Exclusive Remedy and Certain Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, from and after Closing, Purchaser’s and Purchaser Group’s sole exclusive remedy against any member of the Seller Group with respect to the negotiation, performance, and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants, and agreements of any member of the Seller Group contained herein, the affirmations of such representations, warranties, covenants, and agreements contained in the certificates delivered by any member of the Seller Group at Closing pursuant to Section 8.2(g) or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group are the rights set forth in Section 11.3, as limited by the terms of this Article 11. Except for the remedies contained in this Article 11, upon Closing, Purchaser waives, releases, remises, and forever discharges, and shall cause each member of the Purchaser Group to waive, release, remise, and forever discharge, each member of the Seller Group from any and all Damages, suits, legal or administrative proceedings, claims, demands, losses, costs, obligations, liabilities, interest, charges, or causes of action whatsoever, in law or in equity, known or unknown, which any member of the Purchaser Group might now or subsequently may have, based on, relating to, or arising out of the negotiation, performance, and consummation of this Agreement or the transactions contemplated hereunder or any member of the Seller Group’s ownership, use or operation of the Assets and Subject Securities, or the condition, quality, status, or nature of the Assets or Subject Securities, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF THE SELLER GROUP, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEE, OR THIRD PARTY. Without limiting the generality of the immediately preceding sentence, Purchaser agrees, and shall cause each member of the Purchaser Group to agree, that from and after Closing the sole and exclusive remedies of the Purchaser Group with respect to any member of the Seller Group’s breach of representations, warranties, covenants, and agreements herein or in the other Transaction Document shall be the rights to indemnity under Section 11.3, as limited by the terms of this Article 11. No Party or Person is asserting the accuracy, completeness, or truth of any representation and warranty set forth in this Agreement; rather the Parties have agreed that should any representation or warranty of any Party prove inaccurate, incomplete, or untrue, the other Party shall have the specific rights and remedies herein specified as the exclusive remedy therefor, but that no other rights, remedies, or causes of action (whether in law or in equity or whether in contract or in tort or otherwise) are permitted to any Party hereto as a result of the failure, breach, inaccuracy, incompleteness, or untruth of any such representation and warranty. (b) Any claim for indemnity under this Article 11 by any current or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, and consultant of any Party must be brought and administered by the applicable Party to this Agreement. No Indemnified Person other than Sellers and Purchaser shall have any rights against Sellers or Purchaser under the terms of this Article 11 except as may be exercised on its behalf by Purchaser or Sellers, as applicable, pursuant to this Article 11. Sellers and Purchaser may elect to exercise or not exercise indemnification rights under this Section on behalf of the other Indemnified Persons affiliated with it in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this Section. (c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of any member of the Seller Group or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related thereto. (d) The amount of any Damages for which Purchaser or any member of the Purchaser Group is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance or other Third Party proceeds, reimbursements, or claims realized or that could reasonably be expected to be realized by Purchaser or applicable members of the Purchaser Group if a claim were properly pursued under the relevant insurance arrangements with respect to such Damages. Purchaser shall use commercially reasonable efforts to pursue and prosecute any and all claims against Third Parties for which Purchaser or any member of the Purchaser Group is entitled to indemnity from Sellers under this Article 11. In the event that any member of the Purchaser Group receives funds or proceeds from any insurance carrier or any other Third Party with respect to any Damages, Purchaser shall, regardless of when received by such member of the Purchaser Group, promptly pay to the Sellers such funds or proceeds to the extent of any funds previously paid by Sellers or any of its Affiliates with respect to such Damages. (e) Subject to the terms hereof, each Indemnified Person shall use commercially reasonable efforts to mitigate or minimize all Damages upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If an Indemnified Person fails to so mitigate any indemnifiable Damages under the preceding sentence, such Indemnified Person shall have no right to indemnity hereunder with respect to such Damages and the Indemnifying Party shall have no liability for any portion of such Damages that reasonably could have been avoided, reduced, or mitigated had the Indemnified Person made such reasonable efforts. (f) The Parties shall treat, for U.S. federal and applicable state and local income tax purposes, any amounts paid or received under this Article 11 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws. (g) To the extent of the indemnification obligations in this Agreement, Purchaser and Sellers hereby waive for themselves and their respective successors and assigns, including any insurers, any rights to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person under this Agreement. If required by applicable insurance policies, each Party shall obtain a waiver of such subrogation from its insurers. (h) Notwithstanding anything herein or in any Transaction Document to the contrary, the obligations and the rights of the Parties hereunder, and the amount of any Damages for which any Party is obligated to indemnify, or any member of the Seller Group or any member of the Purchaser Group, as applicable, is entitled to indemnity under Section 11.2 or Section 11.3 as applicable, shall be calculated by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of Sellers or Purchaser; provided, however, this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warranties.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Black Stone Minerals, L.P.)
Exclusive Remedy and Certain Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, from and after Closing, Purchaser’s and Purchaser Group’s sole and exclusive remedy against any member of the Seller Group Group, and Seller’s and Seller Group’s sole and exclusive remedy against any member of the Purchaser Group, in each case, with respect to (i) the negotiation, performance, performance and consummation of the transactions contemplated hereunder, (ii) any breach of the representations, warranties, covenants, covenants and agreements of any member of the Seller Group or Purchaser Group, as applicable, contained herein, or (iii) the affirmations of such representations, warranties, covenants, covenants and agreements contained in the certificates delivered by any member of the Seller Group at Closing pursuant to Section 8.2(g10.2(g) or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group Purchaser at Closing pursuant to Section 10.3(f), as applicable, are (A) the rights set forth in Section 11.2 or Section 11.3, as limited by the other terms of this Article 11, (B) the right to specific performance for the breach or failure of the other Party to perform any covenants required to be performed after Closing and (C) for Purchaser, the special warranty of Defensible Title in the Conveyances. Except for the remedies contained in this Article 11, and, for Purchaser, the special warranty of Defensible Title in the Conveyances, upon Closing, Purchaser and Seller each waives, releases, remises, remises and forever discharges, and shall cause each member of the Purchaser Group and Seller Group, as applicable, to waive, release, remise, remise and forever discharge, each member of the Seller Group or Purchaser Group, as applicable, from any and all Damages, suits, legal or administrative proceedings, claims, demands, losses, costs, obligations, liabilities, interest, charges, charges or causes of action whatsoever, in law or in equity, known or unknown, which any member of the Purchaser Group or Seller Group, as applicable, might now or subsequently may have, based on, relating to, to or arising out of the negotiation, performance, performance and consummation of this Agreement or the transactions contemplated hereunder hereunder, or any member of the Seller Group’s or Purchaser Group’s respective ownership, use or operation of the Assets and Subject SecuritiesAssets, or the condition, quality, status, status or nature of the Assets or Subject SecuritiesAssets, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF THE SELLER GROUP, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED INDEMNIFIED PERSON, INVITEE, OR THIRD PARTY. Without limiting the generality of the immediately preceding sentence, Purchaser agrees, and shall cause each member of the Purchaser Group to agree, that from and after Closing the sole and exclusive remedies of the Purchaser Group with respect to any member of the Seller Group’s breach of representations, warranties, covenants, and agreements herein or in the other Transaction Document shall be the rights to indemnity under Section 11.3, as limited by the terms of this Article 11. No Party or Person is asserting the accuracy, completeness, or truth of any representation and warranty set forth in this Agreement; rather the Parties have agreed that should any representation or warranty of any Party prove inaccurate, incomplete, or untrue, the other Party shall have the specific rights and remedies herein specified as the exclusive remedy therefor, but that no other rights, remedies, or causes of action (whether in law or in equity or whether in contract or in tort or otherwise) are permitted to any Party hereto as a result of the failure, breach, inaccuracy, incompleteness, or untruth of any such representation and warranty.
(b) Any claim for indemnity under this Article 11 by any current member of the Seller Group or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, and consultant of any Party Purchaser Group must be brought and administered by the applicable Party to this Agreement. No Indemnified Person other than Sellers Seller and Purchaser shall have any rights against Sellers Seller or Purchaser under the terms of this Article 11 except as may be exercised on its behalf by Purchaser or SellersSeller, as applicable, pursuant to this Article 11. Sellers Seller and Purchaser may elect to exercise or not exercise indemnification rights under this Section Agreement on behalf of the other Indemnified Persons affiliated with it in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this Section.
(c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of any member of the Seller Group or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related thereto.
(d) The amount of any Damages for which Purchaser or any member of the Purchaser Group Indemnified Person is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance or other Third Party proceeds, reimbursements, reimbursements or claims realized or that could reasonably be expected to be actually realized by Purchaser or applicable members of the Purchaser Group if a claim were properly pursued under the relevant insurance arrangements with respect to such DamagesIndemnified Person. Purchaser Each Indemnified Person shall use commercially reasonable efforts to pursue and prosecute any and all claims against responsible Third Parties for which Purchaser or any member of the Purchaser Group such Indemnified Person is entitled to indemnity from Sellers under this Article 11. In the event that any member of the Purchaser Group Indemnified Person receives funds or proceeds from any insurance carrier or any other Third Party with respect to any DamagesDamages for which such Indemnified Person had previously received any indemnification amounts hereunder, Purchaser such Indemnified Person shall, regardless of when received by such member of the Purchaser GroupIndemnified Person, promptly pay to the Sellers applicable Indemnifying Party such funds or proceeds to the extent of any funds previously paid by Sellers or any of its Affiliates such Indemnifying Party hereunder with respect to such Damages.
(ed) Subject to the terms hereof, each Indemnified Person shall use commercially reasonable efforts to mitigate or minimize all Damages upon and after becoming aware obtaining actual knowledge of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If an Indemnified Person fails to so mitigate any indemnifiable Damages under the preceding sentence, such Indemnified Person shall have no right to indemnity hereunder with respect to such Damages and the Indemnifying Party shall have no liability for any portion of such Damages that reasonably could have been avoided, reduced, or mitigated had the Indemnified Person made such reasonable efforts.
(fe) The Parties shall treat, for U.S. federal and applicable state and local income tax Income Tax purposes, any amounts paid or received under this Article 11 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws.
(f) Except to the extent of claims and rights expressly included as part of the Assets, nothing in this Agreement is intended to limit or otherwise waive any recourse Seller may have against any Person that is not a member of the Purchaser Group for any Damages, obligations or liabilities that may be incurred with respect to the ownership or operation of the Assets, the Assumed Obligations or the Retained Liabilities.
(g) To the extent of the indemnification obligations in this Agreement, Purchaser and Sellers Seller hereby waive for themselves and their respective successors and assigns, including any insurers, any rights to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person under this Agreement. If required by applicable insurance policies, each Party shall obtain a waiver of such subrogation from its insurers.
(h) Notwithstanding anything herein or in any Transaction Document to the contrary, the obligations and the rights of the Parties hereunder, and the amount of any Damages for which any Party is obligated to indemnify, or any member of the Seller Group or any member of the Purchaser Group, as applicable, is entitled to indemnity under Section 11.2 or Section 11.3 as applicable, shall be calculated by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of Sellers or Purchaser; provided, however, this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warranties.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Energy Resources 12, L.P.), Purchase and Sale Agreement (Energy Resources 12, L.P.)
Exclusive Remedy and Certain Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, from and after Closing, except in respect of claims of Fraud, Purchaser agrees and shall cause each member of the Purchaser Group to agree that Purchaser’s and Purchaser Group’s sole and exclusive remedy against any member of the Seller Group with respect to the negotiation, performance, and consummation of the transactions contemplated hereunder, hereunder and any breach of the representations, warranties, covenants, covenants and agreements of any member of the Seller Group contained herein, the affirmations of such representations, warranties, covenants, and agreements contained herein or in the certificates delivered by any member of the Seller Group at Closing pursuant to Section 8.2(gCertificate are (i) or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group are the rights to indemnification or defense from Seller set forth in Section 11.313.2, as limited by the terms of this Article 1113, (i) the right to specific performance permitted by Section 14.2, (i) Purchaser’s rights under Section 8.22, (i) the rights to the adjustments to the Unadjusted Purchase Price pursuant to Section 2.5 and (i) the remedies under the other Transaction Documents (the “Retained Claims”). Except for the remedies contained in this Article 11, upon ClosingRetained Claims, Purchaser waives, releases, remises, and forever discharges, and shall cause each member of the Purchaser Group to waive, release, remise, and forever discharge, each member of the Seller Group from any and all Damages, suits, legal or administrative proceedings, claims, demands, losses, costs, obligations, liabilities, interest, charges, or causes of action whatsoever, in law or in equity, known or unknown, which any member of the Purchaser Group might now or subsequently may have, based on, relating to, to or arising out of the negotiation, performance, and consummation of this Agreement or the transactions contemplated hereunder or any member of the Seller Group’s ownership, use or operation of the Assets and Subject Securitieshereunder, or the condition, quality, status, status or nature of the Assets or Subject Securitiesany Assets, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF THE SELLER GROUP, GROUP EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEE, INVITEES OR THIRD PARTYPARTIES. Without limiting Notwithstanding anything to the generality contrary contained in this Agreement, from and after Closing, except in respect of the immediately preceding sentenceclaims of Fraud, Purchaser agrees, Seller agrees and shall cause each member of the Purchaser Seller Group to agree, agree that from Seller’s and after Closing the Seller Group’s sole and exclusive remedies remedy against any member of the Purchaser Group with respect to the negotiation, performance, and consummation of the transactions contemplated hereunder and any breach of the representations, warranties, covenants and agreements of any member of the Seller Group’s breach of representations, warranties, covenants, and agreements Group contained herein or in the other Transaction Document shall be Seller Certificate are (A) the rights to indemnity under indemnification or defense from Seller set forth in Section 11.313.2, as limited by the terms of this Article 1113, (A) the right to specific performance permitted by Section 14.2 and (A) the rights to the adjustments to the Unadjusted Purchase Price pursuant to Section 2.5. No Party or Person is asserting the accuracyExcept in respect of claims of Fraud, completeness, or truth of any representation and warranty set forth in this Agreement; rather the Parties have agreed that should any representation or warranty of any Party prove inaccurate, incomplete, incomplete or untrue, the other Other Party shall only have the specific rights and remedies herein specified as the exclusive remedy therefor, but that no other rights, remedies, or causes of action (whether in law or in equity or whether in contract or in tort or otherwise) are permitted to any Party hereto as a result of the failure, breach, inaccuracy, incompleteness, or untruth untruthfulness of any such representation and warranty.
(b) Any claim for indemnity under this Article 11 13 by any current or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, and consultant of any Party must be brought and administered by the applicable Party to this Agreement. No Indemnified Person other than Sellers Seller and Purchaser shall have any rights against Sellers Seller, Purchaser or Purchaser any of the Company Group under the terms of this Article 11 13, except as may be exercised on its behalf by Purchaser or SellersSeller, as applicable, pursuant to this Article 1113. Sellers Seller and Purchaser may elect to exercise or not exercise indemnification rights under this Section Agreement on behalf of the other Indemnified Persons affiliated with it in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this SectionSection 13.4.
(c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of any member of the Seller Group or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related thereto.
(d) The amount of any Damages for which Purchaser or any member of the Purchaser Group is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance or other Third Party proceeds, reimbursements, or claims realized or that could reasonably be expected to be realized by Purchaser or applicable members of the Purchaser Group if a claim were properly pursued under the relevant insurance arrangements with respect to such Damages. Purchaser shall use commercially reasonable efforts to pursue and prosecute any and all claims against Third Parties for which Purchaser or any member of the Purchaser Group is entitled to indemnity from Sellers under this Article 11. In the event that any member of the Purchaser Group receives funds or proceeds from any insurance carrier or any other Third Party with respect to any Damages, Purchaser shall, regardless of when received by such member of the Purchaser Group, promptly pay to the Sellers such funds or proceeds to the extent of any funds previously paid by Sellers or any of its Affiliates with respect to such Damages.
(e) Subject to the terms hereof, each Each Indemnified Person shall use commercially reasonable efforts to mitigate or minimize all Damages upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If The amount of any Damages for which an Indemnified Person fails to so mitigate any indemnifiable Damages under the preceding sentence, such Indemnified Person shall have no right is entitled to indemnity hereunder under this Article 13 shall be reduced by the amount of insurance or other Third Party proceeds, recoupment, reimbursements, or claims actually realized by Purchaser or applicable members of the Purchaser Group (including the Company Group) or Seller or the applicable members of the Seller Group, as applicable. In the event that any member of the Purchaser Group or Seller Group receives funds or proceeds from any insurance carrier or any other Third Party with respect to any Damages, Purchaser (in the case of Purchaser Group) and Seller (in the case of Seller Group) shall, regardless of when received by such Damages member of the Purchaser Group or Seller Group, as applicable, promptly pay and reimburse Seller or Purchaser, as applicable, such funds or proceeds to the Indemnifying Party shall have no liability for extent of any portion funds previously paid to or received by any member of the Purchaser Group or Seller Group, as applicable, respect to such Damages that reasonably could have been avoided, reduced, or mitigated had the Indemnified Person made such reasonable effortsDamages.
(fd) The Parties shall treat, for U.S. federal and applicable federal, state and local income tax and applicable federal, state, local and non-U.S. Tax purposes, any amounts paid or received under this Article 11 13 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws.
(ge) To Notwithstanding anything to the extent of the indemnification obligations contrary contained in this Agreement, Purchaser and Sellers hereby waive for themselves and their respective successors and assigns, including under no circumstances shall any insurers, any rights Party be entitled to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person double recovery under this Agreement. If required by applicable , and to the extent a Party is compensated for a matter through an adjustment to the Unadjusted Purchase Price or third-party recovery or insurance policiesrecovery actually received, each such Party shall obtain not have a waiver of separate right to indemnification hereunder for such subrogation from its insurersmatter.
(hf) Notwithstanding anything herein or in any Transaction Document to the contrary, the obligations and the rights of the Parties hereunder, and the amount of any Damages for which any Party is obligated to indemnify, or any member of the Seller Group or any each member of the Purchaser Group, as applicable, is entitled Group to indemnity indemnification (and Seller’s obligations) under Section 11.2 or Section 11.3 13.2 (as applicable, limited by the terms hereof) shall be satisfied first (i) from the Holdback Amount (rounded up to the nearest number of whole shares) until there are no shares of Parent Common Equity remaining therein, second (i) by Seller, who shall surrender to Purchaser for cancellation an aggregate number of shares of Parent Common Equity (rounded up to the nearest number of whole shares) calculated by excluding dividing (x) the amount of such payment by (y) the Current Price, until Seller no longer owns any shares of Parent Common Equity and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth third (i) by Seller, in any representation or warranty of Sellers or Purchaser; provided, however, this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warrantiescash.
Appears in 1 contract
Exclusive Remedy and Certain Limitations. (ai) Notwithstanding anything to the contrary contained in this Agreement, from and after Closing, Purchaser’s and Purchaser Groupeach Indemnified Person’s sole and exclusive remedy against any member of the Seller Group Indemnifying Party with respect to the negotiation, performance, performance and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants, covenants and agreements of any member of the Seller Group Indemnifying Party’s group contained herein, the affirmations of such representations, warranties, covenants, covenants and agreements contained in the certificates delivered by any member of the Seller Group Indemnifying Party’s group at Closing pursuant to Section 8.2(g9.2(f) or Section 9.3(g) or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group or Purchaser Group, as applicable, are (i) the rights to indemnity from such Party set forth in Section 11.312.2 and Section 12.3, as applicable, as limited by the terms of this Article 11. Except 12 (ii) Purchaser’s rights in Article 3 (to the extent the same expressly survive after the Closing), and (iii) the right to specific performance for the breach or failure of Seller to perform any covenants required to be performed after Closing, and except for the remedies contained in this Article 1112 against each Party and for Purchaser’s rights in Article 3 (to the extent the same expressly survive after the Closing), upon Closing, Purchaser each Party waives, releases, remises, remises and forever discharges, and shall cause each member of the Purchaser Group Indemnified Person’s group to waive, release, remise, remise and forever discharge, each member of the Seller Group Indemnifying Party’s group from any and all Damages, suits, legal or administrative proceedings, claims, demands, losses, costs, obligations, liabilities, interest, charges, charges or causes of action whatsoever, in law or in equity, known or unknown, which any member of the Purchaser Group Indemnified Person’s group might now or subsequently may have, based on, relating to, to or arising out of the negotiation, performance, performance and consummation of this Agreement or the other Transaction Documents or the transactions contemplated hereunder or thereunder, or any member of the Seller GroupIndemnified Person’s group ownership, use or operation of the Assets and Subject SecuritiesAssets, or the condition, quality, status, status or nature of the Assets or Subject SecuritiesAssets, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF THE SELLER GROUP, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEE, INVITEES OR THIRD PARTYPARTIES. Without limiting the generality of the immediately preceding sentence, Purchaser agrees, and shall cause each member of the Purchaser Group to agree, that from and after Closing the sole and exclusive remedies of the Purchaser Group with respect to any member of the Seller Group’s breach of representations, warranties, covenants, and agreements herein or in the other Transaction Document shall be the rights to indemnity under Section 11.3, as limited by the terms of this Article 11. No Party or Person is asserting the accuracy, completeness, or truth of any representation and warranty set forth in this Agreement; rather the Parties have agreed that should any representation or warranty of any Party prove inaccurate, incomplete, or untrue, the other Party shall have the specific rights and remedies herein specified as the exclusive remedy therefor, but that no other rights, remedies, or causes of action (whether in law or in equity or whether in contract or in tort or otherwise) are permitted to any Party hereto as a result of the failure, breach, inaccuracy, incompleteness, or untruth of any such representation and warranty.
(b) Any ii)Any claim for indemnity under this Article 11 12 by any current or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, attorney and consultant of any Party must be brought and administered by the applicable Party to this Agreement. No Indemnified Person other than Sellers Seller and Purchaser shall have any rights against Sellers Seller or Purchaser under the terms of this Article 11 12 except as may be exercised on its behalf by Purchaser or SellersSeller, as applicable, pursuant to this Article 1112. Sellers Seller and Purchaser may elect to exercise or not exercise indemnification rights under this Section Agreement on behalf of the other Indemnified Persons affiliated with it in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this Section.
(c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of any member of the Seller Group or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related thereto.
(d) The amount of any Damages for which Purchaser or any member of the Purchaser Group is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance or other Third Party proceeds, reimbursements, or claims realized or that could reasonably be expected to be realized by Purchaser or applicable members of the Purchaser Group if a claim were properly pursued under the relevant insurance arrangements with respect to such Damages. Purchaser shall use commercially reasonable efforts to pursue and prosecute any and all claims against Third Parties for which Purchaser or any member of the Purchaser Group is entitled to indemnity from Sellers under this Article 11. In the event that any member of the Purchaser Group receives funds or proceeds from any insurance carrier or any other Third Party with respect to any Damages, Purchaser shall, regardless of when received by such member of the Purchaser Group, promptly pay to the Sellers such funds or proceeds to the extent of any funds previously paid by Sellers or any of its Affiliates with respect to such Damages.
(e) Subject to the terms hereof, each Indemnified Person shall use commercially reasonable efforts to mitigate or minimize all Damages upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If an Indemnified Person fails to so mitigate any indemnifiable Damages under the preceding sentence, such Indemnified Person shall have no right to indemnity hereunder with respect to such Damages and the Indemnifying Party shall have no liability for any portion of such Damages that reasonably could have been avoided, reduced, or mitigated had the Indemnified Person made such reasonable efforts.
(f) The Parties shall treat, for U.S. federal and applicable state and local income tax purposes, any amounts paid or received under this Article 11 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws.
(g) To the extent of the indemnification obligations in this Agreement, Purchaser and Sellers hereby waive for themselves and their respective successors and assigns, including any insurers, any rights to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person under this Agreement. If required by applicable insurance policies, each Party shall obtain a waiver of such subrogation from its insurers.
(h) Notwithstanding anything herein or in any Transaction Document to the contrary, the obligations and the rights of the Parties hereunder, and the amount of any Damages for which any Party is obligated to indemnify, or any member of the Seller Group or any member of the Purchaser Group, as applicable, is entitled to indemnity under Section 11.2 or Section 11.3 as applicable, shall be calculated by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of Sellers or Purchaser; provided, however, this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warranties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Riley Exploration Permian, Inc.)
