FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED ASSET
PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED ASSET PURCHASE
AND SALE AGREEMENT ("FIFTH Amendment") is executed as of the 31st day of
January, 2007, by VOYAGER PARTNERS, LTD., a Texas limited partnership
("Seller"), and DUNE ENERGY, INC., a Delaware corporation ("Buyer").
RECITALS
WHEREAS, Seller and Buyer are parties to a Second Amended and
Restated Asset Purchase and Sale Agreement dated as of October 6, 2006, as
amended by First Amendment to Second Amended and Restated Asset Purchase and
Sale Agreement, dated as of December 5, 2006, Second Amendment to Second Amended
and Restated Asset Purchase and Sale Agreement, dated as of December 27, 2006,
Third Amendment to Second Amended and Restated Purchase and Sale Agreement,
dated as of January 12, 2007, and Fourth Amendment to Second Amended and
Restated Purchase and Sale Agreement, dated as of January 19, 2007 (as so
amended, the "Amended Purchase Agreement"), pursuant to which Seller agreed to
sell and convey, and Buyer agreed to purchase and pay for, the "Assets"
described therein (terms defined in the Amended Purchase Agreement shall have
the same meanings when used herein, unless expressly provided otherwise); and
WHEREAS, Seller and Buyer desire further to amend the Amended
Purchase Agreement in several respects.
NOW, THEREFORE, for and in consideration of the mutual promises
contained in the Amended Purchase Agreement, the benefits to be derived by each
Party thereunder and hereunder, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree
as follows:
1. Amendments. The Amended Purchase Agreement is hereby amended in the
following respects:
(a) Section 2.2(e) of the Amended Purchase Agreement is amended by
deleting the phrase "January 31, 2007", in each place that such phrase appears
in such provision, and by substituting therefor, in each case, the phrase
"February 9, 2007."
(b) Schedule 2.2(e) to the Amended Purchase Agreement is amended by
deleting the phrase "JANUARY 31, 2007" from the caption thereof and by
substituting therefor the phrase "FEBRUARY 9, 2007."
2. Ratification. Seller and Buyer do hereby ADOPT, RATIFY, and CONFIRM the
Amended Purchase Agreement and all of its terms and provisions, as amended
hereby, and declare the Amended Purchase Agreement, as so amended, to be in full
force and effect.
3. GOVERNING LAW; JURISDICTION; VENUE. THIS FIFTH AMENDMENT AND THE LEGAL
RELATIONS AMONG THE PARTIES SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS, EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE
THAT MIGHT REFER CONSTRUCTION OF SUCH PROVISIONS TO THE LAWS OF ANOTHER
JURISDICTION. ALL OF THE PARTIES CONSENT TO THE EXERCISE OF JURISDICTION IN
PERSONAM BY THE COURTS OF THE STATE OF TEXAS FOR ANY ACTION ARISING OUT OF THIS
FIFTH AMENDMENT. ALL ACTIONS OR PROCEEDINGS WITH RESPECT TO, ARISING DIRECTLY OR
INDIRECTLY IN CONNECTION WITH, OUT OF, RELATED TO, OR FROM THIS FIFTH AMENDMENT
SHALL BE LITIGATED IN COURTS HAVING SITUS IN HOUSTON, ▇▇▇▇▇▇ COUNTY, TEXAS.
4. Miscellaneous. This Fifth Amendment may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one instrument; provided, however, that this Fifth
Amendment shall be effective as to each Party upon its execution hereof, whether
all counterparts are executed by a Party or not. In making proof of this Fifth
Amendment, it shall not be necessary to produce or to account for all
counterparts hereof, and it shall be sufficient to produce but one (1)
counterpart original hereof, executed by the Party sought to be charged thereby.
This Fifth Amendment shall inure to the benefit of, and be binding on, the
Parties and their respective successors and assigns.
IN WITNESS WHEREOF, Seller and Buyer have executed this Fifth Amendment as
of the date first above written, to be effective as provided herein.
SELLER:
VOYAGER PARTNERS, LTD.
By: Trek Management, LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
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SIGNATURE PAGE FOR DUNE ENERGY, INC., TO
FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED
ASSET PURCHASE AND SALE AGREEMENT,
DATED AS OF JANUARY 31, 2007, BETWEEN
VOYAGER PARTNERS, LTD., AND
DUNE ENERGY, INC.
BUYER:
DUNE ENERGY, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Dr. ▇▇▇▇▇ ▇▇▇▇▇
President
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