Omnibus Settlement Agreement and Release, dated as of January 9, 2014, by and among Magnum Hunter Resources Corporation, a Delaware corporation, Magnum Hunter Production, Inc., a Kentucky corporation, formerly known as NGAS Production Co., which in turn was formerly known as Daugherty Petroleum, Inc., Eureka Hunter Pipeline, LLC, a Delaware limited liability company, Seminole Energy Services, L.L.C., an Oklahoma limited liability company, Seminole Gas Company, L.L.C., an Oklahoma limited liability company, Seminole Murphy Liquids Terminal, L.L.C., a Tennessee limited liability company, NGAS Gathering II, LLC, a Kentucky limited liability company, and NGAS Gathering, LLC, a Kentucky limited liability company

 

This Omnibus Settlement Agreement and Release (“Agreement”) is entered into as of the 9th day of January, 2014 (the “Execution Date”), by and among Magnum Hunter Resources Corporation, a Delaware corporation (“MHR”), Magnum Hunter Production, Inc., a Kentucky corporation, formerly known as NGAS Production Co., which in turn was formerly known as Daugherty Petroleum, Inc. (“MHP”), Eureka Hunter Pipeline, LLC, a Delaware limited liability company (“EHP”), Seminole Energy Services, L.L.C., an Oklahoma limited liability company (“SES”), Seminole Gas Company, L.L.C., an Oklahoma limited liability company (“SGC”), Seminole Murphy Liquids Terminal, L.L.C., a Tennessee limited liability company (“SMLT”), NGAS Gathering II, LLC, a Kentucky limited liability company (“NG-II”), and NGAS Gathering, LLC, a Kentucky limited liability company (“NG-I”).  Collectively, MHR, MHP and EHP may be referred to herein as the “Magnum Hunter Entities”.  Collectively, SES, SGC, SMLT, NG-I and NG-II may be referred to herein as the “Seminole Entities”. Each of the entities executing this Agreement may be referred to herein as a “Party”, and collectively they may be referred to herein as the “Parties”.

 

A.           WHEREAS, certain Parties are currently involved in four legal proceedings (the “Legal Proceedings”) pending in four different fora as more fully described below (the Parties to the Legal Proceedings being the “Litigant Parties”):

 

1.           Magnum Hunter Production, Inc. and Eureka Hunter Pipeline, LLC v. Seminole Energy Services, L.L.C., and Seminole Gas Company, L.L.C.; brought under the Federal Arbitration Act (the “Tulsa Arbitration”);

 

 

2.           Magnum Hunter Production, Inc., f/k/a NGAS Production Co. v. Seminole Murphy Liquids Terminal, L.L.C., Civil Action No. 12-CI-2838; in the Fayette Circuit Court, Division 9, Commonwealth of Kentucky (the “Kentucky Lawsuit”);

 

3.           Magnum Hunter Production, Inc. v. Seminole Energy Services, L.L.C., Cause No. 2012-44241; in the 190th Judicial District of Harris County, Texas (the “Houston Lawsuit”);

 

4.           Seminole Energy Services, L.L.C. and Seminole Gas Company, L.L.C. v. Magnum Hunter Resources Corporation and NGAS Resources, Inc., Case No. CJ-2013-01420; in the District Court of Tulsa County, State of Oklahoma (the “Tulsa Lawsuit”); and

 

B.           WHEREAS, the Litigant Parties have asserted positions and claims in the Legal Proceedings which are contested and subject to proof thereof; and

 

C.           WHEREAS, each of the Parties has agreed it is in its best interest of the Parties for the Litigant Parties to settle and compromise all claims alleged in the Legal Proceedings or arising from or relating to the matters, facts, allegations, or assertions at issue in the Legal Proceedings and have accordingly entered into this Agreement; and

 

D.           WHEREAS, in connection with this Agreement, the Parties desire to terminate certain existing agreements as set forth herein; and

 

E.           WHEREAS, in connection with this Agreement, the Parties desire to enter into additional agreements and amendments to existing agreements as set forth herein and attached hereto.

