ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT

Exhibit 10.1

ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT

THIS ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT (the “Assignment Agreement”) is made and entered into this 1st day of November, 2018 (the “Execution Date”) by and among XxxxXxxxx Energy, Inc. (“Assignor”), Avalon Energy, LLC (“Assignee”), and XxxxXxxxx Permian Trust, a statutory trust formed under the laws of the State of Delaware (“Consenting Party”) (Assignor, Assignee and Consenting Party are each sometimes referred in this Assignment Agreement as a “Party” and collectively as the “Parties”).

WHEREAS, Assignor and Consenting Party are parties to that certain Administrative Services Agreement dated as of 12:01 a.m. Central Time, April 1, 2011 attached hereto as Exhibit 1 and incorporated herein by reference (as may be amended from time to time, the “ASA”);

WHEREAS, in connection with that certain Purchase and Sale Agreement dated as of September 17, 2018 (as may be amended from time to time, the “Purchase Agreement”) by and among Assignor, XxxxXxxxx Exploration and Production, LLC, and Assignee, Assignor desires to assign and delegate to Assignee, from and after the Closing Date (as defined in the Purchase Agreement), all of its rights, duties and obligations in the ASA, and Assignee desires to accept such assignment and delegation and to assume all such rights, duties and obligations, from and after the Closing Date, in accordance with the terms hereof; and

WHEREAS, the Parties have entered into this Assignment Agreement subject to the satisfaction of certain conditions precedent, as set forth herein.

NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:

1.Assignment. In the event Closing (as defined in the Purchase Agreement) occurs under the Purchase Agreement, effective as of the Closing Date Assignor hereby assigns to Assignee, pursuant to Section 5.06 of the ASA, all of its rights, duties, obligations and liabilities in and to the ASA, including all known and unknown liabilities, that are to be performed or accrue on and after the Closing Date.

2. Assumption. In the event Closing occurs under the Purchase Agreement, effective as of the Closing Date Assignee hereby accepts such assignment and assumes and agrees to observe and perform the Liabilities (as defined below) of Assignor under or relating to the ASA, which are to be performed or accrue on and after the Closing Date to the extent such Liabilities arise from or relate to acts, omissions or events occurring or conditions existing at or after the Closing Date (the “Assumed Liabilities”). All Liabilities other than the Assumed Liabilities (the “Excluded Liabilities”), including but not limited to Liabilities (i) arising from or relating to acts, omissions or events occurring or conditions existing prior to the Closing Date but which have not been settled, paid or performed as of the Closing Date; or (ii) due and payable or due to be performed after the Closing Date, but which accrued with respect to or otherwise related to a period ending prior to the Closing Date, shall remain and be the obligation and responsibility of Assignor, and Assignee shall

1

not assume, discharge, perform or be responsible in any way for any Excluded Liabilities. For purposes of this Assignment Agreement, “Liabilities” means indebtedness, obligations (including the obligation to provide the Services (as defined in the ASA)), duties and other liabilities (including in respect of or arising out of any breach of contract or actual or alleged failure of Assignor to perform any obligation), whether absolute, accrued, contingent, fixed or otherwise, or whether due or to become due with respect to the ASA.

3. Acceptance by Consenting Party. Effective as of and from the Execution Date, Consenting Party hereby consents to the assignment of the ASA and, in the event Closing occurs under the Purchase Agreement, accepts Assignee as the party to perform the Liabilities of Assignor under the ASA.

4. Releases.

(a) In the event Closing occurs under the Purchase Agreement, effective as of and from the Closing Date Consenting Party hereby releases and forever discharges Assignor from any and all further obligations to Consenting Party with respect to the Assumed Liabilities, including any liability of any type as a consequence of, or relating to, the ASA, including, without limitation, all manner of action and inaction, cause or causes of action, suits, debts, dues, sums of money, claims and demands whatsoever at law or in equity arising out of, or which are in any way related to, the ASA, provided that, for certainty, the foregoing shall not release or discharge Assignor in respect of the settlement, payment or performance of any Excluded Liability, and all such Excluded Liabilities shall remain and be the obligation and responsibility of Assignor and shall be paid or performed by Assignor to the Consenting Party in accordance with the terms of the ASA as though such agreements had not been assigned.

