTY INTEREST IS HEREBY ASSIGNED TO THE

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TRUSTEE ON BEHALF OF THE TRUST ON AN “AS IS” AND “WHERE IS” BASIS WITH ALL FAULTS, AND THAT THE TRUSTEE ON BEHALF OF THE TRUST HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS THE TRUST DEEMS APPROPRIATE. ASSIGNOR AND THE TRUSTEE ON BEHALF OF THE TRUST AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LEGAL REQUIREMENTS TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS SECTION ARE “CONSPICUOUS” DISCLAIMERS FOR THE PURPOSES OF ANY APPLICABLE LEGAL REQUIREMENT.
          (e)  Substitution of Warranty . This instrument is made with full substitution and subrogation of the Trust in and to all covenants of warranty by Third Persons (other than Affiliates of Assignor) heretofore given or made with respect to the Wells, the Subject Interests or any part thereof or interest therein.
ARTICLE II
DEFINITIONS
     This Article II defines certain capitalized words, terms, and phrases used in this Conveyance. Certain other capitalized words, terms, and phrases used in this Conveyance are defined elsewhere in this Conveyance.
     “ Affiliate ” means, for any specified Person, another Person that controls, is controlled by, or is under common control with, the specified Person. “Control,” in the preceding sentence, refers to the possession by one Person, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.
     “ AMI Area ” means that area depicted on the map set forth on Exhibit B as the AMI Area.
     “ Assignee Conveyances ” means for purposes of Section 11.02(a), this Conveyance, the Term PUD Conveyance, the Term PDP Conveyance, the Perpetual PUD Conveyance, and the Investor Conveyance, considered collectively.
     “ Assignor ” is defined in the Introduction to this Conveyance and also includes all permitted successors and assigns of Assignor.
     “ Assignor Retained Gas ” is defined in Section 1.03(a).
     “ Assignor’s Net Share of Gas ” means the share of Subject Gas from each Well that is attributable to Assignor’s Net Revenue Interest in that Well.
     “ Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the New York Stock Exchange, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.
     “ Chargeable Costs ” is defined in Section 3.02(a).

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     “ Computation Period ” means each calendar quarter commencing at the Effective Time, with each calendar quarter being deemed to have begun at 7:00 a.m. Eastern Time on the first day of such calendar quarter and to have ended at 7:00 a.m. Eastern Time on the first day of the next calendar quarter, except for the first Computation Period, which shall be deemed to have begun at the Effective Time and to have ended at 7:00 a.m. Eastern Time on July 1, 2010.
     “ Conveyance ” is defined in the Introduction to this Conveyance.
     “ Development Agreement ” means that certain Development Agreement between Assignor and the Trustee dated as of even date herewith.
     “ Development Well ” has the meaning given such term in the Development Agreement.
     “ Drilling Obligation ” means Assignor’s obligation set forth in Section 2.01(a) of the Development Agreement.
     “ Drilling Obligation Completion Date ” has the meaning given to such term in the Development Agreement.
     “ Effective Time ” is defined in the Introduction to this Conveyance.
     “ Encumbrance ” means any mortgage, lien, security interest, pledge, charge, encumbrance, limitation, preferential right to purchase, consent to assignment, irregularity, burden, or defect.
     “ Excess Costs ” means, in any Computation Period, the excess of Chargeable Costs for that Computation Period over the amount determined by multiplying Assignor’s Net Share of Gas produced during the Computation Period by the Sales Price for that Computation Period. Excess Costs shall bear interest at the Prime Interest Rate from the end of the Computation Period in which such costs were incurred to the date that Assignor recovers such amounts from Trust Proceeds.
     “ Fair Value ” means, with respect to any portion of the Royalty Interest to be released pursuant to Section 11.02 or 11.03 in connection with a sale or release of any Well or Subject Interest, an amount of net proceeds which could reasonably be expected to be obtained from the sale of such portion of the Royalty Interest to a party which is not an Affiliate of either the Assignor or the Trust on an arms’-length negotiated basis, taking into account relevant market conditions and factors existing at the time of any such proposed sale or release, such net proceeds to be determined by deducting the Trust’s proportionate share of sales costs, commissions and brokerage fees, if any (based on the ratio of (i) the fair market value of the portion of the Royalty Interest being released to (ii) the fair market value of the Wells and Subject Interests being transferred (including the value of the Royalty Interest being released).
     “ Farmout Agreements ” means any farmout agreement, participation agreement, exploration agreement, development agreement or any similar agreement.
     “ Force Majeure ” is defined in Section 13.02.

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     “ Gas ” means natural gas and all other gaseous hydrocarbons, excluding condensate, butane, and other liquid and liquefiable components that are actually removed from the Gas stream by separation, processing, or other means. Any oil, gas or mineral lease or other similar instrument that covers Gas shall be considered a “Gas lease” hereunder, even if it also covers other substances.
     “ Governmental Authority ” means the United States of America, any state, commonwealth, territory, or possession thereof, and any political subdivision of any of the foregoing, including courts, departments, commissions, boards, bureaus, agencies, and other instrumentalities.
     “ Greene County Gathering System ” means Assignor’s Greene County, Pennsylvania Gathering System.
     “ Investor Conveyance ” means that certain Private Investor Overriding Royalty Interest Conveyance by and between the Private Investors and the Trust dated effective as of the Effective Time.
     “ Legal Requirement ” means any law, statute, ordinance, decree, requirement, order, judgment, rule, or regulation of, including the terms of any license or permit issued by, any Governmental Authority.
     “ MBtu ” means one thousand British thermal units and “ MMBtu ” means one million British thermal units.
     “ Mcf ” means one thousand cubic feet of Gas and “ MMcf ” means one million cubic feet of Gas, measured and expressed in each case at the same temperature, pressure, and other conditions of measurement (a) provided in any contract for the purchase of Gas from the Subject Interest or, (b) if no such contract exists, provided by applicable state law for purposes of reporting production to Governmental Authorities.
     “ Mortgages ” means, collectively, (i) the Drilling Support Lien (as such term is defined in the Development Agreement) and (ii) that certain Mortgage, Assignment, Security Agreement, Fixture Filing and Financing Statement, granted by Assignor in favor of the Trust dated as of even date herewith, which agreement grants the Trust a lien and security interest on the Royalty Interest (as such term is defined in each of the Conveyances).
     “ Net Revenue Interest ” means the interest, stated as a decimal fraction, in Subject Gas production from a Well that Assignor is entitled to take with respect to Assignor’s Subject Interest in that Well and the associated Subject Lands, subject only to the Permitted Production Burdens (treated in each case as a reduction in interest rather than as a cost).
     “ Non-Affiliate ” means, for any specified Person, any other Person that is not an Affiliate of the specified Person.
     “ Notice ” is defined in Section 14.01.

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     “ Party ,” when capitalized, refers to Assignor or Trustee. “ Parties ,” when capitalized, refers to Assignor and Trustee.
     “ Permitted Encumbrances ” means:
     (a) the Permitted Production Burdens;
     (b) contractual obligations arising under operating agreements, Farmout Agreements, production sales contracts, leases, assignments, and other similar agreements that may affect the properties or their titles;
     (c) pooling and unitization agreements, declarations, orders, or Legal Requirements to secure payment of amounts not yet delinquent;
     (d) liens that arise in the normal course of operations, such as liens for unpaid taxes, statutory liens securing unpaid suppliers and contractors, and contractual liens under operating agreements, in any case, that are not yet delinquent or, if delinquent, are being contested in good faith in the normal course of business;
     (e) conventional rights of reassignment that obligate Assignor to reassign all or part of any Subject Interest to a Third Person if Assignor intends to release or abandon such interest before the expiration of the primary term or other termination of such interest;
     (f) easements, rights-of-way, servitudes, permits, surface leases, surface use restrictions, and other surface uses and impediments on, over, or in respect of the Subject Interests that are not such as to interfere materially with the operation, value, or use of the Subject Interests;
     (g) covenants, conditions, and other terms subject to which Assignor acquired the Subject Interests, to the extent they do not cause Assignor’s Net Revenue Interests in any Well related to the Target Formation to be less than the Net Revenue Interest for that Well, as stated in Exhibit A ;
     (h) rights reserved to or vested in any Governmental Authority to control or regulate any Subject Interests in any manner, and all applicable Legal Requirements;
     (i) the terms of the instruments creating the Subject Interests and Subject Lands;
     (j) any Prior Reversionary Interests that affect the Subject Interests; and
     (k) the Mortgages,
provided that such aforementioned encumbrances are of the type and nature customary in the oil and gas industry, as conducted in the Appalachian Basin, and do not, alone or in the aggregate, materially and adversely affect the operation, value, or use of any Subject Interest, and all to the extent, and for so long as, such Permitted Encumbrances are otherwise valid and enforceable

6


 

against the Subject Interests, without recognizing, expressly or by implication, any rights or interests in any Third Person or Governmental Authority that such Third Person or Governmental Authority does not otherwise lawfully possess.
     “ Permitted Production Burdens ” means (a) all Production Burdens that affected the Subject Interests when they were acquired by Assignor and (b) all Production Burdens that were created by Assignor; in each case, to the extent they do not cause Assignor’s Net Revenue Interest related to the Target Formation in any Well to be less than the Net Revenue Interest for that Well reflected in Exhibit A .
     “ Perpetual PUD Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (PUD) by and between Assignor and the Trust dated effective as of the Effective Time.
     “ Person ” means any natural person, corporation, partnership, trust, estate, or other entity, organization, or association.
     “ Private Investors ” means the individuals and entities set forth on Exhibit C attached hereto.
     “ Post Production Cost Charge ” is defined in Section 3.02(c).
     “ Prime Interest Rate ” is defined in Section 5.02(b).
     “ Prior Reversionary Interest ” means any contract, agreement, Farmout Agreement, lease, deed, conveyance or operating agreement that exists as of the Effective Time or that burdens the Subject Interests at the time such Subject Interests are acquired, that by the terms thereof requires a Person to convey a part of the Subject Interest to another Person or to permanently cease production of any Well including, any operating agreements, oil and gas leases, coal leases, and other similar agreements or instruments affecting the Subject Interests.
     “ Production Burdens ” means, with respect to any Subject Lands, Subject Interests, or Subject Gas, all royalty interests, overriding royalty interests, production payments, net profits interests, Prior Reversionary Interests and other similar interests that constitute a burden on, are measured by, or are payable out of the production of Gas or the proceeds realized from the sale or other disposition thereof.
     “ Quarterly Payment Amount ” is defined in Section 5.01(a).
     “ Quarterly Payment Date ” is defined in Section 5.01(c).
     “ Reasonably Prudent Operator Standard ” means the standard of conduct of a reasonably prudent oil and gas operator in the AMI Area under the same or similar circumstances, acting with respect to its own property and disregarding the existence of the Royalty Interest as a burden on such property.
     “ Reserved Amounts ” means those amounts set aside from Trust Proceeds by Assignor in accordance with the provisions of Section 5.04 below.

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     “ Royalty Interest ” is defined in Section 1.01.
     “ Sales Price ” means, for any Computation Period, the sale price received by Assignor per Mcf or per MMBtu for Trust Gas determined in accordance with the following provisions:
     (a) “sale” refers to any sale, exchange, or other disposition of Trust Gas for value, the value of such Gas that is exchanged or otherwise disposed of for valuable consideration being the sales price that Assignor receives for any such Gas sold pursuant to Section 4.01 for any such Gas.
     (b) amounts of money not paid to Assignor when due by any purchaser of Trust Gas (for example, Taxes or other amounts withheld or deducted by any such purchaser) shall not be included within the Sales Price until actually received by, or credited to the account of, Assignor;
     (c) advance payments and prepayments for future deliveries of Trust Gas shall be included within the Sales Price, without interest, when that volume of Gas subject to the advance payments or prepayments is actually produced;
     (d) loan proceeds received by Assignor shall not be treated as a component of the applicable Sales Price; and
     (e) if a controversy or possible controversy exists, whether by reason of any statute, order, decree, rule, regulation, contract, or otherwise, between Assignor and any purchaser of Trust Gas or any other Person, about the correct Sales Price of any Trust Gas, about deductions from the Sales Price, about Assignor’s right to receive the proceeds of any sale of Trust Gas, or about any other matter, then monies withheld by the purchaser or deposited by it with an escrow agent or if Assignor receives any monies and promptly deposits such monies with a Third Person escrow agent as a result of such controversy, such monies shall not be included within the Sales Price until received by or returned to Assignor, as applicable.
     “ Subject Gas ” means Gas in and under, and that may be produced, saved, and sold from a Well, insofar and only insofar as such Gas is produced from the Target Formation, subject to the following:
     (a) “Subject Gas” excludes Gas that is:
     (i) lost in the production, gathering, or marketing of Gas;
     (ii) used (A) in conformity with ordinary and prudent operations on the Subject Lands, including drilling and production operations or (B) in connection with plant operations (whether on or off the Subject Lands) for processing or compressing the Subject Gas;
     (iii) taken by a Third Person to recover costs, or some multiple of costs, paid or incurred by that Third Person under any operating agreement, unit

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agreement, or other agreement in connection with nonconsent operations conducted (or participated in) by that Third Person;
     (iv) retained by a Third Person for gathering, transportation, processing or marketing services related to the Subject Gas in lieu of or in addition to cash payment for such services, to the extent such agreement is permitted under this Conveyance; and
     (v) in excess of the percentage attributable to Assignor’s Net Share of Gas taken by Assignor to recover costs, or some multiple of costs, paid or incurred by Assignor under any operating agreement, unit agreement, or other agreement in connection with nonconsent operations conducted (or participated in) by Assignor.
     (b) “Subject Gas” includes Gas, not otherwise excluded above, that is sold or exchanged for other Gas, or otherwise disposed of for valuable consideration.
     “ Subject Interests ” means Assignor’s undivided interests in the Subject Lands, whether as lessee under Gas leases, as an owner of the Subject Gas (or the right to extract such Gas), or otherwise, by virtue of which undivided interests Assignor has the right to conduct exploration, drilling, development, and Gas production operations on the Subject Lands, or to cause such operations to be conducted, or to participate in such operations by paying and bearing all or any part of the costs, risks, and liabilities of such operations, to drill, test, complete, equip, operate, and produce Wells to exploit the Gas. “Subject Interests” includes all extensions of, and all renewal Gas leases covering, the Subject Lands (or any portion thereof) obtained by Assignor, or any Affiliate thereof, within six (6) months after the expiration or termination of any such Gas lease. “Subject Interests” do not include (a) Assignor’s rights to substances other than Gas; (b) Assignor’s rights to Gas under contracts for the purchase, sale, transportation, storage, processing, or other handling or disposition of Gas; (c) Assignor’s interests in, or rights to Gas with respect to, pipelines, gathering systems, storage facilities, processing facilities, or other equipment or facilities, other than the Wells; or (d) subject to Section 1.03(c), any additional, or enlarged interests in the Wells, Subject Lands or Subject Gas, except those reflected in Exhibit A or any extensions and renewals covered by the preceding sentence. “Subject Interests” may be owned or claimed by Assignor by virtue of grants or reservations in deeds, Gas leases, or other instruments, or by virtue of operating agreements, pooling or unitization agreements or orders, or other kinds of instruments, agreements, or documents, legal or equitable, recorded or unrecorded. The Subject Interests are subject to the Permitted Encumbrances.
     “ Subject Lands ” means the lands subject to or covered by the oil and gas leases described in Exhibit A , insofar and only insofar as they cover the Target Formation, subject to the exceptions, exclusions and reservations set forth on such Exhibit A .
     “ Target Formation ” means what is generally referred to as the Marcellus Shale formation and for purposes of this Conveyance is defined as that formation located from the bottom of the Tully Formation (as seen by the ECA Kemsod #1 Well, API number 37-059-25209), at a depth of 7,881 feet, to the top of the Huntersville Chert Formation (as seen by the ECA Kemsod #1 Well, API number 37-059-25209), at a depth of 8,204 feet.

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     “ Term PDP Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (PDP) by and between Assignor and Eastern Marketing Corporation dated effective as of the Effective Time.
     “ Term PUD Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (PUD) by and between Assignor and Eastern Marketing Corporation dated effective as of the Effective Time.
     “ Taxes ” is defined in Section 3.02(b).
     “ Third Person ” means a Person other than Assignor or Trustee.
     “ Transfer ” including its syntactical variants, means any assignment, sale, transfer, conveyance, or disposition of any property; provided, Transfer as used herein does not include the granting of a security interest in Assignor’s interest in any property including the Subject Interests or Subject Lands.
     “ Trust ” is defined in the Introduction to this Conveyance.
     “ Trust Agreement ” is defined in the Introduction to this Conveyance.
     “ Trust Gas ” is defined in Section 3.01.
     “ Trust Proceeds ” means, for any Computation Period, proceeds received by Assignor for the account of the Trust, as the Trust’s marketing and payment agent and representative, from the sale of Trust Gas under this Conveyance less Chargeable Costs calculated in accordance with Section 3.03.
     “ Trustee ” is defined in the Introduction to this Conveyance and also includes all successor and substitute trustees under the Trust Agreement.
     “ Well ” means the borehole of each Gas well more particularly described in Exhibit A .
     “ Working Interest ” means with respect to any Well, the interest, stated as a decimal fraction, in and to such Well that is burdened with the obligation to bear and pay costs and expenses of maintenance, development and operations on or in connection with such Well.
ARTICLE III
CALCULATION OF TRUST GAS
Section 3.01 Definition . “ Trust Gas ” is that volume of Gas which the Trust is entitled to receive in any Computation Period under this Conveyance, calculated in accordance with the following formula:
     With respect to any Well:

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Forty and One-Half Percent (40.5%) X (Assignor’s Net Share of Gas produced during that Computation Period).
For purposes of calculating Trust Gas hereunder, if, during any Computation Period, Assignor is unable to determine the precise volume of Gas produced, sold and attributable to Assignor’s Net Share of Gas, then Assignor shall, in good faith and in accordance with the Reasonably Prudent Operator Standard, estimate the volume of such Gas produced, sold and attributable to Assignor’s Net Share of Gas for such Computation Period. Assignor shall adjust Assignor’s Net Share of Gas upward or downward, as the case may be, in the next or subsequent Computation Periods to reflect the difference between the estimated volume and the actual amount of Gas produced, sold and attributable to Assignor’s Net Share of Gas in the Computation Period for which such estimate was made.
Section 3.02 Chargeable Costs .
          (a) Definition . Subject to Section 5.04 hereof, for each Computation Period, “ Chargeable Costs ” means the sum of (i) Taxes, (ii) the Post Production Cost Charge and (iii) Excess Costs from prior Computation Periods that (in each case) are actually paid or are deemed to have been paid by Assignor during that Computation Period or paid or deemed to have been paid by Assignor during a prior Computation Period and not included in any prior Computation Period’s Chargeable Costs.
          (b) Taxes . “ Taxes ” means general property, ad valorem, production, severance, sales, gathering, windfall profit, excise, and other taxes, except income taxes, assessed or levied on or in connection with the Subject Interests, the Royalty Interest, this Conveyance, production of Subject Gas, Assignor’s Net Share of Gas, the Trust Gas (or the proceeds from the sale thereof), or facilities or equipment on the Subject Lands that are used for the production, dehydration, treatment, processing, gathering, or transportation of Subject Gas, or against Assignor as owner of the Subject Interests or paid by Assignor on behalf of the Trust as owner of this Royalty Interest.
          (c) Post Production Cost Charge . “ Post Production Cost Charge ” means those costs incurred by Assignor (including, internal costs and Third Person costs) to gather, transport, compress, process, treat, dehydrate and market the Subject Gas, including any costs as may be required to make merchantable and to deliver such Gas to market; provided, any internal costs of Assignor and its Affiliates that are part of the Post Production Cost Charge shall not materially exceed the costs prevailing in the area where the Subject Gas is being produced for similar services; and provided, further, with respect to marketing costs, only Non-Affiliate marketing fees and costs shall be included, and marketing costs of Assignor and its Affiliates with respect to any Subject Gas will be specifically excluded from the Post Production Cost Charge; and provided, further, until the Drilling Obligation Completion Date, any such internal costs of Assignor and its Affiliates (excluding costs for any fuel that is used in the compression process, including equivalent electricity charges in instances where electric compressors are used) associated with the Greene County Gathering System shall be limited to $0.52 per MMBtu of Trust Gas gathered. Any costs, fees or expenses that are properly charged or allocated to the

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          Trust Gas pursuant to another provision of this Conveyance (including, as provided for in the definition of Subject Gas) shall not be included as part of the Post Production Cost Charge.
          (d) Operating and Drilling Costs . All costs associated with or paid or incurred in connection with the drilling, testing, completing, developing and operating the Wells or associated with the Subject Interests other than Taxes and Post Production Cost Charges shall be borne solely by Assignor and shall not be included as Chargeable Costs.
      Section 3.03 Trust Proceeds . “ Trust Proceeds ” means the volume of Trust Gas (on an Mcf basis or MMBtu basis, as applicable) for the applicable Computation Period multiplied by the relevant Sales Price less the Chargeable Costs associated with such Trust Gas for the applicable Computation Period.
ARTICLE IV
MARKETING OF TRUST GAS
      Section 4.01 Rights and Duties Regarding Sale of Trust Gas . Assignor shall market or shall cause to be marketed Assignor’s Net Share of Gas (including the Trust Gas) in good faith and in accordance with the Reasonably Prudent Operator Standard and Section 4.02(d). Assignor shall use its reasonable efforts in connection with any sale of Assignor’s Net Share of Gas (including the Trust Gas) to obtain, as soon as reasonably practicable, full payment for such Gas; provided, however, that it shall not be considered a breach of Assignor’s marketing duty or standard of conduct for Assignor to market such Gas to an Affiliate of Assignor, so long as Assignor does not market such Gas at a volume-weighted average price lower than the volume-weighted average price upon which Assignor pays royalties to the owners of the other royalty interests in the Subject Gas, save and excepting Chargeable Costs provided for in Article III hereof.
      Section 4.02 Trust’s Agent and Representative .
          (a)  Appointment . Trustee on behalf of the Trust appoints Assignor as the Trust’s agent and representative to market and deliver or cause to be marketed and delivered all Trust Gas and to collect and receive all payments therefrom under any gas purchase agreement or contract without deduction (except to the extent Chargeable Costs are deducted for any Computation Period). The appointment of Assignor as the Trust’s agent and representative for such purpose is a material item of consideration to the Parties in connection with the execution and delivery of this Conveyance. Trustee on behalf of the Trust may not remove Assignor from office as the Trust’s agent and representative, except for cause upon a material breach by Assignor of its duties to the Trust under this Conveyance.
          (b)  Duties and Powers . As the Trust’s agent and representative, Assignor shall receive all payments for the sale of the Trust Gas and account to Trustee on behalf of the Trust, receive and make all communications with the purchaser of such Gas, and otherwise act and speak for the Trust in connection with the sale of the Trust Gas. Third Persons may rely conclusively on the authority of Assignor to market the Trust Gas, and with respect to Third Persons, the Trust shall be conclusively bound by the acts of Assignor in connection with the sale of Trust Gas. It shall not be necessary for Trustee on behalf of the Trust to join Assignor in

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the execution of any division order, transfer order, or other instrument, agreement, or document relating to the sale of the Trust Gas. Third Persons may pay all Trust Proceeds for the sale of such Gas directly to Assignor, without the necessity of any joinder by or consent of Trustee on behalf of the Trust or any inquiry into the use or disposition of such proceeds by Assignor.
          (c)  Prohibited Acts . Assignor may not act for or bind the Trust on any matter, except the marketing and delivery of the Trust Gas under this Article IV.
          (d)  Standard of Conduct . In exercising its powers and performing its duties as the Trust’s agent and representative, Assignor shall act in good faith and in accordance with the Reasonably Prudent Operator Standard. It shall not be a violation of such standard of conduct for Assignor (i) to sell Assignor’s Net Share of Gas or the Trust Gas to an Affiliate pursuant to any gas purchase agreement or contract, or (ii) to delegate some or all of Assignor’s duties as the Trust’s agent and representative to its Affiliates (so long as such Affiliates perform in good faith and in accordance with the Reasonably Prudent Operator Standard), with Assignor remaining liable to the Trust for the performance of such Affiliates.
          (e)  Termination of Authority . Assignor may not resign as the Trust’s agent and representative without the prior written consent of the Trustee on behalf of the Trust, except that Assignor may resign as the Trust’s agent and representative without such consent with respect to any Subject Interests assigned, sold, transferred, or conveyed by Assignor in accordance with the terms of this Conveyance. If such sale is made subject to the Royalty Interest, Assignor must cause the purchaser to assume the duties of the Trust’s agent and representative with respect to the Subject Interests acquired by that purchaser and to be bound by the provisions of this Article IV.
      Section 4.03 Delivery of Subject Gas . Assignor (whether or not it is serving as the Trust’s agent and representative) shall deliver or cause to be delivered Assignor’s Net Share of Gas (including Trust Gas) to the purchasers thereof into the pipelines to which the Wells producing such Gas are connected.
      Section 4.04 Processing . Assignor may process Assignor’s Net Share of Gas (including Trust Gas) to remove liquid and liquefiable hydrocarbons and may commit any of the Subject Interests (including the Royalty Interest attributable thereto) to an agreement for processing minerals (pursuant to which, for example, the plant owner or operator receives a portion of the Subject Gas or plant products therefrom or proceeds of the sale thereof as a fee for processing), so long as Assignor enters into such processing arrangements in good faith and in accordance with the Reasonably Prudent Operator Standard. The Trust shall be bound by such arrangements, shall permit Assignor’s Net Share of Gas (including the Trust Gas) to be processed by Assignor or its contractor, and shall have no right to any liquid or liquefiable hydrocarbons obtained by such processor or to the proceeds from the sale thereof. Trustee shall not, however, be personally liable for any costs or risks associated with such processing operations, but the Trust shall indirectly suffer the Btu reduction and volume reductions associated with processing through corresponding reductions in the Btu content and volumes of the Trust Gas.

