Limitation on Actions. (a) The representations and warranties of Seller in Article 4 (excluding Seller’s Fundamental Representations and Sections 4.3, 4.7, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Section 8.2(d), and the covenants and agreements of the Parties to be performed at or prior to Closing shall, in each case, survive the Closing for a period of twelve (12) months. The representation and warranty of Seller set forth in Section 4.3 shall survive the Closing for a period of three (3) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until the date that the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c). The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration date. (b) The indemnities in Sections 11.3(a)(ii), 11.3(a)(iii), 11.3(b)(ii), and 11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. (c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two percent (2%) of the Transaction Value, and then only to the extent such Damages exceed two percent (2%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental Representations. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties (i) under Section 11.3(b)(iii) for aggregate Damages in excess of fifteen percent (15%) of the Transaction Value; provided, however, that this Section 11.6(d) shall not limit indemnification for breach of Seller’s Fundamental Representations, or (ii) under this Agreement for aggregate Damages in excess of the Transaction Value. (e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded. (f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser. (g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. (h) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery) (i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser. (j) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Earthstone Energy Inc), Purchase and Sale Agreement (Earthstone Energy Inc)
Limitation on Actions. (a) The representations and warranties of Seller the Parties in Article 4 (excluding Seller’s Fundamental Representations and Sections 4.33, 4.7Article 4, and 4.14) Article 5, and the corresponding representations, warranties, representations and affirmations warranties given in the certificates delivered at Closing pursuant to Section 8.2(d8.2(b) and Section 8.3(b), and the covenants and agreements of the Parties to be performed at or prior to Closing shallas applicable, in each case, survive the Closing for a period of twelve (12) months. The representation and warranty of Seller set forth in Section 4.3 shall survive the Closing for a period of three (3) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until 15 months after the date Closing Date (the “Survival Period”), except that (i) the final settlement representations, warranties and acknowledgements, as applicable, in Section 3.1, Section 3.2, Section 3.3, Section 3.4(a), Section 3.6, Section 4.1, Section 4.2(a), Section 4.3, Section 4.4, Section 4.5(a), (c) and (d), Section 5.1, Section 5.2, Section 5.3(a), Section 5.4 and Section 12.17(a), (c) and (e) (together, the “Core Representations”) shall survive the Closing until 36 months after the Closing Date; (ii) the representations and warranties in Section 4.8 shall survive Closing until 30 days after the applicable statute of limitations closes the Purchase Price is agreed upon or determined pursuant taxable year to which the subject Taxes relate; and (iii) the representations and warranties in Section 8.4(c)4.11 shall not survive and shall terminate at the Closing. The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth in this Section 11.6. The remainder of this Agreement shall survive until fully performed in accordance with their terms, except that the Closing covenants and delivery of the Assignmentagreements, Deed as applicable, in Section 6.3 and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided hereinSection 6.6, shall survive for two years. Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date. For purposes of clarification, the Parties acknowledge the fact that a representation or warranty surviving the Closing does not make it a continuing representation or warranty, and no Party shall have a duty after the Closing to advise another Party or its affiliates of any change in circumstances thereto.
(b) The indemnities in Sections 11.3(a)(iiSection 10.1(a), 11.3(a)(iii), 11.3(b)(ii), Section 10.1(b) and 11.3(b)(iiiSection 10.1(c) shall terminate as of the termination date last day of the applicable Survival Period, if any, of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity in Purchaser’s indemnification obligations pursuant to Section 11.3(b)(i10.1(a), and the Sellers’ indemnification obligations pursuant to Section 10.1(c)(i) and Section 10.1(c)(iii) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect not be subject to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on any deductibles or before such termination datecaps.
(c) Seller The Sellers shall not have any liability for any indemnification under Section 11.3(b)(iii10.1(b) and Section 10.1(c)(ii): (i) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits claims that do not exceed $100,000 in Damages, (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iiiii) until and unless the aggregate amount of the liability for all Damages (i) thereunder for which Claim Notices are timely delivered by Earthstone Parties, the Purchaser exceeds $1,125,000 (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii“Deductible”), and (iii) which exceed the Individual Indemnity Threshold exceeds two percent (2%) of the Transaction Value, and then only to the extent such Damages exceed two percent the Deductible and (2%iii) the aggregate amount of the Transaction Value. Notwithstanding liability for all Damages for which the foregoing, this Section 11.6(c) Sellers shall be liable shall not limit indemnification for breach of the Seller’s Fundamental Representations.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties (i) under Section 11.3(b)(iii) for aggregate Damages in excess of fifteen percent (15%) of the Transaction Valueexceed $11,250,000; provided, however, that this Section 11.6(d) the foregoing limitations shall not limit apply to any indemnification under Section 10.1(b) and Section 10.1(c)(ii) for breach of Seller’s Fundamental Damages incurred or suffered by the Purchaser Group related to the Core Representations, representations and warranties in Section 4.8 or (ii) Seller Taxes, and the Sellers’ aggregate liability for any such Damages, together with any other indemnification obligations of the Sellers under this Agreement for aggregate Damages in excess of Article 10, shall not exceed the Transaction ValuePurchase Price.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(gd) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 10 shall be reduced by the amount of insurance proceeds realized actually received by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunderDamages.
(h) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
(i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(j) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (CB-Blueknight, LLC)
Limitation on Actions. (a) The Sections 4.1, 4.2, 4.3, 4.6, 4.7, 4.9(b) and 4.14, (the “Fundamental Reps”) and the representations and warranties of Purchaser in Sections 5.1, 5.2 and 5.3 and the corresponding representations and warranties given in the certificates delivered at the Closing pursuant to Sections 3.2(b) and 3.3(c), as applicable, shall survive the Closing indefinitely; the representations and warranties of Seller in Section 4.9 shall survive until six months after the expiration of the applicable statute of limitations (taking into account any extension thereof); and all other representations and warranties of the Parties in Article 4 (excluding Seller’s Fundamental Representations and Sections 4.3, 4.7, and 4.14) Article 5 and the corresponding representations, warranties, representations and affirmations warranties given in the certificates delivered at the Closing pursuant to Section 8.2(dSections 3.2(b) and 3.3(c), and the covenants and agreements of the Parties to be performed at or prior to Closing shallas applicable, in each case, survive the Closing for a period of twelve (12) months. The representation and warranty of Seller set forth in Section 4.3 shall survive the Closing for a period of three fifteen (315) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until the date that the final settlement of the Purchase Price months (unless a shorter period is agreed upon or determined pursuant to Section 8.4(c). The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided hereinwithin the applicable section). Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date.
(b) The indemnity in Section 9.1(a)(i) and 9.1(b)(iii) shall continue without time limit. The indemnities in Sections 11.3(a)(ii9.1(a)(ii), 11.3(a)(iii9.1(a)(iii), 11.3(b)(ii), 9.1(b)(i) and 11.3(b)(iii9.1(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Subject to Section 9.3(e), neither Seller nor Purchaser shall have any liability for any indemnification under Section 9.1(a)(iii) or Section 9.1(b)(ii) for any Damages with respect to any claim (or a series of related claims arising from the same facts or circumstances) that do not exceed $100,000 (the “Individual Claim Threshold”), provided, however, to the extent all claims (or a series of related claims arising from the same facts or circumstances) for indemnification by Seller result in aggregate Damages exceeding the Deductible (including those claims (or a series of related claims arising from the same facts or circumstances) under the Individual Claim Threshold), then Purchaser shall be entitled to be indemnified for such Damages under this Article 9 without regard to the Individual Claim Threshold.
(d) Subject to Section 9.3(c) and Section 9.3(e), (A) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii9.1(b)(ii) for an individual matter unless and until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices for claims (or a series of related claims arising from the same facts or circumstances) meeting the Individual Claim Threshold are timely delivered by Earthstone Parties, (ii) Purchaser with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii), and (iii) which such matters exceed the Individual Indemnity Threshold exceeds two one percent (21%) of the Transaction ValuePurchase Price (the “Deductible”), and then only to the extent such Damages exceed two percent the Deductible and (2%B) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental Representations.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify Purchaser under the Earthstone Parties (i) under indemnity in Section 11.3(b)(iii9.1(b)(ii) for aggregate Damages in excess of fifteen percent (15%) of the Transaction Value; provided, however, that this Section 11.6(dPurchase Price (the “Cap”).
(e) The Deductible and the Cap shall not limit apply to any indemnification obligations of Seller under Section 9.1(b)(ii) for Damages caused by or arising out of or resulting from Seller’s breach of Seller’s any Fundamental Representations, or (ii) Reps; provided that Seller shall not be required to indemnify Purchaser under this Agreement Article 9 for breaches of such Fundamental Reps for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregardedPurchase Price.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 9 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, .
(g) Any Indemnified Person that no Party becomes aware of a loss for which it seeks indemnification shall be required to seek recovery under use commercially reasonable efforts to mitigate the loss, including taking any policy of insurance as a condition actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any loss to indemnification hereunderthe extent that it is attributable to the Indemnified Party’s failure to use commercially reasonable efforts to mitigate.
(h) Seller In no event shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person be entitled to duplicate compensation with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims againstsame Damage, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
(i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(j) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to under more than one provision of this Agreement and the extent such increase is caused solely by various documents delivered in connection with the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdictionClosing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (EV Energy Partners, LP)
Limitation on Actions. (a) The right to assert an indemnification claim with respect to the representations and warranties of Seller and Purchaser in Article 4 (excluding Seller’s Fundamental Representations Articles 3 and Sections 4.34, 4.7, and 4.14) and the corresponding representations, warranties, representations and affirmations warranties given in the certificates delivered at Closing pursuant to Section 8.2(d) or Section 8.3(b), as applicable, shall survive the Closing for three (3) years, except that the right to assert an indemnification claim with respect to (i) the representations and warranties of Seller in Sections 3.1(a), (b), (c) and (e) (Seller), Sections 3.2(a), (c), (d) and (e) (The Companies), Section 3.3 (Subsidiaries) and Section 3.12 (Liability for Brokers’ Fees), Section 3.26 (Bankruptcy), Section 3.30 (Bonds; Letter of Credit and Guarantees) and Section 3.33 (Specified Matters) (such representations and warranties being collectively, the covenants “Fundamental Representations”) shall survive the Closing for six (6) years, (ii) the representations and agreements warranties of Seller in Section 3.7 (Taxes) shall survive the Closing until thirty (30) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties of Purchaser in Section 4.1 (Existence and Qualification), Section 4.2 (Power), Section 4.3 (Authorization and Enforceability), Section 4.8 (Investment Intent), Section 4.10 (Liability for Brokers’ Fees), Section 4.12 (Issuance of Purchaser Parent Shares) and Section 4.16 (Bankruptcy) shall survive the Closing for six (6) years, and except, further, that the representations and warranties of Purchaser in Section 4.13 (SEC Reports) shall survive the Closing for one (1) year.
(b) The right to assert an indemnification claim for the breach of any other covenant or agreement of the Parties in this Agreement: (i) that is to be performed at or prior to Closing shall, in each case, shall survive the Closing for a period of twelve (12) months. The representation ; or (ii) that is to be performed following Closing shall survive until twelve (12) months following the period provided in such covenants and warranty of Seller agreements, if any, or until fully performed, except that the right to assert an indemnification claim with respect to the covenants set forth in Article 9 shall survive the Closing until thirty (30) days after the expiration of the applicable statute of limitations. Seller’s special warranty of Defensible Title in Section 4.3 6.8 shall survive the Closing for six (6) years.
(c) The right to assert an indemnification claim with respect to the indemnities in Section 11.2(b)(iii)(C) shall survive the Closing for a period of three (3) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until the date that the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c). The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided herein. years.
(d) Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expirationthe expiration of a right to assert an indemnification claim with respect thereto, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its the applicable expiration date.
(be) The indemnities in Sections 11.3(a)(iiSection 11.2(a)(ii), 11.3(a)(iiiSection 11.2(a)(iii), 11.3(b)(ii), Section 11.2(b)(i) and 11.3(b)(iiiSection 11.2(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunderindemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Section 11.2(a)(i), Section 11.2(b)(iii)(A) and Section 11.2(b)(iii)(B) shall continue without time limit. The indemnity in Section 11.3(b)(i11.2(b)(iii)(C) shall continue in accordance with Section 11.4(c). The indemnity in Section 11.2(b)(iv) shall survive the Closing as follows: until ninety (i90) as set forth in Sections 2.3 and 2.4 with respect to days after the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable applicable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) has run, except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(cf) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoingInterim Breach Provision, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, (ii) with respect Purchaser for indemnification under such Section exceed an amount equal to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two four percent (24%) of the Transaction ValueUnadjusted Purchase Price, and then only to the extent such Damages exceed two percent (2%) of the Transaction Valuesuch amount. Notwithstanding the foregoing, this Section 11.6(c) Seller shall not limit have any liability for any indemnification for breach under the Interim Breach Provision unless Purchaser provides Seller with written notice of an Interim Breach prior to the Seller’s Fundamental RepresentationsClosing Date in accordance with the notice provisions of this Agreement; provided that this requirement of Purchaser to provide written notice of any Interim Breach prior to the Closing Date shall not apply to Interim Breaches and/or the circumstance giving rise thereto notified by Seller to Purchaser pursuant to this Agreement.
(dg) Notwithstanding anything to the contrary contained elsewhere in this Agreement, (i) Seller shall not be required to indemnify Purchaser for claims under the Earthstone Parties Interim Breach Provision for aggregate Damages in excess of an amount equal to ten percent (i10%) of the Unadjusted Purchase Price, (ii) Seller shall not be required to indemnify Purchaser under Section 11.3(b)(iii11.2(b)(ii)(B) for aggregate Damages in excess of fifteen percent an amount equal to $1,042,000.00, (15%iii) of the Transaction Value; provided, however, that this Section 11.6(d) Seller shall not limit indemnification for breach of Seller’s Fundamental Representations, be required to indemnify Purchaser under Section 11.2(b)(i)(B) or (iiSection 11.2(b)(ii)(A) under this Agreement for aggregate Damages in excess of an amount equal to $3,256,250.00, and (iv) Seller’s total Damages and liabilities arising out of this Agreement or the Transaction Valuetransactions contemplated hereunder, including with respect to indemnity obligations under Section 11.2(b) shall not exceed one hundred percent (100%) of the Unadjusted Purchase Price. For the avoidance of doubt, and notwithstanding anything to the contrary herein, the Parties intend that Seller’s sole and exclusive exposure from and after Closing with respect to the representations and warranties in Article 3 or in the closing certificate delivered pursuant to Section 8.2(d) shall be limited to the amounts set forth in Section 11.4(g)(i), Section 11.4(g)(ii), Section 11.4(g)(iii) and Section 11.4(g)(iv), as applicable.
(eh) Notwithstanding anything herein to the contrary, for both the purposes of this Article 11, (i) when determining whether a breach or inaccuracy not the representation or warranty of Seller’s representations any Party in Article 3 or warranties contained in this Agreement Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) has occurred been breached, and (ii) when calculating the purposes of determining the amount of any Damages incurredfor which any Indemnifying Person is obligated to indemnify under Section 11.2(a)(iii) or Section 11.2(b)(ii), arising out such determination of or relating breach and calculation of Damages shall be made by excluding and without giving effect to any such breach qualifiers as to materiality or inaccuracy of Material Adverse Effect set forth in any such representation or warranty by Seller, of any Party in each case, all references Article 3 or Article 4 or any closing certificate delivered pursuant to materiality Section 8.2(d) or Section 8.3(b) (except in the case of the representations and Seller Material Adverse Effect contained warranties set forth in such representation or warranty shall be disregardedSection 3.14(a) and the corresponding representations and warranties in any closing certificate delivered pursuant to Section 8.2(d)).
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(gi) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds actually realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any reasonable and documented collection costs, including all the costs and expenses incurred by third parties in investigating, prosecuting, defending and collecting such recovered amount and, any deductibles paid to obtain insurance coverage, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided. From and after the Closing, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated (without any obligation to incur out of pocket costs, expenses, or any obligation of Seller to undertake any liability or obligation to any Person) use good faith efforts to reasonably cooperate with Purchaser in connection with any claim made by Purchaser under the rights of R&W Policy. Notwithstanding the foregoing, or any Indemnified Person that is a member of the Purchaser Group against any insurerother provision herein, indemnitor, guarantor or other Person except solely with respect to the subject matter Interim Breach Provision, the risk that the R&W Policy will not respond or otherwise provide coverage (excluding, for the avoidance of any Damages subject to indemnification by Seller pursuant to Section 11.3(bdoubt, retention under the R&W Policy) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) a given claim shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
(i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing be borne entirely by Purchaser.
