IN THE UNITED STATES BANKRUPTCY COURT FOR …strettodocs.s3.amazonaws.com/files/47512377-646e-4e52-bc...IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ELK

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re:

ELK PETROLEUM, INC.,1

Debtor.

Chapter 11

Case No. 19-11157 (LSS)

NOTICE OF FILING OF PLAN SUPPLEMENT

PLEASE TAKE NOTICE that the above-captioned debtor and debtor-in-possession (the “Debtor”) filed the plan supplement (the “Plan Supplement”), consisting of the documents attached hereto in support of the Plan of Liquidation of Elk Petroleum, Inc., Pursuant to Chapter 11 of the Bankruptcy Code (Docket No. 872) (as may be amended or modified from time to time and including all exhibits and supplements thereto, the “Plan”).

PLEASE TAKE FURTHER NOTICE that the Plan Supplement includes the following attached documents, as may be modified, amended or supplemented from time to time:

Exhibit A — WARRANT AGREEMENT BETWEEN ELK PETROLEUM ANETH, LLC AND ELK PETROLEUM ANETH, LLC, WARRANT AGENT, DATED AS OF NOVEMBER 7, 2019 Exhibit B — FORM OF TRUST AGREEMENT FOR THE EPI LIQUIDATING TRUST

Exhibit C — PRO FORMA PLAN DISTRIBUTION SCHEDULE, ATTACHED AS EXHIBIT 3 TO THE DISCLOSURE STATEMENT WITH RESPECT TO THE PLAN (DOCKET NO. 873) PLEASE TAKE FURTHER NOTICE that, in accordance with section 1.64 of the Plan, the EPI

Liquidating Trustee shall be North Country Capital LLC (Matthew Doheny). PLEASE TAKE FURTHER NOTICE that the documents contained in the Plan Supplement are

not final, are subject to ongoing review and change, and remain subject to approval in accordance with the Plan. All agreements contained in the Plan Supplement are “in the form of” and subject to ongoing review and change, and remain subject to approval in accordance with the Plan. The Debtor reserves all rights, with the consent of any applicable counterparties to the extent required under the Plan, to amend, modify, or supplement the Plan Supplement, and any of the documents contained therein, in accordance with the terms of the Plan. To the extent material amendments or modifications are made to any of the Plan Supplement documents, the Debtor will file a

1 The Debtor is Elk Petroleum, Inc. (8606). The Debtor is Elk Petroleum, Inc. (8606). The address of the

Debtor is Elk Petroleum, Inc., c/o Matthew Doheny, Chief Restructuring Officer, North Country Capital LLC, 215 Washington Street, Suite 006, Watertown, NY 13601.

Case 19-11157-LSS Doc 897 Filed 06/19/20 Page 1 of 3

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blackline with the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) prior to the Confirmation Hearing marked to reflect same.

PLEASE TAKE FURTHER NOTICE that the forms of the documents contained in the Plan

Supplement are integral to, and are considered part of, the Plan. If the Plan is approved, the documents contained in the Plan Supplement will be approved by the Bankruptcy Court pursuant to the order confirming the Plan.

PLEASE TAKE FURTHER NOTICE that the hearing (the “Confirmation Hearing”) will be held before the Honorable Mary F. Walrath in the United States Bankruptcy Court for the District of Delaware, located at 824 Market Street, 5th Floor, Court Room 4, Wilmington, Delaware 19801, on July 8, 2020, at 10:00 a.m. (prevailing Eastern Time), to consider confirmation of the Plan, any objections thereto, and any other matter that may properly come before the Bankruptcy Court.

PLEASE TAKE FURTHER NOTICE that the deadline for filing objections to confirmation of the Plan is July 2, 2020, at 4:00 p.m. (prevailing Eastern Time) (the “Plan Objection Deadline”). Any objection to the Plan must: (a) be in writing; (b) conform to the Bankruptcy Rules, the Local Rules, and any orders of the Court; (c) state, with particularity, the basis and nature of any objection to the Plan and, if practicable, a proposed modification to the Plan that would resolve such objection; and (d) be filed with the Court (contemporaneously with a proof of service) and served upon under signed counsel for the Debtors so as to be actually received on or before July 2, 2020, at 4:00 p.m. (prevailing Eastern Time): (a) undersigned counsel to the Debtor and (b) the Office of the United States Trustee, J. Caleb Boggs Federal Building, 844 King Street, Lockbox 35, Wilmington, Delaware 19801 (Attn: Richard L. Schepacarter, Esquire).

PLEASE TAKE FURTHER NOTICE that the Confirmation Hearing may be adjourned or continued from time to time by the Bankruptcy Court without further notice other than by such adjournment being announced in open court or by a notice of adjournment filed with the Bankruptcy Court and served on other parties entitled to notice.


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THIS NOTICE IS BEING SENT TO YOU FOR INFORMATIONAL PURPOSES ONLY. IF YOU HAVE QUESTIONS WITH RESPECT TO YOUR RIGHTS UNDER THE PLAN OR ABOUT ANYTHING STATED HEREIN, OR IF YOU WOULD LIKE TO OBTAIN

ADDITIONAL INFORMATION, CONTACT THE NOTICE AND CLAIMS AGENT.

Dated: June 19, 2020 CHIPMAN BROWN CICERO & COLE, LLP Wilmington, Delaware

/s/ Mark L. Desgrosseilliers William E. Chipman, Jr. (No. 3818) Mark L. Desgrosseilliers (No. 4083) Tayler D. Bolton (No. 6640) Hercules Plaza 1313 North Market Street, Suite 5400 Wilmington, Delaware 19801 Telephone: (302) 295-0191 Facsimile: (302) 295-0199 Email: [email protected] [email protected] [email protected]

Special Counsel to the Debtor and Debtor-In-Possession


EXHIBIT A

Case 19-11157-LSS Doc 897-1 Filed 06/19/20 Page 1 of 56

4818-4917-0344 v6

WARRANT AGREEMENT

between

ELK PETROLEUM ANETH, LLC

and

ELK PETROLEUM ANETH, LLC,Warrant Agent

Dated as of November 7, 2019

Warrants To Purchase Units


i4818-4917-0344 v6

TABLE OF CONTENTS

1. Definitions............................................................................................................................1

2. Warrants. ..............................................................................................................................72.1. Issuance of Warrants................................................................................................72.2. Form of Warrant Certificates ...................................................................................72.3. Execution and Delivery of Warrants........................................................................82.4. Restrictions on Transfer........................................................................................9

3. Exercise and Expiration of Warrants. ................................................................................113.1. Right to Acquire Units Upon Exercise ..................................................................113.2. Exercise and Expiration of Warrants .....................................................................11

(a) Exercise of Warrants..................................................................................11(b) Expiration of Warrants...............................................................................11(c) Method of Exercise ....................................................................................12(d) Partial Exercise ..........................................................................................12(e) Issuance of Units........................................................................................12(f) Time of Exercise ........................................................................................13

3.3. Application of Funds Upon Exercise of Warrants .................................................133.4. Payment of Taxes...................................................................................................133.5. Surrender of Certificates ........................................................................................133.6. Units Issuable.........................................................................................................143.7. Cashless Exercise...................................................................................................14

4. Dissolution, Liquidation or Winding up. ...........................................................................14

5. Adjustments. ......................................................................................................................155.1. Adjustments ...........................................................................................................15

(a) Subdivisions and Combinations.................................................................15(b) Unit Distributions ......................................................................................15(c) Reclassifications ........................................................................................16(d) Property Dividends ....................................................................................16(e) Self-Tender Offers .....................................................................................17(f) Distributions of Warrants...........................................................................17(g) Superseding Adjustment ............................................................................18(h) Other Provisions Applicable to Adjustments.............................................18(i) Adjustment to Units Obtainable Upon Exercise........................................19(j) Changes in Units ........................................................................................19(k) Compliance with Governmental Requirements .........................................21(l) Optional Tax Adjustment...........................................................................21(m) Warrants Deemed Exercisable...................................................................21(n) Notice of Adjustment.................................................................................21(o) Statement on Warrant Certificates .............................................................21(p) Certain Actions During Specified Period ..................................................22(q) Certain Actions Respecting Received Cash Dividends .............................22

5.2. Fractional Interest ..................................................................................................22

6. Loss or Mutilation..............................................................................................................22


ii4818-4917-0344 v6

7. Authorization of Units. ......................................................................................................23

8. Warrant Transfer Books.....................................................................................................23

9. Warrant Holders.................................................................................................................259.1. No Voting or Dividend Rights...............................................................................259.2. Rights of Action.....................................................................................................269.3. Treatment of Warrantholders.................................................................................269.4. Communications to Holders ..................................................................................26

10. Concerning the Warrant Agent. .........................................................................................2610.1. Nature of Duties and Responsibilities Assumed....................................................2610.2. Right to Consult Counsel .......................................................................................2810.3. Compensation, Reimbursement and Indemnification............................................2810.4. Warrant Agent May Hold Company Securities .....................................................2910.5. Resignation and Removal; Appointment of Successor..........................................2910.6. Appointment of Countersigning Agent..................................................................30

11. Notices. ..............................................................................................................................3011.1. Notices Generally...................................................................................................3011.2. Required Notices to Holders..................................................................................31

12. Inspection...........................................................................................................................32

13. Amendments. .....................................................................................................................32

14. Waivers. .............................................................................................................................33

15. Successor to Company.......................................................................................................33

16. Headings. ...........................................................................................................................33

17. Counterparts.......................................................................................................................34

18. Severability. .......................................................................................................................34

19. Persons Benefiting. ............................................................................................................34

20. Applicable Law..................................................................................................................34

21. Entire Agreement. ..............................................................................................................34

EXHIBITS

Exhibit A Form of Warrant Certificate

Exhibit B Form of Warrant Statement

Exhibit C Form of Exercise Notice


4818-4917-0344 v6

WARRANT AGREEMENT

WARRANT AGREEMENT dated as of November 7, 2019 between Elk Petroleum Aneth, LLC, a Delaware limited liability company (referred to herein as the “Company”), and Elk Petroleum Aneth, LLC, a Delaware limited liability company, as warrant agent (referred to herein as the “Warrant Agent”).

The Company proposes to issue and deliver its Warrants (as defined below) to purchase, under certain circumstances, up to an aggregate of 11,988,690 Units (as defined below), subject to adjustment as provided herein. Each such Warrant shall entitle the registered owner thereof to purchase one Unit, subject to adjustment as provided herein.

In consideration of the foregoing and for the purpose of defining the terms and provisions of the Warrants and the respective rights and obligations thereunder of the Company, the Warrant Agent and the record holders of the Warrants, the Company and the Warrant Agent each hereby agree as follows:

1. Definitions.

“Affiliate,” of any specified Person, means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such specified Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Agreement” means this agreement as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the applicable provisions hereof.

“Board of Managers” means the board of managers of the Company or any duly authorized committee of that board.

“Board Resolution” means a copy of a resolution certified by the secretary of the Company to have been duly adopted by the Board of Managers and to be in full force and effect on the date of such certification, and delivered to the Warrant Agent.

“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a legal holiday in the State of New York or the State of Texas or a day on which banking institutions and trust companies in the state in which the Company Office is located are authorized or obligated by law, regulation or executive order to close.

“Cashless Exercise” has the meaning set forth in Section 3.7.

“Certificated Warrants” means the Warrants issued in the form of and represented by Warrant Certificates.


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“Closing Price” means, for each Trading Day, the last reported sale price regular way or, in case no such reported sale takes place on such Trading Day, the average of the reported closing bid and asked prices regular way, in either case on the principal national securities exchange on which the Unit is then listed or admitted for trading or, if the Unit is not listed or admitted for trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market in the United States as furnished by any New York Stock Exchange member firm selected from time to time by the Company for that purpose.

“Company” means the company identified in the preamble hereof and its successors and assigns.

“Company Offer” means any tender offer (including any exchange offer) as amended from time to time made by the Company or any of its Subsidiaries for the purchase (including the acquisition pursuant to an exchange offer) of all or any portion of the outstanding Units.

“Company Order” means a written request or order signed in the name of the Company by its Chief Executive Officer or Interim Chief Executive Officer, its Chief Financial Officer or its Chief Operating Officer and delivered to the Warrant Agent.

“Company Office” has the meaning set forth in Section 8.

“Constituent Person” has the meaning set forth in Section 5.1(j).

“corporation” means a corporation, association, company (including limited liability company), joint-stock company, business trust or other similar entity.

“Countersigning Agent” means any Person authorized by the Warrant Agent to act on behalf of the Warrant Agent to countersign the Warrant Certificates.

“Current Market Price” means (i) if the Unit is listed or admitted to trading on a principal national securities in the United States or in the over-the-counter market, the current market price per Unit on any day shall be deemed to be the average of the Closing Prices of the Unit for the ten consecutive Trading Days immediately preceding the Trading Day before the day in question or (ii) if the Unit is not listed or quoted on any such exchange or market, the current market price per Unit shall be the fair market value thereof as determined in good faith by the Board of Managers, whose determination shall be conclusive.

“Direct Registration Warrants” has the meaning set forth in Section 2.1.

“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case, as amended from time to time.

“Excluded Company Offer” means any Company Offer that is designated by the Company as such by written notice to the Warrant Agent if (but only if) the Applicable Value Percentage for such Company Offer, when added to the Applicable Value Percentages for all other Excluded Company Offers expiring, and for all Excluded Dividends paid by the Company, after the date 12 months prior to the Expiration Time for such Company Offer and on or prior to such Expiration Time, does not exceed 12.5%. “Applicable Value Percentage” means, with


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respect to any Company Offer designated as a “Excluded Company Offer” pursuant to this definition, the percentage determined by dividing (A) the difference between (i) the fair market value (as determined in good faith by the Board of Managers, whose determination shall be conclusive and evidenced by a Board Resolution filed with the Warrant Agent) of the aggregate consideration payable to unitholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Units (as defined in Section 5.1(e)), and (ii) the product of the Current Market Price per Unit on the date of the Expiration Time and the number of Purchased Units, by (B) the product of (i) the Current Market Price per Unit on the date of the Expiration Time and (ii) the number of Units outstanding (including any tendered Units) on the date of the Expiration Time.

“Excluded Dividend” means any Property Dividend (other than any Received Dividend or Receivable Dividend or any dividend or distribution of rights or warrants referred to in Section 5.1(f)) that is paid or made in cash out of earnings or earned surplus, determined in accordance with generally accepted accounting principles).

“Exercise Date” has the meaning set forth in Section 3.2(f).

“Exercise Notice” means, for any Warrant, an exercise notice substantially in the form set forth in Exhibit C hereto.

“Exercise Period” means the period from and including the Original Issue Date to and including the Expiration Date.

“Exercise Price” means the exercise price per Unit, initially set at $1.132625, subject to adjustment as provided in Section 5.1.

“Expiration Date” means November 7, 2023, the fourth anniversary of the Original Issue Date, or such earlier date as the Company has designated pursuant to and in accordance with Section 3.2(b).

“Expiration Time” has the meaning set forth in Section 5.1(e).

“Financial Expert” means any broker or dealer registered as such under the Exchange Act that conducts an investment banking business of nationally recognized standing.

“Independent Financial Expert” means any Financial Expert selected by the Company that either (i) is reasonably acceptable to the Warantholders evidencing a majority of the outstanding Warrants or (ii) is a firm (x) which does not (and whose directors, officers, employees and affiliates, to the knowledge of the Company, do not) have a material direct or indirect financial interest in the Company or any of its Affiliates (other than by virtue of compensation paid for advice or opinions referred to in the exception to clause (z)), as determined by the Board of Managers of the Company in its reasonable good faith judgment, (y) which has not been, within the last two years, and, at the time it is called upon to give independent financial advice to the Company or any of its Affiliates, is not (and none of whose directors, officers, employees or affiliates, to the knowledge of the Company, is) a promoter, director or officer of the Company or any of its Affiliates or an underwriter with respect to any of the securities of the Company or any of its Affiliates and (z) which does not provide any advice


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or opinions to the Company or Affiliates except as an independent financial expert in connection with this Agreement.

“Joinder” has the meaning set forth in Section 3.2(c).

“Non-Electing Unit” has the meaning set forth in Section 5.1(j).

“Non-Surviving Transaction” has the meaning set forth in Section 5.1(j).

“Operating Agreement” means the Amended and Restated Limited Liability Company Agreement of the Company.

“Original Issue Date” means November 7, 2019, the date on which Warrants are originally issued under this Agreement.

“Original Restricted Holder” means any Warrantholder evidencing Original Restricted Warrants.

“Original Restricted Warrants” means Warrants evidenced by Warrant Certificates bearing the legends set forth in Sections 2.4(a) and (e).

“outstanding” when used with respect to any Warrants, means, as of the time of determination, all Warrants theretofore originally issued under this Agreement except (i) Warrants that have been exercised pursuant to Section 3.2(a), (ii) Warrants that have expired pursuant to Sections 3.2(b) or 4 and (iii) Warrants that have otherwise been acquired by the Company; provided, however, that in determining whether the Warrantholders of the requisite amount of the outstanding Warrants have given any request, demand, authorization, direction, notice, consent or waiver under the provisions of this Agreement, Warrants owned by the Company or any Subsidiary or Affiliate of the Company shall be disregarded and deemed not to be outstanding.

“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Property Dividend” means any payment by the Company to all holders of its Units of any dividend, or any other distribution by the Company to such holders, of any securities of the Company, evidences of indebtedness of the Company, cash or other assets (including rights, warrants or other securities (of the Company or any other Person)), other than any dividend or distribution (i) upon a merger or consolidation or sale to which Section 5.1(j) applies or (ii) of any Units referred to in Section 5.1(b).

“Purchased Units” has the meaning set forth in Section 5.1(e).

“Receivable Dividend” means any Property Dividend if (but only if):

(i) on a date at least 30 days prior to the date for the determination of holders entitled to receive such distribution, the Company has given notice in accordance with Section 11.1 to all Warrantholders and the Warrant Agent, in each case stating:


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(A) the date for such determination;

(B) the fair market value (determined as specified in clause (iv) below) of the securities, cash or other assets so to be distributed applicable to one Unit;

(C) the Exercise Price then in effect;

(D) that the Warrants will be exercisable at all times during the period (the “Specified Period”) from the opening of business on the date such notice is given to the close of business on such date for determination;

(E) the number of Units into which one Warrant is then exercisable;

(F) that the Company intends to treat such distribution as a “Receivable Dividend” hereunder and, therefore, that no adjustment to the Exercise Price or the number of Units into which the Warrants are exercisable will be made as a result of such distribution; and

(G) the rights thereafter generally available to a Warrantholder if such Warrantholder’s Warrants are not exercised during the Specified Period;

(ii) the Specified Period is at least 30 days long;

(iii) at any time during the Specified Period that any Warrant has been outstanding, such Warrant has been exercisable (or would have been exercisable but for the presence of the legend set forth in Section 2.4(a) on any Warrant Certificates); and

(iv) the fair market value (as determined in good faith by the Board of Managers, whose determination shall be conclusive and evidenced by a Board Resolution filed with the Warrant Agent) of the securities, cash or other assets so to be distributed applicable to one Unit exceeds 125% of the Exercise Price in effect at any time during the Specified Period.

“Received Dividend” means any Property Dividend if (but only if):

(i) prior to the date for determination of holders of Units entitled to receive such distribution the Company has delivered a written notice to the Warrant Agent that the Company intends to treat such distribution as a “Received Dividend” hereunder; and

(ii) at the same time the Company makes such distribution to holders of Units, the Company distributes, to each Person who was the Warrantholder holding a Warrant that was outstanding immediately after the close of business on such date for determination (whether or not such Warrant is outstanding on the date of such distribution), an amount equal to the amount of securities, cash or other assets that would have been receivable upon such distribution by a holder of the number of Units into which all Warrants evidenced by such Warrant Certificate are exercisable if such Warrants had been exercised in full immediately prior to such date for determination, assuming that the Warrants were exercisable at the time of such date for determination


6

into the initial number of Units into which a Warrant is exercisable, as adjusted from the date of this Warrant Agreement to such date for determination pursuant to Section 5 (other than any adjustment in respect of which the deferral provisions of Section 5.1(h)(iv) are then applicable).

“Recipient” has the meaning set forth in Section 3.2(e).

“Restricted Securities” has the meaning set forth in Section 2.4(a).

“Securities Act” means the Securities Act of 1933, as amended.

“Specified Period” has the meaning specified in the definition of “Receivable Dividend” in this Section 1.

“Subsidiary” means, as to any Person, any corporation, partnership, limited liability company or other organization, whether incorporated or unincorporated, of which at least a majority of the Securities or other interests having by their terms voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly beneficially owned or controlled by such party or by any one or more of its subsidiaries.

“Substituted Property” has the meaning set forth in Section 5.1(j).

“Surviving Transaction” has the meaning set forth in Section 5.1(j).

“Trading Day” means each Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which securities are not traded on the applicable securities exchange or in the applicable securities market.

“Transaction” has the meaning set forth in Section 5.1(j).

“Units” means any capital securities of any class or series of the Company which has no preference in respect of distributions or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which is not subject to redemption by the Company.

“Warrant Agent” means the warrant agent set forth in the preamble hereof or the successor or successors of such Warrant Agent appointed in accordance with the terms hereof.

“Warrant Certificates” means those certain warrant certificates evidencing the Warrants, substantially in the form of Annex A attached hereto.

“Warrant Register” has the meaning set forth in Section 8.

“Warrant Statements” has the meaning set forth in Section 2.1.

“Warrantholder” means any Person in whose name at the time any Warrant Certificate or Direct Registration Warrant is registered upon the Warrant Register and, when used with


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respect to any Warrant Certificate or Direct Registration Warrant, the Person in whose name such Warrant Certificate or Direct Registration Warrant is registered in the Warrant Register.

“Warrants” means those certain Certificated Warrants or Direct Registration Warrants to purchase initially up to an aggregate of 11,988,690 Units at the Exercise Price, subject to adjustment pursuant to Section 5, issued hereunder with the terms, conditions and rights set forth therein.

2. Warrants.

2.1. Issuance of Warrants. On the Original Issue Date, the Warrants shall either be issued upon receipt of a Company Order (a) to the Warrantholder in the form of a Warrant Certificate evidencing the number of Warrants specified therein, executed by the Company and countersigned by the Warrant Agent at the direction of the Company as set forth therein, or (y) by electronic entry registration on the books of the Warrant Agent (“Direct Registration Warrants”) and, at the direction of the Company set forth therein, shall be reflected on statements issued by the Warrant Agent from time to time to the Warrantholders thereof (the “Warrant Statements”). Each Warrant, whether issued by a Warrant Certificate or a Direct Registration Warrant, shall represent the right, subject to the provisions contained herein and therein, to purchase one Unit, subject to adjustment as provided in Section 5. All Warrants issued under this Agreement shall in all respects be equally and ratably entitled to their respective benefits under this Warrant Agreement, without preference, priority, or distinction on account of the actual time of the issuance and authentication or (except as to the Units issuable upon exercise) any other terms thereof. Each Warrant shall be, and shall remain, subject to the provisions of this Agreement until such time as such Warrant shall have been duly exercised or been canceled in accordance with the terms hereof. Each Warrantholder shall be bound by all of the terms and provisions of this Agreement as fully and effectively as if such Warrantholder had signed the same.

2.2. Form of Warrant Certificates.

(a) The Warrant Certificates evidencing the Certificated Warrants shall be in registered form only and substantially in the form attached hereto as Exhibit A, shall be dated the date on which countersigned by the Warrant Agent, shall have such insertions as are appropriate or required or permitted by this Agreement and may have such letters, numbers or other marks of identification and such legends and endorsements typed, stamped, printed, lithographed or engraved thereon as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation pursuant thereto or with any rule or regulation of any securities exchange on which the Warrants may be listed, or to conform to usage.

(b) Pending the preparation of definitive Warrant Certificates, temporary Warrant Certificates may be issued, which may be printed, lithographed, typewritten, mimeographed or otherwise produced, and which will be substantially of the tenor of the definitive Warrant Certificates in lieu of which they are issued.


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If temporary Warrant Certificates are issued, the Company will cause definitive Warrant Certificates to be prepared without unreasonable delay. After the preparation of definitive Warrant Certificates, the temporary Warrant Certificates shall be exchangeable for definitive Warrant Certificates evidencing Warrants of the same number and tenor upon surrender by the Warrantholder of the temporary Warrant Certificates to the Warrant Agent at its Company Office, without charge to such Warrantholder. Upon surrender for cancellation of any one or more temporary Warrant Certificates the Company shall execute and the Warrant Agent shall countersign and deliver in exchange therefore Warrant Certificates of the same tenor and for a like aggregate number of Warrants. Until so exchanged the temporary Warrant Certificates shall in all respects be entitled to the same benefits under this Agreement as definitive Warrant Certificates.

2.3. Execution and Delivery of Warrants.

(a) Certificated Warrants and Direct Registration Warrants evidencing the Warrants which may be issued and delivered (and in the case of Certificated Warrants, evidenced by Warrant Certificates countersigned) under this Agreement are limited to Certificated Warrants and Direct Registration Warrants evidencing 11,988,690 Warrants except for Warrants issued and delivered (and, in the case of Certificated Warrants, evidenced by Warrant Certificates countersigned) upon registration of transfer of, or in exchange for, or in lieu of, one or more previously Certificated Warrants or Direct Registration Warrants pursuant to Sections 2.2(b), 3.2(d), 6 and 8.

(b) The Warrant Agent is hereby authorized to issue and deliver Certificated Warrants and Direct Registration Warrants (and, in the case of Certificated Warrants, to countersign such Certificated Warrants) as required by this Section 2.3 or by Sections 2.2, 3.2(d), 6 or 8.

(c) The Warrant Certificates shall be executed in the company name and on behalf of the Company by the Chairman (or any Co-Chairman) of the Board of Managers, the Chief Executive Officer, the President or any one of the Vice Presidents of the Company and attested to by the Secretary or one of the Assistant Secretaries of the Company, either manually or by facsimile signature printed thereon. The Warrant Certificates shall be manually countersigned by the Warrant Agent and shall not be valid for any purpose unless so countersigned. In case any officer of the Company whose signature shall have been placed upon any of the Warrant Certificates shall cease to be such officer of the Company before countersignature by the Warrant Agent and issue and delivery thereof, such Warrant Certificates may, nevertheless, be countersigned by the Warrant Agent and issued and delivered with the same force and effect as though such person had not ceased to be such officer of the Company, and any Warrant Certificate may be signed on behalf of the Company by such person as, at the actual date of the execution of such Warrant Certificate, shall be a proper officer of the Company, although at the date of the execution of this Warrant Agreement any such person was not such officer.

