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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
JUNE 30, 1998
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED)
EXCO RESOURCES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
STATE OF TEXAS 0-9204 74-1492779
(STATE OF INCORPORATION) (COMMISSION FILE NO.) (IRS EMPLOYER
IDENTIFICATION NO.)
5735 PINELAND DRIVE
SUITE 235
DALLAS, TEXAS 75231
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (214) 368-2084
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On June 30, 1998, EXCO Resources, Inc. ("EXCO") completed the acquisition of
certain oil and natural gas properties from J.M. Hill, J.M. Hill, Trustee,
Walter O. Hill, Steve J. Devos, Bart Humphrey and various working interest
owners, in Dawson and Brazos Counties, Texas (the "Dawson County Properties").
The Dawson County Properties include 11 gross (5.3 net) producing wells and 4
gross (1.5 net) saltwater disposal and non-producing wells which may require
recompletions, workovers or abandonment. EXCO assumed operations of all 15 wells
acquired in the transaction. The Dawson County Properties include 645 gross (327
net) developed acres and 627 gross (279 net) undeveloped acres. As of April 1,
1998, the Dawson County Properties were estimated to contain 476,330 barrels of
oil ("Bbls") and 240 million cubic feet ("Mmcf") of gas. The purchase price was
approximately $3.5 million cash paid for using funds available under EXCO's
Credit Facility.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of Business.
The financial statements for the Dawson County Properties are
incorporated herein by reference to the section entitled "Financial
Statements of Businesses Acquired -- Dawson County Properties " in
Pre-effective Amendment No. 2 to Form S-2 filed with the Securities
and Exchange Commission on July 2, 1998.
(b) Pro Forma Financial Information.
The pro forma financial information for the Dawson County Properties
are incorporated herein by reference to the section entitled "Pro
Forma Combined Condensed Financial Statements (unaudited)" in
Pre-effective Amendment No. 2 on Form S-2 filed with the Securities
and Exchange Commission on July 2, 1998.
(c) Exhibits.
10.1 Purchase and Sale Agreement dated June 24, 1998 by and
between Humphrey Oil Interests, L.P. on the one hand, and
EXCO Resources, Inc. on the other.
10.2 Purchase and Sale Agreement dated June 24, 1998 by and
between J.M. Hill Individually and as Trustee, Walter O.
Hill and Steven J. Devos on the one hand and EXCO
Resources, Inc. on the other.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EXCO RESOURCES, INC.
By: /s/ J. DOUGLAS RAMSEY
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Name: J. Douglas Ramsey
Title: Chief Financial Officer
Dated: July 14, 1998
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
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<S> <C>
10.1 Purchase and Sale Agreement dated June 24, 1998 by and between
Humphrey Oil Interests, L.P. on the one hand, and EXCO Resources,
Inc. on the other.
10.2 Purchase and Sale Agreement dated June 24, 1998 by and between
J.M. Hill Individually and as Trustee, Walter O. Hill and Steven
J. Devos on the one hand and EXCO Resources, Inc. on the other.
</TABLE>
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EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
This agreement (this "Agreement") made and entered into this 24th day
of June, 1998, by and between Humphrey Oil Interests, L.P., a Texas Limited
Partnership (referred to in this agreement as "Seller"), and EXCO Resources,
Inc. (referred to in this Agreement as "Buyer"), a Texas corporation, evidences
the agreement of Seller to sell and convey to Buyer, and the agreement of Buyer
to purchase and acquire from Seller, the Subject Properties, as that term is
defined below, upon the terms and conditions set forth below.
1. DEFINITION OF THE SUBJECT PROPERTIES. The following interests,
rights and properties are referred to in this Agreement collectively as the
"Subject Properties":
(a) the working interests and net revenue interests in and to
the oil, gas and mineral leases described on the schedule
attached hereto as Exhibit "A", insofar as such leases cover
the lands and depths described on Exhibit "A", such leases,
insofar as they cover such land, being referred to in this
Assignment collectively as the "Leases" . It is understood
that Seller is retaining a 5% working interest and all royalty
and overriding royalty interests in the Leases;
(b) the working interest set forth on Exhibit "A" as to all
wells located on the Leases (whether producing, non-producing,
shut-in, abandoned or temporarily abandoned and whether oil
wells, gas wells, saltwater disposal wells, injection wells or
water wells), together with all of the personal property and
equipment used or obtained in connection with such well or
wells, including, but not limited to, all casing, pipe,
tubing, rods, separators, well-head and in-hole equipment,
tanks, motors, fixtures and other such personal property and
equipment;
(c) the working interest set forth on Exhibit "A" as to all
permits, licenses, orders, pooling or unitization orders and
agreements, communitization agreements, operating agreements,
exploration agreements, farmin or farmout agreements, letter
agreements, processing, transportation or lease agreements,
and other contracts and agreements which, and only insofar as
the same cover, relate or pertain to the Leases and the wells
described in (b) above;
(d) the working interest set forth on Exhibit "A" as to all
rights-of-way, easements, servitudes, surface leases, treating
facilities, pipelines and gathering systems which cover,
relate or pertain to the Leases and the wells described in (b)
above, or which may be necessary or convenient to be used in
connection therewith; and
2. PURCHASE PRICE. The purchase price ("Purchase Price") payable
to Seller for Seller's interest in the Subject Properties is
$1,037,211.
2.1 ADJUSTMENT. The Purchase Price shall be adjusted prior to
closing by an amount determined as follows:
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(a) The Purchase Price shall be increased by the
following amounts:
(1) The amount of any and all operating expenses
which have been paid by the Seller in
connection with the Subject Properties which
are attributable to work done or materials
supplied on or after April 1, 1998;
(2) The value of any oil in the tanks (above the
pipeline connection) which was produced from
the Subject Properties prior to April 1,
1998. The value of oil in the tanks as of
April 1, 1998 shall be deemed to be the
amount actually received by Seller for such
oil when it was sold.
(b) The Purchase Price shall be decreased by the
following amounts:
(1) Any and all amounts received by Seller which
are attributable to the sale of oil or gas
produced from the Subject Properties on or
after April 1, 1998;
(2) The amount of any and all unpaid operating
expenses pertaining to Seller's interest in
the Subject Properties which are
attributable to work done or materials
supplied prior to April 1, 1998;
(3) An amount equal to 3/12 of the ad valorem
taxes assessed against Seller's interest in
the Subject Properties for the year 1998.
Buyer and Seller agree to cooperate in the determination of the
above-described amounts; provided, however, Buyer's obligation to close the
purchase of the Subject Properties and to pay the Purchase Price shall be
contingent upon reaching an agreement as to such amounts prior to closing.
2.2 POST CLOSING ADJUSTMENT. Buyer and Seller acknowledge that the
adjustment to the Purchase Price described in Paragraph 2.1 above is a
preliminary estimate only and that there may be additional revenues or expenses
discovered after the closing which should have been included in such adjustment.
Therefore, within ninety (90) days after closing (the "Post Closing Date"), the
parties shall make a final determination of the expenses and revenues described
in paragraphs 2.1 (a) and (b) above which are attributable to the Subject
Properties. If it is determined that there were additional revenues or expenses
which were properly includable in the adjustment to the Purchase Price and such
additional revenues or expenses caused an error in the adjustment of the
Purchase Price of more than $5,000.00, the party in whose favor such error was
made agrees to pay the other party an amount equal to the amount of such error
(the "Adjustment Amount").
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2.3 ADJUSTMENT PROCEDURE
(a) At least ten (10) days prior to the Post Closing Date, Buyer
will deliver to Seller, Buyer's proposal for the Adjustment
Amount (the "Adjustment Proposal"). If, prior to the Post Closing
Date, the Company has not given Buyer notice of its objection to
the Adjustment Proposal (such notice must contain a statement of
the basis of Seller's objection), then the Adjustment Proposal
will be used in computing the Adjustment Amount. If Seller gives
such notice of objection, then the issues in dispute will be
submitted to a mutually agreeable firm of independent public
accountants (the "Accountants") or to a mutually agreeable oil
and gas attorney (the "Attorney"), or both for resolution. If
issues in dispute are submitted to the Accountants or Attorney
for resolution, (i) each party will furnish to the Accountants or
Attorney such work papers and other documents and information
relating to the disputed issues as the Accountants or Attorney
may request and are available to that party or its Subsidiaries
(or its independent public accountants), and will be afforded the
opportunity to present to the Accountants or Attorney any
material relating to the determination and to discuss the
determination with the Accountants or Attorney, (ii) the
determination by the Accountants or Attorney, as set forth in a
notice delivered to both parties by the Accountants or Attorney,
will be binding and conclusive on the parties; and (iii) Buyer
and Seller will each bear 50% of the fees of the Accountants or
Attorney for such determination.
(b) On or before the tenth business day following the final
determination of the Adjustment Amount, Buyer or Seller, as the
case may be, shall make a cash payment to the other equal to the
Adjustment Amount.
3. REPRESENTATIONS OF SELLER. Seller, as to the Subject Properties,
represents that:
(a) Since the Effective Date, there has not any material damage,
destruction or loss to or of the Subject Properties not covered
by insurance;
(b) With respect to the oil and gas leases and oil, gas and
mineral leases included within the Subject Properties (the
"Leases"):
(i) except for those leases covering the Reed No. 1 and
Shortes No. 1 wells, the Leases are presently in full
force and effect;
(ii) neither Seller nor, to the knowledge of Seller, any
other party to any of the Leases has given or
threatened to give notice of any action to terminate,
cancel, rescind or procure a judicial reformation of
any of the Leases or any provisions thereof; or
(iii) there are no obligations to engage in continuous
drilling or development operations in order to maintain
any of the Leases in force.
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(c) Subject to the other terms of this Agreement, including
(without limitation) the special warranty of title by Seller
to be contained in the Assignment, Bill of Sale and Conveyance
to be delivered by Seller to Buyer at Closing, Seller
represents that Seller owns the interest(s) in the Subject
Properties shown on Exhibit "A" to this Agreement, free and
clear of any Title Defects.
(d) To the best of Seller's knowledge, there are no
undisclosed actions, suits, charges, investigations or
proceedings pending before any court or agency that would
result in a loss or impairment of Seller's title to any of the
Subject Properties, obstruct operation of the Subject
Properties, or significantly reduce the value of the Subject
Properties.
(e) To the best of Seller's knowledge, each of the Subject
Properties is being operated in compliance with all applicable
laws, rules and regulations of the Railroad Commission of
Texas and any other governmental agency or authority having
jurisdiction.
(f) To the best of Seller's knowledge, there are no agreements
or circumstances which would require Buyer to deliver
hydrocarbons from any of the Subject Properties at some future
time without receiving full payment for such production or
which would require Buyer to make payment at some time for
hydrocarbons already produced and sold from such property.
(g) To the best of Seller's knowledge, Seller is not in
default under any oil, gas and mineral lease comprising a part
of the Subject Properties or any contract or agreement
relating thereto, and the same are in full force and effect.
(h) If a working interest owner has designated Seller as its
representative with respect to the marketing of gas
attributable to any of the Subject Properties, that
designation of representative can be canceled upon no more
than 30 days' written notice by Seller or Seller's successor
in interest.
(i) With respect to the Subject Properties:
(A) Since the dates on which Seller acquired the
Subject Properties, they have been used by
Seller solely for oil and gas operations and
related operations; at no time during this
period have the Subject Properties been used
by Seller, or, to the knowledge of Seller,
by anyone else, for the generation, storage
or disposal of a hazardous substance or as a
landfill or other waste disposal site;
(B) To the knowledge of Seller, there are no
underground storage tanks on any of the
lands within the Subject Properties;
(C) Seller has not entered into and, to the
knowledge of Seller, no predecessor to
Seller has entered into, or is subject to,
any
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agreements, consent orders, decrees, judgments, license
or permit conditions or other directives of
governmental authorities in existence at this time
based on any environmental laws that relate to the
future use of any of the Subject Properties or that
require any change in the present condition of any of
the Subject Properties.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Sellers as follows:
(a) ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of
the State of Texas.
(b) AUTHORITY; NO CONFLICT.
(i) This Agreement constitutes the legal, valid, and
binding obligation of Buyer, enforceable against Buyer
in accordance with its terms. Buyer has the absolute
and unrestricted right, power, and authority to execute
and deliver this Agreement and to perform its
obligations under this Agreement.
(ii) Neither the execution and delivery of this Agreement by
Buyer nor the consummation or performance of any of the
provisions hereof by Buyer will give any Person the
right to prevent, delay, or otherwise interfere with
the the transaction contemplated by this agreement;
(iii) Neither this agreement nor any of the obligations or
liabilities of Buyer hereunder is inconsistent with or
would be in violation of:
(A) any provision of Buyer's Organizational
Documents;
(B) any resolution adopted by the board of
directors or the stockholders of Buyer;
(C) any Legal Requirement or Order to which Buyer
may be subject; or
(D) any Contract to which Buyer is a party or by
which Buyer may be bound.
Buyer is not and will not be required to obtain any Consent from any
Person in connection with the execution and delivery of this Agreement or the
consummation or performance hereof.
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(c) CERTAIN PROCEEDINGS. There is no pending legal proceeding
of any kind or character that has been commenced against Buyer and that
challenges, or may have the effect of preventing, delaying, making illegal, or
otherwise interfering with the transaction contemplated by this agreement. To
Buyer's knowledge, no such proceeding has been threatened.
(d) BROKERS OR FINDERS. Buyer and its officers and agents have
incurred no obligation or liability, contingent or otherwise, for brokerage or
finders' fees or agents' commissions or other similar payment in connection with
this agreement and will indemnify and hold Sellers harmless from any such
payment alleged to be due by or through Buyer as a result of the action of Buyer
or its officers or agents.
5. TITLE; ADJUSTMENTS TO PURCHASE PRICE.
(a) The Purchase Price was determined on the basis that Seller
owns the respective interests in the Subject Properties shown
on Exhibit "A" to this Agreement.