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ARTICLE V
PAYMENT
      Section 5.01 Obligation to Pay .
          (a)  Quarterly Payment Amount . On each Quarterly Payment Date, Assignor shall prepare, in good faith, an estimate of the cash to be paid to the Trust from (A) all of the proceeds (including any interest earned thereon and payable to the Trust pursuant to Section 5.01(b) or Section 5.01(e)) to be paid to the Trust from the sale of Trust Gas produced during such Computation Period; plus (B) all of the proceeds (including any interest earned thereon and payable to the Trust pursuant to Section 5.01(b) or Section 5.01(e)) to be paid to the Trust from the sale of Trust Gas, if any, produced during any prior Computation Periods, to the extent not previously taken into account for purposes of determining a Quarterly Payment Amount for any prior Computation Periods, as such sum may be (x) increased or decreased as a result of any adjustments to the estimates that were previously made pursuant to this Section 5.01(a) for any prior Computation Periods that are necessary to accurately report the proceeds from the sale of Trust Gas for such prior Computation Periods, (y) increased by the amount of any damages payable to the Trustee under Section 1.03(b) above (subject to the right of set off in Section 1.03(c) above) during the most recently completed Computation Period prior to such Quarterly Payment Date and (z) decreased by any Reserved Amounts as provided in Section 5.04 below (“ Quarterly Payment Amount ”).
          (b)  The Obligation . After each Computation Period and on or before the Quarterly Payment Date for that Computation Period, Assignor shall tender to Trustee the Quarterly Payment Amount with respect to the applicable Computation Period. With respect to the final Computation Period, Assignor shall tender to the Trustee all unexpended Reserved Amounts (together with any interest accrued thereon).
          (c)  Quarterly Payment Date . “ Quarterly Payment Date ” for each Computation Period means the thirtieth (30 th ) day after the end of such Computation Period. If such day is not a Business Day, the Quarterly Payment Date shall be the next Business Day.
          (d)  No Segregated Account . All amounts received by Assignor from the sale of Assignor’s Net Share of Gas and the Trust Gas, as applicable, for any Computation Period shall be held by Assignor in one of its general bank accounts and Assignor will not be required to maintain a segregated account for such funds.
          (e)  Disputed Proceeds . If Assignor receives any amounts of money from the sale of Trust Gas that is subject to controversy or, in the reasonable opinion of Assignor, possible controversy, Assignor shall promptly deposit the money with a Third Person escrow agent in a segregated interest-bearing account. Such amount shall not be treated as a portion of Trust Proceeds so long as it remains with such escrow agent, but shall be treated as a portion of the Trust Proceeds, along with the accrued interest, when received from such escrow agent and paid over to Trustee.
      Section 5.02 Interest on Past Due Payments .

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          (a) Obligation to Pay . Any Trust Proceeds or other amounts of money not paid by Assignor to Trustee when due shall bear, and Assignor will pay, interest at the Prime Interest Rate on the overdue amount commencing on the sixth (6 th ) day after such due date until such amount is paid.
          (b) Definition . “ Prime Interest Rate ” means the lesser of (i) the rate of interest per annum publicly announced from time to time by The Bank of New York Mellon Trust Company, N.A. as its “prime rate” in effect at its principal office in New York City (each change in the Prime Rate to be effective on the date such change is publicly announced), with the understanding that such bank’s “prime rate” may be one of several base rates, may serve as a basis upon which effective rates are from time to time calculated for loans making reference thereto, and may not be the lowest of such bank’s base rates or (ii) the maximum rate of interest permitted under applicable Legal Requirement.
      Section 5.03 Overpayments and Refunds .
          (a) Overpayments . If Assignor ever pays Trustee more than the amount of money then due and payable to the Trust under this Conveyance, Trustee shall not be obligated to return the overpayment, but Assignor may at any time thereafter deduct from Trust Proceeds and retain for its own account an amount equal to the overpayment.
          (b) Refunds . If Assignor is ever legally obligated to pay any Third Person, including any gas purchaser or Governmental Authority, any refund, interest, penalty, or other amount of money, because any payment of Trust Proceeds received by Assignor for the account of Trustee exceeded, or allegedly exceeded, the amount due or lawful under any applicable contract, Legal Requirement, or other obligation, Assignor may thereafter deduct from Trust Proceeds and retain for its own account an amount equal to such payment.
      Section 5.04 Reserved Amounts . At any time and from time to time under this Conveyance and in accordance with the Reasonably Prudent Operator Standard, Assignor may set aside from Trust Proceeds amounts determined in good faith to economically accrue for a Computation Period with respect to known or anticipated costs or liabilities (the “ Reserved Amounts ”) which may be incurred in future Computation Periods with respect to Taxes assessed or levied with respect to a time period in excess of a calendar quarter. As Reserved Amounts are expended by Assignor to cover applicable Taxes in a Computation Period, Chargeable Costs shall be reduced in such Computation Period by an amount equal to the Reserved Amounts so expended. In the event that Assignor overestimates the cost of any Taxes for which it has set aside Reserved Amounts, the excess amount shall be applied against any other Chargeable Costs (which shall be reduced by an amount equal to such excess Reserved Amounts so expended), or paid as Trust Proceeds on the Quarterly Payment Date following the Computation Period in which it is determined that Assignor has set aside excess Reserved Amounts.
ARTICLE VI
RECORDS AND REPORTS
      Section 6.01 Books, Records, and Accounts .

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          (a) Obligation to Maintain . Assignor shall maintain true and correct books, records, and accounts of (i) all transactions required or permitted by this Conveyance and (ii) the financial information necessary to effect such transactions, including the financial information needed to calculate each installment of Trust Proceeds.
          (b) Right of Inspection . Trustee or its representative, at the Trust’s expense, may inspect and copy such books, records, and accounts in the offices of Assignor during normal business hours and upon reasonable notice.
      Section 6.02 Statements .
          (a) Quarterly Statements . On each Quarterly Payment Date, Assignor shall deliver to Trustee a statement showing the computation of Trust Gas and Trust Proceeds for the preceding Computation Period.
          (b) Annual Statements . On the first Quarterly Payment Date after the end of each calendar year, such statement shall also show the computation of Trust Proceeds for the preceding calendar year.
          (c) Contents of Statements . Without limiting the generality of the foregoing provisions in this Section 6.02, each statement delivered by Assignor to Trustee pursuant to this Section 6.02 shall state, for the relevant period, (i) the total volumes of Subject Gas produced from the Subject Lands, (ii) the total volumes of the Assignor’s Net Share of Gas, (iii) the total volumes of Trust Gas, (iv) the applicable Sales Price, (v) the amount of Trust Proceeds due and payable for the relevant period and (vi) the amounts of money, if any, due and payable by any purchaser of the Subject Gas or the Trust Gas, the nonpayment of which resulted in the payment to Trustee of less than Trust Proceeds for the relevant period. Notwithstanding the preceding, Assignor shall only be required to provide the preceding information on an aggregate basis.
      Section 6.03 The Trustee’s Exceptions to Quarterly Statements . If Trustee on behalf of the Trust takes exception to any item or items included in any quarterly statement required by Section 6.02, Trustee must notify Assignor in writing within sixty (60) days after Trustee’s receipt of such quarterly statement. Such Notice must set forth in reasonable detail the specific charges complained of and to which exception is taken or the specific credits which should have been made and allowed. Adjustments shall be made for all complaints and exceptions that are justified. Notwithstanding anything to the contrary herein, all matters reflected in Assignor’s statements for the preceding calendar year (or portion thereof) that are not objected to by Trustee in the manner provided by this Section 6.03 shall be deemed correct as rendered by Assignor to Trustee.
      Section 6.04 Other Information .
          (a) Disclosure . At Trustee’s request, subject to applicable restrictions on disclosure and transfer of information, Assignor shall give Trustee and its designated representatives (on behalf of the Trust) reasonable access in Assignor’s office during normal business hours to all geological, Well, and production data in Assignor’s possession or Assignor’s Affiliates’ possession, relating to operations on the Subject Interests.

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          (b) Disclaimer of Warranties and Liability . Assignor makes no representations or warranties about the accuracy or completeness of any such data, reports, or studies and shall have no liability to Trustee, the Trust or any other Person resulting from such data, studies, or reports.
          (c) No Attribution . Trustee shall not attribute to Assignor or to the consulting engineers any reports or studies or the contents thereof in any securities filings or reports to owners or holders of interests in the Trust.
          (d) Confidentiality . All information furnished to the Trustee and its designated representatives pursuant to this Section 6.04 is confidential and for the sole benefit of Trustee on behalf of the Trust and shall not be disclosed by Trustee or its designated representatives to any other Person, except to the extent that such information (i) is required in any report, statement or testimony submitted to any Governmental Authority having or claiming to have jurisdiction over Trustee or the Trust or submitted to bank examiners or similar organizations or their successors, (ii) is required in response to any summons or subpoena or in connection with any litigation, (iii) is believed to be required in order to comply with any applicable Legal Requirement to the Trustee or the Trust, (iv) was publicly available or otherwise known to the recipient at the time of disclosure or (v) subsequently becomes publicly available other than through any act or omission of the recipient; provided, however, with respect to the disclosures with respect to items (i), (ii) and (iii) above, Trustee will notify Assignor prior to any such disclosure in order to provide Assignor an opportunity to seek to limit any such required disclosure.
ARTICLE VII
NO LIABILITY OF THE TRUSTEE OR THE TRUST
     Neither the Trustee nor the Trust shall be personally liable or responsible under this Conveyance for any cost, risk, liability, or obligation associated in any way with the ownership or operation of the Subject Lands, the Subject Interests, the Wells, or the Subject Gas. The foregoing sentence does not restrict the right of Assignor to deduct Chargeable Costs or Reserved Amounts in calculating the volumes of the Trust Gas or Trust Proceeds.
ARTICLE VIII
OPERATIONS
      Section 8.01 Standards of Conduct . Except as otherwise specifically provided in this Conveyance, Assignor shall (a) operate and maintain the Subject Interests and (b) make elections under each applicable lease, operating agreement, unit agreement, contract for development, and other similar instrument or agreement (including elections concerning abandonment of any Well or release of any Subject Interest) in good faith and in accordance with the Reasonably Prudent Operator Standard.
      Section 8.02 Abandonment of Properties . Nothing in this Conveyance shall obligate Assignor to continue to operate any Well or to operate or maintain in force or attempt to maintain in force any Subject Interest when such Well or Subject Interest ceases to produce, or Assignor determines, in accordance with Section 8.01 above, that such Well or Subject Interest is

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not capable of producing Gas in paying quantities. The expiration of a Subject Interest in accordance with the terms and conditions applicable thereto shall not be considered to be a voluntary surrender or abandonment thereof.
      Section 8.03 Insurance . Assignor may, but is not required by this Conveyance to, carry insurance on any Subject Interest or Well, or covering any risk with respect thereto. Assignor shall never be liable to the Trustee or the Trust on account of any injury or loss to the Subject Interests or any Well, whether insurable or uninsurable, not covered by insurance. If Assignor elects to carry insurance, the premiums shall not be included in Chargeable Costs, and Assignor shall retain all proceeds of such insurance.
ARTICLE IX
POOLING AND UNITIZATION
      Section 9.01 Pooling of Subject Interests . Certain Subject Interests have been, or may have been, heretofore pooled and unitized for the production of Gas. Such Subject Interests are and shall be subject to the terms and provisions of the applicable pooling and unitization agreements, and the Royalty Interest in each pooled or unitized Subject Interest shall apply to and affect only the Gas produced from such units that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreements.
      Section 9.02 Pooling and Unitization .
          (a) Right to Pool . Assignor has the exclusive executive right and power (as between Assignor and the Trustee) to pool or unitize any Subject Interest and to alter, change, amend, or terminate any pooling or unitization agreements heretofore or hereafter entered into, as to all or any part of the Subject Lands, as to any one or more of the formations or horizons, and as to any Gas, upon such terms and provisions as Assignor shall in its sole discretion deem appropriate.
          (b) Effect of Pooling . If and whenever through the exercise of such right and power, or pursuant to any Legal Requirement now existing or hereafter enacted or promulgated, any Subject Interest is pooled or unitized in any manner, the Royalty Interest, insofar as it affects such Subject Interest, shall also be pooled and unitized, and such Royalty Interest in such Subject Interest shall apply to and affect only the Gas production that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreement or order. It shall not be necessary for the Trustee to agree to, consent to, ratify, confirm or adopt any exercise of pooling or unitization of any Subject Interest by Assignor.
ARTICLE X
GOVERNMENT REGULATION
      Section 10.01 Legal Requirements . All obligations of Assignor under this Conveyance are, and shall be, subject to all applicable Legal Requirements and the instruments, documents, and agreements creating the Subject Interests.

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      Section 10.02 Filings . Assignor shall use its reasonable discretion in making filings for itself and on behalf of the Trust with any Governmental Authority having jurisdiction with respect to matters affecting the Subject Interests, the Subject Lands, or the Subject Gas.
ARTICLE XI
ASSIGNMENT AND SALE OF SUBJECT INTERESTS
      Section 11.01 Assignment by Assignor Subject to Royalty Interest .
          (a) Right to Sell . Subject to Section 11.05, Assignor may from time to time Transfer, mortgage, or pledge its interest in the Wells, the Subject Interests, or any part thereof or undivided interest therein, subject to the Royalty Interest and this Conveyance. Assignor shall cause the assignee, purchaser, transferee, grantee, mortgagee, or pledgee of any such transaction to take the affected Subject Interests subject to the Royalty Interest and this Conveyance and, from and after the actual date of any such Transfer, to assume Assignor’s obligations under this Conveyance with respect to such Subject Interests.
          (b) Effect of Sale . From and after the actual date of any such Transfer by Assignor, Assignor shall be relieved of all obligations, requirements, and responsibilities arising under this Conveyance with respect to the Subject Interests Transferred, except for those that accrued prior to such date.
          (c) Allocation of Consideration . Trustee is not entitled to receive any share of the sales proceeds received by Assignor in any transaction permitted by this Section 11.01.
          (d) Separate Interest . Effective on the effective date of any Transfer of any Subject Interest subject to this Section 11.01, Trust Gas and Trust Proceeds shall thereafter be computed separately with respect to such Subject Interests, and the assignee, buyer, transferee, or grantee of such Subject Interests shall thereafter serve as the Trust’s agent and representative under Article IV with respect to such interests and shall pay all corresponding Trust Proceeds directly to Trustee.
      Section 11.02 Sale and Release of Properties .
          (a)  Transfer . Subject to Section 11.05, Assignor may from time to time, Transfer the Wells, the Subject Interests, or any part thereof or undivided interest therein, free of the Royalty Interest and this Conveyance provided that the aggregate Fair Value of all Royalty Interests released with respect to the Assignee Conveyances during any twelve (12) month period shall not exceed $5,000,000.
          (b)  Payments . In connection with any Transfer pursuant to this Section 11.02, Assignor shall remit to the Trust an amount equal to the Fair Value of the Royalty Interest being released. Assignor shall make such payment to the Trust on the Quarterly Payment Date for the Computation Period in which Assignor receives the payment with respect to any such Transfer of the Subject Interest.
          (c)  Release . In connection with any Transfer provided for in Section 11.02(a), Trustee on behalf of the Trust shall, on request, execute, acknowledge, and deliver to

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Assignor a recordable instrument (reasonably acceptable to Assignor) that releases the Royalty Interest with respect to the Well and the related Subject Interests and Subject Lands being Transferred.
          (d)  Effect of Sale . From and after the actual date of any such Transfer by Assignor, Assignor and any assignee, purchaser, transferee or grantee of such Subject Interest shall be relieved of all obligations, requirements, and responsibilities arising under the Royalty Interest or this Conveyance with respect to the Well or Subject Interests Transferred, except for those that accrued prior to such date.
      Section 11.03 Release of Other Properties .
          (a)  Prior Reversionary Interests . In the event that any Person notifies Assignor that, pursuant to a Prior Reversionary Interest, Assignor is required to convey any of the Subject Interests to such Person or cease production from any Well, Assignor may provide such conveyance with respect to such Subject Interest or permanently cease Production from any such Well.
          (b)  Payments . In the event that Assignor receives compensation pursuant to any Prior Reversionary Interest in connection with any conveyance or permanent cessation of production from any Well, Assignor shall remit to the Trust an amount equal to the product of (x) such amount actually received by Assignor with respect to such reconveyance or permanent cessation of production and (y) a fraction the numerator of which is (A) the Fair Value of the Royalty Interest released and the denominator of which is (B) the Fair Value of the Subject Interest that is being released. Assignor shall make such payment to the Trust on the Quarterly Payment Date for the Computation Period in which Assignor receives such payment.
          (c)  Release for Prior Reversionary Interests . In connection with any conveyance or permanent cessation of production provided for in Section 11.03(a) above, Trustee on behalf of the Trust shall, on request, execute, acknowledge, and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that releases the Royalty Interest and this Conveyance with respect to any such Well or Subject Interests.
          (d)  Effect of Prior Reversionary Interests . From and after the actual date of any conveyance or permanent cessation of production provided for in Section 11.03(a), Assignor and any assignee, purchaser, transferee or grantee of such Subject Interest shall be relieved of all obligations, requirements, and responsibilities arising under the Royalty Interest or this Conveyance with respect to the Subject Interests Transferred, except for those that accrued prior to such date.
      Section 11.04 Change in Ownership .
          (a) Obligation to Give Notice . No change of ownership or of the right to receive payment of the Royalty Interest, or of any part thereof, however accomplished, shall bind Assignor until notice thereof is furnished to Assignor by the Person claiming the benefit thereof, and then only with respect to payments made after such Notice is furnished.

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          (b) Notice of Sale . Notice of sale, transfer, conveyance, or assignment shall consist of a certified copy of the recorded instrument accomplishing the same.
          (c) Notice of Other Changes of Ownership . Notice of change of ownership or of the right to receive payment accomplished in any other manner ( e.g. , by dissolution of the Trust) shall consist of certified copies of recorded documents and complete proceedings legally binding and conclusive of the rights of all Persons.
          (d) Effect of Lack of Notice . Until such Notice accompanied by such documentation is furnished to Assignor in the manner provided above, Assignor may, at Assignor’s election, either (i) continue to pay or tender all sums payable on the Royalty Interest in the same manner provided in this Conveyance, precisely as if no such change in interest or ownership or right to receive payment had occurred or (ii) suspend payment of Trust Proceeds without interest until such documentation is furnished.
          (e) Effect of Nonconforming Notices . The kinds of Notice provided by this Section 11.03(d) shall be exclusive, and no other kind, whether actual or constructive, shall bind Assignor.
      Section 11.05 Transfer of Subject Lands . Assignor will not Transfer any Well or any of the Subject Interests comprising a part of the Subject Lands pursuant to Sections 11.01 and 11.02 prior to the Drilling Obligation Completion Date.
      Section 11.06 One Payee . Assignor shall never be obligated to pay Trust Proceeds to more than one Person. If more than one Person is ever entitled to receive payment of any part of the Trust Proceeds, Assignor may suspend payments of all Trust Proceeds until the concurrent owners or claimants of the Royalty Interest or the right to receive payment of Trust Proceeds appoint one Person in writing to receive all payments of Trust Proceeds on their behalf. Assignor may thereafter conclusively rely upon the authority of that Person to receive payments of Trust Proceeds and shall be under no further duty to inquire into the authority or performance of such Person.
      Section 11.07 Rights of Mortgagee . If Trustee executes a mortgage or deed of trust covering all or part of the Royalty Interest, the mortgagees or trustees therein named or the holders of any obligation secured thereby shall be entitled, to the extent that such mortgage or deed of trust so provides, to exercise the rights, remedies, powers, and privileges conferred upon Trustee by this Conveyance and to give or withhold all consents required to be obtained from Trustee. This Section 11.07 shall not be deemed or construed to impose upon Assignor any obligation or liability undertaken by the Trustee under such mortgage or deed of trust or under the obligation secured thereby.
ARTICLE XII
AMI AREA
      Section 12.01 No Drainage . Subsequent to the Drilling Obligation Completion Date, neither Assignor nor any of its Affiliates shall drill any Gas well that will have a perforated segment that will be within five hundred feet (500’) of any perforated interval of any Well which produces oil or gas from the Target Formation.

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ARTICLE XIII
FORCE MAJEURE
      Section 13.01 Nonperformance . Assignor shall not be responsible to Trustee for any loss or damage to Trustee resulting from any delay in performing or failure to perform any obligation under this Conveyance (other than Assignor’s obligation to make payments of Trust Proceeds to Trustee) to the extent such failure or delay is caused by Force Majeure.
      Section 13.02 Force Majeure . “ Force Majeure ” means any of the following, to the extent they are not caused solely by the breach by Assignor of its duty to perform certain obligations under this Conveyance in accordance with the Reasonably Prudent Operator Standard:
          (a) act of God, fire, lightning, landslide, earthquake, storm, hurricane, hurricane warning, flood, high water, washout, tidal wave, or explosion;
          (b) strike, lockout, or other similar industrial disturbance, act of the public enemy, war, military operation, blockade, insurrection, riot, epidemic, arrest or restraint of Governmental Authority or people, or national emergency;
          (c) the inability of the Assignor to acquire, or the delay on the part of any Third Person (other than an Affiliate of the Assignor) in acquiring, materials, supplies, machinery, equipment, servitudes, right-of-way grants, easements, permits, or licenses, or approvals or authorizations by regulatory bodies needed to enable such Party to perform hereunder;
          (d) any breakage of or accident to machinery, equipment, or lines of pipe, the repair, maintenance, improvement, replacement, alteration to a plant or line of pipe or related facility, the testing of machinery, equipment or line of pipe, or the freezing of a line of pipe;
          (e) any Legal Requirement or the affected Party’s compliance therewith; or
          (f) any other cause, whether similar or dissimilar to the causes enumerated in (a) through (e) above, not reasonably within the control of Assignor.
      Section 13.03 Force Majeure Notice . Assignor will give Trustee a Notice of each Force Majeure as soon as reasonably practicable after the occurrence of the Force Majeure.
      Section 13.04 Remedy . Assignor will use its reasonable efforts to remedy each Force Majeure and resume full performance under this Conveyance as soon as reasonably practicable, except that the settlement of strikes, lockouts, or other labor disputes shall be entirely within the discretion of Assignor.
ARTICLE XIV
NOTICE
      Section 14.01 Definition . “ Notice ” means any notice, advice, invoice, demand, or other communication required or permitted by this Conveyance.

