UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

 

Under the Securities Exchange Act of 1934
(Amendment No. 6)*

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-l(e), 240.13d-l(f) or 240.13d-1(g), check the following box. x

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

(1)  Based upon an aggregate of 214,766,182 shares of common stock outstanding as of August 17, 2011, as reported by the Issuer on Schedule 14A filed on August 23, 2011.

 

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(2)  Based upon an aggregate of 214,766,182 shares of common stock outstanding as of August 17, 2011, as reported by the Issuer on Schedule 14A filed on August 23, 2011.

 

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(3)  Based upon an aggregate of 214,766,182 shares of common stock outstanding as of August 17, 2011, as reported by the Issuer on Schedule 14A filed on August 23, 2011.

 

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(4)  Based upon an aggregate of 214,766,182 shares of common stock outstanding as of August 17, 2011, as reported by the Issuer on Schedule 14A filed on August 23, 2011.

 

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(5)  Based upon an aggregate of 214,766,182 shares of common stock outstanding as of August 17, 2011, as reported by the Issuer on Schedule 14A filed on August 23, 2011.

 

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(6)  Based upon an aggregate of 214,766,182 shares of common stock outstanding as of August 17, 2011, as reported by the Issuer on Schedule 14A filed on August 23, 2011.

 

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(7)  Based upon an aggregate of 214,766,182 shares of common stock outstanding as of August 17, 2011, as reported by the Issuer on Schedule 14A filed on August 23, 2011.

 

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(8)  Based upon an aggregate of 214,766,182 shares of common stock outstanding as of August 17, 2011, as reported by the Issuer on Schedule 14A filed on August 23, 2011.

 

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(9)  Based upon an aggregate of 214,766,182 shares of common stock outstanding as of August 17, 2011, as reported by the Issuer on Schedule 14A filed on August 23, 2011.

 

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(10)  Based upon an aggregate of 214,766,182 shares of common stock outstanding as of August 17, 2011, as reported by the Issuer on Schedule 14A filed on August 23, 2011.

 

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(11)  Based upon an aggregate of 214,766,182 shares of common stock outstanding as of August 17, 2011, as reported by the Issuer on Schedule 14A filed on August 23, 2011.  Includes 58,750 options to acquire shares of Common Stock held by Mr. Jeffrey Serota, which is the vested portion of 70,000 options granted to Mr. Serota in his capacity as a director of the Issuer.

 

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(12) Based upon an aggregate of 214,766,182 shares of common stock outstanding as of August 17, 2011, as reported by the Issuer on Schedule 14A filed on August 23, 2011.  Includes 58,750 options to acquire shares of Common Stock held by Mr. Jeffrey Serota, which is the vested portion of 70,000 options granted to Mr. Serota in his capacity as a director of the Issuer.

 

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Item 1.

Security and Issuer

 

This Amendment No. 6 to the Schedule 13D (this “Amendment No. 6”) amends and supplements the statement on Schedule 13D filed on April 9, 2007, Amendment No. 1 to the Schedule 13D (“Amendment No. 1”) filed on September 4, 2007, Amendment No. 2 to the Schedule 13D (“Amendment No. 2”) filed on September 11, 2007, Amendment No. 3 to the Schedule 13D (“Amendment No. 3”) filed on November 2, 2010,  Amendment No. 4 to the Schedule 13D (“Amendment No. 4”) filed on January 25, 2011, Amendment No. 5 to the Schedule 13D (“Amendment No. 5”) filed on August 5, 2011 (as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5 and this Amendment No. 6, the “Schedule 13D”), and relates to the Common Stock, par value $0.001 per share (“Common Stock”) of EXCO Resources, Inc., a Texas corporation (the “Issuer”).  The principal executive offices of the Issuer are located at 12377 Merit Drive, Dallas, Texas 75251.

 

Except as specifically provided herein, this Amendment No. 6 does not modify any of the information previously reported on the Schedule 13D.  Capitalized terms used but not otherwise defined herein shall have the meanings previously given to them on the Schedule 13D.

 

Item 3.

