Exhibit 3.4(b)
LIMITED LIABILITY COMPANY AGREEMENT
OF
ENCORE OPERATING LOUISIANA, LLC
Effective as of July 17, 2003
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS................................................... 1
ARTICLE II FORMATION OF THE COMPANY..................................... 2
2.1 Formation...................................................... 2
2.2 Name........................................................... 2
2.3 Place of Business.............................................. 2
2.4 Registered Office and Registered Agent......................... 2
2.5 Term........................................................... 2
2.6 Permitted Business; Powers..................................... 2
ARTICLE III MEMBER...................................................... 3
3.1 Member......................................................... 3
ARTICLE IV CAPITAL OF THE COMPANY....................................... 3
4.1 Capital Contributions.......................................... 3
4.2 Record of Contributions........................................ 3
4.3 Interest....................................................... 3
4.4 Loans from the Member.......................................... 3
4.5 Loans to Company............................................... 3
4.6 Borrowing...................................................... 3
4.7 No Further Obligation.......................................... 3
ARTICLE V RIGHTS AND OBLIGATIONS OF MEMBER.............................. 4
5.1 Limitation of Member's Responsibility, Liability............... 4
5.2 Return of Distributions........................................ 4
ARTICLE VI MANAGEMENT BY MANAGERS....................................... 4
6.1 Management..................................................... 4
6.2 Meetings....................................................... 4
6.3 Place of Meetings.............................................. 4
6.4 Action by Managers Without a Meeting........................... 4
ARTICLE VII OFFICERS.................................................... 5
7.1 Designation.................................................... 5
7.2 Powers and Duties.............................................. 6
7.3 Vacancies...................................................... 6
7.4 Removal........................................................ 6
ARTICLE VIII INDEMNIFICATION............................................ 6
8.1 Right to Indemnification....................................... 6
8.2 Determination of Eligibility................................... 7
8.3 Advancement of Expenses........................................ 7
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8.4 Indemnification of Employees and Agents........................ 7
8.5 Appearance as a Witness........................................ 7
8.6 Nonexclusivity of Rights....................................... 7
8.7 Insurance...................................................... 7
8.8 Savings Clause................................................. 8
ARTICLE IX ACCOUNTING PERIOD, RECORDS AND REPORTS....................... 8
9.1 Accounting Method.............................................. 8
9.2 Accounting Period.............................................. 8
9.3 Inspection..................................................... 8
9.4 Preparation of Financial Statements............................ 8
ARTICLE X TAX MATTERS................................................... 8
10.1 Tax Returns and Elections...................................... 8
ARTICLE XI DISSOLUTION AND TERMINATION.................................. 8
11.1 Dissolution.................................................... 8
11.2 Effect of Dissolution.......................................... 9
11.3 Winding Up, Liquidating and Distribution of Assets............. 9
11.4 Certificate of Cancellation.................................... 9
ARTICLE XII MISCELLANEOUS............................................... 10
12.1 Notices........................................................ 10
12.2 Application of Delaware Law.................................... 10
12.3 Headings....................................................... 10
12.4 Waivers........................................................ 10
12.5 Rights and Remedies Cumulative................................. 10
12.6 Severability................................................... 10
12.7 Heirs, Successors and Assigns.................................. 10
12.8 Beneficiaries.................................................. 10
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LIMITED LIABILITY COMPANY AGREEMENT
OF ENCORE OPERATING LOUISIANA, LLC
This Limited Liability Company Agreement (this "Agreement") is dated
as of July 17, 2003, by Encore Operating, L.P., a Texas limited partnership.
WHEREAS, on July 17, 2003, a certificate of formation respecting
Encore Operating Louisiana, LLC (the "Company") was filed with the Secretary of
State of the State of Delaware; and
WHEREAS, it is desired that the orderly management of the affairs of
the Company be provided for; and
WHEREAS, this Agreement shall be effective as of the formation of
the Company;
NOW, THEREFORE, it is agreed as follows:
ARTICLE I
DEFINITIONS
The following terms used in this Agreement shall have the following
meanings (unless otherwise expressly provided herein):
"Affiliate," with respect to a specified Person, shall mean a
Person that directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the Person specified. For
purposes of this definition, "control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agreement" shall mean this Agreement as originally executed
and as it may be amended from time to time hereafter.
