EXHIBIT 4.1
BP PRUDHOE BAY ROYALTY TRUST AGREEMENT
THIS ROYALTY TRUST AGREEMENT (the "Agreement"), made and entered
into as of the 28th day of February, 1989, by and among The Standard Oil
Company, an Ohio corporation having its principal office in Cleveland, Ohio
("SOC"), as depositor and trustor, BP Exploration (Alaska) Inc., a Delaware
corporation having its principal office in Anchorage, Alaska (formerly
Standard Alaska Production Company) (the "Company"), The Bank of New York, a
corporation organized under the laws of the State of New York, authorized to
do a banking business and having a principal corporate trust office in New
York, New York, as trustee and F. James Hutchinson, a resident of the State of
Delaware, as co-trustee.
WHEREAS, the Company is engaged in the business of developing and
producing.oil and gas and owns mineral interests in lands that contain proved
reserves and are currently producing oil and gas; and
WHEREAS, the Company has determined to convey to SOC the Initial
Royalty Interest (hereinafter defined) pursuant to an Overriding Royalty
Conveyance (as hereinafter defined); and WHEREAS, SOC has determined to offer
and sell trust units representing undivided beneficial interests in the Trust,
which will own the Initial Royalty Interest; and
WHEREAS, SOC has determined to grant to the Trust the Initial
Royalty Interest pursuant to a Trust Conveyance (as hereinafter defined) in
consideration of the issuance by the Trust of the Trust Units, (as hereinafter
defined); and
WHEREAS, The British Petroleum Company p.l.c. ("BP") has agreed to
support the payment obligations of the Company and SOC as more fully set forth
in the Support Agreement (as hereinafter defined); and
WHEREAS, the Initial Conveyance (as hereinafter defined) is
contemporaneously executed and delivered to the Trust;
NOW, THEREFORE, the Initial Royalty Interest has been granted,
assigned and delivered unto the Trust, receipt of which is hereby acknowledged
and accepted by the Trustee on behalf of the Trust, to have and to hold, in
trust as hereinafter set forth, such property and all other properties, real
or personal (including Additional Royalty Interests), which may hereafter be
received by the Trust pursuant to this Agreement; and the Company, SOC, The
Bank of New York in its capacity as Trustee, and the Co-Trustee (as
hereinafter defined) agree that such properties shall be held, administered,
paid and delivered for the purposes and subject to the terms and conditions
hereinafter provided.
ARTICLE I
Definitions
As used herein, the following terms have the meanings
indicated:
Section 1.01. "Affiliate" of a Person means another Person controlled by,
controlling or under common control with such Person.
Section 1.02. "Additional Conveyance" means collectively any instruments
pursuant to which one or more Additional Royalty Interests are created or
conveyed to the Trust as provided in Section 2.04 hereof.
Section 1.03. "Additional Royalty Interest" means any royalty interest
which is identical in all respects to the Initial Royalty Interest, except for
the identity of the parties (other than the Trust), the effective date and the
percentage set forth in the definition of Royalty Production in the related
Additional Conveyance.
Section 1.04. "Agreement" means this instrument, as originally executed,
or, if amended pursuant to the provisions of Section 10.02 or 10.03 hereof,
as so amended.
Section 1.05. "Beneficial Interest" means the right to share in the
benefits and the obligation to share in the detriments resulting from the
accomplishment of the purposes of the Trust as expressly set out in this
Agreement, and includes without limitation the right to share in distributions
during the term of the Trust, to share in the final distributions from the
Trust and to participate in decisions affecting the Trust only to the extent
expressly provided herein, and, except as limited by the provisions of this
Agreement, to exercise all other rights of a beneficiary of a business trust
created under the Delaware Trust Act.
Section 1.06. "BP" means The British Petroleum Company p.l.c., its
successors and assigns.
Section 1.07. "Business Day" means any day that is not a Saturday,
Sunday, a holiday determined by the New York Stock Exchange as "affecting 'ex'
dates" or any other day on which banking institutions in New York, New York,
or in any other city where the principal corporate trust office of the Trustee
may be located, are closed as authorized or required by law.
Section 1.08. "Certificate" means a certificate issued by the Trust
pursuant to ARTICLE III hereof evidencing the ownership of one or more Units.
Section 1.09. "Code" means the Internal Revenue Code of 1986, as amended,
or any successor statute or statutes.
Section 1.16. "Company" means BP Exploration (Alaska) Inc., a Delaware
corporation and includes successors or assigns of the Company.
Section 1.11. "Conveyance" means collectively the Initial Conveyance and
any Additional Conveyance.
Section 1.12. "Co-Trustee" shall have the meaning ascribed to it in
Section 1.33 hereof.
Section 1.13. "Delaware Trust Act" means 12 Delaware Code Section 3801 et
sec.
Section 1.14. "Distribution Date" means the date of any distribution
pursuant to Section 4.02 hereof.
Section 1.15. "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, or any successor statute or statutes.
Section 1.16. "Initial Conveyance" means collectively the Overriding
Royalty Conveyance and the Trust Conveyance.
Section 1.17. "Initial Royalty Interest" means the royalty interest being
conveyed by the Company to SOC and by SOC to the Trust contemporaneously with
the execution and delivery of this Agreement pursuant to the Initial
Conveyance.
Section 1.18. "Insignificant Investor Period" means each period of time
prior to the Opinion Date during which benefit plan investors (within the
meaning-of Department of Labor regulation section 2510.3-101(f)(2)) do not own
a sufficient number of Units of a "class" to cause their equity participation
in the Trust to be "significant" (within the meaning of Department of Labor
regulation section 2510.3-101(f)(1)).
Section 1.19. "Officer's Certificate" means a certificate duly executed
on behalf of the Company or SOC, as the case may be, signed by any president,
any vice president, any assistant vice president, or any treasurer or
assistant treasurer, or any certificate reasonably believed by the Trustee to
have been so signed.
Section 1.20. "Opinion Date" means the first date upon which all of the
following requirements have been satisfied: (i) the Trust Units have been
registered under section 12(b) or section 12(g) of the Securities Exchange Act
of 1934; (ii) the Trust Units are widely-held (within the meaning of paragraph
(b)(3) of the Regulation); (iii) the Trust Units are freely transferable
(within the meaning of paragraph (b)(4) of the Regulation); (iv) the Company
has delivered to the Trustee an opinion of nationally recognized ERISA counsel
(such counsel to be selected by the Company and approved by the Trustee and
such opinion to be reasonably acceptable to the Trust's counsel) which states,
in effect, that the requirements described in clauses (i), (ii) and (iii)
above have been satisfied; and (v) the Company has delivered to the Trustee
either (a) an opinion of nationally recognized ERISA counsel (such counsel to
be selected by the Company and approved by.the Trustee and such opinion to be
reasonably acceptable to the Trust's counsel) or (b) an individual prohibited
transaction exemption or an advisory opinion issued by the Department of Labor
to the Trustee, the Trust or the Company which opinion, exemption or advisory
opinion states, in effect, that from and after the date upon which the
requirements described in clauses (i), (ii) and (iii) above have been
satisfied, the assets of the Trust shall not constitute plan assets (within
the meaning of the Regulation) with respect to any employee benefit plan (as
such term is defined in section 3(3) of ERISA) which became a Unit Holder
prior to the date such requirements have been satisfied (provided, however,
that if the Company has delivered to the Trustee an opinion of counsel as
described in clause (v)(a) above, such opinion must specifically reference and
be based primarily upon an advisory opinion or other published announcement of
similar authoritative import issued by the Department of Labor which favorably
addresses the same issues which are to be addressed in such opinion and which
is based upon facts similar to those involving the Trust and such employee
benefits plans). The Company shall use its best efforts to obtain promptly,
at its expense, from the Department of Labor the individual prohibited
transaction exemption or advisory opinion referred to in clause (v)(b) above;
provided, however, that if the Company has delivered the opinion of counsel
referred to in clause (v)(a) above, then its obligation to use its best
efforts to obtain such exemption or advisory opinion shall terminate. For
purposes of this Section, the term "Regulation" means Department of Labor
regulation section 2510.3-101.
Section 1.21. "Overriding Royalty Conveyance" means the Overriding
Royalty Conveyance from the Company to SOC, the form which is attached hereto
as part of Exhibit A.
Section 1.22. "Person" means an individual, corporation, partnership,
unincorporated association, trust, estate or other organization.
Section 1.23. "Quarter" means a period of approximately three months
beginning on the day after a Quarterly Record Date and continuing through and
including the next succeeding Quarterly Record Date, which shall be the
Quarterly Record Date for such Quarter; provided, however, that the first
Quarter hereunder shall be a period beginning on the date hereof and
continuing until April 17, 1989.
Pursuant to the Conveyance royalty amounts payable to the Trust are
calculated on a calendar quarter basis, and each royalty payment is required
to be made on the Quarterly Record Date immediately following the close of the
calendar quarter during which the related oil production occurs. Therefore,
pursuant to the Conveyance royalty payments for the four calendar quarters in
each year are due and payable to the Trust on the Quarterly Record Date in
April, July and October of such year and in January of the following year.
The term "Quarter" as used herein refers to a three-month period which ends on
the Quarterly Record Date which occurs approximately one-half month after the
end of the corresponding royalty calculation period.
Section 1.24. "Quarterly Income Amount" for any Quarter means the sum of
(a) the cash received by the Trust during the Quarter that is directly
attributable to the Royalty Interest, any cash available for distribution as a
result of the reduction or elimination during the Quarter of any existing cash
reserve created pursuant to Section 6.07 hereof and (c) any other cash
receipts of the Trust during the Quarter including without limitation any cash
received from interest earned pursuant to Section 6.07 hereof, reduced by the
sum of (i) the liabilities of the Trust paid during the Quarter and (ii) the
amount of any cash used in the Quarter to establish or increase a cash reserve
pursuant to Section 6.07 hereof. If (a) prior to the end of a Quarter the
Trustee makes a determination of the Quarterly Income Amount which it
anticipates will be distributed to Unit Holders of record on the Quarterly
Record Date for such Quarter, based on notice provided to the Trustee by the
Company pursuant to Section 4.8(e) of the Overriding Royalty Conveyance (and
similar provisions of any Additional Conveyance), and (b) the Quarterly Income
Amount is not equal to the amount so determined because the amounts stated in
such notice were not received on or prior to such Quarterly Record Date, the
Trustee shall treat such amounts when received as if they were received on
such Quarterly Record Date.
Notwithstanding anything to the contrary in this Section 1.24, the
Quarterly Income Amount for any Quarter shall not include any amount that
would have been required to be reported to any stock exchange on which the
Units are listed in connection with the establishment of an "ex" date in order
to be distributed to Unit Holders who were such on the Quarterly Record Date
for such Quarter but was not so reported unless the stock exchange agrees to
such amount being a part of that Quarter's Quarterly Income Amount or the
Trustee receives an opinion of counsel stating that neither the Trust, the
Trustee nor The Bank of New York will be adversely affected by such inclusion.
An amount that, pursuant to the preceding sentence, is not included in the
Quarterly Income Amount for that Quarter shall be treated as if received
during the next Quarter. In this connection, the Trustee shall report
quarterly to such stock exchange (so long as reporting is so required by the
stock exchange), at the time required by the stock exchange, the amount that,
pursuant to the first paragraph of this Section 1.24, the Trustee in good
faith reasonably expects to be the Quarterly Income Amount for the Quarter
being reported on.
Section 1.25. "Quarterly Record Date" means the.fifteenth day of each
January, April, July and October; provided, however, that if such day is not a
Business Day then the Quarterly Record Date shall be the next Business Day
after such day and provided further that if the Trustee determines that a
different date is required to comply with applicable law or the rules or
regulations of any stock exchange on which the Units are listed, it means such
different date. The first Quarterly Record Date shall be April 17, 1989.
Section 1.26. "Record Date Unit Holder" means a Person who was a Unit
Holder of record on the Voting Record Date for a meeting of Unit Holders.
Section 1.27. "Royalty Interest" means the Initial Royalty Interest and
any Additional Royalty Interests which may hereafter be granted to the Trust
pursuant to this Agreement, taken together.
Section 1.28. "Royalty Statement" means the statement prepared by the
Company and delivered to the Trust pursuant to Section 4.8(f) of the
Overriding Royalty Conveyance or the comparable provision of any Additional
Conveyance.
Section 1.29. "Support Agreement" means the Support Agreement dated as of
even date herewith by and among BP, the Company, SOC and the Trust.
Section 1.30. "Trust" means the business trust under the Delaware Trust
Act created by and administered under the terms of this Agreement.
Section 1.31. "Trust Conveyance" means the Trust Conveyance from SOC to
the Trust, the form of which is attached hereto as part of Exhibit A.
Section 1.32. "Trust Estate" means all assets, however and whenever
acquired, that may belong to the Trust at any designated time and shall
include both income and principal.
Section 1.33. "Trustee" means collectively (except as otherwise provided
in Section 8.06 hereof) The Bank of New York, a corporation organized under
the laws of the State of New York and authorized to do a banking business and
qualified to exercise trust powers, in its capacity as trustee hereunder, and,
F. James Hutchinson, in his capacity as co-trustee hereunder. The Bank of New
York and F. James Hutchinson shall serve as the initial trustees under this
instrument. The term "Trustee" shall include any ancillary or successor
trustee or co-trustee hereunder, during the period it is so serving in such
capacity. The term "Co-Trustee". means F. James Hutchinson, in his capacity
as co-trustee hereunder, and any successor co-trustee hereunder, during the
period he or it is serving in such capacity. References to The Bank of New
York or to the Trustee, individually, or similar references shall be deemed to
be references to The Bank of New York in its individual capacity and not in
its capacity as Trustee hereunder and shall be deemed to include its
successors or assigns which serve as Trustee in their individual capacities
and not in their capacities as successor Trustees hereunder.
