AMENDED AND RESTATED TRUST AGREEMENT OF ENDURO ROYALTY TRUST AMONG ENDURO RESOURCE PARTNERS LLC and WILMINGTON TRUST COMPANY and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. Dated: As of November 3, 2011
Exhibit 3.1
Execution
Copy
AMENDED AND RESTATED
OF
AMONG
ENDURO RESOURCE PARTNERS LLC
and
WILMINGTON TRUST COMPANY
and
THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A.
MELLON TRUST COMPANY, N.A.
Dated: As of November 3, 2011
TABLE OF CONTENTS
Article I |
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Definitions |
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Article II |
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Name and Purpose of the Trust; Declaration of Trust |
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Section 2.01 Name; Certificate of Trust |
6 | |||
Section 2.02 Purpose |
6 | |||
Section 2.03 Transfer of Trust Property to the Trust |
7 | |||
Section 2.04 Creation of the Trust |
8 | |||
Section 2.05 Principal Offices |
8 | |||
Article III |
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Administration of the Trust and Powers of the Trustee |
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and the Delaware Trustee |
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Section 3.01 General Authority |
8 | |||
Section 3.02 Limited Power of Disposition |
9 | |||
Section 3.03 No Power to Engage in Business or Make Investments or Issue Additional
Securities |
11 | |||
Section 3.04 Interest on Cash Reserves |
11 | |||
Section 3.05 Power to Settle Claims |
12 | |||
Section 3.06 Power to Contract for Services |
12 | |||
Section 3.07 Payment of Liabilities of Trust |
12 | |||
Section 3.08 Income and Principal |
14 | |||
Section 3.09 Term of Contracts |
14 | |||
Section 3.10 Transactions with Entity Serving as the Trustee or the Delaware Trustee |
14 | |||
Section 3.11 No Security Required |
14 | |||
Section 3.12 Filing of Securities Act Registration Statement, Exchange Act Registration
Statement and Other Reports, Listing of Trust Units, etc.; Certain Fees and
Expenses |
14 | |||
Section 3.13 Reserve Report |
15 | |||
Section 3.14 No Liability for Recordation |
16 | |||
Article IV |
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Trust Units and Uncertificated Beneficial Interest |
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Section 4.01 Creation and Distribution |
16 | |||
Section 4.02 Rights of Trust Unitholders;
Limitation on Personal Liability
of Trust Unitholders |
16 | |||
Section 4.03 Effect of Transfer |
17 | |||
Section 4.04 Determination of Ownership |
17 | |||
Section 4.05 Transfer Agent |
17 |
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Article V |
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Accounting and Distributions; Reports |
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Section 5.01 Fiscal Year and Accounting Method |
17 | |||
Section 5.02 Monthly Cash Distributions |
18 | |||
Section 5.03 Reports to Trust Unitholders and Others |
18 | |||
Section 5.04 Federal Income Tax Provisions |
18 | |||
Section 5.05 Information and Services |
19 | |||
Article VI |
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Liability of Delaware Trustee and Trustee and |
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Method of Succession |
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Section 6.01 Liability of Delaware Trustee, Trustee and Agents |
19 | |||
Section 6.02 Indemnification of Trustee or Delaware Trustee |
20 | |||
Section 6.03 Resignation of Delaware Trustee and Trustee |
22 | |||
Section 6.04 Removal of Delaware Trustee and Trustee |
22 | |||
Section 6.05 Appointment of Successor Delaware Trustee or Trustee |
22 | |||
Section 6.06 Laws of Other Jurisdictions |
23 | |||
Section 6.07 Reliance on Experts |
24 | |||
Section 6.08 Force Majeure |
24 | |||
Section 6.09 Failure of Action by Enduro |
25 | |||
Section 6.10 Action Upon Instructions |
25 | |||
Section 6.11 Management of Trust Estate |
25 | |||
Section 6.12 Validity |
25 | |||
Section 6.13 Rights and Powers; Litigation |
25 | |||
Section 6.14 No Duty to Act Under Certain Circumstances |
26 | |||
Section 6.15 Indemnification of Trust |
26 | |||
Article VII |
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Compensation of the Trustee and the Delaware Trustee |
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Section 7.01 Compensation of Trustee and Delaware Trustee |
26 | |||
Section 7.02 Reimbursement of Enduro |
27 | |||
Section 7.03 Source of Funds |
27 | |||
Section 7.04 Ownership of Units by Enduro, the Delaware Trustee and the Trustee |
27 | |||
Article VIII |
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Meetings of Trust Unitholders |
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Section 8.01 Purpose of Meetings |
27 | |||
Section 8.02 Call and Notice of Meetings |
27 | |||
Section 8.03 Method of Voting and Vote Required |
28 | |||
Section 8.04 Conduct of Meetings |
28 | |||
Article IX |
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Duration, Revocation and Termination of Trust |
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Section 9.01 Revocation |
28 | |||
Section 9.02 Termination |
28 | |||
Section 9.03 Disposition and Distribution of Assets and Properties |
29 | |||
Section 9.04 Reorganization or Business Combination |
29 |
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Article X |
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Amendments |
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Section 10.01 Prohibited Amendments |
30 | |||
Section 10.02 Permitted Amendments |
31 | |||
Article XI |
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Arbitration |
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Article XII |
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Miscellaneous |
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Section 12.01 Inspection of Books |
34 | |||
Section 12.02 Disability of a Trust Unitholder |
34 | |||
Section 12.03 Interpretation |
35 | |||
Section 12.04 Merger or Consolidation of Delaware Trustee or Trustee |
35 | |||
Section 12.05 Change in Trust Name |
35 | |||
Section 12.06 Filing of this Agreement |
35 | |||
Section 12.07 Choice of Law |
35 | |||
Section 12.08 Separability |
36 | |||
Section 12.09 Notices |
36 | |||
Section 12.10 Counterparts |
37 | |||
Section 12.11 No Fiduciary Duty of Enduro or its Affiliates |
37 |
iii
This Amended and Restated Trust Agreement of Enduro Royalty Trust, a Delaware statutory trust
(the “Trust”), is entered into effective as of the 3rd day of November, 2011, by and among ENDURO
RESOURCE PARTNERS LLC, a Delaware limited liability company with its principal office in Fort
Worth, Texas (“Enduro”), as trustor, WILMINGTON TRUST COMPANY, a trust company organized under the
laws of the State of Delaware with its principal office in Wilmington, Delaware (“Wilmington
Trust”), as Delaware Trustee (as hereinafter defined), and THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., a national association organized under the laws of the State of New York (the
“Bank”), as Trustee (as hereinafter defined).
WITNESSETH:
WHEREAS, Enduro is engaged in the exploration for, and the development and production of, oil
and natural gas, the development, ownership and operation of oil and natural gas infrastructure and
the acquisition of leases and other real property in connection therewith, and owns oil and natural
gas properties and related assets in Texas, Louisiana and New Mexico; and
WHEREAS, Enduro has determined to convey to the Trust through the Merger (hereinafter defined)
the Net Profits Interest (hereinafter defined) in exchange for 33,000,000 Trust Units (hereinafter
defined); and
WHEREAS, Enduro, Wilmington Trust and the Bank have previously formed the Trust pursuant to
the Organizational Trust Agreement (hereinafter defined) in accordance with the provisions of the
Trust Act (hereinafter defined) and, in connection therewith, Enduro has previously delivered to
the Bank, on behalf of the Trust, good and valuable consideration, which consideration the Bank has
accepted, to have and to hold, in trust, such consideration, for the purposes and subject to the
terms and conditions hereinafter provided; and
NOW, THEREFORE, Enduro, Wilmington Trust and the Bank hereby amend and restate the
Organizational Trust Agreement in its entirety.
ARTICLE I
DEFINITIONS
DEFINITIONS
As used herein, the following terms have the meanings indicated:
“AAA” has the meaning assigned to that term in Article XI.
“Affiliate” means, for any specified Person, another Person that directly, or indirectly
through one or more intermediaries, controls, is controlled by, or is under common control with,
the specified Person. “Control,” in the preceding sentence, refers to the possession, directly or
indirectly, of the right or power to direct or cause the direction of the management and
policies of another Person, whether through the ownership of voting securities, by contract, or
otherwise.
“Agent” means, with respect to a Person, an agent, employee, officer, director, custodian,
nominee or attorney of such Person.
“Agreement” means this Amended and Restated Trust Agreement of Enduro Royalty Trust, as it may
be further amended, supplemented or restated from time to time.
“Bank” means The Bank of New York Mellon Trust Company, N.A., a national banking association,
and its successors and assigns.
“Beneficial Interest” means the aggregate beneficial ownership interest of all Trust
Unitholders in the Trust Estate, including without limitation the proceeds from the conversion of
the Net Profits Interest to cash, and in the right to cash resulting from such conversion of the
Net Profits Interest, which beneficial interest is expressed in Trust Units, but such beneficial
interest does not include any direct ownership interest, legal or equitable, in or to the Net
Profits Interest, or any part thereof, or in or to any asset of the Trust Estate.
“Business Day” means any day that is not a Saturday, Sunday, a holiday determined by the NYSE
Regulation, Inc. as affecting “‘ex’ dates” or any other day on which national banking institutions
in New York, New York or Wilmington, Delaware are closed as authorized or required by law.
“Claimant” has the meaning assigned to that term in Article XI.
“Closing” means the first closing of the initial public offering of Trust Units contemplated
by the Securities Act Registration Statement.
“Closing Date” means the date of Closing.
“Commission” means the Securities and Exchange Commission.
“Conveyance” means the Conveyance of Net Profits Interest, to be entered into on November 8,
2011, from Enduro Operating LLC, as grantor, to Enduro Texas, as grantee, as supplemented by the
Conveyance Supplement.
“Conveyance Supplement” means the Supplement to Conveyance of Net Profits Interest, to be
entered into on November 8, 2011 by and among Enduro Operating LLC, Enduro Texas and the Trustee.
“Delaware Trustee” means the Entity serving as a trustee (other than as the Trustee) hereunder
having its principal place of business in Delaware, not in its individual capacity but solely in
its capacity as trustee hereunder, and having the rights and obligations specified with respect to
the Delaware Trustee in this Agreement. Furthermore, any benefit, indemnity, release or protection
granted to the Delaware Trustee herein shall extend to and shall be fully applicable and effective
with regard to any Entity serving as the Delaware Trustee, including, without limitation,
Wilmington Trust.
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“Enduro” means Enduro Resource Partners LLC, a Delaware limited liability company, and its
successors and permitted assigns.
“Enduro Texas” means Enduro Texas LLC, a Texas limited liability company and wholly owned
subsidiary of Enduro, and its successors and permitted assigns.
“Entity” means a corporation, partnership, limited liability company, trust, estate or other
entity, organization or association.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Act Registration Statement” means the registration statement on Form 8-A pursuant to
which the Trust Units may be registered under Section 12 of the Exchange Act.
“Expenses” has the meaning assigned to that term in Section 6.02(a).
“Fair Value” means, with respect to any portion of the Net Profits Interest to be released or
sold pursuant to Section 3.02(c) in connection with a sale of Underlying Properties, an
amount equal to the excess, if any, of (a) the proceeds which could reasonably be expected to be
obtained from the sale of such portion of the Net Profits Interest to a party which is not an
Affiliate of Enduro or the Trust on an arms-length negotiated basis, taking into account relevant
market conditions and factors existing at the time of any such proposed sale or release, over (b)
the Trust’s proportionate share of any sales costs, commissions and brokerage fees related to such
sales.
“Gross Deductions” has the meaning assigned to that term in the Conveyance.
“Gross Fair Value” means an amount equal to the Fair Value divided by 80%.
“Indemnified Party” or “Indemnified Parties” has the meaning assigned to that term in
Section 6.02(c).
“Indemnifying Party” has the meaning assigned to that term in Section 6.02(c).
“Independent Reserve Engineers” means Xxxxxx, Xxxxxxxxx & Associates, Inc., independent
petroleum engineers, or any successor petroleum engineering consultants employed by the Trust to
provide information and reports with respect to the Net Profits Interest.
“Merger” means the merger of Enduro Texas with and into the Trust, pursuant to the Merger
Agreement.
“Merger Agreement” means the Agreement and Plan of Merger, dated November 3, 2011, between the
Trust and Enduro Texas pursuant to which the Merger will occur.
“Monthly Cash Distribution” means, for each Monthly Period, an amount determined by the
Trustee pursuant to Section 5.02 hereof to be equal to the excess, if any, of (a) the sum
of (i) the cash received by the Trust attributable to the Net Profits Interest with respect to the
Monthly Period, plus (ii) any decrease with respect to the Monthly Period in any cash reserve
3
theretofore
established by the Trustee for the payment of liabilities of the Trust, plus (iii) any other
cash receipts of the Trust with respect to the Monthly Period (including any cash received from
interest earned pursuant to Section 3.04), over (b) the sum of (i) the liabilities of the
Trust paid with respect to the Monthly Period, plus (ii) the amount of any cash used with respect
to the Monthly Period by the Trustee to establish or increase a cash reserve established for the
payment of any liabilities, including contingent liabilities, of the Trust.
“Monthly Payment Date” means the 10th Business Day after the Monthly Record Date.
“Monthly Period” means, for the initial period, the period that commences on July 1, 2011 and
continues through and includes September 30, 2011, and for succeeding periods each calendar month
of each year.
“Monthly Record Date” means, for each Monthly Period, the last Business Day of the next
succeeding month or such other date established by the Trustee in order to comply with applicable
law or the rules of any securities exchange or quotation system on which the Trust Units may be
listed or admitted to trading, in which event “Monthly Record Date” means such other date;
provided, however, that the initial Monthly Record Date may occur prior to November 30, 2011.
“Net Profits Interest” means the net profits interest to be conveyed by Enduro (through its
wholly owned subsidiary) to the Trust through the Merger.
“Organizational Trust Agreement” means the Trust Agreement of Enduro Royalty Trust, entered
into and effective as of May 3, 2011, by and among Enduro, Wilmington Trust and the Bank.