(d) Upon the request of the Company, the Warrant Agent shall cause any Warrant Certificate or Warrant Statement evidencing Warrants issued upon original issuance to


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bear the legend set forth in Sections 2.4(a), the Warrants evidenced thereby constituting “Original Restricted Warrants” for purposes of Section 2.4.

2.4. Restrictions on Transfer.

(a) Each Warrantholder evidencing Original Restricted Warrants, by accepting the same, agrees not to sell, assign, transfer or pledge any Original Restricted Warrants or any Units issued upon any exercise of any such Original Restricted Warrants (collectively “Restricted Securities”) except upon satisfaction of the conditions specified in this Section 2.4, which conditions are intended to ensure compliance with the provisions of (i) the Securities Act and (ii) the Operating Agreement. The Warrantholders of the Restricted Securities will cause any proposed purchaser, assignee, transferee or pledge of the Restricted Securities to agree to take and hold such securities subject to the provisions and conditions specified in this Section 2.4. Each Warrant Certificate or Warrant Statement representing Restricted Securities shall be stamped or otherwise imprinted with a legend in the following form (in addition to any legend required under applicable state securities laws):

“THIS WARRANT AND THE SECURITIES TO BE ISSUED UPON ITS EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS WARRANT NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, PLEDGED, ENCUMBERED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.

BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

1. REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS [A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT] [AN “ACCREDITED INVESTOR” (WITHIN THE MEANING OF RULE 501(a) UNDER THE SECURITIES ACT) (AN “ACCREDITED INVESTOR”)] [NOT A U.S. PERSON (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT)], AND

2. AGREES FOR THE BENEFIT OF ELK PETROLEUM ANETH, LLC (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST DATE OF INITIAL ISSUANCE HEREOF OR SUCH OTHER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR

(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR


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(C) FOR SO LONG AS THE WARRANTS ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON THAT IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR

(D) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR

(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.”

(b) The Warrantholders of any Restricted Securities and the holders of Units constituting Restricted Securities will cause any proposed purchaser, assignee, transferee or pledgee of Restricted Securities to agree to take and hold such securities subject to the provisions and conditions specified in this Section 2.4 and Section 3.2(a).

(c) The Warrantholders of any Restricted Securities, by accepting the same, agrees to comply in all respects with the provisions of this Section 2.4. Prior to any proposed transfer (including any transfer by means of exercising Original Restricted Warrants in such a manner as to cause the Units to be registered in the name of another holder), sale, assignment or pledge of any such Restricted Securities, unless there is in effect a registration statement under the Securities Act covering the proposed transfer, sale, assignment or pledger the holder thereof shall give written notice to the Company of such holder’s intention to effect such transfer, sale, assignment or pledge. Each such notice shall describe the manner and circumstances of the proposed transfer, sale, assignment or pledge in sufficient detail and shall be accompanied, at such holder’s expense, by a written opinion of legal counsel (who shall be, and whose legal opinion shall be, reasonably satisfactory to the Company) addressed to the Company to the effect that the proposed transfer of the securities may be effected without registration under the Securities Act.

(d) The legend specified in Section 2.4(a) shall also be placed on all certificates issued upon registration of transfer of, or in exchange for, or in lieu of, any certificates bearing the legend set forth in Section 2.4(a), except if such transfer is made pursuant to an effective registration statement or Rule 144 or if the holder (at such holder’s expense) shall


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deliver a written opinion of legal counsel (who shall be, and whose legal opinion shall be, reasonably satisfactory to the Company) addressed to the Company to the effect that such legend set forth in Section 2.4(a) is not required in order to establish compliance with any provision of the Securities Act.

(e) Each Warrant Statement shall bear a legend in substantially the form set forth on Exhibit B.

3. Exercise and Expiration of Warrants.

3.1. Right to Acquire Units Upon Exercise. Each Certificated Warrant (when countersigned by the Warrant Agent) or Direct Registration Warrant shall entitle the Warrantholder thereof, subject to the provisions thereof and of this Agreement, to acquire from the Company, for each Warrant evidenced thereby one Unit at the Exercise Price, subject to adjustment as provided in this Agreement. The Exercise Price, and the number of Units obtainable upon exercise of each Warrant, shall be adjusted from time to time as required by Section 5.1.

3.2. Exercise and Expiration of Warrants.

(a) Exercise of Warrants. Subject to and upon compliance with the terms and conditions set forth herein, a Warrantholder may exercise all or any whole number of the Warrants evidenced thereby, on any Business Day from and after the Original Issue Date until 5:00 p.m., New York time, on the Expiration Date, for the Units obtainable thereunder; provided, however, that any Warrant bearing the legend set forth in Section 2.4(a) shall not be exercisable unless (1) the registered holder is an Original Restricted Holder, (2) a registration statement under the Securities Act is in effect as to such exercise or (3) the Company receives a written opinion of legal counsel (who shall be, and whose legal opinion shall be, reasonably satisfactory to the Company) addressed to the Company to the effect that the proposed exercise of the Warrant may be effected without registration under the Securities Act.

(b) Expiration of Warrants. The Warrants shall terminate and become void as of 5:00 p.m., New York time, on the Expiration Date.

The Company shall have the right to accelerate the date of expiration of the Warrants to any date after the Original Issue Date if:

(i) a Transaction has occurred on or prior to the date notice of such acceleration is given and as a result thereof the Substituted Property receivable upon exercise of Warrants does not include equity securities (as defined in Rule 3a11-1 under the Exchange Act or any successor provision); or

(ii) less than 5% of the Warrants issued on the Original Issue Date remain outstanding on the date such notice of acceleration is given.

In the event the date of expiration is accelerated by the Company pursuant to this Section 3.2(b), the term “Expiration Date” shall mean such accelerated date for all purposes of this Agreement.


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If the Company elects to accelerate the date of expiration of the Warrants pursuant to this Section 3.2(b), the Company shall, on a date at least 60 days prior to the designated date of expiration, give notice of such designated date to the Warrant Agent and the Warrantholders in accordance with the provisions of Section 11.1.

(c) Method of Exercise. In order to exercise all or any of the Warrants, the Warrantholder thereof must (i) in the case of a Certificated Warrant or a Direct Registration Warrant, deliver to the Warrant Agent at the Company Office an Exercise Notice to exercise such Warrants, setting forth the number of Warrants being exercised and, if applicable, whether Cashless Settlement is being elected with respect thereto and otherwise properly completed and duly executed by the Warrantholder thereof and, as applicable in the case of a Warrant Certificate, (x) deliver such Warrants by book-entry transfer by the Warrant Agent, or (y) at the Company Office, surrender to the Warrant Agent the Definitive Warrant Certificate evidencing such Warrants; (ii) pay to the Warrant Agent an amount equal to (x) all taxes required to be paid by the Warrantholder, if any, prior to, or concurrently with, exercise of such Warrants and (y) except in the case of Cashless Settlement, if applicable, the aggregate of the Exercise Price in respect of each Unit into which such Warrants are exercisable, in case of (x) and (y), by check or by wire transfer in immediately available funds, to the account of the Company at such banking institution as the Company shall have given notice to the Warrant Agent and such Warrantholder in accordance with Section 11.1(b), and (iii) execute and deliver to the Company and the Company’s office a joinder to the Operating Agreement (a “Joinder”) pursuant to which the Warrantholder (or subject to Section 2.4(b) and Section 3.3, such other Person as shall be designated by the Warrantholder to the registered holder of the Units issued upon exercise in such Exercise Notice (the Warrantholder or such other Person being referred to herein as the “Recipient”)) agrees that he, she or it will be deemed a Member and holder of Units for purposes of the Operating Agreement and as such, will have the rights, and be subject to all of the obligations, of such a Member and shall be bound by, and comply with the terms and conditions of, all provisions of the Operating Agreement.

(d) Partial Exercise. If fewer than all the Direct Registration Warrants registered in the name of the Warrantholder are exercised, the Warrant Agent shall promptly deliver to the Warrantholder of such Direct Registration Warrants a Warrant Statement reflecting the number or Warrants which were not exercised. If fewer than all the Certificated Warrants are exercised, such Warrant Certificate shall be surrendered and a new Warrant Certificate of the same tenor and for the number of Warrants which were not exercised shall be executed by the Company. The Warrant Agent shall countersign the new Warrant Certificate, registered in such name or names, subject to the provisions of Section 8 regarding registration of transfer and payment of governmental charges in respect thereof, as may be directed in writing by the Warrantholder, and shall deliver the new Warrant Certificate to the Person or Persons in whose name such new Warrant Certificate is so registered. The Company, whenever required by the Warrant Agent, will supply the Warrant Agent with Warrant Certificates duly executed on behalf of the Company for such purpose.

(e) Issuance of Units. Upon due exercise of Warrants in conformity with the foregoing provisions and payment of the Exercise Price in respect of the exercise of one or more Warrants evidenced thereby, the Warrant Agent shall, when such payment is received, deliver to the Company the Exercise Notice received pursuant to Section 3.2(c), deliver or deposit all funds


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received as instructed in writing by the Company and advise the Company by telephone at the end of such day of the amount of funds so deposited to its account. The Company shall thereupon, as promptly as practicable, and in any event within five Business Days after receipt by the Company of such Exercise Notice, (i) determine the number of Units issuable pursuant to exercise of such Warrants and (ii) deliver or cause to be delivered to the Recipient a certificate or certificates or, if Units in book-entry form, a Unit statement representing the aggregate number of Units issuable upon such exercise (based upon the aggregate number of Warrants so exercised), determined in accordance with Section 3.6, together with an amount in cash in lieu of any fractional unit(s), if the Company so elects pursuant to Section 5.2. The Units in book-entry form or certificate or certificates representing Units so delivered shall be, to the extent possible, in such denomination or denominations as such Warrantholder shall request in such Exercise Notice and shall be registered or otherwise placed in the name of, and delivered to, the Recipient and shall bear such legends with respect to restrictions on transfers as are set forth in the Operating Agreement.

(f) Time of Exercise. Each exercise of a Warrant shall be deemed to have been effected immediately prior to the close of business on the first day on which each of the requirements for exercise of such Warrant specified in Section 3.2(c) has occurred (the “Exercise Date”). On the Exercise Date, subject to Section 5.1(h)(iv), Units in book-entry form or certificates for the Units issuable upon such exercise as provided in Section 3.2(e) shall be deemed to have been issued and, for all purposes of this Agreement, the Recipient shall, as between such Person and the Company, be deemed to be and entitled to all rights of the holder or record of such Units.

3.3. Application of Funds Upon Exercise of Warrants. Any funds delivered to the Warrant Agent upon exercise of any Warrant(s) shall be held by the Warrant Agent in trust for the Company. The Warrant Agent shall promptly deliver and pay to or upon the written order of the Company all funds received by it upon the exercise of any Warrants by bank wire transfer to an account designated by the Company or as the Warrant Agent otherwise may be directed in writing by the Company.

3.4. Payment of Taxes. The Company shall pay any and all taxes (other than income taxes) that may be payable in respect of the issue or delivery of Units on exercise of Warrants pursuant hereto. The Company shall not be required, however, to pay any tax or other charge imposed in respect of any transfer involved in the issue and delivery of any Units in book-entry form, certificates for Units or payment of cash or other property to any Recipient other than the Warrantholder surrendered upon the exercise of a Warrant, and in case of such transfer or payment, the Warrant Agent and the Company shall not be required to issue or deliver any Units in book-entry form or any certificate or pay any cash until (a) such tax or charge has been paid or an amount sufficient for the payment thereof has been delivered to the Warrant Agent or the Company or (b) it has been established to the Company’s satisfaction that any such tax or other charge that is or may become due has been paid.

3.5. Surrender of Certificates. Any Warrant Certificate surrendered for exercise shall, if surrendered to the Company, be delivered to the Warrant Agent, and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not be reissued by the Company. The Warrant Agent shall destroy such


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cancelled Warrant Certificates and deliver its certificate of destruction to the Company, unless the Company shall otherwise direct.

3.6. Units Issuable. The number of Units “obtainable upon exercise” of Warrants at any time shall be the number of Units into which such Warrants are then exercisable. The number of Units “into which each Warrant is exercisable” shall be one Unit, subject to adjustment as provided in Section 5.1.

3.7. Cashless Exercise. Notwithstanding any provisions herein to the contrary, if the Current Market Price of one Unit is greater than the applicable Exercise Price on the Exercise Date, in lieu of paying to the Company the applicable Exercise Price by wire transfer in immediately available funds, the Warrantholder may elect to receive Units equal to the value (as determined below) of the Warrants (or the portion thereof being exercised) by expressly stating in its Exercise Notice that the Warrantholder desires to effect a “cashless exercise” (a “Cashless Exercise”) in which event the Company shall issue to the Warrantholder a number of Units computed using the following formula:

X = (Y (A-B)) ÷ A

where X = the number of Units to be issued to the Warrantholder

Y = the number of Units purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Units purchasable under this Warrant as to which this Warrant is being exercised (on the Exercise Date)

A = the applicable Current Market Price of one Unit (on the Exercise Date)

B = the applicable Exercise Price (as adjusted through and including the Exercise Date)

4. Dissolution, Liquidation or Winding up.

If, on or prior to the Expiration Date, the Company (or any other Person controlling the Company) shall propose a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, the Company shall give written notice thereof to the Warrant Agent and all Warrantholders in the manner provided in Section 11.2 prior to the date on which such transaction is expected to become effective or, if earlier, the record date for such transaction. Such notice shall also specify the date as of which the holders of record of the Units shall be entitled to exchange their Units for securities, money or other property deliverable upon such dissolution, liquidation or winding up, as the case may be, on which date each Warantholder shall receive the securities, money or other property which such Warrantholder would have been entitled to receive had such Warrantholder been the holder of record of the Units into which the Warrants were exercisable immediately prior to such dissolution, liquidation or winding up (net of the then applicable Exercise Price) and the rights to exercise the Warrants shall terminate.

In case of any such voluntary or involuntary dissolution, liquidation or winding up of the Company, the Company shall deposit with the Warrant Agent any funds or other property which


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the Warrantholders are entitled to receive under this Agreement, together with a Company Order as to the distribution thereof. After receipt of such deposit from the Company and if applicable, after receipt of surrendered Warrant Certificates evidencing Warrants, the Warrant Agent shall make payment in appropriate amount to such Person or Persons as it may be directed in writing by such Warrantholder. The Warrant Agent shall not be required to pay interest on any money deposited pursuant to the provisions of this Section 4 except such as it shall agree with the Company to pay thereon. Any moneys, securities or other property which at any time shall be deposited by the Company or on its behalf with the Warrant Agent pursuant to this Section 4 shall be, and are hereby, assigned, transferred and set over to the Warrant Agent in trust for the purpose for which such moneys, securities or other property shall have been deposited; provided that moneys, securities or other property need not be segregated from other funds, securities or other property held by the Warrant Agent except to the extent required by law.

5. Adjustments.

5.1. Adjustments. In order to prevent dilution of the rights granted under the Warrants and to grant the the Warrantholders certain additional rights, the Exercise Price shall be subject to adjustment from time to time as provided in this Section 5.1 and the number of Units obtainable upon exercise of Warrants shall be subject to adjustment from time to time as provided in this Section 5.1.

(a) Subdivisions and Combinations. In the event the Company shall, at any time or from time to time after the Original Issue Date while the Warrants remain outstanding and unexpired in whole or in part, effect a subdivision (by any unit split or otherwise) of the outstanding Units into a greater number of Units (other than (x) a subdivision upon a merger or consolidation or sale to which Section 5.1(j) applies or (y) a unit split effected by means of a transaction to which Section 5.1(b) applies), then and in each such event the Exercise Price in effect at the opening of business on the day after the date upon which such subdivision becomes effective shall be proportionately decreased. Conversely, if the Company shall, at any time or from time to time after the Original Issue Date while the Warrants remain outstanding and unexpired in whole or in part, effect a combination (by any reverse unit split or otherwise) of the outstanding Units into a smaller number of Units (other than a combination upon a merger or consolidation or sale to which Section 5.1(j) applies), then and in each such event the Exercise Price in effect at the opening of business on the day after the date upon which such combination becomes effective shall be proportionately increased. Any adjustment under this Section 5.1(a) shall become effective immediately after the opening of business on the day after the date upon which the subdivision or combination becomes effective.

(b) Unit Distributions. In the event the Company shall, at any time or from time to time after the Original Issue Date while the Warrants remain outstanding and unexpired in whole or in part, make or issue to the holders of its Units a dividend or distribution payable in, or otherwise make or issue a dividend or other distribution on any class of its capital securities payable in, Units (other than a dividend or distribution upon a merger or consolidation or sale to which Section 5.1(j) applies), then and in each such event the Exercise Price in effect at the opening of business on the day after the date for the determination of the holders of Units entitled to receive such dividend or distribution shall be decreased by multiplying such Exercise Price by a fraction (not to be greater than 1):


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(i) the numerator of which shall be the total number of Units issued and outstanding at the close of business on such date for determination; and

(ii) the denominator of which shall be the total number of Units issued and outstanding at the close of business on such date for determination plus the number of Units issuable in payment of such dividend or distribution.

Any adjustment under this Section 5.1(b) shall, subject to Section 5.1(h)(iv), become effective immediately after the opening of business on the day after the date for the determination of the holders of Units entitled to receive such dividend or distribution.

(c) Reclassifications. A reclassification of the Units (other than any such reclassification in connection with a merger or consolidation or sale to which Section 5.1(i) applies) into any other class of securities shall be deemed:

(i) a distribution by the Company to the holders of its Units of such units of such other class of capital securities for the purposes and within the meaning of Section 5.1(d) (and the effective date of such reclassification shall be deemed to be “the date for the determination of the holders of Units entitled to receive such dividend or distribution” for the purposes and within the meaning of Section 5.1(d)); and

(ii) if the outstanding Units shall be changed into a larger or smaller number of Units as a part of such reclassification, such change shall be deemed a subdivision or combination, as the case may be, of the outstanding Units for the purposes and within the meaning of Section 5.1(a) (and the effective date of such reclassification shall be deemed to be “the date upon which such subdivision becomes effective” or “the date upon which such combination becomes effective,” as applicable, for the purposes and within the meaning of Section 5.1(a)).

(d) Property Dividends. In the event the Company shall, at any time or from time to time after the Original Issue Date while the Warrants remain outstanding and unexpired in whole or in part, make or issue a dividend or distribution to holders of Units a Property Dividend (other than (x) a Receivable Dividend, a Received Dividend or an Excluded Dividend or (y) any dividend or distribution of any rights or warrants referred to in Section 5.1(f)), then and in each such event the Exercise Price in effect immediately prior to the close of business on the date for the determination of the holders of Units entitled to receive such dividend or distribution shall be decreased by multiplying such Exercise Price by a fraction (not to be greater than 1):

(i) the numerator of which shall be the Current Market Price per Unit on such date for determination minus the portion applicable to one Unit of the fair market value (as determined in good faith by the Board of Managers, whose determination shall be conclusive and evidenced by a Board Resolution filed with the Warrant Agent) of such Property Dividend so distributed; and

(ii) the denominator of which shall be such Current Market Price per Unit.


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Any adjustment under this Section 5.1(d) shall, subject to Section 5.1(h)(iv), become effective immediately prior to the opening of business on the day after the date for the determination of the holders of Units entitled to receive such dividend or distribution. If the Board of Managers determines the fair market value of any Property Dividend for purposes of this Section 5.1(d) by reference to the actual or when issued trading market for any securities comprising such Property Dividend, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price per Unit.

(e) Self-Tender Offers. In the event, at any time or from time to time after the Original Issue Date while the Warrants remain outstanding and unexpired in whole or in part, a Company Offer, other than a Excluded Company Offer, shall expire, then and in each such event the Exercise Price in effect immediately prior to the close of business on the date of the last time (the “Expiration Time”) tenders could have been made pursuant to such Company Offer shall be decreased by multiplying such Exercise Price by a fraction (not to be greater than 1):

(i) the numerator of which shall be equal to (A) the product of (1) the Current Market Price per Unit on the date of the Expiration Time and (2) the number of Units outstanding (including any tendered Units) on the Expiration Time less (B) the fair market value (as determined in good faith by the Board of Managers, whose determination shall be conclusive and evidenced by a Board Resolution filed with the Warrant Agent) of the aggregate consideration payable to unitholders based on the acceptance (up to any maximum specified in the terms of the Company Offer) of all Units validly tendered and not withdrawn as of the Expiration Time (the Units deemed so accepted, up to any maximum amount provided for in connection with such Company Offer, being referred to as the “Purchased Units”); and

(ii) the denominator of which shall be equal to the product of (A) the Current Market Price per Unit on the date of the Expiration Time and (B) the number of Units outstanding (including any tendered Units) on the Expiration Time less the number of Purchased Units.

Any adjustment under this Section 5.1(e) shall become effective immediately prior to the opening of business on the day after the Expiration Time.

(f) Distributions of Warrants. In the event the Company shall, at any time or from time to time after the Original Issue Date while the Warrants remain outstanding and unexpired in whole or in part, make or issue a dividend or distribution to all holders of its Units of any warrants or other rights to subscribe for or purchase any Units (other than (x) a Received Dividend or a Receivable Dividend or (y) a distribution of such warrants or rights upon a merger or consolidation or sale to which Section 5.1(j) applies), whether or not the rights to subscribe or purchase thereunder are immediately exercisable, and the consideration per Unit for which Units may at any time thereafter be issuable pursuant to such warrants or other rights shall be less than the Current Market Price per Unit on the date fixed for determination of the holders of Units entitled to receive such dividend or distribution, then and in each such event the Exercise Price at the opening of business on the day after such date for determination shall be decreased by multiplying such Exercise Price by a fraction (not to be greater than 1):


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(i) the numerator of which shall be the number of Units outstanding at the close of business on such date for determination plus the number of Units that the minimum consideration received and receivable by the Company for the issuance of such maximum number of Units pursuant to the terms of such warrants or other rights would purchase at such Current Market Price; and

(ii) the denominator of which shall be the number of Units outstanding at the close of business on such date for determination plus the maximum number of Units issuable pursuant to all such warrants or other rights.

Any adjustment under this Section 5.1(f) shall, subject to Section 5.1(h)(iv), become effective immediately after the opening of business on the day after the date for the determination of the holders of Units entitled to receive such dividend or distribution.

Rights or warrants issued by the Company to all holders of its Units entitling the holders thereof to subscribe for or purchase Units, which rights or warrants (A) are deemed to be transferred with such Units, (B) are not exercisable and (C) are also issued in respect of future issuances of Units, in each case in clauses (A) through (C) until the occurrence of a specified event or events (“Trigger Event”), shall for purposes of this Section 5.1(f) and Section 5.1(d) not be deemed distributed until the occurrence of the earliest Trigger Event.

(g) Superseding Adjustment. In the event at any time after any adjustment of the number of Units into which each Warrant is exercisable shall have been made pursuant to Section 5.1(f) on the basis of the distribution of warrants or other rights or after any new adjustment of the number of Units into which each Warrant is exercisable shall have been made pursuant to this Section 5.1(g), such warrants or rights shall expire, and all or a portion of such warrants or rights shall not have been exercised, then, and in each such case, upon the election of the Company by written notice to the Warrant Agent, such previous adjustment in respect of such warrants or rights which have expired without exercise shall be rescinded and annulled as to any then outstanding Warrants, and the Units that were deemed for purposes of the computations set forth in Section 5.1(f) to have been issued by virtue of such adjustment in respect of such warrants or rights shall no longer be deemed to have been issued.

(h) Other Provisions Applicable to Adjustments. The following provisions shall be applicable to the making of adjustments to the Exercise Price and the number of Units into which each Warrant is exercisable under this Section 5.1:

(i) Treasury Units. The dividend or distribution of any issued Units owned or held by or for the account of the Company shall be deemed a dividend or distribution of Units for purposes of this Section 5.1. The Company shall not make or issue any dividend or distribution on Units held in the treasury of the Company. For the purposes of this Section 5.1, the number of Units at any time outstanding shall not include Units held in the treasury of the Company but shall include Units issuable in respect of scrip certificates issued in lieu of fractions of Units.

(ii) When Adjustments Are to be Made. The adjustments required by Sections 5.1(a), 5.1(b), 5.1(c), 5.1(d), 5.1(e) and 5.1(f) shall be made whenever and as


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often as any specified event requiring an adjustment shall occur, except that no adjustment of the Exercise Price that would otherwise be required shall be made unless and until such adjustment either by itself or with other adjustments not previously made increases or decreases the Exercise Price immediately prior to the making of such adjustment by at least 1%. Any adjustment representing a change of less than such minimum amount (except as aforesaid) shall be carried forward and made as soon as such adjustment, together with other adjustments required by Sections 5.1(a), 5.1(b), 5.1(c), 5.1(d), 5.1(e) and 5.1(f) and not previously made, would result in such minimum adjustment.

(iii) Fractional Interests. In computing adjustments under this Section 5, fractional interests in Units shall be taken into account to the nearest one-thousandth of a Unit.

(iv) Deferral Of Issuance Upon Exercise. In any case in which Sections 5.1(b), 5.1(d) or 5.1(f) shall require that a decrease in the Exercise Price be made effective prior to the occurrence of a specified event and any Warrant is exercised after the time at which the adjustment became effective but prior to the occurrence of such specified event and, in connection therewith, Section 5.1(i) shall require a corresponding increase in the number of Units into which each Warrant is exercisable, the Company may elect to defer until the occurrence of such specified event (A) the issuance to the Warrantholder (or other Person entitled thereto) of, and the registration of such Warrantholder (or other Person) as the record holder of, the Units over and above the Units issuable upon such exercise on the basis of the number of Units obtainable upon exercise of such Warrant immediately prior to such adjustment and to require payment in respect of such number of Units the issuance of which is not deferred on the basis of the Exercise Price in effect immediately prior to such adjustment and (B) the corresponding reduction in the Exercise Price; provided, however, that the Company shall deliver to such Warrantholder or other Person a due bill or other appropriate instrument that meet any applicable requirements of the principal national securities exchange or other market on which the Units are then traded, if applicable, and evidences the right of such Warrantholder or other Person to receive, and to become the record holder of, such additional Units, upon the occurrence of such specified event requiring such adjustment (without payment of any additional Exercise Price in respect of such additional Units).

(i) Adjustment to Units Obtainable Upon Exercise. Whenever the Exercise Price is adjusted as provided in this Section 5.1, the number of Units into which a Warrant is exercisable shall simultaneously be adjusted by multiplying such number of Units into which a Warrant is exercisable immediately prior to such adjustment by a fraction, the numerator of which shall be the Exercise Price immediately prior to such adjustment, and the denominator of which shall be the Exercise Price immediately thereafter.

