EXHIBIT 10.1
OMNIBUS AGREEMENT
AMONG
ENERVEST MANAGEMENT PARTNERS, LTD
EV MANAGEMENT LLC
EV ENERGY GP, LP
EV ENERGY PARTNERS, LP
AND
EV PROPERTIES, L.P.
SEPTEMBER 29, 2006
TABLE OF CONTENTS
Page
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OMNIBUS AGREEMENT.............................................................................. 1
RECITALS:...................................................................................... 1
ARTICLE I. Definitions......................................................................... 1
Section 1.1 Definitions................................................................ 1
ARTICLE II. Indemnification.................................................................... 5
Section 2.1 Environmental Indemnification.............................................. 5
Section 2.2 Tax Indemnity.............................................................. 5
Section 2.3 Limitations Regarding Indemnification...................................... 6
Section 2.4 Indemnification Procedures................................................. 6
ARTICLE III. Reimbursement Obligations......................................................... 7
Section 3.1 Reimbursement for Operating and General and Administrative Expenses ....... 7
Section 3.2 Reimbursement for Insurance ............................................... 7
Section 3.3 Limitations on Reimbursement .............................................. 8
ARTICLE IV. Miscellaneous...................................................................... 8
Section 4.1 Choice of Law; Submission to Jurisdiction.................................. 8
Section 4.2 Notice..................................................................... 8
Section 4.3 Entire Agreement........................................................... 9
Section 4.4 Termination................................................................ 9
Section 4.5 Effect of Waiver or Consent................................................ 9
Section 4.6 Amendment or Modification.................................................. 9
Section 4.7 Assignment; Third Party Beneficiaries...................................... 9
Section 4.8 Counterparts............................................................... 9
Section 4.9 Severability............................................................... 10
Section 4.10 Gender, Parts, Articles and Sections....................................... 10
Section 4.11 Further Assurances......................................................... 10
Section 4.12 Withholding or Granting of Consent......................................... 10
Section 4.13 Laws and Regulations....................................................... 10
Section 4.14 Negation of Rights of Limited Partners, Assignees and Third Parties........ 10
Section 4.15 No Recourse Against Officers or Directors.................................. 10
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OMNIBUS AGREEMENT
THIS OMNIBUS AGREEMENT ("AGREEMENT") is entered into on, and effective as
of, the Closing Date (as defined herein), and is by and among EnerVest
Management Partners, Ltd., a Texas limited partnership ("EnerVest"), EV
Management LLC, a Delaware limited liability company ("EV MANAGEMENT") EV Energy
GP, LP, a Delaware limited partnership (the "GENERAL PARTNER"), EV Energy
Partners, LP, a Delaware limited partnership (the "PARTNERSHIP"), and EV
Properties, L.P., a Delaware limited partnership ("OLP"). The above-named
entities are sometimes referred to in this Agreement each as a "PARTY " and
collectively as the "PARTIES."
RECITALS:
The Parties desire by their execution of this Agreement to evidence their
understanding, as more fully set forth in Article II and Article III of this
Agreement, with respect to certain indemnification and reimbursement obligations
of the Parties.
In consideration of the premises and the covenants, conditions, and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 DEFINITIONS.
(a) Capitalized terms used herein but not defined shall have the meanings
given them in the MLP Agreement.
(b) As used in this Agreement, the following terms shall have the
respective meanings set forth below:
"AGREEMENT" means this Omnibus Agreement, as it may be amended, modified
or supplemented from time to time in accordance with the terms hereof.
"CAUSE" has the meaning ascribed thereto in the MLP Agreement.
"CAP" has the meaning given such term in Section 2.3(a).
