Item 1.
Business
Introduction
ECA Marcellus Trust I is a statutory trust formed in March 2010 under the Delaware Statutory Trust Act, pursuant to a Trust Agreement, as
amended and restated (the "Trust Agreement"), among Energy Corporation of America ("Legacy ECA"), as Trustor, The Bank of New York Mellon Trust Company, N.A., as Trustee (the "Trustee"), and
Wilmington Trust Company, as Delaware Trustee (the "Delaware Trustee"). The Trust maintains its offices at the office of the Trustee, at 601 Travis Street, 16
th
Floor, Houston
Texas 77002. The telephone number of the Trustee is 1-512-236-6555.
In
November 2017, Greylock Energy, LLC and certain of its wholly owned subsidiaries ("Greylock Energy"), including Greylock Production, LLC ("Greylock Production"), which
serves as operator of the subject wells, and Greylock Midstream, LLC ("Greylock Midstream"), whose subsidiaries market and gather certain of the gas, acquired substantially all of the gas
production and midstream assets of Legacy ECA, including all of Legacy ECA's interests in certain natural gas properties that are subject to royalty interests held by the Trust (the "Acquisition").
In
connection with the Acquisition, Greylock Production assumed all of Legacy ECA's obligations under the Trust Agreement and other instruments to which Legacy ECA and the Trustee were
parties, including (1) the Administrative Services Agreement by and among Legacy ECA, the Trust and the Trustee dated July 7, 2010, and (2) a letter agreement between Legacy ECA
and the Trustee regarding certain loans to be made by Legacy ECA to the Trust as necessary to enable the Trust to pay its liabilities as they become due (the "Letter Agreement"). In addition, Legacy
ECA, Greylock Production, and the Trustee entered into a Reaffirmation and Amendment of Mortgage, Assignment of Leases, Security Agreement, Fixture Filing and Financing Statement (the "Reaffirmation
Agreement"), pursuant to which, among other things, Greylock Production (1) reaffirmed the liens and the security interest granted pursuant to the existing mortgage securing the interests in
the subject properties, as well as the mortgage and the obligations of Legacy ECA under the mortgage, and (2) assumed the obligations of Legacy ECA under the Letter Agreement.
The
Trust makes copies of its reports under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), available at www.businesswire.com/cnn/ect.htm. The Trust's filings under
the Exchange Act are also available electronically from the website maintained by the SEC at http://www.sec.gov. The Trust will also provide electronic and paper copies of its filings free of charge
upon request to the Trustee.
General
The Trust does not conduct any operations or activities. The Trust's purpose is, in general, to hold the Royalty Interests (described below), to
distribute to the Trust unitholders cash that the Trust receives in respect of the Royalty Interests after the payment of Trust expenses, and to perform certain administrative functions in respect of
the Royalty Interests and the Trust units. The Trustee has no authority or responsibility for, and no involvement with, any aspect of the oil and gas operations on the properties to which the Royalty
Interests relate. The Trust derives all or substantially all of its income and cash flows from the Royalty Interests. The Trust is treated as a partnership for federal and state income tax purposes.
Initially,
the Trust owned royalty interests in the 14 Producing Wells described in the Prospectus (the "Producing Wells") and royalty interests in 52 horizontal natural gas development
wells to be drilled to the Marcellus Shale formation (the "PUD Wells") within the AMI, in which Legacy ECA held approximately 9,300 acres, of which it owned substantially all of the working interests,
in Greene
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County,
Pennsylvania. The AMI consisted of the Marcellus Shale formation in approximately 121 square miles in Greene County, Pennsylvania.
Legacy
ECA completed its drilling obligation to the Trust under the Development Agreement as of November 30, 2011, approximately 2.3 years in advance of the required
completion date of March 31, 2014. Consequently, no additional wells have been or will be drilled for the Trust. As of December 31, 2018 the Trust owns Royalty Interests in the 14
Producing Wells and the 40 development wells (52.06 Equivalent PUD Wells) that are now completed and in production. The 14 Producing Wells and the 40 development wells (52.06 Equivalent PUD Wells) are
sometimes herein called the "Trust Wells".
The
royalty interests were conveyed from Legacy ECA's working interest in the Producing Wells and the PUD Wells limited to the Marcellus Shale formation (the "Underlying Properties").
The royalty interest in the Producing Wells (the "PDP Royalty Interest") entitles the Trust to receive 90% of the proceeds (exclusive of any production or development costs but after deducting
post-production costs and any applicable taxes) from the sale of production of natural gas attributable to Legacy ECA's interest in the Producing Wells for a period of 20 years commencing on
April 1, 2010 and 45% thereafter. The royalty interest in the PUD Wells (the "PUD Royalty Interest" and together with the PDP Royalty Interest, the "Royalty Interests") entitles the Trust to
receive 50% of the proceeds (exclusive of any production or development costs but after deducting post-production costs and any applicable taxes) from the sale of production of natural gas
attributable to Legacy ECA's interest in the
PUD Wells for a period of 20 years commencing on April 1, 2010 and 25% thereafter. As used herein, the term "Producing Wells" means the 14 Producing Wells as defined above, and does not
include the 40 PUD Wells, although they also have been completed and are producing.
Legacy
ECA was obligated to drill all of the PUD Wells no later than March 31, 2014. As of November 30, 2011, Legacy ECA had fulfilled its drilling obligation to the Trust
by drilling 40 PUD Wells (52.06 Equivalent PUD Wells), calculated as provided in the Development Agreement. The Trust was not responsible for any costs related to the drilling of development wells or
any other development or operating costs. The Trust's cash receipts in respect of the Royalty Interests is determined after deducting post-production costs and any applicable taxes associated with the
Royalty Interests, and the Trust's cash available for distribution includes any cash receipts from the hedge contracts and is reduced by Trust administrative expenses. Post-production costs generally
consist of costs incurred to gather, compress, transport, process, treat, dehydrate and market the natural gas produced. Charges payable to Legacy ECA for such post-production costs on the related
Greene County Gathering System (the "Post-Production Services Fee") were limited to $0.52 per MMBtu gathered until Legacy ECA fulfilled its drilling obligation in 2011; since then Legacy ECA was, and
after the Acquisition Greylock Midstream is, permitted to increase the Post-Production Services Fee to the extent necessary to recover certain capital expenditures in the Greene County Gathering
System ("GCGS").
Generally,
the percentage of production proceeds to be received by the Trust with respect to a well equals the product of (i) the percentage of proceeds to which the Trust is
entitled under the terms of the conveyances (90% for the Producing Wells and 50% for the PUD Wells) multiplied by (ii) Legacy ECA's net revenue interest in the well. Legacy ECA on average owned
an 81.53% net revenue interest in the Producing Wells. Therefore, the Trust was entitled to receive on average 73.37% of the proceeds of production from the Producing Wells. With respect to the PUD
Wells, the conveyance related to the PUD Royalty Interest provides that the proceeds from the PUD Wells are calculated on the basis that the underlying PUD Wells are burdened only by interests that in
total would not exceed 12.5% of the revenues from such properties, regardless of whether the royalty interest owners are actually entitled to a greater percentage of revenues from such properties. As
an example, assuming Legacy ECA owns a 100% working interest in a PUD Well, the applicable net revenue interest is calculated by multiplying Legacy ECA's percentage working interest in the 100%
working interest well by the unburdened interest percentage (87.5%) and such well would have a minimum 87.5% net revenue interest. Accordingly, the Trust is entitled to a minimum of 43.75% of the
production proceeds from the well
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provided
in this example. To the extent Legacy ECA's working interest in a PUD Well is less than 100%, the Trust's share of proceeds would be proportionately reduced.
As
described under "—Duration of the Trust; Sale of Royalty Interests" below, the Trust is required to dissolve if the gross proceeds received by the Trust attributable to
the Royalty Interests
over any four consecutive quarters are less than $1.5 million. Gross proceeds over the four consecutive quarters ended December 31, 2018 were $6.9 million.
Historical Target Distributions
The Trust makes quarterly cash distributions of substantially all of its cash receipts, after deducting Trust administrative expenses, including
the costs incurred as a result of being a publicly traded entity, on or about the 60
th
day following the completion of each quarter. Unless it is sooner liquidated, the Trust will
liquidate on or about March 31, 2030.
The
amount of Trust revenues and cash distributions to Trust unitholders depend on, among other things:
-
•
-
natural gas prices received;
-
•
-
the volume and Btu rating of natural gas produced and sold;
-
•
-
post-production costs and any applicable taxes;
-
•
-
administrative expenses of the Trust including expenses incurred as a result of being a publicly traded entity, and any changes in amounts
reserved for such expenses; and
-
•
-
through March 31, 2014, the effects of the hedge arrangements.
The
effective date of the Trust was April 1, 2010, meaning the Trust has received the proceeds of production attributable to the PDP Royalty Interest from that date even though
the PDP Royalty Interest was not conveyed to the Trust until July 7, 2010. The amount of the quarterly distributions fluctuates from quarter to quarter, depending on the proceeds received by
the Trust, among other factors. There is no minimum required distribution.
Pursuant
to Section 1446 of the Internal Revenue Code of 1986 (the "IRC"), withholding tax on income effectively connected to a United States trade or business allocated to
non-U.S. persons ("ECI") should be made at the highest marginal rate. Under IRC Section 1441, withholding tax on fixed, determinable, annual, periodic income from United States sources
allocated to non-U.S. persons should be made at 30% of gross income unless the rate is reduced by treaty. Nominees and brokers should withhold at the highest marginal rate on the distribution made to
non-U.S. persons. The Tax Cuts and Jobs Act enacted in December 2017 treats a non-U.S. holder's gain on the sale of Trust units as ECI to the extent such holder would have had ECI if the Trust had
sold all of its assets at fair market value on the date of the exchange. The new legislation also requires the transferee of units to withhold 10% of the amount realized on the sale of exchange of
units (generally, the purchase price) unless the transferor certifies that it is not a nonresident alien individual or foreign corporation.
The
Trust makes quarterly cash distributions of substantially all of its cash receipts, after deducting Trust administrative expenses, including the costs incurred as a result of being a
publicly traded entity, on or about the 60
th
day following the completion of each quarter. Unless sooner liquidated, as discussed in detail below under the caption "The Trustee
may, under certain circumstances, sell the Royalty Interests and dissolve the Trust. Unless sooner terminated, the Trust will begin to terminate following the end of the 20 year period in which
the Trust owns the Term Royalty Interests" in Item 1A. Risk Factors, the Trust will liquidate on or about March 31, 2030 (the "Termination Date"). At the Termination Date, 50% of each of
the PDP Royalty Interest and the PUD Royalty Interest will revert automatically to Greylock Production. The remaining 50% of each of the PDP Royalty Interest
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and
the PUD Royalty Interest will be sold, and the net proceeds will be distributed pro rata to the unitholders soon after the Termination Date. Greylock Production will have a right of first refusal
to purchase the remaining 50% of the Royalty Interests at the Termination Date. Because payments to the Trust will be generated by depleting assets and the Trust has a finite life with the production
from the Underlying Properties diminishing over time, a portion of each distribution will represent a return of the original investment in the Trust units.
The
Trustee can authorize the Trust to borrow money to pay Trust administrative or incidental expenses that exceed cash held by the Trust. The Trustee may authorize the Trust to borrow
from the Trustee as a lender provided the terms of the loan are fair to the Trust unitholders, although the Trustee does not intend to make any such loans. The Trustee may also deposit funds awaiting
distribution in an account with itself, if the interest paid to the Trust at least equals amounts paid by the Trustee on similar deposits, and make other short term investments with the funds
distributed to the Trust. The Trustee may also hold funds awaiting distribution in a non interest bearing account.
The
Trust is responsible for paying all legal, accounting, tax advisory, engineering, printing costs and other administrative and out-of-pocket expenses incurred by or at the direction
of the Trustee. The Trust is also responsible for paying other expenses, including the expenses of tax return and Schedule K-1 preparation and distribution, and expenses incurred as a result of
being a publicly traded entity, including costs associated with annual and quarterly reports to unitholders, independent auditor fees and registrar and transfer agent fees.
The Administrative Services Agreement
The Trust is party to an Administrative Services Agreement ("ASA") with Greylock Production, which assumed Legacy ECA's obligations under the
ASA subsequent to the Acquisition. The ASA obligates the Trust to pay Greylock Production an administrative services fee for accounting, bookkeeping and informational services to be performed by
Greylock Production on behalf of the Trust relating to the Royalty Interests. The annual fee of $60,000 is payable in equal quarterly installments. Under certain circumstances, Greylock Production and
the Trustee each may terminate the ASA at any time following delivery of notice no less than 90 days prior to the date of termination.
The Development Agreement
In connection with the formation of the Trust, the Trust and Legacy ECA entered into a Development Agreement that obligated Legacy ECA to drill
all of the PUD Wells by March 31, 2014. Legacy ECA was obligated to bear all of the costs of drilling and completing the PUD Wells. Legacy ECA was required to complete and equip each
development well that reasonably appeared to be capable of producing gas in quantities sufficient to pay completion, equipping and operating costs. Legacy ECA drilled, completed and equipped each of
the development wells.
For
purposes of Legacy ECA's drilling obligation, and subject to the following paragraph, Legacy ECA was credited with a full development well drilled if its working interest in the
development well drilled
was 100%. Where Legacy ECA's working interest in a development well drilled was less than 100%, Legacy ECA was credited with a portion of a development well in the proportion that its working interest
in the development well bears to 100%. For example, if Legacy ECA's working interest in a development well drilled by Legacy ECA in connection with fulfilling its drilling obligation to the Trust was
50%, Legacy ECA was credited with one-half of a development well for purposes of satisfying its drilling obligation in the period the development well was drilled.