(j) As used Notwithstanding anything to the contrary contained herein, all payments made or to be made under this Article 11 to Purchaser shall be made by Seller by payment in cash and not via the return of any Purchaser Parent Shares.
(k) The representations, warranties and covenants of each of the Parties set forth in this Agreement, subject to the term “Damages” means express exceptions thereto, shall not be affected by any information furnished to, or any investigation or audit conducted before or after the Closing Date by, any Person in connection with the transactions contemplated hereby. In order to preserve the benefit of the bargain otherwise represented by this Agreement, each Party shall be entitled to rely upon the representations, warranties, covenants and agreements of the other Party or Parties set forth herein notwithstanding any investigation or audit conducted or any knowledge acquired (or capable of being acquired) before or after the Closing Date or the decision of any Party to complete the Closing. The right to indemnification or other remedy based on any of the representations, warranties, covenants or agreements in this Agreement shall not be affected by any investigation or audit conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or agreement.
(l) Notwithstanding anything in this Agreement to the contrary, in no event shall any Indemnified Person be entitled to recover any Damages to which such Indemnified Person has already recovered the full amount of such Damages pursuant to another provision of this Agreement or any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, tortsdocument in connection herewith, or otherwise, including reasonable fees and expenses any liability for indemnification under this Agreement shall be determined without duplication of attorneysrecovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, consultantswarranty, accountantscovenant, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdictionagreement.
Appears in 1 contract
Limitation on Actions. (a) The representations and warranties of Seller in Article 4 (excluding Seller’s excluding, for purposes of clarity, the Seller Fundamental Representations and Seller’s representations and warranties in Sections 4.34.3 and 4.7), 4.7, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates certificate delivered by Seller at Closing pursuant to Section 8.2(d8.2(f), and the covenants and agreements of the Parties to be performed at or prior to Closing shall, in each case, survive the Closing for a period of twelve (12) months. The representation representations and warranty warranties of Seller set forth in Section 4.3 shall survive the Closing for a the applicable statute of limitations period of three plus thirty (330) years days and the representation representations and warranty warranties of Seller set forth in Section 4.7 shall survive the Closing until the date that Cut-Off Date. The representations and warranties of Purchaser in Article 5 (excluding the final settlement of Purchaser Fundamental Representations), and the Purchase Price is agreed upon or determined corresponding representations, warranties, and affirmations given in the certificate delivered by Purchaser at Closing pursuant to Section 8.4(c8.3(f), shall, in each case, survive the Closing for a period of twelve (12) months. The covenants and agreements of the Parties to be performed at any time from and after Closing shall survive Closing as reasonably necessary to perform the sameuntil fully performed, subject to the applicable limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed Assignment and ▇▇▇▇ Bill of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance).
(b) The indemnities in Sections 11.3(a)(i), 11.3(a)(ii), 11.3(a)(iii11.3(a)(iii)(B), 11.3(b)(ii), and 11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification thereunder, except in each case as to matters for which a bona fide specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance). The indemnity in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; Section 11.2(b), (ii) for the appliable applicable statute of limitations period plus thirty (30) days with respect to the matters described in clause (iii) of the definition of Retained Obligations; Section 11.2(c), (iii) for a period of twenty-four three (243) months following the Closing Date years with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; Section 11.2(i), and (iv) except as otherwise expressly provided without time limit with respect to Sections 11.2(a), 11.2(d), 11.2(e), 11.2(f), 11.2(g), and 11.2(h). The indemnities in this Agreement, Section 11.3(a)(iii)(A) shall continue without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties Purchaser Group pursuant to the terms of Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) exceeds One Hundred Twenty-Five Thousand Dollars ($100,000125,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone PartiesPurchaser under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties Purchaser pursuant to the terms of Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), and (iii) which exceed the Individual Indemnity Threshold exceeds two an amount equal to one and three quarters of one percent (21.75%) of the Transaction ValueUnadjusted Purchase Price, and then only to the extent such Damages exceed two an amount equal to one and three quarters of one percent (21.75%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental RepresentationsUnadjusted Purchase Price.
(d) Purchaser shall not have any liability for any indemnification under Sections 11.3(a)(i) and 11.3(a)(ii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations, for which the following limitations shall not apply), for an individual matter until and unless the amount of the liability for Damages with respect to which Purchaser has an obligation to indemnify the Seller Group pursuant to the terms of Section 11.3(a)(i) and 11.3(a)(ii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations) exceeds the Individual Indemnity Threshold.
(e) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties Purchaser (i) under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties in Section 4.3), for aggregate Damages in excess of fifteen percent (15%) of the Transaction ValueUnadjusted Purchase Price, and (ii) under this Article 11 for aggregate Damages in excess of one hundred percent (100%) of the Unadjusted Purchase Price; provided, however, that the limitations set forth in this Section 11.6(d11.6(e) shall not limit indemnification for breach of Seller’s Fundamental Representations, apply to any Damages (or (iiany related indemnity obligations) under this Agreement for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, extent arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregardedbased upon Fraud.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(hg) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group and Purchaser shall be subrogated to the rights of any Indemnified Person that is a member of the Seller Group, in each case, against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller such Party pursuant to Section 11.3(b) Article 11 to the extent that Seller a Party pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group or Seller Group, as applicable, who is indemnified pursuant to Section 11.3(b) Article 11 shall assign or otherwise cooperate with Seller or Purchaser, as applicable, in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Seller Group or Purchaser Group Group, as applicable, has been paid. Any such Purchaser Group Indemnified Person shall remit to SellerSeller or Seller Group Indemnified Person shall remit to Purchaser, as applicable, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group or Seller Group, as applicable, from a third Person and which relates to Damages for which (but only to the extent) such member of the Seller Group or Purchaser Group Group, as applicable, has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery).
(h) Any liability for indemnification hereunder shall be determined without duplication of recovery by reason of the same state of facts giving rise to such liability constituting (i) a breach of more than one representation, warranty, covenant, or agreement herein, (ii) a Purchase Price adjustment made hereunder, or (iii) covered by an obligation of indemnity hereunder. Neither Seller nor Purchaser shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been affirmatively and expressly waived in writing by Purchaserthe other Party.
(ji) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties Purchaser nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 9.4 or this Article 11 for, and “Damages” shall not include, (i) loss of profits profits, to the extent constituting consequential damagesconsequential, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the PartiesParties or to the extent such damages constitute direct damages under Texas law), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Limitation on Actions. (a) The All representations and warranties of Seller in Article 4 IV and Purchaser in Article V shall survive until the day that is one (excluding Seller’s 1) year counted from and after the Closing Date and expire thereafter; provided, however, that the Fundamental Representations and Sections 4.3, 4.7, and 4.14) and shall survive until the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Section 8.2(d), and the covenants and agreements expiration of the Parties to be performed at or prior to Closing shall, in each case, survive the Closing for a period applicable statute of twelve (12) months. The representation and warranty of Seller set forth in Section 4.3 shall survive the Closing for a period of three (3) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until the date that the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c)limitations period. The covenants and other agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations Seller and Purchaser set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing until fully performed in accordance with their terms and delivery of the Assignment, Deed and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided hereinexpire thereafter. Representations, warranties, covenants, covenants and agreements shall terminate and be of no further force and effect after the respective date of their expiration, after which time no claim may be asserted thereunder by any Person, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration or termination date. The remainder of this Agreement shall survive the Closing without time limit except as may otherwise be expressly provided herein.
(b) The indemnities in Sections 11.3(a)(ii9.1(a)(ii), 11.3(a)(iii9.1(a)(iii), 11.3(b)(ii), 9.1(b)(i) and 11.3(b)(iii9.1(b)(ii) shall terminate with respect to a representation, warranty, covenant or agreement as of the termination date of each respective such representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunderindemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity indemnities in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 9.1(a)(i), and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) all disclaimers, express acknowledgements, waivers and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreementreleases herein, continue without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) The indemnity obligations under Section 9.1(b)(ii), as applicable, except the Fundamental Representations, shall apply as follows:
(i) Seller shall not be required to indemnify any Person under Section 9.1(b)(ii) for any individual liability, loss, cost, expense, claim, award or judgment that does not exceed Seventy-Five Thousand Dollars ($75,000) in the aggregate, and such individual Damages may not be applied towards the Indemnity Deductible;
(ii) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii9.1(b)(ii) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, (ii) with respect Purchaser exceeds a deductible amount equal to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii), one and (iii) which exceed the Individual Indemnity Threshold exceeds two a half percent (21.5%) of the Transaction ValuePurchase Price (the “Indemnity Deductible”), and then only after which point Purchaser or Purchaser Indemnified Persons shall be entitled to the extent such claim Damages exceed two percent (2%) in excess of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental Representations.Indemnity Deductible; and
(diii) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties (i) Purchaser under Section 11.3(b)(iii9.1(b)(ii) for aggregate Damages in excess of fifteen percent (15%) of the Transaction Value; provided, however, that this Section 11.6(d) shall not limit indemnification for breach of Seller’s Fundamental Representations, or (ii) under this Agreement for aggregate Damages in excess of the Transaction ValuePurchase Price.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(gd) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 IX shall be reduced by the amount of insurance proceeds realized actually received by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, costs and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. Upon the request of the Indemnifying Person, the Indemnified Person shall provide the Indemnifying Person with information sufficient to allow the Indemnifying Person to calculate the amount of the indemnity payment in accordance with this Agreement. An Indemnified Person shall take all reasonable steps to mitigate damages in respect of any Damages for which it is seeking indemnification and shall use commercially reasonable efforts to avoid costs or expenses associated with such Damages and, if such costs and expenses cannot be avoided, to minimize the amount thereof.
(he) Notwithstanding any provision of Section 9.1(b) to the contrary, if Seller is required to provide indemnification under Section 9.1(b)(ii) for any Damages incurred or suffered by an Acquired Company or that otherwise arise from or are based on such Damages, Seller’s liability to provide such indemnification shall in all respects be limited to fifty percent (50%) of such Damages, subject to any other limitations imposed on Seller’s liability under this Article IX (including Section 9.3(c) and Section 9.3(d)). In addition, Seller shall be subrogated have no obligation to provide indemnification to Purchaser Group under this Article IX for any Damage to the rights extent Seller, through affirmative evidence, demonstrates that it arises from or is caused by the ownership or operation of the Alpha Contributed Assets prior to the Seller Ownership Period.
(f) In no event shall any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person be entitled to duplicate compensation with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims againstsame Damage, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
(i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(j) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to under more than one provision of this Agreement and the extent such increase is caused solely by various documents delivered in connection with the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdictionClosing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Alpha Natural Resources, Inc.)
Limitation on Actions. (a) The representations and warranties of Seller in Article 4 (excluding Seller’s excluding, for purposes of clarity, the Seller Fundamental Representations and Seller’s representations and warranties in Sections 4.3, 4.3 and 4.7, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Section 8.2(d), and the covenants and agreements of the Parties to be performed at or prior to Closing shall, in each case, survive the Closing for a period of twelve (12) months. The representation representations and warranty warranties of Seller set forth in Section 4.3 shall survive the Closing for a the applicable statute of limitations period of three plus thirty (330) years days, the representations and the representation and warranty warranties of Seller set forth in Section 4.7 shall survive the Closing until the date that Cut-Off Date. The representations and warranties of Purchaser in Article 5 (excluding the final settlement Purchaser Fundamental Representations) shall, in each case, survive the Closing for a period of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c)twelve (12) months. The covenants and agreements of the Parties to be performed at any time from and after Closing shall survive Closing as reasonably necessary to perform the sameuntil fully performed, subject to the applicable limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed Assignment and ▇▇▇▇ Bill of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance).
(b) The indemnities in Sections 11.3(a)(ii), 11.3(a)(iii), 11.3(b)(ii), and 11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification thereunder, except in each case as to matters for which a bona fide specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance). The indemnity in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; Section 11.2(b), (ii) for the appliable applicable statute of limitations period plus thirty (30) days with respect to the matters described in clause (iii) of the definition of Retained Obligations; Section 11.2(c), (iii) for a period of twenty-four three (243) months following the Closing Date years with respect to the matters described in clauses Section 11.2(i), (iv) for a period of four (4) years with respect to Sections 11.2(e), and 11.2(h), and (v) of the definition of Retained Obligations; without time limit with respect to Sections 11.2(a), 11.2(d), 11.2(f), 11.2(g) and (iv11.2(j). The indemnities in Section 11.3(a)(i) except as otherwise expressly provided in this Agreement, shall continue without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) has an obligation to indemnify the Earthstone Parties Purchaser Group pursuant to the terms of Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) exceeds One Hundred Twenty-Five Thousand Dollars ($100,000125,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone PartiesPurchaser under Section 11.4(b) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties Purchaser pursuant to the terms of Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), and (iii) which exceed the Individual Indemnity Threshold Threshold, exceeds two an amount equal to one and three quarters of one percent (21.75%) of the Transaction ValueUnadjusted Purchase Price, and then only to the extent such Damages exceed two an amount equal to one and three quarters of one percent (21.75%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental RepresentationsUnadjusted Purchase Price.
(d) Purchaser shall not have any liability for any indemnification under Section 11.3(a)(iii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations, for which the following limitations shall not apply), for an individual matter until and unless the amount of the liability for Damages with respect to which Purchaser has an obligation to indemnify the Seller Group pursuant to the terms of Section 11.3(a)(iii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations) exceeds the Individual Indemnity Threshold.
(e) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties Purchaser (i) under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties in Section 4.3), for aggregate Damages in excess of fifteen percent (15%) of the Transaction ValueUnadjusted Purchase Price, and (ii) under this Article 11 for aggregate Damages in excess of one hundred percent (100%) of the Unadjusted Purchase Price; provided, however, that the limitations set forth in this Section 11.6(d11.6(e) shall not limit indemnification for breach of Seller’s Fundamental Representations, apply to any Damages (or (iiany related indemnity obligations) under this Agreement for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, extent arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregardedbased upon Fraud.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(hg) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group and Purchaser shall be subrogated to the rights of any Indemnified Person that is a member of the Seller Group, in each case, against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller such Party pursuant to Section 11.3(b) Article 11 to the extent that Seller a Party pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group or Seller Group, as applicable, who is indemnified pursuant to Section 11.3(b) Article 11 shall assign or otherwise cooperate with Seller or Purchaser, as applicable, in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Seller Group or Purchaser Group Group, as applicable, has been paid. Any such Purchaser Group Indemnified Person shall remit to SellerSeller or Seller Group Indemnified Person shall remit to Purchaser, as applicable, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group or Seller Group, as applicable, from a third Person and which relates to Damages for which (but only to the extent) such member of the Seller Group or Purchaser Group Group, as applicable, has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery).
(ih) Neither Seller nor Purchaser shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been affirmatively and expressly waived in writing by Purchaserthe other Party.
(ji) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties Purchaser nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 12.4 or this Article 11 for, and “Damages” shall not include, (i) loss of profits profits, to the extent constituting consequential damagesconsequential, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the PartiesParties or to the extent such damages constitute direct damages under Texas law), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Limitation on Actions. (a) The representations and warranties of Seller the Parties in Article ARTICLE 4 (excluding Seller’s Fundamental Representations and Sections 4.3, 4.7, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Section 8.2(d), ARTICLE 5 and the covenants and agreements of the Parties in ARTICLE 6 and the corresponding representations and warranties given in the certificate delivered at Closing pursuant to be performed at or prior to Closing shall, in each case, Section 8.2(c) and Section 8.3(d) shall survive the Closing for a period of twelve months, except that (12i) months. The representation the representations and warranty of Seller set forth warranties in Section 4.3 4.1, Section 4.2, Section 4.3, Section 4.4, Section 5.1, Section 5.2, Section 5.3 and Section 5.4 shall survive indefinitely and (ii) the Closing for a period of three (3) years covenants and the representation and warranty of Seller set forth agreements, as applicable, in Section 4.7 6.6 and Section 6.11 shall survive the Closing until the date that the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c). The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth in this Section 11.6indefinitely. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed and ▇▇▇▇ of Sale without time limit except (a) as may otherwise be expressly provided hereinherein and (b) for the provisions of ARTICLE 11, which shall survive Closing until the applicable statute of limitations closes the taxable year to which the subject Taxes relate plus 90 days. RepresentationsThe representations, warranties, covenants, covenants and agreements of this Agreement shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date.
