Administrative Services Agreement
Exhibit 10.10
THIS ADMINISTRATIVE SERVICES AGREEMENT (this “Agreement”) by and between ENERGY
CORPORATION OF AMERICA, a West Virginia corporation, with offices at 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000-0000 (“Company”), 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 offices at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, as trustee (the
“Trustee”), acting not in its individual capacity but solely as trustee of the ECA
Marcellus Trust I, a statutory trust formed under the laws of the State of Delaware (the
“Trust”) under that certain Amended and Restated Trust Agreement dated as of ,
2010, (as the same may be amended from time to time, the “Trust Agreement”) is delivered to
be effective as of 7:00 a.m., Eastern Time, , 2010 (the “Effective Time”). All
capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in
Article I below.
WHEREAS, pursuant to each of a Term Overriding Royalty Interest Conveyance (PDP), a Term
Overriding Royalty Interest Conveyance (PUD), a Perpetual Overriding Royalty Interest Conveyance
(PDP), a Perpetual Overriding Royalty Interest Conveyance (PUD) and a Private Investor Overriding
Royalty Interest Conveyance each dated as of (the “Conveyances”), the Company
and certain private investors, as applicable, have conveyed to the Trustee or Eastern Marketing
Corporation (the “Company Subsidiary”), as applicable, royalty interests in certain oil and
gas properties located in Xxxxxx County, Pennsylvania (the “Royalty Interests”);
WHEREAS, the Company Subsidiary has assigned its Royalty interests to the Trustee, and
consequently the Trustee, on behalf of the Trust, holds all of the Royalty Interests described
above; and
WHEREAS, in connection with the Conveyances, the Company has agreed to provide certain
administrative services for the Trust in exchange for an administrative services fee as described
herein.
NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intended to be legally bound hereby, it is agreed as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.01 Definitions. As used in this Agreement, the following terms have the
respective meanings set forth below or set forth in the Sections referred to below:
“AAA” has the meaning set forth in Section 2.06.
“Administrative Services Fee” has the meaning set forth in Section 3.01.
“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.
“Agreement” has the meaning set forth in the introductory paragraph.
“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, Denver, Colorado or Austin, Texas are closed as authorized or
required by law.
“Claimant” has the meaning set forth in Section 2.06.
“Company” has the meaning set forth in the introductory paragraph.
“Company Subsidiary” has the meaning set forth in the recitals.
“Conveyances” has the meaning set forth in the recitals.
“Development Agreement” means that certain Development Agreement of even date herewith between
the Company and the Trustee, as the same may be amended from time to time.
“External Expenses” means the actual out-of-pocket fees, costs and expenses incurred by the
Company in connection with the provision of the Services.
“Force Majeure” shall mean any cause beyond the reasonable control of the Company, including
the following causes: acts of God, strikes, lockouts, acts of the public enemy, wars or warlike
action (whether actual or impending), arrests and other restraints of government (civil or
military), blockades, embargoes, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, sabotage, tornadoes, named tropical storms and hurricanes, and floods, civil
disturbances, terrorism, mechanical breakdown of machinery or equipment, explosions, confiscation
or seizure by any government or other public authority, any order of any court of competent
jurisdiction, regulatory agency or governmental body having jurisdiction.
“Person” means any natural person, corporation, partnership, trust, estate, or other entity,
organization, or association.
“Respondent” has the meaning set forth in Section 2.06.
“Royalty Interests” has the meaning set forth in the recitals.
“Rules” has the meaning set forth in Section 2.06.
“Services” has the meaning set forth in Section 2.01.
“Special Provision” has the meaning set forth in Section 2.06.
“Termination Date” has the meaning set forth in Section 5.01.
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“Trust” has the meaning set forth in the introductory paragraph.
“Trust Agreement” has the meaning set forth in the introductory paragraph.
“Trustee” has the meaning set forth in the introductory paragraph.