Wells
drilled horizontally with a horizontal lateral distance (measured from the midpoint of the curve to the end of the lateral) of less than 2,500 feet counted as a Fractional well in
proportion to total lateral length divided by 2,500 feet. Wells with a horizontal lateral distance of greater than 2,500
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feet
(subject to a maximum of 3,500 feet) counted as one well plus a Fractional well equal to the length drilled in excess of 2,500 (up to 3,500 feet) feet divided by 2,500 feet.
In
accordance with these provisions of the Development Agreement, Legacy ECA drilled 40 development wells (52.06 Equivalent PUD Wells) to fulfill its obligation to drill the 52 PUD Wells
as required.
Legacy
ECA and, following the Acquisition, Greylock Production agreed not to drill and complete, and not to permit any other person within its control to drill and complete, any well on
the lease acreage that would have a perforated segment within 500 feet of any perforated interval of a PUD Well or Producing Well in the Marcellus Shale formation.
Marketing and Post-Production Services
Pursuant to the terms of the conveyances creating the Royalty Interests, Greylock Production has the responsibility to market, or cause to be
marketed, the natural gas production related to the Underlying Properties. The terms of the conveyances creating the Royalty Interests do not permit Greylock Production to charge any marketing fee
when determining the proceeds upon which the royalty payments are calculated. As a result, the proceeds to the Trust from the sales of natural gas production from the Underlying Properties are
determined based on the same price (net of post-production costs) that Greylock Production receives for natural gas production attributable to Greylock Production's retained interest.
Greylock
Midstream markets the majority of its operated production and markets all of the natural gas produced from the Underlying Properties. Greylock Midstream enters into gas sales
arrangements with large aggregators of supply, and these arrangements may be on a month-to-month basis or may be for a term of up to one year or longer. The natural gas is sold at a market price and
any applicable post-production costs are deducted.
All
of the production from the Producing Wells and the PUD Wells is currently gathered by Greylock Midstream on the GCGS that it operates and owns an interest in. The Trust paid the
initial Post-Production Services Fee of $0.52 per MMBtu for use of this system, including Greylock Midstream's costs to gather, compress, transport, process, treat, dehydrate and market the gas.
Legacy ECA was, and after the Acquisition Greylock Midstream is, permitted to increase this fee to the extent necessary to recover certain capital expenditures on the GCGS made after the completion of
the drilling period, provided the resulting charge does not exceed the prevailing charges in the area for similar services. This fee does not include the cost of fuel used in the compression process
or equivalent electricity charges when electric compressors are used, firm transportation charges on interstate gas pipelines, or other third-party charges. The Trust's cash available for distribution
is reduced by Greylock Midstream's deductions for these post-production services.
Greylock
Midstream may enter into arrangements with third parties to provide gathering, transportation, processing and other reasonable post-production services, including transportation
on downstream interstate pipelines. Such additional post-production costs will be expressed as either (1) a cost per MMBtu or Mcf or (2) a percentage of the gross production from a well.
To the extent that post-production costs are expressed as a cost per MMBtu or Mcf, such costs may be deducted by the purchaser of the natural gas prior to payment being made to Greylock Production for
such production. At other times, Greylock Midstream will make payments directly to the third parties providing such post-production services. In either instance, the Trust's cash available for
distribution will be reduced by the costs paid by Greylock Midstream for such post-production services provided by third parties. If the post-production costs are expressed as a percentage of the
gross production from a well, then the volume of production from that well actually available for sale is less than the applicable percentage charged, and as a result the reserves associated with that
well that are attributable to the Royalty Interests are reduced accordingly.
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The
post-production costs for the Trust's natural gas produced and sold averaged $0.65 per MMBtu and $0.69 per MMBtu for the years ended December 31, 2018 and 2017, respectively.
Such costs may increase or decrease in the future. The post-production costs attributable to third party arrangements may be costs established by arms-length negotiations or pursuant to a state or
federal regulatory proceeding. Greylock Production is permitted to deduct from the proceeds payable to the Trust other post-production costs necessary to make the natural gas from the Underlying
Properties marketable, so long as such costs do not materially exceed the charges prevailing in the area for similar services.
Greylock
Production has an agreement with Columbia Gas Transmission, LLC ("Columbia") to provide firm transportation downstream of the GCGS for 50,000 MMBtu per day. This firm
transportation arrangement has been in effect since August 1, 2011 and is at Columbia's filed tariff rate, which is currently $0.2082 per MMBtu at one hundred percent load factor. Unless
otherwise modified or altered, the agreement will terminate on July 31, 2021 with respect to 45,000 MMBtu per day, and on July 31, 2022 with respect to the remaining 5,000 MMBtu per day,
unless Greylock Production exercises its right of first refusal to extend the term. Greylock Production has entered into an additional agreement with Columbia to provide firm transportation downstream
of the GCGS for 100,000 MMBtu per day that will utilize Columbia's Mountaineer XPress Project. This firm transportation arrangement went into effect on January 18, 2019, and is at a fixed
demand rate of $0.50 per MMBtu at one hundred percent load factor plus applicable Columbia tariff surcharges. Unless otherwise modified or altered, this agreement will terminate in January 2034. Firm
transportation utilized as to the Trust's interests is a chargeable post-production cost, and the Trust bears its proportionate share of such costs.
Greylock
Production may enter into similar gas supply arrangements and post-production service arrangements for the natural gas to be produced from the Underlying Properties. Any new gas
supply arrangements or those entered into for providing post-production services, will be utilized in determining the proceeds for the Underlying Properties.
Competition and Markets
The natural gas industry is highly competitive. Greylock Production competes with major oil and gas companies and independent oil and gas
companies for oil and gas leases, equipment, personnel and markets for the sale of natural gas. Many of these competitors are financially stronger than Greylock Production, but even financially
troubled competitors can affect the market because they may need to sell natural gas regardless of price to attempt to maintain cash flow. The Trust is subject to the same competitive conditions as
Greylock Production and other companies in the natural gas industry.
Natural
gas competes with other forms of energy available to customers, primarily based on price. These alternate forms of energy include electricity, coal and fuel oils. Changes in the
availability or price of natural gas or other forms of energy, as well as business conditions, conservation, legislation, regulations and the ability to convert to alternate fuels and other forms of
energy may affect the demand for natural gas.
Future
prices for natural gas will directly affect Trust distributions, estimates of reserves attributable to the Trust's interests, and estimated and actual future net revenues to the
Trust. In view of the many uncertainties that affect the supply and demand for natural gas, neither the Trust nor Greylock
Production can make reliable predictions of future gas supply or demand, future gas prices or the effect of future gas prices on the Trust.
Natural Gas Regulation
The availability, terms and cost of transportation significantly affect sales of natural gas. The interstate transportation and sale for resale
of natural gas is subject to federal regulation, including
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regulation
of the terms, conditions and rates for interstate transportation, storage and various other matters, primarily by the Federal Energy Regulatory Commission ("FERC"). Federal and state
regulations govern the price and terms for access to natural gas pipeline transportation. The FERC's regulations for interstate natural gas transmission in some circumstances may also affect the
intrastate transportation of natural gas.
Although
natural gas prices are currently unregulated, Congress historically has been active in the area of natural gas regulation. Neither Greylock Production nor the Trust can predict
whether new legislation to regulate natural gas prices might be proposed, what proposals, if any, might actually be enacted by Congress or the various state legislatures, and what effect, if any, the
proposals might have on the operations of the Underlying Properties. Sales of condensate and natural gas liquids are not currently regulated and are made at market prices.
Environmental Matters and Regulation
The exploration, development and production operations of Greylock Production are subject to comprehensive federal, state and local laws and
regulations governing the discharge, emission or release of materials into the environment or otherwise relating to environmental protection or human health and safety. These laws and regulations may,
among other things, require the acquisition of permits to conduct construction, drilling, water withdrawal and waste disposal operations; govern the amounts and types of substances that may be
disposed, released or emitted into the
environment; limit or prohibit construction or drilling activities in sensitive areas such as wetlands, wilderness areas or areas containing endangered or threatened species or their habitats; require
investigatory and remedial actions to mitigate pollution conditions arising from Greylock Production's operations or attributable to former operations; and impose obligations to reclaim and abandon
well sites, impoundments and pits. Certain environmental statutes impose strict joint and several liability for costs required to clean up and restore sites where hazardous substances have been
disposed or otherwise released. The costs to comply with these laws, rules and regulations affect profitability. Moreover, compliance with these laws, rules and regulations may also restrict the rate
of oil and natural gas production below the rate that would otherwise be possible. Failure to comply with these laws and regulations may result in the assessment of administrative, civil and criminal
penalties, the imposition of remedial obligations, or the issuance of orders enjoining some or all of Greylock Production's operations.
Changes
in environmental regulation may place more restrictions and limitations on activities that may affect the environment, and thus, any future changes in environmental laws and
regulations or re-interpretation of enforcement policies that result in more stringent or costly construction, drilling, water withdrawal, waste handling, storage, transport, disposal, or remediation
requirements could have a material adverse effect on Greylock Production's capital expenditures, results of operations and financial position. Greylock Production may be unable to pass on increased
compliance costs to its customers. Moreover, accidental loss of well control, or releases or spills may occur in the course of Greylock Production's operations, and Greylock Production could incur
significant costs and liabilities as a result of such incidents, including any third-party claims for damage to property and natural resources or personal injury. Although Greylock Production believes
that it is in substantial compliance with existing environmental laws and regulations and that continued compliance with current requirements would not have a material adverse effect on Greylock
Production's capital expenditures, results of operations or financial position, Greylock Production might not be able to maintain such compliance in the future.
The
following is a summary of significant existing environmental, health and safety laws and regulations to which Greylock Production's business operations are subject and for which
compliance may have a material adverse impact on Greylock Production's capital expenditures, results of operations or financial position.
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Hazardous Substances and Wastes.
The Comprehensive Environmental Response, Compensation, and Liability Act, as amended, ("CERCLA"), also
known as the
Superfund law and comparable state laws impose liability without regard to fault or the legality of the original conduct on certain classes of persons who are considered to be jointly and severally
responsible for the release of a "hazardous substance" into the environment. These persons include current and prior owners or operators of the site where the release occurred and entities that
disposed or arranged for the disposal of the hazardous
substances found at the site. Under CERCLA, these "responsible persons" may be liable for the costs of cleaning up the hazardous substances that have been released into the environment, for damages to
natural resources, and for the costs of certain health studies. CERCLA also authorizes the EPA and, in some instances, third parties to act in response to threats to the public health or the
environment and then to seek to recover from the responsible classes of persons the costs they incur. It is not uncommon for neighboring landowners and other third parties to file claims for personal
injury and property damage allegedly caused by the release of hazardous substances or other pollutants into the environment. Greylock Production handles materials in the course of Greylock
Production's operations that may be regulated as hazardous substances.
Greylock
Production also generates solid and hazardous wastes that are subject to the requirements of the Resource Conservation and Recovery Act, as amended ("RCRA"), and comparable
state statutes. RCRA imposes strict requirements on the generation, storage, treatment, transportation and disposal of hazardous wastes. In the course of its operations, Greylock Production generates
petroleum hydrocarbon wastes and ordinary industrial wastes that may be classified as hazardous wastes under CERCLA and comparable state laws. Drilling fluids, produced waters, and most of the other
wastes associated with the exploration, production, and development of crude oil or natural gas are currently regulated under RCRA as non-hazardous wastes. In 2016, however, the EPA entered into a
settlement with environmental groups wherein it agreed to decide by March 2019 whether to revise the Agency's current determination exempting oil and gas wastes from regulation as RCRA hazardous
wastes. While the EPA has not taken any action toward changing the status of oil and gas wastes under RCRA, any such change could result in an increase in the costs to manage and dispose of wastes
generated by Greylock Production's operations.
Greylock
Production currently owns or leases, and in the past may have owned or leased, properties that have been used for numerous years to explore and produce oil and natural gas.
Although Greylock Production may have utilized operating and disposal practices that were standard in the industry at the time, hydrocarbons and wastes may have been disposed of or released at or from
the properties owned or leased by Greylock Production or at or from the other locations where these hydrocarbons and wastes have been taken for treatment or disposal. In addition, certain of these
properties have been operated by third parties whose treatment and disposal or release of hydrocarbons and wastes was not under Greylock Production's control. These properties and wastes disposed
thereon may give rise to liability under CERCLA, RCRA and analogous state laws. Under these laws, Greylock Production could be required to investigate, remove or remediate previously disposed wastes,
to clean up contaminated property and to perform response actions to prevent future contamination.
Air Emissions.
The Clean Air Act ("CAA"), as amended, and comparable state laws and regulations restrict the emission of air pollutants
from many
sources and also impose various monitoring and reporting requirements. These laws and regulations may require Greylock Production to obtain pre-approval for the construction or modification of certain
projects or facilities expected to produce or significantly increase air emissions, and to comply with stringent air permit or regulatory requirements or utilize specific equipment or technologies to
control emissions. Obtaining permits has the potential to delay the development of Greylock Production's properties.