(b) . The indemnities in Sections 11.3(a)(iiSection 10.2(a)(ii), 11.3(a)(iiiSection 10.2(a)(iii), 11.3(b)(ii), Section 10.2(b)(ii) and 11.3(b)(iiiSection 10.2(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person indemnifying Party on or before such termination date. The indemnity in Section 11.3(b)(i10.2(a)(i) and Section 10.2(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, continue without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two percent (2%) of the Transaction Value, and then only to the extent such Damages exceed two percent (2%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental Representations.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties (i) under Section 11.3(b)(iii) for aggregate Damages in excess of fifteen percent (15%) of the Transaction Value; provided, however, that this Section 11.6(d) shall not limit indemnification for breach of Seller’s Fundamental Representations, or (ii) under this Agreement for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
(i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(j) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Limitation on Actions. (a) The representations and warranties of Seller in Article Article 4 (excluding Seller’s excluding, for purposes of clarity, the Seller Fundamental Representations and Seller’s representations and warranties in Sections 4.34.3 and 4.7), 4.7, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates certificate delivered by Seller at Closing pursuant to Section 8.2(d8.2(f), and the covenants and agreements of the Parties to be performed at or prior to Closing shall, in each case, survive the Closing for a period of twelve (12) months. The representation representations and warranty warranties of Seller set forth in Section 4.3 4.3 shall survive the Closing for the applicable statute of limitations period plus thirty (30) days and the representations and warranties of Seller set forth in Section 4.7 shall survive the Closing until the Cut-Off Date. The representations and warranties of Purchaser in Article 5 (excluding the Purchaser Fundamental Representations), and the corresponding representations, warranties, and affirmations given in the certificate delivered by Purchaser at Closing pursuant to Section 8.3(f), shall, in each case, survive the Closing for a period of three twelve (312) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until the date that the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c)months. The covenants and agreements of the Parties to be performed at any time from and after Closing shall survive Closing as reasonably necessary to perform the sameuntil fully performed, subject to the applicable limitations set forth in this Section 11.611.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed Assignment and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance).
(b) The indemnities in Sections 11.3(a)(ii11.3(a)(ii), 11.3(a)(iii11.3(a)(iii), 11.3(b)(ii11.3(b)(ii), and 11.3(b)(iii11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification thereunder, except in each case as to matters for which a bona fide specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance). The indemnity in Section 11.3(b)(i11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 2.3 and 2.4 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; Section 11.2(b), (ii) for the appliable applicable statute of limitations period plus thirty (30) days with respect to the matters described in clause (iii) of the definition of Retained Obligations; Section 11.2(c), (iii) for a period of twenty-four (244) months following the Closing Date years with respect to the matters described in clauses (ivSection 11.2(i) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided without time limit with respect to Sections 11.2(a), 11.2(d), 11.2(e), 11.2(f), 11.2(g), and 11.2(h). The indemnities in this Agreement, Section 11.3(a)(i) shall continue without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties Purchaser Group pursuant to the terms of Section 11.3(b)(iii11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) exceeds One Hundred Twenty-Five Thousand Dollars ($100,000125,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone PartiesPurchaser under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties Purchaser pursuant to the terms of Section 11.3(b)(iii11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), and (iii) which exceed the Individual Indemnity Threshold exceeds two an amount equal to one and three-quarters of one percent (21.75%) of the Transaction ValueUnadjusted Purchase Price, and then only to the extent such Damages exceed two an amount equal to one and three-quarters of one percent (21.75%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental RepresentationsUnadjusted Purchase Price.
(d) Purchaser shall not have any liability for any indemnification under Section 11.3(a)(iii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations, for which the following limitations shall not apply), for an individual matter until and unless the amount of the liability for Damages with respect to which Purchaser has an obligation to indemnify the Seller Group pursuant to the terms of Section 11.3(a)(iii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations) exceeds the Individual Indemnity Threshold.
(e) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties Purchaser (i) under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties in Section 4.3), for aggregate Damages in excess of fifteen percent (15%) of the Transaction ValueUnadjusted Purchase Price, and (ii) under this Article 11 for aggregate Damages in excess of one hundred percent (100%) of the Unadjusted Purchase Price; provided, however, that the limitations set forth in this Section 11.6(d11.6(e) shall not limit indemnification for breach of Seller’s Fundamental Representations, apply to any Damages (or (iiany related indemnity obligations) under this Agreement for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, extent arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregardedbased upon Fraud.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article Article 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(hg) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery).
(ih) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been affirmatively and expressly waived in writing by Purchaser.
(ji) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties Purchaser nor Seller shall be entitled to indemnification under Section 6.56.5, Section 9.5 9.4 or this Article Article 11 for, and “Damages” shall not include, (i) loss of profits profits, to the extent constituting consequential damagesconsequential, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the PartiesParties or to the extent such damages constitute direct damages under Texas law), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Laredo Petroleum, Inc.)
Limitation on Actions. (a) The representations and warranties of each Seller in Article 4 hereunder (excluding Seller’s Fundamental Representations and Sections 4.3, 4.7, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates to be delivered at Closing pursuant to Section 8.2(d7.2(f)), excluding the representations and warranties contained in Section 3.1 (Sellers), Section 3.2 (The Company), Section 3.3 (Subsidiaries), Section 3.4 (The Shares), Section 3.10(a) (Properties), and Section 3.12 (Liability for Broker’s Fees) (the “Fundamental Representations”), shall terminate and be of no further force and effect as of the Closing Date. Without limiting the foregoing, and subject to the further terms of this Section 10.3, the R&W Insurance shall be the sole and exclusive recourse and remedy of Purchaser Group with respect to breaches of the representations and warranties contained herein (and in the certificates to be delivered pursuant to Section 7.2(f)) other than the Fundamental Representations. The covenants and agreements of the Parties to be performed at contained in this Agreement or prior to in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing shalluntil the date that is [REDACTED]* following the Closing Date, in each caseexcept (a) for such covenants and agreements that expressly survive for a longer period, which shall survive the Closing for a such longer period as expressly specified herein or therein, (b) the Fundamental Representations, the representations and warranties of twelve Purchaser in Article 4 and the terms of Sections 10.1(b)(iv) and (12v) months. The representation and warranty (including all rights of Seller set forth in Section 4.3 indemnification thereunder) shall survive the Closing for a period of three [REDACTED]* following the Closing Date, and (3c) years and the representation and warranty terms of Seller set forth Section 10.1(b)(iii) (including all rights of indemnification thereunder) shall survive for a period of [REDACTED]* following the Closing Date. Notwithstanding the preceding sentence, (x) any breach of representation, warranty, covenant or agreement in Section 4.7 respect of which indemnity may be sought under this Agreement shall survive the Closing until time at which it would otherwise terminate pursuant to the date that the final settlement preceding sentence, if notice of the Purchase Price is agreed upon inaccuracy or determined pursuant breach thereof giving rise to such right of indemnity shall have been given to the Party against whom such indemnity may be sought prior to such time, and (y) nothing contained in this Section 8.4(c)10.3(a) will limit, in any way, any rights a Party may have to bring claims grounded in actual fraud. The covenants representations and agreements of the Parties warranties in this Agreement or in any writing delivered by any Party to be performed after Closing any other Party in connection with this Agreement shall survive Closing as reasonably necessary to perform for the same, subject to the limitations periods set forth in this Section 11.6. The remainder of this Agreement 10.3(a) and shall survive the Closing and delivery in no event be affected by any investigation, inquiry or examination made for or on behalf of the AssignmentParties, Deed and ▇▇▇▇ or the knowledge of Sale without time limit except as may otherwise any of the Parties’ officers, directors, shareholders, employees or agents or the acceptance by the Parties of any certificate or opinion hereunder. Sellers shall be expressly provided herein. Representations, warranties, covenantsseverally, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement not jointly liable under Section 10.1(b)(ii) with respect to such a representation, warranty, covenant, or agreement prior to its expiration datebreaches of the Fundamental Representations in Section 3.1 and the covenants and agreements set forth in Section 5.2 and 5.12.
(b) The indemnities in Sections 11.3(a)(ii), 11.3(a)(iii), 11.3(b)(ii), and 11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller the R&W Insurance Policy shall not have any liability be the sole recourse for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount Damages to which a member of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, (ii) Purchaser Group is entitled with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two percent (2%) breaches of the Transaction Value, representations and then only warranties set forth in Article 3 (other than with respect to the extent such Damages exceed two percent (2%) for any breaches or inaccuracies of any of the Transaction ValueFundamental Representations or based on actual fraud). Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental Representations.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties (i) under Section 11.3(b)(iii) for aggregate Damages in excess of fifteen percent (15%) of the Transaction Value; provided, however, that this Section 11.6(d) shall not limit indemnification for breach of Seller’s Fundamental Representations, or (ii) under this Agreement for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded.
(f) With respect to any investigation, remediation or other response action related Damages to Damages for which Purchaser seeks indemnification Group is entitled pursuant to Section 10.1(b), Purchaser may seek recourse for such Damages from Seller Sellers directly pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser10.
(gc) The amount of any Damages for which an Indemnified Person Indemnitee is entitled to indemnity under this Article 11 10 shall be reduced by the amount of insurance proceeds realized actually received by the Indemnified Person Indemnitee or its Affiliates with respect to such Damages (net of any collection costs, deductibles, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliatesincreases in premiums); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
(i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(jd) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in questionexperts, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdictionindemnity.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Rex Energy Corp)
Limitation on Actions. (a)
(a) The representations and warranties of Seller the Parties in Articles 3 and 4 and the covenants and agreements of the Parties in Article 4 (excluding Seller’s Fundamental Representations and Sections 4.35, 4.7, and 4.14) and the corresponding representations, warranties, representations and affirmations warranties given in the certificates delivered at Closing pursuant to Section 8.2(dSections 7.2(b) and (c) and 7.3(b), and the covenants and agreements of the Parties to be performed at or prior to Closing shallas applicable, in each case, survive the Closing for a period of twelve (12) months. The representation and warranty of Seller set forth in Section 4.3 shall survive the Closing for a period of three (3) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until the date that earlier of (i) a Sale Transaction or (ii) the final settlement expiration of a period ending eighteen months from the Purchase Price is agreed upon or determined pursuant to Section 8.4(c). The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the sameDate, subject except with respect to the limitations set forth representations contained in this Section 11.6. The remainder of this Agreement Sections 3.1, 3.2, 3.3, 3.22, 3.25 and 3.32 which shall survive the Closing and delivery until ninety (90) days following the expiration of the Assignment, Deed and ▇▇▇▇ applicable statute of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration datelimitations.
(b) The indemnities in Sections 11.3(a)(ii9.1(a)(i), 11.3(a)(iii9.1(a)(ii), 11.3(b)(ii), 9.1(b)(i) and 11.3(b)(iii9.1(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunderindemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller Neither the Company nor BCEOC shall not have any liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) 9.1 until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Partiesthe Purchasers exceeds $3,000,000 (“Threshold”) at which point the Company and BCEOC shall be liable for the amount of all Damages, including those below the Threshold, except that the Company and BCEOC shall be liable for the full amount for, and such Threshold shall not apply in any respect to, any indemnification (i) caused by, or arising out of or resulting from any breach of any of the representations or warranties contained in Sections 3.1, 3.2, 3.3 and 3.32 or (ii) with respect to which Seller admits (caused by, or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties arising out of or resulting from any breach of any representation of warranty made by the Company or BCEOC contained in Article 3 of this Agreement or, the certificate delivered by the Company and BCEOC at Closing, pursuant to the terms of Section 11.3(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two percent (2%7.2(b) of 7.2(c) or the Transaction Value, and then only to the extent such Damages exceed two percent (2%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for Company’s or BCEOC’s breach of any of their respective covenants or agreements contained in Article 5, in which the Seller’s Fundamental Representationsfailure of such representation or warranty to be true and correct or the breach of such covenant or agreement is attributable to fraud or willful misstatement or willful breach by the Company or BCEOC.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller the aggregate liability of each Purchaser under Section 9.1 shall not be required to indemnify exceed the Earthstone Parties (i) under Section 11.3(b)(iii) for aggregate Damages in excess of fifteen percent (15%) portion of the Transaction Value; providedPurchase Price paid by such Purchaser in consideration for the Shares, however, that this Section 11.6(d) shall not limit indemnification for breach of Seller’s Fundamental Representations, or (ii) under this Agreement for aggregate Damages in excess of the Transaction Valueas set forth on Schedule 2.1.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 9 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
(i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(j) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Sources: Stock Purchase Agreement (Bonanza Creek Energy, Inc.)
Limitation on Actions. (a) The representations and warranties of Seller the Parties in Article 3, Article 4 (excluding Seller’s Fundamental Representations and Sections 4.3Article 5, 4.7as applicable, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Section 8.2(d), and the covenants and agreements of the Parties to be performed at or prior to Closing shall, in each case, survive the Closing for a period of twelve (12) months. The representation and warranty of Seller set forth in Section 4.3 shall survive the Closing for a period of three eighteen (318) years months from the Closing Date, at which time they shall terminate and be of no further force and effect (subject to Section 7.3(b)), except that: (i) the representation Fundamental Representations shall survive the Closing indefinitely; and warranty of Seller set forth (ii) the representations and warranties in Section 4.7 (Taxes) and Section 4.18 (Employee Benefit Plans) shall survive the Closing until the date that later of: (A) eighteen (18) months from the final settlement Closing Date; or (B) the expiration of the Purchase Price is agreed upon applicable statute of limitations plus sixty (60) days. The indemnification obligations in Section 7.1(b)(iii) shall survive the Closing for a period of thirty-six (36) months, at which time they shall terminate and be of no force or determined pursuant effect, subject to Section 8.4(c7.3(b). The covenants and agreements of the Parties to be performed after Closing in this Agreement shall survive Closing as reasonably necessary until fully performed in accordance with their terms. Notwithstanding anything to perform the samecontrary herein, claims based on intentional fraud or willful misconduct shall not be subject to the limitations any time limits set forth in this Section 11.6. The remainder of this Agreement and shall survive the Closing and delivery of the Assignment, Deed and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration dateindefinitely.
(b) The indemnities in Sections 11.3(a)(ii), 11.3(a)(iii), 11.3(b)(ii), Section 7.1(a) and 11.3(b)(iiiSection 7.1(b) shall terminate as of the termination expiration date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two percent (2%) of the Transaction Value, and then only to the extent such Damages exceed two percent (2%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental Representations.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties (i) under Section 11.3(b)(iii) for aggregate Damages in excess of fifteen percent (15%) of the Transaction Value; provided, however, that this Section 11.6(d) shall not limit indemnification for breach of Seller’s Fundamental Representations, or (ii) under this Agreement for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, asserted in good faith and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
(i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(j) As used in this Agreement, notice from the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident non-breaching party to the matters in question, and breaching party prior to the costs expiration date of investigation and/or monitoring the applicable survival period shall not thereafter be barred by the expiration of such matters, survival period and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller such claims shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdictionsurvive until finally resolved.
Appears in 1 contract
Limitation on Actions. (a) The representations and warranties of Seller in Article 4 (excluding Seller’s Fundamental Representations and Sections 4.1, 4.3, 4.7, 4.9, 4.10, and 4.14) and the covenants and agreements of the Parties in Article 6, (excluding Sections 6.5 and 6.7), and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Section 8.2(dSections 8.2(f) and 8.3(e), and the covenants and agreements of the Parties to be performed at or prior to Closing shallas applicable, in each case, shall survive the Closing for a period of twelve (12) months. The representation months and warranty the representations and warranties of Seller set forth in Section 4.3 shall survive the Closing for a period until the expiration of three (3) years and the applicable statute of limitations. The representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until the date that the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c). The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth in this Section 11.6Cut-Off Date. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed Assignment and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expirationexpiration (if applicable), provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration date.