"CHANGE OF CONTROL" means, with respect to any Person (the "APPLICABLE
PERSON"), any of the following events: (i) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all or
substantially all of the Applicable Person's assets to any other Person, unless
immediately following such sale, lease, exchange or other transfer such assets
are owned, directly or indirectly, by the Applicable Person; (ii) the
dissolution or liquidation of the Applicable Person; (iii) the consolidation or
merger of the Applicable Person with or into another Person pursuant to a
transaction in which the outstanding Voting Securities of the Applicable Person
are changed into or exchanged for cash, securities or other property, other than
any such transaction where (a) the outstanding Voting Securities of the
Applicable
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Person are changed into or exchanged for Voting Securities of the surviving
Person or its parent and (b) the holders of the Voting Securities of the
Applicable Person immediately prior to such transaction own, directly or
indirectly, not less than a majority of the outstanding Voting Securities of the
surviving Person or its parent immediately after such transaction; and (iv) a
"person" or "group" (within the meaning of Sections 13(d) or 14(d)(2) of the
Exchange Act) being or becoming the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act) of more than 50% of all of the then
outstanding Voting Securities of the Applicable Person, except in a merger or
consolidation which would not constitute a Change of Control under clause (iii)
above.
"CLOSING DATE" means the date of the closing of the initial public
offering of common units representing limited partner interests in the MLP.
"COMMON UNIT" has the meaning given such term in the MLP Agreement.
"CONFLICTS COMMITTEE" has the meaning given such term in the MLP
Agreement.
"COVERED ENVIRONMENTAL LOSSES" means all environmental losses, damages,
liabilities, claims, demands, causes of action, judgments, settlements, fines,
penalties, costs and expenses (including, without limitation, costs and expenses
of any Environmental Activity, court costs and reasonable attorney's and
experts' fees) of any and every kind or character, by reason of or arising out
of:
(i) any violation or correction of violation, including without
limitation performance of any Environmental Activity, of Environmental
Laws; or
(ii) any event, omission or condition associated with ownership or
operation of the MLP Assets or (including, without limitation, the
exposure to or presence of Hazardous Substances on, under, about or
migrating to or from the MLP Assets or the exposure to or Release of
Hazardous Substances arising out of operation of the MLP Assets or at
non-MLP Asset locations) including, without limitation, (A) the cost and
expense of any Environmental Activities, (B) the cost or expense of the
preparation and implementation of any closure, remedial or corrective
action or other plans required or necessary under Environmental Laws and
(C) the cost and expense for any environmental or toxic tort pre-trial,
trial or appellate legal or litigation support work; provided, in the case
of clauses (A) and (B), such cost and expense shall not include the costs
of and associated with project management and soil and ground water
monitoring; but only to the extent that such violation complained of under
clause (i), or such events or conditions included in clause (ii), occurred
before the Closing Date.
"ENVIRONMENTAL ACTIVITIES" shall mean any investigation, study,
assessment, evaluation, sampling, testing, monitoring, containment, removal,
disposal, closure, corrective action, remediation (regardless of whether active
or passive), natural attenuation, restoration, bioremediation, response, repair,
corrective measure, cleanup or abatement that is required or necessary under any
applicable Environmental Law, including, but not limited to, institutional or
engineering controls or participation in a governmental voluntary cleanup
program to conduct voluntary investigatory and remedial actions for the
clean-up, removal or remediation of
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Hazardous Substances that exceed actionable levels established pursuant to
Environmental Laws, or participation in a supplemental environmental project in
partial or whole mitigation of a fine or penalty.
"ENVIRONMENTAL LAWS" means all federal, state, and local laws, statutes,
rules, regulations, orders, judgments, ordinances, codes, injunctions, decrees,
Environmental Permits and other legally enforceable requirements and rules of
common law relating to (a) pollution or protection of the environment or natural
resources including, without limitation, the federal Comprehensive Environmental
Response, Compensation and Liability Act, the Superfund Amendments and
Reauthorization Act, the Resource Conservation and Recovery Act, the Clean Air
Act, the Clean Water Act, the Safe Drinking Water Act, the Toxic Substances
Control Act, the Oil Pollution Act of 1990, the Hazardous Materials
Transportation Act, the Marine Mammal Protection Act, the Endangered Species
Act, the National Environmental Policy Act and other environmental conservation
and protection laws, each as amended through the Closing Date, (b) any Release
or threatened Release of, or any exposure of any Person or property to, any
Hazardous Substances and (c) the generation, manufacture, processing,
distribution, use, treatment, storage, transport or handling of any Hazardous
Substances.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification number,
license, registration, consent, exemption, variance or other authorization
required under or issued pursuant to any applicable Environmental Law.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"G&A EXPENSES LIMIT" has the meaning given such term in Section 3.3.