The
EPA has established pollution control standards for oil and gas sources under the CAA. In 2012, the EPA adopted federal New Source Performance Standards ("NSPS") that require the
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reduction
of volatile organic compound emissions from certain fractured and refractured natural gas wells for which well completion operations are conducted and further require that most wells use
reduced emission completions, also known as "green completions." These regulations also establish specific new requirements regarding emissions from production-related wet seal and reciprocating
compressors, and from pneumatic controllers and storage vessels. The EPA is also charged with establishing ambient air quality standards, the implementation of which can indirectly impact Greylock
Production's operations. For example, in October 2015, the EPA lowered the National Ambient Air Quality Standard ("NAAQS"), for ozone from 75 to 70 parts per billion. A number of state and industry
petitioners filed suit in the U.S. Court of Appeals for the District of Columbia Circuit, challenging the 2015 ozone NAAQS. The outcome of the litigation challenging the standard is unknown at this
time. State implementation of the revised NAAQS could result in stricter permitting requirements, delay or prohibit Greylock Production's ability to obtain such permits, and result in increased
expenditures for pollution control equipment. While Greylock Production may be required to incur certain capital expenditures during the next few years for air pollution control equipment or other air
emissions-related issues, at this time Greylock Production does not expect that such requirements have a material adverse effect on its operations.
Climate Change.
In response to findings that emissions of carbon dioxide, methane and other greenhouse gases ("GHGs") may present an
endangerment to
public health and the environment, the EPA has issued regulations to restrict emissions of greenhouse gases under existing provisions of the CAA. These regulations include limits on tailpipe emissions
from motor vehicles, preconstruction and operating permit requirements for certain large stationary sources, and methane emissions standards for certain new, modified and reconstructed oil and gas
sources. The EPA also has adopted rules requiring the reporting of GHG emissions from specified large greenhouse gas emission sources in the United States, as well as certain onshore oil and natural
gas production facilities, on an annual basis.
In
December 2015, the EPA finalized rules that added new sources to the scope of its GHG monitoring and reporting rule. These new sources include gathering and boosting facilities. The
revisions also include the addition of well identification reporting requirements for certain facilities. In addition, in June 2016 the EPA published a final rule that requires operators to reduce
methane emissions from certain new, modified or reconstructed oil and gas facilities, including production, processing, transmission and storage activities ("Methane Rule"). However, following the
November 2016 presidential election and change in administrations, in 2017 the EPA proposed to delay implementation of the Methane Rule, and also convened a reconsideration proceeding that resulted in
two 2018 rulemaking projects aimed at rolling back certain Methane Rule requirements. These actions, like the Methane Rule itself, have been (or are likely to be) challenged in courts. While the
ultimate fate of the Methane Rule is unclear, it may require Greylock Production to incur development expenses to install
and utilize specific equipment, technologies, or work practices to control methane emissions from its operations.
More
than one-third of the states have begun taking actions to control and/or reduce emissions of GHGs, primarily through the planned development of GHG emission inventories and/or
regional GHG cap and trade programs. Although most of the state-level initiatives have to date focused on large sources of GHG emissions, such as coal-fired electric plants, it is possible that
smaller sources of emissions could become subject to GHG emission limitations or allowance purchase requirements in the future. In addition, from time to time Congress has considered adopting
legislation to reduce emissions of greenhouse gases. Any one of these climate change regulatory and legislative initiatives could have a material adverse effect on Greylock Production's business,
capital expenditures, financial condition and results of operations.
The
adoption and implementation of any regulations imposing reporting obligations on, or limiting emissions of GHGs from, Greylock Production's equipment and operations could require
Greylock Production to incur costs to reduce emissions of GHGs associated with its operations or could
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adversely
affect demand for the natural gas it produces. Legislation or regulations that may be adopted to address climate change could also affect the markets for Greylock Production's products by
making its products more or less desirable than competing sources of energy. To the extent that its products are competing with higher GHG-emitting energy sources, Greylock Production's products may
become more desirable in the market with more stringent limitations on GHG emissions. To the extent that its products are competing with lower GHG-emitting energy, Greylock Production's products may
become less desirable in the market with more stringent limitations on greenhouse gas emissions. Greylock Production cannot predict with any certainty at this time how these possibilities may affect
its operations.
Finally,
some scientists have concluded that increasing concentrations of GHGs in the Earth's atmosphere may produce climate changes that have significant physical effects, such as
increased frequency and severity of storms, droughts, and floods and other climatic events; if any such effects were to occur, they could have an adverse effect on Greylock Production's assets and
operations.
Water Discharges.
The federal Clean Water Act ("CWA") and analogous state laws impose restrictions and strict controls regarding the
discharge of
pollutants into waters of the United States and waters of the state, respectively. Pursuant to the CWA and analogous state laws, permits must be obtained to discharge pollutants into state waters or
waters of the United States. Any such discharge of pollutants
into regulated waters must be performed in accordance with the terms of the permit issued by EPA or the analogous state agency. The discharge of wastewater from most onshore oil and gas activities
exploration and production activities is currently prohibited east of the 98
th
meridian. Additionally, in June 2016, the EPA issued a final rule implementing wastewater
pretreatment standards that prohibit onshore unconventional oil and natural gas extraction facilities from sending certain wastewater directly to publicly owned treatment works ("POTW").
Unconventional extraction facilities can send wastewater to a private centralized wastewater treatment facility that can either discharge treated water or send it to a POTW. The EPA is conducting a
study of the treatment and discharge of oil and gas wastewater. Additionally, the Pennsylvania Department of Environmental Protection has adopted a new permitting policy concerning surface water
discharges from wastewater treatment facilities handling flowback fluids and produced waters from oil and gas well sites that could result in increased requirements for treatment of these fluids and
limitations on their discharge to receiving waters. Any restriction of disposal options for hydraulic fracturing waste and other changes to CWA discharge requirements may result in increased costs.
The
discharge of dredge and fill material in regulated waters, including wetlands, is also prohibited in certain circumstances, unless authorized by a permit issued by the U.S. Army
Corps of Engineers ("ACE"). CWA Section 401 provides that the applicant for an individual National Pollutant Discharge Elimination System ("NPDES") permit to be issued by the EPA or an
individual Section 404 permit to be issued by the ACE must notify the state in which the discharge will occur and provide an opportunity for the state to determine if the discharge will comply
with the state's approved water quality program. In some instances this process could result in delay in issuance of the permit, more stringent permit requirements, or denial of the permit.
In
September 2015, new EPA and ACE rules defining the scope of the "waters of the United States," and EPA's and the ACE's jurisdiction, became effective ("2015 Rule"). The 2015 Rule has
been challenged in multiple courts on the grounds that it unlawfully expands the reach of CWA programs. Due to the status of pending litigation, the 2015 Rule is currently in effect in certain states.
In the remaining states, regulations in effect before promulgation of the 2015 Rule and guidance interpreting relevant United States Supreme Court rulings are in effect. On December 11, 2018,
the heads of the EPA and ACE signed a proposed regulation that would revise the definition of waters of the United States to reduce its reach from the 2015 Rule ("2018 Pre-Proposal Rule"). The fates
of the 2015 Rule and the 2018 Pre-Proposal Rule and applicability of the rules during current and future litigation are uncertain; however, to the extent the 2015 Rule is in effect, it expands the
scope of CWA jurisdiction,
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and
Greylock Production could face increased costs and delays with respect to obtaining permits for dredge and fill activities in wetland areas or other waters of the United States. While there is
significant uncertainty regarding the "waters of the United States" rule, Greylock Production believes that the rule, even in its 2015 form, would not have a material adverse effect on the cash
distributions to the Trust unitholders.
Finally,
the Oil Pollution Act of 1990 ("OPA"), which amends the CWA, establishes standards for prevention, containment and cleanup of oil spills into waters of the United States. The
OPA requires measures to be taken to prevent the accidental discharge of oil into waters of the United States from onshore production facilities. Measures under the OPA and/or the CWA include
inspection and maintenance programs to minimize spills from oil storage and conveyance systems; the use of secondary containment systems to prevent spills from reaching nearby waterbodies; proof of
financial responsibility to cover environmental cleanup and restoration costs that could be incurred in connection with an oil spill; and the development and implementation of spill prevention,
control and countermeasure ("SPCC") plans to prevent and respond to oil spills. The OPA also subjects owners and operators of facilities in certain instances to strict, joint and several liability for
all containment and cleanup costs and certain other damages arising from a spill. Greylock Production has developed and implemented SPCC plans for the Underlying Properties as required under the CWA.
Endangered Species Act.
The federal Endangered Species Act, as amended ("ESA"), restricts activities that may affect endangered and
threatened
species or their habitats. If endangered species are located in areas of the Underlying Properties where seismic surveys, development activities or abandonment operations may be conducted, the work
could be prohibited or delayed or expensive mitigation may be required. The designation of previously unidentified endangered or threatened species could cause Greylock Production to incur additional
costs arising from species protection measures or could result in limitations on exploration and production activities that could have an adverse impact on the ability to develop and produce reserves
from the Underlying Properties.
Employee Health and Safety.
The operations of Greylock Production are subject to a number of federal and state laws and regulations,
including the
federal Occupational Safety and Health Act, as amended ("OSHA"), and comparable state statutes, whose purpose is to protect the health and safety of workers. In addition, the OSHA hazard communication
standard, the EPA community right-to-know regulations under Title III of the federal Superfund Amendment and Reauthorization Act and comparable state statutes require in certain circumstances
that information be maintained concerning hazardous materials used or produced in Greylock Production's operations and that this information be provided to employees, state and local government
authorities and citizens.
State Regulation.
Pennsylvania regulates the drilling for, and the production, gathering, storage, transport and sale of natural gas,
including
imposing requirements for obtaining drilling permits, the method of developing new fields, the spacing and operation of wells, production rates and the prevention of waste of natural gas resources.
Any and all chemicals or other materials involved in the process must be disclosed and approved per statute. PADEP continues to implement new regulations specifically applicable to the development of
unconventional gas wells. The Pennsylvania Public Utility Commission is charged with enforcement of the gas well impact fees, penalties for nonpayment, and additional requirements resulting from the
adoption of the amendments. Proposed regulations and new requirements resulting from the amendments could require Greylock Production to incur increased operating costs. Realized prices are not
currently subject to state regulation or other similar direct
economic regulation, but they could become subject to such regulation in the future. The effect of these regulations may be to limit the amounts of natural gas that may be produced from Greylock
Production's and to limit the number of wells or locations Greylock Production can drill.
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Greylock Production believes that its continued compliance with existing requirements will not have a material adverse effect on the cash distributions to the
Trust unitholders. On December 24, 2015, Legacy ECA received a Notice of Violation ("NOV") from PADEP relating to Legacy ECA's operation of various water impoundments constructed on numerous
well pad sites situated in Greene and Clearfield counties covering some of the Underlying Properties. Prior to the Acquisition, Legacy ECA reached a Consent Order and Agreement ("COA") with PADEP
under which Legacy ECA agreed to pay a $1.7 million Civil Penalty Settlement to PADEP and to remediate the environmental impacts as described in the COA. However, pursuant to the conveyances
these expenses incurred by Legacy ECA related to the NOV are not deductible from the proceeds due to the Trust and therefore did not affect cash distributions to Trust unitholders. As such, there were
no material capital expenditures for remediation or pollution control activities for the years ended December 31, 2018 and 2017, with respect to the Underlying Properties.
Description of the Trust Units
Each Trust unit is a unit of beneficial interest in the Trust and is entitled to receive cash distributions from the Trust on a pro rata basis.
The Trust has 17,605,000 common units outstanding.
Distributions and Income Computations
Cash distributions to Trust unitholders are made from available funds of the Trust for each calendar quarter. Production payments due to the
Trust with respect to any calendar quarter are accrued based on estimated production volumes attributable to the Trust properties during such quarter (as measured at Greylock Production metering
systems) and market prices for such volumes. Greylock Production makes a payment to the Trust equal to such accrued amounts within 30 days of the end of each such calendar quarter. After
receipt of such payment, the Trustee determines for such calendar quarter the amount of funds available for distribution to the Trust unitholders. Available funds are the excess cash, if any, received
by the Trust over the Trust's expenses for that quarter, reduced by any net increases to reserves. Any difference between the payment made by Greylock Production to the Trust with respect to a
calendar quarter and the actual cash production payments relative to the Trust properties received by Greylock Production will be netted to or against future payments by Greylock Production to the
Trust.
The
amount of available funds for distribution each quarter is payable to the Trust unitholders of record on or about the 45th day following the end of such calendar quarter or
such later date as the Trustee determines is required to comply with legal or stock exchange requirements. The Trust distributes available cash on or about the 60th day (or the next succeeding
business day following such day if such day is not a business day) following such calendar quarter to each person who was a Trust unitholder of record on the quarterly record date.
Unless
otherwise advised by counsel or the IRS, the Trustee will treat the income and expenses of the Trust for each month as belonging to the Trust unitholders of record on the first
business day of the month.
Transfer of Trust Units
Trust unitholders may transfer their Trust units in accordance with the Trust Agreement. The Trustee does not require either the transferor or
transferee to pay a service charge for any transfer of a Trust unit. The Trustee may require payment of any tax or other governmental charge imposed for a transfer. The Trustee may treat the owner of
any Trust unit as shown by its records as the owner of the Trust unit. The Trustee will not be considered to know about any claim or demand on a Trust unit by any party except the record owner. A
person who acquires a Trust unit after any quarterly record date
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will
not be entitled to any distribution relating to that quarterly record date. Delaware law governs all matters affecting the title, ownership or transfer of Trust units.
Periodic Reports
The Trustee files all required Trust federal and state income tax and information returns. The Trustee prepares and mails to each Trust
unitholder a Schedule K-1 to enable unitholders to correctly report their respective share of the income and deductions of the Trust. The Trustee also causes to be prepared and filed reports
required to be filed under the Exchange Act and by the rules of the New York Stock Exchange.
Each
Trust unitholder and such unitholder's representatives may examine, for any proper purpose, during reasonable business hours, the records of the Trust.
Liability of Trust Unitholders
Under the Delaware Statutory Trust Act, Trust unitholders will be entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit under the General Corporation Law of the State of Delaware. Nevertheless, courts in jurisdictions outside of Delaware may not give effect to such limitation.