 

 

NOW, THEREFORE, subject to the terms and conditions of this Agreement, and in consideration of the mutual promises and covenants stated herein and the recitals set forth above, and in light of other good and valuable consideration to the Parties, the sufficiency and receipt of which is hereby acknowledged, the Parties agree as follows:

 

1.              Consideration.

 

1.1           Termination – Effective as of 11:59 p.m. (Central Standard Time) on December 31, 2013, the following agreements shall immediately terminate and be of no further force or effect:

 

(a)           the Gas Gathering Agreement currently between NG-II, SGC and SES dated effective July 15, 2009, as amended by the First Amendment thereto dated as of January 9, 2010, as amended by the Second Amendment thereto dated as of March 10, 2011, shall immediately terminate and be of no further force and effect; provided, however, that all payment obligations under such agreement that accrued before 11:59 p.m. (Central Standard Time) on December 31, 2013 shall continue to survive until fully performed;

 

(b)           the Joint Ownership Agreement (Olive Grove Natural Gas Gathering Trunk Line & Treatment Facility) currently between MHP and SGC dated as of August 12, 2008;

 

(c)           the Olive Grove Gas Gathering and Treatment Agreement currently between MHP, as “Producer,” SGC and MHP, as “Owners,” and SES, as “Manager,” dated July 1, 2008, as amended by that certain First Amendment to Olive Grove Gas Gathering and Treatment Agreement dated as of July 27, 2012,

 

 

 

(d)          the SES Operating and Maintenance Agreement (NGAS/Seminole Gathering System) currently between SGC, NG-II and SES dated July 15, 2009, as amended by the First Amendment thereto dated as of March 10, 2011; and

 

(e)          the DPI Operating and Maintenance Agreement (NGAS/Seminole Gathering System) currently between SES and MHP dated as of July 15, 2009, as amended by the First Amendment thereto dated as of March 10, 2011.

 

1.2           Definitive Agreements – Concurrently with the execution of this Agreement and in furtherance of the agreements contemplated hereunder, the following agreements have been executed and delivered (collectively, the “Definitive Agreements”):

 

(a)          SGC and MHP executed the Asset Purchase Agreement (Olive Grove) attached hereto as Exhibit A, which sets forth the terms and conditions upon which SGC will sell to MHP, and MHP will purchase from SGC, SGC’s interest in the Olive Grove natural gas treatment facility and gathering trunk line;

 

(b)           MHP, SGC and NG-II executed the Gas Gathering Agreement attached hereto as Exhibit B (the “Gas Gathering Agreement”), which sets forth the terms and conditions upon which SGC and NG-II will provide MHP gas gathering services on a natural gas gathering system in southeastern Kentucky, eastern Tennessee and western Virginia (the “Stone Mountain Gathering System”);

 

(c)           SGC, NG-II and MHP executed the MHP Operating and Maintenance Agreement (NNG/SGC Gathering System) attached hereto as

 

 

(d)           EHP, SES and SGC executed the First Amendment to Joint Ownership Agreement attached hereto as Exhibit D, regarding the ownership and operation of the cryogenic natural gas processing plant in the vicinity of Rogersville, Tennessee (the “Rogersville Plant”);

 

(e)           EHP, SGC, SES, and MHP executed the First Amendment to Gas Processing Agreement attached hereto as Exhibit E, regarding the provision of natural gas processing services at the Rogersville Plant;

 

(f)           MHP and SMLT executed the Second Amendment to Base Contract for Sale and Purchase of Natural Gas Liquids &/or Condensate and Transaction Confirmation attached hereto as Exhibit F, regarding the sale of natural gas liquids by MHP to SMLT;

 

(g)           SES and MHP executed the Second Amendment to Base Contract for Sale and Purchase of Natural Gas attached hereto as Exhibit G, which sets forth the terms and conditions on which SES will purchase natural gas from MHP;

 

(h)           MHP and SGC executed the Asset Purchase Agreement (SMLT Credit Distribution) attached hereto as  Exhibit H, which sets forth the terms and conditions upon which SGC will purchase from MHP, and MHP will sell to SGC, certain rights under the Base Contract for Sale and Purchase of Natural Gas

 

 

(i)             SES, SGC, NG-II, EHP, SMLT and MHP executed the Second Amendment to  Master Netting and Setoff Agreement attached hereto as Exhibit I, which nets amounts owed by one or more of such Parties to one or more of the other Parties under certain agreements; and

 

(j)           the Litigant Parties executed the documents attached hereto as Exhibits J1-4 (the “Legal Proceedings Dismissal Documentation”).

