AGREEMENT
This Agreement dated September 1, 1998 is by and among Quicksilver
Resources Inc., a Delaware corporation ("QRI"), Joint Energy Development
Investments Limited Partnership, a Delaware limited partnership ("JEDI"),
Trust Company of the West, a California trust company, in the capacity
indicated on the signature page hereto ("TCW"), and Mercury Exploration
Company, a Texas corporation ("Mercury").
WHEREAS, JEDI, TCW and Mercury are stockholders of QRI, and, pursuant to
Section 8(i) of the Stockholders Agreement dated April 9, 1998 by and among
QRI, JEDI, TCW, Mercury and the other stockholders of QRI, QRI is prohibited
from merging with or into any other corporation or entity without the prior
written consent of JEDI and TCW; and
WHEREAS, QRI desires to enter into an Agreement and Plan of Merger and
Reorganization (the "Merger Agreement") with MSR Exploration Ltd., a Delaware
corporation ("MSR"), pursuant to which MSR would be merged with and into QRI
(the "Merger"); and
WHEREAS, JEDI and TCW have agreed to consent to the execution and
delivery of the Merger Agreement and the consummation of the Merger by QRI on
the condition that QRI and Mercury agree with JEDI and TCW as set forth in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
1. QRI shall provide to each of JEDI and TCW copies of (a) all notices
and other communications made or given by QRI or received by QRI from any
other person or entity pursuant to the Merger Agreement, (b) all press
releases and other public announcements proposed to be made regarding the
Merger Agreement or the transactions contemplated thereby, including the
Merger, a reasonable time prior to the release thereof to the public, and (c)
the Registration Statement (as defined in the Merger Agreement), and any
amendment thereto, a sufficient amount of time prior to the filing thereof
with the Securities and Exchange Commission to allow JEDI and TCW to review
and comment on such Registration Statement or amendment thereto. QRI shall
not (a) make, or consent to the making of, any such press release or other
public announcement to which JEDI or TCW reasonably objects in writing or (b)
file any such Registration Statement, or amendment thereto, unless QRI shall
have made all modifications thereto reasonably requested by JEDI or TCW.
2. Without the prior written consent of each of JEDI and TCW, QRI
shall not (a) consent to or approve any act or failure to act (including
without limitation approving any document or instrument) that, pursuant to
the Merger Agreement, requires the consent or approval of QRI, (b) waive any
inaccuracy in any representation or warranty made in the Merger Agreement or
any other document delivered pursuant thereto, (c) waive compliance with, or
extend the time for
performance of, any covenant, agreement or condition contained in the Merger
Agreement or any other document delivered pursuant thereto, (d) agree or
consent to the termination of the Merger Agreement pursuant to Section
8.01(a) of the Merger Agreement, (e) agree to any amendment to the Merger
Agreement, (f) execute, agree or consent to, approve or otherwise be a party
to any agreement, document, instrument or other arrangement relating to the
Merger except for the Merger Agreement and such agreements, documents and
instruments as are expressly contemplated by the Merger Agreement; or (g)
exercise or fail to exercise any other rights of, or modify any obligation
of, QRI under the Merger Agreement except as expressly provided herein.
Notwithstanding the foregoing, QRI shall be entitled to terminate the Merger
Agreement pursuant to the provisions of Section 8.01 of the Merger Agreement
other than Section 8.01(a).
3. In the event that JEDI or TCW believes in good faith that the QRI
is entitled pursuant to Section 8.01 of the Merger Agreement to terminate the
Merger Agreement and delivers to QRI written instructions to terminate the
Merger Agreement, QRI shall immediately take all necessary action to cause
the Merger Agreement to be terminated.
4. Each of the parties hereto represents and warrants to each of the
other parties hereto that, as of the date hereof and the date of the closing
of the Merger, it is not a party to any agreement, document, instrument or
other arrangement in any way related to, or entered into in connection with,
the Merger that has not been fully disclosed in writing to each of the other
parties hereto.
5. This Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of the parties hereto. The rights and
obligations of a party hereunder shall not be assignable without the prior
written consent of the other party.
6. This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but
one and the same Agreement.
7. The laws of the State of Texas shall govern this Agreement without
regard to principles of conflict of laws.
8. This Agreement is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter. The
agreements of the parties contained in this Agreement are not intended, and
shall not be interpreted, to confer any benefit on any person other than the
parties hereto.
9. This Agreement may be amended only by means of a written amendment
signed by all of the parties hereto.
10. All notices provided for hereunder shall be given by telecopy
(confirmed by overnight delivery), air courier guaranteeing overnight
delivery or personal delivery at the following addresses:
If to QRI:
Quicksilver Resources, Inc.
0000 Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
If to JEDI:
Joint Energy Development Investments Limited Partnership
c/o Enron Capital Management Limited Partnership
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
with copies to:
Enron Capital & Trade Resources
Corp. Legal Department
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
Enron Capital & Trade Resources
Compliance Department
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx
Telecopier: (000) 000-0000 or (000) 000-0000
If to TCW:
Trust Company of the West
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
and
TCW Asset Management Company
2175 First Interstate Bank Plaza
0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
with copies to:
Milbank, Tweed, Xxxxxx & XxXxxx
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopier: (000) 000-0000
If to Mercury:
Mercury Exploration Company
0000 Xxxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
or to such other address as any such party may designate by notice in the manner
provided above. All such notices shall be deemed to have been delivered and
received at the time delivered by hand, if personally delivered, when receipt
acknowledged, if telecopied, and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
11. Each of the parties hereto acknowledges and agrees that the other
parties would be damaged irreparably in the event any of the provisions of this
Agreement are not performed in accordance with their specific terms or otherwise
are breached. Accordingly, each of the parties agrees that the other parties
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in any action instituted in any court of the United
States or any state thereof having jurisdiction over the parties and the matter
in addition to any other remedy to which it may be entitled, at law or in
equity, and if any action should be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law.
EXECUTED as of the date first written above.
QUICKSILVER RESOURCES INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: Vice President
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JOINT ENERGY DEVELOPMENT
INVESTMENTS LIMITED PARTNERSHIP
By: Enron Capital Management, Limited
Partnership, its General Partner
By: Enron Capital Corp., its General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Agent and Attorney-in-Fact
------------------------------------
TRUST COMPANY OF THE WEST, a California trust
company, as Sub-Custodian for Mellon Bank for
the benefit of Account No. CPFF 869-3062
By: TCW ASSET MANAGEMENT COMPANY, a
California corporation, as Investment Manager
under that certain Agreement dated as of
June 13, 1994, between TCW Asset Management
Company and Xxxxxx Xxxxxxx Group, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------------
Title: Managing Director
------------------------------------
By: /s/ Xxxx X. XxxXxxxx
---------------------------------------
Name: Xxxx X. XxxXxxxx
-------------------------------------
Title: Senior Vice President
------------------------------------
MERCURY EXPLORATION COMPANY
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: Vice President
------------------------------------