“Person” means a natural person or an Entity.
“Prospectus” means the final prospectus constituting a part of the Securities Act Registration
Statement, as filed pursuant to Rule 424(b) under the Securities Act.
“Record Date Trust Unitholders” has the meaning assigned to that term in Section 8.02
hereof.
“Registration Rights Agreement” means the Registration Rights Agreement, to be entered into on
November 8, 2011, entered into between Enduro and the Trust.
“Responsible Officer” means (a) with respect to the Delaware Trustee, any officer in the
Corporate Trust Administration office of the Delaware Trustee having direct responsibility for the
administration of this Agreement, and with respect to a particular corporate trust matter, any
officer of the Delaware Trustee to whom such matter is referred because of his or her knowledge of
and familiarity with the particular subject, and (b) with respect to the Trustee, any officer in
the Corporate Trust Administration office of the Trustee having direct responsibility for the
administration of this Agreement, and with respect to a particular corporate trust matter, any
officer of the Trustee to whom such a matter is referred because of his or her knowledge of and
familiarity with the subject.
4
“Respondent” has the meaning assigned to that term in Article XI.
“Rules” has the meaning assigned to that term in Article XI.
“Xxxxxxxx-Xxxxx Act” means the Xxxxxxxx-Xxxxx Act of 2002, as amended.
“Securities Act” means the Securities Act of 1933, as amended.
“Securities Act Registration Statement” means the Registration Statement on Form S-1
(Registration No. 333-174225-01) as it has been or as it may be amended or supplemented from time
to time, filed by Enduro and the Trust with the Commission under the Securities Act to register the
offering and sale of Trust Units.
“Services” has the meaning assigned to that term in Section 5.05 thereof.
“Special Provisions” has the meaning assigned to that term in Article XI.
“Transaction Documents” means this Agreement, the Underwriting Agreement, the Conveyance, the
Registration Rights Agreement and the Merger Agreement.
“Transferee” means, as to any Trust Unitholder or former Trust Unitholder, any Person
succeeding to the interest of such Trust Unitholder or former Trust Unitholder in one or more Trust
Units, whether as purchaser, donee, legatee or otherwise.
“Trust” means Enduro Royalty Trust, the Delaware statutory trust created pursuant to the
Organizational Trust Agreement and continued by and administered under the terms of this Agreement.
“Trust Act” means the Delaware Statutory Trust Act, Title 12, Chapter 38 of the Delaware Code,
Sections 3801 et seq., as amended from time to time during the term of this Agreement.
“Trust Estate” means the assets held by the Trust under this Agreement, including both income
and principal.
“Trust Units” means uncertificated, undivided pro rata fractional interests in the Beneficial
Interest, determined as hereinafter provided.
“Trust Unitholder” means the owner of one or more Trust Units as reflected on the books of the
Trustee pursuant to Section 4.01 or in the records of The Depository Trust Company.
“Trustee” means the Entity serving as a trustee (other than the Delaware Trustee) under this
Agreement, not in its individual capacity but solely in its fiduciary capacity. Furthermore, any
benefit, indemnity, release or protection granted to the Trustee herein shall extend to and shall
be fully applicable and effective with regard to any Entity serving as Trustee, including, without
limitation, the Bank. The term “principal office” of the Trustee shall mean the principal
5
office of the Trustee in Austin, Texas, or the principal office at which at any particular
time its institutional or corporate trust business may be administered.
“Trustee Release” means a recordable instrument (in a form reasonably acceptable to Enduro or
its Affiliates, as applicable) that evidences or effects the termination and release of the Net
Profits Interest with respect to the Underlying Properties being conveyed.
“Underlying Properties” means the Subject Interests subject to the Net Profits Interest, as
“Subject Interests,” is defined in the Conveyance.
“Underwriters” means each Person named as an underwriter in Schedule 1 to the Underwriting
Agreement.
“Underwriting Agreement” means the Underwriting Agreement dated as of November 2, 2011 among
the Underwriters, the Trust and Enduro, providing for the purchase of 13,200,000 Trust Units and
any additional Trust Units to be sold pursuant to the Underwriters’ overallotment option.
“Wilmington Trust” means Wilmington Trust Company, a corporation organized under the laws of
the State of Delaware, and its successors and assigns.
ARTICLE II
NAME AND PURPOSE OF THE TRUST; DECLARATION OF TRUST
NAME AND PURPOSE OF THE TRUST; DECLARATION OF TRUST
Section 2.01 Name; Certificate of Trust. The Trust continued by this Agreement shall remain a
Delaware statutory trust under the Trust Act. The Trust shall continue to be known as “Enduro
Royalty Trust”, and the Trustee may transact the Trust’s affairs in that name (or, if required by
applicable law, in the Trustee’s name in its capacity as the trustee on behalf of the Trust). The
continuation and operation of the Trust shall be in accordance with this Agreement, which shall
constitute the “governing instrument” of the Trust within the meaning of Section 3801(f) of the
Trust Act. In the event that a Responsible Officer of either the Delaware Trustee or the Trustee
becomes aware that any statement contained or matter described in the Trust’s Certificate of Trust
has changed, making it false in any material respect, it will notify the other trustee and the
Delaware Trustee shall promptly file or cause to be filed in the office of the Secretary of State
of Delaware an amendment of same at the written direction of the Trustee, duly executed in
accordance with Section 3811 of the Trust Act, in order to effect such change thereto, such filing
to be in accordance with Section 3810(b) of the Trust Act.
Section 2.02 Purpose. The purposes of the Trust are, and the Trust (and the Trustee on behalf
of the Trust) shall have the power and authority and is hereby authorized:
(a) to acquire, hold, protect and conserve the Trust Estate for the benefit of the Trust
Unitholders;
(b) to receive and hold the Net Profits Interest and the other assets of the Trust Estate;
(c) to issue 33,000,000 Trust Units on the Closing Date and to perform its obligations with
respect thereto;
6
(d) to invest cash reserves as provided in Section 3.04;
(e) to convert the Net Profits Interest into cash either by (1) retaining the Net Profits
Interest and collecting the proceeds of production payable with respect to the Net Profits Interest
until production has ceased or the Net Profits Interest has been sold or transferred or the Net
Profits Interest has otherwise terminated or (2) selling or otherwise disposing of all or any
portion of the Net Profits Interest in accordance with the terms of this Agreement;
(f) to pay, or provide for the payment of, any liabilities incurred in carrying out the
purposes of the Trust, and thereafter to distribute the remaining amounts of cash received by the
Trust to the Trust Unitholders on a pro rata basis determined by the number of Trust Units held by
each Trust Unitholder in accordance with Section 5.02;
(g) to distribute the Monthly Cash Distribution;
(h) to incur indebtedness and grant security interests in or otherwise encumber the Trust
Estate in order to pay the liabilities of the Trust as they become due, if necessary;
(i) to enter into, execute, deliver and perform its obligations and enforce its rights under
the Transaction Documents to which it is a party;
(j) to cause to be prepared and file (i) reports required to be filed under the Exchange Act,
(ii) any reports required by the rules of any securities exchange or quotation system on which the
Trust Units are listed or admitted to trading, and (iii) any reports, forms or returns required to
be filed pursuant to tax laws and other applicable laws and regulations, and to establish, evaluate
and maintain a system of internal control over financial reporting in compliance with the
requirements of Section 404 of the Xxxxxxxx-Xxxxx Act;
(k) to conduct or wind up its business as described in the Securities Act Registration
Statement; and
(l) to engage in such other activities as are necessary or convenient for the attainment of
any of the foregoing or are incident thereto, including activities required or permitted by the
terms of the Conveyance, and which may be engaged in or carried on by a statutory trust under the
Trust Act.
The Trust hereby authorizes the Transaction Documents and the activities contemplated therein.
Section 2.03 Transfer of Trust Property to the Trust. Upon the formation of the Trust, Enduro
paid good and valuable consideration to the Trust, in trust, for the uses and purposes provided in
the Organizational Trust Agreement and in
this Agreement. At (and subject to the occurrence of) the Closing the following transactions
will occur:
(a) Enduro shall, or shall cause its Affiliates to, grant, bargain, sell, convey and assign to
the Trust through the Merger, for the uses and purposes provided herein, the Net Profits Interest
in consideration for 33,000,000 Trust Units to be issued by the Trust to Enduro, which Trust Units
shall collectively represent the entire Beneficial Interest in accordance with
7
Section
4.01. The issuance of 33,000,000 Trust Units is hereby duly authorized and, upon issuance at
the Closing, such Trust Units shall be duly and validly issued and outstanding and, upon receipt by
the Trust at the Closing of the consideration described above, the Trust Units will be fully paid
and nonassessable without the requirement of any further consideration.
(b) The Merger shall become effective.
(c) The Trustee, on behalf of the Trust, shall enter into the Conveyance Supplement.
(d) Enduro and the Trustee, on behalf of the Trust, shall enter into the Registration Rights
Agreement.
Section 2.04 Creation of the Trust. The Trustee declares that it shall hold the Trust Estate
in trust for the benefit of the Trust Unitholders, upon the terms and conditions set forth in this
Agreement. As set forth above and amplified herein, the Trust is intended to be a passive entity
limited to the receipt of revenues attributable to the Net Profits Interest and the distribution of
such revenues, after payment of or provision for Trust expenses and liabilities, to the Trust
Unitholders. It is not the intention of the parties hereto to create, and nothing in this
Agreement shall be construed as creating, for any purpose, a partnership, joint venture, joint
stock company or similar business association, between or among Trust Unitholders, present or
future, or between or among Trust Unitholders, or any of them, the Delaware Trustee, the Trustee
and/or Enduro. Neither the Trustee nor the Delaware Trustee, in its individual capacity, or
otherwise, makes any representation as to the validity or sufficiency of this Trust Agreement.
Section 2.05 Principal Offices. Unless and until changed by the Trustee, the address of the
principal office of the Trustee is 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention:
Institutional Trust Services. Unless and until changed by the Delaware Trustee, the principal
place of business of the Delaware Trustee is 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Administration. The Trust may maintain offices at such
other place or places within or without the State of Delaware as the Trustee deems advisable.
ARTICLE III
ADMINISTRATION OF THE TRUST AND POWERS OF THE TRUSTEE
AND THE DELAWARE TRUSTEE
ADMINISTRATION OF THE TRUST AND POWERS OF THE TRUSTEE
AND THE DELAWARE TRUSTEE
Section 3.01 General Authority.
(a) The Trustee accepts the trust hereby continued and agrees to perform its duties hereunder
with respect to the same, but only upon the express terms of this Agreement. Subject to the
limitations set forth in this Agreement, the Trustee, acting alone, without the approval or consent
of, or notice to, the Delaware Trustee or any Trust Unitholder, is authorized to take such action
as in its judgment is necessary, desirable or advisable to best achieve the purposes and powers of
the Trust set forth in Section 2.02 hereof, including the execution and delivery of the
Transaction Documents. The Trustee shall not (i) dispose of any part of the Trust Estate except as
expressly provided herein or (ii) except as permitted by Section 10.02, agree to amend or
waive any provision of, give any consent or release with respect to, or terminate this Agreement or
the Conveyance without the express approval of Trust Unitholders of record holding at least
8
75% of
the then outstanding Trust Units at a meeting held in accordance with the requirements of
Article VIII.
(b) The Delaware Trustee is appointed to serve as the trustee of the Trust in the State of
Delaware for the sole purpose of satisfying the requirements of Section 3807(a) of the Trust Act
that the Trust have at least one trustee with a principal place of business in the State of
Delaware, or if a natural person, who is a resident of the State of Delaware. It is understood and
agreed by the parties hereto that the Delaware Trustee shall have none of the duties, obligations
or liabilities of any other Person, including, without limitation, the Trustee. The Delaware
Trustee shall satisfy the requirements of Section 3807(a) of the Trust Act. The Delaware Trustee
accepts the Trust hereby continued and agrees to perform its duties hereunder with respect to the
same, but only upon the express terms of this Agreement. The Delaware Trustee is authorized to
take only such actions, and shall be required to perform only such duties and obligations, with
respect to the Trust as are specifically set forth in this Agreement, and no implied duties,
obligations or powers shall be read into this Agreement in respect to the Delaware Trustee. The
Delaware Trustee shall not otherwise manage or take part in the business or affairs of the Trust in
any manner.
(c) The duties of the Delaware Trustee shall be limited to (i) accepting legal process served
on the Trust in the State of Delaware, (ii) the execution of any certificates required to be filed
with the Delaware Secretary of State which the Delaware Trustee is required to execute under
Section 3811 of the Trust Act, (iii) the filing of any such certificates with the Delaware
Secretary of State upon the written request of the Trustee and (iv) the acts of the Delaware
Trustee provided in Section 7.01. Except for the purpose of the foregoing sentence, the Delaware
Trustee shall not be deemed a trustee, and shall have no management responsibilities or owe any
fiduciary duties to the Trust or the Trust Unitholders. To the extent that, at law or in equity,
the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to
the Trust or the Trust Unitholders, it is hereby understood and agreed by the other parties hereto
that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee
expressly set forth in this Agreement. Notwithstanding any other provision of this Agreement, the
Delaware Trustee shall not participate in any decisions or possess any authority with respect to
the administration of the Trust, the investment of the Trust’s property or the payment of dividends
or other distributions of income or principal to the Trust Unitholders.
Section 3.02 Limited Power of Disposition.
(a) The Trustee shall not release, sell or otherwise dispose of all or any part of the Trust
Estate, including, without limitation, all or any portion of the Net Profits Interest, or any
interest therein, except that the Trustee is directed to release, sell and convey all or any
portion of the Net Profits Interest as provided in Section 3.02(b), Section
3.02(c), Section 3.07 or Section 9.03, as applicable. No Trust Unitholder
approval shall be required for any release, sale or conveyance of the Net Profits Interest under
Section 3.02(c), Section 3.07 or Section 9.03, as applicable.