Voting Rights of Trust Unitholders
The Trustee or Trust unitholders owning at least 10% of the outstanding Trust units may call meetings of Trust unitholders. The Trust will be
responsible for all costs associated with calling a meeting of Trust unitholders unless such meeting is called by the Trust unitholders, in which case the Trust unitholders will be responsible for all
costs associated with calling such meeting of Trust unitholders. Meetings must be held in such location as the Trustee designates in the notice of such meeting. The Trustee must send written notice of
the time and place of the meeting and the matters to be acted upon to all of the Trust unitholders at least 20 days and not more than 60 days before the meeting. Trust unitholders
holding a majority of Trust units outstanding must be present in person or represented by proxy to have a quorum. Each Trust unitholder is entitled to one vote for each Trust unit owned.
Unless
otherwise required by the Trust Agreement, a matter may be approved or disapproved by the vote of a majority of the Trust units held by the Trust unitholders at a meeting where
there is a quorum. This is true, even if a majority of the total outstanding Trust units did not approve it. The affirmative vote of the holders of a majority of the outstanding Trust units is
required to:
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•
-
dissolve the Trust (except in accordance with its terms);
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•
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remove the Trustee or the Delaware Trustee;
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•
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amend the Trust Agreement, the royalty conveyances, the Administrative Services Agreement, the Development Agreement, the Royalty Interest Lien
and the hedge agreements (except with respect to certain matters that do not adversely affect the right of Trust unitholders in any material respect);
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•
-
merge or consolidate the Trust with or into another entity; or
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•
-
approve the sale of all or any material part of the assets of the Trust,
except
that if any of the matters listed above (except removal of the Trustee or the Delaware Trustee) would result in a materially disproportionate benefit to Greylock Production or its affiliates
compared to other owners of Trust units (to the extent that Greylock Production or any of its affiliates were to
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own
any Trust units at that time), the affirmative vote of the holders of a majority of Trust units, excluding Trust units owned by Greylock Production and its affiliates, is required.
In
addition, certain amendments to the Trust Agreement may be made by the Trustee without approval of the Trust unitholders. The Trustee must consent before all or any part of the Trust
assets can be sold except in connection with the dissolution of the Trust or limited sales directed by Greylock Production in conjunction with its sale of Underlying Properties.
Description of the Trust Agreement
The Trust was created under Delaware law to acquire and hold the Royalty Interests for the benefit of the Trust unitholders pursuant to an
agreement between Legacy ECA, the Trustee and the Delaware Trustee. Greylock Production has assumed Legacy ECA's obligations under the Trust Agreement as described under "—Introduction"
above. The Royalty Interests are passive in nature and neither the Trust nor the Trustee has any control over or responsibility for costs relating to the operation of the Underlying Properties.
Neither Greylock Production nor other operators of the Underlying Properties have any contractual commitments to the Trust to provide additional funding or to conduct further drilling on or to
maintain their ownership interest in any of these properties.
The
Trust Agreement provides that the Trust's business activities are limited to owning the Royalty Interests and any activity reasonably related to such ownership, including activities
required or permitted by the terms of the conveyances related to the Royalty Interests. As a result, the Trust is not permitted to acquire other oil and gas properties or royalty interests. The Trust
is not able to issue any additional Trust units.
Duties and Powers of the Trustee
The duties of the Trustee are specified in the Trust Agreement and by the laws of the State of Delaware, except as modified by the Trust
Agreement. The Trustee's principal duties consist of:
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•
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collecting cash attributable to the Royalty Interests;
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•
-
paying expenses, charges and obligations of the Trust from the Trust's assets;
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•
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making cash distributions to the Trust unitholders;
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•
-
causing to be prepared and distributed a Schedule K-1 for each Trust unitholder and preparing and filing tax returns on behalf of the
Trust; and
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•
-
causing to be prepared and filed reports required to be filed under the Exchange Act and by the rules of any securities exchange or quotation
system on which the Trust units are listed or admitted to trading.
If
a Trust liability is contingent or uncertain in amount or not yet currently due and payable, the Trustee may create a cash reserve to pay for the liability. If the Trustee determines
that the cash on hand and the cash to be received are insufficient to cover the Trust's liability, the Trust may borrow funds required to pay the liabilities. The Trust may borrow the funds from any
person, including the Trustee or its affiliates. The terms of such indebtedness, if funds were loaned by the entity serving as Trustee or Delaware Trustee, would be similar to the terms which such
entity would grant to a similarly situated commercial customer with whom it did not have a fiduciary relationship, and such entity shall be entitled to enforce its rights with respect to any such
indebtedness as if it were not then serving as Trustee or Delaware Trustee. If the Trustee borrows funds, the Trust unitholders will not receive distributions until the borrowed funds are repaid.
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Responsibility and Liability of the Trustee
The duties and liabilities of the Trustee are set forth in the Trust Agreement. The Trust Agreement provides that (i) the Trustee shall
not have any duties or liabilities, including fiduciary duties, except as expressly set forth in the Trust Agreement, and (ii) the duties and liabilities of the
Trustee as set forth in the Trust Agreement replace any other duties and liabilities, including fiduciary duties, to which the Trustee might otherwise be subject.
The
Trustee does not make business decisions affecting the assets of the Trust, and the Trustee's functions under the Trust Agreement are ministerial in nature. In discharging its duty
to Trust unitholders, the Trustee may act in its discretion and will be liable to the Trust unitholders only for fraud, gross negligence or acts or omissions constituting bad faith. The Trustee will
not be liable for any act or omission of its agents or employees unless the Trustee acted with fraud, in bad faith or with gross negligence in their selection and retention. The Trustee will be
indemnified individually or as the Trustee for any liability or cost that it incurs in the administration of the Trust, except in cases of fraud, gross negligence or bad faith. The Trustee has a lien
on the assets of the Trust as security for this indemnification and its compensation as Trustee.
Assets of the Trust
The assets of the Trust consist of the Royalty Interests, the Administrative Services Agreement, and any cash and temporary investments being
held for the payment of expenses and liabilities and for distribution to the Trust unitholders.
Liabilities of the Trust
Because the Trust does not conduct an active business and the Trustee has little power to incur obligations, it is expected that the Trust will
incur liabilities only for routine administrative expenses, such as the Trustee's fees and accounting, engineering, legal, tax advisory and other professional fees.
Fees and Expenses
The Trust is responsible for paying all legal, accounting, tax advisory, engineering, printing and other administrative and out-of-pocket
expenses incurred by or at the direction of the Trustee or the Delaware Trustee. The Trust is also responsible for paying expenses of tax returns and
Schedule K-1 preparation and distribution, as well as expenses incurred as a result of its being a publicly traded entity, including costs associated with annual and quarterly reports to
unitholders, independent auditor fees and registrar and transfer agent fees.
Duration of the Trust; Sale of Royalty Interests
The Trust is expected to remain in existence until the Termination Date, which is March 31, 2030. The Trust will dissolve prior to the
Termination Date if:
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•
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the Trust sells all of the Royalty Interests;
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•
-
gross proceeds attributable to the Royalty Interests over any four consecutive quarters are less than $1.5 million;
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•
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the holders of a majority of the outstanding Trust units vote in favor of dissolution; or
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•
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the Trust is judicially dissolved.
The
Trustee would then sell all of the Trust's assets, either by private sale or public auction, and distribute the net proceeds of the sale to the Trust unitholders.
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Greylock Production's Right of First Refusal
Greylock Production has a right of first refusal to purchase the Perpetual Royalty Interests upon termination of the Trust. This right of first
refusal provides that the Trustee will use commercially reasonable efforts to retain a third-party advisor to market the Perpetual Royalty Interests within 30 business days of the termination of the
Trust. If the Trustee receives a bid from a proposed purchaser other than Greylock Production, prior to selling all or part of the Perpetual Royalty Interests, it will be required to give notice (the
"Offer Notice") to Greylock Production, identifying the proposed purchaser and setting forth the proposed sale price, payment terms and other material terms of the proposed sale. Greylock Production
would then have 30 days from receipt of the Offer Notice to elect, by notice to the Trustee, to purchase the subject properties offered for sale on the terms and conditions set forth in the
Offer Notice. If Greylock Production makes such election, the proposed purchaser would be entitled to receive reimbursement of its reasonable and documented expenses incurred in connection with its
review and analysis of the subject properties and bid preparation. Greylock Production and the Trust would share equally the cost of reimbursement to the proposed purchaser.
If
Greylock Production does not give notice within the 30-day period following the Offer Notice, the Trust may sell such properties to the identified purchaser on terms and conditions
that are substantially the same as those previously set forth in such Offer Notice.
If,
after a reasonable marketing period, no bid is received on any or all of the Perpetual Royalty Interests from any party other than Greylock Production, then, as a condition to the
sale, Greylock Production shall obtain, at the Trust's expense, and deliver to the Trustee, a fairness opinion from a nationally-recognized valuation firm with expertise in fairness opinions stating
that the proposed sale price to be paid by Greylock Production to the Trust for the properties is fair to the Trust.
Federal Income Tax Considerations
The Trust's federal income tax reporting position is that it should be classified as a partnership for federal and applicable state income tax
purposes. This position relies on the opinion of counsel to Legacy ECA and the Trust rendered in connection with the initial public offering of the Trust units, in which counsel opined that at least
90% of the Trust's gross income will be qualifying income within the meaning of IRC Section 7704. The Trust's federal income tax reporting positions are consistent with the Federal Income Tax
Considerations section in the Trust's prospectus ("the Prospectus") filed with the SEC pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act"), on
July 1, 2010 in connection with the offering of its common units to the public (the "Federal Income Tax Considerations Section in the Prospectus"). However, as discussed in detail below under
Item 1A. Risk Factors—Tax Risks Related to the Trust's Common Units, the Trust has not requested a ruling from the IRS regarding its United States federal income tax reporting
positions and its positions may not be sustained by a court or if contested by the IRS. Additional information regarding the opinion and tax matters is discussed in the Federal Income Tax
Considerations Section in the Prospectus.
Miscellaneous
The Trustee may consult with counsel, accountants, tax advisors, geologists and engineers and other parties the Trustee believes to be qualified
as experts on the matters for which advice is sought. The Trustee will be protected for any action it takes in good faith reliance upon the opinion of the expert.
The
Delaware Trustee and the Trustee may resign at any time or be removed with or without cause at any time by a vote of not less than a majority of the outstanding Trust units. Any
successor must be a bank or trust company meeting certain requirements including having combined capital, surplus and undivided profits of at least $20 million, in the case of the Delaware
Trustee, and $100 million, in the case of the Trustee.
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Item 1A.
Risk Factors
Natural gas prices fluctuate due to a number of factors that are beyond the control of the Trust and Greylock
Production, and lower prices would reduce proceeds to the Trust and cash distributions to unitholders.
The Trust's reserves and quarterly cash distributions are highly dependent upon the prices realized from the sale of natural gas. Natural gas
prices can fluctuate widely on a month-to-month basis in response to a variety of factors that are beyond the control of the Trust and Greylock Production. These factors include, among
others:
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•
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weather conditions and seasonal trends;
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•
-
regional, domestic and foreign supply and perceptions of supply of natural gas;
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•
-
availability of imported liquefied natural gas, or LNG;
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•
-
the level of demand and perceptions of demand for natural gas;
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•
-
anticipated future prices of natural gas, LNG and other commodities;
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•
-
technological advances affecting energy consumption and energy supply;
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•
-
U.S. and worldwide political and economic conditions;
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•
-
the price and availability of alternative fuels;
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•
-
the proximity, capacity, cost and availability of gathering and transportation facilities;
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•
-
the volatility and uncertainty of regional pricing differentials;
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•
-
acts of force majeure;
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•
-
governmental regulations and taxation; and
-
•
-
energy conservation and environmental measures.
Lower
natural gas prices will reduce proceeds to which the Trust is entitled and may ultimately reduce the amount of natural gas that is economic to produce from the Underlying
Properties. As a result, the operator of any of the Underlying Properties could determine during periods of low natural gas prices to shut in or curtail production from wells on the Underlying
Properties. In addition, the operator of the Underlying Properties could determine during periods of low natural gas prices to plug and abandon marginal wells that otherwise may have been allowed to
continue to produce for a longer period under conditions of higher prices. Specifically, Greylock Production may abandon any well or property if it reasonably believes that the well or property can no
longer produce natural gas in commercially economic quantities. This could result in termination of the portion of the royalty interest relating to the abandoned well or property, and Greylock
Production would have no obligation to drill a replacement well. In making such decisions, Greylock Production is required under the applicable conveyance to act as a reasonably prudent operator in
the AMI under the same or similar circumstances as it would act if it were acting with respect to its own properties, disregarding the existence of the Royalty Interests as burdens affecting such
property. The volatility of natural gas prices also reduces the accuracy of estimates of future cash distributions to Trust unitholders.
Actual reserves and future production may be less than current estimates, which could reduce cash
distributions by the Trust and the value of the Trust units.
The value of the Trust units and the amount of future cash distributions to the Trust unitholders will depend upon, among other things, the
accuracy of the reserves estimated to be attributable to the Trust's Royalty Interests. The Trust's reserve quantities and revenues are based on estimates of reserve
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quantities
and revenues for the Underlying Properties. See "The underlying properties—Natural gas reserves" in the Prospectus for a discussion of the method of allocating Proved reserves
to the Trust. It is not possible to measure underground accumulations of natural gas in an exact way, and estimating reserves is inherently uncertain. Ultimately, actual production and revenues for
the Underlying Properties could vary negatively and in material amounts from estimates and those variations could be material. Petroleum engineers are required to make subjective estimates of
underground accumulations of natural gas based on factors and assumptions that include:
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•
-
historical production from the area compared with production rates from other producing areas;
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•
-
natural gas prices, production levels, Btu content, production expenses, transportation costs, severance and excise taxes and capital
expenditures; and
-
•
-
the assumed effect of governmental regulation.
