Certain Purchase Price Adjustments. In the event that, as a part of ---------------------------------- the due diligence reviews provided for in Section 6 above, (i) Asserted Defects are presented to Seller and Seller is unable (or unwilling) to cure such Asserted Defects prior to the Defect Cure Date, (ii) in the event that Buyer has elected to treat an Oil and Gas Property affected by a casualty loss as if it was an Oil and Gas Property affected by an Asserted Defect, or (iii) should there be a NRI Increase, then: (a) Buyer and Seller shall, with respect to each Oil and Gas Property affected by such matters, attempt to agree upon an appropriate adjustment to the Purchase Price to account for such matters; and (b) with respect to each Oil and Gas Property as to which Buyer and Seller are unable to agree upon appropriate adjustment with respect to all such matters affecting such Oil and Gas Property, then: (i) If the Asserted Defect is a mortgage, lien, encumbrance or other charge which is undisputed and liquidated in amount, then (subject to the provisions of paragraph (iv) below) the adjustment shall be the amount necessary to be paid to remove the Asserted Defect from the affected Asset; (ii) If there shall be an Asserted Defect or NRI Increase which (a) represents a discrepancy between (1) the Net Revenue Interest to which Seller is entitled to receive from any Asset and (2) the Net Revenue Interest stated on Exhibit B, and (b) there is a Operating Interest change proportionate to the change in the Net Revenue Interest resulting from the Asserted Defect or NRI Increase, then the amount of the adjustment shall be the product of the value allocated to such Asset as set forth on Exhibit B (herein called the "Allocated Value") multiplied by a fraction, the numerator shall be the change in the Net Revenue Interest and the denominator of which shall be the Net Revenue Interest set forth on Exhibit B; (iii) If the Asserted Defect represents an obligation, encumbrance, burden, discrepancy or charge upon or other defect in title to the affected Asset of a type not described in paragraphs (i) or (ii) above, the adjustment amount shall be determined by taking into account the Allocated Value of the Asset so affected, the portion of the Asset affected by the Asserted Defect, the legal effect of the Asserted Defect, the potential economic effect of the Asserted Defect over the life of the affected Asset and such other factors as are necessary to make a proper evaluation of the value of the Asserted Defect; (iv) Notwithstanding any other provision contained herein, (a) the aggregate adjustment attributable to the effect of all Asserted Defects related to a given Asset shall not exceed the Allocated Value of such Property, provided that if the Asserted Defects exceed the Allocated Value of such Property, the Buyer may elect to exclude such Property and the Purchase Price will be reduced by the Allocated Value of the xxxxx on such Property; and (b) no adjustment shall be made with respect to an Asserted Defect if the diminution in the Allocated Value resulting therefrom will not exceed $1,000.00. (v) Should the parties be unable to agree upon an appropriate adjustment in light of the factors set forth above, then, subject to the final two sentences of this Section 7, Seller may elect to either (a) exclude such Oil and Gas Property from the transaction contemplated hereby, and the Purchase Price will be reduced by the Allocated Value of the xxxxx located on such Oil and Gas Property and the units in which such Oil and Gas Property participates; or (b) employ for the purpose of Closing, an average of the Seller's and Buyer's estimates of the value of the Asserted Defect, subject to final resolution in the context of the final accounting under the provisions of Section 13 hereof; or (c) indemnify and hold Buyer harmless from and against any actual damages or loss (but specifically excluding consequential, special or similar damages) Buyer may suffer as a result of a third-party claim based on such Asserted Defect. If the Purchase Price reduction which would result from the above provided for procedure does not exceed five percent (5%) of the Base Purchase Price, then the Purchase Price shall not be adjusted, and none of the Oil and Gas Properties which would be excluded by such procedure (except for those properties which Buyer, may, nevertheless, elect to have excluded notwithstanding the fact that no Purchase Price adjustment occurs) shall be excluded. If the Purchase Price increase which would result from the above provided for procedure exceeds five percent (5%) of the Base Purchase Price, the Purchase Price shall be adjusted by the amount by which such increase exceeds five percent (5%) of the Base Purchase Price.
Appears in 1 contract
Certain Purchase Price Adjustments. In (a) No later than two (2) Business Days prior to the event thatClosing Date, as Seller shall prepare and deliver to Purchaser a part certificate (the “Seller Certificate”) of ---------------------------------- the due diligence reviews provided for in Section 6 abovea duly authorized representative of Seller, setting forth its good faith estimate of (i) Asserted Defects are presented to Seller and Seller is unable the Net Working Capital (or unwilling) to cure such Asserted Defects prior to the Defect Cure Date“Estimated Net Working Capital”), (ii) in the event that Buyer has elected to treat an Oil and Gas Property affected by a casualty loss as if it was an Oil and Gas Property affected by an Asserted DefectCovered Expenditures (the “Estimated Covered Expenditure Amount”), or (iii) should there be a NRI Increasethe Closing Company Debt (the “Estimated Debt Amount”), then:
and (aiv) Buyer 0000 XXX Repair and Seller shall, with respect to each Oil Maintenance Expenditure Amount (the “Estimated 2012 YTD Repair and Gas Property affected by such matters, attempt to agree upon an appropriate adjustment to the Purchase Price to account for such matters; andMaintenance Expenditure Amount”).
