DEVELOPMENT AGREEMENT
(KENTUCKY)
INTRODUCTION
THIS DEVELOPMENT AGREEMENT (this "Development Agreement") from ENERGY
CORPORATION OF AMERICA, a West Virginia corporation, with offices at 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000-0000 ("ECA") and EASTERN
AMERICAN ENERGY CORPORATION, a West Virginia corporation, with offices at 000
00xx Xxxxxx, Xxxxxxxxxx, Xxxx Xxxxxxxx 00000 ("Eastern") (ECA and Eastern are
sometimes hereinafter collectively referred to as "Operator"), to BLACK STONE
ACQUISITIONS PARTNERS II, L.P., a Delaware limited partnership, BLACK STONE
ACQUISITIONS PARTNERS II-B, L.P., a Delaware limited partnership, and XXXXXXXX
ROYALTY, L.P., a Delaware limited partnership, with offices at 0000 Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx, 00000 (collectively "Black Stone"), is delivered to
be effective as of 7:00 a.m., Eastern Time, April 1, 2005 (the "Effective
Time").
Operator and Black Stone contemporaneously herewith have entered into each
of the following conveyances dated effective as of January 1, 2005 (i) Term
Royalty Conveyance (West Virginia) ("West Virginia Conveyance"), (ii) Term
Royalty Conveyance (Pennsylvania) ("Pennsylvania Conveyance"), (iii) Term
Royalty Conveyance (Kentucky) ("Kentucky Conveyance") collectively the "Term
Royalty Conveyance," and the Term Royalty Agreement dated May 17, 2005 between
Operator and Black Stone (the "Term Royalty Agreement"). In connection with the
Term Royalty Conveyance, Operator has agreed to undertake certain obligations
during the term of the Term Royalty Conveyance with respect to the Subject
Interests and the Development Xxxxx to be drilled on AMI Areas designated in the
Term Royalty Conveyance.
ARTICLE I
DEFINITIONS
All capitalized words, terms, and the phrases used in this Development
Agreement and not defined herein shall have the meanings ascribed thereto in the
Term Royalty Agreement and Term Royalty Conveyance. Certain other capitalized
words, terms, and phrases used in this Development Agreement are defined
elsewhere in this Development Agreement.
"Adjusted Completed Well Development Well Value" means, with respect to
each Completed Development Well, the value obtained by multiplying for each
Completed Development Well drilled or caused to be drilled by Operator during
any Annual Period one (1) times the Working Interest (stated as a decimal
fraction or 1.00, where Operator holds a 100% Working Interest), that Operator
is required to bear in such Completed Development Well. For example, if
Operator holds an eighty-five percent (85%) Working Interest in a Completed
Development Well, the computation would be:
1 x .85 = .85
therefore, such Completed Development Well would have a .85 Adjusted Completed
Development Well Value.
"Annual Drilling Target" means that number of Completed Development Xxxxx
where (a) the cumulative total of all the Adjusted Completed Development Well
Values for all Completed Development Xxxxx drilled by or caused to be drilled by
Operator during the first Annual Period equals not less than sixty (60), (b) the
cumulative total of all the Adjusted Completed Development Well Values for all
Completed Development Xxxxx drilled during the first two Annual Periods equals
not less than One Hundred Twenty (120), and (c) the cumulative total of all the
Adjusted Completed Development Well Values for all Completed Development Xxxxx
drilled during the first three Annual Periods equals not less than the Total
Drilling Commitment.
"AMI Areas" mean the areas depicted on the map set forth on Exhibit B as
the Yawkey Xxxxxxx XXX and the PK AMI.
"Annual Period" means the annual period commencing on April 1 each year and
ending on March 31 of the succeeding year.
"Assignor's Net Share of Gas" means the share of Subject Gas from each Well
that is attributable to Operator's Net Revenue Interest in that Well.
"Completed Development Well" means the Wellbore of any Development Well
that is completed pursuant to Section 2.02 herein in the Big Lime formation or
deeper formation(s).