(j) Changes in Units. In case at any time or from time to time after the Original Issue Date while the Warrants remain outstanding and unexpired in whole or in part, the Company shall be a party to or shall otherwise engage in any transaction or series of related transactions constituting:


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(i) a merger of the Company into, a consolidation of the Company with, or a sale of all or substantially all of the Company’s assets to, any other Person (a “Non-Surviving Transaction”), or

(ii) any merger of another Person into the Company in which the previously outstanding Units shall be cancelled, reclassified or converted or changed into or exchanged for securities of the Company or other property (including cash) or any combination of the foregoing (a “Surviving Transaction”; any Non-Surviving Transaction or Surviving Transaction being herein called a “Transaction”),

then, as a condition to the consummation of such Transaction, the Company shall (or, in the case of any Non-Surviving Transaction, the Company shall cause such other Person to) execute and deliver to the Warrant Agent a written instrument providing that:

(x) so long as any Warrant remains outstanding on such terms and subject to such conditions as shall be as nearly equivalent as may be practicable to the provisions set forth in this Agreement, each Warrant, upon the exercise thereof at any time on or after the consummation of such Transaction, shall be exercisable into, in lieu of the Units issuable upon such exercise prior to such consummation, only the securities or other property (“Substituted Property”) that would have been receivable upon such Transaction by a holder of the number of Units into which such Warrant was exercisable immediately prior to such Transaction, assuming such holder of Units:

(A) is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (“Constituent Person”), or an Affiliate of a Constituent Person; and

(B) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Transaction (provided that if the kind or amount of securities, cash and other property receivable upon such Transaction is not the same for each Unit held immediately prior to such Transaction by other than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised (“Non-Electing Unit”), then, for the purposes of this Section 5.1(j), the kind and amount of securities, cash and other property receivable upon such Transaction by each Non-Electing Unit shall be deemed to be the kind and amount so receivable per Unit by a plurality of the Non-Electing Units); and

(y) the rights and obligations of the Company (or, in the event of a Non-Surviving Transaction, such other Person) and the Warrantholders in respect of Substituted Property shall be as nearly equivalent as may be practicable to the rights and obligations of the Company and Holders in respect of Units hereunder as set forth in Section 3.1 hereof and elsewhere herein.

Such written instrument shall provide for adjustments which, for events subsequent to the effective date of such written instrument, shall be as nearly equivalent as may be practicable to


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the adjustments provided for in this Section 5. The above provisions of this Section 5.1(j) shall similarly apply to successive Transactions.

(k) Compliance with Governmental Requirements. Before taking any action that would cause an adjustment reducing the Exercise Price below the then par value of any of the Units into which the Warrants are exercisable, the Company will take any action that may be necessary in order that the Company may validly and legally issue fully paid and non-assessable Units at such adjusted Exercise Price.

(l) Optional Tax Adjustment. The Company may at its option, at any time during the term of the Warrants, increase the number of Units into which each Warrant is exercisable, or decrease the Exercise Price, in addition to those changes required by Sections 5.1(a), 5.1(b), 5.1(c), 5.1(d), 5.1(e) or 5.1(f), as deemed advisable by the Board of Managers of the Company, in order that any event treated for Federal income tax purposes as a dividend of units or unit rights shall not be taxable to the recipients.

(m) Warrants Deemed Exercisable. For purposes solely of this Section 5, the number of Units which the Warrantholder would have been entitled to receive had such Warrant been exercised in full at any time or into which any Warrant was exercisable at any time shall be determined assuming such Warrant was exercisable in full at such time, although such Warrant may not be exercisable in full at such time pursuant to Section 3.2(a).

(n) Notice of Adjustment. Upon the occurrence of each adjustment of the Exercise Price or the number of Units into which a Warrant is exercisable pursuant to this Section 5.1, the Company at its expense shall promptly:

(i) compute such adjustment in accordance with the terms hereof;

(ii) after such adjustment becomes effective, deliver to all Holders in accordance with Section 11.1(b) a notice setting forth such adjustment (including the kind and amount of securities, cash or other property for which the Warrants shall be exercisable and the Exercise Price) and showing in detail the facts upon which such adjustment is based; and

(iii) deliver to the Warrant Agent a certificate of the Treasurer of the Company setting forth the Exercise Price and the number of Units into which each Warrant is exercisable after such adjustment and setting forth a brief statement of the facts requiring such adjustment and the computation by which such adjustment was made (including a description of the basis on which the Current Market Price of the Units or the fair market value of any evidences of indebtedness, units, securities, cash or other assets or consideration used in the computation was determined). As provided in Section 10.1, the Warrant Agent shall be entitled to rely on such certificate and shall be under no duty or responsibility with respect to any such certificate, except to exhibit the same from time to time to any Holder desiring an inspection thereof during reasonable business hours.

(o) Statement on Warrant Certificates. Irrespective of any adjustment in the Exercise Price or amount or kind of securities into which the Warrants are exercisable, Warrant Certificates theretofore or thereafter issued may continue to express the same Exercise Price


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initially applicable or amount or kind of units initially issuable upon exercise of the Warrants evidenced thereby pursuant to this Agreement.

(p) Certain Actions During Specified Period. During any Specified Period, the Company shall not combine its outstanding Units into a smaller number of Units, effect a reclassification of its Units or effect any Transaction.

(q) Certain Actions Respecting Received Cash Dividends. If the Company shall have given notice to the Warrant Agent of its intention to treat a distribution as a Received Dividend hereunder, the Company shall not permit the date for the determination of holders of Units entitled to receive any other dividend or distribution referred to in Sections 5.1(b) or 5.1(d) or to receive any rights, options or warrants referred to in Section 5.1(f), the date of any Expiration Time referred to in Section 5.1(e), the effective date of any subdivision or combination referred to in Section 5.1(a) or the date of consummation of any Transaction to be the same date as the date which is, or is the day before, the date for determination of holders of Units entitled to receive such Received Dividend.

5.2. Fractional Interest. The Company shall not be required upon the exercise of this Warrant to issue any fractional Units, but may, in lieu of issuing any fractional Units make an adjustment therefore in cash on the basis of the Current Market Price per Unit on the date of such exercise. If Warrant Certificates evidencing more than one Warrant shall be presented for exercise at the same time by the same Holder, the number of full Units which shall be issuable upon such exercise thereof shall be computed on the basis of the aggregate number of Warrants so to be exercised. The Warrantholders, by their acceptance of the Warrant Certificates, expressly waive their right to receive any fraction of a Unit or a unit certificate representing a fraction of a Unit if such amount of cash is paid in lieu thereof.

6. Loss or Mutilation.

If (a) any mutilated Warrant Certificate is surrendered to the Warrant Agent or (b) both (i) there shall be delivered to the Company and the Warrant Agent (A) a claim by a Warrantholder as to the destruction, loss or wrongful taking of any Warrant Certificate of such Warrantholder and a request thereby for a new replacement Warrant Certificate, and (B) such indemnity bond as may be required by them to save each of them and any agent of either of them harmless and (ii) such other reasonable requirements as may be imposed by the Company as permitted by Section 8-405 of the Uniform Commercial Code have been satisfied, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate has been acquired by a “protected purchaser” within the meaning of Section 8-405 of the Uniform Commercial Code, the Company shall execute and upon its written request the Warrant Agent shall countersign and deliver to the registered Holder of the lost, wrongfully taken, destroyed or mutilated Warrant Certificate, in exchange therefore or in lieu thereof, a new Warrant Certificate of the same tenor and for a like aggregate number of Warrants. At the written request of such registered Holder, the new Warrant Certificate so issued shall be retained by the Warrant Agent as having been surrendered for exercise, in lieu of delivery thereof to such Warrantholder, and shall be deemed for purposes of Section 3.2 to have been surrendered for exercise on the date the conditions specified in clauses (a) or (b) of the preceding sentence were first satisfied.


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Upon the issuance of any new Warrant Certificate under this Section 6, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and other expenses (including the fees and expenses of the Warrant Agent and of counsel to the Company) in connection therewith.

Every new Warrant Certificate executed and delivered pursuant to this Section 6 in lieu of any lost, wrongfully taken or destroyed Warrant Certificate shall constitute an additional contractual obligation of the Company, whether or not the allegedly lost, wrongfully taken or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered hereunder.

The provisions of this Section 6 are exclusive and shall preclude (to the extent lawful) all other rights or remedies with respect to the replacement of mutilated, lost, wrongfully taken, or destroyed Warrant Certificates.

7. Authorization of Units.

The Company covenants that all Units issuable upon exercise of the Warrants will, upon issuance, be duly and validly issued and will be free of restrictions on transfer, other than as specified in Section 3.2(c) or the Operating Agreement, and will be free from all taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously or otherwise specified herein or in connection with a Cashless Exercise). The Company shall take all such actions as may be necessary to ensure that all such Units may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic stock exchange upon which Units may be listed (except for official notice of issuance, if applicable, which shall be immediately delivered by the Company upon each such issuance); provided that compliance with the foregoing shall not require the Company to register (i) itself, (ii) any Units, or (iii) the resale of any Units, in each case with the United States Securities and Exchange Commission or any state securities regulator. The Company covenants that the unit certificates issued to evidence any Units issued upon exercise of Warrants will comply with the Delaware Limited Liability Company Act and any other applicable law.

The Company hereby authorizes and directs its current and future transfer agents for the Units at all times to reserve unit certificates for such number of Units as shall be requisite for such purpose.

8. Warrant Transfer Books.

The Warrant Agent will maintain an office (the “Company Office”) in the United States of America, where Certificated Warrants may be surrendered for registration of transfer or exchange or written requests for transfer or exchange of Direct Registration Warrants may be delivered in accordance with this Section 8, and notices of exercise may be delivered and where Warrant Certificates may be surrendered for exercise of Warrants evidenced thereby, which office is 1345 Avenue of the Americas, New York, NY 10105 on the Original Issuance Date. The Warrant Agent will give prompt written notice to all Warrantholders of any change in the location of such office.


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Each Certificated Warrant and Direct Registration Warrant shall be issued in registered form only. The Company shall cause to be kept at the office of the Warrant Agent designated for such purpose a warrant register (the “Warrant Register”) in which, subject to such reasonable regulations as the Warrant Agent may prescribe and such regulations as may be prescribed by law, the Company shall provide for the registration in the Warrant Register such respective Warrants in the names of the initial Persons entitled thereto, and issue upon issuance and deliver (and, in the case of Certificated Warrants, countersign such Warrant Certificates evidencing) such respective Warants to the respective Persons entitled thereto, and of transfers or exchanges of Warrant Certificates as herein provided.

Upon surrender for registration of transfer of any Certificated Warrant at the Company Office, or delivery at the Company Office of a written request of a Warrantholder of Direct Registration Warrants for registration of transfer thereof, the Warrant Agent shall register in the Warrant Register and shall issue and deliver (and, in the case of Certificated Warrants, countersign (by manual or facsimilar signature) Warrant Certificates evidencing) in the name of the designated transferee or transferees, one or more new Certificated Warrants or Direct Registration Warrants evidencing a like aggregate number of Warrants and of the same Series and, in the case of Direct Registration Warrants, shall promptly deliver a Warrant Statement to such designated transferee or transferees.

At the option of the Warrantholder, Certificated Warrants or Direct Registration Warrants may be exchanged at the Company Office upon payment of the charges hereinafter provided for a like aggregate number of Direct Registration Warrants or Certificated Warrants. Whenever any Certificated Warrants are so surrendered for exchange, or a written request for exchange of Direct Registration Warrants is delivered, in each case at the Company Office, the Warrant Agent shall register in the Warrant Register and issue and deliver (and, in the case of Certificated Warrants, countersign (by manual or facsimile signature) Warrant Certificates evidencing) in the name of the Warrantholder making the exchange one or more new Certificated Warrants or Direct Registration Warrants evidencing the same aggregate number of Warrants and, in the case of Direct Registration Warrants, shall promptly deliver a Warrant Statement to such Warrantholder. Whenever any Certificated Warrants or Direct Registration Warrants are so surrendered for exchange, the Company shall execute, and the Warrant Agent shall issue and deliver (and, in the case of Certificated Warrants, countersign Warrant Certificates evidencing) Warrants of the same tenor and evidencing the same number of Warrants as evidenced by the Warrant Certificates or Warrant Statements surrendered by the Warrantholder making the exchange.

All Certificated Warrants or Direct Registration Warrants issued upon any registration of transfer or exchange of, or in lieu of, Certificated Warrants or Direct Registration Warrants, shall be the valid obligations of the Company, evidencing the same obligations, and entitled to the same benefits under this Agreement, as the Certificated Warrants surrendered for such registration of transfer or exchange or substitution or Direct Registration Warrants as to which written requests for transfer or exchange were delivered.

Every Warrant Certificate surrendered for registration of transfer or exchange shall (if so required by the Company or the Warrant Agent) be duly endorsed, or be accompanied by a


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written instrument of transfer in form satisfactory to the Company and the Warrant Agent, duly executed by the Warrantholder thereof or his attorney duly authorized in writing.

No service charge shall be made for any registration of transfer or exchange of Warrants; provided, however, the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Warrants.

The Warrant Agent shall, upon request of the Company from time to time, deliver to the Company such reports of registered ownership of the Warrants and such records of transactions with respect to the Warrants and the Units as the Company may request. The Warrant Agent shall also make available to the Company for inspection by the Company’s agents or employees, from time to time as the Company may request, such original books of accounts and records maintained by the Warrant Agent in connection with the issuance and exercise of Warrants hereunder, such inspections to occur at the Company Office during normal business hours.

The Warrant Agent shall keep copies of this Agreement and any notices given to Warrantholders hereunder available for inspection by the Warrantholders during normal business hours at the Company Office. The Company shall supply the Warrant Agent from time to time with (i) such numbers of duly executed Warrant Certificates for purposes of effecting issuance of Certificated Warrants upon transfer or exchange of Warrants and (ii) such numbers of copies of this Agreement as the Warrant Agency may request.

9. Warrant Holders.

9.1. No Voting or Dividend Rights. Subject to the provisions of Sections 5.1 and 11.2 hereof and except as may be specifically provided for herein, until the exercise of any Warrant:

(i) no Warrantholder shall have or exercise any rights by virtue hereof as a holder of Units of the Company, including, without limitation, the right to vote, to receive dividends and other distributions as a holder of Units or to receive notice of, or attend, meetings or any other proceedings of the holders of Units;

(ii) the consent of any such Warrantholder shall not be required with respect to any action or proceeding of the Company;

(iii) except with respect to any Received Dividend or as provided in Section 4, no such Warrantholder, by reason of the ownership or possession of a Warrant or a Warrant Certificate representing the same, shall have any right to receive any cash dividends, unit dividends, allotments or rights or other distributions paid, allotted or distributed or distributable to the holders of Units prior to, or for which the relevant record date preceded, the date of the exercise of such Warrant; and

(iv) no such Warrantholder shall have any right not expressly conferred hereunder or under, or by applicable law with respect to, any Warrants held by such Warrantholder.


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9.2. Rights of Action. All rights of action against the Company in respect of this Agreement, except rights of action vested in the Warrant Agent, are vested in the Warrantholders, and any Warrantholder, without the consent of the Warrant Agent or the other Warrantholders, may, in such Warrantholder’s own behalf and for such Warrantholder’s own benefit, enforce and may institute and maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, such Warrantholder’s right to exercise such Warrantholder’s Warrants in the manner provided in this Agreement.

9.3. Treatment of Warrantholders. Every Warrantholder, by accepting the same, consents and agrees with the Company, with the Warrant Agent and with every subsequent Warantholder that, prior to due presentment of a Warrant Certificate for registration of transfer of the Certificated Warrants evidenced thereby or delivery of a written request for registration of transfer of a Direct Registration Warrant, the Company, the Warrant Agent, and any agent of the Company or the Warrant Agent may treat the Person in whose name such Warrant is registered as the owner thereof for all purposes (notwithstanding any notation of ownership or other writing thereon made by anyone other than the Company or the Warrant Agent) and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary or be bound to recognize any equitable or other claim to or interest in any Warrant on the part of any other Person and shall not be liable for any registration of transfer of Warrants that are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary unless made with actual knowledge that a fiduciary or nominee is committing a breach of trust in requesting such registration of transfer or with such knowledge of such facts that its participation therein amounts to bad faith.

9.4. Communications to Holders.

(a) If any Warrantholder applies in writing to the Warrant Agent and such application states that the applicant desires to communicate with other Holders with respect to its rights under this Warrant Agreement or under the Warrants, then the Warrant Agent shall, within five Business Days after the receipt of such application, and upon payment to the Warrant Agent by such applicant of the reasonable expenses of preparing such list, provide to such applicant a list of the names and addresses of all Holders of Warrant Certificates as of the most recent practicable date.

(b) Every Warrantholder, by receiving and holding the same, agrees with the Company and the Warrant Agent that neither the Company nor the Warrant Agent nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Warrantholders in accordance with Section 9.4(a).

10. Concerning the Warrant Agent.

10.1. Nature of Duties and Responsibilities Assumed. The Company hereby appoints the Warrant Agent to act as agent of the Company in accordance with the instructions set forth in this Agreement. The Warrant Agent hereby accepts the appointment as agent of the Company and agrees to perform that agency upon the terms and conditions set forth in this Agreement or as the Company and the Warrant Agent may hereafter agree, by all of which the Company and the Warrantholders, by their acceptance thereof, shall be bound; provided, however, that the


27

terms and conditions contained in the Warrant Certificates are subject to and governed by this Agreement or any other terms and conditions hereafter agreed to by the Company and the Warrant Agent.

The Warrant Agent shall act hereunder solely as agent and not in a ministerial or fiduciary capacity, and its duties shall be determined solely by the provisions hereof. The duties and obligations of the Warrant Agent shall be determined solely by the express provisions of the Agreement (or, in the case of Warrantholders of Certificated Warrants, of the Warrant Certificates), and the Warrant Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Agreement (or, in the case of Warrantholders of Certificated Warrants, in the Warrant Certificates). No implied covenants or obligations shall be read into the Agreement against the Warrant Agent. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in good faith in connection with this Agreement except for its own gross negligence, willful misconduct or bad faith.

The Warrant Agent shall not, by countersigning Warrant Certificates or by any other act hereunder, be deemed to make any representations as to validity or authorization of (i) the Warrants or the Warrant Certificates (except as to its countersignature thereon), (ii) any securities or other property delivered upon exercise of any Warrant, (iii) the accuracy of the computation of the number or kind or amount of units or other securities or other property deliverable upon exercise of any Warrant, (iv) the independence of any Independent Financial Expert or (v) the correctness of any of the representations of the Company made in such certificates that the Warrant Agent receives. The Warrant Agent shall not at any time have any duty to calculate or determine whether any facts exist that may require any adjustments pursuant to Section 5 hereof with respect to the kind and amount of Units or other securities or any property issuable to Holders upon the exercise of Warrants required from time to time. The Warrant Agent shall have no duty or responsibility to determine the accuracy or correctness of such calculation or with respect to the methods employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any Units or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or upon any adjustment pursuant to Section 5 hereof, and it makes no representation with respect thereto. The Warrant Agent shall not be responsible for any failure of the Company to make any cash payment or to issue, transfer or deliver any Units or unit certificates or other securities or property upon the surrender of any Warrant Certificate for the purpose of exercise or upon any adjustment pursuant to Section 5 hereof or to comply with any of the covenants of the Company contained in Section 5 hereof.

The Warrant Agent shall not (i) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith on the belief that any Warrant Certificate or any other documents or any signatures are genuine or properly authorized, (ii) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in the Warrant Certificates or (iii) be liable for any act or omission in connection with this Agreement except for its own gross negligence, bad faith or willful misconduct.

The Warrant Agent is hereby authorized to accept and protected in accepting instructions with respect to the performance of its duties hereunder by Company Order and to apply to any


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such officer named in such Company Order for instructions (which instructions will be promptly given in writing when requested), and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions in any Company Order.

The Warrant Agent may execute and exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided, however, reasonable care has been exercised in the selection and in the continued employment of any such attorney, agent or employee. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may consider proper, whether with or without such indemnity. The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against it arising out of or in connection with this Agreement.

The Company shall perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further acts, instruments and assurances as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.

The Warrant Agent shall act solely as agent of the Company hereunder and does not assume any obligation or relationship of agency or trust for or with any of the Holders or any beneficial owners of Warrants. The Warrant Agent shall not be liable except for the failure to perform such duties as are specifically set forth herein or specifically set forth in the Warrant Certificates, and no implied covenants or obligations shall be read into this Agreement against the Warrant Agent whose duties and obligations shall be determined solely by the express provisions hereof or the express provisions of the Warrant Certificates.

10.2. Right to Consult Counsel. The Warrant Agent may at any time consult with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Holder for any action taken, suffered or omitted by it in good faith in accordance with the opinion or advice of such counsel.

10.3. Compensation, Reimbursement and Indemnification. The Company agrees to pay the Warrant Agent from time to time compensation for all fees and expenses relating to its services hereunder as the Company and the Warrant Agent may agree from time to time and to reimburse the Warrant Agent for reasonable expenses and disbursements, including reasonable counsel fees incurred in connection with the execution and administration of this Agreement. The Company further agrees to indemnify the Warrant Agent for and save it harmless against any losses, liabilities or reasonable expenses arising out of or in connection with the acceptance and administration of this Agreement, including the reasonable costs, legal fees and expenses of investigating or defending any claim of such liability, except that the Company shall have no liability hereunder to the extent that any such loss, liability or expense results from the Warrant Agent’s own gross negligence, bad faith or willful misconduct.


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10.4. Warrant Agent May Hold Company Securities. The Warrant Agent, any Countersigning Agent and any stockholder, director, officer or employee of the Warrant Agent or any Countersigning Agent may buy, sell or deal in any of the warrants or other securities of the Company or its Affiliates, become pecuniarily interested in transactions in which the Company or its Affiliates may be interested, contract with or lend money to the Company or its Affiliates or otherwise act as fully and freely as though it were not the Warrant Agent or the Countersigning Agent, respectively, under this Agreement. Nothing herein shall preclude the Warrant Agent or any Countersigning Agent from acting in any other capacity for the Company or for any other legal entity.

10.5. Resignation and Removal; Appointment of Successor.

(a) The Warrant Agent may resign its duties and be discharged from all further duties and liability hereunder (except liability arising as a result of the Warrant Agent’s own gross negligence or willful misconduct) after giving 30 days’ prior written notice to the Company. The Company may remove the Warrant Agent upon 30 days’ written notice, and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. The Warrant Agent shall, at the expense of the Company, cause notice to be given in accordance with Section 11.1(b) to each Warrantholder of said notice of resignation or notice of removal, as the case may be. Upon such resignation or removal, the Company shall appoint in writing a new Warrant Agent. If the Company shall fail to make such appointment within a period of 30 calendar days after it has been notified in writing of such resignation by the resigning Warrant Agent or after such removal, then the Holder of any Warrant Certificate may apply to any court of competent jurisdiction for the appointment of a new Warrant Agent. The combined capital and surplus of any such new Warrant Agent shall be deemed to be the combined capital and surplus as set forth in the most recent annual report of its condition published by such Warrant Agent prior to its appointment, provided, however, such reports are published at least annually pursuant to law or to the requirements of a Federal or state supervising or examining authority. After acceptance in writing of such appointment by the new Warrant Agent, it shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be reasonably necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the reasonable expense of the Company and shall be legally and validly executed and delivered by the resigning or removed Warrant Agent. Not later than the effective date of any such appointment, the Company shall file notice thereof with the resigning or removed Warrant Agent. Failure to give any notice provided for in this Section 10.5(a), however, or any defect therein, shall not affect the legality or validity of the resignation of the Warrant Agent or the appointment of a new Warrant Agent as the case may be.

(b) Any corporation into which the Warrant Agent or any new Warrant Agent may be merged, or any corporation resulting from any consolidation to which the Warrant Agent or any new Warrant Agent shall be a party, shall be a successor Warrant Agent under this Agreement without any further act, provided that such corporation would be eligible for appointment as successor to the Warrant Agent under the provisions of Section 10.5(a). Any such successor Warrant Agent shall promptly cause notice of its succession as Warrant Agent to


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be given in accordance with Section 11.1(b) to each Warrantholder at such Warrantholder’s last address as shown on the Warrant Register.

10.6. Appointment of Countersigning Agent.

(a) The Warrant Agent may appoint a Countersigning Agent or Agents which shall be authorized to act on behalf of the Warrant Agent to countersign Warrant Certificates issued upon original issue and upon exchange, registration of transfer or pursuant to Section 6, and Warrant Certificates so countersigned shall be entitled to the benefits of this Warrant Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered hereunder. Wherever reference is made in this Warrant Agreement to the countersignature and delivery of Warrant Certificates by the Warrant Agent or to Warrant Certificates countersigned by the Warrant Agent, such reference shall be deemed to include countersignature and delivery on behalf of the Warrant Agent by a Countersigning Agent and Warrant Certificates countersigned by a Countersigning Agent. Each Countersigning Agent shall be acceptable to the Company.

(b) Any corporation into which a Countersigning Agent may be merged or any corporation resulting from any consolidation to which such Countersigning Agent shall be a party, shall be a successor Countersigning Agent without any further act, provided that such corporation would be eligible for appointment as a new Countersigning Agent under the provisions of Section 10.6(a), without the execution or filing of any paper or any further act on the part of the Warrant Agent or the Countersigning Agent. Any such successor Countersigning Agent shall promptly cause notice of its succession as Countersigning Agent to be given in accordance with Section 11.1(b) to each Warrantholder at such Warrantholder’s last address as shown on the Warrant Register.

(c) A Countersigning Agent may resign at any time by giving 30 days’ prior written notice thereof to the Warrant Agent and to the Company. The Warrant Agent may at any time terminate the agency of a Countersigning Agent by giving 30 days’ prior written notice thereof to such Countersigning Agent and to the Company.

(d) The Warrant Agent agrees to pay to each Countersigning Agent from time to time reasonable compensation for its services under this Section and the Warrant Agent shall be entitled to be reimbursed for such payments, subject to the provisions of Section 10.3.

(e) Any Countersigning Agent shall have the same rights and immunities as those of the Warrant Agent set forth in Section 10.1.

11. Notices.

11.1. Notices Generally.

(a) Any request, notice, direction, authorization, consent, waiver, demand or other communication permitted or authorized by this Agreement to be made upon, given or delivered to the Company or the Warrant Agent by the other party hereto or by any Holder shall be sufficient for every purpose hereunder if in writing (including by facsimile) and faxed or delivered by hand (including by courier service) as follows:


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If to the Company, to it at:

Elk Petroleum Aneth, LLC1345 Avenue of the AmericasNew York, New York 10105Attention: Robyn KeeganFax: (212) 969-1356

or

If to the Warrant Agent, to it at:

Elk Petroleum Aneth, LLC1345 Avenue of the AmericasNew York, New York 10105Attention: Robyn KeeganFax: (212) 969-1356

or, in either case, such other address as shall have been set forth in a notice delivered in accordance with this Section 11.1(a).

