ex10-1.htm


     

    Exhibit
10.1

     

    Option,
Right of First Refusal, and Waiver in Amendment to

    Omnibus
Agreement and Gas Gathering and Processing Agreement

     

    This Option, Right of First Refusal, and Waiver in
Amendment to Omnibus Agreement and Gas Gathering and Processing Agreement (this
“Agreement”)
is executed as of this 9th day of
June 2009 (the “Effective
Date”) by and among Quicksilver Resources Inc. (“Quicksilver”),
Quicksilver Gas Services LP (the “MLP”),
Quicksilver Gas Services GP LLC (“General
Partner”), Cowtown Pipeline Partners L.P. (“CPP”),
and Cowtown Gas Processing Partners L.P. (“CGPP”),
who each individually may be referred to as a “Party”
and together are referred to as the “Parties”.

     

    Recitals

    
 

    
      	
               
      

            	
              I.

            	
              Quicksilver,
      the MLP, and General Partner are parties to that certain Omnibus
      Agreement, effective as of August 10, 2007 (the “Omnibus
      Agreement”).

            


    

    
 

    
      	
               
      

            	
              II.

            	
              Quicksilver,
      CPP, and CGPP are parties to that certain Sixth Amended and Restated Gas
      Gathering and Processing Agreement, dated to be effective as of September
      1, 2008 (the “Gas Gathering and
      Processing Agreement”).

            


    

    
 

    
      	
               
      

            	
              III.

            	
              On
      August 8, 2008 (the “Alliance Closing
      Date”), Quicksilver acquired certain oil and gas assets, including
      midstream assets, in the Alliance Airport area of Tarrant and Denton
      counties in the State of Texas, a portion of which constitute Subject
      Assets.

            


    

    
 

    
      	
               
      

            	
              IV.

            	
              On
      March 25, 2009, consistent with the provisions of Subsection 2.3(b)(i) of
      the Omnibus Agreement, Quicksilver transmitted a notice and Offer to
      General Partner to sell those Subject Assets and other related assets
      (together, the “Alliance Midstream
      Assets”) to the MLP.

            


    

    
 

    
      	
               
      

            	
              V.

            	
              The
      notice and Offer also contained a request by Quicksilver that, should the
      MLP elect not to pursue the purchase of the Alliance Midstream Assets, the
      MLP, CPP, and CGPP waive certain rights granted them under the Omnibus
      Agreement and the Gas Gathering and Processing
  Agreement.

            


    

    
 

    
      	
               
      

            	
              VI.

            	
              The
      MLP, General Partner, CPP, and CGPP have agreed to waive certain rights as
      requested by Quicksilver, but only in accordance with the provisions of
      this Agreement.

            


    

    
 

    
      
        
          
            
               

            

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    Now therefore, for and in consideration
of the premises, covenants, conditions, and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Quicksilver (for itself and for the other
Quicksilver Entities), the MLP (for itself and for the other Partnership
Entities except the General Partner, CPP, and CGPP, who are executing this
Agreement independently), the General Partner, CPP, and CGPP agree as
follows:

    
 

    
      	
              1.

            	
              Definitions.  Capitalized
      words, terms, and phrases not otherwise defined in this Agreement shall
      have the meanings given them in the Omnibus
  Agreement.

            


    

    
 

    
      	
              2.

            	
              Omnibus
      Agreement waiver.  Effective from and after the Alliance
      Closing Date, the lands described and depicted on Exhibit “A” to this
      Agreement (the “Alliance Waiver
      Area”) shall be excluded from the definition of Quicksilver
      Counties.  Except as provided in this Agreement, the Partnership
      Entities waive any and all rights arising under the Omnibus Agreement and
      pertaining to the Alliance Waiver
Area.

            


    

    
 

    
      	
              3.

            	
              Gas
      Gathering and Processing Agreement waiver. Effective from and after
      the Alliance Closing Date, the Alliance Waiver Area shall be excluded from
      the definition of “Contract Area”, as that term is used in the Gas
      Gathering and Processing Agreement.