(b) with respect to each Oil and Gas Property as to which Buyer and Seller are unable to agree upon appropriate adjustment with respect to all such matters affecting such Oil and Gas PropertyOn the Closing Date, thenthe Base Purchase Price shall:
(i) If (A) if the Asserted Defect is a mortgageEstimated Net Working Capital exceeds the Reference Net Working Capital, lien, encumbrance or other charge which is undisputed and liquidated in amount, then (subject be increased by an amount equal to the provisions amount of paragraph such excess, and (ivB) below) if the adjustment shall Reference Net Working Capital exceeds the Estimated Net Working Capital, be decreased by an amount equal to such excess (such increase or decrease, as the amount necessary case may be, being referred to be paid to remove herein as the Asserted Defect from the affected Asset“Estimated Net Working Capital Closing Adjustment”);
(ii) If there shall (A) if the Estimated Covered Expenditure Amount exceeds the Reference Covered Expenditure Amount, be increased by an Asserted Defect or NRI Increase which (a) represents a discrepancy between (1) amount equal to the Net Revenue Interest to which Seller is entitled to receive from any Asset and (2) the Net Revenue Interest stated on Exhibit Bamount of such excess, and (bB) there is a Operating Interest change proportionate if the Reference Covered Expenditure Amount exceeds the Estimated Covered Expenditure Amount, be decreased by an amount equal to such excess (such increase or decrease, as the change in case may be, being referred to herein as the Net Revenue Interest resulting from “Estimated Covered Expenditure Closing Adjustment”); and
(iii) (A) if the Asserted Defect or NRI IncreaseEstimated 0000 XXX Repair and Maintenance Expenditure Amount exceeds the Reference 0000 XXX Repair and Maintenance Expenditure Amount, then be increased by an amount equal to the amount of such excess, and (B) if the adjustment Reference 0000 XXX Repair and Maintenance Expenditure Amount exceeds the Estimated 2012 YTD Repair and Maintenance Expenditure Amount, be decreased by an amount equal to such excess (such increase or decrease, as the case may be, being referred to herein as the “Estimated 2012 YTD Repair and Maintenance Expenditure Closing Adjustment”).
(c) Within seventy-five (75) days following the Closing Date, Purchaser shall be prepare and deliver to Seller the product following (collectively, the “Preliminary Statement”):
(i) an unaudited consolidated balance sheet of the value allocated Company as of 11:59 p.m., Eastern Standard Time, on the day immediately prior to such Asset as the Closing Date (the “Preliminary Closing Balance Sheet”), prepared by Purchaser in good faith in accordance with the terms set forth on Exhibit B in Section 2.5;
(herein called the "Allocated Value"ii) multiplied a calculation by a fraction, the numerator shall be the change in Purchaser of the Net Revenue Interest Working Capital based on the Preliminary Closing Balance Sheet and determined in good faith in accordance with the denominator of which shall be the Net Revenue Interest terms set forth on Exhibit Bin Section 2.5 (the “Preliminary Net Working Capital”);
(iii) If the Asserted Defect represents an obligation, encumbrance, burden, discrepancy or charge upon or other defect in title to the affected Asset of a type not described in paragraphs (i) or (ii) above, the adjustment amount shall be determined calculation by taking into account the Allocated Value Purchaser of the Asset so affected, Covered Expenditures determined in good faith in accordance with the portion of terms set forth in Section 2.5 (the Asset affected by the Asserted Defect, the legal effect of the Asserted Defect, the potential economic effect of the Asserted Defect over the life of the affected Asset and such other factors as are necessary to make a proper evaluation of the value of the Asserted Defect“Preliminary Covered Expenditure Amount”);
(iv) Notwithstanding any other provision contained herein, (a) the aggregate adjustment attributable to the effect of all Asserted Defects related to a given Asset shall not exceed the Allocated Value of such Property, provided that if the Asserted Defects exceed the Allocated Value of such Property, the Buyer may elect to exclude such Property and the Purchase Price will be reduced calculation by the Allocated Value Purchaser of the xxxxx Closing Company Debt based on such Property; the Preliminary Closing Balance Sheet and determined in good faith in accordance with the terms set forth in Section 2.5 (b) no adjustment shall be made with respect to an Asserted Defect if the diminution in the Allocated Value resulting therefrom will not exceed $1,000.00.“Preliminary Debt Amount”);
(v) Should the parties be unable to agree upon an appropriate adjustment in light a calculation by Purchaser of the factors 0000 XXX Repair and Maintenance Expenditure Amount determined in good faith in accordance with the terms set forth above, then, subject in Section 2.5 (the “Preliminary 2012 YTD Repair and Maintenance Expenditure Amount”).
