Exhibit
10.4


 


INVESTMENT
OPPORTUNITY ALLOCATION AGREEMENT


 


This
INVESTMENT OPPORTUNITY ALLOCATION AGREEMENT (this “Agreement”) is dated effective as of October 24, 2014, by
and among American Energy Capital Partners, LP, a Delaware limited partnership (“AECP”), AECP Management, LLC, an Oklahoma
limited liability company (the “Manager”) and American Energy Management Services, LLC, an Oklahoma limited
liability company (“AEMS”).


 


WHEREAS,
AECP is a public limited partnership managed by the Manager formed to invest in developed and undeveloped producing or non-producing
oil and gas properties located onshore in the United States;


 


WHEREAS,
AEMS and other entities affiliated with the Manager (the “AELP Entities”) also act as manager for other entities
(including Direct Investment Vehicles, private equity sponsored entities and other investment vehicles) that invest in upstream,
exploration and production oil and gas assets (the “Investment Opportunities”); and


 


WHEREAS,
AECP, the Manager and AEMS wish to specify the procedure by which Property Acquisitions are allocated among the Direct Investment
Vehicles after Investment Opportunities are allocated between the Direct Investment Vehicles and the other investment vehicles
for which the AELP Entities provide management services.


 


NOW,
THEREFORE, in consideration of the mutual agreements herein made and intending to be legally bound, the parties hereby agree as
follows:


 


ARTICLE
I

DEFINITIONS


 


(a)          “Direct
Investment Vehicles’’ means AECP and other entities with similar investment
objectives that seek to invest in Property Acquisitions for which the AELP Entities manage assets.


 


(b)          “Excluded
Areas” means the Utica Shale areain Ohio, West Virginia and Pennsylvania,
the Woodford Shale area in Central Northern Oklahoma, the Wolfcamp play area of the southern Permian Basin in West Texas and
the core of the liquids rich portion of the Marcellus Shale play in Northern West Virginia.


 


(c)          “Excluded
Assets” means leasehold interests,working interests, royalty, overriding
royalty, production payments, net profits interests and other interests in developed and undeveloped oil and gas properties,
including, without limitation, Leases and Wells, in the Excluded Areas.


 


(d)          “FWPP
Opportunity” shall mean any right of Aubrey K. McClendon or any entity of which
he is an affiliate to acquire a working interest in any oil and gas property pursuant to the Chesapeake Energy Corporation Founders
Well Participation Program, dated as of June 10, 2005.


 


(e)          “Property
Acquisition” means any acquisitionor proposed acquisition of developed
and undeveloped producing or non-producing oil and gas properties located onshore in the United States, but excluding any
Excluded Assets and any FWPP Opportunity.


 






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ARTICLE
II


 


AEMS
INVESTMENT ALLOCATION COMMITTEE


 


AEMS
will establish and maintain an investment allocation committee (the “Allocation Committee”) to
allocate Investment Opportunities between the Direct Investment Vehicles and the other investment vehicles for which the AELP
Entities provide management services based on an evaluation of the following primary factors: (i) investment objectives of
the Direct Investment Vehicles and the other investment vehicles; (ii) current production levels of such Investment
Opportunity; (iii) expected timing of cash flows from such Investment Opportunity; (iv) percentage of such Investment
Opportunity which is comprised of undeveloped acreage and undrilled locations; and (v) risk profile of such Investment
Opportunity. If a Proposed Acquisition is allocated to the Direct Investment Vehicles, such Proposed Acqusition will be
allocated amongst the Direct Investment Vehicles in accordance with Article III of this Agreement.


 


ARTICLE
III


ALLOCATION PROCEDURE


 


The
parties hereto agree that, during the term of this Agreement, if an opportunity for a Proposed Acquisition is identified, the opportunity
will be allocated in chronological order to the Direct Investment Vehicle that has not been presented an opportunity to acquire
a Property Acquisition for the longest period of time. The initial allocation order will be based on the effective date of the
applicable management agreement between an AELP Entity and the Direct Investment Vehicle with the first allocation going to the
Direct Investment Vehicle with the earliest effective date. Any declined opportunity will be allocated to the next Direct Investment
Vehicle in such chronological order.


 


ARTICLE
IV


MISCELLANEOUS


 


4.1           Termination.
This Agreement terminates without notice on the earlier of the date on which the Management Services Agreement terminates or expires
in accordance with its terms.


 


4.2           Binding
Nature of Agreement: Successors and Assigns. This Agreement is binding upon and inures to the benefit of the parties hereto
and their respective heirs, personal representatives, successors and assigns.


 


4.3           Integration.
This Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof,
and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or
written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the terms hereof.


 


4.4           Amendments:
Waivers. This Agreement and the terms hereof may not be amended, supplemented or modified except in an instrument in writing
executed by the parties hereto. No waiver of any term or condition hereof or obligation hereunder shall be valid unless made in
writing and signed by the party to which performance is due.


 


4.5           GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW. EACH OF THE PARTIES HERETO IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND
THE UNITED STATES DISTRICT COURT FOR ANY DISTRICT WITHIN SUCH STATE FOR THE PURPOSE OF ANY ACTION OR JUDGMENT RELATING TO OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND TO THE LAYING OF VENUE IN SUCH
COURT.


 






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4.6           WAIVER
OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.


 


4.7           No
Waiver: Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of a party hereto, any right, remedy,
power or privilege hereunder will operate as a waiver thereof; nor will any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.


 


4.8           Article
and Section Headings. The article, section and subsection headings in this Agreement are for convenience in reference only
and will not be deemed to alter or affect the interpretation of any provisions hereof.


 


4.9           Counterparts.
This Agreement may be executed (including by facsimile transmission) by the parties to this Agreement on any number of separate
counterparts, and all of said counterparts taken together will be deemed to constitute one and the same instrument.


 


4.10         Severability.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.


 


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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on October 28, 2014, effective as of the date first written above.


 








	 	American Energy Capital
    Partners, LP
	 	a Delaware
    limited partnership
	 	 
	 	By:	American Energy Capital Partners
    GP, LLC its General Partner
	 	 	 
	 	By:	/s/
    Edward M. Weil, Jr.
	 	 	Edward M. Weil, Jr.
	 	 	Chief Executive Officer and President
	 	 	 
	 	AECP MANAGEMENT, LLC
	 	 
	 	By:	/s/
    Aubrey K. McClendon 
	 	 	Aubrey K. McClendon, CEO
	 	 	 
	 	AMERICAN ENERGY MANAGEMENT
    SERVICES, LLC
	 	 
	 	By:	/s/
    Aubrey K. McClendon 
	 	 	Aubrey K. McClendon, CEO









 








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