Section 1.34. "Unit" or "Trust Unit" means an undivided fractional
interest in the Beneficial Interest determined as hereinafter provided.
Section 1.35. "Unit Holder" means the owner of one or more Units as shown
by the records of the Trustee pursuant to the provisions of ARTICLE III
hereof.
Section 1.36. "Voting Record Date" means a date selected by the Trustee
as the record date for determining Unit Holders of record entitled to notice
of and to vote at a meeting of Unit Holders, as provided in ARTICLE V hereof.
ARTICLE II
Creation, Name and Purpose of Trust
Section 2.01 - Creation and Name of Trust. The Trust is hereby created
under the Delaware Trust Act as a Delaware business trust for the benefit of
the Unit Holders. The Trust shall be known as the BP Prudhoe Bay Royalty
Trust, and the Trustee may transact all affairs of the Trust in that name.
Pursuant to the Trust Conveyance, SOC has granted, bargained, sold, conveyed,
assigned, set over and delivered the Initial Royalty Interest to the Trust.
The Initial Royalty Interest shall constitute the initial Trust Estate.
Section 2.02 - Purposes. The purposes of the Trust are (a) to convert
the Royalty Interest to cash either (1) by retaining the Royalty Interest and
collecting the proceeds from production in accordance with the terms of the
Conveyance until production has ceased permanently or the Royalty Interest has
otherwise terminated or (2) by selling or otherwise disposing of the Royalty
Interest (within the limits stated herein); and (b) to distribute such cash,
net of amounts for payment of expenses and liabilities of the Trust, to the
Unit Holders as provided herein.
It is the intention and agreement of SOC, the Company and the Trustee to
create a grantor trust for federal income tax purposes of which the Unit
Holders are treated as the owners of trust income and corpus. As set forth
above and amplified herein, the Trust is intended to be a passive entity
limited to the receipt of revenues attributable to the Royalty Interest and
the distribution of such revenues, after payment of or provision for Trust
expenses and liabilities, to the Unit Holders. It is neither the purpose nor
the intention of the parties hereto to create, and nothing in this Agreement
shall be construed as creating, a partnership, joint venture, joint stock
company or similar business association between or among Unit Holders, present
or future, or between or among Unit Holders, or any of them, and the Trustee
or SOC or the Company.
Section 2.03. - Initial Conveyance. SOC, as depositor and trustor, has
delivered, and the Trustee on behalf of the Trust has accepted, executed
copies of the Initial conveyance. Accordingly, the Initial Royalty Interest
described therein constitutes the initial Trust Estate. In consideration of
the grant of the Initial Royalty Interest and the execution and delivery of
the Support Agreement, the Trustee is hereby directed to execute and deliver
on behalf of SOC Certificates representing an aggregate of 21,400,000 Trust
Units in such denominations and-to the Persons identified by SOC in an
Officer's Certificate delivered to the Trustee; provided, however, that the
Trustee shall not be obligated to execute and deliver such Certificates to any
Person unless such Person delivers to the Trustee a written instrument
evidencing the agreement of such Person with respect to matters set forth in
subsections (i) through (iv) of the last paragraph of Section 2.04 hereof.
Section 2.04. - Additional Conveyances. The Company or an Affiliate may
from time to time grant, assign and deliver unto the Trust one or more
Additional Royalty Interests by executing and delivering to the Trust one or
more Additional Conveyances, and, subject to the conditions set forth below,
the Trustee shall accept on behalf of the Trust the assignment of such
Additional Royalty Interests and the delivery of such Additional Conveyances.
The obligation of the Trustee to accept the assignment of any such
Additional Royalty Interest shall be subject to the condition that the
Additional Royalty Interest shall be identical in all respects to the Initial
Royalty Interest except for the effective date of the Additional Conveyance
(which must be on the first day of a calendar quarter and must be the date of
delivery thereof to the Trustee), the percentage set forth in the definition
of Royalty Production in the related Additional Conveyance and the identity of
the parties (other than the Trust) to the Additional Conveyance (provided that
the entity which will make payments to the Trust under any Additional Royalty
Interest must be the same entity which will make payments to the Trust under
the Initial Royalty Interest). Any Additional Conveyance must be identical in
all respects to the Initial Conveyance, except for changes which may be
necessary to ensure that the Additional Royalty Interest conforms to the
conditions set forth herein.
In consideration of the grant of an Additional Royalty Interest, and in
exchange therefor, the Trustee shall issue, upon receipt of an Officer's
Certificate containing the direction of the Company or such Affiliate to issue
to the order of the Company or such Affiliate, a number of whole Units in the
Trust not to exceed a total of 18,600,000 additional Units determined by the
following formula:
Number of Units = A x 21,400,000
---------------
16.4246%
where "A" equals the percentage set forth in the definition of "Royalty
Production" in the related Additional Conveyance. In connection with such
issuance, the recipients of such Units and their transferees shall not be
treated as Unit Holders of record entitled to distributions with respect to
the Quarterly Income Amount for the Quarterly Record Date which occurs during
the month in which such Additional Conveyance is effective and shall not be
entitled to transfer such Units (other than to the Company or one of its
Affiliates) on or prior to such Quarterly Record Date, and the Certificates
therefor shall prominently so state.
The acceptance by the Trustee of any assignment of an Additional Royalty
Interest shall be subject to the condition precedent that the Trustee shall
have received (a) a ruling from the Internal Revenue Service to the effect
that neither the existence nor exercise of the right to assign the Additional
Royalty Interest, the power to accept such assignment or the issuance of
additional Units as herein contemplated will adversely affect the
classification of the Trust as a "grantor trust" for federal income tax
purposes and (b) a ruling from the Internal Revenue Service or an unqualified
written opinion of counsel to the Trust to the effect that such assignment
will not cause (i) the income from the Trust to be treated as unrelated
business taxable income for federal income tax purposes or (ii) the Unit
Holders to recognize income, gain or loss attributable to the Royalty
Interests as a result of such assignment, except to the extent of any gain or
loss attributable to any cash received by the Trust in connection with such
assignment.
In addition, the Trustee shall require that the Company or such Affiliate
making the deposit of the Additional Royalty Interest to the Trust pay the
expenses of such assignment and contribute a cash reserve equal to the value
of the cash reserve, if any, existing on the date such Additional Conveyance
is effective multiplied by a fraction whose numerator is the additional number
of Units to be issued and whose denominator is the sum of (a) the number of
Units outstanding immediately preceding such deposit of the Additional Royalty
Interest and (b) the number of Units then to be issued. The Trustee shall
invest the cash, if any, deposited with respect to such cash reserve as
provided in Section 6.07 hereof in investments maturing on the next succeeding
Quarterly Record Date, and there shall be included in the Quarterly Income
Amount distributed to Unit Holders of record on the Quarterly Record Date
which occurs during the month in which such Additional Conveyance is effective
an amount equal to the sum of (a) the amount so deposited and (b) the interest
earned on such amount from the time it is invested to such Quarterly Record
Date.
Upon acceptance thereof by the Trustee on behalf of the Trust, the
Additional Royalty Interest shall constitute a part of the Trust Estate and,
to the extent permitted by law, shall be treated by the Trustee, together with
the Initial Royalty Interest and all other Additional Royalty Interests
previously assigned to the Trust, as constituting one Royalty Interest held
for the benefit of all Unit Holders.
Notwithstanding any other provision of this Agreement, with respect to
any Additional Royalty Interest to be conveyed to the Trust prior to the date
upon which the requirements of clauses (i), (ii), (iii) and (iv) of Section
1.20 have been satisfied (the "Restriction Date"), the Trustee shall not be
required to accept such Additional Royalty Interest on behalf of the Trust
unless each Person who is to be issued Units in connection with such
conveyance delivers to the Trustee a written instrument evidencing the
agreement of such Person:
(i) to furnish to the Trustee, from time to time and within five days
of its receipt of a written request from the Trustee, complete and
correct information in a form and manner reasonably acceptable to
the Trustee as to whether such Person is a benefit plan investor
(within the meaning of Department of Labor regulation section
2510.3-101(f)(2)) and, if such Person is a benefit plan investor,
information as to (a) the identity of the employee benefit plan or
plans established or maintained in connection with, or owning an
interest in, such benefit plan investor if such benefit plan
investor is not a "collective investment fund maintained by a
bank" within the meaning of Department of Labor Prohibited
Transaction Exemption 80-51 (a "Fund") nor an insurance company
pooled separate account within the meaning of Department of Labor
Prohibited Transaction Exemption 78-19 (an "Account"), (b) the
identity of the employee benefit plan or plans owning an interest
in excess of five percent (with all such plans maintained by the
same employer or employee organization treated as a single plan
for purposes of this determination) of all of the assets in such
benefit plan investor if such benefit plan investor is a Fund or
an Account, and (c) the identity of the sponsor of the plan or
plans described in subclauses (a) or (b) above, and (d)
information as to whether any Person designated by the Trustee as
a Person with whom the Trust proposes to engage in a transaction
is a "party in interest" (within the meaning of Section 3(14) of
ERISA) or a "disqualified person" (within the meaning of Section
4975(e)(2) of the Code), (collectively referred to as a "party in
interest"), as to such benefit plan investor (including without
limitation, each Plan owning a five percent interest in a Fund or
Account),
(ii) that the Trustee shall be authorized to disclose any information
described in clause (i) above which is provided by such Person to
the Trustee and which may be necessary, in the sole opinion of the
Trustee, in order for the Trustee to perform its duties under this
Agreement,
(iii) to comply in all respects with the recordkeeping and examination
requirements of Section III of (a) Department of Labor Prohibited
Transaction Exemption 80-51 if such Person is a benefit plan
investor which is a Fund, or (b) Department of Labor Prohibited
Transaction Exemption 78-19 if such Person is a benefit plan
investor which is an Account, and
(iv) that such Person will not directly or indirectly transfer any of
the Units.to be issued to such Person prior to the Restriction
Date unless the transferee of such Units delivers to the Trustee a
written instrument evidencing its agreement with respect to the
matters described in clauses (i), (ii) and (iii) above and this
clause (iv) as if such transferee had received a direct issuance
of Units from the Trust in connection with the conveyance of such
Additional Royalty Interest.
Section 2.05. - Certificate of Trust. The Trustee shall cause to be
filed a certificate of trust in the office of the Secretary of State of
Delaware in compliance with Section 3810 of the Delaware Trust Act.
In the event that the Trustee becomes aware that any statement contained
or any matter described in the certificate of trust has changed making the
certificate false in any material respect, the Trustee shall promptly file a
certificate of amendment in the office of the Secretary of State of Delaware
in compliance with Section 3810 of the Delaware Trust Act. Upon the
termination of the Trust pursuant to Section 9.01 of this Agreement, the
Trustee shall file a certificate of cancellation in the office of the
Secretary of State of Delaware in compliance with Section 3810 of the Delaware
Trust Act.
Section 2.06. - Acceptance by Trustee. The Trustee, by joining in the
execution of this Agreement, accepts the Trust herein created and provided for
and accepts all of the rights, powers, privileges, duties and responsibilities
of the Trustee hereunder and agrees to exercise and perform the same in
accordance with the terms and provisions contained herein.
Section 2.07. - Registration of the Units. In connection with the
contemplated registration of the Units under the Securities Act of 1933, as
amended, if required by the Securities and Exchange Commission, the Company,
or its designee, is hereby granted full power and authority to sign on behalf
of the Trust such registration statements and any amendments, including post-
effective amendments and any other related documents relating to the Units as
may be necessary to effect or to continue in effect such registration.
ARTICLE III
Creation of Units and Certificates
Section 3.01 - Creation of Units. The entire Beneficial Interest shall
initially be divided into 21,400,000 Units.
If at any time there is assigned to the Trust an Additional Royalty
Interest pursuant to Section 2.04 hereof, the Beneficial Interest shall
thereafter be considered to be divided into a number of Units equal to the sum
of the number of Units existing prior to such assignment and the number of
Units created upon such assignment pursuant to Section 2.04 hereof, and upon
the acceptance of such assignment, the Trustee shall cause to be issued in
accordance with Section 2.04 hereof new Certificates representing the number
of Units created upon such assignment.
Section 3.02 - Certificates as Evidence of Ownership of Units. The
ownership of the Units shall be evidenced by Certificates in substantially the
form set forth in Exhibit B attached hereto. Except as otherwise provided in
Sections 2.04 and 3.08 hereof and notwithstanding anything else stated herein,
the Trustee may for all purposes set forth in this Agreement, including,
without limitation, the making of distributions and voting, treat the holder
of any Certificate as shown by the records of the Trustee maintained pursuant
to Section 3.06 hereof as the owner of the Units evidenced thereby.
Section 3.03. - Rights of Unit Holders. Except as otherwise specifically
provided herein, the Unit Holders shall own pro rata the Beneficial Interest
and shall be entitled to participate pro rata in the rights and benefits of
Unit Holders under this Agreement. A Unit Holder by assignment or otherwise
shall take and hold the same subject to all the terms and provisions of this
Agreement and the Conveyance, which shall be binding upon and inure to the
benefit of the successors, assigns, legatees, heirs and personal
representatives of the Unit Holder. By an assignment or transfer of one or
more Units, the assignor thereby shall, effective as of the close of business
on the date of transfer and with respect to such assigned or transferred Unit
or Units, part with, except as provided in Sections 3.06 and 4.02 hereof in
the case of a transfer after a Quarterly Record Date and prior to the
corresponding Distribution Date, (a) all of his Beneficial Interest
attributable thereto, (b) all of his rights in, to and under such Unit or
Units and (c) all interests, rights and benefits under this Agreement of a
Unit Holder that are attributable to such Unit or Units as against all other
Unit Holders, the Trust and the Trustee.