Source and Amount of Funds or Other Consideration

 

Item 3 of the Schedule 13D is hereby amended by adding the following at the end thereof:

 

The purchases of Common Stock, which are noted and described in Item 5(c) below, were financed with cash on hand from contributions of partners of the Ares Entities.

 

Item 4.

Purpose of Transaction

 

Item 4 of the Schedule 13D is hereby amended by adding the following at the end thereof:

 

On August 29, 2011, Ares Management entered into a standstill agreement (the “New Standstill Agreement”) with the Issuer, which replaced, superseded and terminated the Standstill Agreement in its entirety.  Pursuant to the New Standstill Agreement, from the date of execution of the New Standstill Agreement until the closing of trading on the New York Stock Exchange on September 30, 2011 (the “New Standstill Period”), Ares Management may not, and will cause certain of its affiliates not to, acquire any outstanding equity securities of the Issuer that would cause Ares Management and such affiliates to beneficially own in the aggregate twenty percent (20%) or more of the Issuer’s outstanding equity securities (the “20% Limitation”).

 

In addition, during the New Standstill Period, the New Standstill Agreement restricts Ares Management and certain of its affiliates from, among other things and subject to certain exceptions, (i) acquiring or offering to acquire an amount of the Issuer’s Common Stock that would exceed the 20% Limitation or any other rights or interests that would increase the aggregate economic or voting interest of Ares Management and certain of its affiliates in the Issuer in excess of the 20% Limitation; (ii) making any offers to acquire a majority of the voting or other equity securities of the Issuer or a majority of the assets of the Issuer, or engaging in any other transactions that would result in a change of control of the Issuer (a “Control Transaction”); (iii) entering into agreements or arrangements, or joining or forming any groups, for the purpose of acquiring, holding, voting or disposing of the Issuer’s equity securities or to otherwise act in concert with respect to the Issuer’s equity securities; (iv) soliciting proxies for the voting of Issuer securities in connection with any Control Transaction; (v) making any director nomination or shareholder proposal with respect to the Issuer (other than pursuant to Ares Management’s and its affiliates’ contractual right to nominate a director to the Issuer’s Board); (vi) soliciting proxies to vote in favor of the election of any candidate for election to the Issuer’s Board nominated by any party other than the Issuer; (vii) advising, assisting, encouraging or providing financing to any other person or group undertaking any of the foregoing actions; (viii) publicly disclosing any intention to take any of the foregoing actions; (ix) taking any action that would require the Issuer to make any public disclosure regarding any of the foregoing actions or in response thereto; or (x) publicly requesting the Issuer to amend any of the aforementioned provisions of the New Standstill Agreement.

 

The foregoing description of the New Standstill Agreement is qualified in its entirety by the New Standstill Agreement, a copy of which is attached hereto as Exhibit 99.6 and is incorporated herein by reference.

 

Without limiting the foregoing, the Ares Entities reserve the right to exercise any and all of their rights in a manner consistent with their equity interests, contractual rights and restrictions and other duties, if any, including the New Standstill Agreement.  Subject to compliance with the New Standstill Agreement, and depending on their

 

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evaluation of various factors, including the investment potential of the Common Stock and/or other Company securities, the Issuer’s business prospects and financial position, other developments concerning the Issuer, the price level and availability of the Common Stock and/or other Company securities, available opportunities to acquire or dispose of the Common Stock and/or other Company securities, or realize trading profits or minimize trading losses, conditions in the securities markets and general economic and industry conditions, reinvestment opportunities, developments relating to the business of the Ares Entities and the Ares Funds and other factors deemed relevant, the Ares Entities may take such actions with respect to their holdings in the Issuer as they deem appropriate in light of circumstances existing from time to time. Such actions may include the purchase of additional shares of Common Stock or other Company securities in the open market, through privately negotiated transactions with third parties or otherwise, or the sale at any time, in the open market, through privately negotiated transactions with third parties or otherwise, of all or a portion of the shares of Common Stock or other Company securities now owned or hereafter acquired by any of them.  In addition, the Ares Entities may, individually or in the aggregate, from time to time enter into or unwind hedging or other derivative transactions with respect to the Common Stock or other Company securities or otherwise pledge their interests in the Issuer as a means of obtaining liquidity or as credit support for loans for any purpose.  These potential actions could involve one or more of the events referred to in paragraphs (a) through (j), inclusive, of Item 4 of Schedule 13D, including, potentially, one or more mergers, consolidations, sales or acquisitions of assets, change in control, issuances, purchases, dispositions or pledges of securities, dividend policy or other changes in capitalization. In addition, from time to time the Ares Entities and their representatives and advisers may communicate with the Board, any committee thereof, Company management, other shareholders, industry participants and other interested parties concerning the Issuer.