Exclusive Remedy and Certain Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, other than with respect to any claims arising from Fraud of a Party, to which this Section 12.4(a) shall not apply, from and after Closing, Closing each of Purchaser’s and Purchaser Group’s and Seller’s and Seller Group’s sole and exclusive remedy against any member of the Seller Group or the Purchaser Group, as applicable, with respect to the negotiation, performance, performance and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants, covenants and agreements of any member of the Seller Group or the Purchaser Group, as applicable, contained herein, the affirmations of such representations, warranties, covenants, covenants and agreements contained in the certificates delivered by any member of Seller Certificate or the Seller Group at Closing pursuant to Section 8.2(g) Purchaser Certificate, respectively, or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group or the Purchaser Group, as applicable, are (i) the rights to indemnification or defense from Seller set forth in Section 11.312.2 or from Purchaser as set forth in Section 12.1, each as limited by the terms of this Article 1112, and (ii) the right to seek specific performance for the breach or failure of Seller or Purchaser to perform any covenants required to be performed after Closing. Except for the remedies for indemnification or defense from Seller or Purchaser, as applicable, contained in this Article 11, 12 or elsewhere in this Agreement upon Closing, any rights or claims of the Company or Seller (or any of their Affiliates) under the Dedication Agreement (but excluding in any case any rights or claims with respect to any amounts owed or payable by any Person to any members of the Company Group with respect to any accounts receivable relating to item #3 (System Gain/Loss) on Schedule 4.5), pursuant to the Participation Rights or pursuant to any other written agreement with the Seller Group or the Purchaser Group, as applicable, and the reduction of the Unadjusted Purchase Price pursuant to Section 2.4(i) as full and final settlement for the Released Claims, each of Purchaser and Seller waives, releases, remises, remises and forever discharges, and shall cause each member of the Purchaser Group or Seller Group, as applicable, to waive, release, remise, remise and forever discharge, each member of the Seller Group or Purchaser Group, as applicable, from any and all Damages, suits, legal or administrative proceedings, claims, demands, losses, costs, obligations, liabilities, interest, charges, charges or causes of action whatsoever, in law Law or in equity, known or unknown, which any member of the Purchaser Group or Seller Group, as applicable, might now or subsequently may have, based on, relating to, to or arising out of the negotiation, performance, performance and consummation of this Agreement or the other Transaction Documents or the transactions contemplated hereunder or any member of the Seller Group’s ownership, use or operation of the Assets and Subject Securitiesthereunder, or the condition, quality, status, status or nature of the Assets or Subject Securitiesany Assets, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF GROUP OR THE SELLER GROUP, AS APPLICABLE, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEE, INVITEES OR THIRD PARTY. Without limiting the generality of the immediately preceding sentence, Purchaser agrees, and shall cause each member of the Purchaser Group to agree, that from and after Closing the sole and exclusive remedies of the Purchaser Group with respect to any member of the Seller Group’s breach of representations, warranties, covenants, and agreements herein or in the other Transaction Document shall be the rights to indemnity under Section 11.3, as limited by the terms of this Article 11PARTIES. No Party or Person is asserting the accuracy, completeness, or truth of any representation and warranty set forth in this Agreement; rather rather, the Parties have agreed that should any representation or warranty of any Party prove inaccurate, incomplete, incomplete or untrue, the other Party shall have the specific rights and remedies herein specified as the exclusive remedy therefor, but that no other rights, remedies, or causes of action (whether in law Law or in equity or whether in contract or in tort or otherwise) are permitted to any Party hereto as a result -62- of the failure, breach, inaccuracy, incompleteness, or untruth untruthfulness of any such representation and warranty.
(b) Any claim for indemnity under this Article 11 12 by any current or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, attorney and consultant of any Party must be brought and administered by the applicable Party to this Agreement. No Indemnified Person other than Sellers Seller and Purchaser shall have any rights against Sellers Seller or Purchaser under the terms of this Article 11 12, except as may be exercised on its behalf by Purchaser or SellersSeller, as applicable, pursuant to this Article 1112. Sellers Seller and Purchaser may elect to exercise or not exercise indemnification rights under this Section Agreement on behalf of the other Indemnified Persons affiliated with it in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this SectionSection 12.4.
(c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of any member of the Seller Group or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related thereto.
(d) The amount of any Damages for which Purchaser a Party or any member of the Purchaser Group or the Seller Group, as applicable, is entitled to indemnity under this Article 11 12 shall be reduced by the amount of insurance or other Third Party third party proceeds, recoupment, reimbursements, or claims realized or that could reasonably be expected to be realized by Purchaser or applicable members of the Purchaser Group if a claim were properly pursued (including Company and any Subsidiary) or the Seller Group, as applicable, under the relevant insurance arrangements arrangements, agreements, contracts or applicable Laws with respect to such Damages, less all costs of pursuing such claim. Purchaser Each Party shall use use, and shall cause its Affiliates to use, commercially reasonable efforts to pursue and prosecute any and all claims against Third Parties (including against Frontier under the terms of the Class B Purchase Agreement) for which Purchaser such Party or any member of the Purchaser Group (including Company and any Subsidiary) or the Seller Group, as applicable, is entitled to indemnity indemnification or defense from Sellers the other Party under this Article 1112. In the event that any set of facts or circumstances may give a Party or any member of the Purchaser Group or the Seller Group, as applicable, a claim to indemnification or defense under both this Agreement and the Class B Purchase Agreement, such Party shall be required to concurrently seek indemnification or defense under the Class B Purchase Agreement for such claim, and to exhaust all remedies thereunder in connection with such claims or right of defense. In the event that any member of the Purchaser Group or the Seller Group, as applicable, receives funds or proceeds from Frontier or any insurance carrier or any other Third Party with respect to any Damages, Purchaser or Seller, as applicable, shall, regardless of when received by such member of the Purchaser Group or the Seller Group, as applicable, promptly pay to and reimburse the Sellers other Party such funds or proceeds to the extent of any funds previously paid by Sellers to any member of the Purchaser Group or any of its Affiliates the Seller Group, as applicable, with respect to such Damages, less all costs of pursuing such claim; provided, in no case shall Seller be entitled to any proceeds Purchaser recovers from Frontier with respect to Damages in respect of a breach of a Company-Specific Representation.
(ed) Subject to the terms hereof, each Each Indemnified Person shall use commercially make reasonable efforts to mitigate or minimize all Damages upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If an Indemnified Person fails to so mitigate any indemnifiable Damages under the preceding sentence, such Indemnified Person shall have no right to indemnity hereunder with respect to such Damages and the Indemnifying Party shall have no liability for any the portion of such Damages that reasonably could have been avoided, reduced, reduced or mitigated had the Indemnified Person made such reasonable efforts.
(fe) The Parties shall treat, for U.S. federal and applicable state and local income tax Tax purposes, any amounts paid or received under this Article 11 12 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws.
(f) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances shall any Party be entitled to double recovery under this Agreement, and to the extent a Party is compensated for a matter through an adjustment to the Unadjusted Purchase Price or third party recovery or insurance recovery (including from Frontier under the Class B Purchase Agreement or any other agreements) actually received, such Party shall not have a separate right to indemnification hereunder for such matter.
(g) To the extent of the indemnification obligations in this Agreement, Purchaser and Sellers Seller hereby waive for themselves and their respective successors and assigns, including any insurers, any rights to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person under this Agreement. If required by applicable insurance policies, each Party shall obtain a waiver of such subrogation from its insurers.
(h) Notwithstanding anything herein or in any Transaction Document to the contrary, the obligations and the rights of the Parties hereunder, and the amount of any Damages for which any Party is obligated to indemnify, or any member of the Seller Group or any member of the Purchaser Group, as applicable, is entitled to indemnity under Section 11.2 or Section 11.3 as applicable, shall be calculated by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of Sellers or Purchaser; provided, however, this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warranties.
Appears in 1 contract
Samples: Securities Purchase Agreement (Plains All American Pipeline Lp)
Exclusive Remedy and Certain Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, from and after Closing, Purchaser’s and Purchaser Group’s sole exclusive remedy against any member of the Seller Group with respect to the negotiation, performance, and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants, and agreements of any member of the Seller Group contained herein, the affirmations of such representations, warranties, covenants, and agreements contained in the certificates delivered by any member of the Seller Group at Closing pursuant to Section 8.2(g) or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group are the rights set forth in Section 11.3, as limited by the terms of this Article 11. Except for the remedies contained in this Article 11, upon Closing, Purchaser waives, releases, remises, and forever discharges, and shall cause each member of the Purchaser Group to waive, release, remise, and forever discharge, each member of the Seller Group from any and all Damages, suits, legal or administrative proceedings, claims, demands, losses, costs, obligations, liabilities, interest, charges, or causes of action whatsoever, in law or in equity, known or unknown, which any member of the Purchaser Group might now or subsequently may have, based on, relating to, or arising out of the negotiation, performance, and consummation of this Agreement or the transactions contemplated hereunder or any member of the Seller Group’s ownership, use or operation of the Assets and Subject Securities, or the condition, quality, status, or nature of the Assets or Subject Securities, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF THE SELLER GROUP, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEE, OR THIRD PARTY. Without limiting the generality of the immediately preceding sentence, Purchaser agrees, and shall cause each member of the Purchaser Group to agree, that from and after Closing the sole and exclusive remedies of the Purchaser Group with respect to any member of the Seller Group’s breach of representations, warranties, covenants, and agreements herein or in the other Transaction Document shall be the rights to indemnity under Section 11.3, as limited by the terms of this Article 11. No Party or Person is asserting the accuracy, completeness, or truth of any representation and warranty set forth in this Agreement; rather the Parties have agreed that should any representation or warranty of any Party prove inaccurate, incomplete, or untrue, the other Party shall have the specific rights and remedies herein specified as the exclusive remedy therefor, but that no other rights, remedies, or causes of action (whether in law or in equity or whether in contract or in tort or otherwise) are permitted to any Party hereto as a result of the failure, breach, inaccuracy, incompleteness, or untruth of any such representation and warranty.
(b) Any claim for indemnity under this Article 11 by any current or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, and consultant of any Party must be brought and administered by the applicable Party to this Agreement. No Indemnified Person other than Sellers and Purchaser shall have any rights against Sellers or Purchaser under the terms of this Article 11 except as may be exercised on its behalf by Purchaser or Sellers, as applicable, pursuant to this Article 11. Sellers and Purchaser may elect to exercise or not exercise indemnification rights under this Section on behalf of the other Indemnified Persons affiliated with it in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this Section.
(c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of any member of the Seller Group or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related thereto.
(d) The amount of any Damages for which Purchaser or any member of the Purchaser Group is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance or other Third Party proceeds, reimbursements, or claims realized or that could reasonably be expected to be realized by Purchaser or applicable members of the Purchaser Group if a claim were properly pursued under the relevant insurance arrangements with respect to such Damages. Purchaser shall use commercially reasonable efforts to pursue and prosecute any and all claims against Third Parties for which Purchaser or any member of the Purchaser Group is entitled to indemnity from Sellers under this Article 11. In the event that any member of the Purchaser Group receives funds or proceeds from any insurance carrier or any other Third Party with respect to any Damages, Purchaser shall, regardless of when received by such member of the Purchaser Group, promptly pay to the Sellers such funds or proceeds to the extent of any funds previously paid by Sellers or any of its Affiliates with respect to such Damages.
(e) Subject to the terms hereof, each Indemnified Person shall use commercially reasonable efforts to mitigate or minimize all Damages upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If an Indemnified Person fails to so mitigate any indemnifiable Damages under the preceding sentence, such Indemnified Person shall have no right to indemnity hereunder with respect to such Damages and the Indemnifying Party shall have no liability for any portion of such Damages that reasonably could have been avoided, reduced, or mitigated had the Indemnified Person made such reasonable efforts.
(f) The Parties shall treat, for U.S. federal and applicable state and local income tax purposes, any amounts paid or received under this Article 11 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws.
(g) To the extent of the indemnification obligations in this Agreement, Purchaser and Sellers hereby waive for themselves and their respective successors and assigns, including any insurers, any rights to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person under this Agreement. If required by applicable insurance policies, each Party shall obtain a waiver of such subrogation from its insurers.
(h) Notwithstanding anything herein or in any Transaction Document to the contrary, the obligations and the rights of the Parties hereunder, and the amount of any Damages for which any Party is obligated to indemnify, or any member of the Seller Group or any member of the Purchaser Group, as applicable, is entitled to indemnity under Section 11.2 or Section 11.3 as applicable, shall be calculated by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of Sellers or Purchaser; provided, however, this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warranties.
Appears in 1 contract
Samples: Series B Preferred Unit Purchase Agreement (Black Stone Minerals, L.P.)
Exclusive Remedy and Certain Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, other than with respect to any claims arising from Fraud of a Party, to which this Section 12.4(a) shall not apply, from and after Closing, Closing each of Purchaser’s and Purchaser Group’s and Seller’s and Seller Group’s sole and exclusive remedy against any member of the Seller Group or the Purchaser Group, as applicable, with respect to the negotiation, performance, performance and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants, covenants and agreements of any member of the Seller Group or the Purchaser Group, as applicable, contained herein, the affirmations of such representations, warranties, covenants, covenants and agreements contained in the certificates delivered by any member of Seller Certificate or the Seller Group at Closing pursuant to Section 8.2(g) Purchaser Certificate, respectively, or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group or the Purchaser Group, as applicable, are (i) the rights to indemnification or defense from Seller set forth in Section 11.312.2 or from Purchaser as set forth in Section 12.1, each as limited by the terms of this Article 1112, and (ii) the right to seek specific performance for the breach or failure of Seller or Purchaser to perform any covenants required to be performed after Closing. Except for the remedies for indemnification or defense from Seller or Purchaser, as applicable, contained in this Article 11, 12 or elsewhere in this Agreement upon Closing, any rights or claims of the Company or Seller (or any of their Affiliates) under the Dedication Agreement (but excluding in any case any rights or claims with respect to any amounts owed or payable by any Person to any members of the Company Group with respect to any accounts receivable relating to item #3 (System Gain/Loss) on Schedule 4.5), pursuant to the Participation Rights or pursuant to any other written agreement with the Seller Group or the Purchaser Group, as applicable, and the reduction of the Unadjusted Purchase Price pursuant to Section 2.4(i) as full and final settlement for the Released Claims, each of Purchaser and Seller waives, releases, remises, remises and forever discharges, and shall cause each member of the Purchaser Group or Seller Group, as applicable, to waive, release, remise, remise and forever discharge, each member of the Seller Group or Purchaser Group, as applicable, from any and all Damages, suits, legal or administrative proceedings, claims, demands, losses, costs, obligations, liabilities, interest, charges, charges or causes of action whatsoever, in law Law or in equity, known or unknown, which any member of the Purchaser Group or Seller Group, as applicable, might now or subsequently may have, based on, relating to, to or arising out of the negotiation, performance, performance and consummation of this Agreement or the other Transaction Documents or the transactions contemplated hereunder or any member of the Seller Group’s ownership, use or operation of the Assets and Subject Securitiesthereunder, or the condition, quality, status, status or nature of the Assets or Subject Securitiesany Assets, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF GROUP OR THE SELLER GROUP, AS APPLICABLE, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEE, INVITEES OR THIRD PARTY. Without limiting the generality of the immediately preceding sentence, Purchaser agrees, and shall cause each member of the Purchaser Group to agree, that from and after Closing the sole and exclusive remedies of the Purchaser Group with respect to any member of the Seller Group’s breach of representations, warranties, covenants, and agreements herein or in the other Transaction Document shall be the rights to indemnity under Section 11.3, as limited by the terms of this Article 11PARTIES. No Party or Person is asserting the accuracy, completeness, or truth of any representation and warranty set forth in this Agreement; rather rather, the Parties have agreed that should any representation or warranty of any Party prove inaccurate, incomplete, incomplete or untrue, the other Party shall have the specific rights and remedies herein specified as the exclusive remedy therefor, but that no other rights, remedies, or causes of action (whether in law Law or in equity or whether in contract or in tort or otherwise) are permitted to any Party hereto as a result of the failure, breach, inaccuracy, incompleteness, or untruth untruthfulness of any such representation and warranty.
(b) Any claim for indemnity under this Article 11 12 by any current or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, attorney and consultant of any Party must be brought and administered by the applicable Party to this Agreement. No Indemnified Person other than Sellers Seller and Purchaser shall have any rights against Sellers Seller or Purchaser under the terms of this Article 11 12, except as may be exercised on its behalf by Purchaser or SellersSeller, as applicable, pursuant to this Article 1112. Sellers Seller and Purchaser may elect to exercise or not exercise indemnification rights under this Section Agreement on behalf of the other Indemnified Persons affiliated with it in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this SectionSection 12.4.
(c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of any member of the Seller Group or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related thereto.
(d) The amount of any Damages for which Purchaser a Party or any member of the Purchaser Group or the Seller Group, as applicable, is entitled to indemnity under this Article 11 12 shall be reduced by the amount of insurance or other Third Party third party proceeds, recoupment, reimbursements, or claims realized or that could reasonably be expected to be realized by Purchaser or applicable members of the Purchaser Group if a claim were properly pursued (including Company and any Subsidiary) or the Seller Group, as applicable, under the relevant insurance arrangements arrangements, agreements, contracts or applicable Laws with respect to such Damages, less all costs of pursuing such claim. Purchaser Each Party shall use use, and shall cause its Affiliates to use, commercially reasonable efforts to pursue and prosecute any and all claims against Third Parties (including against Frontier under the terms of the Class B Purchase Agreement) for which Purchaser such Party or any member of the Purchaser Group (including Company and any Subsidiary) or the Seller Group, as applicable, is entitled to indemnity indemnification or defense from Sellers the other Party under this Article 1112. In the event that any set of facts or circumstances may give a Party or any member of the Purchaser Group or the Seller Group, as applicable, a claim to indemnification or defense under both this Agreement and the Class B Purchase Agreement, such Party shall be required to concurrently seek indemnification or defense under the Class B Purchase Agreement for such claim, and to exhaust all remedies thereunder in connection with such claims or right of defense. In the event that any member of the Purchaser Group or the Seller Group, as applicable, receives funds or proceeds from Frontier or any insurance carrier or any other Third Party with respect to any Damages, Purchaser or Seller, as applicable, shall, regardless of when received by such member of the Purchaser Group or the Seller Group, as applicable, promptly pay to and reimburse the Sellers other Party such funds or proceeds to the extent of any funds previously paid by Sellers to any member of the Purchaser Group or any of its Affiliates the Seller Group, as applicable, with respect to such Damages, less all costs of pursuing such claim; provided, in no case shall Seller be entitled to any proceeds Purchaser recovers from Frontier with respect to Damages in respect of a breach of a Company-Specific Representation.
(ed) Subject to the terms hereof, each Each Indemnified Person shall use commercially make reasonable efforts to mitigate or minimize all Damages upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If an Indemnified Person fails to so mitigate any indemnifiable Damages under the preceding sentence, such Indemnified Person shall have no right to indemnity hereunder with respect to such Damages and the Indemnifying Party shall have no liability for any the portion of such Damages that reasonably could have been avoided, reduced, reduced or mitigated had the Indemnified Person made such reasonable efforts.
(fe) The Parties shall treat, for U.S. federal and applicable state and local income tax Tax purposes, any amounts paid or received under this Article 11 12 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws.
(f) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances shall any Party be entitled to double recovery under this Agreement, and to the extent a Party is compensated for a matter through an adjustment to the Unadjusted Purchase Price or third party recovery or insurance recovery (including from Frontier under the Class B Purchase Agreement or any other agreements) actually received, such Party shall not have a separate right to indemnification hereunder for such matter.
(g) To the extent of the indemnification obligations in this Agreement, Purchaser and Sellers Seller hereby waive for themselves and their respective successors and assigns, including any insurers, any rights to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person under this Agreement. If required by applicable insurance policies, each Party shall obtain a waiver of such subrogation from its insurers.
(h) Notwithstanding anything herein or in any Transaction Document to the contrary, the obligations and the rights of the Parties hereunder, and the amount of any Damages for which any Party is obligated to indemnify, or any member of the Seller Group or any member of the Purchaser Group, as applicable, is entitled to indemnity under Section 11.2 or Section 11.3 as applicable, shall be calculated by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of Sellers or Purchaser; provided, however, this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warranties.
Appears in 1 contract
Samples: Securities Purchase Agreement (Concho Resources Inc)
Exclusive Remedy and Certain Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, from and after Closing, except in respect of claims of Fraud, Purchaser’s and Purchaser Group’s sole and exclusive remedy against any member of the Seller Group with respect to the Assets, the Business, the Subject Securities, Company Group, the negotiation, performance, performance and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants, covenants and agreements of any member of the Seller Group contained herein, and the affirmations of such representations, warranties, covenants, covenants and agreements contained in the certificates delivered by any member of the Seller Group at Closing pursuant to Section 8.2(gCertificate are (i) or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group are the rights to indemnity from Sellers set forth in Section 11.3Section 13.2, as limited by the terms of this Article 11Article 13, and (ii) the right to seek specific performance under Section 14.16 for the breach or failure of a Seller to perform any covenants required to be performed after Closing. Except for the remedies for indemnification or defense from Sellers contained in this Article 11Article 13, upon Closing, Purchaser waives, releases, remises, remises and forever discharges, and shall cause each member of the Purchaser Group to waive, release, remise, remise and forever discharge, each member of the Seller Group from any and all Damages, suits, legal or administrative proceedingsActions, claims, demands, losses, costs, obligations, liabilities, interest, charges, charges or causes of action whatsoever, in law or in equity, known or unknown, which any member of the Purchaser Group might now or subsequently may have, based on, relating to, to or arising out of the Assets, the Business, the Subject Securities, Company Group, the negotiation, performance, and consummation of this Agreement or the other Transaction Documents or the transactions contemplated hereunder or thereunder, or any member of the Seller Group’s ownership, use or operation of the Assets and Subject SecuritiesAssets, or the condition, quality, status, status or nature of any Assets, or any matter relating to any member of the Assets Seller Group in their capacity as direct or Subject Securitiesindirect shareholders, members, officers, directors or employees, including any actions taken by managers or officers of Company prior to the Closing Date, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF THE SELLER GROUP, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, COMPARATIVE OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEE, INVITEES OR THIRD PARTY. Without limiting PARTIES.
(b) Notwithstanding anything to the generality contrary contained in this Agreement, from and after Closing, except in respect of claims of Fraud, Sellers’ and Seller Group’s sole and exclusive remedy against any member of the immediately preceding sentencePurchaser Group with respect to the negotiation, performance and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants and agreements of any member of the Purchaser agreesGroup contained herein, and the affirmations of such representations, warranties, covenants and agreements contained in the Purchaser Party Certificate are (i) the rights to indemnity from Purchaser set forth in Section 13.1, as limited by the terms of this Article 13, and (ii) the right to seek specific performance under Section 14.16 for the breach or failure of Purchaser or Purchaser Parent to perform any covenants required to be performed after Closing. Except for the remedies for indemnification or defense from Purchaser contained in this Article 13 or in Section 8.10, upon Closing, each Seller waives, releases, remises and forever discharges, and shall cause each member of the Purchaser Seller Group to agreewaive, that from release, remise and after Closing the sole and exclusive remedies forever discharge, each member of the Purchaser Company Group with respect to from any and all Damages, suits, legal or administrative Actions, claims, demands, losses, costs, obligations, liabilities, interest, charges or causes of action whatsoever, in law or in equity, known or unknown, which any member of the Seller Group’s breach Group might now or subsequently may have, based on, relating to or arising out of representations, warranties, covenants, and agreements herein actions or in the other Transaction Document shall be the rights to indemnity under Section 11.3, as limited omissions (including any actions taken by the terms of this Article 11. No Party managers or Person is asserting the accuracy, completeness, or truth of any representation and warranty set forth in this Agreement; rather the Parties have agreed that should any representation or warranty of any Party prove inaccurate, incomplete, or untrue, the other Party shall have the specific rights and remedies herein specified as the exclusive remedy therefor, but that no other rights, remedies, or causes of action (whether in law or in equity or whether in contract or in tort or otherwise) are permitted to any Party hereto as a result officers of the failureCompany), breachfacts or circumstances occurring, inaccuracyarising or existing at or prior to the Closing, incompletenessEVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, or untruth of any such representation and warrantySOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEES OR THIRD PARTIES.
(bc) Any claim for indemnity under this Article 11 Article 13 by any current or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, attorney and consultant of any Party must be brought and administered by the applicable Party to this Agreement. No Indemnified Person other than Sellers a Seller and Purchaser shall have any rights against Sellers a Seller, Purchaser or Purchaser Company under the terms of this Article 11 Article 13, except as may be exercised on its behalf by Purchaser or Sellersa Seller, as applicable, pursuant to this Article 11Article 13. Sellers Each Seller and Purchaser may elect to exercise or not exercise indemnification rights under this Section Agreement on behalf of the other Indemnified Persons affiliated with it in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this Section.