"GENERAL PARTNER" has the meaning given such term in the introduction to
this Agreement.
"HAZARDOUS SUBSTANCE" means (a) any substance that is designated, defined
or classified as a hazardous waste, solid waste, hazardous material, pollutant,
contaminant or toxic or hazardous substance, or terms of similar meaning, or
that is otherwise regulated under any Environmental Law, including, without
limitation, any hazardous substance as defined under the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, (b) oil as
defined in the Oil Pollution Act of 1990, as amended, including oil, gasoline,
natural gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel and other
refined petroleum hydrocarbons and petroleum products and (c) radioactive
materials, asbestos containing materials or polychlorinated biphenyls.
"INDEMNIFIED PARTY" means either the Partnership Group or EnerVest, as the
case may be, in their capacity as the parties entitled to indemnification in
accordance with Article II.
"INDEMNIFYING PARTY" means either the Partnership Group or EnerVest, as
the case may be, in their capacity as the parties from whom indemnification may
be required in accordance with Article II.
"LOSSES" means any losses, damages, liabilities, claims, demands, causes
of action, judgments, settlements, fines, penalties, costs and expenses
(including, without limitation, court
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costs and reasonable attorney's and experts' fees) of any and every kind or
character.
"MLP" has the meaning given such term in the introduction to this
Agreement.
"MLP AGREEMENT" means the Amended and Restated Agreement of Limited
Partnership of the MLP, dated as of the Closing Date, as such agreement is in
effect on the Closing Date, to which reference is hereby made for all purposes
of this Agreement. An amendment or modification to the MLP Agreement subsequent
to the Closing Date shall be given effect for the purposes of this Agreement
only if it has received the approval of the Conflicts Committee that would be
required, if any, pursuant to Section 4.6 hereof if such amendment or
modification were an amendment or modification of this Agreement.
"MLP ASSETS" means the oil and gas properties conveyed, contributed or
otherwise transferred or intended to be conveyed, contributed or otherwise
transferred to any member of the Partnership Group, or owned by any member of
the Partnership Group, prior to or as of the Closing Date.
"OLP" has the meaning given such term in the introduction to this
Agreement.
"ORGANIZATIONAL DOCUMENTS" means certificates of incorporation, by-laws,
certificates of formation, limited liability company operating agreements,
certificates of limited partnership or limited partnership agreements or other
formation or governing documents of a particular entity.
"PARTNERSHIP ENTITIES" means EV Management, the General Partner and each
member of the Partnership Group.
"PARTNERSHIP GROUP" means the MLP, the OLP and any Subsidiary of the MLP
or the OLP.
"PARTNERSHIP INDEMNITEE" means any Person who is an Indemnitee (as defined
in the Partnership Agreement); provided, that the term "Partnership Indemnitee"
shall exclude EnerVest and any Affiliate of EnerVest (as defined in the
Partnership Agreement) which is not a member of the Partnership Group.
"PARTY" or "PARTIES" have the meaning given such terms in the introduction
to this Agreement.
"PERSON" means an individual, corporation, partnership, joint venture,
trust, limited liability company, unincorporated organization or any other
entity.
"RELEASE" means any depositing, spilling, leaking, pumping, pouring,
placing, emitting, discarding, abandoning, emptying, discharging, migrating,
injecting, escaping, leaching, dumping or disposing into the environment.
"SUBSIDIARY" has the meaning given such term in the MLP Agreement.
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"VOTING SECURITIES" means securities of any class of Person entitling the
holders thereof to vote in the election of, or to appoint, members of the board
of directors or other similar governing body of the Person.
ARTICLE II.
INDEMNIFICATION
SECTION 2.1 ENVIRONMENTAL INDEMNIFICATION.
