SECURITIES ACCOUNT CONTROL AGREEMENT [Collateral Agent]

EXHIBIT 10.4

SECURITIES ACCOUNT CONTROL AGREEMENT

[Collateral Agent]

This Securities Account Control Agreement dated as of February 10, 2005 (this “Agreement”) among EXCO RESOURCES, INC., a Texas corporation (the “Debtor”), WILMINGTON TRUST COMPANY, in its capacity as Collateral Agent (the “Secured Party”) pursuant to that certain Indenture dated January 20, 2004, among Debtor, certain subsidiaries of Debtor and Collateral Agent (as amended and in effect from time to time, the “Indenture”) and X.X. XXXXXX SECURITIES INC., in its capacity as a “securities intermediary” as defined in Section 8-102 of the UCC (in such capacity, the “Securities Intermediary”). All references herein to the “UCC” shall mean the Uniform Commercial Code as in effect in the State of New York.

WHEREAS, Debtor is a party to a Pledge Agreement For Stock, dated January 20, 2004, (as amended and in effect from time to time, the “Pledge Agreement”) between Debtor and Secured Party by which Debtor has granted to the Secured Party a perfected security interest in the Securities Account, subject to the terms and conditions of the Prior Control Agreement (as defined below). Subject to the terms of this Agreement, Securities Intermediary recognizes the security interest in the Securities Account in favor of the Secured Party, granted pursuant to the Pledge Agreement.

WHEREAS, Debtor is also a party to an Amended and Restated Pledge Agreement For Stock, dated January 27, 2004, among Debtor, JPMorgan Chase Bank, N.A. (as successor by merger to Bank One, N.A. (Illinois)) (the “Prior Secured Party”), by which the Debtor has granted to the Prior Secured Party a first priority security interest in the Securities Account (as defined below). The Prior Secured Party, Debtor, Secured Party and Securities Intermediary are contemporaneously entering into a Securities Account Control Agreement (the “Prior Control Agreement”), pursuant to which Securities Intermediary recognizes the Security Interest in the Securities Account in favor of the Prior Secured Party. Any defined terms used but not defined herein shall have the meanings assigned to such terms in the Prior Control Agreement.

SECTION 1. Establishment of Securities Account. The Securities Intermediary hereby confirms and agrees that:

(a) Upon receipt of a Subordination Termination Notice from the Prior Secured Party, the Securities Intermediary will restyle account number 00000000 styled as “JPMorgan Chase Bank, N.A., collateral account for EXCO Resources, Inc.” to be restyled in the name “Wilmington Trust Company, as Collateral Agent, collateral account for EXCO Resources, Inc.” or any abbreviations made by Securities Intermediary for operational purposes (such account and any successor accounts, the “Securities Account”); Debtor irrevocably directs Securities Intermediary to make all notations in Security Intermediary’s records pertaining to the

Securities Account that are necessary or appropriate to reflect this Agreement and to move collateral from the existing Securities Account to establish a new Securities Account, with a new account number, for the purpose of holding the collateral.

(b) All securities or other property underlying any financial assets credited to the Securities Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any financial asset credited to the Securities Account be registered in the name of the Debtor, payable to the order of the Debtor or specially indorsed to the Debtor except to the extent the foregoing have been specially indorsed to the Securities Intermediary or in blank;

(c) All property delivered to the Securities Intermediary pursuant to the Security Agreement will be promptly credited to the Securities Account; and

(d) The Securities Account is a “securities account” within the meaning of Section 8-501 of the UCC.

SECTION 2. “Financial Assets” Election. The Securities Intermediary hereby agrees that each item of property (including, without limitation, any investment property, financial asset, security, instrument, general intangible or cash) credited to the Securities Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.

SECTION 3. Control of the Securities Account. After the Secured Party receives a Subordination Termination Notice (a “Control Triggering Event”), then Secured Party hereunder shall be entitled to issue a Notice of Sole Control hereunder in substantially the form set forth in Exhibit A hereto. After the Notice of Sole Control (as defined in Section 8(a)) is received by the Securities Intermediary at any time following the occurrence of a Control Triggering Event, then if the Securities Intermediary shall receive any order from the Secured Party directing withdrawal, transfer or redemption of any financial asset relating to the Securities Account, the Securities Intermediary shall comply with such entitlement order without further consent by the Debtor or any other person. Before the Notice of Sole Control is received by the Securities Intermediary, if the Securities Intermediary shall receive any order from the Debtor directing substitution or redemption of any financial asset relating to the Securities Account, the Securities Intermediary shall comply with such entitlement order. After a Control Triggering Event and before the Notice of Sole Control is received by the Securities Intermediary, if a withdrawal notice in the form of Exhibit C hereto from the Secured Party (the “Withdrawal Notice”) is received by the Securities Intermediary, then the Securities Intermediary shall follow such orders to allow withdrawals by the Debtor.. If the Debtor is otherwise entitled to issue entitlement orders and such orders conflict with any entitlement order issued by the Secured Party, the Securities Intermediary shall follow the orders issued by the Secured Party.

SECTION 4. Subordination of Lien; Waiver of Set-Off. In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in the Securities Account or any security entitlement credited thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Secured Party. The financial assets and other items deposited to the Securities Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any person other than the Secured Party and the Prior Secured Party (except that the Securities Intermediary may set off (i) all amounts due to the Securities Intermediary arising out of this Agreement, (ii) the face amount of any checks which have been credited to such Securities Account but are subsequently returned unpaid because of uncollected or insufficient funds and (iii) any unsettled trades).

SECTION 5. Choice of Law. This Agreement and the Securities Account shall each be governed by the laws of the State of New York. Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction (within the meaning of Section 8-110 of the UCC) and the Securities Account (as well as the securities entitlements related thereto) shall be governed by the laws of the State of New York.

SECTION 6. Conflict with Other Agreements.

(a) In the event of any conflict between this Agreement (or any portion thereof) and any other agreement now existing or hereafter entered into between the Debtor and Securities Intermediary, the terms of this Agreement shall prevail;

(b) No amendment or modification of this Agreement or waiver of any right hereunder shall be binding on any party hereto unless it is in writing and is signed by all of the parties hereto;

(i) There are no other agreements entered into between the Securities Intermediary and the Debtor or between Securities Intermediary and any other party with respect to the Securities Account other than the Prior Control Agreement, that certain Securities Account Account Application and Customer Agreement between Debtor and Securities Intermediary, which shall, subject to Sections 4 and 6(a) hereof, prevail in the event of a dispute with the Securities Intermediary;

(ii) It has not entered into, and until the termination of this Agreement, will not enter into, any agreement with any other person relating to the Securities

Account and/or any financial assets credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the UCC) of such other person, other than the Prior Control Agreement; and

(iii) It has not entered into, and until the termination of this Agreement, will not enter into, any agreement with the Debtor or Secured Party purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 3 hereof, other than the Prior Control Agreement.

SECTION 7. Adverse Claims. Except for the claims and interest of the Secured Party, the Prior Secured Party and of the Debtor in the Securities Account, the Securities Intermediary does not have actual knowledge of any claim to, or other interest in, the Securities Account or in any “financial asset” (as defined in Section 8-102(a) of the UCC) credited thereto. If any person asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Securities Account or in any financial asset carried therein, the Securities Intermediary will promptly notify the Secured Party and the Debtor thereof as provided in Section 12.

SECTION 8. Maintenance of Securities Account. In addition to, and not in lieu of, the obligation of the Securities Intermediary to honor entitlement orders as agreed in Section 3 hereof, the Securities Intermediary agrees to maintain the Securities Account as follows:

(a) Notice of Sole Control after a Control Triggering Event. Secured Party agrees that it will not issue a Notice of Sole Control to Securities Intermediary prior to the occurrence of a Control Triggering Event, as defined in Section 3, and any Notice of Sole Control issued by Secured Party hereunder to Securities Intermediary prior to the occurrence of a Control Triggering Event shall not be effective as to Securities Intermediary. If the Secured Party delivers to the Securities Intermediary a Notice of Sole Control in substantially the form set forth in Exhibit A hereto at any time after a Control Triggering Event, the Securities Intermediary agrees that after receipt of such notice, it will take all instruction with respect to the Securities Account solely from the Secured Party. Notwithstanding anything to the contrary set forth herein, unless and until a notice (set out in Exhibit A hereto after a Control Triggering Event from the Secured Party and, such other persons as may be nominated as an authorized officer by the Secured Party by written notice to the Securities Intermediary, from time to time) that the Secured Party will exercise exclusive control over the Securities Account pursuant to the Notice of Sole Control (i) is accompanied by a telephone call that is actually received by employees of the Securities Intermediary, at the telephone numbers set out in the signatory section informing the Securities Intermediary to expect the Notice of Sole Control, (ii) is actually received by the individual employee(s) of the Securities Intermediary to whom the notice is required hereunder to be addressed (“Receive”) or (“Received”) and (iii) becomes Effective (as

set forth below), the Debtor may: (i) exercise any voting rights that it may have with respect to any financial asset relating to the Securities Account, (ii) give instructions to the Securities Intermediary to enter into purchase or sale transactions in the Securities Account and (iii) after a Control Triggering Event and before the Notice of Sole Control is received by the Securities Intermediary, if a Withdrawal Notice from the Secured Party is received by the Securities Intermediary then the Securities Intermediary shall follow such orders to allow withdrawals by the Debtor. Any Notice of Sole Control Received by the Securities Intermediary shall not be deemed effective until two hours after it is Received by the Securities Intermediary; provided, however, that any Notice of Sole Control Received by the Securities Intermediary after 4:00 p.m. New York City time on any Business Day shall not be deemed effective until 10:00 a.m. New York City time on the next succeeding Business Day. A Notice of Sole Control deemed effective as set forth in the prior sentence is referred to herein as “Effective.” Notwithstanding the foregoing, (1) all transactions relating to any financial asset relating to the Securities Account consummated or processed by the Securities Intermediary prior to a Notice of Sole Control becoming Effective (or commenced by the Securities Intermediary prior to a Notice of Sole Control becoming Effective and consummated or processed thereafter) shall be deemed not to constitute a violation of this Agreement, provided that, if practicable, the Securities Intermediary shall use reasonable efforts to reverse such transactions, but the Securities Intermediary shall have no obligation nor any liability for any failure to reverse such transactions and (2) the Securities Intermediary may (at its discretion and without any obligation to do so) commence honoring solely the Secured Party’s entitlement orders concerning the financial assets relating to the Securities Account at any time or from time to time after it becomes aware that the Secured Party has sent to it a Notice of Sole Control (including without limitation reversing or redirecting any transaction referred to in clause (1) above), whether or not the Notice of Sole Control has become Effective, with no liability whatsoever to the Debtor or any other party for doing so. “Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks and registered broker-dealers in New York City, New York and in Newark, Delaware are authorized or required to be closed. If the Securities Intermediary receives from the Secured Party a Notice of Sole Control, the Securities Intermediary will cease distributing to the Debtor all interest and dividends on any financial assets relating to the Securities Account upon the Notice of Sole Control becoming Effective.

(b) Permitted Investments. Until such time as the Securities Intermediary receives a Notice of Sole Control signed by the Secured Party, the Debtor shall direct the Securities Intermediary with respect to the selection of investments to be made for the Securities Account. Before the Notice of Sole Control is received by the Securities Intermediary, if the Securities Intermediary shall receive any order from the Debtor directing substitution or redemption of any financial asset relating to the Securities Account, the Securities Intermediary shall comply with such entitlement order. After a Control Triggering Event and before the Notice of Sole Control is received by the Securities Intermediary, if a Withdrawal Notice from the Secured Party is received by Securities Intermediary, then the Securities Intermediary shall

follow such orders to allow withdrawals by Debtor. If the Debtor is otherwise entitled to issue entitlement orders and such orders conflict with any entitlement order issued by the Secured Party, the Securities Intermediary shall follow the orders issued by the Secured Party.

(c) Statements and Confirmations. The Securities Intermediary will promptly send copies of all statements, confirmations and will use best efforts for other correspondence concerning the Securities Account and/or any financial assets credited thereto simultaneously to each of the Debtor and the Secured Party at the address for each set forth in Section 12 of this Agreement.

(d) Tax Reporting. All items of income, gain, expense and loss recognized in the Securities Account shall be reported to the Internal Revenue Service and all state and local taxing authorities under the name and taxpayer identification number of the Debtor.

Section 9. Representations, Warranties and Covenants of the Securities Intermediary. The Securities Intermediary hereby makes the following representations, warranties and covenants:

(a) The Securities Account has been established as set forth in Section 1 above and such Securities Account will be maintained in the manner set forth herein until termination of this Agreement; and

(b) This Agreement is the valid and legally binding obligation of the Securities Intermediary.

Section 10. Indemnification of Securities Intermediary. The Debtor and the Secured Party hereby agree that (a) the Securities Intermediary is released from any and all liabilities to the Debtor and the Secured Party arising from the terms of this Agreement and the compliance of the Securities Intermediary with the terms hereof, except to the extent that such liabilities arise from the Securities Intermediary’s negligence and (b) the Debtor, and its successors and assigns shall at all times indemnify and save harmless the Securities Intermediary from and against any and all claims, actions and suits of others arising out of the terms of this Agreement or the compliance of the Securities Intermediary with the terms hereof, except to the extent that such arises from the Securities Intermediary’s gross negligence, and from and against any and all liabilities, losses, damages, costs, charges, counsel fees and other expenses of every nature and character arising by reason of the same, except to the extent such arises from the Securities Intermediary’s gross negligence, until the termination of this Agreement.

Section 11. Successors; Assignment. The terms of this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective corporate successors or heirs and personal representatives who obtain such rights solely by operation of law.

Section 12. Notices. Any notice, request or other communication required or permitted to be given under this Agreement shall be in writing and deemed to have been properly given when delivered in person, or when sent by telecopy or other electronic means and electronic confirmation of error free receipt is received or two (2) days after being sent by certified or registered United States mail, return receipt requested, postage prepaid, addressed to the party at the address set forth below.

Debtor:	EXCO Resources, Inc.
	00000 Xxxxx Xxxxx
	Xxxxx 0000, XX 00
	Xxxxxx, Xxxxx 00000
	Attention:		Chief Financial Officer
	Telephone:		(000) 000-0000
	Facsimile:		(000) 00000000

Secured Party:	Wilmington Trust Company
	Xxxxxx Square North
	0000 Xxxxx Xxxxxx Xxxxxx
	Xxxxxxxxxx, XX 00000
	Attention:		Corporate Trust Department
	Telephone:		(000) 000-0000
	Facsimile:		(000) 000-0000

Securities Intermediary:	X.X. Xxxxxx Securities Inc.
	000 Xxxxxx, 00xx Xxxxx
	Xxxxxxx, Xxxxx 00000
	All notices and Notice of Sole Control must be Received by:
	Attention:	Pledged Collateral Desk
	Securities Division
	Telecopier:	000-000-0000
	Telephone:	000-000-0000
	AND
	Attention:	Client Services
	Telecopier:	000-000-0000
	Telephone:	000-000-0000

Any party may change its address for notices in the manner set forth above.

Section 13. Termination. The obligations of the Securities Intermediary to the Secured Party pursuant to this Agreement shall continue in effect until the security interest of the

Secured Party in the Securities Account has been terminated pursuant to the terms of the Pledge Agreement and the Secured Party has notified the Securities Intermediary of such termination in writing. The Secured Party agrees to provide Notice of Termination in substantially the form of Exhibit B hereto to the Securities Intermediary upon the request of the Debtor on or after the termination of the Secured Party’s security interest in the Securities Account pursuant to the terms of the Security Agreement. The termination of this Agreement shall not terminate the Securities Account or alter the obligations of the Securities Intermediary to the Debtor pursuant to any other agreement with respect to the Securities Account. Securities Intermediary may at any time, with 30 business days prior notice, terminate the Securities Account. The Securities Intermediary will mail notice of termination to the Secured Party and the Debtor thereof as provided in Section 12. If the Securities Intermediary terminates the Securities Account after the Notice of Sole Control is received by the Securities Intermediary, then the Securities Intermediary shall comply with any order from the Secured Party directing withdrawal, transfer or redemption of any financial asset relating to the Securities Account and the Securities Intermediary shall comply with such entitlement order from the Secured Party without further consent by the Debtor or any other person. If the Securities Intermediary terminates the Securities Account before the Notice of Sole Control is received by the Securities Intermediary, then the Securities Intermediary shall comply with any order from the Debtor directing substitution or redemption of any financial asset relating to the Securities Account If the Debtor is otherwise entitled to issue entitlement orders and such orders conflict with any entitlement order issued by the Secured Party, the Securities Intermediary shall follow the orders issued by the Secured Party.

Section 14. Force Majeure. Securities Intermediary shall not be liable for and performance is excused during the period of delay, interruption or failure for any action taken, or any delay or failure to take any action, to the extent that the taking of such action, or such delay, interruption or failure, arises out of causes beyond the reasonable control of Securities Intermediary or any of its third party providers, including without limitation, any delay or failure to perform, execute or comply with instructions that (a) are never received by Securities Intermediary, (b) are not received by Securities Intermediary in a timely manner or within normal business hours, (c) are received by Securities Intermediary but Securities Intermediary or any of its third party providers is unable to perform, execute or comply with such instructions for causes beyond the reasonable control of Securities Intermediary or any of its third party providers, such as computer or systems failures, damage caused by severe weather, earthquakes, wars, insurrection, acts of terrorism, riots, acts of God, accident, fire, water damage, explosions, mechanical breakdowns or national disasters, power or utility failures, strikes or other stoppage of labor, governmental or other intervention or any other cause (whether similar or dissimilar to any of the foregoing) whatsoever beyond the control of Securities Intermediary or any of its third party providers.

Section 15. Counterparts. This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Agreement by signing and delivering one or more counterparts.

Section 16. Collateral Agent. Any and all rights granted to the Secured Party under this Agreement are to be held and exercised by the Secured Party in its capacity as collateral agent for the benefit of the Senior Noteholders pursuant to the provisions of the Indenture. Nothing in this Agreement expressed or implied is intended or shall be construed to give any person other than the Debtor, the Secured Party and Securities Intermediary any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenant, condition or provision herein contained, and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the Debtor, the Secured Party and Securities Intermediary. Notwithstanding anything herein to the contrary, the Secured Party shall exercise its rights and powers subject to the direct and indemnity of the Senior Noteholders as provided in the Indenture. Nothing in this Section 16 imposes any duty whatsoever upon the Securities Intermediary except as otherwise provided in this Agreement to Debtor, the Secured Party and the Prior Secured Party.

IN WITNESS WHEREOF, the parties hereto have caused this Securities Account Control Agreement to be executed as of the date first above written by their respective officers thereunto duly authorized.

EXCO RESOURCES, INC.
as Debtor

By:	/s/ J. Xxxxxxx Xxxxxx
	Name:	J. Xxxxxxx Xxxxxx
	Title:	Vice President and Chief Financial Officer

WILMINGTON TRUST COMPANY,
as Collateral Agent
as Secured Party


By:	/s/ X.X. Xxxxxx XX
	Name:	W. Xxxxxx Xxxxxx, II
	Title:	Senior Financial Services Officer

