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 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 this Agreement shall survive the Closing for a period of three (3) years from the Closing Date, except that (i) the representations, warranties and acknowledgements, as applicable, in Section 3.2, Section 3.3, Section 3.6, Section 3.10, Section 3.11, Section 4.1, Section 4.3, Section 4.13, Section 5.1, Section 5.2 and Section 5.4 (together, the “Core Representations”) shall survive for five (5) years and (ii) the representations and warranties in Section 4.8 and the covenants contained in Article 9 shall terminate on the date that is ninety (90) days following the expiration of the applicable statute of limitations and (iii) the representation and warranty of Seller set forth warranties in Section 4.7 5.7 through Section 5.10 (inclusive) and Section 5.13 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)indefinitely. The covenants and agreements of the Parties to be performed after Closing in Article 6 shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth until fully performed 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 accordance with 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 dateterms.
(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 expiration date, 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 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 Except for indemnification related to the Core Representations, indemnification related to Section 8.1(c), the representations and warranties in Section 4.8 and the covenants contained in Article 9, as to which the limitations in this paragraph shall not apply, Sellers shall not have any liability for any indemnification under Section 11.3(b)(iii8.1 (i) for an individual matter until claims that do not exceed $25,000 in Damages 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)(iiiii) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are timely delivered by Earthstone Parties, Purchaser exceeds $250,000 (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 (2%) of the Transaction Value. Notwithstanding the foregoing, this Section 11.6(c) shall not limit indemnification for breach of the Seller’s Fundamental RepresentationsDeductible.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller (i) except for indemnification related to the Core Representations, indemnification related to Section 8.1(c), the representations and warranties in Section 4.8 and the covenants contained in Article 9, as to which the limitations in this paragraph shall not apply, Sellers shall not be required to indemnify the Earthstone Parties (i) Purchaser Group under Section 11.3(b)(iii) this Article 8 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 $31,250,000 and (ii) the aggregate amount of Sellers’ indemnification obligations under this Agreement for aggregate Damages in excess of Article 8 shall not exceed the Transaction Valueactual proceeds from the Purchase Price received by Sellers pursuant to this Agreement.
(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 8 shall be reduced by (i) the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages and (net ii) an amount equal to the amount of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten Tax benefit reasonably expected to be received by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under Affiliates in connection with such Damages or any policy of insurance as a condition to indemnification hereunderthe circumstances giving rise thereto.
(hf) 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 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 hereunder with respect to the extent constituting consequential damages, or other consequential damages suffered a breach 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 an Indemnifying Person of any Indemnified of the representations, warranties or covenants made or agreed to by such Indemnifying Person after hereunder of which such Person had actual knowledge prior to the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Ferrellgas Partners Finance Corp)
Limitation on Actions. (a) The representations and warranties of Seller in Article 4 (excluding Seller’s Fundamental Representations and Sections 4.3of Purchaser in Article 5, 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 eighteen (318) years months; provided, however, that the Fundamental and Tax Representations and the representation representations and warranty of Seller set forth warranties in Section 4.7 5.1, Section 5.2 and Section 5.3 shall survive the Closing until and shall continue for the date that applicable statute of limitations relating to the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c)subject matter thereof plus thirty (30) days. The covenants Each covenant and agreements agreement of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth contained 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 indefinitely unless otherwise be expressly provided stated 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 duly 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 9.2(a)(ii), 11.3(a)(iii), 11.3(b)(ii), Section 9.2(a)(iii) and 11.3(b)(iiiSection 9.2(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 indemnity indemnities in Section 11.3(b)(i9.2(a)(i) and Section 9.2(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 no 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)(iii9.2(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 to which Seller admits (or it is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to Purchaser exceeds the terms of Section 11.3(b)(iii), and (iii) which exceed the Individual Aggregate Indemnity Threshold exceeds two percent (2%) of the Transaction ValueDeductible, and then only to the extent such Damages exceed two percent (2%) of the Transaction ValueAggregate Indemnity Deductible. Notwithstanding the foregoing, this This Section 11.6(c9.4(c) shall not limit indemnification for breach with respect to (i) fraud, (ii) breaches of the Seller’s Fundamental and Tax Representations, (iii) the Retained Seller Liabilities, or (iv) the indemnities in Section 9.2(b)(i), nor shall Damages for those matters count toward the threshold in the first sentence of this Section 9.4(c).