(b) Buyer shall, at Buyer's cost and with due diligence, make
such examination of Seller's title to the Subject Properties
as Buyer may elect to make. Seller will cause the Operator of
each of the Subject Properties to make available at its
offices for Buyer's examination (during normal business hours)
and, if requested, copying (at Buyer's cost), all of such
Operator's lease and title files relating to such property as
presently constituted, and all title opinions, abstracts,
status reports, division orders, leases, assignments,
farmouts, title curative information, correspondence with
mineral/royalty and working interest owners relating to the
property in question, rental records and other information
regarding titles, claims of title, litigation and/or
threatened litigation, well files, conventional cores,
environmental claims or liability, and other material
information or data relating to such property. In addition,
Seller shall promptly furnish Buyer a copy of all gas
contracts, designations of Seller's representative or other
marketing agency agreements, gas transportation and treating
agreements, operating agreements and all amendments to each
relating to the Subject Properties which are still in force or
effect, and schedules showing the status of any "non-consent"
operations and "payout" of same; the status of any gas
balancing, take or pay, or other similar arrangements; and any
over production/under production of allowables relating to the
Subject Properties. Seller shall not be obligated to provide
any title information or materials except those which may be
presently contained in the files of Seller or the respective
Operators of the Subject Properties.
(c) For the purpose of this Agreement, a "Title Defect" shall
mean one (or more) of the following:
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(i) Seller's title as to one or more of the
Subject Properties is subject to an
outstanding deed of trust, judgment lien,
lis pendens notice, litigation, other lien,
or adverse claim which will survive the
Closing.
(ii) Seller's interest in the Subject Properties
is subject to reduction because of a
reversionary, back-in, net profits interest,
production payment, or similar right,
provision or condition which is not
disclosed in the agreements described or
referred to on Exhibit "A" to this Agreement
that would reduce Buyer's interest or
obligate Buyer to make any retroactive or
future payment or expenditure to maintain
such interest or avoid damages or liability;
provided, however, that the existence of the
operating agreements and the farmout
agreements described or referred to on
Exhibit "B" to this Agreement shall not be
considered a Title Defect.
(d) At least twenty-four (24) hours prior to Closing (the
"Notice Date"), Buyer will notify Seller in writing (whether
by mail, personal delivery or facsimile transmission) of any
Title Defect(s) which Buyer, in good faith, believes exist(s)
in Seller's title to one or more of the Subject Properties
including with such notice any attorney's written opinion on
title expressing the objection(s) upon which such claim of
Title Defect(s) is (are) based, and specifying what is
required to cure the same.
(e) If Buyer timely delivers to Seller notice(s) of Title
Defect(s), Seller (and/or Buyer) shall have until Closing (the
"Cure Period") within which to cure such Title Defect(s) and
furnish Buyer evidence thereof reasonably satisfactory to
Buyer. If Seller (or Buyer) is unable to cure the Title
Defect(s) within the Cure Period, and the parties do not agree
in writing to an extension of the Cure Period, Buyer shall
have the right to terminate this Agreement by giving written
notice of such termination to Seller at Closing, or any
extension thereof, or Buyer may waive such Title Defect(s) and
close the purchase and sale transaction contemplated by this
Agreement, in which event Seller will (provided the Title
Defect(s) being waived arose by, through or under Seller)
agree to indemnify Buyer against any loss, claim or damage
actually sustained by Buyer due to such Title Defect(s).
(f) Seller and Buyer will mutually cooperate in attempting to
cure any title Defect(s) relating to Sellers' title to the
Subject Properties.
6. ENVIRONMENTAL REVIEW. Buyer shall have until the Notice Date to
examine, test, evaluate, and otherwise conduct an environmental investigation of
the Subject Properties for actual and potential environmental damage or
liability, if any. On the Notice Date, Buyer will advise Seller of the results
thereof. If the Environmental Review by Buyer reflects a material reduction in
the value of the Subject Properties, Buyer shall have the option to either
terminate this Agreement without penalty or waive the requirement or condition
which caused
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such termination right to exist. Any actual or potential environmental damages,
or liability shall be of such nature, extent or consequence, that under current
statutes or regulations regarding such matters, any reasonable, prudent person
would regard it as a material potential environmental damage or liability. Buyer
may exercise such option to terminate, if applicable, at or before Closing.
7. CLOSING. The purchase and sale transaction described in and
contemplated by this Agreement shall take place on Wednesday, June 24, 1998, at
2:00 p.m. Dallas, Texas time, but in any event not later than June 26, 1998.
Closing shall take place in the office of Buyer at 5735 Pineland, Suite 235,
Dallas, Texas 75231, or at such other place and time agreed upon between Buyer
and Seller. The Effective Date of the purchase and sale contemplated by this
Agreement shall be at 7 a.m. on the first day of April, 1998. At Closing:
(a) Buyer shall deliver to Seller the Purchase Price by wire
transfer, certified or cashier's check or other immediately
available funds.
(b) Seller, shall concurrently deliver to Buyer (i) one or
more properly executed and acknowledged Assignments,
Conveyances and Bills of Sale effective to convey to Buyer the
interest of Seller in the Subject Properties. Such instruments
shall be in form mutually acceptable to Seller and Buyer and
shall contain the ususal and customary provisions generally
found in similar documents, including the pertinent provisions
contained in this Agreement. Such Assignments, Conveyances and
Bills of Sale shall be subject to this Agreement and the
operating agreements now in effect covering the Leases.
8. CONDITIONS TO OBLIGATIONS OF BUYER AT CLOSING. The obligations
of Buyer to purchase the Subject Properties under and pursuant to this Agreement
is subject to the satisfaction, at or before Closing, of the following
conditions:
(a) Compliance; Accuracy of Representations. Except as
otherwise provided in this Agreement, Seller shall have
performed, satisfied, and complied in all material respects
with all covenants, agreements, and conditions required by
this Agreement to be performed, satisfied, or complied with by
it on or before the Closing, and all representations and
warranties of Seller in this Agreement shall be true and
correct on and as of the Closing Date with the same force and
effect as though they had been made on the Closing Date.
(b) No Orders or Lawsuits. No order, writ, injunction, or
decree shall have been entered and be in effect by any court
of competent jurisdiction or any Governmental Authority, and
no Law shall have been promulgated or enacted and be in
effect, that restrains, enjoins, or invalidates the
transactions contemplated hereby. No Proceeding initiated by a
third party shall be pending before any court or Governmental
Authority seeking to restrain or prohibit or declare illegal,
or seeking substantial damages in connection with, the
transactions contemplated by this Agreement.
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(c) No Material Adverse Change. Since the date of this
Agreement, there shall not have been a Material Adverse
Effect. The term "Material Adverse Effect" shall mean any
circumstance, change, development, or event which has had or
is reasonably expected to have a material adverse effect on
the Subject Properties or the operations, revenues, or
prospects with respect thereto; provided that the term
"Material Adverse Effect" shall not include changes in general
economic, industry, or market conditions, or changes in law,
environmental law, or any Governmental Authority's policy,
orders, or opinions.
(d) Conveyance Documents. Seller shall have duly executed and
delivered to Buyer the conveyance documents described in this
Agreement.
(e) Due Diligence. Buyer shall have satisfactorily completed
its due diligence inquiries prior to the Notice Date.
(f) Third Party and Governmental Consents. Seller shall have
obtained all third party and governmental consents or waivers
necessary to consummate the transactions contemplated by this
Agreement in form and substance reasonably satisfactory to
Buyer.
(g) Seller shall present to Buyer a fully executed release (in
a form acceptable to Buyer) of any and all liens of any kind
or character pertaining to Seller's interest in the
Properties.
9. INDEMNITIES AND ASSUMPTION OF LIABILITIES. For a period of one
(1) years from and after Closing, Seller agrees to indemnify and hold Buyer
harmless from all actions, damages, liabilities, claims and expenses (including
reasonable attorney's fees) arising out of or relating to any act or omission by
Seller with respect to its interest in the Subject Properties occurring prior to
the Effective Date, and for any liability and damages caused by Sellers'
negligence or breach of this Agreement prior to Closing.
Buyer agrees to indemnify and hold Seller harmless against and from all
actions, damages, liabilities, claims, and expenses (including reasonable
attorney's fees) arising out of or relating to the Subject Properties during the
time from and after the Effective Date and for all acts or omissions occurring
from and after the Effective Date, and for any liability and damages caused by
Buyer's negligence or breach of this Agreement prior to Closing.
Seller, as to its interest in the Subject Properties, shall remain
responsible for all claims relating to the drilling, operations, production and
sale of hydrocarbons from the Subject Properties and the proper accounting and
payment by Seller to parties for their interests therein, and any retroactive
payment, refunds or penalties to any party or entity relating thereto, insofar
as such claims relate to occurrences and periods of time prior to the Effective
Date, and Seller shall defend, indemnify and hold Buyer harmless from all such
claims. Buyer shall be responsible for all of said types of claims insofar as
they relate to occurrences and periods of time from and after the Effective
Date.
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All proceeds from the sale of production actually sold and
delivered by Seller prior to the Effective Date and attributable to its interest
in the Subject Properties shall belong to and be retained by Seller, and all
proceeds from the sale of production actually sold and delivered after the
Effective Date attributable to the Subject Properties shall belong to and be the
property of Buyer.
10. PRORATION OF TAXES. Ad valorem, property, production,
severance, excise, and similar taxes relating to the Subject Properties shall be
prorated as of the Effective Date. Seller shall be responsible for all such
items relating to the period of time prior to the Effective Date and Buyer shall
be responsible for all such items occurring after the Effective Date.
11. FURTHER ASSURANCES. Each party shall execute and deliver to
the other such further instruments, and take such other actions reasonably
necessary to carry out the intent of this Agreement. Seller agrees to execute
appropriate transfer orders or letters in lieu of transfer orders effective on
the Effective Date.
12. LOSS. Any loss to the wells located on the Subject Properties
between the execution of this Agreement and the date of Closing, resulting from
fire, lightning, storm, or other casualty or from negligence of Sellers, their
operator, agents or employees, or breach of this Agreement by Seller, shall be
borne by Seller, and if there is substantial damage to such wells, Buyer shall
have the option to terminate this Agreement upon written notice to Seller.
13. DATA DELIVERY. At Closing, Seller shall deliver copies to
Buyer (at Buyer's expense) all of Seller's lease, title, well, Railroad
Commission files, all relevant maps, and all other files, records, materials and
information relating to the Subject Properties (save and except information of
any interpretive or proprietary nature) including, but not limited to, well logs
and well records, and filings with appropriate governmental authorities.
14. CONFIDENTIALITY. All data furnished to Buyer by Seller will be
on a confidential basis. Buyer will not remove any data from Seller's office
without Seller's permission. In the event Buyer does not acquire the Subject
Properties for any reason, Buyer shall return all data so removed and all copies
to Seller.
15. PROHIBITED ACTIONS. Prior to Closing, Seller shall not,
without Buyer's prior written consent:
(a) dispose of or make any changes to the Subject Properties;
or
(b) incur any liabilities, encumbrances or liens in respect to
the Subject Properties which are not in the ordinary course of
operations.
16. EXPENSES. Each party shall pay the fees and expenses of its
own counsel and accountants incurred in connection with this transaction.
17. BROKERS. Each party represents that to the best of its
knowledge and belief, no outside parties have participated in the negotiation of
this transaction on behalf of either party,
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and no firm or person shall be entitled to any finder's or broker's fee with
respect to the transaction contemplated by this Agreement.
18. INCORPORATION OF EXHIBITS. All exhibits to this Agreement
constitute an integral part of and are incorporated in this Agreement.
19. LAW. Texas law shall govern the rights and obligations of the
parties under this Agreement.
20. CERTAIN DEFINITIONAL PROVISIONS.
(a) The words "hereof," "herein" and "hereunder," and words of
similar import, when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision
of this Agreement.
(b) The terms defined in the singular shall have a comparable
meaning when used in the plural and vice versa.
(c) Whenever a statement is qualified by the term "knowledge,"
"best knowledge," or similar term or phrase, it is intended to
indicate that the person or party to whom or to which such
phrase is attributed, in the exercise of good faith, is not
aware of acts, omissions, or facts which would render the
statement or representation being made with such "knowledge"
or "best knowledge," or similar terms or phrase, untrue in any
material respect.
(d) Pronouns denoting gender shall include the neutral pronoun
"it" or the possessive case thereof and vice versa.
21. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed to have been given if
delivered in person or by facsimile transmission (FAX) or when deposited with
the United States Postal Service registered or certified mail, return receipt
requested, postage prepaid, addressed to the party to receive such notice at the
address set forth below:
If to Seller:
Humphrey Oil Interests, L.P.
Attn: Charles B. Humphrey
3500 Oak Lawn, Suite 590
Dallas, Texas 75219
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<PAGE> 12
If to Buyer:
EXCO Resources, Inc.
Attention: Richard E. Miller
Suite 235
5735 Pineland
Dallas, Texas 75231
22. JURISDICTION; SERVICE OF PROCESS. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in the courts of the State
of Texas, County of Dallas, and each of the parties consents to the jurisdiction
of such courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any action
or proceeding referred to in the preceding sentence may be served on any party
anywhere in the world.
23. FURTHER ASSURANCES. The parties agree (a) to furnish upon
request to each other such further information, (b) to execute and deliver to
each other such other documents, and (c) to do such other acts and things, all
as the other party may reasonably request for the purpose of carrying out the
intent of this Agreement and the documents referred to in this Agreement.
24. WAIVER. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by any party in exercising any right, power, or privilege under this Agreement
or the documents referred to in this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or privilege. To
the maximum extent permitted by applicable law, (a) no claim or right arising
out of this Agreement or the documents referred to in this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of the
claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for
which it is given; and (c) no notice to or demand on one party will be deemed to
be a waiver of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this Agreement.
25. ENTIRE AGREEMENT AND MODIFICATION. This Agreement inclusive of
all Agreements herein referenced supersedes all prior agreements between the
parties with respect to its subject matter and constitutes (along with the
documents referred to in this Agreement) a complete and exclusive statement of
the terms of the agreement between the parties with respect to its subject
matter. This Agreement may not be amended except by a written agreement executed
by the party to be charged with the amendment.
26. ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. None of
the parties may assign any of their rights under this Agreement without the
prior consent of the
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<PAGE> 13
other parties, which will not be unreasonably withheld, except that Buyer may
assign any of its rights under this Agreement to any Subsidiary of Buyer.
Subject to the preceding sentence, this Agreement will apply to, be binding in
all respects upon, and inure to the benefit of the successors and permitted
assigns of the parties. Nothing expressed or referred to in this Agreement will
be construed to give any Person other than the parties to this Agreement any
legal or equitable right, remedy, or claim under or with respect to this
Agreement or any provision of this Agreement. This Agreement and all of its
provisions and conditions are for the sole and exclusive benefit of the parties
to this Agreement and their successors and assigns.
27. SEVERABILITY. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
28. PARAGRAPH HEADINGS, CONSTRUCTION. The headings of Paragraphs
in this Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to "Paragraph" or "Paragraphs"
refer to the corresponding Paragraph or Paragraphs of this Agreement. All words
used in this Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the word "including"
does not limit the preceding words or terms.
29. TIME OF ESSENCE. With regard to all dates and time periods set
forth or referred-to in this Agreement, time is of the essence.
30. GOVERNING LAW. This Agreement will be governed by the laws of
the State of Texas.
31. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
SELLER:
Humphrey Oil Interests, L.P., by
Humphrey Oil Corporation, its
General Partner
By: /s/ CHARLES B. HUMPHREY
------------------------------------
Charles B. Humphrey - President
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<PAGE> 14
BUYER:
EXCO RESOURCES, INC.
By: /s/ CHARLES EVANS
------------------------------------
Charles Evans
Vice-President
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<PAGE> 1
EXHIBIT 10.2
PURCHASE AND SALE AGREEMENT
This agreement (this "Agreement") made and entered into this 24th day
of June, 1998, by and between J. M. Hill, Individually and as Trustee, Walter O.
Hill and Steven J. Devos (referred to in this agreement collectively as
"Seller"), and EXCO Resources, Inc. (referred to in this Agreement as "Buyer"),
a Texas corporation, evidences the agreement of Seller to sell and convey to
Buyer, and the agreement of Buyer to purchase and acquire from Seller, the
Subject Properties, as that term is defined below, upon the terms and conditions
set forth below.
1. DEFINITION OF THE SUBJECT PROPERTIES. The following
interests, rights and properties are referred to in this Agreement collectively
as the "Subject Properties":
(a) the working interests and net revenue interests in and to
the oil, gas and mineral leases described on the schedule
attached hereto as Exhibit "A", insofar as such leases cover
the lands and depths described on Exhibit "A", such leases,
insofar as they cover such land, being referred to in this
Assignment collectively as the "Leases";
(b) all wells located on the Leases (whether producing,
non-producing, shut-in, abandoned or temporarily abandoned and
whether oil wells, gas wells, saltwater disposal wells,
injection wells or water wells), together with all of the
personal property and equipment used or obtained in connection
with such well or wells, including, but not limited to, all
casing, pipe, tubing, rods, separators, well-head and in-hole
equipment, tanks, motors, fixtures and other such personal
property and equipment;
(c) all permits, licenses, orders, pooling or unitization
orders and agreements, communitization agreements, operating
agreements, exploration agreements, farmin or farmout
agreements, letter agreements, processing, transportation or
lease agreements, and other contracts and agreements which,
and only insofar as the same cover, relate or pertain to the
Leases and the wells described in (b) above;
(d) all rights-of-way, easements, servitudes, surface leases,
treating facilities, pipelines and gathering systems which
cover, relate or pertain to the Leases and the wells described
in (b) above, or which may be necessary or convenient to be
used in connection therewith; and
2. PURCHASE PRICE. The purchase price ("Purchase Price") payable
to Seller for Seller's interest in the Subject Properties is
$1,350,000.
2.1 ADJUSTMENT. The Purchase Price shall be adjusted
prior to closing by an amount determined as follows:
(a) The Purchase Price shall be increased by the
following amounts:
<PAGE> 2
(1) The amount of any and all operating
expenses (excluding overhead
charges) which have been paid by the
Seller in connection with the
Subject Properties which are
attributable to work done or
materials supplied on or after April
1, 1998;
(2) The value of any oil in the tanks
(above the pipeline connection)
which was produced from the Subject
Properties prior to April 1, 1998.
The value of oil in the tanks as of
April 1, 1998 shall be deemed to be
the amount actually received by
Seller for such oil when it was
sold.
(b) The Purchase Price shall be decreased by the
following amounts:
(1) Any and all amounts received by
Seller which are attributable to the
sale of oil or gas produced from the
Subject Properties on or after April
1, 1998;
(2) The amount of any and all unpaid
operating expenses pertaining to
Seller's interest in the Subject
Properties which are attributable to
work done or materials supplied
prior to April 1, 1998;
(3) An amount equal to 3/12 of the ad
valorem taxes assessed against
Seller's interest in the Subject
Properties for the year 1998.
Buyer and Seller agree to cooperate in the determination of the
above-described amounts; provided, however, Buyer's obligation to close the
purchase of the Subject Properties and to pay the Purchase Price shall be
contingent upon reaching an agreement as to such amounts prior to closing.
2.2 POST CLOSING ADJUSTMENT. Buyer and Seller acknowledge that the
adjustment to the Purchase Price described in Paragraph 2.1 above is a
preliminary estimate only and that there may be additional revenues or expenses
discovered after the closing which should have been included in such adjustment.
Therefore, within ninety (90) days after closing (the "Post Closing Date"), the
parties shall make a final determination of the expenses and revenues described
in paragraphs 2.1 (a) and (b) above which are attributable to the Subject
Properties. If it is determined that there were additional revenues or expenses
which were properly includable in the adjustment to the Purchase Price and such
additional revenues or expenses caused an error in the adjustment of the
Purchase Price of more than $5,000.00, the party in whose favor such error was
made agrees to pay the other party an amount equal to the amount of such error
(the "Adjustment Amount").
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<PAGE> 3
2.3 ADJUSTMENT PROCEDURE
(a) At least ten (10) days prior to the Post Closing Date,
Buyer will deliver to Seller, Buyer's proposal for the
Adjustment Amount (the "Adjustment Proposal"). If, prior to
the Post Closing Date, the Company has not given Buyer notice
of its objection to the Adjustment Proposal (such notice must
contain a statement of the basis of Seller's objection), then
the Adjustment Proposal will be used in computing the
Adjustment Amount. If Seller gives such notice of objection,
then the issues in dispute will be submitted to a mutually
agreeable firm of independent public accountants (the
"Accountants") or to a mutually agreeable oil and gas attorney
(the "Attorney"), or both for resolution. If issues in dispute
are submitted to the Accountants or Attorney for resolution,
(i) each party will furnish to the Accountants or Attorney
such work papers and other documents and information relating
to the disputed issues as the Accountants or Attorney may
request and are available to that party or its Subsidiaries
(or its independent public accountants), and will be afforded
the opportunity to present to the Accountants or Attorney any
material relating to the determination and to discuss the
determination with the Accountants or Attorney, (ii) the
determination by the Accountants or Attorney, as set forth in
a notice delivered to both parties by the Accountants or
Attorney, will be binding and conclusive on the parties; and
(iii) Buyer and Seller will each bear 50% of the fees of the
Accountants or Attorney for such determination.
(b) On or before the tenth business day following the final
determination of the Adjustment Amount, Buyer or Seller, as
the case may be, shall make a cash payment to the other equal
to the Adjustment Amount.
3. REPRESENTATIONS OF SELLER. Seller, as to the Subject
Properties, represents that:
(a) Since the Effective Date, there has not any material
damage, destruction or loss to or of the Subject Properties
not covered by insurance;
(b) With respect to the oil and gas leases and oil, gas
and mineral leases included within the Subject Properties (the
"Leases"):
(i) except for those leases covering the Reed
No. 1 well, the Leases are presently in full
force and effect;
(ii) neither Seller nor, to the knowledge of
Seller, any other party to any of the Leases
has given or threatened to give notice of
any action to terminate, cancel, rescind or
procure a judicial reformation of any of the
Leases or any provisions thereof; or
(iii) there are no obligations to engage in
continuous drilling or development
operations in order to maintain any of the
Leases in force.
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<PAGE> 4
(c) Subject to the other terms of this Agreement, including
(without limitation) the special warranty of title by Seller
to be contained in the Assignment, Bill of Sale and Conveyance
to be delivered by Seller to Buyer at Closing, Seller
represents that Seller owns the interest(s) in the Subject
Properties shown on Exhibit "A" to this Agreement, free and
clear of any Title Defects (arising by, through or under.
(d) To the best of Seller's knowledge, there are no
undisclosed actions, suits, charges, investigations or
proceedings pending before any court or agency that would
result in a loss or impairment of Seller's title to any of the
Subject Properties, obstruct operation of the Subject
Properties, or significantly reduce the value of the Subject
Properties.
(e) To the best of Seller's knowledge, each of the Subject
Properties is being operated in compliance with all applicable
laws, rules and regulations of the Railroad Commission of
Texas and any other governmental agency or authority having
jurisdiction.
(f) To the best of Seller's knowledge, there are no agreements
or circumstances which would require Buyer to deliver
hydrocarbons from any of the Subject Properties at some future
time without receiving full payment for such production or
which would require Buyer to make payment at some time for
hydrocarbons already produced and sold from such property.
(g) To the best of Seller's knowledge, Seller is not in
default under any oil, gas and mineral lease comprising a part
of the Subject Properties or any contract or agreement
relating thereto, and the same are in full force and effect.
(h) If a working interest owner has designated Seller as its
representative with respect to the marketing of gas
attributable to any of the Subject Properties, that
designation of representative can be canceled upon no more
than 30 days' written notice by Seller or Seller's successor
in interest.
(i) With respect to the Subject Properties:
(i) Since the dates on which Seller acquired the
Subject Properties, they have been used by
Seller solely for oil and gas operations and
related operations; at no time during this
period have the Subject Properties been used
by Seller, or, to the knowledge of Seller,
by anyone else, for the generation, storage
or disposal of a hazardous substance or as a
landfill or other waste disposal site;
(ii) To the knowledge of Seller, there are no
underground storage tanks on any of the
lands within the Subject Properties;
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<PAGE> 5
(iii) Seller has not entered into and, to the
knowledge of Seller, no predecessor to
Seller has entered into, or is subject to,
any agreements, consent orders, decrees,
judgments, license or permit conditions or
other directives of governmental authorities
in existence at this time based on any
environmental laws that relate to the future
use of any of the Subject Properties or that
require any change in the present condition
of any of the Subject Properties.
(j) Except for the following two contracts, Seller has not
entered into any contractual relationships with third parties
regarding the properties which will survive the closing:
(i) Electricity contract with Lynterguard
Electric Company; and
(ii) Rental tool agreement with AT&T Rental Tools
(not to exceed $400 per month or 24 months
in duration).
5. TITLE; ADJUSTMENTS TO PURCHASE PRICE.
(a) The Purchase Price was determined on the basis that Seller
owns the respective interests in the Subject Properties shown
on Exhibit "A" to this Agreement.
(b) Buyer shall, at Buyer's cost and with due diligence, make
such examination of Seller's title to the Subject Properties
as Buyer may elect to make. Seller will cause the Operator of
each of the Subject Properties to make available at its
offices for Buyer's examination (during normal business hours)
and, if requested, copying (at Buyer's cost), all of such
Operator's lease and title files relating to such property as
presently constituted, and all title opinions, abstracts,
status reports, division orders, leases, assignments,
farmouts, title curative information, correspondence with
mineral/royalty and working interest owners relating to the
property in question, rental records and other information
regarding titles, claims of title, litigation and/or
threatened litigation, well files, conventional cores,
environmental claims or liability, and other material
information or data relating to such property. In addition,
Seller shall promptly furnish Buyer a copy of all gas
contracts, designations of Seller's representative or other
marketing agency agreements, gas transportation and treating
agreements, operating agreements and all amendments to each
relating to the Subject Properties which are still in force
or effect, and schedules showing the status of any
"non-consent" operations and "payout" of same; the status of
any gas balancing, take or pay, or other similar arrangements;
and any over production/under production of allowables
relating to the Subject Properties. Seller shall not be
obligated to provide any title information or materials except
those which may be presently contained in the files of Seller
or the respective Operators of the Subject Properties.
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<PAGE> 6
(c) For the purpose of this Agreement, a "Title Defect" shall
mean one (or more) of the following:
(i) Seller's title as to one or more of the
Subject Properties is subject to an
outstanding deed of trust, judgment lien,
lis pendens notice, litigation, other lien,
or adverse claim which will survive the
Closing.
(ii) Seller's interest in the Subject Properties
is subject to reduction because of a
reversionary, back-in, net profits interest,
production payment, or similar right,
provision or condition which is not
disclosed in the agreements described or
referred to on Exhibit "A" to this Agreement
that would reduce Buyer's interest or
obligate Buyer to make any retroactive or
future payment or expenditure to maintain
such interest or avoid damages or liability;
provided, however, that the existence of the
operating agreements and the farmout
agreements described or referred to on
Exhibit "B" to this Agreement shall not be
considered a Title Defect.
(d) At least twenty-four (24) hours prior to Closing (the
"Notice Date"), Buyer will notify Seller in writing (whether
by mail, personal delivery or facsimile transmission) of any
Title Defect(s) which Buyer, in good faith, believes exist(s)
in Seller's title to one or more of the Subject Properties
including with such notice any attorney's written opinion on
title expressing the objection(s) upon which such claim of
Title Defect(s) is (are) based, and specifying what is
required to cure the same.