All such communications shall, when so faxed or delivered by hand, be effective when faxed with confirmation of receipt or received by the addressee, respectively.

Any Person that faxes any communication hereunder to any Person shall, on the same date as such facsimile is transmitted, also send, by first class mail, postage prepaid and addressed to such Person as specified above, an original copy of the communication so transmitted.

(b) Where this Agreement provides for notice to Holders of any event, or delivery of any information or documents to Holders, such notice or delivery shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder, at the address of such Warrantholder as it appears in the Warrant Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice or the making of such delivery. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.

In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made by a method approved by the Warrant Agent as one which would be most reliable under the circumstances for successfully delivering the notice to the addressees shall constitute a sufficient notification for every purpose hereunder.

11.2. Required Notices to Holders. In the event the Company shall propose:


32

(i) to make or issue any dividend or other distribution to holders of Units of any units, other securities, cash, assets or property or of any rights to subscribe for or purchase any units of any class or any other securities, rights or options; or

(ii) to effect any Transaction; or

(iii) to effect the voluntary or involuntary dissolution, liquidation or winding-up of the Company; or

(iv) to effect any reclassification of its Units; or

(v) to commence a Company Offer for all or a portion of the outstanding Units (or shall amend any such Company Offer),

then, and in each such case, the Company shall cause to be filed with the Warrant Agent and shall give to each Warrantholder, in accordance with Section 11.1(b), a notice of such proposed action. Such notice shall specify (x) the date on which a record is to be taken for the purposes of such dividend or distribution; (y) the date on which such reclassification, Transaction, liquidation, dissolution or winding up is expected to become effective and the date as of which it is expected that holders of Units of record shall be entitled to exchange their Units for securities, cash or other property deliverable upon such reclassification, Transaction, liquidation, dissolution or winding up; or (z) the date on which such tender offer commenced, the date on which such tender offer is scheduled to expire unless extended, the consideration offered and the other material terms thereof (or the material terms of any amendment thereto). Such notice shall be given, in the case of any action covered by clause (i) above, at least 10 days prior to the record date for determining holders of the Units for purposes of such action or, in the case of any action covered by clauses (ii) through (v) above, at least 20 days prior to the applicable effective or expiration date specified above or, in any such case, prior to such earlier time as notice thereof shall be required to be given pursuant to Rule l0b-17 under the Exchange Act.

If at any time the Company shall cancel any of the proposed transactions for which notice has been given under this Section 11.2 prior to the consummation thereof, the Company shall give each Holder prompt notice of such cancellation in accordance with Section 11.1(b) hereof.

12. Inspection.

The Warrant Agent shall cause a copy of this Agreement to be available at all reasonable times at the office of the Warrant Agent for inspection by the Holder of any Warrant Certificate. The Warrant Agent may require such Warrantholder to submit his Warrant Certificate for inspection by it.

13. Amendments.

The Company and the Warrant Agent may, without the consent or concurrence of the Holders of the Warrant Certificates, by supplemental agreement or otherwise, amend this Agreement for the purpose of making any changes or corrections in this Agreement that (i) are required to cure any ambiguity or to correct or supplement any defective or inconsistent provision or clerical omission or mistake or manifest error herein contained or (ii) add to the


33

covenants and agreements of the Company in this Agreement further covenants and agreements of the Company thereafter to be observed, or surrender any rights or powers reserved to or conferred upon the Company in this Agreement; provided, however, that in either case such amendment shall not adversely affect the rights or interests of the Holders of the Warrant Certificates hereunder in any material respect. This Agreement may otherwise be amended by the Company and the Warrant Agent only with the consent of the Holders of Warrant Certificates evidencing a majority of the then outstanding Warrants, except that no amendment or waiver that affects Sections 2.4 or 3.2(a) or this Section 13 shall be effective without the approval of a majority of the Original Restricted Holders.

The Warrant Agent shall join with the Company in the execution and delivery of any such amendment unless such amendment affects the Warrant Agent’s own rights, duties or immunities hereunder, in which case the Warrant Agent may, but shall not be required to, join in such execution and delivery. Upon execution and delivery of any amendment pursuant to this Section 13, such amendment shall be considered a part of this Agreement for all purposes and every Warrantholder theretofore or thereafter executed and delivered hereunder shall be bound thereby.

Promptly after the execution by the Company and the Warrant Agent of any such amendment, the Company shall give notice to the Holders of Warrant Certificates, setting forth in general terms the substance of such amendment, in accordance with the provisions of Section 11.1(b). Any failure of the Company to mail such notice or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment.

14. Waivers.

The Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if (i) the Company has obtained the written consent of Holders of Warrant Certificates evidencing a majority of the then outstanding Warrants, and (ii) any consent required pursuant to Section 13 has been obtained.

15. Successor to Company.

So long as Warrants remain outstanding, the Company will not enter into any Non-Surviving Transaction unless the acquirer shall expressly assume by a supplemental agreement, executed and delivered to the Warrant Agent, in form reasonably satisfactory to the Warrant Agent, the due and punctual performance of every covenant of this Agreement on the part of the Company to be performed and observed and shall have provided for exercise rights in accordance with Section 5.1(j). Upon the consummation of such Non-Surviving Transaction, the acquirer shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Agreement with the same effect as if such acquirer had been named as the Company herein.

16. Headings.

The section headings contained in this Agreement are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement.


34

17. Counterparts.

This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original, but all of which together constitute one and the same instrument.

18. Severability.

The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision hereof will not affect the validity or enforceability of the other provisions hereof; provided that if any provision of this Agreement, as applied to any party or to any circumstance, is adjudged by a court or governmental body not to be enforceable in accordance with its terms, the parties agree that the court or governmental body making such determination will have the power to modify the provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases, and in its reduced form, such provision will then be enforceable and will be enforced.

19. Persons Benefiting.

This Agreement shall be binding upon and inure to the benefit of the Company and the Warrant Agent, and their respective successors and assigns and the Holders from time to time of the Warrant Certificates. Nothing in this Agreement, express or implied, is intended to confer upon any person other than the Company, the Warrant Agent and the Holders of the Warrant Certificates, any rights or remedies under or by reason of this Agreement or any part hereof. Each Holder, by acceptance of a Warrant Certificate, agrees to all of the terms and provisions of this Agreement applicable thereto.

20. Applicable Law.

THIS AGREEMENT, EACH WARRANT CERTIFICATE ISSUED HEREUNDER, EACH WARRANT EVIDENCED THEREBY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO AND THERETO, INCLUDING THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEABILITY THEREOF, SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

21. Entire Agreement.

This Agreement sets forth the entire agreement of the parties hereto as to the subject matter hereof and supersedes all previous agreements among all or some of the parties hereto with respect thereto, whether written, oral or otherwise.

[Remainder of Page Intentionally Left Blank]


35

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.

ELK PETROLEUM ANETH, LLC, A Delaware limited liability company

By:Title:

Elk Petroleum Aneth, LLC, as Warrant Agent

By:Title:


A-14818-4917-0344 v6

EXHIBIT A

[Face of Warrant Certificate]

THIS WARRANT AND THE SECURITIES TO BE ISSUED UPON ITS EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS WARRANT NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, PLEDGED, ENCUMBERED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.







(D) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR


A-24818-4917-0344 v6

INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR


NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


WARRANT CERTIFICATE

EVIDENCING

WARRANTS TO PURCHASE UNITS


A-34818-4917-0344 v6

No.__ __, __, ___Warrants

THIS CERTIFIES THAT, for value received, _______________________, or registered assigns, is the registered owner of ___,___,___ Warrants to Purchase Units of Elk Petroleum Aneth, LLC, a Delaware limited liability company (the “Company”, which term includes any successor thereto under the Warrant Agreement), and is entitled, subject to and upon compliance with the provisions hereof and of the Warrant Agreement, at such Warrantholder’s option, at any time when the Warrants evidenced hereby are exercisable, to purchase from the Company one Unit of the Company for each Warrant evidenced hereby, at the purchase price of $1.132625 per Unit (as adjusted from time to time, the “Exercise Price”), payable in full at the time of purchase, the number of Units into which and the Exercise Price at which each Warrant shall be exercisable each being subject to adjustment as provided in Section 5 of the Warrant Agreement.

All Units issuable by the Company upon the due exercise of Warrants and payment of the Exercise Price shall, upon such issuance, be duly and validly issued and will be free of restrictions on transfer other than as specified in Section 3.2(c) of the Warrant Agreement or the Amended and Restated Limited Liability Company Agreement of the Company, as amended from time to time. The Company shall pay any and all taxes (other than income taxes) that may be payable in respect of the issue or delivery of Units on exercise of Warrants. The Company shall not be required, however, to pay any tax or other charge imposed in respect of any transfer involved in the issue and delivery of any Units in book-entry form, certificates for Units or payment of cash to any Person other than the Warrantholder surrendered upon the exercise of a Warrant, and in case of such transfer or payment, the Warrant Agent and the Company shall not be required to issue or deliver any Units in book-entry form or any certificate or pay any cash until (a) such tax or charge has been paid or an amount sufficient for the payment thereof has been delivered to the Warrant Agent or to the Company or (b) it has been established to the Company’s reasonable satisfaction that any such tax or other charge that is or may become due has been paid.

Each Warrant evidenced hereby may be exercised by the Holder hereof at the Exercise Price then in effect at any time during the period commencing on November 7, 2019 and ending on the Expiration Date, subject to any restrictions on exercise set forth on the face of this Warrant Certificate or in the Warrant Agreement.

Subject to the provisions hereof and of the Warrant Agreement, the Holder of this Warrant Certificate may exercise all or any whole number of the Warrants evidenced hereby by surrendering this Warrant Certificate to the Warrant Agent at its office maintained for such purpose (the “Company Office”) with the form of exercise on the reverse hereof duly executed, together with payment in full of the Exercise Price as then in effect for each Unit receivable upon exercise of each Warrant being submitted for exercise (except in the case of a Cashless Exercise) and delivery of a duly executed Joinder. Any such payment of the Exercise Price is to be, at the option of the Holder, in any combination of (i) cash delivered to the Warrant Agent at the Company Office, (ii) certified bank check or official bank check in New York Clearing House funds payable to the order of the Company and delivered to the Warrant Agent at the Company Office or (iii) wire transfer in immediately available funds to such other account of the Company at such banking institution as the Company shall have designated from time to time for such purpose.


A-44818-4917-0344 v6

Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless this Warrant Certificate has been countersigned by the Warrant Agent by manual or facsimile signature of an authorized officer on behalf of the Warrant Agent, this Warrant Certificate shall not be valid for any purpose and no Warrant evidenced hereby shall be exercisable.

IN WITNESS WHEREOF, the Company has caused this certificate to be duly executed under its corporate seal.

Dated: November 7, 2019


[SEAL] By:Chief Financial Officer

ATTEST:

Countersigned:

ELK PETROLEUM ANETH, LLC asWarrant Agent

OR

ELK PETROLEUM ANETH, LLC, as Warrant Agent

By:Authorized Agent

By:as Countersigning Agent

By:Authorized Officer


A-54818-4917-0344 v6

[Reverse of Warrant Certificate]


WARRANT CERTIFICATE

EVIDENCING

WARRANTS TO PURCHASE UNITS

The Warrants evidenced hereby are one of a duly authorized issue of Warrants of the Company designated as its Warrants to Purchase Units (“Warrants”), limited in aggregate number to 11,988,690, issued under and in accordance with the Warrant Agreement, dated as of November 7, 2019 (the “Warrant Agreement”), between the Company and Elk Petroleum Aneth, LLC, as warrant agent (the “Warrant Agent”, which term includes any successor thereto permitted under the Warrant Agreement), to which Warrant Agreement and all amendments thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Warrant Agent, the Holders of Warrant Certificates and the owners of the Warrants evidenced thereby and of the terms upon which the Warrant Certificates are, and are to be, executed and delivered. A copy of the Warrant Agreement shall be available at all reasonable times at the office of the Warrant Agent for inspection by the Holder hereof.

The Warrant Agreement provides that, in addition to certain adjustments to the number of Units into which a Warrant is exercisable and the Exercise Price required to be made in certain circumstances, in the case of any Transaction, the Company shall (or, in the case of any Non-Surviving Transaction, the Company shall cause the other Person involved in such Transaction to) execute and deliver to the Warrant Agent a written instrument providing that (i) the Warrants evidenced hereby, if then outstanding, will be exercisable thereafter, during the period the Warrants evidenced hereby shall be exercisable as specified herein, only into the Substituted Property that would have been receivable upon such Transaction by a holder of the number of Units that would have been issued upon exercise of such Warrant if such Warrant had been exercised in full immediately prior to such Transaction (upon certain assumptions specified in the Warrant Agreement), assuming that the Warrants evidenced hereby were exercisable at the time of such Transaction at the Exercise Price as then in effect; and (ii) the rights and obligations of the Company (or, in the case of any Non-Surviving Transaction, the other Person involved in such Transaction) and the holders in respect of Substituted Property shall be as nearly equivalent as may be practicable to the rights and obligations of the Company and Holders in respect of Units.

Except as provided in the Warrant Agreement, all outstanding Warrants shall expire and all rights of the Holders of Warrant Certificates evidencing such Warrants shall terminate and cease to exist, as of 5:00 p.m., New York time, on the Expiration Date. “Expiration Date” shall mean November 7, 2023 or such earlier date as the Company shall have designated pursuant to the Warrant Agreement upon satisfaction of certain conditions set forth in the Warrant Agreement.


A-64818-4917-0344 v6

In the event of the exercise of less than all of the Warrants evidenced hereby, a new Warrant Certificate of the same tenor and for the number of Warrants which are not exercised shall be issued by the Company in the name or upon the written order of the Holder of this Warrant Certificate upon the cancellation hereof.

The Warrant Certificates are issuable only in registered form in denominations of whole numbers of Warrants. Upon surrender at the office of the Warrant Agent and payment of the charges specified herein and in the Warrant Agreement, this Warrant Certificate may be exchanged for Warrant Certificates in other authorized denominations or the transfer hereof may be registered in whole or in part in authorized denominations to one or more designated transferees; provided, however, that such other Warrant Certificates issued upon exchange or registration of transfer shall evidence the same aggregate number of Warrants as this Warrant Certificate. The Company shall cause to be kept at the office of the Warrant Agent the Warrant Register in which, subject to such reasonable regulations as the Warrant Agent may prescribe and such regulations as may be prescribed by law, the Company shall provide for the registration of Warrant Certificates and of transfers or exchanges of Warrant Certificates. No service charge shall be made for any registration of transfer or exchange of Warrant Certificates; provided, however, the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Warrant Certificates.

Prior to due presentment of this Warrant Certificate for registration of transfer, the Company, the Warrant Agent and any agent of the Company or the Warrant Agent may treat the Person in whose name this Warrant Certificate is registered as the owner hereof for all purposes, and neither the Company, the Warrant Agent nor any such agent shall be affected by notice to the contrary.

The Warrant Agreement permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of Warrant Certificates under the Warrant Agreement at any time by the Company and the Warrant Agent with the consent of the Holders of Warrant Certificates evidencing a majority of the then outstanding Warrants.

Until the exercise of any Warrant, subject to the provisions of the Warrant Agreement and except as may be specifically provided for in the Warrant Agreement, (i) no Warrantholder shall have or exercise any rights by virtue hereof as a holder of Units of the Company, including, without limitation, the right to vote, to receive dividends and other distributions or to receive notice of, or attend meetings of, unitholders or any other proceedings of the Company; (ii) the consent of any such Warrantholder shall not be required with respect to any action or proceeding of the Company; (iii) except with respect to any Received Dividend or as provided with respect to the dissolution, liquidation or winding up of the Company, no such Warrantholder, by reason of the ownership or possession of a Warrant or the Warrant Certificate representing the same, shall have any right to receive any cash dividends, unit dividends, allotments or rights or other distributions (except as specifically provided in the Warrant Agreement), paid, allotted or distributed or distributable to the unitholders of the Company prior to or for which the relevant record date preceded the date of the exercise of such Warrant; and (iv) no such Warrantholder


A-74818-4917-0344 v6

shall have any right not expressly conferred by this Agreement or Warrant Certificate held by such Warrantholder.

This Warrant Certificate, each Warrant evidenced thereby and the Warrant Agreement shall be governed by and construed in accordance with the laws of the State of New York.

All terms used in this Warrant Certificate which are defined in the Warrant Agreement shall have the meanings assigned to them in the Warrant Agreement.

Form of Exercise

In accordance with and subject to the terms and conditions hereof and of the Warrant Agreement, the undersigned registered Holder of this Warrant Certificate hereby irrevocably elects to exercise _______________ Warrants evidenced by this Warrant Certificate and represents that such Warrantholder has (i) elected a “Cashless Exercise” or (ii) tendered the Exercise Price for each of the Warrants evidenced hereby being exercised in the aggregate amount of $_________ in the indicated combination of:

CASH ($___________);

CERTIFIED BANK CHECK PAYABLE TO THE ORDER OF THE COMPANY ($___________);

OFFICIAL BANK CHECK IN NEW YORK CLEARING HOUSE FUNDS PAYABLE TO THE ORDER OF THE COMPANY ($___________); OR

WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS TO THE ACCOUNT DESIGNATED BY THE COMPANY FOR SUCH PURPOSE ($___________).

The undersigned requests that the Units issuable upon exercise be in fully registered form in such denominations and registered in such names and delivered, together with any other property receivable upon exercise, in such manner as is specified in the instructions set forth below.

If the number of Warrants exercised is less than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate representing the remaining Warrants evidenced hereby be issued and delivered to the undersigned unless otherwise specified in the instructions below.


A-84818-4917-0344 v6

Dated:

(Insert Social Security or Other Identifying Number of Holder)

Name: (Please Print)

Address:

Signature(Signature must conform in all respects to name of Holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a bank, trust company or member firm of a national securities exchange.)

Signature Guaranteed:

Instructions (i) as to denominations of Units issuable upon exercise and as to delivery of such securities and any other property issuable upon exercise and (ii) if applicable, as to Warrant Certificates evidencing unexercised Warrants:

Assignment

(Form of Assignment To Be Executed If Holder Desires To Transfer Warrant Certificate)

FOR VALUE RECEIVED _______________________________ hereby sells, assigns and transfers unto

Please insert social security orother identifying number

(Please print name and address including zip code)

the Warrants represented by the within Warrant Certificate and does hereby irrevocably constitute and appoint __________________ Attorney, to transfer said Warrant Certificate on the books of the within-named Company with full power of substitution in the premises.

Dated: Signature(Signature must conform in all respects to name of Holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a bank, trust company or member firm of a national securities exchange.)



[Face of Warrant Statement]

SCHEDULE A

SCHEDULE OF DECREASES IN WARRANTS

The following decreases in the number of Warrants evidenced by this Warrant Certificate have been made:

Date

Amount of decrease in number of

Warrants evidenced by this Warrant

Certificate

Number of Warrants evidenced by this

Warrant Certificate following such

decreaseSignature of

authorized signatory


B-2

Exhibit B

FORM OF WARRANT STATEMENT

[See attached]


B-3

ELK PETROLEUM ANETH, LLC1345 Avenue of the Americas

New York, NY 10105

Warrant Statement

SEE LEGEND(S) ON REVERSE

Issuer: Elk Petroleum Aneth, LLC

Warrant Agent: Elk Petroleum Aneth, LLC

Holder:

Account Number of Holder: N/A

Transaction Date:

Description of Security: Number of Securities Held:

Warrant

Retain this advice as a record of your ownership of the above securities.

For additional information, please contact:


[Reverse of Warrant Statement]

About Your Transaction

This advice is your record of the securities being credited to your account in book-entry form.








(D) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR


NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


[Face of Warrant Statement]

ELK PETROLEUM ANETH, LLC1345 Avenue of the Americas

New York, NY 10105

Warrant Statement

SEE LEGEND(S) ON REVERSE

Issuer: Elk Petroleum Aneth, LLC

Warrant Agent: Elk Petroleum Aneth, LLC

Holder:

Account Number of Holder: N/A

Transaction Date:

Description of Security: Number of Securities Held:

Warrant

Retain this advice as a record of your ownership of the above securities.

For additional information, please contact:

Elk Petroleum Aneth, LLC1345 Avenue of the AmericasNew York, NY 10105Attn: Robyn Keegan


B-1

About Your Transaction

This advice is your record of the securities being credited to your account in book-entry form.








(D) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR


B-2

OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR


NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES

ACT.


C-1

EXHIBIT C

FORM OF EXERCISE NOTICE

[Address]

Attention: Transfer Department

Re: Warrant Agreement dated as of November 7, 2019 among Elk Petroleum Aneth, LLC (the “Company”), the warrant agent thereto and [___________] (as it may be supplemented or amended, the “Warrant Agreement”)

The undersigned hereby irrevocably elects to exercise the right to exercise ____ Warrants and receive the consideration deliverable in exchange therefor pursuant to the following settlement method (check one):

Cash Settlement

Cashless Settlement

If Cash Settlement is elected, the undersigned shall tender payment of the Exercise Price therefor in accordance with instructions received from the Warrant Agent.

THIS EXERCISE NOTICE MUST BE DELIVERED TO THE WARRANT AGENT. THE WARRANT AGENT SHALL NOTIFY YOU OF THE ADDRESS AND PHONE NUMBER WHERE YOU CAN CONTACT THE WARRANT AGENT AND TO WHICH WARRANT EXERCISE NOTICES ARE TO BE SUBMITTED.

All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Warrant Agreement.


C-2

Dated: Name:(Please Print)

(Insert Social Security or Other Identifying Number of Warrantholder) Address:

Signature(Signature must conform in all respects to name of Warrantholder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a bank, trust company or member firm of a U.S. national securities exchange.)


Instructions (i) as to denominations and names of Units issuable upon exercise and as to delivery of such securities and any other property issuable upon exercise and (ii) if applicable, as to Warrant Certificates evidencing unexercised Warrants:


EXHIBIT B


601898514.13

FORM OF TRUST AGREEMENT FOR THE EPI LIQUIDATING TRUST

DATED: July __, 2020


i 601898514.13

TABLE OF CONTENTS

Page

ARTICLE 1 DEFINITIONS ...................................................................................................................... 2

1.1 Terms Used in the EPI Plan ............................................................................................. 2

1.2 General Construction ....................................................................................................... 2

ARTICLE 2 THE EPI LIQUIDATING TRUST ..................................................................................... 2

2.1 Creation and Name ........................................................................................................... 2

2.2 Objectives, Purposes, and Structure of the EPI Liquidating Trust ............................. 2

2.3 Grant and Acceptance ...................................................................................................... 3

2.3.1 Grant of the EPI Liquidating Trust Assets .......................................... 3

2.3.2 Acceptance by EPI Liquidating Trustees ............................................. 4

2.4 Further Assurances ........................................................................................................... 4

2.5 Nature of EPI Liquidating Trust Assets ......................................................................... 4

2.6 Incidents of Ownership .................................................................................................... 4

2.7 Funding of EPI Liquidating Trust .................................................................................. 4

2.8 Payment of EPI Liquidating Trust Operating Expenses .............................................. 4

ARTICLE 3 THE EPI LIQUIDATING TRUSTEE ................................................................................ 5

3.1 Number .............................................................................................................................. 5

3.2 Action by the EPI Liquidating Trustees ......................................................................... 5

3.3 Binding Nature of the EPI Liquidating Trustees’ Action. . ......................................... 5

3.4 Term of Service ................................................................................................................. 5

3.5 Resignation ........................................................................................................................ 5

3.6 Removal ............................................................................................................................. 5

3.7 Appointment of Successor EPI Liquidating Trustees ................................................... 5

3.7.1 Appointment of Successor EPI Liquidating Trustees ......................... 5

3.7.2 Vesting of Rights in Successor EPI Liquidating Trustees ................... 5

3.8 Continuance of EPI Liquidating Trust ........................................................................... 6

3.9 Compensation .................................................................................................................... 6

3.10 Standard of Care; Indemnification; Exculpation .......................................................... 6

3.11 No Liability for Acts of Successor/Predecessor EPI Liquidating Trustees ................. 7

3.12 Reliance by the EPI Liquidating Trustees ...................................................................... 7

3.13 Reliance by Persons Dealing With the EPI Liquidating Trust ..................................... 8

3.14 Discharge of the EPI Liquidating Trustees .................................................................... 8

3.14.1 Statement of Discharge ........................................................................... 8


ii 601898514.13

3.14.2 Approval of Statement of Discharge ..................................................... 8

3.14.3 Costs Relating to Statement of Discharge ............................................. 8

3.14.4 Continuance of EPI Liquidating Trust for Winding Up ..................... 8

3.15 Confidentiality ................................................................................................................... 9

ARTICLE 4 POWERS OF THE EPI LIQUIDATING TRUSTEES ................................................... 10

4.1 Title .................................................................................................................................. 10

4.2 Management Power ........................................................................................................ 10

4.2.1 Guidance from Court ........................................................................... 15

4.2.2 Additional Powers ................................................................................. 15

4.3 Commingling of EPI Liquidating Trust Assets ............................................................ 15

4.4 Employment and Compensation of Professionals ........................................................ 16

4.5 Dispute Resolution .......................................................................................................... 16

ARTICLE 5 OBLIGATIONS OF THE EPI LIQUIDATING TRUSTEES ........................................ 16

5.1 Reports and Records ...................................................................................................... 16

5.2 Eligible Investments ........................................................................................................ 17

5.3 EPI Liquidating Trust Beneficiary Reports ................................................................. 17

5.4 United States Trustee Fees ............................................................................................. 17

5.5 EPI Liquidating Trust Account ..................................................................................... 17

ARTICLE 6 EPI LIQUIDATING TRUST INTERESTS ..................................................................... 18

6.1 Allocation of EPI Liquidating Trust Interests ............................................................. 18

6.2 Delivery of Books and Records from EPI ..................................................................... 18

6.3 Register Entries Regarding EPI Liquidating Trust Interests ..................................... 18

6.4 Allocation of EPI Liquidating Trust Interests to Holders of Disputed Claims ......... 19

6.5 Representation of EPI Liquidating Trust Interest....................................................... 19

6.6 EPI Liquidating Trust Register and EPI Liquidating Trust Registrar ..................... 19

6.6.1 Appointment of EPI Liquidating Trust Registrar ............................. 20

6.6.2 Register of EPI Liquidating Trust Interests ....................................... 20

6.6.3 Access to EPI Liquidating Trust Register by EPI Liquidating Trust Beneficiaries ............................................................................................. 20

6.6.4 Absolute Owners; Interests Beneficial Only ....................................... 20

6.6.5 References to EPI Liquidating Trust Beneficiaries ........................... 20

6.7 EPI Liquidating Trust Interests Non-Transferable ..................................................... 20

6.8 Exemption from Registration ........................................................................................ 20

6.9 Exchange Act ................................................................................................................... 21

ARTICLE 7 ADMINISTRATION OF THE EPI LIQUIDATING TRUST ESTATE ....................... 21


iii 601898514.13

7.1 Establishment of EPI Liquidating Trust Available Cash ............................................ 21

7.2 Establishment of EPI Liquidating Trust Operating Reserve and Related Matters ............................................................................................................................. 21

7.2.1 EPI Liquidating Trust Operating Reserve ......................................... 21

7.2.2 Disputed Claims Reserve for EPI Liquidating Trust Beneficiaries . 21

7.3 Prosecution and Resolution of Causes of Action .......................................................... 22

7.3.1 The EPI Liquidating Trust’s Authority to Pursue, Settle, or Abandon Causes

of Action ................................................................................................. 22

7.3.2 Settlement of Causes of Action ............................................................ 22

7.4 Distributions to Holders of EPI Liquidating Trust Interests ...................................... 22

7.4.1 Distributions Generally ........................................................................ 22

7.4.2 Distributions to EPI Liquidating Trust Beneficiaries ....................... 22

7.4.3 Distributions to Holders of Reserved EPI Liquidating Trust Interests .............................................................................................................. 22

7.4.4 Right to Setoff ....................................................................................... 22

7.5 Place and Manner of Payments or Distributions ......................................................... 23

7.6 De Minimis Payments; Fractional Dollars.................................................................... 23

7.7 Unclaimed or Undeliverable Distributions ................................................................... 23

7.8 No Distribution in Excess of Allowed Amount of Claim or EPI Preferred Interest ............................................................................................................................. 23

ARTICLE 8 TAX MATTERS ................................................................................................................. 24

8.1 Tax Treatment ................................................................................................................. 24

8.2 Tax Treatment of Disputed Claims Reserve ................................................................. 24

8.3 Tax Returns and Statements .......................................................................................... 24

8.4 Payment of Taxes ............................................................................................................ 24

8.5 Allocations of EPI Liquidating Trust Taxable Income ............................................... 25

8.6 Withholding ..................................................................................................................... 25

8.7 Valuation.......................................................................................................................... 25

8.8 Expedited Determination of Taxes ................................................................................ 26

ARTICLE 9 TERMINATION ................................................................................................................. 26

ARTICLE 10 MISCELLANEOUS ......................................................................................................... 27

10.1 Notices .............................................................................................................................. 27

10.2 Amendment ..................................................................................................................... 28

10.3 No Waiver ........................................................................................................................ 28

10.4 Counterparts ................................................................................................................... 29


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10.5 Governing Law; Severability ......................................................................................... 29

10.6 Headings .......................................................................................................................... 29

10.7 Relationship to EPI Plan and EPI Confirmation Order ............................................. 29

10.8 Consent to Jurisdiction ................................................................................................... 29

10.9 Waiver of Jury Trial ....................................................................................................... 29

10.10 References to Reorganized Debtors .............................................................................. 29

10.11 No Suits by Creditors ..................................................................................................... 29

10.12 Irrevocability ................................................................................................................... 29

10.13 Enforcement and Administration .................................................................................. 29

10.14 Third Party Beneficiaries ............................................................................................... 29


601898514.13

EPI LIQUIDATING TRUST AGREEMENT FOR THE EPI LIQUIDATING TRUST

THIS TRUST AGREEMENT (the “EPI Liquidating Trust Agreement”) is made as of July [_____], 2020, by and between Elk Petroleum, Inc. (“EPI”), in its capacity as debtor and debtor-in-possession (“EPI”) for the benefit of the EPI Liquidating Trust Beneficiaries entitled to the EPI Liquidating Trust Assets and North Country Capital LLC, as trustees (the “EPI Liquidating Trustee”).

