Common use of Structuring Clause in Contracts

Structuring. On or prior to July 9, 2009 (unless such date is extended by the agreement of the parties hereto), Abraxas shall calculate an estimate, based on the best information then available, the amount of the recapture income, if any, that would be recognized on a per Energy Common Unit basis by the Unaffiliated Unitholders pursuant to Section 751 or Section 1245 of the Code, as applicable (the “Recapture Amount”), as a result of the transactions contemplated by this Agreement (the “Tax Calculation”). In the event the Tax Calculation results in a positive per unit Recapture Amount, the parties to this Agreement (a) agree to restructure the Merger and the transactions contemplated hereby so that based on the advice of tax counsel to the parties and the Unaffiliated Unitholders, the Merger can be structured in the most tax efficient manner practicable; provided that such restructuring does not cause Abraxas to be in violation of any of the terms of this Agreement and (b) if such restructuring does not reduce the Recapture Amount to zero, the Unaffiliated Unitholders’ obligations under Section 1.1 of the Voting Agreement may be terminated by the Unaffiliated Unitholders. In addition, Abraxas agrees to utilize the methodology used in the Tax Calculation when filing Energy’s final Tax Return.