Section 1.02 Construction. Unless the context requires otherwise: (a) any pronoun
used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the plural and vice versa; (b) references
to Articles and Sections refer to Articles and Sections of this Agreement; (c) the terms “include,”
“includes,” “including” or words of like import shall be deemed to be followed by the words
“without limitation;” and (d) the terms “hereof,” “herein” or “hereunder” refer to this Agreement
as a whole and not to any particular provision of this Agreement. The headings contained in this
Agreement are for reference purposes only, and shall not affect in any way the meaning or
interpretation of this Agreement.
ARTICLE II
SERVICES
SERVICES
Section 2.01 Services. Subject to the terms of this Agreement and in exchange for the
payments described in Section 3.01, the Company hereby agrees to provide the Trust with
such services as are necessary to fulfill the purposes of the Trust as set forth in the Trust
Agreement and such other administrative services of similar character and scope to the foregoing
that the Trustee may reasonably request the Company to provide during the term of this Agreement,
including, without limitation, such accounting, bookkeeping and informational services as may be
necessary for the preparation of reports the Trust is or may be required to prepare and/or file in
accordance with applicable tax and securities laws, exchange listing rules, and other requirements,
including reserve reports, tax returns and K-1s (all of the foregoing being herein called the
“Services”).
Section 2.02 Performance of Services by Others. The parties hereby agree that in
discharging the Company’s obligations under this Agreement, the Company may, in its sole
discretion, engage any other Person, including its Affiliates, to perform the Services (or any part
of the Services) on its behalf and that, subject to the Company’s right to reimbursement for
external expenses, the performance of the Services (or any part of the Services) by any such Person
shall be treated as if the Company performed such Services itself. Notwithstanding the foregoing,
nothing contained herein shall relieve the Company of its obligations hereunder.
Section 2.03 Intellectual Property. Any (i) inventions, whether patentable or not,
developed or invented, or (ii) copyrightable material (and the intangible rights of copyright
therein) developed, in each case by the Company, its Affiliates or its or their employees in
connection with the performance of the Services shall be the property of the Company; provided,
however, that the Trust shall be granted an irrevocable, royalty-free, non-exclusive and
non-transferable right and license to use such inventions or material; and provided further,
however, that the Trust shall only be granted such a right and license to the extent such grant
does not conflict with, or result in a breach, default, or violation of a right or license to use
such inventions or material granted to the Company by any Person other than an Affiliate of the
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Company. Notwithstanding the foregoing, the Company will use all commercially reasonable
efforts to grant such right and license to the Trust.
Section 2.04 Independent Status. It is expressly acknowledged by the parties hereto
that each party is an “independent contractor” and nothing in this Agreement is intended nor shall
be construed to create an employer/employee relationship, or a joint venture or partnership
relationship, or to allow any party to exercise control or direction over the other party. Except
as required in connection with the performance of the Services, neither the Company nor any agent,
employee, servant, contractor or subcontractor of the Company or any of its Affiliates shall have
the authority to bind the Trust to any contract or arrangement. Neither the Trust nor the Trustee
shall be liable for the salary, wages or benefits, including workers’ compensation insurance and
unemployment insurance, of any employee, agent, servant, contractor or subcontractor of the Company
or its Affiliates by virtue of this Agreement.
Section 2.05 Warranties; Limitation of Liability. The Company will use commercially
reasonable efforts to provide the Services in a good and workmanlike manner in accordance with the
sound and prudent practices of providers of similar services. EXCEPT AS SET FORTH IN THE PRECEDING
SENTENCE, THE COMPANY MAKES NO (AND HEREBY DISCLAIMS AND NEGATES ANY AND ALL) WARRANTIES OR
REPRESENTATIONS WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES. IN NO EVENT WILL THE
COMPANY OR ANY OF ITS AFFILIATES BE LIABLE TO ANY OF THE PERSONS RECEIVING ANY SERVICES OR TO ANY
OTHER PERSON FOR ANY EXEMPLARY, PUNITIVE, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL
DAMAGES RESULTING FROM ANY ERROR IN THE PERFORMANCE OF SUCH SERVICES, REGARDLESS OF WHETHER THE
PERSON PROVIDING SUCH SERVICES, ITS AFFILIATES OR OTHERS MAY BE WHOLLY, CONCURRENTLY, PARTIALLY OR
SOLELY NEGLIGENT OR OTHERWISE AT FAULT, EXCEPT TO THE EXTENT SUCH EXEMPLARY, PUNITIVE, DIRECT,
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARE PAID BY THE PARTY INCURRING SUCH DAMAGES
TO A PERSON THAT IS NOT A PARTY TO THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 2.05
WILL SURVIVE TERMINATION OF THIS AGREEMENT.
