Second Closing Notwithstanding anything to the contrary contained in the Exchange Agreement or in this Agreement:
(a) the closing of the transfer, conveyance and assignment of the Retained Interests and the Additional Xxxxx (as defined below) shall occur at the earlier to occur of (such closing, the “Second Closing,” and such earlier date, the “Second Closing Date”) (i) the closing (such closing, the “XxXxxxx Closing”) of the acquisition by DRI or any of its Affiliates of a real property interest (such interest, the “XxXxxxx Interest”) in ExxonMobil’s (or its Affiliate’s) carbon dioxide assets relative to the LaBarge Madison development reserve located in XxXxxxx, Wyoming or (ii) December 21, 2012; provided, that, for the avoidance of doubt, the Effective Time shall be 7:00 a.m. local time where the DRI Assets and the Additional Xxxxx are located on July 1, 2012;
(b) the obligations of ExxonMobil to consummate the Second Closing are subject to the fulfillment by DRI or waiver by ExxonMobil on or prior to the Second Closing Date of each of the following conditions:
(i) DRI shall have executed, acknowledged and delivered (or be ready, willing and able to deliver at the Second Closing) to ExxonMobil, the Assignment, Xxxx of Sale and Conveyance, in substantially the form of the Assignment, Xxxx of Sale and Conveyance delivered by DRI to XTO and ExxonMobil as of the date hereof (but deleting the concepts regarding the assignment of an undivided 50% of DRI’s interest to XTO Energy and the retention by DRI of an undivided 17.5% of DRI’s interest) (the “Second Closing Assignment”), dated as of the Second Closing Date, which will convey to ExxonMobil title to the Retained Interests and all of DRI’s right, title and interest in and to the xxxxx listed on Schedule A (the “Additional Xxxxx”);
(ii) DRI shall provide to ExxonMobil a list showing the value of all net proceeds from production attributable to the Retained Interests and Additional Xxxxx that are held in suspense as of the Second Closing in accordance with Section 12.12 of the Exchange Agreement (substituting the term “Retained Interests and Additional Xxxxx” for “Assets” and the term “Second Closing” for “Closing” throughout Section 12.12 of the Exchange Agreement); and
(iii) no order, award or judgment shall have been issued by any Governmental Authority or arbitrator to restrain, prohibit, enjoin or declare illegal, or awarding substantial damages in connection with, the consummation of the Second Closing;
(c) the obligations of DRI to consummate the Second Closing are subject to the fulfillment by ExxonMobil or waiver by DRI on or prior to the Second Closing Date of each of the following conditions:
(i) ExxonMobil shall pay to DRI or its designee an amount (such amount, the “Second Closing Consideration Amount”) in cash equal to (X) $350,000,000 (the “Second Closing Additional Consideration”) plus (Y) the aggregate amount of the Upward Adjustments attributable to the Retained Interests and the Additional Xxxxx minus (Z) the aggregate amount of the Downward Adjustments attributable to the Retained Interests and the Additional Xxxxx, in the case of both (Y) and (Z) in accordance with Section 3.1 of the Exchange Agreement (substituting the term “Retained Interests and Additional Xxxxx” for “Assets” throughout Section 3.1 of the Exchange Agreement, and with each component of the Upward Adjustments and Downward Adjustments (other than those related to Title Benefits, Title Defects and Environmental Defects, which treatment is clarified in Section 3.6 and 3.7 hereof) and the defined terms contained in and sections referenced in Section 3.1 of the Exchange Agreement being deemed to refer to the Retained Interests and Additional Xxxxx that are being transferred in the Second Closing); provided, however, that if the XxXxxxx Closing has occurred as of, or is occurring simultaneously with, the Second Closing Date, ExxonMobil shall transfer, assign and convey to DRI the XxXxxxx Interest, and (1) in the event the Second Closing Consideration Amount is greater than the value of the XxXxxxx Interest (as agreed to by DRI and ExxonMobil), ExxonMobil shall pay the amount of such difference to DRI in cash at the Second Closing or (2) in the event the Second Closing Consideration Amount is less than the value of the XxXxxxx Interest (as agreed to by DRI and ExxonMobil), DRI shall pay the amount of such difference to ExxonMobil in cash at the Second Closing;
(ii) ExxonMobil shall have executed, acknowledged and delivered (or be ready, willing and able to deliver at the Second Closing) to DRI, a counterpart to the Second Closing Assignment; and
(iii) no order, award or judgment shall have been issued by any Governmental Authority or arbitrator to restrain, prohibit, enjoin or declare illegal, or awarding substantial damages in connection with, the consummation of the Second Closing;
(d) in connection with the Second Closing, no later than five (5) business days (as defined in the Exchange Agreement) before the Second Closing Date, DRI shall prepare, in accordance with the Exchange Agreement and this Agreement, an Estimated Settlement Statement setting forth each adjustment to the Second Closing Additional Consideration for purposes of determining the Second Closing Consideration Amount in accordance with this Article II and Section 3.1 of the Exchange Agreement (substituting the term “Retained Interests and Additional Xxxxx” for “Assets” throughout Section 3.1 of the Exchange Agreement);
(e) until the Second Closing, with regard to all the Retained Interests and the Additional Xxxxx, DRI shall in all cases vote and make elections in accordance with the instructions of XTO;
(f) although Section 4.14, Section 7.1, Article XII and Section 16.13 of the Exchange Agreement refer to the Assets and the Closing, such provisions shall be deemed to apply (1) with respect to the Assets transferred by a Transferring Party to an Acquiring Party at the Closing, to the Assets assigned at the Closing and (2) with respect to the Retained Interests and Additional Xxxxx to be transferred by DRI to ExxonMobil at the Second Closing, to the Retained Interests and Additional Xxxxx assigned at the Second Closing; and
(g) the following provisions of the Exchange Agreement shall be amended as follows:
(i) Section 3.4 of the Exchange Agreement shall be amended by replacing the term “Closing Date” with the term “Second Closing Date” in the first sentence thereof;
(ii) Section 4.5 of the Exchange Agreement shall be amended by replacing the term “Closing” with the term “Second Closing” in the first sentence thereof;
(iii) Section 12.11A of the Exchange Agreement shall be amended by replacing the term “Closing Date” with the term “Second Closing Date” throughout Section 12.11A; and
(iv) the following defined terms with the following meanings shall be added to Annex A to the Exchange Agreement:
