Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear. (b) Subject to the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser shall nevertheless be required to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either (i) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing. (c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 4 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement (QR Energy, LP)
Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) 1% of the unadjusted Purchase Price, Purchaser Seller shall have the option to exclude such affected Assets from the transactions contemplated by this Agreement and reduce the Purchase Price by the aggregate Allocated Value of such excluded Assets. If Seller opts to exclude any such affected Assets (collectively, the “Retained Assets”), Seller shall assign such Retained Assets to Seller before Closing. If Seller opts not to exclude such affected Assets, Buyer shall nevertheless be required to close, and Sellers Seller shall elect, by written notice to Purchaser Buyer prior to Closing, in the case of fire or other casualty, either (iA) to cause the such affected Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (iiB) to indemnify Purchaser Buyer in a manner reasonably acceptable to Purchaser Buyer against any costs, losses, or expenses Losses that Purchaser Buyer reasonably incurs to repair such affected Assets. In the case of condemnation or eminent domain, the Parties shall work together in good faith to reduce the Purchase Price by an amount equal to the Allocated Value (or applicable portion thereof) of the Assets subject to any Casualty Loss(or portion thereof) taken in condemnation or under right of eminent domain. In each case, Sellers Seller shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(cb) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) 1% or less of the unadjusted Purchase Price, Purchaser Buyer shall nevertheless be required to close and Sellers Seller shall, at Closing, pay to Purchaser Buyer all sums (if any) paid to Sellers Seller by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the such Casualty Loss.
Appears in 4 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement (Mid-Con Energy Partners, LP)
Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser Buyer shall nevertheless be required to closeclose (subject to the other provisions of this Agreement), and Sellers the Seller Parties shall elect, by written notice to Purchaser Buyer delivered at least five Business Days prior to Closing, either (i) to cause the Assets affected by any Casualty Loss (other than condemnation or eminent domain) to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellersthe Seller Parties’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to fully indemnify Purchaser in a manner reasonably acceptable to Purchaser Buyer against any costs, losses, costs or expenses that Purchaser Buyer reasonably incurs to repair or restore the Assets subject to any such Casualty Loss, or (iii) to remove and exclude such Asset or portion thereof from the “Assets” to be transferred and conveyed to Buyer at Closing and, accordingly, to reduce the Purchase Price to be paid at Closing by the Allocated Value of such Asset (or, if a portion of such Asset, such portion of such Allocated Value as shall be determined in a reasonable manner taking into account the net acreage (or net acre feet, as appropriate) that the portion of such Asset affected by such Casualty Loss bears to the net acreage (or net acre feet, as appropriate) in the entire Asset). In each case, Sellers Xxxxxxxx LLC shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Goodrich Petroleum Corp), Purchase and Sale Agreement (Memorial Production Partners LP)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time if Closing occurs, and with respect to the certificate to be delivered by each Seller pursuant to Section 12.4(e)Conveyed Interest, Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to production of Hydrocarbons through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and the depreciation of personal property due to ordinary wear and tear, in each case, and Buyer shall not assert such matters as any casualty losses or Title Defects hereunder.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser shall nevertheless be required to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either (i) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Lossis damaged or destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain, and the loss then Buyer shall not as a result be excused from Closing and Seller shall elect by written notice to Buyer prior to Closing either (i) to cause the Assets affected by such casualty or taking to be repaired or restored to at least its condition prior to such casualty or taking, at Seller’s sole cost, as promptly as reasonably practicable (which work may extend after the Closing Date) or (ii) to indemnify Buyer through a document to be delivered at Closing reasonably acceptable to Seller and Buyer against any costs or expenses that Buyer reasonably incurs to repair or restore any Assets affected by such casualty or taking. In each case, Seller shall retain all rights to insurance, condemnation awards and other claims against Third Parties with respect to the casualty or taking except to the extent the Parties otherwise agree in writing.
(c) If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the date of this Agreement, but no taking of such Casualty Loss individually Asset or in portion thereof occurs prior to the aggregate is two percent (2%) or less of the Purchase PriceClosing Date, Purchaser Buyer shall nevertheless be required to close and Sellers shallSeller, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claimssuch condemnation or eminent domain action, unpaid awardsincluding any future awards therein, to the extent (and other only to the extent) attributable to the Conveyed Interests threatened to be taken, except that Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, titles, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in defending or asserting rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of in such action with respect to the Casualty LossConveyed Interests.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement (Exco Resources Inc)
Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement Execution Date but prior to the Closing Date, any material portion of the Assets is damaged or destroyed or otherwise impaired by fire fire, explosion, tornado, hurricane, earthquake, earth movement, flood, water damage or other casualty or is taken in condemnation or under right of eminent domain (in each case, a “Casualty or Condemnation Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Pricethen, Purchaser subject to Section 7.09(b), Buyer shall nevertheless be required to closeclose the transactions contemplated by the Agreement without any change to the Purchase Price, and Sellers shall elect, (w) pay to Buyer all sums paid to Sellers by written notice Third Parties by reason of such Casualty or Condemnation Loss with respect to Purchaser the Assets (net of amounts spent or incurred by Sellers prior to Closing, either (i) Closing with respect to cause the Assets affected by replacement or repair of any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty or Condemnation Loss), at (x) assign, transfer and set over to Buyer or subrogate Buyer to all of Sellers’ sole costand their Affiliates’ right, risk title and expenseinterest (if any) in insurance claims and proceeds, as promptly as reasonably practicable unpaid awards and other rights against Third Parties (which work may extend excluding any Liabilities, other than insurance claims and proceeds, of or against any Seller Indemnified Parties) arising out of such Casualty or Condemnation Loss with respect to the Assets, (y) bear the costs of any deductibles or retentions with respect to any such insurance claims arising from any such Casualty or Condemnation Loss and (z) otherwise provide reasonable cooperation to Buyer (whether before or after the Closing Date)) in the pursuit of such insurance claims and proceeds, unpaid awards and other rights against Third Parties; provided, however, that Sellers shall reserve and retain (and Buyer shall assign to Sellers) all rights, title, interests and claims against Third Parties for the recovery of Sellers’ costs and expenses incurred prior to the Closing in pursuing or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser asserting any such insurance claims or other rights against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject Third Parties with respect to any such Casualty or Condemnation Loss. In each caseExcept as expressly set forth hereinabove, Sellers shall retain all rights to insurance insurance, condemnation awards and other claims against third Persons Third Parties with respect to the Casualty Loss, casualty or taking except to the extent the Parties otherwise agree in writing.
(cb) If, after the date of this Agreement Execution Date but prior to the Closing Date, any portion of the Assets experiences there is a Casualty Lossor Condemnation Loss that, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent aggregate, has had, or would reasonably be expected to have, in each case after giving effect to Buyer’s rights pursuant to Section 7.09(a)(x) and Section 7.09(a)(y), a Seller Material Adverse Effect, then Buyer may terminate this Agreement pursuant to Section 9.01(d)(iv) (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty or Condemnation Loss and shall assign, transfer and set over be deemed for purposes of Section 9.01(d)(iv) to Purchaser or subrogate Purchaser to all be an unwaived condition in Section 8.02 that is incapable of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of being satisfied by the Casualty LossEnd Date).
Appears in 3 contracts
Samples: Asset Purchase Agreement (Basic Energy Services, Inc.), Asset Purchase Agreement (Ranger Energy Services, Inc.), Asset Purchase Agreement (Basic Energy Services, Inc.)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time, and the certificate to be delivered by each Seller pursuant to Section 12.4(e)if Closing occurs, Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to (i) production of Hydrocarbons from the Assets through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and (ii) the depreciation of personal property due to ordinary wear and teartear and, in each case, Buyer shall not assert such matters as Casualty Losses or Title Defects hereunder.
(b) Subject to the provisions of Sections 10.5 If, from and 10.6, if, after the date of this Agreement Effective Time but prior to the Closing Date, any portion of the Assets is damaged or destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (a “Casualty Loss”), and the resulting loss as a result of from such Casualty Loss individually or in exceeds $50,000 based on the aggregate exceeds two percent (2%) Allocated Value of the Purchase Priceaffected Assets, Purchaser then (i) Buyer shall nevertheless be required to close, close the transactions contemplated by this Agreement and Sellers (ii) SM Energy shall elect, elect by written notice to Purchaser Buyer prior to Closing, Closing to either (iA) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Losscause, at Sellers’ SM Energy’s sole cost, risk cost and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), each Asset affected by such Casualty Loss to be repaired or restored to at least its condition prior to such casualty or taking, or (iiB) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs reduce the Purchase Price by the cost to repair the Assets subject or restore each Asset affected by such Casualty Loss to any Casualty Lossat least its condition prior to such casualty or taking. In each case, Sellers SM Energy shall retain all rights to insurance insurance, condemnation awards and other claims against third Persons parties with respect to the Casualty Loss, casualty or taking except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (SM Energy Co), Purchase and Sale Agreement (SM Energy Co)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time if Closing occurs, with respect to the Subject Interests, Midstream LLC, Newcos and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser Operator shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to production of Hydrocarbons through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and the depreciation of personal property due to ordinary wear and tear, in each case, and BG shall not assert such matters as any casualty losses or Title Defects hereunder.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser shall nevertheless be required to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either (i) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Lossis damaged or destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain, and the loss then BG shall not as a result be excused from Closing and EXCO shall elect by written notice to BG prior to Closing either (i) to cause the Assets affected by such casualty or taking to be repaired or restored to at least its condition prior to such casualty or taking, at EXCO’s sole cost, as promptly as reasonably practicable (which work may extend after the Closing Date) or (ii) to indemnify the Newcos, Operator and Midstream LLC, as applicable, through a document to be delivered at Closing reasonably acceptable to EXCO and BG against any costs or expenses that any of the Newcos, Operator or Midstream LLC reasonably incurs to repair or restore any Assets affected by such casualty or taking. In each case, EXCO and its Affiliates shall retain all rights to insurance, condemnation awards and other claims against Third Parties with respect to the casualty or taking except to the extent the Parties otherwise agree in writing.
(c) If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the date of this Agreement, but no taking of such Casualty Loss individually Asset or in portion thereof occurs prior to the aggregate is two percent (2%) or less of the Purchase PriceClosing Date, Purchaser BG shall nevertheless be required to close and Sellers shallEXCO, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser the Newcos, Operator and Midstream LLC or subrogate Purchaser such Persons to all of SellersEXCO’s and its Affiliates’ right, title and interest (if any) in insurance claimssuch condemnation or eminent domain action, unpaid awardsincluding any future awards therein, to the extent (and other rights against third Persons (other than Affiliates of any Selleronly to the extent) attributable to the Subject Interests threatened to be taken, other than captive insurance Affiliates, except that EXCO and its Affiliates shall reserve and their directorsretain (and the Newcos, officersOperator and Midstream LLC shall assign to EXCO) all rights, employees titles, interests and agents) arising out claims against Third Parties for the recovery of EXCO’s and its Affiliates’ costs and expenses incurred prior to the Casualty LossClosing in defending or asserting rights in such action with respect to the Subject Interests.
Appears in 3 contracts
Samples: Membership Interest Transfer Agreement, Membership Interest Transfer Agreement, Membership Interest Transfer Agreement (Exco Resources Inc)
Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) 1.5% of the unadjusted Purchase Price, Purchaser Seller shall have the option to exclude any affected Assets from the transactions contemplated by this Agreement and reduce the Purchase Price by the aggregate Allocated Values of such excluded Assets. If Seller opts to exclude any such Asset (collectively, the “Retained Assets”), Seller shall cause the Company to assign such Retained Assets to Seller before Closing. If Seller elects not to elect the option to exclude such affected Assets, Buyer shall, at Seller’s election, nevertheless be required to closeconsummate the transactions contemplated hereby, and Sellers Seller shall elect, by written notice to Purchaser Buyer delivered at least five Business Days prior to Closing, in the case of fire or other casualty, either (i) to cause the Assets affected by any such Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after must be completed by the Closing Date), or (ii) to indemnify Purchaser Buyer and the Company in a manner reasonably acceptable to Purchaser Buyer against any costs, losses, Losses that Buyer or expenses that Purchaser the Company reasonably incurs incur to repair the Assets subject to any such Casualty Loss. In the case of condemnation or eminent domain, the Parties shall work together in good faith to reduce the Purchase Price by an amount equal to the Allocated Value (or applicable portion thereof) of the Assets (or portion thereof) taken in condemnation or under right of eminent domain. In each case, Sellers the Company shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(cb) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) 1.5% or less of the unadjusted Purchase Price, Purchaser Buyer shall nevertheless be required to close and Sellers Seller shall, at Closing, pay to Purchaser Buyer all sums (if any) paid to Sellers Seller by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Memorial Production Partners LP), Purchase and Sale Agreement (Memorial Production Partners LP)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time, and the certificate to be delivered by each Seller pursuant to Section 12.4(e)if Closing occurs, Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to (i) production of Hydrocarbons from the Assets through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and (ii) the depreciation of personal property due to ordinary wear and teartear and, in each case, Buyer shall not assert such matters as Casualty Losses or Title Defects hereunder.