"Deed of Trust" means the Credit Line Deed of Trust from Eastern to Black
Stone referenced in Section 2.18.
"Development Well" means any Gas well drilled, within the meaning of
Section 2.01(b) of the Development Agreement, after the Effective Time of this
Agreement on the Subject Development Lands.
"Drilling Obligation Completion Date" means March 31, 2008.
"Effective Time" means April 1, 2005.
"Gas" means natural gas and all other gaseous hydrocarbons, and all
non-combustible gas that are contained in the full wellstream.
"Producing Well" means the Wellbore of each Gas well more particularly
described in Exhibit A-1 to the Term Royalty Conveyance, subject to the
exceptions, exclusions and reservations set forth on such Exhibit A-1 to the
Term Royalty Conveyance.
"Reasonably Prudent Operator Standard" means the standard of conduct of a
reasonably prudent oil and gas operator in the Appalachian Basin under the same
or similar circumstances, acting with respect to its own property and
disregarding the existence of the Term Royalty Interest as a burden on such
property.
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"Subject Development Lands" means the lands subject to or covered by the
oil and gas leases described in Exhibit A-2, subject to the exceptions,
exclusions and reservations set forth on such Exhibit A-2, as such Exhibit may
be modified pursuant to the Term Royalty Conveyance.
"Subject Gas" means with respect to each Well, Gas in and under, and that
may be produced, saved, and sold from all producing horizons from the Wellbore
of such Well, subject to the following:
(a) "Subject Gas" excludes Gas that is:
(i) lost in accordance with the Reasonably Prudent
Operator Standard in the production, gathering, or marketing of
Gas, or that is liquefied and removed from the gas stream in the
normal course of Operator's operation, consistent with prior
practice, via any method other than processing as contemplated in
the Term Royalty Conveyance;
(ii) subject to the Reasonably Prudent Operator
Standard, used in operations on the Subject Lands, including
drilling and production operations on the Subject Development
Lands); or
(iii) retained by a Third Person, or Operator (pursuant
to Section 3.02(c)) of the Term Royalty Conveyance, for
gathering, transportation, processing, or marketing services
related to the Subject Gas in lieu of or in addition to cash
payment for such services; or
(iv) in excess of the percentage attributable to
Assignor's Net Share of Gas taken by Operator to recover costs,
or some multiple of costs, paid or incurred by Operator under any
operating agreement, unit agreement, or other agreement in
connection with nonconsent operations conducted (or participated
in) by Operator.
(b) "Subject Gas" includes Gas, not otherwise excluded above, that is
sold or otherwise disposed of for valuable consideration.
"Subject Interests" means Operator's undivided interests in the Subject
Lands as lessee under Gas leases covering and affecting the Subject Lands, as an
owner of the Subject Gas (or the right to extract such Gas), or otherwise, by
virtue of which undivided interests Operator 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 Xxxxx to exploit the Gas. Any oil and gas lease or other similar
instrument that covers Gas produced from the Subject Lands shall be considered a
"Gas lease" hereunder, even if it also covers other substances. "Subject
Interests" includes all extensions and renewals of Gas leases covering and
affecting the Subject Lands acquired within six (6) months after the expiration
or termination of any such lease, and all new Gas leases covering the Subject
Lands (or any portion thereof) obtained by Operator, or any Affiliate
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thereof prior to the termination of the Development Agreement. "Subject
Interests" do not include (a) Operator's rights to substances other than Gas;
(b) Operator's rights under contracts for the purchase, sale, transportation,
storage, processing, or other handling or disposition of Gas; (c) Operator's
interests in, or rights with respect to, pipelines, gathering systems, storage
facilities, processing facilities, or other equipment or facilities, other than
the Xxxxx; or (d) subject to Section 1.04(c) of the Term Royalty Conveyance, any
after-acquired, additional, or enlarged interests in the Xxxxx, Subject Lands or
Subject Gas, except those reflected in Exhibit A-1 to the Term Royalty
Conveyance or Exhibit A-2 or any Additional Lease as provided for in Section
12.01 of the Term Royalty Conveyance, or extensions and renewals covered by the
preceding sentence. "Subject Interests" may be owned by Operator 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 collectively, the Subject Producing Lands and the
Subject Development Lands.