Section 2.06 Disputes. ANY DISPUTE, CONTROVERSY OR CLAIM THAT MAY ARISE BETWEEN OR
AMONG THE COMPANY (ON THE ONE HAND) AND THE TRUST OR THE TRUSTEE (ON THE OTHER HAND) IN CONNECTION
WITH OR OTHERWISE RELATING TO THIS AGREEMENT, THE NATURE OR QUALITY OF THE SERVICES OR THE
CALCULATION OR ALLOCATION OF THE ADMINISTRATIVE SERVICES FEE OR EXTERNAL EXPENSES, THE APPLICATION,
IMPLEMENTATION, VALIDITY OR BREACH OF THIS AGREEMENT, 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 COMPANY AND THE TRUSTEE (AND ON BEHALF OF
THE TRUST) HEREBY EXPRESSLY WAIVE THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING, WITHOUT
LIMITATION, THE RIGHT TO TRIAL BY JURY, WITH RESPECT TO ANY
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MATTER SUBJECT TO ARBITRATION PURSUANT TO THIS SECTION 2.06. THE COMPANY AND TRUSTEE
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
SECTION 2.06APPLIES. EXCEPT WITH RESPECT TO THE FOLLOWING PROVISIONS (THE “SPECIAL
PROVISIONS”) WHICH SHALL APPLY WITH RESPECT TO ANY ARBITRATION PURSUANT TO THIS SECTION
2.06, 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 Section
2.06.
(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 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 Section 2.06, the Company (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 fifteen 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 Section 2.06) within such fifteen 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
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such fifteen 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 one hundred twenty 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 sixty 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 Section
2.06, 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.
(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 Section 2.06 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
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to any provision in this Agreement when the Trustee is unsure of its obligations thereunder,
or (iv) apply to the Delaware Trustee (as defined in the Trust Agreement).
The provisions of this Section 2.06 will survive termination of this Agreement.
ARTICLE III
ADMINISTRATIVE SERVICES FEE
ADMINISTRATIVE SERVICES FEE
Section 3.01 Administrative Services Fee. The Trust shall pay to the Company an
annual administrative services fee of $60,000 (the “Administrative Services Fee”), which
shall be paid in immediately available funds and in equal quarterly installments, on or before the
25th day following each calendar quarter. In the event that this Agreement is
terminated during a calendar quarter pursuant to Section 5.01, the amount of the
Administrative Services Fee for such calendar quarter shall be based upon the pro rata portion of
the Administrative Services Fee that shall have accrued during such quarter up to and including the
Termination Date. In addition to the Administrative Services Fee, the Trust shall reimburse the
Company on or before the 25th day following each calendar quarter for all reasonable and
necessary External Expenses associated with the provision of Services in the preceding quarter as
set forth in a reasonably detailed invoice provided by the Company to the Trust on or before the
15th day following each calendar quarter.
Section 3.02 Set-Off. In the event that the Company owes the Trust a sum certain in
an uncontested amount under any other agreement, then any such amounts may, in the sole discretion
of the Company, be aggregated and the Trust and the Company shall discharge their obligations by
netting those amounts against any amounts owed by the Trust to the Company under this Agreement.
ARTICLE IV
FORCE MAJEURE
FORCE MAJEURE
Section 4.01 Force Majeure. The Company’s obligation under this Agreement shall be
excused when and to the extent its performance of that obligation is prevented due to Force
Majeure. The Company shall promptly notify the Trustee that it is prevented from performing its
obligations by reason of Force Majeure and shall exercise due diligence to end its inability to
perform as promptly as practicable. Notwithstanding the foregoing, the Company shall not be
required to settle any strike, lockout or other labor dispute in which it or any of its Affiliates
may be involved.
