EXHIBIT 4.5
TRUST AGREEMENT
OF
APPALACHIAN GAS ROYALTY TRUST
This Trust Agreement of Appalachian Gas Royalty Trust is entered into
effective as of the 17th day of March, 2005 (this "Trust Agreement"), by and
among ENERGY CORPORATION OF AMERICA, a West Virginia corporation with its
principal office in Denver, Colorado (together with its successors and assigns,
"ECA") as trustor, and WILMINGTON TRUST COMPANY, a banking corporation organized
under the laws of the State of Delaware with its principal office in Wilmington,
Delaware ("Wilmington Trust"), and JPMORGAN CHASE BANK, N.A., a national
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 trustees (collectively
referred to herein as the "Trustees"). ECA and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "Appalachian Gas Royalty Trust"
(the "Trust"), in which name the Trustees or ECA, to the extent provided herein,
may conduct the business of the Trust, make and execute contracts, and xxx and
be sued.
2. ECA hereby assigns, transfers, conveys and sets over to the Trust the sum of
$10. Such amount shall constitute the initial trust estate. It is the intention
of the parties hereto that the Trust created hereby constitute a statutory trust
under the Delaware Statutory Trust Act, Title 12, Chapter 38 of the Delaware
Code, Sections 3801, et seq. (the "Trust Act"), and that this Trust Agreement
constitute the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Secretary of State of the State of Delaware in such form as the Trustees may
approve.
3. ECA and the Trustees will enter into an amended and restated Trust Agreement
satisfactory to each such party to provide for the contemplated operation of the
Trust created hereby and the issuance of the trust securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise contemplated by this Trust
Agreement, required by applicable law or as may be necessary to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustees may
take all actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. ECA, as trustor of the Trust, is hereby authorized, in its sole discretion,
(i) to prepare and file with the Securities and Exchange Commission (the
"Commission") and to execute, in the case of the 1933 Act Registration Statement
and 1934 Act Registration Statement (as herein defined), on behalf of the Trust,
(a) a Registration Statement (the "1933 Act Registration Statement"), including
all pre-effective and post-effective amendments thereto, relating to the
registration under the Securities Act of 1933, as amended (the "1933 Act"), of
the trust securities of the Trust, (b) any preliminary prospectus or prospectus
or supplement thereto relating to the trust securities of the Trust required to
be filed pursuant to the 1933 Act, and (c) a Registration Statement on Form 8-A
or other appropriate form (the "1934 Act Registration Statement"), including all
pre-effective and post-effective amendments thereto, relating to the
registration of
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the trust securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) if and at such time as determined by ECA, to file with the New
York Stock Exchange or other exchange, or the National Association of Securities
Dealers ("NASD"), and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the trust securities of
the Trust to be listed on the New York Stock Exchange or such other exchange, or
the NASD's Nasdaq National Market; (iii) to file and execute on behalf of the
Trust, such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
that shall be necessary or desirable to register the trust securities of the
Trust under the securities or "blue sky" laws of such jurisdictions as ECA, on
behalf of the Trust, may deem necessary or desirable; (iv) to execute and
deliver letters or documents to, or instruments for filing with, a depository
relating to the trust securities of the Trust; and (v) to execute, deliver and
perform on behalf of the Trust an underwriting agreement with one or more
underwriters relating to the offering of the trust securities of the Trust.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, NASD, or state securities or "blue sky" laws to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacity as trustees
of the Trust, are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Trustees, in their capacity as trustees of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the New York
Stock Exchange or other exchange, NASD, or state securities or "blue sky" laws;
provided, however, that the Trustees in their discretion may resign if they
elect not to join in any such filing or to execute any such document.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be two and thereafter the
number of trustees of the Trust shall be such number as shall be fixed from time
to time by a written instrument signed by ECA which may increase or decrease the
number of trustees of the Trust; provided, however, that to the extent required
by the Trust Act, one trustee of the Trust shall either be a natural person who
is a resident of the State of Delaware or, if not a natural person, an entity
that has its principal place of business in the State of Delaware and otherwise
meets the requirements of applicable law. Subject to the foregoing, ECA is
entitled to appoint or remove without cause any trustee of the Trust at any
time. Any trustee of the Trust may resign upon thirty days' prior notice to ECA.
In the event of the removal or resignation of Wilmington Trust where a successor
trustee meeting the requirements of the Trust Act is required, if no such
successor trustee shall have been appointed within 30 days after notice of such
removal or resignation has been given, Wilmington Trust may, after delivery of
written notice to ECA and at the expense of ECA, petition a court of competent
jurisdiction for the appointment of a successor.
7. Notwithstanding any provision of this Trust Agreement to the contrary,
Wilmington Trust shall not have any of the powers or duties of the Trustees set
forth herein and shall be a Trustee of the Trust for the sole purpose of
satisfying the requirements of Section 3807 of the Trust Act.
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8. The Trustees (as such and in their individual capacities) and their
respective officers, directors, employees, shareholders and agents shall be
indemnified and held harmless by ECA with respect to any loss, liability, claim,
damage, action, suit, tax, penalty, cost, disbursement or expense of any kind or
nature whatsoever (including the reasonable fees and expenses of counsel)
incurred by the Trustees (as such and in their individual capacities) arising
out of or incurred in connection with the acceptance or performance by the
Trustees of their respective duties and obligations contained in this Trust
Agreement, the creation, operation, administration or termination of the Trust
or the transactions contemplated hereby; provided, however, that the Trustees
(including their respective officers, directors, employees, shareholders and
agents) shall not be indemnified or held harmless as to any such loss,
liability, claim, damage, action, suit, tax, penalty, cost, disbursement or
expense of any kind or nature whatsoever (including the reasonable fees and
expenses of counsel) incurred by reason of their respective willful misconduct,
bad faith or gross negligence. The obligations of ECA under this Section 8 shall
survive the resignation or removal of the Trustees and the termination of this
Trust Agreement.
9. The Trust may be dissolved and terminated before the issuance of the trust
securities of the Trust at the election of ECA.
10. This Trust Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware (without regard to conflict of laws
principles); PROVIDED, HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO THE
PARTIES HEREUNDER 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, (A) THE FILING WITH
ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF
TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR
TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR
OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION,
HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS
PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE
ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) 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 (G) 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 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.
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IN WITNESS WHEREOF, ECA, Bank and Wilmington Trust have caused this
Agreement to be duly executed the day and year first above written.
ENERGY CORPORATION OF AMERICA
ATTEST:
By: /s/ XXXXXX X. XXXXXX
------------------------------------
/s/ J. XXXXXXX XXXXXX Name: Xxxxxx X. Xxxxxx
------------------------------------ Title: Senior Vice President, Secretary
Name: J. Xxxxxxx Xxxxxx and General Counsel
Title: Vice President/Treasurer
JPMORGAN CHASE BANK, N.A.
ATTEST:
By: /s/ XXXX X. XXXXXX
------------------------------------
/s/ XXXXX XXXXXXX Name: Xxxx X. Xxxxxx
------------------------------------ Title: Vice President
Name: Xxxxx Xxxxxxx
Title:
WILMINGTON TRUST COMPANY
ATTEST:
By: /s/ XXXXX X. XXXXXX
------------------------------------
/s/ XXXXXXX X. XXXXXXXXX Name: Xxxxx X. Xxxxxx
------------------------------------ Title: Assistant Vice President
Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signer
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