(b) The indemnities in Sections 11.3(a)(ii), 11.3(a)(iii), 11.3(b)(ii), and 11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination datedate in accordance with Section 11.4. The indemnity in Section 11.3(b)(i) shall survive the Closing as follows: without time limit except that such indemnity shall survive (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause Section 11.2(b) and (ii) until the expiration of the definition of Retained Obligations; (ii) for the appliable applicable statute of limitations with respect to the matters described set forth in clause (iiiSections 11.2(c), 11.2(d), 11.2(e), 11.2(f), 11.2(g) of the definition of Retained Obligations; (iiiand 11.2(l). The indemnities in Sections 11.3(a)(i) for a period of twenty-four (24and 11.3(a)(iv) months following shall survive the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller No Party shall not have any liability for any indemnification under Section 11.3(b)(iii) 11.3, for an individual matter until and unless the amount of the liability for Damages with respect to which Seller such Party admits (or it is otherwise finally determined that Seller such Party has) an obligation to indemnify the Earthstone Parties other Party pursuant to the terms of Section 11.3(b)(iii) 11.3 exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section Sections 11.3(b)(ii) or 11.3(b)(iii) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone PartiesPurchaser under Sections 11.3(b)(ii) and 11.3(b)(iii), (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties Purchaser pursuant to the terms of Section under Sections 11.3(b)(ii) or 11.3(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two percent (22.0%) of the Transaction ValueUnadjusted Purchase Price, and then only to the extent such Damages exceed two percent (22.0%) of the Transaction ValueUnadjusted Purchase Price. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller(A) Retained Obligations set forth in Section 11.2(a), 11.2(b), 11.2(c), 11.2(k), 11.2(h), 11.2(i), and 11.2(j), (B) representations and warranties in Sections 4.1, 4.3, 4.9, 4.10, 4.14, (C) Purchaser’s Fundamental Representationsrepresentations and warranties in Article 5, (D) the covenants and agreements set forth in Sections 6.5 or 6.7, or (E) the indemnity obligations set forth in 11.3(a)(iv).
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties (iPurchaser under Sections 11.3(b)(ii) under Section and 11.3(b)(iii) for aggregate Damages in excess of fifteen percent (15%) of the Transaction ValueUnadjusted Purchase Price; provided, however, that this Section 11.6(d) shall not limit indemnification for breach of Seller’s Fundamental Representationsthe representations and warranties in Sections 4.1, 4.3, 4.9, 4.10, 4.14, or (ii) under this Agreement for aggregate Damages the covenants and agreements set forth in excess of the Transaction ValueSection 6.7.
(e) Notwithstanding anything herein in this Agreement to the contrary, Seller shall have no obligation to indemnify any Indemnified Person for purposes of this Article 11any Damages resulting from any environmental remediation, removal or other response action undertaken by any Indemnified Person to the extent attributable to the (i) when determining whether costs of such remediation, removal or other response action in excess of the least stringent permissible legal cleanup standard under Environmental Law or required by a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by SellerGovernmental Authority, in each case, all references to materiality and Seller Material Adverse Effect contained existing as of the Closing Date or, if more stringent, as required under the express remediation obligations set forth in such representation any applicable Lease, or warranty shall be disregarded(ii) costs results from meeting a more stringent cleanup standard resulting from a change in land use by an Indemnified Person from the use in effect as of the Closing Date.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery).
(i) Any Seller Group Indemnified Person shall not have remit to Purchaser, within five (5) Business Days after receipt, any obligation insurance proceeds or liability under this Agreement or in connection with or with respect other payment that is received by any member of the Seller Group from a third Person and which relates to Damages for which (but only to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if extent) such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(j) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement member of the indemnity provided hereunder. Notwithstanding Seller Group has been previously compensated hereunder (minus the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Partiesreasonable out-of-pocket costs incurred in obtaining such recovery), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
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Limitation on Actions. (a) The right to assert an indemnification claim with respect to the representations and warranties of Seller and Purchaser in Article 4 (excluding Seller’s Fundamental Representations Articles 3 and Sections 4.34, 4.7, and 4.14) and the corresponding representations, warranties, representations and affirmations warranties given in the certificates delivered at Closing pursuant to Section 8.2(d) or Section 8.3(b), as applicable, shall survive the Closing for three (3) years, except that the right to assert an indemnification claim with respect to (i) the representations and warranties of Seller in Sections 3.1(a), (b), (c) and (e) (Seller), Sections 3.2(a), (c), (d) and (e) (The Companies), Section 3.3 (Subsidiaries) and Section 3.12 (Liability for Brokers’ Fees), Section 3.26 (Bankruptcy), Section 3.30 (Bonds; Letter of Credit and Guarantees) and Section 3.33 (Specified Matters) (such representations and warranties being collectively, the covenants “Fundamental Representations”) shall survive the Closing for six (6) years, (ii) the representations and agreements warranties of Seller in Section 3.7 (Taxes) shall survive the Closing until thirty (30) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties of Purchaser in Section 4.1 (Existence and Qualification), Section 4.2 (Power), Section 4.3 (Authorization and Enforceability), Section 4.8 (Investment Intent), Section 4.10 (Liability for Brokers’ Fees), Section 4.12 (Issuance of Purchaser Parent Shares) and Section 4.16 (Bankruptcy) shall survive the Closing for six (6) years, and except, further, that the representations and warranties of Purchaser in Section 4.13 (SEC Reports) shall survive the Closing for one (1) year.
(b) The right to assert an indemnification claim for the breach of any other covenant or agreement of the Parties in this Agreement: (i) that is to be performed at or prior to Closing shall, in each case, shall survive the Closing for a period of twelve (12) months. The representation ; or (ii) that is to be performed following Closing shall survive until twelve (12) months following the period provided in such covenants and warranty of Seller agreements, if any, or until fully performed, except that the right to assert an indemnification claim with respect to the covenants set forth in Article 9 shall survive the Closing until thirty (30) days after the expiration of the applicable statute of limitations. Seller’s special warranty of Defensible Title in Section 4.3 6.8 shall survive the Closing for six (6) years.
(c) The right to assert an indemnification claim with respect to the indemnities in Section 11.2(b)(iii)(C) shall survive the Closing for a period of three (3) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until the date that the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c). The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided herein. years.
(d) Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expirationthe expiration of a right to assert an indemnification claim with respect thereto, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its the applicable expiration date.
(be) The indemnities in Sections 11.3(a)(iiSection 11.2(a)(ii), 11.3(a)(iiiSection 11.2(a)(iii), 11.3(b)(ii), Section 11.2(b)(i) and 11.3(b)(iiiSection 11.2(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunderindemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Section 11.2(a)(i), Section 11.2(b)(iii)(A) and Section 11.2(b)(iii)(B) shall continue without time limit. The indemnity in Section 11.3(b)(i11.2(b)(iii)(C) shall continue in accordance with Section 11.4(c). The indemnity in Section 11.2(b)(iv) shall survive the Closing as follows: until ninety (i90) as set forth in Sections 2.3 and 2.4 with respect to days after the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable applicable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) has run, except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(cf) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoingInterim Breach Provision, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, (ii) with respect Purchaser for indemnification under such Section exceed an amount equal to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two four percent (24%) of the Transaction ValueUnadjusted Purchase Price, and then only to the extent such Damages exceed two percent (2%) of the Transaction Valuesuch amount. Notwithstanding the foregoing, this Section 11.6(c) Seller shall not limit have any liability for any indemnification for breach under the Interim Breach Provision unless Purchaser provides Seller with written notice of an Interim Breach prior to the Seller’s Fundamental RepresentationsClosing Date in accordance with the notice provisions of this Agreement; provided that this requirement of Purchaser to provide written notice of any Interim Breach prior to the Closing Date shall not apply to Interim Breaches and/or the circumstance giving rise thereto notified by Seller to Purchaser pursuant to this Agreement.
(dg) Notwithstanding anything to the contrary contained elsewhere in this Agreement, (i) Seller shall not be required to indemnify Purchaser for claims under the Earthstone Parties Interim Breach Provision for aggregate Damages in excess of an amount equal to ten percent (i10%) of the Unadjusted Purchase Price, (ii) Seller shall not be required to indemnify Purchaser under Section 11.3(b)(iii11.2(b)(ii)(B) for aggregate Damages in excess of fifteen percent an amount equal to $30,618.18, (15%iii) of the Transaction Value; provided, however, that this Section 11.6(d) Seller shall not limit indemnification for breach of Seller’s Fundamental Representations, be required to indemnify Purchaser under Section 11.2(b)(i)(B) or (iiSection 11.2(b)(ii)(A) under this Agreement for aggregate Damages in excess of an amount equal to $95,681.82, and (iv) Seller’s total Damages and liabilities arising out of this Agreement or the Transaction Valuetransactions contemplated hereunder, including with respect to indemnity obligations under Section 11.2(b) shall not exceed one hundred percent (100%) of the Unadjusted Purchase Price. For the avoidance of doubt, and notwithstanding anything to the contrary herein, the Parties intend that Seller’s sole and exclusive exposure from and after Closing with respect to the representations and warranties in Article 3 or in the closing certificate delivered pursuant to Section 8.2(d) shall be limited to the amounts set forth in Section 11.4(g)(i), Section 11.4(g)(ii), Section 11.4(g)(iii) and Section 11.4(g)(iv), as applicable.
(eh) Notwithstanding anything herein to the contrary, for both the purposes of this Article 11, (i) when determining whether a breach or inaccuracy not the representation or warranty of Seller’s representations any Party in Article 3 or warranties contained in this Agreement Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) has occurred been breached, and (ii) when calculating the purposes of determining the amount of any Damages incurredfor which any Indemnifying Person is obligated to indemnify under Section 11.2(a)(iii) or Section 11.2(b)(ii), arising out such determination of or relating breach and calculation of Damages shall be made by excluding and without giving effect to any such breach qualifiers as to materiality or inaccuracy of Material Adverse Effect set forth in any such representation or warranty by Seller, of any Party in each case, all references Article 3 or Article 4 or any closing certificate delivered pursuant to materiality Section 8.2(d) or Section 8.3(b) (except in the case of the representations and Seller Material Adverse Effect contained warranties set forth in such representation or warranty shall be disregardedSection 3.14(a) and the corresponding representations and warranties in any closing certificate delivered pursuant to Section 8.2(d)).
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(gi) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds actually realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any reasonable and documented collection costs, including all the costs and expenses incurred by third parties in investigating, prosecuting, defending and collecting such recovered amount and, any deductibles paid to obtain insurance coverage, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided. From and after the Closing, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated (without any obligation to incur out of pocket costs, expenses, or any obligation of Seller to undertake any liability or obligation to any Person) use good faith efforts to reasonably cooperate with Purchaser in connection with any claim made by Purchaser under the rights of R&W Policy. Notwithstanding the foregoing, or any Indemnified Person that is a member of the Purchaser Group against any insurerother provision herein, indemnitor, guarantor or other Person except solely with respect to the subject matter Interim Breach Provision, the risk that the R&W Policy will not respond or otherwise provide coverage (excluding, for the avoidance of any Damages subject to indemnification by Seller pursuant to Section 11.3(bdoubt, retention under the R&W Policy) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) a given claim shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
(i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing be borne entirely by Purchaser.
(j) As used Notwithstanding anything to the contrary contained herein, all payments made or to be made under this Article 11 to Purchaser shall be made by Seller by payment in cash and not via the return of any Purchaser Parent Shares.
(k) The representations, warranties and covenants of each of the Parties set forth in this Agreement, subject to the term “Damages” means express exceptions thereto, shall not be affected by any information furnished to, or any investigation or audit conducted before or after the Closing Date by, any Person in connection with the transactions contemplated hereby. In order to preserve the benefit of the bargain otherwise represented by this Agreement, each Party shall be entitled to rely upon the representations, warranties, covenants and agreements of the other Party or Parties set forth herein notwithstanding any investigation or audit conducted or any knowledge acquired (or capable of being acquired) before or after the Closing Date or the decision of any Party to complete the Closing. The right to indemnification or other remedy based on any of the representations, warranties, covenants or agreements in this Agreement shall not be affected by any investigation or audit conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or agreement.
(l) Notwithstanding anything in this Agreement to the contrary, in no event shall any Indemnified Person be entitled to recover any Damages to which such Indemnified Person has already recovered the full amount of such Damages pursuant to another provision of this Agreement or any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, tortsdocument in connection herewith, or otherwise, including reasonable fees and expenses any liability for indemnification under this Agreement shall be determined without duplication of attorneysrecovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, consultantswarranty, accountantscovenant, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdictionagreement.
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Limitation on Actions. (a) The representations and warranties of Seller in Article 4 (excluding Seller’s excluding, for purposes of clarity, the Seller Fundamental Representations and Seller’s representations and warranties in Sections 4.34.3 and 4.7), 4.7, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates certificate delivered by Seller at Closing pursuant to Section 8.2(d8.2(e), and the covenants and agreements of the Parties to be performed at or prior to Closing shall, in each case, survive the Closing for a period of twelve (12) months. The representation Seller Fundamental Representations, and warranty the corresponding representations, warranties, and affirmations given in the certificate delivered by Seller at Closing pursuant to Section 8.2(e), and the Purchaser Fundamental Representations and the corresponding representations, warranties, and affirmations given in the certificate delivered by Purchaser at Closing pursuant to Section 8.3(g) shall, in each case, survive the Closing for a period of three (3) years. The representations and warranties of Seller set forth in Section 4.3 shall survive the Closing for a the applicable statute of limitations period of three plus thirty (330) years days, and the representation representations and warranty warranties of Seller set forth in Section 4.7 shall survive the Closing until the date that Cut-Off Date. The representations and warranties of Purchaser in Article 5 (excluding the final settlement of Purchaser Fundamental Representations), and the Purchase Price is agreed upon or determined corresponding representations, warranties, and affirmations given in the certificate delivered by Purchaser at Closing pursuant to Section 8.4(c8.3(g), shall, in each case, survive the Closing for a period of twelve (12) months. The covenants and agreements of the Parties to be performed at any time after Closing shall survive Closing as reasonably necessary to perform the sameuntil fully performed, subject to the applicable limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed Assignment and ▇▇▇▇ Bill of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance).
(b) The indemnities in Sections 11.3(a)(ii), 11.3(a)(iii), 11.3(b)(ii), and 11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification thereunder, except in each case as to matters for which a bona fide specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance). The indemnity in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 until the Cut-Off Date, with respect to the matters described in clause (ii) of the definition of Retained Obligations; Section 11.2(b), (ii) for the appliable applicable statute of limitations period plus thirty (30) days with respect to the matters described in clause (iii) of the definition of Retained Obligations; Section 11.2(c), (iii) for a period of twenty-four three (243) months following the Closing Date years with respect to the matters described in clauses (iv) Sections 11.2(d), 11.2(e), 11.2(f), 11.2(h), and (v) of the definition of Retained Obligations; 11.2(i), and (iv) except as otherwise expressly provided without time limit with respect to Sections 11.2(a) and 11.2(g). The indemnities in this Agreement, Section 11.3(a)(i) shall continue without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties Purchaser Group pursuant to the terms of Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) exceeds One Hundred Twenty-Five Thousand Dollars ($100,000125,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone PartiesPurchaser under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties Purchaser pursuant to the terms of Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), and (iii) which exceed the Individual Indemnity Threshold exceeds two an amount equal to one and three quarters of one percent (21.75%) of the Transaction ValueUnadjusted Purchase Price, and then only to the extent such Damages exceed two an amount equal to one and three quarters of one percent (21.75%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental RepresentationsUnadjusted Purchase Price.
(d) Purchaser shall not have any liability for any indemnification under Section 11.3(a)(iii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations), for an individual matter until and unless the amount of the liability for Damages with respect to which Purchaser has an obligation to indemnify the Seller Group pursuant to the terms of Section 11.3(a)(iii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations) exceeds the Individual Indemnity Threshold.
(e) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties Purchaser (i) under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties in Section 4.3) for aggregate Damages in excess of fifteen percent (15%) of the Transaction Value; providedUnadjusted Purchase Price, however, that this Section 11.6(d) shall not limit indemnification for breach of Seller’s Fundamental Representations, or and (ii) under this Agreement Article 11, for aggregate Damages in excess of one hundred percent (100%) of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregardedUnadjusted Purchase Price.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(hg) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group and Purchaser shall be subrogated to the rights of any Indemnified Person that is a member of the Seller Group, in each case, against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller such Party pursuant to Section 11.3(b) Article 11 to the extent that Seller a Party pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group or Seller Group, as applicable, who is indemnified pursuant to Section 11.3(b) Article 11 shall assign or otherwise cooperate with Seller or Purchaser, as applicable, in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Seller Group or Purchaser Group Group, as applicable, has been paid. Any such Purchaser Group Indemnified Person shall remit to SellerSeller or Seller Group Indemnified Person shall remit to Purchaser, as applicable, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group or Seller Group, as applicable, from a third Person and which relates to Damages for which (but only to the extent) such member of the Seller Group or Purchaser Group Group, as applicable, has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery).
(ih) Neither Seller nor Purchaser shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been affirmatively and expressly waived in writing by Purchaserthe other Party.
(ji) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoingNOTWITHSTANDING THE FOREGOING, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section NEITHER PURCHASER NOR SELLER SHALL BE ENTITLED TO INDEMNIFICATION UNDER SECTION 6.5, Section 9.5 or this Article SECTION 9.4 OR THIS ARTICLE 11 forFOR, and AND “DamagesDAMAGES” shall not includeSHALL NOT INCLUDE, (iI) loss of profits to the extent constituting consequential damagesLOSS OF PROFITS, or other consequential damages suffered by the Party claiming indemnificationTO THE EXTENT SUCH LOSS OF PROFITS DO NOT CONSTITUTE DIRECT DAMAGES, or any special or punitive damages OR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the PartiesOTHER THAN SUCH DAMAGES SUFFERED BY THIRD PERSONS FOR WHICH RESPONSIBILITY IS ALLOCATED AMONG THE PARTIES), and AND (iiII) any increase in liabilityANY INCREASE IN LIABILITY, lossLOSS, costCOST, expenseEXPENSE, claimCLAIM, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdictionAWARD OR JUDGMENT TO THE EXTENT SUCH INCREASE IS CAUSED BY THE ACTIONS OR OMISSIONS OF ANY INDEMNIFIED PERSON AFTER THE CLOSING DATE.
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Limitation on Actions. (a) The representations and warranties of Seller the Parties in Article ARTICLE 4 (excluding Seller’s Fundamental Representations and Sections 4.3Section 4.1 through Section 4.5, 4.7Section 4.11, and 4.14Section 4.12) and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to ARTICLE 5 (excluding Section 8.2(d), 5.1 through Section 5.6) and the covenants and agreements of the Parties to be performed at or prior to Closing shallin ARTICLE 6 (excluding Section 6.1, in each caseSection 6.2, survive the Closing for a period of twelve (12Section 6.3, and Section 6.8) months. The representation and warranty of Seller set forth in Section 4.3 shall survive the Closing for a period of three (3) years months from the Closing Date (unless a shorter period is expressly provided within the applicable section). The representations and the representation and warranty warranties of Seller set forth in Section 4.7 4.12 shall survive the Closing until the date that is sixty (60) days after the final settlement end of the Purchase Price is agreed upon or determined pursuant to Section 8.4(capplicable statute of limitations period (including any extensions thereof). The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date.
(b) The indemnities in Sections 11.3(a)(iiSection 8.1 (a)(ii), 11.3(a)(iiiSection 8.l (a)(iii), 11.3(b)(iiSection 8.l (b)(ii), and 11.3(b)(iiiSection 8.l (b) (iii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity in Section 11.3(b)(i8. l (a) (i) shall continue without time limit and the indemnity in Section 8.l (b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two percent (2%) of the Transaction Value, and then only to the extent such Damages exceed two percent (2%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental Representations.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties (i) under Section 11.3(b)(iii) for aggregate Damages in excess of fifteen percent (15%) of the Transaction Value; provided, however, that this Section 11.6(d) shall not limit indemnification for breach of Seller’s Fundamental Representations, or (ii) under this Agreement for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
(i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(j) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cyber App Solutions Corp.)
Limitation on Actions. (a) The right to assert an indemnification claim with respect to the representations and warranties of Seller and Purchaser in Article 4 (excluding Seller’s Fundamental Representations Articles 3 and Sections 4.34, 4.7, and 4.14) and the corresponding representations, warranties, representations and affirmations warranties given in the certificates delivered at Closing pursuant to Section 8.2(d) or Section 8.3(b), as applicable, shall survive the Closing for three (3) years, except that the right to assert an indemnification claim with respect to (i) the representations and warranties of Seller in Sections 3.1(a), (b), (c) and (e) (Seller), Sections 3.2(a), (c), (d) and (e) (The Company), Section 3.3 (Subsidiaries) and Section 3.12 (Liability for Brokers’ Fees), Section 3.26 (Bankruptcy), Section 3.30 (Bonds; Letter of Credit and Guarantees) and Section 3.33 (Specified Matters) (such representations and warranties being collectively, the covenants “Fundamental Representations”) shall survive the Closing for six (6) years, (ii) the representations and agreements warranties of Seller in Section 3.7 (Taxes) shall survive the Closing until thirty (30) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties of Purchaser in Section 4.1 (Existence and Qualification), Section 4.2 (Power), Section 4.3 (Authorization and Enforceability), Section 4.8 (Investment Intent), Section 4.10 (Liability for Brokers’ Fees), Section 4.12 (Issuance of Purchaser Parent Shares) and Section 4.16 (Bankruptcy) shall survive the Closing for six (6) years, and except, further, that the representations and warranties of Purchaser in Section 4.13 (SEC Reports) shall survive the Closing for one (1) year.
(b) The right to assert an indemnification claim for the breach of any other covenant or agreement of the Parties in this Agreement: (i) that is to be performed at or prior to Closing shall, in each case, shall survive the Closing for a period of twelve (12) months. The representation ; or (ii) that is to be performed following Closing shall survive until twelve (12) months following the period provided in such covenants and warranty of Seller agreements, if any, or until fully performed, except that the right to assert an indemnification claim with respect to the covenants set forth in Article 9 shall survive the Closing until thirty (30) days after the expiration of the applicable statute of limitations. Seller’s special warranty of Defensible Title in Section 4.3 6.8 shall survive the Closing for a period of three six (36) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until the date that the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c). The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided herein. years.
(c) Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expirationthe expiration of a right to assert an indemnification claim with respect thereto, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its the applicable expiration date.
(bd) The indemnities in Sections 11.3(a)(iiSection 11.2(a)(ii), 11.3(a)(iiiSection 11.2(a)(iii), 11.3(b)(ii), Section 11.2(b)(i) and 11.3(b)(iiiSection 11.2(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunderindemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Section 11.2(a)(i) shall continue without time limit. The indemnity in Section 11.3(b)(i11.2(b)(iii) shall survive the Closing as follows: until ninety (i90) as set forth in Sections 2.3 and 2.4 with respect to days after the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable applicable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) has run, except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(ce) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoingInterim Breach Provision, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, (ii) with respect Purchaser for indemnification under such Section exceed an amount equal to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two four percent (24%) of the Transaction ValueUnadjusted Purchase Price, and then only to the extent such Damages exceed two percent (2%) of the Transaction Valuesuch amount. Notwithstanding the foregoing, this Section 11.6(c) Seller shall not limit have any liability for any indemnification for breach under the Interim Breach Provision unless Purchaser provides Seller with written notice of an Interim Breach prior to the Seller’s Fundamental RepresentationsClosing Date in accordance with the notice provisions of this Agreement; provided that this requirement of Purchaser to provide written notice of any Interim Breach prior to the Closing Date shall not apply to Interim Breaches and/or the circumstance giving rise thereto notified by Seller to Purchaser pursuant to this Agreement.
(df) Notwithstanding anything to the contrary contained elsewhere in this Agreement, (i) Seller shall not be required to indemnify Purchaser for claims under the Earthstone Parties Interim Breach Provision for aggregate Damages in excess of an amount equal to ten percent (i10%) of the Unadjusted Purchase Price, (ii) Seller shall not be required to indemnify Purchaser under Section 11.3(b)(iii11.2(b)(ii)(B) for aggregate Damages in excess of fifteen percent an amount equal to $28,000.00, (15%iii) of the Transaction Value; provided, however, that this Section 11.6(d) Seller shall not limit indemnification for breach of Seller’s Fundamental Representations, be required to indemnify Purchaser under Section 11.2(b)(i)(B) or (iiSection 11.2(b)(ii)(A) under this Agreement for aggregate Damages in excess of an amount equal to $87,500.00, and (iv) Seller’s total Damages and liabilities arising out of this Agreement or the Transaction Valuetransactions contemplated hereunder, including with respect to indemnity obligations under Section 11.2(b) shall not exceed one hundred percent (100%) of the Unadjusted Purchase Price. For the avoidance of doubt, and notwithstanding anything to the contrary herein, the Parties intend that Seller’s sole and exclusive exposure from and after Closing with respect to the representations and warranties in Article 3 or in the closing certificate delivered pursuant to Section 8.2(d) shall be limited to the amounts set forth in Section 11.4(f)(i), Section 11.4(f)(ii), Section 11.4(f)(iii) and Section 11.4(f)(iv), as applicable.
(eg) Notwithstanding anything herein to the contrary, for both the purposes of this Article 11, (i) when determining whether a breach or inaccuracy not the representation or warranty of Seller’s representations any Party in Article 3 or warranties contained in this Agreement Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) has occurred been breached, and (ii) when calculating the purposes of determining the amount of any Damages incurredfor which any Indemnifying Person is obligated to indemnify under Section 11.2(a)(iii) or Section 11.2(b)(ii), arising out such determination of or relating breach and calculation of Damages shall be made by excluding and without giving effect to any such breach qualifiers as to materiality or inaccuracy of Material Adverse Effect set forth in any such representation or warranty by Seller, of any Party in each case, all references Article 3 or Article 4 or any closing certificate delivered pursuant to materiality Section 8.2(d) or Section 8.3(b) (except in the case of the representations and Seller Material Adverse Effect contained warranties set forth in such representation or warranty shall be disregardedSection 3.14(a) and the representations and warranties made in respect of the Tax Partnerships as a result of Section 3.7(p) and the corresponding representations and warranties in any closing certificate delivered pursuant to Section 8.2(d)).
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(gh) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds actually realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any reasonable and documented collection costs, including all the costs and expenses incurred by third parties in investigating, prosecuting, defending and collecting such recovered amount and, any deductibles paid to obtain insurance coverage, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided. From and after the Closing, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated (without any obligation to incur out of pocket costs, expenses, or any obligation of Seller to undertake any liability or obligation to any Person) use good faith efforts to reasonably cooperate with Purchaser in connection with any claim made by Purchaser under the rights of R&W Policy. Notwithstanding the foregoing, or any Indemnified Person that is a member of the Purchaser Group against any insurerother provision herein, indemnitor, guarantor or other Person except solely with respect to the subject matter Interim Breach Provision, the risk that the R&W Policy will not respond or otherwise provide coverage (excluding, for the avoidance of any Damages subject to indemnification by Seller pursuant to Section 11.3(bdoubt, retention under the R&W Policy) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) a given claim shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received be borne entirely by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)Purchaser.
(i) Notwithstanding anything to the contrary contained herein, all payments made or to be made under this Article 11 to Purchaser shall be made by Seller by payment in cash and not via the return of any Purchaser Parent Shares.
(j) The representations, warranties and covenants of each of the Parties set forth in this Agreement, subject to the express exceptions thereto, shall not have be affected by any obligation information furnished to, or liability under any investigation or audit conducted before or after the Closing Date by, any Person in connection with the transactions contemplated hereby. In order to preserve the benefit of the bargain otherwise represented by this Agreement, each Party shall be entitled to rely upon the representations, warranties, covenants and agreements of the other Party or Parties set forth herein notwithstanding any investigation or audit conducted or any knowledge acquired (or capable of being acquired) before or after the Closing Date or the decision of any Party to complete the Closing. The right to indemnification or other remedy based on any of the representations, warranties, covenants or agreements in this Agreement shall not be affected by any investigation or audit conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or in connection with or the Closing Date, with respect to the transactions contemplated by this Agreement for accuracy or inaccuracy of or compliance with, any breach, misrepresentation, or noncompliance with respect to any such representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaseragreement.
(jk) As used Notwithstanding anything in this AgreementAgreement to the contrary, in no event shall any Indemnified Person be entitled to recover any Damages to which such Indemnified Person has already recovered the term “Damages” means the full amount of such Damages pursuant to another provision of this Agreement or any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, tortsdocument in connection herewith, or otherwise, including reasonable fees and expenses any liability for indemnification under this Agreement shall be determined without duplication of attorneysrecovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, consultantswarranty, accountantscovenant, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdictionagreement.
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Limitation on Actions. (a) The right to assert an indemnification claim with respect to the representations and warranties of Seller and Purchaser in Article 4 (excluding Seller’s Fundamental Representations Articles 3 and Sections 4.34, 4.7, and 4.14) and the corresponding representations, warranties, representations and affirmations warranties given in the certificates delivered at Closing pursuant to Section 8.2(d) or Section 8.3(b), as applicable, shall survive the Closing for three (3) years, except that the right to assert an indemnification claim with respect to (i) the representations and warranties of Seller in Sections 3.1(a), (b), (c) and (e) (Seller), Sections 3.2(a), (c), (d) and (e) (The Company), Section 3.3 (Subsidiaries) and Section 3.12 (Liability for Brokers’ Fees), Section 3.26 (Bankruptcy), Section 3.30 (Bonds; Letter of Credit and Guarantees) and Section 3.33 (Specified Matters) (such representations and warranties being collectively, the covenants “Fundamental Representations”) shall survive the Closing for six (6) years, (ii) the representations and agreements warranties of Seller in Section 3.7 (Taxes) shall survive the Closing until thirty (30) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties of Purchaser in Section 4.1 (Existence and Qualification), Section 4.2 (Power), Section 4.3 (Authorization and Enforceability), Section 4.8 (Investment Intent), Section 4.10 (Liability for Brokers’ Fees), Section 4.12 (Issuance of Purchaser Parent Shares) and Section 4.16 (Bankruptcy) shall survive the Closing for six (6) years, and except, further, that the representations and warranties of Purchaser in Section 4.13 (SEC Reports) shall survive the Closing for one (1) year.
(b) The right to assert an indemnification claim for the breach of any other covenant or agreement of the Parties in this Agreement: (i) that is to be performed at or prior to Closing shall, in each case, shall survive the Closing for a period of twelve (12) months. The representation ; or (ii) that is to be performed following Closing shall survive until twelve (12) months following the period provided in such covenants and warranty of Seller agreements, if any, or until fully performed, except that the right to assert an indemnification claim with respect to the covenants set forth in Article 9 shall survive the Closing until thirty (30) days after the expiration of the applicable statute of limitations. Seller’s special warranty of Defensible Title in Section 4.3 6.8 shall survive the Closing for a period of three six (36) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until the date that the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c). The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided herein. years.
(c) Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expirationthe expiration of a right to assert an indemnification claim with respect thereto, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its the applicable expiration date.
(bd) The indemnities in Sections 11.3(a)(iiSection 11.2(a)(ii), 11.3(a)(iiiSection 11.2(a)(iii), 11.3(b)(ii), Section 11.2(b)(i) and 11.3(b)(iiiSection 11.2(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunderindemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Section 11.2(a)(i) shall continue without time limit. The indemnity in Section 11.3(b)(i11.2(b)(iii) shall survive the Closing as follows: until ninety (i90) as set forth in Sections 2.3 and 2.4 with respect to days after the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable applicable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) has run, except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(ce) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoingInterim Breach Provision, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, (ii) with respect Purchaser for indemnification under such Section exceed an amount equal to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two four percent (24%) of the Transaction ValueUnadjusted Purchase Price, and then only to the extent such Damages exceed two percent (2%) of the Transaction Valuesuch amount. Notwithstanding the foregoing, this Section 11.6(c) Seller shall not limit have any liability for any indemnification for breach under the Interim Breach Provision unless Purchaser provides Seller with written notice of an Interim Breach prior to the Seller’s Fundamental RepresentationsClosing Date in accordance with the notice provisions of this Agreement; provided that this requirement of Purchaser to provide written notice of any Interim Breach prior to the Closing Date shall not apply to Interim Breaches and/or the circumstance giving rise thereto notified by Seller to Purchaser pursuant to this Agreement.
