TRUST AGREEMENT OF ENDURO ROYALTY TRUST
Exhibit 3.4
This Trust Agreement of Enduro Royalty Trust is entered into effective as of the
3rd day of May, 2011 (this “Trust Agreement”), by and among ENDURO RESOURCE PARTNERS
LLC, a Delaware limited liability company with its principal office in Fort Worth, Texas (together
with its successors and assigns, “Enduro”), as trustor, and WILMINGTON TRUST COMPANY, a banking
corporation organized under the laws of the State of Delaware with its principal office in
Wilmington, Delaware (the “Delaware Trustee”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
a national banking association organized under the laws of the United States of America with its
principal place of business in New York, New York (the “Issuer Trustee”), as trustees (collectively
referred to herein as the “Trustees”). Enduro and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as “Enduro Royalty Trust” (the “Trust”), in which
name the Trustees or Enduro, to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and ▇▇▇ and be sued.
2. Enduro hereby assigns, transfers, conveys and sets over to the Trust the sum of $10. Such
amount shall constitute the initial trust estate. It is the intention of the parties hereto that
the Trust created hereby constitute a statutory trust under the Delaware Statutory Trust Act, Title
12, Chapter 38 of the Delaware Code, Sections 3801, et seq. (the “Trust Act”), and that this Trust
Agreement constitute the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Secretary of State of the State of
Delaware in the form attached hereto in accordance with the Trust Act.
3. Enduro and the Trustees will enter into an amended and restated trust agreement
satisfactory to each such party to provide for the contemplated operation of the Trust created
hereby and the issuance of the trust securities referred to therein. Prior to the execution and
delivery of such amended and restated trust agreement, the Trustees shall not have any duty or
obligation hereunder or with respect of the trust estate, except as otherwise contemplated by this
Trust Agreement, required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by applicable law or otherwise.
Notwithstanding the foregoing, the Trustees may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
4. Enduro, as trustor and an agent of the Trust, is hereby authorized, in its sole discretion,
(i) to prepare and file with the Securities and Exchange Commission (the “Commission”) and to
execute, in the case of the 1933 Act Registration Statement and 1934 Act Registration Statement (as
herein defined), on behalf of the Trust, (a) a Registration Statement (the “1933 Act Registration
Statement”), including all pre-effective and post-effective amendments thereto, relating to the
registration under the Securities Act of 1933, as amended (the “1933 Act”), of the trust securities
of the Trust, (b) any preliminary prospectus or prospectus or supplement thereto relating to the
trust securities of the Trust required to be filed pursuant to the 1933 Act, and (c) a Registration
Statement on Form 8-A or other appropriate form (the “1934 Act Registration Statement”), including
all pre-effective and post-effective amendments thereto,
1
relating to the registration of the trust securities of the Trust under the Securities
Exchange Act of 1934, as amended; (ii) if and at such time as determined by Enduro, to file with
the New York Stock Exchange or other exchange, or the Financial Industry Regulatory Authority, Inc.
(“FINRA”), and execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary or desirable to
cause the trust securities of the Trust to be listed on the New York Stock Exchange or such other
exchange, or the NASDAQ Global Market; (iii) to file and execute on behalf of the Trust, such
applications, reports, surety bonds, irrevocable consents, appointments of attorney for service of
process and other papers and documents that shall be necessary or desirable to register the trust
securities of the Trust under the securities or “blue sky” laws of such jurisdictions as Enduro, on
behalf of the Trust, may deem necessary or desirable; (iv) to execute and deliver letters or
documents to, or instruments for filing with, a depository relating to the trust securities of the
Trust; and (v) to execute, deliver and perform on behalf of the Trust an underwriting agreement
with one or more underwriters relating to the offering of the trust securities of the Trust.
In the event that any filing referred to in this Section 4 is required by the rules
and regulations of the Commission, the New York Stock Exchange or other exchange, FINRA, or state
securities or “blue sky” laws to be executed on behalf of the Trust by the Trustees, the Trustees,
in their capacity as trustees of the Trust, are hereby authorized to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing, it being understood that the Trustees,
in their capacity as trustees of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules and regulations of
the Commission, the New York Stock Exchange or other exchange, FINRA, or state securities or “blue
sky” laws; provided, however, that the Trustees in their discretion may resign if they elect not to
join in any such filing or to execute any such document.