            


    

    
 

    
      	
              4.

            	
              Grant
      of Option. Unless earlier terminated as provided in this Agreement,
      beginning on the Effective Date and ending on August 10, 2017 (the “Option Term”),
      the MLP shall have an option (the “Option”) to
      acquire not less than all of the Option Assets.  For purposes of
      this Agreement, the “Option Assets”
      shall, subject to any conveyances permitted under Sections 6 and 7,
      consist of:

            


    

    
 

    
      	
               
      

            	
              a.

            	
              the
      Alliance Midstream Assets, and any additions, extensions, expansions,
      upgrades, modifications, and changes to them located in the Alliance
      Waiver Area;

            


    

    
 

    
      	
               
      

            	
              b.

            	
              any
      other assets located, constructed, or maintained by any of the Quicksilver
      Entities and located in the Alliance Waiver Area that, but for Sections 2
      and 3 of this Agreement, would be considered either Subject Assets or part
      of the Gathering System (as that term is defined in the Gas Gathering and
      Processing Agreement) or both; and

            


    

    
 

    
      	
               
      

            	
              c.

            	
              all
      contracts, agreements, instruments, and other rights then applicable to
      the items described in Subsections 4.a and 4.b
  above.

            


    

    
 

    
      
        
          
            Option,
Right of First Refusal, and Waiver in Amendment to

            Omnibus
Agreement and Gas Gathering and Processing Agreement

            Page
2 of 12

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    5.           Option
terms and conditions.  Exercise of the Option shall be governed
by the following:

    
 

    
      	
               
      

            	
              a.

            	
              If
      the MLP desires to exercise the Option, it shall notify Quicksilver (the
      “Option
      Notice”) of such desire.  The Option Notice shall
      include:

            


    

    
 

    
      	
               
      

            	
              i.

            	
              the
      MLP’s  proposed purchase price for the Option Assets, which
      shall not be less than the MLP’s good faith estimate of the fair market
      value of the Option Assets (the “Purchase
      Price”); and

            


    

    
 

    
      	
               
      

            	
              ii.

            	
              the
      form of a definitive agreement, containing commercially reasonable terms,
      to effectuate the purchase and sale of the Option Assets (the “PSA”).

            


    

    
 

    
      	
               
      

            	
              b.

            	
              As
      soon as practicable, but in any event within 30 days after receipt of the
      Option Notice, Quicksilver shall notify the MLP (the “Option
      Response”) whether Quicksilver agrees with the proposed Purchase
      Price and PSA.

            


    

    
 

    
      	
               
      

            	
              c.

            	
              If
      Quicksilver agrees with the proposed Purchase Price and the PSA, the MLP
      and all applicable Quicksilver Entities and Partnership Entities shall, as
      soon as commercially reasonable, execute the PSA and proceed to close the
      sale of the Option Assets.

            


    

    
 

    
      	
               
      

            	
              d.

            	
              If
      Quicksilver and the MLP are unable to agree on either the Purchase Price
      or the terms and conditions of the PSA within 30 days after the MLP’s
      receipt of the Option Response, Quicksilver and the MLP shall engage a
      mutually acceptable independent banking firm or other independent Person
      that is an expert in valuing midstream assets like the Option Assets (the
      “Option Assets
      Valuation Expert”).  Quicksilver and the MLP shall each
      bear 1⁄2 of the costs and expenses associated with the engagement and
      employment of the Option Assets Valuation Expert.  The Option
      Assets Valuation Expert shall determine, to the extent that the Parties
      are unable to agree: i. the fair market value of the Option Assets, which
      shall be their Purchase Price; and ii. commercially reasonable terms and
      conditions of the PSA.  The Option Assets Valuation Expert shall
      provide his final determination within 30 days of being engaged by
      Quicksilver and the MLP.  The Option Assets Valuation Expert’s
      determination regarding the Purchase Price and PSA shall be final and
      binding upon the Parties.  As soon as practicable after such
      determination, the MLP shall: i. execute the PSA along with the other
      Parties and proceed