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      Section 14.02 Written Notice . Except as otherwise provided by this Conveyance, each Notice shall be in writing.
      Section 14.03 Methods of Giving Notice . Notice may be given by any reasonable means, including telecopier, hand delivery, overnight courier, and United States mail.
      Section 14.04 Charges . All Notices shall be properly addressed to the recipient, with all postage and other charges being paid by the Party giving Notice.
      Section 14.05 Effective Date . Notice shall be effective when actually received by the Party being notified.
      Section 14.06 Addresses . The addresses of the Parties for purposes of Notice are the addresses in the Introduction to this Conveyance.
      Section 14.07 Change of Address . Either Party may change its address to another address within the continental United States by giving ten (10) days’ Notice to the other Party.
ARTICLE XV
OTHER PROVISIONS
      Section 15.01 Successors and Assigns . Subject to the limitation and restrictions on the assignment or delegation by the Parties of their rights and interests under this Conveyance, this Conveyance binds and inures to the benefit of Assignor, Trustee, the Trust and their respective successors, assigns, and legal representatives.
      Section 15.02 Governing Law . WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, THIS CONVEYANCE SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA (EXCLUDING CHOICE OF LAW AND CONFLICT OF LAW RULES).
      Section 15.03 Construction of Conveyance . In construing this Conveyance, the following principles shall be followed:
          (a) no consideration shall be given to the captions of the articles, sections, subsections, or clauses, which are inserted for convenience in locating the provisions of this Conveyance and not as an aid in its construction;
          (b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Conveyance;
          (c) the word “includes” and its syntactical variants mean “includes, but is not limited to” and corresponding syntactical variant expressions;
          (d) a defined term has its defined meaning throughout this Conveyance, regardless of whether it appears before or after the place in this Conveyance where it is defined;

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          (e) the plural shall be deemed to include the singular, and vice versa, unless the content otherwise requires; and
          (f) each exhibit, attachment, and schedule to this Conveyance is a part of this Conveyance, but if there is any conflict or inconsistency between the main body of this Conveyance and any exhibit, attachment, or schedule, the provisions of the main body of this Conveyance shall prevail.
      Section 15.04 No Waiver . Failure of either Party to require performance of any provision of this Conveyance shall not affect either Party’s right to require full performance thereof at any time thereafter, and the waiver by either Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.
      Section 15.05 Relationship of Parties . This Conveyance does not create a partnership, mining partnership, joint venture, or relationship of trust or agency (except with respect to Assignor’s agency relationship with respect to those matters set forth in Articles IV and V above) between the Parties.
      Section 15.06 Proportionate Reduction . In the event of failure or deficiency in title to any Well or Subject Interest, the portion of the Subject Gas production attributable thereto shall be reduced in the same proportion that such Well or Subject Interest is reduced by such failure or deficiency. Such proportionate reduction of the Royalty Interest shall not limit Trustee’s rights with respect to such reduction under Section 1.03(a).
      Section 15.07 Further Assurances . Each Party shall execute, acknowledge, and deliver to the other Party all additional instruments and other documents reasonably required to describe more specifically any interests subject hereto, to vest more fully in Trustee the Royalty Interest conveyed (or intended to be conveyed) by this Conveyance, or to evidence or effect any transaction contemplated by this Conveyance. Assignor shall also execute and deliver all additional instruments and other documents reasonably required to transfer interests in state, federal, or Indian lease interests in compliance with applicable Legal Requirements or agreements.
      Section 15.08 The 7:00 A.M. Convention . Except as otherwise provided in this Conveyance, each calendar day, month, quarter, and year shall be deemed to begin at 7:00 a.m. Eastern Time on the stated day or on the first day of the stated month, quarter, or year, and to end at 7:00 a.m. Eastern Time on the next day or on first day of the next month, quarter, or year, respectively.
      Section 15.09 Counterpart Execution . This Conveyance may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all of such counterparts shall constitute for all purposes one Conveyance. As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf. shall be deemed an original hereto.

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      Section 15.10 Present and Absolute Conveyance . It is the express intention of Assignor and Trustee that the Royalty Interest is, and shall be construed for all purposes as, a present, fully-vested and absolute conveyance.
      Section 15.11 Limitation of Liability . It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by the Trustee not individually or personally, but solely as Trustee in the exercise of the powers and authority conferred and vested in it and (b) under no circumstances shall the Trustee be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Agreement.
[Remainder of page intentionally left blank.]

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     IN WITNESS WHEREOF, each Party has caused this Conveyance to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Conveyance, to be effective as of the Effective Time.
             
    ENERGY CORPORATION OF AMERICA
 
           
 
  By:   /s/ Donald C. Supcoe     
 
     
 
   
    Name: Donald C. Supcoe
    Title: Senior Vice President

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    ECA MARCELLUS TRUST I    
 
           
    By: The Bank of New York Mellon Trust Company, N.A.    
 
 
  By:   /s/ Michael J. Ulrich      
    Name: Michael J. Ulrich    
    Title: Authorized Signatory    
Prepared by:
Vinson & Elkins LLP
1001 Fannin Street
Suite 2500
Houston, TX 77002-6760
Attention: Thomas Herbert
Signature Page to Perpetual Royalty Interest Conveyance

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THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 7 th day of July, 2010, before me Julie Ann Kitano, a Notary public, personally appeared Donald C. Supcoe, who acknowledged himself to be the Senior Vice President of Energy Corporation of America, a West Virginia corporation, and that he as such Senior Vice President, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as Senior Vice President.
     In witness whereof, I hereunto set my hand and official seal.
         
  /s/ Julie Ann Kitano      
[SEAL]
       
My Commission Expires: 4-26-2014

 


 

     
THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 7 th day of July, 2010, before me Julie Ann Kitano, a Notary public, personally appeared Michael J. Ulrich, who acknowledged himself to be the authorized signatory of The Bank of New York Mellon Trust Company, N.A., a national banking association and Trustee of ECA Marcellus Trust I and that he as such authorized signatory, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the national banking association by himself as authorized signatory.
     In witness whereof, I hereunto set my hand and official seal.
         
  /s/ Julie Ann Kitano      
[SEAL]
       
My Commission Expires: 4-26-2014

 


 

CERTIFICATE OF RESIDENCE
     The Bank of New York Mellon Trust Company, N.A., as grantee and Trustee hereunder, hereby certifies that its precise address is:
919 Congress Avenue
Suite 500
Austin, Texas 78701
ECA MARCELLUS TRUST I
By: The Bank of New York Mellon Trust Company, N.A.
         
By:
  /s/ Michael J. Ulrich     
Name: Michael J. Ulrich    
Title: Authorized Signatory    

 


 

Exhibit A
(Attached hereto.)
Exhibit A

 


 

Exhibit B
(Attached hereto.)
Exhibit B

 


 

Exhibit C
Private Investors
W. GASTON CAPERTON, III
CLARK CLEMENT and PAULETTE CLEMENT
MICHAEL J. COCHRAN, JR.
PETER H. COORS
RODNEY D. COX and JENNIFER M. COX
CURTIS FAMILY REVOCABLE TRUST
DORGAN LIVING TRUST
RANDALL C. FARKOSH and SHERRY J. FARKOSH
JOHN S. FISCHER and FAYE E. FISCHER
MICHAEL S. FLETCHER and BOBBETTE FLETCHER
J. MICHAEL FORBES
MARK A. FRY and TAMMY L. FRY
THOMAS R. GOODWIN
DANIEL EARL GRAHAM LIVING TRUST and SALLY QUEREAU GRAHAM LIVING TRUST
CLINT L. HIPKE
DAVID E. JORDAN and CAROL JORDAN
FRANCIS H. McCULLOUGH, III and KATHY L. McCULLOUGH
KATHERINE F. McCULLOUGH TRUST
KRISTIN McCULLOUGH TRUST
LESLEY K. McCULLOUGH TRUST
MEREDITH B. McCULLOUGH TRUST
DENNIS L. McGOWAN and N. GAYLE McGOWAN
ALISON MORK TRUST
JOHN MORK and JULIE MORK
KYLE MORK TRUST
ARTHUR C. NIELSEN, JR. TRUST DATED JULY 14, 2003
GEORGE O’MALLEY
JAY S. PIFER
NIKI D. RANDOLPH
PETER L. REBSTOCK
R. KENT SCHAMP
PETER A. SULLIVAN and WENDY H. SULLIVAN
DONALD C. SUPCOE and PATTY L. SUPCOE
RODNEY A. WINTERS and TAMMY M. WINTERS
Exhibit C

 

Exhibit 10.2
PERPETUAL OVERRIDING ROYALTY INTEREST CONVEYANCE
(PUD)
COMMONWEALTH OF PENNSYLVANIA
INTRODUCTION
     THIS PERPETUAL OVERRIDING ROYALTY INTEREST CONVEYANCE (this “ Conveyance ”) from ENERGY CORPORATION OF AMERICA, a West Virginia corporation, with offices at 4643 South Ulster Street, Suite 100, Denver, Colorado 80237-2867 “ Assignor ”), to The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the State of New York, with offices at 919 Congress Avenue, Suite 500, Austin, Texas 78701, as trustee (the “ Trustee ”), acting not in its individual capacity but solely as trustee of the ECA Marcellus Trust I (the “ Trust ”) under that certain Amended and Restated Trust Agreement dated as of July 7, 2010 (the “ Trust Agreement ”), is delivered to be effective as of 7:00 a.m., Eastern Time, April 1, 2010 (the “ Effective Time ”). All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Article II below.
ARTICLE I
CONVEYANCE
      Section 1.01 The Grant . For and in consideration of good and valuable consideration paid by Trustee on behalf of the Trust to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor has, subject to the terms of this Conveyance, BARGAINED, SOLD, GRANTED, CONVEYED, TRANSFERRED, ASSIGNED, SET OVER, and DELIVERED, and by these presents does hereby BARGAIN, SELL, GRANT, CONVEY, TRANSFER, ASSIGN, SET OVER, and DELIVER unto Trustee on behalf of the Trust, as a perpetual net overriding royalty interest (the “ Royalty Interest ”), a variable undivided interest in and to the Subject Interests, to the extent that the Subject Interests pertain to Gas in, under and that may be produced and saved from the wellbores of the Development Wells, sufficient to cause the Trust to receive the Trust Gas or proceeds thereof calculated and paid in money in accordance with the further terms and conditions of this Conveyance.
      Section 1.02 Habendum Clause . TO HAVE AND TO HOLD the Royalty Interest, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Trustee on behalf of the Trust, its successors and assigns, subject to terms and provisions of this Conveyance.
      Section 1.03 Warranty .
          (a) The Warranty . Assignor warrants to the Trust, its successors and assigns, that the Subject Interests are free of all Encumbrances created by, through, or under Assignor, but not otherwise, except for the Permitted Encumbrances.

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          (b) Remedies .
          (i) Subject to Section 1.03(b)(ii), in the event of a breach of the foregoing warranty for any Subject Interest, the Trust’s sole remedy shall be to receive payment on each applicable Quarterly Payment Date, out of Assignor’s Net Share of Gas from other Development Wells in excess of that subject to the Royalty Interest and the royalty interest created pursuant to the Term PUD Conveyance (“ Assignor Retained Gas ”), without interest (except such interest payable under this Conveyance on payments made after the applicable due date as described in Section 5.02 below), of an amount equal to the difference between (x) Trust Gas (or the proceeds from the sale thereof) that the Trust would have received with respect to such Development Well in the applicable Computation Period if such warranty had not been breached and (y) Trust Gas (or the proceeds from the sale thereof) that the Trust actually received during that Computation Period with respect to that Development Well, to the extent such difference is attributable to the breach of the warranty, but not to the extent that such difference is attributable to any other cause, and any such amounts of Assignor Retained Gas shall be treated as Trust Gas.
          (ii) In the event a breach of the foregoing warranty for any Subject Interest is due to production burdens in excess of twelve and one half percent (12.5%) with respect to a Development Well, Assignor shall pay to Trustee on each applicable Quarterly Payment Date an amount equal to that which Trustee would have received with respect to such Development Well in the applicable Computation Period if such warranty had not been breached out of Assignor Retained Gas, and such excess production burdens will be fully allocated against Assignor’s retained interest in such Development Well.
          (c) DISCLAIMER . EXCEPT FOR THE WARRANTIES OF TITLE GIVEN IN SECTION 1.03(a), ASSIGNOR MAKES THIS CONVEYANCE AND ASSIGNS THE ROYALTY INTEREST WITHOUT RECOURSE, COVENANT OR WARRANTY OF TITLE OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. ANY COVENANTS OR WARRANTIES IMPLIED BY STATUTE OR LAW BY THE USE HEREIN OF THE WORDS “ GRANT ”, “ CONVEY ” OR OTHER SIMILAR WORDS ARE HEREBY EXPRESSLY DISCLAIMED, WAIVED AND NEGATED. WITHOUT LIMITING THE GENERALITY OF THE TWO PRECEDING SENTENCES, TRUSTEE ON BEHALF OF THE TRUST ACKNOWLEDGES THAT ASSIGNOR HAS NOT MADE, AND ASSIGNOR HEREBY EXPRESSLY DISCLAIMS AND NEGATES, AND THE TRUSTEE ON BEHALF OF THE TRUST HEREBY EXPRESSLY WAIVES, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO (i) PRODUCTION RATES, RECOMPLETION OPPORTUNITIES, DECLINE RATES OR THE QUALITY, QUANTITY OR VOLUME OF THE RESERVES OF HYDROCARBONS, IF ANY, ATTRIBUTABLE TO THE SUBJECT INTERESTS, (ii) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (iii) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iv) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, AND (v) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER ANY APPLICABLE LEGAL REQUIREMENT; IT BEING THE EXPRESS INTENTION OF BOTH THE TRUST AND ASSIGNOR THAT THE ROYALTY INTEREST IS HEREBY ASSIGNED TO THE

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TRUSTEE ON BEHALF OF THE TRUST ON AN “AS IS” AND “WHERE IS” BASIS WITH ALL FAULTS, AND THAT THE TRUSTEE ON BEHALF OF THE TRUST HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS THE TRUST DEEMS APPROPRIATE. ASSIGNOR AND THE TRUSTEE ON BEHALF OF THE TRUST AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LEGAL REQUIREMENTS TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS SECTION ARE “CONSPICUOUS” DISCLAIMERS FOR THE PURPOSES OF ANY APPLICABLE LEGAL REQUIREMENT.
          (d) Substitution of Warranty . This instrument is made with full substitution and subrogation of the Trust in and to all covenants of warranty by Third Persons (other than Affiliates of Assignor) heretofore given or made with respect to the Development Wells, the Subject Interests or any part thereof or interest therein.
      Section 1.04 Release of Excess Acreage . After the Drilling Obligation Completion Date, Trustee on behalf of the Trust shall, on request, execute, acknowledge, and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that conveys the Royalty Interest to Assignor and releases such Royalty Interest and this Conveyance with respect to all Subject Lands except such portion of any Subject Lands that covers and pertains to all Subject Gas in, under and that may be produced from any wellbore of any Development Well.
ARTICLE II
DEFINITIONS
     This Article II defines certain capitalized words, terms, and phrases used in this Conveyance. Certain other capitalized words, terms, and phrases used in this Conveyance are defined elsewhere in this Conveyance.
     “ Additional Lease ” is defined in Section 12.01.
     “ Affiliate ” means, for any specified Person, another Person that controls, is controlled by, or is under common control with, the specified Person. “Control,” in the preceding sentence, refers to the possession by one Person, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.
     “ AMI Area ” means that area depicted on the map set forth on Exhibit B as the AMI Area.
     “ Assignee Conveyances ” means for purposes of Section 11.02(a), this Conveyance, the Term PUD Conveyance, the Term PDP Conveyance, the Perpetual PDP Conveyance, and the Investor Conveyance, considered collectively.
     “ Assignor ” is defined in the Introduction to this Conveyance and also includes all permitted successors and assigns of Assignor.
     “ Assignor Retained Gas ” is defined in Section 1.03(b)(i).

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     “ Assignor’s Net Share of Gas ” means the share of Subject Gas from each Development Well that is attributable to Assignor’s Net Revenue Interest in that Development Well.
     “ Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the New York Stock Exchange, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.
     “ Chargeable Costs ” is defined in Section 3.02(a).
     “ Computation Period ” means each calendar quarter commencing at the Effective Time, with each calendar quarter being deemed to have begun at 7:00 a.m. Eastern Time on the first day of such calendar quarter and to have ended at 7:00 a.m. Eastern Time on the first day of the next calendar quarter, except for the first Computation Period, which shall be deemed to have begun at the Effective Time and to have ended at 7:00 a.m. Eastern Time on July 1, 2010.
     “ Conveyance ” is defined in the Introduction to this Conveyance.
     “ Development Agreement ” means that certain Development Agreement between Assignor and the Trustee dated as of even date herewith.
     “ Development Well ” has the meaning given such term in the Development Agreement.
     “ Drilling Obligation ” means Assignor’s obligation set forth in Section 2.01(a) of the Development Agreement.
     “ Drilling Obligation Completion Date ” has the meaning given to such term in the Development Agreement.
     “ Effective Time ” is defined in the Introduction to this Conveyance.
     “ Encumbrance ” means any mortgage, lien, security interest, pledge, charge, encumbrance, limitation, preferential right to purchase, consent to assignment, irregularity, burden, or defect.
     “ Excess Costs ” means, in any Computation Period, the excess of Chargeable Costs for that Computation Period over the amount determined by multiplying Assignor’s Net Share of Gas produced during the Computation Period by the Sales Price for that Computation Period. Excess Costs shall bear interest at the Prime Interest Rate from the end of the Computation Period in which such costs were incurred to the date that Assignor recovers such amounts from Trust Proceeds.
     “ Exchange Acreage ” has the meaning set forth in Section 12.02.
     “ Excluded Assets ” means those oil and gas wells and all oil and gas formations, except for the Target Formation, in the lands subject to or covered by the oil and gas leases described on Exhibit C.

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     “ Fair Value ” means, with respect to any portion of the Royalty Interest to be released pursuant to Section 11.02 or 11.03 in connection with a sale or release of any Development Well or Subject Interest, an amount of net proceeds which could reasonably be expected to be obtained from the sale of such portion of the Royalty Interest to a party which is not an Affiliate of either the Assignor or the Trust on an arms’-length negotiated basis, taking into account relevant market conditions and factors existing at the time of any such proposed sale or release, such net proceeds to be determined by deducting the Trust’s proportionate share of sales costs, commissions and brokerage fees, if any (based on the ratio of (i) the fair market value of the portion of the Royalty Interest being released to (ii) the fair market value of the Development Wells and Subject Interests being transferred (including the value of the Royalty Interest being released).
     “ Farmout Agreements ” means any farmout agreement, participation agreement, exploration agreement, development agreement or any similar agreement.
     “ Force Majeure ” is defined in Section 13.02.
     “ Gas ” means natural gas and all other gaseous hydrocarbons, excluding condensate, butane, and other liquid and liquefiable components that are actually removed from the Gas stream by separation, processing, or other means. Any oil, gas or mineral lease or other similar instrument that covers Gas shall be considered a “Gas lease” hereunder, even if it also covers other substances.
     “ Governmental Authority ” means the United States of America, any state, commonwealth, territory, or possession thereof, and any political subdivision of any of the foregoing, including courts, departments, commissions, boards, bureaus, agencies, and other instrumentalities.
     “ Greene County Gathering System ” means Assignor’s Greene County, Pennsylvania Gathering System.
     “ Investor Conveyance ” means that certain Private Investor Overriding Royalty Interest Conveyance by and between the Private Investors and the Trust dated effective as of the Effective Time.
     “ Legal Requirement ” means any law, statute, ordinance, decree, requirement, order, judgment, rule, or regulation of, including the terms of any license or permit issued by, any Governmental Authority.
     “ MBtu ” means one thousand British thermal units, and “ MMBtu ” means one million British thermal units.
     “ Mcf ” means one thousand cubic feet of Gas, and “ MMcf ” means one million cubic feet of Gas, measured and expressed in each case at the same temperature, pressure, and other conditions of measurement (a) provided in any contract for the purchase of Gas from the Subject Interest or, (b) if no such contract exists, provided by applicable state law for purposes of reporting production to Governmental Authorities.

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     “ Mortgages ” means, collectively, (i) the Drilling Support Lien (as such term is defined in the Development Agreement) and (ii) that certain Mortgage, Assignment, Security Agreement, Fixture Filing and Financing Statement, granted by Assignor in favor of the Trust dated as of even date herewith, which agreement grants the Trust a lien and security interest on the Royalty Interest (as such term is defined in each of the Conveyances).
     “ Net Revenue Interest ” means the interest, stated as a decimal fraction, in Subject Gas production from a Development Well that Assignor is entitled to take with respect to Assignor’s Subject Interest in that Development Well and the associated Subject Lands, subject only to the Permitted Production Burdens (treated in each case as a reduction in interest rather than as a cost).
     “ Non-Affiliate ” means, for any specified Person, any other Person that is not an Affiliate of the specified Person.
     “ Notice ” is defined in Section 14.01.
     “ Party ,” when capitalized, refers to Assignor or Trustee. “ Parties ,” when capitalized, refers to Assignor and Trustee.
     “ Permitted Encumbrances ” means:
     (a) the Permitted Production Burdens;
     (b) contractual obligations arising under operating agreements, Farmout Agreements, production sales contracts, leases, assignments, and other similar agreements that may affect the properties or their titles;
     (c) pooling and unitization agreements, declarations, orders, or Legal Requirements to secure payment of amounts not yet delinquent;
     (d) liens that arise in the normal course of operations, such as liens for unpaid taxes, statutory liens securing unpaid suppliers and contractors, and contractual liens under operating agreements, in any case, that are not yet delinquent or, if delinquent, are being contested in good faith in the normal course of business;
     (e) conventional rights of reassignment that obligate Assignor to reassign all or part of any Subject Interest to a Third Person if Assignor intends to release or abandon such interest before the expiration of the primary term or other termination of such interest;
     (f) easements, rights-of-way, servitudes, permits, surface leases, surface use restrictions, and other surface uses and impediments on, over, or in respect of the Subject Interests that are not such as to interfere materially with the operation, value, or use of the Subject Interests;
     (g) rights reserved to or vested in any Governmental Authority to control or regulate any Subject Interests in any manner, and all applicable Legal Requirements;

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     (h) the terms of the instruments creating the Subject Interests and Subject Lands;
     (i) any Prior Reversionary Interests that affect the Subject Interests; and
     (j) the Mortgages,
provided that such aforementioned encumbrances are of the type and nature customary in the oil and gas industry, as conducted in the Appalachian Basin, and do not, alone or in the aggregate, materially and adversely affect the operation, value, or use of any Subject Interest, and all to the extent, and for so long as, such Permitted Encumbrances are otherwise valid and enforceable against the Subject Interests, without recognizing, expressly or by implication, any rights or interests in any Third Person or Governmental Authority that such Third Person or Governmental Authority does not otherwise lawfully possess.
     “ Permitted Production Burdens ” means (a) all Production Burdens that affected the Subject Interests when they were acquired by Assignor and (b) all Production Burdens that were created by Assignor; in each case, provided that the total Permitted Production Burdens for any Development Well shall not exceed twelve and one half percent (12.5%) (proportionately reduced to Assignor’s Working Interest in such Development Well).
     “ Perpetual PDP Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (PDP) by and between Assignor and the Trust dated effective as of the Effective Time.
     “ Person ” means any natural person, corporation, partnership, trust, estate, or other entity, organization, or association.
     “ Private Investors ” means the individuals and entities listed on Exhibit D attached hereto.
     “ Post Production Cost Charge ” is defined in Section 3.02(c).
     “ Prime Interest Rate ” is defined in Section 5.02(b).
     “ Prior Reversionary Interest ” means any contract, agreement, Farmout Agreement, lease, deed, conveyance or operating agreement that exists as of the Effective Time, that by the terms thereof requires a Person to convey a part of the Subject Interest to another Person or to permanently cease production of any Development Well including, any operating agreements, oil and gas leases, coal leases, and other similar agreements or instruments affecting the Subject Interests.
     “ Production Burdens ” means, with respect to any Subject Lands, Subject Interests, or Subject Gas, all royalty interests, overriding royalty interests, production payments, net profits interests, Prior Reversionary Interests and other similar interests that constitute a burden on, are measured by, or are payable out of the production of Gas or the proceeds realized from the sale or other disposition thereof.
     “ Quarterly Payment Amount ” is defined in Section 5.01(a).