Changes
in these assumptions or actual production costs incurred and results of actual development and production costs could materially decrease reserve estimates.
Further,
the reserve report estimating the Trust's proved reserves, future production and income attributable to the Trust's Royalty Interests as of December 31, 2018 was
prepared, in accordance with applicable regulations, using a weighted benchmark price adjusted for differentials resulting in an average natural gas price of $2.82 per Mcf during 2018, as described in
Appendix A to this report. At the date of this report, the weighted benchmark natural gas price, adjusted for differentials, for production in which the Trust has an interest is below $2.82. A
reserve report prepared using the current lower value would result in lower proved reserves, future production and income attributable to the Trust's Royalty Interests.
The generation of proceeds for distribution by the Trust depends in part on gathering, transportation and
processing facilities owned by Greylock Midstream and others. Any limitation in the availability of those facilities could interfere with sales of natural gas production from the Underlying
Properties.
The amount of natural gas that may be produced and sold from any well to which the Underlying Properties relate is subject to curtailment in
certain circumstances, such as by reason of weather conditions, pipeline interruptions due to scheduled and unscheduled maintenance, failure of tendered gas to meet quality specifications of gathering
lines or downstream transporters, excessive line pressure which prevents delivery of gas, physical damage to the gathering system or transportation system or lack of contracted capacity on such
systems. The curtailments may vary from a few days to several months. In many cases, Greylock Production is provided limited notice, if any, as to when production will be curtailed and the duration of
such curtailments. If Greylock Production is forced to
reduce production due to such a curtailment, the revenues of the Trust and the amount of cash distributions to the Trust unitholders would similarly be reduced due to the reduction of proceeds from
the sale of production.
The generation of proceeds for distribution by the Trust depends in part on the ability of Greylock
Production and/or its customers to obtain service on transportation facilities owned by third party pipelines. Any limitation in the availability of those facilities and/or any increase in the cost of
service on those facilities could interfere with sales of natural gas production from the Underlying Properties.
Natural gas that is gathered on the GCGS, including natural gas produced from the Underlying Properties, is currently shipped on two interstate
natural gas transportation pipelines. Greylock Production or its purchasers have contracted with those pipelines for firm or interruptible transportation service. The rates for service on the
transportation pipelines are regulated by the FERC and are subject to increase if the pipeline demonstrates that the existing rates are unjust and unreasonable.
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Greylock
Production has an agreement with Columbia Gas Transmission, LLC ("Columbia") to provide firm transportation downstream of the GCGS for 50,000 MMBtu per day. This firm
transportation arrangement has been in effect since August 1, 2011 and is at Columbia's filed tariff rate, which is currently $0.2082 per MMBtu at one hundred percent load factor. Unless
otherwise modified or altered, the agreement will terminate on July 31, 2021 with respect to 45,000 MMBtu per day, and on July 31, 2022 with respect to the remaining 5,000 MMBtu per day,
unless Greylock Production exercises its right of first refusal to extend the term. Greylock Production has entered into an additional agreement with Columbia to provide firm transportation downstream
of the GCGS for 100,000 MMBtu per day that will utilize Columbia's Mountaineer XPress Project. This firm transportation arrangement went into effect on January 18, 2019, and is at a fixed
demand rate of $0.50 per MMBtu at one hundred percent load factor plus applicable Columbia tariff surcharges. Unless otherwise modified or altered, this agreement will terminate in January 2034. Firm
transportation utilized as to the Trust's interests is a chargeable post-production cost, and the Trust bears its proportionate share of such costs.
In
the future, Greylock Production may seek to obtain additional firm transportation capacity, but such capacity may not be available. In addition, to the extent Greylock Production's
customers or Greylock Production became dependent on interruptible service, and to the extent that either pipeline receives requests for service that exceed the capacity of the pipeline, the pipeline
will honor requests by its firm customers first, and will then allocate remaining capacity, if any, to interruptible shippers. As a result, Greylock Production or its customers may be unable to obtain
all or a part of any requested interruptible capacity service on the transportation pipelines. Any inability of Greylock Production or
its customers to procure sufficient capacity to transport the natural gas gathered on the GCGS will decrease and/or delay the receipt of any proceeds that may be associated with natural gas production
from wells on the Underlying Properties. In addition, any increase in transportation rates paid by Greylock Production for production attributable to the Trust's interests will decrease the proceeds
received by the Trust.
Due to the Trust's lack of industry and geographic diversification, adverse developments in the Trust's
existing area of operation could adversely impact its financial condition, results of operations and cash flows and reduce its ability to make distributions to the unitholders.
The Underlying Properties are operated for natural gas production only and are focused exclusively in the Marcellus Shale formation in Greene
County, Pennsylvania. In particular, the concentration of the Underlying Properties in the Marcellus Shale formation in Greene County could disproportionately expose the Trust's interests to
operational and regulatory risk in that area. Due to the lack of diversification in industry type and location of the Trust's interests, adverse developments in the natural gas market or the area of
the Underlying Properties could have a significantly greater impact on the Trust's financial condition, results of operations and cash flows than if the Trust's Royalty Interests were more
diversified.
The Trust units may lose value as a result of title deficiencies with respect to the Underlying Properties.
The existence of a material title deficiency with respect to the Underlying Properties can reduce the value or render a property worthless, thus
adversely affecting the distributions to unitholders. Greylock Production does not obtain title insurance covering mineral leaseholds. Additionally, undeveloped acreage has greater risk of title
defects than developed acreage.
Prior
to the drilling of the PUD Wells, Legacy ECA obtained preliminary title reviews to ensure there were no obvious defects in title to the leasehold. However, a title review is not
title insurance, and in the event of a material title problem in the future, proceeds available for distribution to unitholders, and the value of the Trust units, may be reduced.
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The Trust is passive in nature and has no stockholder voting rights in Greylock Production, managerial,
contractual or other ability to influence Greylock Production, or control over the field operations of, sale of natural gas from, or development of, the Underlying Properties.
Neither the Trust nor the Trust unitholders has any voting rights with respect to Greylock Production and therefore none of them has any
managerial, contractual or other ability to influence Greylock Production's activities or operations of the natural gas properties. This is how, pursuant to the Administrative Services Agreement and
the Development Agreement, Legacy ECA was able to transfer operations of all of the Trust properties to Greylock Production, who also retains the right to transfer operations of any or all of the
Trust properties. Any third-party operators may not have the operational expertise of Greylock Production within the AMI. Natural gas properties are typically managed pursuant to an operating
agreement among the working interest owners in the properties. The typical operating agreement contains procedures whereby the owners of the working interests in the property designate one of the
interest owners to be the operator of the property. Under these arrangements, the operator is typically responsible for making all decisions relating to drilling activities, sale of production,
compliance with regulatory requirements and other matters that affect the property. Neither the Trustee nor the Trust unitholders has any contractual ability to influence or
control the field operations of, sale of natural gas from, or any future development of, the Underlying Properties. The Trust units are a passive investment that entitles the Trust only to receive
cash distributions attributable to the Royalty Interests.
Greylock Production may sell all or a portion of the Underlying Properties, subject to and burdened by the
Royalty Interests, and any such purchaser could have a weaker financial position and/or be less experienced in natural gas development and production than Greylock Production.
Trust unitholders will not be entitled to vote on any sale of the Underlying Properties if the Underlying Properties are sold subject to and
burdened by the Royalty Interests and the Trust will not receive any proceeds from any such sale. The purchaser would be responsible for all of Greylock Production's obligations relating to the
Royalty Interests on the portion of the Underlying Properties sold, and Greylock Production would have no continuing obligation to the Trust for those properties. Additionally, Greylock Production may
enter into farmout or joint venture arrangements with respect to the wells burdened by the Royalty Interests. Any purchaser, farmout counterparty or joint venture partner could have a weaker financial
position and/or be less experienced in natural gas development and production than Greylock Production.
The natural gas reserves estimated to be attributable to the Underlying Properties of the Trust are depleting
assets and production from those reserves will diminish over time. Furthermore, the Trust is precluded from acquiring other oil and gas properties or Royalty Interests to replace the depleting assets
and production.
The proceeds payable to the Trust from the Royalty Interests are derived from the sale of the production of natural gas from the Underlying
Properties. The natural gas reserves attributable to the Underlying Properties are depleting assets, which means that the reserves of natural gas attributable to the Underlying Properties will decline
over time. As a result, the quantity of natural gas produced from the Underlying Properties will decline over time. Based on the estimated production volumes in the original reserve report described
in the Prospectus, the gas production from proved producing reserves attributable to the PDP Royalty Interest was projected to decline at an average rate of approximately 8.5% per year over the life
of the Trust. With respect to the PUD Wells, as of the Trust formation date, the production rate was expected to decline approximately 37.3% during the first year of production, approximately 14.7%
during the next three to five years of production and approximately 8.0% per year for the remainder of the economically productive life of the well. These production characteristics were generally
consistent with other development wells in the AMI. The anticipated rate of decline as
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originally
projected was an estimate and actual decline rates may vary from those estimates. The average decline rate for the 40 PUD Wells for which Greylock Production now has several years of
production data was about 43.5% during the first year.
Future
maintenance may affect the quantity of Proved reserves that can be economically produced from the Underlying Properties to which the wells relate. The timing and size of these
projects will depend on, among other factors, the market prices of natural gas. Greylock Production has no contractual obligation to make capital expenditures on the Underlying Properties in the
future. Furthermore, for properties on which Greylock Production is not designated as the operator, Greylock Production has no control over the timing or amount of those capital expenditures. Greylock
Production also has the right to non-consent and not participate in the capital expenditures on properties for which it is not the operator, in which case Greylock Production and the Trust will not
receive the production resulting from such capital expenditures. If Greylock Production or other operators of the wells to which the Underlying Properties relate do not implement maintenance projects
when warranted, the future rate of production decline of Proved reserves may be higher than the rate currently expected by Greylock Production or estimated in the reserve report.
The
Trust Agreement provides that the Trust's business activities are limited to owning the Royalty Interests and any activity reasonably related to such ownership, including activities
required or permitted by the terms of the conveyances related to the Royalty Interests. As a result, the Trust is not permitted to acquire other oil and gas properties or royalty interests to replace
the depleting assets and production attributable to the Trust.
The amount of cash available for distribution by the Trust will be reduced by the amount of post-production
costs, applicable taxes associated with the Trust's interest, and Trust expenses.
The Royalty Interests and the Trust bear certain costs and expenses that reduce the amount of cash received by the Trust or available for
distribution by the Trust to the holders of the Trust units. These costs and expenses include those described below.
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•
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Substantially all of the production from the Producing Wells and the PUD Wells utilize the GCGS. The Trust paid the initial Post-Production
Services Fee to Legacy ECA for use of such system, which includes Legacy ECA's costs to gather, compress, transport, process, treat, dehydrate and market the gas. This fee was fixed until Legacy ECA's
obligation to drill the PUD Wells was satisfied in 2011; thereafter, Legacy ECA was and Greylock Production is permitted to increase this fee to the extent necessary to recover certain capital
expenditures on the GCGS, provided the resulting charge does not exceed the prevailing charges in the area for similar services. Additionally, the Trust is charged for the cost of fuel used in the
compression process or equivalent electricity charges when electric compressors are used.
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•
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Any third party post-production costs incurred and associated with the Trust's interests reduces cash received by the Trust or available for
distribution by the Trust to the holders of the Trust units, including any amounts paid by Greylock Production for transportation on downstream interstate pipelines. Such post-production costs include
the costs incurred in connection with Greylock Production's agreements with a third party to obtain firm transportation downstream of the GCGS for 50,000 MMBtu per day at the third party's filed
tariff rate, which equates to $0.2082 per MMBtu at a one hundred percent load factor, and beginning in January 2019 to obtain firm transportation downstream of the GCGS for 100,000 MMBtu per day at a
fixed demand rate of $0.50 per MMBtu at a one hundred percent load factor plus applicable third party tariff charges. The filed tariff rate is subject to adjustments, which may be retroactive, by
regulatory authorities.
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•
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Taxes allocated to or imposed on the Trust include Pennsylvania franchise tax and any applicable property, ad valorem, production, severance,
excise and other similar taxes. Currently, there are
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no
taxes in Pennsylvania related to the production or severance of oil and natural gas in Pennsylvania; however, there have been proposals to enact a severance tax, none of which were adopted, in both
the Pennsylvania Senate Finance Committee and the House Energy and Environmental Resources Committees, and lawmakers may propose other taxes in the future. If adopted, such taxes would be a
post-production cost that is borne by the Trust.
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•
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The Trust bears 100% of Trust administrative expenses, including fees paid to the Trustee and the Delaware Trustee and an annual administrative
services fee of $60,000 payable to Greylock Production.
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•
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The Trust is also responsible for paying other expenses, including costs associated with annual and quarterly reports to unitholders, tax
return and Schedule K-1 preparation and distribution, independent auditor fees and registrar and transfer agent fees.
The
amount of costs and expenses borne by the Trust may vary materially from quarter-to-quarter. The extent by which the costs and expenses described above are higher or lower in any
quarter will directly decrease or increase the amount received by the Trust and available for distribution to the unitholders.
The Trust has established a cash reserve for contingent liabilities and to pay expenses in accordance with
the Trust Agreement, which would reduce net profits payable to the Trust and distributions to Trust unitholders.