(b) In the event that Enduro notifies the Trustee that it desires the Trustee to sell or
dispose of (except for releases, which are addressed under Section 3.02(c)) all or any part
of the Trust Estate, including, without limitation, all or any portion of the Net Profits Interest,
or any
9
interest therein, the Trustee shall sell the applicable portion of the Trust Estate for cash
if approved by the Trust Unitholders of record holding at least 75% of the then outstanding Trust
Units at a meeting held in accordance with the requirements of Article VIII. This
Section 3.02(b) shall not be construed to require approval of the Trust Unitholders for any
sale or other disposition of all or any part of the Trust Estate pursuant to Section
3.02(c), Section 3.07 or Section 9.03.
(c) Enduro and its Affiliates may at any time and from time to time sell a divided or
undivided portion of their interests in the Underlying Properties, free from and unburdened by the
Net Profits Interest (without the consent of the Trustee), subject to the following terms and
conditions:
(i) no sale of a portion of Enduro’s or its Affiliates’ interests in the Underlying
Properties shall be permitted under this paragraph (c) if (A) the sale is to a Person who is
an Affiliate of Enduro, (B) the sale relates to an interest in the Underlying Properties
that accounted for in excess of 0.25% of the total production from the Underlying Properties
during the most recently completed 12 calendar months or (C) the aggregate Fair Value of all
portions of the Net Profits Interest released by the Trustee pursuant to this paragraph (c)
would exceed $500,000 during any consecutive 12-month period;
(ii) in connection with any sale pursuant to this paragraph (c), the Gross Fair Value
of the portion of the Net Profits Interest released by the Trustee shall be an “Offset
Amount” (as defined in the Conveyance) against the Gross Deductions when determining the
amount of cash attributable to the Net Profits Interest; and
(iii) the Trustee shall have received a certificate from Enduro certifying to the
Trustee and the Trust that the amount to be offset pursuant to clause (ii) above represents
the Gross Fair Value of the portion of the Net Profits Interest to be released by the
Trustee.
Upon receipt of (a) written notice of such a sale given by Enduro or its Affiliates, (b) an
accurate description of the Net Profits Interest to be conveyed, and (c) a certification of Enduro
or other sufficient information to evidence conclusively that the conditions to transfer described
in the Conveyance and in this paragraph (c) have been satisfied, the Trustee shall (subject to
clauses (i) through (iii) above) terminate and release the Net Profits Interest with respect to the
applicable
Underlying Properties through execution and delivery of a Trustee Release at the closing of such
sale, and such other instruments, agreements and documents as Enduro or its Affiliates may
reasonably request, to evidence or effect the transfer of such portion of Enduro’s or its
Affiliates’ interests in the Underlying Properties, free from and unburdened by the Net Profits
Interest.
(d) Following the sale of all or any portion of the Underlying Properties, Enduro will be
relieved of its obligations with respect to the Net Profits Interest that burdens such portion of
the Underlying Properties. Promptly after completion of any such sale, Enduro shall so notify the
Trustee in writing. Any purchaser of such Underlying Properties shall be the assignee of Enduro to
the extent of the interest sold and shall be bound by the obligations of Enduro under this
Agreement and the Conveyance to such extent.
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(e) Anything herein to the contrary notwithstanding, the Trustee shall not agree to any
distribution of the Net Profits Interest or any other asset of the Trust that would cause the
interest of a Trust Unitholder to be treated (except for tax purposes) as an interest other than an
intangible personal property interest. Unless required to sell pursuant to this Section
3.02, or pursuant to Section 3.07 or Section 9.03, or to distribute the Monthly
Cash Distribution pursuant to Section 5.02, the Trustee is authorized to retain any part of
the Trust Estate in the form in which such property was transferred to the Trustee, without regard
to any requirement to diversify investments or other requirements.
(f) Any conveyance, transfer or other disposition not expressly addressed in this Agreement
shall be governed by the provisions of the Conveyance. In the event that there is a conflict
between the provisions of the Conveyance and this Agreement, the provisions of the Conveyance shall
control to the extent of such conflict.
Section 3.03 No Power to Engage in Business or Make Investments or Issue Additional
Securities. Neither the Trustee nor the Delaware Trustee shall cause or permit the Trust to (a)
acquire any asset other than the Net Profits Interest and profits therefrom, other than in
connection with the rights of the Trust to enforce the terms and provisions of the Transaction
Documents to which it or the Trustee as trustee of the Trust is a party, and to collect other
amounts paid to the Trust or the Trustee as trustee of the Trust as set forth herein, (b) engage in
any business or investment activity of any kind whatsoever, except for the activities permitted
herein, or (c) issue Trust Units or other securities after the Closing Date. Neither the Trustee
nor the Delaware Trustee shall have any responsibility or authority relating to the development or
operations of the Underlying Properties or the marketing of any production therefrom or any other
business decision affecting the assets of the Trust.
Section 3.04 Interest on Cash Reserves. Cash being held by the Trustee as a reserve for, or
in anticipation of, the payment of a Monthly Cash Distribution or for the payment of any
liabilities, other than current routine administrative costs, shall be placed by the Trustee with
one or more banks or financial institutions (which, to the extent to which authorized pursuant to
the Trust Act and other applicable laws, may be, or may include, any bank serving as the Trustee or
the Delaware
Trustee) and be invested in (a) accounts payable on demand without penalty (which may be
non-interest bearing), (b) interest bearing obligations issued by (or unconditionally guaranteed
by) the United States of America or any agency or instrumentality thereof (provided such agency or
instrumentality obligations are guaranteed by the full faith and credit of the United States of
America), (c) money market funds that invest only in United States government securities; (d)
repurchase agreements secured by obligations qualifying under (b) above or (e) certificates of
deposit of any bank or banks having combined capital, surplus and undivided profits in excess of
$100,000,000 which, in the case of (b), (d) and (e) above, mature prior to the date on which such
Monthly Cash Distribution is to be distributed or any such liability is to be paid. Any government
obligation, repurchase agreement or certificate of deposit held by the Trustee shall be held until
maturity. The interest rate on reserves placed with any bank or financial institution serving as
the Trustee or the Delaware Trustee shall be the interest rate that such bank pays in the normal
course of business on amounts placed with it, taking into account the amount involved, the period
held and other relevant factors. Subject to Section 6.01, the Trustee shall not be liable
for its selection of permitted investments or for any investment losses resulting from such
investments. Notwithstanding anything herein to the contrary, the
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Delaware Trustee shall not be
obligated to accept any such cash or other assets for investment or otherwise. To the extent that
the Delaware Trustee decides in its sole and absolute discretion to accept cash for investment
pursuant to this Section 3.04, the Delaware Trustee shall invest such cash pursuant to the
written instructions of the Trustee, and the Delaware Trustee shall not be liable to the Trust or
any other Person for any losses resulting from such investments absent its own fraud, gross
negligence or willful misconduct.
Section 3.05 Power to Settle Claims.
(a) The Trustee is authorized to prosecute or defend, and to settle by arbitration or
otherwise, any claim of or against the Trustee, the Trust or the Trust Estate, to waive or release
rights of any kind, to settle any dispute with Enduro or any other Person, and to pay or satisfy
any debt, tax or claim upon any evidence by it deemed sufficient, without the joinder or consent of
any Trust Unitholder, including enforcing the rights of the Trust under the Transaction Documents
to which the Trust (or the Trustee as trustee of the Trust) is a party; provided, however, that the
Trustee shall not settle any dispute involving the Net Profits Interest part of the Conveyance if
such actions would change the character of the Net Profits Interest in such a way that the Net
Profits Interest becomes a working interest or that the trust would fail to continue to qualify as
a grantor trust for U.S. federal income tax purposes. To the fullest extent permitted by law, the
Trust Unitholders shall have no power to prosecute any claim of the Trust or the Trust Estate
against any Person other than to prosecute a claim to compel performance by the Trustee on behalf
of the Trust or the Trust Estate.
(b) The Trustee is authorized and empowered to require any Trust Unitholder to dispose of his
Trust Units if an administrative or judicial proceeding seeks to cancel or forfeit any of the
property in which the Trust holds an interest because of the nationality or any other status of
such Trust Unitholder. If a Trust Unitholder fails to dispose of his Trust Units as required by
the Trustee pursuant to this Section 3.05(b), the Trustee is authorized to purchase such
Trust Units on behalf of the Trust and to borrow funds to make that purchase.
Section 3.06 Power to Contract for Services. In the administration of the Trust, the Trustee
is empowered to employ oil and natural gas consultants (which may include the Independent Reserve
Engineers), accountants (with the consent of Enduro, which consent shall not be unreasonably
withheld or delayed), attorneys (who may, but need not be, counsel to Enduro or any of its
Affiliates) and other professional and expert Persons, to employ or contract for clerical and other
administrative assistance (including assistance from Enduro or any of its Affiliates), to delegate
to Agents any matter, whether ministerial or discretionary, and to act through such Agents and to
make payments of all fees for services or expenses in any manner thus incurred out of the Trust
Estate.
Section 3.07 Payment of Liabilities of Trust.
(a) Except as otherwise provided herein, the Trustee may and shall use any money received by
it for the payment or reimbursement of all liabilities of the Trust, including, but without
limiting the generality of the foregoing, all expenses, taxes, liabilities incurred of all kinds,
compensation to it for its services hereunder, as provided for in Article VII, and
compensation to such parties as may be employed as provided for in Section 3.06. With
respect
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to any liability that is contingent or uncertain in amount or any anticipated liability
that is not currently due and payable, the Trustee may, but is not obligated to, establish a cash
reserve for the payment of such liability. Except to the extent permitted under applicable law,
the Trustee shall not pay any liability of the Trust with funds set aside pursuant to Section
5.02 for the payment of a Monthly Cash Distribution.
(b) If at any time the cash on hand and to be received by the Trustee and available to pay
liabilities is not, or will not be, in the judgment of the Trustee, sufficient to pay liabilities
of the Trust as they become due, the Trustee is authorized to cause the Trust to borrow the funds
required to pay such liabilities. In such event, no further distributions will be made to Trust
Unitholders (except in respect of any previously determined Monthly Cash Distribution) until the
indebtedness created by such borrowings, including interest thereon, has been paid in full. Such
funds may be borrowed from any Person, including, without limitation, the Bank (to the extent
permitted by law), including its Affiliates, while serving as Trustee or any other Entity serving
as a fiduciary hereunder; provided, however, that neither the Bank nor any other Entity shall be
required to make any such loan. Under no circumstances shall the Trustee or the Delaware Trustee
be personally liable for any indebtedness or other liability of the Trust. To secure payment of
such indebtedness (including any indebtedness to the Bank or any other Entity serving as a
fiduciary hereunder), the Trustee is authorized to (i) mortgage, pledge, grant security interests
in or otherwise encumber the Trust Estate, or any portion thereof, including the Net Profits
Interest, (ii) include any and all terms, powers, remedies, covenants and provisions deemed
necessary or advisable in the Trustee’s discretion, including, without limitation, confession of
judgment, waiver of appraisal and the power of sale with or without judicial proceedings and (iii)
provide for the exercise of those and other remedies available to a secured lender in the event of
a default on such loan. If such funds are loaned to the Trust by the Trustee or any other such
Entity while the Trustee or such other Entity is serving as a fiduciary hereunder, the terms of
such indebtedness and security interest shall be similar to the terms
which the Trustee or such other Entity would grant to a similarly situated commercial customer
with whom it did not have, directly or indirectly, a fiduciary relationship, and the Trustee or
such other Entity shall be entitled to enforce its rights with respect to any such indebtedness and
security interest as if it were not, directly or indirectly, and had never been, directly or
indirectly, the Trustee or a fiduciary hereunder.
(c) Enduro will, upon written request of the Trustee, provide the Trust with a $1 million
letter of credit. If the Trust requires more than the $1 million under the letter of credit to pay
administrative expenses, Enduro will, upon written request of the Trustee, loan funds to the Trust
in such amount as is necessary to pay such Trust expenses. Any funds drawn under the letter of
credit or loaned by Enduro pursuant to this Section 3.07(c) shall be limited to the payment
of current accounts or other obligations to trade creditors in connection with obtaining goods or
services or for the payment of other accrued current liabilities arising in the ordinary course of
the Trust’s business, and shall not be used to satisfy any indebtedness of the Trust. Any loan
made by Enduro to the Trust pursuant to this Section 3.07(c) shall: (i) be evidenced by a
written promissory note executed by the Trustee on behalf of the Trust, (ii) be on an unsecured
basis, (iii) have terms (including interest rate) that are no less favorable to Enduro as those
that would be obtained in an arm’s-length transaction between Enduro and an unaffiliated third
party and (iv) be without recourse to the Trustee and the Bank, it being agreed that any such note
shall be payable solely out of the assets of the Trust.
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(d) In the event that the Trust (or the Trustee on behalf of the Trust) draws on the letter of
credit or Enduro loans funds to the Trust (or the Trustee on behalf of the Trust) pursuant to
Section 3.07(c), no further distributions will be made to Trust Unitholders (except in
respect of any previously determined Monthly Cash Distribution) until the indebtedness created by
such amounts drawn or borrowed, including interest thereon, has been paid in full.
(e) No provision of this Trust Agreement shall require either the Delaware Trustee, the
Trustee or any other Entity serving as a fiduciary hereunder to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of its duties hereunder or
in the exercise of any of its rights or powers. In no event shall the Trustee be responsible for
the payment of any Monthly Cash Distribution or other amount except to the extent that it has
sufficient cash on hand on behalf of the Trust to make such payment.
Section 3.08 Income and Principal. The Trustee shall not be required to keep separate
accounts or records for income and principal. However, if the Trustee does keep such separate
accounts or records, then the Trustee is authorized to treat all or any part of the receipts from
the Net Profits Interest as income or principal, without having to maintain any reserve therefor,
and in general to determine all questions as between income and principal and to credit or charge
to income or principal or to apportion between them any receipt or gain and any charge,
disbursement or loss as is deemed advisable under the circumstances of each case.