"Subject Producing Lands" means the lands subject to or covered by the oil
and gas leases described in Exhibit A-1 to the Term Royalty Conveyance for lands
related to the Producing Xxxxx, subject to the exceptions, exclusions and
reservations set forth on such Exhibit A-1 to the Term Royalty Conveyance.
"Term Royalty Agreement" is defined in the Introduction to this Agreement.
"Term Royalty Conveyance" is defined in the Introduction to this Agreement.
"Term Royalty Gas" means, for any month, that percentage of Gas to which
Black Stone is entitled, calculated in accordance with the Term Royalty
Conveyance.
"Term Royalty Interest" means the 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 from the Wellbores of the Xxxxx, sufficient to
cause Black Stone to receive a volume of Term Royalty Gas and the revenues
attributable thereto calculated and paid in money in accordance with Section
3.01 of the Term Royalty Conveyance.
"Term Royalty Proceeds" means, for any month, proceeds received by Assignor
for the account of Assignee, as Black Stone's marketing and payment agent and
representative, from the sale of Term Royalty Gas under this Conveyance less
Chargeable Costs calculated in accordance with Section 3.03 of the Term Royalty
Conveyance.
"Total Drilling Commitment" means that number of Completed Development
Xxxxx where the cumulative total of all such Adjusted Completed Development Well
Value for all Completed Development Xxxxx drilled by or caused to be drilled by
Operator equals 180.
"Termination Date" is defined in Section 1.02.
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"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 Operator's
interest in any property including the Subject Interests or Subject Lands so
long as any such security interest shall not affect and is made expressly
subject to the Term Royalty Interest.
"Xxxxx" means, collectively, the Wellbores of the Producing Xxxxx and the
Completed Development Xxxxx.
ARTICLE II
DEVELOPMENT OF THE SUBJECT DEVELOPMENT LANDS
SECTION 2.01 DRILLING PROGRAM.
(a) OBLIGATION TO DRILL. In each of the first three Annual Periods
during the Development Agreement Term, Operator shall, subject to the terms of
this Article II, drill, or cause to be drilled, at Operator's sole cost, (i)
such number of Completed Development Xxxxx that is necessary to achieve the
Annual Drilling Target and (ii) such number of Completed Development Xxxxx as to
achieve the Total Drilling Commitment prior to the Drilling Obligation
Completion Date; it being understood that so long as Operator is performing its
obligations hereunder in good faith and with due diligence the drilling and
testing operations may extend beyond the last day of an Annual Period for which
such Completed Development Well is being included to meet Operator's obligations
under this Section 2.01(a), and provided further that Operator shall have an
additional ninety (90) day period at the end of each Annual Period and that the
Drilling Obligation Completion Date to perform its obligations pursuant to this
Section 2.01(a). Operator further agrees to use commercially reasonable efforts
to drill seventy (70) Completed Development Xxxxx during the first Annual
Period, sixty (60) Completed Development Xxxxx during the second Annual Period,
and fifty (50) Completed Development Xxxxx during the third Annual Period.
(b) MEANING OF "DRILL." For purposes of this Section 2.01, to "drill"
means to commence the actual drilling of a Development Well, and thereafter to
drill that Development Well diligently to the target depth (or target depths, in
the case of multiple target producing horizons) that Operator has determined, in
accordance with the Reasonably Prudent Operator Standard, may encounter
producing Gas horizons and then to test that Development Well for the production
of Gas.
(c) ADDITIONAL DEVELOPMENT XXXXX. Any number of Completed Development
Xxxxx drilled which result in the Annual Drilling Target being exceeded in any
Annual Period may be carried forward and applied against Operator's obligation,
if any, under Section 2.01(a) for the subsequent Annual Period.
SECTION 2.02 OBLIGATION TO COMPLETE AND EQUIP. Operator shall, at
Operator's sole cost, attempt to complete each Development Well in all
formations which, in Operator's opinion exercised in accordance with the
Reasonably Prudent Operator Standard, are capable of producing in commercial
quantities. Operator acknowledges that the Term Royalty Interest would be
adversely affected if Operator fails to attempt to complete each Completed
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Development Well in all formations reasonably expected to be capable of
producing in commercial quantities and, therefore, expressly covenants to
protect the Term Royalty Interest as it relates to each Completed Development
Well from any and all drainage that might occur should Operator not complete in
all such formations. Operator shall equip for production each Development Well
that is successfully completed and, when it is equipped and connected to a
gathering line or pipeline, shall commence production. Operator shall plug and
abandon all Development Xxxxx that are unsuccessful.
SECTION 2.03 UNDRILLABLE LOCATIONS/FAILURE TO REACH DEEP FORMATIONS/DRY
HOLE. If Operator fails, in the exercise of the Reasonably Prudent Operator
Standard, to reach the Big Lime formation or deeper due to geological subsurface
conditions, impenetrable substances or drills a dry hole, such drill site or
well shall not be counted as a Completed Development Well nor toward the Total
Drilling Commitment hereunder. Nothing herein shall be construed to grant to
Black Stone, an interest in any xxxxx drilled on the Subject Development Lands
after the Total Drilling Commitment has been achieved.
SECTION 2.04 TERMINATION. After the drilling obligations in Section
2.01(a) have been satisfied in addition to all other obligations of Operator
under this Agreement, Black Stone shall, on request, execute, acknowledge, and
deliver to Operator a recordable instrument that terminates this Development
Agreement.
SECTION 2.05 COSTS AND EXPENSES OF DEVELOPMENT XXXXX AND COMPLETED
DEVELOPMENT XXXXX. All costs associated with or paid or incurred in connection
with the drilling, testing, completing, equipping for production, operating
and/or plugging and abandoning of the Development Xxxxx and Completed
Development Xxxxx shall be borne solely by Operator, but Operator may use
reasonable amounts of Subject Gas in such operations without any duty to account
to Black Stone under any of the Term Royalty Interests or Term Royalty
Conveyance, and Operator shall hold harmless and indemnify Black Stone from and
against any and all such cost, risk, liability or obligation (including, without
limitation, court costs and reasonable attorneys' fees) that are attributable
thereto, including, but not limited to, any liability resulting from the
condition thereof under any federal, state, or local statute, regulation, rule,
ordinance or order relating to the environment or health and safety.
SECTION 2.06 SURVIVAL OF OBLIGATION. Operator's obligation under
Section 2.01(a) shall survive, even if (i) any of the Term Royalty Interest in
the Subject Development Lands is Transferred or released in whole or in part by
Black Stone or (ii) notwithstanding Sections 11.01 through 11.04 of each of the
Term Royalty Conveyance, Operator Transfers, mortgages or pledges the Subject
Development Lands or Subject Interests.
SECTION 2.07 ADDITIONAL LEASES. In the event that Operator acquires
any additional leases ("Additional Lease") other than the Subject Interests in
the AMI Areas prior to Operator's satisfaction of Operator's drilling
requirements in Section 2.01, Operator and Black Stone shall execute,
acknowledge, and deliver an instrument that amends this Development Agreement so
that such Additional Lease will be part of the Subject Interests and Subject
Development Lands hereunder.
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SECTION 2.08 TITLE DUE DILIGENCE. Prior to commencing the drilling of
any Development Well, Operator will perform such title due diligence and such
title curative work as would be performed by an oil and gas operator drilling a
well and acting in accordance with the Reasonably Prudent Operator Standard.