(b) In the event Closing occurs under the Purchase Agreement, effective as of and from the Closing Date Assignor hereby releases and forever discharges Consenting Party from any and all further obligations to Assignor with respect to the ASA and from any and all liability of any type as a consequence of, or relating to, the ASA, including, without limitation, all manner of action and inaction, cause or causes of action, suits, debts, dues, sums of money, claims and demands whatsoever at law or in equity, arising out of or which are in any way related to, the ASA; provided that, for certainty, the foregoing shall not release or discharge Consenting Party in respect of the settlement, payment or performance of any liabilities or obligations: (i) arising from or relating to acts, omissions or events occurring or conditions existing prior to the Closing Date but which have not been settled, paid or performed as of the Closing Date; or (ii) due and payable or due to be performed after the Closing Date, but which accrued with respect to or otherwise related to period ending prior to the Closing Date (including but not limited to (A) the payment in accordance with Section 3.01(a) of the ASA of the pro rata portion of the Administrative Services Fee (as defined in the ASA) that shall have accrued with respect to the period from July 1, 2018 to but not including the Closing Date (the “Pre-Closing Period”) and (B) the reimbursement in accordance with Section 3.01(b) of the ASA of any External Expenses (as defined in the ASA) associated with the provision of Services in the Pre‑Closing Period) (for avoidance of doubt, (i) and (ii) collectively constitute the “Consenting Party Excluded Liabilities”), and all such Consenting Party Excluded Liabilities shall remain and be the obligation and responsibility of Consenting Party and shall be paid or

performed by Consenting Party to the Assignor in accordance with the terms of the ASA as though such agreements had not been assigned.

5. Further Actions. Each of the Parties hereto covenants and agrees, at its own expense, to execute and deliver, at the request of another Party hereto, such further instruments of transfer and assignment, and to take such other action, as such other Party may reasonably request to more effectively consummate the assignments and assumptions contemplated by this Assignment Agreement.

6. Notice of Closing. Promptly following the Closing, Assignor and Assignee shall each provide separate written notice to Consenting Party confirming that the Closing has occurred.

7. Governing Law. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS IN ANY OTHER JURISDICTION.

8. Notice. All notices, requests, consents, demands and other communications required or permitted hereunder shall be 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 Business Day (as defined in the ASA) 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, to:

XxxxXxxxx Permian Trust

x/x Xxx Xxxx xx Xxx Xxxx Xxxxxx Trust Company, N.A.

000 Xxxxxx Xxxxxx, 00^xx Xxxxx

Xxxxxxx, Xxxxx 00000

Attention: Xxxxx Xxxxxx

With a copy to:

Xxxxxxxxx LLP

000 Xxxxxxxx Xxxxxx, Xxxxx 0000

Xxxxxx, Xxxxx 00000

Attention: Xxxxxx X. Xxxxxx

(b) If to Assignor, to:

XxxxXxxxx Energy, Inc.

000 Xxxxxx X. Xxxx Xxxxxx

Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000

Attention: Xxxxxx Xxxxxx

Xxxx Xxxxxxx

With a copy to:

Xxxxxx & Xxxxxx LLP

0000 Xxxxxx Xxxxxx, Xxxxx 0000

Xxxxxxx, Xxxxx 00000

Attention: Xxxxx Xxxxxx Xxxxxx

Xxxxxx Xxxxxx

(c) If to Assignee, to:

Avalon Energy, LLC

X. Xxxxxx Xxxxxxx, Xxxxx 000

Xxxxxx, Xxxxx 00000

Attention: Xxxxxxx X. Xxxxxxxxxx, Xx.

With a copy to:

Xxxxxx Xxxxx Xxxx & Xxxx, P.C.

000 X. Xxxxx Xxxxxx, Xxxxx 0000

Xxxxxx, Xxxxx 00000

Attention: Xxxx Xxxxxxxx

or to such other address as such Party may have furnished to the other Parties identified in this Section 8 in writing in accordance herewith.

9. Entire Agreement. This Assignment Agreement, and all exhibits and schedules hereto, represents the entire understanding and agreement between the Parties with respect to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings between the Parties.