Section 3.09 Term of Contracts. To the fullest extent permitted by law, in exercising the rights and powers granted
hereunder, the Trustee is authorized to make the term of any transaction or contract or other
instrument extend beyond the term of the Trust.
Section 3.10 Transactions with Entity Serving as the Trustee or the Delaware Trustee. To the
extent such conduct is not prohibited by applicable law and except as otherwise provided herein,
each of the Trustee and the Delaware Trustee is authorized in exercising its powers under this
Agreement to make contracts and have dealings with itself or its Affiliates, directly and
indirectly, in any other fiduciary or individual capacity.
Section 3.11 No Security Required. No Entity serving as a trustee hereunder shall be required
to furnish any bond or security of any kind.
Section 3.12 Filing of Securities Act Registration Statement, Exchange Act Registration
Statement and Other Reports, Listing of Trust Units, etc.; Certain Fees and Expenses.
(a) After the registration of the Trust Units pursuant to the Exchange Act and/or the listing
of the Trust Units for trading on the New York Stock Exchange, Inc. or another national securities
exchange, the Trustee, on behalf of the Trust and acting upon the advice of counsel, shall cause
the Trust to comply with all applicable rules, orders and regulations of the Commission and the
national securities exchange on which the Trust Units are listed or admitted for quotation and to
take all such other reasonable actions necessary for the Trust Units to remain registered under the
Exchange Act and listed or quoted on such national securities exchange or quotation system,
respectively, until the Trust is terminated. In addition, the Trustee is authorized to make, and
the Trustee shall take, all reasonable actions to prepare and, to the extent required by this
Agreement or by law, mail to Trust Unitholders any reports, press releases or
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statements, financial
or otherwise, that the Trustee determines are required to be provided to Trust Unitholders by
applicable law or governmental regulation or the requirements of any securities exchange or
quotation system on which the Trust Units are listed or admitted to trading. In addition, the
Trustee, on behalf of the Trust and acting upon the advice of counsel, shall cause the Trust to
comply with all of the provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations of the
Commission related thereto, including but not limited to, establishing, evaluating and maintaining
a system of internal control over financial reporting in compliance with the requirements of
Section 404 thereof and making all required certifications pursuant to the Xxxxxxxx-Xxxxx Act and
the rules and regulations adopted by the Commission related thereto.
(b) The Trustee shall execute, on behalf of the Trust or in the name of the Trustee in its
capacity as trustee of the Trust, any documents incidental or related to the initial public
offering of the Trust Units and the listing of the Trust Units on the New York Stock Exchange.
(c) The Trust is hereby authorized and empowered to take all steps, make all filings and
applications and pay all fees necessary, customary or appropriate to the accomplishment of the
objectives set forth in paragraph (a) or (b) of this Section 3.12.
(d) Except as otherwise provided in Article VI, the fees, charges, expenses,
disbursements and other costs incurred by the Trustee or the Delaware Trustee in connection with
the discharge of its duties pursuant to this Agreement, including, without limitation, trustee
fees, engineering, audit, accounting and legal fees, printing and mailing costs, amounts reimbursed
or paid to Enduro pursuant to Section 3.07 or Section 7.02 hereof, and the fees and
expenses of legal counsel for the Trustee, the Delaware Trustee, and the Trust (including legal
fees and expenses incurred by the Trustee or the Delaware Trustee in connection with the formation
of the Trust and issuance of Trust Units), shall be paid out of the Trust Estate as an
administrative expense of the Trust; provided, however, that the Trustee’s and the Delaware
Trustee’s acceptance fees paid by Enduro upon execution hereof shall be reimbursed to Enduro by the
Trust. All other organizational expenses of the Trust will be paid by Enduro, and Enduro shall not
be entitled to reimbursement thereof.
(e) The Trustee is hereby authorized and empowered to take all steps, make all filings and
applications and pay all fees necessary, customary or appropriate in order to perform the
obligations of the Trust under the Registration Rights Agreement.
Section 3.13 Reserve Report. The Trustee shall cause a reserve report to be prepared by or
for the Trust by the Independent Reserve Engineers as of December 31 of each year in accordance
with criteria established by the Commission showing estimated proved oil, natural gas and natural
gas liquids reserves attributable to the Net Profits Interest as of December 31 of such year and
other reserve information required to comply with Section 5.03. Enduro, to the extent it
is the operator of the Underlying Properties, shall, and to the extent any of its Affiliates is the
operator of the Underlying Properties, shall cause such Affiliate or Affiliates to, use
commercially reasonable efforts to cooperate with the Trust and the Independent Reserve Engineers
in connection with the preparation of any such reserve report, and to the extent it is not the
operator of the Underlying Properties and has not sold its interest in the same pursuant to
Section 3.02(b), shall use commercially reasonable efforts to obtain and provide to the
Trustee and the Independent Reserve Engineers such information as may be reasonably necessary in
15
connection with the preparation of the reserve reports. The Trustee shall cause each reserve
report prepared pursuant to this Section 3.13 to be completed and delivered to it within 75
days of the last day of the prior calendar year or such shorter period as may be required to enable
the Trustee to comply with the provisions of Section 5.03.
Section 3.14 No Liability for Recordation. Enduro shall be solely responsible, and the
Trustee and the Delaware Trustee shall have no responsibility, for the filing of the Conveyance in
the real property records of any jurisdiction in which the Underlying Properties are located.
Neither the Trustee, the Delaware Trustee, the Bank nor any of their respective Agents shall be
liable to the Trust Estate or any Trust Unitholder for any loss, claim or damage resulting from, or
arising out of, the failure to file, or failure to properly file, the Conveyance in any real
property records of any jurisdiction.
ARTICLE IV
TRUST UNITS AND UNCERTIFICATED BENEFICIAL INTEREST
TRUST UNITS AND UNCERTIFICATED BENEFICIAL INTEREST
Section 4.01 Creation and Distribution. Ownership of the entire Beneficial Interest shall be
divided into 33,000,000 Trust Units. The Trust Units shall be uncertificated and ownership thereof
shall be evidenced by entry of a notation in an ownership ledger maintained for such purpose by the
Trustee or a transfer agent designated by the Trustee. The Trust Unitholders from time to time
shall be the sole beneficial owners of the Trust Estate.
Section 4.02 Rights of Trust Unitholders; Limitation on Personal Liability of Trust
Unitholders. Each Trust Unit shall represent pro rata undivided ownership of the Beneficial
Interest and shall entitle its holder to participate pro rata in the rights and benefits of Trust
Unitholders under this Agreement. A Trust Unitholder (whether by assignment or otherwise) shall
take and hold each Trust Unit subject to all the terms and provisions of this Agreement and the
Conveyance which shall be binding upon and inure to the benefit of the successors, assigns,
legatees, heirs and personal representatives of such Trust Unitholder. By an assignment or a
transfer of one or more Trust Units, the assignor thereby shall, with respect to such assigned or
transferred Trust Unit or Trust Units, except as required by federal or state tax laws and as
provided in Section 4.03 hereof in the case of a transfer after a Monthly Record Date and
prior to the corresponding Monthly Payment Date, part with (a) all of its Beneficial Interest
attributable to such Trust Unit or Trust Units and (b) all interests, rights and benefits of a
Trust Unitholder under the Trust and this Agreement that are attributable to such Trust Unit or
Trust Units as against all other Trust Unitholders, the Trust and the Trustee. The Trust Units and
the rights, benefits and interests evidenced thereby (including, without limiting the foregoing,
the entire Beneficial Interest) are and, for all purposes, shall be construed (except for tax
purposes), to be in all respects intangible personal property, and the Trust Units shall be
bequeathed, assigned, disposed of and distributed as intangible personal property. No Trust
Unitholder as such shall have any title, legal or equitable, in or to any real property interest or
tangible personal property interest that may be considered a part of the Trust Estate, including,
without limiting the foregoing, the Net Profits Interest or any part thereof, or in or to any asset
of the Trust Estate to the extent that an interest in such asset would cause the interest of a
Trust Unitholder to be treated as other than an intangible personal property interest, but the sole
interest of each Trust Unitholder shall be his ownership in the Beneficial Interest. No Trust
Unitholder shall have the right to call for or demand or secure any partition or distribution of
the Net Profits Interest or any
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other asset of the Trust Estate or any accounting during the
continuance of the Trust or during the period of liquidation and winding up under Section
9.03. Pursuant to Section 3803(a) of the Trust Act, the Trust Unitholders shall be entitled,
to the fullest extent permitted by law, to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General Corporation Law of the
State of Delaware.
Section 4.03 Effect of Transfer. As to matters affecting the title, ownership, warranty or transfer of Trust Units, Article
8 of the Uniform Commercial Code and the Uniform Act for Simplification of Fiduciary Security
Transfers, each as adopted and then in force in the State of Delaware, and other statutes and rules
pertaining to the transfer of securities, each as is adopted and then in force in the State of
Delaware, shall govern and apply. Neither the death nor divorce of any Trust Unitholder or any
other event shall entitle the Transferee of any Trust Unitholder to an accounting or valuation for
any purpose.
Section 4.04 Determination of Ownership. In the event of any disagreement between Persons
claiming to be Transferees of any Trust Unit, or in the event of any question on the part of the
Trustee when presented with a request for transfer of a Trust Unit, which the Trustee believes is
not fully resolved by opinions of counsel or other documents obtained in connection therewith,
then, in addition to other rights which it may have under applicable law, the Trustee shall be
entitled at its option to refuse to recognize any such claim so long as such disagreement or
question shall continue. In so refusing, the Trustee, and any Entity serving in such capacity, may
elect to refrain or refuse to act with respect to the interest represented by the Trust Unit
involved, or any part thereof, or of any sum or sums of money accrued or accruing thereunder, and,
in so doing, the Trustee shall not be or become liable to any Person for the failure or refusal of
the Trustee to comply with such conflicting claims or requests for transfer, and shall be entitled
to continue so to refrain and refuse so to act, until:
(a) the rights of the adverse claimants or the questions of the Trustee have been adjudicated
by a final nonappealable judgment of a court assuming and having jurisdiction of the parties and
the interest and money involved; or
(b) all differences have been adjusted by valid agreement between said parties and the Trustee
shall have been notified thereof in writing signed by all of the interested parties.
Section 4.05 Transfer Agent. The Trustee may serve as transfer agent or may designate a
transfer agent at any time. The initial transfer agent shall be American Stock Transfer & Trust
Company, LLC. The Trustee may dismiss the transfer agent and designate a successor transfer agent
at any time with or without reason. Any entity serving as transfer agent shall be entitled to
payment of its fees in accordance with the terms of its engagement.
ARTICLE V
ACCOUNTING AND DISTRIBUTIONS; REPORTS
ACCOUNTING AND DISTRIBUTIONS; REPORTS
Section 5.01 Fiscal Year and Accounting Method. The Trust shall adopt the calendar year as
its fiscal year and shall maintain its books on an appropriate basis to comply with Sections
5.03 and 5.04, except to the extent such books must be maintained on any other basis
pursuant to applicable law.
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Section 5.02 Monthly Cash Distributions. On (or, to the extent reasonably practicable, prior to) the Monthly Record Date, the
Trustee shall, in the manner required by the rules of any securities exchange or quotation system
on which the Trust Units are listed or admitted to trading, communicate to the Trust Unitholders
the amount of the Monthly Cash Distribution for the relevant Monthly Period. On each Monthly
Payment Date, the Trustee shall distribute pro rata to Trust Unitholders of record on the Monthly
Record Date the Monthly Cash Distribution for the immediately preceding Monthly Period.
Section 5.03 Reports to Trust Unitholders and Others.
(a) Within 75 days following the end of each calendar quarter, or such shorter period of time
as may be required by the rules and regulations of the Commission adopted with respect to the
Exchange Act or by the rules of any securities exchange or quotation system on which the Trust
Units are listed or admitted to trading, the Trustee shall mail to each Person who was a Trust
Unitholder of record on a Monthly Record Date during such quarter a report, which may be a copy of
the Trust’s Quarterly Report on Form 10-Q under the Exchange Act, which shall show in reasonable
detail the assets and liabilities and receipts and disbursements of the Trust for such quarter;
provided, however, the obligation to mail a report to each Trust Unitholder of record shall be
deemed to be satisfied if the Trustee files a copy of the Trust’s quarterly report on Form 10-Q on
the Electronic Data Gathering, Analysis, and Retrieval system (XXXXX) maintained by the Commission
or any successor system or otherwise makes such report publicly available on an Internet website
that is generally accessible to the public.
(b) Within 120 days following the end of each fiscal year or such shorter period of time as
may be required by the rules and regulations of the Commission adopted with respect to the Exchange
Act or by the rules of any securities exchange or quotation system on which the Trust Units are
listed or admitted to trading, the Trustee shall mail to each Person who was a Trust Unitholder of
record on a date to be selected by the Trustee an annual report, containing financial statements
audited by an independent registered public accounting firm selected by the Trustee, plus such
annual reserve information regarding the Net Profits Interest as may be required under Section
3.13 by any regulatory authority having jurisdiction.
(c) Notwithstanding any time limit imposed by Section 5.03(a) or (b), if, due
to a delay in receipt by the Trustee of information necessary for preparation of a report or
reports required by such paragraphs, the Trustee shall be unable to prepare and mail such report or
reports within such time limit, the Trustee shall prepare and mail such report or reports as soon
thereafter as reasonably practicable.
Section 5.04 Federal Income Tax Provisions. For federal or state income tax purposes, the
Trustee shall file for the Trust such returns and statements as in its judgment are required to
comply with applicable provisions of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder and any applicable state laws and regulations, in either case to permit each
Trust Unitholder to report such Trust Unitholder’s share of the income and deductions of the Trust.
The Trustee will treat all income and deductions of the Trust for each month as having been
realized on the Monthly Record Date
for such month unless otherwise advised by its counsel. The Trustee will treat the Trust and
report with respect to the Trust as a grantor trust until and unless it receives an opinion of tax
counsel that such reporting is no longer proper.