(e) If Buyer timely delivers to Seller notice(s) of Title
Defect(s), Seller (and/or Buyer) shall have until Closing (the
"Cure Period") within which to cure such Title Defect(s) and
furnish Buyer evidence thereof reasonably satisfactory to
Buyer. If Seller (or Buyer) is unable to cure the Title
Defect(s) within the Cure Period, and the parties do not agree
in writing to an extension of the Cure Period, Buyer shall
have the right to terminate this Agreement by giving written
notice of such termination to Seller at Closing, or any
extension thereof, or Buyer may waive such Title Defect(s) and
close the purchase and sale transaction contemplated by this
Agreement, in which event Seller will (provided the Title
Defect(s) being waived arose by, through or under Seller)
agree to indemnify Buyer against any loss, claim or damage
actually sustained by Buyer due to such Title Defect(s).
(f) Seller and Buyer will mutually cooperate in attempting to
cure any title Defect(s) relating to Sellers' title to the
Subject Properties.
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<PAGE> 7
6. ENVIRONMENTAL REVIEW. Buyer shall have until the Notice Date
to examine, test, evaluate, and otherwise conduct an environmental investigation
of the Subject Properties for actual and potential environmental damage or
liability, if any. On the Notice Date, Buyer will advise Seller of the results
thereof. If the Environmental Review by Buyer reflects a material reduction in
the value of the Subject Properties, Buyer shall have the option to either
terminate this Agreement without penalty or waive the requirement or condition
which caused such termination right to exist. Any actual or potential
environmental damages, or liability shall be of such nature, extent or
consequence, that under current statutes or regulations regarding such matters,
any reasonable, prudent person would regard it as a material potential
environmental damage or liability. Buyer may exercise such option to terminate,
if applicable, at or before Closing.
7. CLOSING. The purchase and sale transaction described in and
contemplated by this Agreement shall take place on Friday, June 26, 1998, at 10
a.m., Dallas, Texas time. Closing shall take place in the office of Buyer at
5735 Pineland, Suite 235, Dallas, Texas 75231, or at such other place and time
agreed upon between Buyer and Seller. The Effective Date of the purchase and
sale contemplated by this Agreement shall be at 7 a.m. on the first day of
April, 1998. At Closing:
(a) Buyer shall deliver to Seller the Purchase Price by wire
transfer, certified or cashier's check or other immediately
available funds.
(b) Seller, shall concurrently deliver to Buyer (i) one or
more properly executed and acknowledged Assignments,
Conveyances and Bills of Sale effective to convey to Buyer the
interest of Seller in the Subject Properties. Such instruments
shall be in form mutually acceptable to Seller and Buyer and
shall contain the usual and customary provisions generally
found in similar documents, including the pertinent provisions
contained in this Agreement. Such Assignments, Conveyances and
Bills of Sale shall be subject to this Agreement and the
operating agreements now in effect covering the Leases.
8. CONDITIONS TO OBLIGATIONS OF BUYER AT CLOSING. The obligations
of Buyer to purchase the Subject Properties under and pursuant to this Agreement
is subject to the satisfaction, at or before Closing, of the following
conditions:
(a) Compliance; Accuracy of Representations. Except as
otherwise provided in this Agreement, Seller shall have
performed, satisfied, and complied in all material respects
with all covenants, agreements, and conditions required by
this Agreement to be performed, satisfied, or complied with by
it on or before the Closing, and all representations and
warranties of Seller in this Agreement shall be true and
correct on and as of the Closing Date with the same force and
effect as though they had been made on the Closing Date.
(b) No Orders or Lawsuits. No order, writ, injunction, or
decree shall have been entered and be in effect by any court
of competent jurisdiction or any Governmental Authority, and
no Law shall have been promulgated or enacted and
7
<PAGE> 8
be in effect, that restrains, enjoins, or invalidates the
transactions contemplated hereby. No Proceeding initiated by a
third party shall be pending before any court or Governmental
Authority seeking to restrain or prohibit or declare illegal,
or seeking substantial damages in connection with, the
transactions contemplated by this Agreement.
(c) No Material Adverse Change. Since the date of this
Agreement, there shall not have been a Material Adverse
Effect. The term "Material Adverse Effect" shall mean any
circumstance, change, development, or event which has had or
is reasonably expected to have a material adverse effect on
the Subject Properties or the operations, revenues, or
prospects with respect thereto; provided that the term
"Material Adverse Effect" shall not include changes in general
economic, industry, or market conditions, or changes in law,
environmental law, or any Governmental Authority's policy,
orders, or opinions.
(d) Conveyance Documents. Seller shall have duly executed and
delivered to Buyer the conveyance documents described in this
Agreement.
(e) Due Diligence. Buyer shall have satisfactorily completed
its due diligence inquiries prior to the Notice Date.
(f) Third Party and Governmental Consents. Seller shall have
obtained all third party and governmental consents or waivers
necessary to consummate the transactions contemplated by this
Agreement in form and substance reasonably satisfactory to
Buyer.
(g) Operations. Seller shall have obtained written consent for
Buyer to become operator from the owner's of at least 51% of
the working interest and secure the execution of Railroad
Commission of Texas forms P-4 by HPC Operating, Inc.,
installing Buyer as the operator of the following wells:
Brown No. 1
Hamil No. 1
Hamil "A" No. 1
Hamil "B" No. 1
Hamil "C" No. 1
Horne No. 1
Kidd No. 1-A
Reed No. 1
Shortes No. 1
M. L. Snell Nos. 1, 2, 3 and 4
Brocksmith-Keller No. 1
Fuhrman No. 1 Salt Water Disposal Well
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<PAGE> 9
(h) Seller shall present to Buyer a fully executed release (in
a form acceptable to Buyer) of any and all liens of any kind
or character pertaining to Seller's interest in the
Properties.
9. INDEMNITIES AND ASSUMPTION OF LIABILITIES. For a period of one
(1) years from and after Closing, Seller agrees to indemnify and hold Buyer
harmless from all actions, damages, liabilities, claims and expenses (including
reasonable attorney's fees) arising out of or relating to any act or omission by
Seller with respect to its interest in the Subject Properties occurring prior to
the Effective Date, and for any liability and damages caused by Sellers'
negligence or breach of this Agreement prior to Closing.
Buyer agrees to indemnify and hold Seller harmless against and
from all actions, damages, liabilities, claims, and expenses (including
reasonable attorney's fees) arising out of or relating to the Subject Properties
during the time from and after the Effective Date and for all acts or omissions
occurring from and after the Effective Date, and for any liability and damages
caused by Buyer's negligence or breach of this Agreement prior to Closing.
Seller, as to its interest in the Subject Properties, shall
remain responsible for all claims relating to the drilling, operations,
production and sale of hydrocarbons from the Subject Properties and the proper
accounting and payment by Seller to parties for their interests therein, and any
retroactive payment, refunds or penalties to any party or entity relating
thereto, insofar as such claims relate to occurrences and periods of time prior
to the Effective Date, and Seller shall defend, indemnify and hold Buyer
harmless from all such claims. Buyer shall be responsible for all of said types
of claims insofar as they relate to occurrences and periods of time from and
after the Effective Date.