(df) Notwithstanding anything to the contrary contained elsewhere in this Agreement, (i) Seller shall not be required to indemnify Purchaser for claims under the Earthstone Parties Interim Breach Provision for aggregate Damages in excess of an amount equal to ten percent (i10%) of the Unadjusted Purchase Price, (ii) Seller shall not be required to indemnify Purchaser under Section 11.3(b)(iii11.2(b)(ii)(B) for aggregate Damages in excess of fifteen percent an amount equal to $295,272.73, (15%iii) of the Transaction Value; provided, however, that this Section 11.6(d) Seller shall not limit indemnification for breach of Seller’s Fundamental Representations, be required to indemnify Purchaser under Section 11.2(b)(i)(B) or (iiSection 11.2(b)(ii)(A) under this Agreement for aggregate Damages in excess of an amount equal to $922,727.27, and (iv) Seller’s total Damages and liabilities arising out of this Agreement or the Transaction Valuetransactions contemplated hereunder, including with respect to indemnity obligations under Section 11.2(b) shall not exceed one hundred percent (100%) of the Unadjusted Purchase Price. For the avoidance of doubt, and notwithstanding anything to the contrary herein, the Parties intend that Seller’s sole and exclusive exposure from and after Closing with respect to the representations and warranties in Article 3 or in the closing certificate delivered pursuant to Section 8.2(d) shall be limited to the amounts set forth in Section 11.4(f)(i), Section 11.4(f)(ii), Section 11.4(f)(iii) and Section 11.4(f)(iv), as applicable.
(eg) Notwithstanding anything herein to the contrary, for both the purposes of this Article 11, (i) when determining whether a breach or inaccuracy not the representation or warranty of Seller’s representations any Party in Article 3 or warranties contained in this Agreement Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) has occurred been breached, and (ii) when calculating the purposes of determining the amount of any Damages incurredfor which any Indemnifying Person is obligated to indemnify under Section 11.2(a)(iii) or Section 11.2(b)(ii), arising out such determination of or relating breach and calculation of Damages shall be made by excluding and without giving effect to any such breach qualifiers as to materiality or inaccuracy of Material Adverse Effect set forth in any such representation or warranty by Seller, of any Party in each case, all references Article 3 or Article 4 or any closing certificate delivered pursuant to materiality Section 8.2(d) or Section 8.3(b) (except in the case of the representations and Seller Material Adverse Effect contained warranties set forth in such representation or warranty shall be disregardedSection 3.14(a) and the representations and warranties made in respect of the Tax Partnerships as a result of Section 3.7(p) and the corresponding representations and warranties in any closing certificate delivered pursuant to Section 8.2(d)).
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(gh) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds actually realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any reasonable and documented collection costs, including all the costs and expenses incurred by third parties in investigating, prosecuting, defending and collecting such recovered amount and, any deductibles paid to obtain insurance coverage, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided. From and after the Closing, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated (without any obligation to incur out of pocket costs, expenses, or any obligation of Seller to undertake any liability or obligation to any Person) use good faith efforts to reasonably cooperate with Purchaser in connection with any claim made by Purchaser under the rights of R&W Policy. Notwithstanding the foregoing, or any Indemnified Person that is a member of the Purchaser Group against any insurerother provision herein, indemnitor, guarantor or other Person except solely with respect to the subject matter Interim Breach Provision, the risk that the R&W Policy will not respond or otherwise provide coverage (excluding, for the avoidance of any Damages subject to indemnification by Seller pursuant to Section 11.3(bdoubt, retention under the R&W Policy) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) a given claim shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received be borne entirely by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)Purchaser.
(i) Notwithstanding anything to the contrary contained herein, all payments made or to be made under this Article 11 to Purchaser shall be made by Seller by payment in cash and not via the return of any Purchaser Parent Shares.
(j) The representations, warranties and covenants of each of the Parties set forth in this Agreement, subject to the express exceptions thereto, shall not have be affected by any obligation information furnished to, or liability under any investigation or audit conducted before or after the Closing Date by, any Person in connection with the transactions contemplated hereby. In order to preserve the benefit of the bargain otherwise represented by this Agreement, each Party shall be entitled to rely upon the representations, warranties, covenants and agreements of the other Party or Parties set forth herein notwithstanding any investigation or audit conducted or any knowledge acquired (or capable of being acquired) before or after the Closing Date or the decision of any Party to complete the Closing. The right to indemnification or other remedy based on any of the representations, warranties, covenants or agreements in this Agreement shall not be affected by any investigation or audit conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or in connection with or the Closing Date, with respect to the transactions contemplated by this Agreement for accuracy or inaccuracy of or compliance with, any breach, misrepresentation, or noncompliance with respect to any such representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaseragreement.
(jk) As used Notwithstanding anything in this AgreementAgreement to the contrary, in no event shall any Indemnified Person be entitled to recover any Damages to which such Indemnified Person has already recovered the term “Damages” means the full amount of such Damages pursuant to another provision of this Agreement or any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, tortsdocument in connection herewith, or otherwise, including reasonable fees and expenses any liability for indemnification under this Agreement shall be determined without duplication of attorneysrecovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, consultantswarranty, accountantscovenant, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdictionagreement.
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Limitation on Actions. (a) The representations and warranties of Seller in Article 4 (excluding Seller’s excluding, for purposes of clarity, the Seller Fundamental Representations and Seller’s representations and warranties in Sections 4.3, 4.3 and 4.7, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Section 8.2(d), and the covenants and agreements of the Parties to be performed at or prior to Closing shall, in each case, survive the Closing for a period of twelve (12) months. The representation representations and warranty warranties of Seller set forth in Section 4.3 shall survive the Closing for a the applicable statute of limitations period of three plus thirty (330) years days, the representations and the representation and warranty warranties of Seller set forth in Section 4.7 shall survive the Closing until the date that Cut-Off Date. The representations and warranties of Purchaser in Article 5 (excluding the final settlement Purchaser Fundamental Representations) shall, in each case, survive the Closing for a period of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c)twelve (12) months. The covenants and agreements of the Parties to be performed at any time from and after Closing shall survive Closing as reasonably necessary to perform the sameuntil fully performed, subject to the applicable limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed Assignment and ▇▇▇▇ Bill of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance).
(b) The indemnities in Sections 11.3(a)(ii), 11.3(a)(iii), 11.3(b)(ii), and 11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification thereunder, except in each case as to matters for which a bona fide specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance). The indemnity in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; Section 11.2(b), (ii) for the appliable applicable statute of limitations period plus thirty (30) days with respect to the matters described in clause (iii) of the definition of Retained Obligations; Section 11.2(c), (iii) for a period of twenty-four three (243) months following the Closing Date years with respect to the matters described in clauses Section 11.2(i), (iv) for a period of four (4) years with respect to Sections 11.2(e), and 11.2(h), (v) for a period of the definition of Retained Obligations; twelve (12) months with respect to Section 11.2(j) and (ivvi) except as otherwise expressly provided without time limit with respect to Sections 11.2(a), 11.2(d), 11.2(f), 11.2(g) and 11.2(j). The indemnities in this Agreement, Section 11.3(a)(i) shall continue without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) has an obligation to indemnify the Earthstone Parties Purchaser Group pursuant to the terms of Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) exceeds One Hundred Twenty-Five Thousand Dollars ($100,000125,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone PartiesPurchaser under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties Purchaser pursuant to the terms of Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), and (iii) which exceed the Individual Indemnity Threshold exceeds two an amount equal to one and three quarters of one percent (21.75%) of the Transaction ValueUnadjusted Purchase Price, and then only to the extent such Damages exceed two an amount equal to one and three quarters of one percent (21.75%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental RepresentationsUnadjusted Purchase Price.
(d) Purchaser shall not have any liability for any indemnification under Section 11.3(a)(iii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations, for which the following limitations shall not apply), for an individual matter until and unless the amount of the liability for Damages with respect to which Purchaser has an obligation to indemnify the Seller Group pursuant to the terms of Section 11.3(a)(iii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations) exceeds the Individual Indemnity Threshold.
(e) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties Purchaser (i) under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties in Section 4.3), for aggregate Damages in excess of fifteen percent (15%) of the Transaction ValueUnadjusted Purchase Price, and (ii) under this Article 11 for aggregate Damages in excess of one hundred percent (100%) of the Unadjusted Purchase Price; provided, however, that the limitations set forth in this Section 11.6(d11.6(e) shall not limit indemnification for breach of Seller’s Fundamental Representations, apply to any Damages (or (iiany related indemnity obligations) under this Agreement for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, extent arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregardedbased upon Fraud.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(hg) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group and Purchaser shall be subrogated to the rights of any Indemnified Person that is a member of the Seller Group, in each case, against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller such Party pursuant to Section 11.3(b) Article 11 to the extent that Seller a Party pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group or Seller Group, as applicable, who is indemnified pursuant to Section 11.3(b) Article 11 shall assign or otherwise cooperate with Seller or Purchaser, as applicable, in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Seller Group or Purchaser Group Group, as applicable, has been paid. Any such Purchaser Group Indemnified Person shall remit to SellerSeller or Seller Group Indemnified Person shall remit to Purchaser, as applicable, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group or Seller Group, as applicable, from a third Person and which relates to Damages for which (but only to the extent) such member of the Seller Group or Purchaser Group Group, as applicable, has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery).
(ih) Neither Seller nor Purchaser shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been affirmatively and expressly waived in writing by Purchaserthe other Party.
(ji) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties Purchaser nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 12.4 or this Article 11 for, and “Damages” shall not include, (i) loss of profits profits, to the extent constituting consequential damagesconsequential, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the PartiesParties or to the extent such damages constitute direct damages under Texas law), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Limitation on Actions. (a) The representations and warranties of each Seller in Article 4 hereunder (excluding Seller’s Fundamental Representations and Sections 4.3, 4.7, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates to be delivered at Closing pursuant to Section 8.2(d7.2(f)), excluding the representations and warranties contained in Section 3.1 (Sellers), Section 3.2 (The Company), Section 3.3 (Subsidiaries), Section 3.4 (The Shares), Section 3.10(a) (Properties), and Section 3.12 (Liability for Broker’s Fees) (the “Fundamental Representations”), shall terminate and be of no further force and effect as of the Closing Date. Without limiting the foregoing, and subject to the further terms of this Section 10.3, the R&W Insurance shall be the sole and exclusive recourse and remedy of Purchaser Group with respect to breaches of the representations and warranties contained herein (and in the certificates to be delivered pursuant to Section 7.2(f)) other than the Fundamental Representations. The covenants and agreements of the Parties to be performed at contained in this Agreement or prior to in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing shalluntil the date that is [REDACTED]* following the Closing Date, in each caseexcept (a) for such covenants and agreements that expressly survive for a longer period, which shall survive the Closing for a such longer period as expressly specified herein or therein, (b) the Fundamental Representations, the representations and warranties of twelve Purchaser in Article 4 and the terms of Sections 10.1(b)(iv) and (12v) months. The representation and warranty (including all rights of Seller set forth in Section 4.3 indemnification thereunder) shall survive the Closing for a period of three [REDACTED]* following the Closing Date, and (3c) years and the representation and warranty terms of Seller set forth Section 10.1(b)(iii) (including all rights of indemnification thereunder) shall survive for a period of [REDACTED]* following the Closing Date. Notwithstanding the preceding sentence, (x) any breach of representation, warranty, covenant or agreement in Section 4.7 respect of which indemnity may be sought under this Agreement shall survive the Closing until time at which it would otherwise terminate pursuant to the date that the final settlement preceding sentence, if notice of the Purchase Price is agreed upon inaccuracy or determined pursuant breach thereof giving rise to such right of indemnity shall have been given to the Party against whom such indemnity may be sought prior to such time, and (y) nothing contained in this Section 8.4(c)10.3(a) will limit, in any way, any rights a Party may have to bring claims grounded in actual fraud. The covenants representations and agreements of the Parties warranties in this Agreement or in any writing delivered by any Party to be performed after Closing any other Party in connection with this Agreement shall survive Closing as reasonably necessary to perform for the same, subject to the limitations periods set forth in this Section 11.6. The remainder of this Agreement 10.3(a) and shall survive the Closing and delivery in no event be affected by any investigation, inquiry or examination made for or on behalf of the AssignmentParties, Deed and ▇▇▇▇ or the knowledge of Sale without time limit except as may otherwise any of the Parties' officers, directors, shareholders, employees or agents or the acceptance by the Parties of any certificate or opinion hereunder. Sellers shall be expressly provided herein. Representations, warranties, covenantsseverally, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement not jointly liable under Section 10.1(b)(ii) with respect to such a representation, warranty, covenant, or agreement prior to its expiration datebreaches of the Fundamental Representations in Section 3.1 and the covenants and agreements set forth in Section 5.2 and 5.12.
(b) The indemnities in Sections 11.3(a)(ii), 11.3(a)(iii), 11.3(b)(ii), and 11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller the R&W Insurance Policy shall not have any liability be the sole recourse for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount Damages to which a member of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, (ii) Purchaser Group is entitled with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two percent (2%) breaches of the Transaction Value, representations and then only warranties set forth in Article 3 (other than with respect to the extent such Damages exceed two percent (2%) for any breaches or inaccuracies of any of the Transaction ValueFundamental Representations or based on actual fraud). Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental Representations.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties (i) under Section 11.3(b)(iii) for aggregate Damages in excess of fifteen percent (15%) of the Transaction Value; provided, however, that this Section 11.6(d) shall not limit indemnification for breach of Seller’s Fundamental Representations, or (ii) under this Agreement for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded.
(f) With respect to any investigation, remediation or other response action related Damages to Damages for which Purchaser seeks indemnification Group is entitled pursuant to Section 10.1(b), Purchaser may seek recourse for such Damages from Seller Sellers directly pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser10.
(gc) The amount of any Damages for which an Indemnified Person Indemnitee is entitled to indemnity under this Article 11 10 shall be reduced by the amount of insurance proceeds realized actually received by the Indemnified Person Indemnitee or its Affiliates with respect to such Damages (net of any collection costs, deductibles, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliatesincreases in premiums); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
(i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(jd) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in questionexperts, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdictionindemnity.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Rex Energy Corp)
Limitation on Actions. (a) The right to assert an indemnification claim with respect to the representations and warranties of Seller Sellers, the Company and Purchaser in Article 4 (excluding Seller’s Fundamental Representations Articles 3 and Sections 4.34, 4.7, and 4.14) and the corresponding representations, warranties, representations and affirmations warranties given in the certificates delivered at Closing pursuant to Section 8.2(d8.2(b), Section 8.2(c) or Section 8.3(c), as applicable, shall survive the Closing for twelve (12) months, except that the right to assert an indemnification claim with respect to the representations and warranties of Sellers and/or the covenants Company, as applicable, (i) in Section 3.1 (Sellers), Section 3.2 (The Company), Section 3.3 (Subsidiaries) and agreements Section 3.12 (Liability for Brokers’ Fees) (such representations and warranties being collectively, the “Fundamental Representations”) shall survive the Closing without time limit, (ii) in Section 3.7 (Taxes) shall survive the Closing until ninety (90) days after the expiration of the applicable statute of limitations, and (iii) in Section 3.8 (Environmental Laws) (other than Section 3.8(d)) shall terminate as of the Closing.
(b) The right to assert an indemnification claim for the breach of any other covenant or agreement of the Parties in this Agreement: (i) that is to be performed at or prior to Closing shall, in each case, shall survive the Closing for a period of twelve (12) months. The representation ; or (ii) that is to be performed following Closing shall survive until twelve (12) months following the period provided in such covenants and warranty of Seller agreements, if any, or until fully performed, except that the right to assert an indemnification claim with respect to the covenants set forth in Section 4.3 Article 9 shall survive the Closing until ninety (90) days after the expiration of the applicable statute of limitations.