"Capital Contribution" shall mean any contribution to the
capital of the Company in cash or property by the Member whenever made.
"Certificate of Formation" shall mean the Certificate of
Formation of the Company filed with and endorsed by the Secretary of State of
the State of Delaware, as such certificate may be amended from time to time
hereafter.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, or corresponding provisions of subsequent superseding federal revenue
laws.
"Delaware Act" shall mean the Delaware Limited Liability
Company Act, as the same may be amended from time to time hereafter.
"Entity" shall mean any foreign or domestic general
partnership, limited partnership, limited liability company, corporation, joint
enterprise, trust, business trust, employee benefit plan, cooperative or
association.
"Managers" shall mean the managers appointed by the Member as
provided in Section 6.1.
"Member" shall mean Encore Operating, L.P., a Texas limited
partnership.
"Person" shall mean any individual or Entity, and any heir,
executor, administrator, legal representative, successor or assign of such
"Person" where the context so admits.
ARTICLE II
FORMATION OF THE COMPANY
2.1 Formation. On July 17, 2003, the Certificate of Formation of
the Company was filed with the Secretary of State of the State of Delaware
pursuant to the Delaware Act.
2.2 Name. The name of the Company is Encore Operating Louisiana,
LLC. If the Company shall conduct business in any jurisdiction other than the
State of Delaware, it shall register the Company or its trade name, as
appropriate, with the appropriate authorities in such jurisdiction and take such
other action as may be necessary or appropriate for the legal existence of the
Company to be recognized.
2.3 Place of Business. The Company may locate its places of
business and registered office at any place or places as the Managers may from
time to time deem advisable.
2.4 Registered Office and Registered Agent. The Company's
registered office shall be at the office of its registered agent at Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle,
Delaware, 19801, and the name of its initial registered agent at such address
shall be The Corporation Trust Company.
2.5 Term. The Company shall continue and this Agreement shall
remain in effect until the earliest of (a) such time as all of the Company's
assets have been sold or otherwise disposed of, or (b) such time as the
Company's existence has been terminated as otherwise provided herein or in the
Delaware Act.
2.6 Permitted Business; Powers. The Company may carry on any
lawful business, purpose, or activity that may lawfully be carried on by a
limited liability company organized under the Delaware Act. The Company shall
possess and may exercise all the powers and privileges granted by the Delaware
Act or by any other law or by this Agreement, together
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with any powers incidental thereto, including such powers and privileges as are
necessary or convenient to the conduct of the business, purposes or activities
of the Company.
ARTICLE III
MEMBER
3.1 Member. The name and place of business of the Member is as
follows:
Encore Operating, L.P.
777 Main Street
Suite 1400
Fort Worth, Texas 76102
ARTICLE IV
CAPITAL OF THE COMPANY
4.1 Capital Contributions. The Member shall make an initial
capital contribution to the Company of $1,000. The Member may, but shall not be
required to, make Capital Contributions in the future. Any contributions may be
in the form of cash, securities or tangible assets at the option of the Member.
4.2 Record of Contributions. The books and records of the Company
shall include true and full information regarding the amount of cash and cash
equivalents and a description and statement of the value of any other property
contributed by the Member to the Company.
4.3 Interest. No interest shall be paid by the Company on Capital
Contributions.
4.4 Loans from the Member. Loans by the Member to the Company
shall not be considered Capital Contributions.
4.5 Loans to Company. Nothing in this Agreement shall prevent the
Member from making secured or unsecured loans to the Company by agreement with
the Company.
4.6 Borrowing. In the event that the Company, in order to satisfy
or discharge costs, expenses or indebtedness, requires funds in excess of the
funds provided by Capital Contributions and by revenues, the Managers may (but
shall not be required to), at any time and from time to time, cause the Company
to borrow additional funds the Managers shall deem necessary or appropriate for
such purposes, in such amounts and on such terms as the Managers shall
determine.