ARTICLE V
MISCELLANEOUS
MISCELLANEOUS
Section 5.01 Term and Termination.
(a) This Agreement shall become effective on the date of this Agreement and shall continue
until the date (the “Termination Date”) that is the earliest of:
(i) June 30, 2030;
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(ii) the date that all of the Conveyances have been terminated or are no longer held by the
Trust;
(iii) the date that either the Company or the Trustee may designate by delivering a written
notice no less than 90 days prior to such date, provided that the Company’s drilling obligations
under the Development Agreement shall have been completed by such date; provided further, however,
that the Company shall not terminate this Administrative Services Agreement except in connection
with the Company’s transfer of some or all of the Subject Interests, as defined in the Conveyances,
and then only with respect to the Services to be provided with respect to the Subject Interests
being transferred, and only upon the delivery to the Trustee of an agreement of the transferee of
such Subject Interests reasonably satisfactory to the Trustee in which such transferee assumes the
responsibility to perform the Services relating to the Subject Interests being transferred; and
(iv) the date as mutually agreed by the parties to this Agreement.
(b) Upon termination of this Agreement in accordance with this Section 5.01, all
rights and obligations under this Agreement shall cease except for (i) obligations that expressly
survive termination of this Agreement, (ii) liabilities and obligations that have accrued prior to
the Termination Date, including the obligation to pay any amounts that have become due and payable
prior to such Termination Date, and (iii) the obligation to pay any portion of the Administrative
Services Fee that has accrued prior to such Termination Date, even if such portion has not become
due and payable at the time of termination.
Section 5.02 Notice. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, by facsimile, by courier guaranteeing
overnight delivery or by first-class mail, return receipt requested, and shall be deemed given (i)
when made, if made by hand delivery, (ii) upon confirmation, if made by facsimile, (iii) one (1)
Business Day after being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the parties as follows:
| (a) | if to the Trust or the Trustee, to: |
ECA Marcellus Trust I
x/x Xxx Xxxx xx Xxx Xxxx Xxxxxx Trust Company, N.A.
Institutional Trust Services
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
x/x Xxx Xxxx xx Xxx Xxxx Xxxxxx Trust Company, N.A.
Institutional Trust Services
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Bracewell & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
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| (b) | if to the Company, to: |
Energy Corporation of America
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
000 00xx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No. (000) 000-0000
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No. (000) 000-0000
or to such other address as such Person may have furnished to the other Persons identified in
this Section 5.02 in writing in accordance herewith.
Section 5.03 Entire Agreement; Supersedure. This Agreement constitutes the entire
agreement of the parties relating to the matters contained herein, superseding all prior contracts
or agreements, whether written or oral, relating to the matters contained herein.
Section 5.04 Effect of Waiver or Consent. Except as otherwise provided in this
Agreement, a waiver or consent, express or implied, to or of any breach or default by any party in
the performance by that party of its obligations under this Agreement is not a consent or waiver to
or of any other breach or default in the performance by that party of the same or any other
obligations of that party under this Agreement.
Section 5.05 Amendment or Modification. This Agreement may be amended or modified
from time to time only by a written instrument executed by each of the parties to this Agreement.
Section 5.06 Assignment. Except as provided in Section 2.02, and except for
any transfer of the rights of the Trustee hereunder to a successor trustee of the Trust, no party
to this Agreement shall have the right to assign its rights or obligations under this Agreement
without the consent of the other party to this Agreement.
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Section 5.07 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all parties to this Agreement had signed the same document.
All counterparts shall be construed together and shall constitute one and the same instrument.
Section 5.08 Severability. If any provision of this Agreement or the application
thereof to any party to this Agreement or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such provision to the other
party to this Agreement or circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
Section 5.09 Further Assurances. In connection with this Agreement and all
transactions contemplated by this Agreement, each party hereto agrees to execute and deliver such
additional documents and instruments and to perform such additional acts as may be necessary or
appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of
this Agreement and all such transactions.
Section 5.10 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT
OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| ENERGY CORPORATION OF AMERICA |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee of ECA Marcellus Trust I |
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| By: | ||||
| Name: | ||||
| Title: | ||||