(d) Seller shall have thirty (30) days following receipt of the Preliminary Statement to review the final two sentences of this Section 7, Seller may elect to either (a) exclude such Oil and Gas Property from the transaction contemplated hereby, Preliminary Closing Balance Sheet and the Purchase Price will be reduced by the Allocated Value calculations of the xxxxx located on such Oil and Gas Property Preliminary Net Working Capital, the Preliminary Covered Expenditure Amount, the Preliminary Debt Amount and the units in which such Oil Preliminary 2012 YTD Repair and Gas Property participates; or Maintenance Expenditure Amount (b) employ for the purpose of Closingcollectively, an average of the Seller's and Buyer's estimates of the value of the Asserted Defect, subject to final resolution in the context of the final accounting under the provisions of Section 13 hereof; or (c) indemnify and hold Buyer harmless from and against any actual damages or loss (but specifically excluding consequential, special or similar damages) Buyer may suffer as a result of a third-party claim based on such Asserted Defect. If the Purchase Price reduction which would result from the above provided for procedure does not exceed five percent (5%) of the Base Purchase Price, then the Purchase Price shall not be adjusted, and none of the Oil and Gas Properties which would be excluded by such procedure (except for those properties which Buyer, may, nevertheless, elect to have excluded notwithstanding the fact that no Purchase Price adjustment occurs) shall be excluded. If the Purchase Price increase which would result from the above provided for procedure exceeds five percent (5%) of the Base Purchase Price, the Purchase Price shall be adjusted by the amount by which such increase exceeds five percent (5%) of the Base Purchase Price.the
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (United Maritime Group, LLC)
Certain Purchase Price Adjustments. In the event that, as a part of ---------------------------------- (a) If in connection with the due ------------------------------------- diligence reviews provided for in review under Section 6 above, (i) either: Asserted Defects are presented to Seller and Seller is unable (or unwilling) unwilling to cure such Asserted Defects prior to the Defect Cure DateClosing, (ii) in the event that Buyer has elected to treat an Oil and Gas Property affected by a casualty loss as if it was an Oil and Gas Property affected by an Asserted Defect, or (iii) should there be a an NRI IncreaseIncrease occurs, then:
(ai) Buyer and Seller shall, with respect to each Oil and Gas Property affected by such matters, attempt to agree upon an appropriate adjustment to the Purchase Price to account for such matters; and
(bii) with With respect to each Oil and Gas Property as to which Buyer and Seller are unable to agree upon appropriate adjustment with respect to all such matters affecting such Oil and Gas Property, then:
(iA) If the Asserted Defect is a mortgage, deed of trust, lien, encumbrance or other charge which is undisputed and liquidated in amount, then (subject to the provisions of paragraph (iv) below) the adjustment shall be the amount necessary to be paid to remove the Asserted Defect from the affected Asset;
(iiB) If there shall be is: (I) an Asserted Defect or NRI Increase which (a) that represents a discrepancy between (1) the Net Revenue Interest to which that Seller is entitled to receive from any Asset and (2) the Net Revenue Interest stated on Exhibit B, and (bII) there is a an Operating Interest change proportionate to the change in the Net Revenue Interest resulting from the Asserted Defect or NRI Increase, then the amount of the adjustment shall be the product of the value allocated to such Asset as set forth on Exhibit B (herein called the "Allocated Value") multiplied by a fraction, the numerator of which shall be the change in the Net Revenue Interest and the denominator of which shall be the Net Revenue Interest set forth on Exhibit B;
(iiiC) If the Asserted Defect represents an obligation, encumbrance, burden, discrepancy or charge upon or other defect in title to the affected Asset of a type not described in paragraphs subsections (iA) or (ii) aboveB), the adjustment amount shall be determined by taking into account the Allocated Value of the Asset so affected, the portion of the Asset affected by the Asserted Defect, the legal effect of the Asserted Defect, the potential economic effect of the Asserted Defect over the life of the affected Asset and such other factors as are necessary to make a proper evaluation of the value of the Asserted Defect;
(ivD) Notwithstanding any other provision contained herein, : (aI) the aggregate adjustment reduction attributable to the effect of all Asserted Defects related to a given Asset shall not exceed the Allocated Value of such Property, provided that if Asset unless the Asserted Defects exceed Defect is of the nature described in subsections (A) or (C), in which event the reduction shall be of the nature described in subsections
(A) or (C), even if it exceeds the Allocated Value of such Property, the Buyer may elect to exclude such Property and the Purchase Price will be reduced by the Allocated Value of the xxxxx on such PropertyAsset; and (bII) no adjustment reduction shall be made with respect to an Asserted Defect if the diminution in the Allocated Value regarding such Asset resulting therefrom regarding said asset will not exceed One Thousand Dollars ($1,000.00.); and
(vE) Should If the parties be unable to cannot agree upon an appropriate adjustment in light of the factors set forth above, then, subject to the final two sentences of this Section 7subsection (b)(ii), Seller may elect to either (a) exclude such Oil and Gas Property from the transaction contemplated hereby, and the Purchase Price will be reduced by the Allocated Value of the xxxxx located on such Oil and Gas Property and the units in which such Oil and Gas Property participates; or .