(a) Subject to the provisions of Section 2.3 and Section 2.4, EnerVest
shall indemnify, defend and hold harmless the Partnership Group and the
Partnership Indemnitees from and against any Covered Environmental Losses
suffered or incurred by the Partnership Group or any Partnership Indemnitee
relating to the MLP Assets for a period of one year from the Closing Date.
(b) The Partnership Group shall indemnify, defend and hold harmless
EnerVest, and its Subsidiaries and Affiliates, other than any Subsidiary
constituting part of the Partnership Group, from and against any Covered
Environmental Losses suffered or incurred by EnerVest, and its Subsidiaries and
Affiliates, other than any Subsidiary constituting part of the Partnership
Group, relating to the MLP Assets occurring after the Closing Date, except to
the extent that the Partnership Group is indemnified with respect to any of such
Covered Environmental Losses under Section 2.1(a).
(c) In addition to, and not in limitation of, the indemnification provided
under this Article II, the Partnership Group shall indemnify, defend, and hold
harmless EnerVest and its Subsidiaries and Affiliates, other than any Subsidiary
constituting part of the Partnership Group, from and against any Losses suffered
or incurred by EnerVest and its Subsidiaries and Affiliates, other than any
Subsidiary constituting part of the Partnership Group, by reason of or arising
out of events and conditions associated with the operation of the MLP Assets
that occurs on or after the Closing Date.
SECTION 2.2 ADDITIONAL INDEMNITY. Subject to the provisions of Section
2.4, EnerVest shall indemnify, defend and hold harmless the Partnership Group
and the Partnership Indemnitees from and against any Losses suffered or incurred
by the Partnership Group or any Partnership Indemnitee by reason of or arising
out of:
(a) all federal, state and local income tax liabilities attributable to
the ownership or operation of the MLP Assets prior to the Closing Date,
including any such income tax liabilities of EnerVest and its Subsidiaries that
may result from the consummation of the formation transactions for the
Partnership Group occurring on or prior to the Closing Date, but excluding any
federal, state and local income taxes reserved on the books of the Partnership
Group as of the Closing Date;
(b) for a period of one year from the Closing Date, all liabilities, other
than Covered Environmental Liabilities, relating to the operation of the MLP
Assets prior to the Closing Date that were not disclosed in the pro forma
balance sheet of the Partnership dated June 30, 2006, or incurred in the
ordinary course of business thereafter;
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(c) all liabilities attributable to any assets or liabilities retained by
EnerVest following the Closing Date.
SECTION 2.3 LIMITATIONS REGARDING INDEMNIFICATION.
(a) The aggregate liability of EnerVest under Section 2.1 shall not
exceed, in the aggregate, $1,500,000 (the "CAP"). No claims may be made against
EnerVest for indemnification pursuant to Section 2.1(a) unless the aggregate
dollar amount of the Losses suffered or incurred by the Partnership Group or
Partnership Indemnitees exceed $200,000, after such time EnerVest shall be
liable for the full amount of such claims, subject to the limitations of Section
2.3(a).
(b) Notwithstanding anything herein to the contrary, in no event shall
EnerVest have any indemnification obligations under this Agreement for claims
made as a result of additions to or modifications of Environmental Laws
promulgated after the Closing Date.
SECTION 2.4 INDEMNIFICATION PROCEDURES.
(a) The Indemnified Party agrees that within a reasonable period of time
after it becomes aware of facts giving rise to a claim for indemnification
pursuant to this Article II, they will provide notice thereof in writing to the
Indemnifying Party specifying the nature of and specific basis for such claim;
provided, however, that the Indemnified Party shall not submit claims more
frequently than once a calendar quarter (or twice in the case of the last
calendar quarter prior to the expiration of the applicable indemnity coverage
under this Agreement).
(b) The Indemnifying Party shall have the right to control all aspects of
the defense of (and any counterclaims with respect to) any claims brought
against the Indemnified Party that are covered by the indemnification set forth
in this Article II, including, without limitation, the selection of counsel,
determination of whether to appeal any decision of any court and the settling of
any such matter or any issues relating thereto; provided, however, that no such
settlement shall be entered into without the consent (which consent shall not be
unreasonably withheld, conditioned or delayed) of the Indemnified Party unless
it includes a full release of the Indemnified Party from such matter or issues,
as the case may be.
