EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT (this "AGREEMENT") is entered into on May 7, 1997, by and
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among XXXXXXXX PRODUCTION COMPANY, a Delaware corporation with its principal
office in Tulsa, Oklahoma ("WPC"), THE XXXXXXXX COMPANIES, INC., a Delaware
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corporation with its principal office in Tulsa, Oklahoma ("XXXXXXXX"), XXXXXXXX
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COAL SEAM GAS ROYALTY TRUST (the "TRUST"), a Delaware business trust acting
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through NATIONSBANK OF TEXAS, N.A. (the "TRUSTEE"), a banking association
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organized under the laws of the United States of America with its principal
office in Dallas, Texas, as trustee, and QUATRO FINALE LLC, a Delaware limited
liability company with its principal office in New York, New York ("QUATRO
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FINALE");
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WITNESSETH:
WHEREAS, the Trust was formed as a Delaware business trust pursuant to that
certain Trust Agreement of Xxxxxxxx Coal Seam Gas Royalty Trust entered into
effective as of December 1, 1992, by and among WPC, as trustor, Xxxxxxxx, the
parent company of WPC, and NationsBank of Texas, N.A. and Chemical Bank Delaware
(the "DELAWARE TRUSTEE"), as trustees (as amended, the "TRUST AGREEMENT"), to
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acquire and hold certain net profits interests (the "ROYALTY INTERESTS") in
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proved coal seam gas properties located in the San Xxxx Basin of New Mexico and
Colorado (the "UNDERLYING PROPERTIES"); and
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WHEREAS, the Royalty Interests were conveyed to the Trust on January 21,
1993, pursuant to that certain Net Profits Conveyance (the "CONVEYANCE") dated
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effective as of October 1, 1992, by and among WPC, Xxxxxxxx, the Trustee and the
Delaware Trustee for the benefit of the unitholders of the Trust; and
WHEREAS, the Trustee and Xxxxxxxx are parties to that certain
Administrative Services Agreement dated effective December 1, 1992 (the
"SERVICES AGREEMENT"); and
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WHEREAS, pursuant to Article XV of the Conveyance, Xxxxxxxx agreed to cause
certain obligations of WPC (the "WPC PAYMENT OBLIGATIONS" as defined in the
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Conveyance) and of Xxxxxxxx Gas Marketing Company (the "WGM PAYMENT OBLIGATIONS"
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as defined in the Conveyance), a wholly-owned subsidiary of Xxxxxxxx ("WGM"), to
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be paid in full when due; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement dated
April 28, 1995, WFS Gas Resources Company, a Delaware corporation and a wholly-
owned subsidiary of Xxxxxxxx ("WFS RESOURCES"), fully assumed the WGM Payment
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Obligations; and
WHEREAS, in that certain Confirmation Agreement dated May 1, 1995 (the
"CONFIRMATION AGREEMENT"), Xxxxxxxx expressly confirmed that its agreement to
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cause the WGM Payment Obligations to be paid in full when due continued in full
force and effect notwithstanding the assignments by WGM to WFS Resources of the
Sales Contract (as
defined in the Conveyance) and the Gas Gathering Contract (as defined in the
Conveyance); and
WHEREAS, WPC and Quatro Finale have entered into that certain Purchase and
Sale Agreement dated as of May 1, 1997 (the "PURCHASE AGREEMENT") whereby WPC
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has agreed to sell and Quatro Finale has agreed to purchase the Underlying
Properties;
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. ASSIGNMENT AND ASSUMPTION. The parties hereby acknowledge that WPC is
selling the Underlying Properties to Quatro Finale, but retaining all of its
duties and obligations under the Trust Documents (as defined below), subject to
the terms and conditions set forth in the Purchase Agreement and the agreements
entered into pursuant to the Purchase Agreement.
2. CONFIRMATION OF OBLIGATIONS OF WPC AND XXXXXXXX. Xxxxxxxx and WPC each
confirm and agree that (i) Xxxxxxxx and WPC shall continue to perform their
respective obligations to the Trust pursuant to the Trust Agreement, the
Conveyance, the Services Agreement, the Confirmation Agreement and all other
related agreements (such documents, collectively, the "TRUST DOCUMENTS"),
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notwithstanding the sale of the Underlying Properties to Quatro Finale, and
notwithstanding any provision of the Trust Documents, including without
limitation Article VI of the Trust Agreement and Articles XIV and XV of the
Conveyance, if applicable, and (ii) such agreements of Xxxxxxxx and WPC
constitute valid and binding agreements of each, respectively.