SECTION 2.09 XXXXX. Prior to the satisfaction of Operator's drilling
requirements in Section 2.01, Operator shall not, and shall cause its Affiliates
not to, nor permit any other Person to, drill any well on the Subject
Development Lands in the AMI Areas that will not be a Development Well
hereunder; provided however that any Development Well that does not constitute a
Completed Development Well shall not be deemed a violation of this Section 2.09,
so long as such Development Well is drilled in compliance with Section 2.13.
SECTION 2.10 BLACK STONE NOT LIABLE. Black Stone shall not be
personally liable or responsible under this Development Agreement for any cost,
risk, liability, or obligation associated in any way with the ownership or
operation of the Subject Lands, the Subject Interests, the Xxxxx, the Subject
Gas, or the plugging and abandoning of any Xxxxx, and Operator shall hold
harmless and indemnify Black Stone from and against any and all such cost, risk,
liability or obligation (including, without limitation, court costs and
reasonable attorneys' fees) that are attributable thereto, including, but not
limited to, any liability resulting from the condition thereof under any
federal, state, or local statute, regulation, rule, ordinance or order relating
to the environment or health and safety.
SECTION 2.11 STANDARDS OF CONDUCT. Except as otherwise specifically
provided in the Term Royalty Conveyance and the Term Royalty Agreement, Operator
shall (a) operate and maintain the Subject Interests and Xxxxx 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
and consistent with Assignor's prior practice.
SECTION 2.12 ABANDONMENT OF PROPERTIES. Nothing in this Development
Agreement, other than the Reasonably Prudent Operator Standard, shall obligate
Operator 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 Operator determines, in good faith and in
accordance with the terms hereof, that such 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. Any Well
abandoned by Operator hereunder shall be plugged and abandoned, at Operator's
sole risk and expense, in accordance with all applicable federal, state and/or
local laws, statutes, rules and regulations.
SECTION 2.13 NO DRAINAGE. At no time during the Development Agreement
Term, shall Operator or any of its Affiliates drill, or permit any other person
to drill, any Gas well within one thousand two hundred fifty feet (1,250') of
any Well where such Gas well would produce oil or gas from the same formations
or horizons as any Well situated within said distance.
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SECTION 2.14 NONPERFORMANCE. Should Operator be prevented from
complying with any of its obligations, express or implied, under the terms of
this Development Agreement, by reason of Force Majeure or any other reason, then
while so prevented, Operator's obligation to comply therewith shall be suspended
and Operator shall not be liable for damages for failure to so comply; provided,
however, this Development Agreement shall be extended while and so long as
Operator is prevented by any such cause from complying with the such
obligations, and the time while Operator is so prevented shall be added to the
Development Agreement Term. No event of Force Majeure or any other cause shall
excuse Operator's obligation to make payments of Term Royalty Proceeds to Black
Stone.
SECTION 2.15 FORCE MAJEURE. "Force Majeure" means any of the
following, to the extent they are not caused solely by the breach by Operator of
its duty to perform certain obligations under this Development Agreement 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) inability of the Operator to acquire, or the delay on the part of
any Third Person (other than an Affiliate of the Operator) 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) 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
Operator.
SECTION 2.16 FORCE MAJEURE NOTICE. Operator will give Black Stone a
Notice of each Force Majeure as soon as reasonably practicable after the
occurrence of the Force Majeure.
SECTION 2.17 REMEDY OF FORCE MAJEURE EVENT. Eastern will use
commercially reasonable efforts to remedy each Force Majeure and resume full
performance under this Development Agreement as soon as reasonably practicable,
except that the settlement of strikes, lockouts, or other labor disputes shall
be entirely within the discretion of Operator.
SECTION 2.18 LIEN. Simultaneously herewith, Eastern shall execute and
deliver to Black Stone the Credit Line Deed of Trust, which shall secure the
obligation of Operator to satisfy the Total Drilling Commitment by the Drilling
Obligation Completion Date (plus the 90 day grace period) provided for in
Section 2.01(a) hereof. Black Stone acknowledges that its sole remedy
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for a failure by Operator to perform such obligation shall be the foreclosure
rights set forth in the Credit Line Deed of Trust.
ARTICLE III
OTHER PROVISIONS
SECTION 3.01 SUCCESSORS AND ASSIGNS. Subject to the limitations and
restrictions on the assignment or delegation by the Parties of their rights and
interests under this Development Agreement, this Development Agreement binds and
inures to the benefit of Operator, Black Stone and their respective successors,
assigns, and legal representatives.
SECTION 3.02 GOVERNING LAW. Insofar as permitted by otherwise
applicable Legal Requirements, this Development Agreement shall be construed
under and governed by the laws of the State of West Virginia (excluding choice
of law and conflict of law rules); provided, however, that, with respect to any
portion of the Subject Interests located outside of the State of West Virginia,
the laws of the place in which such Subject Interests is located in, shall apply
where mandatorily required by the laws of such State.
SECTION 3.03 CONSTRUCTION OF DEVELOPMENT AGREEMENT. In construing this
Development Agreement, 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 Development Agreement 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 Development Agreement;
(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 Development
Agreement, regardless of whether it appears before or after the place in this
Development Agreement where it is defined;
(e) the plural shall be deemed to include the singular, and vice versa;
and
(f) each exhibit, attachment, and schedule to this Development
Agreement is a part of this Development Agreement, but if there is any conflict
or inconsistency between the main body of this Development Agreement and any
exhibit, attachment, or schedule, the provisions of the main body of this
Development Agreement shall prevail.
SECTION 3.04 NO WAIVER. Failure of either Party to require performance
of any provision of this Development Agreement 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.
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SECTION 3.05 RELATIONSHIP OF PARTIES. This Development Agreement does
not create a partnership, mining partnership, joint venture, or relationship of
trust or agency between the Parties.
SECTION 3.06 FURTHER ASSURANCES. Each Party shall execute,
acknowledge, and deliver to the other Party all additional instruments and other
documents reasonably required to evidence or effect any transaction contemplated
by this Development Agreement.
SECTION 3.07 THE 7:00 A.M. CONVENTION. Except as otherwise provided in
this Development Agreement, 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 3.08 COUNTERPART EXECUTION.
(a) MULTIPLE COUNTERPARTS. Multiple counterparts of the Development
Agreement have been recorded in the counties where the Subject Development Lands
are located. The counterparts are identical except to facilitate recordation,
the counterpart recorded in each county may contain property descriptions
relating only to the Subject Development Lands located in that county. A
counterpart of the Development Agreement containing all property descriptions of
Subject Development Lands will be filed for record in Kanawha County, West
Virginia.
(b) MULTIPLE COUNTIES. If any Subject Development Lands are located in
more than one county, the description of such Subject Development Lands may be
included in any one or more counterparts prepared for recordation in separate
counties, but the inclusion of the same property description in more than one
counterpart of this Development Agreement shall not be construed as having
effected any cumulative, multiple, or overlapping interest in the Subject Lands
in question.
SECTION 3.09 BINDING EFFECT. This Development Agreement shall
constitute a covenant running with and constituting a burden on the land and
leases included within the AMI Areas. In addition, in the event of a
foreclosure by Black Stone under the Credit Line Deed of Trust between Eastern
and Black Stone of even date and recorded simultaneously herewith, this
Development Agreement shall continue in full force and effect and shall be
binding upon any subsequent successor in interest to Operator.
SECTION 3.10 OTHER AGREEMENTS. This Development Agreement is being
executed pursuant to the Term Royalty Agreement and in connection with the Term
Royalty Conveyance. In the event of a conflict in the terms and conditions of
this Development Agreement and the Term Royalty Agreement, the terms and
conditions of this Development Agreement shall control. In the event of a
conflict in the terms and conditions of this Development Agreement and the Term
Royalty Conveyance, the terms and conditions of the Term Royalty Conveyance
shall control.