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     “ Quarterly Payment Date ” is defined in Section 5.01(c).
     “ Reasonably Prudent Operator Standard ” means the standard of conduct of a reasonably prudent oil and gas operator in the AMI Area under the same or similar circumstances, acting with respect to its own property and disregarding the existence of the Royalty Interest as a burden on such property.
     “ Reserved Amounts ” means those amounts set aside from Trust Proceeds by Assignor in accordance with the provisions of Section 5.04 below.
     “ Royalty Interest ” is defined in Section 1.01.
     “ Sales Price ” means, for any Computation Period, the sale price received by Assignor per Mcf or per MMBtu for Trust Gas determined in accordance with the following provisions:
     (a) “sale” refers to any sale, exchange, or other disposition of Trust Gas for value, the value of such Gas that is exchanged or otherwise disposed of for valuable consideration being the sales price that Assignor receives for any such Gas sold pursuant to Section 4.01 for any such Gas.
     (b) amounts of money not paid to Assignor when due by any purchaser of Trust Gas (for example, Taxes or other amounts withheld or deducted by any such purchaser) shall not be included within the Sales Price until actually received by, or credited to the account of, Assignor;
     (c) advance payments and prepayments for future deliveries of Trust Gas shall be included within the Sales Price, without interest, when that volume of Gas subject to the advance payments or prepayments is actually produced;
     (d) loan proceeds received by Assignor shall not be treated as a component of the applicable Sales Price; and
     (e) if a controversy or possible controversy exists, whether by reason of any statute, order, decree, rule, regulation, contract, or otherwise, between Assignor and any purchaser of Trust Gas or any other Person, about the correct Sales Price of any Trust Gas, about deductions from the Sales Price, about Assignor’s right to receive the proceeds of any sale of Trust Gas, or about any other matter, then monies withheld by the purchaser or deposited by it with an escrow agent or if Assignor receives any monies and promptly deposits such monies with a Third Person escrow agent as a result of such controversy, such monies shall not be included within the Sales Price until received by or returned to Assignor, as applicable.
     “ Subject Gas ” means Gas in and under, and that may be produced, saved, and sold from a Development Well, insofar and only insofar as such Gas is produced from the Target Formation, subject to the following:
     (a) “Subject Gas” excludes Gas that is:

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     (i) lost in the production, gathering, or marketing of Gas;
     (ii) used (A) in conformity with ordinary and prudent operations on the Subject Lands, including drilling and production operations with respect to such Development Well or (B) in connection with plant operations (whether on or off the Subject Lands) for processing or compressing the Subject Gas;
     (iii) taken by a Third Person to recover costs, or some multiple of costs, paid or incurred by that Third Person under any operating agreement, unit agreement, or other agreement in connection with nonconsent operations conducted (or participated in) by that Third Person;
     (iv) retained by a Third Person for gathering, transportation, processing or marketing services related to the Subject Gas in lieu of cash payment for such services, to the extent such agreement is permitted under this Conveyance; and
     (v) in excess of the percentage attributable to Assignor’s Net Share of Gas taken by Assignor to recover costs, or some multiple of costs, paid or incurred by Assignor under any operating agreement, unit agreement, or other agreement in connection with nonconsent operations conducted (or participated in) by Assignor.
     (b) “Subject Gas” includes Gas, not otherwise excluded above, that is sold or exchanged for other Gas, or otherwise disposed of for valuable consideration.
     “ Subject Interests ” means Assignor’s undivided interests in the Subject Lands, whether as lessee under Gas leases, as an owner of the Subject Gas (or the right to extract such Gas), or otherwise, by virtue of which undivided interests Assignor has the right to conduct exploration, drilling, development, and Gas production operations on the Subject Lands, or to cause such operations to be conducted, or to participate in such operations by paying and bearing all or any part of the costs, risks, and liabilities of such operations, to drill, test, complete, equip, operate, and produce Development Wells to exploit the Gas. “Subject Interests” includes all extensions of, and all renewal Gas leases covering, the Subject Lands (or any portion thereof) obtained by Assignor, or any Affiliate thereof, within six (6) months after the expiration or termination of any such Gas lease. “Subject Interests” do not include (a) Assignor’s rights to substances other than Gas; (b) Assignor’s rights to Gas under contracts for the purchase, sale, transportation, storage, processing, or other handling or disposition of Gas; (c) Assignor’s interests in, or rights to Gas with respect to, pipelines, gathering systems, storage facilities, processing facilities, or other equipment or facilities, other than the Development Wells; or (d) any additional, or enlarged interests in the Development Wells, Subject Lands or Subject Gas, except those reflected in Exhibit A , subject to Section 12.01, extensions and renewals covered by the preceding sentence. “Subject Interests” may be owned or claimed by Assignor by virtue of grants or reservations in deeds, Gas leases, or other instruments, or by virtue of operating agreements, pooling or unitization agreements or orders, or other kinds of instruments, agreements, or documents, legal or equitable, recorded or unrecorded. The Subject Interests are subject to the Permitted Encumbrances.

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     “ Subject Lands ” means the lands subject to or covered by the oil and gas leases described in Exhibit A, insofar and only insofar as they cover the Target Formation, less and except the Excluded Assets, and subject to the exceptions, exclusions and reservations set forth on such Exhibit A, as such Exhibit may be modified pursuant to Section 12.01.
     “ Target Formation ” means what is generally referred to as the Marcellus Shale formation and for purposes of this Conveyance is defined as that formation located from the bottom of the Tully Formation (as seen by the ECA Kemsod #1 Well, API number 37-059-25209), at a depth of 7,881 feet, to the top of the Huntersville Chert Formation (as seen by the ECA Kemsod #1 Well, API number 37-059-25209), at a depth of 8,204 feet.
     “ Term PDP Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (PDP) by and between Assignor and Eastern Marketing Corporation dated effective as of the Effective Time.
     “ Term PUD Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (PUD) by and between Assignor and Eastern Marketing Corporation dated effective as of the Effective Time.
     “ Taxes ” is defined in Section 3.02(b).
     “ Third Person ” means a Person other than Assignor or Trustee.
     “ Transfer ” including its syntactical variants, means any assignment, sale, transfer, conveyance, or disposition of any property; provided, Transfer as used herein does not include the granting of a security interest in Assignor’s interest in any property including the Subject Interests or Subject Lands.
     “ Trust ” is defined in the Introduction to this Conveyance.
     “ Trust Agreement ” is defined in the Introduction to this Conveyance.
     “ Trust Gas ” is defined in Section 3.01.
     “ Trust Proceeds ” means, for any Computation Period, proceeds received by Assignor for the account of the Trust, as the Trust’s marketing and payment agent and representative, from the sale of Trust Gas under this Conveyance less Chargeable Costs calculated in accordance with Section 3.03.
     “ Trustee ” is defined in the Introduction to this Conveyance and also includes all successor and substitute trustees under the Trust Agreement.
     “ Working Interest ” means with respect to any Development Well, the interest, stated as a decimal fraction, in and to such Development Well that is burdened with the obligation to bear and pay costs and expenses of maintenance, development and operations on or in connection with such Development Well.

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ARTICLE III
CALCULATION OF TRUST GAS
      Section 3.01 Definition . “ Trust Gas ” is that volume of Gas which the Trust is entitled to receive in any Computation Period under this Conveyance, calculated in accordance with the following formula:
     With respect to any Development Well:
Twenty-Five Percent (25%) X (Assignor’s Net Share of Gas produced during that Computation Period).
For purposes of calculating Trust Gas hereunder, if, during any Computation Period, Assignor is unable to determine the precise volume of Gas produced, sold and attributable to Assignor’s Net Share of Gas, then Assignor shall, in good faith and in accordance with the Reasonably Prudent Operator Standard, estimate the volume of such Gas produced, sold and attributable to Assignor’s Net Share of Gas for such Computation Period. Assignor shall adjust Assignor’s Net Share of Gas upward or downward, as the case may be, in the next or subsequent Computation Periods to reflect the difference between the estimated volume and the actual amount of Gas produced, sold and attributable to Assignor’s Net Share of Gas in the Computation Period for which such estimate was made.
      Section 3.02 Chargeable Costs .
          (a) Definition . Subject to Section 5.04 hereof, for each Computation Period, “ Chargeable Costs ” means the sum of (i) Taxes, (ii) the Post Production Cost Charge and (iii) Excess Costs from prior Computation Periods that (in each case) are actually paid or are deemed to have been paid by Assignor during that Computation Period or paid or deemed to have been paid by Assignor during a prior Computation Period and not included in any prior Computation Period’s Chargeable Costs. All costs associated with or paid or incurred in connection with the initial drilling, testing, completing, and equipping for production of the Development Wells shall be borne solely by Assignor and shall not be included as Chargeable Costs.
          (b) Taxes . “ Taxes ” means general property, ad valorem, production, severance, sales, gathering, windfall profit, excise, and other taxes, except income taxes, assessed or levied on or in connection with the Subject Interests, the Royalty Interest, this Conveyance, production of Subject Gas, Assignor’s Net Share of Gas, the Trust Gas (or the proceeds from the sale thereof), or facilities or equipment on the Subject Lands that are used for the production, dehydration, treatment, processing, gathering, or transportation of Subject Gas, or against Assignor as owner of the Subject Interests or paid by Assignor on behalf of behalf of the Trust as owner of this Royalty Interest.
          (c) Post Production Cost Charge . “ Post Production Cost Charge ” means those costs incurred by Assignor (including, internal costs and Third Person costs) to gather, transport, compress, process, treat, dehydrate and market the Subject Gas, including any costs as may be required to make merchantable and to deliver such Gas to market; provided, any internal costs of Assignor and its Affiliates that are part of the Post Production Cost Charge shall not materially exceed the costs prevailing in the area where the Subject Gas is being produced for

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similar services; and provided, further, with respect to marketing costs, only Non-Affiliate marketing fees and costs shall be included, and marketing costs of Assignor and its Affiliates with respect to any Subject Gas will be specifically excluded from the Post Production Cost Charge; and provided, further, until the Drilling Obligation Completion Date, any such internal costs of Assignor and its Affiliates (excluding costs for any fuel that is used in the compression process, including equivalent electricity charges in instances where electric compressors are used) associated with the Greene County Gathering System shall be limited to $0.52 per MMBtu of Trust Gas gathered. Any costs, fees or expenses that are properly charged or allocated to the Trust Gas pursuant to another provision of this Conveyance (including, as provided for in the definition of Subject Gas) shall not be included as part of the Post Production Cost Charge.
          (d) Operating and Drilling Costs . All costs associated with or paid or incurred in connection with the drilling, testing, completing, developing and operating the Development Wells or associated with the Subject Interests other than Taxes and Post Production Cost Charges shall be borne solely by Assignor and shall not be included as Chargeable Costs.
      Section 3.03 Trust Proceeds . “ Trust Proceeds ” means the volume of Trust Gas (on an Mcf basis or MMBtu basis, as applicable) for the applicable Computation Period multiplied by the relevant Sales Price less the Chargeable Costs associated with such Trust Gas for the applicable Computation Period.
ARTICLE IV
MARKETING OF TRUST GAS
      Section 4.01 Rights and Duties Regarding Sale of Trust Gas . Assignor shall market or shall cause to be marketed Assignor’s Net Share of Gas (including the Trust Gas) in good faith and in accordance with the Reasonably Prudent Operator Standard and Section 4.02(d). Assignor shall use its reasonable efforts in connection with any sale of Assignor’s Net Share of Gas (including the Trust Gas) to obtain, as soon as reasonably practicable, full payment for such Gas; provided, however, that it shall not be considered a breach of Assignor’s marketing duty or standard of conduct for Assignor to market such Gas to an Affiliate of Assignor, so long as Assignor does not market such Gas at a volume-weighted average price lower than the volume-weighted average price upon which Assignor pays royalties to the owners of the other royalty interests in the Subject Gas, save and excepting Chargeable Costs provided for in Article III hereof.
      Section 4.02 Trust’s Agent and Representative .
          (a) Appointment . Trustee on behalf of the Trust appoints Assignor as the Trust’s agent and representative to market and deliver or cause to be marketed and delivered all Trust Gas and to collect and receive all payments therefrom under any gas purchase agreement or contract without deduction (except to the extent Chargeable Costs are deducted for any Computation Period). The appointment of Assignor as the Trust’s agent and representative for such purpose is a material item of consideration to the Parties in connection with the execution and delivery of this Conveyance. Trustee on behalf of the Trust may not remove Assignor from

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office as the Trust’s agent and representative, except for cause upon a material breach by Assignor of its duties to the Trust under this Conveyance.
          (b) Duties and Powers . As the Trust’s agent and representative, Assignor shall receive all payments for the sale of the Trust Gas and account to Trustee on behalf of the Trust, receive and make all communications with the purchaser of such Gas, and otherwise act and speak for the Trust in connection with the sale of the Trust Gas. Third Persons may rely conclusively on the authority of Assignor to market the Trust Gas, and with respect to Third Persons, the Trust shall be conclusively bound by the acts of Assignor in connection with the sale of Trust Gas. It shall not be necessary for Trustee on behalf of the Trust to join Assignor in the execution of any division order, transfer order, or other instrument, agreement, or document relating to the sale of the Trust Gas. Third Persons may pay all Trust Proceeds for the sale of such Gas directly to Assignor, without the necessity of any joinder by or consent of Trustee on behalf of the Trust or any inquiry into the use or disposition of such proceeds by Assignor.
          (c) Prohibited Acts . Assignor may not act for or bind the Trust on any matter, except the marketing and delivery of the Trust Gas under this Article IV.
          (d) Standard of Conduct . In exercising its powers and performing its duties as the Trust’s agent and representative, Assignor shall act in good faith and in accordance with the Reasonably Prudent Operator Standard. It shall not be a violation of such standard of conduct for Assignor (i) to sell Assignor’s Net Share of Gas or the Trust Gas to an Affiliate pursuant to any gas purchase agreement or contract, or (ii) to delegate some or all of Assignor’s duties as the Trust’s agent and representative to its Affiliates (so long as such Affiliates perform in good faith and in accordance with the Reasonably Prudent Operator Standard), with Assignor remaining liable to the Trust for the performance of such Affiliates.
          (e) Termination of Authority . Assignor may not resign as the Trust’s agent and representative without the prior written consent of the Trustee on behalf of the Trust, except that Assignor may resign as the Trust’s agent and representative without such consent with respect to any Subject Interests assigned, sold, transferred, or conveyed by Assignor in accordance with the terms of this Conveyance. If such sale is made subject to the Royalty Interest, Assignor must cause the purchaser to assume the duties of the Trust’s agent and representative with respect to the Subject Interests acquired by that purchaser and to be bound by the provisions of this Article IV.
      Section 4.03 Delivery of Subject Gas . Assignor (whether or not it is serving as the Trust’s agent and representative) shall deliver or cause to be delivered Assignor’s Net Share of Gas (including Trust Gas) to the purchasers thereof into the pipelines to which the Development Wells producing such Gas are connected.
      Section 4.04 Processing . Assignor may process Assignor’s Net Share of Gas (including Trust Gas) to remove liquid and liquefiable hydrocarbons and may commit any of the Subject Interests (including the Royalty Interest attributable thereto) to an agreement for processing minerals (pursuant to which, for example, the plant owner or operator receives a portion of the Subject Gas or plant products therefrom or proceeds of the sale thereof as a fee for processing), so long as Assignor enters into such processing arrangements in good faith and in

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accordance with the Reasonably Prudent Operator Standard. The Trust shall be bound by such arrangements, shall permit Assignor’s Net Share of Gas (including the Trust Gas) to be processed by Assignor or its contractor, and shall have no right to any liquid or liquefiable hydrocarbons obtained by such processor or to the proceeds from the sale thereof. Trustee shall not, however, be personally liable for any costs or risks associated with such processing operations, but the Trust shall indirectly suffer the Btu reduction and volume reductions associated with processing through corresponding reductions in the Btu content and volumes of the Trust Gas.
ARTICLE V
PAYMENT
      Section 5.01 Obligation to Pay .
          (a) Quarterly Payment Amount . On each Quarterly Payment Date, Assignor shall prepare, in good faith, an estimate of the cash to be paid to the Trust from (A) all of the proceeds (including any interest earned thereon and payable to the Trust pursuant to Section 5.01(b) or Section 5.01(e)) to be paid to the Trust from the sale of Trust Gas produced during such Computation Period; plus (B) all of the proceeds (including any interest earned thereon and payable to the Trust pursuant to Section 5.01(b) or Section 5.01(e)) to be paid to the Trust from the sale of Trust Gas, if any, produced during any prior Computation Periods, to the extent not previously taken into account for purposes of determining a Quarterly Payment Amount for any prior Computation Periods, as such sum may be (x) increased or decreased as a result of any adjustments to the estimates that were previously made pursuant to this Section 5.01(a) for any prior Computation Periods that are necessary to accurately report the proceeds from the sale of Trust Gas for such prior Computation Periods(y) increased by the amount of any damages payable to the Trustee under Section 1.03(b) during the most recently completed Computation Period prior to such Quarterly Payment Date and (z) decreased by any Reserved Amounts as provided in Section 5.04 below (“ Quarterly Payment Amount ”).
          (b) The Obligation . After each Computation Period and on or before the Quarterly Payment Date for that Computation Period, Assignor shall tender to Trustee the Quarterly Payment Amount with respect to the applicable Computation Period. With respect to the final Computation Period, Assignor shall tender to the Trustee all unexpended Reserved Amounts (together with any interest accrued thereon).
          (c) Quarterly Payment Date . “ Quarterly Payment Date ” for each Computation Period means the thirtieth (30 th ) day after the end of such Computation Period. If such day is not a Business Day, the Quarterly Payment Date shall be the next Business Day.
          (d) No Segregated Account . All amounts received by Assignor from the sale of Assignor’s Net Share of Gas and the Trust Gas, as applicable, for any Computation Period shall be held by Assignor in one of its general bank accounts and Assignor will not be required to maintain a segregated account for such funds.
          (e) Disputed Proceeds . If Assignor receives any amounts of money from the sale of Trust Gas that is subject to controversy or, in the reasonable opinion of Assignor, possible

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controversy, Assignor shall promptly deposit the money with a Third Person escrow agent in a segregated interest-bearing account. Such amount shall not be treated as a portion of Trust Proceeds so long as it remains with such escrow agent, but shall be treated as a portion of the Trust Proceeds, along with the accrued interest, when received from such escrow agent and paid over to Trustee.
      Section 5.02 Interest on Past Due Payments .
          (a) Obligation to Pay . Any Trust Proceeds or other amounts of money not paid by Assignor to Trustee when due shall bear, and Assignor will pay, interest at the Prime Interest Rate on the overdue amount commencing on the sixth (6 th ) day after such due date until such amount is paid.
          (b) Definition . “ Prime Interest Rate ” means the lesser of (i) the rate of interest per annum publicly announced from time to time by The Bank of New York Mellon Trust Company, N.A. as its “prime rate” in effect at its principal office in New York City (each change in the Prime Rate to be effective on the date such change is publicly announced), with the understanding that such bank’s “prime rate” may be one of several base rates, may serve as a basis upon which effective rates are from time to time calculated for loans making reference thereto, and may not be the lowest of such bank’s base rates or (ii) the maximum rate of interest permitted under applicable Legal Requirement.
      Section 5.03 Overpayments and Refunds .
          (a) Overpayments . If Assignor ever pays Trustee more than the amount of money then due and payable to the Trust under this Conveyance, Trustee shall not be obligated to return the overpayment, but Assignor may at any time thereafter deduct from Trust Proceeds and retain for its own account an amount equal to the overpayment.
          (b) Refunds . If Assignor is ever legally obligated to pay any Third Person, including any gas purchaser or Governmental Authority, any refund, interest, penalty, or other amount of money, because any payment of Trust Proceeds received by Assignor for the account of Trustee exceeded, or allegedly exceeded, the amount due or lawful under any applicable contract, Legal Requirement, or other obligation, Assignor may thereafter deduct from Trust Proceeds and retain for its own account an amount equal to such payment.
      Section 5.04 Reserved Amounts . At any time and from time to time under this Conveyance and in accordance with the Reasonably Prudent Operator Standard, Assignor may set aside from Trust Proceeds amounts determined in good faith to economically accrue to a Computation Period with respect to known or anticipated costs or liabilities (the “ Reserved Amounts ”) which may be incurred in future Computation Periods with respect to Taxes assessed or levied with respect to a time period in excess of a calendar quarter. As Reserved Amounts are expended by Assignor to cover applicable Taxes in a Computation Period, Chargeable Costs shall be reduced in such Computation Period by an amount equal to the Reserved Amounts so expended. In the event that Assignor overestimates the cost of any Taxes for which it has set aside Reserved Amounts, the excess amount shall be applied against any other Chargeable Costs (which shall be reduced by an amount equal to such excess Reserved Amounts so expended), or

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paid as Trust Proceeds on the Quarterly Payment Date following the Computation Period in which it is determined that Assignor has set aside excess Reserved Amounts.
ARTICLE VI
RECORDS AND REPORTS
      Section 6.01 Books, Records, and Accounts .
          (a) Obligation to Maintain . Assignor shall maintain true and correct books, records, and accounts of (i) all transactions required or permitted by this Conveyance and (ii) the financial information necessary to effect such transactions, including the financial information needed to calculate each installment of Trust Proceeds.
          (b) Right of Inspection . Trustee or its representative, at the Trust’s expense, may inspect and copy such books, records, and accounts in the offices of Assignor during normal business hours and upon reasonable notice.
      Section 6.02 Statements .
          (a) Quarterly Statements . On each Quarterly Payment Date, Assignor shall deliver to Trustee a statement showing the computation of Trust Gas and Trust Proceeds for the preceding Computation Period.
          (b) Annual Statements . On the first Quarterly Payment Date after the end of each calendar year, such statement shall also show the computation of Trust Proceeds for the preceding calendar year.
          (c) Contents of Statements . Without limiting the generality of the foregoing provisions in this Section 6.02, each statement delivered by Assignor to Trustee pursuant to this Section 6.02 shall state, for the relevant period, (i) the total volumes of Subject Gas produced from the Subject Lands, (ii) the total volumes of the Assignor’s Net Share of Gas, (iii) the total volumes of Trust Gas, (iv) the applicable Sales Price, (v) the amount of Trust Proceeds due and payable for the relevant period and (vi) the amounts of money, if any, due and payable by any purchaser of the Subject Gas or the Trust Gas, the nonpayment of which resulted in the payment to Trustee of less than Trust Proceeds for the relevant period. Notwithstanding the preceding, Assignor shall only be required to provide the preceding information on an aggregate basis.
      Section 6.03 The Trustee’s Exceptions to Quarterly Statements . If Trustee on behalf of the Trust takes exception to any item or items included in any quarterly statement required by Section 6.02, Trustee must notify Assignor in writing within sixty (60) days after Trustee’s receipt of such quarterly statement. Such Notice must set forth in reasonable detail the specific charges complained of and to which exception is taken or the specific credits which should have been made and allowed. Adjustments shall be made for all complaints and exceptions that are justified. Notwithstanding anything to the contrary herein, all matters reflected in Assignor’s statements for the preceding calendar year (or portion thereof) that are not objected to by Trustee in the manner provided by this Section 6.03 shall be deemed correct as rendered by Assignor to Trustee.

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      Section 6.04 Other Information .
          (a) Disclosure . At Trustee’s request, subject to applicable restrictions on disclosure and transfer of information, Assignor shall give Trustee and its designated representatives (on behalf of the Trust) reasonable access in Assignor’s office during normal business hours to all geological, Development Well, and production data in Assignor’s possession or Assignor’s Affiliates’ possession, relating to operations on the Subject Interests.
          (b) Disclaimer of Warranties and Liability . Assignor makes no representations or warranties about the accuracy or completeness of any such data, reports, or studies and shall have no liability to Trustee, the Trust or any other Person resulting from such data, studies, or reports.
          (c) No Attribution . Trustee shall not attribute to Assignor or to the consulting engineers any reports or studies or the contents thereof in any securities filings or reports to owners or holders of interests in the Trust.
          (d) Confidentiality . All information furnished to the Trustee and its designated representatives pursuant to this Section 6.04 is confidential and for the sole benefit of Trustee on behalf of the Trust and shall not be disclosed by Trustee or its designated representatives to any other Person, except to the extent that such information (i) is required in any report, statement or testimony submitted to any Governmental Authority having or claiming to have jurisdiction over Trustee or the Trust or submitted to bank examiners or similar organizations or their successors, (ii) is required in response to any summons or subpoena or in connection with any litigation, (iii) is believed to be required in order to comply with any applicable Legal Requirement to the Trustee or the Trust, (iv) was publicly available or otherwise known to the recipient at the time of disclosure or (v) subsequently becomes publicly available other than through any act or omission of the recipient; provided, however, with respect to the disclosures with respect to items (i), (ii) and (iii) above, Trustee will notify Assignor prior to any such disclosure in order to provide Assignor an opportunity to seek to limit any such required disclosure.
ARTICLE VII
NO LIABILITY OF THE TRUSTEE OR THE TRUST
     Neither the Trustee nor the Trust shall be personally liable or responsible under this Conveyance for any cost, risk, liability, or obligation associated in any way with the ownership or operation of the Subject Lands, the Subject Interests, the Development Wells, or the Subject Gas. The foregoing sentence does not restrict the right of Assignor to deduct Chargeable Costs or Reserved Amounts in calculating the volumes of the Trust Gas or Trust Proceeds.
ARTICLE VIII
OPERATIONS
      Section 8.01 Standards of Conduct . Except as otherwise specifically provided in this Conveyance, Assignor shall (a) operate and maintain the Subject Interests and (b) make elections under each applicable lease, operating agreement, unit agreement, contract for development, and other similar instrument or agreement (including elections concerning

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abandonment of any Development Well or release of any Subject Interest) in good faith and in accordance with the Reasonably Prudent Operator Standard.
      Section 8.02 Abandonment of Properties . Nothing in this Conveyance shall obligate Assignor to continue to operate any Development Well or to operate or maintain in force or attempt to maintain in force any Subject Interest when such Development Well or Subject Interest ceases to produce, or Assignor determines, in accordance with Section 8.01 above, that such Development Well or Subject Interest is not capable of producing Gas in paying quantities. The expiration of a Subject Interest in accordance with the terms and conditions applicable thereto shall not be considered to be a voluntary surrender or abandonment thereof.
      Section 8.03 Insurance . Assignor may, but is not required by this Conveyance to, carry insurance on any Subject Interest or Development Well, or covering any risk with respect thereto. Assignor shall never be liable to the Trustee or the Trust on account of any injury or loss to the Subject Interests or any Development Well, whether insurable or uninsurable, not covered by insurance. If Assignor elects to carry insurance, the premiums shall not be included in Chargeable Costs, and Assignor shall retain all proceeds of such insurance.
ARTICLE IX
POOLING AND UNITIZATION
      Section 9.01 Pooling of Subject Interests . Certain Subject Interests have been, or may have been, heretofore pooled and unitized for the production of Gas. Such Subject Interests are and shall be subject to the terms and provisions of the applicable pooling and unitization agreements, and the Royalty Interest in each pooled or unitized Subject Interest shall apply to and affect only the Gas produced from such units that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreements.
      Section 9.02 Pooling and Unitization .
          (a) Right to Pool . Assignor has the exclusive executive right and power (as between Assignor and the Trustee) to pool or unitize any Subject Interest and to alter, change, amend, or terminate any pooling or unitization agreements heretofore or hereafter entered into, as to all or any part of the Subject Lands, as to any one or more of the formations or horizons, and as to any Gas, upon such terms and provisions as Assignor shall in its sole discretion deem appropriate.
          (b) Effect of Pooling . If and whenever through the exercise of such right and power, or pursuant to any Legal Requirement now existing or hereafter enacted or promulgated, any Subject Interest is pooled or unitized in any manner, the Royalty Interest, insofar as it affects such Subject Interest, shall also be pooled and unitized, and such Royalty Interest in such Subject Interest shall apply to and affect only the Gas production that accrues to such Subject Interest under and by virtue of the applicable pooling and unitization agreement or order. It shall not be necessary for the Trustee to agree to, consent to, ratify, confirm or adopt any exercise of pooling or unitization of any Subject Interest by Assignor.