5. This Trust Agreement may be executed in two or more counterparts.
6. The number of trustees of the Trust initially shall be two and thereafter the number of
trustees of the Trust shall be such number as shall be fixed from time to time by a written
instrument signed by Enduro which may increase or decrease the number of trustees of the Trust;
provided, however, that to the extent required by the Trust Act, one trustee of the Trust shall
either be a natural person who is a resident of the State of Delaware or, if not a natural person,
an entity that has its principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law. Subject to the foregoing, Enduro is entitled to appoint or remove
without cause any trustee of the Trust at any time. Any trustee of the Trust may resign upon thirty
days’ prior notice to Enduro. In the event of the removal or resignation of the Delaware Trustee
where a successor trustee meeting the requirements of the Trust Act is required, if no such
successor trustee shall have been appointed within 30 days after notice of such removal or
resignation has been given, the Delaware Trustee may, after delivery of written notice to Enduro
and at the expense of Enduro, petition a court of competent jurisdiction for the appointment of a
successor.
7. The Delaware Trustee shall be a Trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807(a) of the Trust Act to have at least one trustee who has its principal
place of business in the State of Delaware.
2
8. The Trustees (as such and in their individual capacities) and their respective officers,
directors, employees, shareholders and agents shall be indemnified and held harmless by Enduro with
respect to any loss, liability, claim, damage, action, suit, tax, penalty, cost, disbursement or
expense of any kind or nature whatsoever (including the reasonable fees and expenses of counsel)
incurred by the Trustees (as such and in their individual capacities) arising out of or incurred in
connection with the acceptance or performance by the Trustees of their respective duties and
obligations contained in this Trust Agreement, the creation, operation, administration or
termination of the Trust or the transactions contemplated hereby; provided, however, that the
Trustees (including their respective officers, directors, employees, shareholders and agents) shall
not be indemnified or held harmless as to any such loss, liability, claim, damage, action, suit,
tax, penalty, cost, disbursement or expense of any kind or nature whatsoever (including the
reasonable fees and expenses of counsel) incurred by reason of their respective willful misconduct,
bad faith or gross negligence. The obligations of Enduro under this Section 8 shall survive
the resignation or removal of the Trustees and the termination of this Trust Agreement.
9. The Trust may be dissolved before the issuance of the trust securities of the Trust at the
election of Enduro. Upon dissolution, the Trustees shall, at the written direction and expense of
Enduro, wind up the Trust and file a certificate of cancellation in accordance with the Trust Act.
Any remaining liabilities or expenses of the Trust shall be paid by Enduro.
10. This Trust Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware (without regard to conflict of laws principles); provided, however, that
there shall not be applicable to the parties hereunder or this 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, (A) the filing with any
court or governmental body or agency of trustee accounts or schedules of trustee fees and charges,
(B) affirmative requirements to post bonds for trustees, officers, agents or employees of a trust,
(C) the necessity for obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (D) fees or other sums payable to trustees,
officers, agents or employees of a trust, (E) the allocation of receipts and expenditures to income
or principal, (F) 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 (G) the establishment of fiduciary or other standards of responsibility
or limitations on the acts or powers of trustees that are inconsistent hereunder as set forth or
referenced in this agreement. Sections 3540 and 3561 of Title 12 of the Delaware Code shall not
apply to the Trust.
[Remainder of page intentionally left blank]
3
IN WITNESS WHEREOF, Enduro, the Delaware Trustee and Issuer Trustee have caused this Agreement
to be duly executed the day and year first above written.
| ENDURO RESOURCE PARTNERS LLC |
||||
| By: | /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | President and Chief Executive Officer | |||
| WILMINGTON TRUST COMPANY |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Financial Services Officer | |||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
[Signature Page to Trust Agreement]