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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made and
entered into as of December 29, 1997, by and among Queen Sand Resources, Inc., a
Delaware corporation ("Company"), Enron Capital & Trade Resources Corp., a
Delaware corporation, as Agent for the Lenders described below ("Agent"), and,
solely for the purpose of the matters set forth in Section 3.12 hereof, Joint
Energy Development Investments Limited Partnership, a Delaware limited
partnership ("JEDI").
This Agreement is made in connection with the Subordinated
Revolving Credit Loan Agreement dated as of December 29, 1997 (as the same may
be amended or supplemented from time to time, "Loan Agreement") among Queen Sand
Resources, Inc., a Nevada corporation ("Borrower"), and the lenders who are or
may become party thereto ("Lenders"), and the Agent. In order to induce the
Lender to enter into the Loan Agreement, the Company has executed a Guaranty and
agreed to provide the registration and other rights set forth in this Agreement.
The execution and delivery of this Agreement is a condition precedent to the
Initial Loans (as defined in the Loan Agreement).
The parties agree as follows:
ARTICLE I
Section 1.01. Definitions. Capitalized terms used and not
otherwise defined herein which are defined in the Loan Agreement are used herein
as so defined. The terms set forth below are used herein as so defined:
"Common Stock" means the common stock, par value $0.0015 per
share, of the Company.
"Exchange Shares" means any shares of Common Stock issued
pursuant to Section 2.11 of the Loan Agreement (or any other securities issued
or issuable in respect of such shares of Common Stock pursuant to any dividend,
distribution, recapitalization, merger or consolidation or otherwise) excluding
any such shares which have ceased to be Registrable Securities pursuant to
Section 1.02 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder" means the record holder of any Exchange Shares.
"Registrable Securities" means, subject to Section 1.02
hereof, the Exchange Shares and any other shares of Common Stock held by a
Holder that have not ceased to be Registrable Securities pursuant to Section
1.02 hereof.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and the rules and regulations of the Commission promulgated
thereunder.
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"Selling Holder" means a Holder who is selling Registrable
Securities pursuant to a Registration Statement (as defined herein).
"Voting Securities" of any Person means capital stock or other
equity interests of such Person which ordinarily is entitled (without regard to
the occurrence of any additional event or contingency) to vote for the election
of directors (or persons performing similar functions) of such Person.
Section 1.02. Registrable Securities. Any Registrable Security
will cease to be a Registrable Security when (i) a Registration Statement
covering such Registrable Security has been declared effective by the Commission
and such Registrable Security has been issued, sold or disposed of pursuant to
such effective Registration Statement or (ii) such Registrable Security is
disposed of pursuant to Rule 144 (or any similar provision then in force) under
the Securities Act, (iii) such Registrable Security is eligible to be disposed
of pursuant to paragraph (k) of Rule 144 (or any similar provision then in
force) under the Securities Act or (iv) such Registrable Security is held by the
Company or one of its Subsidiaries.
ARTICLE II
Section 2.01. Demand Registration. (a) Any time after the date
of this Agreement, any Holder or Holders who collectively beneficially own at
least a majority of the Exchange Shares outstanding at such time may request (a
"Request Notice") the Company to register under the Securities Act all or any
portion (provided that such portion will have an aggregate offering price of at
least $1,000,000) of the Registrable Securities that are held for sale in the
manner specified in the Request Notice; provided that the Company shall be
obligated to register Registrable Securities pursuant to this Section 2.01 on
one occasion only.