(c) The Indemnified Party agrees to cooperate fully with the Indemnifying
Party with respect to all aspects of the defense of any claims covered by the
indemnification set forth in Article II, including, without limitation, the
prompt furnishing to the Indemnifying Party of any correspondence or other
notice relating thereto that the Indemnified Party may receive, permitting the
names of the Indemnified Party to be utilized in connection with such defense,
the making available to the Indemnifying Party of any files, records or other
information of the Indemnified Party that the Indemnifying Party considers
relevant to such defense and the making available to the Indemnifying Party of
any employees of the Indemnified Party; provided, however, that in connection
therewith the Indemnifying Party agrees to use reasonable efforts to minimize
the impact thereof on the operations of the Indemnified Party and further agrees
to maintain the confidentiality of all files, records and other information
furnished by the Indemnified Party pursuant to this Section 2.4. In no event
shall the obligation of the Indemnified Party to cooperate with the Indemnifying
Party as set forth in the immediately
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preceding sentence be construed as imposing upon the Indemnified Party an
obligation to hire and pay for counsel in connection with the defense of any
claims covered by the indemnification set forth in this Article II; provided,
however, that the Indemnified Party may, at its own option, cost and expense,
hire and pay for counsel in connection with any such defense. The Indemnifying
Party agrees to keep any such counsel hired by the Indemnified Party reasonably
informed as to the status of any such defense, but the Indemnifying Party shall
have the right to retain sole control over such defense.
(d) In determining the amount of any loss, cost, damage or expense for
which the Indemnified Party is entitled to indemnification under this Agreement,
the gross amount of the indemnification will be reduced by (i) any insurance
proceeds realized by the Indemnified Party, and such correlative insurance
benefit shall be net of any incremental insurance premium that becomes due and
payable by the Indemnified Party as a result of such claim and (ii) all amounts
recovered by the Indemnified Party under contractual indemnities from third
Persons.
ARTICLE III.
REIMBURSEMENT OBLIGATIONS
SECTION 3.1 REIMBURSEMENT FOR OPERATING AND GENERAL AND ADMINISTRATIVE
EXPENSES .
(a) EnerVest hereby agrees to continue to provide the Partnership Group
with certain general and administrative services, such as legal, accounting,
treasury, insurance administration and claims processing, risk management,
health, safety and environmental, information technology, human resources,
credit, payroll, internal audit, taxes, engineering and senior management
oversight. These general and administrative services shall be substantially
identical in nature and quality to the services of such type previously provided
by EnerVest in connection with their management and operation of the MLP Assets
during the one-year period prior to the Closing Date.
(b) Subject to the provisions of Section 3.3, the Partnership Group hereby
agrees to reimburse EnerVest for all third-party expenses and expenditures it
incurs or payments it makes on behalf of the Partnership Group for these general
and administrative services.
(c) The General Partner shall be entitled to allocate any such
out-of-pocket expenses and expenditures made in accordance with the foregoing
provision between the Partnership Group, on the one hand, and EnerVest on the
other hand on any reasonable basis.
SECTION 3.2 REIMBURSEMENT FOR INSURANCE . The Partnership Group hereby
agrees to reimburse EnerVest and its Subsidiaries other than any Subsidiary
constituting part of the Partnership Group for all expenses it incurs or
payments it makes on behalf of the Partnership Group and the Partnership
Indemnitees for (i) insurance coverage with respect to the MLP Assets, (ii)
insurance coverage with respect to claims related to fiduciary obligations of
officers, directors and control persons of the Partnership Group and (iii)
insurance coverage with respect to claims under federal and state securities
laws related to any of the Partnership Group and any of the officers, directors
and control persons thereof.
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SECTION 3.3 LIMITATIONS ON REIMBURSEMENT .