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Purchaser shall have no further recourse or remedy against Seller, and Seller shall not be required have no liability to Purchaser, with respect to Seller’s obligations to indemnify the Earthstone Parties (i) Purchaser under Section 11.3(b)(iii9.2(b)(ii) for aggregate Damages any amounts in excess of fifteen percent (15%) of the Transaction Value$734,150; provided, however, that this Section 11.6(d9.4(d) shall not limit indemnification for breach of Seller’s Fundamental Representationsliability with respect to (i) fraud, or (ii) under this Agreement for aggregate Damages in excess breaches of the Transaction Value.
(e) Notwithstanding anything herein to the contrary, for purposes of this Article 11Fundamental and Tax Representations, (iiii) 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 Retained 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)Liabilities, and (iiiv) any increase the indemnities 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 jurisdictionSection 9.2(b)(i).
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Magnum Hunter Resources Corp)
Limitation on Actions. (a) The Except with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the representations and warranties of Seller set forth 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), 5 and the covenants and agreements of the Parties to be performed at or prior to Closing shall, Seller 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 Article 8 shall survive the Closing until December 30, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4, and 6.5, the date that the final settlement representations and warranties 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 Buyer set forth in this Section 11.6Article 6 shall survive until December 30, 2010. 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)(ii13.2(a)(ii), 11.3(a)(iii13.2(a)(iii), 11.3(b)(ii13.2(b)(ii), and 11.3(b)(iii13.2(b)(iii) shall terminate as of the termination date of each respective representation, warranty, 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)(iSections 13.2(a)(i) and 13.2(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 No Party shall not have any liability for any indemnification under Section 11.3(b)(iiiSections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which Seller admits (such Party admits, or it is otherwise finally determined determined, that Seller has) such Party has an obligation to indemnify the Earthstone Parties other Party pursuant to the terms of Section 11.3(b)(iii) one of such subsections exceeds One Four Hundred Fifty Thousand Dollars ($100,000450,000) (the “"Individual Indemnity Threshold”"). Without limiting the foregoing, Seller no Party shall not have any liability for any indemnification under Section 11.3(b)(iiiSections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until and unless the aggregate amount of the liability for all Damages which satisfies all of the following clauses exceeds $4,500,000:
(i) for which Claim Notices are timely for such Damages have been delivered by Earthstone Parties, the other Party in accordance with this Agreement;
(ii) with respect to which Seller such Party admits (or it is otherwise finally determined) that Seller such Party has an obligation to indemnify Earthstone Parties the other Party pursuant to the terms of Section 11.3(b)(iii)hereto for such Damages, and and
(iii) which exceed each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold exceeds two percent Threshold; provided, however, that in no event shall this subsection (2%c) 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 of Buyer for breach the Retained Liabilities or indemnification of Seller for the Seller’s Fundamental RepresentationsAssumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualified.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall not be required to indemnify the Earthstone Parties (i) other Party under Section 11.3(b)(iii) this Article 13 for aggregate Damages in excess of fifteen ten percent (1510%) of the Transaction ValueBase Purchase Price; provided, however, that this Section 11.6(d13.5(d) shall not apply to or limit indemnification for breach of Seller’s Fundamental Representationsthe Retained Liabilities, the Assumed Liabilities, or (ii) Seller's obligations under this Agreement for aggregate Damages the special warranty of title in excess the Assignment and ▇▇▇▇ of the Transaction ValueSale.
(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 13 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.
(jf) 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 PersonIndemnified Person arising out of or resulting from the indemnified matter, 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 questionindemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunderindemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither the Earthstone Parties Buyer nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 11 13 for, and “Damages” Damages shall not include, (ia) loss of profits to the extent constituting consequential damagesprofits, whether actual or consequential, 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 (iib) 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: Asset Purchase Agreement (Vanguard Natural Resources, LLC), Asset Purchase Agreement (Vanguard Natural Resources, LLC)
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, survive the Closing for a period of twelve (12Section 8.2(c) months. The representation and warranty of Seller set forth in Section 4.3 8.3(d) shall survive the Closing for a period of three nine months, except that (3i) years the representations and the representation and warranty of Seller set forth warranties in Section 4.7 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.5, Section 5.1, Section 5.2, Section 5.3, Section 5.4 and Section 5.5 shall survive indefinitely, and (ii) 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 agreements, as applicable, in Section 6.7 and Section 6.12 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)(iii) and 11.3(b)(iiiSection 10.2(b)(iv) 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), Section 10.2(b)(i) and Section 10.2(b)(ii) 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 2 contracts
Sources: Purchase and Sale Agreement (Triangle Petroleum Corp), Purchase and Sale Agreement (Triangle Petroleum Corp)
Limitation on Actions. (a) The representations and warranties of Seller the Parties in Article 4 (excluding Seller’s Fundamental Representations Articles 4, 5 and Sections 4.3, 4.7, and 4.14) 6 and the corresponding representations, warranties, representations and affirmations warranties given in the certificates delivered at the Closing pursuant to Section 8.2(d9.2(b) and Section 9.3(c), 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 , except that (i) the representations and warranty of Seller set forth warranties in Section 4.3 shall survive the Closing for a period of three (3) years Sections 5.8 and the representation and warranty of Seller set forth in Section 4.7 5.17 shall survive the Closing until 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 11.6limitations. The remainder of the representations, warranties, covenants and agreements provided for in this Agreement shall not survive Closing except that covenants and agreements contemplated to be complied with or performed following the Closing and delivery of the Assignment, Deed and ▇▇▇▇ of Sale without time limit except as may otherwise be expressly provided hereinshall survive indefinitely. 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 Claim asserted pursuant to this Agreement with respect to the breach of such a representation, warranty, covenant, covenant or agreement prior to on or before its expiration date.
(b) The indemnities in Sections 11.3(a)(ii11.4(b)(iii), 11.3(a)(iii11.4(b)(iv), 11.3(b)(ii), 11.4(c)(ii) and 11.3(b)(iii11.4(c)(iii) 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 Claims asserted pursuant to this Agreement with respect to the Indemnifying Person breach of such representation, warranty, covenant or agreement on or before such termination date. The Purchaser’s indemnities in Sections 11.4(b)(i), 11.4(b)(ii), and 11.4(b)(v) and Seller’s indemnity in Section 11.3(b)(i11.4(c)(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)(iii11.4(c)(ii) for an individual matter or Section 11.4(c)(iii) 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) individual Claim exceeds One Hundred Thousand Dollars ($100,000) 100,000.00 (the “Individual Indemnity Threshold”). Without limiting the foregoing, .
(d) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii11.4(c)(ii) or Section 11.4(c)(iii) until and unless the aggregate amount of the liability for all Damages Claims exceeding the Threshold exceeds $1,000,000.00 (ithe “First Deductible”), at which point Seller shall be liable only for indemnification under Section 11.4(c)(iii) for which Claim Notices are timely delivered by Earthstone Parties, to the extent relating to an inaccuracy or breach of the representations or warranties in Section 5.13(b) or Section 5.13(d) (ii“Easement Claims”) with and then only to the extent the amount of such Easement Claims exceeds the First Deductible. 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 all other claims for indemnification under Section 11.3(b)(iii11.4(c)(ii)or Section 11.4(c)(iii), Seller shall not have any liability until and (iii) which exceed unless the Individual Indemnity Threshold aggregate amount of the liability for all Claims exceeding the Threshold, including all Claims counted toward the First Deductible, exceeds two one and one half percent (21.5%) of the Transaction ValuePurchase Price (the “Second Deductible”), and then only to the extent the amount of all such Damages exceed two percent (2%) of Claims exceeds the Transaction ValueSecond Deductible. Notwithstanding the foregoing, : (i) this Section 11.6(cclause (d) shall not limit indemnification apply to liability for breach breaches of the Seller’s Fundamental Representationscovenant in Section 7.8 and (ii) the adjustments to the Purchase Price under Section 2.2 and any payments in respect thereof shall not be limited by this Section.