(b) Promptly following receipt of a Request Notice, the
Company shall immediately notify any Person who is a Holder (except the Holder
or Holders who gave the Request Notice) of the receipt of a Request Notice and
shall use its best efforts to file a registration statement under the Securities
Act (each such registration statement is hereinafter referred to as a
"Registration Statement") effecting the registration under the Securities Act,
for public sale in accordance with the method of disposition specified in such
Request Notice, the Registrable Securities specified in the Request Notice (and
in any notices received from other Holders no later than the 10th Business Day
after receipt of the notice sent by the Company) (such other Holders and the
Holder or Holders who gave the Request Notice are hereinafter referred to as the
"Requesting Holders"). If such method of disposition shall be an underwritten
public offering, the Company may designate the managing underwriter of such
offering, subject to the approval of the Requesting Holders holding a majority
of the Registrable Securities to be registered, which approval shall not be
withheld unreasonably. A request pursuant to this Section 2.01 shall be counted
only when (i) all the Registrable Securities requested to be included in any
such registration have been so included, (ii) the corresponding Registration
Statement has become effective under the Securities Act, and (iii) the public
offering has been consummated and the Registrable Securities have been sold on
the terms and conditions specified therein. Notwithstanding anything to the
contrary contained herein,
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the Company may delay the filing or effectiveness of a Registration Statement
after receipt of a Request Notice (i) for up to 90 days if at the time of such
request, the Company is engaged in a firm commitment underwritten public
offering of its securities in which Holders may include Registrable Securities
and for which the Company has delivered the notice to Holders required by the
first sentence of Section 2.02 or (ii) for up to 60 days if at the time of such
request, the Board of Directors of the Company determines in its reasonable
judgment and in good faith that the filing of such a Registration Statement or
the making of any required disclosure in connection therewith would have a
material adverse effect on the Company or substantially interfere with a
significant transaction in which the Company is then engaged; provided that the
Company may not delay the filing of a Registration Statement in reliance on this
clause (ii) more than once during any period of twelve consecutive calendar
months.
(c) The Company shall be entitled to include in any
Registration Statement filed pursuant to this Section 2.01, for sale in
accordance with the method of disposition specified by the Requesting Holders,
Voting Securities to be sold by the Company for its own account, except as and
to the extent that, in the opinion of the managing underwriter (if such method
of disposition shall be an underwritten public offering), such inclusion would
materially jeopardize the successful marketing of the Registrable Securities to
be sold. Any Person other than a Holder entitled to piggyback registration
rights with respect to a Registration Statement filed pursuant to this Section
2.01 may include Voting Securities of the Company with respect to which such
rights apply in such Registration Statement for sale in accordance with the
method of disposition specified by the Requesting Holder, except and to the
extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering) such inclusion would
materially jeopardize the successful marketing of the Registrable Securities to
be sold. Except as provided in this subsection (c), the Company will not effect
any other registration of its Voting Securities (except with respect to
Registration Statements on Form S-4 or S-8 for purposes permissible under such
forms as of the date hereof, or any successor forms for comparable purposes that
may be adopted by the Commission), whether for its own account or that of any
other security holder, from the date of receipt of a Request Notice requesting
the registration of an underwritten public offering until the completion of the
distribution by the underwriters of all securities thereunder.
Section 2.02. Piggy-Back Registration. If the Company proposes
to register any equity securities under the Securities Act for sale to the
public for cash, whether for its own account or for the account of other
security holders or both (except with respect to Registration Statements on
Forms S-4 or S-8 for purposes permissible under such forms as of the date
hereof, or any successor forms for comparable purposes that may be adopted by
the Commission), each such time it will give written notice to all Holders of
its intention to do so no less than 15 Business Days prior to the anticipated
filing date. Upon the written request of any Holder, received by the Company no
later than the 10th Business Day after receipt by such Holder of the notice sent
by the Company, to register, on the same terms and conditions as the securities
otherwise being sold pursuant to such registration, any of its Registrable
Securities (which request shall state the intended method of disposition
thereof), the Company will use its best efforts to cause the Registrable
Securities as to which registration shall have been so requested to be included
in the securities to be covered by the Registration Statement proposed to be
filed by the Company, on the same terms and conditions as any similar securities
included therein, all to the extent requisite to permit the sale or other
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disposition by each Holder (in accordance with its written request) of such
Registrable Securities so registered; provided, however, that the Company may at
any time prior to the effectiveness of any such Registration Statement, in its
sole discretion and without the consent of any Holder, abandon the proposed
offering in which any Holder had requested to participate. The number of
Registrable Securities to be included in such a registration may be reduced or
eliminated if and to the extent, in the case of an underwritten offering, the
managing underwriter shall render to the Company its opinion that such inclusion
would materially jeopardize the successful marketing of the securities
(including the Registrable Securities) proposed to be sold therein; provided,
however, that (a) no Exchange Shares shall be excluded from such registration
unless all other Registrable Securities held by any Holder which are not
Exchange Shares have been excluded from such registration (except to the extent
that such other Registrable Securities may be included in the registration
pursuant to registration rights other than those granted hereunder) and (b) such
number of shares of Registrable Securities shall not be reduced (i) if any
securities included in such registration are included other than for the account
of (x) the Company or (y) persons exercising registration rights granted
pursuant to the agreements listed on Schedule I hereto (as in effect as of the
date hereof) (the "Schedule I Agreements") and (ii) except as provided below,
unless the shares included in the registration pursuant to piggy-back
registration rights granted pursuant to the Schedule I Agreements are also
reduced on a pro rata basis; provided further that, notwithstanding clause (ii)
above, the piggy-back registration rights granted hereby shall be subject to the
prior right of holders of registrable securities under the Registration Rights
Agreement dated May 6, 1997 between the Company and JEDI (the "JEDI Rights
Agreement") to include any or all of such registrable securities before any
Holder includes any or all of its Registrable Securities in any registration
relating to an underwritten public offering with respect to which, in the
opinion of the managing underwriter, the inclusion in the offering of all shares
requested to be registered by all Persons holding registration rights would
materially jeopardize the successful marketing of the securities to be sold.
From and after the date of this Agreement and until no Registrable Securities
remain outstanding, the Company shall not grant any piggy-back registration
rights to any Person unless such rights are expressly made subject to the prior
right of Holders to include any or all of their Registrable Securities before
such other Person includes any shares in any registration relating to an
underwritten public offering with respect to which, in the opinion of the
managing underwriter, the inclusion in the offering of all shares requested to
be registered by all Persons holding registration rights would materially
jeopardize the successful marketing of the securities (including the Registrable
Securities) to be sold. In the event that the number of Registrable Securities
to be included in a registration is to be reduced as provided above, within 10
Business Days after receipt by each Holder proposing to sell Registrable
Securities pursuant to the registered offering of the opinion of such managing
underwriter, all such Selling Holders may allocate among themselves the number
of shares of such Registrable Securities which such opinion states may be
distributed without adversely affecting the distribution of the securities
covered by the Registration Statement, and if such Holders are unable to agree
among themselves with respect to such allocation, such allocation shall be made
in proportion to the respective numbers of shares specified in their respective
written requests. Notwithstanding anything to the contrary contained in this
Section 2.02, in the event that there is a firm underwriting commitment offer of
securities of the Company pursuant to a Registration Statement covering
Registrable Securities and a Person does not elect to sell its Registrable
Securities to the underwriters of the Company's securities in connection with
such offering, such Person shall not offer for sale, sell, grant any option for
the sale of, or otherwise
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dispose of, directly or indirectly, any shares of Common Stock, or any
securities convertible into or exchangeable into or exercisable for any shares
of Common Stock during the period of distribution of the Company's securities by
such underwriters, which shall be specified in writing by the underwriters,
shall not exceed any period during which management of the Company and others
are similarly prohibited from disposing of shares of Common Stock and shall not
exceed 180 days following the date of effectiveness under the Securities Act of
the Registration Statement relating thereto if the net proceeds to the Company
from such offering will be $25,000,000 or greater and shall not exceed 60 days
following the date of effectiveness under the Securities Act of the Registration
Statement relating thereto if the net proceeds to the Company from such offering
will be less than $25,000,000.