(b) Subject to the provisions of Sections 10.5 If, from and 10.6, if, after the date of this Agreement Effective Time but prior to the Closing Date, any portion of the Assets is damaged or destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (a “Casualty Loss”), and the resulting loss as a result of from such Casualty Loss individually or in exceeds $100,000 based on the aggregate exceeds two percent (2%) Allocated Value of the Purchase Priceaffected Assets, Purchaser then (i) Buyer shall nevertheless be required to close, close the transactions contemplated by this Agreement and Sellers (ii) SM Energy shall elect, elect by written notice to Purchaser Buyer prior to Closing, Closing to either (iA) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Losscause, at Sellers’ SM Energy’s sole cost, risk cost and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), each Asset affected by such Casualty Loss to be repaired or restored to at least its condition prior to such casualty or taking, or (iiB) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs reduce the Purchase Price by the cost to repair the Assets subject or restore each Asset affected by such Casualty Loss to any Casualty Lossat least its condition prior to such casualty or taking. In each case, Sellers SM Energy shall retain all rights to insurance insurance, condemnation awards and other claims against third Persons parties with respect to the Casualty Loss, casualty or taking except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (SM Energy Co), Purchase and Sale Agreement (Oasis Petroleum Inc.), Purchase and Sale Agreement (AMERICAN EAGLE ENERGY Corp)
Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) 1% of the unadjusted Purchase Price, Purchaser Sellers shall have the option to exclude the affected Asset from the transaction contemplated by this Agreement and reduce the Purchase Price by the aggregate Allocated Value of such excluded Assets. If Sellers opt to exclude any such Asset (collectively, the “Retained Assets”), Sellers shall cause the applicable Company Entity to assign such Retained Assets to the applicable Seller before Closing. If Sellers elect not to elect the option to exclude the affected Asset, Buyer shall, at Sellers’ election, nevertheless be required to close, and Sellers shall elect, by written notice to Purchaser Buyer prior to Closing, either (i) either (A) in the case of fire or other casualty, to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (iiB) to indemnify Purchaser Buyer and the Company in a manner reasonably acceptable to Purchaser Buyer against any costs, losses, Losses that Buyer or expenses that Purchaser the Company reasonably incurs to repair the Assets subject to any Casualty Loss. In the case of condemnation or eminent domain, the Parties shall work together in good faith to reduce the Purchase Price by an amount equal to the Allocated Value (or applicable portion thereof) of the Assets (or portion thereof) taken in condemnation or under right of eminent domain. In each case, Sellers the Company shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(cb) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) 1% or less of the unadjusted Purchase Price, Purchaser Buyer shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser Buyer all sums (if any) paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement (Memorial Production Partners LP)
Casualty or Condemnation Loss. (aA) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but If prior to the Closing Date, Date any portion of the Assets or the “Assets” under the Pipeline ASPA is damaged or destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain Casualty Loss (“Consolidated Casualty Loss”), the transactions contemplated by this Agreement and the loss as a result of such Casualty Loss individually or in Pipeline ASPA shall nevertheless close. In the event that the aggregate exceeds two percent amount the Consolidated Casualty Losses is reasonably determined by Seller to be less than Four Million U.S. Dollars (2%) US$4,000,000), the transactions contemplated by this Agreement and the Pipeline ASPA shall nevertheless close and Seller shall have no obligation regarding the casualty. In the event that the aggregate amount of losses resulting from the Consolidated Casualty Losses is reasonably determined by Seller to be equal to or greater than Four Million U.S. Dollars (US$4,000,000), Seller, at Seller's sole discretion, shall select one of the Purchase Price, Purchaser following options which shall nevertheless be required apply to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either the Consolidated Casualty Losses:
(i1) to Seller may cause the Assets affected by any such Casualty Loss Losses to be repaired or restored to at least their condition prior to such Casualty LossLosses, at Sellers’ Seller's sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c2) IfSeller may determine to reduce the Purchase Price or the “Purchase Price” under the Pipeline ASPA, as applicable, by the amount of the applicable Casualty Loss as reasonably determined by Seller, provided, however, in such event:
(a) The Parties shall select an independent, Third-Party appraiser to review and confirm the amount of the Casualty Loss to be applied to the reduction in Purchase Price, and provided.
(b) Such process shall not delay the Closing Date..
(B) If after the date of this Agreement Effective Date but prior to the Closing Date, any portion of the Assets experiences a Casualty Lossis taken in condemnation or under right of eminent domain by any Government Authority, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser transaction contemplated by this Agreement shall nevertheless be required to close and Sellers close. In such event, Seller shall, at Closing, pay to Purchaser Buyer all sums paid to Sellers Seller or its Affiliates by third Persons Third Parties by reason of such Casualty Loss taking and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller's or its Affiliates' right, title and interest (if any) in insurance claims, unpaid awards, awards and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) Third Parties arising out of the Casualty Losstaking.
(C) If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the Effective Date, but no taking of such Asset or portion thereof occurs prior to the Closing Date, the transaction contemplated by this Agreement shall nevertheless close and Seller, at Closing, shall assign, transfer and set over to Buyer or subrogate Buyer to all of Seller's or its Affiliates' right, title and interest (if any) in such taking, including any insurance claims, unpaid awards and other rights against Third Parties arising out of the taking, insofar as they are attributable to the Assets threatened to be taken.
Appears in 2 contracts
Samples: Asset Sale and Purchase Agreement, Asset Sale and Purchase Agreement (Tesoro Logistics Lp)
Casualty or Condemnation Loss. (a) Subject Seller shall promptly notify Buyer of any material casualty to the further terms Assets or any portion thereof that occurs, or any condemnation proceeding commenced, after the Execution Date and prior to the Closing Date. If prior to the Closing Date any portion of the Assets is destroyed by Casualty Loss, then, if the Closing occurs, Seller, at Seller’s sole discretion, shall select one of the following options which shall apply to the Casualty Losses: (i) Seller shall cause the Assets affected by such Casualty Losses to be repaired or restored to at least their condition prior to such Casualty Losses, at Seller’s sole cost, as promptly as reasonably practicable (which work may extend after the Closing Date) or (ii) Seller shall, at Closing, pay to Buyer all sums paid to Seller or its Affiliates by Third Parties by reason of such Casualty Losses and shall assign to Buyer all of Seller’s or its Affiliates’ right, title and interest (if any) in insurance claims, unpaid awards and other rights against Third Parties arising out of the casualty.
(b) If after the date of this AgreementAgreement but prior to the Closing Date, any portion of the Assets is taken in condemnation or under right of eminent domain by any Governmental Authority, the Assets or portion thereof shall be excluded from the Assets to be conveyed to Buyer at Closing to the extent of the interest affected by the condemnation or right of eminent domain and the Purchase Price will be reduced by the Allocated Value of such interest.
(c) If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the Execution Date, but no taking of such Asset or portion thereof occurs prior to the Closing Date, the transaction contemplated by this Agreement shall nevertheless close and Seller, at Closing, shall assign, transfer and set over to Buyer or subrogate Buyer to all of Seller’s or its Affiliates’ right, title and interest (if any) in such taking, including any insurance claims, unpaid awards and other rights against Third Parties arising out of the representations and warranties of Sellers made in Article 7taking, and insofar as they are attributable to the certificate Assets threatened to be delivered by each Seller pursuant taken.
(d) Notwithstanding anything herein to Section 12.4(e)the contrary, Purchaser from and after the Effective Time, if Closing occurs, Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to production of Hydrocarbons through normal depletion or otherwise (including, but not limited to, the including watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property Personal Property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser shall nevertheless be required to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either (i) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writingAssets.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Atlas Resource Partners, L.P.)
Casualty or Condemnation Loss. (ai) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, If after the date of this Agreement but prior to the Closing DateDate (or with respect to the Golden Lane Leases, prior to the Second Conveyance), any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price$139,200, Purchaser Grantee shall nevertheless be required to close, and Sellers Grantor shall elect, by written notice to Purchaser Grantee prior to Closing, either (i1) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ Grantor’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii2) to indemnify Purchaser Grantee in a manner reasonably acceptable to Purchaser Grantee against any costs, losses, or expenses that Purchaser Grantee reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers Grantor shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(cii) If, If after the date of this Agreement but prior to the Closing DateDate (or with respect to the Golden Lane Leases, prior to the Second Conveyance), any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) $139,200 or less of the Purchase Priceless, Purchaser Grantee shall nevertheless be required to close and Sellers Grantor shall, at Closing, pay to Purchaser Grantee all sums paid to Sellers Grantor by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Grantee or subrogate Purchaser Grantee to all of Sellers’ Grantor’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any SellerGrantor, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 2 contracts
Samples: Contribution Agreement, Contribution Agreement (New Source Energy Partners L.P.)
Casualty or Condemnation Loss. (aA) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but If prior to the Closing Date, Date any portion of the Assets or the “Assets” under the Terminal Interests ASPA is damaged or destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain Casualty Loss (“Consolidated Casualty Loss”), the transactions contemplated by this Agreement and the loss as a result of such Casualty Loss individually or in Terminal Interests ASPA shall nevertheless close. In the event that the aggregate exceeds two percent amount the Consolidated Casualty Losses is reasonably determined by Seller to be less than Four Million U.S. Dollars (2%) US$4,000,000), the transactions contemplated by this Agreement and the Terminal Interests ASPA shall nevertheless close and Seller shall have no obligation regarding the casualty. In the event that the aggregate amount of losses resulting from the Consolidated Casualty Losses is reasonably determined by Seller to be equal to or greater than Four Million U.S. Dollars (US$4,000,000), Seller, at Seller's sole discretion, shall select one of the Purchase Price, Purchaser following options which shall nevertheless be required apply to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either the Consolidated Casualty Losses:
(i1) to Seller may cause the Assets affected by any such Casualty Loss Losses to be repaired or restored to at least their condition prior to such Casualty LossLosses, at Sellers’ Seller's sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c2) IfSeller may determine to reduce the Purchase Price or the “Purchase Price” under the Terminal Interests ASPA, as applicable, by the amount of the applicable Casualty Loss as reasonably determined by Seller, provided, however, in such event:
(a) The Parties shall select an independent, Third-Party appraiser to review and confirm the amount of the Casualty Loss to be applied to the reduction in Purchase Price, and provided.
(b) Such process shall not delay the Closing Date..
(B) If after the date of this Agreement Effective Date but prior to the Closing Date, any portion of the Assets experiences a Casualty Lossis taken in condemnation or under right of eminent domain by any Government Authority, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser transaction contemplated by this Agreement shall nevertheless be required to close and Sellers close. In such event, Seller shall, at Closing, pay to Purchaser Buyer all sums paid to Sellers Seller or its Affiliates by third Persons Third Parties by reason of such Casualty Loss taking and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller's or its Affiliates' right, title and interest (if any) in insurance claims, unpaid awards, awards and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) Third Parties arising out of the Casualty Losstaking.
(C) If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the Effective Date, but no taking of such Asset or portion thereof occurs prior to the Closing Date, the transaction contemplated by this Agreement shall nevertheless close and Seller, at Closing, shall assign, transfer and set over to Buyer or subrogate Buyer to all of Seller's or its Affiliates' right, title and interest (if any) in such taking, including any insurance claims, unpaid awards and other rights against Third Parties arising out of the taking, insofar as they are attributable to the Assets threatened to be taken.
Appears in 2 contracts
Samples: Asset Sale and Purchase Agreement, Asset Sale and Purchase Agreement (Tesoro Logistics Lp)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time, and the certificate to be delivered by each Seller pursuant to Section 12.4(e)if Closing occurs, Purchaser Buyers shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to (i) production of Hydrocarbons from the Assets through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and (ii) the depreciation of personal property due to ordinary wear and teartear and, in each case, Buyers shall not assert such matters as Casualty Losses or Title Defects hereunder.
(b) Subject to the provisions of Sections 10.5 If, from and 10.6, if, after the date of this Agreement Effective Time but prior to the Closing Date, any portion of the Assets is damaged or destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (a “Casualty Loss”), and the resulting loss as a result of from such Casualty Loss individually or in exceeds $50,000 based on the aggregate exceeds two percent (2%) Allocated Value of the Purchase Priceaffected Assets, Purchaser then (i) Buyers shall nevertheless be required to close, close the transactions contemplated by this Agreement and Sellers (ii) SM shall elect, elect by written notice to Purchaser Buyers prior to Closing, Closing to either (iA) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Losscause, at Sellers’ SM’s sole cost, risk cost and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), each Asset affected by such Casualty Loss to be repaired or restored to at least its condition prior to such casualty or taking, or (iiB) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs reduce the Purchase Price by the cost to repair the Assets subject or restore each Asset affected by such Casualty Loss to any Casualty Lossat least its condition prior to such casualty or taking. In each case, Sellers SM shall retain all rights to insurance insurance, condemnation awards and other claims against third Persons Third Parties with respect to the Casualty Loss, casualty or taking except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (SM Energy Co)
Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) 1.5% of the unadjusted Purchase Price, Purchaser Seller shall have the option to exclude any affected Assets from the transactions contemplated by this Agreement and reduce the Purchase Price by the aggregate Allocated Values of such excluded Assets. If Seller opts to exclude any such Asset (collectively, the “Retained Assets”), Seller shall cause the Company to assign such Retained Assets to Seller before Closing. If Seller elects not to elect the option to exclude such affected Assets, Buyer shall, at Seller’s election, nevertheless be required to closeconsummate the transactions contemplated hereby, and Sellers Seller shall elect, by written notice to Purchaser Xxxxx delivered at least five Business Days prior to Closing, in the case of fire or other casualty, either (i) to cause the Assets affected by any such Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after must be completed by the Closing Date), or (ii) to indemnify Purchaser Buyer and the Company in a manner reasonably acceptable to Purchaser Buyer against any costs, losses, Losses that Buyer or expenses that Purchaser the Company reasonably incurs incur to repair the Assets subject to any such Casualty Loss. In the case of condemnation or eminent domain, the Parties shall work together in good faith to reduce the Purchase Price by an amount equal to the Allocated Value (or applicable portion thereof) of the Assets (or portion thereof) taken in condemnation or under right of eminent domain. In each case, Sellers the Company shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(cb) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) 1.5% or less of the unadjusted Purchase Price, Purchaser Buyer shall nevertheless be required to close and Sellers Seller shall, at Closing, pay to Purchaser Buyer all sums (if any) paid to Sellers Seller by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time, and the certificate to be delivered by each Seller pursuant to Section 12.4(e)if Closing occurs, Purchaser Mitsui shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to (i) production of Hydrocarbons from the Conveyed Interests through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and (ii) the depreciation of personal property due to ordinary wear and teartear and, in each case, Mitsui shall not assert such matters as Casualty Losses or Title Defects hereunder.