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ARTICLE X
GOVERNMENT REGULATION
      Section 10.01 Legal Requirements . All obligations of Assignor under this Conveyance are, and shall be, subject to all applicable Legal Requirements and the instruments, documents, and agreements creating the Subject Interests.
      Section 10.02 Filings . Assignor shall use its reasonable discretion in making filings for itself and on behalf of the Trust with any Governmental Authority having jurisdiction with respect to matters affecting the Subject Interests, the Subject Lands, or the Subject Gas.
ARTICLE XI
ASSIGNMENT AND SALE OF SUBJECT INTERESTS
      Section 11.01 Assignment by Assignor Subject to Royalty Interest .
          (a) Right to Sell . Subject to Section 11.05, Assignor may from time to time Transfer, mortgage, or pledge its interest in the Development Wells, the Subject Interests, or any part thereof or undivided interest therein, subject to the Royalty Interest and this Conveyance. Assignor shall cause the assignee, purchaser, transferee, grantee, mortgagee, or pledgee of any such transaction to take the affected Subject Interests subject to the Royalty Interest and this Conveyance and, from and after the actual date of any such Transfer, to assume Assignor’s obligations under this Conveyance with respect to such Subject Interests.
          (b) Effect of Sale . From and after the actual date of any such Transfer by Assignor, Assignor shall be relieved of all obligations, requirements, and responsibilities arising under this Conveyance with respect to the Subject Interests Transferred, except for those that accrued prior to such date.
          (c) Allocation of Consideration . Trustee is not entitled to receive any share of the sales proceeds received by Assignor in any transaction permitted by this Section 11.01.
          (d) Separate Interest . Effective on the effective date of any Transfer of any Subject Interest subject to this Section 11.01, Trust Gas and Trust Proceeds shall thereafter be computed separately with respect to such Subject Interests, and the assignee, buyer, transferee, or grantee of such Subject Interests shall thereafter serve as the Trust’s agent and representative under Article IV with respect to such interests and shall pay all corresponding Trust Proceeds directly to Trustee.
      Section 11.02 Sale and Release of Properties .
          (a) Transfer . Subject to Section 11.05, Assignor may from time to time, Transfer the Development Wells, the Subject Interests, or any part thereof or undivided interest therein, free of the Royalty Interest and this Conveyance provided that the aggregate Fair Value of all Royalty Interests released with respect to the Assignee Conveyances during any twelve (12) month period shall not exceed $5,000,000 or as provided for in Section 12.02.

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          (b) Payments . In connection with any Transfer pursuant to this Section 11.02, Assignor shall remit to the Trust an amount equal to the Fair Value of the Royalty Interest being released. Assignor shall make such payment to the Trust on the Quarterly Payment Date for the Computation Period in which Assignor receives the payment with respect to any such Transfer of the Subject Interest.
          (c) Release . In connection with any Transfer provided for in Section 11.02(a), Trustee on behalf of the Trust shall, on request, execute, acknowledge, and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that releases the Royalty Interest with respect to the Development Well and the related Subject Interests and Subject Lands being Transferred.
          (d) Effect of Sale . From and after the actual date of any such Transfer by Assignor, Assignor and any assignee, purchaser, transferee or grantee of such Subject Interest shall be relieved of all obligations, requirements, and responsibilities arising under the Royalty Interest or this Conveyance with respect to the Development Well or Subject Interests Transferred, except for those that accrued prior to such date.
      Section 11.03 Release of Other Properties .
          (a) Prior Reversionary Interests . In the event that any Person notifies Assignor that, pursuant to a Prior Reversionary Interest, Assignor is required to convey any of the Subject Interests to such Person or cease production from any Development Well, Assignor may provide such conveyance with respect to such Subject Interest or permanently cease Production from any such Development Well.
          (b) Payments . In the event that Assignor receives compensation pursuant to any Prior Reversionary Interest in connection with any conveyance or permanent cessation of production from any Development Well, Assignor shall remit to the Trust an amount equal to the product of (x) such amount actually received by Assignor with respect to such reconveyance or permanent cessation of production and (y) a fraction the numerator of which is (A) the Fair Value of the Royalty Interest released and the denominator of which is (B) the Fair Value of the Subject Interest that is being released. Assignor shall make such payment to the Trust on the Quarterly Payment Date for the Computation Period in which Assignor receives such payment.
          (c) Release for Prior Reversionary Interests . In connection with any conveyance or permanent cessation of production provided for in Section 11.03(a) above, Trustee on behalf of the Trust shall, on request, execute, acknowledge, and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that releases the Royalty Interest and this Conveyance with respect to any such Development Well or Subject Interests.
          (d) Effect of Prior Reversionary Interests . From and after the actual date of any conveyance or permanent cessation of production provided for in Section 11.03(a), Assignor and any assignee, purchaser, transferee or grantee of such Subject Interest shall be relieved of all obligations, requirements, and responsibilities arising under the Royalty Interest or this Conveyance with respect to the Subject Interests Transferred, except for those that accrued prior to such date.

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      Section 11.04 Farmouts .
          (a) Farmout . Assignor may from time to time enter into Farmout Agreements with Third Persons with respect to the Subject Interests. In the event that Assignor enters into any Farmout Agreement with a Third Person, the Royalty Interest and this Conveyance shall only burden Assignor’s retained interest in the Subject Interest after giving effect to any interest in the Subject Interest that a counterparty to the Farmout Agreement may earn under such Farmout Agreement. Only the Assignor’s retained interest in the Subject Interest will count towards the Assignor’s obligation to drill Development Wells under the Development Agreement.
          (b) Release . In connection with Assignor entering into any Farmout Agreement, Trustee on behalf of the Trust shall, upon request of Assignor, execute, acknowledge, and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that releases the Royalty Interest and this Conveyance with respect to the Subject Interests being transferred pursuant to such Farmout Agreement; provided, the Royalty Interest shall still burden the Subject Interest retained by Assignor.
Section 11.05 Transfer of Subject Lands . Except as provided for in Section 12.02, Assignor will not Transfer any Development Well or any of the Subject Interests comprising a part of the Subject Lands pursuant to Sections 11.01 and 11.02 prior to the Drilling Obligation Completion Date.
      Section 11.06 Change in Ownership .
          (a) Obligation to Give Notice . No change of ownership or of the right to receive payment of the Royalty Interest, or of any part thereof, however accomplished, shall bind Assignor until notice thereof is furnished to Assignor by the Person claiming the benefit thereof, and then only with respect to payments made after such Notice is furnished.
          (b) Notice of Sale . Notice of sale, transfer, conveyance, or assignment shall consist of a certified copy of the recorded instrument accomplishing the same.
          (c) Notice of Other Changes of Ownership . Notice of change of ownership or of the right to receive payment accomplished in any other manner ( e.g. , by dissolution of the Trust) shall consist of certified copies of recorded documents and complete proceedings legally binding and conclusive of the rights of all Persons.
          (d) Effect of Lack of Notice . Until such Notice accompanied by such documentation is furnished to Assignor in the manner provided above, Assignor may, at Assignor’s election, either (i) continue to pay or tender all sums payable on the Royalty Interest in the same manner provided in this Conveyance, precisely as if no such change in interest or ownership or right to receive payment had occurred or (ii) suspend payment of Trust Proceeds without interest until such documentation is furnished.
          (e) Effect of Nonconforming Notices . The kinds of Notice provided by this Section 11.03(d) shall be exclusive, and no other kind, whether actual or constructive, shall bind Assignor.

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      Section 11.07 One Payee . Assignor shall never be obligated to pay Trust Proceeds to more than one Person. If more than one Person is ever entitled to receive payment of any part of the Trust Proceeds, Assignor may suspend payments of all Trust Proceeds until the concurrent owners or claimants of the Royalty Interest or the right to receive payment of Trust Proceeds appoint one Person in writing to receive all payments of Trust Proceeds on their behalf. Assignor may thereafter conclusively rely upon the authority of that Person to receive payments of Trust Proceeds and shall be under no further duty to inquire into the authority or performance of such Person.
      Section 11.08 Rights of Mortgagee . If Trustee executes a mortgage or deed of trust covering all or part of the Royalty Interest, the mortgagees or trustees therein named or the holders of any obligation secured thereby shall be entitled, to the extent that such mortgage or deed of trust so provides, to exercise the rights, remedies, powers, and privileges conferred upon Trustee by this Conveyance and to give or withhold all consents required to be obtained from Trustee. This Section 11.08 shall not be deemed or construed to impose upon Assignor any obligation or liability undertaken by the Trustee under such mortgage or deed of trust or under the obligation secured thereby.
ARTICLE XII
AMI AREA
      Section 12.01 Additional Leases . In the event that Assignor acquires any additional leases (“ Additional Lease ”) other than the Subject Interests in the AMI Area prior the Drilling Obligation Completion Date, (i) Assignor shall be subject to all of the limitations hereunder and under the Development Agreement with respect to such Additional Leases(s), and (ii), subject to Section 12.03, at Assignor’s option, Assignor and Trustee shall execute, acknowledge, and deliver an instrument that amends this Conveyance so that such Additional Lease will be subject to the Royalty Interest and be part of the Subject Interests and Subject Lands hereunder; provided that in no event shall Assignor extend any well into such Additional Lease(s) unless and until this Conveyance is amended to include such Additional Leases(s) as part of the Subject Interests.
      Section 12.02 Exchange of Subject Lands . Subject to Section 12.03, Assignor may, at its option at any time prior to the Drilling Obligation Completion Date, cause Trustee to execute, acknowledge, and deliver to Assignor a recordable instrument (reasonably acceptable to Assignor) that releases from the Royalty Interest and this Conveyance portions of the Subject Interests in connection with Assignor’s exchange of such Subject Interests for other properties within the AMI, which such other properties will be made subject to the Royalty Interests in this Conveyance (such other properties being hereafter referred to as “ Exchange Acreage ”).
      Section 12.03 Limitations . In no event, however, may any Additional Lease be made subject to the Royalty Interest and this Conveyance pursuant to Section 12.01, or any exchange be effected pursuant to Section 12.02 unless Assignor certifies to the Trust that (a) no Development Well will be spud on the Additional Lease or the Exchange Acreage, (b) the aggregate acreage attributable to all Additional Leases and all Exchange Acreage will not exceed 5% of the Subject Lands as such exist as of the date of this Conveyance, (c) if the Additional Lease and Exchange Acreage were treated as Subject Lands, the portion of the Subject Lands

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that covers and pertains to Subject Gas in, under and that may be produced from all horizontal wells to be drilled by Assignor pursuant to the Drilling Obligation that extend into Additional Leases and Exchange Acreage and that may be retained by the Trust pursuant to Section 1.04 hereof following the Drilling Obligation Completion Date will not constitute more than 5% of the Subject Lands that cover and pertain to Subject Gas in, under and that may be produced from all Development Wells (including horizontal wells that extend into Additional Leases and Exchange Acreage) and that may be retained by the Trust pursuant to Section 1.04 hereof following the Drilling Obligation Completion Date, (d) in the case of an Additional Lease, the reserve profile of such Additional Lease is consistent with reserve profiles of other portions of the Subject Interests that would, but for the acquisition of the Additional Lease, be tapped from a Development Well having the entire length of all of its perforated laterals located within the Subject Interests and (e) in the case of an exchange pursuant to Section 12.02, the reasonably projected quantity of proved undeveloped reserves attributable to the Exchange Acreage does not significantly differ from the reasonably projected quantity of proved undeveloped reserves attributable to the portion of the Subject Interests to be given in exchange therefor.
      Section 12.04 No Drainage . Subsequent to the Drilling Obligation Completion Date, neither Assignor nor any of its Affiliates shall drill any Gas well that will have a perforated segment that will be within five hundred feet (500’) of any perforated interval of any Development Well which produces oil or gas from the Target Formation.
ARTICLE XIII
FORCE MAJEURE
      Section 13.01 Nonperformance . Assignor shall not be responsible to Trustee for any loss or damage to Trustee resulting from any delay in performing or failure to perform any obligation under this Conveyance (other than Assignor’s obligation to make payments of Trust Proceeds to Trustee) to the extent such failure or delay is caused by Force Majeure.
      Section 13.02 Force Majeure . “ Force Majeure ” means any of the following, to the extent they are not caused solely by the breach by Assignor of its duty to perform certain obligations under this Conveyance in accordance with the Reasonably Prudent Operator Standard:
          (a) act of God, fire, lightning, landslide, earthquake, storm, hurricane, hurricane warning, flood, high water, washout, tidal wave, or explosion;
          (b) strike, lockout, or other similar industrial disturbance, act of the public enemy, war, military operation, blockade, insurrection, riot, epidemic, arrest or restraint of Governmental Authority or people, or national emergency;
          (c) the inability of the Assignor to acquire, or the delay on the part of any Third Person (other than an Affiliate of the Assignor) in acquiring, materials, supplies, machinery, equipment, servitudes, right-of-way grants, easements, permits, or licenses, or approvals or authorizations by regulatory bodies needed to enable such Party to perform hereunder;

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          (d) any breakage of or accident to machinery, equipment, or lines of pipe, the repair, maintenance, improvement, replacement, alteration to a plant or line of pipe or related facility, the testing of machinery, equipment or line of pipe, or the freezing of a line of pipe;
          (e) any Legal Requirement or the affected Party’s compliance therewith; or
          (f) any other cause, whether similar or dissimilar to the causes enumerated in (a) through (e) above, not reasonably within the control of Assignor.
      Section 13.03 Force Majeure Notice . Assignor will give Trustee a Notice of each Force Majeure as soon as reasonably practicable after the occurrence of the Force Majeure.
      Section 13.04 Remedy . Assignor will use its reasonable efforts to remedy each Force Majeure and resume full performance under this Conveyance as soon as reasonably practicable, except that the settlement of strikes, lockouts, or other labor disputes shall be entirely within the discretion of Assignor.
ARTICLE XIV
NOTICE
      Section 14.01 Definition . “ Notice ” means any notice, advice, invoice, demand, or other communication required or permitted by this Conveyance.
      Section 14.02 Written Notice . Except as otherwise provided by this Conveyance, each Notice shall be in writing.
      Section 14.03 Methods of Giving Notice . Notice may be given by any reasonable means, including telecopier, hand delivery, overnight courier, and United States mail.
      Section 14.04 Charges . All Notices shall be properly addressed to the recipient, with all postage and other charges being paid by the Party giving Notice.
      Section 14.05 Effective Date . Notice shall be effective when actually received by the Party being notified.
      Section 14.06 Addresses . The addresses of the Parties for purposes of Notice are the addresses in the Introduction to this Conveyance.
      Section 14.07 Change of Address . Either Party may change its address to another address within the continental United States by giving ten (10) days’ Notice to the other Party.
ARTICLE XV
OTHER PROVISIONS
      Section 15.01 Successors and Assigns . Subject to the limitation and restrictions on the assignment or delegation by the Parties of their rights and interests under this Conveyance, this Conveyance binds and inures to the benefit of Assignor, Trustee, the Trust and their respective successors, assigns, and legal representatives.

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      Section 15.02 Governing Law . WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, THIS CONVEYANCE SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA (EXCLUDING CHOICE OF LAW AND CONFLICT OF LAW RULES).
      Section 15.03 Construction of Conveyance . In construing this Conveyance, the following principles shall be followed:
          (a) no consideration shall be given to the captions of the articles, sections, subsections, or clauses, which are inserted for convenience in locating the provisions of this Conveyance and not as an aid in its construction;
          (b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Conveyance;
          (c) the word “includes” and its syntactical variants mean “includes, but is not limited to” and corresponding syntactical variant expressions;
          (d) a defined term has its defined meaning throughout this Conveyance, regardless of whether it appears before or after the place in this Conveyance where it is defined;
          (e) the plural shall be deemed to include the singular, and vice versa, unless the content otherwise requires; and
          (f) each exhibit, attachment, and schedule to this Conveyance is a part of this Conveyance, but if there is any conflict or inconsistency between the main body of this Conveyance and any exhibit, attachment, or schedule, the provisions of the main body of this Conveyance shall prevail.
      Section 15.04 No Waiver . Failure of either Party to require performance of any provision of this Conveyance shall not affect either Party’s right to require full performance thereof at any time thereafter, and the waiver by either Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.
      Section 15.05 Relationship of Parties . This Conveyance does not create a partnership, mining partnership, joint venture, or relationship of trust or agency (except with respect to Assignor’s agency relationship with respect to those matters set forth in Articles IV and V above) between the Parties.
      Section 15.06 Proportionate Reduction . In the event of failure or deficiency in title to any Development Well or Subject Interest (other than burdens in excess of twelve and one half percent (12.5%)), the portion of the Subject Gas production attributable thereto shall be reduced in the same proportion that such Development Well or Subject Interest is reduced by such failure or deficiency. Such proportionate reduction of the Royalty Interest shall not limit Trustee’s rights with respect to such reduction under Section 1.03(a).

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      Section 15.07 Further Assurances . Each Party shall execute, acknowledge, and deliver to the other Party all additional instruments and other documents reasonably required to describe more specifically any interests subject hereto, to vest more fully in Trustee the Royalty Interest conveyed (or intended to be conveyed) by this Conveyance, or to evidence or effect any transaction contemplated by this Conveyance. Assignor shall also execute and deliver all additional instruments and other documents reasonably required to transfer interests in state, federal, or Indian lease interests in compliance with applicable Legal Requirements or agreements.
      Section 15.08 The 7:00 A.M. Convention . Except as otherwise provided in this Conveyance, each calendar day, month, quarter, and year shall be deemed to begin at 7:00 a.m. Eastern Time on the stated day or on the first day of the stated month, quarter, or year, and to end at 7:00 a.m. Eastern Time on the next day or on first day of the next month, quarter, or year, respectively.
      Section 15.09 Counterpart Execution . This Conveyance may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all of such counterparts shall constitute for all purposes one Conveyance. As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf. shall be deemed an original hereto.
      Section 15.10 Present and Absolute Conveyance . It is the express intention of Assignor and Trustee that the Royalty Interest is, and shall be construed for all purposes as, a present, fully-vested and absolute conveyance.
      Section 15.11 Limitation of Liability . It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by the Trustee not individually or personally, but solely as Trustee in the exercise of the powers and authority conferred and vested in it and (b) under no circumstances shall the Trustee be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Agreement.
[Remainder of page intentionally left blank.]

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     IN WITNESS WHEREOF, each Party has caused this Conveyance to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Conveyance, to be effective as of the Effective Time.
             
    ENERGY CORPORATION OF
    AMERICA    
 
           
 
  By:   /s/ Donald C. Supcoe     
 
           
    Name: Donald C. Supcoe    
    Title: Senior Vice President    
Signature Page to Perpetual Royalty Interest Conveyance

S-1


 

             
    ECA MARCELLUS TRUST I
 
           
    By: The Bank of New York Mellon Trust
    Company, N.A.
 
           
 
  By:   /s/ Michael J. Ulrich     
 
           
    Name: Michael J. Ulrich
    Title: Authorized Signatory
Prepared by:
Vinson & Elkins LLP
1001 Fannin Street
Suite 2500
Houston, TX 77002-6760
Attention: Thomas Herbert
Signature Page to Perpetual Royalty Interest Conveyance

S-2


 

     
THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 7 th day of July, 2010, before me Julie Ann Kitano, a Notary public, personally appeared Donald C. Supcoe, who acknowledged himself to be the Senior Vice President of Energy Corporation of America, a West Virginia corporation, and that he as such Senior Vice President, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as Senior Vice President.
     In witness whereof, I hereunto set my hand and official seal.
         
  /s/ Julie Ann Kitano      
[SEAL]
       
My Commission Expires: 4-26-2014

 


 

     
THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 7 th day of July, 2010, before me Julie Ann Kitano, a Notary public, personally appeared Michael J. Ulrich, who acknowledged himself to be the authorized signatory of The Bank of New York Mellon Trust Company, N.A., a national banking association and Trustee of ECA Marcellus Trust I and that he as such authorized signatory, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the national banking association by himself as authorized signatory.
     In witness whereof, I hereunto set my hand and official seal.
         
  /s/ Julie Ann Kitano      
[SEAL]
       
My Commission Expires: 4-26-2014

 


 

CERTIFICATE OF RESIDENCE
     The Bank of New York Mellon Trust Company, N.A., as grantee and Trustee hereunder, hereby certifies that its precise address is:
919 Congress Avenue
Suite 500
Austin, Texas 78701
ECA MARCELLUS TRUST I
By: The Bank of New York Mellon Trust Company, N.A.
         
By:
  /s/ Michael J. Ulrich     
 
       
Name: Michael J. Ulrich
Title: Authorized Signatory

 


 

Exhibit A
(Attached hereto.)
Exhibit A

 


 

Exhibit B
(Attached hereto.)
Exhibit B

 


 

Exhibit C
(Attached hereto.)
Exhibit C

 


 

Exhibit D
Private Investors
 
W. GASTON CAPERTON, III
CLARK CLEMENT and PAULETTE CLEMENT
MICHAEL J. COCHRAN, JR.
PETER H. COORS
RODNEY D. COX and JENNIFER M. COX
CURTIS FAMILY REVOCABLE TRUST
DORGAN LIVING TRUST
RANDALL C. FARKOSH and SHERRY J. FARKOSH
JOHN S. FISCHER and FAYE E. FISCHER
MICHAEL S. FLETCHER and BOBBETTE FLETCHER
J. MICHAEL FORBES
MARK A. FRY and TAMMY L. FRY
THOMAS R. GOODWIN
DANIEL EARL GRAHAM LIVING TRUST and SALLY QUEREAU GRAHAM LIVING TRUST
CLINT L. HIPKE
DAVID E. JORDAN and CAROL JORDAN
FRANCIS H. McCULLOUGH, III and KATHY L. McCULLOUGH
KATHERINE F. McCULLOUGH TRUST
KRISTIN McCULLOUGH TRUST
LESLEY K. McCULLOUGH TRUST
MEREDITH B. McCULLOUGH TRUST
DENNIS L. McGOWAN and N. GAYLE McGOWAN
ALISON MORK TRUST
JOHN MORK and JULIE MORK
KYLE MORK TRUST
ARTHUR C. NIELSEN, JR. TRUST DATED JULY 14, 2003
GEORGE O’MALLEY
JAY S. PIFER
NIKI D. RANDOLPH
PETER L. REBSTOCK
R. KENT SCHAMP
PETER A. SULLIVAN and WENDY H. SULLIVAN
DONALD C. SUPCOE and PATTY L. SUPCOE
RODNEY A. WINTERS and TAMMY M. WINTERS
Exhibit D

 

Exhibit 10.3
         
COMMONWEALTH OF
  §    
PENNSYLVANIA
  §    
 
  §   KNOW ALL MEN BY THESE PRESENTS THAT:
COUNTY OF GREENE
  §    
 
  §    
ASSIGNMENT OF ROYALTY INTEREST
THIS ASSIGNMENT OF ROYALTY INTEREST (this “ Assignment ”) from each person executing this Assignment on the signature pages hereto under the heading “Assignor” (collectively, “ Assignor ”), to The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the State of New York, with offices at 919 Congress Avenue, Suite 500, Austin, Texas 78701, as trustee (the “ Assignee ”), acting not in its individual capacity but solely as trustee of the ECA Marcellus Trust I (the “ Trust ”) under that certain Amended and Restated Trust Agreement dated as of July 7, 2010, (the “ Trust Agreement ”) is delivered to be effective as of 7:00 a.m., Eastern Time, April 1, 2010 (the “ Effective Time ”). Assignor and Assignee are sometimes referred to herein individually as a “ Party ” and collectively as “ Parties .”
Recitals
Assignor is the owner of a certain Royalty Interest (as defined in the Conveyance) reserved by Assignor and further described in that certain recorded instrument entitled “Assignment and Conveyance” (the “ Conveyance ”), which Conveyance is described in Exhibit A hereto. All persons are referred to the Conveyance for the terms thereof and for specific descriptions of the Royalty Interest.
NOW THEREFORE , for the sum of $100.00 paid and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.   Conveyance . Effective as of the Effective Time, Assignor, for good and valuable consideration in hand paid by Assignee, hereby GRANTS, BARGAINS, SELLS, ASSIGNS, TRANSFERS, CONVEYS, SETS OVER AND DELIVERS, without recourse or warranty (except the special warranty provided below) or representation of any kind, all of its right, title, and interest in and to the Royalty Interest (“ Transferred Interests ”) and any and all of the other rights arising from or under the Conveyance with respect to the Transferred Interests (collectively, the “ Assigned Rights ”).
 