10. No Third Party Beneficiaries. This Assignment Agreement is entered into for the sole benefit of the Parties, and except as specifically provided herein, no other person shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with, this Assignment Agreement.

11. Counterparts. The Parties agree that this Assignment Agreement may be executed in two or more counterparts, each and all of which shall be deemed an original and all of which together shall constitute but one and the same instrument. The facsimile signature of any Party to this Agreement or a PDF copy of the signature of any Party to this Assignment Agreement delivered by electronic mail for purposes of execution or otherwise, shall have the same binding effect as the delivery of an original signature on this Assignment Agreement.

[Signature page to follow]

IN WITNESS WHEREOF, the Parties have executed this Assignment Agreement as of the date first above written.

Assignor:

XXXXXXXXX ENERGY, INC.

By:     /S/ Xxxxxxx X. Xxxxxxx, Xx.

Name:     Xxxxxxx X. Xxxxxxx, Xx.

Title:     President and Chief Executive Officer

SIGNATURE PAGE TO ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT

Assignee:

AVALON ENERGY, LLC

By:     /S/ Xxxxxxx X. Xxxxxxxxxx, Xx.

Name:     Xxxxxxx X. Xxxxxxxxxx, Xx.

Title:     President & CEO

SIGNATURE PAGE TO ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT

Consenting Party:

XXXXXXXXX PERMIAN TRUST

By: The Bank of New York Mellon Trust Company, N.A., as Trustee

By:     /S/ Xxxxx Xxxxxx

Name:     Xxxxx Xxxxxx

Title:     Vice President

SIGNATURE PAGE TO ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT

EXHIBIT 1

ADMINISTRATIVE SERVICES AGREEMENT

This Administrative Services Agreement (this “Agreement”) by and between XxxxXxxxx Energy, Inc., a Delaware corporation, with offices at 000 Xxxxxx X. Xxxx Xxxxxx, Xxxxxxxx Xxxx, XX 00000-0000 (the “Company”), and XxxxXxxxx Permian Trust, a statutory trust formed under the laws of the State of Delaware (the “Trust”) is delivered to be effective as of 12:01 a.m., Central Time, April 1, 2011 (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 that certain Term Overriding Royalty Interest Conveyance (PDP), that certain Term Overriding Royalty Interest Conveyance (Development), that certain Perpetual Overriding Royalty Interest Conveyance (PDP) and that certain Perpetual Overriding Royalty Interest Conveyance (Development), each effective as of the Effective Time (collectively, the “Conveyances”), XxxxXxxxx Exploration and Production, LLC has caused to be conveyed to the Trust or Mistmada Oil Company, Inc., an Oklahoma corporation (the “Company Subsidiary”), as applicable, overriding royalty interests in certain oil and natural gas properties located in Xxxxxxx County, Texas (the “Royalty Interests”);

WHEREAS, the Company Subsidiary has assigned all of its Royalty Interests to the Trust, and consequently the Trust holds all of the Royalty Interests; 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

Section 1.01 Definitions. As used in this Agreement, the following terms have the respective meanings set forth below:

“AAA” has the meaning set forth in Section 2.07.

“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 to this Agreement.

“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.

“Claimant” has the meaning set forth in Section 2.07.

“Closing Date” means August 16, 2011.

“Company” has the meaning set forth in the introductory paragraph to this Agreement.

“Company Subsidiary” has the meaning set forth in the recitals to this Agreement.

“Conveyances” has the meaning set forth in the recitals to this Agreement.

“Derivatives Agreement” means that certain Derivatives Agreement, dated as of August 16, 2011, by and between the Company and the Trust, as the same may be amended from time to time.

“Development Agreement” means that certain Development Agreement, effective as of the Effective Time, by and among the Company, XxxxXxxxx Exploration and Production, LLC, and the Trust, as the same may be amended from time to time.

“Direct Hedge Contracts” means the Initial Direct Xxxxxx and the Future Direct Xxxxxx, in each case, as such contracts may be restructured, amended or modified from time to time.

“Effective Time” has the meaning set forth in the introductory paragraph to this Agreement.