 

           1.3           Legal Proceedings Dismissal Documentation – Not more than five (5) business days after the Execution Date, each of the Litigant Parties shall cause to be filed with the arbitrator in the Tulsa Arbitration, and with the courts in the Kentucky Lawsuit, the Houston Lawsuit and the Tulsa Lawsuit, the Legal Proceedings Dismissal Documentation.

 

1.4           Drilling Commitment –

 

(a)           Upon execution of the Definitive Agreements, the Magnum Hunter Entities’ sole remaining drilling commitment under the Omnibus Agreement dated March 10, 2011, by and between SES, SGC, NG-II, MHR, MHP (as successor in interest to NGAS Production Co.), NG-I and NGAS Resources, Inc. (the “2011 Omnibus Agreement”) will require that MHP drill and complete four (4) Devonian (either Huron or Cleveland formation) horizontal gas wells capable of producing hydrocarbons (each, a “Devonian Well”) by the end of June 30, 2014 (such commitment being the “New Drilling Commitment” and such date being the “Commitment Date”).  The Parties to the 2011 Omnibus Agreement agree that the New Drilling Commitment effectively modifies the 2012 drilling

 

 

 

(b)           MHP shall pay SES, by wire transfer of immediately available funds, an amount equal to Two Hundred Twenty-Five Thousand Dollars ($225,000) (being equal to the product of fifteen percent (15%) multiplied by $1.5 million) for each Devonian Well that has not been drilled and completed by MHP and is not capable of producing hydrocarbons by the end of the Commitment Date.

 

(c)           Except as set forth in Paragraphs 1.4(a) and (b), none of the Magnum Hunter Entities owe any further obligations under Section 6 of the 2011 Omnibus Agreement.

 

1.5           Other Consideration – Concurrently with the execution of this Agreement, (a) MHP shall have returned to SES the expired check tendered by SES to MHP on October 9, 2012 for $102,438.37 (Check No. 0935466), (b) SES shall have paid to MHP, by wire transfer in immediately available funds to the account specified in Exhibit K, the amount of 

 

 

 

2.            Mutual Release.

 

2.1           The Parties hereby mutually release and forever discharge each other Party, and their respective predecessors, successors, assigns, owners, parents, affiliates, divisions, agents, officers, directors, employees, insurers, and attorneys from any and all claims or causes of action (a) alleged in the Legal Proceedings, (b) arising from or relating to the facts at issue in the Legal Proceedings, or (c) that could have been alleged or asserted in the Legal Proceedings arising from or relating to the facts at issue in the Legal Proceedings (collectively, “Claims”).  THIS IS A FULL AND COMPLETE RELEASE OF ALL THE FOREGOING DEFINED CLAIMS PROVIDED THAT, FOR THE AVOIDANCE OF DOUBT, NOTHING HEREIN SHALL BE DEEMED TO RELEASE A PARTY FOR CLAIMS (AS THAT TERM IS GIVEN ITS ORDINARY MEANING, AND NOT AS DEFINED ABOVE) TO ENFORCE THE TERMS OF THIS AGREEMENT.

 

2.2           The Parties acknowledge the receipt and sufficiency of the consideration set forth in Article 1 by signing this Agreement and entering into the Definitive Agreements.  The Parties expressly waive and assume the risk of all Claims which exist as of the Execution Date, but of which they do not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect their decision to

 

 

 

2.3           Notwithstanding the provisions of Paragraphs 2.1 and 2.2 above, the Parties agree they are not waiving any rights or claims that any of them may have to enforce the terms of this Agreement.

