right to purchase exercises such right, Seller
shall tender to such third party the required interest in the affected Asset at
a price equal to the Allocated Value (reduced appropriately, as determined by
mutual agreement of Purchaser and Seller, if less than the entire Asset must be
tendered), and to the extent that such preferential right to purchase is
exercised and such interest in such Asset is actually sold to the third party so
exercising such right, the Assets transferred will be treated as if subject to a
Title Defect and the procedures set forth in Section 3.5(d) shall apply.
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Should a holder of a preferential right to purchase fail to exercise its
preferential right to purchase as to any portion of the Assets prior to Closing
and the time for exercise or waiver has not yet expired prior to Closing,
subject to the remaining provisions of this Section 7.9, such Assets shall be
included in the transaction contemplated by this Agreement at Closing and the
following procedures shall be applicable:
(I)
AN ASSIGNMENT AND BILL OF SALE FROM
SELLER TO PURCHASER OF THE ASSETS AFFECTED BY SUCH PREFERENTIAL RIGHT TO
PURCHASE SHALL BE DELIVERED INTO AN ESCROW ACCOUNT, PURCHASER SHALL TAKE
BENEFICIAL POSSESSION OF THE AFFECTED ASSETS AND PURCHASER SHALL BE ENTITLED TO
ALL PRODUCTION, INCOME, PROCEEDS, RECEIPTS AND CREDITS TO WHICH PURCHASER WOULD
BE ENTITLED UNDER SECTION11.1. PURCHASER SHALL INDEMNIFY SELLER INDEMNITEES
AGAINST DAMAGES FOR WHICH PURCHASER WOULD BE LIABLE UNDER THE TERMS OF SECTIONS
11.2 AND 11.3 WITH RESPECT TO THE AFFECTED ASSETS. RECORD TITLE TO THE AFFECTED
ASSETS SHALL NOT BE TRANSFERRED AND THE ASSIGNMENT AND BILL OF SALE SHALL NOT BE
RELEASED TO PURCHASER FROM THE ESCROW ACCOUNT UNTIL SUCH PREFERENTIAL RIGHT TO
PURCHASE HAS BEEN WAIVED OR HAS EXPIRED. PURCHASER'S INDEMNIFICATION OF SELLER
INDEMNITEES SHALL BE PURSUANT TO AND IN ACCORDANCE WITH THE INDEMNIFICATION
PROVISIONS SET OUT IN SECTION 11.3(B) AND SHALL INCLUDE, WITHOUT LIMITATION,
INDEMNIFICATION AGAINST DAMAGES AND LITIGATION EXPENSES.
(II)
SELLER SHALL CONTINUE TO USE REASONABLE
EFFORTS TO OBTAIN THE WAIVER OF THE PREFERENTIAL RIGHT TO PURCHASE AND SHALL
CONTINUE TO BE RESPONSIBLE FOR THE COMPLIANCE WITH THE PREFERENTIAL RIGHT TO
PURCHASE.
(III)
SHOULD THE HOLDER OF THE PREFERENTIAL RIGHT
TO PURCHASE EXERCISE SAME, PURCHASER AND SELLER AGREE TO CAUSE THE AFFECTED
ASSETS TO BE TRANSFERRED TO SUCH HOLDER ON THE TERMS AND PROVISIONS SET OUT
HEREIN AND IN THE APPLICABLE PREFERENTIAL RIGHT TO PURCHASE PROVISION. IN SUCH
EVENT, SELLER SHALL PAY THE ALLOCATED VALUE, SUBJECT TO APPLICABLE ADJUSTMENTS,
FOR SUCH ASSET TO PURCHASER, AND SELLER SHALL BE ENTITLED TO RETAIN THE
CONSIDERATION PAID FOR THE AFFECTED ASSET BY THE HOLDER OF THE PREFERENTIAL
RIGHT TO PURCHASE.
(IV)
IF THE PREFERENTIAL RIGHT TO PURCHASE IS
WAIVED AFTER THE CLOSING DATE OR IF THE TIME LIMIT FOR THE EXERCISE OF THE
PREFERENTIAL RIGHT TO PURCHASE EXPIRES WITHOUT BEING EXERCISED, SELLER AND
PURCHASER SHALL TAKE ALL REASONABLE ACTIONS NECESSARY TO ENSURE THAT THE
AFFECTED ASSETS ARE PROMPTLY CONVEYED OUT OF ESCROW TO