(c) The right to assert an indemnification claim with respect to the Retained Liabilities of Sellers shall survive the Closing for a period of three twenty-four (324) years months, except that the right to assert an indemnification claim with respect to any and the representation and warranty of all Seller set forth in Section 4.7 Taxes shall survive the Closing until ninety (90) days after the date that the final settlement expiration of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c). The covenants and agreements applicable statute of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided hereinlimitations. Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expirationthe expiration of a right to assert an indemnification claim with respect thereto, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its the applicable expiration date.
(bd) The indemnities in Sections 11.3(a)(iiSection 11.1(a)(ii), 11.3(a)(iiiSection 11.1(a)(iii), 11.3(b)(ii), Section 11.1(b)(i) and 11.3(b)(iiiSection 11.1(a)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunderindemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity in Section 11.3(b)(i11.1(a)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, continue without time limit; except . The indemnity in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination dateSection 11.1(b)(iii) shall continue in accordance with Section 11.3(c).
(ce) Except in the event of fraud or willful breach of this Agreement by any Seller, no Seller shall not have any liability Liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages 11.1(b)(ii), other than with respect to which Seller admits the Fundamental Representations and the representations and warranties in Section 3.7 (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”Taxes). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount of the liability Liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, Purchaser exceed Nineteen Million Dollars (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii$19,000,000), and (iii) which exceed the Individual Indemnity Threshold exceeds two percent (2%) of the Transaction Value, and then only to the extent such Damages exceed two percent (2%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental Representationssuch amount.
(df) Notwithstanding anything to the contrary contained elsewhere in this Agreement, except in the event of fraud or willful breach of this Agreement by any Seller, no Seller shall not be required to indemnify the Earthstone Parties (i) Purchaser under Section 11.3(b)(iii) 11.1(b)(ii), other than with respect to the Fundamental Representations and the representations and warranties in Section 3.7 (Taxes), for aggregate Damages in excess of fifteen percent One Hundred Forty Two Million Five Hundred Thousand Dollars (15%) of the Transaction Value; provided, however, that this Section 11.6(d) shall not limit indemnification for breach of Seller’s Fundamental Representations, or (ii) under this Agreement for aggregate Damages in excess of the Transaction Value$142,500,000).
(eg) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of any Damages incurred, arising out (but not for the purpose of determining whether or relating to any such breach or inaccuracy of any not such representation or warranty has been breached) for which any Indemnifying Person is obligated to indemnify under Section 11.1(a)(iii) or Section 11.1(b)(ii), such Damages shall be determined and calculated by Seller, in each case, all references excluding and without giving effect to any qualifiers as to materiality and Seller or Material Adverse Effect contained set forth in such any representation or warranty shall be disregardedor any closing certificate delivered pursuant to Section 8.2(b), Section 8.2(c) or Section 8.3(c).
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(gh) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds actually realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, including all the costs and expenses incurred by third parties in investigating, prosecuting, defending and collecting such recovered amount and, any deductibles paid to obtain insurance coverage, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of retrospective insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, policies and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any captive insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recoverypolicies).
(i) Seller shall not have any obligation Notwithstanding anything to the contrary contained herein, all payments made or liability to be made under this Agreement or Article 11 to Purchaser shall be made by Sellers by payment in connection with or with respect to cash and not via the transactions contemplated by this Agreement for return of any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by PurchaserUltimate Parent Shares.
(j) As used Notwithstanding anything to the contrary in this Agreement, the term “Damages” means the amount of no Party shall have any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 Liability for, and “Damages” shall not includebe required to pay to any other Party, (i) loss of profits any amounts pursuant to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment this Agreement to the extent such increase is caused solely by amounts were actually taken into account in determining any other amounts actually paid between Sellers and Purchaser pursuant to this Agreement, including, but not limited to, in determining the actions or omissions of Effective Time Net Working Capital and any Indemnified Person after other adjustments to the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdictionUnadjusted Purchase Price described herein.
Appears in 1 contract
Sources: Purchase and Sale Agreement (EnCap Energy Capital Fund X, L.P.)
Limitation on Actions. (a) The representations and warranties of Seller in Article Article 4 (excluding Seller’s excluding, for purposes of clarity, the Seller Fundamental Representations and Seller’s representations and warranties in Sections 4.34.3 and 4.7), 4.7, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates certificate delivered by Seller at Closing pursuant to Section 8.2(d8.2(e), and the covenants and agreements of the Parties to be performed at or prior to Closing shall, in each case, survive the Closing for a period of twelve (12) months. The representation representations and warranty warranties of Seller set forth in Section 4.3 4.3 shall survive the Closing for the applicable statute of limitations period plus thirty (30) days and the representations and warranties of Seller set forth in Section 4.7 shall survive the Closing until the Cut-Off Date. The representations and warranties of Purchaser in Article 5 (excluding the Purchaser Fundamental Representations), and the corresponding representations, warranties, and affirmations given in the certificate delivered by Purchaser at Closing pursuant to Section 8.3(f), shall, in each case, survive the Closing for a period of three twelve (312) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until the date that the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c)months. The covenants and agreements of the Parties to be performed at any time from and after Closing shall survive Closing as reasonably necessary to perform the sameuntil fully performed, subject to the applicable limitations set forth in this Section 11.611.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed Assignment and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance).
(b) The indemnities in Sections 11.3(a)(ii11.3(a)(ii), 11.3(a)(iii11.3(a)(iii), 11.3(b)(ii11.3(b)(ii), and 11.3(b)(iii11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification thereunder, except in each case as to matters for which a bona fide specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance). The indemnity in Section 11.3(b)(i11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 2.3 and 2.4 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; Section 11.2(b), (ii) for the appliable applicable statute of limitations period plus thirty (30) days with respect to the matters described in clause (iii) of the definition of Retained Obligations; Section 11.2(c), (iii) for a period of twenty-four (244) months following the Closing Date years with respect to the matters described in clauses (ivSection 11.2(i) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided without time limit with respect to Sections 11.2(a), 11.2(d), 11.2(e), 11.2(f), 11.2(g), and 11.2(h). The indemnities in this Agreement, Section 11.3(a)(i) shall continue without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties Purchaser Group pursuant to the terms of Section 11.3(b)(iii11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) exceeds One Hundred Twenty-Five Thousand Dollars ($100,000125,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone PartiesPurchaser under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties Purchaser pursuant to the terms of Section 11.3(b)(iii11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), and (iii) which exceed the Individual Indemnity Threshold exceeds two an amount equal to one and three-quarters of one percent (21.75%) of the Transaction ValueUnadjusted Purchase Price, and then only to the extent such Damages exceed two an amount equal to one and three-quarters of one percent (21.75%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental RepresentationsUnadjusted Purchase Price.
(d) Purchaser shall not have any liability for any indemnification under Section 11.3(a)(iii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations, for which the following limitations shall not apply), for an individual matter until and unless the amount of the liability for Damages with respect to which Purchaser has an obligation to indemnify the Seller Group pursuant to the terms of Section 11.3(a)(iii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations) exceeds the Individual Indemnity Threshold.
(e) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties Purchaser (i) under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties in Section 4.3), for aggregate Damages in excess of fifteen percent (15%) of the Transaction ValueUnadjusted Purchase Price, and (ii) without limitation to the preceding clause (i), under this Article 11 for aggregate Damages in excess of one hundred percent (100%) of the Unadjusted Purchase Price; provided, however, that the limitations set forth in this Section 11.6(d11.6(e) shall not limit indemnification for breach of Seller’s Fundamental Representations, apply to any Damages (or (iiany related indemnity obligations) under this Agreement for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, extent arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregardedbased upon Fraud.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article Article 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(hg) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery).
(ih) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been affirmatively and expressly waived in writing by Purchaser.
(ji) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties Purchaser nor Seller shall be entitled to indemnification under Section 6.56.5, Section 9.5 9.4 or this Article Article 11 for, and “Damages” shall not include, (i) loss of profits profits, to the extent constituting consequential damagesconsequential, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the PartiesParties or to the extent such damages constitute direct damages under Texas law), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Laredo Petroleum, Inc.)
Limitation on Actions. (a) The representations and warranties of Seller the Parties in Article 4 (excluding Seller’s Fundamental Representations this Agreement, the representations and Sections 4.3, 4.7, and 4.14) and the corresponding representations, warranties, and affirmations warranties given in the certificates delivered at the Closing pursuant to Section 8.2(d7.1(c) and Section 7.2(c), as applicable, and the covenants and agreements of the Parties in this Agreement that are to be performed at or prior to Closing shall, in each case, survive the Closing for a period of twelve (12) months. The representation and warranty of Seller set forth in Section 4.3 shall survive the Closing for a period of three (3) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until the date that the final settlement first (1st) anniversary of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c)Closing Date. The covenants and agreements of the Parties contained in this Agreement that are to be performed after Closing shall survive Closing as reasonably necessary (unless fully performed prior to perform or at the same, subject to the limitations set forth in this Section 11.6. The remainder of this Agreement Closing) shall survive the Closing and delivery of in accordance with the Assignment, Deed and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided hereinrespective terms thereof. Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to to, and in accordance with the terms of, this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date.
(b) The indemnities in Sections 11.3(a)(ii), 11.3(a)(iii), 11.3(b)(ii), Section 9.1(a) and 11.3(b)(iiiSection 9.1(b) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunder (and no claims shall be permitted to be made thereunder), except in each case as to matters for which a specific written claim bona fide Claim Notice for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered good faith to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two percent (2%) of the Transaction Value, and then only to the extent such Damages exceed two percent (2%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental Representations.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller from and after the Closing:
(i) except in the case of fraud, from and after the Closing, the sole and exclusive remedies of a Party against the other Party for any Damages arising from a breach of this Agreement shall be the rights and remedies provided by or set forth in Section 9.1(a), Section 9.1(b) and Section 10.14; and
(ii) (A) the Contributor shall not be required to indemnify the Earthstone Parties (i) Contributee under Section 11.3(b)(iii) this Article 9 for aggregate Damages in excess of fifteen percent $245,000,000 and (15%B) of the Transaction Value; provided, however, that this Section 11.6(d) Contributee shall not limit indemnification for breach of Seller’s Fundamental Representations, or (ii) be required to indemnify the Contributor under this Agreement Article 9 for aggregate Damages in excess of the Transaction ValueClosing Consideration.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(gd) The amount of any Damages for which an any Indemnified Person is entitled to indemnity indemnification under this Article 11 9 shall be reduced (or if applicable, shall be refunded promptly by the Indemnified Person if previously paid to the Indemnified Person by or on behalf of the Indemnifying Person) to the extent of (i) the amount of insurance proceeds realized received by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
(i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(j) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) the amount recovered by an Indemnified Person or its Affiliates pursuant to any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of indemnification agreement with any Third Party.
(e) In no event shall any Indemnified Person after be entitled to duplicate compensation with respect to the same Damage under more than one provision of this Agreement and the various documents delivered in connection with the Closing.
(f) Any indemnity payment under this Agreement shall be treated as an adjustment to the Closing DateConsideration for Tax purposes, as determined unless otherwise required by applicable Law.
(g) Any indemnity payment under this Agreement owed by Contributee to Contributor under this Article 9 is, at the sole discretion of the Contributee, payable (i) in cash or (ii) by transferring Common Units representing the amount owed based on a final, non-appealable judgment value per Common Unit of the greater of (A) the Common Unit Price and (B) the closing price of a court Common Unit on the last trading day before the payment of competent jurisdictionsuch amount owed by Contributee to Contributor under this Article 9.
Appears in 1 contract
Sources: Contribution Agreement (Crestwood Equity Partners LP)
Limitation on Actions. (a) The representations and warranties of Seller the Parties in Article 3, Article 4 (excluding Seller’s Fundamental Representations and Sections 4.3, 4.7, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Section 8.2(d), and the covenants and agreements of the Parties to be performed at or prior to Closing shall, in each case, survive the Closing for a period of twelve (12) months. The representation and warranty of Seller set forth in Section 4.3 Article 5 shall survive the Closing for a period of three eighteen (318) years months from the Closing Date (the “General Survival Date”); provided, however, that (A) each of (i) the representations and the representation and warranty of Seller set forth warranties contained in Section 4.7 3.2 (Title to Interests), Section 3.3 (Existence and Organization), Section 3.4 (Authorization and Enforceability), Section 3.7 (Liability for Brokers’ Fees), Section 4.1 (Existence and Qualification), Section 4.3 (Capitalization), Section 4.15 (Employee Matters), Section 5.1 (Existence and Qualification), Section 5.2 (Authorization and Enforceability), Section 5.4 (Capitalization), Section 5.5 (Payment Shares) and Section 5.10 (Liability for Brokers’ Fees) (collectively, the “Fundamental Representations”) and (ii) the representations and warranties contained in Section 4.10 (Tax Matters) shall survive the Closing and will continue in full force and effect for a period from the date hereof until the date that is the final settlement date that is sixty (60) days following the expiration of the Purchase Price is agreed upon applicable statute of limitations (the “Extended Survival Date”) and (B) the representations and warranties contained in Section 4.16 (Environmental Matters) shall survive the Closing for a period of forty-eight (48) months from the Closing Date (the “Environmental Survival Date” and the General Survival Date, the Extended Survival Date or determined pursuant to Section 8.4(cthe Environmental Survival Date, as applicable, each a “Survival Date”). The covenants and agreements of the Parties to be performed after Closing in Article 6 shall survive Closing as reasonably necessary to perform indefinitely or for the same, subject to the limitations set forth in this Section 11.6period explicitly specified therein. The remainder of this Agreement covenants in Article 9 shall survive until the Closing and delivery expiration of the Assignment, Deed and ▇▇▇▇ applicable statute of Sale without time limit except as may otherwise be expressly provided hereinlimitations. Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration; provided, provided that there shall be no such termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date.
(b) The indemnities in Sections 11.3(a)(ii), 11.3(a)(iii), 11.3(b)(ii), Section 8.1(a) and 11.3(b)(iiiSection 8.1(b) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity in Section 11.3(b)(i) shall survive Notwithstanding the Closing as follows: (i) as foregoing, the Parties specifically and unambiguously intend that the survival periods that are set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable this Section 8.3 shall replace any statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as that would otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination datebe applicable.
(c) The Seller shall not have any liability for any indemnification under Section 11.3(b)(iii8.1(a)(i), (ii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits or (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”iv). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) until and unless the aggregate amount of the all liability for all Damages exceeds a deductible amount equal to $20,000 (i) for which Claim Notices are timely delivered by Earthstone Parties, (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii“Indemnity Deductible”), and (iii) after which exceed point the Individual Indemnity Threshold exceeds two percent (2%) of Purchaser Indemnified Parties shall be entitled to claim Damages solely for the Transaction Value, and then only to the extent such Damages exceed two percent (2%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental Representations.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties (i) under Section 11.3(b)(iii) for aggregate Damages amount in excess of fifteen percent (15%) of the Transaction ValueIndemnity Deductible; provided, however, that this Section 11.6(d) such limitation shall not limit indemnification for breach of Seller’s Fundamental Representations, or (ii) under this Agreement for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein apply to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of any Fundamental Representation.
(d) In no event shall the Seller’s aggregate liability to indemnify the Purchaser Indemnified Parties under Section 8.1(a)(i) exceed $300,000; provided, however, that (i) the Seller’s aggregate liability to indemnify the Purchaser Indemnified Parties for Damages arising from a breach or inaccuracy of the representations or and warranties contained in this Agreement has occurred Section 4.16 (Environmental Matters) shall not exceed $1,000,000, and (ii) when calculating the amount of Seller’s aggregate liability to indemnify the Purchaser Indemnified Parties for Damages incurred, arising out of or relating to any such from a breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty Fundamental Representation shall be disregardednot exceed $2,000,000.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(ge) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 8 shall be reduced by the any (i) amount of insurance proceeds realized received by the Indemnified Person or its Affiliates (through insurance proceeds or otherwise) with respect to such Damages, (ii) accruals or reserves in the calculation of the Final WC Adjustment Amount or the Post-Closing Adjustment Amount with respect to which such Damages relate and (net iii) reserve therefor in the Latest Balance Sheet (with or without reference to such specific matter).