 

3.            Representations and Warranties.

 

3.1           By the Magnum Hunter Entities.          Each of the Magnum Hunter Entities represents and warrants, as to itself, to the Seminole Entities that (a) it has full power, authority and legal right to execute and deliver this Agreement and any other instruments or documents contemplated hereby to be executed by it and to consummate the transactions contemplated hereby; (b) this Agreement has been duly executed and delivered by such entity and constitutes the legal, valid and binding obligation of such entity, enforceable against such entity in accordance with the terms hereof except as may be limited by law; (c) except for the approval of the arbitrator in the Tulsa Arbitration and the courts in each of the Kentucky Lawsuit, the Houston Lawsuit and the Tulsa Lawsuit, to dismiss each of the Legal Proceedings with prejudice as contemplated by Paragraph 1.3 above, no further consent, approval or other action of any court or third party is required to be obtained by such entity in connection with the transactions contemplated in this Agreement; (d) it has not sold, assigned or transferred any claims it may have against any or all of the Seminole Entities or any of their successors, assigns, owners,

 

 

parents, affiliates, divisions, agents, officers, directors, employees, insurers or attorneys with respect to the matters released by this Agreement; and (e) except to the extent necessary to enforce the terms of this Agreement, it will not at any time hereafter file any complaints, demands, claims, or lawsuits against the Seminole Entities or any of their successors, assigns, owners, parents, affiliates, divisions, agents, officers, directors, employees, insurers, or attorneys with any government agency or any court or under any arbitration act or provision or with any arbitration association with respect to the matters released by this Agreement.

 

3.2           By the Seminole Entities.          Each of the Seminole Entities represents and warrants, as to itself, to the Magnum Hunter Entities as follows:

 

(a)           it has full power, authority and legal right to execute and deliver this Agreement and any other instruments or documents contemplated hereby to be executed by it and to consummate the transactions contemplated hereby;

 

(b)           this Agreement has been duly executed and delivered by such entity and constitutes the legal, valid and binding obligation of such entity, enforceable against such entity in accordance with the terms hereof except as may be limited by law;

 

(c)           except for the approval of the arbitrator in the Tulsa Arbitration and the courts in each of the Kentucky Lawsuit, the Houston Lawsuit and the Tulsa Lawsuit, to dismiss each of the Legal Proceedings with prejudice as contemplated by Paragraph 1.3 above, no further consent, approval or other action of any court or third party is required to be obtained by such entity in connection with the transactions contemplated in this Agreement;

 

(d)           it has not sold, assigned or transferred any claims it may have against any or all of the Magnum Hunter Entities or any of their successors, assigns,

 

 

 

(e)           except to the extent necessary to enforce the terms of this Agreement, it will not at any time hereafter file any complaints, demands, claims, or lawsuits against the Magnum Hunter Entities or any of their successors, assigns, owners, parents, affiliates, divisions, agents, officers, directors, employees, insurers, or attorneys with any government agency or any court or under any arbitration act or provision or with any arbitration association with respect to the matters released by this Agreement;

 

(f)           except with respect to (i) the Natural Gas Processing Agreement (Rogersville Cryogenic Processing Plant) entered into by and between SGC, SES and Chesapeake Appalachia, LLC (“Chesapeake”) dated April 1, 2011, as amended by that certain First Amendment to Natural Gas Processing Agreement dated June 12, 2013, by and between Chesapeake and SES (such Natural Gas Processing Agreement as so amended by such First Amendment to Natural Gas Processing Agreement being the “Chesapeake GPA”), (ii) the Natural Gas Processing Agreement (Rogersville Cryogenic Processing Plant) entered into by and between Forexco, Inc. (“Forexco”), SGC and SES dated April 1, 2011, as amended by that certain Letter Agreement dated May 14, 2013, by and between Forexco and SGC (such Natural Gas Processing Agreement as so amended by such Letter Agreement being the “Forexco GPA”),  (iii) the Natural Gas Processing Agreement (Rogersville Cryogenic Processing Plant) by and between Seminole Energy Services, LLC (Mid Atlantic), SES and SGC dated June 1, 2011, as amended by that certain Letter Agreement dated May 14, 2013, by and between SES and SGC, and (iv) the Gas Processing Agreement currently between MHP, as “Producer,”

 

 

(g)           it has delivered to the Magnum Hunter Entities a true and correct copy of each agreement referenced in Paragraph 3.2(f) above, together with all amendments and modifications thereto.