X.X. XXXXXX SECURITIES, INC.
as Securities Intermediary


By:	/s/ Xxxxx X. Xxxxx
	Name:	Xxxxx X. Xxxxx
	Title:	Vice President

EXHIBIT A

NOTICE OF SOLE CONTROL

TO SECURITIES ACCOUNT CONTROL AGREEMENT

[Letterhead of Secured Party]

[Date]

X.X. Xxxxxx Securities Inc.
000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
All notices and Notice of Sole Control must be Received by:
Attention:	Pledged Collateral Desk
Securities Division
Telecopier:	000-000-0000
Telephone:	000-000-0000
AND
Attention:	Client Services
Telecopier:	000-000-0000
Telephone:	000-000-0000

Re: Notice of Sole Control

Ladies and Gentlemen:

As referenced in the Securities Account Control Agreement dated as of February [ ], 2005 among EXCO Resources, Inc., you and the undersigned (a copy of which is attached), we hereby give you notice of our sole control over securities account number account number (the “Securities Account”) and all financial assets credited thereto. The undersigned represents and warrants to the Securities Intermediary that a Control Triggering Event has occurred. You are hereby instructed not to accept any direction, instructions or entitlement orders with respect to the Securities Account or the financial assets credited thereto from any person other than the undersigned, unless otherwise ordered by a court of competent jurisdiction.

We have also delivered a copy of this notice by facsimile transmission to EXCO Resources, Inc.

	Very truly yours,

	Wilmington Trust Company as Collateral Agent as Secured Party


	By:
		Name:
		Title:

cc: EXCO Resources, Inc.

EXHIBIT B

TERMINATION NOTICE

TO SECURITIES ACCOUNT CONTROL AGREEMENT

[Letterhead of Secured Party]

[Date]

X.X. Xxxxxx Securities Inc.
000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
All notices and Notice of Sole Control must be Received by:
Attention:	Pledged Collateral Desk
Securities Division
Telecopier:	000-000-0000
Telephone:	000-000-0000
AND
Attention:	Client Services
Telecopier:	000-000-0000
Telephone:	000-000-0000

Re: Termination of Securities Account Control Agreement

As referenced in the Securities Account Control Agreement dated as of February , 2005, among EXCO Resources, Inc., you and the undersigned, (a copy of which is attached), is terminated with respect to the undersigned only and you have no further obligations to the undersigned pursuant to such Agreement. Notwithstanding any previous instructions to you, you are hereby instructed to accept all future directions with respect to account number from . This notice terminates any obligations you may have to the undersigned with respect to such account, however nothing contained in this notice shall alter any obligations which you may otherwise owe to , pursuant to any other agreement.

We have also delivered a copy of this notice by facsimile transmission to EXCO Resources, Inc.

	Very truly yours,

	WILMINGTON TRUST COMPANY as Collateral Agent as Secured Party


	By:
		Name:
		Title:

EXHIBIT C

WITHDRAWAL NOTICE

TO SECURITIES ACCOUNT CONTROL AGREEMENT

[Letterhead of Secured Party]

[Date]

X.X. Xxxxxx Securities Inc.
000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
All notices and Notice of Sole Control must be Received by:
Attention:	Pledged Collateral Desk
Securities Division
Telecopier:	000-000-0000
Telephone:	000-000-0000
AND
Attention:	Client Services
Telecopier:	000-000-0000
Telephone:	000-000-0000

Re: Withdrawal by Debtor from Securities Account

You are hereby notified that as to the Securities Account Control Agreement, dated as of February , 2005, among EXCO Resources, Inc., a Texas corporation (“Debtor”), you and the undersigned Wilmington Trust Company (a copy of which is attached), the undersigned direct you to allow the Debtor to withdraw $ that you are to follow the Debtor’s directions in that regard as to methods of distribution to the Debtor.

We have also delivered a copy of this notice by facsimile transmission to EXCO Resources, Inc.

	Very truly yours,

	WILMINGTON TRUST COMPANY, as Collateral Agent as Secured Party


	By:
		Name:
cc: EXCO Resources, Inc.		Title:

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SECURITIES ACCOUNT CONTROL AGREEMENT [Collateral Agent]

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