Section 3.04. - Character of Rights. The sole interest of each Unit
Holder shall be his pro rata portion of the Beneficial Interest and the
obligations of the Trust expressly created under this Agreement with respect
to the Beneficial Interest. Such interest of a Unit Holder is and shall be
construed for all purposes (except for tax purposes) to be intangible personal
property, and no Unit Holder as such shall have any legal title in or to any
real property interest that is a part of the Trust Estate including, without
limiting the foregoing, the Royalty Interest or any part thereof. No Unit
Holder shall have the right to seek or secure any partition or distribution of
the Royalty Interest or any other asset of the Trust Estate or any accounting
during the term of the Trust or during the period of liquidation and winding
up under Section 9.02 hereof.
Section 3.05. - Form, Execution and Dating of Certificates. The
Certificates may contain such changes of form, but not substance, as the
Trustee, from time to time in its discretion, may deem necessary or desirable.
In addition, the Certificates shall contain such changes (not inconsistent
with the provisions of this Agreement) as from time to time may be required to
comply with any rule or regulation of any stock exchange on which the Units
are listed. Each Certificate shall be dated the date of its issuance. Each
Certificate shall be signed on behalf of the Trust by a duly authorized
signatory of the Trustee (which signature may be a facsimile to the extent
permitted by law or regulations of any stock exchange on which the Units are
listed) and may be sealed with the seal of the Trustee or a facsimile thereof.
Pending the preparation of definitive Certificates, the Trustee shall
execute, and the Transfer Agent and Registrar (as provided in Section 3.06
hereof) shall record, countersign and register, temporary Certificates, as
directed in an Officer's Certificate of SOC. Temporary Certificates may
contain such references to any provisions of this Agreement as may be
appropriate. Every temporary Certificate shall be executed by the Trustee and
recorded, countersigned and registered upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Certificates.
As promptly as practicable, the Trustee shall execute and furnish
definitive Certificates and thereupon temporary Certificates may be
surrendered in exchange therefor without charge to the Unit Holders at the
principal corporate trust office of The Bank of New York at which Certificates
may be presented for a transfer pursuant to Section 3.06 hereof, and the
Transfer Agent and Registrar shall record, countersign and register in
exchange for such temporary Certificates a like aggregate amount of definitive
Certificates. Until so exchanged, the temporary Certificates shall be
entitled to the same benefits under this Agreement as definitive Certificates.
Section 3.06 - Registration and Transfer of Units. With respect to the
issuance of the initial Certificates representing ownership of the Units
(including Certificates issued pursuant to Section 2.04 hereof) and upon
subsequent transfer of such Certificates in accordance with the provisions of
this Section 3.06, the Trustee shall maintain records that reflect the name
and address of the holder of each Certificate, the number of Units represented
by each Certificate, the date of issuance and/or transfer of each Certificate,
the name of each transferee of a Certificate and any other such information as
the Trustee shall deem necessary or advisable.
Until the Units have been registered under the Securities Act of 1933, as
amended (the "Act"), and qualified under the securities laws of the various
states in which qualification is required, the Units may not be transferred
except pursuant to the provisions of Rule 144 or, if adopted, Rule 144A under
the Act or another exemption from registration under the Act, provided that
prior to any such proposed transfer (other than a transfer to an affiliated
company), the holder of the Trust Units to be transferred shall give written
notice to the Company and the Trustee of such holder's intention to effect
such transfer, which notice shall be accompanied by an unqualified written
opinion of legal counsel, which counsel (who the Company and the Trustee
acknowledge may be counsel in the employ of the transferring Unit Holder) and
opinion (in form, scope and substance) shall be reasonably satisfactory to the
Company and the Trustee, to the effect that the proposed transfer of such
Trust Units may be effected without registration under the Act and applicable
state securities laws. Further, until the requirements of clauses (i), (ii),
(iii) and (iv) of Section 1.20 have been satisfied (and for purposes of this
agreement, such requirements shall be deemed to be satisfied simultaneously
with the delivery of the opinion required by clause (iv) of Section 1.20), the
Units may not be transferred unless the Trustee shall have received a written
instrument from the proposed transferee evidencing its agreement with respect
to the matters described in clauses (i), (ii), (iii) and (iv) of the last
paragraph of Section 2.04 hereof (applied without regard to whether the Units
were originally acquired in connection with an Additional Conveyance or the
Initial Conveyance). Except as set forth in the preceding sentences of this
paragraph and as set forth in Section 2.04 hereof, all Units shall be freely
transferable, but (except as otherwise provided in Section 6.12 hereof) no
transfer of any Unit shall be effective as against the Trustee prior to entry
on the records of the Trustee upon the surrender of the Certificate or
Certificates evidencing ownership of such Unit or Units (or upon compliance
with the provisions of Section 3.07 hereof) and compliance with such
reasonable regulations and requirements, including but not limited to such
instruments of transfer, including signature guarantees of a broker or bank
located, or having a correspondent located, within New York City, as the
Trustee may prescribe. Certificates shall be presented for transfer at the
principal corporate trust office of The Bank of New York or at such office or
agency of the Trustee as the Trustee shall maintain (and hereby agrees to
maintain) in the Borough of Manhattan, in the event the Units are listed on
any stock exchange.
The Trustee hereby appoints The Bank of New York as Transfer Agent and
Registrar for the registration of transfer of Units.
The Trustee may in its sole discretion remove The Bank of New York as Transfer
Agent and Registrar and appoint such one or more other Transfer Agents and
Registrars as it deems appropriate.
No service charge will be made by the Trustee to the transferor or
transferee of a Certificate for any transfer of a Unit evidenced by the
transferred Certificate, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation to such transfer. Until any such transfer, the Trustee may treat
the holder of any Certificate as shown by its records as the owner of the
Units evidenced thereby and shall not be charged with notice of any claim or
demand respecting such Certificate or the interest represented thereby by any
other party. Any such transfer of a Unit as evidenced by a transfer of a
Certificate shall, as to the Trustee, transfer to the transferee of the
Certificate as of the close of business on the date of transfer all of the
undivided right, title and interest of the transferor in and to the Beneficial
Interest, provided that, as to the Trustee, a transfer of a Certificate after
any Quarterly Record Date shall not transfer to the transferee of such
Certificate the right of the transferor of the Certificate to any sum payable
to the transferor as the holder of record of the Certificate on such Quarterly
Record Date. However, nothing stated herein shall affect the right of the
Trustee to act in accordance with Sections 3.07 and 6.12 hereof.
Notwithstanding the foregoing, in the event that the Trust receives an
amount which will comprise, in whole or in part, a Quarterly Income Amount on
a day other than a Quarterly Record Date, the Trustee may notify Unit Holders
of the fact of such receipt by any means, including a press release, which the
Trustee deems appropriate in the circumstances.
As to matters affecting the title, ownership, warranty or transfer of
Certificates, Article 8 of the Uniform Commercial Code, the Uniform Act for
Simplification of Fiduciary Security Transfers and other statutes and rules
with respect to the transfer of securities, each as adopted and then in force
in the State of Delaware, shall govern and apply. The death of any Unit
Holder shall not entitle such Unit Holder's transferee to an accounting or
valuation for any purpose, but as to the Trustee, the transferee of a deceased
Unit Holder shall succeed to all rights of the deceased Unit Holder under this
Agreement upon proper proof of title satisfactory to the Trustee.
Upon the Trustee's receipt of written notice of the death of a Unit
Holder, the Trustee may refuse to effect the transfer of any Units held by
such deceased Unit Holder until it has received satisfactory evidence of
compliance with all tax, probate and other requirements of applicable law.
Section 3.07 - Mutilated, Destroyed, Lost or Stolen Certificates. In the
event that any Certificate is mutilated, destroyed, lost or stolen, the
Trustee shall, if the conditions in this section are met and the Trustee has
not received notice that such Certificate has been acquired by a bona fide
holder, issue to the holder of such Certificate as shown by the records of the
Trustee a new Certificate in exchange and substitution for the mutilated
Certificate or in lieu of and substitution for the Certificate so destroyed,
lost or stolen. In every case, the applicant for a substituted Certificate
shall furnish to the Trust and the Trustee such security or indemnity as the
Trustee may reasonably require to save the Trust and the Trustee harmless and,
in every case of destruction, loss or theft, the applicant shall also furnish
to the Trustee evidence to the Trustee's reasonable satisfaction of the
destruction, loss or theft of such Certificate. Upon the issuance of any
substituted Certificate, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses incurred in connection
therewith.
Section 3.08 - Protection of Trustee. The Trustee shall be protected in
acting upon any notice, stock power, Royalty Statement, Officer's Certificate,
opinion of counsel, report of certified public accountant, any petroleum
engineer or auditor or other expert, credential, certificate, instrument of
assignment or transfer or other document or instrument reasonably believed by
the Trustee to be genuine and correct and to be signed or sent by the proper
party or parties. The Trustee is specifically authorized to rely upon the
application of Article 8 of the Uniform Commercial Code, the Uniform Act for
Simplification of Fiduciary Security Transfers and other statutes and rules
with respect to the transfer of securities, each as adopted and then in force
in the State of Delaware, as to all matters affecting title, ownership,
warranty or transfer of Certificates and the Units represented thereby,
without any personal liability for such reliance, and the indemnity granted
pursuant to Section 7.02(a) hereof shall specifically extend to any matters
arising as a result thereof.
Section 3.09 - Transfer Agent and Registrar. Any references in this
ARTICLE III to the rights and duties of the Trustee with respect to the
transfer or registration of Certificates shall also be deemed to be references
to the Transfer Agent and Registrar acting hereunder.
Section 3.10 - Limitation of Personal Liability of Unit Holders. Unit
Holders shall, to the full extent permitted by Section 3803 of the Delaware
Trust Act, be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit under the laws of the State
of Delaware.
ARTICLE IV
Accounting and Distribution
Section 4.01 - Fiscal Year and Accounting Method. Except as otherwise
required pursuant to Section 4.03 hereof, the fiscal year of the Trust shall
be the calendar year. The Trustee shall maintain the books of the Trust on a
cash basis, in accordance with generally accepted accounting practices, except
to the extent that such books must be kept on any other basis pursuant to
applicable law.
Section 4.02 - Distributions. On the fifth day after the Trustee's
receipt in same day finally collected funds of amounts to be received on a
Quarterly Record Date for each Quarter in each year during the term of the
Trust or if such day is not a Business Day on the next succeeding Business
Day, the Trustee shall distribute the Quarterly Income Amount for the Quarter
to which such Quarterly Record Date relates to the Unit Holders of record on
such Quarterly Record Date (except those Unit Holders which, pursuant to
Section 2.04 hereof, are not treated as Unit Holders of record entitled to
distributions with respect to the Quarterly Income Amount for such Quarterly
Record Date) in proportion to the Units owned by each such Unit Holder;
provided that during any period prior to the Opinion Date which is not an
Insignificant Investor Period, the Trustee shall distribute such Quarterly
Income Amount (including amounts referred to in the last sentence of this
Section 4.02) on or as soon as practicable following the Quarterly Record Date
and such amounts shall be held uninvested in a non-interest bearing account.
Payment of each Unit Holder's pro rata portion of the Quarterly Income Amount
shall be made by check or draft mailed to each of the Unit Holders.
Notwithstanding the foregoing, payments of $100,000 or more shall be made to
any Unit Holder who enters into an agreement with the Trustee providing for
such payments by wire transfer in immediately available funds to an account of
such Unit Holder as specified in the agreement. The Trustee shall, upon the
request of any such Unit Holder, enter into such an agreement unless such
agreement adversely affects The Bank of New York's own rights, duties or
immunities under this Agreement or otherwise, in which case the Trustee may,
but shall not be obligated to, enter into such an agreement. Except as
otherwise provided in any such agreement, if, pursuant to the last sentence of
the first paragraph of Section 1.24, the Trustee treats amounts received after
a Quarterly Record Date as if they were received on such Quarterly Record
Date, the distributions of such amounts shall be made on the fifth day after
the date of receipt thereof by the Trust in finally collected same day funds
or if such day is not a Business Day, on the next succeeding Business Day.
Section 4.03 - Income Tax Withholdings and Reporting. For federal and
Alaska state income tax purposes, the Trustee shall effect such withholdings
and file such returns and statements as in its judgment are required to comply
with applicable provisions of the Code and the regulations thereunder and any
Alaska state income tax laws and regulations thereunder.
Section 4.04 - Reports to Unit Holders. As promptly as practicable
following the end of each calendar year of the Trust, but no later than 90
days following the end of each calendar year, the Trustee shall mail to each
Person who was a Unit Holder of record at any time during such calendar year a
report containing sufficient information to enable Unit Holders to make all
calculations necessary for federal and Alaska tax purposes, including the
calculation of any depletion deduction which may be available to them for such
calendar year.
As promptly as practicable following the end of each Quarter during the
term of the Trust, but no later than 60 days following the end of each such
Quarter, the Trustee shall mail to each Person who was a Unit Holder of record
on the Quarterly Record Date immediately preceding the distribution of such
report a report showing in reasonable detail on a cash basis the assets and
liabilities, receipts and disbursements and income and expenses of the Trust
and the Royalty Production (as that term is defined in the overriding Royalty
Conveyance) for such Quarter.