    Assignor hereby binds itself, its successors and assigns to warrant and forever defend the title to the Transferred Interests herein granted, conveyed, assigned, and transferred unto Assignee, its successors and assigns, against the lawful claims and demands of every person whomsoever claiming or to claim the same or any part thereof, by, through or under Assignor, but not otherwise.

 


 

2.   Assumption . Assignee hereby assumes the express obligations of the “Assignee” under Annex I to the Conveyance with respect to the Assigned Interests to the extent such obligations arise under the terms of the Conveyance.
 
3.   Counterparts . This Assignment may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all of such counterparts shall constitute for all purposes one Assignment. As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf shall be deemed an original hereto.
 
4.   Governing Law . WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, THIS ASSIGNMENT SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA (EXCLUDING CHOICE OF LAW AND CONFLICT OF LAW RULES).
 
5.   Limitation of Liability . It is expressly understood and agreed by the parties hereto that (i) this Assignment is executed and delivered by the Assignee not individually or personally, but solely as trustee to the Trust in the exercise of the powers and authority conferred and vested in it and (ii) under no circumstances shall the Assignee be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Assignment.

-2-


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
             
    ASSIGNOR    
 
           
 
           
  By:   /s/ W. Gaston Caperton, III    
 
           
 
      Name:  eW. Gaston Caperton, III    
 
           
Signature Page to Assignment of Royalty Interest

 


 

             
THE STATE OF IL
    §      
 
    §      
COUNTY OF COOK
    §      
     On this, the 22 day of June, 2010, before me Mary Dean Pearson, a Notary public, personally appeared W. Gaston Caperton, III, who executed the foregoing instrument for the purposes therein contained by signing his/her name to such document.
     In witness whereof, I hereunto set my hand and official^seal.
         
     
[SEAL]  /s/ Mary Dean Pearson    
     
     
 
     
My Commission Expires:   (SEAL)  
Signature Page to Assignment of Royalty Interest


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR
 
 
  By:   /s/ Clark Clement    
    Name:   Clark Clement   
       
 
     
  By:   /s/ Paulette Clement    
    Name:   Paulette Clement   
       
 
Signature Page to Assignment of Royalty Interest


 

             
THE STATE OF Texas
    §      
 
    §      
COUNTY OF Fort Bend
    §      
     On this, the 22 nd day June, 2010, before me Jackie L. Hopkins, a Notary public, personally appeared Clark Clement, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
     
[SEAL]  (SEAL) /s/ Jackie L. Hopkins    
     
     
 
     
My Commission Expires: 7-1-12    
             
THE STATE OF Texas
    §      
 
    §      
COUNTY OF Fort Bend
    §      
     On this, the 22 nd day of June, 2010, before me Jackie L. Hopkins, a Notary public, personally appeared Paulette Clement, who executed the foregoing instrument for the purposes therein contained by signing her name to such document.
     In witness whereof I hereunto set my hand and official seal.
         
     
[SEAL]  (SEAL) /s/ Jackie L. Hopkins    
     
     
 
     
My Commission Expires: 7-1-12  
Signature Page to Assignment of Royalty Interest


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR
 
 
  By:   /s/ Michael J. Cochran, Jr.    
    Name:   Michael J. Cochran, Jr.   
       
 
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 24 th day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared Michael J. Cochran, Jr., who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
     
[SEAL] /s/ Antoinette Rutledge    
     
My Commission Expires: March 11, 2012 (GRAPHIC)  
 
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR
 
 
  By:   /s/ Peter H. Coors    
    Name:   Peter H. Coors   
       
 
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF IL
  §
 
  §
COUNTY OF COOK
  §
     On this, the 22 day of June , 2010, before me Mary Dean Pearson, a Notary public, personally appeared Peter H. Coors, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
     
[SEAL]  /s/ Mary Dean Pearson    
     
     
 
My Commission Expires: (STAMP)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR
 
 
  By:   /s/ Rodney D. Cox    
    Name:   Rodney D. Cox   
       
     
  By:   /s/ Jennifer M. Cox    
    Name:   Jennifer M. Cox   
       
 
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 21 ST day of June, 2010, before me Antoinette Rutledge, a Notary public, personally appeared Rodney D. Cox, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
     
[SEAL]  /s/ Antoinette Rutledge    
     
     
 
     
My Commission Expires: March 11, 2012   (STAMP)
     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 21 st day of June, 2010, before me Antoinette Rutledge, a Notary public, personally appeared Jennifer M. Cox, who executed the foregoing instrument for the purposes therein contained by signing her name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
     
[SEAL]  /s/ Antoinette Rutledge    
     
     
 
     
My Commission Expires: March 11, 2012   (STAMP)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR

Curtis Family Revocable Trust
 
 
  By:   /s/ L.B. Curtis    
    Name:   L.B. Curtis   
    Title:   Co-Trustee   
 
     
  By:   /s/ Rose A. Curtis    
    Name:   Rose A. Curtis   
    Title:   Co-Trustee   
 
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 22 nd day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared L.B. Curtis, not in his/her individual capacity but as the trustee of the Curtis Family Revocable Trust, who executed the foregoing instrument for the purposes therein contained by signing his/her name to such document on behalf of the Trust.
     In witness whereof, I hereunto set my hand and official seal.
         
     
[SEAL]  /s/ Antoinette Rutledge    
     
     
 
     
My Commission Expires: March 11, 2012   (STAMP)
     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 22 nd day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared Rose A. Curtis, not in her individual capacity but as the trustee of the Curtis Family Revocable Trust, who executed the foregoing instrument for the purposes therein contained by signing her name to such document on behalf of the Trust.
     In witness whereof, I hereunto set my hand and official seal.
         
     
[SEAL]  /s/ Antoinette Rutledge    
     
     
 
     
My Commission Expires: March 11, 2012   (STAMP)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR

Dorgan Living Trust
 
 
  By:   /s/ J.J. Dorgan    
    Name:   J.J. Dorgan   
    Title:   Trustee   
 
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF IL
  §
 
  §
COUNTY OF COOK
  §
     On this, the 22 day of June, 2010, before me Mary Dean Pearson, a Notary public, personally appeared J.J . Dorgan, not in his/her individual capacity but as the trustee of the Dorgan Living Trust, who executed the foregoing instrument for the purposes therein contained by signing his/her name to such document on behalf of the Trust.
     In witness whereof, I hereunto set my hand and official seal.
     
 
   
[SEAL]
  /s/ Mary Dean Pearson
My Commission Expires: (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR
 
 
  By:   /s/ Randall C. Farkosh    
    Name:   Randall C. Farkosh   
     
  By:   /s/ Sherry J. Farkosh    
    Name:   Sherry J. Farkosh   
       
 
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 21 ST day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared Randall C. Farkosh, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  /s/ Antoinette Rutledge
     
 
   
My Commission Expires: March 11, 2012
  (SEAL)
     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 21 ST day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared Sherry J. Farkosh, who executed the foregoing instrument for the purposes therein contained by signing her name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
 
   
[SEAL]
  /s/ Antoinette Rutledge
     
 
   
My Commission Expires: March 11, 2012
  (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR
 
 
  By:   /s/ John Fischer    
    Name:   John Fischer   
     
  By:   /s/ Faye E. Fischer    
    Name:   Faye E. Fischer   
       
 
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF IL
  §
 
  §
COUNTY OF COOK
  §
     On this, the 22 day of June, 2010, before me Mary Dean Pearson, a Notary public, personally appeared John Fischer, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
 
   
[SEAL]
  /s/ Mary Dean Pearson
My Commission Expires: (SEAL)
     
THE STATE OF IL
  §
 
  §
COUNTY OF COOK
  §
     On this, the 22 day of June , 2010, before me Mary Dean Pearson, a Notary public, personally appeared Faye E. Fischer, who executed the foregoing instrument for the purposes therein contained by signing her name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
 
   
[SEAL]
  /s/ Mary Dean Pearson
My Commission Expires: (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR
 
 
  By:   /s/ Michael S. Fletcher    
    Name:   Michael S. Fletcher   
     
  By:   /s/ Bobbette Fletcher    
    Name:   Bobbette Fletcher   
       
 
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 23 rd day of, June, 2010, before me Julie Ann Kitano, a Notary public, personally appeared Michael S. Fletcher, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
 
   
[SEAL]
  /s/ Julie Ann Kitano
My Commission Expires (SEAL)
     
THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 23 rd day of June , 2010, before me Julie Ann Kitano, a Notary public, personally appeared Bobbette Fletcher, who executed the foregoing instrument for the purposes therein contained by signing her name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
 
   
[SEAL]
  /s/ Julie Ann Kitano
My Commission Expires: (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR
 
 
  By:   /s/ J Michael Forbes    
    Name:   J Michael Forbes   
       
 
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 23 rd day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared J. Michael Forbes, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
     
[SEAL]  /s/ Antoinette Rutledge    
     
     
 
     
My Commission Expires: March 11, 2012   (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR
 
 
  By:   /s/ Mark A. Fry    
    Name:   Mark A. Fry   
     
  By:   /s/ Tammy L. Fry    
    Name:   Tammy L. Fry   
       
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF PENNSYLVANIA
  §
 
  §
COUNTY OF INDIANA
  §
     On this, the 22 day of June, 2010, before me Seth Burdette, a Notary Public, personally appeared Mark A. Fry, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
     
[SEAL]  /s/ Seth Burdette    
     
     
 
     
My Commission Expires: 5/7/12   (SEAL)
     
THE STATE OF PENNSYLVANIA
  §
 
  §
COUNTY OF INDIANA
  §
     On this, the 22 day of June, 2010, before me Seth Burdette, a Notary Public, personally appeared Tammy L. Fry, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
     
[SEAL]  /s/ Seth Burdette    
     
     
 
     
My Commission Expires: 5/7/12   (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR
 
 
  By:   /s/ Thomas R. Goodwin    
    Name:   Thomas R. Goodwin   
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF IL
  §
 
  §
COUNTY OF COOK
  §
     On this, the 22 day of June, 2010, before me Mary Dean Pearson, a Notary Public, personally appeared Thomas R. Goodwin, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
     
[SEAL]  /s/ Mary Dean Pearson    
     
     
 
     
My Commission Expires: (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR

Daniel Earl Graham Living Trust
 
 
  By:   /s/ Daniel Earl Graham    
    Name:   Daniel Earl Graham   
    Title:   Trustee   
 
  Sally Quereau Graham Living Trust
 
 
  By:   /s/ Sally Quereau Graham    
    Name:   Sally Quereau Graham   
    Title:   Trustee   
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 22 nd day of June, 2010, before me Julie Ann Kitaro, a Notary public, personally appeared Daniel Earl Graham, not in his individual capacity but as the trustee of the Daniel Earl Graham Living Trust, who executed the foregoing instrument for the purposes therein contained by signing his name to such document on behalf of the Trust.
     In witness whereof, I hereunto set my hand and official seal.
         
     
[SEAL]  /s/ Julie Ann Kitaro    
     
     
 
     
My Commission Expires: (STAMP)    
     
THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 22 nd day of June, 2010, before me Julie Ann Kitaro, a Notary public, personally appeared Sally Quereau Graham, not in her individual capacity but as the trustee of the Sally Quereau Graham Living Trust, who executed the foregoing instrument for the purposes therein contained by signing her name to such document on behalf of the Trust.
     In witness whereof, I hereunto set my hand and official seal.
         
     
[SEAL]  /s/ Julie Ann Kitaro    
     
     
 
     
My Commission Expires: (STAMP)  
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR
 
 
  By:   /s/ Clint L. Hipke    
    Name:   Clint L. Hipke   
       
 
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF Nebraska
  §
 
  §
COUNTY OF Boyd
  §
     On this, the 22 nd day of June, 2010, before me Tasha Coburn, a Notary public, personally appeared Clint L. Hipke, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
[SEAL]
         
     
(STAMP) /s/ Tasha Coburn    
     
     
 
My Commission Expires: April 20, 2014
Signature Page to Assignment of Royalty Interest


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
             
    ASSIGNOR
 
           
 
  By:   /s/ David E. Jordan    
 
           
 
  Name:   David E. Jordan    
 
           
 
  By:   /s/ Carol Jordan    
 
           
 
  Name:   Carol Jordan    
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 21 ST day of June, 2010, before me Antoinette Rutledge, a Notary public, personally appeared David E. Jordan, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  /s/ Antoinette Rutledge
 
   
 
   
My Commission Expires: March 11, 2012
  [SEAL]
     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 21 ST day of June, 2010, before me Antoinette Rutledge, a Notary public, personally appeared Carol Jordan, who executed the foregoing instrument for the purposes therein contained by signing her name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  /s/ Antoinette Rutledge
 
   
 
   
My Commission Expires: March 11, 2012
  [SEAL]
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
    ASSIGNOR
 
       
 
  By:   /s/ Francis H. McCullough, III
 
       
 
  Name:   Francis H. McCullough, III
 
       
 
  By:   /s/ Kathy L. McCullough
 
       
 
  Name:   Kathy L. McCullough
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 22 nd day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared Francis H. McCullough, III, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  /s/ Antoinette Rutledge
 
   
 
   
My Commission Expires: March 11, 2012
  [SEAL]
     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 22 nd day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared Kathy L. McCullough, who executed the foregoing instrument for the purposes therein contained by signing her name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  /s/ Antoinette Rutledge
 
   
 
   
My Commission Expires: March 11, 2012
  [SEAL]
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
    ASSIGNOR
 
       
    Katherine F. McCullough Trust
 
       
 
  By:   /s/ Kathy L. McCullough
 
       
 
  Name:   Kathy L. McCullough
 
  Title:   Trustee
Signature Page to Assignment of Royalty Interest

 


 

         
THE STATE OF WEST VIRGINIA
  §
§
   
COUNTY OF KANAWHA
  §    
          On this, the 22 nd day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared Kathy L. McCullough, not in her individual capacity but as the trustee of the Katherine F. McCullough Trust, who executed the foregoing instrument for the purposes therein contained by signing her name to such document on behalf of the Trust.
          In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  /s/ Antoinette Rutledge
 
   
 
   
My Commission Expires: March 11, 2012
  (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

          IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
             
    ASSIGNOR    
 
           
    Kristin McCullough Trust    
 
           
 
  By:   /s/ Francis H. McCullough, III    
 
           
 
  Name:   Francis H. McCullough, III    
 
  Title:   Trustee    
Signature Page to Assignment of Royalty Interest

 


 

         
THE STATE OF WEST VIRGINIA
  §    
 
  §    
COUNTY OF KANAWHA
  §    
          On this, the 22 nd day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared Francis H. McCullough, III, not in his individual capacity but as the trustee of the Kristin McCullough Trust, who executed the foregoing instrument for the purposes therein contained by signing his name to such document on behalf of the Trust.
          In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  /s/ Antoinette Rutledge
 
   
 
   
My Commission Expires: March 11, 2012
  (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

          IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
             
    ASSIGNOR    
 
           
    Lesley K. McCullough Trust    
 
           
 
  By:   /s/ Francis H. McCullough, III    
 
           
 
  Name:   Francis H. McCullough, III    
 
  Title:   Trustee    
Signature Page to Assignment of Royalty Interest

 


 

         
THE STATE OF WEST VIRGINIA
  §
§
   
COUNTY OF KANAWHA
  §    
          On this, the 22 nd day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared Francis H. McCullough, III, not in his individual capacity but as the trustee of the Lesley K. McCullough Trust, who executed the foregoing instrument for the purposes therein contained by signing his name to such document on behalf of the Trust.
          In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  /s/ Antoinette Rutledge
 
   
 
   
My Commission Expires: March 11, 2012
  (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
             
    ASSIGNOR    
 
           
    Meredith B. McCullough Trust    
 
           
 
  By:   /s/ Francis H. McCullough, III    
 
           
 
  Name:   Francis H. McCullough, III    
 
  Title:   Trustee    
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 22 nd day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared Francis H. McCullough, III, not in his individual capacity but as the trustee of the Meredith B. McCullough Trust, who executed the foregoing instrument for the purposes therein contained by signing his name to such document on behalf of the Trust.
     In witness whereof, I hereunto set my hand and official seal.
       
[SEAL]   /s/ Antoinette Rutledge  
My Commission Expires: March 11, 2012
[SEAL]
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
             
    ASSIGNOR    
 
           
 
  By:   /s/ Dennis L. McGowan    
 
           
 
  Name:   Dennis L. McGowan    
 
           
 
  By:   /s/ N. Gayle McGowan    
 
           
 
  Name:   N. Gayle McGowan    
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 22 nd day of June, 2010, before me Julie Ann Kitano a Notary public, personally appeared Dennis L. McGowan, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
[SEAL]
  /s/ Julie Ann Kitano    
 
       
     
My Commission Expires:
  (STAMP)
     
THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 22 nd day of June, 2010, before me Julie Ann Kitano, a Notary public, personally appeared N. Gayle McGowan, who executed the foregoing instrument for the purposes therein contained by signing her name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
[SEAL]
  /s/ Julie Ann Kitano    
 
       
     
My Commission Expires:
  (STAMP)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
             
    ASSIGNOR    
 
           
    Alison Mork Trust    
 
           
 
  By:   /s/ J. Michael Forbes    
 
           
 
  Name:   J. Michael Forbes    
 
  Title:   Trustee    
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 23 rd day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared J. Michael Forbes, not in his individual capacity but as the trustee of the Alison Mork Trust, who executed the foregoing instrument for the purposes therein contained by signing his name to such document on behalf of the Trust.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  /s/ Antoinette Rutledge
 
   
 
   
My Commission Expires: March 11, 2012
  (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR
 
 
  By:   /s/ John Mork    
  Name: John Mork   
       
  By:   /s/ Julie Mork    
  Name: Julie Mork   
       
 
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF IL
  § 
 
  § 
COUNTY OF COOK
  § 
     On this, the 22 day of June , 2010, before me Mary Dean Pearson, a Notary public, personally appeared John Mork, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
[SEAL]
  (SEAL)   /s/ Mary Dean Pearson            
My Commission Expires:                                          
     
THE STATE OF IL
  § 
 
  § 
COUNTY OF COOK
  § 
     On this, the 22 day of June, 2010, before me Mary Dean Pearson, a Notary public, personally appeared Julie Mork, who executed the foregoing instrument for the purposes therein contained by signing her name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
[SEAL]
  (SEAL)   /s/ Mary Dean Pearson            
My Commission Expires:                                          
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
             
    ASSIGNOR    
 
           
    Kyle Mork Trust    
 
           
 
  By:   /s/ J. Michael Forbes    
 
  Name:  
 
J. Michael Forbes
   
 
  Title:   Trustee    
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF WEST VIRGINIA
  § 
 
  § 
COUNTY OF KANAWHA
  § 
     On this, the 23 rd day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared J. Michael Forbes, not in his individual capacity but as the trustee of the Kyle Mork Trust, who executed the foregoing instrument for the purposes therein contained by signing his name to such document on behalf of the Trust.
     In witness whereof, I hereunto set my hand and official seal.
       
[SEAL]
  /s/ Antoinette Rutledge  
 
     
My Commission Expires: March 11, 2012
  (SEAL)  
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
             
    ASSIGNOR    
 
           
    Arthur C. Nielsen, Jr. Trust Dated July 14, 2003    
 
           
 
  By:   /s/ Arthur C. Nielsen, Jr.    
 
  Name:  
 
Arthur C. Nielsen, Jr.
   
 
  Title:   Trustee    
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF IL 
  §
 
  §
COUNTY OF COOK 
  §
     On this, the 22 day of June, 2010, before me Mary Dean Pearson, a Notary public, personally appeared Arthur C. Nielsen, Jr., not in his/her individual capacity but as the trustee of the Arthur C. Nielsen, Jr. Trust dated July 14, 2003, who executed the foregoing instrument for the purposes therein contained by signing his/her name to such document on behalf of the Trust.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  Mary Dean Pearson
 
   
My Commission Expires: (OFFICIAL SEAL)
Signature Page to Assignment of Royalty Interest


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  ASSIGNOR  
     
  By:   /s/ George O’Malley  
     Name: George O’Malley  
Signature Page to Assignment of Royalty Interest

 


 

         
THE STATE OF WEST VIRGINIA
  §    
 
  §    
COUNTY OF KANAWHA
  §    
     On this, the 21 ST day of June, 2010, before me Antoinette Rutledge, a Notary public, personally appeared George O’Malley, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
[SEAL]
      /s/ Antoinette Rutledge
 
       
 
       
My Commission Expires: March 11, 2012
      (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
 
  ASSIGNOR    
 
       
 
       
 
       
 
  By:   /s/ Jay S. Pifer
 
       
 
  Name:   Jay S. Pifer
 
       
Signature Page to Assignment of Royalty Interest

 


 

         
THE STATE OF WEST VIRGINIA
  §    
 
  §    
COUNTY OF KANAWHA
  §    
     On this, the 22 nd day of June, 2010, before me Antoinette Rutledge, a Notary Public, personally appeared Jay S. Pifer, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
         
[SEAL]
      /s/ Antoinette Rutledge
 
       
 
       
My Commission Expires: March 11, 2012
      (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
 
  ASSIGNOR    
 
       
 
       
 
       
 
  By:   /s/ Niki D. Randolph
 
       
 
  Name:   Niki D. Randolph
 
       
Signature Page to Assignment of Royalty Interest

 


 

         
THE STATE OF WEST VIRGINIA
  §    
 
  §    
COUNTY OF KANAWHA
  §    
     On this, the 21 ST day of June, 2010, before me Antoinette Rutledge, a Notary public, personally appeared Niki D. Randolph, who executed the foregoing instrument for the purposes therein contained by signing his/her name to such document.
     In witness whereof I hereunto set my hand and official seal.
         