(de) 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)(iii) this Article 11 for aggregate Damages damages in excess of an amount equal to fifteen percent (15%) of the Transaction ValuePurchase Price; provided, however, that this Section 11.6(dclause (e) shall not limit indemnification apply to liability for breach of Seller’s Fundamental Representations, or (ii) under this Agreement for aggregate Damages in excess breaches 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 covenant 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 disregardedSection 7.8.
(f) With respect to any investigation, remediation or other response action related to Damages For the purposes of determining whether a breach of the representations and warranties set forth in Section 5.13(d) occurred for which Purchaser seeks indemnification from Seller pursuant an Indemnified Party may be entitled to indemnity under this Article 11, and the amount of Claims resulting from any such breach, the representations and warranties set forth in Section 5.13(d) shall be read as though they were not qualified to the knowledge of Seller. Notwithstanding anything to the contrary in this Agreement, Purchaser hereby agrees shall not be entitled to provide Seller seek indemnification hereunder with copies of all related reports and communications submitted respect to any Governmental Authority and matters relating to or arising out of the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by PurchaserPre-Signing Title Matters.
(g) The amount of any Damages Claims for which Purchaser Indemnitee is entitled to indemnity under this Article 11 as a result of a breach of any of the representations contained in Section 5.8 shall be reduced so as not to take into account any Taxes for which Purchaser is responsible under Section 7.8 or to the extent the breach otherwise results in benefits to Purchaser or its Affiliates.
(h) The amount of any Claims for which an Indemnified Person Party is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds or Tax benefits, if any, realized by the Indemnified Person Party or its Affiliates (or direct or indirect owners) with respect to such Damages (Claims, net of any collection costs, costs and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person Party 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 Purchaser shall not have be entitled to indemnification or any obligation or liability other remedy 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, Claims to the extent attributable to or obligation if such breach, misrepresentation, arising out of the actions of Purchaser after Closing as owner of the Membership Interests or noncompliance shall have been expressly waived in writing by Purchaseras owner and operator of any of the Pipeline Assets.
(j) As used Notwithstanding anything herein to the contrary, in no event will the Seller Indemnitees or the Purchaser Indemnitees be entitled to duplicate recovery under this Article 11 with respect to (i) any Claim, even though the facts or series of related facts giving rise to such Claim may constitute a breach of more than one representation, warranty or covenant or agreement set forth herein or in any document delivered in connection with the Closing or (ii) any adjustments to the Purchase Price pursuant to Section 2.2.
(k) Neither Party shall have any liability as to the other Party, and each expressly waives any claim for, punitive, exemplary, remote or speculative damages or damages that are not the natural, probable and reasonably foreseeable result of a breach of this Agreement, including damages arising from the term “Damages” means special circumstances of the amount of any actual liabilityPurchaser Indemnitee or Seller Indemnitee, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Personas applicable, 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 not such special circumstances were communicated to the matters Parties at the time this Agreement was executed, except to the extent such damages are recovered by an unaffiliated third Person against such Party in question, and the costs of investigation and/or monitoring of a third Person Claim for which such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither the Earthstone Parties nor Seller shall Party would otherwise be entitled to indemnification under Section 6.5, Section 9.5 or pursuant to 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 jurisdiction11.
Appears in 2 contracts
Sources: Membership Interest Purchase and Sale Agreement (Legacy Reserves Inc.), Membership Interest Purchase and Sale Agreement (Legacy Reserves 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.