Within 90 days following the end of each calendar year (or at such
earlier time as may be required by any stock exchange on which the Units are
listed), the Trustee shall mail to each Person who was a Unit Holder of record
on the Quarterly Record Date immediately preceding the distribution of such
report an annual report containing (a) financial statements audited by a
nationally recognized firm of independent public accountants retained by the
Trust for such purposes, (b) a certification by such firm stating whether or
not all fees and expenses paid by the Trust to the Trustee from the beginning
of such calendar year through the first Quarterly Record Date in the next
following year were calculated and paid in accordance with this Agreement and
setting forth any exceptions as may be noted by such firm, (c) such
information as the Trustee deems appropriate from a letter of the Independent
Accountants (as such term is defined in the Overriding Royalty Conveyance)
which has been provided to the Trustee stating whether or not, based on
procedures set forth in detail in such letter (i) the Company has complied in
all material respects with the terms and provisions of the Overriding Royalty
Conveyance, Article Three and Article Four, Sections 4.1 to 4.7 inclusive, and
comparable provisions of any Additional Conveyance, and (ii) the amounts
payable to the Trust in respect of the Royalty Interest have been accurately
computed, and setting forth any exceptions to the foregoing matters as may be
noted by such firm (d) a letter of the Independent Petroleum Engineers (as
such term is defined in the Overriding Royalty Conveyance) setting forth a
summary of such firm's determinations regarding the Company's methods,
procedures and estimates referred to in Section 4.8(d) of the Overriding
Royalty Conveyance (and similar provisions of any Additional Conveyance) and
(e) copies of the latest annual report or reports, if any, with respect to the
Units filed with the Securities and Exchange Commission or, if no such report
is filed, a summary of the information furnished to the Trustee pursuant to
Section 4.8(c) of the Overriding Royalty Conveyance (and similar provisions of
any Additional Conveyance). The Trust shall engage annually a nationally
recognized firm of independent public accountants, a firm of Independent
Accountants (which may be the same firm as the nationally recognized firm of
independent public accountants) and a firm of Independent Petroleum Engineers
in order to furnish such services as are required to permit the Trustee to
perform its obligations under this Section 4.04.
The Trustee shall mail to Unit Holders any other reports or statements,
financial or otherwise, required to be provided to Unit Holders by law or
governmental regulation or the requirements of any stock exchange on which the
Units are listed.
Section 4.05 - Information to be Supplied by the Company. The Company
shall provide to the Trustee on a timely basis upon request such information
not known or otherwise available to the Trustee concerning the Royalty
Interest (including information with respect to the properties burdened by the
Royalty Interest) as shall be necessary to permit the Trustee to comply with
respect to the Trust with the reporting obligations of the Trust pursuant to
the Securities Exchange Act of 1934, as amended, the requirements of any stock
exchange on which the Units are listed and this Agreement and for any other
reasonable purpose of the Trust.
The Company hereby agrees to indemnify The Bank of New York, the Trustee
and the Trust, against any loss, liability, damage and expense (including
reasonable attorneys' fees) incurred by The Bank of New York, the Trustee or
the Trust as a result of or arising out of any of the information provided to
the Trustee by the Company pursuant to this Section 4.05 being untimely,
incorrect, misleading or untrue in any material respect.
Section 4.06 - Information to be Provided to the Company. To the extent
the Company is required to file any report with respect to the Trust with any
stock exchange on which the Units are listed or any governmental authority,
the Trustee will provide to the Company on a timely basis upon the Company's
request such information with respect to the Trust and the Trustee that is not
within the knowledge of the Company and that is necessary to the Company's
ability to make such filing or such report. The Company shall be indemnified
by the Trustee (which shall in turn be indemnified to the extent provided
pursuant to Section 7.02(a) hereof) against any loss, liability, damage and
expense (including reasonable attorneys' fees) incurred by the Company as a
result of or arising out of any of the information provided to the Company by
the Trustee pursuant to this Section 4.06 being untimely or incorrect or
untrue in any material respect. Any indemnification by the Trustee of the
Company pursuant to this Section 4.06, except for indemnification which
relates to any such information concerning The Bank of New York, shall be
limited to amounts actually received by the Trustee for such purposes from the
Trust Estate.
ARTICLE V
Meetings of Unit Holders
Section 5.01 - Purpose of Meetings. A meeting of the Unit Holders may be
called at any time and from time to time pursuant to the provisions of this
ARTICLE V to act with respect to any matter regarding which the Unit Holders
are authorized to act by the express terms of this Agreement.
Section-5.02 - Call and Notice of Meetings. Any such meeting of the Unit
Holders may be called by the Trustee in its discretion and will be called by
the Trustee (i) as soon as practicable after receipt of a written request by
the Company or (ii) as soon as practicable after receipt of a written request
that sets forth in reasonable detail the action proposed to be taken at such
meeting and is signed by unit Holders owning not less than 25 percent of the
then outstanding units or (iii) as may be required by applicable law or
regulations of any stock exchange on which the Units are listed. Except as
may be otherwise required by applicable law or by any stock exchange on which
the Units are listed, written notice signed by the Trustee (which signature
may be a facsimile) of every meeting of the Unit Holders setting forth the
time and place of such meeting and in general terms the matters proposed to be
acted upon at such meeting shall be given in person or by mail not more than
60 nor fewer than 10 days before such meeting is to be held to all Unit
Holders of record on a date ("Voting Record Date") selected by the Trustee,
which Voting Record Date shall not be more than 60 days before the date of
such meeting. If such notice is given to any Unit Holder by mail, it shall be
directed to him at his last address as shown by the records of the Trustee and
shall be deemed to have been duly given when so addressed and deposited in the
United States mail, postage prepaid. No matter other than that stated in the
notice shall be acted upon at any meeting. All such meetings shall be held at
such time and place in the Borough of Manhattan, The City of New York, as the
notice of any such meeting may designate.
Section 5.03 - Voting. Only a Person who was a Unit Holder on the Voting
Record Date ("Record Date Unit Holder") shall be entitled to be present,
speak.or vote at any such meeting. A person appointed by an instrument in
writing as a proxy for such Record Date Unit Holder shall be entitled at such
meeting to exercise all rights exercisable by such Record Date Unit Holder as
if such Record Date Unit Holder attended such meeting and exercised such
rights in person. In addition, any representative of the Company and the
Trustee shall be entitled to be present, speak and generally to participate in
any such meeting. All references in this Agreement to Record Date Unit
Holders shall mean either such Record Date Unit Holder or his duly appointed
proxy.
At any such meeting, the presence in person or by proxy of Record Date
Unit Holders holding Certificates representing a majority of the Units
outstanding on the Voting Record Date shall constitute a quorum and, unless
otherwise provided in this Agreement, any matter shall be deemed to have been
approved if it is approved by the Vote of Record Date Unit Holders holding
Certificates representing a majority of the Units represented at the meeting.
Each Record Date Unit Holder shall be entitled to one vote for each Unit
represented by the Certificate or Certificates held by him. The Trustee,
subject to all applicable laws, may solicit from and vote proxies of Unit
Holders entitled to vote at any meeting thereof.
Section 5.04 - Conduct of Meetings. The Trustee may make such reasonable
regulations as it may deem advisable governing the conduct of any such meeting
including, without limitation, provisions governing the appointment of
proxies, the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidences of the right to vote,
the preparation and use at the meeting of a list of the Persons entitled to
vote at the meeting and the appointment of a chairman and secretary of the
meeting.
Section 5.05. Voting of Units Held by Company, SOC and Their Respective
Affiliates. SOC and the Company agree that, at any meeting of Unit Holders,
they will vote or cause to be voted any Units held of record or beneficially
by the Company, SOC or any Affiliate of either of them in the same proportion
as the Units voted by other Unit Holders voting at such meeting.
ARTICLE VI
Administration of Trust and Powers of Trustee
Section 6.01 - General Authority. Subject to the limitations set forth
in this Agreement, the Trustee is authorized to and shall take such actions as
in its judgment are necessary, desirable or advisable to achieve the purposes
of the Trust, including the appointment of an ancillary trustee or trustees
under this Agreement, the solicitation and voting of proxies at meetings of
Unit Holders, the taking of appropriate action to enforce the terms of the
Conveyances and the Support Agreement (including the institution of any
actions or proceedings at law or in equity necessary to the foregoing) and the
authority to agree to modifications of the terms of the Conveyances or the
Support Agreement or to settle disputes with respect thereto, so long as (i)
the Trustee shall have received an unqualified written opinion of counsel to
the Trust to the effect that such modification or settlement will not
adversely affect the classification of the Trust as a "grantor trust" for
federal income tax purposes or cause the income from the Trust to be treated
as unrelated business taxable income for federal income tax purposes, and (ii)
such modifications or settlements do not alter the nature of or the amount or
time of receipt of payments under the Royalty Interest. The Trustee shall not
be (i) obligated or permitted to make any investment or operating decision or
otherwise physically inspect the properties burdened by the Royalty Interest
or (ii) obligated to prevent drainage or any other event or state of facts
which damages or diminishes the value of the Royalty Interest. The Trustee is
authorized to execute the Trust Conveyance and the Support Agreement on behalf
of the Trust. The Trustee is authorized to and shall take such actions as in
its judgment are necessary or advisable to give such approvals as may be
appropriate under the Conveyance, and to make such requests as in its judgment
are necessary or advisable under Section 4.8 of the Overriding Royalty
Conveyance or any comparable provision of any Additional Conveyance, in order
to preserve and protect the Trust Estate and to discharge its other duties
hereunder.
The Company and the Trustee are hereby authorized to make and shall be
responsible for all filings on behalf of the Trust with the Securities and
Exchange Commission required by the Exchange Act and with the Securities and
Exchange commission or such other governmental authorities required by
applicable law or regulation with respect to the Units as may be specified
from time to time in an Officer's Certificate delivered to the Trustee. It is
the expectation of the Company that the Units may, in the future, be listed on
the New York Stock Exchange or another stock exchange. In this regard, the
Company will advise the Trustee of any actions that the Trustee should take in
connection with effectuating such listing and, unless the Trustee shall
determine that such actions are not in the best interest of the Trust, the
Trustee shall take such actions. If listing is accomplished, the Trustee will
take all actions necessary to maintain such listing including compliance with
the rules of the stock exchange and the filing of any reports required by the
stock exchange; provided, however, that if at any time the Company shall have
informed the Trustee in writing that, in the opinion of the Company, such
listing is not in the best interest of the Unit Holders or the interests of
the Unit Holders would be better served by listing the Units on another stock
exchange as specified by the Company, then the Trustee shall as soon as
practicable call a meeting of Unit Holders in accordance with the provision of
ARTICLE V hereof and submit to a vote of Unit Holders at such meeting a
proposal to delist the Units, or to delist the Units and list the Units on
another stock exchange as specified by the Company; if such proposal is a
approved at such meeting by the affirmative vote of the Record Date Unit
Holders holding Certificates representing a majority of the Units represented
at such meeting in accordance with ARTICLE V, the Company will seek to
accomplish the delisting, or the delisting and listing on such other stock
exchange, without the involvement of the Trustee, but if the Company
determines that action by the Trustee is necessary, the Company will instruct
the Trustee regarding what actions the Trustee must take in order to
accomplish such delisting, or delisting and listing on such other stock
exchange; in such event the Trustee shall take such action, if any, as shall
be specified by the Company in order to accomplish the delisting of the Units
from their then current stock exchange or such delisting and listing of the
Units on such other stock exchange. The Company agrees to consider, on a
periodic basis, whether or not such listing is in the best interest of the
Unit Holders and whether the interests of the Unit Holders would be better
served by listing the Units on another stock exchange, and the Company agrees
that if it should reach either conclusion it will furnish appropriate notice
in writing to the Trustee.
The Trustee may not dispose of all or any portion of the Royalty Interest
except as provided in Sections 6.O2, 6.06 or 9.02 hereof.