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Within 75 days following the end of each fiscal
year, the Trustee shall mail to each Person who was a Trust Unitholder of record on a Monthly
Record Date during such fiscal year, a report which shall show in reasonable detail such
information as is necessary to permit such Trust Unitholder to make calculations necessary for tax
purposes.
Section 5.05 Information and Services. Enduro shall provide the Trust and Trustee on a timely
basis with (a) all information and services as are reasonably necessary to fulfill the purposes of
the Trust as set forth in this Agreement, including such accounting, bookkeeping and informational
services as may be necessary for the preparation of reports the Trust is or may be required to
prepare and/or file in accordance with applicable tax and securities laws, exchange listing rules
and other requirements, including reserve reports and tax returns, that the Trustee may reasonably
request during the term of this Agreement; (b) information and services of a similar character and
scope to those described in the foregoing clause (a) that the Trust or Trustee may reasonably
request for any other purpose reasonably related to the Trust; and (c) information and services
that may be required to satisfy the Trust’s obligations under the Registration Rights Agreement
(all of the foregoing information and services, the “Services”). As a component of the Services,
Enduro shall, upon request of the Trust or Trustee at any time, certify to the Trust or Trustee any
information provided or necessary to make or confirm calculations, computations or determinations
that may be necessary from time to time in order to fulfill the purposes of the Trust.
ARTICLE VI
LIABILITY OF DELAWARE TRUSTEE AND TRUSTEE AND
METHOD OF SUCCESSION
LIABILITY OF DELAWARE TRUSTEE AND TRUSTEE AND
METHOD OF SUCCESSION
Section 6.01 Liability of Delaware Trustee, Trustee and Agents.
(a) Notwithstanding any other provision of this Agreement, each of the Delaware Trustee and
the Trustee, in carrying out its powers and performing its duties, may act directly or in its
discretion, at the expense of the Trust, through Agents (including attorneys) pursuant to
agreements entered into with any of them, and each Entity serving as Delaware Trustee or Trustee
shall be personally or individually liable only for (i) its own fraud, gross negligence or willful
misconduct and (ii) taxes, fees or other charges on, based on or measured by any fees, commissions
or compensation received by it in connection with any of the transactions contemplated by this
Agreement, and shall not otherwise be individually or personally liable under any circumstances
whatsoever, including but not limited to any act or omission of any Agent unless such Entity has
acted with fraud, gross negligence or willful misconduct in the selection, retention or supervision
of such Agent. Notwithstanding any other provision of this Agreement, each Agent of the Delaware
Trustee and the Trustee (including Enduro and any of the Affiliates when acting as Agents), in
carrying out its powers and performing its duties, may
act directly or in its discretion, at the expense of the Trust, through agents or attorneys
engaged by such Agent, and shall not otherwise be individually or personally liable for any act or
omission unless such Agent has acted with fraud, gross negligence or willful misconduct. Neither
the Trustee nor the Delaware Trustee shall have any liability to any Persons other than the Trust
Unitholders in accordance with Section 3803 of the Trust Act and, for the avoidance of any doubt,
shall not have any liability hereunder to the Trust Unitholders absent its own fraud or gross
negligence or willful misconduct. No Entity serving as Trustee or Delaware Trustee shall
19
be
individually liable by reason of any act or omission of any other Entity serving as Trustee or
Delaware Trustee.
(b) Each of the Delaware Trustee and the Trustee, and each Entity serving in any such
fiduciary capacity or as an Agent of the Delaware Trustee or the Trustee (including Enduro and any
of its Affiliates when acting as Agents), shall be protected in relying or reasonably acting upon
any notice, certificate, opinion or advice of counsel or tax advisors, report of certified
accountant, petroleum engineer, geologist, auditor or other expert, or other parties the Trustee
believes to be an expert on matters for which advice is sought, or any other document or
instrument. Each of the Delaware Trustee and the Trustee, and each Entity serving in any such
fiduciary capacity or as an Agent of the Delaware Trustee or the Trustee (including Enduro and any
of its Affiliates when acting as Agents), is specifically authorized to rely upon the application
of Article 8 of the Uniform Commercial Code, the application of the Uniform Act for Simplification
of Fiduciary Security Transfers and the application of other statutes and rules with respect to the
transfer of securities, each as adopted and then in force in the State of Delaware, as to all
matters affecting title, ownership, warranty or transfer of the Trust Units, without any personal
liability for such reliance, and the indemnity granted under Section 6.02 shall
specifically extend to any matters arising as a result thereof. Further, and without limiting the
foregoing, each of the Delaware Trustee, the Trustee and each Entity serving in either such
capacity is specifically authorized and directed to rely upon the validity of the Conveyance and
the title held by the Trust in the Net Profits Interest pursuant thereto, and is further
specifically authorized and directed to rely upon opinions of counsel in the States of Texas,
Louisiana and New Mexico where the Underlying Properties are located, and on any notice,
certificate or other statement of Enduro or information furnished by Enduro without any liability
in any capacity for such reliance.
Section 6.02 Indemnification of Trustee or Delaware Trustee.
(a) Each Entity serving as the Trustee or the Delaware Trustee, individually and as Trustee,
as well as each of their respective Agents (including Enduro and any of its Affiliates when acting
as Agents) and equityholders, shall be indemnified and held harmless by, and receive reimbursement
from, the Trust Estate against and from any and all liabilities, obligations, actions, suits,
costs, expenses, claims, damages, losses, penalties, taxes, fees and other charges (collectively,
“Expenses,” excluding, however, any taxes and fees payable by the Trustee and the Delaware Trustee
on, based on or measured by any fees, commissions or compensation received by the Trustee and the
Delaware Trustee for their services hereunder) incurred by it individually in the administration of
the Trust and the Trust Estate or any part or parts thereof, or in the doing of any act done or
performed or omission occurring on account of its being Trustee or Delaware
Trustee, as applicable, except such Expenses as to which it is liable under Section
6.01 (it being understood that each Entity serving as the Trustee or the Delaware Trustee (and
their respective Agents (including Enduro and any of its Affiliates when acting as Agents) and
equityholders) shall be indemnified by, and receive reimbursement from, the Trust Estate against
such Entity’s own negligence which does not constitute gross negligence). Each Entity serving as
the Trustee or the Delaware Trustee shall have a lien upon the Trust Estate for payment of such
indemnification and reimbursement (including, without limitation, repayment of any funds borrowed
from any Entity serving as a fiduciary hereunder), as well as for compensation to be paid to such
Entity, in each case entitling such Entity to priority as to payment thereof over
20
payment to any
other Person under this Agreement. Neither the Trustee, the Delaware Trustee nor any Entity
serving in either of such capacities, nor any Agent thereof shall be entitled to any reimbursement
or indemnification from any Trust Unitholder for any Expense incurred by the Delaware Trustee or
the Trustee or any such Entity or Agent thereof, their right of reimbursement and indemnification,
if any, except as provided in Section 6.02(b), being limited solely to the Trust Estate,
whether or not the Trust Estate is exhausted without full reimbursement or indemnification of the
Trustee, the Delaware Trustee or any such Entity or Agent thereof. All legal or other expenses
reasonably incurred by the Trustee or the Delaware Trustee in connection with the investigation or
defense of any Expenses as to which such Entity is entitled to indemnity under this Section
6.02(a) shall be paid out of the Trust Estate.
(b) If the Trust Estate is exhausted without the Trustee, the Delaware Trustee or any Agent or
equityholder thereof being fully reimbursed as provided in Section 6.02(a) above, Enduro
shall fulfill the remaining indemnity obligation to the Trustee and the Delaware Trustee.
(c) If any action or proceeding shall be brought or asserted against the Trustee or the
Delaware Trustee or any Agent or equityholder thereof (each referred to as an “Indemnified Party”
and, collectively, the “Indemnified Parties”) in respect of which indemnity may be sought from
Enduro (the “Indemnifying Party”) pursuant to Section 6.02(b) hereof, of which the
Indemnified Party shall have received notice, the Indemnified Party shall promptly notify the
Indemnifying Party in writing, and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all expenses. The Indemnified Party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the Indemnified Party unless (i) the Indemnifying Party has
agreed to pay such fees and expenses, (ii) the Indemnifying Party shall have failed to assume the
defense of such action or proceeding and employ counsel reasonably satisfactory (including the
qualifications of such counsel) to the Indemnified Party in respect of any such action or
proceeding or (iii) the named parties to any such action or proceeding include both the Indemnified
Party and the Indemnifying Party, and the Indemnified Party shall have been advised by counsel that
there may be one or more legal defenses available to such Indemnified Party that are different from
or additional to those available to the Indemnifying Party (in which case, if the Indemnified Party
notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense
of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of
such action or proceeding on behalf of the Indemnified Party and the Indemnified Party may employ
such counsel for the defense of such action or proceeding as is reasonably satisfactory to the
Indemnifying Party; it being understood, however, that the Indemnifying Party shall not, in
connection with any one such action or proceeding or separate
but substantially similar or related actions or proceedings in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys for the Indemnified Parties at any time). The Indemnifying
Party shall not be liable for any settlement of any such action or proceeding effected without the
written consent of the Indemnifying Party (which consent shall not be unreasonably withheld,
conditioned or delayed), but, if settled with such written consent, or if there be a final judgment
for the plaintiff in any such action or proceeding, the Indemnifying Party agrees (to the extent
stated above) to indemnify and hold harmless the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment.
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(d) Any claim for indemnification pursuant to this Section 6.02 shall survive the
termination of this Agreement and the resignation or removal of any Indemnified Party.
(e) Except as expressly set forth in this Agreement, none of the Trustee, the Delaware Trustee
or any other Indemnified Party shall have any duties or liabilities, including fiduciary duties, to
the Trust or any Trust Unitholder, and the provisions of this Agreement, to the extent they
restrict, eliminate or otherwise modify the duties and liabilities, including fiduciary duties, of
the Trustee, the Delaware Trustee or any other Indemnified Party otherwise existing at law or in
equity, are agreed by the Trust Unitholders to replace such other duties and liabilities of the
Trustee, the Delaware Trustee or any other Indemnified Party. To the extent that, at law or in
equity, any of the Trustee, the Delaware Trustee or any other Indemnified Party has duties,
including fiduciary duties, and liabilities relating thereto to the Trust or any Trust Unitholder,
such Trustee, Delaware Trustee or other Indemnified Party shall not be liable to the Trust or to
any Trust Unitholder for its good faith reliance on the provisions of this Agreement. For the
avoidance of doubt, to the fullest extent permitted by law, no Person other than the Trustee and
the Delaware Trustee shall have any duties (including fiduciary duties) or liabilities at law or in
equity to the Trust, any Trust Unitholder or any other Person.
Section 6.03 Resignation of Delaware Trustee and Trustee. Any Entity serving as the Delaware
Trustee or the Trustee may resign, as such, with or without cause, at any time by written notice to
Enduro and to any other Entity serving as the Delaware Trustee or the Trustee. Upon receiving the
notice of resignation from the Delaware Trustee or the Trustee, as applicable, the resigning
Delaware Trustee or the Trustee, as the case may be, shall provide notice to each of the then Trust
Unitholders of record in accordance with Section 12.09. Such notice shall specify a date
when such resignation shall take effect, which shall be a Business Day not less than 60 days after
the date such notice is mailed; provided, however, that in no event shall any resignation of the
Trustee be effective until a successor Trustee has accepted its appointment as Trustee (including a
temporary trustee appointed pursuant to Section 6.05) pursuant to the terms hereof; and
provided, further, that in no event shall any resignation of the Delaware Trustee be effective
until a successor Delaware Trustee has accepted its appointment as Delaware Trustee pursuant to the
terms hereof.
Section 6.04 Removal of Delaware Trustee and Trustee. Each Entity serving as the Delaware
Trustee or the Trustee may be removed as trustee hereunder, with or without cause, by the
affirmative vote of not less than a majority of the Trust
Units present in person or by proxy at a meeting held in accordance with the requirements of
Article VIII; provided, however, that any removal of the Delaware Trustee shall be
effective only at such time as a successor Delaware Trustee, fulfilling the requirements of Section
3807(a) of the Trust Act, has been appointed and has accepted such appointment; and provided,
further, that any removal of the Trustee shall be effective only at such time as a successor
Trustee has been appointed and has accepted such appointment in accordance with Section
6.05. The Trust Unitholders present or represented at any such meeting where a trustee is
removed may elect, in accordance with the requirements of Article VIII, a successor trustee
at such meeting, who may accept such appointment effective as of the close of such meeting.
Section 6.05 Appointment of Successor Delaware Trustee or Trustee. In the event of the
resignation or removal of the Entity serving as the Delaware Trustee or the Trustee or if any
22
such
Entity has given notice of its intention to resign as the Delaware Trustee or the Trustee, (i) with
respect to the Delaware Trustee, the Trustee may appoint a successor Delaware Trustee, or (ii) with
respect to either the Delaware Trustee or the Trustee, the Trust Unitholders represented at a
meeting held in accordance with the requirements of Article VIII may appoint a successor
trustee. Nominees for appointment may be made by (i) Enduro, (ii) the resigned, resigning or
removed trustee or (iii) any Trust Unitholder or Trust Unitholders owning of record at least 10% of
the then outstanding Trust Units. Any successor to the Trustee shall be a bank or trust company
having combined capital, surplus and undivided profits of at least $100,000,000. Any successor to
the Delaware Trustee shall be a bank or trust company having its principal place of business in the
State of Delaware and having combined capital, surplus and undivided profits of at least
$20,000,000. Notwithstanding any provision herein to the contrary, in the event that a new trustee
has not been approved within 60 days after a notice of resignation, a vote of Trust Unitholders
removing a Trustee or other occurrence of a vacancy, a successor trustee may be appointed by any
State or Federal District Court having jurisdiction in New Castle County, Delaware, upon the
application of any Trust Unitholder, Enduro or the Entity tendering its resignation or being
removed as trustee filed with such court, and in the event any such application is filed, such
court may appoint a temporary trustee at any time after such application is filed, which shall,
pending the final appointment of a trustee, have such powers and duties as the court appointing
such temporary trustee shall provide in its order of appointment, consistent with the provisions of
this Agreement. Any such temporary trustee need not meet the minimum standards of capital, surplus
and undivided profits otherwise required of a successor trustee under this Section 6.05.