(bi) employ for the purpose of Closing, an average of the Seller's and Buyer's estimates of the value of the Asserted Defect, subject to final resolution in the context of the final accounting under the provisions of Section 13 hereof; or (c) indemnify and hold Buyer harmless from and against any actual damages or loss (but specifically excluding consequential, special or similar damages) Buyer may suffer as a result of a third-party claim based on such Asserted Defect. If the aggregate Purchase Price reduction which would result from the above provided for procedure under subsection (a) does not exceed five percent One Hundred Thousand Dollars (5%) of the Base Purchase Price$100,000), then the Purchase Price shall not be adjusted, and none of the Oil and Gas Properties which would be excluded by such procedure (except for those properties which Buyer, may, nevertheless, elect to have excluded notwithstanding the fact that no Purchase Price adjustment occurs) shall be excluded.
(ii) If the aggregate Purchase Price reduction exceeds $100,000, the Purchase Price shall be adjusted by the total amount of such reduction. If the Purchase Price increase which would result from the above provided for procedure under subsection (a) exceeds five percent (5%) of the Base Purchase Price$100,000, the Purchase Price shall be adjusted by the total amount by which of such increase increase.
(c) If the aggregate amount of all Purchase Price reductions under this Agreement, regardless of the reason for such reductions, exceeds five ten percent (510%) of the Base Purchase Price, either party may terminate this Agreement by giving notice to the other party within ten (10) days of the date it was determined that the Purchase Price would exceed said 10%, in which event this Agreement shall terminate and the Deposit shall be returned to Buyer. Upon such termination, the parties shall have no further obligations to one another hereunder (other than the indemnification obligations under Sections 3(a)(vi) and 6(b), and the obligations under Sections 11(c), 15 and 20 - 27, which will survive such termination).
Appears in 1 contract
Samples: Purchase and Sale Agreement (St Mary Land & Exploration Co)
Certain Purchase Price Adjustments. In the event that, as a part of ---------------------------------- (a) If in connection with the due diligence reviews provided for in review under Section 6 above, (i) either: Asserted Defects are presented to Seller and Seller is unable (or unwilling) unwilling to cure such Asserted Defects prior to the Defect Cure DateClosing, (ii) in the event that Buyer has elected to treat an Oil and Gas Property affected by a casualty loss as if it was an Oil and Gas Property affected by an Asserted Defect, or (iii) should there be a an NRI IncreaseIncrease occurs, then:
(ai) Buyer and Seller shall, with respect to each Oil and Gas Property affected by such matters, attempt to agree upon an appropriate adjustment to the Purchase Price to account for such matters; and
(bii) with With respect to each Oil and Gas Property as to which Buyer and Seller are unable to agree upon appropriate adjustment with respect to all such matters affecting such Oil and Gas Property, then:
(iA) If the Asserted Defect is a mortgage, deed of trust, lien, encumbrance or other charge which is undisputed and liquidated in amount, then (subject to the provisions of paragraph (iv) below) the adjustment shall be the amount necessary to be paid to remove the Asserted Defect from the affected Asset;
(iiB) If there shall be is: (I) an Asserted Defect or NRI Increase which (a) that represents a discrepancy between (1) the Net Revenue Interest to which that Seller is entitled to receive from any Asset and (2) the Net Revenue Interest stated on Exhibit B, and (bII) there is a an Operating Interest change proportionate to the change in the Net Revenue Interest resulting from the Asserted Defect or NRI Increase, then the amount of the adjustment shall be the product of the value allocated to such Asset as set forth on Exhibit B (herein called the "Allocated Value") multiplied by a fraction, the numerator of which shall be the change in the Net Revenue Interest and the denominator of which shall be the Net Revenue Interest set forth on Exhibit B;
(iiiC) If the Asserted Defect represents an obligation, encumbrance, burden, discrepancy or charge upon or other defect in title to the affected Asset of a type not described in paragraphs subsections (iA) or (ii) aboveB), the adjustment amount shall be determined by taking into account the Allocated Value of the Asset so affected, the portion of the Asset affected by the Asserted Defect, the legal effect of the Asserted Defect, the potential economic effect of the Asserted Defect over the life of the affected Asset and such other factors as are necessary to make a proper evaluation of the value of the Asserted Defect;
(ivD) Notwithstanding any other provision contained herein, : (aI) the aggregate adjustment reduction attributable to the effect of all Asserted Defects related to a given Asset shall not exceed the Allocated Value of such Property, provided that if Asset unless the Asserted Defects exceed Defect is of the nature described in subsections (A) or (C), in which event the reduction shall be of the nature described in subsections (A) or (C), even if it exceeds the Allocated Value of such Property, the Buyer may elect to exclude such Property and the Purchase Price will be reduced by the Allocated Value of the xxxxx on such PropertyAsset; and (bII) no adjustment reduction shall be made with respect to an Asserted Defect if the diminution in the Allocated Value regarding such Asset resulting therefrom regarding said asset will not exceed One Thousand Dollars ($1,000.00.); and
(vE) Should If the parties be unable to cannot agree upon an appropriate adjustment in light of the factors set forth above, then, subject to the final two sentences of this Section 7subsection (b)(ii), Seller may elect to either (a) exclude such Oil and Gas Property from the transaction contemplated hereby, and the Purchase Price will be reduced by the Allocated Value of the xxxxx located on such Oil and Gas Property and the units in which such Oil and Gas Property participates; or .
(bi) employ for the purpose of Closing, an average of the Seller's and Buyer's estimates of the value of the Asserted Defect, subject to final resolution in the context of the final accounting under the provisions of Section 13 hereof; or (c) indemnify and hold Buyer harmless from and against any actual damages or loss (but specifically excluding consequential, special or similar damages) Buyer may suffer as a result of a third-party claim based on such Asserted Defect. If the aggregate Purchase Price reduction which would result from the above provided for procedure under subsection (a) does not exceed five percent One Hundred Thousand Dollars (5%) of the Base Purchase Price$100,000), then the Purchase Price shall not be adjusted, and none of the Oil and Gas Properties which would be excluded by such procedure (except for those properties which Buyer, may, nevertheless, elect to have excluded notwithstanding the fact that no Purchase Price adjustment occurs) shall be excluded.
(ii) If the aggregate Purchase Price reduction exceeds $100,000, the Purchase Price shall be adjusted by the total amount of such reduction. If the Purchase Price increase which would result from the above provided for procedure under subsection (a) exceeds five percent (5%) of the Base Purchase Price$100,000, the Purchase Price shall be adjusted by the total amount by which of such increase increase.
(c) If the aggregate amount of all Purchase Price reductions under this Agreement, regardless of the reason for such reductions, exceeds five ten percent (510%) of the Base Purchase Price, either party may terminate this Agreement by giving notice to the other party within ten (10) days of the date it was determined that the Purchase Price would exceed said 10%, in which event this Agreement shall terminate and the Deposit shall be returned to Buyer. Upon such termination, the parties shall have no further obligations to one another hereunder (other than the indemnification obligations under Sections 3(a)(vi) and 6(b), and the obligations under Sections 11(c), 15 and 20 - 27, which will survive such termination).