            


    

    
 

    
      
        
          
            Option,
Right of First Refusal, and Waiver in Amendment to

            Omnibus
Agreement and Gas Gathering and Processing Agreement

            Page
3 of 12

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    
      	
               
      

            	
              to
      close the sale of the Option Assets; or ii. should the MLP fail to execute
      the PSA within 10 days of the Option Assets Valuation Expert’s
      determination, this Agreement, including the Option and the ROFR (defined
      in Section 6), shall terminate and be of no further force or
      effect.

            


    

    
 

    
      	
               
      

            	
              e.

            	
              The
      Option shall not be affected by any failure to close the sale of the
      Option Assets pursuant to the PSA, so long as the failure is not due to
      the fault of the MLP or any of the Partnership
  Entities.

            


    

    
 

    
      	
               
      

            	
              f.

            	
              Notwithstanding
      the other provisions of this Agreement, any PSA executed by the Parties
      pursuant to the MLP’s exercise of the Option shall require the MLP to
      assume and be liable for all then-existing duties, obligations, and
      liabilities pertaining to the Option
Assets.

            


    

    
 

    
      	
               
      

            	
              6.

            	
              Right
      of first refusal.

            


    

    
 

    
      	
               
      

            	
              a.

            	
              If,
      during the Option Term, one or more of the Quicksilver Entities accepts an
      offer from a Person other than a Partnership Entity or a Quicksilver
      Entity (each such person, a “Purchaser”) to
      purchase all or any part of the Option Assets during the Option Term,
      Quicksilver shall promptly notify the MLP of that acceptance (each, a
      “Sale
      Notice”).  The Sale Notice shall state the Purchaser’s
      name and address and contain the terms and conditions of the proposed
      purchase of Option Assets by the Purchaser.  The MLP shall have
      a right (a “ROFR”) for 30
      days following its receipt of each Sale Notice (each period being a “Sale Notice
      Period”) to elect to purchase the Option Assets on the same terms
      and conditions as contained in the Sale Notice.  If the MLP: i.
      does not elect to purchase the identified Option Assets in accordance with
      their corresponding Sale Notice during the Sale Notice Period; or ii.
      after properly electing to purchase such Option Assets, fails to close
      their sale in accordance with the terms and conditions contained in the
      Sale Notice, the Quicksilver Entities shall have the right to convey the
      Option Assets identified in the Sale Notice free and clear of the Option
      and ROFR (and upon such terms and conditions as the Quicksilver Entities
      may determine) for a period of one year following the end of the Sale
      Notice Period (each period being a “Free
      Period”).  If, however, the Quicksilver Entities fail to
      convey the Option Assets identified in a Sale Notice during the
      corresponding Free Period, such Option Assets shall be again subject to
      the Option and ROFR (unless the Option Term should expire prior to the end
      of the Free Period).

            


    

    
 

    
      
        
          
            Option,
Right of First Refusal, and Waiver in Amendment to

            Omnibus
Agreement and Gas Gathering and Processing Agreement

            Page 4
of 12

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    b.           If
Quicksilver transmits a Sale Notice to the MLP within 30 days of the end of the
Option Term, the ROFR shall be extended for a period sufficient to accommodate
the time periods for notice and exercise of the ROFR under Subsection
6.a.

    
 

    
      	
               
      

            	
              7.

            	
              Agreement
      subject to certain senior rights.  Notwithstanding
      anything in this Agreement to the contrary, the Quicksilver Entities may
      convey all or any part of the Option Assets among themselves at any time
      during the Option Term and the ROFR shall not apply to any such
      conveyances.  However, all such interests in the Option Assets
      shall be owned and held by the Quicksilver Entities subject to the Option
      and the ROFR.