[SEAL]
      /s/ Antoinette Rutledge
 
       
 
       
My Commission Expires: March 11, 2012
      (SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
    ASSIGNOR
 
       
 
  By:   /s/ Peter L. Rebstock
 
       
 
  Name:   Peter L. Rebstock
 
       
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 22 nd day of June, 2010, before me Julie Ann Kitano, a Notary public, personally appeared Peter L. Rebstock, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  /s/ Julie Ann Kitano
 
   
My Commission Expires: (NOTARY SEAL)
   
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
    ASSIGNOR
 
       
 
  By:   /s/ R. Kent Schamp
 
       
 
  Name:   R. Kent Schamp
 
       
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF WEST VIRGINIA
  §
 
  §
COUNTY OF KANAWHA
  §
     On this, the 21 st day of June, 2010, before me Antoinette Rutledge, a Notary public, personally appeared R. Kent Schamp, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
    In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  /s/ Antoinette Rutledge
 
   
 
   
My Commission Expires: March 11, 2012
  (NOTARY PUBLIC SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
    ASSIGNOR
 
       
 
  By:   /s/ Peter A. Sullivan
 
       
 
  Name:   Peter A. Sullivan
 
       
 
       
 
  By:   /s/ Wendy H. Sullivan
 
       
 
  Name:   Wendy H. Sullivan
 
       
Signature Page to Assignment of Royalty Interest

 


 

         
THE STATE OF WEST VIRGINIA
  §    
 
  §    
COUNTY OF KANAWHA
  §    
     On this, the 21st day of June, 2010, before me Antoinette Rutledge, a Notary public, personally appeared Peter A. Sullivan, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]   /s/ Antoinette Rutledge
     
     
My Commission Expires: March 11, 2012   (NOTARY PUBLIC OFFICIAL SEAL)
         
THE STATE OF WEST VIRGINIA
  §    
 
  §    
COUNTY OF KANAWHA
  §    
     On this, the 21st day of June, 2010, before me Antoinette Rutledge, a Notary public, personally appeared Wendy H. Sullivan, who executed the foregoing instrument for the purposes therein contained by signing her name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]   /s/ Antoinette Rutledge
     
     
My Commission Expires: March 11, 2012   (NOTARY PUBLIC OFFICIAL SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
    ASSIGNOR
 
       
 
  By:   /s/ Donald C. Supcoe
 
       
 
  Name:   Donald C. Supcoe
         
 
  By:   /s/ Patty L. Supcoe
 
       
 
  Name:   Patty L. Supcoe
Signature Page to Assignment of Royalty Interest

 


 

         
THE STATE OF WEST VIRGINIA
  §    
 
  §    
COUNTY OF KANAWHA
  §    
     On this, the 21st day of June, 2010, before me Antoinette Rutledge, a Notary public, personally appeared Donald C. Supcoe, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]   /s/ Antoinette Rutledge
     
     
My Commission Expires: March 11, 2012   (NOTARY PUBLIC OFFICIAL SEAL)
         
THE STATE OF WEST VIRGINIA
  §    
 
  §    
COUNTY OF KANAWHA
  §    
     On this, the 21st day of June, 2010, before me Antoinette Rutledge, a Notary public, personally appeared Patty L. Supcoe, who executed the foregoing instrument for the purposes therein contained by signing her name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]   /s/ Antoinette Rutledge
     
     
My Commission Expires: March 11, 2012   (NOTARY PUBLIC OFFICIAL SEAL)
Signature Page to Assignment of Royalty Interest

 


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
    ASSIGNOR
 
       
 
  By:   /s/ Rodney A. Winters
 
       
 
      Rodney A. Winters
 
       
 
  By:   /s/ Tammy M. Winters
 
       
 
  Name:   Tammy M. Winters
Signature Page to Assignment of Royalty Interest

 


 

         
THE STATE OF WEST VIRGINIA
  §    
 
  §    
COUNTY OF KANAWHA
  §    
     On this the 21st day of June, 2010, before me Antoinette Rutledge, a Notary public, personally appeared Rodney A. Winters, who executed the foregoing instrument for the purposes therein contained by signing his name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]   /s/ Antoinette Rutledge
     
     
My Commission Expires: March 11, 2012   (NOTARY PUBLIC OFFICIAL SEAL)
         
THE STATE OF WEST VIRGINIA
  §    
 
  §    
COUNTY OF KANAWHA
  §    
     On this the 21st day of June, 2010, before me Antoinette Rutledge, a Notary public, personally appeared Tammy M. Winters, who executed the foregoing instrument for the purposes therein contained by signing her name to such document.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]   /s/ Antoinette Rutledge
     
     
My Commission Expires: March 11, 2012   (NOTARY PUBLIC OFFICIAL SEAL)
Signature Page to Assignment of Royalty Interest

 


 

             
    ECA MARCELLUS TRUST I    
 
           
    By: The Bank of New York Mellon Trust Company, N.A.    
 
           
 
  By:   /s/ Michael J. Ulrich     
 
           
    Name: Michael J. Ulrich    
    Title: Authorized Signatory    
Prepared by:
Vinson & Elkins LLP
1001 Fannin Street
Suite 2500
Houston, TX 77002-6760
Attention: Thomas Herbert
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 7 th day of July, 2010, before me Julie Ann Kitano, a Notary public, personally appeared Michael J. Ulrich, who acknowledged himself to be the authorized signatory of The Bank of New York Mellon Trust Company, N.A., a national banking association and Trustee of ECA Marcellus Trust I and that he as such authorized signatory, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the national banking association by himself as authorized signatory.
     In witness whereof, I hereunto set my hand and official seal.
         
[SEAL]
  /s/ Julie Ann Kitano     
 
       
My Commission Expires: 4-26-2014

 


 

CERTIFICATE OF RESIDENCE
     The Bank of New York Mellon Trust Company, N.A., as grantee and Assignee hereunder, hereby certifies that its precise address is:
919 Congress Avenue
Suite 500
Austin, Texas 78701
ECA MARCELLUS TRUST I
By: The Bank of New York Mellon Trust Company, N.A.
         
By:
  /s/ Michael J. Ulrich     
 
       
Name: Michael J. Ulrich    
Title: Authorized Signatory    

 


 

EXHIBIT A
1.   Assignment and Conveyance between parties signatory thereto as an Assignor, and Energy Corporation of America, as Assignee.
         
County   File No.   Date Recorded
Greene County, PA
       
Exhibit A to Assignment of Royalty Interest

 

Exhibit 10.4
         
COMMONWEALTH OF
  §    
PENNSYLVANIA
  §    
 
  §   KNOW ALL MEN BY THESE PRESENTS THAT:
COUNTY OF GREENE
  §    
 
  §    
ASSIGNMENT OF ROYALTY INTEREST
THIS ASSIGNMENT OF ROYALTY INTEREST (this “ Assignment ”) from Eastern Marketing Corporation, a West Virginia corporation with offices at 4643 South Ulster Street, Suite 100, Denver, Colorado 80237-2867 (“ Assignor ”), to The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the State of New York, with offices at 919 Congress Avenue, Suite 500, Austin, Texas 78701, as trustee (the “ Assignee ”), acting not in its individual capacity but solely as trustee of the ECA Marcellus Trust I (the “ Trust ”) under that certain Amended and Restated Trust Agreement dated as of July 7, 2010, (the “ Trust Agreement ”) is delivered to be effective as of 7:00 a.m., Eastern Time, April 1, 2010 (the “ Effective Time ”). Assignor and Assignee are sometimes referred to herein individually as a “ Party ” and collectively as “ Parties .”
Recitals
Assignor is the owner of (i) a certain Royalty Interest (as defined in the PDP Conveyance) assigned by Energy Corporation of America and further described in that certain recorded instrument entitled “Term Overriding Royalty Interest (PDP)” (the “ PDP Conveyance ”), which PDP Conveyance is described in Exhibit A hereto, and (ii) a certain Royalty Interest (as defined in the PDP Conveyance) assigned by Energy Corporation of America and further described in that certain recorded instrument entitled “Term Overriding Royalty Interest (PUD)” (the “ PUD Conveyance ” and, together with the PDP Conveyance, the “ Conveyances ”), which PUD Conveyance is described in Exhibit A hereto. All persons are referred to the Conveyances for the terms thereof and for specific descriptions of the Royalty Interest created under each Conveyance.
NOW THEREFORE , for the sum of $100.00 paid and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.   Conveyance . Effective as of the Effective Time, Assignor, for good and valuable consideration in hand paid by Assignee, hereby GRANTS, BARGAINS, SELLS, ASSIGNS, TRANSFERS, CONVEYS, SETS OVER AND DELIVERS, without recourse or warranty (except the special warranty provided below) or representation of any kind, all of its right, title, and interest in and to the Royalty Interest (as defined in the PDP Conveyance) and the Royalty Interest (as defined in the PUD Conveyance) (collectively, the “ Transferred Interests ”) and any and all of the other rights arising from or under the Conveyances with respect to the Transferred Interests (collectively, the “ Assigned Rights ”).

 


 

    Assignor hereby binds itself, its successors and assigns to warrant and forever defend the title to the Transferred Interests herein granted, conveyed, assigned, and transferred unto Assignee, its successors and assigns, against the lawful claims and demands of every person whomsoever claiming or to claim the same or any part thereof, by, through or under Assignor, but not otherwise.
 
2.   Assumption . Assignee hereby assumes the express obligations of the “Assignee” under the Conveyances with respect to the Assigned Interests to the extent such obligations arise under the terms of the Conveyances.
 
3.   Counterparts . This Assignment may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all of such counterparts shall constitute for all purposes one Assignment. As between the Parties, any signature hereto delivered by a Party by facsimile transmission or email pdf shall be deemed an original hereto.
 
4.   Governing Law . WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, THIS ASSIGNMENT SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA (EXCLUDING CHOICE OF LAW AND CONFLICT OF LAW RULES).
 
5.   Limitation of Liability . It is expressly understood and agreed by the parties hereto that (i) this Assignment is executed and delivered by the Assignee not individually or personally, but solely as trustee to the Trust in the exercise of the powers and authority conferred and vested in it and (ii) under no circumstances shall the Assignee be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Assignment.

-2-


 

     IN WITNESS WHEREOF, each Party has caused this Assignment to be executed in its name and behalf and delivered on the date or dates stated in the acknowledgment certificates appended to this Assignment, to be effective as of the Effective Time.
         
  EASTERN MARKETING CORPORATION
 
 
  By:   /s/ Donald C. Supcoe   
  Name: Donald C. Supcoe   
  Title: President   
Signature Page to Assignment of Royalty Interest

 


 

         
  ECA MARCELLUS TRUST I
 
 
  By:   The Bank of New York Mellon Trust Company, N.A.    
     
  By:   /s/ Michael J. Ulrich   
  Name: Michael J. Ulrich   
  Title: Authorized Signatory   
Prepared by:
Vinson & Elkins LLP
1001 Fannin Street
Suite 2500
Houston, TX 77002-6760
Attention: Thomas Herbert
Signature Page to Assignment of Royalty Interest

 


 

     
THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 7 th day of July, 2010, before me Julie Ann Kitano, a Notary public, personally appeared Donald C. Supcoe, who acknowledged himself to be the President of Eastern Marketing Corporation, a West Virginia corporation, and that he as such President, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as President.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  /s/ Julie Ann Kitano 
 
   
       
My Commission Expires: 4-26-2014
     
 
     

 


 

     
THE STATE OF COLORADO
  §
 
  §
COUNTY OF DENVER
  §
     On this, the 7 th day of July, 2010, before me Julie Ann Kitano, a Notary public, personally appeared Michael J. Ulrich, who acknowledged himself to be the authorized signatory of The Bank of New York Mellon Trust Company, N.A., a national banking association and Trustee of ECA Marcellus Trust I and that he as such authorized signatory, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the national banking association by himself as authorized signatory.
     In witness whereof, I hereunto set my hand and official seal.
     
[SEAL]
  /s/ Julie Ann Kitano 
 
   
       
My Commission Expires: 4-26-2014
     
 
     

 


 

CERTIFICATE OF RESIDENCE
     The Bank of New York Mellon Trust Company, N.A., as grantee and Assignee hereunder, hereby certifies that its precise address is:
919 Congress Avenue
Suite 500
Austin, Texas 78701
       
ECA MARCELLUS TRUST I
 
 
By:   The Bank of New York Mellon Trust Company, N.A.    
   
By:   /s/ Michael J. Ulrich   
Name: Michael J. Ulrich   
Title: Authorized Signatory   

 


 

EXHIBIT A
1.   Term Overriding Royalty Interest (PDP) between Energy Corporation of America, as Assignor, and Eastern Marketing Corporation, as Assignee.
         
County   File No.   Date Recorded
Greene County, PA
       
2.   Term Overriding Royalty Interest (PUD) between Energy Corporation of America, as Assignor, and Eastern Marketing Corporation, as Assignee.
         
County   File No.   Date Recorded
Greene County, PA
       
Exhibit A to Assignment of Royalty Interest

 

Exhibit 10.5
TERM OVERRIDING ROYALTY INTEREST CONVEYANCE (PDP)
COMMONWEALTH OF PENNSYLVANIA
INTRODUCTION
     THIS TERM OVERRIDING ROYALTY INTEREST CONVEYANCE (this “ Conveyance ”) from ENERGY CORPORATION OF AMERICA, a West Virginia corporation, with offices at 4643 South Ulster Street, Suite 100, Denver, Colorado 80237-2867 (“ Assignor ”), to Eastern Marketing Corporation, a West Virginia corporation with offices at 4643 South Ulster Street, Suite 100, Denver, Colorado 80237-2867 (“ Assignee ”), is delivered to be effective as of 7:00 a.m., Eastern Time, April 1, 2010 (the “ Effective Time ”). All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Article II below.
ARTICLE I
CONVEYANCE
      Section 1.01 The Grant . For and in consideration of good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor has, subject to the terms of this Conveyance, BARGAINED, SOLD, GRANTED, CONVEYED, TRANSFERRED, ASSIGNED, SET OVER, and DELIVERED, and by these presents does hereby BARGAIN, SELL, GRANT, CONVEY, TRANSFER, ASSIGN, SET OVER, and DELIVER unto Assignee, for the Term, as a term net overriding royalty interest (the “ Royalty Interest ”), a variable undivided interest in and to the Subject Interests, to the extent that the Subject Interests pertain to Gas in, under and that may be produced and saved from the wellbores of the Wells, sufficient to cause Assignee to receive Assignee Gas or proceeds thereof calculated and paid in money in accordance with the further terms and conditions of this Conveyance.
      Section 1.02 Term . The term of the Royalty Interest (the “ Term ”) shall begin at the Effective Time and end at March 31, 2030 (the “ Termination Date ”). At the end of the Term, all of Assignee’s interest in and to the Royalty Interest shall automatically terminate and immediately revert to and revest in Assignor.
      Section 1.03 Habendum Clause . TO HAVE AND TO HOLD the Royalty Interest, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Assignee, its successors and assigns, for the Term, subject to terms and provisions of this Conveyance.
      Section 1.04 Warranty .
          (a) The Warranty . Assignor warrants to Assignee, its successors and assigns, that the Subject Interests are free of all Encumbrances created by, through, or under Assignor, but not otherwise, except for the Permitted Encumbrances, and that Assignor’s title to the Wells entitles Assignor to a Net Revenue Interest with respect to the Target Formation in

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each such Well no less than the Net Revenue Interest with respect to the Target Formation for that Well set forth in Exhibit A .
          (b) Sole Remedy . In the event of a breach of the foregoing warranty for any Subject Interest, Assignee’s sole remedy shall be to receive payment on each applicable Quarterly Payment Date, out of Assignor’s Net Share of Gas from other Wells in excess of that subject to the Royalty Interest, the royalty interest created pursuant to the Perpetual PDP Conveyance and the royalty interest created pursuant to the Investor Conveyance (“ Assignor Retained Gas ”), subject to offset as provided below and without interest (except such interest payable under this Conveyance on payments made after the applicable due date as described in Section 5.02 below), of an amount equal to the difference between (i) Assignee Gas (or the proceeds from the sale thereof) that Assignee would have received with respect to such Well in the applicable Computation Period if such warranty had not been breached and (ii) Assignee Gas (or the proceeds from the sale thereof) that Assignee actually received during that Computation Period with respect to that Well, to the extent such difference is attributable to the breach of the warranty, but not to the extent that such difference is attributable to any other cause, and any such amounts of Assignor Retained Gas shall be treated as Assignee Gas.
          (c) Right of Offset . If any Subject Interest owned by Assignor ever proves to be larger as of the Effective Date than the Subject Interest reflected in the exhibits to this Conveyance and if, as a result, Assignee receives a greater amount of Assignee Gas (or the proceeds from the sale thereof) with respect to that Subject Interest than Assignee would otherwise have received if the Subject Interest had been the size warranted, then such increased amounts, whenever received by Assignee, may be treated by Assignor as a credit or offset (without interest) against any amounts payable to Assignee under Section 1.04(b).
          (d) DISCLAIMER . EXCEPT FOR THE WARRANTIES OF TITLE GIVEN IN SECTION 1.04(a), ASSIGNOR MAKES THIS CONVEYANCE AND ASSIGNS THE ROYALTY INTEREST WITHOUT RECOURSE, COVENANT OR WARRANTY OF TITLE OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. ANY COVENANTS OR WARRANTIES IMPLIED BY STATUTE OR LAW BY THE USE HEREIN OF THE WORDS “ GRANT ”, “ CONVEY ” OR OTHER SIMILAR WORDS ARE HEREBY EXPRESSLY DISCLAIMED, WAIVED AND NEGATED. WITHOUT LIMITING THE GENERALITY OF THE TWO PRECEDING SENTENCES, ASSIGNEE ACKNOWLEDGES THAT ASSIGNOR HAS NOT MADE, AND ASSIGNOR HEREBY EXPRESSLY DISCLAIMS AND NEGATES, AND ASSIGNEE HEREBY EXPRESSLY WAIVES, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO (i) PRODUCTION RATES, RECOMPLETION OPPORTUNITIES, DECLINE RATES OR THE QUALITY, QUANTITY OR VOLUME OF THE RESERVES OF HYDROCARBONS, IF ANY, ATTRIBUTABLE TO THE SUBJECT INTERESTS, (ii) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (iii) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iv) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, AND (v) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER ANY APPLICABLE LEGAL REQUIREMENT; IT BEING THE EXPRESS INTENTION OF BOTH ASSIGNEE AND ASSIGNOR THAT THE ROYALTY INTEREST IS HEREBY ASSIGNED TO ASSIGNEE ON AN “AS IS” AND “WHERE IS” BASIS WITH ALL FAULTS, AND

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THAT ASSIGNEE HAS MADE OR CAUSED TO BE MADE SUCH INSPECTIONS AS ASSIGNEE DEEMS APPROPRIATE. ASSIGNOR AND ASSIGNEE AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LEGAL REQUIREMENTS TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS SECTION ARE “CONSPICUOUS” DISCLAIMERS FOR THE PURPOSES OF ANY APPLICABLE LEGAL REQUIREMENT.
          (e) Substitution of Warranty . This instrument is made with full substitution and subrogation of Assignee in and to all covenants of warranty by Third Persons (other than Affiliates of Assignor) heretofore given or made with respect to the Wells, the Subject Interests or any part thereof or interest therein.
ARTICLE II
DEFINITIONS
     This Article II defines certain capitalized words, terms, and phrases used in this Conveyance. Certain other capitalized words, terms, and phrases used in this Conveyance are defined elsewhere in this Conveyance.
     “ Affiliate ” means, for any specified Person, another Person that controls, is controlled by, or is under common control with, the specified Person. “ Control ,” in the preceding sentence, refers to the possession by one Person, directly or indirectly, of the right or power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.
     “ AMI Area ” means that area depicted on the map set forth on Exhibit B as the AMI Area.
     “ Assignee ” is defined in the introduction to this Conveyance and also includes all permitted successors and assigns of Assignee.
     “ Assignee Conveyances ” means for purposes of Section 11.02(a), this Conveyance, the Term PUD Conveyance, the Perpetual PDP Conveyance, the Perpetual PUD Conveyance and the Investor Conveyance, considered collectively.
     “ Assignee Gas ” is defined in Section 3.01.
     “ Assignee Proceeds ” means, for any Computation Period, proceeds received by Assignor for the account of Assignee, as Assignee’s marketing and payment agent and representative, from the sale of Assignee Gas under this Conveyance less Chargeable Costs calculated in accordance with Section 3.03.
     “ Assignor ” is defined in the Introduction to this Conveyance and also includes all permitted successors and assigns of Assignor.
     “ Assignor Retained Gas ” is defined in Section 1.04(b).
     “ Assignor’s Net Share of Gas ” means the share of Subject Gas from each Well that is attributable to Assignor’s Net Revenue Interest in that Well.

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     “ Business Day ” means any day that is not a Saturday, Sunday, a holiday determined by the New York Stock Exchange, Inc. as “affecting ‘ex’ dates” or any other day on which national banking institutions in New York, New York are closed as authorized or required by law.
     “ Chargeable Costs ” is defined in Section 3.02(a).
     “ Computation Period ” means each calendar quarter commencing at the Effective Time, with each calendar quarter being deemed to have begun at 7:00 a.m. Eastern Time on the first day of such calendar quarter and to have ended at 7:00 a.m. Eastern Time on the first day of the next calendar quarter, except for (a) the first Computation Period, which shall be deemed to have begun at the Effective Time and to have ended at 7:00 a.m. Eastern Time on July 1, 2010, and (b) the final Computation Period, which shall be deemed to have begun at 7:00 a.m. Eastern Time on the first day of the calendar quarter in which the Termination Date occurs and to have ended at the Termination Date.
     “ Conveyance ” is defined in the Introduction to this Conveyance.
     “ Development Agreement ” means that certain Development Agreement between Assignor and the Trustee dated as of even date herewith.
     “ Development Well ” has the meaning given such term in the Development Agreement.
     “ Drilling Obligation ” means Assignor’s obligation set forth in Section 2.01(a) of the Development Agreement.
     “ Drilling Obligation Completion Date ” has the meaning given to such term in the Development Agreement.
     “ Effective Time ” is defined in the Introduction to this Conveyance.
     “ Encumbrance ” means any mortgage, lien, security interest, pledge, charge, encumbrance, limitation, preferential right to purchase, consent to assignment, irregularity, burden, or defect.
     “ Excess Costs ” means, in any Computation Period, the excess of Chargeable Costs for that Computation Period over the amount determined by multiplying Assignor’s Net Share of Gas produced during the Computation Period by the Sales Price for that Computation Period. Excess Costs shall bear interest at the Prime Interest Rate from the end of the Computation Period in which such costs were incurred to the date that Assignor recovers such amounts from Assignee Proceeds.
     “ Fair Value ” means, with respect to any portion of the Royalty Interest to be released pursuant to Section 11.02 or 11.03 in connection with a sale or release of any Well or Subject Interest, an amount of net proceeds which could reasonably be expected to be obtained from the sale of such portion of the Royalty Interest to a party which is not an Affiliate of either the Assignor or Assignee on an arms’-length negotiated basis, taking into account relevant market conditions and factors existing at the time of any such proposed sale or release, such net proceeds to be determined by deducting Assignee’s proportionate share of sales costs,

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commissions and brokerage fees, if any (based on the ratio of (i) the fair market value of the portion of the Royalty Interest being released to (ii) the fair market value of the Wells and Subject Interests being transferred (including the value of the Royalty Interest being released).
     “ Farmout Agreements ” means any farmout agreement, participation agreement, exploration agreement, development agreement or any similar agreement.
     “ Force Majeure ” is defined in Section 13.02.
     “ Gas ” means natural gas and all other gaseous hydrocarbons, excluding condensate, butane, and other liquid and liquefiable components that are actually removed from the Gas stream by separation, processing, or other means. Any oil, gas or mineral lease or other similar instrument that covers Gas shall be considered a “Gas lease” hereunder, even if it also covers other substances.
     “ Governmental Authority ” means the United States of America, any state, commonwealth, territory, or possession thereof, and any political subdivision of any of the foregoing, including courts, departments, commissions, boards, bureaus, agencies, and other instrumentalities.
     “ Greene County Gathering System ” means Assignor’s Greene County, Pennsylvania Gathering System.
     “ Investor Conveyance ” means that certain Private Investor Overriding Royalty Interest Conveyance by and between the Private Investors and the Trust dated effective as of the Effective Time.
     “ Legal Requirement ” means any law, statute, ordinance, decree, requirement, order, judgment, rule, or regulation of, including the terms of any license or permit issued by, any Governmental Authority.
     “ MBtu ” means one thousand British thermal units, and “ MMBtu ” means one million British thermal units.
     “ Mcf ” means one thousand cubic feet of Gas and “ MMcf ” means one million cubic feet of Gas, measured and expressed in each case at the same temperature, pressure, and other conditions of measurement (a) provided in any contract for the purchase of Gas from the Subject Interest or, (b) if no such contract exists, provided by applicable state law for purposes of reporting production to Governmental Authorities.
     “ Mortgages ” means, collectively, (i) the Drilling Support Lien (as such term is defined in the Development Agreement) and (ii) that certain Mortgage, Assignment, Security Agreement, Fixture Filing and Financing Statement, granted by Assignor in favor of the Trust dated as of even date herewith, which agreement grants the Trust a lien and security interest on the Royalty Interest (as such term is defined in each of the Conveyances).
     “ Net Revenue Interest ” means, the interest, stated as a decimal fraction, in Subject Gas production from a Well that Assignor is entitled to take with respect to Assignor’s Subject

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Interest in that Well and the associated Subject Lands, subject only to the Permitted Production Burdens (treated in each case as a reduction in interest rather than as a cost).
     “ Non-Affiliate ” means, for any specified Person, any other Person that is not an Affiliate of the specified Person.
     “ Notice ” is defined in Section 14.01.
     “ Party ,” when capitalized, refers to Assignor or Assignee. “ Parties ,” when capitalized, refers to Assignor and Assignee.
     “ Permitted Encumbrances ” means:
     (a) the Permitted Production Burdens;
     (b) contractual obligations arising under operating agreements, Farmout Agreements, production sales contracts, leases, assignments, and other similar agreements that may affect the properties or their titles;
     (c) pooling and unitization agreements, declarations, orders, or Legal Requirements to secure payment of amounts not yet delinquent;
     (d) liens that arise in the normal course of operations, such as liens for unpaid taxes, statutory liens securing unpaid suppliers and contractors, and contractual liens under operating agreements, in any case, that are not yet delinquent or, if delinquent, are being contested in good faith in the normal course of business;
     (e) conventional rights of reassignment that obligate Assignor to reassign all or part of any Subject Interest to a Third Person if Assignor intends to release or abandon such interest before the expiration of the primary term or other termination of such interest;
     (f) easements, rights-of-way, servitudes, permits, surface leases, surface use restrictions, and other surface uses and impediments on, over, or in respect of the Subject Interests that are not such as to interfere materially with the operation, value, or use of the Subject Interests;
     (g) covenants, conditions, and other terms subject to which Assignor acquired the Subject Interests, to the extent they do not cause Assignor’s Net Revenue Interests in any Well related to the Target Formation to be less than the Net Revenue Interest for that Well, as stated in Exhibit A ;
     (h) rights reserved to or vested in any Governmental Authority to control or regulate any Subject Interests in any manner, and all applicable Legal Requirements;
     (i) the terms of the instruments creating the Subject Interests and Subject Lands;

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     (j) any Prior Reversionary Interests that affect the Subject Interests; and
     (k) the Mortgages,
provided that such aforementioned encumbrances are of the type and nature customary in the oil and gas industry, as conducted in the Appalachian Basin, and do not, alone or in the aggregate, materially and adversely affect the operation, value, or use of any Subject Interest, and all to the extent, and for so long as, such Permitted Encumbrances are otherwise valid and enforceable against the Subject Interests, without recognizing, expressly or by implication, any rights or interests in any Third Person or Governmental Authority that such Third Person or Governmental Authority does not otherwise lawfully possess.
     “ Permitted Production Burdens ” means (a) all Production Burdens that affected the Subject Interests when they were acquired by Assignor and (b) all Production Burdens that were created by Assignor; in each case, to the extent they do not cause Assignor’s Net Revenue Interest related to the Target Formation in any Well to be less than the Net Revenue Interest for that Well reflected in Exhibit A .
     “ Perpetual PDP Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (PDP) by and between Assignor and the Trust dated effective as of the Effective Time.
     “ Perpetual PUD Conveyance ” means that certain Perpetual Overriding Royalty Interest Conveyance (PUD) by and between Assignor and the Trust dated effective as of the Effective Time.
     “ Person ” means any natural person, corporation, partnership, trust, estate, or other entity, organization, or association.
     “ Private Investors ” means the individuals and entities listed on Exhibit C attached hereto.
     “ Post Production Cost Charge ” is defined in Section 3.02(c).
     “ Prime Interest Rate ” is defined in Section 5.02(b).
     “ Prior Reversionary Interest ” means any contract, agreement, Farmout Agreement, lease, deed, conveyance or operating agreement that exists as of the Effective Time or that burdens the Subject Interests at the time such Subject Interests are acquired, that by the terms thereof requires a Person to convey a part of the Subject Interest to another Person or to permanently cease production of any Well including, any operating agreements, oil and gas leases, coal leases, and other similar agreements or instruments affecting the Subject Interests.
     “ Production Burdens ” means, with respect to any Subject Lands, Subject Interests, or Subject Gas, all royalty interests, overriding royalty interests, production payments, net profits interests, Prior Reversionary Interests and other similar interests that constitute a burden on, are measured by, or are payable out of the production of Gas or the proceeds realized from the sale or other disposition thereof.

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     “ Quarterly Payment Amount ” is defined in Section 5.01(a).
     “ Quarterly Payment Date ” is defined in Section 5.01(c).
     “ Reasonably Prudent Operator Standard ” means the standard of conduct of a reasonably prudent oil and gas operator in the AMI Area under the same or similar circumstances, acting with respect to its own property and disregarding the existence of the Royalty Interest as a burden on such property.
     “ Reserved Amounts ” means those amounts set aside from Assignee Proceeds by Assignor in accordance with the provisions of Section 5.04 below.
     “ Royalty Interest ” is defined in Section 1.01.
     “ Sales Price ” means, for any Computation Period, the sale price received by Assignor per Mcf or per MMBtu for Assignee Gas determined in accordance with the following provisions:
     (a) “sale” refers to any sale, exchange, or other disposition of Assignee Gas for value, the value of such Gas that is exchanged or otherwise disposed of for valuable consideration being the sales price that Assignor receives for any such Gas sold pursuant to Section 4.01 for any such Gas.
     (b) amounts of money not paid to Assignor when due by any purchaser of Assignee Gas (for example, Taxes or other amounts withheld or deducted by any such purchaser) shall not be included within the Sales Price until actually received by, or credited to the account of, Assignor;
     (c) advance payments and prepayments for future deliveries of Assignee Gas shall be included within the Sales Price, without interest, when that volume of Gas subject to the advance payments or prepayments is actually produced;
     (d) loan proceeds received by Assignor shall not be treated as a component of the applicable Sales Price; and
     (e) if a controversy or possible controversy exists, whether by reason of any statute, order, decree, rule, regulation, contract, or otherwise, between Assignor and any purchaser of Assignee Gas or any other Person, about the correct Sales Price of any Assignee Gas, about deductions from the Sales Price, about Assignor’s right to receive the proceeds of any sale of Assignee Gas, or about any other matter, then monies withheld by the purchaser or deposited by it with an escrow agent or if Assignor receives any monies and promptly deposits such monies with a Third Person escrow agent as a result of such controversy, such monies shall not be included within the Sales Price until received by or returned to Assignor, as applicable.
     “ Subject Gas ” means Gas in and under, and that may be produced, saved, and sold from a Well, insofar and only insofar as such Gas is produced from the Target Formation, subject to the following:

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     (a) “Subject Gas” excludes Gas that is:
     (i) lost in the production, gathering, or marketing of Gas;
     (ii) used (A) in conformity with ordinary and prudent operations on the Subject Lands, including drilling and production operations or (B) in connection with plant operations (whether on or off the Subject Lands) for processing or compressing the Subject Gas;
     (iii) taken by a Third Person to recover costs, or some multiple of costs, paid or incurred by that Third Person under any operating agreement, unit agreement, or other agreement in connection with nonconsent operations conducted (or participated in) by that Third Person;
     (iv) retained by a Third Person for gathering, transportation, processing or marketing services related to the Subject Gas in lieu of or in addition to cash payment for such services, to the extent such agreement is permitted under this Conveyance; and
     (v) in excess of the percentage attributable to Assignor’s Net Share of Gas taken by Assignor to recover costs, or some multiple of costs, paid or incurred by Assignor under any operating agreement, unit agreement, or other agreement in connection with nonconsent operations conducted (or participated in) by Assignor.
     (b) “Subject Gas” includes Gas, not otherwise excluded above, that is sold or exchanged for other Gas, or otherwise disposed of for valuable consideration.
     “ Subject Interests ” means Assignor’s undivided interests in the Subject Lands, whether as lessee under Gas leases, as an owner of the Subject Gas (or the right to extract such Gas), or otherwise, by virtue of which undivided interests Assignor has the right to conduct exploration, drilling, development, and Gas production operations on the Subject Lands, or to cause such operations to be conducted, or to participate in such operations by paying and bearing all or any part of the costs, risks, and liabilities of such operations, to drill, test, complete, equip, operate, and produce Wells to exploit the Gas. “Subject Interests” includes all extensions of, and all renewal Gas leases covering, the Subject Lands (or any portion thereof) obtained by Assignor, or any Affiliate thereof, within six (6) months after the expiration or termination of any such Gas lease. “Subject Interests” do not include (a) Assignor’s rights to substances other than Gas; (b) Assignor’s rights to Gas under contracts for the purchase, sale, transportation, storage, processing, or other handling or disposition of Gas; (c) Assignor’s interests in, or rights to Gas with respect to, pipelines, gathering systems, storage facilities, processing facilities, or other equipment or facilities, other than the Wells; or (d) subject to Section 1.04(c), any additional, or enlarged interests in the Wells, Subject Lands or Subject Gas, except those reflected in Exhibit A or any extensions and renewals covered by the preceding sentence. “Subject Interests” may be owned or claimed by Assignor by virtue of grants or reservations in deeds, Gas leases, or other instruments, or by virtue of operating agreements, pooling or unitization agreements or orders, or

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other kinds of instruments, agreements, or documents, legal or equitable, recorded or unrecorded. The Subject Interests are subject to the Permitted Encumbrances.
     “ Subject Lands ” means the lands subject to or covered by the oil and gas leases described in Exhibit A , insofar and only insofar as they cover the Target Formation, subject to the exceptions, exclusions and reservations set forth on such Exhibit A .
     “ Target Formation ” means what is generally referred to as the Marcellus Shale formation and for purposes of this Conveyance is defined as that formation located from the bottom of the Tully Formation (as seen by the ECA Kemsod #1 Well, API number 37-059-25209), at a depth of 7,881 feet, to the top of the Huntersville Chert Formation (as seen by the ECA Kemsod #1 Well, API number 37-059-25209), at a depth of 8,204 feet.
     “ Term PUD Conveyance ” means that certain Term Overriding Royalty Interest Conveyance (PUD) by and between Assignor and Assignee dated effective as of the Effective Time.
     “ Taxes ” is defined in Section 3.02(b).
     “ Term ” is defined in Section 1.02.
     “ Termination Date ” is defined in Section 1.02.
     “ Third Person ” means a Person other than Assignor or Assignee.
     “ Transfer ” including its syntactical variants, means any assignment, sale, transfer, conveyance, or disposition of any property; provided, Transfer as used herein does not include the granting of a security interest in Assignor’s interest in any property including the Subject Interests or Subject Lands.
     “ Trust ” means the ECA Marcellus Trust I created by that certain Amended and Restated Trust Agreement dated as of July 7, 2010.
     “ Well ” means the borehole of each Gas well more particularly described in Exhibit A .
     “ Working Interest ” means with respect to any Well, the interest, stated as a decimal fraction, in and to such Well that is burdened with the obligation to bear and pay costs and expenses of maintenance, development and operations on or in connection with such Well.
ARTICLE III
CALCULATION OF ASSIGNEE GAS
      Section 3.01 Definition . “ Assignee Gas ” is that volume of Gas which Assignee is entitled to receive in any Computation Period under this Conveyance, calculated in accordance with the following formula:
     With respect to any Well:

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Forty-Nine and One-Half Percent (49.5%) X (Assignor’s Net Share of Gas produced during that Computation Period).
For purposes of calculating Assignee Gas hereunder, if, during any Computation Period, Assignor is unable to determine the precise volume of Gas produced, sold and attributable to Assignor’s Net Share of Gas, then Assignor shall, in good faith and in accordance with the Reasonably Prudent Operator Standard, estimate the volume of such Gas produced, sold and attributable to Assignor’s Net Share of Gas for such Computation Period. Assignor shall adjust Assignor’s Net Share of Gas upward or downward, as the case may be, in the next or subsequent Computation Periods to reflect the difference between the estimated volume and the actual amount of Gas produced, sold and attributable to Assignor’s Net Share of Gas in the Computation Period for which such estimate was made.
      Section 3.02 Chargeable Costs .
          (a) Definition . Subject to Section 5.04 hereof, for each Computation Period, “ Chargeable Costs ” means the sum of (i) Taxes, (ii) the Post Production Cost Charge and (iii) Excess Costs from prior Computation Periods that (in each case) are actually paid or are deemed to have been paid by Assignor during that Computation Period or paid or deemed to have been paid by Assignor during a prior Computation Period and not included in any prior Computation Period’s Chargeable Costs.
          (b) Taxes . “ Taxes ” means general property, ad valorem, production, severance, sales, gathering, windfall profit, excise, and other taxes, except income taxes, assessed or levied on or in connection with the Subject Interests, the Royalty Interest, this Conveyance, production of Subject Gas, Assignor’s Net Share of Gas, Assignee Gas (or the proceeds from the sale thereof), or facilities or equipment on the Subject Lands that are used for the production, dehydration, treatment, processing, gathering, or transportation of Subject Gas, or against Assignor as owner of the Subject Interests or paid by Assignor on behalf of Assignee as owner of this Royalty Interest.
          (c) Post Production Cost Charge . “ Post Production Cost Charge ” means those costs incurred by Assignor (including, internal costs and Third Person costs) to gather, transport, compress, process, treat, dehydrate and market the Subject Gas, including any costs as may be required to make merchantable and to deliver such Gas to market; provided, any internal costs of Assignor and its Affiliates that are part of the Post Production Cost Charge shall not materially exceed the costs prevailing in the area where the Subject Gas is being produced for similar services; and provided, further, with respect to marketing costs, only Non-Affiliate marketing fees and costs shall be included, and marketing costs of Assignor and its Affiliates with respect to any Subject Gas will be specifically excluded from the Post Production Cost Charge; and provided, further, until the Drilling Obligation Completion Date, any such internal costs of Assignor and its Affiliates (excluding costs for any fuel that is used in the compression process, including equivalent electricity charges in instances where electric compressors are used) associated with the Greene County Gathering System shall be limited to $0.52 per MMBtu of Assignee Gas gathered. Any costs, fees or expenses that are properly charged or allocated to Assignee Gas pursuant to another provision of this Conveyance (including, as provided for in the definition of Subject Gas) shall not be included as part of the Post Production Cost Charge.

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          (d) Operating and Drilling Costs . All costs associated with or paid or incurred in connection with the drilling, testing, completing, developing and operating the Wells or associated with the Subject Interests other than Taxes and Post Production Cost Charges shall be borne solely by Assignor and shall not be included as Chargeable Costs.
      Section 3.03 Assignee Proceeds . “ Assignee Proceeds ” means the volume of Assignee Gas (on an Mcf basis or MMBtu basis, as applicable) for the applicable Computation Period multiplied by the relevant Sales Price less the Chargeable Costs associated with such Assignee Gas for the applicable Computation Period.
ARTICLE IV
MARKETING OF ASSIGNEE GAS
      Section 4.01 Rights and Duties Regarding Sale of Assignee Gas . Assignor shall market or shall cause to be marketed Assignor’s Net Share of Gas (including Assignee Gas) in good faith and in accordance with the Reasonably Prudent Operator Standard and Section 4.02(d). Assignor shall use its reasonable efforts in connection with any sale of Assignor’s Net Share of Gas (including Assignee Gas) to obtain, as soon as reasonably practicable, full payment for such Gas; provided, however, that it shall not be considered a breach of Assignor’s marketing duty or standard of conduct for Assignor to market such Gas to an Affiliate of Assignor, so long as Assignor does not market such Gas at a volume-weighted average price lower than the volume-weighted average price upon which Assignor pays royalties to the owners of the other royalty interests in the Subject Gas, save and excepting Chargeable Costs provided for in Article III hereof.
      Section 4.02 Assignee’s Agent and Representative .
          (a) Appointment . Assignee appoints Assignor as Assignee’s agent and representative to market and deliver or cause to be marketed and delivered all Assignee Gas and to collect and receive all payments therefrom under any gas purchase agreement or contract without deduction (except to the extent Chargeable Costs are deducted for any Computation Period). The appointment of Assignor as Assignee’s agent and representative for such purpose is a material item of consideration to the Parties in connection with the execution and delivery of this Conveyance. Assignee may not remove Assignor from office as Assignee’s agent and representative, except for cause upon a material breach by Assignor of its duties to Assignee under this Conveyance.
          (b) Duties and Powers . As Assignee’s agent and representative, Assignor shall receive all payments for the sale of Assignee Gas and account to Assignee, receive and make all communications with the purchaser of such Gas, and otherwise act and speak for Assignee in connection with the sale of Assignee Gas. Third Persons may rely conclusively on the authority of Assignor to market Assignee Gas, and with respect to Third Persons, Assignee shall be conclusively bound by the acts of Assignor in connection with the sale of Assignee Gas. It shall not be necessary for Assignee to join Assignor in the execution of any division order, transfer order, or other instrument, agreement, or document relating to the sale of Assignee Gas. Third Persons may pay all Assignee Proceeds for the sale of such Gas directly to Assignor,

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without the necessity of any joinder by or consent of Assignee or any inquiry into the use or disposition of such proceeds by Assignor.
          (c) Prohibited Acts . Assignor may not act for or bind Assignee on any matter, except the marketing and delivery of Assignee Gas under this Article IV.
          (d) Standard of Conduct . In exercising its powers and performing its duties as Assignee’s agent and representative, Assignor shall act in good faith and in accordance with the Reasonably Prudent Operator Standard. It shall not be a violation of such standard of conduct for Assignor (i) to sell Assignor’s Net Share of Gas or Assignee Gas to an Affiliate pursuant to any gas purchase agreement or contract, or (ii) to delegate some or all of Assignor’s duties as Assignee’s agent and representative to its Affiliates (so long as such Affiliates perform in good faith and in accordance with the Reasonably Prudent Operator Standard), with Assignor remaining liable to Assignee for the performance of such Affiliates.
          (e) Termination of Authority . Assignor may not resign as Assignee’s agent and representative without the prior written consent of Assignee, except that Assignor may resign as Assignee’s agent and representative without such consent with respect to any Subject Interests assigned, sold, transferred, or conveyed by Assignor in accordance with the terms of this Conveyance. If such sale is made subject to the Royalty Interest, Assignor must cause the purchaser to assume the duties of Assignee’s agent and representative with respect to the Subject Interests acquired by that purchaser and to be bound by the provisions of this Article IV.
      Section 4.03 Delivery of Subject Gas . Assignor (whether or not it is serving as Assignee’s agent and representative) shall deliver or cause to be delivered Assignor’s Net Share of Gas (including Assignee Gas) to the purchasers thereof into the pipelines to which the Wells producing such Gas are connected.
      Section 4.04 Processing . Assignor may process Assignor’s Net Share of Gas (including Assignee Gas) to remove liquid and liquefiable hydrocarbons and may commit any of the Subject Interests (including the Royalty Interest attributable thereto) to an agreement for processing minerals (pursuant to which, for example, the plant owner or operator receives a portion of the Subject Gas or plant products therefrom or proceeds of the sale thereof as a fee for processing), so long as Assignor enters into such processing arrangements in good faith and in accordance with the Reasonably Prudent Operator Standard. Assignee shall be bound by such arrangements, shall permit Assignor’s Net Share of Gas (including Assignee Gas) to be processed by Assignor or its contractor, and shall have no right to any liquid or liquefiable hydrocarbons obtained by such processor or to the proceeds from the sale thereof. Assignee shall not, however, be personally liable for any costs or risks associated with such processing operations, but Assignee shall indirectly suffer the Btu reduction and volume reductions associated with processing through corresponding reductions in the Btu content and volumes of Assignee Gas.
ARTICLE V
PAYMENT
      Section 5.01 Obligation to Pay .

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          (a) Quarterly Payment Amount . On each Quarterly Payment Date, Assignor shall prepare, in good faith, an estimate of the cash to be paid to Assignee from (A) all of the proceeds (including any interest earned thereon and payable to Assignee pursuant to Section 5.01(b) or Section 5.01(e)) to be paid to Assignee from the sale of Assignee Gas produced during such Computation Period; plus (B) all of the proceeds (including any interest earned thereon and payable to Assignee pursuant to Section 5.01(b) or Section 5.01(e)) to be paid to Assignee from the sale of Assignee Gas, if any, produced during any prior Computation Periods, to the extent not previously taken into account for purposes of determining a Quarterly Payment Amount for any prior Computation Periods, as such sum may be (x) increased or decreased as a result of any adjustments to the estimates that were previously made pursuant to this Section 5.01(a) for any prior Computation Periods that are necessary to accurately report the proceeds from the sale of Assignee Gas for such prior Computation Periods, (y) increased by the amount of any damages payable to Assignee under Section 1.04(b) (subject to the right of set off in Section 1.04(c)) during the most recently completed Computation Period prior to such Quarterly Payment Date and (z) decreased by any Reserved Amounts as provided in Section 5.04 below (“ Quarterly Payment Amount ”).
          (b) The Obligation . After each Computation Period and on or before the Quarterly Payment Date for that Computation Period, Assignor shall tender to Assignee the Quarterly Payment Amount with respect to the applicable Computation Period. With respect to the final Computation Period, Assignor shall tender to Assignee all unexpended Reserved Amounts (together with any interest accrued thereon).
          (c) Quarterly Payment Date . “ Quarterly Payment Date ” for each Computation Period means the thirtieth (30 th ) day after the end of such Computation Period or, for the last Computation Period, the thirtieth (30 th ) day after the Termination Date. If such day is not a Business Day, the Quarterly Payment Date shall be the next Business Day.
          (d) No Segregated Account . All amounts received by Assignor from the sale of Assignor’s Net Share of Gas and Assignee Gas, as applicable, for any Computation Period shall be held by Assignor in one of its general bank accounts and Assignor will not be required to maintain a segregated account for such funds.
          (e) Disputed Proceeds . If Assignor receives any amounts of money from the sale of Assignee Gas that is subject to controversy or, in the reasonable opinion of Assignor, possible controversy, Assignor shall promptly deposit the money with a Third Person escrow agent in a segregated interest-bearing account. Such amount shall not be treated as a portion of Assignee Proceeds so long as it remains with such escrow agent, but shall be treated as a portion of Assignee Proceeds, along with the accrued interest, when received from such escrow agent and paid over to Assignee.
      Section 5.02 Interest on Past Due Payments .
          (a) Obligation to Pay . Any Assignee Proceeds or other amounts of money not paid by Assignor to Assignee when due shall bear, and Assignor will pay, interest at the Prime Interest Rate on the overdue amount commencing on the sixth (6 th ) day after such due date until such amount is paid.

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          (b) Definition . “ Prime Interest Rate ” means the lesser of (i) the rate of interest per annum publicly announced from time to time by The Bank of New York Mellon Trust Company, N.A., as its “prime rate” in effect at its principal office in New York City (each change in the Prime Rate to be effective on the date such change is publicly announced), with the understanding that such bank’s “prime rate” may be one of several base rates, may serve as a basis upon which effective rates are from time to time calculated for loans making reference thereto, and may not be the lowest of such bank’s base rates or (ii) the maximum rate of interest permitted under applicable Legal Requirement.
      Section 5.03 Overpayments and Refunds .
          (a) Overpayments . If Assignor ever pays Assignee more than the amount of money then due and payable to Assignee under this Conveyance, Assignee shall not be obligated to return the overpayment, but Assignor may at any time thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to the overpayment.
          (b) Refunds . If Assignor is ever legally obligated to pay any Third Person, including any gas purchaser or Governmental Authority, any refund, interest, penalty, or other amount of money, because any payment of Assignee Proceeds received by Assignor for the account of Assignee exceeded, or allegedly exceeded, the amount due or lawful under any applicable contract, Legal Requirement, or other obligation, Assignor may thereafter deduct from Assignee Proceeds and retain for its own account an amount equal to such payment.
      Section 5.04 Reserved Amounts . At any time and from time to time under this Conveyance and in accordance with the Reasonably Prudent Operator Standard, Assignor may set aside from Assignee Proceeds amounts determined in good faith to economically accrue for a Computation Period with respect to known or anticipated costs or liabilities (the “ Reserved Amounts ”) which may be incurred in future Computation Periods with respect to Taxes assessed or levied with respect to a time period in excess of a calendar quarter. As Reserved Amounts are expended by Assignor to cover applicable Taxes in a Computation Period, Chargeable Costs shall be reduced in such Computation Period by an amount equal to the Reserved Amounts so expended. In the event that Assignor overestimates the cost of any Taxes for which it has set aside Reserved Amounts, the excess amount shall be applied against any other Chargeable Costs (which shall be reduced by an amount equal to such excess Reserved Amounts so expended), or paid as Assignee Proceeds on the Quarterly Payment Date following the Computation Period in which it is determined that Assignor has set aside excess Reserved Amounts.
ARTICLE VI
RECORDS AND REPORTS
      Section 6.01 Books, Records, and Accounts .
          (a) Obligation to Maintain . Assignor shall maintain true and correct books, records, and accounts of (i) all transactions required or permitted by this Conveyance and (ii) the financial information necessary to effect such transactions, including the financial information needed to calculate each installment of Assignee Proceeds.

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          (b) Right of Inspection . Assignee or its representative, at Assignee’s expense, may inspect and copy such books, records, and accounts in the offices of Assignor during normal business hours and upon reasonable notice.
      Section 6.02 Statements .
          (a) Quarterly Statements . On each Quarterly Payment Date, Assignor shall deliver to Assignee a statement showing the computation of Assignee Gas and Assignee Proceeds for the preceding Computation Period.
          (b) Annual Statements . On the first Quarterly Payment Date after the end of each calendar year and on the Quarterly Payment Date after the Termination Date, such statement shall also show the computation of Assignee Proceeds for the preceding calendar year or, for the Quarterly Payment Date after the Termination Date, for the portion of the calendar year from 7:00 a.m. Eastern Time on January 1 of that same year through the Termination Date.
          (c) Contents of Statements . Without limiting the generality of the foregoing provisions in this Section 6.02, each statement delivered by Assignor to Assignee pursuant to this Section 6.02 shall state, for the relevant period, (i) the total volumes of Subject Gas produced from the Subject Lands, (ii) the total volumes of the Assignor’s Net Share of Gas, (iii) the total volumes of Assignee Gas, (iv) the applicable Sales Price, (v) the amount of Assignee Proceeds due and payable for the relevant period and (vi) the amounts of money, if any, due and payable by any purchaser of the Subject Gas or Assignee Gas, the nonpayment of which resulted in the payment to Assignee of less than Assignee Proceeds for the relevant period. Notwithstanding the preceding, Assignor shall only be required to provide the preceding information on an aggregate basis.
      Section 6.03 Assignee’s Exceptions to Quarterly Statements . If Assignee takes exception to any item or items included in any quarterly statement required by Section 6.02, Assignee must notify Assignor in writing within sixty (60) days after As