 

Except as set forth in this Schedule 13D, none of the Ares Entities, nor, to the best of their knowledge, any of the other persons identified in response to Item 2, presently has any additional plans or proposals that relate to or would result in any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.

 

Item 5.

Interest in Securities of the Issuer

 

(c)  On August 19, 2011, the Ares Entities purchased 100,000 shares of Common Stock in an open market transaction at an average price per share of $12.062.  On August 22, 2011, the Ares Entities purchased 100,000 shares of Common Stock in an open market transaction at an average price per share of $12.3375.

 

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

 

Item 6 of the Schedule 13D is hereby amended by adding the following at the end thereof:

 

The information set forth in response to this Item 6 is qualified in its entirety by reference to the New Standstill Agreement, which is incorporated herein by reference.

 

In all other respects, Item 6 remains unchanged.

 

Item 7.

Material to be Filed as Exhibits

 

Exhibit 99.6                   Standstill Agreement, dated as of August 29, 2011, by and between EXCO Resources, Inc. and Ares Management LLC.

 

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SIGNATURES

 

After reasonable inquiry and to the best of his knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

	ARES CORPORATE OPPORTUNITIES FUND, L.P.
	BY: ACOF OPERATING MANAGER, L.P.
	Its Manager
	By:	/s/ Michael D. Weiner
	Name:	Michael D. Weiner
	Title:	Authorized Signatory
	ACOF EXCO, L.P.
	BY: ACOF MANAGEMENT, L.P.
	Its General Partner
	BY: ACOF OPERATING MANAGER, L.P.
	Its General Partner
	By:	/s/ Michael D. Weiner
	Name:	Michael D. Weiner
	Title:	Authorized Signatory
	ACOF EXCO 892 INVESTORS, L.P.
	BY: ACOF MANAGEMENT, L.P.
	Its General Partner
	BY: ACOF OPERATING MANAGER, L.P.
	Its General Partner
	By:	/s/ Michael D. Weiner
	Name:	Michael D. Weiner
	Title:	Authorized Signatory
	ACOF MANAGEMENT, L.P.
	BY: ACOF OPERATING MANAGER, L.P.
	Its General Partner
	By:	/s/ Michael D. Weiner
	Name:	Michael D. Weiner
	Title:	Authorized Signatory

 

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	ACOF OPERATING MANAGER, L.P.
	By:	/s/ Michael D. Weiner
	Name:	Michael D. Weiner
	Title:	Authorized Signatory
	ARES CORPORATE OPPORTUNITIES FUND II, L.P.
	BY: ACOF OPERATING MANAGER II, L.P.
	Its Manager
	By:	/s/ Michael D. Weiner
	Name:	Michael D. Weiner
	Title:	Authorized Signatory
	ARES EXCO, L.P.
	BY: ACOF MANAGEMENT II, L.P.
	Its General Partner
	BY: ACOF OPERATING MANAGER II, L.P.
	Its General Partner
	By:	/s/ Michael D. Weiner
	Name:	Michael D. Weiner
	Title:	Authorized Signatory
	ARES EXCO 892 INVESTORS, L.P.
	BY: ACOF MANAGEMENT II, L.P.
	Its General Partner
	BY: ACOF OPERATING MANAGER II, L.P.
	Its General Partner
	By:	/s/ Michael D. Weiner
	Name:	Michael D. Weiner
	Title:	Authorized Signatory
	ACOF MANAGEMENT II, L.P.
	BY: ACOF OPERATING MANAGER II, L.P.
	Its General Partner
	By:	/s/ Michael D. Weiner
	Name:	Michael D. Weiner
	Title:	Authorized Signatory