(b) Subject to the provisions of Sections 10.5 If, from and 10.6, if, after the date of this Agreement Effective Time but prior to the Closing Date, any portion of the Assets Conveyed Interests is damaged or destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain domain, and the resulting loss from such casualty exceeds $50,000 (each, a “Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent then (2%i) of the Purchase Price, Purchaser Mitsui shall nevertheless be required to close, close the transactions contemplated by this Agreement and Sellers (ii) SM shall elect, elect by written notice to Purchaser Mitsui prior to Closing, Closing to either (iA) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Losscause, at Sellers’ SM’s sole cost, risk cost and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), each Conveyed Interest affected by such Casualty Loss to be repaired or restored to at least its condition prior to such casualty or taking, or (iiB) indemnify Mitsui through a document to indemnify Purchaser be delivered at Closing substantially in a manner reasonably acceptable the form of Exhibit K to Purchaser the Agreement against (1) any costs, losses, costs or expenses that Purchaser Mitsui reasonably incurs to repair or restore any of the Assets subject Conveyed Interests affected by such Casualty Loss to any at least its condition prior to such casualty or (2) the value of the Casualty LossLoss with respect to those Conveyed Interests taken in condemnation or under right of eminent domain, as applicable. In each case, Sellers SM shall retain all rights to insurance insurance, condemnation awards and other claims against third Persons parties with respect to the Casualty Loss, casualty or taking except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 2 contracts
Samples: Acquisition and Development Agreement, Acquisition and Development Agreement (SM Energy Co)
Casualty or Condemnation Loss. (ai) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, If after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase PriceAsset Value, Purchaser Grantee shall nevertheless be required to close, and Sellers Grantor shall elect, by written notice to Purchaser Grantee prior to Closing, either (i1) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ Grantor’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii2) to indemnify Purchaser Grantee in a manner reasonably acceptable to Purchaser Grantee against any costs, losses, or expenses that Purchaser Grantee reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers Grantor shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(cii) If, If after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase PriceAsset Value or less, Purchaser Grantee shall nevertheless be required to close and Sellers Grantor shall, at Closing, pay to Purchaser Grantee all sums paid to Sellers Grantor by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Grantee or subrogate Purchaser Grantee to all of Sellers’ Grantor’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any SellerGrantor, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 2 contracts
Samples: Contribution Agreement (New Source Energy Partners L.P.), Contribution Agreement (New Source Energy Partners L.P.)
Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) 1.5% of the unadjusted Purchase Price, Purchaser Seller shall have the option to exclude any affected Assets from the transactions contemplated by this Agreement and reduce the Purchase Price by the aggregate Allocated Values of such excluded Assets. If Seller opts to exclude any such Asset (collectively, the “Retained Assets”), Seller shall retain such Retained Assets or cause the applicable Company Entity to assign such Retained Assets to Seller before Closing. If Seller elects not to elect the option to exclude such affected Assets, Buyer shall, at Seller’s election, nevertheless be required to closeconsummate the transactions contemplated hereby, and Sellers Seller shall elect, by written notice to Purchaser Buyer delivered at least five Business Days prior to Closing, in the case of fire or other casualty, either (i) to cause the Assets affected by any such Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after must be completed by the Closing Date), or (ii) to indemnify Purchaser Buyer and the Company Entities in a manner reasonably acceptable to Purchaser Buyer against any costs, losses, Losses that Buyer or expenses that Purchaser the Company Entities reasonably incurs incur to repair the Assets subject to any such Casualty Loss. In the case of condemnation or eminent domain, the Parties shall work together in good faith to reduce the Purchase Price by an amount equal to the Allocated Value (or applicable portion thereof) of the Assets (or portion thereof) taken in condemnation or under right of eminent domain. In each case, Sellers the Company Entities shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(cb) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) 1.5% or less of the unadjusted Purchase Price, Purchaser Buyer shall nevertheless be required to close and Sellers Seller shall, at Closing, pay to Purchaser Buyer all sums (if any) paid to Sellers Seller by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Memorial Production Partners LP)
Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) 1% of the unadjusted Purchase Price, Purchaser Seller shall have the option to exclude such affected Assets from the transactions contemplated by this Agreement and reduce the Purchase Price by the aggregate Allocated Value of such excluded Assets. If Seller opts to exclude any such affected Assets (collectively, the “Retained Assets”), Seller shall cause the applicable Company Entity to assign such Retained Assets to Seller before Closing. If Seller opts not to exclude such affected Assets, Buyer shall nevertheless be required to close, and Sellers Seller shall elect, by written notice to Purchaser Buyer prior to Closing, in the case of fire or other casualty, either (iA) to cause the such affected Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (iiB) to indemnify Purchaser Buyer and the Company Entities in a manner reasonably acceptable to Purchaser Buyer against any costs, losses, Losses that Buyer or expenses that Purchaser any Company Entity reasonably incurs to repair such affected Assets. In the case of condemnation or eminent domain, the Parties shall work together in good faith to reduce the Purchase Price by an amount equal to the Allocated Value (or applicable portion thereof) of the Assets subject to any Casualty Loss(or portion thereof) taken in condemnation or under right of eminent domain. In each case, Sellers the applicable Company Entity shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(cb) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) 1% or less of the unadjusted Purchase Price, Purchaser Buyer shall nevertheless be required to close and Sellers Seller shall, at Closing, pay to Purchaser Buyer all sums (if any) paid to Sellers Seller by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the such Casualty Loss.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Memorial Production Partners LP)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including except as set forth below, from and after the representations and warranties of Sellers made in Article 7Execution Date, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser Buyer shall assume all risk of loss with respect to, and to any change decrease in the condition ofamount of hydrocarbon throughput utilizing the Gathering System, the Assets from the Effective Time until Closing for production of Hydrocarbons any reason, including through normal depletion of those xxxxx connected to the Gathering System, other mechanical failure (including, but not limited to, the including watering out of any Wellout, collapsed casing or sand infiltration of any Wellwell connected to the Gathering System) and the depreciation of pipelines and other personal property included in the Assets due to ordinary wear and tear.
(b) If, after the Execution Date but prior to the Closing Date, any portion of the Assets is damaged or destroyed by fire or other casualty (a “Casualty”) or is taken in condemnation or under right of eminent domain (a “Condemnation Proceeding”) and the Damages resulting from such Casualty or Condemnation Proceeding (which shall include the estimated amount of reduction in the fair market value of such Assets or, in the event of a Casualty, the estimated cost of repairing the Assets damaged or destroyed by such Casualty or replacing such Assets with assets of similar utility and which shall take into account any lost profits as a result of the inoperability of the Gathering System or portion thereof affected by such Casualty or Condemnation Proceeding) (the “Restoration Costs”) is less than 1% of the Closing Payment, then Buyer shall nevertheless be required to close and Seller, at Closing, shall pay to Buyer (or its designee) all sums paid to Seller by Third Parties by reason of such Casualty or Condemnation Proceeding with respect to the affected Assets and shall assign, transfer and set over to Buyer or Buyer’s designee all of Seller’s right, title and interest (if any) in insurance claims, unpaid awards and other rights against Third Parties (excluding any liabilities or claims, other than insurance claims, of or against the Seller Indemnified Parties) arising out of such Casualty or Condemnation Proceeding with respect to the affected Assets; provided, however, that Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, title, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in pursuing or asserting any such insurance claims or other rights against Third Parties or in defending or asserting rights in connection with such Casualty or Condemnation Proceeding.
(c) Subject to the provisions rights of Sections 10.5 and 10.6the Parties under Section 9.1(f), if, after the date of this Agreement Execution Date but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty a Casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), by a Condemnation Proceeding and the loss as a result of Restoration Costs resulting from such Casualty Loss individually or Condemnation Proceeding is equal to or in the aggregate exceeds two percent (2%) excess of 1% of the Purchase PriceClosing Payment, Purchaser shall nevertheless be required to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either (i) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser then Buyer shall nevertheless be required to close and Sellers shall, Seller shall have the right to elect to (i) reduce the Closing Payment by the Restoration Costs relating to such Casualty or Condemnation Proceeding or (ii) repair and restore the affected Asset at Seller’s sole cost and expense (which repair and restoration may extend post-Closing, pay ) and (in either case) Seller shall be entitled to Purchaser all sums paid to Sellers Seller by third Persons Third Parties by reason of such Casualty Loss or Condemnation Proceeding with respect to the affected Assets and all rights, title, interests and claims against Third Parties arising out of or relating to such Casualty or Condemnation Proceeding.
(d) If any action for a Condemnation Proceeding is pending or threatened with respect to any Asset or portion thereof after the Execution Date, which would result in Restoration Costs of less than 15% of the Closing Payment if such Condemnation Proceeding was successful, but no taking of such Asset or portion thereof occurs prior to the Closing Date, Buyer shall nevertheless be required to close and Seller, at Closing, shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser to Buyer’s designee all of Sellers’ Seller’s right, title and interest (if any) in insurance claimssuch Condemnation Proceeding, unpaid awardsincluding any future awards therein, insofar as they are attributable to the Assets threatened to be taken, except that Seller shall reserve and other retain (and Buyer shall assign to Seller) all rights, titles, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in defending or asserting rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of in such Condemnation Proceeding with respect to the Casualty LossAssets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Crestwood Midstream Partners LP)
Casualty or Condemnation Loss. (a) Subject If, prior to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but in all cases prior to the Closing Date, any portion of the Assets is or has been damaged or destroyed by fire or other casualty (a “Casualty”) or is or has been taken in condemnation or under right of eminent domain (a “Condemnation Proceeding”) and the amount of accrued but unpaid liability resulting from such Casualty or Condemnation Proceeding (which shall include the estimated amount of reduction in the fair market value of such Assets or, in the event of a Casualty, the estimated cost of repairing the Assets damaged or destroyed by such Casualty or replacing such Assets with assets of similar utility) (the “Restoration Costs”) is less than [***]% of the Purchase Price, in the aggregate, then Buyer shall nevertheless be required to close and Seller, at the Closing, shall pay to Buyer (or its designee) all sums paid to Seller by third Persons by reason of such Casualty or Condemnation Proceeding with respect to the affected Assets and shall assign, transfer and set over to Buyer or Buyer’s designee all of Seller’s and its Affiliate’s right, title and interest (if any) in insurance claims, unpaid awards and other rights against third parties arising out of such Casualty or Condemnation Proceeding with respect to the affected Assets; provided, however, that Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, title, interests and claims against third Persons for the recovery of Seller’s and its Affiliate’s unpaid awards and other rights and costs and expenses incurred prior to the Closing in pursuing or asserting any such insurance claims or other rights against third parties or in defending or asserting rights in connection with such Casualty or Condemnation Proceeding.
(b) If, prior to or after the date of this Agreement but in all cases prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty a Casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), by a Condemnation Proceeding and the loss as a result of Restoration Costs resulting from such Casualty Loss individually or Condemnation Proceeding is equal to or in the aggregate exceeds two percent (2%) excess of [***]% of the Purchase Price, Purchaser in the aggregate, then Buyer shall nevertheless be required to close, close and Sellers Seller shall elect, by written notice have the right to Purchaser prior elect to Closing, either (i) to cause reduce the Assets affected Purchase Price by any Casualty Loss to be repaired or restored to at least their condition prior the Restoration Costs relating to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or Condemnation Proceeding or (ii) have Seller repair and restore the affected Asset at Seller’s sole cost and expense (which repair and restoration may extend post-Closing) and (in either case) Seller shall be entitled to indemnify Purchaser all sums paid to Seller by third Persons by reason of such Casualty or Condemnation Proceeding with respect to the __________ ***Certain information in a manner reasonably acceptable this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to Purchaser against any coststhe omitted portions. affected Transferred Assets and all rights, lossestitle, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance interests and other claims against third Persons with respect arising out of or relating to the such Casualty Loss, except to the extent the Parties otherwise agree in writingor Condemnation Proceeding.