4.7 No Further Obligation. Except for the obligation to make the
Capital Contribution required to be made by Section 4.1, the Member shall not
have any obligation to
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provide funds to the Company, whether by Capital Contributions, loans, return of
monies received pursuant to the terms of this Agreement or otherwise.
ARTICLE V
RIGHTS AND OBLIGATIONS OF MEMBER
5.1 Limitation of Member's Responsibility, Liability. The Member
shall not be obligated personally for any debt, obligation or liability of the
Company, whether arising in contract, tort or otherwise, solely by reason of
being a member of the Company.
5.2 Return of Distributions. The Member will be obligated to
return any distribution from the Company only to the extent, and during the
period, such return is required by Section 18-607 of the Delaware Act.
ARTICLE VI
MANAGEMENT BY MANAGERS
6.1 Management. The powers of the Company shall be exercised by or
under the authority of, and the business and affairs of the Company shall be
managed by, its Managers, which shall be appointed by the Member. The Managers
may exercise all such powers of the Company and do all such lawful acts and
things as are not directed or required to be exercised or done by the Member by
the Delaware Act, the Certificate of Formation of the Company or this Agreement.
The number of Managers of the Company shall initially be two; but the number of
Managers may be changed by the Member and any Manager may be removed by the
Member at any time with or without cause. Managers need not be residents of the
State of Delaware or Members of the Company. The Managers, in their discretion,
may (i) elect a chairman of the Managers who shall preside at any meetings of
the Managers and (ii) appoint one or more officers with such power and authority
as the Managers may designate.
6.2 Meetings. Meetings of the Managers, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by any Manager
or by the President, if one has been appointed.
6.3 Place of Meetings. The Managers may designate any place as the
place of meeting. If no designation is made, the meeting shall be held at the
principal offices of the Company.
6.4 Action by Managers Without a Meeting. Unless otherwise
provided in this Agreement and in accordance with the Delaware Act, with respect
to any matter that is to be voted on, consented to or approved by the Managers,
the Managers may take such action without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the actions so taken,
shall be signed by the Managers.
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ARTICLE VII
OFFICERS
7.1 Designation. If the Managers elect to appoint officers, the
officers of the Company may consist of any of the following: a President, any
number of Vice Presidents, a Secretary, any number of Assistant Secretaries, a
Treasurer and any number of Assistant Treasurers, a Controller, and such other
officers as the Managers may designate from time to time. The Managers may
appoint such additional officers or assistant officers as it deems necessary or
advisable. Any number of offices may be held by the same person.
(a) President. The President, if one is appointed, shall be
the chief executive officer of the Company and shall manage the day-to-day
operations of the Company. The President of the Company, subject to the
direction of the Managers, shall have general supervision and control of the
business, affairs and properties of the Company and its general officers. The
President shall possess the power and authority to sign all contracts,
certificates and other instruments of the Company which may be authorized by the
Managers.
(b) Vice President. The several Vice Presidents, if one or
more are appointed, which may include one or more persons designated as Senior
Vice Presidents and one or more persons designated as Executive Vice Presidents,
shall perform such duties and shall have and may exercise such other powers and
authority as from time to time may be assigned to them by the Managers or the
President, including the power and authority to sign contracts, certificates and
other instruments authorized by the Managers.
(c) Secretary. The Secretary, if one is appointed, shall
keep or cause to be kept, at the principal office of the Company, and have
custody of, the books and records of the Company (except such books and records
as are appropriate for the Treasurer to keep), including a record of all
proceedings of, and action by, the Managers and the Member. The Assistant
Secretaries, if any are appointed, shall perform the duties of the Secretary in
the event the Secretary is unable to act.
(d) Treasurer. The Treasurer, if one is appointed, shall
have the custody of the Company's funds and securities (or administer the
holding of funds and securities held by other custodians or depositaries
designated by the Managers), shall keep, or cause to be kept, accounts of
receipts and disbursements in the books belonging to the Company and shall
deposit, or cause to be deposited, all moneys and other valuable effects in the
name and to the credit of the Company with such custodians or depositories as
may be designated by the Managers. He shall disburse the funds of the Company as
may be ordered by the Managers, taking proper vouchers for such disbursements.