Section 2.03. Registration Procedures. If and whenever the Company is
required pursuant to this Agreement to effect the registration of any of the
Registrable Securities under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and file as promptly as possible with the
Commission a Registration Statement, on a form available to the
Company, with respect to such securities (which filing shall be made
within 45 days after the receipt by the Company of a Request Notice)
and use its best efforts to cause such Registration Statement to become
and remain effective for the period of the distribution contemplated
thereby (determined pursuant to subparagraph (g) below);
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective for the period specified in subsection (g) below
and as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
Registration Statement in accordance with the sellers' intended method
of disposition set forth in such Registration Statement for such
period;
(c) furnish to each Selling Holder and to each underwriter
such number of copies of the Registration Statement and the prospectus
included therein (including each preliminary prospectus and each
document incorporated by reference therein to the extent then required
by the rules and regulations of the Commission) as such Persons may
reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities covered by such Registration
Statement;
(d) use its best efforts to register or qualify the
Registrable Securities covered by such Registration Statement under the
securities or blue sky laws of such jurisdictions as the Selling
Holders or, in the case of an underwritten public offering, the
managing underwriter, shall reasonably request, provided, however, that
the Company will not be required to subject itself to taxation in any
such jurisdiction or to consent to general service of process in any
such jurisdiction;
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(e) immediately notify each Selling Holder and each
underwriter, at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, of the happening of any event
as a result of which the prospectus contained in such Registration
Statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing and as promptly as
practicable amend the Registration Statement or supplement the
prospectus or take other appropriate action so that the prospectus does
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
then existing; provided, however, that, in the case of a shelf
registration, the Company, on one occasion during each such
registration, may delay taking such action for a period of 45 days,
during which time the Selling Holders shall not sell any Registrable
Securities, if the Board of Directors determines in its reasonable
judgment and in good faith that the making of any required disclosure
in connection therewith would have a material adverse effect on the
Company or substantially interfere with a significant transaction in
which the Company is then engaged;
(f) in the case of an underwritten public offering, furnish,
(i) on the date that Registrable Securities are delivered to the
underwriters for sale pursuant to such Registration Statement, an
opinion of counsel for the Company dated as of such date and addressed
to the underwriters and to the Selling Holders, stating that such
Registration Statement has become effective under the Securities Act
and that (A) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated
under the Securities Act, (B) the Registration Statement, the related
prospectus, and each amendment or supplement thereof, comply as to form
in all material respects with the requirements of the Securities Act
and the applicable rules and regulations thereunder of the Commission
(except that such counsel need express no opinion as to the financial
statements or any engineering report contained or incorporated therein)
and (C) to such other effects as may reasonably be requested by counsel
for the underwriters, and (ii) on the effective date of the
Registration Statement and on the date that Registrable Securities are
delivered to the underwriters for sale pursuant to such Registration
Statement, a letter dated such dates from the independent accountants
retained by the Company, addressed to the underwriters and to the
Selling Holders, stating that they are independent public accountants
within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company and the
schedules thereto that are included or incorporated by reference in the
Registration Statement or the prospectus, or any amendment or
supplement thereof, comply as to form in all material respects with the
applicable requirements of the Securities Act and the published rules
and regulations thereunder, and such letter shall additionally address
such other financial matters (including information as to the period
ending no more than five Business Days prior to the date of such
letter) included in the Registration Statement in respect of which such
letter is being given as the underwriters may reasonably request;
(g) make available for inspection by one representative of the
Selling Holders designated by a majority thereof, any underwriter
participating in any distribution pursuant
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to such Registration Statement, and any attorney, accountant or other
agent retained by such representative of the Selling Holders or
underwriter (the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all
information reasonably requested by any such Inspector in connection
with such Registration Statement. For purposes of subsections (a) and
(b) above and of Section 2.01(c) of this Agreement, the period of
distribution of Registrable Securities in a firm commitment
underwritten public offering shall be deemed to extend until each
underwriter has completed the distribution of all securities purchased
by it, and the period of distribution of Registrable Securities in any
other registration shall be deemed to extend until the earlier of the
sale of all Registrable Securities covered thereby or one year,
excluding any period of time during which Selling Holders are
prohibited from selling Registrable Securities pursuant to Section 2.02
or Section 2.03(e);
(h) use its best efforts to keep effective and maintain for
the period specified in subparagraph (g) a registration, qualification,
approval or listing obtained to cover the Registrable Securities as may
be necessary for the Selling Holders to dispose thereof and shall from
time to time amend or supplement any prospectus used in connection
therewith to the extent necessary in order to comply with applicable
law;
(i) use its best efforts to cause the Registrable Securities
to be registered with or approved by such other governmental agencies
or authorities as may be necessary by virtue of the business and
operations of the Company to enable the Selling Holders to consummate
the disposition of such Registrable Securities; and
(j) enter into customary agreements (including, if requested,
an underwriting agreement in customary form) and take such other
actions as are reasonably requested by the Selling Holders or the
underwriters, if any, in order to expedite or facilitate the
disposition of such Registrable Securities.
In connection with each registration hereunder, each Selling Holder
will furnish promptly to the Company in writing such information with respect to
itself and the proposed distribution by it as shall be reasonably necessary in
order to ensure compliance with federal and applicable state securities laws.
In connection with each registration hereunder with respect to an
underwritten public offering, the Company and each Selling Holder agrees to
enter into a written agreement with the managing underwriter or underwriters
selected in the manner herein provided in such form and containing such
provisions as are customary in the securities business for such an arrangement
between underwriters and companies of the Company's size and investment stature,
provided that such agreement shall not contain any such provision applicable to
the Company or the Selling Holders that is inconsistent with the provisions
hereof; and further provided, that the time and place of the closing under said
agreement shall be as mutually agreed upon among the Company, the Selling
Holders and such managing underwriter.
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Section 2.04. Expenses. (a) All expenses incident to the
Company's performance under or compliance with this Agreement, including without
limitation, all registration and filing fees, blue sky fees and expenses,
printing expenses, listing fees, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars and costs of insurance and reasonable out-of-pocket expenses
(including, without limitation, legal fees of one counsel for all Selling
Holders) of the Selling Holders, but excluding any Selling Expenses (as defined
below), are herein called "Registration Expenses." All underwriting fees,
discounts and selling commissions allocable to the sale of the Registrable
Securities are herein called "Selling Expenses."
(b) The Company will pay all Registration Expenses in
connection with each Registration Statement filed pursuant to this Agreement,
whether or not the Registration Statement becomes effective, and the Selling
Holders shall pay Selling Expenses in connection with any Registrable Securities
registered pursuant to this Agreement.
Section 2.05. Indemnification. (a) In the event of a
registration of any Registrable Securities under the Securities Act pursuant to
this Agreement, the Company will indemnify and hold harmless each Selling Holder
thereunder and each underwriter of Registrable Securities thereunder and each
Person, if any, who controls such Selling Holder or underwriter within the
meaning of the Securities Act and the Exchange Act, against any losses, claims,
damages or liabilities (including reasonable attorneys' fees) ("Losses"), joint
or several, to which such Selling Holder or underwriter or controlling Person
may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such Losses, (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such Registrable Securities
were registered under the Securities Act pursuant to this Agreement, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
such Selling Holder, each such underwriter and each such controlling Person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Loss or actions; provided, however, that the
Company will not be liable in any such case if and to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by such Selling Holder, such underwriter
or such controlling Person in writing specifically for use in such Registration
Statement or prospectus.
(b) Each Selling Holder agrees to indemnify and hold harmless
the Company, its directors, officers, employees and agents and each Person, if
any, who controls the Company within the meaning of the Securities Act or of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Selling Holder, but only with respect to information regarding such Selling
Holder furnished in writing by or on behalf of such Selling Holder expressly for
inclusion in any Registration Statement or prospectus relating to the
Registrable Securities, or any amendment or supplement thereto; provided,
however, that the liability of such Selling Holder shall not be greater in
amount than the dollar amount of the proceeds (net of any Selling Expenses)
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received by such Selling Holder from the sale of the Registrable Securities
giving rise to such indemnification.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to any indemnified party other than under this Section 2.05. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 2.05 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, (i) if the indemnifying party has failed to assume the defense
and employ counsel or (ii) if the defendants in any such action include both the
indemnified party and the indemnifying party and counsel to the indemnified
party shall have concluded that there may be reasonable defenses available to
the indemnified party that are different from or additional to those available
to the indemnifying party or if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, then the indemnified party shall have the right to select a separate
counsel and to assume such legal defense and otherwise to participate in the
defense of such action, with the expenses and fees of such separate counsel and
other expenses related to such participation to be reimbursed by the
indemnifying party as incurred, provided that such fees and expenses shall be
reimbursed for only one counsel for all indemnified parties.
(d) If the indemnification provided for in this Section 2.05
is available to the Company or the Selling Holders or is insufficient to hold
them harmless in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then each such indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities and
expenses as between the Company on the one hand and each Selling Holder on the
other, in such proportion as is appropriate to reflect the relative fault of the
Company on the one hand and of each Selling Holder on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and each Selling Holder on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statements of a material fact or the omission or
alleged omission to state a material fact has been made by, or relates to,
information supplied by such party, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
No person of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who is not guilty of such fraudulent misrepresentation.