“Excess Hedged Volumes” has the meaning set forth in Section 2.02(c).

“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 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.

“Future Direct Xxxxxx” means oil and natural gas derivative contracts that are entered into by the Trust after the Closing Date (i) upon the assignment, novation or other transfer of any of the XxxxXxxxx Hedge Contracts (or any portion thereof), or the replacement of XxxxXxxxx Hedge Contracts (or any portion thereof), in each case in accordance with the terms of the Derivatives Agreement, or (ii) in connection with the Reset of existing Direct Hedge Contracts in accordance with Section 2.02(c) of this Agreement.

“Initial Direct Xxxxxx” means those oil and natural gas derivative contracts specified on Schedule 1 to the Trust Agreement, which contracts are to be entered into by the Trust with counterparties on or substantially concurrent with the Closing Date.

“Person” means any natural person, corporation, partnership, trust, estate or other entity, organization, or association.

“Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of August 16, 2011, by and between the Trust and the Company.

“Reset” has the meaning set forth in Section 2.02(c).

“Respondent” has the meaning set forth in Section 2.07.

“Royalty Interests” has the meaning set forth in the recitals to this Agreement.

“Rules” has the meaning set forth in Section 2.07.

“XxxxXxxxx Hedge Contracts” means those oil and natural gas derivative contracts identified on Exhibit A to the Derivatives Agreement, as such contracts may be restructured, amended or modified from time to time.

“Services” has the meaning set forth in Section 2.01.

“Special Provisions” has the meaning set forth in Section 2.07.

“Termination Date” has the meaning set forth in Section 5.01.

“Trust” has the meaning set forth in the introductory paragraph to this Agreement.

“Trust Agreement” means that certain Amended and Restated Trust Agreement of the Trust, dated as of August 16, 2011 (as may be amended from time to time), by and among the Company, the Trustee and The Corporation Trust Company, as Delaware trustee.

“Trustee” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America with its principal place of business in New York, New York, as trustee, acting not in its individual capacity but solely as trustee of the Trust.

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

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 (a) services as are necessary to fulfill the purposes of the Trust as set forth in Section 2.02 of the Trust Agreement, including 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 Forms K-1 in each case, that the Trust may reasonably request the Company provide during the term of this Agreement; (b) services of a similar character and scope to those in the foregoing clause (a); (c) services that may be required to satisfy the Trust’s obligations under the Registration Rights Agreement; and (d) services described in Section 2.02 of this Agreement related to the Trust’s hedging arrangements (all of the foregoing services, the “Services”). As a component of the Services, the Company shall, upon request of the Trust at any time, certify to the Trust the information necessary to make or confirm the calculations, computations and determinations required to be made from time to time under the various agreements to which the Company and the Trust (or Trustee) are parties, including, without limitation, all amounts and other facts necessary to make the various calculations, computations and determinations to be made under the Development Agreement.

Section 2.02 Hedge Manager Services.

(a) The Company shall serve as hedge manager for the Trust. In this capacity, the Company shall administer, on behalf of the Trust, the Direct Hedge Contracts, including determining amounts owed by or to the Trust under the Direct Hedge Contracts, reviewing amounts determined by the Calculation Agent (as defined in the Direct Hedge Contracts), reviewing and taking appropriate action in response to notices and other communications from counterparties to the Direct Hedge Contracts, drafting and delivering any confirmations, notices or other documents related to the Direct Hedge Contracts and taking any and all other actions that the Company, in its sole discretion, deems necessary or appropriate to administer the Direct Hedge Contracts.

(b) As hedge manager, the Company shall have the power and authority to negotiate on behalf of the Trust, with counterparties the terms and conditions of any Future Direct Hedge to be entered into by the Trust, including in connection with any assignment, novation or other transfer

to the Trust of a XxxxXxxxx Hedge Contract or the replacement of a XxxxXxxxx Hedge Contract with a Future Direct Hedge, in each case in accordance with the Derivatives Agreement, or upon the Reset of a Direct Hedge Contract in accordance with Section 2.02(c) of this Agreement.