RECITALS

WHEREAS, on May 22, 2019, EPI and other affiliates filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware. By order dated July____, 2020 (Docket No. ____) (the “Confirmation Order”), the Bankruptcy Court confirmed EPI’s Plan of Liquidation dated May 29, 2020 (Docket No. 872) (the “EPI Plan”).1 This EPI Liquidating Trust Agreement is executed to facilitate implementation of the EPI Plan. Under the terms of the EPI Plan, the EPI Liquidating Trust Assets will be transferred to the EPI Liquidating Trust created and evidenced hereby so that (a) the EPI Liquidating Trust Assets can be held in trust for the benefit of the EPI Liquidating Trust Beneficiaries2 entitled thereto for the objectives and purposes set forth herein, and in the EPI Plan, the Global Settlement Agreement, and the Global Settlement Order, (b) certain Claims can be resolved, (c) Distributions may be made in accordance with this EPI Liquidating Trust Agreement and the EPI Plan, (d) the EPI Liquidating Trust Assets can be liquidated and converted to cash, and (e) administrative services relating to the activities of the EPI Liquidating Trust and relating to the implementation of the EPI Plan can be performed by the EPI Liquidating Trustee. The EPI Liquidating Trustee will make continuing efforts to undertake its duties as described in this EPI Liquidating Trust Agreement, including, without limitation, to make timely distributions, and to not unduly prolong the duration of the EPI Liquidating Trust.

WHEREAS, the EPI Liquidating Trust is intended to qualify as (a) a “liquidating trust” pursuant to the Internal Revenue Code of 1986, as amended (the “IRC”) and the regulations promulgated thereunder (“Treasury Regulations”), including Treasury Regulation section 301.7701-4(d), with no objective to continue or engage in the conduct of a trade or another business, except to the extent reasonably necessary to, and consistent with, the liquidating purpose of the EPI Liquidating Trust and (b) as a “grantor trust” for U.S. federal income tax purposes, pursuant to sections 671-677 of the IRC.

DECLARATION OF TRUST

NOW, THEREFORE, to declare the terms and conditions hereof, and in consideration and furtherance of the EPI Plan, confirmed by the Confirmation Order, and other good and valuable consideration, the receipt of which is hereby acknowledged, EPI and the EPI Liquidating Trustee have executed this EPI Liquidating Trust Agreement for the benefit of the EPI Liquidating Trust Beneficiaries entitled to the EPI Liquidating Trust Assets, and, at the direction of such EPI Liquidating Trust Beneficiaries (because the transfer of title to undivided interests in each of the EPI Liquidating Trust Assets to such EPI Liquidating Trust Beneficiaries, and the transfer of such interests by such EPI Liquidating Trust Beneficiaries to the EPI Liquidating Trust, would be impractical), absolutely and irrevocably assign to the

1 Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the EPI

Plan. 2 A list of the EPI Liquidating Trust Beneficiaries and their respective addresses and units assigned is set forth

as Exhibit 1 hereto.


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EPI Liquidating Trust and each of its successors or assigns, all right, title, and interest of EPI in and to the EPI Liquidating Trust Assets in the form and manner provided for in the EPI Plan;

TO HAVE AND TO HOLD IN TRUST, under and subject to the terms and conditions of the EPI Plan, the EPI Confirmation Order and this EPI Liquidating Trust Agreement for the benefit of the EPI Liquidating Trust Beneficiaries of the EPI Liquidating Trust (as their respective interests may appear in accordance with the EPI Plan and this EPI Liquidating Trust Agreement);

PROVIDED, HOWEVER, that except as otherwise provided herein, upon termination of the EPI Liquidating Trust in accordance with Article 9 hereof, this EPI Liquidating Trust Agreement shall cease, terminate, and be of no further force and effect.

IT IS HEREBY FURTHER COVENANTED AND DECLARED that the EPI Liquidating Trust Assets are to be held and applied by the EPI Liquidating Trustee subject to the further covenants, conditions, and terms set forth below.

ARTICLE 1 DEFINITIONS

1.1 Terms Used in the EPI Plan. If not defined in this EPI Liquidating Trust Agreement, capitalized terms used herein have the meanings ascribed to them in the EPI Plan.

1.2 General Construction. As used in this EPI Liquidating Trust Agreement, the masculine, feminine and neuter genders, and the plural and singular numbers shall be deemed to include the others in all cases where they would apply. “Includes” and “including” are not limiting, and “or” is not exclusive. References to “Articles,” “Sections” and other subdivisions, unless referring specifically to the EPI Plan or provisions of the Bankruptcy Code, the Bankruptcy Rules, or other law, statute or regulation, refer to the corresponding Articles, Sections, and other subdivisions of this EPI Liquidating Trust Agreement, and the words “herein,” “hereafter,” and words of similar import refer to this EPI Liquidating Trust Agreement as a whole and not to any particular Article, Section, or subdivision of this EPI Liquidating Trust Agreement.

ARTICLE 2 THE EPI LIQUIDATING TRUST

2.1 Creation and Name. There is hereby created the EPI Liquidating Trust, which shall be known as the “EPI Liquidating Trust.”

2.2 Objectives, Purposes and Structure of the EPI Liquidating Trust. The EPI Liquidating Trust is created on behalf of, and for the benefit of, the EPI Liquidating Trust Beneficiaries. The purpose of the EPI Liquidating Trust is to provide a mechanism for the liquidation of the EPI Liquidating Trust Assets, to prosecute, compromise, and settle the EPI Liquidating Trust Causes of Action and Claims of EPI, and to reconcile, object to, compromise, and settle Disputed Claims and EPI Preferred Interests, if any, in EPI Classes 3 and 4. The EPI Liquidating Trustee shall distribute the net proceeds of the liquidation of the EPI Liquidating Trust Assets to the EPI Liquidating Trust Beneficiaries in accordance with the terms of the EPI Plan, this EPI Liquidating Trust Agreement, the Global Settlement Agreement and the Global Settlement Order. No business activities will be conducted by the EPI Liquidating Trust other than those associated with or related to the liquidation (through pursuing and resolving the EPI Liquidating Trust Causes of Action, reconciliation of Claims against EPI, and distribution of the EPI Liquidating Trust Assets as provided for in the EPI Plan, this EPI Liquidating Trust Agreement, the Global Settlement Agreement and the Global Settlement Order, and such assets are being transferred to the EPI Liquidating Trust with no objective to continue or engage in the conduct of a trade or business. In furtherance of this objective, the


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EPI Liquidating Trustee shall make continuing good faith efforts to (a) resolve Disputed Claims, (b) prosecute and resolve viable EPI Liquidating Trust Causes of Action, (c) make timely distributions, and (d) not unduly prolong the duration of the EPI Liquidating Trust, in accordance with this EPI Liquidating Trust Agreement. The purposes of the EPI Liquidating Trust are as follows, and the EPI Liquidating Trust shall have no other purpose or activities:

(a) to perform the functions and take the actions provided for or permitted by the EPI Plan, the EPI Confirmation Order, this EPI Liquidating Trust Agreement and in any other agreement executed by the EPI Liquidating Trustee for the EPI Liquidating Trust pursuant to the EPI Plan;

(b) to investigate, prosecute, settle, or abandon the EPI Liquidating Trust Causes of Action assigned to the EPI Liquidating Trust under the EPI Plan and to distribute the proceeds of any recoveries therefrom in accordance with the terms of the EPI Plan, the EPI Confirmation Order and this EPI Liquidating Trust Agreement;

(c) to object to, prosecute objections to, compromise and settle Disputed Claims in EPI Class 3 and Disputed EPI Preferred Interests in EPI Class 4, if any;

(d) to make distributions to the EPI Liquidating Trust Beneficiaries in accordance with the EPI Plan, the EPI Confirmation Order, the Global Settlement Agreement and the Global Settlement Order; and

(e) to marshal, liquidate, and distribute the EPI Liquidating Trust Assets in an expeditious but orderly manner.

2.3 Grant and Acceptance.

2.3.1 Grant of the EPI Liquidating Trust Assets. Under the terms of the EPI Plan and the EPI Confirmation Order, effective as of the Effective Date, the EPI Estate, Holders of Claims, and Holders of Interests, or any other Person then in possession of EPI Liquidating Trust Assets, shall be deemed to have irrevocably granted, transferred, conveyed, and delivered control of, and all the rights, title and interests in and to, the EPI Liquidating Trust Assets, free and clear of all liens, claims, encumbrances or interests of any kind in such property, with no reversionary interest therein in favor of EPI or its Estate, to the EPI Liquidating Trust, and then control of, any and all the rights, title and interests in and to, the EPI Liquidating Trust Assets shall be deemed to have irrevocably granted, transferred, conveyed to the EPI Liquidating Trust, on behalf of, in trust, and for the benefit of, the EPI Liquidating Trust Beneficiaries. The EPI Liquidating Trustee agrees to accept and hold the EPI Liquidating Trust Assets on behalf of the EPI Liquidating Trust, in trust for the benefit of the EPI Liquidating Trust Beneficiaries, subject to the terms of this EPI Liquidating Trust Agreement. In accordance with Section 6.13 of the EPI Plan, the transfer of the EPI Liquidating Trust Assets to the EPI Liquidating Trust shall be exempt from any stamp, transfer, recording, sales, use, or similar tax. In no event shall any part of the EPI Liquidating Trust Assets revert to or be distributed to EPI, Holders of Claims, or Holders of Interests (other than in their capacity as an EPI Liquidating Trust Beneficiary). The EPI Liquidating Trustee shall have no duty to arrange for any of the transfers contemplated hereunder and shall be conclusively entitled to rely on the legality and validity of such transfers. Moreover, on the Effective Date, any attorney-client privilege, work product privilege, or other privilege or immunity (collectively, the “Privileges”) attaching to any documents or communications (whether written or oral) transferred to the EPI Liquidating Trust shall automatically vest in, and be available for assertion by, the EPI Liquidating Trust and its Representatives (as defined below). The EPI Liquidating Trust’s receipt of the Privileges associated with the EPI Liquidating Trust Assets shall not operate as a waiver of other privileges possessed or retained by EPI. To the extent any of the foregoing


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does not automatically occur on the Effective Date or is not effectuated through the EPI Plan, the EPI Confirmation Order, or this EPI Liquidating Trust Agreement, EPI shall, on the Effective Date or as soon thereafter as reasonably practicable, execute such other and further documents as are necessary or appropriate to effectuate or memorialize all of the foregoing at the reasonable request of the EPI Liquidating Trustee.

2.3.2 Acceptance by EPI Liquidating Trustee. The EPI Liquidating Trustee accepts the trust imposed under this EPI Liquidating Trust Agreement and agrees to manage the EPI Liquidating Trust and the EPI Liquidating Trust Assets in accordance with this EPI Liquidating Trust Agreement and subject to the terms and conditions of the EPI Plan, the EPI Confirmation Order, the Global Settlement and the Global Settlement Order.

2.4 Further Assurances.

2.4.1 EPI (and any successors thereto) will, upon reasonable request of the EPI Liquidating Trustee, execute, acknowledge, and deliver such further instruments and do such further acts as may be necessary or proper to transfer to the EPI Liquidating Trustee any portion of the EPI Liquidating Trust Assets intended to be conveyed hereby in the form and manner provided for in the EPI Plan and the EPI Confirmation Order and to vest in the EPI Liquidating Trustee the powers, instruments, or funds in trust hereunder.

2.4.2 EPI shall cooperate in all commercially reasonable respects with the EPI Liquidating Trustee’s liquidation of the EPI Liquidation Trust Assets, including the prosecution of the EPI Liquidating Trust Causes of Action, and shall not take any action or omit from taking any action if such action or omission could reasonably be expected to interfere with the liquidation of the EPI Liquidating Trust Assets, including, without limitation, the investigation or prosecution of the EPI Liquidating Trust Causes of Action. The EPI Liquidating Trustee shall have the right to seek relief from the Bankruptcy Court if, in the judgment of the EPI Liquidating Trustee, EPI fails to cooperate in accordance with the provisions of this Section 2.4.2.

2.4.3 EPI shall reasonably cooperate regarding the Disputed Claims in EPI Class 3 and EPI Preferred Interests in EPI Class 4, including by providing reasonable access to historical data, records, and staff and shall not take any action or omit from taking any action if such action or omission could reasonably be expected to interfere with the foregoing. EPI shall cooperate with the EPI Liquidating Trustee and provide access to and preserve all books and records which shall be necessary for the reconciliation of such Disputed Claims at no cost to the EPI Liquidating Trust. The EPI Liquidating Trustee shall have the right to seek relief from the Bankruptcy Court if, in the judgment of the EPI Liquidating Trustee, EPI fails to cooperate in accordance with the provisions of this Section 2.4.3.

2.5 Nature of EPI Liquidating Trust Assets. The EPI Liquidating Trust shall not receive transfers of any stock or securities or any readily marketable assets, any operating assets of a going business, a partnership interest in a partnership that holds operating assets, or 50% or more of the stock of a corporation with operating assets, other than as set forth in the Global Settlement Order and the Global Settlement Agreement with respect to the EPA Warrants, to the extent not otherwise distributed to Allowed Claims on the EPI Effective Date.

2.6 Incidents of Ownership. The EPI Liquidating Trust Beneficiaries shall be the sole beneficiaries of the EPI Liquidating Trust, and the EPI Liquidating Trustee shall retain only such incidents of ownership as are necessary to undertake the actions and transactions authorized herein.


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2.7 Funding of EPI Liquidating Trust. The EPI Liquidating Trust shall be funded with the EPI Liquidating Trust Assets and [[$586,900]].3

2.8 Payment of EPI Liquidating Trust Operating Expenses. To the extent the EPI Liquidating Trustee deems reasonably appropriate, EPI Liquidating Trust Operating Expenses shall be paid from the EPI Liquidating Trust Operating Reserve (as defined in the EPI Plan).

ARTICLE 3 THE EPI LIQUIDATING TRUSTEE

3.1 Number and Bond. Except as otherwise provided herein, there shall be one EPI Liquidating Trustee of the EPI Liquidating Trust, which shall initially be North Country Capital LLC (Matthew Doheny). The EPI Liquidating Trustee shall not be required to give a bond or other surety hereunder. Notwithstanding the foregoing, or any other provision of this EPI Liquidating Trust Agreement, in the event of the sale, assignment or other disposition of a controlling interest in the EPI Liquidating Trustee, then BSP, after consultation with the Preferred Interest Representative shall appoint the Successor EPI Liquidating Trustee.

3.2 Action by the EPI Liquidating Trustee. The EPI Liquidating Trust shall be managed by the EPI Liquidating Trustee as set forth in this EPI Liquidating Trust Agreement.

3.3 Binding Nature of the EPI Liquidating Trustee’s Action. Subject to the terms of the EPI Plan, the EPI Confirmation Order, and this EPI Liquidating Trust Agreement, all actions taken and determinations made by the EPI Liquidating Trustee in accordance with the provisions of the Global Settlement Agreement, the Global Settlement Order, the EPI Plan, the EPI Confirmation Order, or this EPI Liquidating Trust Agreement shall be final and binding upon any and all EPI Liquidating Trust Beneficiaries.

3.4 Term of Service. Subject to Section 3.14.4 hereof, the EPI Liquidating Trustee’s appointment shall continue until the earlier of (a) the termination of this EPI Liquidating Trust Agreement or (b) each such EPI Liquidating Trustee’s resignation, death, termination, removal, dissolution, or liquidation.

3.5 Resignation. The EPI Liquidating Trustee may resign by an instrument in writing (the “Resignation Notice”) delivered to counsel for the EPI Liquidating Trust at least twenty-one (21) days before the proposed effective date of resignation; provided, however, that if the resigning EPI Liquidating Trustee is North Country Capital, such resignation shall only become effective upon the appointment of a permanent or interim successor EPI Liquidating Trustee selected by Benefit Street Agency, LLC or its designee (“BSP” or the “Oversight Entity”)) in consultation with a single representative (the “Preferred Interest Representative”) selected by ACR, Fulcrum and LIM (the “Preferred Interest Holders”); and further provided, that if the resigning EPI Liquidating Trustee is Asgaard Capital, such resignation shall only become effective upon the appointment of a permanent or interim successor EPI Liquidating Trustee selected by the Preferred Interest Representative in consultation with BSP. The EPI Liquidating Trustee that seeks to resign shall continue to serve as EPI Liquidating Trustee after the delivery of the EPI Liquidating Trustee’s resignation until the proposed effective date of such EPI Liquidating Trustee’s resignation, unless BSP, in consultation with the Preferred Interest Representative, consents to an earlier effective date of the EPI Liquidating Trustee’s resignation, which shall be the earlier of (i) the date of

3 As of May 29, 2020, and subject to finalization per the final estimated sources and uses as of the Effective

Date.


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appointment of a successor EPI Liquidating Trustee in accordance with Section 3.7 hereof becomes effective or (ii) thirty (30) days after the delivery of the Resignation Notice, as set forth herein; provided, however, that nothing in this Section 3.5 shall restrict the right to remove the EPI Liquidating Trustee as provided in Section 3.6 hereof.

3.6 Removal. Any EPI Liquidating Trustee may be removed (a) with Cause (defined below) at any time, (b) North Country Capital without Cause only if BSP, in consultation with the Preferred Interest Representative, votes to remove such EPI Liquidating Trustee without Cause, and (c) Asgaard Capital without Cause only if the Preferred Interest Representative, in consultation with BSP, votes to remove such Liquidating Trustee without Cause. In the event of the removal of an EPI Liquidating Trustee without cause, such EPI Liquidating Trustee shall be entitled to the payment of all compensation earned by such EPI Liquidating Trustee and the reimbursement of previously incurred expenses in fulfilling such EPI Liquidating Trustee’s duties with respect to the EPI Liquidating Trust permitted under this EPI Liquidating Trust Agreement that remain due and owing through and including the date of removal.

For the purposes of this Section 3.6, “Cause” means fraud, self-dealing, intentional misrepresentation, gross negligence, or willful misconduct.

3.7 Appointment of Successor EPI Liquidating Trustee.

3.7.1 Appointment of Successor EPI Liquidating Trustee. In the event of a vacancy by reason of the death or removal of the EPI Liquidating Trustee or prospective vacancy by reason of resignation, a successor EPI Liquidating Trustee shall be appointed with the affirmative vote of BSP, in consultation with the Preferred Interest Representative, but in any event within thirty (30) days after the occurrence of the vacancy or, in the case of resignation, at least ten (10) days before the proposed date of resignation.

3.7.2 Vesting of Rights in Successor EPI Liquidating Trustee. Every successor EPI Liquidating Trustee shall execute, acknowledge, and deliver to the EPI Liquidating Trust, and the retiring EPI Liquidating Trustee, if any, an instrument accepting such appointment subject to the terms and provisions hereof. The successor EPI Liquidating Trustee, without any further act, deed, or conveyance, shall become vested with all the rights, powers, trusts, and duties of the retiring EPI Liquidating Trustee, except that the successor EPI Liquidating Trustee shall not be liable for the acts or omissions of the retiring EPI Liquidating Trustee.

3.8 Continuance of EPI Liquidating Trust. The death, resignation, or removal of either EPI Liquidating Trustee shall not operate to terminate the EPI Liquidating Trust or to revoke any existing agency (other than any agency of such EPI Liquidating Trustee as the EPI Liquidating Trustee) created pursuant to the terms of this EPI Liquidating Trust Agreement or invalidate any action taken by the EPI Liquidating Trustee, and the EPI Liquidating Trustee agrees that the provisions of this EPI Liquidating Trust Agreement shall be binding upon and inure to the benefit of the EPI Liquidating Trustee and the EPI Liquidating Trustee’s respective heirs, legal and personal representatives, successors, or assigns, as the case may be, subject to section 3.1 hereof. In the event of the resignation or removal of either EPI Liquidating Trustee, such EPI Liquidating Trustee shall promptly (a) execute and deliver by the effective date of resignation or removal such documents, instruments, and other writings as may be reasonably requested by the successor EPI Liquidating Trustee to effect the termination of the resigning or removed EPI Liquidating Trustee’s capacity under this EPI Liquidating Trust Agreement and the conveyance of the EPI Liquidating Trust Assets then held by the resigning or removed EPI Liquidating Trustee to the successor EPI Liquidating Trustee; (b) deliver to the successor EPI Liquidating Trustee all documents, instruments, records, and other writings relating to the EPI Liquidating Trust as may be in the possession or under the control of the resigning or removed EPI Liquidating Trustee; and (c) otherwise assist and cooperate in


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effecting the assumption of the resigning or removed EPI Liquidating Trustee’s obligations and functions by the successor EPI Liquidating Trustee. The resigning or removed EPI Liquidating Trustee hereby irrevocably appoints the successor EPI Liquidating Trustee as its attorney-in-fact and agent with full power of substitution for it and its name, place, and stead to do any and all acts that such resigning or removed EPI Liquidating Trustee is obligated to perform under this Section 3.8. Such appointment shall not be affected by the subsequent disability or incompetence of the EPI Liquidating Trustee making such appointment.

3.9 Compensation. As compensation for services as EPI Liquidating Trustee, each EPI Liquidating Trustee shall receive compensation for its services on terms and conditions set forth in Exhibit 2 to this EPI Liquidating Trust Agreement, or as may otherwise be agreed to by the EPI Liquidating Trustee, BSP, and the Preferred Interest Representative. In addition, each EPI Liquidating Trustee shall be reimbursed for its reasonable, ordinary, and necessary expenses incurred in fulfilling its duties to the EPI Liquidating Trust Beneficiaries with respect to the EPI Liquidating Trust.