(c) If, prior to or after the date of this Agreement but in all cases prior to the Closing Date, any portion of the Assets experiences is or has been destroyed by a Casualty Loss, or is or has been taken by a Condemnation Proceeding and the loss as a result of Restoration Costs resulting from such Casualty Loss individually or Condemnation Proceeding is equal to or in the aggregate is two percent (2%) or less excess of [***]% of the Purchase Price, Purchaser shall nevertheless be required in the aggregate, then Buyer may terminate this Agreement upon written notice to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Summit Midstream Partners, LP)
Casualty or Condemnation Loss. (a) Subject to If, after the further terms execution of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (a “Casualty Loss”), Buyer shall, at its election, have the right to either (A) exclude the affected Asset from the Closing (in which case it shall be deemed to be an Excluded Asset under this Agreement, and the loss Purchase Price shall be reduced by the Allocated Value thereof), or (B) close on the purchase of such affected Asset in which case (subject to each Party’s rights set forth in Section 11.01(d) and Buyer, at its sole election, may elect to: (i) reduce the Purchase Price by an amount agreed upon in writing by the Parties as being a result reasonable estimate of such Casualty Loss individually or in Loss, which amount shall not exceed the aggregate exceeds two percent (2%) Allocated Value of the Purchase Priceapplicable Asset, Purchaser shall nevertheless be required to close, and (ii) agree with Sellers shall elect, by written notice to Purchaser prior to Closing, either (i) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Lossrestored, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing DateDate only with Buyer’s prior written consent), or (iiiii) have Sellers transfer to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costsBuyer such insurance proceeds, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) payments arising out of the such Casualty Loss; provided, however, that such amounts cover the cost of repair and restoration in full. If Buyer elects to proceed under Section 4.02(i) and the Parties fail to agree by the Closing Date on the reduction to the Purchase Price (which agreement the Parties shall use good faith efforts to reach), Buyer shall then proceed with respect to such Casualty Loss under either Section 4.02(ii) or Section 4.02(iii). If Buyer elects to proceed under Section 4.02(ii) and the Parties fail to agree by Closing on the terms of the agreement contemplated thereby (which agreement the Parties shall use good faith efforts to reach), Buyer shall then proceed with respect to such Casualty Loss under either Section 4.02(i) or Section 4.02(iii).
Appears in 1 contract
Casualty or Condemnation Loss. (ai) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Date if Closing occurs, and with respect to the certificate to be delivered by each Seller pursuant to Section 12.4(e)Assets, Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and to the depreciation of personal property any Asset due to ordinary wear and tear, and, in each case, Buyer shall not assert such matters as any Casualty or Condemnation Loss hereunder.
(bii) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement Execution Date but prior to the Closing Date, any portion of the Assets is damaged or destroyed or otherwise impaired by fire fire, explosion, tornado, hurricane, earthquake, earth movement, flood, water damage or other similar casualty or is taken in condemnation or under right of eminent domain (in each case, a “Casualty or Condemnation Loss”), and the loss as a result Seller shall notify Buyer promptly after Seller obtains knowledge of such Casualty Loss individually or in event and thereafter. In the aggregate exceeds two percent event that (2%a) the amount of the Purchase Pricecosts and expenses associated with repairing or restoring the Assets affected by such Casualty or Condemnation Loss exceeds One Hundred Thousand Dollars ($100,000.00), Purchaser shall nevertheless be required to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either Seller may elect to (i) to cause the Assets affected by any such Casualty or Condemnation Loss to be repaired or restored restored, if such repair or restoration is reasonably feasible, to at least their its condition prior to such Casualty or Condemnation Loss, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date)practicable, or (ii) decrease the Purchase Price by an amount equal to indemnify Purchaser in a manner reasonably acceptable the diminution of value to Purchaser against any costs, lossesthe Assets resulting from such Casualty or Condemnation Loss, or (iii) terminate this Agreement without any further liability on either Party or (b) the amount of the costs and expenses that Purchaser reasonably incurs to repair associated with repairing or restoring the Assets subject affected by such Casualty or Condemnation Loss is less than or equal to any One Hundred Thousand Dollars ($100,000.00), such Casualty Loss. In each case, Sellers or Condemnation Loss shall retain all rights to be promptly submitted as an insurance and other claims against third Persons claim with respect Buyer having the right to the insurance proceeds recovered for such Casualty or Condemnation Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date Buyer and Seller shall execute any further documentation that is reasonably necessary for prosecution of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Losssuch insurance claim, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and Seller shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer will be subrogated as to all any claims of Sellers’ rightSeller for the purposes of independently recovering any proceeds for such Casualty or Condemnation Loss. In addition, title and interest (if any) in Seller shall use its commercially reasonable efforts to pursue such insurance claims, unpaid awards, awards and other rights against any third Persons (other than Affiliates of any Seller, other than captive parties related to such insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Lossclaim.
Appears in 1 contract
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time, and subject to the certificate to be delivered by each Seller pursuant to Section 12.4(e)Closing, Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to production of Hydrocarbons through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and the depreciation of personal property Personal Property due to ordinary wear and tear, in each case, with respect to the Assets.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”)domain, and the aggregate amount of any such loss or taking exceeds 15% of the Purchase Price, either party shall have the right to terminate this Agreement and Buyer shall promptly receive back the Deposit. If the aggregate amount of any such loss or taking is 15% or less of the Purchase Price, Buyer shall be required to close. If the loss as a result of such Casualty Loss individually individual casualty or in taking exceeds $250,000 and the aggregate exceeds two percent (2%) of the Purchase Priceparties proceed to Closing, Purchaser Seller shall nevertheless be required to close, and Sellers shall elect, elect by written notice to Purchaser Buyer prior to Closing, Closing either (i) to cause the Assets affected by any Casualty Loss such casualty or taking to be repaired or restored to at least their its condition prior to such Casualty Losscasualty or taking, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in Buyer through a manner document reasonably acceptable to Purchaser Seller and Buyer against any costs, losses, costs or expenses that Purchaser Buyer reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights such casualty or taking or (iii) to insurance and other claims against third Persons treat such casualty or taking as a Title Defect with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
affected Asset or Assets under Section 11.2 or (civ) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shallSeller, at Closing, shall pay to Purchaser Buyer all sums paid or payable to Sellers Seller by third Persons Third Parties by reason of such Casualty Loss casualty or taking insofar as with respect to the Assets and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, awards and other rights against third Persons Third Parties (other than Affiliates of excluding any SellerLiabilities, other than captive insurance Affiliatesclaims, and its and their directors, officers, employees and agentsof or against any Seller Indemnified Parties) arising out of such casualty or taking insofar as with respect to the Casualty LossAssets; provided, however, that in the case of (iv), Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, title, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing Date in pursuing or asserting any such insurance claims or other rights against Third Parties or in defending or asserting rights in such condemnation or eminent domain action with respect to the Assets. In the case of (i) — (iii), Seller shall retain all rights to insurance, condemnation awards and other claims against third parties with respect to the casualty or taking except to the extent the parties otherwise agree in writing.
(c) If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the date of this Agreement, but no taking of such Asset or portion thereof occurs prior to the Closing Date, Buyer shall nevertheless be required to close and Seller, at Closing, shall assign, transfer and set over to Buyer or subrogate Buyer to all of Seller’s right, title and interest (if any) in such condemnation or eminent domain action, including any future awards therein, insofar as they are attributable to the Assets threatened to be taken, except that Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, titles, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in defending or asserting rights in such action with respect to the Assets.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Houston Exploration Co)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time if Closing occurs, and with respect to the certificate to be delivered by each Seller pursuant to Section 12.4(e)Subject Assets, Purchaser the Contributed Companies shall assume bear all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and to the depreciation of personal property due to ordinary wear and teartear and neither BG nor any Contributed Company shall assert such matters as any casualty losses or Title Defects hereunder.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser shall nevertheless be required to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either (i) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Subject Assets experiences a Casualty Lossis damaged or destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain, and the loss then BG shall not as a result be excused from Closing and EXCO shall elect by written notice to BG prior to Closing either (i) to cause the Subject Assets affected by such casualty or taking to be repaired or restored to at least its condition prior to such casualty or taking, at EXCO’s sole cost, as promptly as reasonably practicable (which work may extend after the Closing Date) or (ii) to indemnify BG and the Contributed Companies through a document to be delivered at Closing reasonably acceptable to EXCO and BG against any costs or expenses that BG and the Contributed Companies reasonably incur to repair or restore any Subject Assets affected by such casualty or taking. In each case, EXCO shall be entitled to all rights to insurance, condemnation awards and other claims against Third Parties with respect to the casualty or taking except to the extent the Parties otherwise agree in writing.
(c) If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Subject Asset or portion thereof after the date of this Agreement, but no taking of such Casualty Loss individually Subject Asset or in portion thereof occurs prior to the aggregate is two percent (2%) or less of the Purchase PriceClosing Date, Purchaser BG shall nevertheless be required to close and Sellers shallEXCO, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser the Midstream Companies or subrogate Purchaser the Midstream Companies to all of Sellers’ EXCO’s right, title and interest (if any) in insurance claimssuch condemnation or eminent domain action, unpaid awardsincluding any future awards therein, to the extent (and other only to the extent) attributable to the Subject Assets threatened to be taken, except that EXCO shall reserve and retain (and the Midstream Companies shall assign to EXCO) all rights, titles, interests and claims against Third Parties for the recovery of EXCO’s costs and expenses incurred prior to the Closing in defending or asserting rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of in such action with respect to the Casualty LossSubject Assets.
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Casualty or Condemnation Loss. (a) Subject to If all or any portion of the further terms of this AgreementTransferred Assets shall, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but prior to the Closing Date, be materially (i.e., more than $75,000,000) damaged or destroyed as a result of a Casualty Event, then Purchaser may elect, in its sole discretion, to terminate this Agreement by written notice to Seller. Such election to terminate must be made within thirty (30) days of the date of the Casualty Event. If Purchaser does not exercise its right to terminate within said thirty (30) day time period, then this Agreement shall remain in force and effect and the terms set forth in Section 4.11(b) shall control.
(b) If all or any portion of the Transferred Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”)shall, and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser shall nevertheless be required to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either (i) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss be damaged or destroyed as a result of a Casualty Event to a non-material extent (i.e., $75,000,000 or less), Purchaser and Seller shall remain obligated to perform this Agreement. Seller shall provide prompt written notice to Purchaser upon the occurrence of a Casualty Event. Purchaser shall, within 45 days of receiving notice of the Casualty Event, elect in writing to either have (i) Seller cause the Transferred Assets affected by any such Casualty Loss individually Event to be repaired, replaced or restored to Purchaser’s reasonable satisfaction to at least the same condition as such Transferred Assets were in prior to such Casualty Event, at Seller’s sole cost (but only to the aggregate is two percent extent of Seller’s receipt of insurance proceeds or awards, as promptly as reasonably practicable, or (2%ii) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser receive all sums paid to Sellers Seller by third Persons parties by reason of such Casualty Loss Event to the extent (and only to the extent) attributable to the Transferred Assets and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) parties arising out of such Casualty Event to the Casualty Lossextent (and only to the extent) attributable to the Transferred Assets; provided, however, that Seller will reserve and retain (and Purchaser will assign to Seller) all rights, title and interests and claims against third parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in pursuing or asserting any such insurance claims or other rights against third parties.
(c) If the Closing or the Outside Termination Date is expected to occur prior to the expiration of the 45 day period referenced in Section 4.11(b), then the Closing Date and the Outside Termination Date, as applicable, shall be postponed, if necessary, to 30 days after Purchaser’s election in Section 4.11(b).
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Casualty or Condemnation Loss. (a) Subject Notwithstanding anything contained herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Date, and if the certificate to be delivered by each Seller pursuant to Section 12.4(e)Closing occurs, Purchaser Corporation shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to production of Hydrocarbons through normal depletion (including, but not limited to, the including watering out of any Well, collapsed casing casing, or sand infiltration of any Well) and the depreciation of personal property the Facilities and other equipment due to ordinary wear and tear.
(b) Subject , in each case, with respect to the provisions of Sections 10.5 Assets, and 10.6Corporation shall not assert such matters as Casualty Losses hereunder. If, if, after during the date of this Agreement but prior to the Closing DateInterim Period, any portion of the Assets is destroyed destroyed, damaged or made unusable for its intended purpose by a fire or other casualty or is taken in condemnation or under right of eminent domain (each a “Casualty Loss”), then (a) Contributor will notify Corporation promptly after Contributor learns of such Casualty Loss, (b) except in the event this Agreement is terminated pursuant to Section 13.1, Corporation will nevertheless be required to proceed to Closing, and, for purposes of clarity, the Consideration will not be adjusted in respect of such Casualty Loss, and (c) (i) if the loss as a result aggregate amount of Liabilities suffered by Contributor in respect of such Casualty Loss individually equals or in exceeds $750,000 (the aggregate exceeds two percent (2%) of the Purchase Price“Casualty Loss Threshold”), Purchaser shall nevertheless be required Contributor may elect to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either (iA) to cause the Assets affected by any such Casualty Loss to be repaired repaired, replaced or restored restored, to at least their condition prior to such Casualty Loss, at Sellers’ Contributor’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or ) (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each which case, Sellers (I) Contributor shall retain be entitled to all rights amounts received by any Party from a Third Party in respect of the applicable Casualty Loss and shall be entitled to all insurance claims, unpaid award and other claims rights against third Persons with respect to the Casualty Loss, except to the extent the Third Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason arising out of such Casualty Loss and (II) to the extent Corporation receives any amounts from Third Parties in respect thereof, Corporation shall promptly remit such amounts to Contributor) or (B) upon the occurrence of Closing, pay to Corporation all sums paid to Contributor by Third Parties by reason of any such Casualty Loss (to the extent related to the Assets), and, in such case, Contributor shall assign, transfer and set over to Purchaser Corporation or subrogate Purchaser Corporation to all of Sellers’ Contributor’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) Third Parties arising out of such Casualty Loss insofar as with respect to the Assets, or (ii) if the aggregate amount of Liabilities suffered by Contributor in respect of such Casualty Loss does not exceed the Casualty LossLoss Threshold, upon the occurrence of Closing, Contributor shall pay to Corporation all sums paid to Contributor by Third Parties by reason of any such Casualty Loss (to the extent related to the Assets), and shall assign, transfer and set over to Corporation or subrogate Corporation to all of Contributor’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against Third Parties arising out of such Casualty Loss insofar as with respect to the Assets.