(a) The Partnership shall pay EnerVest a fee of $90,000 per month for the
services described herein, subject to adjustment as provided in this section
("MONTHLY FEE"). After December 31, 2006, the Monthly Fee shall be adjusted
annually over the next two years by the percentage increase or decrease in the
Annual Overhead Adjustment Factor as published by the Council of Petroleum
Accountants Societies. In the event that the Partnership Group makes any
acquisitions of assets or businesses or the business of the Partnership Group
otherwise expands before December 31, 2008, then the Monthly Fee shall be
appropriately increased or decreased in order to account for adjustments in the
nature and extent of the general and administrative services by EnerVest to the
Partnership Group, with any such increase or decrease in the Monthly Fee subject
to the approval of the Conflicts Committee. After December 31, 2008, EnerVest
and the General Partner will determine the amount of general and administrative
expenses that will be properly allocated to the Partnership in accordance with
the terms of the Partnership Agreement which determination will be subject to
approval by the Conflicts Committee.
(b) The obligation of the Partnership Group to reimburse EnerVest and its
Subsidiaries pursuant to Section 3.2 shall not be subject to any monetary
limitation.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1 CHOICE OF LAW; SUBMISSION TO JURISDICTION. This Agreement
shall be subject to and governed by the laws of the State of Texas, excluding
any conflicts-of-law rule or principle that might refer the construction or
interpretation of this Agreement to the laws of another state. Each Party hereby
submits to the jurisdiction of the state and federal courts in the State of
Texas and to venue in Texas.
SECTION 4.2 NOTICE. All notices, requests or consents provided for or
permitted to be given pursuant to this Agreement must be in writing and must be
given by depositing same in the United States mail, addressed to the Person to
be notified, postpaid, and registered or certified with return receipt requested
or by delivering such notice in person or by telecopier or telegram to such
Party. Notice given by personal delivery or mail shall be effective upon actual
receipt. Notice given by telegram or telecopier shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All notices to be sent to a Party
pursuant to this Agreement shall be sent to or made at the address set forth
below or at such other address as such Party may stipulate to the other Parties
in the manner provided in this Section 4.2.
For notices to EnerVest:
1001 Fannin Street, Suite 800
Houston, Texas 77002
Attention: John B. Walker
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For notices to Management, the General Partner, the MLP
or the OLP:
1001 Fannin Street, Suite 900
Houston, Texas 77002
Attention: Michael E. Mercer
SECTION 4.3 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the Parties relating to the matters contained herein, superseding
all prior contracts or agreements, whether oral or written, relating to the
matters contained herein.
SECTION 4.4 TERMINATION. Notwithstanding any other provision of this
Agreement, if the General Partner is removed as general partner of the
Partnership under circumstances where Cause does not exist and Units held by the
General Partner and its Affiliates are not voted in favor of such removal, this
Agreement, other than the provisions set forth in Article II hereof, may
immediately thereupon be terminated by EnerVest. The provisions of Article III
of this Agreement shall also terminate upon a Change of Control of EV
Management, the General Partner or the MLP.
SECTION 4.5 EFFECT OF WAIVER OR CONSENT. No waiver or consent, express or
implied, by any Party to or of any breach or default by any Person in the
performance by such Person of its obligations hereunder shall be deemed or
construed to be a consent or waiver to or of any other breach or default in the
performance by such Person of the same or any other obligations of such Person
hereunder. Failure on the part of a Party to complain of any act of any Person
or to declare any Person in default, irrespective of how long such failure
continues, shall not constitute a waiver by such Party of its rights hereunder
until the applicable statute of limitations period has run.
SECTION 4.6 AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified from time to time only by the written agreement of all the Parties;
provided, however, that the MLP and the OLP may not, without the prior approval
of the Conflicts Committee, agree to any amendment or modification of this
Agreement that, in the reasonable discretion of the General Partner, will
adversely affect the holders of Common Units. Each such instrument shall be
reduced to writing and shall be designated on its face an "Amendment" or an
"Addendum" to this Agreement.
