FIRST AMENDMENT TO ASSET PURCHASE AND SALE AGREEMENT
Exhibit
2.6
FIRST
AMENDMENT TO ASSET PURCHASE AND SALE AGREEMENT
THIS
FIRST AMENDMENT TO ASSET PURCHASE AND SALE AGREEMENT
(this
“Amendment”)
is
made and entered into this 1st day of October, 2007, by and between Plantation
Operating, LLC, a Delaware limited liability company (“Seller”),
and
EV Properties, L.P., a Delaware limited partnership (“Buyer”)
RECITALS
A. Whereas,
Buyer and Seller entered into an Asset Purchase and Sale Agreement dated as
of
July 17, 2007, but effective as of July 1, 2007 (the “Asset
Purchase Agreement”);
and
B. Whereas,
capitalized terms used but not defined herein are used with the same meanings
given such terms in the Asset Purchase Agreement; and
C. Whereas,
Article III of the Asset Purchase Agreement provides for a Closing Date of
10:00
a.m., local Houston, Texas time, on September 4, 2007; and
D. Whereas,
Buyer and Seller, recognizing the need for more time to complete the land and
accounting work associated with the transactions contemplated by the Asset
Purchase Agreement, desire to change the Closing Date to October 1, 2007;
and
E. Whereas,
pursuant to the due diligence process, the parties desire to amend the Seller
Disclosure Schedule and certain of the other Exhibits to the Asset Purchase
Agreement and to provide for the completion after Closing of certain activities
required under the Asset Purchase Agreement to be completed prior to or at
Closing, all as more specifically set forth herein; and
NOW
THEREFORE,
for and
in consideration of the premises and other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged by Seller and Buyer,
the parties agree as follows:
AGREEMENT
1.1
|
Article
III of the Asset Purchase Agreement is hereby amended and restated
in its
entirety to read as follows:
|
“The
closing of the transactions contemplated hereby (the “Closing”)
shall
take place (i) at the offices of Xxxxxxxx & Xxxxxx LLP, Houston, Texas, at
10:00 a.m. (local Houston, Texas time) on October 1, 2007, or (ii) at such
other
time or place or on such other date as the parties hereto shall agree. The
date
on which the Closing is required to take place is herein referred to as the
“Closing
Date”.
All
Closing transactions shall be deemed to have occurred
simultaneously.”
1.2
|
Buyer
and Seller agree that the exhibits contained herein shall amend and
replace, in their entirety, the exhibits in the Asset Purchase Agreement
of the same name. Specifically, Exhibit I (Leases) attached hereto
shall
amend and replace Exhibit I in the Asset Purchase Agreement; Exhibit
8.1(c) (Allocated Values) attached hereto shall replace Exhibit 8.1(c)
in
the Asset Purchase Agreement; and Exhibit 9.1(f) (Form of Assignment)
attached hereto shall replace the Exhibit 9.1(f) in the Asset Purchase
Agreement.
|
1.3
|
Buyer
and Seller agree that the Seller Disclosure Schedule contained in
the
Asset Purchase Agreement shall be amended to include the additional
Call
on Production set forth in the Seller Disclosure Schedule attached
hereto.
|
1.4
|
The
parties acknowledge that Seller does not presently own record title
to the
office building and premises located in Jal, New Mexico (said office
building and premises together with all furniture, fixtures and equipment
located thereat, as more particularly described in Section 1.1(g)
of the
Asset Purchase Agreement, collectively called herein the “Jal
Office”).
Seller shall undertake such curative measures following Closing as
may be
necessary to obtain beneficial and record title to the Jal Office
and then
shall convey same to Buyer as soon as reasonably practical following
the
Closing, but in any event no later than ninety (90) days following
the
Closing Date.
|
1.5
|
As
part of Seller’s obligations pursuant to Section 7.9 (Operational
Transition) of the Asset Purchase Agreement, Seller agrees to assist
Buyer
in the preparation of all notices to non-operators not finalized
and
executed at the time of the Closing. Seller agrees to provide a sufficient
level of assistance to cause all such notices to be completed and
mailed
to the relevant non-operating working interest owners by no later
than the
fifth (5th)
Business Day following the Closing.
|
1.6
|
THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS
THEREOF.
|
1.7
|
This
Amendment may be executed in any number of identical counterparts,
each of
which for all purposes shall be deemed an original, and all of which
shall
constitute collectively, one instrument. It is not necessary that
each
party hereto execute the same counterpart so long as identical
counterparts are executed by each such party hereto. This instrument
may
be validly executed and delivered by facsimile or other electronic
transmission.
|
1.8
|
Except,
and only to the extent, specifically modified herein, the Asset Purchase
Agreement shall remain in full force and effect enforceable in accordance
with its various terms and provisions as specifically modified
herein.
|
[Balance
Of Page Intentionally Left Blank
Signature
Pages Follow]
-
2
-
IN
WITNESS WHEREOF,
this
Amendment is executed by the Parties hereto on the date set forth above, but
effective for all purposes as of the Effective Date.
SELLER:
PLANTATION
OPERATING, LLC,
a
Delaware limited liability company
|
||
|
|
|
By: | /s/ Xxxxxx X. Xxxxxxx | |
Xxxxxx
X. Xxxxxxx
President
|
and | ||
|
|
|
By: | /s/ Xxxx X. Xxxxx | |
Xxxx
X. Xxxxx
CEO
and Secretary
|
||
BUYER: | ||
EV
PROPERTIES, L.P.,
a
Delaware limited partnership
|
||
By: EV
Properties GP, LLC,
its
general partner
|
||
By:
EV
Energy Partners, L.P.,
its
sole member
|
||
By:
EV
Energy GP, L.P.,
its
general partner
|
||
By:
EV
Management, LLC,
its
general partner
|
||
|
|
|
By: | /s/ Xxxx X. Xxxxxx | |
Xxxx
X. Xxxxxx
President
and
Chief Executive Officer
|
||
-
3
-