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Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement Execution Date but prior to the Closing Date, all or any portion of the Assets is damaged or destroyed by fire or other casualty (a “Casualty”) or is taken in condemnation or under right of eminent domain (a “Casualty LossCondemnation Proceeding”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser shall nevertheless be required to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either (i) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser then Buyer shall nevertheless be required to close and Sellers shallSellers, at Closing, shall pay to Purchaser Buyer (or its designee) all sums paid to Sellers by third Persons Third Parties by reason of such Casualty Loss or Condemnation Proceeding with respect to the affected Assets and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser to Buyer’s designee all of Sellers’ right, title and interest (if any) in insurance claimsrecovery proceeds, unpaid awards, awards and other rights against third Persons Third Parties (other than excluding any liabilities or claims of or against Sellers or any of their respective Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agentsRepresentatives) arising out of such Casualty or Condemnation Proceeding with respect to the affected Assets; provided, however, that Sellers shall reserve and retain (and Buyer shall assign to Sellers) all rights, title, interests and claims against Third Parties for the recovery of Sellers’ costs and expenses incurred prior to the Closing in pursuing or asserting any such insurance claims or other rights against Third Parties or in defending or asserting rights in connection with such Casualty Lossor Condemnation Proceeding; provided, further, if the costs and expenses associated with any such Casualty and/or Condemnation Proceedings exceed (or are likely to exceed), in aggregate, ten percent (10%) of the Purchase Price, either Party may terminate this Agreement upon written notice to the other Party prior to Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Azure Midstream Partners, Lp)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to production of Hydrocarbons through normal depletion or other mechanical failure (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and the depreciation of personal property due to ordinary wear and tear, in each case, with respect to the Assets.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty Casualty Loss or is taken in condemnation or under right of eminent domain (“Casualty Loss”)domain, and the loss as a result of such Casualty Loss individually individual casualty or in the aggregate taking exceeds two ten percent (210%) of the Purchase PricePrice based on the Allocated Value of the affected Assets, Purchaser Buyer shall nevertheless be required to close, close and Sellers Seller shall elect, elect by written notice to Purchaser Buyer prior to Closing, Closing either (i) to cause the Assets affected by any Casualty Loss such casualty or taking to be repaired or restored to at least their its condition prior to such Casualty Losscasualty or taking, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date)) but in no event later than ninety (90) Days after the Closing Date, or (ii) to indemnify Purchaser in Buyer through a manner document reasonably acceptable to Purchaser Seller and Buyer against any costs, losses, costs or expenses that Purchaser Buyer reasonably incurs to repair the Assets subject to any Casualty Losssuch casualty or taking or (iii) to retain the Asset and deduct the Allocated Value from the Purchase Price. In each case, Sellers Seller shall retain all rights to insurance insurance, condemnation awards and other claims against third Persons Third Parties with respect to the Casualty Loss, casualty or taking except to the extent the Parties parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a is destroyed by Casualty LossLoss or is taken in condemnation or under right of eminent domain, and the loss to the Assets as a result of such Casualty Loss individually individual casualty or in the aggregate taking is two 10 percent (210%) or less of the Purchase PricePrice based on the Allocated Value of the affected Assets, Purchaser Buyer shall nevertheless be required to close and Sellers shallSeller, at Closing, shall pay to Purchaser Buyer all sums paid to Sellers Seller by third Persons Third Parties by reason of such Casualty Loss casualty or taking with respect to the Assets and shall assign, transfer and set over to Purchaser Buyer, or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in, insurance claims, unpaid awards, and other rights against Third Parties (excluding any Liabilities, other than insurance claims, of or against the Seller Group) arising out of such casualty or taking with respect to the Assets; provided, however, that Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, title, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in pursuing or asserting any such insurance claims or other rights against Third Parties or in defending or asserting rights in such condemnation or eminent domain action with respect to the Assets.
(d) If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the date of this Agreement, but no taking of such Asset or portion thereof occurs prior to the Closing Date, Buyer shall nevertheless be required to close and Seller, at Closing, shall assign, transfer and set over to Buyer or subrogate Buyer to all of Seller’s right, title and interest (if any) in insurance claimssuch condemnation or eminent domain action, unpaid awardsincluding any future awards therein, insofar as they are attributable to the Assets threatened to be taken, except that Seller shall reserve and other retain (and Buyer shall assign to Seller) all rights, titles, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in defending or asserting rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of in such action with respect to the Casualty LossAssets.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Mariner Energy Inc)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time, and subject to the certificate to be delivered by each Seller pursuant to Section 12.4(e)Closing, Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to production of Hydrocarbons through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and the depreciation of personal property Personal Property due to ordinary wear and tear, in each case, with respect to the Assets.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”)domain, and the aggregate amount of any such loss or taking exceeds 15% of the Purchase Price, either party shall have the right to terminate this Agreement and Buyer shall promptly receive back the Deposit. If the aggregate amount of any such loss or taking is 15% or less of the Purchase Price, Buyer shall be required to close. If the loss as a result of such Casualty Loss individually individual casualty or in taking exceeds $250,000 and the aggregate exceeds two percent (2%) of the Purchase Priceparties proceed to Closing, Purchaser Seller shall nevertheless be required to close, and Sellers shall elect, elect by written notice to Purchaser Buyer prior to Closing, Closing either (i) to cause the Assets affected by any Casualty Loss such casualty or taking to be repaired or restored to at least their its condition prior to such Casualty Losscasualty or taking, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in Buyer through a manner document reasonably acceptable to Purchaser Seller and Buyer against any costs, losses, costs or expenses that Purchaser Buyer reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights such casualty or taking or (iii) to insurance and other claims against third Persons treat such casualty or taking as a Title Defect with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
affected Asset or Assets under Section 11.2 or (civ) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shallSeller, at Closing, shall pay to Purchaser Buyer all sums paid or payable to Sellers Seller by third Persons Third Parties by reason of such Casualty Loss casualty or taking insofar as with respect to the Assets and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, awards and other rights against third Persons Third Parties (other than Affiliates of excluding any SellerLiabilities, other than captive insurance Affiliatesclaims, and its and their directors, officers, employees and agentsof or against any Seller Indemnified Parties) arising out of such casualty or taking insofar as with respect to the Casualty LossAssets; provided, however, that in the case of (iv), Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, title, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing Date in pursuing or asserting any such insurance claims or other rights against Third Parties or in defending or asserting rights in such condemnation or eminent domain action with respect to the Assets. In the case of (i) - (iii), Seller shall retain all rights to insurance, condemnation awards and other claims against third parties with respect to the casualty or taking except to the extent the parties otherwise agree in writing.
(c) If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the date of this Agreement, but no taking of such Asset or portion thereof occurs prior to the Closing Date, Buyer shall nevertheless be required to close and Seller, at Closing, shall assign, transfer and set over to Buyer or subrogate Buyer to all of Seller’s right, title and interest (if any) in such condemnation or eminent domain action, including any future awards therein, insofar as they are attributable to the Assets threatened to be taken, except that Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, titles, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in defending or asserting rights in such action with respect to the Assets.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Houston Exploration Co)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms contrary, from and after the Effective Time, subject to the occurrence of this AgreementClosing, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to production of Hydrocarbons through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and the depreciation of personal property due to ordinary wear and tear, in each case, with respect to the Assets.
(b) Subject to If, during the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but prior to the Closing DateInterim Period, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”)domain, and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser Buyer shall nevertheless be required to closeconsummate the Closing, and Sellers Seller shall elect, elect (in its sole discretion) by written notice to Purchaser Buyer prior to Closing, Closing either (i) to cause the Assets affected by any Casualty Loss such casualty or taking to be repaired or restored to at least their its condition prior to such Casualty Losscasualty or taking, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), ) or (ii) at Closing, to indemnify Purchaser pay to Buyer all sums paid or payable to Seller by Third Parties by reason of such casualty or taking insofar as with respect to the Assets and shall assign, transfer and set over to Buyer or subrogate Buyer to all of Seller’s right, title and interest (if any) in a manner reasonably acceptable to Purchaser insurance claims, unpaid awards and other rights against Third Parties (excluding any Liabilities, other than insurance claims, of or against any costsSeller Indemnitees) arising out of such casualty or taking insofar as with respect to the Assets; provided, losseshowever, that in the case of (ii), Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, title, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing Date in pursuing or expenses that Purchaser reasonably incurs asserting any such insurance claims or other rights against Third Parties or in defending or asserting rights in such condemnation or eminent domain action with respect to repair the Assets subject to any Casualty LossAssets. In each casethe case of (i), Sellers Seller shall retain all rights to insurance insurance, condemnation awards and other claims against third Persons Third Parties with respect to the Casualty Loss, casualty or taking except to the extent the Parties otherwise agree in writing.
(c) If, If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the date of this Agreement Agreement, but no taking of such Asset or portion thereof occurs prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser Buyer shall nevertheless be required to close and Sellers shallSeller, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claimssuch condemnation or eminent domain action, unpaid awardsincluding any future awards therein, insofar as they are attributable to the Assets threatened to be taken, except that Seller shall reserve and other retain (and Buyer shall assign to Seller) all rights, titles, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in defending or asserting rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of in such action with respect to the Casualty LossAssets.
Appears in 1 contract
Casualty or Condemnation Loss. (a) Subject to If, during the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but prior to the Closing DateInterim Period, any portion of the Assets is destroyed by a fire or other casualty or is taken in condemnation or under right of eminent domain (each a “Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser shall Buyer will nevertheless be required to closeclose and Seller will, and Sellers shall electat Seller’s sole election, by written notice to Purchaser prior to Closing, either elect to:
(i) reduce the Base Purchase Price by an amount agreed upon in writing by the Parties as being a reasonable estimate of such Casualty Loss; or
(ii) agree with Buyer to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Lossrestored, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), .
(b) Notwithstanding anything to the contrary (but subject to the insurance obligations of Seller under this Agreement):
(i) in no event shall there be any adjustments to the Base Purchase Price or other remedies provided by Seller for an individual Casualty Loss that does not exceed seven hundred and fifty thousand dollars ($750,000.00) (the “Casualty Loss Threshold”); and
(ii) in no event shall there be any adjustments to indemnify Purchaser the Base Purchase Price or other remedies provided by Seller for an individual Casualty Loss unless the sum of each amount in a manner reasonably acceptable to Purchaser against any costsexcess of the Casualty Loss Threshold for each such qualified Casualty Losses, lossesadded together, or expenses that Purchaser reasonably incurs to repair the Assets subject to excluding any Casualty Loss. In each caseLosses repaired or restored by Seller prior to Closing, Sellers shall retain all rights exceeds a deductible in an amount equal to insurance and other claims against third Persons with respect 1% of the Base Purchase Price (the “Casualty Loss Deductible”), after which point Buyer will be entitled to an adjustment to the Casualty Loss, except Base Purchase Price or other remedies only to the extent such sum exceeds the Parties otherwise agree in writingCasualty Loss Deductible.
(c) IfIn the event that Seller elections to proceed under Section 6.9(a)(i) and the Parties have failed to agree in good faith by Closing on the reduction to the Base Purchase Price, then no adjustment to the Base Purchase Price (if applicable) shall be made therefor at Closing and either Party may submit the dispute to a Casualty Arbitrator post-Closing. In such event, the following shall be applicable:
(i) The Casualty Arbitrator will be selected by agreement of the Parties. If the Parties are unable to agree on the Casualty Arbitrator no later than thirty (30) days after the end of the Cure Period, then the Casualty Arbitrator will be selected by the office of the American Arbitration Association located in Houston, Texas (such arbitrator as so selected by the Parties or the American Arbitration Association, the “Casualty Arbitrator”).
(ii) Unless otherwise agreed by the Parties, the Casualty Arbitrator may not have worked as an employee or outside counsel for either Party or its Affiliates during the five (5) year period immediately preceding the end of the Cure Period or have any financial interest in the dispute.
(iii) The arbitration proceeding will be held in Xxxxxx County, Texas, and will be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, to the extent that such rules do not conflict with the terms of this Section 6.9.
(iv) The Casualty Arbitrator’s determination will be made no later than fifteen (15) days after the date of submission of the matters in dispute and will be final and binding on the Parties without right of appeal. In making his decision, the Casualty Arbitrator will be bound by the rules set forth in this Section 6.9 and this Agreement but prior to and may consider such other matters as in the Closing Date, any portion opinion of the Assets experiences Casualty Arbitrator are reasonably necessary or helpful to make a proper determination. Additionally, the Casualty Arbitrator may consult with and engage disinterested third parties to advise the Casualty Arbitrator, including petroleum engineers. The Casualty Arbitrator will act as an expert for the limited purpose of determining the existence of a value of the Casualty Loss submitted by any Party and may not award damages, interest or penalties to either Party with respect to any other matter.
(v) Each of the Parties will bear its own legal fees and other costs of presenting its case. The costs and expenses of the Casualty Arbitrator will be borne by the Parties in inverse proportion as the Parties prevail (by dollar amounts) in all matters in dispute.
(vi) Promptly following the determination by the Casualty Arbitrator of the disputed value of any Casualty Loss, subject to the Casualty Threshold and Casualty Deductible, Seller shall reimburse to Buyer, by wire transfer of immediately available funds, the loss as a result amount of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers as determined by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty LossArbitrator.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Triangle Petroleum Corp)
Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement Execution Date but prior to the Closing Date, any portion of the Assets is damaged or destroyed by fire fire, flood, other Act of God, or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser Buyer shall nevertheless be required to closeclose (subject to the other provisions of this Agreement), and Sellers the Buyer shall elect, by written notice to Purchaser Seller delivered at least five (5) Business Days prior to Closing, to require Seller either (i) to cause the Assets affected by any Casualty Loss (other than condemnation or eminent domain) to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to fully indemnify Purchaser in a manner reasonably acceptable to Purchaser Buyer against any costs, losses, costs or expenses that Purchaser Buyer reasonably incurs to repair or restore the Assets subject to any such Casualty Loss, or (iii) to remove and exclude such Asset or portion thereof from the “Assets” to be transferred and conveyed to Buyer at Closing and, accordingly, to reduce the Purchase Price to be paid at Closing by the Allocated Value of such Asset (or, if a portion of such Asset, such portion of such Allocated Value as shall be determined in a reasonable manner taking into account the net acreage (or net acre feet, as appropriate) that the portion of such Asset affected by such Casualty Loss bears to the net acreage (or net acre feet, as appropriate) in the entire Asset). In each case, Sellers Seller shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Goodrich Petroleum Corp)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time, and subject to the certificate to be delivered by each Seller pursuant to Section 12.4(e)Closing, Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to production of Hydrocarbons through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and the depreciation of personal property Personal Property due to ordinary wear and tear, in each case, with respect to the Assets.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”)domain, and the aggregate amount of any such loss or taking exceeds 20% of the Purchase Price, either party shall have the right to terminate this Agreement and Buyer shall be entitled to promptly receive the Break-Up Fee from the Escrow Agent. If the aggregate amount of any such loss or taking is 20% or less of the Purchase Price, Buyer shall be required to close. If the loss as a result of such Casualty Loss individually individual casualty or in taking exceeds $3,000,000 and the aggregate exceeds two percent (2%) of the Purchase Priceparties proceed to Closing, Purchaser Seller shall nevertheless be required to close, and Sellers shall elect, elect by written notice to Purchaser Buyer prior to Closing, Closing either (i) to cause the Assets affected by any Casualty Loss such casualty or taking to be repaired or restored to at least their its condition prior to such Casualty Losscasualty or taking, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), ) or (ii) Seller, at Closing, shall pay to indemnify Purchaser in a manner reasonably acceptable Buyer all sums paid or payable to Purchaser against any costs, losses, Seller by Third Parties by reason of such casualty or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons taking insofar as with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, awards and other rights against third Persons Third Parties (other than Affiliates of excluding any SellerLiabilities, other than captive insurance Affiliatesclaims, and its and their directors, officers, employees and agentsof or against any Seller Indemnified Parties) arising out of such casualty or taking insofar as with respect to the Casualty LossAssets; provided, however, that in the case of (ii), Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, title, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing Date in pursuing or asserting any such insurance claims or other rights against Third Parties or in defending or asserting rights in such condemnation or eminent domain action with respect to the Assets. In the case of (i), Seller shall retain all rights to insurance, condemnation awards and other claims against Third Parties with respect to the casualty or taking except to the extent the parties otherwise agree in writing.
(c) If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the date of this Agreement, but no taking of such Asset or portion thereof occurs prior to the Closing Date, Buyer shall nevertheless be required to close and Seller, at Closing, shall assign, transfer and set over to Buyer or subrogate Buyer to all of Seller’s right, title and interest (if any) in such condemnation or eminent domain action, including any future awards therein, insofar as they are attributable to the Assets threatened to be taken, except that Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, titles, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in defending or asserting rights in such action with respect to the Assets.
Appears in 1 contract
Casualty or Condemnation Loss. (a) Subject If, prior to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but in all cases prior to the Closing Date, any portion of the Assets is or has been damaged or destroyed by fire or other casualty (a “Casualty”) or is or has been taken in condemnation or under right of eminent domain (a “Condemnation Proceeding”) and the amount of accrued but unpaid liability resulting from such Casualty or Condemnation Proceeding (which shall include the estimated amount of reduction in the fair market value of such Assets or, in the event of a Casualty, the estimated cost of repairing the Assets damaged or destroyed by such Casualty or replacing such Assets with assets of similar utility) (the “Restoration Costs”) is less than [***]% of the Purchase Price, in the aggregate, then Buyer shall nevertheless be required to close and Seller, at the Closing, shall pay to Buyer (or its designee) all sums paid to Seller by third Persons by reason of such Casualty or Condemnation Proceeding with respect to the affected Assets and shall assign, transfer and set over to Buyer or Buyer’s designee all of Seller’s and its Affiliate’s right, title and interest (if any) in insurance claims, unpaid awards and other rights against third parties arising out of such Casualty or Condemnation Proceeding with respect to the affected Assets; provided, however, that Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, title, interests and claims against third Persons for the recovery of Seller’s and its Affiliate’s unpaid awards and other rights and costs and expenses incurred prior to the Closing in pursuing or asserting any such insurance claims or other rights against third parties or in defending or asserting rights in connection with such Casualty or Condemnation Proceeding.
(b) If, prior to or after the date of this Agreement but in all cases prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty a Casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), by a Condemnation Proceeding and the loss as a result of Restoration Costs resulting from such Casualty Loss individually or Condemnation Proceeding is equal to or in the aggregate exceeds two percent (2%) excess of [***]% of the Purchase Price, Purchaser in the aggregate, then Buyer shall nevertheless be required to close, close and Sellers Seller shall elect, by written notice have the right to Purchaser prior elect to Closing, either (i) to cause reduce the Assets affected Purchase Price by any Casualty Loss to be repaired or restored to at least their condition prior the Restoration Costs relating to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or Condemnation Proceeding or (ii) have Seller repair and restore the affected Asset at Seller’s sole cost and expense (which repair and restoration may extend post-Closing) and (in either case) Seller shall be entitled to indemnify Purchaser all sums paid to Seller by third Persons by reason of such Casualty or Condemnation Proceeding with respect to the ***Certain information in a manner reasonably acceptable this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to Purchaser against any coststhe omitted portions. affected Transferred Assets and all rights, lossestitle, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance interests and other claims against third Persons with respect arising out of or relating to the such Casualty Loss, except to the extent the Parties otherwise agree in writingor Condemnation Proceeding.
(c) If, prior to or after the date of this Agreement but in all cases prior to the Closing Date, any portion of the Assets experiences is or has been destroyed by a Casualty Loss, or is or has been taken by a Condemnation Proceeding and the loss as a result of Restoration Costs resulting from such Casualty Loss individually or Condemnation Proceeding is equal to or in the aggregate is two percent (2%) or less excess of [***]% of the Purchase Price, Purchaser shall nevertheless be required in the aggregate, then Buyer may terminate this Agreement upon written notice to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Summit Midstream Partners, LP)
Casualty or Condemnation Loss. (ai) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, If after the date of this Agreement but prior to the Closing DateDate (or with respect to the Golden Lane Leases, prior to the Second Conveyance), any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price$390,600, Purchaser Grantee shall nevertheless be required to close, and Sellers Grantor shall elect, by written notice to Purchaser Grantee prior to Closing, either (i1) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ Grantor’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii2) to indemnify Purchaser Grantee in a manner reasonably acceptable to Purchaser Grantee against any costs, losses, or expenses that Purchaser Grantee reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers Grantor shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(cii) If, If after the date of this Agreement but prior to the Closing DateDate (or with respect to the Golden Lane Leases, prior to the Second Conveyance), any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) $390,600 or less of the Purchase Priceless, Purchaser Grantee shall nevertheless be required to close and Sellers Grantor shall, at Closing, pay to Purchaser Grantee all sums paid to Sellers Grantor by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Grantee or subrogate Purchaser Grantee to all of Sellers’ Grantor’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any SellerGrantor, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 1 contract
Samples: Contribution Agreement (New Source Energy Partners L.P.)
Casualty or Condemnation Loss. (ai) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, If after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser Buyer shall nevertheless be required to close, and Sellers Seller shall elect, by written notice to Purchaser Buyer prior to Closing, either (i1) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii2) to indemnify Purchaser Buyer in a manner reasonably acceptable to Purchaser Buyer against any costs, losses, or expenses that Purchaser Buyer reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers Seller shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(cii) If, If after the date of this Agreement but prior to the Closing DateDate , any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase PricePrice or less, Purchaser Buyer shall nevertheless be required to close and Sellers Seller shall, at Closing, pay to Purchaser Buyer all sums paid to Sellers Seller by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 1 contract
Samples: Purchase and Sale Agreement (New Source Energy Partners L.P.)
Casualty or Condemnation Loss. (a) Subject Seller shall promptly notify Buyer of any material casualty to the further terms Assets or any portion thereof that occurs, or any condemnation proceeding commenced, after the Execution Date and prior to the Closing Date.
(b) If, after the Execution Date and before the Closing, Casualty Losses occur with respect to the Assets that result in losses of less than five percent (5%) of the Purchase Price in the aggregate, then, notwithstanding such Casualty Loss, Buyer and Seller shall proceed with the purchase and sale of the affected Assets without reduction of the Purchase Price, and Seller, at Seller’s sole discretion, shall select one of the following options which shall apply to the Casualty Losses: (i) Seller shall cause the Assets affected by such Casualty Losses to be repaired or restored to at least their condition prior to such Casualty Losses, at Seller’s sole cost, as promptly as reasonably practicable (which work may extend after the Closing Date) or (ii) Seller shall, at Closing, pay to Buyer all sums paid to Seller or its Affiliates by Third Parties by reason of such Casualty Losses and shall assign to Buyer all of Seller’s or its Affiliates’ right, title and interest (if any) in insurance claims, unpaid awards and other rights against Third Parties arising out of the casualty.
(c) If, after the Execution Date and before the Closing, Casualty Losses occur with respect to the Assets that result in losses equal to or in excess of five percent (5%) of the Purchase Price in the aggregate, then at the Closing, Seller and Buyer shall mutually agree to either (i) have Seller cause the Assets adversely affected by such Casualty Losses to be repaired or restored to at least their condition prior to such Casualty Losses, at Seller’s sole cost and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), (ii) to have Seller indemnify the Buyer against any costs or expenses that Buyer reasonably incurs to repair or restore the Assets subject to any such Casualty Losses or (iii) to the extent such Assets are not material to the operation or value of the other Assets, exclude such Assets (and any Assets solely related to such Assets) from this Agreement and adjust the Purchase Price by the Allocated Value of such excluded Assets.
(d) If after the date of this AgreementAgreement but prior to the Closing Date, any portion of the Assets is taken in condemnation or under right of eminent domain by any Governmental Authority, the Assets or portion thereof shall be excluded from the Assets to be conveyed to Buyer at Closing to the extent of the interest affected by the condemnation or right of eminent domain and the Purchase Price will be reduced by the Allocated Value of such interest.
(e) If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the Execution Date, but no taking of such Asset or portion thereof occurs prior to the Closing Date, the transaction contemplated by this Agreement shall nevertheless close and Seller, at Closing, shall assign, transfer and set over to Buyer or subrogate Buyer to all of Seller’s or its Affiliates’ right, title and interest (if any) in such taking, including any insurance claims, unpaid awards and other rights against Third Parties arising out of the representations and warranties of Sellers made in Article 7taking, and insofar as they are attributable to the certificate Assets threatened to be delivered by each Seller pursuant taken.
