case of
operations, Buyer shall be entitled to receive the penalty, if any, that Seller,
as nonconsenting party, would have suffered under the applicable operating or
other agreement with respect to such operations as if Buyer were a consenting
party thereunder; in each case, subject to and after deduction of any damages or
other relief to which Seller may be entitled with respect to any breach by Buyer
of this Agreement.
(2)
IF A NOTICE DELIVERED TO BUYER PURSUANT TO SECTION 8.1(C)(2) SETS
FORTH A RECOMMENDATION THAT SELLER PARTICIPATE IN AN OPERATION OR CAPITAL
EXPENDITURE THE FAILURE IN WHICH TO PARTICIPATE WILL CAUSE THE FORFEITURE OF ALL
OR ANY PORTION OF A SUBJECT INTEREST (OR ANY INTEREST IN PRODUCTION ATTRIBUTABLE
THERETO) AND BUYER TIMELY NOTIFIES SELLER THAT IT DOES NOT DESIRE SELLER TO
PARTICIPATE IN SAME, THEN, ON OR BEFORE THE CLOSING, SELLER MAY ELECT TO EXCLUDE
FROM THE ASSETS AND RESERVE TO SELLER THE SUBJECT INTEREST (OR THE INTEREST
THEREIN OR INTEREST IN PRODUCTION THEREFROM) THAT WOULD BE SO FORFEITED,
TOGETHER WITH A PRO RATA SHARE OF ALL INCIDENTAL RIGHTS, OIL, GAS AND OTHER
HYDROCARBONS AND OTHER ASSETS ATTRIBUTABLE OR APPURTENANT THERETO (BUT ONLY TO
THE EXTENT SUCH INCIDENTAL RIGHTS, OIL, GAS AND OTHER HYDROCARBONS AND OTHER
ASSETS ARE PRACTICABLY SEVERABLE FROM THE ASSETS WITHOUT ADVERSELY IMPACTING IN
ANY MATERIAL RESPECT THE VALUE OR OPERATIONS OF THE REMAINING ASSETS).
IF SUCH
INCIDENTAL RIGHTS, OIL, GAS AND OTHER HYDROCARBONS AND OTHER ASSETS ARE NOT SO
PRACTICABLY SEVERABLE FROM THE ASSETS, BUYER SHALL EXECUTE AND DELIVER TO SELLER
AT CLOSING A PERPETUAL USE AGREEMENT ON COMMERCIALLY REASONABLE TERMS WHICH
GRANTS TO SELLER AND ITS SUCCESSORS AND ASSIGNS THE PRACTICAL BENEFITS SELLER
WOULD HAVE RECEIVED FROM SUCH INCIDENTAL RIGHTS, OIL, GAS AND OTHER HYDROCARBONS
AND OTHER ASSETS HAD THEY BEEN SO EXCLUDED AND RESERVED TO SELLER.
NO REDUCTION
IN THE PURCHASE PRICE SHALL BE MADE ON ACCOUNT OF ANY EXCLUSION, RESERVATION,
USE AGREEMENT OR OTHER MATTER PROVIDED FOR IN THIS SECTION 8.2(C)(2).
SECTION 8.3
ASSIGNMENT OF MEMBERSHIP INTERESTS.
UPON THE TERMS AND
SUBJECT TO THE CONDITIONS OF THIS AGREEMENT, AT OR PRIOR TO THE CLOSING, SELLER
AND BUYER SHALL EXECUTE AND DELIVER OR CAUSE THE EXECUTION AND DELIVERY OF THE
ASSIGNMENT OF MEMBERSHIP INTERESTS, IN SUBSTANTIALLY THE FORM ATTACHED HERETO AS
EXHIBIT 8.3 (THE "ASSIGNMENT").
TO THE EXTENT ANY LIENS OR SECURITY INTERESTS
SECURING INDEBTEDNESS ENCUMBER ANY OF THE MEMBERSHIP INTERESTS, SELLER SHALL
CAUSE SUCH LIENS AND SECURITY INTERESTS TO BE TERMINATED AND RELEASED
CONCURRENTLY WITH THE CLOSING.
SECTION 8.4
PUBLIC ANNOUNCEMENTS.
PRIOR TO THE CLOSING DATE,
WITHOUT THE PRIOR WRITTEN APPROVAL OF THE OTHER PARTY HERETO, WHICH APPROVAL
SHALL NOT BE UNREASONABLY WITHHELD, NO PARTY HERETO WILL ISSUE, OR PERMIT ANY
AGENT OR AFFILIATE OF IT TO ISSUE, ANY PRESS RELEASES OR OTHERWISE MAKE, OR
CAUSE ANY AGENT OR AFFILIATE OF IT TO MAKE, ANY PUBLIC STATEMENTS WITH RESPECT
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT WHERE SUCH
RELEASE OR STATEMENT IS DEEMED IN GOOD FAITH BY THE RELEASING