 

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	ACOF OPERATING MANAGER II, L.P.
	By:	/s/ Michael D. Weiner
	Name:	Michael D. Weiner
	Title:	Authorized Signatory
	ARES MANAGEMENT LLC
	By:	/s/ Michael D. Weiner
	Name:	Michael D. Weiner
	Title:	Authorized Signatory
	ARES PARTNERS MANAGEMENT COMPANY LLC
	By:	/s/ Michael D. Weiner
	Name:	Michael D. Weiner
	Title:	Authorized Signatory

 

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EXHIBIT INDEX

 

Exhibit No.		Exhibit Description
99.6		Standstill Agreement, dated as of August 29, 2011, by and between EXCO Resources, Inc. and Ares Management LLC.

 

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Exhibit 99.6

STANDSTILL AGREEMENT

 

This STANDSTILL AGREEMENT, dated as of August 29, 2011 and effective as of the Effective Date (as defined below) (this “Agreement”), is entered into by and among Ares Management LLC (together with one or more of its funds under management, “Stockholder”), and EXCO Resources, Inc., a Texas corporation (the “Company,” which term shall, for purposes of this Agreement, include its subsidiaries and joint ventures) (each, a “Party” and collectively, the “Parties”).

 

W I T N E S S E T H:

 

WHEREAS, the Parties and the Special Committee of the Board of Directors of the Company formed on November 3, 2010 (the “Special Committee”) have previously entered into a Standstill Agreement, dated as of August 5, 2011, addressing certain confidentiality, standstill and other matters (the “Prior Standstill”);

 

WHEREAS, the Special Committee has been dissolved; and

 

WHEREAS, the Parties desire to enter into this Agreement to replace and supersede the Prior Standstill in its entirety; and

 

WHEREAS, this Agreement shall be effective when executed by all Parties as indicated on the signature page hereto (the “Effective Date”).

 

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement and other consideration, the adequacy of which is hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree to replace and supersede the Prior Standstill in its entirety as follows:

 

1.                                      Definitions.

 

1.1                               The term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Exchange Act, provided however, that except as used in Section 6.11, “affiliate” shall not include any Excluded Entities (as defined in Section 6.11).

 

1.2                               The term “beneficially own” shall have the meaning ascribed to such term in Rule 13d-3 promulgated under the Exchange Act.

 

1.3                               The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules, regulations and schedules promulgated thereunder.

 

1.4                               The term “group” shall have the meaning given to that term (or as that term is used) in Section 13(d)(3) of the Exchange Act.

 

1.5                               The term “person” shall be broadly interpreted to include any individual, corporation, partnership, limited liability company, group or other entity.

 

 

1.6                               The term “proxy” shall have the meaning ascribed to such term in Rule 14a-1 promulgated under the Exchange Act.

 

1.7                               The term “solicitation” shall have the meaning ascribed to such term in Rule 14a-1 promulgated under the Exchange Act.

 

2.                                      Share Ownership.

 

2.1                               Limitation on Share Ownership.  From the Effective Date until the close of trading on the New York Stock Exchange on September 30, 2011 (the “Standstill Period”), Stockholder and its affiliates shall not acquire any outstanding equity securities of the Company that would cause Stockholder and its affiliates to beneficially own in the aggregate twenty percent (20%) or more of the Company’s outstanding equity securities (the “20% Limitation”); provided, however, that Stockholder shall not be in breach of the 20% Limitation to the extent that its beneficial ownership percentage exceeds the 20% Limitation solely as a result of a reduction in the number of the Company’s outstanding equity securities (whether due to a share buyback, reverse stock split or other transaction).