 

4.            Miscellaneous Provisions.

 

4.1           Integration.          This Agreement contains and constitutes the full and entire agreement between and among the Parties and supersedes all prior agreements, negotiations and understandings between and among the Parties relating to the subject matter hereof, whether written or oral.  Except as otherwise specifically provided in this Agreement, no change, amendment, modification, waiver or addition to this Agreement shall be valid unless made in writing and signed by or on behalf of each of the Parties.

 

4.2           Severability of Provisions.          If any term of this Agreement is to any extent held invalid or unenforceable by a final and non-appealable order of a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each of the terms and provisions of this Agreement shall be valid and enforced to the fullest extent permitted by law.

 

4.3           Headings and Neutral Terms.          The headings and subheadings contained in this Agreement are used solely for convenience and do not constitute a part of this Agreement between the Parties and shall not be used to construe or interpret the provisions of this Agreement.  In all references herein to any Parties, persons, entities or corporations, the

 

 

4.4           Counterpart Execution.          This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.  A facsimile or electronic signature on this Agreement shall have the same force and effect as an original signature thereto.  This Agreement shall be binding and enforceable upon signature and delivery by all Parties of signed counterparts, regardless of whether delivery is effected by delivery of original, facsimile or electronic signatures.

 

4.5           Contractual Intent.          This Agreement and the transactions contemplated hereby are contractual and not merely recitals, and this Agreement is not executed in reliance upon any other statement or representation, or for any other consideration except those which are expressly made herein.  The Magnum Hunter Entities and the Seminole Entities are fully informed of and acquainted with the contents of this Agreement and have full knowledge and appreciation of its meaning and effect and agree and acknowledge that it is executed for legally sufficient and adequate consideration.  The Parties acknowledge that each of them received the advice of counsel prior to signing this Agreement, and their decision to sign this Agreement was their free and voluntary act.

 

4.6           Negotiation of the Agreements.          All of the Parties and their counsel have had the opportunity to participate in the drafting and revision of this Agreement.  Therefore, the recitals and agreements contained herein and transactions contemplated hereby shall not be construed in favor of or against any Party, but shall be construed as if all Parties prepared this Agreement.

 

 

4.7           Assignment; Binding Effect.          No Party shall assign or otherwise transfer all or any part of this Agreement or delegate all or any part of its rights or obligations hereunder without the prior written consent of each other Party and any assignment, transfer or delegation made without such consent shall be void and of no force and effect; provided, however, each Party shall have the right, without consent of the other Parties, to assign, transfer  or delegate all or any part of its rights or obligations under Paragraph 1.4 to a purchaser or purchasers of all or substantially all of the assets or business of such Party.  Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.

 

4.8           Remedies Upon Breach.          If one Party to this Agreement has performed all of its obligations hereunder (the “Non-Breaching Party”), and another Party has failed to perform all of its obligations hereunder, then the Non-Breaching Party may, at its election, seek remedies as set forth in Paragraph 4.11 below.

 

4.9           No Admission of Liability; No Adverse Effect Upon the Action.          It is expressly understood and agreed by the Magnum Hunter Entities and the Seminole Entities that nothing herein is, shall be construed to be, or may be used to prove, an admission of any factual recital or of any liability asserted either herein or in any of the Legal Proceedings.

 

4.10           Governing Law; Construction.          This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to the conflicts of law rules thereof.