(f) Notwithstanding anything herein to Section 12.4(e)the contrary, Purchaser from and after the Effective Time, if Closing occurs, Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to production of Hydrocarbons through normal depletion or otherwise (including, but not limited to, the including watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property Personal Property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser shall nevertheless be required to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either (i) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writingAssets.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Carrizo Oil & Gas Inc)
Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement Execution Date but prior to the Closing Date, any portion of the Assets is damaged or destroyed or otherwise impaired by fire fire, explosion, tornado, hurricane, earthquake, earth movement, flood, water damage or other casualty or is taken in condemnation or under right of eminent domain (in each case, a “Casualty or Condemnation Loss”)) that, and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Priceaggregate, Purchaser shall nevertheless be required to closehas not had, and Sellers shall electwould not reasonably be expected to have, by written notice a Seller Material Adverse Effect, then, subject to Purchaser prior to Closing, either (i) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing DateSection 7.09(b), or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser Buyer shall nevertheless be required to close the transactions contemplated by the Agreement without any change to the Purchase Price, and Sellers shall, at Closing, shall (i) pay to Purchaser Buyer all sums paid to Sellers by third Persons Third Parties by reason of such Casualty or Condemnation Loss and shall with respect to the Assets (net of amounts spent or incurred by Sellers prior to Closing with respect to replacement or repair of any such Casualty or Condemnation Loss), (ii) assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ and their Affiliates’ right, title and interest (if any) in insurance claims, unpaid awards, awards and other rights against third Persons Third Parties (other than Affiliates of excluding any SellerLiabilities, other than captive insurance Affiliatesclaims, and its and their directors, officers, employees and agentsof or against any Seller Indemnified Parties) arising out of such Casualty or Condemnation Loss with respect to the Assets, (iii) to the extent any retention or deductible related to applicable insurance policies referred to in clause (ii) is not paid by Sellers prior to the Closing, the Purchase Price shall be reduced by the amount of such retention or deductible, and (iv) otherwise provide reasonable cooperation to Buyer (whether before or after the Closing Date) in the pursuit of such insurance claims, unpaid awards and other rights against Third Parties; provided, however, that Sellers shall reserve and retain (and Buyer shall assign to Sellers) all rights, title, interests and claims against Third Parties for the recovery of Sellers’ costs and expenses incurred prior to the Closing in pursuing or asserting any such insurance claims or other rights against Third Parties with respect to any such Casualty or Condemnation Loss. Except as expressly set forth hereinabove, Sellers shall retain all rights to insurance, condemnation awards and other claims against Third Parties with respect to the casualty or taking except to the extent the Parties otherwise agree in writing.
(b) If, after the Execution Date but prior to the Closing Date, there is a Casualty or Condemnation Loss that, individually or in the aggregate, has had, or would reasonably be expected to have, a Seller Material Adverse Effect, then Buyer may terminate this Agreement pursuant to Section 9.01(d)(iii) (and such Casualty or Condemnation Loss shall be deemed for purposes of Section 9.01(d)(iii) to be an unwaived condition in Section 8.02 that is incapable of being satisfied by the End Date).
Appears in 1 contract
Samples: Asset Purchase Agreement (Basic Energy Services, Inc.)
Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement Execution Date, but prior to the Closing Date, any portion of the Assets is damaged, destroyed or made unavailable or unusable for the intended purpose by fire or other casualty or is taken in condemnation or under right of eminent domain (each a “Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two Aggregate Defect Amount is greater than twenty percent (220%) of the unadjusted Purchase Price, Purchaser Buyer may elect to terminate this Agreement at any time prior to Closing pursuant to Section 11.1(e). In the event that Buyer does not elect to terminate this Agreement pursuant to Section 11.1(e), Buyer shall nevertheless be required to close, and Sellers shall elect, elect by written notice to Purchaser Sellers prior to Closing, Closing either (i) to cause the Assets adversely affected by any such individual Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ sole cost, risk cost and expense, as promptly as reasonably practicable (which work may extend after prior to the Closing Date), Date or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of for the Purchase Price, Purchaser shall nevertheless Price to be required to close and Sellers shall, at Closing, pay to Purchaser reduced by the sums of all sums amounts paid to Sellers by third Persons Third Parties by reason of such Casualty Loss that have not been used to repair or restore any Assets adversely affected by any Casualty Loss in accordance with Section 6.4(a)(i), and Sellers shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, condemnation payments, insurance proceeds and other rights and claims against third Persons Third Parties (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agentsPersons within the Seller Indemnified Parties) arising out of the Casualty Loss.
(b) If, after the Execution Date, but prior to the Closing Date, any Casualty Loss occurs, and the Aggregate Defect Amount is less than or equal to twenty percent (20%) of the unadjusted Purchase Price, Buyer shall nevertheless be required to close and, at Buyer’s option (i) the Assets affected by such Casualty Loss shall be retained by Sellers, in which event the Purchase Price shall be adjusted downward by an amount equal to the Allocated Value of such Assets and such Assets shall constitute Excluded Assets or (ii) Sellers shall deduct from the Purchase Price all sums paid to Sellers by Third Parties by reason of such individual Casualty Loss that have not been paid to Buyer and Sellers shall assign, transfer and set over to Buyer or subrogate Buyer to all of Sellers’ right, title and interest (if any) in unpaid awards, condemnation payments, insurance proceeds and other rights and claims against Third Parties (other than Persons within the Seller Indemnified Parties) arising out of the Casualty Loss.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Rosehill Resources Inc.)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time, and subject to the certificate to be delivered by each Seller pursuant to Section 12.4(e)Closing, Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to production of Hydrocarbons through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and the depreciation of personal property Personal Property due to ordinary wear and tear, in each case, with respect to the Assets.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”)domain, and the aggregate amount of any such loss or taking, along with the total amount of Environmental Defects and Title Defects exceed twenty percent (20%) of the Purchase Price, either party shall have the right to terminate this Agreement and Buyer shall promptly receive back the Deposit. If the aggregate amount of any such loss or taking along with the total amount of Environmental Defects and Title Defects is twenty percent (20%) or less of the Purchase Price, Buyer shall be required to close. If the loss as a result of such Casualty Loss individually individual casualty or in the aggregate taking exceeds two percent (2%) of the Purchase PricePrice and the parties proceed to Closing, Purchaser Seller shall nevertheless be required to close, and Sellers shall elect, elect by written notice to Purchaser Buyer prior to Closing, Closing either (i) to cause the Assets affected by any Casualty Loss such casualty or taking to be repaired or restored to at least their its condition prior to such Casualty Losscasualty or taking, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), ) or (ii) to indemnify Purchaser in Buyer through a manner document reasonably acceptable to Purchaser Seller and Buyer against any costs, losses, costs or expenses that Purchaser Buyer reasonably incurs to repair the Assets subject to any Casualty Loss. In each casesuch casualty or taking, Sellers or (iii) Seller, at Closing, shall retain pay to Buyer all rights sums paid or payable to insurance and other claims against third Persons Seller by Third Parties by reason of such casualty or taking insofar as with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, awards and other rights against third Persons Third Parties (other than Affiliates of excluding any SellerLiabilities, other than captive insurance Affiliatesclaims, and its and their directors, officers, employees and agentsof or against any Seller Indemnified Parties) arising out of such casualty or taking insofar as with respect to the Casualty LossAssets; provided, however, that in the case of (iii), Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, title, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing Date in pursuing or asserting any such insurance claims or other rights against Third Parties or in defending or asserting rights in such condemnation or eminent domain action with respect to the Assets. In the case of (i) -(ii), Seller shall retain all rights to insurance, condemnation awards and other claims against Third Parties with respect to the casualty or taking except to the extent the parties otherwise agree in writing.
(c) If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the date of this Agreement, but no taking of such Asset or portion thereof occurs prior to the Closing Date, Buyer shall nevertheless be required to close and Seller, at Closing, shall assign, transfer and set over to Buyer or subrogate Buyer to all of Seller’s right, title and interest (if any) in such condemnation or eminent domain action, including any future awards therein, insofar as they are attributable to the Assets threatened to be taken, except that Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, titles, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in defending or asserting rights in such action with respect to the Assets.
Appears in 1 contract
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms contrary but subject to the provisions of this Agreement, including the representations Article 6.1 and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e12.3(b), Purchaser if Closing occurs, from and after the Effective Time, Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to production of Hydrocarbons through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and the depreciation of personal property Personal Property due to ordinary wear and tear, in each case, with respect to the Assets, and such matters shall not be considered as a casualty loss or damage.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed or damaged by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”)domain, and the loss as a result of such Casualty Loss individually individual casualty or taking exceeds Two Hundred Fifty Thousand Dollars ($250,000.00), Seller and Buyer shall negotiate in the aggregate exceeds two percent (2%) good faith in an effort to agree to a mutually acceptable remedy including, without limitation, one of the Purchase Price, Purchaser shall nevertheless be required to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either following: (i) to cause the Assets affected by any Casualty Loss such casualty or taking to be repaired or restored to at least their its condition prior to such Casualty Losscasualty or taking, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii) to indemnify Purchaser in Buyer through a manner document reasonably acceptable to Purchaser Seller and Buyer against any costs, losses, costs or expenses that Purchaser Buyer reasonably incurs to repair the Assets subject to any Casualty Losssuch casualty or taking, (iii) to treat such casualty or taking as a Title Defect with respect to the affected Asset or Assets under Article 12.2, (iv) include the Assets affected by such casualty or taking in this transaction without adjustment to the Purchase Price or based on a mutually agreeable adjustment to the Purchase Price for such casualty or taking, or (v) exclude the Assets affected by such casualty or taking from this transaction and adjust the Purchase Price by an amount acceptable to both Seller and Buyer. In each case, Sellers Seller shall reserve and retain (and Buyer shall assign to Seller) all rights to insurance insurance, condemnation awards and other claims against third Persons Third Parties, including the recovery of Seller’s costs and expenses incurred prior to Closing in pursuing or asserting any such insurance claims or other rights or in defending or asserting rights in such condemnation or eminent domain action, with respect to the Casualty Loss, casualty or taking except to the extent the Parties parties otherwise agree in writing. In the event Seller and Buyer do not mutually agree to an acceptable remedy with respect to such casualty or taking on or before the Closing Date, then either Buyer or Seller, in its sole discretion, shall have the right to terminate this Agreement. In the event such casualty or taking occurs within five (5) Business Days prior to the Closing Date, the Closing Date shall be automatically extended for a period of thirty (30) days from the date of such casualty or taking, unless a longer or shorter extension is agreed to by the parties in writing.
(c) If, If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the date of this Agreement Agreement, but no taking of such Asset or portion thereof occurs prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser Buyer shall nevertheless be required to close and Sellers shallSeller, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claimssuch condemnation or eminent domain action, unpaid awardsincluding any future awards therein, insofar as they are attributable to the Assets threatened to be taken, except that Seller shall reserve and other retain (and Buyer shall assign to Seller) all rights, titles, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in defending or asserting rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of in such action with respect to the Casualty LossAssets.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Black Elk Energy Finance Corp.)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time, and subject to the certificate to be delivered by each Seller pursuant to Section 12.4(e)Closing, Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to production of Hydrocarbons through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and the depreciation of personal property Personal Property due to ordinary wear and tear, in each case, with respect to the Assets.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”)domain, and the aggregate amount of any such loss or taking, along with the total amount of Environmental Defects and Title Defects exceed twenty percent (20%) of the Purchase Price, either party shall have the right to terminate this Agreement and Buyer shall promptly receive back the Deposit. If the aggregate amount of any such loss or taking along with the total amount of Environmental Defects and Title Defects is twenty percent (20%) or less of the Purchase Price, Buyer shall be required to close. If the loss as a result of such Casualty Loss individually individual casualty or in the aggregate taking exceeds two percent (2%) of the Purchase PricePrice and the parties proceed to Closing, Purchaser Seller shall nevertheless be required to close, and Sellers shall elect, elect by written notice to Purchaser Buyer prior to Closing, Closing either (i) to cause the Assets affected by any Casualty Loss such casualty or taking to be repaired or restored to at least their its condition prior to such Casualty Losscasualty or taking, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), ) or (ii) to indemnify Purchaser in Buyer through a manner document reasonably acceptable to Purchaser Seller and Buyer against any costs, losses, costs or expenses that Purchaser Buyer reasonably incurs to repair the Assets subject to any Casualty Loss. In each casesuch casualty or taking, Sellers or (iii) Seller, at Closing, shall retain pay to Buyer all rights sums paid or payable to insurance and other claims against third Persons Seller by Third Parties by reason of such casualty or taking insofar as with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, awards and other rights against third Persons Third Parties (other than Affiliates of excluding any SellerLiabilities, other than captive insurance Affiliatesclaims, and its and their directors, officers, employees and agentsof or against any Seller Indemnified Parties) arising out of such casualty or taking insofar as with respect to the Casualty LossAssets; provided, however, that in the case of (iii), Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, title, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing Date in pursuing or asserting any such insurance claims or other rights against Third Parties or in defending or asserting rights in such condemnation or eminent domain action with respect to the Assets. In the case of (i) - (ii), Seller shall retain all rights to insurance, condemnation awards and other claims against Third Parties with respect to the casualty or taking except to the extent the parties otherwise agree in writing.
(c) If any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Asset or portion thereof after the date of this Agreement, but no taking of such Asset or portion thereof occurs prior to the Closing Date, Buyer shall nevertheless be required to close and Seller, at Closing, shall assign, transfer and set over to Buyer or subrogate Buyer to all of Seller’s right, title and interest (if any) in such condemnation or eminent domain action, including any future awards therein, insofar as they are attributable to the Assets threatened to be taken, except that Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, titles, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in defending or asserting rights in such action with respect to the Assets.