 

3.                                      Standstill and Related Provisions.

 

3.1                               Standstill Provisions.  During the Standstill Period, unless expressly authorized in writing to do so by the Board of Directors of the Company (the “Company Board”), Stockholder shall not, and shall cause its affiliates not to, directly or indirectly, acting alone or as part of a group:

 

(i)                                     Acquire, offer to acquire or agree to acquire, directly or indirectly, by purchase or otherwise, (a) an amount of the Company’s common stock that would exceed the 20% Limitation, or (b) any other rights or interests, including without limitation, options, warrants, swaps, derivatives, convertible securities, stock appreciation rights or other rights or instruments, whether real or synthetic, that would increase the aggregate economic or voting interest of Stockholder and its affiliates in the Company in excess of the 20% Limitation;

 

(ii)                                  Make, submit or declare any offer, proposal or indication of interest to (a) acquire a majority of the voting or other equity securities of the Company or a majority of the assets of the Company or (b) engage in any other transaction or series of related transactions that would result in a change of control of the Company (a “Control Transaction”); provided, however, that so long as Stockholder complies with Section 3.1(x), Stockholder may confidentially submit to the Company Board proposals to engage in a Control Transaction;

 

(iii)                               Enter into any agreement, arrangement or understanding, or form, join or in any way participate in any group, with any other person (excluding Ares and any investment fund and investment account managed by Ares) for the purpose of acquiring, holding, voting or disposing of the

 

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Company’s equity securities or to otherwise act in concert with respect to the Company’s equity securities;

 

(iv)                              Make, or in any way participate in, directly or indirectly, any solicitation of proxies or shareholder written consents to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company in connection with or related in any way to any Control Transaction;

 

(v)                                 Make any director nomination or shareholder proposal with respect to the Company; provided, however, that so long as Stockholder complies with Section 3.1(x), Stockholder may make non-public recommendations to the Company’s Nominating and Corporate Governance Committee with respect to such matters; provided, further, that the Company’s Nominating and Corporate Governance Committee shall have no obligation to nominate or recommend any candidate requested for nomination or recommendation by Stockholder; provided, however, that the foregoing shall in no way limit Ares’s contractual right to nominate a director to the Company Board pursuant to that certain letter agreement between the Company, Ares and certain of its affiliates dated March 28, 2007;

 

(vi)                              Make, or in any way participate in, directly or indirectly, any solicitation of proxies to vote in favor of the election of any candidate for election to the Company Board nominated by any party other than the Company;

 

(vii)                           Advise, assist, encourage or provide financing to any other person or group, or join any group, that is undertaking or seeking to undertake any of the foregoing actions;

 

(viii)                        Publicly disclose any intention to take any of the foregoing actions;

 

(ix)                              Take any action that would require the Company to make any public disclosure regarding any of the foregoing actions or in response thereto; or

 

(x)                                 Publicly request the Company to amend any of the foregoing provisions.

 

3.2                               Sale and Voting of Shares: Disclosure Matters.  For the avoidance of doubt, the provisions set forth in Section 3.1 shall not restrict Stockholder’s ability to (i) sell or transfer (in whole or in part) or vote (or grant any proxy to vote) any securities of the Company in its sole and absolute discretion or (ii) file or amend any Schedule 13D as legally required (it being understood, however, that this clause (ii) shall not be construed to permit Stockholder to take actions otherwise prohibited by this Agreement).

 

4.                                      Representations and Warranties.

 

4.1                               Compliance with Laws.  Stockholder represents, warrants and agrees that (i) Stockholder is aware, and that it will advise its affiliates, that federal and state securities laws prohibit any person who has material, non-public information about a company from purchasing

 

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or selling securities of such a company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the person is likely to purchase or sell those securities, and (ii) Stockholder will, and will cause its affiliates to, comply with federal and state securities laws in connection with any purchase of the Company’s securities contemplated by this Agreement.

 

5.                                      Rights Agreement.

 

5.1                               Qualifying Standstill Agreement.  This Agreement shall constitute a “standstill agreement” for purposes of the definition of “Acquiring Person” as defined in the Rights Agreement, dated as of January 12, 2011, by and between the Company and Continental Stock Transfer & Trust Company, as Rights Agent (the “Rights Agreement”).

 

5.2                               Rights Agreements Amendments.  In the event that any amendments or modifications are made to the Rights Agreement or any subsequent rights agreement, such amendments or modifications shall not restrict Stockholder’s ability to acquire beneficial ownership of the Company’s outstanding equity securities up to the 20% Limitation as permitted in accordance with the terms of this Agreement.