The Assistant Treasurers, if any are appointed, shall perform the duties of the
Treasurer in the event the Treasurer is unable to act.
(e) Controller. The Controller, if one is appointed, shall
be the principal accounting officer of the Company and shall maintain the
accounting records of the Company (except to the extent maintained by the
treasurer) and administer the preparation of the Company's financial statements.
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7.2 Powers and Duties. The officers of the Company shall have such
authority and duties as generally pertain to their offices, except as modified
herein or by the Managers. In addition to the duties, powers and authority
enumerated above, each officer shall have and may exercise such additional
duties, powers and authority as may from time to time be assigned or conferred
by the Managers.
7.3 Vacancies. Whenever any vacancies shall occur in any office by
death, resignation or otherwise, a new officer may be appointed by the Managers,
and the new officer shall hold office until such officer's successor is
appointed or until his earlier death, resignation or removal.
7.4 Removal. Any officer may be removed at any time, with or
without cause, by the Managers but such removal shall be without prejudice to
the contract rights, if any, of the person so removed. Appointment as an officer
shall not of itself create contract rights.
ARTICLE VIII
INDEMNIFICATION
8.1 Right to Indemnification. Subject to the limitations and
conditions provided in this Article VIII, each Person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, arbitrative or
investigative, or any appeal in such a proceeding or any inquiry or
investigation that could lead to such a proceeding (any such proceeding, appeal,
inquiry or investigation being hereinafter called a "Proceeding"), by reason of
the fact that such Person (a) is or was the Member or a Manager or is or was
serving as an officer of the Company or (b) while the Member or a Manager or a
Person serving as an officer of the Company is or was serving at the written
request of the Company as a manager, member, director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar official or
functionary of another foreign or domestic limited liability company,
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise, shall be indemnified by the Company to the
fullest extent that would be permitted by the General Corporation Law of the
State of Delaware (the "DGCL") as the same exists or may hereafter be amended
(but in the case of any such amendment, only to the extent that such amendment
provides broader indemnification rights than were provided by the DGCL prior to
such amendment) if the Company were a corporation organized under the DGCL and
the Member or Manager were a director of such a corporation and each such
officer were an officer of such a corporation, against judgments, penalties
(including excise and similar taxes and punitive damages), fines, settlements
and reasonable expenses (including, without limitation, attorneys' fees)
actually incurred by such Person in connection with such Proceeding, and
indemnification under this Article VIII shall continue as to a Person who has
ceased to serve in the capacity which initially entitled such Person to
indemnity hereunder with respect to actions or omissions prior to such cessation
and shall inure to the benefit of the heirs, executors and administrators of
such Person. The rights granted pursuant to this Article VIII shall be deemed
contract rights, and no amendment, modification or repeal of this Article VIII
shall have the effect of limiting or denying any such rights with respect to
actions or omissions or Proceedings arising prior to any
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such amendment, modification or repeal. It is expressly acknowledged that the
indemnification provided in this Article VIII could involve indemnification for
negligence or liabilities under theories of strict liability. Notwithstanding
any other provision of this Article VIII, no Person shall be entitled to
indemnification or advancement of expenses under this Article VIII with respect
to any Proceeding (or any claim in any Proceeding) initiated or made by such
Person without the express prior approval of the Managers. Notwithstanding any
other provision of this Article VIII, and in addition to the other limitations
on indemnification under the DGCL incorporated herein as aforesaid, no Person
shall be entitled to indemnification under this Article VIII against judgments,
penalties, fines, settlements and expenses to the extent they result from
actions or omissions involving gross negligence or willful misconduct on the
part of such Person.
8.2 Determination of Eligibility. To the extent the DGCL requires
a determination as to whether a standard of conduct expressed in Section 145
thereof has been met by a Person or any other determination bearing on whether a
Person is entitled to indemnification, such determination shall be made by the
Managers.
8.3 Advancement of Expenses. A Person who is or was a Member,
Manager or officer of the Company who may be entitled to indemnification under
this Article VIII shall have the right to be paid or reimbursed by the Company
the reasonable expenses (including attorneys' fees) incurred by such Person in
defending a Proceeding in respect of which such indemnity is sought in advance
of the final disposition of the Proceeding, upon written request to the Company
with a written undertaking, by or on behalf of such Person, to repay the amount
so paid or reimbursed if it shall ultimately be determined that such Person is
not entitled to be indemnified under this Article VIII .