(f) In the event Damages suffered by any Person are recoverable under more than one provision of any collection coststhis Agreement, or under this Agreement, and excluding even though such Person is permitted to rely on each provision of this Article 8 independently, such Person shall only be permitted to recover with respect to any particular Damages suffered by it one time, as it is the proceeds Parties’ intent that once any particular Damages have been recovered by a particular Person under one provision or agreement, such Damages no longer exist to the extent of such recovery with respect to such Person and, therefore, recovery by such particular Person under another provision or agreement of such already recovered Damages would constitute an unintended and prohibited “double” recovery.
(g) Notwithstanding anything to the contrary contained herein, any insurance policy issued limitation or underwritten by qualification as to “materiality” (including the Indemnified Person word “material” or its Affiliates)“Material Adverse Effect”) set forth in any representation or warranty contained in this Agreement shall be disregarded for purposes of determining breach of such representation or warranty and calculating any Damages subject to indemnification under this Article 8; provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(h) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurerthat, indemnitor, guarantor or other Person with respect to this Section 8.3(g), the subject matter following references shall not be disregarded for purposes of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any determining such Indemnified Person with respect to breach of such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign representation or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
warranty: (i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to use of the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(j) As word “material” as used in this Agreement, the defined term “Damages” means the amount of any actual liabilityMaterial Contract”, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase references to “material Permit” and (iii) references to materiality contained in liability, loss, cost, expense, claim, award Section 4.9(a) and Section 4.16. It is further agreed that the provisions of this Section 8.3(g) shall not change the titles of or judgment to the extent such increase is caused solely by the actions change what otherwise constitutes a “Material Customer,” “Material Supplier” or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction“Material Contract.”
Appears in 1 contract
Sources: Equity Purchase and Sale Agreement (Smart Sand, Inc.)
Limitation on Actions. (a) The representations and warranties of Seller in Article 4 (excluding Seller’s excluding, for purposes of clarity, the Seller Fundamental Representations and Seller’s representations and warranties in Sections 4.34.3 and 4.7), 4.7, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates certificate delivered by Seller at Closing pursuant to Section 8.2(d8.2(f), and the covenants and agreements of the Parties to be performed at or prior to Closing shall, in each case, survive the Closing for a period of twelve (12) months. The representation representations and warranty warranties of Seller set forth in Section 4.3 shall survive the Closing for a the applicable statute of limitations period of three plus thirty (330) years days and the representation representations and warranty warranties of Seller set forth in Section 4.7 shall survive the Closing until the date that Cut-Off Date. The representations and warranties of Purchaser in Article 5 (excluding the final settlement of Purchaser Fundamental Representations), and the Purchase Price is agreed upon or determined corresponding representations, warranties, and affirmations given in the certificate delivered by Purchaser at Closing pursuant to Section 8.4(c8.3(f), shall, in each case, survive the Closing for a period of twelve (12) months. The covenants and agreements of the Parties to be performed at any time from and after Closing shall survive Closing as reasonably necessary to perform the sameuntil fully performed, subject to the applicable limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed Assignment and ▇▇▇▇ Bill of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance).
(b) The indemnities in Sections 11.3(a)(ii), 11.3(a)(iii), 11.3(b)(ii), and 11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification thereunder, except in each case as to matters for which a bona fide specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance). The indemnity in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; Section 11.2(b), (ii) for the appliable applicable statute of limitations period plus thirty (30) days with respect to the matters described in clause (iii) of the definition of Retained Obligations; Section 11.2(c), (iii) for a period of twenty-four three (243) months following the Closing Date years with respect to the matters described in clauses (ivSection 11.2(i) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided without time limit with respect to Sections 11.2(a), 11.2(d), 11.2(e), 11.2(f), 11.2(g), and 11.2(h). The indemnities in this Agreement, Section 11.3(a)(i) shall continue without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties Purchaser Group pursuant to the terms of Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) exceeds One Hundred Twenty-Five Thousand Dollars ($100,000125,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone PartiesPurchaser under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties Purchaser pursuant to the terms of Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), and (iii) which exceed the Individual Indemnity Threshold exceeds two an amount equal to one and three quarters of one percent (21.75%) of the Transaction ValueUnadjusted Purchase Price, and then only to the extent such Damages exceed two an amount equal to one and three quarters of one percent (21.75%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental RepresentationsUnadjusted Purchase Price.
(d) Purchaser shall not have any liability for any indemnification under Section 11.3(a)(iii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations, for which the following limitations shall not apply), for an individual matter until and unless the amount of the liability for Damages with respect to which Purchaser has an obligation to indemnify the Seller Group pursuant to the terms of Section 11.3(a)(iii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations) exceeds the Individual Indemnity Threshold.
(e) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties Purchaser (i) under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties in Section 4.3), for aggregate Damages in excess of fifteen percent (15%) of the Transaction ValueUnadjusted Purchase Price, and (ii) under this Article 11 for aggregate Damages in excess of one hundred percent (100%) of the Unadjusted Purchase Price; provided, however, that the limitations set forth in this Section 11.6(d11.6(e) shall not limit indemnification for breach of Seller’s Fundamental Representations, apply to any Damages (or (iiany related indemnity obligations) under this Agreement for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, extent arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregardedbased upon Fraud.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(hg) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group and Purchaser shall be subrogated to the rights of any Indemnified Person that is a member of the Seller Group, in each case, against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller such Party pursuant to Section 11.3(b) Article 11 to the extent that Seller a Party pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group or Seller Group, as applicable, who is indemnified pursuant to Section 11.3(b) Article 11 shall assign or otherwise cooperate with Seller or Purchaser, as applicable, in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Seller Group or Purchaser Group Group, as applicable, has been paid. Any such Purchaser Group Indemnified Person shall remit to SellerSeller or Seller Group Indemnified Person shall remit to Purchaser, as applicable, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group or Seller Group, as applicable, from a third Person and which relates to Damages for which (but only to the extent) such member of the Seller Group or Purchaser Group Group, as applicable, has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery).
(ih) Neither Seller nor Purchaser shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been affirmatively and expressly waived in writing by Purchaserthe other Party.
(ji) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties Purchaser nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 9.4 or this Article 11 for, and “Damages” shall not include, (i) loss of profits profits, to the extent constituting consequential damagesconsequential, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the PartiesParties or to the extent such damages constitute direct damages under Texas law), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
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Limitation on Actions. (a) The representations and warranties of Seller the Parties in Article 4 (excluding Seller’s Fundamental Representations and Sections 4.33, 4.7Article 4, and 4.14) Article 5, and the corresponding representations, warranties, representations and affirmations warranties given in the certificates delivered at Closing pursuant to Section 8.2(d8.2(b) and Section 8.3(b), and the covenants and agreements of the Parties to be performed at or prior to Closing shallas applicable, in each case, survive the Closing for a period of twelve (12) months. The representation and warranty of Seller set forth in Section 4.3 shall survive the Closing for a period of three (3) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until 15 months after the date Closing Date (the “Survival Period”), except that (i) the final settlement representations, warranties and acknowledgements, as applicable, in Section 3.1, Section 3.2, Section 3.3, Section 3.4(a), Section 3.6, Section 4.1, Section 4.2(a), Section 4.3, Section 4.4, Section 4.5 (a), (c) and (d), Section 5.1, Section 5.2, Section 5.3(a), Section 5.4 and Section 12.17(a), (c) and (e) (together, the “Core Representations”) shall survive the Closing until 36 months after the Closing Date; (ii) the representations and warranties in Section 4.8 shall survive Closing until 30 days after the applicable statute of limitations closes the Purchase Price is agreed upon or determined pursuant taxable year to which the subject Taxes relate; and (iii) the representations and warranties in Section 8.4(c)4.11 shall not survive and shall terminate at the Closing. The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth in this Section 11.6. The remainder of this Agreement shall survive until fully performed in accordance with their terms, except that the Closing covenants and delivery of the Assignmentagreements, Deed as applicable, in Section 6.3 and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided hereinSection 6.6, shall survive for two years. Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date. For purposes of clarification, the Parties acknowledge the fact that a representation or warranty surviving the Closing does not make it a continuing representation or warranty, and no Party shall have a duty after the Closing to advise another Party or its affiliates of any change in circumstances thereto.
(b) The indemnities in Sections 11.3(a)(iiSection 10.1(a), 11.3(a)(iii), 11.3(b)(ii), Section 10.1(b) and 11.3(b)(iiiSection 10.1(c) shall terminate as of the termination date last day of the applicable Survival Period, if any, of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity in Purchaser’s indemnification obligations pursuant to Section 11.3(b)(i10.1(a), and the Sellers’ indemnification obligations pursuant to Section 10.1(c)(i) and Section 10.1(c)(iii) shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect not be subject to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on any deductibles or before such termination datecaps.
(c) Seller The Sellers shall not have any liability for any indemnification under Section 11.3(b)(iii10.1(b) and Section 10.1(c)(ii): (i) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits claims that do not exceed $100,000 in Damages, (or it is otherwise finally determined that Seller has) an obligation to indemnify the Earthstone Parties pursuant to the terms of Section 11.3(b)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iiiii) until and unless the aggregate amount of the liability for all Damages (i) thereunder for which Claim Notices are timely delivered by Earthstone Parties, the Purchaser exceeds $1,125,000 (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of Section 11.3(b)(iii“Deductible”), and (iii) which exceed the Individual Indemnity Threshold exceeds two percent (2%) of the Transaction Value, and then only to the extent such Damages exceed two percent the Deductible and (2%iii) the aggregate amount of the Transaction Value. Notwithstanding liability for all Damages for which the foregoing, this Section 11.6(c) Sellers shall be liable shall not limit indemnification for breach of the Seller’s Fundamental Representations.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties (i) under Section 11.3(b)(iii) for aggregate Damages in excess of fifteen percent (15%) of the Transaction Valueexceed $11,250,000; provided, however, that this Section 11.6(d) the foregoing limitations shall not limit apply to any indemnification under Section 10.1(b) and Section 10.1(c)(ii) for breach of Seller’s Fundamental Damages incurred or suffered by the Purchaser Group related to the Core Representations, representations and warranties in Section 4.8 or (ii) Seller Taxes, and the Sellers’ aggregate liability for any such Damages, together with any other indemnification obligations of the Sellers under this Agreement for aggregate Damages in excess of Article 10, shall not exceed the Transaction ValuePurchase Price.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(gd) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 10 shall be reduced by the amount of insurance proceeds realized actually received by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunderDamages.
(h) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery)
(i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(j) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
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Sources: Membership Interest Purchase Agreement (Blueknight Energy Holding, Inc.)
Limitation on Actions. (a) The representations and warranties of Seller in Article 4 (excluding Seller’s the Fundamental Representations and Sections 4.3, 4.7, 4.3 and 4.144.8) and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Section 8.2(d)Sections 8.2(e) shall survive the Closing for a period of twelve (12) months and shall thereafter terminate. The Fundamental Representations and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Section 8.2(e) shall survive the Closing until the expiration of the applicable statute of limitations and shall thereafter terminate. The representations and warranties of Seller in Section 4.3 and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Section 8.2(e) shall survive the Closing until the expiration of the applicable statute of limitations plus sixty (60) days and shall thereafter terminate. The representations and warranties of Seller in Section 4.8 and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Section 8.2(e) shall survive the Closing until the Cut-Off Date and shall thereafter terminate. The covenants and agreements of the Parties Seller in this Agreement to be performed at on or prior to the Closing shallDate, and the corresponding affirmations given in each casethe certificate delivered at Closing pursuant to Section 8.2(e), shall survive the Closing for a period of twelve (12) months. The representation covenants and warranty agreements of Seller set forth in Section 4.3 shall survive this Agreement to be performed after the Closing for a period of three (3) years and the representation and warranty of Seller set forth in Section 4.7 Date shall survive the Closing until the date that the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c). The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth in this Section 11.6performed. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed Assignment and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expirationexpiration (if applicable), provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration date.
(b) The indemnities in Sections 11.3(a)(iiSection 11.2(b)(i) shall survive the Closing (i) indefinitely with respect to clauses (a), 11.3(a)(iii(f), 11.3(b)(ii(j) and (l) in the definition of Retained Obligations, (ii) until the Cut-Off Date with respect to clause (b) in the definition of Retained Obligations, (iii) until sixty (60) days after the expiration of the applicable statute of limitations with respect to clause (c) in the definition of Retained Obligations, (iv) for the period of two (2) years with respect to clauses (d), (g) and 11.3(b)(iii(i) shall terminate as (in the definition of Retained Obligations, (v) for a period of four (4) years with respect to clauses (e) and (h) in the definition of Retained Obligations, and (vi) until performed with respect to clause (k) of the termination date definition of Retained Obligations and, with respect to each respective representationof the indemnities in Section 11.2(b)(i), warrantyshall thereafter terminate, covenantexcept, or agreement that is subject to indemnification thereunder, except in each case case, as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination datedate in accordance with Section 11.3. The indemnity Purchaser’s indemnities set forth in Section 11.3(b)(i11.2(a)(i) relating to the Assumed Obligations shall survive the Closing as follows: (i) as set forth in Sections 2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and (v) of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii11.2(b)(ii) with respect to breaches of Section 6.4(d) or Section 11.2(b)(iii), except for breaches of the Fundamental Representations and the representations and warranties in Section 4.3 for which the following limitations shall not apply, for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (or it is otherwise finally determined determined) that Seller has) has an obligation to indemnify the Earthstone Parties Purchaser pursuant to the terms of Section 11.3(b)(iii11.2(b)(ii) or 11.2(b)(iii) (as applicable) exceeds One Hundred Thousand Dollars ($100,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii11.2(b)(ii) with respect to breaches of Section 6.4(d) or Section 11.2(b)(iii), except for breaches of the Fundamental Representations and the representations and warranties in Section 4.3 for which the following limitations shall not apply, until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone PartiesPurchaser under Section 11.2(b)(ii) with respect to breaches of Section 6.4(d) and Section 11.2(b)(iii), (ii) with respect to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties Purchaser pursuant to the terms of under Section 11.3(b)(iii11.2(b)(ii) with respect to breaches of Section 6.4(d) and Section 11.2(b)(iii), and (iii) which exceed the Individual Indemnity Threshold exceeds two one and a half percent (21.5%) of the Transaction ValueUnadjusted Purchase Price, and then only to the extent such Damages exceed two one and a half percent (21.5%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental RepresentationsUnadjusted Purchase Price.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties Purchaser (i) under Section 11.3(b)(iii11.2(b)(ii) with respect to breaches of Section 6.4(d) and Section 11.2(b)(iii), except for breaches of the Fundamental Representations and representations and warranties in Section 4.3, for aggregate Damages in excess of fifteen percent (15%) of the Transaction Value; providedUnadjusted Purchase Price, however, that this Section 11.6(d) shall not limit indemnification for breach of Seller’s Fundamental Representations, or and (ii) under this Agreement Article 11 for aggregate Damages damages in excess of one hundred percent (100%) of the Transaction ValueUnadjusted Purchase Price.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded.
(f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser.
(g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder.
(hf) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated indemnified hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery).
(g) Any Seller Group Indemnified Person shall remit to Purchaser, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Seller Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Seller Group has been previously indemnified hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery).
(h) The Indemnified Person shall use commercially reasonable efforts to mitigate or resolve any Damages subject to indemnification under this Article 11.
(i) Seller shall not have For purposes of the indemnification obligations in this Article 11, in determining the amount of any obligation or liability under this Agreement or Damages in connection with or with respect to the transactions contemplated by this Agreement for a breach of any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser.
(j) As used representations and warranties contained in this Agreement, the term “Damages” means the amount of any actual liabilitydollar, lossmateriality, cost, expense, Tax, claim, award, material adverse effect or judgment incurred Material Adverse Effect qualifiers in such representations or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller warranties shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 for, and “Damages” shall not include, (i) loss of profits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdictiondisregarded.
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