TO) (A) IF NOBLE HAS ELECTED TO EFFECT A LIKE-KIND
EXCHANGE PURSUANT TO SECTION 2.4, (1) RETURN THE DEPOSIT TO PURCHASER OR (2) IF
PURCHASER SO DIRECTS IN WRITING, TRANSFER THE DEPOSIT TO THE QUALIFIED
ESCROW/TRUST ACCOUNT OR (B) IF NOBLE HAS NOT ELECTED TO EFFECT A LIKE-KIND
EXCHANGE PURSUANT TO SECTION 2.4, APPLY THE DEPOSIT TOWARDS THE PURCHASE PRICE.
(E)
PURCHASER AND NOBLE WILL ENTER INTO A FORM
OF ESCROW AGREEMENT (THE "DEPOSIT ESCROW AGREEMENT") SIMULTANEOUSLY WITH THE
EXECUTION OF THIS AGREEMENT SETTING FORTH THE SPECIFIC TERMS REGARDING THE
DEPOSIT, INCLUDING DIRECTING THE ESCROW AGENT TO INVEST THE DEPOSIT IN AN
INTEREST-BEARING ACCOUNT AND PROVIDING THAT THE PARTY ENTITLED TO RECEIVE THE
DEPOSIT UNDER THIS AGREEMENT SHALL ALSO BE ENTITLED TO RECEIVE ALL INTEREST
EARNED THEREON.
(F)
PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT IF NOBLE BECOMES ENTITLED TO THE DEPOSIT PURSUANT TO THE PROVISIONS OF
SECTION 2.1(D)(III), NOBLE'S DAMAGES UNDER SUCH CIRCUMSTANCES WOULD BE DIFFICULT
TO ASCERTAIN AND NOBLE SHALL BE ENTITLED TO LIQUIDATED DAMAGES IN AN AMOUNT
EQUAL TO THE DEPOSIT.
ACCORDINGLY, THE DELIVERY TO NOBLE OF THE DEPOSIT AS
PROVIDED IN SECTION 2.1(D)(III) ABOVE SHALL BE DEEMED TO CONSTITUTE THE PAYMENT
BY PURCHASER TO NOBLE OF SUCH LIQUIDATED DAMAGES, BUT IN NO EVENT SHALL SUCH
DELIVERY OF THE DEPOSIT AS PAYMENT OF LIQUIDATED DAMAGES CONSTITUTE OR BE
CONSTRUED AS A PENALTY.
2.2
ADJUSTMENTS TO PURCHASE PRICE.
THE PURCHASE
PRICE FOR THE ASSETS SHALL BE ADJUSTED AS FOLLOWS (THE RESULTING AMOUNT BEING
HEREIN REFERRED TO AS THE "ADJUSTED PURCHASE PRICE"):
(A)
THE PURCHASE PRICE SHALL BE INCREASED BY AN
AMOUNT EQUAL TO THE SUM OF THE FOLLOWING AMOUNTS:
(I)
THE AMOUNT OF ALL EXPENSES (NET TO
NOBLE'S INTEREST) INCURRED AND PAID OR TO BE PAID BY OR ON BEHALF OF NOBLE THAT
ARE ATTRIBUTABLE TO THE OWNERSHIP OR OPERATION OF THE ASSETS AND TO THE PERIOD
OF TIME FROM AND AFTER THE EFFECTIVE TIME, INCLUDING WITHOUT LIMITATION, CAPITAL
EXPENDITURES, ROYALTIES, AD VALOREM, PROPERTY AND SIMILAR TAXES AND ASSESSMENTS,
SEVERANCE, SALES AND PRODUCTION TAXES (BUT EXCLUDING INCOME TAXES AND FRANCHISE
TAXES), RENTALS AND SIMILAR CHARGES, AMOUNTS BILLED UNDER APPLICABLE OPERATING
AGREEMENTS AND PREPAID EXPENSES, BUT EXCLUDING ALL COSTS AND EXPENSES ASSOCIATED
WITH LITIGATION FOR WHICH NOBLE EXPRESSLY RETAINS LIABILITY IN THIS AGREEMENT AS
DESCRIBED IN SECTION 11.4(C);
(II)
THE AMOUNT EQUAL TO THE AGGREGATE SUM OF
THE ALLOCATED VALUE OF EACH ASSET DESIGNATED WITH A NEGATIVE VALUE THAT IS
EITHER (A) PURCHASED BY A HOLDER OF A PREFERENTIAL PURCHASE RIGHT COVERING SUCH
ASSET AS CONTEMPLATED IN SECTION 3.9, (B) HELD BACK FROM THE CLOSING PURSUANT TO
SECTION 3.9 OR 3.10 OR (C) EXCLUDED FROM THIS AGREEMENT PURSUANT TO SECTION
3.2(C) OR SECTION 3.11;
(III)
AN AMOUNT EQUAL TO THE SUM OF FOUR AND
50/100 DOLLARS ($4.50) PER MCF, LESS ROYALTIES, OVERRIDES AND TAXES, THAT THE
TOTAL AMOUNT OF NET UNDERPRODUCTION OF THE ASSETS REFLECT AN IMBALANCE IN EXCESS
OF 2.1 BCF OF GAS; AND
4
(IV)
AN AMOUNT EQUAL TO THE SUM OF ALL AMOUNTS FOR
WHICH NOBLE