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ARTICLE III
Section 3.01. Communications. All notices and other
communications provided for or permitted hereunder shall be made in writing by
telecopy, courier service or personal delivery:
(i) if to a Holder, (A) if such Holder is a Lender,
initially, at the address of such Lender set forth in the Loan
Agreement, (B) if such Holder is not a Lender, initially, at
such address delivered to the Company pursuant to Section 3.11
hereof, and (C) for any Holder, at such other address, notice
of which is given by such Holder in accordance with the
provisions of this Section 3.01, and
(ii) if to the Company, initially at its address set
forth in the Guaranty and thereafter at such other address,
notice of which is given in accordance with the provisions of
this Section 3.01.
All such notices and communications shall be deemed to have
been 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.
Section 3.02. Successor and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties.
Section 3.03. Counterparts. 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.
Section 3.04. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 3.05. Governing Law. The laws of the State of Texas
shall govern this Agreement without regard to principles of conflict of laws.
Section 3.06. Severability of Provisions. Any provision of
this Agreement which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting or impairing the validity or enforceability of such provision in any
other jurisdiction.
Section 3.07. Entire Agreement. This Agreement, together with
the Loan Agreement and the other Loan Documents 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. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the securities transferred pursuant to the Loan Agreement. This Agreement, the
Loan Agreement and the other
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Loan Documents supersede all prior agreements and understandings between the
parties with respect to such subject matter.
Section 3.08. Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement, the successful party shall
be entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
Section 3.09. Amendment. This Agreement may be amended only by
written amendment signed by (a) while no Exchange Shares are issued and
outstanding, the Agent (with the consent of the Majority Lenders) and the
Company and (b) while Exchange Shares are issued and outstanding, the Agent
(with the consent of the Majority Lenders), the Holders of a majority of the
Exchange Shares, and the Company.
Section 3.10. Registrable Securities Held by the Company or
Its Affiliates. In determining whether the Holders of the required amount of
Registrable Securities have concurred in any direction, amendment, supplement,
waiver or consent, Registrable Securities owned by the Company or one of its
Affiliates shall be disregarded.
Section 3.11. Assignment of Rights. (a) The rights of any
Holder under this Agreement may be assigned (i) to any Person who acquires
Exchange Shares or (ii) in connection with any assignment of any Lender's rights
under the Loan Agreement permitted thereunder. Any assignment of registration
rights pursuant to this Section 3.11(a) shall be effective only upon receipt by
the Company of written notice from such assigning Holder stating the name and
address of any assignee.
(b) The rights of an assignee under Section 3.11(a) shall be
the same rights granted to the assigning Holder under this Agreement. In
connection with any such assignment, the term "Holder" as used herein shall,
where appropriate to assign the rights and obligations of the assigning Holder
hereunder to such assignee, be deemed to refer to the assignee.
Section 3.12. JEDI Consent Pursuant to Section 2.01(d) of the
JEDI Rights Agreement, JEDI hereby consents to the grant of demand registration
rights pursuant to Section 2.01 of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
QUEEN SAND RESOURCES, INC., a Delaware
corporation
By:
--------------------------------------------
Xxxxxx X. Xxxxxxx
Chief Operating Officer and Executive
Vice President
ENRON CAPITAL & TRADE RESOURCES CORP.,
a Delaware corporation, as Agent
By:
--------------------------------------------
Xxxxxx X. Xxxxxxx
Agent and Attorney-in-Fact
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JOINT ENERGY DEVELOPMENT
INVESTMENTS LIMITED PARTNERSHIP
(solely for the purpose of the matters set forth in
Section 3.12 hereof)
By: Enron Capital Management Limited
Partnership, its General Partner
By: Enron Capital Corp., its General
Partner
By:
-------------------------------------
Name:
-------------------------------------
Agent and Attorney-in-Fact
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SCHEDULE I
OTHER REGISTRATION RIGHTS
[BORROWER TO PROVIDE]
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