AGREEMENT REGARDING FUTURE FINANCINGS
This Agreement Regarding Future Financings (this "Agreement") is dated
as of the 9th day of April, 1998, by and between Quicksilver Resources Inc.
("QRI"), Enron Capital & Trade Resources Corp. ("ECT"), Trust Company of the
West, in the capacity indicated on the signature pages hereto ("TCW"), and
NationsBank of Texas, N.A. ("NationsBank"). QRI, ECT, TCW and NationsBank
are sometimes collectively referred to as the "Parties" or individually as a
"Party."
RECITALS
WHEREAS, reference is hereby made for all purposes to that certain
Agreement and Plan of Reorganization and Merger dated as of March 31, 1998 by
and among QRI, Mercury Exploration Company, Quicksilver Energy, L.C.,
Michigan Gas Partners, Limited Partnership, TCW and Joint Energy Development
Investments Limited Partnership ("JEDI"), an affiliate of ECT (the "Merger
Agreement"), and to the Credit Agreement dated April 9, 1998 between QRI and
NationsBank, as Agent;
WHEREAS, to induce JEDI and TCW to enter into the Merger Agreement and
to induce NationsBank to enter into the Credit Agreement, QRI has agreed to
enter into this Agreement; and
WHEREAS, capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, for and in consideration of the foregoing, the mutual
obligations set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
1. FINANCINGS.
(a) "Financings" shall mean any transaction to be entered into for
the purpose of financing, refinancing, capitalizing, recapitalizing or
otherwise funding (through indebtedness, equity transactions, production
payments or prepays or other means) an amount greater than $5,000,000.
(b) During the term hereof, if QRI desires to enter into any type of
Financing, it shall notify each of ECT, TCW and NationsBank of the amount
and general nature of such Financing, and shall thereafter provide to each
of ECT, TCW and NationsBank and their respective Affiliates any additional
information that they may reasonably request to evaluate such transaction.
(c) Upon receipt of such notification, any of ECT, TCW and
NationsBank and/or their respective Affiliates may make a proposal to QRI
setting forth in reasonable detail the structure and terms of the Financing
sought by QRI. At QRI's sole discretion, QRI may thereafter negotiate with
any or all of ECT, TCW and NationsBank or their respective Affiliates to
finalize and close a transaction to effectuate such Financing.
(d) Promptly after QRI obtains an unsolicited proposal for Financing
("Third Party Proposal"), QRI shall notify each of ECT, TCW and NationsBank
(except to the extent that any such Party made such Third Party Proposal)
that the Third Party Proposal has been received but not the terms of the
Third Party Proposal. QRI may thereafter negotiate with any or all of ECT,
TCW and NationsBank or their respective Affiliates to finalize and close a
transaction to effectuate such Financing at QRI's sole discretion.
(e) During the term of this Agreement, QRI shall not grant any
preferential right to participate in any Financing to any entity.
2. TERM. This Agreement shall be effective as of the date hereof and
shall terminate on the earlier of (i) the consummation of the merger of QRI
with or into MSR Exploration Ltd., a Delaware corporation, and (ii) (A) with
respect to NationsBank, such time as NationsBank is no longer a lender to QRI
or (B) with respect to each of TCW and JEDI, such time as TCW and its
Affiliates or JEDI and its Affiliates, as applicable, own less than 5% of the
QRI Common Stock on a fully diluted basis.
3. ASSIGNABILITY. No Party shall assign any of its rights or
interests under this Agreement without the express prior written consent of
the other Parties; provided, however, that each of ECT, TCW and NationsBank
and/or its Affiliates may assign all or a portion of its rights or interests
under this Agreement to an Affiliate.
4. SEVERABILITY. Except as otherwise expressly stated herein, in the
event any provision contained in this Agreement shall for any reason be held
invalid, illegal or unenforceable by a court or regulatory agency of
competent jurisdiction, such invalidity, illegality or unenforceability shall
not affect the remaining provisions of this Agreement.
5. WAIVER. The failure of either Party to insist upon strict
performance of any provision hereof shall not constitute a waiver of or
estoppel against asserting the right to require such specific performance in
the future, nor shall a waiver or estoppel in any one instance constitute a
waiver or estoppel with respect to a later breach of a similar nature or
otherwise.
6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
7. AMENDMENTS. This Agreement may not be amended, altered, or
modified except pursuant to a written instrument executed by the Parties or
their successors or assigns.
8. ENTIRETIES. This Agreement constitutes the entire agreement of the
Parties and their Affiliates relating to the matters contained herein.
9. BINDING EFFECT. Subject to Section 3 this Agreement shall be
binding upon the Parties and their respective successors and assigns.
10. FURTHER ASSURANCES. In connection with this Agreement, as well as
all transactions contemplated by this Agreement, the Parties agree to execute
and deliver such additional
documents and instruments and to perform such additional acts as may be
necessary or appropriate to effectuate, carry out, and perform all of the
terms, provisions, and conditions of this Agreement and all such transactions.
11. HEADINGS. The headings of the Sections of the Agreement are for
guidance and convenience of reference only, and shall not limit or otherwise
affect any of the terms or provisions of this Agreement.
EXECUTED as of the date first set forth above.
QUICKSILVER RESOURCES INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Vice President
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ENRON CAPITAL &
TRADE RESOURCES CORP.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Agent and Attorney-in-Fact
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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
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Name: Xxxxxx X. Xxxxxxxx
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Title: Managing Director
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By: /s/ Xxxx XxxXxxxx
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Name: Xxxx XxxXxxxx
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Title: Senior Vice President
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NATIONSBANK OF TEXAS, N.A.
By: /s/ J. Xxxxx Xxxxxx
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Name: J. Xxxxx Xxxxxx
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Title: Vice President
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