OR CLOSING DATE CONSIDERATION, BREITBURN MAY ELECT TO PAY
SUCH INCREASE IN CASH.
23
(II)
THE CLOSING DATE CONSIDERATION SHALL BE
PAID AS FOLLOWS: (A) SEVEN HUNDRED FIFTY MILLION DOLLARS ($750,000,000) (OR SUCH
GREATER AMOUNT AS MAY BE DESIGNATED BY BREITBURN PURSUANT TO A NOTICE GIVEN TO
QUICKSILVER PURSUANT TO SECTION 2.1(A)(I)) OF THE CLOSING DATE CONSIDERATION
SHALL BE PAID VIA WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO THE ACCOUNT(S)
DESIGNATED BY QUICKSILVER (THE "CASH CONSIDERATION"); AND (B) THE REMAINDER OF
THE CLOSING DATE CONSIDERATION SHALL BE PAID THROUGH THE ISSUANCE OF THE QRI
ASSETS EQUITY CONSIDERATION AND THE EQUITY INTERESTS EQUITY CONSIDERATION;
PROVIDED, IF THE CASH CONSIDERATION EXCEEDS $750,000,000 (SUCH EXCESS BEING
HEREIN REFERRED TO AS "ADDITIONAL CASH CONSIDERATION"), THE QRI ASSETS EQUITY
CONSIDERATION SHALL BE REDUCED BY A NUMBER OF COMMON UNITS DETERMINED BY
DIVIDING THE ADDITIONAL CASH CONSIDERATION BY $32.79.
(III)
IF THE NUMBER OF COMMON UNITS COMPRISING THE
EQUITY CONSIDERATION DOES NOT RESULT IN A WHOLE NUMBER THEN IT SHALL BE ROUNDED
UP TO THE NEAREST WHOLE NUMBER OF COMMON UNITS. IF BREITBURN PARENT SHALL AT ANY
TIME PRIOR TO THE CLOSING SUBDIVIDE ITS COMMON UNITS, BY SPLIT-UP OR OTHERWISE,
OR COMBINE ITS COMMON UNITS, OR ISSUE ADDITIONAL COMMON UNITS AS A DIVIDEND OR
DISTRIBUTION WITH RESPECT TO ANY COMMON UNITS, APPROPRIATE ADJUSTMENTS SHALL BE
MADE TO THE NUMBER OF COMMON UNITS ISSUABLE TO QUICKSILVER HEREUNDER.
QUICKSILVER SHALL DESIGNATE IN WRITING THE ACCOUNT(S) FOR PAYMENT OF THE CASH
CONSIDERATION AT LEAST THREE (3) DAYS PRIOR TO CLOSING.
Section 2.2
Deposit.
(A)
CONCURRENTLY WITH THE EXECUTION OF THIS
AGREEMENT, BREITBURN HAS DEPOSITED BY WIRE TRANSFER IN SAME DAY FUNDS INTO
ESCROW WITH QUICKSILVER THE SUM OF THIRTY-FIVE MILLION DOLLARS ($35,000,000)
(THE "DEPOSIT"). IF CLOSING OCCURS, THE DEPOSIT SHALL BE APPLIED TOWARD (AND
THUS SHALL BE DEEMED THE PAYMENT BY BREITBURN OF AN EQUIVALENT AMOUNT OF) THE
CASH CONSIDERATION AT CLOSING, WITHOUT ANY INTEREST EARNED THEREON.
(B)
IF (I) ALL CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF BREITBURN TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT SET FORTH IN ARTICLE VII HAVE BEEN MET, AND (II) THIS AGREEMENT IS
TERMINATED PRIOR TO CLOSING FOR REASONS DESCRIBED IN SECTION 8.1(E), THEN, IN
SUCH EVENT, QUICKSILVER SHALL BE ENTITLED TO RECOVER FROM BREITBURN AN AMOUNT
EQUAL TO THE DAMAGES QUICKSILVER SUFFERS AS A RESULT OF SUCH TERMINATION AND
SHALL HAVE THE RIGHT, UPON SUCH TERMINATION, TO RETAIN THE DEPOSIT, AND IF THE
AMOUNT OF SUCH DAMAGES DETERMINED BY A COURT OF COMPETENT JURISDICTION OR BY THE
MUTUAL AGREEMENT OF THE PARTIES (X) IS EQUAL TO OR IN EXCESS OF THE DEPOSIT,
APPLY THE DEPOSIT TOWARD THE AMOUNT OF SUCH DAMAGES SO DETERMINED OR (Y) IS LESS
THAN THE DEPOSIT, PROMPTLY RETURN TO BREITBURN AN AMOUNT EQUAL TO THE AMOUNT BY
WHICH THE DEPOSIT EXCEEDS SUCH DAMAGES.
(C)
IF THIS AGREEMENT IS TERMINATED PRIOR TO
CLOSING, FOR ANY REASON DESCRIBED IN SECTION 8.1 (OTHER THAN SECTION 8.1(E)),
THEN WITHIN FIVE (5) BUSINESS DAYS FOLLOWING SUCH TERMINATION, BREITBURN SHALL
BE ENTITLED TO