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IN WITNESS WHEREOF, each Party has caused this Development Agreement to be
executed in its name and behalf and delivered on the date or dates stated in the
acknowledgment certificates appended to this Development Agreement, to be
effective as of the Effective Time.
ATTEST: ENERGY CORPORATION OF AMERICA
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Sr. Vice President
ATTEST: EASTERN AMERICAN ENERGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
ATTEST: BLACK STONE ACQUISITIONS PARTNERS II, L.P.
BY: BSAP II GP, L.L.C., GENERAL PARTNER
By: /s/ X. X. Xxxxx
----------------------------------
Name: X. X. Xxxxx
Title: Vice President
BLACK STONE ACQUISITIONS PARTNERS II-B, L.P.
BY: BSAP II GP, L.L.C., GENERAL PARTNER
By: /s/ X. X. Xxxxx
----------------------------------
Name: X. X. Xxxxx
Title: Vice President
XXXXXXXX ROYALTY, L.P.
BY: BSAP II GP, L.L.C., GENERAL PARTNER
By: /s/ X. X. Xxxxx
----------------------------------
Name: X. X. Xxxxx
Title: Vice President
00
XXX XXXXX XX XXXX XXXXXXXX S
S
COUNTY OF KANAWHA S
On this, the 10th day of June, 2005, before me ____________________, a
Notary public, personally appeared Xxxxxx X. Xxxxxx, as Sr. Vice President of
Energy Corporation of America, a West Virginia corporation, and executed the
foregoing instrument on behalf of said corporation.
In witness whereof, I hereunto set my hand and official seal.
[SEAL] _________________________________
My Commission Expires:_________________
THE STATE OF WEST VIRGINIA S
S
COUNTY OF KANAWHA S
On this, the 10th day of June, 2005, before me _______________________, a
Notary public, personally appeared Xxxxxx X. Xxxxxx, as President of Eastern
American Energy Corporation, a West Virginia corporation, and executed the
foregoing instrument on behalf of said corporation.
In witness whereof, I hereunto set my hand and official seal.
[SEAL] _________________________________
My Commission Expires:_________________
00
XXX XXXXX XX XXXX XXXXXXXX S
S
COUNTY OF KANAWHA S
On this, the 10th day of June, 2005, before me ___________________, a
Notary public, personally appeared X. X. Xxxxx as the Vice President of BSAP II
GP, L.L.C., general partner of Black Stone Acquisitions Partners II, L.P., a
Delaware limited partnership, and executed the foregoing instrument on behalf of
said limited partnership.
In witness whereof, I hereunto set my hand and official seal.
[SEAL] _________________________________
My Commission Expires:_________________
THE STATE OF WEST VIRGINIA S
S
COUNTY OF KANAWHA S
On this, the 10th day of June, 2005, before me ___________________, a
Notary public, personally appeared X. X. Xxxxx as the Vice President of BSAP II
GP, L.L.C., general partner of Black Stone Acquisitions Partners II-B, L.P., a
Delaware limited partnership, and executed the foregoing instrument on behalf of
said limited partnership.
In witness whereof, I hereunto set my hand and official seal.
[SEAL] _________________________________
My Commission Expires:_________________
00
XXX XXXXX XX XXXX XXXXXXXX S
S
COUNTY OF KANAWHA S
On this, the 10th day of June, 2005, before me ___________________, a
Notary public, personally appeared X. X. Xxxxx as the Vice President of BSAP II
GP, L.L.C., general partner of Xxxxxxxx Royalty, L. P., a Delaware limited
partnership, and executed the foregoing instrument on behalf of said limited
partnership.
In witness whereof, I hereunto set my hand and official seal.
[SEAL] _________________________________
My Commission Expires:_________________
Prepared by:
______________________________
XXXXX X. XXXX, ESQ.
XXXXXXX & XXXXXXX, LLP
P. O. BOX 2107
CHARLESTON, WV 25328-2107
WV STATE BAR NO. 5552
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