3.10 Standard of Care; Indemnification; Exculpation. In no event shall any EPI Liquidating Trustee or any of such EPI Liquidating Trustee’s current and former employees, successors, assigns, subsidiaries, principals, Affiliates, professionals, lawyers, consultants, accountants, technical, financial, or investment advisors or managers, directors, officers, partners, shareholders, managers, managed accounts and funds, corporate or other fiduciaries, agents or brokers, depositories, registrars, agents, subcontractors, or other Persons as are necessary to carry out the EPI Liquidating Trustee’s duties (collectively any “Representative”), or the EPI Liquidating Trust’s Representatives (any of the foregoing, the “EPI Liquidating Trustee Parties”), or any of BSP or the parties to the Guaranty Agreement, dated August 5, 2016, among EPL, EPI, Grieve CO2, each other Restricted Subsidiary (as defined therein) of EPI, and each lender from time to time party thereto, and BSP Agency, LLC (collectively, with BSP, the “BSP Parties”), or the Preferred Interest Representative be personally liable to any Person for any claim asserted in connection with, related to, or arising out of the affairs of the EPI Liquidating Trust, this EPI Liquidating Trust Agreement, or the EPI Plan, unless a final judgment no longer subject to appeal is entered by a court of competent jurisdiction (a) that such claim is the direct result of fraud, willful misconduct, or bad faith by any of such EPI Liquidating Trustee, the EPI Liquidating Trustee Parties, the BSP Parties, or the Preferred Interest Representative or (b) for court-awarded sanctions. The foregoing limitations shall not affect any of the Liquidating Trustee’s obligations, if any, to make payments pursuant to the EPI Plan, the EPI Confirmation Order, the Global Settlement Agreement or the Global Settlement Order. None of the EPI Liquidating Trustee, the EPI Liquidating Trustee Parties, the BSP Parties, or the Preferred Interest Representative shall be liable for incidental or consequential damages under any circumstances, even if such person or entity has been advised of the possibility of such damages. The aggregate liability of the EPI Liquidating Trustee, whether in tort, contract, or otherwise, is limited to the amount of fees paid to such EPI Liquidating Trustee for services as EPI Liquidating Trustee. Each EPI Liquidating Trustee shall not be personally liable to the EPI Liquidating Trust or to any Person for the acts or omissions of any Representative of such EPI Liquidating Trustee unless the EPI Liquidating Trustee acted with bad faith or willful misconduct in the selection, retention, or supervision of such Representative of the EPI Liquidating Trustee. Except in those situations in which the EPI Liquidating Trustee, the BSP Parties, or the Preferred Interest Representative is not exonerated of personal liability in accordance with the foregoing, the EPI Liquidating Trustee, the EPI Liquidating Trustee Parties (including each former EPI Liquidating Trustee), the BSP Parties, and the Preferred Interest Representative (including for purposes of this Section 3.10, any of the Representatives of any of such party and, together with the EPI Liquidating Trustee Parties for the purposes of this Section 3.10, the “Indemnified Parties”) shall be indemnified by the EPI Liquidating Trust against and held harmless by the EPI Liquidating Trust from any losses, claims, damages, liabilities, or expenses (including, without limitation, reasonable attorneys’ fees, disbursements, and related expenses) to which the Indemnified Parties may become subject in connection with any action, suit, proceeding, or investigation brought or threatened against any of the Indemnified Parties in connection with any matter


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arising out of or related to the EPI Plan, this EPI Liquidating Trust Agreement, or the affairs of the EPI Liquidating Trust. If any of the Indemnified Parties becomes involved in any action, proceeding, or investigation in connection with any matter arising out of or in connection with the EPI Plan, this EPI Liquidating Trust Agreement or the affairs of the EPI Liquidating Trust, the EPI Liquidating Trust shall periodically advance or otherwise reimburse on demand the Indemnified Party’s reasonable legal and other expenses (including, without limitation, reasonable attorneys’ fees, disbursements, and related expenses) incurred in connection therewith, but the Indemnified Parties shall be required to repay promptly to the EPI Liquidating Trust the amount of any such advanced or reimbursed expenses paid to the Indemnified Parties to the extent that it shall be ultimately determined by Final Order that the Indemnified Parties engaged in fraud or willful misconduct in connection with the affairs of the EPI Liquidating Trust with respect to which such expenses were paid. The EPI Liquidating Trust, with the agreement of BSP, may indemnify and hold harmless the Representatives of the EPI Liquidating Trust to the same extent as provided in this Section 3.10 for the EPI Liquidating Trustee Parties. The provisions of this Section 3.10 shall remain available to and be binding on any former EPI Liquidating Trustee or the estate of any decedent EPI Liquidating Trustee. All indemnification liabilities of the EPI Liquidating Trust shall be an expense of the EPI Liquidating Trust and the amounts necessary for such indemnification and reimbursement shall be paid by the EPI Liquidating Trust out of the available EPI Liquidating Trust Assets (other than the EPA Warrants) after reserving for all actual EPI Liquidating Trust Operating Expenses. Without limiting the foregoing, the BSP Parties and the Preferred Interest Representative shall be entitled to the limitation of liability and exculpation provisions set forth in the EPI Plan and the EPI Confirmation Order.

3.11 No Liability for Acts of Successor/Predecessor EPI Liquidating Trustee. Upon the appointment of a successor EPI Liquidating Trustee and the delivery of the EPI Liquidating Trust Assets to the successor EPI Liquidating Trustee, the predecessor EPI Liquidating Trustee and any Representative of the predecessor EPI Liquidating Trustee shall have no further liability or responsibility with respect thereto. A successor EPI Liquidating Trustee shall have no duty to examine or inquire into the acts or omissions of its immediate or remote predecessor, and no successor EPI Liquidating Trustee shall, in any way, be liable for the acts or omissions of any predecessor EPI Liquidating Trustee unless a successor EPI Liquidating Trustee expressly assumes such responsibility. A predecessor EPI Liquidating Trustee shall have no liability for the acts or omissions of any immediate or subsequent successor EPI Liquidating Trustee for any events or occurrences subsequent to the cessation of its role as EPI Liquidating Trustee.

3.12 Reliance by the EPI Liquidating Trustee. The EPI Liquidating Trustee Parties may rely, and shall be fully protected in acting or refraining from acting, on any resolution, statement, certificate, instrument, opinion, report, notice, request, consent, order, or other instrument or document that the EPI Liquidating Trustee Party has no reason to believe to be other than genuine and to have been signed or presented by the proper party or parties or, in the case of facsimiles, to have been sent by the proper party or parties, and the EPI Liquidating Trustee Parties may conclusively rely as to the truth of the statements and correctness of the opinions expressed therein; provided, however, that the EPI Liquidating Trustee Parties shall be under a duty to have examined, or caused to be examined, the same to determine whether or not such writings conform to the requirements of this EPI Liquidating Trust Agreement. The EPI Liquidating Trustee Parties may consult with counsel, and any opinion of counsel shall be full and complete authorization and protection in respect of any action taken or suffered by the EPI Liquidating Trustee Parties in accordance therewith. The EPI Liquidating Trustee Parties shall have the right at any time to seek relief from the Bankruptcy Court (or any other court of competent jurisdiction after the Chapter 11 Case is closed) concerning the EPI Liquidating Trust Assets, this EPI Liquidating Trust Agreement, the EPI Plan, the EPI Confirmation Order, or any other document executed in connection therewith, and any such relief given shall be full and complete authorization in respect of any action taken or suffered by the EPI Liquidating Trustee Parties in accordance therewith.


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3.13 Reliance by Persons Dealing with the EPI Liquidating Trust. In the absence of actual knowledge to the contrary, any person dealing with the EPI Liquidating Trust shall be entitled to rely on the authority of the EPI Liquidating Trustee Parties to act in connection with the acquisition, management, or disposition of EPI Liquidating Trust Assets and shall have no obligation to inquire into the existence of such authority.

3.14 Discharge of the EPI Liquidating Trustee.

3.14.1 Statement of Discharge. Each EPI Liquidating Trustee shall, upon termination of the EPI Liquidating Trust or upon the EPI Liquidating Trustee’s resignation, removal, or death (in which case the EPI Liquidating Trustee’s estate or the successor EPI Liquidating Trustee shall) render a statement of charge and discharge containing the following information: (a) all assets and funds of the EPI Liquidating Trust originally charged under the EPI Liquidating Trustee’s control, (b) a summarized accounting, in sufficient detail, of all purchases, sales, gains, losses, and income in connection with the EPI Liquidating Trust during each EPI Liquidating Trustee’s term of service, (c) all distributions made by the EPI Liquidating Trustee, and (d) the ending balance of all assets and funds of the EPI Liquidating Trust as of the date of discharge. At the discretion of the EPI Liquidating Trustee, such statement may be audited by independent accountants in accordance with generally accepted auditing standards.

3.14.2 Approval of Statement of Discharge. The statement of charge and discharge required by Section 3.14.1 hereof shall be filed with the Bankruptcy Court. The withdrawing EPI Liquidating Trustee acting as such as of the Termination Date, shall be discharged from all liability to the EPI Liquidating Trust or any Person who has had or may then or thereafter have an interest in the EPI Liquidating Trust for acts or omissions in the EPI Liquidating Trustee’s capacity as the EPI Liquidating Trustee or in any other capacity contemplated by this EPI Liquidating Trust Agreement, the EPI Plan, or the EPI Confirmation Order, excluding liability for fraud, gross negligence, and willful misconduct.

3.14.3 Costs Relating to Statement of Discharge. The expenses of any accounting, including, but not limited to any statement of charge or discharge, shall be paid by the EPI Liquidating Trust as an EPI Liquidating Trust Operating Expense.

3.14.4 Continuance of EPI Liquidating Trust for Winding Up. After the termination of the EPI Liquidating Trust under Section 9 hereof and solely for the purpose of liquidating and winding up the affairs of the EPI Liquidating Trust, the EPI Liquidating Trustee shall continue to act as such until their duties have been fully performed and shall continue to be entitled to receive the fees permitted under this EPI Liquidating Trust Agreement. Upon distribution of all the EPI Liquidating Trust Assets, the EPI Liquidating Trustee may retain the books, records, and files that shall have been delivered to or created by the EPI Liquidating Trustee or duplicates (physical or electronic) of such books, records, and files for archival purposes, if they deem necessary. Except as otherwise specifically provided herein, upon the Final Distribution of EPI Liquidating Trust Assets, the EPI Liquidating Trustee shall be deemed discharged, as set forth herein, and have no further duties or obligations hereunder, except to account to the EPI Liquidating Trust Beneficiaries as provided herein, all interests in the EPI Liquidating Trust (collectively, the “EPI Liquidating Trust Interests”) shall be cancelled, and the EPI Liquidating Trust will be deemed to have dissolved.

3.15 Confidentiality. The EPI Liquidating Trustee, BSP, the Preferred Interest Representative, and any Representative of the EPI Liquidating Trust or of the EPI Liquidating Trustee (each, a “Confidentiality Party”) shall hold strictly confidential and not use for personal gain any material, non-public information of, or pertaining to, any person or entity to which any of the EPI Liquidating Trust Assets relates or of which it has become aware in its capacity (the “Information”). The foregoing is not intended to prohibit, nor shall it be construed as prohibiting, a Confidentiality Party from making such


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disclosures of information to the extent disclosure is required by applicable law, order, regulation, or legal process, it being understood that no Confidentiality Party is permitted to use any Information for personal gain at any time. In the event that any Confidentiality Party is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigation, demand, or similar legal process) to disclose any Information, such Confidentiality Party shall notify the EPI Liquidating Trustee promptly (unless prohibited by law) so that the EPI Liquidating Trustee may seek an appropriate protective order or other appropriate remedy or, in their discretion, waive compliance with the terms of this Section 3.15. In the event that no such protective order or other remedy is obtained, or that the EPI Liquidating Trustee waives compliance with the terms of this Section 3.15 and any Confidentiality Party is nonetheless legally compelled to disclose the Information, the Confidentiality Party will furnish only that portion of the Information, which the Confidentiality Party, advised by counsel, is legally required and will give the EPI Liquidating Trustee written notice (unless prohibited by law) of the Information to be disclosed and exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to the Information. Notwithstanding anything in this EPI Liquidating Trust Agreement to the contrary, the EPI Liquidating Trustee shall not disclose any Information that would result in a waiver of any Privileges.

ARTICLE 4 POWERS OF THE EPI LIQUIDATING TRUSTEE

4.1 Title. Legal title to all EPI Liquidating Trust Assets shall be vested in the EPI Liquidating Trust, except that the EPI Liquidating Trustee shall, subject to the consent of BSP, in consultation with the Preferred Interest Representative, have the power to cause legal title (or evidence of title) to any of the EPI Liquidating Trust Assets to be held by any nominee or Person, on such terms, in such manner, and with such powers as the EPI Liquidating Trustee hereunder may determine, and the EPI Liquidating Trustee shall comply with all provisions of law that may bear on the evidencing of ownership of and title to any portion of the EPI Liquidating Trust Assets as are necessary and appropriate and that the EPI Liquidating Trustee determines are in the best interests of the EPI Liquidating Trust. Upon the transfer of the EPI Liquidating Trust Assets to the EPI Liquidating Trust, EPI shall have no interest in or claim to the EPI Liquidating Trust Assets or the EPI Liquidating Trust, and the EPI Liquidating Trust shall succeed to all of the EPI’ rights, title, and interest in and to the EPI Liquidating Trust Assets. Notwithstanding anything in this EPI Liquidating Trust Agreement to the contrary, the transfer of the EPI Liquidating Trust Assets to the EPI Liquidating Trust does not diminish, and fully preserves, any defenses a defendant would have if such EPI Liquidating Trust Assets had been retained by EPI. To the extent that any EPI Liquidating Trust Assets cannot be transferred to the EPI Liquidating Trust because of a restriction on transferability under applicable non-bankruptcy law that is not superseded or preempted by section 1123 of the Bankruptcy Code or any other provision of the Bankruptcy Code, such EPI Liquidating Trust Assets shall be deemed to have been retained by EPI, and the EPI Liquidating Trustee shall be deemed to have been designated as a representative of EPI pursuant to section 1123(b)(3)(B) of the Bankruptcy Code to enforce and pursue such EPI Liquidating Trust Assets on behalf of EPI, and all proceeds, income, and recoveries on account of any such EPI Liquidating Trust Assets shall be assets of the EPI Liquidating Trust and paid over thereto immediately upon receipt by EPI, or any other Person. Notwithstanding the foregoing, all net proceeds, income, and recoveries of or on account of such EPI Liquidating Trust Assets shall be transferred to the EPI Liquidating Trust to be distributed to the EPI Liquidating Trust Beneficiaries consistent with the terms of the EPI Plan and this EPI Liquidating Trust Agreement.

4.2 Management Power. Except as otherwise expressly limited in this EPI Liquidating Trust Agreement, the EPI Plan, or the EPI Confirmation Order, the EPI Liquidating Trustee shall have control and authority over the EPI Liquidating Trust Assets, over the management and disposition thereof and over the management and conduct of the affairs of the EPI Liquidating Trust to the same extent as if the EPI Liquidating Trustee was the sole owner thereof in their own right. To the extent not otherwise specifically addressed or required in this Liquidating Trust Agreement, all non-ministerial decisions of the EPI


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Liquidating Trustee are subject to the consent of BSP, which shall not be unreasonably withheld; provided, however, to the extent that the EPI Liquidating Trustee provides notice to BSP requesting consent for a particular action and receive no reply on or before the date that is fourteen (14) days after such notice has been provided, the EPI Liquidating Trustee shall exercise its judgment for the benefit of the EPI Liquidating Trust Beneficiaries in order to maximize the value of distributions, giving due regard to the cost, risk, uncertainty of outcome, and delay of any course of action. In connection with the management and use of the EPI Liquidating Trust Assets, the EPI Liquidating Trustee’s powers, except as otherwise expressly limited in this EPI Liquidating Trust Agreement, the EPI Plan, or the EPI Confirmation Order, shall include, but shall not be limited to, the following:

(a) to accept the EPI Liquidating Trust Assets, to pursue the liquidation and marshaling of the EPI Liquidating Trust Assets, to preserve and protect the EPI Liquidating Trust Assets, and to have exclusive possession and control thereof as permissible under applicable law;

(b) in accordance with section 1123(b)(3) of the Bankruptcy Code and the EPI Plan, to investigate, prosecute, enforce, compromise, settle, release, abandon, or otherwise dispose of, all EPI Liquidating Trust Causes of Action;

(c) to: (i) file, withdraw, or litigate to judgment, objections to Disputed Claims or Disputed EPI Preferred Interests (if any) in EPI Classes 3 and 4; (ii) settle or compromise any Disputed Claims or Disputed EPI Preferred Interests in EPI Classes 3 and 4, subject to Bankruptcy Court approval, provided, however, that Bankruptcy Court approval shall not be required to settle or compromise a Disputed Claim in the amount of $250,000 or less; and (3) administer and adjust the Claims Register to reflect any such settlements or compromises;

(d) to make or cause to be made distributions of EPI Liquidating Trust Available Cash (as defined in section 7.1 below) to holders of EPI Liquidating Trust Interests in accordance with the terms of this EPI Liquidating Trust Agreement and the EPI Plan;

(e) to liquidate and distribute EPI Liquidating Trust Assets or any part thereof or any interest therein upon such terms and for such consideration as the EPI Liquidating Trustee deems proper;

(f) to withhold from the amount distributable to any person or entity such amount as may be required by applicable tax law pursuant to Section 8.6 hereof;

(g) to engage in all acts that would constitute ordinary performance of the obligations of a trustee under a liquidating trust, including the filing of all federal returns as a grantor trust and the making of any advance tax payment;

(h) to file (or cause to be prepared and filed) any and all tax and information returns with respect to the EPI Liquidating Trust;

(i) to pay taxes properly payable by the EPI Liquidating Trust, if any;

(j) to request any appropriate tax determination, including, without limitation, a determination pursuant to section 505 of the Bankruptcy Code;

(k) to make tax elections for and on behalf of the EPI Liquidating Trust;


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(l) to file and prosecute claims for tax refunds to which the EPI Liquidating Trust may be entitled;

(m) to obtain insurance with such coverage and limits as the EPI Liquidating Trustee deems desirable, including, without limitation, insurance covering liabilities of the EPI Liquidating Trustee Parties or Representatives of the EPI Liquidating Trust incurred in connection with their services to the EPI Liquidating Trust in the form of an errors or omissions policy, general liability, directors’ and officers’ insurance (D&O), or otherwise;

(n) to appoint, engage, employ, and compensate any Representatives as are necessary to carry out its duties, including the EPI Liquidating Trust Registrar (as defined below);

(o) to supervise retained Representatives as are necessary to carry out the EPI Liquidating Trustee’s duties and the purposes of the EPI Liquidating Trust, including the EPI Liquidating Trust Registrar (as defined below);

(p) subject to the limitations in Section 5.2 hereof, to invest and reinvest Cash available to the EPI Liquidating Trust, pending distribution, and to liquidate such investments;

(q) to determine the manner of ascertainment of income and principal, and the apportionment of income and principal, and the apportionment between income and principal of all receipts and disbursements, and to select an annual accounting period;

(r) establish such funds, reserves, and accounts within the EPI Liquidating Trust estate, as deemed by the EPI Liquidating Trustee in its discretion to be useful in carrying out the purposes of the EPI Liquidating Trust and draw checks or make withdrawals or wire transfers from such accounts, and to pay or distribute such amounts of the EPI Liquidating Trust Assets as permitted or required under the EPI Plan, the EPI Confirmation Order, and this EPI Liquidating Trust Agreement;

(s) sue and be sued and participate, as a party or otherwise, in any judicial, administrative, arbitrative, or other proceeding;

(t) delegate any or all of the discretionary power and authority herein conferred at any time with respect to all or any portion of the EPI Liquidating Trust estate to any one or more reputable individuals or recognized institutional advisers or investment managers without liability for any action taken or omission made because of any such delegation, except for such liability as is provided in Section 3.10 hereof;

(u) consult with BSP and, in the EPI Liquidating Trustee’s sole discretion, or at the reasonable request of, the Preferred Interest Representative, at such times and with respect to such issues relating to the conduct of the EPI Liquidating Trust as the EPI Liquidating Trustee considers desirable and in accordance with the terms of this EPI Liquidating Trust Agreement;

(v) execute, deliver, and perform such other agreements and documents and to take or cause to be taken any and all such other actions as it may deem necessary or desirable to effectuate and carry out the purposes of this EPI Liquidating Trust Agreement;

(w) undertake any action or perform any obligation provided for or required by the EPI Plan or the EPI Confirmation Order;


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(x) protect and enforce the rights to the EPI Liquidating Trust Assets by any method deemed appropriate including, without limitation, by judicial proceedings or pursuant to any applicable bankruptcy, insolvency, moratorium, or similar law and general principles of equity;

(y) determine and satisfy any and all liabilities created, incurred, or assumed by the EPI Liquidating Trust;

(z) execute offsets against or recoup from Claims as provided for in the EPI Plan, the EPI Confirmation Order, or this EPI Liquidating Trust Agreement;

(aa) subject to Section 6.2 hereof, assert or waive any privilege or defense on behalf of the EPI Liquidating Trust;

(bb) seek the examination of any entity under, and subject to, the provisions of Bankruptcy Rule 2004;

(cc) to pay filing fees from EPI Liquidating Trust Assets as the EPI Liquidating Trustee deems appropriate;

(dd) to pay reasonable litigation costs from EPI Liquidating Trust Assets as the EPI Liquidating Trustee deems appropriate;

(ee) take or refrain from taking any and all actions the EPI Liquidating Trustee reasonably deems necessary for the continuation, protection, and maximization of the EPI Liquidating Trust Assets or to carry out the purposes of this EPI Liquidating Trust Agreement; and

(ff) in the event that the EPI Liquidating Trust shall fail or cease to qualify as a liquidating trust within the meaning of Treasury Regulation section 301.7701-4(d), to take any and all necessary actions as it shall deem appropriate to have such assets held by the EPI Liquidating Trust treated as held by an entity classified as a non-publicly traded partnership for federal tax purposes.

Each of the preceding management powers shall be expressly limited as provided for in Article V and Article VI of the EPI Plan.

4.2.1 Guidance from Court. Notwithstanding anything contained in this EPI Liquidating Trust Agreement to the contrary, the EPI Liquidating Trustee may, but is not required to, submit a proposed action to a court of competent jurisdiction, including the Bankruptcy Court, for its approval (so long as such action is consistent with the purpose of the EPI Liquidating Trust), and may comply with any action approved by such court. Moreover, notwithstanding anything contained in this EPI Liquidating Trust Agreement to the contrary, counsel for the EPI Liquidating Trust shall, where agreement of or approval by either or both of (a) the EPI Liquidating Trustee or (b) BSP, as may be applicable, is required for a proposed action, but the EPI Liquidating Trustee or BSP, as applicable, are not in agreement, on reasonable notice (which shall be no less than 14 days’ notice, except if emergency relief is sought) submit such proposed action to a court of competent jurisdiction, including the Bankruptcy Court, for its approval (so long as such action is consistent with the purpose of the EPI Liquidating Trust).

4.2.2 Additional Powers. Except as otherwise set forth in this EPI Liquidating Trust Agreement, the EPI Plan, or the EPI Confirmation Order, and subject to the Treasury Regulations governing trusts, the retained jurisdiction of the Court as provided for in the EPI Plan or the EPI Confirmation Order,


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but without prior or further authorization, the EPI Liquidating Trustee may control and exercise authority over the EPI Liquidating Trust Assets and over the protection, conservation, and disposition thereof. No Person dealing with the EPI Liquidating Trust shall be obligated to inquire into the authority of the EPI Liquidating Trustee in connection with the protection, conservation, or disposition of the EPI Liquidating Trust Assets.

4.3 Commingling of EPI Liquidating Trust Assets. The EPI Liquidating Trustee shall not commingle any of the EPI Liquidating Trust Assets with their property or the property of any other Person; provided, however, that the EPI Liquidating Trustee shall be permitted to commingle the EPI Liquidating Trust Assets with the EPA Liquidating Trust Assets established under the terms of the EPA Plan if (a) the EPI Liquidating Trustee determines that such transfer is in the best interests of the EPI Liquidating Trust Beneficiaries and (b) the Bankruptcy Court approves such transfer.

4.4 Employment and Compensation of Professionals and Other Representatives. The EPI Liquidating Trustee shall have the authority to employ and compensate Representatives, including a registrar (the “EPI Liquidating Trust Registrar”) and a disbursing agent to make Distributions (collectively, the “Trustee Professionals”), as determined necessary for the operation of the EPI Liquidating Trust from time to time by the EPI Liquidating Trustee. The EPI Liquidating Trustee may pay the reasonable fees and expenses of such parties as an EPI Liquidating Trust Operating Expense without application to the Bankruptcy Court.

4.5 Dispute Resolution. In the event of a dispute between the EPI Liquidating Trustee, on the one hand, and any EPI Liquidating Trust Beneficiary, BSP, or any other person or entity, on the other hand, involving an allegation that any party has failed to act in a manner consistent with the EPI Plan, the EPI Confirmation Order, or this EPI Liquidating Trust Agreement, or is in breach of any applicable fiduciary duty, the parties shall meet and confer and attempt to reach a consensual resolution of the dispute. Should a consensual resolution of such dispute not be reached, the EPI Liquidating Trustee, the applicable EPI Liquidating Trust Beneficiary, BSP, or any other person or entity involved in such disputes may seek appropriate relief from the Bankruptcy Court, and the Bankruptcy Court shall retain jurisdiction to adjudicate or resolve such disputes.

ARTICLE 5 OBLIGATIONS OF THE EPI LIQUIDATING TRUSTEE

5.1 Reports and Records.

5.1.1 Records. The EPI Liquidating Trustee shall maintain records and books of accounts relating to the EPI Liquidating Trust Assets, the management thereof, and all transactions undertaken by the EPI Liquidating Trustee, which records and books of account shall be maintained in accordance with GAAP consistently applied, except to the extent that any change is approved by the EPI Liquidating Trust’s independent public accountants. The EPI Liquidating Trustee shall also maintain records and books of account relating to all distributions made pursuant to this EPI Liquidating Trust Agreement. The EPI Liquidating Trustee or the EPI Liquidating Trust Registrar shall maintain a register (the “EPI Liquidating Trust Register”) of the EPI Liquidating Trust Beneficiaries and EPI Liquidating Trust Interests in accordance with the terms of this EPI Liquidating Trust Agreement.

5.2 Eligible Investments. Cash held pending Distribution, including Cash held in the EPI Liquidating Trust Operating Reserve (as defined below), shall, to the extent permitted by applicable law and in the discretion of the EPI Liquidating Trustee, be invested by the EPI Liquidating Trustee in (a) direct obligations of, or obligations guaranteed by, or obligations secured by, the United States of America (including without limitation United States Treasury Bills); (b) obligations of any agency or corporation


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that is or may hereafter be created by or pursuant to an Act of the Congress of the United States as an agency or instrumentality thereof, or (c) demand deposits or short-term certificates of deposit at any bank or trust company that has, at the time of the acquisition by the EPI Liquidating Trustee of such investments, capital stock and surplus aggregating at least $100 million and whose short-term debt obligations are rated by at least two nationally recognized statistical rating organizations in one of the two highest categories therefor; provided that such investments are investments permitted to be made by a liquidating trust within the meaning of Treasury Regulation section 301.7701-4(d), as reflected therein, or under applicable Internal Revenue Service (“IRS”) guidelines, rulings, or other controlling authorities. Such investments shall mature in such amounts and at such times as, in the judgment of the EPI Liquidating Trustee at the times such investments are made, are necessary, or are desirable with a view to providing funds when needed to make payments from the EPI Liquidating Trust Assets. Any investment purchased with the EPI Liquidating Trust Assets shall be deemed a part of the EPI Liquidating Trust Assets. All interest, distributions, dividends, and proceeds received by the EPI Liquidating Trustee in respect of such investments shall be a part of the EPI Liquidating Trust Assets.