Section 6.02 - Limited Power to Dispose of Royalty Interest and Other
Trust Interests. (a) The Trustee shall not sell or otherwise dispose of all or
any part of the Trust Estate, including all or any part of the Royalty
Interest, or any interest therein, except that
(i) the Trustee shall make cash distributions to Unit Holders and pay
the liabilities of the Trust as provided herein,
(ii) the Trustee shall sell or otherwise dispose of all or a part of
the Royalty Interest or an interest therein if, prior thereto, such sale or
other disposition and all material terms and conditions thereof (including, if
practicable, the record date for determining Unit Holders of record entitled
to receive any cash to be distributed as a result of such sale) are approved
by the affirmative vote of the Record Date Unit Holders holding Certificates
representing 70% of the Units outstanding on the Voting Record Date if such
sale is to be effected on or prior to December 31, 2010, or 60% of the Units
outstanding on the Voting Record Date if such sale is to be effected
thereafter, in each case at a meeting duly called and held in accordance with
the provisions of ARTICLE V hereof (provided that if the terms or conditions
of such sale or other disposition adversely affect The Bank of New York's own
rights, duties or immunities under this Agreement or otherwise, the Trustee
may in its discretion, but shall not be obligated to, effect such sale or
other disposition); provided, however, that if such sale is effected in order
to provide for the payment of specific liabilities of the Trust then due and
involves a part, but not all or substantially all, of the Trust Estate, such
sale shall be approved by the affirmative vote of the Record Date Unit Holders
holding Certificates representing a majority of the Units outstanding on the
Voting Record Date for such meeting,
(iii) the Trustee shall mortgage, pledge, grant security interests in
or otherwise encumber the Trust Estate, or a portion thereof, if required
pursuant to Section 6.06 or 6.12 hereof,
(iv) the Trustee shall dispose of the Trust Estate if required
pursuant to Section 9.02 hereof,
(v) the Trustee shall sell for cash the Trust Estate, or a portion
thereof, if and to the extent that
(1) the Trustee is unable to effect a borrowing by the Trust, as
specified in sections 6.06 or Section 6.12 hereof,
(2) the Trustee determines that it is not practicable to submit such
sale and all material terms and conditions thereof to a vote of the Unit
Holders pursuant to clause (ii) of this paragraph (a) above,
(3) such sale is effected in order to provide for the payment of
specific liabilities of t he Trust then due, and the cash on hand is
insufficient to discharge such liabilities,
(4) the Trustee determines that the failure to pay such liabilities at
such time will be contrary to the best interest of the Unit Holders and that
such sale is necessary to provide for the payment of such liabilities,
(5) the sale is effected at a price which, in the opinion of an
investment banking firm, commercial banking firm or other Person qualified to
render such opinion and selected by the Trustee, is at least equal to the fair
market value of the interest sold, and the sale is effected pursuant to terms
and conditions which, in the opinion of such investment banking firm,
commercial banking firm or other Person, are commercially reasonable when
compared to alternatives available to the Trust, and
(6) the Trustee has received an unqualified written opinion of counsel
to the Trust to the effect that such sale will not adversely affect the
classification of the Trust as a "grantor trust" for federal income tax
purposes or cause the income from the Trust to be treated as unrelated
business taxable income for federal income tax purposes; provided, however,
that if the Trustee is unable to obtain such opinion the Trustee shall
nevertheless effect such sale if the Trustee determines that the failure to
effect such sale will be materially detrimental to the Unit Holders considered
as a whole.
(b) The Trustee shall distribute any cash received as a result of any
such sale pursuant to clause (ii) of paragraph (a) above, subject to the need
to pay any liabilities of the Trust or to establish or increase any cash
reserves pursuant to Section 6.07 hereof, or any cash received as a result of
a sale pursuant to clause (v) of paragraph (a) which is in excess of the
amount needed to discharge liabilities of the Trust then due, to Unit Holders
of record as specified in connection with the Unit Holder vote or, if there is
no Unit Holder vote or no record date for determining Unit Holders of record
entitled to receive any cash to be distributed as a result of such sale is so
specified, to unit Holders as part of the Quarterly Income Amount distributed
with respect to the first Quarterly Record Date following the date of any such
sale (unless such sale occurs on a Quarterly Record Date or within ten days
prior to a Quarterly Record Date in which event the distribution may be on
such Quarterly Record Date unless the Trustee determines that such an
immediate distribution would prevent the Trust from complying with applicable
law or any regulation of any stock exchange on which the Units are listed).
Section 6.03 - No Power to Engage in Business or Make Investments.
Notwithstanding any provision of the Delaware Trust Act, the Trustee shall not
cause the Trust to engage in any business, commercial or investment activity
of any kind whatsoever, except for investment activity permitted in Section
6.07 hereof, and shall not under any circumstances use any portion of the
Trust Estate to acquire any oil and gas lease, royalty or other mineral
interest or, except as permitted in Sections 6.07 and 6.12, acquire any other
asset. The Trustee shall not accept any contribution to the Trust other than
the Initial Royalty Interest, any Additional Royalty Interest and any cash
required to be deposited pursuant to Section 2.04 hereof; provided that
nothing herein shall be construed to prevent the Trust from receiving the
benefits of the Conveyance and the Support Agreement.
Section 6.04 - Payment of Liabilities of Trust. The Trustee is
authorized to and shall first apply all money received by it (other than
amounts contributed under Section 2.04 hereof with respect to any cash
reserve) for the payment of all liabilities of the Trust, including but not
limited to all expenses, taxes and liabilities incurred of all kinds,
compensation to it for its services and reimbursement of its expenses pursuant
to Sections 7.03 and 7.04 hereof and compensation to such parties as may be
consulted pursuant to Section 7.05 hereof.
Section 6.05 - Timing of Trust Income and Expenses. The Trustee will use
reasonable efforts to cause the Unit Holders to recognize income (including
any income from interest earned on investments made in accordance with this
Agreement or from any sale of the Royalty Interest, except as may be specified
in a vote of Unit Holders in the case of a sale pursuant to clause (ii) of
paragraph (a) of Section 6.02 hereof) and expenses on Quarterly Record Dates.
The Trustee will invoice the Trust for services rendered by the Trustee and,
to the extent provided in Section 7.04 hereof, reimbursement of expenses
incurred by the Trustee relating to the Trust only on a Quarterly Record Date
and shall cause the Trust to pay such invoice only on the Quarterly Record
Date on which such invoice is rendered and will use reasonable efforts to
cause all Persons to whom the Trust becomes liable to invoice the Trust for
such liability on a Quarterly Record Date and to cause the Trust to pay such
liability on the Quarterly Record Date on which such liability is invoiced.
In connection with the requirements of any stock exchange on which the Units
are listed, the Trustee will, if required by such stock exchange, use
reasonable efforts to determine the Quarterly Income Amount and report such
amount to such stock exchange at such time as may be required by such stock
exchange; provided that the Trustee shall not be required to calculate any
amounts payable pursuant to the Conveyance. Nothing in this Section 6.05
shall be construed as requiring the Trustee to cause payment to be made for
Trust liabilities on any date other than on such date as in its sole
discretion it shall deem to be in the best interests of the Unit Holders.
Section 6.06 - Limited Power to Borrow. If at any time the amount of
cash on hand (which amount shall not include any amounts which have been
reported to a stock exchange on which the Units are listed or otherwise
publicly announced as the amount which will be paid to Unit Holders with
respect to a Quarterly Record Date and which amounts have not been paid) is
not sufficient to pay liabilities of the Trust then due (including any amount
payable upon redemption of Units pursuant to Section 6.12 hereof), the Trustee
shall borrow from another Person not affiliated with the Trustee, on a secured
or unsecured basis, such amounts as are required after use of any available
Trust funds to pay such liabilities as have become due; provided that the
Trustee shall effect such borrowing only under the following conditions:
(a) the Trustee shall have determined that it is not practical to pay
such liabilities on subsequent Quarterly Record Dates out of funds anticipated
to be available on such dates and that, in the absence of such borrowing, the
Trust Estate is subject to the risk of loss or diminution in value;
(b) the borrowing is effected pursuant to terms and conditions which,
in the opinion of an investment banking firm, commercial banking firm or other
Person qualified to render such opinion and selected by the Trustee, are
commercially reasonable when compared to alternatives available to the Trust,
and
(c) the Trustee shall have received an unqualified written opinion of
counsel to the Trust to the effect that such borrowing will not adversely
affect the classification of the Trust as a "grantor trust" for federal income
tax purposes or cause the income from the Trust to be treated as unrelated
business taxable income for federal income tax purposes; provided, however,
that if the Trustee is unable to obtain such opinion the Trustee shall
nevertheless effect such borrowing if the Trustee determines that the failure
to effect such borrowing will be materially detrimental to the Unit Holders
considered as a whole.
To secure payment of such indebtedness, the Trustee is authorized to
mortgage, pledge, grant security interests in or otherwise encumber (and to
include as a part thereof any and all terms, powers, remedies, covenants and
provisions deemed necessary or advisable in the Trustee's discretion
including, without limitation, the power of sale with or without judicial
proceedings) the Trust Estate, or any portion thereof, including the Royalty
Interest and to carve out and convey production payments. The Trustee is
prohibited from borrowing in its capacity as Trustee or on behalf of the Trust
except as provided in this Section 6.06 and in Section 6.12(d) hereof. In the
event of such borrowings, no further Trust distributions shall be made until
the indebtedness created by such borrowings has been paid in full.
Section 6.07 - Cash Reserves and Cash Held Pending Distribution Date.
The Trustee shall establish a cash reserve for the payment of material
liabilities of the Trust which may become due, but only under the following
conditions: (a) the Trustee shall have determined that it is not practical to
pay such liabilities on subsequent Quarterly Record Dates out of funds
anticipated to be available on such dates and that, in the absence of such
reserve, the Trust Estate is subject to the risk of loss or diminution in
value or The Bank of New York is subject to the risk of personal liability for
such liabilities and (b) the Trustee shall have received an unqualified
written opinion of counsel to the Trust to the effect that the establishment
and maintenance of such reserve will not adversely affect the classification
of the Trust as a "grantor trust" for federal income tax purposes or cause the
income from the Trust to be treated as unrelated business taxable income for
federal income tax purposes; provided however, that if the Trustee is unable
to obtain such opinion the Trustee shall nevertheless establish such reserve
if the Trustee determines that the failure to establish such reserve will be
materially detrimental to the Unit Holders considered as a whole or will
subject The Bank of New York to the risk of personal liability for such
liabilities.
Collected cash balances being held by the Trustee as a reserve for
liabilities shall be invested (i) in obligations issued by (or unconditionally
guaranteed by) the United States or any agency or instrumentality thereof
(provided such obligations are secured by the full faith and credit of the
United States) or (ii) if such obligations maturing as required in the last
sentence of this paragraph are not available, in repurchase agreements (1)
with any bank, having capital, surplus and undivided profits of $100,000,000
or more; (2) which are secured by collateral of the type specified in (i)
above which collateral (a) is in the possession of the Trustee either directly
or through the Federal Reserve book-entry account of the-Trustee individually
or a third party acting solely as agent for the Trustee, (b) is not subject to
any third party claims, (c) has a market value (determined at the execution
date of the relevant repurchase agreement) at least equal to the principal
amount invested in the repurchase agreement; and (3) which have a fixed rate
of return. Any such obligation or repurchase agreement must mature (x) on the
next succeeding Quarterly Record Date or, if the due date of the liability
with respect to which the reserve is established is known, on the due date of
such liability and (y) must be held to maturity unless there is an earlier
default. In the event of a default thereon prior to maturity, the Trustee may
liquidate such investment and reinvest in another obligation of the type and
maturity date specified in this Section 6.07, provided that the rate of return
thereon is not in excess of the rate of return specified in the investment so
liquidated.
Collected cash balances being held by the Trustee for distribution at the
next Distribution Date shall be invested (i) in obligations issued by (or
unconditionally guaranteed by) the United States or any agency or
instrumentality thereof (provided such obligations are secured by the full
faith and credit of the United States) or (ii) if such obligations with a
maturity date on such Distribution Date are not available, in repurchase
agreements as described in the immediately preceding paragraph; provided that
any such obligation or repurchase agreement must mature on such Distribution
Date and must be held to maturity, except as provided in the last sentence of
the previous paragraph.
Except as otherwise provided in Section 4.02 hereof, in the event funds
are received by the Trustee at a time that does not allow it sufficient time
to invest in obligations or repurchase agreements of the type and maturity
specified in this Section 6.07 with interest accruing from the day such funds
are received by the Trustee, the Trustee shall, if practicable, invest such
funds overnight in a time deposit with a bank having capital, surplus and
undivided profits of $100,000,000 or more and shall, on the following day,
reinvest such funds (and any interest earned thereon) in obligations or
repurchase agreements of the type and maturity so specified.
Notwithstanding the foregoing, prior to the Opinion Date and during any
period which is not an Insignificant Investor Period, none of the investments
described in this section shall be purchased from The Bank of New York.
Section 6.08 - Settlement of Claims. The Trustee is authorized to
prosecute and defend, and to settle by arbitration or otherwise, any claim of
or against the Trustee, the Trust or the Trust Estate, to waive or release
rights of any kind and to pay or satisfy any debt, tax or claim upon any
evidence by it deemed sufficient, without the joinder or consent of any Unit
Holder.
Section 6.09 - Income and Principal. The Trustee shall not be required
to keep separate accounts or records for income and principal or maintain any
reserves for depletion of any mineral assets in the Trust Estate. To the
extent that such separate accounts or records are kept, the Trustee may
allocate the receipts, disbursements and reserves of the Trust between income
and principal in the discretion of the Trustee, and the Trustee's discretion
need not accord with the provision of any, requirement of applicable law.
Regardless of any such characterization, however, the Trustee shall not make
any distribution, accumulate any funds or maintain any reserve except as
expressly provided in this Agreement.
Section 6.10 - Effect of Trustee's Power on Trust Property. The powers
granted the Trustee under this Agreement may be exercised upon such terms as
the Trustee deems advisable and may affect Trust properties.
Section 6.11 - No Requirement of Diversification. The Trustee shall be
under no obligation to diversify the Trust's assets or to dispose of any
wasting assets.
Section 6.12 - Divestiture of Units. If at any time the Trust or the
Trustee is made a party in any judicial or administrative proceeding which
seeks the cancellation or forfeiture of any property in which the Trust has an
interest because of the nationality, or any other status, of any one or more
Unit Holders, the following procedures will be applicable:
(a) The Trustee will promptly give written notice ("Notice") of the
existence of such controversy to each Unit Holder ("Ineligible Holder") whose
nationality or other status is an issue in the proceeding and will mail a copy
of such notice to SOC and the Company. The Notice will contain a reasonable
summary of such controversy and will constitute a demand to each Ineligible
Holder that he dispose of his Units to a party that would not be an Ineligible
Holder, within 30 days after the date of the Notice.