            


    

    
 

    
      	
               
      

            	
              8.

            	
              Right
      to review records.  During the Option Term, and upon
      reasonable notice to Quicksilver, the MLP shall have the right to access
      and review all documents, books, and records owned, held, or controlled by
      Quicksilver and reasonably required by the MLP to make a fair market
      evaluation of the Option Assets.

            


    

    
 

    
      	
               
      

            	
              9.

            	
              Choice
      of law.  This Agreement shall be subject to and governed
      by the laws of the State of Texas. The Parties hereby submit to the
      exclusive venue of a state or federal court having jurisdiction and
      located in Ft. Worth, Tarrant County,
Texas.

            


    

    
 

    
      	
               
      

            	
              10.

            	
              Notices.  All
      notices, requests, or consents provided for or permitted to be given
      pursuant to this Agreement must be in writing and must be given by
      depositing them in the United States mail, addressed to the person or
      entity to be notified, postpaid, and registered or certified with return
      receipt requested or by delivering such notice in person or by fax. Notice
      given by personal delivery or mail shall be effective upon actual receipt.
      Notice given by fax shall be effective upon actual receipt if received
      during the recipient’s normal business hours, or at the beginning of the
      recipient’s next business day after receipt if not received during the
      recipient’s normal business hours. All notices to be sent to any of the
      Parties pursuant to this Agreement shall be sent to or made at its address
      set forth below or at such other address as such Party may stipulate to
      the other Parties in the manner provided in this
      Section 10:

            


    

    
 

    
      	
               
      

            	
              a.

            	
              For
      notices to any of the Quicksilver
Entities:

            


    

    
 

    Quicksilver
Resources Inc.

    777 West
Rosedale Street

    Fort
Worth, Texas 76104

    Phone:
(817) 665-5000

    Fax:
(817) 665-5004

    Attention:
Law Department

    
 

    
      
        
          
            Option,
Right of First Refusal, and Waiver in Amendment to

            Omnibus
Agreement and Gas Gathering and Processing Agreement

            Page 5
of 12

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    b.           For
notices to any of the Partnership Entities:

    
 

    Quicksilver
Gas Services L.P.

    777 West
Rosedale Street

    Fort
Worth, Texas 76104

    Phone:
(817) 665-5000

    Fax:
(817) 665-5004

    Attention:
Law Department

    
 

    
      	
               
      

            	
              11.

            	
              Entire
      agreement. This Agreement constitutes the entire agreement of the
      Parties relating to the matters contained within it, superseding all prior
      contracts or agreements, whether oral or written, relating to the matters
      contained in this Agreement.

            


    

    
 

    
      	
               
      

            	
              12.

            	
              Termination.  This
      Agreement, including the Option and ROFR, shall terminate upon a Change of
      Control of General Partner or the MLP, other than any Change of Control of
      General Partner or the MLP that may be deemed to have occurred pursuant to
      clause (iv) of the definition of Change of Control in the Omnibus
      Agreement solely as a result of a Change of Control of
      Quicksilver.  Notwithstanding any other provision of this
      Agreement, if General Partner is removed as general partner of the MLP
      under circumstances where Cause does not exist and Common Units held by
      the General Partner and its Affiliates are not voted in favor of such
      removal, this Agreement may immediately thereupon be terminated by
      Quicksilver.

            


    

    
 

    
      	
               
      

            	
              13.

            	
              Effect
      of waiver or consent. No waiver or consent, express or implied, by
      any Party to or of any breach or default by any Party in the performance
      of its obligations under this Agreement shall be deemed or construed to be
      a consent or waiver to or of any other breach or default in the
      performance by that Party of the same or any other obligations of that
      Person hereunder. Failure on the part of a Party to complain of any act of
      any other Party or to declare any Person in default, irrespective of how
      long such failure continues, shall not constitute a waiver by such Party
      of its rights hereunder until the applicable statute of limitations period
      has run.

            


    

    
 

    
      	
               
      

            	
              14.