The Trust's source of capital is the cash flows from the Royalty Interests. Pursuant to the Trust Agreement, the Trust may establish a cash
reserve through the withholding of cash for contingent liabilities and to pay expenses, which will reduce the amount of cash otherwise available for distribution to unitholders. In December 2018 the
Trustee determined to gradually build a cash reserve for the payment of future expenses and liabilities to approximately $1.8 million by withholding cash reserve amounts from each quarterly
distribution equal to the greater of $90,000 or 10% of the amount distributable to unitholders. Accordingly, in February 2019, the Trustee withheld $220,634 from the funds otherwise available for
distribution. The Trustee may increase or decrease the targeted amount at any time, and may increase or decrease the rate at which it is withholding funds to build the cash reserve at any time,
without advance notice to the unitholders.
A decrease in the differential between the price realized by Greylock Production for natural gas produced
from the Underlying Properties and the NYMEX or other benchmark price of natural gas could reduce the proceeds to the Trust and therefore the cash distributions by the Trust and the value of Trust
units.
During the first few years of the Trust's existence, prices received for natural gas production from Trust properties exceeded the relevant
benchmark prices, such as NYMEX; however, since 2014 the prices received have been lower than the benchmark prices, and this dynamic could
continue in the future. The difference between the price received and the benchmark price is called a differential. The differential may vary significantly due to market conditions, the quality and
location of production and other factors. Greylock Production cannot accurately predict natural gas differentials. Further decreases in the differential between the realized price of natural gas and
the benchmark price for natural gas could reduce the proceeds to the Trust and, accordingly, reduce the cash distributions by the Trust and the value of the Trust units.
The Trust has no hedges in place to protect against the price risk inherent in holding interest in natural
gas, a commodity that is frequently characterized by significant price volatility.
At the formation of the Trust, approximately fifty percent of the estimated natural gas production attributable to the Royalty Interests was
hedged from April 1, 2010 through March 31, 2014. From inception through the termination of the hedge arrangements, the Trust received approximately
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$35 million
that it would not have received without the hedge arrangements. The last of the hedge arrangements expired March 31, 2014. Consequently, unitholders no longer have the
benefit of any hedge arrangements, and all production is subject to the price risks inherent in holding interests in natural gas, a commodity that is frequently characterized by significant price
volatility.
Natural gas wells are subject to operational hazards that can cause substantial losses. Greylock Production
maintains insurance but may not be adequately insured for all such hazards.
There are a variety of operating risks inherent in natural gas production and associated activities, such as fires, leaks, explosions,
mechanical problems, major equipment failures, blow-outs, uncontrollable flow of natural gas, water or drilling fluids, casing collapses, abnormally pressurized formations and natural disasters. The
occurrence of any of these or similar accidents that temporarily or permanently halt the production and sale of natural gas at any of the Underlying Properties will reduce Trust distributions by
reducing the amount of proceeds available for distribution.
Additionally,
if any of such risks or similar accidents occur, Greylock Production could incur substantial losses as a result of injury or loss of life, severe damage or destruction of
property, natural resources
and equipment, regulatory investigation and penalties and environmental damage and clean-up responsibility. If Greylock Production experiences any of these problems, its ability to conduct operations
and perform its obligations to the Trust could be adversely affected. While Greylock Production maintains insurance coverage it deems appropriate for these risks with respect to the Underlying
Properties, Greylock Production's operations may result in liabilities exceeding such insurance coverage or liabilities not covered by insurance. If a well is damaged, Greylock Production would have
no obligation to drill a replacement well or make the Trust whole for the loss. The Trust does not maintain any type of insurance against any of the risks of conducting oil and gas exploration and
production or related activities.
The Trustee may, under certain circumstances, sell the Royalty Interests and dissolve the Trust. Unless
sooner terminated, the Trust will begin to terminate following the end of the 20-year period in which the Trust owns the Term Royalty Interests.
The Trustee must sell the Royalty Interests if unitholders approve the sale or vote to dissolve the Trust. The Trustee must also sell the
Royalty Interests if the gross proceeds to the Trust attributable to the Royalty Interests over any four consecutive quarters are less than $1.5 million. Sale of all the Royalty Interests will
result in the dissolution of the Trust. The net proceeds of any such sale will be distributed to the Trust unitholders. Unless sooner terminated, the Trust will begin to liquidate on the Termination
Date. The Trust unitholders will not be entitled to receive any proceeds from the sale of production from the Underlying Properties following such date. The Term Royalty Interests will automatically
revert to Greylock Production at the Termination Date, while the Perpetual Royalty Interests will be sold and the proceeds will be distributed to the unitholders (including Greylock Production to the
extent of any Trust units it owns) at the Termination Date or soon thereafter. Greylock Production has a right of first refusal to purchase the Perpetual Royalty Interests upon termination of the
Trust.
If the Trust cannot meet the New York Stock Exchange continued listing requirements, the NYSE may delist the
common units.
The Trust's common units are currently listed on the NYSE. In the future, if the Trust is unable to meet the continued listing requirements of
the NYSE—which require, among other things, that the average closing price of the common units remain at or above $1.00 over 30 consecutive trading days—the common units could
be delisted if the Trust is unable to regain compliance. A delisting of our common units could negatively impact the Trust by, among other things, reducing the liquidity and
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market
price of the common units and reducing the number of investors willing to hold or acquire the common units.
The Private Investors may sell additional Trust units, and such sales could have an adverse effect on the
trading price of the common units.
As of December 31, 2018, Greylock Production held no common units, while select Private Investors held common units. In connection with
the Trust's formation, the Trust and the Private Investors entered into a registration rights agreement, pursuant to which the Trust in 2012 filed a registration statement on Form S-3, to
facilitate sales of common units by such holders. If the Private Investors were to sell or offer to sell a substantial number of common units, the market price of the units could be adversely
affected.
Conflicts of interest could arise between Greylock Production and the Trust unitholders.
As a working interest owner in the Underlying Properties, Greylock Production could have interests that conflict with the interests of the Trust
and the Trust unitholders. For example:
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•
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Greylock Production's interests may conflict with those of the Trust and the Trust unitholders in situations involving the development,
maintenance, operation or abandonment of the Underlying Properties. Additionally, Greylock Production may abandon a well which is uneconomic to it while such well is still generating revenue for the
Trust unitholders. Greylock Production may make decisions with respect to expenditures and decisions to allocate resources on projects in other areas that adversely affect the Underlying Properties,
including reducing expenditures on these properties, which could cause gas production to decline at a faster rate and thereby result in lower cash distributions by the Trust in the future. In making
such decisions, Greylock Production is required under the applicable conveyance to act as a reasonably prudent operator in the AMI under the same or similar circumstances as it would act if it were
acting with respect to its own properties, disregarding the existence of the royalty interests as burdens affecting such property.
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•
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Greylock Production may sell some or all of the Underlying Properties. Any such sale may not be in the best interests of the Trust unitholders.
Any purchaser may lack Greylock Production's experience in the Marcellus Shale or its creditworthiness.
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•
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Greylock Production may, without the consent of the Trust unitholders, require the Trust to release Royalty Interests with an aggregate value
to the Trust of up to $5.0 million during any 12-month period. These releases will be made only in connection with the sale by Greylock Production of the Underlying Properties and are
conditioned upon the Trust receiving an amount equal to the fair value to the Trust of such Royalty Interests. See "Sale and Abandonment of Underlying Properties" in Item 2 of this report.
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•
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Greylock Production may in its discretion increase its Post-Production Services Fee for post-production costs on the GCGS to the extent
necessary to recover certain capital expenditures on the GCGS.
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•
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Greylock Production is permitted under the conveyance agreements creating the Royalty Interests to enter into new processing and transportation
contracts without obtaining bids from or otherwise negotiating with any independent third parties, and Greylock Production will deduct from the Trust's proceeds any charges under such contracts
attributable to production from the Trust properties. Provisions in the conveyance agreements, however, require that charges under future contracts with affiliates of Greylock Production relating to
processing or transportation of natural gas must be comparable to charges prevailing in the area for similar services.
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•
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Greylock Production can purchase or sell Trust units without considering the effects the transaction may have on common unit prices or on the
Trust itself. Additionally, Greylock Production can vote its Trust units in its sole discretion.
The Trust is administered by a Trustee who cannot be replaced except at a special meeting of Trust
unitholders.
The business and affairs of the Trust are administered by the Trustee. Voting rights of Trust unitholders are more limited than those of
stockholders of most public corporations. For example, there is no requirement for annual meetings of Trust unitholders or for an annual or other periodic re-election of the Trustee. The Trust
Agreement provides that the Trustee may only be removed and replaced by the holders of a majority of the outstanding Trust units, including Trust units held by Greylock Production, if any, at a
special meeting of Trust unitholders called by either the Trustee or the holders of not less than 10% of the outstanding Trust units. As a result, it will be difficult for public Trust unitholders to
remove or replace the Trustee without the cooperation of Greylock Production (if at the time it holds a significant percentage of total Trust units) or other holders of a substantial percentage of the
outstanding Trust units.
Trust unitholders have limited ability to enforce provisions of the Royalty Interests, and Greylock
Production's liability to the Trust is limited.
The Trust Agreement permits the Trustee and the Trust to sue Greylock Production or any other future owner of the Underlying Properties to
enforce the terms of the conveyances creating the PDP and PUD Royalty Interests. If the Trustee does not take appropriate action to enforce provisions of these conveyances, Trust unitholders' recourse
would be limited to bringing a lawsuit against the Trustee to compel the Trustee to take specified actions. The Trust Agreement expressly limits a Trust unitholder's ability to directly sue Greylock
Production or any other third party other than the Trustee. As a result, Trust unitholders will not be able to sue Greylock Production or any future owner of the Underlying Properties to enforce these
rights. Furthermore, the Royalty Interest conveyances provide that, except as set forth in the conveyances, Greylock Production is not liable to the Trust for the manner in which it performs its
duties in operating the Underlying Properties as long as it acts in good faith.
Courts outside of Delaware may not recognize the limited liability of the Trust unitholders provided under
Delaware law.
Under the Delaware Statutory Trust Act, Trust unitholders will be entitled to the same limitation of personal liability extended to stockholders
of corporations under the General Corporation Law of the State of Delaware. Nevertheless, courts in jurisdictions outside of Delaware may not give effect to such limitation.
Greylock Production is subject to complex federal, state, local and other laws and regulations that could
adversely affect the cost, manner or feasibility of conducting its operations or expose Greylock Production to significant liabilities.
Greylock Production's natural gas exploration, production and transportation operations are subject to complex and stringent laws and
regulations. In order to conduct its operations in compliance with these laws and regulations, Greylock Production must obtain and maintain numerous permits, drilling bonds, approvals and certificates
from various federal, state and local governmental authorities and engage in extensive reporting. Greylock Production may incur substantial costs in order to maintain compliance with these existing
laws and regulations. Further, in light of the explosion and fire on the drilling rig Deepwater Horizon in the Gulf of Mexico, as well as recent incidents involving the release of natural gas and
fluids as a result of drilling activities in the Marcellus Shale, there has been a variety
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of
regulatory initiatives at the federal and state level to restrict oil and gas drilling operations in certain locations. Any increased regulation or suspension of oil and gas exploration and
production, or revision or reinterpretation of existing laws and regulations, that arises out of these incidents or otherwise could result in delays and higher operating costs. Such costs or
significant delays could have a material adverse effect on Greylock Production's business, financial condition and results of operations. Greylock Production must also comply with laws and regulations
prohibiting fraud and market manipulations in energy markets. To the extent Greylock Production is a shipper on interstate pipelines, it must comply with the tariffs of such pipelines and with federal
policies related to the use of interstate capacity.
Laws
and regulations governing natural gas exploration and production may also affect production levels. Greylock Production is required to comply with federal and state laws and
regulations governing conservation matters, including provisions related to the unitization or pooling of the natural gas properties; the establishment of maximum rates of production from natural gas
wells; the spacing of wells; the plugging and abandonment of wells; and removal of related production equipment. These and other laws and regulations can limit the amount of natural gas Greylock
Production can produce from its wells, limit the number of wells it can drill, or limit the locations at which it can conduct drilling operations, which in turn could negatively impact Trust
distributions, estimated and actual future net revenues to the Trust and estimates of reserves attributable to the Trust's interests.
The
Trust was historically required to pay Pennsylvania franchise tax on its capital stock value, as determined pursuant to the statute and apportioned to Pennsylvania. The tax rate of
0.045% was
completely phased out effective January 1, 2016, though it could be readopted by the General Assembly in its annual budget process. Changes in current state law may subject the Trust to
additional entity-level taxation by Pennsylvania or other states. Because of widespread state budget deficits and other reasons, several states are evaluating ways to subject partnerships to
entity-level taxation through the imposition of state income, franchise and other forms of taxation. Imposition of any additional taxes on the Trust may substantially reduce the cash available for
distribution to unitholders and, therefore, negatively impact the value of an investment in the Trust units.
New
laws or regulations, or changes to existing laws or regulations, may unfavorably impact Greylock Production, could result in increased operating costs and have a material adverse
effect on Greylock Production's financial condition and results of operations. For example, Congress has previously considered legislation that, if adopted in its proposed form, would subject
companies involved in natural gas and oil exploration and production activities to, among other items the elimination of most U.S. federal tax incentives and deductions available to natural gas
exploration and production activities, and the prohibition or additional regulation of private energy commodity derivative and hedging activities. Additionally, the Pennsylvania Environmental Quality
Board has proposed amendments to Pennsylvania's oil and gas regulations to update existing requirements regarding the drilling, casing, cementing, testing, monitoring and plugging of oil and gas
wells, and the protection of water supplies, including reporting the list of chemicals used in hydraulic fracturing or to stimulate the well.