(b) If any Ineligible Holder fails to dispose of his Units as required
by the Notice, the Trustee shall have the right to redeem and shall redeem any
such Units at any time during the 90 days after the expiration of the 30-day
period specified in the Notice. The redemption price on a per Unit basis will
be determined as of the last Business Day ("determination day") preceding the
end of the 30-day period specified in the Notice and will equal the following
per Unit amount:
(1) if the Units are then listed on a stock exchange, the price
will equal the closing price of the Units on such stock exchange (or, if
the Units are then listed on more than one stock exchange, on the largest
such stock exchange in terms of the volume of Units traded thereon during
the preceding 12 months, or for the period the Units have been traded on
such stock exchange if less than 12 months) on the determination day if
any units were sold on such stock exchange on such day or, if not, on the
last day preceding the determination day on which any Units were sold on
such stock exchange, or
(2) if the Units are not then listed on any stock exchange but are
traded in the over-the-counter market, the price will equal the closing
bid price on the determination date as quoted on the National Market
System of the National Association of Securities.Dealers Automatic
Quotation System if the Units are so quoted or, if not, the mean between
the closing bid and asked prices for the Units in the over-the-counter
market on the determination day, if quotations for such prices on such
day are available or, if not, on the last day preceding the determination
day for which such quotations are available, or
(3) if the Units are neither listed nor traded in the over-the-
counter market, the price shall equal the price which, in the written
opinion of a recognized firm of investment bankers selected by the
Trustee, is the fair market value of the Units. The Trustee in relying
on the opinion of such investment banking firm, shall have full
authorization and be entitled to the full protection provided by Section
7.05 hereof. If the Trustee cannot obtain an opinion from an investment
banking firm which in the Trustee's sole discretion is competent to
render such opinion, then the Trustee may obtain (and rely on) the
opinion of any other advisor or expert which the Trustee in its sole
discretion believes to have sufficient competence to render such opinion.
Such redemption (or sale) will be accomplished by tender of the above
cash price to the Ineligible Holder at his address as shown on the
records of the Trustee, either in person or by mail as provided in
Section 12.05 hereof, accompanied by notice of cancellation.
Concurrently with such tender the Trustee shall cancel or cause to be
cancelled all Certificates representing Units then owned by such
Ineligible Holder and for which tender has been made. In the event the
tender is refused by the Ineligible Holder or if he cannot be located
after reasonable efforts to do so, the tendered but unclaimed sum shall
be held by the Trustee in a non-interest bearing account, uninvested and
in trust for the benefit of such Ineligible Holder, until proper claim
for same has been made by such holder, but subject to applicable laws
concerning unclaimed property.
(c) During any period prior to the Opinion Date which is not an
Insignificant Investor Period, if the redemption provided in paragraph
(b) of this Section 6.12, if effected by the Trust, would constitute a
non-exempt "prohibited transaction" within the meaning of section 406 of
ERISA or section 4975 of the Code, the Units subject to the Trust's right
of redemption shall be purchased by the Company or by another Person
eligible to purchase such Units and designated by the Company in a
transaction which does not constitute such a non-exempt "prohibited
transaction." Such purchase shall be accomplished by tender of the cash
price referred to in paragraph (b) to the Ineligible Holder at his
address as shown on the records of the Trustee, either in person or by
mail as provided in Section 12.05 hereof, accompanied by notice that the
Units will be transferred to the purchaser. In the event the tender is
refused by the Ineligible Holder or if he cannot be located after
reasonable efforts to do so, the Company shall cause the tendered but
unclaimed sum to be placed in a non-interest bearing account, uninvested
and in trust for the benefit of such Ineligible Holder, until a proper
claim for same has been made by such holder, but subject to applicable
laws concerning unclaimed property. Upon receipt by the Trustee of
notice from the Company or the purchaser that the tender has been refused
or that the Ineligible Holder has not been located after reasonable
efforts to do so and that the tendered but unclaimed sum has been placed
in trust as provided herein, the Trustee shall cause to be transferred to
the purchaser the Units purchased and shall issue to the purchaser
Certificates representing such Units. Such transfer and issuance shall
be effected notwithstanding the fact that the Certificates representing
the Units purchased have not been presented to the Trustee for
cancellation, and from and after the date of such transfer such
Certificates shall only represent the right to receive the funds held in
trust for the benefit of such Ineligible Holder.
(d) The Trustee may cause the Trust to borrow any amount required
to redeem Units in accordance with the procedures described in paragraph
(b) above, or if the Trustee is unable to effect such borrowing the
Trustee may cause the Trust to sell a portion of the Trust Estate for
cash in order to obtain funds to effect such redemption; provided that
the Trustee shall effect such borrowing only upon the terms and
conditions specified in Section 6.06 hereof and shall effect such sale
only under the conditions specified in Section 6.02 hereof.
Section 6.13 - Prohibited Transactions. Notwithstanding any power,
right, duty or obligation of the Trustee under this Agreement, the Trustee
shall not cause or permit the Trust to participate in any transaction which
would constitute a non-exempt "prohibited transaction" within the meaning of
section 406 of ERISA or section 4975 of the Code. During any period prior to
the Opinion Date which is not an Insignificant Investor Period, (a) the
Company shall provide to the Trustee on a timely basis any and all information
reasonably requested by the Trustee concerning the relationship of the Company
and its Affiliates to certain Unit Holders specified by the Trustee and any
information listing parties-in-interest furnished by Unit Holders, (b) the
Trustee shall review all such information provided by the Company as well as
any relevant information the Trustee may receive from a Unit Holder concerning
its status as an ERISA-covered entity and the identification of parties-in-
interest under ERISA with respect to such Unit Holder, and (c) the Trustee
shall make reasonable inquiry of each Person desiring to enter into a
transaction with the Trust as to whether such Person is a party-in-interest
under ERISA with respect to ERISA-covered Unit Holders.
ARTICLE VII
Rights and Liabilities of Trustee
Section 7.01 - General Liability of Trustee. The Trustee is empowered to
act in its discretion and shall not be personally or individually liable for
any act or omission except in the case of negligence, bad faith or fraud. No
action taken or suffered in good faith by the Trustee in reliance upon and in
accordance with the written opinion of any counsel or the written advice of
any other expert shall in any event constitute negligence, bad faith or fraud
within the purview of this Agreement.
The Trustee shall not be answerable for the negligence of any experts,
provided that the Trustee has selected such experts with due care in good
faith.
It is acknowledged that the Trustee has taken the Trust Estate as is and
without examination. The Trustee shall have no responsibility for any
statements made or omitted in any disclosure documents relating to the Units
or the Trust Estate and, except as may be required by law, no duty to verify
the accuracy or completeness of the same.
The Bank of New York and the Trustee will have no duties whatsoever
except such duties as are set forth in this Agreement, and no implied covenant
or obligation shall be read into this Agreement against the Trustee.
Section 7.02 - Indemnification of Trustee.
(a) The Bank of New York and the Trustee (including its agents and
employees) shall be indemnified by, and receive reimbursement from (i)
the Company (1) during any period prior to the Opinion Date which is not
an Insignificant Investor Period, (2) whenever the assets of the Trust
are insufficient or not permitted by applicable law to provide such
indemnity and (3) after the termination of the Trust to the extent that
the Trustee did not have actual knowledge, or should not have reasonably
known, of a potential claim against the Trustee for which a reserve could
have been established and used to satisfy such claim in accordance with
Section 9.03 prior to the final distribution of assets of the Trust upon
its termination or to the extent any such reserve was insufficient and
(ii) the Trust Estate during any other period, against and from any and
all liability, expense, claim, damage or loss (including reasonable legal
fees and expenses) incurred by it, individually or as Trustee, in the
administration of the Trust and the Trust Estate or any part or parts
thereof, or in the doing of any act done or performed or omission
occurring on account of its being Trustee or any consequence thereof,
including without limitation, those resulting from any non-exempt
prohibited transaction or its resignation as Trustee, except (1) such
liability, expense, claim, damage or loss arising from the Trustee's
negligence, bad faith or fraud and (2) any loss resulting from the
Trustee's expenses (direct or indirect) in acting hereunder exceeding the
compensation and reimbursement provided for pursuant to Sections 7.03,
7.04 and 7.05 hereof. From and after the Opinion Date and during any
Insignificant Investor Period, the Trustee shall have a lien upon the
Trust Estate to secure it for such indemnification and reimbursement and
for compensation to be paid to it; provided, however, that any such lien
on the Royalty Interest shall be deemed released upon a sale or other
disposition of the same. Except as provided in Section 3.07 hereof,
neither the Trustee nor any agent or employee of the Trustee shall be
entitled to any reimbursement or indemnification from any Unit Holder for
any liability, expense, claim, damage or loss incurred by the Trustee or
any such agent or employee. Notwithstanding the foregoing, the Trustee
shall not be entitled to indemnity from the Trust Estate with respect to
matters for which it is entitled to indemnity pursuant to paragraph (b)
of this Section 7.02.
(b) The Company will indemnify and hold the Trustee, individually
and as Trustee, and the Trust harmless from and against any losses,
claims, damages or liabilities to which the Trustee, individually or as
Trustee, or the Trust may become subject, under the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
offering circular, private placement memorandum or similar document or
the registration statement or any prospectus relating to the registration
of the Units under the Securities Act of 1933, as amended, or in any
report or other document filed pursuant to the Securities Exchange Act of
1934, as amended, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Trustee,
individually and as Trustee, or the Trust for any legal or other expenses
reasonably incurred by the Trustee, individually and as Trustee, or the
trust in connection with investigating or defending any such action or
claim; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the registration
statement or any prospectus or such amendment or supplement in reliance
upon and in conformity with information furnished to the Company by the
Trustee, individually or as Trustee. The foregoing indemnity and hold
harmless agreement shall inure to the benefit of all officers, directors
and controlling persons of the Trustee, individually and as Trustee.
(c) All indemnifications of The Bank of New York and the Trustee
by the Company under this Agreement shall survive the termination of the
Trust and the termination of this Agreement. Moreover, any provision in
this Agreement that provides for the indemnification of The Bank of New
York and the Trustee or that limits the liability of The Bank of New York
and the Trustee shall also apply with respect to any Transfer Agent and
Registrar.
Section 7.03 - Compensation. The Trustee shall receive from the Trust
Estate compensation for its services as set forth in Exhibit C attached hereto
and, to the extent provided in Sections 7.04 and 7.05 hereof, reimbursement of
expenses incurred as Trustee of the Trust and as Transfer Agent and Registrar
of the Certificates representing the Units. In the event that any Person
serving as Trustee is not also serving as Transfer Agent and Registrar, the
compensation payable pursuant to Exhibit C shall be allocated among such
Persons as the Trustee shall determine.
Section 7.04 - Other Services and Expenses.- Charges for performing any
services not contemplated or specifically covered in Exhibit C will be charged
to the Trust on the basis of the Trustee's then prevailing rate for such
services; provided, however, that during any period prior to the Opinion Date
which is not an Insignificant Investor Period, any services rendered by the
Trustee in enforcing the terms and conditions of the Conveyance or the Support
Agreement shall not be deemed to be services not contemplated or specifically
covered in Exhibit C; and provided further that services by the Trustee on
behalf of the Trust in connection with the defense of any litigation against
the Trust or the Trustee, in connection with any audit of the books and
records of the Trust by the Internal Revenue Service, in connection with any
investigation by the Securities and Exchange Commission or other governmental
bodies involving the Trust and other matters which increase the obligations of
the Trustee beyond those contemplated by this Agreement and are not the result
of discretionary action on the part of the Trustee shall constitute services
not contemplated or specifically covered in Exhibit C.
The initial organizational costs of the Trust, including the printing of
the initial Certificates, the Trustee's acceptance fee, out of pocket expenses
and the fees of legal counsel of the Trustee, will be paid by the Company.
During any period prior to the opinion Date which is not an Insignificant
Investor Period, the Trustee shall cause the Trust to pay directly out of the
Trust Estate all expenses, taxes and liabilities incurred and relating to the
Trust, including but not limited to fees and expenses incurred for experts
hired pursuant to Section 7.05 hereof; provided, however, that The Bank of New
York may incur, and shall be reimbursed out of the Trust Estate for, the
actual cost to The Bank of New York of all of its out-of-pocket costs and
expenses for printing, microfiche, postage, delivery and pick-up, long
distance telephone, travel and other similar costs and expenses which are
incurred in connection with the performance of its duties as Trustee or
Transfer Agent and Registrar. From and after the Opinion Date and during any
Insignificant Investor Period, The Bank of New York may incur any out-of-
pocket costs and expenses in the discharge of its duties as Trustee or
Transfer Agent and Registrar (or may, but shall not be required to, cause the
Trust to pay any or all of such expenses directly out of the Trust Estate),
including but not limited to fees and expenses incurred for experts hired
pursuant to Section 7.05 hereof; provided, however, that The Bank of New York
shall be reimbursed out of the Trust Estate at actual cost to The Bank of New
York.
Section 7.05 - Reliance on Experts. The Trustee shall consult with
accountants, counsel and petroleum engineers as specifically provided herein
and may otherwise consult with counsel (including its own counsel),
accountants, geologists, engineers and other parties deemed by the Trustee to
be qualified as experts on the matters submitted to them. The Trustee is
authorized to rely on the advice of such experts as provided in Section 7.01
hereof and to make payments of all reasonable fees for services or expenses
thus incurred out of the Trust Estate.
Section 7.06 - No Security Required. No bond or other security shall be
required of the Trustee.
Section 7.07 - Transactions in Multiple Capacities. To the extent
permitted by applicable law and except as otherwise provided herein, the
Trustee shall not be prohibited in any way in exercising its powers or from
dealing with The Bank of New York in any other capacity, fiduciary or
otherwise.