Appears in 1 contract
Certain Purchase Price Adjustments. In The original unadjusted Purchase Price of ONE HUNDRED TWENTY-SIX MILLION DOLLARS ($126,000,000.00), which was increased to ONE HUNDRED TWENTY NINE MILLION DOLLARS ($129,000,000.00) when the event thatBuyer paid the Option Payment to CELLC, as a part for the benefit of ---------------------------------- all of the due diligence reviews provided for in Section 6 aboveSellers, (i) Asserted Defects are presented to Seller and Seller is unable (or unwilling) to cure such Asserted Defects prior pursuant to the Defect Cure DateBuyer’s exercise of the Buyer Option, is hereby reduced to NINETY-ONE MILLION, FIVE HUNDRED THOUSAND DOLLARS (ii) $91,500,000.00). All references to the unadjusted Purchase Price in the event that Buyer has elected Agreement are deemed amended to treat an Oil and Gas Property affected by a casualty loss as if it was an Oil and Gas Property affected by an Asserted Defect, or (iii) should there be a NRI Increase, then:
(a) Buyer and Seller shall, with respect refer to each Oil and Gas Property affected by such matters, attempt to agree upon an appropriate adjustment reduced amount. Such reduced Purchase Price is inclusive of all final downward adjustments to the Purchase Price to account for such mattersin respect of any and all Title Defects, Environmental Defects, and Lease Expiration Defects; and
(b) with respect to each Oil and Gas Property as to which Buyer and Seller are unable to agree upon appropriate adjustment with respect to all such matters affecting such Oil and Gas Property, then:
(i) If notwithstanding anything in the Asserted Defect is a mortgage, lien, encumbrance or other charge which is undisputed and liquidated in amount, then (subject Agreement to the provisions of paragraph (iv) below) the adjustment shall be the amount necessary to be paid to remove the Asserted Defect from the affected Asset;
(ii) If there shall be an Asserted Defect or NRI Increase which contrary, (a) represents a discrepancy between (1) the Net Revenue Interest Buyer will not be entitled to, and hereby unconditionally waives, any further adjustments to which Seller is entitled to receive from any Asset the Purchase Price in respect of Title Defects, Environmental Defects, and (2) the Net Revenue Interest stated on Exhibit BLease Expiration Defects, and (b) there is a Operating Interest change proportionate the Sellers will not be entitled to, and each of them hereby unconditionally waives, any further adjustments to the change Purchase Price in respect of Title Benefits. Notwithstanding the Net Revenue Interest resulting from the Asserted Defect or NRI Increaseforegoing, then the amount of the adjustment shall be the product of the value allocated to such Asset as set forth on Exhibit B (herein called the "Allocated Value") multiplied by a fraction, the numerator shall be the change in the Net Revenue Interest and the denominator of which shall be the Net Revenue Interest set forth on Exhibit B;
(iii) If the Asserted Defect represents an obligation, encumbrance, burden, discrepancy or charge upon or other defect in title to the affected Asset of a type not described in paragraphs (i) or (ii) above, the adjustment amount shall be determined by taking into account the Allocated Value of the Asset so affected, the portion of the Asset affected by the Asserted Defect, the legal effect of the Asserted Defect, the potential economic effect of the Asserted Defect over the life of the affected Asset and such other factors as are necessary to make a proper evaluation of the value of the Asserted Defect;
(iv) Notwithstanding any other provision contained herein, (a) the aggregate adjustment attributable to the effect of all Asserted Defects related to a given Asset shall not exceed the Allocated Value of such Property, provided that if the Asserted Defects exceed the Allocated Value of such Property, the Buyer may elect to exclude such Property and the Purchase Price will be reduced subject to further adjustment (i) in respect of all payments made on or prior to the Closing Date by the Allocated Value or on behalf of the xxxxx on such Property; Sellers to cure Lease Expiration Defects and (bii) no adjustment shall any further adjustments to be made with respect at and after the Closing pursuant to an Asserted Defect if the diminution in the Allocated Value resulting therefrom will not exceed $1,000.00.
(v) Should the parties be unable to agree upon an appropriate adjustment in light terms of the factors set forth above, then, Agreement (subject to the final two sentences foregoing provisions of this Section 7, Seller may elect to either (a) exclude such Oil and Gas Property from the transaction contemplated hereby, and the Purchase Price will be reduced by the Allocated Value of the xxxxx located on such Oil and Gas Property and the units in which such Oil and Gas Property participates; or (b) employ for the purpose of Closing, an average of the Seller's and Buyer's estimates of the value of the Asserted Defect, subject to final resolution in the context of the final accounting under the provisions of Section 13 hereof; or (c) indemnify and hold Buyer harmless from and against any actual damages or loss (but specifically excluding consequential, special or similar damages) Buyer may suffer as a result of a third-party claim based on such Asserted Defect. If the Purchase Price reduction which would result from the above provided for procedure does not exceed five percent (5%) of the Base Purchase Price, then the Purchase Price shall not be adjusted, and none of the Oil and Gas Properties which would be excluded by such procedure (except for those properties which Buyer, may, nevertheless, elect to have excluded notwithstanding the fact that no Purchase Price adjustment occurs) shall be excluded. If the Purchase Price increase which would result from the above provided for procedure exceeds five percent (5%) of the Base Purchase Price, the Purchase Price shall be adjusted by the amount by which such increase exceeds five percent (5%) of the Base Purchase Price2).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Energy & Exploration Partners, Inc.)