5.3 Deposit of Cash. In addition to the above, the Liquidating Trust shall be permitted, at the discretion of the EPI Liquidating Trustee, to deposit Cash in (a) any banks that are party to a Uniform Depository Agreement with the Office of the United States Trustee, (b) any banks that comply with the requirements of section 345 of the Bankruptcy Code, or (c) any banks that provide evidence of insurance sufficient, in the discretion of the EPI Liquidating Trustee, with respect to any deposits of Cash with such banks.

5.4 EPI Liquidating Trust Beneficiary Reports. The fiscal year of the EPI Liquidating Trust shall be the calendar year. In addition to the reporting required under Section 3.14.1 hereof and Section 8.2 hereof, upon request but not more frequently than every 120 days, the EPI Liquidating Trustee shall provide BSP and the Preferred Interest Representative with a detailed written report which contains: (a) an accounting of the Liquidating Trust Assets currently held by the Liquidating Trust; (b) a summary description of the progress of the EPI Liquidating Trust’s effort to liquidate such EPI Liquidating Trust Assets; (c) the estimated operating expenses incurred by the EPI Liquidating Trust within the previous calendar quarter; (d) a summary of the progress being made to make Distributions of the EPI Liquidating Trust Assets to the EPI Liquidating Trust Beneficiaries; and (e) such other material information the EPI Liquidating Trustee determines may be necessary or appropriate in the discretion of the EPI Liquidating Trustee. Following the delivery of the written report, the EPI Liquidating Trustee shall convene a call with BSP and the Preferred Interest Representative at a mutually convenient time to discuss the written report. Additionally, within 90 days after the end of each calendar year during the term of the EPI Liquidating Trust, the EPI Liquidating Trustee shall provide to BSP, and otherwise make available, upon request to counsel to the EPI Liquidating Trust, to any requesting EPI Liquidating Trust Beneficiary appearing on its records as of the end of such period, a summary report including information concerning the activities of the EPI Liquidating Trust, a description of the progress of liquidating EPI Liquidating Trust Assets and making distributions to EPI Liquidating Trust Beneficiaries and any other material information relating to the EPI Liquidating Trust Assets and the administration of the EPI Liquidating Trust for the previous fiscal year; provided that, notwithstanding the foregoing, upon request by BSP, the EPI Liquidating Trustee shall provide such information and accounting as reasonably requested by BSP in the ordinary course. The EPI Liquidating Trustee may post any or all of the reports required hereunder on a web site maintained by the EPI Liquidating Trustee or electronically file it with the Bankruptcy Court in lieu of actual notice to each EPI Liquidating Trust Beneficiary (unless otherwise required by law) other than BSP and the Preferred Interest Representative. The EPI Liquidating Trustee may require the recipient of such information to keep such information confidential pursuant to a confidentiality agreement in form and substance reasonably satisfactory to the EPI Liquidating Trustee. For the avoidance of doubt, nothing in this Section 5.4 shall be construed to limit or otherwise prejudice the rights, if any, of any EPI Liquidating Trust Beneficiary to


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request or otherwise seek additional information (regardless of whether such information could be included in the reports required under Sections 3.14.1 and 8.2 hereof) from the EPI Liquidating Trustee at any time.

5.5 United States Trustee Fees. After the Effective Date and until the Chapter 11 Case is closed, all fees incurred under 28 U.S.C. § 1930(a)(6) by reason of disbursements made under the EPI Liquidating Trust shall be paid by the EPI Liquidating Trustee as an EPI Liquidating Trust Operating Expense.

5.6 EPI Liquidating Trust Account. On the Effective Date, the EPI Liquidating Trustee shall establish an account (the “EPI Liquidating Trust Account”). The initial deposit into the EPI Liquidating Trust Account will be as set forth in Section 2.7 hereof. Thereafter, the EPI Liquidating Trustee shall deposit into the EPI Liquidating Trust Account recoveries from the liquidation of EPI Liquidating Trust Assets.

ARTICLE 6 EPI LIQUIDATING TRUST INTERESTS

6.1 Allocation of EPI Liquidating Trust Interests. As of the Effective Date, each Holder of an Allowed Claim in EPI Class 3 or an Allowed EPI Preferred Interest in EPI Class 4 shall be allocated an EPI Liquidating Trust Interest in the EPI Liquidating Trust equal in an amount to such Holder’s respective Allowed Claim or Allowed EPI Preferred Interest, in accordance with the EPI Plan, the Global Settlement Agreement, and the Global Settlement Order.

6.2 Delivery of Books and Records from EPI. On or as soon as practicable after the Effective Date, EPI shall provide the EPI Liquidating Trustee with reasonable access to the books and records and other information of EPI concerning the EPI Liquidating Trust Causes of Action (including those maintained in electronic format and original documents) whether held by EPI, its Representatives, or any other professional retained by EPI. In connection with the transfer of the EPI Liquidating Trust Causes of Action, any attorney-client privilege, work-product privilege, or other privilege or immunity attaching to any documents or communications (whether written or oral) relating to the EPI Liquidating Trust Causes of Action shall vest in the EPI Liquidating Trustee and their Representatives to the extent necessary to effect such privilege. EPI and the EPI Liquidating Trustee are authorized to take all necessary actions to effectuate the vesting of such privileges. The EPI Liquidating Trustee’s receipt of the privileges shall be without waiver of any such privileges, in recognition of the successorship interest in prosecuting claims on behalf of EPI’s Estate.

6.3 Register Entries Regarding EPI Liquidating Trust Interests. The EPI Liquidating Trustee or the EPI Liquidating Trust Registrar may make the following notations in the EPI Liquidating Trust Register:

(a) a notation reflecting the EPI Liquidating Trust Interest held by each Creditor holding an Allowed Claim in EPI Class 3 and each Holder of an Allowed EPI Preferred Interest in EPI Class 4, and the pro rata share of such EPI Liquidating Trust Interest in proportion of all Claims in EPI Class 3 or EPI Preferred Interests in EPI Class 4; and

(c) a notation reflecting the EPI Liquidating Trust Interest held by each Creditor holding a Disputed Claim in EPI Class 3 or Interest holder holding a Disputed EPI Preferred Interest in EPI Class 4 (each, a “Reserved EPI Liquidating Trust Interest”), and the pro rata share of such Reserved EPI Liquidating Trust Interest


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in proportion of all Claims in EPI Class 3 or EPI Preferred Interests in EPI Class 4.

6.4 Allocation of EPI Liquidating Trust Interests to Holders of Disputed Claims. The allocation of any EPI Liquidating Trust Interest on account of a Disputed Claim or Disputed EPI Preferred Interest pursuant to Section 6.1 hereof shall be reserved on the EPI Liquidating Trust Register maintained by the EPI Liquidating Trust Registrar and shall be designated as a Reserved EPI Liquidating Trust Interest. Any Claim in EPI Class 3 filed, in whole or in part, in an unknown or undetermined amount may be estimated by the EPI Liquidating Trustee, subject to approval by the Bankruptcy Court, and such Claim as estimated shall be deemed a Disputed Claim until otherwise Allowed, and consequently, shall be designated as a Reserved EPI Liquidating Trust Interest. To the extent all or a portion of a Disputed Claim is ultimately disallowed, the EPI Liquidating Trust shall reallocate among the remaining EPI Liquidating Trust Interests, the Reserved EPI Liquidating Trust Interest that relates to the portion of the Disputed Claim that was disallowed. To the extent all or a portion of a Disputed Claim ultimately becomes an Allowed Claim, the Reserved EPI Liquidating Trust Interest that relates to the portion of the Disputed Claim that was Allowed, shall be removed from the reserve. To the extent all or a portion of a Disputed EPI Preferred Interest is ultimately disallowed, the EPI Liquidating Trust shall reallocate among the remaining EPI Liquidating Trust Interests, the Reserved EPI Liquidating Trust Interest that relates to the portion of the Disputed EPI Preferred Interest that was disallowed. To the extent all or a portion of a Disputed EPI Preferred Interests ultimately becomes an Allowed EPI Preferred Interest, the Reserved EPI Liquidating Trust Interest that relates to the portion of the Disputed EPI Preferred Interest that was Allowed, shall be removed from the reserve.

6.5 Representation of EPI Liquidating Trust Interest. The EPI Liquidating Trust Interests shall be uncertificated and no evidence of any sort will be distributed to the EPI Liquidating Trust Beneficiaries with respect to their interest in the EPI Liquidating Trust. The EPI Liquidating Trust Interests shall be represented by appropriate book entries in the EPI Liquidating Trust Register.

6.6 EPI Liquidating Trust Register and EPI Liquidating Trust Registrar.

6.6.1 Appointment of EPI Liquidating Trust Registrar. The EPI Liquidating Trustee may appoint an EPI Liquidating Trust Registrar for the purpose of registering EPI Liquidating Trust Interests as herein provided. The EPI Liquidating Trust Registrar may be a duly qualified institution or the EPI Liquidating Trustee. For its services hereunder, the EPI Liquidating Trust Registrar, unless it is the EPI Liquidating Trustee, shall be entitled to receive reasonable compensation from the EPI Liquidating Trust as an EPI Liquidating Trust Operating Expense.

6.6.2 Register of EPI Liquidating Trust Interests. The EPI Liquidating Trustee may cause the EPI Liquidating Trust Register to be kept at the office of the EPI Liquidating Trust Registrar or at such other place or places that shall be designated by the EPI Liquidating Trustee from time to time.

6.6.3 Access to EPI Liquidating Trust Register by EPI Liquidating Trust Beneficiaries. EPI Liquidating Trust Beneficiaries and their duly authorized Representatives shall have the right, upon reasonable prior written notice to the EPI Liquidating Trust Registrar and the EPI Liquidating Trustee, and in accordance with reasonable regulations prescribed by the EPI Liquidating Trust Registrar, if any, and the EPI Liquidating Trustee, to inspect and at the expense of the EPI Liquidating Trust Beneficiary make copies of the EPI Liquidating Trust Register, in each case for a purpose reasonable and related to such EPI Liquidating Trust Beneficiary’s EPI Liquidating Trust Interest in the EPI Liquidating Trust.


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6.6.4 Absolute Owners; Interests Beneficial Only. The EPI Liquidating Trustee may deem and treat each EPI Liquidating Trust Beneficiary of record as determined pursuant to Section 6.1 hereof as the absolute owner of such EPI Liquidating Trust Interests for the purpose of receiving Distributions and payment thereon or on account thereof and for all other purposes whatsoever, and the EPI Liquidating Trustee shall not be charged with having received notice of any claim or demand to such EPI Liquidating Trust Interests or the interest therein of any other Person; provided that the EPI Liquidating Trustee shall make all Distributions to which the BSP Parties are entitled pursuant to the EPI Plan, the Global Settlement Agreement and the Global Settlement Order, and for all other purposes in connection with such Distributions to the BSP Parties directly. For the avoidance of doubt, except as expressly set forth in this Trust Agreement, the ownership of an EPI Liquidating Trust Interest shall not entitle any EPI Liquidating Trust Beneficiary to any title to, right to possession of, management of, or control of the EPI Liquidating Trust or the EPI Liquidating Trust Assets (which title shall be vested in the EPI Liquidating Trustee) or to any right to call for a partition or division of the EPI Liquidating Trust Assets or to require an accounting.

6.6.5 References to EPI Liquidating Trust Beneficiaries. Any reference herein to an EPI Liquidating Trust Beneficiary or to the holder of a EPI Liquidating Trust Interest means each Holder of an Allowed Claim in EPI Class 3 or an Allowed EPI Preferred Interest in Class 4 under the EPI Plan that is recorded on the official registry maintained by the EPI Liquidating Trustee and shall not include any Person not recorded on such official registry.

6.7 EPI Liquidating Trust Interests Non-Transferable. Except for any transfer to an Affiliate or managed fund of any EPI Liquidating Trust Beneficiary, EPI Liquidating Trust Interests shall not be transferred other than by will, intestate succession, or operation of law, or as set forth herein. Any transfer of an EPI Liquidating Trust Interest or any part thereof in violation of this Section 6.7 shall be void ab initio. Neither the EPI Liquidating Trustee nor other Persons affiliated with the EPI Liquidating Trust shall take any actions to facilitate or encourage any trading in the EPI Liquidating Trust Interests or any instrument or interest tied to the value of the EPI Liquidating Trust Interests. The EPI Liquidating Trustee shall be permitted to commingle the EPI Liquidating Trust Assets with the EPA Liquidating Trust Assets established under the terms of the EPA Plan if (a) the EPI Liquidating Trustee determines that such transfer is in the best interests of the EPI Liquidating Trust Beneficiaries and (b) the Bankruptcy Court approves such transfer.

6.8 Exemption from Registration. The EPI Liquidating Trust Interests have not been registered pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or any state securities law. It is the intention of the parties hereto that the rights of the EPI Liquidating Trust Beneficiaries under the EPI Liquidating Trust and the EPI Liquidating Trust Interests do not constitute “securities” under the Securities Act or any state securities law, provided that if the EPI Liquidating Trust Interests constitute “securities,” the parties hereto intend that the exemption from registration provided in section 1145 of the Bankruptcy Code shall apply to the EPI Liquidating Trust Interests. None of the parties hereto represents or warrants that the rights of an EPI Liquidating Trust Beneficiary under the EPI Liquidating Trust and the EPI Liquidating Trust Interests will not be securities or that their issuance under the EPI Plan will be entitled to exemption from registration under applicable securities laws.

6.9 Exchange Act. If, notwithstanding the restrictions on transfer provided herein, the EPI Liquidating Trustee believes that the EPI Liquidating Trust may have become subject to the registration requirements of the Securities Exchange Act of 1934, as Amended (the “Exchange Act”), the EPI Liquidating Trustee (a) may promptly seek no action relief from the staff of the SEC to be exempted from all or some of the requirements of the Exchange Act if advised by counsel to the EPI Liquidating Trust that such a request has a reasonable chance of success and (b) if such request is not granted by the SEC or the EPI Liquidating Trustee reasonably believes it shall not be granted, the EPI Liquidating Trustee shall cause


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the EPI Liquidating Trust to register pursuant to, and comply with, the applicable reporting requirements of the Exchange Act and to take any actions customary and appropriate in connection therewith.

ARTICLE 7 ADMINISTRATION OF THE EPI LIQUIDATING TRUST ESTATE

7.1 Establishment of EPI Liquidating Trust Available Cash. Prior to making any Distributions, the EPI Liquidating Trustee shall determine the amount of available Cash on hand in excess of current and anticipated reasonable EPI Liquidating Trust Operating Expenses and reserves (the “EPI Liquidating Trust Available Cash”), taking into account any EPI Liquidating Trust reserves created pursuant to this Article 7, including the Disputed Claims Reserve.

7.2 Establishment of EPI Liquidating Trust Operating Reserve and Related Matters.

7.2.1 EPI Liquidating Trust Operating Reserve. Within thirty (30) days after the Effective Date, and from time to time thereafter as necessary, the EPI Liquidating Trustee shall establish an account at a financial institution (the “EPI Liquidating Trust Operating Reserve”). Funds from the EPI Liquidating Trust Account shall be deposited into the EPI Liquidating Trust Operating Reserve for the payment of EPI Liquidating Trust Operating Expenses, including, but not limited to: (a) the unpaid liabilities, debts, or obligations of the EPI Liquidating Trust related to and arising out of operation of the EPI Liquidating Trust; (b) the fees of the EPI Liquidating Trustee; (c) all reasonable fees and expenses of Trustee Professionals; and (d) any and all other reasonable costs associated with the liquidation or preservation of the EPI Liquidating Trust Assets (the “EPI Liquidating Trust Operating Expenses”). The EPI Liquidating Trust Operating Reserve shall be funded with funds from the EPI Liquidating Trust Initial Funding and thereafter may be funded from time to time with additional Cash in an amount determined by the EPI Liquidating Trustee to be reasonably necessary to pay anticipated EPI Liquidating Trust Operating Expenses, and otherwise conduct the affairs of the EPI Liquidating Trust. EPI Liquidating Trust Operating Expenses shall be paid solely from the EPI Liquidating Trust Operating Reserve. Neither the EPI Liquidating Trust nor the EPI Liquidating Trustee on behalf of the EPI Liquidating Trust shall incur, create, or assume any debt or guarantee any obligation of any person or entity, including any EPI Liquidating Trust Beneficiary or originate any loans, except as allowed under the EPI Plan for the EPI Liquidating Trust Initial Funding.

7.2.2 Disputed Claims Reserve for EPI Liquidating Trust Beneficiaries. The EPI Liquidating Trustee shall establish a segregated reserve account for Disputed Claims as of the Effective Date (the “Disputed Claims Reserve”). On the date of each Trust Distribution Date, as defined in Article 7.4.1. herein, the EPI Liquidating Trustee shall deposit into the Disputed Claims Reserve any distribution otherwise payable to an EPI Liquidating Trust Beneficiary holding a Reserved EPI Liquidating Trust Interest to ensure equivalent distributions on account of such Disputed Claims in the event they are later determined to be Allowed Claims.

7.3 Prosecution and Resolution of Causes of Action.

7.3.1 The EPI Liquidating Trust’s Authority to Pursue, Settle, or Abandon Causes of Action. Subject to complying with the reporting provisions in section 5.4, and section 7.3.2, hereof, the EPI Liquidating Trust shall have the exclusive right, power, and interest to pursue, settle, or abandon all EPI Liquidating Trust Causes of Action; provided that the EPI Liquidating Trustee shall obtain the consent of BSP in connection therewith.

7.3.2 Settlement of Causes of Action. Any settlement or abandonment of any EPI Liquidating Trust Cause of Action shall require approval only of the EPI Liquidating Trustee and BSP, and


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be subject to approval of the Bankruptcy Court after reasonable notice (which shall be no less than 14 days’ notice, except if emergency relief is sought) to the EPI Liquidating Trust Beneficiaries and opportunity for hearing.

7.4 Distributions to Holders of EPI Liquidating Trust Interests.

7.4.1 Distributions Generally. With the consent of the Oversight Entity, the EPI Liquidating Trustee may make Distributions to EPI Liquidating Trust Beneficiaries. Every Distribution shall be made from EPI Liquidating Trust Available Cash and shall be made pursuant to the EPI Plan, the EPI Confirmation Order, and this EPI Liquidating Trust Agreement. At least once annually, the EPI Liquidating Trustee shall determine, in consultation with the Oversight Entity, whether there is sufficient EPI Liquidating Trust Available Cash to make a Distribution to the EPI Liquidating Trust Beneficiaries, and if there is sufficient EPI Liquidating Trust Available Cash, it will be distributed. Each date that a Distribution is made pursuant to the terms of this Article 7 is a “Distribution Date.”

7.4.2 Distributions to EPI Liquidating Trust Beneficiaries. Distributions shall be made pursuant to the terms of the EPI Plan or the EPI Confirmation Order. The EPI Liquidating Trustee shall not make any Distributions of EPI Liquidating Trust Assets to the EPI Liquidating Trust Beneficiaries unless the EPI Liquidating Trustee retains and reserves in the Disputed Claims Reserve on account of Reserved EPI Liquidating Trust Interests such amounts as are necessary to satisfy amounts that would have been distributed in respect of Disputed Claims if the Disputed Claims were determined to be Allowed Claims immediately prior to such proposed Distribution to EPI Liquidating Trust Beneficiaries.

7.4.3 Distributions to Holders of Reserved EPI Liquidating Trust Interests. No Distributions shall be made to the Holder of a Disputed Claim or Disputed Interest until such Disputed Claim or Disputed Interest becomes an Allowed Claim or Allowed Interest, as applicable. To the extent a Reserved EPI Liquidating Trust Interest is removed from the Disputed Claim Reserve on the EPI Liquidating Trust Register in accordance with Section 6.4 hereof, any Cash in the Disputed Claims Reserve relating to the portion of a Disputed Claim that ultimately becomes an Allowed Claim shall become EPI Liquidating Trust Available Cash and the ratable share of such Cash attributable to the Allowed Claim held by the applicable EPI Liquidating Trust Beneficiary shall be released and distributed to such EPI Liquidating Trust Beneficiary on the next Distribution Date for such claim. To the extent a Reserved EPI Liquidating Trust Interest attributable to the portion of a Disputed Claim that is ultimately disallowed is reallocated among the remaining EPI Liquidating Trust Interests in accordance with Section 6.4 hereof, any Cash in the Disputed Claims Reserve relating to such Reserved EPI Liquidating Trust Interest shall become EPI Liquidating Trust Available Cash and shall be released and distributed on the next Distribution Date to the holders of such remaining EPI Liquidating Trust Interests entitled to Distributions at such time, subject to the obligation of the EPI Liquidating Trustee to continue to reserve Cash on account of Disputed Claims or Disputed EPI Preferred Interests and the EPI Liquidating Trust Operating Reserve.

7.4.4 Right to Setoff of the EPI Liquidating Trust and the EPI Liquidating Trustee. The EPI Liquidating Trustee may (but shall not be required to), pursuant to sections 553 and 558 of the Bankruptcy Code or applicable non-bankruptcy law, setoff against or recoup from any Distribution to a EPI Liquidating Trust Beneficiary to be made under the EPI Plan, the EPI Confirmation Order, or this EPI Liquidating Trust Agreement any claims or causes of action of any nature whatsoever the EPI Liquidating Trustee or the EPI Liquidating Trust may have against such EPI Liquidating Trust Beneficiary; provided that neither the failure to effect such offset or recoupment nor the allowance of any Claim or Interest shall constitute a waiver or release by the EPI Liquidating Trustee of any setoff or recoupment the EPI Liquidating Trustee or the EPI Liquidating Trust may have against such EPI Liquidating Trust Beneficiary, nor of any other claim or cause of action.


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7.4.5 Right to Setoff of Non-Debtor Parties. Except as set forth in the EPI Plan or the EPI Confirmation Order, unless otherwise authorized by a Final Order, any Holder of a Claim or EPI Preferred Interest must assert any setoff rights against a Claim by EPI against such Entity by timely filing an appropriate motion on or before the EPI Confirmation Date seeking authority to setoff, or will be deemed to have waived and be forever barred from asserting any right to setoff against a Claim by EPI; provided, however, that the right of EPI, the EPI Liquidating Trustee, or the EPI Liquidating Trust, as applicable, to object to the validity of any asserted right of setoff shall be preserved.

7.5 Place and Manner of Payments or Distributions. The EPI Liquidating Trustee shall make distributions to the EPI Liquidating Trust Beneficiaries of record as of the close of business on the fifteenth business day prior to the Distribution Date (the “Distribution Record Date”) by (a) mailing such distribution to the EPI Liquidating Trust Beneficiary at the address of such EPI Liquidating Trust Beneficiary as listed in the Schedules, or any proof of claim filed by the EPI Liquidating Trust Beneficiary, or as listed in the EPI Liquidating Trust Register, or at such other address as such EPI Liquidating Trust Beneficiary shall have specified for payment purposes in a written notice to the EPI Liquidating Trustee and the EPI Liquidating Trust Registrar at least twenty (20) days before the Distribution Date, or (b) making such distribution by wire or such other method as the EPI Liquidating Trustee deems appropriate under the circumstances. Prior to receiving any distributions, all EPI Liquidating Trust Beneficiaries, at the EPI Liquidating Trustee’s request, must provide to the EPI Liquidating Trustee written notification of their respective Federal Tax Identification Number(s) or Social Security Number(s). Notwithstanding anything to the contrary contained herein, each lender under the Guaranty Agreement, as holders of Allowed General Unsecured Claims, shall be deemed an EPI Liquidating Trust Beneficiary entitled to receive its respective Pro Rata share of all Distributions hereunder and under the terms of the EPI Plan as holders of Allowed General Unsecured Claims.

7.6 De Minimis Payments. Notwithstanding any other provision of the EPI Plan or this EPI Liquidating Trust Agreement, the EPI Liquidating Trustee or any other Person acting on behalf of the EPI Liquidating Trust shall not be required to make distributions of Cash less than $25.00 in value. In addition, the EPI Liquidating Trustee shall not be required to make a distribution on account of any Allowed Claim or EPI Preferred Interest if the aggregate amount of all distributions authorized to be made on such date is less than $20,000, in which case such distributions shall be deferred to the next Distribution Date, unless such distribution would be the final distribution to either or both of Holders of Allowed Claims or Allowed EPI Preferred Interests.

7.7 Unclaimed or Undeliverable Distributions. In the event (a) a EPI Liquidating Trust Beneficiary entitled to payments from the EPI Liquidating Trust fails to provide the EPI Liquidating Trustee its Federal Tax Identification Number or Social Security Number within 60 days after the date of the EPI Liquidating Trustee’s written request, (b) a check issued to a EPI Liquidating Trust Beneficiary remains uncashed for one hundred and twenty (120) days after its issuance date, or (c) a distribution or other payment is returned as undeliverable (provided that the EPI Liquidating Trustee shall use commercially reasonable efforts to determine the current address of such EPI Liquidating Trust Beneficiary), then the distribution or payment and any related Claim or obligation shall be deemed waived, such EPI Liquidating Trust Beneficiary shall no longer be entitled to receive distributions or payments unless and until the EPI Liquidating Trust Beneficiary provides its Federal Tax Identification Number(s) or Social Security Number(s), and such unclaimed or undeliverable distribution or payment shall be distributed on the next Distribution Date to the holders of EPI Liquidating Trust Interests as if such distribution were Available Cash. Without further Court order, unclaimed funds in an amount of $10,000 per EPI Liquidating Trust Beneficiary or less held by the EPI Liquidating Trust on the earlier of the entry of the final decree closing the Chapter 11 Cases and the termination of the EPI Liquidating Trust may be donated to a charity selected by the EPI Liquidating Trustee.


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EPI Liquidating Trust Beneficiaries who change addresses (including email addresses) must notify the EPI Liquidating Trustee of such change of address in writing by any of the methods set forth in Section 10.1 hereof.

7.8 No Distribution in Excess of Allowed Amount of Claim or EPI Preferred Interest. Notwithstanding anything to the contrary herein, no holder of an EPI Liquidating Trust Interest shall receive, after taking into account payments from third parties, in respect of such EPI Liquidating Trust Interest any distribution in excess of the Allowed amount of such EPI Liquidating Trust Beneficiary’s Allowed Claim against or Allowed EPI Preferred Interest. No holder of an EPI Liquidating Trust Interest shall receive, in the aggregate, distributions from the EPI Liquidating Trust Assets in excess of such EPI Liquidating Trust Beneficiary’s Allowed Claim against or Allowed EPI Preferred Interest.