ARTICLE VIII
Office of Trustee
Section 8.01 - Removal of Trustee. The Trustee may be removed as Trustee
hereunder, with or without cause, by the affirmative vote at a meeting duly
called and held in accordance with the provisions of ARTICLE V hereof of
Record Date Unit Holders holding Certificates representing a majority of the
Units represented at the meeting. Subsequent to such vote, any Trustee being
removed shall have only those duties and obligations such Trustee would have
if such Trustee had commenced a resignation as described in Section 8.02
hereof.
Section 8.02 - Resignation of Trustee. (a) Any Trustee may at any time
resign for any reason whatsoever, with or without cause, and without the
necessity of any court proceeding. Any such resignation may be commenced by
giving notice to the Company. Such notice to the Company shall be promptly
confirmed in writing, and shall be followed by the giving of written notice to
each of the Unit Holders at such Unit Holder's last address as shown by the
records of the Trust at the time such notice is given by first-class mail.
Any resigning Trustee shall account to its successor for the administration of
the Trust as may be reasonably required by the successor Trustee. Any and all
successors to any resigning Trustee shall be fully protected in relying upon
such accounting. Any resignation shall be effective upon the appointment of
and acceptance of the appointment by a successor Trustee.
(b) At no time subsequent to any Trustee's commencement of a
resignation (as described above) shall such Trustee have any duties or
obligations with respect to any filings under the Securities Act of 1933, as
amended, or any successor statute or statutes or the rules and regulations
thereunder, and subsequent to the commencement of a resignation, the resigning
Trustee shall have only those other duties and obligations expressly set forth
herein or contemplated hereby.
(c) No Trustee commencing a resignation shall have any liability for
any consequences, expenses, damages, or effects of any kind whatsoever
including, without limitation, any delay in or non-commencement of any SEC
registration, in whole or in part, arising out of or relating to its
commencing a resignation or in invoking its rights and privileges with respect
thereto as set forth above.
Section 8.03 - Appointment of Successor Trustee. If the Trustee has
given notice of its intention to resign, a successor Trustee shall be
appointed by the Company; provided, that if the Trustee has been removed by a
vote of Unit Holders pursuant to Section 8.01 hereof, a successor Trustee may
be appointed by the Unit Holders at such meeting. Notice of the appointment
of a successor Trustee shall be given by the resigning Trustee within ten days
of receipt of notice of such appointment to each Unit Holder as of the date of
the appointment of the successor Trustee at each Unit Holder's last address as
shown by the records of the Trustee.
In the event that a successor Trustee has not been appointed within 60
days after the commencement of a resignation or occurrence of a vacancy, a
successor Trustee may be appointed by any state court of Delaware, upon the
application of any Unit Holder. In the event any such application is filed,
any such court may appoint a temporary successor Trustee at any time after
such application is filed with it which shall, pending the final appointment
of a successor Trustee, have such powers and duties as the court appointing
such temporary successor Trustee shall provide in its order of appointment,
consistent with the provisions of this Agreement. In the event such court
shall deem it necessary, the court may appoint such temporary successor
Trustee or successor Trustee on such terms as to compensation as it shall deem
necessary and reasonable notwithstanding any provision herein to the contrary.
In no event shall any Trustee which has commenced a resignation as described
in preceding Section 8.02 have any duty or obligation to appoint or apply for
the appointment of any successor Trustee or be eligible to be named as a
successor Trustee.
A Trustee appointed under the provisions of this Section 8.03 shall be a
corporation organized and doing business under the laws of the United States,
any state thereof or the District of Columbia authorized under such laws to
exercise trust powers or a national banking association domiciled in the
United States, in either case which has a capital, surplus and undivided
profits (as of the end of its last fiscal year prior to its appointment) of at
least $50,000,000 and subject to supervision or examination by federal or
state authorities. Unless the Trust already has a Trustee that is a resident
of or has a principal office in the State of Delaware, then any Trustee
appointed under this Section 8.03 shall be such a resident or have such a
principal office.
Section 8.04 - Rights of Successor Trustee. Immediately upon the
appointment of any successor Trustee (including a temporary successor
Trustee), all rights, titles, duties, powers and authority of the resigning
Trustee hereunder shall be vested in and undertaken by the successor Trustee
which shall be entitled to receive from the Trustee which it succeeds in
addition to the accounting referred to in Section 8.02 hereof, all of the
Trust Estate held by it hereunder and all records and files in connection
therewith. No successor Trustee shall be obligated to examine or seek
alteration of any accounting of any preceding Trustee, nor shall any successor
Trustee be liable personally for failing to do so or for any act or omission
of any preceding Trustee. The preceding sentence shall not prevent any
successor Trustee or anyone else from taking any action otherwise permissible
in connection with any such accounting.
Section 8.05. - Merger or Consolidation of Trustee. Neither a change of
name of the Trustee, any merger or consolidation of the Trustee with or into
another bank or trust company nor the transfer of its trust operations to a
separate corporation shall affect the Trustee's right, obligation or capacity
to act hereunder. Any such successor shall continue as the Trustee hereunder.
Section 8.06 - Co-Trustee.
(a) The Co-Trustee has been appointed as trustee and joined as a party
hereunder in order to satisfy the requirements of Section 3807 of the Delaware
Trust Act. In the event of the resignation or removal of the Co-Trustee,
there shall be appointed a successor Co-Trustee hereunder who shall meet the
requirements of Section 3807 of the Delaware Trust Act unless at the time of
such resignation or removal at least one other Trustee acting hereunder
satisfies such requirements. Any successor Co-Trustee shall be appointed in
the manner set forth in Section 8.03 hereof.
(b) Notwithstanding any other term or provision hereof to the contrary, The
Bank of New York, in its capacity as Trustee, alone may exercise the rights and
powers granted to the Trustee herein and shall be solely charged with the
performance of the duties herein declared on the part of the Trustee to be had
and exercised or to be performed; provided, however, that if The Bank of New
York, in its capacity as Trustee, deems it necessary or desirable for the
Co-Trustee to act in a particular matter, the Co-Trustee shall have and
exercise the rights and powers granted herein and shall be charged with the
performance of the duties herein declared on the part of the Trustee to be had
and exercised or to be performed, but only in such particular matter, and the
foregoing shall not relieve The Bank of New York, in its capacity as Trustee,
from any liability or obligation of the Trustee to any Unit Holder.
(c) The Bank of New York, in its capacity as Trustee, alone may execute
and deliver, on behalf of the Trust, any writing, document or instrument which
the Trustee is required to execute and deliver, including, without limitation,
the Conveyance, the Certificates and any writing, document or instrument of a
purely ministerial nature.
ARTICLE IX
Term of Trust and Final Distribution
Section 9.01. - Termination. The Trust shall terminate upon the first to
occur of the following events or times:
(a) on or prior to December 31, 2010, a decision to terminate the Trust
by the affirmative vote at a meeting duly called and held in accordance
with the provisions of ARTICLE V hereof of the Record Date Unit Holders
holding Certificates representing 70 percent of the Units outstanding on
the Voting Record Date; or
(b) after December 31, 2010 either
(i) at such time as the sum of the net revenues from the Royalty
Interest for two successive years commencing with any year after 2010 are
less than $1,000,000 per year, unless the net revenues during such period
have been materially and adversely impacted by an event constituting
"Force Majeure" as defined below; or
(ii) a decision to terminate the Trust by the affirmative vote at a
meeting duly called and held in accordance with the provisions of ARTICLE
V hereof of the Record Date Unit Holders holding Certificates
representing 60 percent of the Units outstanding on the Voting Record
Date.
The term "Force Majeure" shall mean, without limitation, the following:
(i) acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders or restraints of any kind of
the government of the United States or of the State of Alaska or any of
their departments, agencies, political subdivisions or officials, or any
civil or military authority; insurrections; civil disturbances; riots;
epidemics; sabotage; war, whether or not declared; landslides; lightning;
earthquakes; fires; hurricanes; winds; tornados; storms; droughts;
floods; arrests; restraint of government and people; explosions;
breakage, malfunction or accident to facilities, machinery, transmission
pipes or canals; partial or entire failure of utilities; shortages of
labor, materials, supplies or transportation; or
(ii) any other cause, circumstance or event (other than depletion
of the petroleum reservoir in which the Trust has an interest) not
reasonably within the control of the Company.
Section 9.02. - Disposition of Assets Upon Termination. Subject to the
proviso set forth below, upon termination of the Trust, the Trustee shall sell
for cash (unless by the affirmative vote of the Record Date Unit Holders
holding Certificates representing 70 percent of the Units outstanding on the
Voting Record Date if the decision to terminate the Trust was made on or prior
to December 31, 2010, or 60 percent of the Units outstanding on the Voting
Record Date if the decision to terminate the Trust was made thereafter, the
Unit Holders approve the sale for a specified non-cash consideration, in which
event the Trustee may, but shall not be required to, attempt to consummate
such non-cash sale, but only if the Trustee shall have received a ruling from
the Internal Revenue Service or an unqualified written opinion of counsel to
the Trust to the effect that such non-cash sale will not adversely affect the
classification of the Trust as a "grantor trust" for federal income tax
purposes or cause the income from the Trust to be treated as unrelated
business taxable income for federal income tax purposes) in one or more sales
all the assets other than cash then held in the Trust Estate; provided however
that as soon as practical following termination of the Trust the Trustee shall
obtain an opinion of an investment banking firm, commercial banking firm or
other Person qualified to render such opinion and selected by the Trustee as
to the fair market value of the Trust Estate on the day of termination of the
Trust; and provided further, that upon receipt of such opinion the Trustee
shall notify the Company thereof, and the Company shall have the right,
exercisable by notice to the Trustee within thirty days of receipt of such
notice, to purchase the assets of the Trust at a price equal to the greater of
(i) the fair market value of the Trust Estate as set forth in such opinion or
(ii) the number of then outstanding Trust Units times the following per Unit
amount:
(A) if the Units are then listed on a stock exchange, the price will
equal the closing price of the Units on such stock exchange (or, if the Units
are then listed on more than one stock exchange, on the largest such stock
exchange in terms of the volume of Units traded thereon during the preceding
twelve months, or for the period the Units have been traded on such stock
exchange if less than twelve months) on the day of termination of the Trust if
any Units were sold on such stock exchange on such day or, if not, on.the last
day preceding the day of termination of the Trust on which any Units were sold
on such stock exchange, or
(B) if the Units are not then listed on any stock exchange but are
traded in the over-the-counter market, the price will equal the closing bid
price on the day of termination of the Trust as quoted by the National Market
System of the National Association of Securities Dealers Automated Quotation
System if the Units are so quoted or, if not, the mean between the closing bid
and asked prices for the Units in the over-the-counter market on the day of
termination of the Trust, if quotations for such prices on such day are
available or, if not, on the last day preceding the day of termination of the
Trust for which such quotations are available.
If the Units are neither listed nor traded in the over-the-counter market, the
price shall equal the fair market value of the Trust Estate as set forth in
such opinion.
In rendering such opinion, such firm or other Person shall take into
account the cash owned by the Trust, the liabilities of the Trust, the costs
incident to the sale of the Royalty Interest, the other costs of termination
of the Trust and such other factors as such firm or other Person rendering
such opinion shall deem relevant.
In the event that the Company does not exercise its option, the Trustee
shall effect any such sale (a) pursuant to procedures or material terms and
conditions approved by the affirmative vote of the Record Date Unit Holders
holding Certificates representing 70 percent of the Units outstanding on the
Voting Record Date if such sale is effected on or prior to December 31, 2010,
or 60 percent of Units outstanding on the Voting Record Date if such sale is
effected thereafter, in each case at a meeting duly called and held in
accordance with the provisions of ARTICLE V hereof (provided that if the
procedures, terms or conditions of such sale adversely affect The Bank of New
York's own rights, duties or immunities under this Agreement or otherwise, the
Trustee may in its discretion, but shall not be obligated to, effect such sale
pursuant to such procedures or terms or conditions) or (b) without a vote of
the Unit Holders if (i) the Trustee determines that it is not practicable to
submit such procedures or terms and conditions to a vote of the Unit Holders
pursuant to clause (a) above and (ii) such sale is effected at a price which
is at least equal to the fair market value of the Trust Estate as set forth in
such opinion and pursuant to terms and conditions which, in the opinion of
such firm or other Person rendering such opinion on the fair market value of
the Trust Estate are commercially reasonable when compared to alternatives
available to the Trust.
Section 9.03. - Distribution of Assets upon Termination. The Trustee
shall as promptly as practicable send notice by first class mail of the date
(which shall be not more than 10 Business Days after the date such notice is
sent) on which it will distribute the proceeds of any such sale, and on such
date shall distribute such proceeds and any other cash in the Trust Estate in
proportion to the Units owned by each such Unit Holder upon surrender of the
Certificate evidencing such Units, after paying, satisfying and discharging
all of the existing liabilities of the Trust including fees of the Trustee,
or, if necessary, setting up reserves in such amounts as the Trustee in its
discretion deems appropriate to provide for payment of contingent liabilities.
Any such reserve shall be established in accordance with the procedures
specified in Section 6.07 hereof. From and after the date of distribution set
forth in such notice to Unit Holders, any amounts held by the Trustee pending
distribution shall be held uninvested in a non-interest bearing account.
Upon making final distribution to the Unit Holders, the Trustee shall be
under no further liability except as provided in Section 7.01 hereof. For the
purposes of liquidating and winding up the affairs of the Trust at its
termination, the Trustee shall continue to act as Trustee and may exercise
each power until its duties have been fully performed and the Trust Estate has
been finally distributed.