Nothing herein shall prevent the same Entity from serving as both the Delaware Trustee and the
Trustee if it meets the qualifications thereof.
Immediately upon the appointment of any successor trustee, all rights, titles, duties, powers
and authority of the predecessor trustee hereunder (except to the predecessor trustee’s rights to
amounts payable under Article VII or Section 6.02 accruing through the appointment
of such successor trustee) shall be vested in and undertaken by the successor trustee, which shall
be entitled to receive from the predecessor trustee all of the Trust Estate held by it hereunder
and all records and files of the predecessor trustee in connection therewith. Any resigning or
removed trustee shall account to its successor for its administration of the Trust. All successor
trustees shall be fully protected in relying upon such accounting and no successor trustee shall be
obligated to examine or seek alteration of any account of any preceding trustee, nor shall any
successor trustee be personally liable for failing to do so or for any act or omission of any
preceding trustee. The preceding sentence shall not prevent any successor trustee or anyone
else from taking any action otherwise permissible in connection with any such account.
Section 6.06 Laws of Other Jurisdictions. If notwithstanding the other provisions of this
Agreement (including, without limitation, Section 12.07) the laws of jurisdictions other
than the State of Delaware (each being referred to below as “such jurisdiction”) apply to the
administration of the Trust or the Trust Estate under this Agreement, the following provisions
shall apply. If it is necessary or advisable for a trustee to serve in such jurisdiction and if
the Trustee is disqualified from serving in such jurisdiction or for any other reason fails or
ceases to serve there, the ancillary trustee in such jurisdiction shall be such Entity, which need
not meet the requirements set forth in the third sentence of Section 6.05, as shall be
designated in writing by Enduro and the Trustee. To the extent permitted under the laws of such
jurisdiction, Enduro and the Trustee may remove the trustee in such jurisdiction, without cause and
without necessity
23
of court proceeding, and may or may not appoint a successor trustee in such
jurisdiction from time to time. The trustee serving in such jurisdiction shall, to the extent not
prohibited under the laws of such jurisdiction, appoint the Trustee to handle the details of
administration in such jurisdiction. The trustee in such jurisdiction shall have all rights,
powers, discretions, responsibilities and duties as are delegated in writing by the Trustee,
subject to such limitations and directions as shall be specified by the Trustee in the instrument
evidencing such appointment. Any trustee in such jurisdiction shall be responsible to the Trustee
for all assets with respect to which such trustee is empowered to act. To the extent the
provisions of this Agreement and Delaware law cannot be made applicable to the administration in
such jurisdiction, the rights, powers, duties and liabilities of the trustee in such jurisdiction
shall be the same (or as near the same as permitted under the laws of such jurisdiction if
applicable) as if governed by Delaware law. In all events, the administration in such jurisdiction
shall be as free and independent of court control and supervision as permitted under the laws of
such jurisdiction. The fees and expenses of any ancillary trustee shall constitute an
administrative expense of the Trust payable from the Trust Estate. Whenever the term “Trustee” is
applied in this Agreement to the administration in such jurisdiction, it shall refer only to the
trustee then serving in such jurisdiction.
Section 6.07 Reliance on Experts. The Trustee and the Delaware Trustee may, but shall not be
required to, consult with counsel (which may but need not be counsel to Enduro), accountants, tax
advisors, geologists, engineers and other parties (including employees of the Trustee or Delaware
Trustee, as applicable) deemed by the Trustee or the Delaware Trustee to be qualified as experts on
the matters submitted to them, and, subject to Section 6.01, but notwithstanding any other
provision of this Agreement, the opinion or advice of any such party on any matter submitted to it
by the Trustee or the Delaware Trustee shall be full and complete authorization and protection in
respect of any action taken, omitted or suffered by the Trustee or the Delaware Trustee hereunder
in good faith in reliance upon and in accordance with the opinion or advice of any such party. The
Trustee is hereby authorized and directed to make payments of all reasonable fees for services and
expenses thus incurred by the Trustee or the Delaware Trustee out of the Trust Estate. Neither the
Delaware Trustee nor the Trustee shall incur any liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper reasonably believed by it to be genuine and
reasonably believed by it to be signed by the proper party or parties. The Delaware Trustee and
the Trustee may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any fact or matter the
manner or ascertainment of which is not specifically prescribed herein, the Delaware Trustee and
the Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or any assistant treasurer and by the secretary or any assistant
secretary of the relevant party (including without limitation Enduro), as to such fact or matter,
and such certificate shall constitute full protection and authorization to the Delaware Trustee and
the Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.
Section 6.08 Force Majeure. The Trustee and the Delaware Trustee shall not incur any
liability to any Trust Unitholder if, by reason of any current or future law or regulation
thereunder of the federal government or any other governmental authority, or by reason of any
24
act
of God, war or other circumstance beyond its control (whether or not similar to any of the
foregoing), the Trustee or the Delaware Trustee is prevented or forbidden from doing or performing
any act or thing required by the terms hereof to be done or performed; nor shall the Trustee or the
Delaware Trustee incur any liability to any Trust Unitholder by reason of any nonperformance or
delay caused as aforesaid in the performance of any act or thing required by the terms hereof to be
done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided
for herein caused as aforesaid.
Section 6.09 Failure of Action by Enduro. In the event that Enduro shall fail or is unable to
take any action as required under any provision of the Transaction Documents, the Trustee is
empowered (but shall not be required) to take such action.
Section 6.10 Action Upon Instructions. Whenever the Delaware Trustee is unable to decide
between alternative courses of action permitted or required by the terms of this Agreement, or is
unsure as to the application, intent, interpretation or meaning of any provision of this Agreement,
the Delaware Trustee shall promptly give notice (in such form as shall be appropriate under the
circumstances) to the Trustee requesting instruction as to the course of action to be adopted, and,
to the extent the Delaware Trustee acts in good faith in accordance with any such instruction
received, the Delaware Trustee shall not be liable on account of such action to any Person. If the
Delaware Trustee shall not have received appropriate instructions within ten calendar days of
sending such notice to the Trustee (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may, but shall be under no
duty to, take or refrain from taking such action which is consistent, in its view, with this
Agreement, and the Delaware Trustee shall have no liability to any Person for any such action or
inaction.
Section 6.11 Management of Trust Estate. The Delaware Trustee shall have no duty or obligation to manage, control, prepare, file or
maintain any report, license or registration, use, sell, dispose of or otherwise deal with the
Trust Estate, or otherwise to take or refrain from taking any action under or in connection with
this Agreement, or any other document or instrument, except as expressly required hereby.
Section 6.12 Validity. The Delaware Trustee shall not be responsible for or in respect of and
makes no representations as to the validity or sufficiency of any provision of this Agreement or
for the due execution hereof by the other parties hereto or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Estate, and the Delaware Trustee shall in no
event assume or incur any liability, duty or obligation to Enduro, the Trustee or any Trust
Unitholder, other than as expressly provided for herein. Neither the Trustee nor the Delaware
Trustee shall at any time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any of the Trust Units.
Section 6.13 Rights and Powers; Litigation. The Delaware Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation or arbitration under this Agreement or otherwise or in relation to this
Agreement, at the request, order or direction of the Trustee, any Trust Unitholder or Enduro unless
the Trustee, Trust Unitholder or Enduro, as the case may be, has or have offered to the Delaware
Trustee security or indemnity reasonably satisfactory to it against the costs, expenses
25
and
liabilities that may be incurred by the Delaware Trustee therein or thereby. The Delaware Trustee
shall be under no obligation to appear in, prosecute or defend any action, or to take any other
action other than the giving of notices, which in its opinion may require it to incur any
out-of-pocket expense or any liability unless it shall be furnished with such security and
indemnity against such expense or liability as it may reasonably require. The right of the
Delaware Trustee to perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Delaware Trustee shall not be personally liable or accountable for the
performance of any such act except as specifically provided in Section 6.01.
Section 6.14 No Duty to Act Under Certain Circumstances. Notwithstanding anything contained
herein to the contrary, the Delaware Trustee will not be required to take any action in any
jurisdiction other than in the State of Delaware if the taking of such action would (i) require the
consent of approval or authorization or order of or the giving of notice to, or the registration
with or taking of any action in respect of, any state or other governmental authority or agency of
any jurisdiction other than in the State of Delaware, (ii) result in any fee, tax or governmental
charge under the laws of any jurisdiction or any political subdivisions thereof other than the
State of Delaware becoming payable by the Delaware Trustee or (iii) subject the Delaware Trustee to
personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action
arising from acts unrelated to the consummation of the transactions by the Delaware Trustee
contemplated hereby.
Section 6.15 Indemnification of Trust. Enduro agrees to indemnify and hold harmless the Trust from and against any and all losses,
claims, damages, liabilities and expenses, including reasonable costs of investigation and
attorney’s fees and expenses, (i) incurred under Section 10 of the Underwriting Agreement and (ii)
arising out of or based upon any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus (as defined in the Underwriting Agreement), the Securities
Act Registration Statement, the Pricing Disclosure Package (as defined in the Underwriting
Agreement), any Issuer Free Writing Prospectus (as defined in the Underwriting Agreement) or the
Prospectus (as defined in the Underwriting Agreement) or in any amendment or supplement thereto, or
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Preliminary Prospectus, the Pricing
Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or in any amendment or
supplement thereto, in the light of the circumstances under which they were made) not misleading.
ARTICLE VII
COMPENSATION OF THE TRUSTEE AND THE DELAWARE TRUSTEE
COMPENSATION OF THE TRUSTEE AND THE DELAWARE TRUSTEE
Section 7.01 Compensation of Trustee and Delaware Trustee. The Entity serving as the Trustee
hereunder shall receive an annual fee of $200,000 as compensation for its services as the Trustee
hereunder. The Entity serving as the Delaware Trustee hereunder shall receive an annual fee of
$2,000 as compensation for its services as the Delaware Trustee hereunder. Entities serving as the
Trustee or the Delaware Trustee hereunder shall be reimbursed for all actual expenditures made in
connection with administration of the Trust, including those made on account of any unusual duties
in connection with matters pertaining to the Trust and the reasonable compensation and expenses of
their counsel, accountants or other skilled persons and of all other persons not regularly in their
employ. Any unusual or extraordinary services
26
rendered by the Entity serving as Trustee or by the
Entity serving as Delaware Trustee in connection with the administration of the Trust shall be
treated as trustee administrative services for purpose of computing the respective administrative
fee to be paid to each Entity serving as trustee hereunder.
Section 7.02 Reimbursement of Enduro. Enduro shall be entitled to reimbursement from the
Trust for all out-of-pocket costs and expenses paid by Enduro, acting in its capacity as Agent of
the Trust (including without limitation legal, accounting, engineering and printing costs), but
excluding those costs and expenses specified in Section 3.12(d) and in Section
6.02(b) as costs and expenses to be paid by Enduro, promptly upon submission of written
evidence thereof to the Trustee.
Section 7.03 Source of Funds. Except as provided in Section 3.12(d) and Section
6.02(b), all compensation, reimbursements, and other charges owing to any Entity as a result of
its services as a trustee hereunder shall constitute indebtedness hereunder, shall be payable by
the Trust out of the Trust Estate and such Entity shall have a lien on the Trust Estate for payment
of such compensation,
reimbursements and other charges, entitling such Entity to priority as to payment thereof over
payment to any other Person under this Agreement.
Section 7.04 Ownership of Units by Enduro, the Delaware Trustee and the Trustee. Each of the
Delaware Trustee and the Trustee, in its individual or other capacity, may become the owner or
pledgee of Trust Units with the same rights it would have if it were not a trustee hereunder.
Enduro is an owner of Trust Units, and each of Enduro and its Affiliates may become the owner of
additional Trust Units, with the same rights and entitled to the same benefits as any other Trust
Unitholder.
ARTICLE VIII
MEETINGS OF TRUST UNITHOLDERS
MEETINGS OF TRUST UNITHOLDERS
Section 8.01 Purpose of Meetings. A meeting of the Trust Unitholders may be called at any
time and from time to time pursuant to the provisions of this Article VIII to transact any
matter that the Trust Unitholders may be authorized to transact.
Section 8.02 Call and Notice of Meetings. Any such meeting of the Trust Unitholders may be
called by the Trustee or by Trust Unitholders owning of record not less than 10% in number of the
then outstanding Trust Units. The Trustee may, but shall not be obligated to, call meetings of
Trust Unitholders to consider amendments, waivers, consents and other changes relating to the
Transaction Documents to which the Trust (or the Trustee as trustee of the Trust) is a party. In
addition, at the written request of the Delaware Trustee, unless the Trustee appoints a successor
Delaware Trustee in accordance with Section 6.05, the Trustee shall call such a meeting but
only for the purpose of appointing a successor to the Delaware Trustee upon its resignation. All
such meetings shall be held at such time and at such place as the notice of any such meeting may
designate. Except as may otherwise be required by any applicable law or by the rules of any
securities exchange or quotation system on which the Trust Units may be listed or admitted to
trading, the Trustee shall provide notice of every meeting of the Trust Unitholders authorized by
the Trustee or the Trust Unitholders calling the meeting, setting forth the time and place of the
meeting and in general terms the matters proposed to be acted upon at such meeting,
27
which notice
shall be given in accordance with Section 12.09 of this Agreement not more than 60 nor less
than 20 days before such meeting is to be held to all of the Trust Unitholders of record at the
close of business on a record date selected by the Trustee (the “Record Date Trust Unitholders”),
which shall be not more than 60 days before the date of such notice. If such notice is given to
any Trust Unitholder by mail, it shall be directed to such Trust Unitholder at its last address as
shown by the ownership ledger of the Trustee and shall be deemed duly given when so addressed and
deposited in the United States mail, postage paid. No matter other than that stated in the notice
shall be acted upon at any meeting. Only Record Date Trust Unitholders shall be entitled to notice
of and to exercise rights at or in connection with the meeting. All costs associated with calling
any meeting of the Trust Unitholders shall be borne by the Trust other than a meeting of the Trust
Unitholders called by Trust Unitholders owning of record not less than 10% in number
of the then outstanding Trust Units, which costs shall be borne by the Trust Unitholders that
called such meeting of Trust Unitholders.
