December 22, 2015 DEPCO Delaware L.L.C. Devon Energy Production Company, L.P.
Exhibit 2.3
December 22, 2015
DEPCO Delaware L.L.C.
Devon Energy Production Company, L.P.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000
Attn: Xxxx Xxxxxx, Vice President of Land and Regulatory
| Re: |
Dear Xx. Xxxxxx:
Reference is made to that certain Purchase and Sale Agreement dated as of December 6, 2015 (the “Purchase Agreement”), by and among (i) Xxxxx Energy Holdings, LLC, a limited liability company organized under the Laws of the State of Delaware (the “Company”), (ii) EnCap FEx Holdings, LLC, a limited liability company organized under the Laws of the State of Delaware (“EF Holdings”), (iii) Xxxxx Xxxxx Investments, LLC, a limited liability company organized under the Laws of the State of Delaware (“FS Investments” and, together with EF Holdings, “Sellers” and each a “Seller”), (iv) DEPCO Delaware, L.L.C., a limited liability company organized under the Laws of the State of Delaware (“Purchaser”) and a wholly-owned subsidiary of Devon Energy Production Company, L.P., a limited partnership organized under the Laws of the State of Oklahoma (“Purchaser Parent”), (y) Purchaser Parent, and, (vi) solely with respect to its obligations related to the Ultimate Parent Shares (as defined therein), Devon Energy Corporation, a corporation organized under the Laws of the State of Delaware (“Ultimate Parent” and, individually or together, as the context requires, with Purchaser Parent, “Parent”). Capitalized terms not otherwise defined herein shall have the meanings assigned to such terms in the Purchase Agreement.
Purchaser hereby (i) requests that Sellers cause the Company Parties to commence the performance of the work described on Exhibit A hereto (the “Work”) and (ii) consents to the performance of the Work and expenditures in connection with the same for all purposes under the Purchase Agreement, including, without limitation, Section 5.2 thereof, subject, however, to Seller’s compliance with the requirements of Section 5.2 of the Purchase Agreement other than Sections 5.2(f) and (m). The Parties hereby acknowledge and agree that (a) if the Closing occurs, the Cash Purchase Price shall be adjusted upward pursuant to Section 2.3 of the Purchase Agreement by an amount equal to the sum of all of the costs and expenses paid prior to Closing by or on behalf of the Company Parties in connection with the Work, and the costs and expenses associated with the Work, whether paid or not prior to Closing, shall not be included in determining Effective Time Net Working Capital, (b) notwithstanding the estimated dollar amounts set forth on Exhibit A, the actual costs and expenses of performing the Work may be more or less than such dollar amounts, (c) without limiting the representations and warranties contained in Article 3 of the Purchase Agreement, neither Sellers, the Company Parties nor any other Person makes any express or implied representation or warranty with respect to the Work, and (d) notwithstanding the provisions of that certain letter agreement dated December 11, 2015 (the “Post Road Letter Agreement”), by and among the parties to this letter agreement pertaining to Post Road-Xxxxx 28-3H, the Cash Purchase Price shall be adjusted upward pursuant to the Post Road Letter Agreement by an amount equal to the sum of only those costs and expenses referenced in the Post Road Letter Agreement that are paid prior to Closing, and the costs and expenses associated with the Work described in the Post Road Letter Agreement, whether paid or not prior to Closing, shall not be included in determining Effective Time Net Working Capital.
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This letter agreement constitutes an amendment to the Purchase Agreement and shall be interpreted, construed and enforced in accordance with the laws of the State of Oklahoma, without giving effect to any rules or principles of conflicts of law that might otherwise refer to the laws of another jurisdiction. The terms and provisions of this letter agreement are intended solely for the benefit of the Parties and their respective successors or permitted assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other Person. This letter agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
If the terms and conditions of this letter agreement are in accordance with your understanding, please sign and return the enclosed counterpart of this letter agreement, whereupon this letter agreement will be binding upon and enforceable against the Parties.
| Very truly yours, | ||
| COMPANY: | ||
| XXXXX ENERGY HOLDINGS, LLC | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Vice President - Land | |
| SELLER: | ||
| ENCAP FEX HOLDINGS, LLC | ||
| By: | EnCap Energy Capital Fund IX, L.P., | |
| its sole member | ||
| By: | EnCap Equity Fund IX GP, L.P., | |
| its general partner | ||
| By: | EnCap Investments L.P., its general partner | |
| By: | EnCap Investments GP, L.L.C., | |
| its general partner | ||
| By: | /s/ D. Xxxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | Principal | |
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| SELLER: | ||
| XXXXX XXXXX INVESTMENTS, LLC | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Vice President - Land | |
ACCEPTED AND AGREED:
| PURCHASER: | ||
| DEPCO DELAWARE, L.L.C. | ||
| By: | Devon Energy Production Company, L.P., its sole member | |
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Vice President | |
| PURCHASER PARENT: | ||
| DEVON ENERGY PRODUCTION COMPANY, L.P. | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Vice President | |
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