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Limitation on Actions. (a) The representations and warranties of Seller the Parties in Article 4 and Article 5 (excluding Seller’s other than the Fundamental Representations and Sections 4.3, 4.7, the representations and 4.14warranties in Section 4.9 to Section 4.17 inclusive) and the corresponding representationscovenants and agreements of the Parties in Sections 6.1, warranties6.2, 6.3, Section 6.5, 6.6 and 6.7, and affirmations the corresponding representations and warranties given in the certificates delivered at Closing pursuant to Section 8.2(d9.2(i) and Section 9.3(b), 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) monthsmonths (unless a shorter period is expressly provided within the applicable section). The representation Fundamental Representations shall survive without time limit. The representations and warranty of Seller set forth warranties in Section 4.3 4.9 to Section 4.17 shall survive the Closing for a period of three seven (37) 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 11.6years. 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 11.1(a)(ii), 11.3(a)(iiiSection 11.1(a)(iii), 11.3(b)(ii), Section 11.1(b)(ii) and 11.3(b)(iiiSection 11.1(b)(iii) shall terminate as of twelve (12) months after the termination date of Closing, except to the extent that they relate to the representations and warranties in Section 4.9 to Section 4.17 inclusive, in which case they shall terminate seven years after Closing; and except to the extent that they relate to the Fundamental Representations, in which case they shall not terminate, provided that, in relation to each respective representation, warranty, covenant, or agreement representation and warranty that is subject to indemnification thereundera termination date, except in each case as to termination shall not affect matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such the relevant termination date. The indemnity in Section 11.3(b)(i11.1(b)(vii) shall survive terminate six (6) months after the Closing Closing. The indemnity in Section 11.1(b)(i) shall terminate eighteen (18) months after the Closing. The indemnities in Section 11.1(a)(i), Section 11.1(b)(iv), Section 11.1(b)(v) and Section 11.1(b)(vi) shall continue indefinitely, provided that the indemnity in Section 11.1(b)(vi) shall terminate if any Power of Attorney terminates, expires, or becomes otherwise invalid or unenforceable (other than as follows: a result of the voluntary relinquishment by Seller, except as a result of receipt of an assignment (i“ceder derechos litigiosos”)), or an assignment (“ceder derechos litigiosos”) is not delivered as set forth in Sections 2.3 required under Section 11.2(h), provided further, that such indemnity shall be reinstated if Purchasers cause the delivery of another Power of Attorney to replace the terminated, expired, invalid or unenforceable Power of Attorney or delivery of such assignment (“ceder derechos litigiosos”), as applicable. Indemnities shall be of no further force and 2.4 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 the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect such an indemnity prior 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 its expiration date.
(c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii11.1(b) (excluding Sections 11.1(b)(iv) and 11.1(b)(v)): (i) for an individual matter until and unless the amount of the liability for any Damages with respect to which Seller admits (any occurrence, claim, award or it is otherwise finally determined judgment 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) do not individually exceed US$250,000 (the “Individual Indemnity Claim Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii; or (ii) unless and until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices for claims meeting the Individual Claim Threshold 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 Purchaser exceed the Individual Indemnity Threshold exceeds two percent (2%) of the Transaction ValueUS$10 million, and then only to the extent such Damages exceed two percent (2%) of the Transaction ValueUS$10 million. Notwithstanding the foregoingpreceding, this Section 11.6(c11.3(c) shall not limit indemnification for breach of the Seller’s liability with respect to breaches of any Fundamental RepresentationsRepresentation.
(d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not collectively be required to indemnify the Earthstone Parties (i) Purchaser under Section 11.3(b)(iii) this Article 11 for aggregate Damages in excess of fifteen twenty-five percent (1525%) of the Transaction Value; providedPurchase Price, howeverbut for purposes of such calculation, that Damages recovered under Sections 11.1(b)(iv) and 11.1(b)(v) shall not be included. Notwithstanding the preceding, this Section 11.6(d11.3(d) shall not limit indemnification for breach of Seller’s liability with respect to breaches of any Fundamental Representations, or (ii) under this Agreement for aggregate Damages in excess of the Transaction ValueRepresentation.
(e) Notwithstanding anything herein The adjustments to the contraryPurchase Price under Section 3.3, for purposes of this Tax obligations pursuant to Article 1112 and Section 13.3, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained and any payments 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 respect of any such representation or warranty of the preceding shall not be limited by Seller, in each case, all references to materiality Sections 11.3(c) and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded11.3(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.
(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 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
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 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(a), (c), (d) and (e) (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 $1,144,109.09, (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 $3,575,340.91, 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 representations and warranties made in respect of the Subsidiaries 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.
(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 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 (Blueknight Energy Holding, Inc.)