ARTICLE 8 TAX MATTERS

8.1 Tax Treatment. For all federal income tax purposes, all relevant parties (including, without limitation, EPI, the EPI Liquidating Trustee, and the EPI Liquidating Trust Beneficiaries) shall treat the transfer of the EPI Liquidating Trust Assets to the EPI Liquidating Trust for the benefit of the EPI Liquidating Trust Beneficiaries, as (a) a transfer of the EPI Liquidating Trust Assets (subject to any obligations relating to such EPI Liquidating Trust Assets) directly to the EPI Liquidating Trust Beneficiaries and, to the extent the EPI Liquidating Trust Assets are allocable to Disputed Claims or Disputed EPI Preferred Interests, as applicable, that are the responsibility of the EPI Liquidating Trust to resolve, to the Disputed Claims Reserve, followed by (b) the transfer by the EPI Liquidating Trust Beneficiaries to the EPI Liquidating Trust of the EPI Liquidating Trust Assets (other than the EPI Liquidating Trust Assets allocable to the Disputed Claims Reserve) in exchange for EPI Liquidating Trust Interests. Accordingly, the EPI Liquidating Trust Beneficiaries shall be treated for U.S. federal income tax purposes as the grantors and owners of their respective undivided share of the EPI Liquidating Trust Assets (other than such EPI Liquidating Trust Assets that are allocable to the Disputed Claims Reserve). The foregoing treatment shall also apply, to the extent permitted by applicable law, for state and local income tax purposes.

8.2 Tax Treatment of Disputed Claims Reserve. Subject to contrary definitive guidance from the Internal Revenue Service or a court of competent jurisdiction (including the receipt by the EPI Liquidating Trustee of a private letter ruling if the EPI Liquidating Trustee so requests, or the receipt of an adverse determination by the Internal Revenue Service upon audit if not contested by the EPI Liquidating Trustee), the EPI Liquidating Trustee may (a) timely elect to treat any Disputed Claims reserve as a “disputed ownership fund” governed by Treasury Regulation section 1.468B-9 and (b) to the extent permitted by applicable law, report consistently with the foregoing for state and local income tax purposes. All parties (including the EPI Liquidating Trustee and the EPI Liquidating Trust Beneficiaries) shall report for U.S. federal, state, and local income tax purposes consistently with the foregoing.

8.3 Tax Returns and Statements. The “taxable year” of the EPI Liquidating Trust shall be the “calendar year” as such terms are defined in section 441 of the IRC. The EPI Liquidating Trustee shall file tax returns for the EPI Liquidating Trust treating the EPI Liquidating Trust as a grantor trust pursuant to Treasury Regulation section 1.671-4(a) and in accordance with this Section 8.3. The EPI Liquidating Trustee also will annually send to each EPI Liquidating Trust Beneficiary a separate statement setting forth the EPI Liquidating Trust Beneficiary’s share of items of income, gain, loss, deduction, or credit (including the receipts and expenditures of the EPI Liquidating Trust) as relevant for U.S. federal income tax purposes and will instruct all such holders to use such information in preparing their U.S. federal income tax returns or to forward the appropriate information to such holder’s underlying beneficial holders with instructions to utilize such information in preparing their U.S. federal income tax returns. The EPI Liquidating Trustee


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shall also file (or cause to be filed) any other statement, return, or disclosure relating to the EPI Liquidating Trust that is required by any governmental unit.

8.4 Payment of Taxes. With respect to any EPI Liquidating Trust Assets and any other income or gain of the EPI Liquidating Trust allocable to Disputed Claims or Disputed EPI Preferred Interests, the EPI Liquidating Trustee shall cause the EPI Liquidating Trust to pay any taxes imposed on the EPI Liquidating Trust by any federal, state, or local, or any foreign tax law. The amount of such taxes paid by the EPI Liquidating Trust with respect to a Disputed Claim or Disputed EPI Preferred Interest (a) will reduce the amount distributed with respect to such Disputed Claim or Disputed EPI Preferred Interest to the extent it becomes an Allowed Claim or Allowed EPI Preferred Interest, as applicable, and (b) to the extent such Disputed Claim or Disputed EPI Preferred Interest does not become an Allowed Claim or Allowed Epi Preferred Interest, as applicable, will reduce distributions ratably to all Holders in the same Class as such Disputed Claim or Disputed EPI Preferred Interest, as applicable; provided that any taxes that reduce distributions pursuant to the foregoing clauses (a) and (b) shall, for all purposes of this EPI Liquidating Trust Agreement, be treated as amounts distributed to those Holders of Claims or EPI Preferred Interests, as applicable, whose distributions are so reduced.

8.5 Allocations of EPI Liquidating Trust Taxable Income. Allocations of EPI Liquidating Trust taxable income among the EPI Liquidating Trust Beneficiaries shall be determined by reference to the manner in which an amount of Cash equal to such taxable income would be distributed (without regard to any restrictions on distributions described herein) if, immediately prior to such deemed distribution, the EPI Liquidating Trust had distributed all its assets (valued at their tax book value) to the EPI Liquidating Trust Beneficiaries, in each case up to the tax book value of the assets treated as contributed by the EPI Liquidating Trust Beneficiaries, adjusted for prior taxable income and loss and taking into account all prior and concurrent distributions from the EPI Liquidating Trust. Taxable loss of the EPI Liquidating Trust shall be allocated by reference to the manner in which an economic loss would be borne immediately after a hypothetical liquidating distribution of the EPI Liquidating Trust Assets. The tax book value of the EPI Liquidating Trust Assets for this purpose shall equal their fair market value on the Effective Date, adjusted in accordance with tax accounting principles prescribed by the IRC, the applicable tax regulations, and other applicable administrative and judicial authorities and pronouncements. For purposes of this Section 8.5, “taxable income” means aggregate items of income and gain realized for U.S. federal income tax purposes and “taxable loss” means aggregate items of loss and deduction realized for U.S. federal income tax purposes, all such items determined on a gross, rather than net, basis.

8.6 Withholding. The EPI Liquidating Trustee may withhold and pay to the appropriate tax authority all amounts required to be withheld pursuant to any federal, state, local, or foreign tax law with respect to any payment or distribution to the EPI Liquidating Trust Beneficiaries. All such amounts withheld and paid to the appropriate tax authority shall be treated as amounts distributed to such EPI Liquidating Trust Beneficiaries for all purposes of this EPI Liquidating Trust Agreement. The EPI Liquidating Trustee shall be authorized to collect such tax information from the EPI Liquidating Trust Beneficiaries (including, without limitation, social security numbers or other tax identification numbers) as it, in its sole discretion, deems necessary to effectuate the EPI Plan, the EPI Confirmation Order, and this EPI Liquidating Trust Agreement. In order to receive distributions under the EPI Plan, all EPI Liquidating Trust Beneficiaries will need to identify themselves to the EPI Liquidating Trustee and provide tax information and the specifics of their holdings, to the extent the EPI Liquidating Trustee deems appropriate, including a taxpayer identification number (“TIN”) as assigned by the Internal Revenue Service or, in the case of EPI Liquidating Trust Beneficiaries that are not United States persons for federal income tax purposes, certification of foreign status on the appropriate IRS Form W-8. This identification requirement may, in certain cases, extend to holders who hold their securities in street name. The EPI Liquidating Trustee may refuse to make a distribution to any EPI Liquidating Trust Beneficiary that fails to furnish such information in a timely fashion, until such information is delivered; provided that, upon the delivery of such


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information by a EPI Liquidating Trust Beneficiary, the EPI Liquidating Trustee shall make such distribution to which the EPI Liquidating Trust Beneficiary is entitled, without interest. If the EPI Liquidating Trustee fails to withhold in respect of amounts received or distributable with respect to any such holder and the EPI Liquidating Trustee is later held liable for the amount of such withholding, such holder shall reimburse the EPI Liquidating Trustee for such liability.

8.7 Valuation. As soon as practicable after the Effective Date, the EPI Liquidating Trustee shall make a good faith valuation of the EPI Liquidating Trust Assets, in consultation with BSP and the Preferred Interest Representative, and such valuation shall be made available from time to time, in writing, to the EPI Liquidating Trust Beneficiaries and shall be used consistently by all parties (including, without limitation, the EPI Liquidating Trustee and the EPI Liquidating Trust Beneficiaries) for all federal income tax purposes. In connection with the preparation of the valuation contemplated by the EPI Plan and this EPI Liquidating Trust Agreement, the EPI Liquidating Trust shall be entitled to retain such professionals and advisors as the EPI Liquidating Trust shall determine to be appropriate or necessary, and the EPI Liquidating Trustee shall take such other actions in connection therewith as it determines to be appropriate or necessary. The EPI Liquidating Trust shall bear all of the reasonable costs and expenses incurred in connection with determining such valuation, including the fees and expenses of any Trustee Professionals retained in connection therewith.

8.8 Expedited Determination of Taxes. The EPI Liquidating Trustee may request an expedited determination of taxes of the EPI Liquidating Trust, including any Disputed Claims reserve, under section 505(b) of the Bankruptcy Code for all returns filed for, or on behalf of, the EPI Liquidating Trust for all taxable periods through the dissolution of the EPI Liquidating Trust.

ARTICLE 9 TERMINATION

The EPI Liquidating Trust shall terminate, in consultation with BSP and upon reasonable notice to the Preferred Interest Representative and its counsel, when (a) all EPI Liquidating Trust Assets have been distributed in accordance with the EPI Plan and all EPI Liquidating Trust Causes of Action have been resolved or abandoned pursuant to, and in accordance with, this EPI Liquidating Trust Agreement, (b) the EPI Liquidating Trustee determine that the administration of the EPI Liquidating Trust is not likely to yield sufficient additional proceeds to justify the pursuit of the EPI Liquidating Trust Causes of Action, and (c) either (i) the EPI Liquidating Trustee determines that the administration of the EPI Liquidating Trust is not likely to yield sufficient additional proceeds to justify the pursuit of reconciling and resolving all Disputed Claims in EPI Class 3 or Disputed EPI Preferred Interests in EPI Class 4 or (ii) all Allowed Claims in EPI Class 3 and Allowed EPI Preferred Interests in EPI Class 4 have been paid in full in accordance with the EPI Plan; provided that the term of the EPI Liquidating Trust shall not exceed five (5) years after the date this EPI Liquidating Trust is created. Notwithstanding the foregoing, the Bankruptcy Court, upon motion by the EPI Liquidating Trustee, within six (6) months before the expiration of the original term or any extended term of the EPI Liquidating Trust, may extend the term of the EPI Liquidating Trust for one or more finite terms based upon the particular facts and circumstances at that time, if it is in the best interest of the EPI Liquidating Trust Beneficiaries and an extension is necessary to further the liquidating purpose of the EPI Liquidating Trust. If at any time the EPI Liquidating Trustee determines, in reliance upon such professionals as the EPI Liquidating Trustee may retain, in consultation with the Oversight Entity, that the expense of administering the EPI Liquidating Trust so as to make a final distribution to the EPI Liquidating Trust Beneficiaries is likely to exceed the value of the assets remaining in the EPI Liquidating Trust, the EPI Liquidating Trustee may apply to the Bankruptcy Court for authority to (A) both before and in connection with termination, reserve any amount necessary to dissolve the EPI Liquidating Trust, (B)(i) distribute any balance to the EPI Liquidating Trust Beneficiaries or (ii) donate any balance to a charitable organization (a) described in section 501(c)(3) of the IRC, (b) exempt from U.S. federal income tax under


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section 501(a) of the IRC, (c) not a “private foundation” as defined in section 509(a) of the IRC, and (d) that is unrelated to the EPI Liquidating Trustee or any insider of the EPI Liquidating Trustee, and (C) dissolve the EPI Liquidating Trust. After all liabilities of the EPI Liquidating Trust have been satisfied or duly provided for (including through a reserve of funds by the EPI Liquidating Trustee for anticipated expenses not yet finalized in order to terminate the EPI Liquidating Trust), such remaining EPI Liquidating Trust Assets shall be distributed to EPI Liquidating Trust Beneficiaries as a final distribution. The EPI Liquidating Trust may not be terminated at any time by the EPI Liquidating Trust Beneficiaries.

ARTICLE 10 MISCELLANEOUS

10.1 Notices. Any notice required to be given by this EPI Liquidating Trust Agreement to all EPI Liquidating Trust Beneficiaries shall be in writing and shall be sent by electronic mail (which shall be deemed received upon an acknowledgement of the receipt of same) , or in the case of mailing to a non-United States address for which electronic mail is not available or an acknowledgement is not promptly received, air mail, postage prepaid. All other notices, requests, or other communications required or permitted to be made in accordance with this EPI Liquidating Trust Agreement shall be in writing and shall be delivered by electronic mail (which shall be deemed received upon an acknowledgement of the receipt of same), or by U.S. overnight mail, signature required to:

(a) If to the EPI Liquidating Trustee:

North Country Capital LLC Attn.: Matthew Doheny 215 Washington Street Suite 6 Watertown, NY 13601 [email protected]

(b) if to any EPI Liquidating Trust Beneficiary in such EPI Liquidating Trust Beneficiary’s

capacity as an EPI Liquidating Trust Beneficiary, at such EPI Liquidating Trust Beneficiary’s address as listed in the EPI Liquidating Trust Register or as identified in a written request for notice delivered to the EPI Liquidating Trustee.

(c) If to BSP :

Benefit Street Partners Attn.: John Horstman, Director 1401 McKinney Street, Suite 1650 Houston, TX 77010 [email protected] Baker Botts LLP Attn.: Emanuel C. Grillo, Esq. Robin Spigel, Esq. 30 Rockefeller Plaza New York, NY 10112 [email protected] [email protected]


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(d) If to the Preferred Interest Representative

ACR Alpine Capital Research Attn: Mark Unferth and Ryan Linkul 8000 Maryland Ave—Suite 700 Saint Louis, MO 63105 [email protected] [email protected] [email protected] Ashby & Geddes PA Attn: Bill Bowden, Esq. 500 Delaware Avenue, 8th Fl. Wilmington, DE 19801 [email protected]

Notice mailed shall be effective on the date mailed. All other notices shall be effective on the date of delivery. Any Person may change the address at which it is to receive notices under this EPI Liquidating Trust Agreement by furnishing written notice pursuant to the provisions of this Section 10.1 to the person or entity to be charged with knowledge of such change.

10.2 Amendment. The EPI Liquidating Trustee may, with the approval of BSP, modify, supplement, or amend this EPI Liquidating Trust Agreement in any way that is not inconsistent with the EPI Plan, the EPI Confirmation Order, the Global Settlement Agreement, or the Global Settlement Order without further order of the Bankruptcy Court, including to: (a) cure any ambiguity, omission, defect, or inconsistency in this EPI Liquidating Trust Agreement; provided that such amendments, supplements or waivers shall not adversely affect the U.S. federal income tax status of the EPI Liquidating Trust as a “liquidating trust”; (b) comply with any requirements in connection with the U.S. federal income tax status of the EPI Liquidating Trust as a “liquidating trust”; (c) comply with any requirements in connection with maintaining that the EPI Liquidating Trust is not subject to registration or reporting requirements of the Securities Act, the Exchange Act, the Trust Indenture Act of 1939, or the Investment Company Act of 1940; (d) make the EPI Liquidating Trust a reporting entity and, in such event, to comply with or seek relief from any requirements in connection with satisfying the registration or reporting requirements of the Securities Act, the Exchange Act, the Trust Indenture Act of 1939, or the Investment Company Act of 1940; and (e) add or revise provisions related to the rights and obligations of the EPI Liquidating Trustee; provided that no change may be made to this EPI Liquidating Trust Agreement without the prior approval of the Bankruptcy Court (upon notice and an opportunity for a hearing) that would (A) adversely affect (i) the distributions to any of the EPI Liquidating Trust Beneficiaries or (ii) the U.S. federal income tax status of the EPI Liquidating Trust as a “liquidating trust,” (B) require any EPI Liquidating Trust Beneficiary to furnish or advance funds to the EPI Liquidating Trustee or entail any personal liability or the surrender of any individual right on the part of any EPI Liquidating Trust Beneficiary except with the written consent of such EPI Liquidating Trust Beneficiary, (C) expand, add to, or modify the original stated purpose of the EPI Liquidating Trust (as described in the EPI Plan and this EPI Liquidating Trust Agreement), or (D) otherwise be in contravention of the EPI Plan. Notwithstanding this Section 10.2, any amendments to this EPI Liquidating Trust Agreement shall not be inconsistent with the purpose and intention of the EPI Liquidating Trust to liquidate in an expeditious but orderly manner the EPI Liquidating Trust Assets in accordance with Treasury Regulation section 301.7701-4(d). In the event that the EPI Liquidating Trustee and the Oversight Entity are unable to reach a consensus regarding a proposed modification, supplement, or amendment, either party may seek Bankruptcy Court approval of any such modification, supplement, or amendment. Notwithstanding anything to the contrary contained herein, this EPI Liquidating Trust Agreement, including this section 10.2, may not be amended without the consent of BSP if such amendment


27 601898514.13

would affect any of the BSP Parties; and notwithstanding anything to the contrary contained herein, this EPI Liquidating Trust Agreement, including this section 10.2, may not be amended without the consent of the Preferred Interest Representative if such amendment would adversely affect any of the EPI Preferred Interest Holders.

10.3 No Waiver. No failure by the EPI Liquidating Trust or the EPI Liquidating Trustee to exercise or delay in exercising any right, power, or privilege hereunder shall operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any further exercise thereof, or of any other right, power, or privilege.

10.4 Counterparts. This EPI Liquidating Trust Agreement may be executed in one or more counterparts, all of which shall be taken together to constitute one and the same instrument.

10.5 Governing Law; Severability. This EPI Liquidating Trust Agreement shall be governed by, construed under, and interpreted in accordance with the laws of the State of Delaware. If a court of competent jurisdiction determines that any provision of this EPI Liquidating Trust Agreement is invalid or unenforceable under such applicable law, such invalidity or unenforceability shall not invalidate the entire EPI Liquidating Trust Agreement. In that case, this EPI Liquidating Trust Agreement shall be construed so as to limit any term or provision so as to make it enforceable or valid within the requirements of applicable law, and, if such term or provision cannot be so limited, this EPI Liquidating Trust Agreement shall be construed to omit such invalid or unenforceable provisions, provided that such construction, to the maximum extent possible, shall give effect to the purposes of the EPI Plan.

10.6 Headings. Sections, subheadings, and other headings used in this EPI Liquidating Trust Agreement are for convenience only and shall not affect the construction of this EPI Liquidating Trust Agreement.

10.7 Relationship to EPI Plan and EPI Confirmation Order. The EPI Liquidating Trustee shall be bound by the terms of the EPI Plan which incorporates the provisions of the Global Settlement Agreement with respect to the distribution of the assets of EPI’s estate. In the event of a conflict between the EPI Plan (excluding this EPI Liquidating Trust Agreement) and this EPI Liquidating Trust Agreement, the EPI Plan shall govern. If there is any conflict among the terms of the EPI Confirmation Order, the EPI Plan, and this EPI Liquidating Trust Agreement, the terms of the EPI Confirmation Order shall govern.

10.8 Consent to Jurisdiction. Each of the parties hereto (and each EPI Liquidating Trust Beneficiary by virtue of the benefits provided pursuant to the EPI Plan and the EPI Liquidating Trust created hereunder) consents and submits to the jurisdiction of and venue in the United States Bankruptcy Court for the District of Delaware for all purposes of this EPI Liquidating Trust Agreement, including, without limitation, any action or proceeding instituted for the enforcement of any right, remedy, obligation, or liability arising under or by reason hereof.

10.9 Waiver of Jury Trial. ANY AND ALL RIGHT TO TRIAL BY JURY IS HEREBY WAIVED, AND THERE SHALL BE NO RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS EPI LIQUIDATING TRUST AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

10.10 References to EPI. If EPI no longer exists at any time during the terms of this EPI Liquidating Trust, the EPI Liquidating Trustee shall take all actions under this EPI Liquidating Trust Agreement without regard to requirements that it meet with, consult with, or seek approval from EPI.


28 601898514.13

10.11 No Suits by Creditors. No Creditor shall have any right by virtue of any provision of this EPI Liquidating Trust Agreement to institute any action or proceeding in law or in equity against any party other than the EPI Liquidating Trustee on or under or with respect to the EPI Liquidating Trust Assets.

10.12 Irrevocability. The EPI Liquidating Trust is irrevocable, but is subject to amendment as provided for herein.

10.13 Enforcement and Administration. The Bankruptcy Court shall enforce and administer the provisions of this EPI Liquidating Trust Agreement, as set forth in the EPI Plan and herein.

10.14 Third Party Beneficiaries. This EPI Liquidating Trust Agreement is not intended to and shall not be construed to give any Person (other than the parties to this EPI Liquidating Trust Agreement) any interest or rights (including, without limitation, any third party beneficiary rights) with respect to or in connection with any agreement or provision contained herein or contemplated hereby, except that the EPI Liquidating Trust Beneficiaries and the Indemnified Parties are third-party beneficiaries and are entitled, as applicable to such Persons, to the rights and benefits hereunder and may enforce the provisions applicable to such Persons as if they were parties hereto.

IN WITNESS WHEREOF, the parties hereto have executed this EPI Liquidating Trust Agreement or have caused this EPI Liquidating Trust Agreement to be duly executed by duly authorized officers as of the day and year first above written.

EPI LIQUIDATING TRUSTEE By: Matthew Doheny, on behalf of North Country Capital, LLC, as EPI Liquidating Trustee ELK PETROLEUM, INC., As Debtor and Debtor in Possession By:


29 601898514.13

Exhibit 1: EPI Liquidating Trust Beneficiaries


30 601898514.13

Exhibit 2: Compensation of the EPI Liquidating Trustee

The EPI Liquidating Trustee shall be compensated at the rate of $10,000 per month (or a prorated amount for any partial month’s service).4 In addition, the EPI Liquidating Trustee shall receive, as and when received by the EPI Liquidating Trust:

2% of the fully liquidated amount of any EPI Liquidating Trust Assets reduced to cash or cash equivalents, until such cash or cash equivalents for the EPI Liquidating Trust assets exceeds $1,000,000 (excluding the initial funding of the EPI Liquidating Trust pursuant to Section 2.7 of the EPI Liquidating Trust Agreement) (the “First Threshold”), plus

4% of the fully liquidated amount of any EPI Liquidating Trust Assets reduced to cash or cash equivalents that is over and above the First Threshold, up to an amount of $2,000,000 of cash or cash equivalents that is obtained or received for the EPI Liquidating Trust Assets (the “Second Threshold”), plus

6% of the fully liquidated amount of any EPI Liquidating Trust Assets reduced to cash or

cash equivalents that is obtained or received for the EPI Liquidating Trust Assets in excess of the Second Threshold.

To the extent the EPI Liquidating Trustee determines, in its reasoned judgment, that its actions resulted in other actual and tangible monetary benefits to the EPI Liquidating Trust Beneficiaries (such as the reduction of meritorious claims of third parties that would otherwise dilute the cash recovery of the EPI Liquidating Trust Beneficiaries, in lieu of any payment of funds by such third parties), then the EPI Liquidating Trustee may seek to have such benefits treated as cash or cash equivalents, if agreed to by the Oversight Entity following consultation with the Preferred Interest Representative, or approved by the Bankruptcy Court. In addition, if the EPI Liquidating Trustee is required, or requested by the EPI Liquidating Trust, to prepare for or assist counsel in preparation for, or appear or testify at, deposition, hearing, or trial (or other form of dispute resolution, mediation, arbitration, settlement conference, or the like), the EPI Liquidating Trust shall pay such EPI Liquidating Trustee an additional per diem rate of $5,000 per day for each full day spent on such tasks, or $750 per hour for any partial days, not to exceed $5,000 per day.

4 The EPI Liquidating Trustee, which shall also serve as trustee of the EPA Liquidating Trust, shall only be

entitled to the compensation provided by the terms of this EPI Liquidating Trust Agreement upon the establishment of the EPI Liquidating Trust and shall, in no event, following the establishment of the EPI Liquidating Trust, receive any further compensation under the terms of the EPA Liquidating Trust Agreement.


EXHIBIT C


Post Effective Winddown

Accrued May Jun Jul (a) Aug Sept Oct Nov Dec Total

Cash

Cash on hand 5/12/20 (book) 11,961 11,961 11,961 11,961 145,550 37,500 14,000 0 0 11,961

Cash from Madden 0 0 0 1,804,703 0 0 0 0 0 1,804,703

Disbursements (below) (1,671,114) (39,130) (23,500) (14,000) 0 0 (1,747,744)

Payments to Professionals Deferred Fees (68,920) (68,920)

Ending Cash 11,961 11,961 11,961 145,550 37,500 14,000 0 0 0 0

Administrative Claims

Directors Fees

North Country Capital 20,000 20,000 40,000

Charles Reardon 20,000 20,000 40,000

Redan Advisors LLC 20,000 20,000 40,000

Director expenses 21,000 5,000 26,000

Management Fees

North Country Capital 5,000 5,000 10,000

Asgaard 5,000 5,000 10,000

Estimated expense reimbursement 5,000 5,000

Professional fees

Chipman Brown Cicero & Cole 85,000 75,000 15,000 175,000

Stretto (claims agent) 25,000 25,000 25,000 75,000

Plante & Moran (taxes) 25,000 25,000

US Trustee Fees 4,875 14,000 18,875

Norton Rose Fulbright 37,542 8,661

Womble Bond Dickinson 27,547 5,969

Other expenses

South Check (accounting) 6,000 6,000 6,000 6,000 24,000

Post TSA (Randy) 625 625 12,500 12,500 26,250

Ondrish (tax return support) 6,000 5,000 11,000

D&O Tail 280,000 280,000

EOS Claim for Insurance re-imbursement 100,000 100,000

Contingency for Chapter 11 expenses 75,000 75,000

Total Administrative Claims 85,000 100,000 202,714 596,500 39,130 23,500 14,000 0 0 981,125

Funding of Combined Trust

Initial funding of Combined Trust 100,000 100,000

Funding to Combined Trust (balance) 586,900 586,900

Total Disbursements 185,000 100,000 202,714 1,183,400 39,130 23,500 14,000 0 0 1,668,025

Unpaid Chapter 11 Prof Fee Claims

Est Billings Available %

Chipman Brown Cicero & Cole 188,600 13,283 7.04

Norton Rose Fulbright 150,000 10,564 7.04

Ankura 150,000 10,564 7.04

Morris Nichols 450,000 31,692 7.04

Norton Rose Fulbright 40,000 2,817 7.04

Womble Bond Dickinson 0 0

Total 978,600 68,920 7.04 (a) Assumes Effective Date end of July

Elk Disclosure Statement - Sources and Uses (602068883v1 USA).XLSX


Documents

IN THE UNITED STATES BANKRUPTCY COURT FOR …strettodocs.s3.amazonaws.com/files/47512377-646e-4e52-bc...IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ELK