Certain Purchase Price Adjustments. In the event that, as a part of ---------------------------------- the due diligence reviews provided for in Section 6 above, (i) Asserted Defects are presented to Seller and Seller is unable (or unwilling) to cure such Asserted Defects prior to the Defect Cure Date, (ii) in the event that Buyer has elected to treat an Oil and Gas Property affected by a casualty loss as if it was an Oil and Gas Property affected by an Asserted Defect, or (iii) should there be a NRI Increase, then:
(a) Buyer and Seller shall, with respect to each Oil and Gas Property affected by such matters, attempt to agree upon an appropriate adjustment to the Purchase Price to account for such matters; and
(b) with respect to each Oil and Gas Property as to which Buyer and Seller are unable to agree upon appropriate adjustment with respect to all such matters affecting such Oil and Gas Property, then:
(i) If the Asserted Defect is a mortgage, lien, encumbrance or other charge which is undisputed and liquidated in amount, then (subject to the provisions of paragraph (iv) below) the adjustment shall be the amount necessary to be paid to remove the Asserted Defect from the affected Asset;
(ii) If there shall be an Asserted Defect or NRI Increase which (a) represents a discrepancy between (1) the Net Revenue Interest to which Seller is entitled to receive from any Asset and (2) the Net Revenue Interest stated on Exhibit B, and (b) there is a Operating Interest change proportionate to the change in the Net Revenue Interest resulting from the Asserted Defect or NRI Increase, then the amount of the adjustment shall be the product of the value allocated to such Asset as set forth on Exhibit B (herein called the "Allocated ValueALLOCATED VALUE") multiplied by a fraction, the numerator shall be the change in the Net Revenue Interest and the denominator of which shall be the Net Revenue Interest set forth on Exhibit B;
(iii) If the Asserted Defect represents an obligation, encumbrance, burden, discrepancy or charge upon or other defect in title to the affected Asset of a type not described in paragraphs (i) or (ii) above, the adjustment amount shall be determined by taking into account the Allocated Value of the Asset so affected, the portion of the Asset affected by the Asserted Defect, the legal effect of the Asserted Defect, the potential economic effect of the Asserted Defect over the life of the affected Asset and such other factors as are necessary to make a proper evaluation of the value of the Asserted Defect;
(iv) Notwithstanding any other provision contained herein, (a) the aggregate adjustment attributable to the effect of all Asserted Defects related to a given Asset shall not exceed the Allocated Value of such Property, provided that if the Asserted Defects exceed the Allocated Value of such Property, the Buyer may elect to exclude such Property and the Purchase Price will be reduced by the Allocated Value of the xxxxx on such Property; and (b) no adjustment shall be made with respect to an Asserted Defect if the diminution in the Allocated Value resulting therefrom will not exceed $1,000.00.
(v) Should the parties be unable to agree upon an appropriate adjustment in light of the factors set forth above, then, subject to the final two sentences of this Section 7, Seller may elect to either (a) exclude such Oil and Gas Property from the transaction contemplated hereby, and the Purchase Price will be reduced by the Allocated Value of the xxxxx located on such Oil and Gas Property and the units in which such Oil and Gas Property participates; or (b) employ for the purpose of Closing, an average of the Seller's and Buyer's estimates of the value of the Asserted Defect, subject to final resolution in the context of the final accounting under the provisions of Section 13 hereof; or (c) indemnify and hold Buyer harmless from and against any actual damages or loss (but specifically excluding consequential, special or similar damages) Buyer may suffer as a result of a third-party claim based on such Asserted Defect. If the Purchase Price reduction which would result from the above provided for procedure does not exceed five percent (5%) of the Base Purchase Price, then the Purchase Price shall not be adjusted, and none of the Oil and Gas Properties which would be excluded by such procedure (except for those properties which Buyer, may, nevertheless, elect to have excluded notwithstanding the fact that no Purchase Price adjustment occurs) shall be excluded. If the Purchase Price increase which would result from the above provided for procedure exceeds five percent (5%) of the Base Purchase Price, the Purchase Price shall be adjusted by the amount by which such increase exceeds five percent (5%) of the Base Purchase Price.
Appears in 1 contract
Certain Purchase Price Adjustments. In the event that, as a part of ---------------------------------- the due diligence reviews provided for in Section 6 above, (i) Asserted Defects are presented to Seller and Seller is unable (or unwilling) to cure such Asserted Defects prior to the Defect Cure Date, (ii) in the event that Buyer has elected to treat an Oil and Gas Property affected by a casualty loss as if it was an Oil and Gas Property affected by an Asserted Defect, or (iii) should there be a NRI Increase, then:
(a) Buyer and Seller shall, with respect to each Oil and Gas Property affected by such matters, attempt to agree upon an appropriate adjustment to the Purchase Price to account for such matters; and
(b) with respect to each Oil and Gas Property as to which Buyer and Seller are unable to agree upon appropriate adjustment with respect to all such matters affecting such Oil and Gas Property, then:
(i) If the Asserted Defect is Trust shall at any time after the date of this Agreement (A) pay a mortgagedividend on the Preferred Shares payable in Preferred Shares, lien(B) subdivide the outstanding Preferred Shares into a greater number of shares, encumbrance (C) combine the outstanding Preferred Shares into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger involving the Trust), the Purchase Price in effect immediately prior to the record date for such dividend or the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or other charge which is undisputed capital stock issuable on such date shall be proportionately adjusted so that each holder of a Right shall (except as otherwise provided herein, including Section 7(d)) thereafter be entitled to receive, upon exercise thereof at the Purchase Price in effect immediately prior to such date, the aggregate number and liquidated in amountkind of Preferred Shares or other shares of beneficial interest, then (subject as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the provisions applicable transfer books of paragraph (ivthe Trust were open, such holder would have been entitled to receive upon such exercise and by virtue of such dividend, subdivision, combination or reclassification. If an event occurs that requires an adjustment under both this Section 11(a)(i) below) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be the amount necessary in addition to, and shall be made prior to, any adjustment required pursuant to be paid to remove the Asserted Defect from the affected Asset;Section 11(a)(ii).