3. ACKNOWLEDGMENT OF TRUST'S OWNERSHIP OF THE ROYALTY INTERESTS. Quatro
Finale acknowledges and agrees that it is purchasing the Underlying Properties
burdened by the Royalty Interests owned by the Trust.
4. TRUST DOCUMENTS IN FULL FORCE AND EFFECT. Each of Xxxxxxxx and WPC
hereby confirms that the Trust Documents are in full force and effect and that,
to the best of its knowledge, it is not in default or breach of any material
term or condition of any of the Trust Documents.
5. CONDITION TO EFFECTIVENESS. As a condition to the effectiveness of
this Agreement the Trust has received an opinion of counsel from Xxxxxxx X.
Xxxxxxxx, Assistant General Counsel of Xxxxxxxx, dated of even date herewith, to
the effect that neither this Agreement nor the transaction contemplated by the
Purchase Agreement is required to be submitted for approval by vote of the
unitholders of the Trust.
6. EFFECTIVE DATE. This Agreement shall be effective as of May 1, 1997
(the "EFFECTIVE DATE").
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7. DUE AUTHORIZATION. Each party represents and warrants, as to itself,
that such party has the requisite power and authority to execute, deliver and
perform this Agreement. Each party further represents and warrants, as to
itself, that this Agreement has been duly executed and delivered by such party
and is a valid and binding obligation of each of them.
8. ENTIRE AGREEMENT. This Agreement evidences the entire Agreement
between the parties with respect to the subject matter hereof and supersedes any
prior agreement, understanding, negotiation or discussion, whether oral or
written, between or among the parties to this Agreement with respect to the
subject matter hereof.
9. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. This
Agreement shall not be assigned by a party hereto without the prior written
consent of the other parties to this Agreement.
10. COUNTERPART EXECUTION. This Agreement may be executed in several
counterparts all of which are identical and each of which will be an original.
All of such counterparts together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written, but effective as of the Effective Date.
ATTEST: XXXXXXXX PRODUCTION COMPANY
By: /s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxx
Title: Assistant Secretary Title: Vice President and
General Manager
[Seal if by corporate officer]
ATTEST: THE XXXXXXXX COMPANIES, INC.
By: /s/ XXXXXX X. XXXXXXX By: /s/ XXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxx Name: Xxxx X. XxXxxxxx
Title: Assistant Secretary Title: Senior Vice President and
Chief Financial Officer
[Seal if by corporate officer]
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XXXXXXXX COAL SEAM GAS
ROYALTY TRUST,
ATTEST: By: NationsBank of Texas, N.A.,
Trustee
By: /s/ XXX X. XXXXX By: /s/ XXX XXXXXX
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Name: Xxx X. Xxxxx Name: Xxx Xxxxxx
Title: Assistant Vice President Title: Vice President
[Seal if by corporate officer]
QUATRO FINALE LLC
By: /s/ XXXXXX X. XXXXX, XX.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
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STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
The foregoing instrument was acknowledged before this 7th day of May, 1997,
by Xxxxx X. Xxxx, Vice President and General Manager of Xxxxxxxx Production
Company, a Delaware corporation, on behalf of said corporation.
/s/ XXXXX XXXXXX
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Notary Public
My commission expires:
MARCH 20, 1999
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STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
The foregoing instrument was acknowledged before me this 7th day of May,
1997, by Xxxx X. XxXxxxxx, Senior Vice President and Chief Financial Officer of
The Xxxxxxxx Companies, Inc., a Delaware corporation, on behalf of said
corporation.
/s/ XXXXX XXXXXX
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Notary Public
My commission expires:
MARCH 20, 1999
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STATE OF TEXAS )
) ss.
COUNTY OF DALLAS )
The foregoing instrument was acknowledged before me this 7th day of May,
1997, by Xxx X. Xxxxxx, Vice President of NationsBank of Texas, N.A., a national
banking association, as Trustee, on behalf of said corporation acting as trustee
of Xxxxxxxx Coal Seam Gas Royalty Trust.
/s/ XXXX X. XXXXX
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Notary Public
My commission expires:
OCTOBER 22, 1998
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STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
The foregoing instrument was acknowledged before me this 7th day of May,
1997, by Xxxxxx X. Xxxxx, Xx., Vice President of Quatro Finale LLC, a Delaware
limited liability company, on behalf of said limited liability company.
/s/ XXXXXXX XXXXXXXXX
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Notary Public
My commission expires:
JULY 27, 1997
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