(c) If at any time the Company reasonably determines that the remaining volumes of oil and natural gas hedged under the Direct Hedge Contracts and XxxxXxxxx Hedge Contracts exceed projected production of oil and natural gas attributable to the Royalty Interests for the period or periods covered by such Direct Hedge Contracts and XxxxXxxxx Hedge Contracts (such difference, the “Excess Hedged Volumes”), the Company may, in its sole discretion, negotiate, on behalf of the Trust, with the Trust’s counterparties under the Direct Hedge Contracts to reset, terminate or replace, or otherwise modify, the terms of all or any portion of the Direct Hedge Contracts in order for the Trust to eliminate or reduce such Excess Hedged Volumes (any such action, a “Reset”). The Company shall use commercially reasonable efforts to negotiate terms that would effect any such Reset in a manner that is cash neutral or advantageous to the Trust, but shall have no affirmative duty to negotiate for, or actually reset or otherwise modify, any Direct Hedge Contracts on behalf of the Trust. In connection with any Reset in accordance with this Section 2.02(c), the Company shall provide the Trust with (i) written notice identifying the Direct Hedge Contracts (or portions thereof) being reset and describing the material terms of the Reset, including a summary of the volumes, periods, and prices affected by the Reset, and (ii) copies of any revised or new transaction confirmations or other documents evidencing the Future Direct Xxxxxx proposed to be entered into by the Trust in conjunction with such Reset. For the avoidance of doubt, the Company shall have no affirmative duty to undertake any Reset and shall incur no liability in connection with affirmatively undertaking (or failing to undertake) a Reset (other than a failure to use its commercially reasonable efforts in effecting a Reset as expressly set forth in this Section 2.02(c) or for undertaking a Reset in bad faith).

(d) The Trustee shall cooperate with the Company in connection with any Reset or any other action the Company takes with respect to the Direct Hedge Contracts, to the extent reasonably requested to do so by the Company, including executing definitive documentation with counterparties. However, the Trustee shall have neither the right nor the responsibility to approve the terms and conditions of any Reset, which authority and responsibility shall rest solely with the Company, as hedge manager for the Trust.

Section 2.03 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 in accordance with this Agreement, 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 2.04 Intellectual Property. Any (a) inventions, whether patentable or not, developed or invented, or (b) 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, that the Trust shall be granted an irrevocable, royalty-free, non-exclusive and non-transferable right and license to use such inventions or material; provided, further, 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 Company. Notwithstanding the foregoing, the Company will use all commercially reasonable efforts to grant such right and license to the Trust.

Section 2.05 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, 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. The Company shall not be a fiduciary with respect to the Trust or Trustee and shall owe no fiduciary duties or liabilities to the Trust or Trustee.

Section 2.06 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 2.06 WILL SURVIVE TERMINATION OF THIS AGREEMENT.

Section 2.07 Disputes. ANY DISPUTE, CONTROVERSY OR CLAIM THAT MAY ARISE BETWEEN OR AMONG THE COMPANY (ON THE ONE HAND) AND THE TRUST (ON THE OTHER HAND) IN CONNECTION WITH OR OTHERWISE RELATING TO THIS AGREEMENT, THE NATURE OR QUALITY OF THE SERVICES, THE CALCULATION OR ALLOCATION OF THE ADMINISTRATIVE SERVICES FEE OR EXTERNAL EXPENSES OR THE APPLICATION, IMPLEMENTATION, VALIDITY OR BREACH OF THIS AGREEMENT, SHALL BE FINALLY, CONCLUSIVELY AND EXCLUSIVELY SETTLED BY BINDING

ARBITRATION IN OKLAHOMA CITY, OKLAHOMA 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 TRUST HEREBY EXPRESSLY WAIVE THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO TRIAL BY JURY, WITH RESPECT TO ANY MATTER SUBJECT TO ARBITRATION PURSUANT TO THIS SECTION 2.07. EITHER THE COMPANY OR THE TRUST MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, IN ANY COURT HAVING JURISDICTION, TO COMPEL ARBITRATION OF ANY DISPUTE, CONTROVERSY OR CLAIM TO WHICH THIS SECTION 2.07 APPLIES. EXCEPT WITH RESPECT TO THE FOLLOWING PROVISIONS (THE “SPECIAL PROVISIONS”) WHICH SHALL APPLY WITH RESPECT TO ANY ARBITRATION PURSUANT TO THIS SECTION 2.07, 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 ACTUALLY PRINTED HEREIN.