Additionally,
state and federal regulatory authorities may expand or alter applicable pipeline safety laws and regulations, compliance with which may require increased capital costs on
the part of Greylock Production and third party downstream natural gas transporters. These and other potential regulations could increase Greylock Production's operating costs, reduce Greylock
Production's liquidity, delay Greylock Production's operations, increase direct and third party post production costs associated with the Trust's interests or otherwise alter the way Greylock
Production conducts its business, which could have a material adverse effect on Greylock Production's financial condition, results of operations and cash flows and which could reduce cash received by
or available for distribution, including any amounts paid by Greylock Production for transportation on downstream interstate pipelines.
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The ability of Greylock Production to satisfy its obligations to the Trust depends on the financial position
of Greylock Production, and in the event of a default by Greylock Production in its obligations to the Trust, or in the event of Greylock Production's bankruptcy, it would be expensive and
time-consuming for the Trust to exercise its remedies.
Greylock Production is a privately held, independent energy company engaged in the exploration, development, production, gathering and
aggregation and sale of natural gas and oil,
primarily in the Appalachian Basin and Rocky Mountain regions in the United States. Greylock Production is also the operator of all of the Producing Wells and all of the PUD Wells. The conveyances
also provide that Greylock Production is obligated to market, or cause to be marketed, the natural gas production related to the Underlying Properties. Due to the Trust's reliance on Greylock
Production to fulfill these numerous obligations, the value of the Royalty Interests and its ultimate cash available for distribution will be highly dependent on Greylock Production's performance.
Greylock Production is not a reporting company and does not file periodic reports with the SEC. Therefore, Trust unitholders do not have access to financial information of Greylock Production.
The
ability of Greylock Production to perform its obligations to the Trust will depend on Greylock Production's future financial condition and economic performance and access to capital,
which in turn will depend upon the supply and demand for natural gas and oil, prevailing economic conditions and financial, business and other factors, many of which are beyond the control of Greylock
Production.
Due
to uncertainty under Pennsylvania law, the Royalty Interests conveyed by Legacy ECA to the Trust might not be treated as real property interests, or as interests in hydrocarbons in
place or to be produced. As a result, the Royalty Interests might be treated as unsecured claims of the Trust against Greylock Production, as the assignee of Legacy ECA, in the event of Greylock
Production's bankruptcy. The Royalty Interest Lien is intended to provide security to the Trust should the Royalty Interests be subject to such a challenge. If the PDP Royalty Interest or the PUD
Royalty Interest were determined not to be a real property interest owned by the Trust, the Trust's remedy would be to foreclose on the Trust's Royalty Interest Lien to cause the Trust to receive a
volume of natural gas production from the Trust properties calculated in accordance with the provisions of the conveyances of the Royalty Interests to the Trust. Foreclosure on the Royalty Interest
Lien is exercisable only following a bankruptcy filing of Greylock Production or its successor and based on an uncured payment default occurring under the conveyances of the Royalty Interests to the
Trust existing at the time of, or occurring after, such bankruptcy filing. The process of foreclosing to enforce the Royalty Interest Lien would be expensive and time-consuming, and the resulting
delays and expenses could reduce Trust distributions substantially or eliminate them for an unpredictable period of time.
The
proceeds of the Royalty Interests may be commingled, for a period of time, with proceeds of Greylock Production's retained interest. The Trust may not have adequate facts to trace
its entitlement to funds in the commingled pool of funds and that other persons may, in asserting claims against Greylock Production's retained interest, be able to assert claims to the proceeds that
should be delivered to the Trust. In addition, during a bankruptcy of Greylock Production, payments of the royalties may be delayed or deferred; in addition, the obligation to pay royalties may be
disaffirmed or cancelled. In either situation, the Trust may need to look to the Royalty Interest Lien to replace its rights under the Royalty Interests. During the pendency of any bankruptcy
proceedings involving Greylock Production, the Trust's ability to foreclose on the Royalty Interest Lien, and the ability to collect cash payments from customers being held in Greylock Production's
accounts that are attributable to production from the Trust properties, may be stayed by the bankruptcy court. Delay in realizing on the collateral for the Royalty Interest Lien is possible, and a
bankruptcy court might not permit such foreclosure. The bankruptcy also might delay the execution of a new agreement with another driller or operator. If the Trust were to enter into a new agreement
with a drilling or operating partner, the new partner might not achieve the same levels of production or sell natural gas at the same prices as Greylock Production was able to achieve.
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The operations of Greylock Production are subject to environmental laws and regulations that may result in
significant costs and liabilities.
The natural gas exploration and production operations of Greylock Production in the Marcellus Shale are subject to stringent and comprehensive
federal, state and local laws and regulations governing the discharge, emission or release of materials into the environment or otherwise relating to environmental protection. These laws and
regulations may impose numerous obligations that are applicable to Greylock Production's operations including the acquisition of a permit before conducting drilling; water withdrawal or waste disposal
operations; govern the amounts and types of substances that may be disposed or released into the environment; limit or prohibit construction or drilling activities in sensitive areas such as wetlands,
wilderness areas or areas containing endangered or threatened species or their habitats; require investigatory and response actions to mitigate pollution conditions arising from Greylock Production's
operations or attributable to former operations; and impose obligations to reclaim and abandon well sites, impoundments and pits. Failure to comply with these laws and regulations may result in the
assessment of administrative, civil or criminal penalties; the imposition of investigatory or remedial obligations and the issuance of orders enjoining some or all of Greylock Production's operations
in affected areas.
There
is inherent risk of incurring significant environmental costs and liabilities in the performance of Greylock Production's operations due to its handling of petroleum hydrocarbons
and wastes, because of air emissions and wastewater discharges related to its operations, and as a result of historical industry operations and waste disposal practices. Under certain environmental
laws and regulations, Greylock Production could be subject to joint and several strict liabilities for the removal or remediation of previously released materials or property contamination regardless
of whether Greylock Production was responsible for the release or contamination or if the operations were not in compliance with all applicable laws at the time those actions were taken. Private
parties, including the owners of properties upon which Greylock Production's wells are drilled and facilities where Greylock Production's petroleum hydrocarbons or wastes are taken for reclamation or
disposal may also have the right to pursue legal actions to enforce compliance, as well as to seek damages for non-compliance with environmental laws and regulations or for personal injury or property
damage or to recover some or all of the costs of the removal or remediation of released materials. In addition, the risk of accidental spills or releases could expose Greylock Production to
significant liabilities that could have a material adverse effect on its financial condition or results of operations. Changes in environmental laws and regulations occur frequently, and any changes
that result in more stringent or costly waste handling, storage, transport, disposal or cleanup requirements could require Greylock Production to make significant expenditures to attain and maintain
compliance and may otherwise have a material adverse effect on its results of operations, competitive position or financial condition. Greylock Production may not be able to recover some or any of
these costs from insurance.
Climate change laws and regulations restricting emissions of "greenhouse gases" could result in increased
operating costs and reduced demand for the natural gas that Greylock Production produces while the physical effects of climate change could disrupt Greylock Production's production and cause Greylock
Production to incur significant costs in preparing for or responding to those effects.
In December 2009, the EPA published its findings that emissions of GHGs present a danger to public health and the environment. These findings
allow the agency to adopt and implement regulations that would restrict emissions of GHGs under existing provisions of the federal Clean Air Act. Accordingly, the EPA has adopted regulations that
could trigger permit review for GHG emissions from certain stationary sources. Those regulations were challenged in federal court and the Supreme Court has upheld the EPA's authority to regulate GHG
emissions from stationary sources, concluding sources that trigger air permitting requirements based on their traditional criteria pollutant emissions must include a limit for GHGs in their permit.
The EPA has also issued regulations that require the
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establishment
and reporting of an inventory of GHG emissions from specified stationary sources, including certain onshore oil and natural gas exploration, development and production facilities. In
October 2015, the EPA finalized its "Clean Power Plan" regulations under Section 111(d) of the Clean Air Act to limit GHG emissions from existing power plants. Several states, trade groups and
companies have challenged the legality of the EPA's Section 111(d) rule for existing power plants in federal court. On February 9, 2016, the Supreme Court granted an emergency stay
preventing EPA from implementing the Clean Power Plan until the D.C. Circuit issues a decision on the legality of the rule and disposition of a writ of certiorari, to the extent such a writ is sought.
President Trump has publicly stated that it is a top priority of his administration to eliminate the Clean Power Plan. The EPA has finalized regulations that require control of methane emissions from
new sources in the oil and gas industry and target ozone-forming pollutants from existing sources in areas that do not meet federal ozone health standards. The EPA has also issued several Information
Collection Requests to industry seeking assistance in developing a program for regulating methane emissions from existing oil and gas sources as well.
At
the state level, more than one-third of the states, either individually or through multi-state regional initiatives, already have begun implementing legal measures to control or
reduce emissions of GHGs. The adoption and implementation of any regulations imposing reporting obligations on, or limiting emissions of GHGs from, Greylock Production's equipment and operations could
require Greylock Production to incur costs to reduce emissions of GHGs associated with its operations or could adversely affect demand for the natural gas that it produces. Finally, some scientists
have concluded that increasing concentrations of GHGs in the Earth's atmosphere may produce climate changes that have significant physical effects, such as increased frequency and severity of storms,
droughts, and floods and other climatic events; if any such effects were to occur, they could have an adverse effect on Greylock Production's assets and operations.
Cyber-attacks or other failures in telecommunications or information technology systems could result in
information theft, data corruption and significant disruption of Greylock Energy's business operations.
Greylock Energy increasingly relies on information technology ("IT") systems and networks in connection with its business activities, including
certain of its exploration, development and production activities. Greylock Energy relies on digital technology, including information systems and related infrastructure, as well as cloud applications
and services, to, among other things, estimate quantities of oil and natural gas reserves, analyze seismic and drilling information, process and record financial and operating data and communicate
with employees and third parties. As dependence on digital technologies has increased, cyber incidents, including deliberate attacks and attempts to gain unauthorized access to computer systems and
networks, have increased in frequency and sophistication. These threats pose a risk to the security of Greylock Energy's systems and networks, the confidentiality, availability and integrity of its
data and the physical security of its employees and assets. Greylock Energy has experienced, and expects to continue to experience, attempts from hackers and other third parties to gain unauthorized
access to its IT systems and networks. Although prior cyber-attacks have not had a material adverse effect on Greylock Energy's operations or financial performance, Greylock Energy might not be
successful in preventing cyber-attacks or mitigating their effect. Any cyber-attack could have a material adverse effect on Greylock Energy's reputation, competitive position, business, financial
condition and results of operations, and could have a material adverse effect on the Trust. Cyber-attacks or security breaches also could result in litigation or regulatory action, as well as
significant additional expense to Greylock Production to implement further data protection measures.
In
addition to the risks presented to Greylock Energy's systems and networks, cyber-attacks affecting oil and natural gas distribution systems maintained by third parties, or the
networks and infrastructure on which they rely, could delay or prevent delivery to markets. A cyber-attack of this nature would be outside Greylock Energy's ability to control, but could have a
material adverse effect
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on
Greylock Energy's business, financial condition and results of operations, and could have a material adverse effect on the Trust.
Cyber-attacks or other failures in telecommunications or IT systems could result in information theft, data
corruption and significant disruption of the Trustee's operations.
The Trustee depends heavily upon IT systems and networks in connection with its business activities. Despite a variety of security measures
implemented by the Trustee, events such as the loss or theft of back-up tapes or other data storage media could occur, and the Trustee's computer systems could be subject to physical and electronic
break-ins, cyber-attacks and similar disruptions from unauthorized tampering, including threats that may come from external factors, such as governments, organized crime, hackers and third parties to
whom certain functions are outsourced, or may originate internally from within the respective companies.
If
a cyber-attack were to occur, it could potentially jeopardize the confidential, proprietary and other information processed and stored in, and transmitted through, the Trustee's
computer systems and networks, or otherwise cause interruptions or malfunctions in the operations of the Trust, which could result in litigation, increased costs and regulatory penalties. Although
steps are taken to prevent and detect such attacks, it is possible that a cyber incident will not be discovered for some time after it occurs, which could increase exposure to these consequences.
Tax Risks Related to the Trust's Common Units
The Trust's tax treatment depends on its status as a partnership for United States federal income tax
purposes. At the inception of the Trust, the Trust received an opinion from tax counsel that the Trust will be treated as a partnership for United States federal income tax purposes. If the Internal
Revenue Service were to treat the Trust as a corporation for United States federal income tax purposes, then its cash available for distribution would be substantially reduced.
The anticipated after-tax economic benefit of an investment in the Trust units depends largely on the Trust being treated as a partnership for
United States federal income tax purposes. At the inception of the Trust, Legacy ECA and the Trust received an opinion from tax counsel that the Trust would be treated as a partnership for United
States federal income tax purposes. In order for the Trust to be treated as a partnership for United States federal income tax purposes, current law requires that 90% or more of our gross income for
every taxable year consist of "qualifying income," as defined in Section 7704 of the Internal Revenue Code. The Trust may not meet this requirement or current law may change so as to cause, in
either event, the Trust to be treated as a corporation for United States federal income tax purposes or otherwise subject the Trust to taxation as an entity. Although the Trust does not believe based
upon its current activities that it is so treated, a change in current law could cause it to be treated as a corporation for United States federal income tax purposes or otherwise subject it to
taxation as an entity. The Trust has not requested, and does not plan to request, a ruling from the Internal Revenue Service, which we referred to as the IRS, on this or any other tax matter affecting
it.