SECTION 4.7 ASSIGNMENT; THIRD PARTY BENEFICIARIES. No Party shall have the
right to assign its rights or obligations under this Agreement without the
consent of the other Parties. Each of the Parties hereto specifically intends
that EnerVest and each entity comprising the Partnership Entities, as
applicable, whether or not a Party to this Agreement, shall be entitled to
assert rights and remedies hereunder as third-party beneficiaries hereto with
respect to those provisions of this Agreement affording a right, benefit or
privilege to any such entity.
SECTION 4.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts with the same effect as if all signatory Parties had signed the
same document. All counterparts shall be construed together and shall constitute
one and the same instrument.
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SECTION 4.9 SEVERABILITY. If any provision of this Agreement or the
application thereof to any Person or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other Persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
SECTION 4.10 GENDER, PARTS, ARTICLES AND SECTIONS. Whenever the context
requires, the gender of all words used in this Agreement shall include the
masculine, feminine and neuter, and the number of all words shall include the
singular and plural. All references to Article numbers and Section numbers refer
to Articles and Sections of this Agreement.
SECTION 4.11 FURTHER ASSURANCES. In connection with this Agreement and all
transactions contemplated by this Agreement, each Party agrees to execute and
deliver such additional documents and instruments and to perform such additional
acts as may be necessary or appropriate to effectuate, carry out and perform all
of the terms, provisions and conditions of this Agreement and all such
transactions.
SECTION 4.12 WITHHOLDING OR GRANTING OF CONSENT. Each Party may, with
respect to any consent or approval that it is entitled to grant pursuant to this
Agreement, grant or withhold such consent or approval in its sole and
uncontrolled discretion, with or without cause, and subject to such conditions
as it shall deem appropriate.
SECTION 4.13 LAWS AND REGULATIONS. Notwithstanding any provision of this
Agreement to the contrary, no Party shall be required to take any act, or fail
to take any act, under this Agreement if the effect thereof would be to cause
such Party to be in violation of any applicable law, statute, rule or
regulation.
SECTION 4.14 NEGATION OF RIGHTS OF LIMITED PARTNERS, ASSIGNEES AND THIRD
PARTIES. The provisions of this Agreement are enforceable solely by the Parties,
and no limited partner, member, or assignee of EnerVest, the MLP, OLP or other
Person shall have the right, separate and apart from EnerVest, the MLP or OLP,
to enforce any provision of this Agreement or to compel any Party to comply with
the terms of this Agreement.
SECTION 4.15 NO RECOURSE AGAINST OFFICERS OR DIRECTORS. For the avoidance
of doubt, the provisions of this Agreement shall not give rise to any right of
recourse against any officer or director of EnerVest or any Partnership Entity.
[Signature Page on Following Page]
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IN WITNESS WHEREOF, the Parties have executed this Agreement on, and
effective as of, the Closing Date.
ENERVEST MANAGEMENT PARTNERS, LTD.
By: EnerVest Management GP, L.C.,
its general partner
By: /s/ Mark A. Houser
-----------------------------------------
Mark A. Houser
Executive Vice President and
Chief Operating Officer
EV ENERGY PARTNERS, L.P.
By: EV Energy GP, L.P.,
A Delaware limited partnership,
its General Partner
By: EV Management, L.L.C.,
A Delaware limited liability company,
its General Partner
By: /s/ Mark A. Houser
-----------------------------------------
Mark A. Houser
President and Chief Operating Officer
EV ENERGY GP, L.P.
By: EV Management, L.L.C.,
a Delaware limited liability company
its General Partner
By: /s/ Mark A. Houser
-----------------------------------------
Mark A. Houser
President and Chief Operating Officer
EV MANAGEMENT, L.L.C.
By: /s/ Mark A. Houser
-----------------------------------------
Mark A. Houser
President and Chief Operating Officer
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EV PROPERTIES, L.P.
By: EV Properties GP, LLC,
its general partner
By: EV Energy Partners, L.P.,
its sole member
By: EV Energy GP, L.P.,
its general partner
By: EV Management, LLC
its general partner
By: /s/ Mark A. Houser
-------------------------------------
Mark A. Houser
President and Chief Operating Officer
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