Appears in 1 contract
Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement hereof, but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Properties suffers a Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Pricesubject to Section 6.3.3, Purchaser Seller shall nevertheless be required elect to close, and Sellers shall elect, by written notice to Purchaser prior to Closing, either (ia) to cause the Assets Properties adversely affected by any such individual Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ Seller’s sole cost, risk cost and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), expense or (iib) to indemnify Purchaser remove such Properties from the transaction, in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair which event the Assets subject to any Casualty Lossunadjusted Purchase Price shall be adjusted downward by the Allocated Value of such Properties. In the event Seller elects option (a) above and such repair or restoration work (in each casecase as used in this sentence, Sellers shall retain all rights to insurance and other claims against third Persons with respect the previous condition of the affected Properties prior to the Casualty Loss, except ) is not completed prior to the extent Closing, either Party will have the Parties otherwise agree right to exclude the affected Properties from the Closing, in writing.
which event, (ci) If, after the unadjusted Purchase Price shall be reduced by the Allocated Value of the affected Properties and (ii) (A) if such repair or restoration work is subsequently completed prior to the date of delivery of the Final Statement under Section 2.3, then a separate closing shall be held within five Business Days thereof at which (1) Seller shall convey the affected Properties to Buyer in accordance with this Agreement but prior and (2) Buyer shall pay an amount equal to the Closing Date, any portion Allocated Value of the Assets experiences a Casualty Loss, affected Properties to Seller and (B) if such repair or restoration work is not completed by the loss as a result date of such Casualty Loss individually or in the aggregate is two percent (2%) or less delivery of the Purchase PriceFinal Statement, Purchaser Seller shall nevertheless be required have no further obligation to close sell and Sellers shallconvey the affected Properties and Buyer shall have no further obligation to purchase, at Closing, accept and pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of for the Casualty Lossaffected Properties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Contango Oil & Gas Co)
Casualty or Condemnation Loss. (ai) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, if, If after the date of this Agreement but prior to the Closing DateDate (or with respect to the Golden Lane Leases, prior to the Second Conveyance), any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price$21,600, Purchaser Grantee shall nevertheless be required to close, and Sellers Grantor shall elect, by written notice to Purchaser Grantee prior to Closing, either (i1) to cause the Assets affected by any Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ Grantor’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), or (ii2) to indemnify Purchaser Grantee in a manner reasonably acceptable to Purchaser Grantee against any costs, losses, or expenses that Purchaser Grantee reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers Grantor shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(cii) If, If after the date of this Agreement but prior to the Closing DateDate (or with respect to the Golden Lane Leases, prior to the Second Conveyance), any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) $21,600 or less of the Purchase Priceless, Purchaser Grantee shall nevertheless be required to close and Sellers Grantor shall, at Closing, pay to Purchaser Grantee all sums paid to Sellers Grantor by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Grantee or subrogate Purchaser Grantee to all of Sellers’ Grantor’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any SellerGrantor, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 1 contract
Samples: Contribution Agreement (New Source Energy Partners L.P.)
Casualty or Condemnation Loss. (a) Subject to the further terms of this Agreement, including the representations and warranties of Sellers made in Article 7, and the certificate to be delivered by each Seller pursuant to Section 12.4(e), Purchaser shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for production of Hydrocarbons through normal depletion (including, but not limited to, the watering out of any Well, collapsed casing or sand infiltration of any Well) and the depreciation of personal property due to ordinary wear and tear.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement but prior to the Closing Date, any portion of the Assets is destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (“Casualty Loss”), and the loss as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) 1.5% of the unadjusted Purchase Price, Purchaser Seller shall have the option to exclude any affected Assets from the transactions contemplated by this Agreement and reduce the Purchase Price by the aggregate Allocated Values of such excluded Assets. If Seller opts to exclude any such Asset (collectively, the “Retained Assets”), Seller shall retain such Retained Assets or cause the Company to assign such Retained Assets to Seller before Closing. If Seller elects not to elect the option to exclude such affected Assets, Buyer shall, at Seller’s election, nevertheless be required to closeconsummate the transactions contemplated hereby, and Sellers Seller shall elect, by written notice to Purchaser Buyer delivered at least five Business Days prior to Closing, in the case of fire or other casualty, either (i) to cause the Assets affected by any such Casualty Loss to be repaired or restored to at least their condition prior to such Casualty Loss, at Sellers’ Seller’s sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after must be completed by the Closing Date), or (ii) to indemnify Purchaser Buyer and the Company in a manner reasonably acceptable to Purchaser Buyer against any costs, losses, Losses that Buyer or expenses that Purchaser the Company reasonably incurs incur to repair the Assets subject to any such Casualty Loss. In the case of condemnation or eminent domain, the Parties shall work together in good faith to reduce the Purchase Price by an amount equal to the Allocated Value (or applicable portion thereof) of the Assets (or portion thereof) taken in condemnation or under right of eminent domain. In each case, Sellers the Company shall retain all rights to insurance and other claims against third Persons with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing.
(cb) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) 1.5% or less of the unadjusted Purchase Price, Purchaser Buyer shall nevertheless be required to close and Sellers Seller shall, at Closing, pay to Purchaser Buyer all sums (if any) paid to Sellers Seller by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Memorial Production Partners LP)
Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time if Closing occurs, and with respect to the certificate Conveyed Interests, without limiting Buyer’s rights to be delivered by each Seller pursuant to Section 12.4(e)indemnity hereunder, Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for : (i) production of Hydrocarbons through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell); and (ii) and the depreciation of personal property Personal Property due to ordinary wear and tear, in each case, to the extent attributable to the Conveyed Interests, and Buyer shall not assert such matters as any casualty losses or Title Defects hereunder, to the extent of its percentage interest share.
(b) Subject to the provisions of Sections 10.5 and 10.6, ifIf, after the date of this Agreement Effective Time but prior to the Closing Date, any portion of the Assets Conveyed Interests is damaged or destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (a “Casualty LossEvent”), and the loss then, subject to Buyer’s rights arising under Section 10.4, Buyer will not be excused from its obligation to close solely as a result of such Casualty Loss individually or in the aggregate exceeds two percent (2%) of the Purchase Price, Purchaser thereof and Seller shall nevertheless be required to close, and Sellers shall elect, elect by written notice to Purchaser Buyer prior to Closing, either Closing either: (i) to cause the Assets Conveyed Interests affected by any Casualty Loss such casualty or taking to be repaired or restored to at least their its condition prior to such Casualty Losscasualty or taking, at Sellers’ Seller’s sole cost, risk cost and expense, as promptly as reasonably practicable (prior to the Closing, in which work may extend after the Closing Date), or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Loss. In each case, Sellers shall Seller is entitled to retain all rights to insurance insurance, condemnation awards and other claims against third Persons Third Parties with respect to the Casualty Loss, casualty or taking except to the extent the Parties otherwise agree in writing.
; or (cii) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, to pay to Purchaser Buyer all sums paid to Sellers Seller by third Persons Third Parties by reason of such Casualty Loss casualty or taking to the extent (and only to the extent) attributable to the Conveyed Interests and shall assign, transfer and set over to Purchaser Buyer or subrogate Purchaser Buyer to all of Sellers’ Seller’s right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons Third Parties (other than Affiliates of excluding any SellerLiabilities, other than captive insurance Affiliatesclaims, and its and their directors, officers, employees and agentsof or against any Seller Indemnified Parties) arising out of such casualty or taking to the Casualty Lossextent (and only to the extent) attributable to the Conveyed Interests; provided, however, that Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, titles, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in pursuing or asserting any such insurance claims or other rights against Third Parties or in defending or asserting rights in such condemnation or eminent domain action with respect to the Conveyed Interests.
(c) Subject to Buyer’s rights arising under Section 10.4, if any action for condemnation or taking under right of eminent domain is pending or threatened with respect to any Conveyed Interest or portion thereof after the Effective Time, but no taking of such Conveyed Interest or portion thereof occurs prior to the Closing Date, Buyer shall nevertheless be required to close and Seller, at Closing, shall assign, transfer and set over to Buyer or subrogate Buyer to all of Seller’s right, title and interest (if any) in such condemnation or eminent domain action, including any future awards therein, to the extent (and only to the extent) attributable to the Conveyed Interests threatened to be taken, except that Seller shall reserve and retain (and Buyer shall assign to Seller) all rights, titles, interests and claims against Third Parties for the recovery of Seller’s costs and expenses incurred prior to the Closing in defending or asserting rights in such action with respect to the Conveyed Interests, to the extent that no such costs will be charged to Buyer.
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Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time, and the certificate to be delivered by each Seller pursuant to Section 12.4(e)if Closing occurs, Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to (i) production of Hydrocarbons from the Assets through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell due solely to normal depletion) and (ii) the depreciation of personal property due to ordinary wear and teartear and, in each case, Buyer shall not assert such matters as Casualty Losses or Title Defects hereunder.
(b) Subject to the provisions of Sections 10.5 If, from and 10.6, if, after the date of this Agreement Effective Time but prior to the Closing Date, any portion of the Assets is damaged or destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (a “Casualty Loss”), and the loss as a result of resulting losses from such Casualty Loss individually or Losses exceed $250,000 in the aggregate exceeds two percent aggregate, then, subject to Section 9.1(e) and the other provisions of this Agreement, (2%i) of the Purchase Price, Purchaser Buyer shall nevertheless be required to close, close the transactions contemplated by this Agreement and Sellers (ii) SM Energy shall elect, elect by written notice to Purchaser Buyer prior to Closing, Closing to either (iA) to cause the Assets cause, at SM Energy’s sole cost, each Asset affected by any such Casualty Loss Losses to be repaired repaired, restored or restored replaced (to at least their the condition or quality prior to the occurrence of the applicable event) prior to Closing or (B) reduce the Purchase Price by the cost to repair, restore or replace each Asset affected by such Casualty Losses to at least its condition prior to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date), casualty or (ii) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs to repair the Assets subject to any Casualty Losstaking. In each case, Sellers SM Energy shall retain all rights to insurance insurance, condemnation awards and other claims against third Persons parties with respect to the Casualty Loss, casualty or taking except to the extent the Parties otherwise agree in writing.
. SM Energy shall be deemed to have made the election under clause (cB) Ifabove with respect to each Asset affected by Casualty Losses if, after as of the date of this Agreement but Outside Termination Date or the Closing, as applicable, such Asset has not been repaired, restored or replaced (to at least the condition or quality prior to the Closing Date, any portion occurrence of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%applicable event) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty LossSM Energy’s sole cost.
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Casualty or Condemnation Loss. (a) Subject Notwithstanding anything herein to the further terms of this Agreementcontrary, including from and after the representations and warranties of Sellers made in Article 7Effective Time, and the certificate to be delivered by each Seller pursuant to Section 12.4(e)if Closing occurs, Purchaser Buyer shall assume all risk of loss with respect to, and any change in the condition of, the Assets from the Effective Time until Closing for to (i) production of Hydrocarbons from the Assets through normal depletion (including, but not limited to, the including watering out of any Wellwell, collapsed casing or sand infiltration of any Wellwell) and (ii) the depreciation of personal property due to ordinary wear and teartear and, in each case, Buyer shall not assert such matters as Casualty Losses or Title Defects hereunder.
(b) Subject to the provisions of Sections 10.5 If, from and 10.6, if, after the date of this Agreement Effective Time but prior to the Closing Date, any portion of the Assets is damaged or destroyed by fire or other casualty or is taken in condemnation or under right of eminent domain (a “Casualty Loss”), and the resulting loss as a result (net to the interest of SM Energy, the Company or its or their Affiliates in the assets damaged or destroyed) from such Casualty Loss individually or in exceeds $100,000 based on the aggregate exceeds two percent (2%) Allocated Value of the Purchase PriceAssets physically impacted by such Casualty Loss and not merely associated with the physically impacted Assets, Purchaser then (i) Buyer shall nevertheless be required to close, close the transactions contemplated by this Agreement and Sellers (ii) SM Energy shall elect, elect by written notice to Purchaser Buyer prior to Closing to either (A) cause, at SM Energy’s sole cost and as promptly as reasonably practicable prior to Closing, either (i) to cause the Assets each Asset affected by any such Casualty Loss to be repaired or restored to at least their its condition prior to such Casualty Loss, at Sellers’ sole cost, risk and expense, as promptly as reasonably practicable (which work may extend after the Closing Date)casualty or taking, or (iiB) to indemnify Purchaser in a manner reasonably acceptable to Purchaser against any costs, losses, or expenses that Purchaser reasonably incurs reduce the Purchase Price by the cost to repair the Assets subject or restore each Asset affected by such Casualty Loss to any Casualty Lossat least its condition prior to such casualty or taking. In each case, Sellers SM Energy shall retain all rights to insurance insurance, condemnation awards and other claims against third Persons Third Parties with respect to the Casualty Loss, casualty or taking except to the extent the Parties otherwise agree in writing.
(c) If, after the date of this Agreement but prior to the Closing Date, any portion of the Assets experiences a Casualty Loss, and the loss as a result of such Casualty Loss individually or in the aggregate is two percent (2%) or less of the Purchase Price, Purchaser shall nevertheless be required to close and Sellers shall, at Closing, pay to Purchaser all sums paid to Sellers by third Persons by reason of such Casualty Loss and shall assign, transfer and set over to Purchaser or subrogate Purchaser to all of Sellers’ right, title and interest (if any) in insurance claims, unpaid awards, and other rights against third Persons (other than Affiliates of any Seller, other than captive insurance Affiliates, and its and their directors, officers, employees and agents) arising out of the Casualty Loss.
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Samples: Membership Interest Purchase Agreement (SM Energy Co)