(c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of any member of the Seller Group or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related theretoSection 13.4.
(d) The amount of any Damages for which Purchaser or any member of the Purchaser Group an Indemnified Person is entitled to indemnity under this Article 11 Article 13 shall be reduced by the amount of insurance or other Third Party proceeds, reimbursementsrecoupment, reimbursements or claims realized actually received or that could reasonably be expected to be realized by Purchaser or applicable members of the Purchaser Group if a claim were properly pursued under the relevant insurance arrangements realized, with respect to such Damages, costs or expenses incurred in connection with securing or obtaining such proceeds, recoupment, reimbursements or claims. Purchaser shall, and shall cause the Purchaser Group, and Seller shall, and shall cause the Seller Group, as applicable, to, use commercially reasonable efforts to pursue and prosecute collect any and all claims against amounts available under such insurance coverage or from the applicable Third Parties for which Purchaser or any member of Party; provided that the Purchaser Group foregoing obligation to use commercially reasonable efforts is entitled not a condition precedent to indemnity from Sellers under this Article 11an Indemnified Person’s rights to indemnification hereunder. In the event that any member of the Purchaser Group or Seller Group receives funds or proceeds from any insurance carrier or any other Third Party with respect to any Damages, Purchaser or Sellers’ Representative, as applicable, shall, regardless of when received by such member of the Purchaser Group or Seller Group, respectively, promptly pay to and reimburse the Sellers Other Party such funds or proceeds to the extent of any funds previously paid by Sellers or Purchaser, as applicable, to or received by any member of its Affiliates the Purchaser Group or Seller Group, as applicable, with respect to such Damages.
(e) Subject to the terms hereof, each Each Indemnified Person shall use commercially reasonable efforts to mitigate or minimize all Damages upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If an Indemnified Person fails to use commercially reasonable efforts to so mitigate any indemnifiable Damages under the preceding sentence, (i) such Indemnified Person shall have no right to indemnity hereunder with respect to such Damages and (ii) the Indemnifying Party shall have no liability liability, in each case, for any portion of such Damages that reasonably could have been avoided, reduced, reduced or mitigated had the Indemnified Person made such commercially reasonable efforts.
(f) The Parties shall treat, for U.S. federal and applicable state and local income tax Income Tax purposes, any amounts paid or received under this Article 11 Article 13 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws.
(g) To the extent of the indemnification obligations in this Agreement, Purchaser and Sellers Company, on behalf of itself and Company Group, and each Seller hereby waive for themselves itself and their respective its successors and assigns, including any insurers, any rights to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person under this Agreement. If required by applicable insurance policies, each Party shall obtain a waiver of such subrogation from its insurers.
(h) Notwithstanding anything herein or in any Transaction Document to the contraryFor purposes of this Article 13, the obligations and the rights of the Parties hereunder, and the amount of Damages resulting from any Damages for which any Party is obligated to indemnify, inaccuracy or any member breach of a representation or warranty (but not the Seller Group existence of an inaccuracy or any member breach of the Purchaser Group, as applicable, is entitled to indemnity under Section 11.2 such representation or Section 11.3 as applicablewarranty), shall be calculated by excluding determined without regard to and without giving effect to any qualifiers as if all qualifications as to materiality or materiality, Material Adverse Effect set forth or similar qualifiers contained in any or applicable to such representation or warranty of Sellers or Purchaser; provided, however, this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warrantieswere deleted therefrom.
Appears in 1 contract
Samples: Securities Purchase Agreement (Matador Resources Co)
Exclusive Remedy and Certain Limitations. (a) Notwithstanding anything to the contrary contained in this AgreementAgreement (but subject to and without limiting the last sentence of this Section 13.4), from and after Closing, except in respect of claims of Fraud, Purchaser’s and Purchaser Group’s sole and exclusive remedy against any member of the Seller Group with respect to the Assets, the Business, the Subject Securities, Subject Company Groups, the negotiation, performance, and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants, covenants and agreements of any member of the Seller Group contained herein, and the affirmations of such representations, warranties, covenants, covenants and agreements contained in the certificates delivered by any member Closing Certificate are (a) the rights to the proceeds of the Seller Group at Closing pursuant to Section 8.2(gR&W Insurance Policy, (b) or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group are the rights set forth in Section 11.3, as limited by 3.2(i) with respect to disputed Defects and(c) the terms of this Article 11. Except right to seek specific performance for the remedies contained in this Article 11, upon breach or failure of a Seller to perform any covenants required to be performed after Closing. Upon Closing, absent Fraud, each Purchaser Party waives, releases, remises, remises and forever discharges, and shall cause each member of the Purchaser Group to waive, release, remise, remise and forever discharge, each member of the Seller Group from any and all Damages, suits, legal or administrative proceedingsActions, claims, demands, losses, costs, obligations, liabilities, interest, charges, charges or causes of action whatsoever, in law Law or in equity, known or unknown, which any member of the Purchaser Group might now or subsequently may have, based on, relating to, to or arising out of the Assets, the Business, the Subject Securities, Subject Company Groups, the negotiation, performance, performance and consummation of this Agreement or the other Transaction Documents or the transactions contemplated hereunder or thereunder, or any member of the Seller Group’s ownership, use or operation of the Assets and Subject SecuritiesAssets, or the condition, quality, status, status or nature of any Assets, or any actions taken by managers or officers of any Subject Company prior to the Assets or Subject SecuritiesClosing Date, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, GROUP AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF THE SELLER GROUP, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, COMPARATIVE OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEE, INVITEES OR THIRD PARTYPARTIES. Without limiting the generality of the immediately preceding sentence, Purchaser agrees, and shall cause each member of the Purchaser Group to agree, that from and after Closing the sole and exclusive remedies of the Purchaser Group with respect to any member of the Seller Group’s breach of representations, warranties, covenants, and agreements herein or Nothing in the other Transaction Document this Section 13.4 shall be the rights construed to indemnity under Section 11.3, as limited by the terms of this Article 11. No Party waive or Person is asserting the accuracy, completeness, or truth of any representation and warranty set forth in this Agreement; rather the Parties have agreed that should any representation or warranty of any Party prove inaccurate, incomplete, or untrue, the other Party shall have the specific rights and remedies herein specified as the exclusive remedy therefor, but that no other rights, remedies, or causes of action (whether in law or in equity or whether in contract or in tort or otherwise) are permitted to any Party hereto as a result of the failure, breach, inaccuracy, incompleteness, or untruth of any such representation and warranty.
(b) Any claim for indemnity under this Article 11 by any current or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, and consultant of any Party must be brought and administered by the applicable Party to this Agreement. No Indemnified Person other than Sellers and Purchaser shall have any rights against Sellers or Purchaser under the terms of this Article 11 except as may be exercised on its behalf by Purchaser or Sellers, as applicable, pursuant to this Article 11. Sellers and Purchaser may elect to exercise or not exercise indemnification rights under this Section on behalf of the other Indemnified Persons affiliated with it in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this Section.
(c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of release any member of the Seller Group from its obligations or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 liabilities to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related thereto.
(d) The amount of any Damages for which Purchaser or any member of the Purchaser Group is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance or other Third Party proceeds, reimbursements, or claims realized or that could reasonably be expected to be realized by Purchaser or applicable members of the Purchaser Group if a claim were properly pursued set forth under the relevant insurance arrangements with respect Escrow Agreement or the resignations and releases delivered pursuant to such Damages. Purchaser shall use commercially reasonable efforts to pursue and prosecute any and all claims against Third Parties for which Purchaser or any member of the Purchaser Group is entitled to indemnity from Sellers under this Article 11. In the event that any member of the Purchaser Group receives funds or proceeds from any insurance carrier or any other Third Party with respect to any Damages, Purchaser shall, regardless of when received by such member of the Purchaser Group, promptly pay to the Sellers such funds or proceeds to the extent of any funds previously paid by Sellers or any of its Affiliates with respect to such DamagesSection 10.2(h).