8.4 Indemnification of Employees and Agents. The Company, by
action of the Managers, may indemnify and advance expenses to an employee or
agent of the Company who is not an officer of the Company to the same or lesser
extent (subject to the same or more restrictive conditions) as it may indemnify
and advance expenses to the Member, any Manager or any Person serving as an
officer under this Article VIII.
8.5 Appearance as a Witness. Notwithstanding any other provision
of this Article VIII, the Company may pay or reimburse expenses incurred by the
Member, any Manager or any officer in connection with such Member's, Manager's
or officer's appearance as a witness or other participation in a Proceeding at a
time when such Member, Manager or officer is not a named defendant or respondent
in the Proceeding.
8.6 Nonexclusivity of Rights. The right to indemnification and
advancement and payment of expenses conferred in this Article VIII shall not be
exclusive of any other right which the Member, Manager or other Person
indemnified pursuant to Section 8.1 may have or hereafter acquire under any law
(common or statutory), provision of the Certificate of Formation or this
Agreement, agreement, action of the Member or Managers or otherwise.
8.7 Insurance. The Company may purchase and maintain insurance, at
its expense, to protect itself and any Person who is the Member or a Manager or
was serving as an officer, employee or agent of the Company, whether or not the
Company would have the power to indemnify such Person against such expense,
liability or loss under this Article VIII.
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8.8 Savings Clause. If this Article VIII or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Company shall nevertheless indemnify and hold harmless the Member, any
Manager or any other Person indemnified pursuant to this Article VIII as to
costs, charges and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative to the full extent
permitted by any applicable portion of this Article VIII that shall not have
been invalidated and to the fullest extent permitted by applicable law.
ARTICLE IX
ACCOUNTING PERIOD, RECORDS AND REPORTS
9.1 Accounting Method. The books and records of account of the
Company shall be maintained in accordance with any permissible method of
accounting as determined by the Managers or the appropriate officers.
9.2 Accounting Period. The Company's accounting period shall be
the calendar year.
9.3 Inspection. The books and records of the Company shall be
maintained at the principal place of business of the Company and shall be open
to inspection by the Member at all reasonable times during any business day.
9.4 Preparation of Financial Statements. The appropriate officers
shall cause to be prepared from the books of the Company and delivered to the
Member and the Managers such financial statements and reports as the Member
shall from time to time request.
ARTICLE X
TAX MATTERS
10.1 Tax Returns and Elections. The appropriate officers or the
Managers shall cause the preparation and timely filing of all tax returns
required to be filed by the Company pursuant to the Code and all other tax
returns deemed necessary and required in each jurisdiction in which the Company
does business and shall make such elections on behalf of the Company under
applicable tax laws as the Managers or the appropriate officers shall determine.
Copies of such returns, or pertinent information therefrom, shall be furnished
to the Member promptly after filing.
ARTICLE XI
DISSOLUTION AND TERMINATION
11.1 Dissolution. The Company shall dissolve if the Member or the
Managers so determine in writing or as otherwise provided under the Delaware
Act.
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11.2 Effect of Dissolution. Upon dissolution of the Company, the
Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but its separate existence shall continue
until a Certificate of Cancellation has been issued by the Secretary of State or
until a decree dissolving the Company has been entered by a court of competent
jurisdiction.
11.3 Winding Up, Liquidating and Distribution of Assets.
(a) Upon dissolution, an accounting shall be made of the
accounts of the Company and of the Company's assets, liabilities and operations,
from the date of the last previous accounting until the date of dissolution. The
Managers shall immediately proceed to wind up the affairs of the Company.
