Exhibit 10.4
AMENDMENT TO ASSET PURCHASE
AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE
AGREEMENT (this
“ Amendment ”), dated as of February 20,
2008, is entered into by and among EOG Resources, Inc., a
Delaware corporation, EOG Resources Appalachian LLC, a Delaware
limited liability company, and Energy Search, Incorporated, a
Tennessee corporation (collectively referred to hereinafter as
“ Seller ”), and EXCO Appalachia, Inc., a
Delaware corporation (“ Buyer ”)
. Each capitalized
term used and not otherwise defined herein shall have the meaning
ascribed to it in the APA referred to below.
RECITALS
WHEREAS, Seller and Buyer entered into that
certain Asset Purchase Agreement (the “ APA ”),
dated as of December 7, 2007, whereby, among other matters,
Seller agreed to sell, and Buyer agreed to purchase, accept and pay
for, the Assets and to assume the Assumed Liabilities;
WHEREAS, although Seller has performed in all
material respects all covenants and agreements under
Section 8.1 of the APA regarding Transfer Requirements, Seller
has been unable to obtain, comply with or otherwise satisfy the
Transfer Requirements applicable to the Hydrocarbon Interests and
Incidental Rights described in Exhibit A attached hereto (the
“ Affected Interests ”), Buyer, subject to the
provisions contained herein, desires to close on, pay the portion
of the Purchase Price allocated to and accept delivery of the
assignments and conveyances covering the Affected Interests on the
Closing Date, and Seller, subject to the provisions contained
herein, desires to close on, receive the portion of the Purchase
Price allocated to and deliver the assignments and conveyances
covering the Affected Interests on the Closing Date;
WHEREAS, Seller and Buyer desire to supplement
and amend Schedule A-1 ,
Part II of
Schedule A-1-A ,
Schedule A-2 , Schedule A-4 , Schedule 4.1(f) , Schedule 4.1(t) , Schedule 4.1(u) , Schedule 4.1(cc) and Schedule 4.1(ee) to the APA;
and
WHEREAS, Seller and Buyer desire to enter into
this Amendment to evidence the foregoing in accordance with the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the
foregoing and the mutual promises, covenants, conditions and
agreements herein and in the APA, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound by
the terms hereof, agree as follows:
1.
Affected Interests .
(a)
Seller acknowledges and agrees that it has performed all covenants
and agreements under Section 8.1 of the APA that were required
to be performed by Seller on or before the date hereof in
accordance with the APA in all material respects.
1
(b)
Seller hereby covenants and agrees from and after the Closing Date
to continue to use its commercially reasonable efforts to obtain,
comply with and otherwise satisfy the Transfer Requirements
applicable to the Affected Interests.
(c)
Notwithstanding anything to the contrary contained in the APA and
notwithstanding that the Transfer Requirements applicable to the
Affected Interests have not been obtained, complied with or
otherwise satisfied prior to the date hereof, the Affected
Interests shall be included in the Assets to be transferred and
conveyed from Seller to Buyer on the Closing Date pursuant to the
terms of the Conveyance without any reduction in the Purchase Price
on account thereof. In connection therewith, Buyer hereby
agrees to (a) waive any condition in t