            	
              Amendment
      or modification. This Agreement may be amended or modified from
      time to time only by the written agreement of all the Parties; provided,
      however, that the MLP may not, without the prior approval of the Conflicts
      Committee, agree to any amendment or modification of this Agreement that,
      in the reasonable discretion of General Partner, will have an adverse
      effect on the holders of Common Units. Each such instrument shall be
      reduced to writing and shall be designated on its face an “Amendment” or
      an “Addendum” to this Agreement.

            


    

    
 

    
      
        
          
            Option,
Right of First Refusal, and Waiver in Amendment to

            Omnibus
Agreement and Gas Gathering and Processing Agreement

            Page
6 of 12

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    
      	
               
      

            	
              15.

            	
              Assignment;
      third party beneficiaries. Except as otherwise permitted by Section
      7, no Party shall have the right to assign its rights or obligations under
      this Agreement without the prior written consent of the other Parties.
      Each of the Parties specifically intends that the Quicksilver Entities and
      the Partnership Entities, as applicable (and whether or not a Party to
      this Agreement), shall be entitled to assert rights and remedies hereunder
      as third-party beneficiaries hereto with respect to those provisions of
      this Agreement affording a right, benefit, or privilege to any such
      entity.

            


    

     

    
      	
               
      

            	
              16.

            	
              Counterparts.
      This Agreement may be executed in any number of counterparts with the same
      effect as if all signatory Parties had signed the same document. All
      counterparts shall be construed together and shall constitute one and the
      same instrument.

            


    

    
 

    
      	
               
      

            	
              17.

            	
              Severability.
      If any provision of this Agreement or the application thereof to any
      Person or circumstance shall be held invalid or unenforceable to any
      extent, the remainder of this Agreement and the application of such
      provision to any other Person or circumstances shall not be affected
      thereby and shall be enforced to the greatest extent permitted by
      law.

            


    

    
 

    
      	
               
      

            	
              18.

            	
              Gender
      and sections. Whenever the context requires, the gender of all
      words used in this Agreement shall include the masculine, feminine, and
      neuter, and the number of all words shall include the singular and plural.
      All references to Section and Subsection numbers refer to sections of this
      Agreement.

            


    

    
 

    
      	
               
      

            	
              19.

            	
              Further
      assurances. In connection with this Agreement and all transactions
      contemplated by this Agreement, each Party agrees 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.

            


    

    
 

    
      	
               
      

            	
              20.

            	
              Laws
      and regulations. Notwithstanding any provision of this Agreement to
      the contrary, no Party shall be required to take any act, or fail to take
      any act, under this Agreement if the effect thereof would be to cause such
      Party to be in violation of any applicable law, statute, rule, or
      regulation or the MLP Agreement.

            


    

    
 

    
      	
               
      

            	
              21.

            	
              Negation
      of rights of limited partners, assignees and third parties. Except
      as set forth in Section 15, the provisions of this Agreement are
      enforceable solely by the Parties, and no limited partner, member,
      shareholder, or assignee of Quicksilver or the MLP or other Person shall
      have the right, separate and apart from Quicksilver or the MLP, to enforce
      any provision of this Agreement or to compel any Party to comply with the
      terms of this Agreement.

            


    

    
 

    
      
        
          
            Option,
Right of First Refusal, and Waiver in Amendment to

            Omnibus
Agreement and Gas Gathering and Processing Agreement

            Page
7 of 12

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    
 

    
      	
               
      

            	
              22.

            	
              No
      recourse against officers or directors. For the avoidance of doubt,
      the provisions of this Agreement shall not give rise to any right of
      recourse against any officer or director of any of the Quicksilver
      Entities or any of the Partnership
Entities.

            


    

    
 

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    	 	Quicksilver:	 
	 	 	 
	 	Quicksilver
      Resources Inc.	 
	 	a
      Delaware corporation	 
	 	 	 	 
	
                                             

                                          	
                                            By:
      

                                          	/s/ Glenn
      Darden	 
	 	Printed
      Name:	Glenn
      Darden	 
	 	Title:	President
      and C.E.O.	 
	 	 	 	 