(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 2.07.

(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 Oklahoma City, Oklahoma office of AAA (if no such office exists, to the Dallas, Texas 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 Oklahoma City, Oklahoma office of AAA (if no such office exists, to the Dallas, Texas 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 2.07, the Company (on the one hand) and the Trust (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 2.07) within such fifteen day period; provided, that if the party by or on behalf of whom such arbitrator was appointed shall fail to appoint a substitute arbitrator within 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, 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 New York 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 2.07, 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 2.07 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 Oklahoma City, Oklahoma 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 (as defined in the Trust Agreement).

The provisions of this Section 2.07 will survive termination of this Agreement.

ARTICLE III

ADMINISTRATIVE SERVICES FEE; REIMBURSEMENT OF EXPENSES

Section 3.01 Administrative Services Fee; Reimbursement of External Expenses.

(a) The Trust shall pay to the Company an annual administrative services fee of $300,000 (the “Administrative Services Fee”), which shall be paid in immediately available funds and in equal quarterly installments, on or before the 45th 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.

(b) In addition to the Administrative Services Fee, the Trust shall reimburse the Company on or before the 45th 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 or any of its Affiliates 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 (and the Company’s Affiliates, as the case may be) 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

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

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) the date the Trust shall have dissolved and commenced winding up its business and affairs in accordance with Section 9.02 of the Trust Agreement;

(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, that the Company shall not terminate this 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 Section 5.01(a)(i) or (ii), 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 such time. Upon termination of this Agreement in accordance with Section 5.01(a)(iii), the Company’s obligations to provide Services shall cease only with respect to the Subject Interests transferred, and shall otherwise continue unabated. In the event that the Company terminates this Agreement with respect to Subject Interests transferred in accordance with Section 5.01(a)(iii), the Administrative Services Fee shall be proportionately reduced, unless the Company certifies to the Trustee that such transfer of the Subject Interests will not result in a material decrease in the Company’s costs of providing the Services to the Trust with respect to the remaining Subject Interests.

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 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:

XxxxXxxxx Permian Trust

x/x Xxx Xxxx xx Xxx Xxxx Xxxxxx Trust Company, N.A.

Institutional Trust Services

000 Xxxxxxxx Xxxxxx, Xxxxx 000

Xxxxxx, Xxxxx 00000

Attention: Xxxxxxx 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

(b) if to the Company, to:

XxxxXxxxx Energy, Inc.

000 Xxxxxx X. Xxxx Xxxxxx

Xxxxxxxx Xxxx, XX 00000-0000

Attention: Xxxxxx X. Xxxxxx

Facsimile No.: (000) 000-0000

With a copy to:

Xxxxxxxxx & Xxxxxxx LLP

0000 Xxxxxxxxxxxx Xxxxxx, X.X.

Xxxxxxxxxx, X.X. 00000

Attention: Xxxxx X. Xxxxxxx

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; Third Party Beneficiaries. This Agreement, together with all other agreements and documents contemplated to be executed and delivered in connection with the transactions contemplated hereby, 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. This Agreement does not confer upon any Person, other than the parties hereto, any rights or remedies.

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 2.03, 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 written consent of the other party to this Agreement.

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 NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.

Section 5.11 Limitation of Trustee’s 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. Further, the Trust’s obligations under the Direct Hedge Contracts shall be the sole liability and responsibility of the Trust, and the Trustee shall have no liability for any amounts due under any Direct Hedge Contract, XxxxXxxxx Hedge Contract or Reset.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

XxxxXxxxx Energy, Inc.
By:	/S/ Xxxxx X. Xxxxxxx
	Name: Xxxxx X. Xxxxxxx
	Title: Executive Vice President and Chief Financial Officer

XxxxXxxxx Permian Trust
By: The Bank of New York Mellon Trust Company, N.A., as Trustee
By:	/S/ Xxxxxxx X. Xxxxxx
	Name: Xxxxxxx X. Xxxxxx
	Title: Vice President