 

4.11           Resolution of Breach.          In the event of a dispute arising between the Parties to this Agreement, including with respect to the breach of any terms of this Agreement, such dispute will be resolved by arbitration in Houston, Texas by a single

 

 

 

4.12           Attorney Fees, Costs and Expenses.          Except as otherwise provided by Paragraph 4.11 above, the Parties shall each be responsible for and shall pay for all of their own respective attorney fees, costs and expenses, if any, incurred by or on behalf of each such Party in or in relation to (i) the Legal Proceedings, (ii) any actions, matters or issues between the Parties incident or related to the Legal Proceedings or (iii) the negotiation, execution and delivery of this Agreement or the Definitive Agreements.

 

5.           Confidentiality.          No Party shall disclose directly or indirectly without the prior written consent of each other Party the terms and conditions of this Agreement or any of the facts, circumstances or allegations relating to or regarding the Legal Proceedings (“Confidential Information”) to any person or entity; provided, however, that any Party may disclose such terms, conditions, facts, circumstances or allegations to the extent (a) the same is in the public domain through no action of such Party or its affiliate or (b) a Party is required by any governmental authority (including any regulatory or supervisory authority or any quasi-governmental or private body that exercises regulatory or taxing authority) or any applicable law (including judgments, decisions and awards of any governmental authority or any disclosures that are required to be made by a Party pursuant to the rules and regulations of the United States Securities and Exchange Commission or any stock exchange on which the stock

 

 

of such Party (or any affiliate of such Party) is listed).  Notwithstanding the foregoing, a Party may disclose Confidential Information (i) to such Party’s affiliates, owners, shareholders, directors, officers, managers, employees, advisors, counsel, lenders, financial consultants, insurers, accountants, underwriters, agents and representatives, in each case limited to the extent necessary; (ii) to prospective purchasers of all or substantially all of the (a) direct or indirect equity interests in a Party or (b) assets or business of such Party, provided, each such prospective purchaser agrees to be bound by and subject to substantially equivalent terms of confidentiality as set forth herein; (iii) to any governmental authority to the extent necessary to enforce this Agreement; and (iv) to an arbitrator pursuant to Paragraph 4.11 above in connection with any dispute arising between the Parties.

 

In the event that any Party becomes the subject of a subpoena or other legal process by which disclosure of the Confidential Information is sought, then the Party subject to the subpoena or other legal process shall, to the extent legally permissible, (a) take immediate and diligent steps to provide a full, complete copy of the subpoena or other legal process to all other Parties and (b) only disclose that portion of the Confidential Information that is required to be disclosed and use reasonable commercial efforts to ensure further confidential treatment of the Confidential Information so disclosed.

 

Notwithstanding the foregoing, (i) the Parties are free to state that the Legal Proceedings were settled by agreement upon terms to be held strictly confidential and (ii) the Parties agree that disclosure of any of the terms and conditions of any of the Definitive Agreements shall be exclusively governed by the confidentiality restrictions set forth in the Definitive Agreement to which such terms and conditions relate and not the confidentiality restrictions set forth in this Paragraph 5.

 

 

Any breach of this provision is acknowledged and agreed by the Parties to be a material breach of this Agreement and will be subject to a claim for damages by the other Parties.

 

6.           No Waiver.          The failure of any Party at any time to enforce any provisions of this Agreement will in no way constitute or be construed as a waiver of such provision or of any other provision hereof, nor in any way affect the validity of, or the right thereafter to enforce, each and every provision of this Agreement.

 

7.           Further Assurances.          Each Party will, upon the request of any other Party, from time to time after the Execution Date, execute and deliver to the requesting Party all such further documents and instruments and take such actions as may be reasonably necessary or appropriate to consummate the transactions contemplated herein.

 

8.           Non-Economic Conditions; Termination.          The Parties to the Gas Gathering Agreement and MHP Operating and Maintenance Agreement hereby acknowledge and agree that, effective as of 11:59 p.m. (Central Standard Time) on December 31, 2013, the terms and conditions of Section 8 of the 2011 Omnibus Agreement shall apply to the Gas Gathering Agreement, MHP Operating and Maintenance Agreement, and each of the Parties thereto, and such terms and conditions shall remain in full force and effect with respect thereto.

 

 

IN WITNESS WHEREOF, the Parties, intending to be legally bound hereby, have caused this Agreement to be executed as of the date set forth in the preamble above.