 

6.                                      Miscellaneous.

 

6.1                               Breach.  Stockholder shall be responsible for any breach of this Agreement by Stockholder or any of its affiliates of the terms applicable to its affiliates, and Stockholder agrees, at its sole expense, to take all reasonable measures to avoid any breach of this Agreement by any of its affiliates of the terms applicable to its affiliates.  Without limiting the generality of the foregoing, Stockholder agrees that where this Agreement provides that Stockholder shall cause its affiliates to take or refrain from taking certain actions, Stockholder acknowledges and agrees that the failure of such affiliate to take or refrain from taking any such action shall constitute a breach of this Agreement for which Stockholder shall be responsible hereunder.  The foregoing obligation shall not limit the remedies available to the Company for any such breach of this Agreement

 

6.2                               Modification and Waiver.  This Agreement may be modified or waived only by a separate writing by the Company and Stockholder expressly so modifying or waiving this Agreement.  It is understood and agreed that no failure or delay by the Company or Stockholder in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.

 

6.3                               Severability.  The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement.  In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction or applicable stock exchange to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.

 

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6.4                               Entire Agreement.  This Agreement contains the entire agreement between the Company and Stockholder concerning the subject matter hereof and, as of the Effective Date, shall amend, supersede and terminate the Prior Standstill in its entirety.

 

6.5                               Remedies.  It is understood and agreed that money damages may not be a sufficient remedy for any breach of this Agreement by Stockholder and its affiliates and, in addition to all other remedies that the Company may have at law or in equity, the Company shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy for any such breach and Stockholder hereby waives any requirement for the securing or posting of any bond in connection with such remedy.

 

6.6                               Governing Law; Venue.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflicts of law provisions thereof.  The Parties hereby irrevocably and unconditionally consent to the sole and exclusive jurisdiction of, and waive any objection to the laying of venue in, the federal and state courts sitting in the Borough of Manhattan in the City of New York, New York (collectively, the “Appropriate Courts”) for any action, suit or proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or proceeding related thereto except in an Appropriate Court.  Each of the Parties further agrees that service of any process, summons, notice or document by registered mail to its address set forth in the Prior Standstill shall be effective service of process for any action, suit or proceeding brought against it in any Appropriate Court.

 

6.7                               Assignment; Binding Effect.  Without the prior consent of the other Parties, no Party may assign its rights or obligations (in the case of the Company, other than by operation of law) under this Agreement to any person.  This Agreement shall be binding upon Stockholder and its successors and permitted assigns and shall inure to the benefit of, and be enforceable by, the Company and its successors and permitted assigns.

 

6.8                               Expenses.  All costs and expenses incurred in connection with this Agreement shall be paid by the Party incurring such cost or expense.

 

6.9                               Headings.  Headings included in this Agreement are for the convenience of the Parties only and shall be given no substantive or interpretive effect.

 

6.10                        Counterparts; Signatures.  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.  This Agreement or any counterpart may be executed and delivered by facsimile or electronic transmission copies, each of which shall be deemed to be an original.

 

6.11                        Excluded Parties. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement will (i) restrict any leveraged finance fund associated with or affiliated with Ares from making passive investments in debt securities of the Company in the ordinary course of business and/or (ii) apply to or restrict any of the portfolio companies of any investment fund directly or indirectly managed by Ares (the entities described in clauses (i) and

 

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(ii) above, collectively, the “Excluded Entities”), but, in the case of clause (ii), only to the extent that such Excluded Entities are not taking action on behalf or at the direction of Ares.

 

6.12                        Termination. This Agreement shall terminate on October 1, 2011 (the “Termination Date”) provided that Stockholder shall continue to be liable for any breaches hereof that occur prior to the Termination Date.

 

(Signature page follows)

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the date indicated below.

 

 

Executed: August 29, 2011	EXCO RESOURCES, INC.
	By:	/s/ William L. Boeing
	Name:	William L. Boeing
	Title:	Vice President and General Counsel
Executed: August 29, 2011	ARES MANAGEMENT LLC
	By:	/s/ Michael D. Weiner
	Name:	Michael D. Weiner
	Title:	Authorized Signatory