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.
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
31
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 PURCHASER.
(V)
ONCE THE PROVISIONS OF SUBPARAGRAPH (IV) HAVE BEEN SATISFIED AND
ALL OBLIGATIONS IN CONNECTION THEREWITH HAVE BEEN