If
the Trust was treated as a corporation for United States federal income tax purposes, it would pay United States federal income tax on its taxable income at the corporate tax rate,
which is currently a maximum of 21%, and likely would be required to pay state income tax. Distributions to unitholders generally would be taxed again as corporate distributions, and no income, gains,
losses, deductions or credits would flow through to unitholders. Because additional tax would be imposed upon the Trust as a corporation, its cash available for distribution to unitholders would be
substantially reduced. Therefore, treatment of the Trust as a corporation would result in a material reduction in the anticipated cash flow and after-tax return to the Trust unitholders, likely
causing a substantial reduction in the value of the Trust units.
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The
Trust Agreement provides that if a law is enacted or existing law is modified or interpreted in a manner that subjects the Trust to taxation as a corporation or otherwise subjects it
to entity-level taxation for United States federal income tax purposes, the target distribution amounts may be adjusted to reflect the impact of that law on the Trust.
If the Trust were subjected to a material amount of additional entity-level taxation by Pennsylvania or any
other states, the Trust's cash available for distribution to you would be reduced.
The Trust was historically required to pay Pennsylvania franchise tax on its capital stock value, as determined pursuant to the statute and
apportioned to Pennsylvania. The tax rate of 0.045% was completely phased out effective January 1, 2016, though it could be readopted by the General Assembly in its annual budget process.
Changes in current state law may subject the Trust to additional entity-level taxation by Pennsylvania or other states. Because of widespread state budget deficits and other reasons, several states
are evaluating ways to subject partnerships to entity-level taxation through the imposition of state income, franchise and other forms of taxation. Imposition of any additional taxes on the Trust may
substantially reduce the cash available for distribution to unitholders and, therefore, negatively impact the value of an investment in the Trust units.
If enacted, severance taxes in Pennsylvania could materially increase the applicable taxes that are borne by
the Trust.
Although Pennsylvania historically has not imposed a severance tax on the production of natural gas, in 2018 and 2019 the Governor of
Pennsylvania proposed a tiered severance tax on the value of natural gas at the wellhead. While the details of the proposal currently remain unclear, the Governor has indicated the percentage may vary
between 3 percent and 5 percent depending on sales pricing. Prior proposals included severance taxes of 5 percent, later reduced to 3.5 percent, plus 4.7 cents per thousand
cubic feet of natural gas extracted. Any such severance tax, if adopted, would be a cost that would be borne by the Trust and could materially reduce distributions to unitholders. Pennsylvania already
imposes an "Impact fee" based on production, the effect of which is similar to that of a severance tax.
The tax treatment of publicly traded partnerships or an investment in our Trust units could be affected by
recent and potential legislative, judicial or administrative changes and differing interpretations, possibly on a retroactive basis.
The current United States federal income tax treatment of publicly traded partnerships, including the Trust, or an investment in the Trust
units, may be modified by administrative, legislative or judicial interpretation at any time. In the past, Congress has considered substantive changes to the existing United States federal income tax
laws that affect certain publicly traded partnerships. Any modification to the United States federal income tax laws or interpretations thereof could cause the Trust to be taxed as a corporation or
make it difficult or impossible to meet the requirements for the Trust to be treated as a partnership for United States federal income tax purposes, affect or cause us to change our business
activities, affect the tax considerations of an
investment in the Trust, change the character or treatment of portions of the Trust income and adversely affect an investment in the Trust's units. Moreover, any modification to the United States
federal income tax laws and interpretations thereof may or may not be applied retroactively. Any potential change in law or interpretation thereof could negatively impact the value of an investment in
the Trust units.
Under
current law for the taxable year ending December 31, 2019, the highest marginal United States federal income tax rate applicable to ordinary income of individuals is 37% and
the highest marginal United States federal income tax rate applicable to long-term capital gains (generally, capital gains on certain assets held for more than 12 months) of individuals is 20%.
These rates are subject to change by new legislation at any time.
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In
addition, a 3.8% Medicare tax is imposed on certain net investment income from a variety of sources earned by individuals. For these purposes, net investment income generally includes
a Trust unitholder's allocable share of the Trust income and gain realized by a Trust unitholder from a sale of the Trust units. The tax will be imposed on the lesser of (i) the Trust
unitholder's net income from all investments, or (ii) the amount by which the Trust unitholder's modified adjusted gross income exceeds $250,000 (if the Trust unitholder is married and filing
jointly) or $200,000 (if the Trust unitholder is unmarried).
Recently
enacted federal legislation applicable to the Trust for taxable years beginning after December 31, 2018 alters the procedures for auditing large partnerships and also
alters the procedures for assessing and collecting income taxes due (including applicable penalties and interest) as a result of an audit. Unless the Trust is eligible to (and chooses to) elect to
issue revised Schedules K-1 to our partners with respect to an audited and adjusted return, the IRS may assess and collect income taxes (including any applicable penalties and interest)
directly from the Trust in the year in which the audit is completed under the new rules. If the Trust is required to pay income taxes, penalties and interest as the result of audit adjustments, cash
available for distribution to Trust unitholders may be substantially reduced. In addition, because payment would be due for the taxable year in which the audit is completed, Trust unitholders during
that taxable year would bear the expense of the adjustment even if they were not Trust unitholders during the audited taxable year.
The Trust prorates items of income, gain, loss and deduction between transferors and transferees of the Trust
units each month based upon the ownership of the Trust units on the first day of each month, instead of on the basis of the date a particular unit is transferred
.
The Trust prorates items of income, gain, loss and deduction between transferors and transferees of the Trust units each month based upon the
ownership of the Trust units on the first day of each month, instead of on the basis of the date a particular unit is transferred. The use of this proration method may not be permitted under existing
Treasury Regulations, and, accordingly, the Trust's counsel was unable to opine as to the validity of this method. If the IRS were to challenge this method or new Treasury Regulations were issued, we
may be required to change the allocation of items of income, gain, loss and deduction among the Trust unitholders. If the IRS contests the federal income tax positions the Trust takes, the market for
the Trust units may be adversely impacted, the cost of any IRS contest will reduce the Trust's cash available for distribution to unitholders and items of income, gain, loss and deduction may be
reallocated among Trust unitholders.
If the IRS contests the United States federal income tax positions the Trust takes, the market for the Trust
units may be adversely impacted and the cost of any IRS contest will reduce the Trust's cash available for distribution.
The Trust has not requested a ruling from the IRS with respect to its treatment as a partnership for United States federal income tax purposes
or any other matter affecting the Trust. The IRS may adopt positions that differ from the conclusions of the Trust's counsel expressed in the Prospectus or from the positions the Trust takes. It may
be necessary to resort to administrative or court proceedings to attempt to sustain some or all of the conclusions of the Trust's counsel or the positions the Trust takes. A court may not agree with
some or all of the conclusions of the Trust's counsel or positions the Trust takes. Any contest with the IRS may materially and adversely impact the market for the Trust units and the price at which
they trade. In addition, the Trust's costs of any contest with the IRS will be borne indirectly by the Trust unitholders because the costs will reduce the Trust's cash available for distribution.
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Each unitholder is required to pay taxes on the unitholder's share of the Trust's income even if a unitholder
does not receive any cash distributions from the Trust.
Because the Trust unitholders are treated as partners to whom the Trust allocates taxable income that could be different in amount than the cash
the Trust distributes, each unitholder may be required to pay any United States federal income taxes and, in some cases, state and local income taxes on the unitholder's share of the Trust's taxable
income even if a unitholder receives no cash distributions from the Trust. A unitholder may not receive cash distributions from the Trust equal to the unitholder's share of the Trust's taxable income
or even equal to the actual tax liability that result from that income.
Tax gain or loss on the disposition of the Trust units could be more or less than expected.
If a unitholder sells its Trust units, the unitholder will recognize a gain or loss equal to the difference between the amount realized and the
unitholder's tax basis in those Trust units. Because distributions in excess of a unitholder's allocable share of the Trust's net taxable income decrease the unitholder's adjusted tax basis in its
Trust units, the amount, if any, of such prior excess distributions with respect to the Trust units unitholders sell will, in effect, become taxable income to unitholders if unitholders sell such
Trust units at a price greater than the unitholder's tax basis in those Trust units, even if the price the unitholder receives is less than the unitholder's original cost. Furthermore, a substantial
portion of the amount realized, whether or not representing gain, may be taxed as ordinary income due to potential recapture items, including depletion recapture.
Tax-exempt organizations and non-United States persons face unique tax issues from owning the Trust units
that may result in adverse tax consequences to them.
Tax-Exempt Organizations.
Employee benefit plans and most other organizations exempt from U.S. federal income tax including individual
retirement
accounts (known as IRAs) and other retirement plans are subject to U.S. federal income tax on unrelated business taxable income. Because all of the income of the Trust is expected to be royalty
income, interest income and gain from the sale of real property, none of which is expected to be unrelated business taxable income, any such organization exempt from U.S. federal income tax is not
expected to be taxed on income generated by ownership of Trust units so long as neither the property held by the Trust nor the Trust units are debt-financed
property within the meaning of IRC Section 514(b). However, such investors should consult their own tax advisors as to the proposed treatment of income from the Trust.
Non-U.S. Persons.
Pursuant to IRC Section 1446, withholding tax on income effectively connected to a United States trade or
business allocated
to non-U.S. persons ("ECI") should be made at the highest marginal rate. Under IRC Section 1441, withholding tax on fixed, determinable, annual, periodic income from United States sources
allocated to non-U.S. persons should be made at 30% of gross income unless the rate is reduced by treaty. Nominees and brokers should withhold at the highest marginal rate on the distribution made to
non-U.S. persons. As a result of the Tax Cuts and Jobs Act enacted in December 2017, a non-U.S. holder's gain on the sale of Trust units is now treated as ECI to the extent such holder would have had
ECI if the Trust had sold all of its assets at fair market value on the date of the exchange. The new legislation also requires the transferee of units to withhold 10% of the amount realized on the
sale of exchange of units (generally, the purchase price) unless the transferor certifies that it is not a nonresident alien individual or foreign corporation.
The Trust treats each purchaser of Trust units as having the same economic attributes without regard to the
actual Trust units purchased. The IRS may challenge this treatment, which could adversely affect the value of the Trust units.
Due to a number of factors, including the Trust's inability to match transferors and transferees of Trust units, the Trust may adopt positions
that may not conform to all aspects of existing Treasury
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Regulations.
A successful IRS challenge to those positions could adversely alter the tax effects of an investment in Trust units. It also could affect the timing of tax benefits or the amount of gain
from a unitholder's sale of Trust units and could have a negative impact on the value of the Trust units or result in audit adjustments to a unitholder's tax returns.
A Trust unitholder whose Trust units are loaned to a "short seller" to cover a short sale of Trust units may
be considered as having disposed of those Trust units. If so, he would no longer be treated for tax purposes as a partner with respect to those Trust units during the period of the loan and may
recognize gain or loss from the disposition.
Because a Trust unitholder whose Trust units are loaned to a "short seller" to cover a short sale of Trust units may be considered as having
disposed of the loaned Trust units, the Trust unitholder may no longer be treated for United States federal income tax purposes as a partner with respect to those Trust units during the period of the
loan to the short seller and the unitholder may recognize gain or loss from such disposition. Moreover, during the period of the loan to the short seller, any of the Trust's income, gain, loss or
deduction with respect to those Trust units may not be reportable by the unitholder and any cash distributions received by the unitholder as to those Trust units could be fully taxable as ordinary
income. The Trust's counsel has not rendered an opinion regarding the treatment of a unitholder where Trust units are loaned to a short seller to cover a short sale of Trust units; therefore, Trust
unitholders desiring to assure their status as partners and avoid the risk of gain recognition from a loan to a short seller are urged to modify any applicable brokerage account agreements to prohibit
their brokers from loaning their Trust units.
The Trust may adopt certain valuation methodologies that may affect the income, gain, loss and deduction
allocable to the Trust unitholders. The IRS may challenge this treatment, which could adversely affect the value of the Trust units.
The United States federal income tax consequences of the ownership and disposition of Trust units will depend in part on the Trust's estimates
of the relative fair market values, and the initial tax basis of the Trust's assets. Although the Trust may from time to time consult with professional appraisers regarding valuation matters, the
Trust will make many of the relative fair market value estimates itself. These estimates and determinations of basis are subject to challenge and will not be binding on the IRS or the courts. If the
estimates of fair market value or basis are later found to be incorrect, the character and amount of items of income, gain, loss or deductions previously reported by Trust unitholders might change,
and Trust unitholders might be required to adjust their tax liability for prior years and incur interest and penalties with respect to those adjustments. It also could affect the amount of gain from
unitholders' sale of Trust units and could have a negative impact on the value of the Trust units or result in audit adjustments to unitholders' tax returns without the benefit of additional
deductions.
Certain United States federal income tax preferences currently available with respect to natural gas
production may be eliminated as a result of future legislation.
In recent years, the U.S. government's budget proposals and other proposed legislation have included the elimination of certain key U.S. federal
income tax incentives currently available to oil and natural gas exploration and production. If enacted into law, these proposals would eliminate certain tax preferences applicable to taxpayers
engaged in the exploration or production of natural resources. These changes include, but are not limited to (i) the repeal of the percentage depletion allowance for oil and natural gas
properties, (ii) the elimination of current deductions for intangible drilling and development costs, (iii) the elimination of the deduction for U.S. production activities and
(iv) the increase in the amortization period from two years to seven years for geophysical costs paid or incurred in connection with the exploration for or development of, oil and natural gas
within the U.S. It is
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unclear
whether any such changes will be enacted or how soon any such changes would become effective. The passage of any legislation as a result of these proposals or any other similar changes in U.S.
federal income tax laws could negatively affect our financial condition and results of operations.