(b) If the Company is dissolved and its affairs are to be
wound up, the Managers shall (1) sell or otherwise liquidate all of the
Company's assets as promptly as practicable (except to the extent the Managers
determine to distribute any assets in kind to the Member), (2) allocate any
income or loss resulting from such sales to the Member in accordance with this
Agreement, (3) discharge all liabilities to creditors in the order of priority
as provided by law, (4) establish such reserves as the Managers may reasonably
determine to be necessary to provide for contingent liabilities of the Company,
(5) discharge any liabilities of the Company to the Member other than on account
of its interest in Company capital or profits, including all costs relating to
the dissolution, winding up and liquidation and distribution of assets and (6)
distribute the remaining assets to the Member, either in cash or in kind. If any
assets of the Company are to be distributed in kind, the net fair market value
of such assets as of the date of dissolution shall be determined by the Managers
or by independent appraisal.
(c) Notwithstanding anything to the contrary in this
Agreement, upon a liquidation of the Company the Member shall not have any
obligation to make any contribution to the capital of the Company other than any
Capital Contributions the Member agreed to make in accordance with this
Agreement.
(d) Upon completion of the winding up, liquidation and
distribution of the assets, the Company shall be deemed terminated.
(e) The Managers shall comply with any applicable
requirements of applicable law pertaining to the winding up of the affairs of
the Company and the final distribution of its assets.
11.4 Certificate of Cancellation. When all debts, liabilities and
obligations have been paid and discharged or adequate provisions have been made
therefor and all of the remaining property and assets have been distributed to
the Member, a Certificate of Cancellation shall be executed, and verified by the
person signing the Certificate of Cancellation and filed with the Delaware
Secretary of State, which Certificate shall set forth the information required
by the Delaware Act.
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ARTICLE XII
MISCELLANEOUS
12.1 Notices. Any notice, demand or communication required or
permitted to be given by any provision of this Agreement shall be deemed to have
been sufficiently given or served for all purposes if delivered personally to
the party against receipt or to an officer of the party to whom the same is
directed against receipt or if sent by registered or certified mail, postage and
charges prepaid, addressed to the Member's and/or Company's address, as
appropriate, which is set forth in this Agreement. If mailed, any such notice
shall be deemed to be delivered two calendar days after being deposited in the
United States mail with postage thereon prepaid, addressed and sent as
aforesaid.
12.2 Application of Delaware Law. This Agreement shall be governed
by the law of the State of Delaware applicable to agreements as if made and to
be performed wholly within such state (without giving effect to any principles
of conflicts of laws that would refer the same to the laws of another
jurisdiction), and specifically the Delaware Act.
12.3 Headings. The headings of the provisions of this Agreement are
inserted for convenience of reference and are not intended to describe,
interpret, define or limit the scope or intent of this Agreement or any
provision hereof.
12.4 Waivers. No waiver of any right under this Agreement shall be
effective unless evidenced in writing and executed by the Person entitled to the
benefits thereof. The failure of any party to seek redress for violation of or
to insist upon the strict performance of any covenant or condition of this
Agreement shall not prevent another act or omission, which would have originally
constituted a violation, from having the effect of an original violation.
12.5 Rights and Remedies Cumulative. The rights and remedies
provided by this Agreement are cumulative and the use of any one right or remedy
by any party shall not preclude or waive the right to use any or all other
rights or remedies. Said rights and remedies are given in addition to any other
rights the parties may have by law, statute, ordinance or otherwise.
12.6 Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement and the application
thereof shall not be affected and shall be enforceable to the fullest extent
permitted by law.
12.7 Heirs, Successors and Assigns. Each and all of the covenants,
terms, provisions and agreements herein contained shall be binding upon and
inure to the benefit of the parties hereto and, to the extent permitted by this
Agreement, their respective heirs, legal representatives, successors and
assigns.
12.8 Beneficiaries. None of the provisions of this Agreement shall
be for the benefit of or enforceable by any Person other than the Company and
the Member.
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The undersigned, being the sole Member of the Company, hereby
certifies that the foregoing Agreement is the Limited Liability Company
Agreement of the Company, that such Agreement has been duly adopted and is
binding on the Company and its Member, and that such Member agrees to be bound
by the terms of the foregoing Agreement.
EXECUTED to be effective as of the date first above written.
MEMBER:
ENCORE OPERATING, L.P.
a Texas limited partnership
By: EAP Operating, Inc.
By: /s/ MORRIS B. SMITH
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Name:
Title:
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