All proceeds from the sale of production actually sold and
delivered by Seller prior to the Effective Date and attributable to its interest
in the Subject Properties shall belong to and be retained by Seller, and all
proceeds from the sale of production actually sold and delivered after the
Effective Date attributable to the Subject Properties shall belong to and be the
property of Buyer.
10. PRORATION OF TAXES. Ad valorem, property, production,
severance, excise, and similar taxes relating to the Subject Properties shall be
prorated as of the Effective Date. Seller shall be responsible for all such
items relating to the period of time prior to the Effective Date and Buyer shall
be responsible for all such items occurring after the Effective Date.
11. FURTHER ASSURANCES. Each party shall execute and deliver to the
other such further instruments, and take such other actions reasonably necessary
to carry out the intent of this Agreement. Seller agrees to execute appropriate
transfer orders or letters in lieu of transfer orders effective on the Effective
Date.
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<PAGE> 10
12. LOSS. Any loss to the wells located on the Subject Properties
between the execution of this Agreement and the date of Closing, resulting from
fire, lightning, storm, or other casualty or from negligence of Sellers, their
operator, agents or employees, or breach of this Agreement by Seller, shall be
borne by Seller, and if there is substantial damage to such wells, Buyer shall
have the option to terminate this Agreement upon written notice to Seller.
13. DATA DELIVERY. At Closing, Seller shall deliver to Buyer all
of Seller's lease, title, well, Railroad Commission files, all relevant maps,
and all other files, records, materials and information relating to the Subject
Properties (save and except information of any interpretive or proprietary
nature) including, but not limited to, well logs and well records, and filings
with appropriate governmental authorities.
14. CONFIDENTIALITY. All data furnished to Buyer by Seller will be
on a confidential basis. Buyer will not remove any data from Seller's office
without Seller's permission. In the event Buyer does not acquire the Subject
Properties for any reason, Buyer shall return all data so removed and all copies
to Seller.
15. PROHIBITED ACTIONS. Prior to Closing, Seller shall not,
without Buyer's prior written consent:
(a) dispose of or make any changes to the Subject Properties;
or
(b) incur any liabilities, encumbrances or liens in respect to
the Subject Properties which are not in the ordinary course of
operations.
16. EXPENSES. Each party shall pay the fees and expenses of its
own counsel and accountants incurred in connection with this transaction.
17. BROKERS. Each party represents that to the best of its
knowledge and belief, no outside parties have participated in the negotiation of
this transaction on behalf of either party, and no firm or person shall be
entitled to any finder's or broker's fee with respect to the transaction
contemplated by this Agreement.
18. INCORPORATION OF EXHIBITS. All exhibits to this Agreement
constitute an integral part of and are incorporated in this Agreement.
19. LAW. Texas law shall govern the rights and obligations of the
parties under this Agreement.
20. CERTAIN DEFINITIONAL PROVISIONS.
(a) The words "hereof," "herein" and "hereunder," and words of
similar import, when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision
of this Agreement.
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(b) The terms defined in the singular shall have a comparable
meaning when used in the plural and vice versa.
(c) Whenever a statement is qualified by the term "knowledge,"
"best knowledge," or similar term or phrase, it is intended to
indicate that the person or party to whom or to which such
phrase is attributed, in the exercise of good faith, is not
aware of acts, omissions, or facts which would render the
statement or representation being made with such "knowledge"
or "best knowledge," or similar terms or phrase, untrue in any
material respect.
(d) Pronouns denoting gender shall include the neutral pronoun
"it" or the possessive case thereof and vice versa.
21. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed to have been given if
delivered in person or by facsimile transmission (FAX) or when deposited with
the United States Postal Service registered or certified mail, return receipt
requested, postage prepaid, addressed to the party to receive such notice at the
address set forth below:
If to Seller:
J. M. Hill
Walter O. Hill
Steven J. Devos
14800 Quorum Drive, Suite 300
Dallas, Texas 75240
If to Buyer:
EXCO Resources, Inc.
Attention: Douglas H. Miller
Suite 235
5735 Pineland
Dallas, Texas 75231
22. JURISDICTION; SERVICE OF PROCESS. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in the courts of the State
of Texas, County of Dallas, and each of the parties consents to the jurisdiction
of such courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any action
or proceeding referred to in the preceding sentence may be served on any party
anywhere in the world.
23. FURTHER ASSURANCES. The parties agree (a) to furnish upon
request to each other such further information, (b) to execute and deliver to
each other such other documents, and (c) to do such other acts and things, all
as the other party may reasonably request for the
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purpose of carrying out the intent of this Agreement and the documents referred
to in this Agreement.
24. WAIVER. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by any party in exercising any right, power, or privilege under this Agreement
or the documents referred to in this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or privilege. To
the maximum extent permitted by applicable law, (a) no claim or right arising
out of this Agreement or the documents referred to in this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of the
claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for
which it is given; and (c) no notice to or demand on one party will be deemed to
be a waiver of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this Agreement.
25. ENTIRE AGREEMENT AND MODIFICATION. This Agreement inclusive of
all Agreements herein referenced supersedes all prior agreements between the
parties with respect to its subject matter and constitutes (along with the
documents referred to in this Agreement) a complete and exclusive statement of
the terms of the agreement between the parties with respect to its subject
matter. This Agreement may not be amended except by a written agreement executed
by the party to be charged with the amendment.
26. ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. None of
the parties may assign any of their rights under this Agreement without the
prior consent of the other parties, which will not be unreasonably withheld,
except that Buyer may assign any of its rights under this Agreement to any
Subsidiary of Buyer. Subject to the preceding sentence, this Agreement will
apply to, be binding in all respects upon, and inure to the benefit of the
successors and permitted assigns of the parties. Nothing expressed or referred
to in this Agreement will be construed to give any Person other than the parties
to this Agreement any legal or equitable right, remedy, or claim under or with
respect to this Agreement or any provision of this Agreement. This Agreement and
all of its provisions and conditions are for the sole and exclusive benefit of
the parties to this Agreement and their successors and assigns.
27. SEVERABILITY. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
28. PARAGRAPH HEADINGS, CONSTRUCTION. The headings of Paragraphs
in this Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to "Paragraph" or "Paragraphs"
refer to the corresponding Paragraph or Paragraphs of this Agreement. All words
used in this Agreement will be construed
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to be of such gender or number as the circumstances require. Unless otherwise
expressly provided, the word "including" does not limit the preceding words or
terms.
29. TIME OF ESSENCE. With regard to all dates and time periods
set forth or referred-to in this Agreement, time is of the essence.
30. GOVERNING LAW. This Agreement will be governed by the laws of
the State of Texas.
31. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
SELLER:
/s/ J. M. HILL
----------------------------------------
J. M. Hill, Individually and as Trustee
/s/ WALTER O. HILL
----------------------------------------
Walter O. Hill
/s/ WALTER O. HILL
----------------------------------------
Walter O. Hill, agent and attorney-
in-fact for Steven J. Devos
BUYER:
EXCO RESOURCES, INC.
By: /s/ DOUGLAS H. MILLER
-------------------------------------
Douglas H. Miller
Chief Executive Officer
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