Section 8.03 Method of Voting and Vote Required. Each Record Date Trust Unitholder shall be
entitled to one vote for each Trust Unit owned by such Record Date Trust Unitholder, and any Record
Date Trust Unitholder may vote in person or by duly executed written proxy. Abstentions and broker
non-votes shall not be deemed to be a vote cast. At any such meeting, the presence in person or by
proxy of Record Date Trust Unitholders holding a majority of the Trust Units held by all Record
Date Trust Unitholders shall constitute a quorum, and, except as otherwise provided herein, any
matter shall be deemed to have been approved by the Trust Unitholders (including, but not limited
to, appointment of a successor trustee) if it is approved by the affirmative vote of Record Date
Trust Unitholders holding a majority of the Trust Units present in person or by proxy at a meeting
where there is a quorum present.
Section 8.04 Conduct of Meetings. The Trustee may make such reasonable regulations consistent
with the provisions hereof as it may deem advisable for any meeting of the Trust Unitholders, for
the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the right to vote, the
preparation and use at the meeting of a list authenticated by or on behalf of the Trustee of the
Trust Unitholders entitled to vote at the meeting and such other matters concerning the conduct of
the meeting as it shall deem advisable.
ARTICLE IX
DURATION, REVOCATION AND TERMINATION OF TRUST
DURATION, REVOCATION AND TERMINATION OF TRUST
Section 9.01 Revocation. Subject to the last sentence of this Section 9.01, the Trust
is and shall be irrevocable, and Enduro, as trustor, after the Closing, retains no power to alter,
amend (except as provided otherwise in this Article IX and in Section 10.02
hereof), revoke or terminate the Trust. The Trust shall be terminable only as provided in
Section 9.02, and shall continue until so terminated.
Section 9.02 Termination. The Trust shall dissolve and commence winding-up its business and
affairs upon the first to occur of the following events or times:
28
(a) the disposition of all of the Net Profits Interest and any assets (other than cash),
tangible or intangible, including accounts receivable and claims or rights to payment, constituting
the Trust Estate in accordance with Section 3.02;
(b) the action by Trust Unitholders of record holding at least 75% of the then outstanding
Trust Units at a meeting held in accordance with the requirements of Article VIII to
terminate the Trust;
(c) annual cash proceeds received by the Trust attributable to the Net Profits Interest are
less than $2.0 million for each of any two consecutive years; and
(d) the entry of a decree of judicial dissolution of the Trust.
Section 9.03 Disposition and Distribution of Assets and Properties. Notwithstanding the
dissolution of the Trust pursuant to Section 9.02, the Trustee and the Delaware Trustee
shall continue to act as trustees of the Trust Estate and as such shall exercise the powers granted
under this Agreement until their duties have been fully performed and the Trust Estate finally
distributed so that the affairs of the Trust may be liquidated and wound up. Upon the dissolution
of the Trust, the Trustee shall sell for cash in one or more sales all the properties other than
cash then constituting the Trust Estate. The net proceeds from any sale of the Net Profits
Interest made as provided in Section 3.02 or the properties other than cash then
constituting the Trust Estate shall be treated as cash receipts of the Trust during the Monthly
Period in which the net proceeds are received; provided that the Trustee shall first pay, satisfy
and discharge all liabilities of the Trust, or if necessary, set up cash reserves in such amounts
as the Trustee in its discretion deems appropriate for contingent liabilities in accordance with
Section 3808 of the Trust Act. The Trustee shall not be required to obtain approval of the Trust
Unitholders prior to performing any of its duties pursuant to this Section 9.03.
Notwithstanding anything herein to the contrary, in no event may the Trustee distribute the Net
Profits Interest to the Trust Unitholders. Upon completion of the dissolution and winding up of
the Trust in accordance with Section 9.02 and Section 9.03 hereof and Section 3808
of the Trust Act, the Trustee shall direct the Delaware Trustee to file, and Delaware Trustee shall
file or cause to be filed at the expense of Enduro, a certificate of cancellation of the Trust’s
Certificate of Trust in accordance with Section 2.01 and Section 3811 of the Trust Act.
Upon the filing of such certificate of cancellation, neither of the Trustees nor the Entities
serving in such capacity shall have any further duty or obligation hereunder, and neither of the
Trustees nor the Entities serving in such capacity shall be under further liability except as
provided in Section 6.01.
Section 9.04 Reorganization or Business Combination.
(a) The Trust may merge or consolidate with or convert into one or more limited partnerships,
general partnerships, corporations, statutory trusts, common law trusts, limited liability
companies, associations, or unincorporated businesses in accordance with the Trust Act if such
transaction (i) except in the case of the Merger, is agreed to by the Trustee and by the
affirmative vote of holders of a majority of the Trust Units present in person or by proxy at a
meeting where a quorum is present, and (ii) is permitted under the Trust Act and any other
applicable law. The Merger is hereby authorized and approved, and the Trust and the Trustee, on
behalf of the Trust, acting alone is hereby authorized to execute and deliver the Agreement
29
and
Plan of Merger, to consummate the Merger and to execute and file a certificate of merger with the
Delaware Secretary of State and the Texas Secretary of State without the need for any further
action or approval by any Person. The Trustee shall give prompt notice of such reorganization or
business combination to the Delaware Trustee. Pursuant to and in accordance with the provisions of
Section 3815(f) of the Trust Act, and notwithstanding anything else
herein, an agreement of merger or consolidation approved in accordance with this Section
9.04 and Section 3815(a) of the Trust Act may effect any amendment to this Agreement or effect
the adoption of a new trust agreement if it is the surviving or resulting trust in the merger or
consolidation.
(b) Upon the effective date of a certificate of merger duly filed in accordance with the Trust
Act, the following shall be deemed to occur, in addition to such effects as may be specified under
the Trust Act as then in effect:
(i) all of the rights, privileges and powers of each of the business entities that have
merged or consolidated, and all property, real, personal and mixed, and all debts due to any
of those business entities and all other things and causes of action belonging to each of
those business entities shall be vested in the surviving business entity and, after the
merger or consolidation, shall be the property of the surviving business entity to the
extent they were part of each constituent business entity;
(ii) the title to any real property vested by deed or otherwise in any of those
constituent business entities shall not revert and shall not be in any way impaired because
of the merger or consolidation;
(iii) all rights of creditors and all liens on or security interest in property of any
of those constituent business entities shall be preserved unimpaired;
(iv) all debts, liabilities and duties of those constituent business entities shall
attach to the surviving or resulting business entity, and may be enforced against it to the
same extent as if the debts, liabilities and duties had been incurred or contacted by it;
and
(v) if the Trust is the surviving or resulting entity, the certificate of trust of the
Trust may be amended as set forth in the certificate of merger.
(c) A merger or consolidation effected pursuant to this Section 9.04 shall not be
deemed to result in a transfer or assignment of assets or liabilities from one entity to another
having occurred.
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 10.01 Prohibited Amendments. After the Closing, no amendment may be made to any
provision of this Agreement that would:
(a) increase the power of the Delaware Trustee or the Trustee to engage in business or
investment activities;
30
(b) alter the rights of the Trust Unitholders vis-a-vis each other; or
(c) unless consented to in writing by Enduro, have the effect of amending Sections
3.02, 6.02, 7.02, 9.02, 9.03, 10.01 or 10.02
hereof.
Section 10.02 Permitted Amendments. Subject to Section 10.01, the Trustee and the
Delaware Trustee may amend the Transaction Documents to which the Trust (or the Trustee as trustee
of the Trust) is a party as follows:
(a) The Delaware Trustee and the Trustee may, jointly, from time to time supplement or amend
this Agreement, and the Trustee on behalf of the Trust may from time to time supplement or amend
the other Transaction Documents to which the Trust (or the Trustee as trustee of the Trust) is a
party, without the approval of Trust Unitholders in order to cure any ambiguity, to correct or
supplement any provision contained herein or therein which may be defective or inconsistent with
any other provisions herein or therein, to grant any benefit to all of the Trust Unitholders, to
comply with changes in applicable law or to change the name of the Trust; provided that such
supplement or amendment does not materially adversely affect the interests of the Trust
Unitholders; and provided, further, that any amendment to this Agreement made to change the name of
the Trust in accordance with Section 12.05 or otherwise shall be conclusively deemed not to
materially affect adversely the interests of the Trust Unitholders or result in a material variance
of the investment of the Trust or the Trust Unitholders. Additionally, the Trustee may, from time
to time, supplement or amend the Transaction Documents without the approval of the Trust
Unitholders; provided that such supplement or amendment would not materially increase the costs or
expenses of the Trust or adversely affect the economic interest of the Trust Unitholders; and
provided, further, that the Trustee shall not modify or amend the Conveyance if such modification
or amendment would change the character of the Net Profits Interest in such a way that the Net
Profits Interest becomes a working interest or that the trust would fail to continue to qualify as
a grantor trust for U.S. federal income tax purposes. The Trustee and the Delaware Trustee are
entitled to, and may rely upon, a written opinion of counsel or certification of Enduro as
conclusive evidence that any amendment or supplement pursuant to the immediately preceding
sentences is authorized and permitted under this Agreement and the other Transaction Documents and
complies with the provisions of this Section 10.02.
(b) All other permitted amendments to the provisions of this Agreement may be made only by the
affirmative vote of the Trust Unitholders of record holding at least 75% of the then outstanding
Trust Units at a meeting held in accordance with the requirements of Article VIII.
(c) No amendment that increases the obligations, duties or liabilities or affects the rights
of the Delaware Trustee, the Trustee or any Entity serving in any such capacity shall be effective
without the express written approval of such trustee or Entity.
ARTICLE XI
ARBITRATION
ARBITRATION
THE TRUST UNITHOLDERS, TRUSTEE AND ENDURO AGREE THAT, EXCEPT AS PROVIDED IN PARAGRAPH (I) OF
THIS ARTICLE XI, ANY DISPUTE,
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CONTROVERSY OR CLAIM THAT MAY ARISE BETWEEN OR AMONG ENDURO (ON THE ONE HAND) AND THE TRUST OR
THE TRUSTEE (ON THE OTHER HAND) IN CONNECTION WITH OR OTHERWISE RELATING TO THE TRANSACTION
DOCUMENTS TO WHICH THE TRUST (OR THE TRUSTEE AS TRUSTEE OF THE TRUST) IS A PARTY, OR THE
APPLICATION, IMPLEMENTATION, VALIDITY OR BREACH OF THE TRANSACTION DOCUMENTS TO WHICH THE TRUST (OR
THE TRUSTEE AS TRUSTEE OF THE TRUST) IS A PARTY OR ANY PROVISION OF THE TRANSACTION DOCUMENTS TO
WHICH THE TRUST (OR THE TRUSTEE AS TRUSTEE OF THE TRUST) IS A PARTY (INCLUDING, WITHOUT LIMITATION,
CLAIMS BASED ON CONTRACT, TORT OR STATUTE), SHALL BE FINALLY, CONCLUSIVELY AND EXCLUSIVELY SETTLED
BY BINDING ARBITRATION IN FORT WORTH, TEXAS IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES
(THE “RULES”) OF THE AMERICAN ARBITRATION ASSOCIATION OR ANY SUCCESSOR THERETO (“AAA”) THEN IN
EFFECT. THE TRUST UNITHOLDERS, THE TRUSTEE (FOR ITSELF AND ON BEHALF OF THE TRUST) AND ENDURO
HEREBY EXPRESSLY WAIVE THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING, WITHOUT LIMITATION, THE
RIGHT TO TRIAL BY JURY, WITH RESPECT TO ANY MATTER SUBJECT TO ARBITRATION PURSUANT TO THIS
ARTICLE XI. THE TRUST UNITHOLDERS, TRUSTEE OR ENDURO MAY BRING AN ACTION, INCLUDING,
WITHOUT LIMITATION, A SUMMARY OR EXPEDITED PROCEEDING, IN ANY COURT HAVING JURISDICTION, TO COMPEL
ARBITRATION OF ANY DISPUTE, CONTROVERSY OR CLAIM TO WHICH THIS ARTICLE XI APPLIES. EXCEPT
WITH RESPECT TO THE FOLLOWING PROVISIONS (THE “SPECIAL PROVISIONS”) WHICH SHALL APPLY WITH RESPECT
TO ANY ARBITRATION PURSUANT TO THIS ARTICLE XI, THE INITIATION AND CONDUCT OF ARBITRATION
SHALL BE AS SET FORTH IN THE RULES, WHICH RULES ARE INCORPORATED IN THIS AGREEMENT BY REFERENCE
WITH THE SAME EFFECT AS IF THEY WERE SET FORTH IN THIS AGREEMENT.
(a) In the event of any inconsistency between the Rules and the Special Provisions, the
Special Provisions shall control. References in the Rules to a sole arbitrator shall be deemed to
refer to the tribunal of arbitrators provided for under subparagraph (c) below in this Article
XI.
(b) The arbitration shall be administered by AAA.
(c) The arbitration shall be conducted by a tribunal of three arbitrators. Within ten days
after arbitration is initiated pursuant to the Rules, the initiating party or parties (the
“Claimant”) shall send written notice to the other party or parties (the “Respondent”), with a copy
to the Fort Worth, Texas office of AAA, designating the first arbitrator (who shall not be a
representative or agent of any party but may or may not be an AAA panel member and, in any case,
shall be reasonably believed by the Claimant to possess the requisite experience, education and
expertise in respect of the matters to which the claim relates to enable such person to competently
perform arbitral duties). Within ten days after receipt of such notice, the Respondent shall send
written notice to the Claimant, with a copy to the Fort Worth, Texas office of AAA and to the first
arbitrator, designating the second arbitrator (who shall not be a representative or agent of any
party, but may or may not be an AAA panel member and, in any case, shall be reasonably believed by
the Respondent to possess the requisite experience,
32
education and expertise in respect of the matters to which the claim relates to enable such
person to competently perform arbitral duties). Within ten days after such notice from the
Respondent is received by the Claimant, the Respondent and the Claimant shall cause their
respective designated arbitrators to select any mutually agreeable AAA panel member as the third
arbitrator. If the respective designated arbitrators of the Respondent and the Claimant cannot so
agree within said ten day period, then the third arbitrator will be determined pursuant to the
Rules. For purposes of this Article XI, Enduro (on the one hand) and the Trust and the
Trustee (on the other hand) shall each be entitled to the selection of one arbitrator. Prior to
commencement of the arbitration proceeding, each arbitrator shall have provided the parties with a
resume outlining such arbitrator’s background and qualifications and shall certify that such
arbitrator is not a representative or agent of any of the parties. If any arbitrator shall die,
fail to act, resign, become disqualified or otherwise cease to act, then the arbitration proceeding
shall be delayed for 15 days and the party by or on behalf of whom such arbitrator was appointed
shall be entitled to appoint a substitute arbitrator (meeting the qualifications set forth in this
Article XI) within such 15-day period; provided, however, that if the party by or on behalf
of whom such arbitrator was appointed shall fail to appoint a substitute arbitrator within such
15-day period, the substitute arbitrator shall be a neutral arbitrator appointed by the AAA
arbitrator within 15 days thereafter.
(d) All arbitration hearings shall be commenced within 120 days after arbitration is initiated
pursuant to the Rules, unless, upon a showing of good cause by a party to the arbitration, the
tribunal of arbitrators permits the extension of the commencement of such hearing; provided,
however, that any such extension shall not be longer than 60 days.
(e) All claims presented for arbitration shall be particularly identified and the parties to
the arbitration shall each prepare a statement of their position with recommended courses of
action. These statements of position and recommended courses of action shall be submitted to the
tribunal of arbitrators chosen as provided hereinabove for binding decision. The tribunal of
arbitrators shall not be empowered to make decisions beyond the scope of the position papers.
(f) The arbitration proceeding will be governed by the substantive laws of the State of
Delaware and will be conducted in accordance with such procedures as shall be fixed for such
purpose by the tribunal of arbitrators, except that (i) discovery in connection with any
arbitration proceeding shall be conducted in accordance with the Federal Rules of Civil Procedure
and applicable case law, (ii) the tribunal of arbitrators shall have the power to compel discovery
and (iii) unless the parties otherwise agree and except as may be provided in this Article
XI, the arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. §§ 1-16,
to the exclusion of any provision of state law or other applicable law or procedure inconsistent
therewith or which would produce a different result. The parties shall preserve their right to
assert and to avail themselves of the attorney-client and attorney-work-product privileges, and any
other privileges to which they may be entitled pursuant to applicable law. No party to the
arbitration or any arbitrator may compel or require mediation and/or settlement conferences without
the prior written consent of all such parties and the tribunal of arbitrators.
(g) The tribunal of arbitrators shall make an arbitration award as soon as possible after the
later of the close of evidence or the submission of final briefs, and in all cases the award shall
be made not later than 30 days following submission of the matter. The finding and
33
decision of a majority of the arbitrators shall be final and shall be binding upon the
parties. Judgment upon the arbitration award or decision may be entered in any court having
jurisdiction thereof or application may be made to any such court for a judicial acceptance of the
award and an order of enforcement, as the case may be. The tribunal of arbitrators shall have the
authority to assess liability for pre-award and post-award interest on the claims, attorneys’ fees,
expert witness fees and all other expenses of arbitration as such arbitrators shall deem
appropriate based on the outcome of the claims arbitrated. Unless otherwise agreed by the parties
to the arbitration in writing, the arbitration award shall include findings of fact and conclusions
of law.
(h) Nothing in this Article XI shall be deemed to (i) limit the applicability of any
otherwise applicable statute of limitations or repose or any waivers contained in this Agreement,
(ii) constitute a waiver by any party hereto of the protections afforded by 12 U.S.C. § 91 or any
successor statute thereto or any substantially equivalent state law, (iii) restrict the right of
the Trustee to make application to any state or federal district court having jurisdiction in Fort
Worth, Texas, to appoint a successor Trustee or to request instructions with regard to any
provision in this Agreement when the Trustee is unsure of its obligations thereunder, or (iv) apply
to the Delaware Trustee.
(i) This Article XI shall preclude participation by the Trust (or the Trustee as
trustee of the Trust) in any class action brought against Enduro by any Person who is not a Trust
Unitholder and the Trustee shall opt out of any such class action in which the Trust (or the
Trustee as trustee of the Trust) is a purported class member, but shall not preclude participation
by the Trust (or the Trustee as trustee of the Trust) in any such action brought by Trust
Unitholders or in which Trust Unitholders holding more than 50% of the Trust Units represented at a
duly called and held meeting of the Trust Unitholders in accordance with Section 8.02
request the Trustee to participate.
ARTICLE XII
MISCELLANEOUS
MISCELLANEOUS
Section 12.01 Inspection of Books. Each Trust Unitholder and its duly authorized agents and
attorneys shall have the right, at its own expense and during reasonable business hours upon
reasonable prior notice, to examine and inspect the records (including, without limitation, the
ownership ledger) of the Trust and the Trustee in reference thereto for any purpose reasonably
related to the Trust Unitholder’s interest as a Trust Unitholder. The Trustee and its duly
authorized Agents (including attorneys) shall have the right, at the expense of the Trust and
during reasonable business hours upon reasonable prior written notice, to examine and inspect the
records of Enduro relating to the Net Profits Interest and the Underlying Properties.
Section 12.02 Disability of a Trust Unitholder. Any payment or distribution to a Trust
Unitholder may be made by check of the Trustee drawn to the order of the Trust Unitholder,
regardless of whether or not the Trust Unitholder is a minor or under other legal disability,
without the Trustee having further responsibility with respect to such payment or distribution.
This Section 12.02 shall not be deemed to prevent the
Trustee from making any payment or distribution by any other method that is appropriate under
law.
34
Section 12.03 Interpretation. It is intended that this Agreement shall be interpreted in a
manner such that the Trustee shall be prohibited from taking any action if the effect of such
action would constitute a power under this Trust Agreement to “vary the investment of the
certificate holders” as set forth in Section 301.7701-4(c)(1) of the Treasury Regulations
promulgated under the Internal Revenue Code of 1986, as amended, as such regulations may be
amended, and as further interpreted by Revenue Ruling 2004-86, 2004-2 C.B. 191, or any successor
ruling, notice or other pronouncement by the Internal Revenue Service.
Section 12.04 Merger or Consolidation of Delaware Trustee or Trustee. Neither a change of
name of either the Delaware Trustee or the Trustee, nor any merger or consolidation of its
corporate powers with another bank or with a trust company or other Entity, nor the sale or
transfer of all or substantially all of its institutional and corporate trust operations to a
separate bank, trust company, corporation or other Entity shall adversely affect such resulting or
successor party’s right or capacity to act hereunder and any such successor shall be the successor
Delaware Trustee or the Trustee hereunder without the execution, delivery or filing of any paper or
instrument or further act to be done on the part of the parties hereto, except as may be required
by law; provided, however, that the Delaware Trustee or any successor thereto shall maintain its
principal place of business in the State of Delaware; and provided, further, that, in the case of
any successor Trustee or Delaware Trustee, it shall continue to meet the requirements of
Section 6.05.
Section 12.05 Change in Trust Name. Upon the written request by Enduro submitted to the
Trustee and the Delaware Trustee, the Trustee shall, without the vote or consent of any Trust
Unitholders, take all action necessary to change the name of the Trust to a name mutually agreeable
to the Trustee and Enduro and, upon effecting such name change, the Delaware Trustee, acting
pursuant to the written instructions of the Trustee, shall amend the Certificate of Trust on file
in the office of the Secretary of State of Delaware to reflect such name change.
Section 12.06 Filing of this Agreement. There is no obligation on the part of the Trustee
that this Agreement or any executed copy hereof be filed in any county or parish in which any of
the Trust Estate is located or elsewhere, but the same may be filed for record in any county or
parish by the Trustee. In order to avoid the necessity of filing this Agreement for record, each
of the Delaware Trustee and the Trustee agrees that for the purpose of vesting the record title to
the Trust Estate in any successor trustee, the succeeded trustee shall, upon appointment of any
successor trustee, execute and deliver to such successor trustee appropriate assignments or
conveyances.
Section 12.07 Choice of Law. This Agreement and the Trust shall be governed by the laws of the State of Delaware
(without regard to the conflict of laws principles thereof) in effect at any applicable time in all
matters, including the validity, construction and administration of this Agreement and the Trust,
the enforceability of the provisions of this Agreement, all rights and remedies hereunder, and the
services of the Delaware Trustee and Trustee hereunder. Furthermore, except as otherwise provided
in this Agreement, the rights, powers, duties and liabilities of the Delaware Trustee, the Trustee
and the Trust Unitholders shall be as provided under the Trust Act and other applicable laws of the
State of Delaware in effect at any applicable time; provided, however, that to the fullest extent
permitted by applicable law there shall not be applicable to the Trustee, the Delaware Trustee, the
Trust Unitholders, the Trust or this
35
Agreement any provision of the laws (common or statutory) of
the State of Delaware pertaining to trusts (other than the Trust Act) that relate to or regulate,
in a manner inconsistent with the terms hereof, (i) the filing with any court or governmental body
or agency of trustee accounts or schedules of trustee fees and charges, (ii) affirmative
requirements to post bonds for trustees, officers, agents or employees of a trust, (iii) the
necessity for obtaining court or other governmental approval concerning the acquisition, holding or
disposition of real or personal property, (iv) fees or other sums payable to trustees, officers,
agents or employees of a trust, (v) the allocation of receipts and expenditures to income or
principal, (vi) restrictions or limitations on the permissible nature, amount or concentration of
trust investments or requirements relating to the titling, storage or other manner of holding or
investing trust assets or (vii) the establishment of fiduciary or other standards of responsibility
or limitations on the acts or powers of trustees that are inconsistent with the limitations or
authorities and powers of the trustees hereunder as set forth or referenced in this Agreement.
Section 3540 of Title 12 of the Delaware Code shall not apply to the Trust.
Section 12.08 Separability. If any provision of this Agreement or the application thereof to
any Person or circumstances shall be finally determined by a court of proper jurisdiction to be
illegal, invalid or unenforceable to any extent, the remainder of this Agreement or the application
of such provision to Persons or circumstances other than those as to which it is held illegal,
invalid or unenforceable shall not be affected thereby, and every remaining provision of this
Agreement shall be valid and enforced to the fullest extent permitted by law.
Section 12.09 Notices. Any and all notices or demands permitted or required to be given under
this Agreement shall be in writing (or be capable of being reproduced in paper format) and shall be
validly given or made if (a) personally delivered, (b) delivered and confirmed by facsimile or like
instantaneous transmission service, or by Federal Express or other overnight courier delivery
service, which shall be effective as of confirmation of receipt by the courier at the address for
notice hereinafter stated, (c) solely in the case of notice to any Trust Unitholder, by press
release in a nationally recognized and distributed media or by means of electronic transmission or
as otherwise permitted by applicable law, or (d) deposited in the United States mail, first class,
postage prepaid, certified or registered, return receipt requested, addressed as follows:
If to the Trustee, to:
The Bank of New York Mellon Trust Company, N.A.
Institutional Trust Services
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Bracewell & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
36
If to the Delaware Trustee, to:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxxxx, Xxxxxx & Finger, P.A.
000 X. Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Facsimile No.: (000) 000-0000
If to Enduro, to:
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
If to a Trust Unitholder, to:
The Trust Unitholder at its last address as shown on the ownership
records maintained by the Trustee.
Notice that is mailed in the manner specified shall be conclusively deemed given three days
after the date postmarked or upon receipt, whichever is sooner. Any party to this Agreement may
change its address for the purpose of receiving notices or demands by notice given as provided in
this Section 12.09.
Section 12.10 Counterparts. This Agreement may be executed in a number of counterparts, each
of which shall constitute an original, but such counterparts shall together constitute but one and
the same instrument.
Section 12.11 No Fiduciary Duty of Enduro or its Affiliates. The parties hereto and the Trust
Unitholders expressly acknowledge and agree that Enduro and its Affiliates are entering into the
Transaction Documents and may exercise their rights and discharge their obligations
37
fully, without
hindrance or regard to conflict of interest principles, duty of loyalty principles or other breach
of fiduciary duties, all of which defenses, claims or assertions are hereby expressly waived by the
other parties hereto and the Trust Unitholders. Neither Enduro nor any of its Affiliates shall be
a fiduciary with respect to the Trust or the Trust Unitholders. To the extent that, at law or in
equity, Enduro or its Affiliates have duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to the Trust Unitholders, such duties and liabilities are hereby eliminated
and waived to the fullest extent permitted by law.
[Signature page follows]
38
IN WITNESS WHEREOF, Enduro, the Trustee and the Delaware Trustee have caused this Agreement to
be duly executed the day and year first above written.
ENDURO RESOURCE PARTNERS LLC |
||||
By: | Enduro Resource Holdings LLC, | |||
its sole member | ||||
By: | /s/ Xxx X. Xxxxxxx | |||
Name: | Xxx X. Xxxxxxx | |||
Title: | President and Chief Executive Officer |
|||
WILMINGTON TRUST COMPANY |
||||
By: | /s/ Xxxxxxx Xxxxxxxx | |||
Name: | Xxxxxxx Xxxxxxxx | |||
Title: | Financial Services Officer | |||
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Vice President | |||
[Signature Page to Amended and Restated Trust Agreement]