Limitation on Actions. (a) The representations and warranties of Seller Sellers in Article 4 (excluding Seller’s Fundamental Representations 5 and Sections 4.3of Purchaser in Article 6, 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 12 months; provided, however, that the Fundamental and Tax Representations and the representation representations and warranty of Seller set forth warranties in Section 4.7 6.1, Section 6.2 and Section 6.3 shall survive the Closing until and shall continue for the date that applicable statute of limitations relating to the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c)subject matter thereof. The covenants Each covenant and agreements agreement of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, subject to the limitations set forth contained 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 indefinitely unless otherwise be expressly provided stated 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 duly 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 12.2(a)(ii), 11.3(a)(iiiSection 12.2(a)(iii), 11.3(b)(ii), Section 12.2(b)(ii) and 11.3(b)(iiiSection 12.2(b)(iii) 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 39 indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnity indemnities in Section 11.3(b)(i12.2(a)(i) and Section 12.2(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 Sellers shall not have any liability no 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, (ii12.2(a)(iii) with respect to which Seller admits (or it any individual claim for Damages that is otherwise finally determined) that Seller has an obligation to indemnify Earthstone Parties pursuant to the terms of less than $5,000. This 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(c12.4(c) shall not limit indemnification for breach of the Seller’s Fundamental Representations.
(d) Notwithstanding anything with respect to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify the Earthstone Parties (i) under Section 11.3(b)(iiifraud, (ii) for aggregate Damages in excess of fifteen percent (15%) breaches of the Transaction Value; providedFundamental and Tax Representations, however, that this Section 11.6(d(iii) shall not limit indemnification for breach of Seller’s Fundamental Representationsthe Retained Sellers Liabilities, or (iiiv) under this Agreement for aggregate Damages in excess of the Transaction ValueAssumed Obligations.
(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.
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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), 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.
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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 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.
Appears in 1 contract
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.
Appears in 1 contract
Limitation on Actions. (a) The Sections 4.1, 4.2, 4.3, 4.6, 4.7, 4.9(a) 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 $60,000 (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 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)
(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 Any claim for indemnification pursuant to Section 10.1(a)(iii) or Section 10.1(c)(iii) must be made on or prior to the date 18 months after the Second Closing Date, provided that third party claims and such claims arising from a breach of 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 5.4 (Liability for Broker’s Fees), Section 5.6 (Litigation), Section 5.7 (Taxes and Assessments), Section 5.10 (Payments for Production), and Section 6.5 (Liability for Broker’s Fees), shall survive the Second 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 Date until the date that the final settlement expiration of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c)applicable statute of limitations. The covenants and agreements termination of the Parties to be performed after Closing shall survive Closing indemnities 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.
clause (ba) 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 does not apply as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person Party 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 applicable termination date.
(cb) Seller shall not have any liability Neither Indemnified Party may make a claim against the Indemnifying Party for any indemnification under Section 11.3(b)(iii) for an individual matter indemnity pursuant to Sections 10.1 unless and until and unless the aggregate amount of the liability for Damages with respect to which Seller admits all claims (or it is otherwise finally determined that Seller hasincluding, without limitation, for Third Party Claims) an obligation to indemnify asserted by the Earthstone Parties pursuant to PURCHASE AND SALE AGREEMENT Indemnified Party under Sections 10.1 exceeds $50,000. Once such minimum threshold in Damages has been sustained, the terms entirety 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 such minimum threshold sustained by the Indemnified Party will be compensable under this ARTICLE 10 (15%subject to Section 10.4(c)).
(c) Following the date of this Agreement, the sole and exclusive remedy of a Party for any claim resulting in a breach by the other Party of the Transaction Value; providedother Party’s representations, howeverwarranties, that this Section 11.6(d) shall not limit indemnification for breach of Seller’s Fundamental Representationscovenants, or (ii) agreements made in this Agreement or the failure of a Party to perform its obligations under this Agreement for aggregate Damages in excess of the Transaction Value.
(e) Notwithstanding anything herein shall be a claim under ARTICLE 10, except to the contraryextent the claim results from the fraud or willful misconduct of a Party. To the fullest extent permitted by Law and Environmental Laws, for purposes the Parties hereby waive any provision of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred Law 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) Environmental Laws to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of it would limit or restrict 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 agreements set forth 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 jurisdictionARTICLE 10.
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 4.3Section 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 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 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 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.
Appears in 1 contract