                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

     

    
 

     

    
 

     

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

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            Option,
Right of First Refusal, and Waiver in Amendment to

            Omnibus
Agreement and Gas Gathering and Processing Agreement

            Page 8
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                        	MLP:	 
	 	 	 
	 	Quicksilver
      Gas Services LP	 
	 	a
      Delaware limited partnership	 
	 	 	 	 
	 	 By:	Quicksilver
      Gas Services GP LLC	 
	 	 	a
      Delaware limited liability company	 
	 	 	its
      general partner	 
	 	 	 	 


                

              

            

          

        

      

    

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            	
                                     

                                  	
                                     

                                  	By:	/s/ Thomas
      F. Darden	 
	 	 	Printed
      Name:	Thomas
      F. Darden	 
	 	 	Title:	President
      and C.E.O.	 
	 


                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

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            Option,
Right of First Refusal, and Waiver in Amendment to

            Omnibus
Agreement and Gas Gathering and Processing Agreement

            Page 9
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                  	General
    Partner:	 
	 	 	 
	 	Quicksilver
      Gas Services GP LLC	 
	 	a
      Delaware limited liability company	 
	 	 	 	 
	
                     

                  	
                    By:
      

                  	/s/ Thomas
      F. Darden	 
	 	Printed
      Name:	Thomas
      F. Darden	 
	 	Title:	President
      and C.E.O.	 
	 	 	 


          

        

      

    

     

     

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

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            Option,
Right of First Refusal, and Waiver in Amendment to

            Omnibus
Agreement and Gas Gathering and Processing Agreement

            Page 10
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            	CPP:	 
	 	 	 
	 	Cowtown
      Pipeline Partners L.P.	 
	 	a Texas
      limited partnership	 
	 	 	 	 
	 	 By:	Quicksilver
      Gas Services Operating GP LLC	 
	 	 	a
      Delaware limited liability company	 
	 	 	its
      general partner	 
	 	 	 	 


       

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            	
                                     

                                  	
                                     

                                  	By:	/s/ Jeff
      Cook	 
	 	 	Printed
      Name:	Jeff
      Cook	 
	 	 	Title:	Executive
      Vice President - C.O.O.	 
	 


                          

                        

                      

                    

                  

                



            

          

        

      

    

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

    
 

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            Option,
Right of First Refusal, and Waiver in Amendment to

            Omnibus
Agreement and Gas Gathering and Processing Agreement

            Page
11 of 12

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    
 

    
    

     

     

     

    
      	
            	CGPP:	 
	 	 	 
	 	Cowtown Gas
      Processing Partners L.P.	 
	 	a
      Texas limited partnership	 
	 	 	 	 
	 	 By:	Quicksilver
      Gas Services Operating GP LLC	 
	 	 	a
      Delaware limited liability company	 
	 	 	its
      general partner	 
	 	 	 	 


       

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            	
                                     

                                  	
                                     

                                  	By:	/s/ Jeff
      Cook	 
	 	 	Printed
      Name:	Jeff
      Cook	 
	 	 	Title:	Executive
      Vice President - C.O.O.	 
	 


                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

     

     

     

     

     

     

     

    
 

    
      
        
          
            Option,
Right of First Refusal, and Waiver in Amendment to

            Omnibus
Agreement and Gas Gathering and Processing Agreement

            Page 12
of 12

          

           


        

        
           


          
            

          

        

        
           


          
             

          

        

      

    

    
 

    Exhibit
“A”

    
 

    Alliance Waiver
Area

    
 

    (see
attached page)

    
 

    
      
        
          
            Option,
Right of First Refusal, and Waiver in Amendment to

            Omnibus
Agreement and Gas Gathering and Processing Agreement

            Exhibit
“A”