ARTICLE X
Irrevocability and Amendability
Section 10.01 - Irrevocability. This Agreement and Trust are intended to
be and are irrevocable. No Person shall have the right or power to terminate,
revoke, alter, amend or change this Agreement or any provisions hereof except
as expressly provided in ARTICLE IX hereof or in this ARTICLE X.
Section 10.02 - Limited Amendability. Any provision of this Agreement
(other than this Section 10.02) may be amended by the vote at a meeting duly
called and held in accordance with the provisions of ARTICLE V hereof of the
Record Date Unit Holders holding Certificates representing a majority of the
Units outstanding on the Voting Record Date, but no such amendment shall be
effective unless and until consented to in writing by the Trustee (provided,
however, that the Trustee will so consent unless such amendment affects The
Bank of New York's own rights, duties or immunities under this Agreement or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, agree to such amendment), and in no event may an amendment be
made which would:
(a) alter the rights of the Unit Holders as against each other;
(b) reduce or delay the distributions to the Unit Holders provided
for in Sections 2.04, 4.02, 6.02 and 9.02 hereof;
(c) permit the Trustee to distribute the Royalty Interest in kind
either during the continuation of the Trust or during the period of
liquidation and winding up under Section 9.02 hereof;
(d) provide the Trustee with the power to engage in business or
investment activities (this prohibition is not intended to limit the
authority of the Trustee specifically provided in this Agreement);
(e) adversely affect the characterization of the Trust as a
business trust under the Delaware Trust Act or as a grantor trust for
federal income tax purposes or cause the income from the Trust to be
treated as unrelated business taxable income for federal income tax
purposes;
(f) alter the voting requirements set forth in Sections 6.02,
8.01, 9.01 and 10.02 hereof;
(g) alter the number of Units in the Trust; or
(h) alter the nature of or the amount or time of receipt of
payments under the Royalty Interest;
unless such amendment is approved (1) by the vote at a meeting duly called and
held in accordance with the provisions of ARTICLE V hereof of the Record Date
Unit Holders holding Certificates representing at least 80 percent of the
Units outstanding on the Voting Record Date in the case of subsections (b)
through (h) inclusive above and 100 percent of such Units in the case of
subsection (a) above, and (2) by the Trustee (provided, however, that the
Trustee will so consent unless such amendment affects The Bank of New York's
own rights, duties or immunities under this Agreement or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, agree
to such amendment).
Any amendment of Sections 4.05 or Section 7.02(b) shall, in addition to
the above requirements, also require the consent of the Company.
Section 10.03 - Corrective Amendments. Notwithstanding Section 10.02
hereof, SOC, the Company and the Trustee (without the consent of the Unit
Holders) may from time to time and at any time enter into an agreement
amending the terms of this Agreement or any other agreement relating to the
establishment or administration of the Trust to cure any ambiguity or to
correct or supplement any provision contained herein or therein which may be
defective or inconsistent with any other provision contained herein or
therein, to make any other provision with respect to matters arising hereunder
or thereunder that do not adversely affect the Unit Holders or which may be
required by law in connection with the registration of the Units for resale.
Section 10.04 - Tax Rulings and Opinions. No amendment to this Agreement
permitted by Sections 10.02 or 10.03 hereof shall be effective until the
Trustee shall have received a ruling from the Internal Revenue Service or an
unqualified written opinion of counsel to the Trust to the effect that such
amendment will not adversely affect the classification of the Trust as a
"grantor trust" for federal income tax purposes or cause the income from the
Trust to be treated as unrelated business taxable income for federal income
tax purposes.
ARTICLE XI
Failure to Pay Amounts Due Trustee
If, for any reason the royalty payable with respect to the Royalty
Interest or any amount payable by the Company hereunder is not paid to the
Trustee as provided in the Conveyance or hereunder, the Trustee shall as soon
as practicable notify BP by facsimile transmission or telex. The Trustee
shall not exercise any remedies it may have against the Company for failure to
pay any amounts unless BP fails to cause to be paid such amounts pursuant to
its obligations under the Support Agreement within 30 days of notice to BP as
set forth in the preceding sentence. Notice to the Company or BP shall be
made to the notice addresses specified in Section 12.06 hereof.
ARTICLE XII
Miscellaneous
Section 12.01 - Inspection of Records. Each Unit Holder and his duly
authorized agents, attorneys and accountants shall have the right upon request
during reasonable business hours at his own cost and expense to examine and
inspect the books and records of the Trustee relating to the Trust, including
lists of Unit Holders, for any proper purpose, except information which the
Conveyance requires the Trustee to keep confidential.
The Trustee, or its authorized representative, shall have the right
during reasonable business hours at the cost and expense of the Trust to
inspect the Company's books and records relating to the properties burdened by
the Royalty Interest and to discuss with representatives of the Company the
affairs, finances and accounts of the Company relating to the properties
burdened by the Royalty Interest.
Section 12.02 - Filing of this Agreement. Except as otherwise required
by law, neither this Agreement nor any executed copy hereof need be filed in
any jurisdiction in which any of the properties comprising the Trust Estate is
located, but the same may be filed for record in any jurisdiction by the
Trustee. In order to avoid the necessity of filing this Agreement for record,
the Trustee agrees that for the purpose of vesting the record title in any
successor Trustee, the retiring Trustee will, upon appointment of any
successor Trustee, execute and deliver to such successor Trustee appropriate
assignments or conveyances.
Section 12.03 - Disability of Unit Holder. Except as otherwise provided
in Section 4.02 hereof, any payment or distribution to a Unit Holder may be
made by check of the Trustee drawn to the order of the Unit Holder, regardless
of whether or not the Unit Holder is a minor or under other legal disability,
without the Trustee having further responsibility with respect to such payment
or distribution. This Section 12.03 shall not be deemed to prevent the
Trustee from making any payment or distribution by any other method that is
appropriate under law.
Section 12.04 - Savings clause. If any provision of this Agreement
should be held illegal or invalid, such invalidity or illegality shall not
affect the remaining provisions of this Agreement, or any other property
interests, and each provision of this Agreement shall exist separately and
independently, and shall be applied to property interests separately and
independently, of every other provision, and this Agreement shall be construed
as if such illegal or invalid provision had never existed.
Section 12.05 - Notices. Any notice or demand which by any provision of
this Agreement is required or permitted to be given or served upon the Trustee
by any Unit Holder may be given or served by being deposited, postage prepaid
and by registered or certified mail, in a post office or letter box addressed
(until another address is designated by notice given by the Trustee to the
Unit Holders and the Company) to the Trustee at 21 West Street, 12th Floor,
New York, NY 10286, Attention: Corporate Trust, Trustee Administration. Any
notice or other communication by the Trustee to any Unit Holders shall be
deemed to have been sufficiently given, for all purposes, when deposited,
postage prepaid, in a post office or letter box addressed to said holder at
his last address as shown by the records of the Trustee.
Section 12.06 - Notice and Reports to the Company, SOC or BP. Whenever
any notice, communication or report is given by the Trustee to Unit Holders
pursuant to the provisions of this Agreement or is otherwise required to be
provided to Unit Holders pursuant to the provisions of this Agreement or is
required to be provided to the Company, SOC or BP, the Trustee shall provide,
by in-hand delivery or by certified or registered mail, such notice,
communication or report to the Company at the following address:
BP Exploration (Alaska) Inc.
c/o BP America Inc.
200 Public Square
Cleveland, OH 44114-2375
Attention: Treasurer
or to SOC at the following address:
The Standard Oil Company
c/o BP America Inc.
200 Public Square
Cleveland, OH 44114-2375
Attn: Treasurer
or to BP at the following address:
The British Petroleum Company p.l.c.
Brittanic House, Moor Lane
London EC24 9BU, England
Attention: Secretary
FAX: 011-44-879-2341
or at such other address as the Company, SOC or BP, as the case may be, may
from time to time advise the Trustee in writing.
Section 12.07 - Governing Law. The Trust hereby created is a Delaware
business trust, and the laws of Delaware shall control with respect to the
construction, administration and validity of the Trust. This Agreement shall
be governed by and construed in accordance with the law of the State of
Delaware without regard to conflicts of law rules.
Section 12.08 - Counterparts. This Agreement may be executed in a number
of counterparts, each of which shall constitute an original, but such
counterparts shall together constitute but one and the same instrument.
Section 12.09 - Headings. The headings of the Sections and Articles of
this Agreement are inserted for convenience only and shall not constitute a
part hereof.
Section 12.10. - Independent conduct. SOC, the Company, The Bank of New
York and the Co-Trustee on behalf of all future Unit Holders hereby reserve
and retain the right to engage in all businesses and activities of any kind
whatsoever (irrespective of whether the same may be in competition with the
Trust), and to acquire and own all assets however acquired and whenever
situated and to receive compensation or profit thereof, for their own
respective accounts and without in any manner being obligated to disclose or
offer such businesses, activities, assets, compensation or profit to each
other or to the Trust.
Section 12.11 - Determination by the Trustee. In the event that the
Trustee is required to take action or permitted not to take action under
Sections 6.02(a)(ii), 9.02(b) and 10.02 (except for any amendment to Sections
7.03, 7.04 or the last sentence of Section 7.05 hereof) which is conditioned
upon a determination by the Trustee that the action to.be taken or omitted
does not or will not adversely affect The Bank of New York's rights, duties or
immunities under this Agreement or otherwise, the Trustee shall not, in making
such determination, take into consideration the loss of Trustee's fees or the
loss of other financial benefits (other than the right to reimbursement of
expenses or indemnities against liabilities) which may result from any
termination of the Trust or other event which would cause The Bank of New York
to cease to serve as Trustee hereunder as a result of such action. The loss
of such fees or such other financial benefits shall not be deemed to
constitute an adverse impact on The Bank of New York's own rights, duties or
immunities under this Agreement or otherwise.
IN WITNESS WHEREOF, SOC has caused this Agreement to be executed by its
duly authorized Chairman and Chief Executive officer and its seal to be
hereunto affixed and attested by its duly authorized Secretary and the Company
has caused this Agreement to be executed by its duly authorized Treasurer and
its seal to by hereunto affixed and attested by its duly authorized Secretary
and the Trustee has caused this Agreement to be executed by its duly
authorized Assistant Vice President and its seal to be hereunto affixed and
attested by its duly authorized Assistant Vice President and the Co-Trustee
has executed this Agreement as of the 28th day of February, 1989.
ATTEST: THE STANDARD OIL COMPANY
/s/ J. M. Casarik By: /s/ James H. Ross
- ---------------------- ----------------------
Secretary
ATTEST: BP EXPLORATION (ALASKA) INC.
/s/ J. M. Casarik By: /s/ E. Whitehead
- ---------------------- ----------------------
Secretary
ATTEST: THE BANK OF NEW YORK, Trustee
/s/ David A. Sampson By: /s/ W. N. Gitlin
- ---------------------- ----------------------
/s/ Eric A. Mazie /s/ F. James Hutchinson
- ---------------------- ----------------------
Witness F. James Hutchinson, Co-Trustee
STATE OF OHIO )
) SS
COUNTY OF CUYAHOGA )
BEFORE ME, the undersigned authority, a Notary Public in and for
said County and State, on this day personally appeared J. H. Ross, known to me
to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged before me that the same was the act of The
Standard Oil Company, an Ohio corporation, and that he executed the same as
the act of such corporation for the purposes and consideration therein
expressed and in the capacity therin stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 28th day of
February, 1989.
/s/ JoAnn Motuza
------------------------
Notary Public
My commission expires:
JoANN MOTUZA
Notary Public, State of Ohio
Recorded in Cuyahoga County
My Comm. Expires 9-14-92
STATE OF OHIO )
) SS
COUNTY OF CUYAHOGA )
BEFORE ME, the undersigned authority, a Notary Public in and for
said County and State, on this day personally appeared
E. Whitehead, known to me to be the person and officer whose name is
subscribed to the foregoing instrument and acknowledged before me that the
same was the act of the said BP Exploration (Alaska) Inc., a Delaware
corporation, and that he executed the same as the act of such corporation for
the purposes and consideration therein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 28th day of
February, 1989.
/s/ JoAnn Motuza
------------------------
Notary Public
My commission expires:
JoANN MOTUZA
Notary Public, State of Ohio
Recorded in Cuyahoga County
My Comm. Expires 9-14-92
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
Before me, a notary public in and for said County, personally
appeared Walter N. Gitlin, known to me to be the person who, as Assistant Vice
President of The Bank of New York, the corporation which executed the
foregoing instrument, signed the same, and acknowledged to me that he did so
sign said instrument in the name and upon behalf of said corporation as such
officer and that he executed the same as the act of such corporation for the
purposes and consideration therein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 23rd day of
February, 1989.
/s/ Virginia Barazotti
-------------------------
Notary Public, in and for
New York
My Commission Expires:
VIRGINIA BARAZOTTI
Notary Public, State of New York
No. 41-4734647
Qualified in Queens County
Certificate filed in New York County
Commission Expires Nov. 30, 1989
STATE OF DELAWARE ) )SS
COUNTY OF NEW CASTLE)
BEFORE ME, the undersigned authority, a Notary Public in and for
said County and State, on this day personally appeared James Hutchinson, known
to me to be the person whose name is subscribed to the foregoing instrument
and acknowledged before me that he is a resident of the State of Delaware and
that he executed the same as his free and voluntary act for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 17th day February,
1989.
/s/ Lisa M. Harrison
[SEAL] Notary Public
My commission expires:
MY COMMISSION EXPIRES
AUGUST 8, 1990