(ii) If there At any time after the date of this Agreement, upon any Person, alone or together with its Affiliates and Associates, becoming an Acquiring Person (a “Section 11(a)(ii) Event”), subject to Section 24 hereof, proper provision shall promptly be an Asserted Defect or NRI Increase which made so that each holder of a Right shall (aexcept as otherwise provided herein, including Section 7(d)) represents a discrepancy between (1) the Net Revenue Interest to which Seller is thereafter be entitled to receive from any Asset and (2) the Net Revenue Interest stated on Exhibit Breceive, and (b) there is a Operating Interest change proportionate to the change in the Net Revenue Interest resulting from the Asserted Defect or NRI Increase, then the amount of the adjustment shall be the product of the value allocated to such Asset as set forth on Exhibit B (herein called the "Allocated Value") multiplied by a fraction, the numerator shall be the change in the Net Revenue Interest and the denominator of which shall be the Net Revenue Interest set forth on Exhibit B;
(iii) If the Asserted Defect represents an obligation, encumbrance, burden, discrepancy or charge upon or other defect in title to the affected Asset of a type not described in paragraphs (i) or (ii) above, the adjustment amount shall be determined by taking into account the Allocated Value of the Asset so affected, the portion of the Asset affected by the Asserted Defect, the legal effect of the Asserted Defect, the potential economic effect of the Asserted Defect over the life of the affected Asset and such other factors as are necessary to make a proper evaluation of the value of the Asserted Defect;
(iv) Notwithstanding any other provision contained herein, (a) the aggregate adjustment attributable to the effect of all Asserted Defects related to a given Asset shall not exceed the Allocated Value of such Property, provided that if the Asserted Defects exceed the Allocated Value of such Property, the Buyer may elect to exclude such Property and exercise thereof at the Purchase Price will be reduced by in effect immediately prior to the Allocated Value first occurrence of a Section 11(a)(ii) Event, in lieu of Preferred Shares, such number of duly authorized, validly issued, fully paid and nonassessable Common Shares of the xxxxx on Trust (such Property; and (bshares being referred to herein as the “Adjustment Shares”) no adjustment as shall be made with respect to an Asserted Defect if the diminution in the Allocated Value resulting therefrom will not exceed $1,000.00.
(v) Should the parties be unable to agree upon an appropriate adjustment in light of the factors set forth above, then, subject equal to the final two sentences of this Section 7, Seller may elect to either (a) exclude such Oil and Gas Property from the transaction contemplated hereby, and the Purchase Price will be reduced result obtained by the Allocated Value of the xxxxx located on such Oil and Gas Property and the units in which such Oil and Gas Property participates; or (b) employ for the purpose of Closing, an average of the Seller's and Buyer's estimates of the value of the Asserted Defect, subject to final resolution in the context of the final accounting under the provisions of Section 13 hereof; or (c) indemnify and hold Buyer harmless from and against any actual damages or loss (but specifically excluding consequential, special or similar damages) Buyer may suffer as a result of a third-party claim based on such Asserted Defect. If the Purchase Price reduction which would result from the above provided for procedure does not exceed five percent (5%) of the Base Purchase Price, then the Purchase Price shall not be adjusted, and none of the Oil and Gas Properties which would be excluded by such procedure (except for those properties which Buyer, may, nevertheless, elect to have excluded notwithstanding the fact that no Purchase Price adjustment occurs) shall be excluded. If the Purchase Price increase which would result from the above provided for procedure exceeds five percent (5%) of the Base Purchase Price, the Purchase Price shall be adjusted by the amount by which such increase exceeds five percent (5%) of the Base Purchase Price.dividing:
Appears in 1 contract
Samples: Rights Agreement (Ramco Gershenson Properties Trust)