(e) Subject to the terms hereof, each Indemnified Person shall use commercially reasonable efforts to mitigate or minimize all Damages upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If an Indemnified Person fails to so mitigate any indemnifiable Damages under the preceding sentence, such Indemnified Person shall have no right to indemnity hereunder with respect to such Damages and the Indemnifying Party shall have no liability for any portion of such Damages that reasonably could have been avoided, reduced, or mitigated had the Indemnified Person made such reasonable efforts.
(f) The Parties shall treat, for U.S. federal and applicable state and local income tax purposes, any amounts paid or received under this Article 11 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws.
(g) To the extent of the indemnification obligations in this Agreement, Purchaser and Sellers hereby waive for themselves and their respective successors and assigns, including any insurers, any rights to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person under this Agreement. If required by applicable insurance policies, each Party shall obtain a waiver of such subrogation from its insurers.
(h) Notwithstanding anything herein or in any Transaction Document to the contrary, the obligations and the rights of the Parties hereunder, and the amount of any Damages for which any Party is obligated to indemnify, or any member of the Seller Group or any member of the Purchaser Group, as applicable, is entitled to indemnity under Section 11.2 or Section 11.3 as applicable, shall be calculated by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of Sellers or Purchaser; provided, however, this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warranties.
Appears in 1 contract
Exclusive Remedy and Certain Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, from and after Closing, Purchaser’s except in respect of claims of Fraud, the Purchaser Parties’ and Purchaser Group’s sole and exclusive remedy against any member of the Seller Group with respect to the Assets, the Business, the Subject Securities, Subject Company Groups, the negotiation, performance, and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants, covenants and agreements of any member of the Seller Group contained herein, and the affirmations of such representations, warranties, covenants, covenants and agreements contained in the certificates delivered by any member of the Seller Group at Closing pursuant to Section 8.2(gCertificate are (i) or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group are the rights set forth in Section 11.3, as limited by 3.2(i) with respect to disputed Defects and (ii) the terms of this Article 11. Except right to seek specific performance for the remedies contained in this Article 11, upon breach or failure of a Seller to perform any covenants required to be performed after Closing. Upon Closing, absent Fraud, each Purchaser Party irrevocably waives, releases, remises, remises and forever discharges, and shall cause each member of the Purchaser Group to irrevocably waive, release, remise, remise and forever discharge, each member of the Seller Group from any and all Damages, suits, legal or administrative proceedingsActions, claims, demands, losses, costs, obligations, liabilities, interest, charges, charges or causes of action whatsoever, in law or in equity, known or unknown, which any member of the Purchaser Group might now or subsequently may have, based on, relating to, to or arising out of the Assets, the Business, the Subject Securities, Subject Company Groups, the negotiation, performance, performance and consummation of this Agreement or the other Transaction Documents or the transactions contemplated hereunder or thereunder, or any member of the Seller Group’s ownership, use or operation of the Assets and Subject SecuritiesAssets, or the condition, quality, status, status or nature of any Assets, or any actions taken by managers or officers of any Subject Company prior to the Assets or Subject SecuritiesClosing Date, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, GROUP AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF THE SELLER GROUP, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, COMPARATIVE OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEE, INVITEES OR THIRD PARTYPARTIES. Without limiting the generality of the immediately preceding sentence, Purchaser agrees, and Nothing in this Section 13.4(a) shall cause each member of the Purchaser Group be construed to agree, that from and after Closing the sole and exclusive remedies of the Purchaser Group with respect to waive or release any member of the Seller Group’s breach of representations, warranties, covenants, and agreements herein Group from its obligations or in liabilities to the other Transaction Document shall be the rights to indemnity under Section 11.3, as limited by the terms of this Article 11. No Party or Person is asserting the accuracy, completeness, or truth of any representation and warranty extent set forth in this Agreement; rather under the Parties have agreed that should any representation Escrow Agreement or warranty of any Party prove inaccurate, incomplete, or untrue, the other Party shall have the specific rights resignations and remedies herein specified as the exclusive remedy therefor, but that no other rights, remedies, or causes of action (whether in law or in equity or whether in contract or in tort or otherwise) are permitted releases delivered pursuant to any Party hereto as a result of the failure, breach, inaccuracy, incompleteness, or untruth of any such representation and warrantySection 10.2(h).
(b) Any claim for indemnity under this Article 11 13 by any current or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, attorney and consultant of any Party must be brought and administered by the applicable Party to this Agreement, or such Party’s applicable successors or assigns. No Indemnified Person other than Sellers a Seller and Purchaser Purchaser, or their applicable successors or assigns shall have any rights against Sellers a Seller, Purchaser or Purchaser Subject Company Group under the terms of this Article 11 13, except as may be exercised on its behalf by Purchaser or Sellersa Seller, or such Party’s applicable successor or assigns, as applicable, pursuant to this Article 1113. Sellers Each Seller and Purchaser may elect to exercise or not exercise indemnification rights under this Section Agreement on behalf of the other Indemnified Persons affiliated with it in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this SectionSection 13.4.
(c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of any member of the Seller Group or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related thereto.
(d) The amount of any Damages for which Purchaser or any member of the Purchaser Group is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance or other Third Party proceeds, reimbursements, or claims realized or that could reasonably be expected to be realized by Purchaser or applicable members of the Purchaser Group if a claim were properly pursued under the relevant insurance arrangements with respect to such Damages. Purchaser shall use commercially reasonable efforts to pursue and prosecute any and all claims against Third Parties for which Purchaser or any member of the Purchaser Group is entitled to indemnity from Sellers under this Article 11. In the event that any member of the Purchaser Group receives funds or proceeds from any insurance carrier or any other Third Party with respect to any Damages, Purchaser shall, regardless of when received by such member of the Purchaser Group, promptly pay to the Sellers such funds or proceeds to the extent of any funds previously paid by Sellers or any of its Affiliates with respect to such Damages.
(e) Subject to the terms hereof, each Each Indemnified Person shall use take commercially reasonable efforts to mitigate or minimize all Damages upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If an The amount of any Damages for which any Indemnified Person fails is entitled to so mitigate any indemnifiable Damages indemnity under this Article 13 shall be reduced by the amount of insurance or other Third Party proceeds, recoupment, reimbursements or amounts actually received under the preceding sentence, such Indemnified Person shall have no right to indemnity hereunder relevant insurance arrangements with respect to such Damages (net of collection costs and excluding any insurance policy underwritten or carried by such Indemnified Person or its Affiliate). If any Damages suffered by an Indemnified Person are covered by an existing policy, then such Indemnified Person shall use commercially reasonable efforts to pursue and prosecute any available claims against such policy; provided, however, if any Seller is an Indemnifying Party, such Seller may (at such Seller’s cost and expense), and only to the extent permissible under applicable Laws, seek to enforce and prosecute any and all available claims of any member of such Seller’s Subject Company Group under such policies and Purchaser and each Subject Company shall reasonably cooperate in connection with such enforcement and prosecution. If during the period that is twelve (12) months after the Second Holdback Release Date, Purchaser or any of its Affiliates receives funds or proceeds from any insurance carrier or any other Third Party with respect to any Damages previously paid to or received by any member of the Purchaser Group from Sellers (including from the Holdback Amount), Purchaser and the Indemnifying Party Subject Company Groups shall have no liability promptly pay and reimburse Sellers for such funds or proceeds to the extent of any portion such funds or proceeds previously paid to or received by any member of the Purchaser Group from Sellers (including from the Holdback Amount) with respect to such Damages that reasonably could have been avoided, reduced, or mitigated had the Indemnified Person made such reasonable effortsDamages.
(fd) The Parties shall treat, for U.S. federal and applicable state and local income tax Income Tax purposes, any amounts paid or received under this Article 11 13 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws.
(ge) To the extent For purposes of the indemnification obligations in this Agreement, Purchaser and Sellers hereby waive for themselves and their respective successors and assigns, including any insurers, any rights to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person under this Agreement. If required by applicable insurance policies, each Party shall obtain a waiver of such subrogation from its insurers.
(h) Notwithstanding anything herein or in any Transaction Document to the contrary, the obligations and the rights of the Parties hereunder, and determining the amount of any Damages for which any Party is obligated to indemnify, damages recoverable by Purchaser Group or any member of the Seller Group resulting from breaches of representations and warranties by the Sellers or any member Purchaser, respectively (but not for the purposes of the determining whether Purchaser Group, as applicable, Group is entitled to indemnity indemnification under Section 11.2 or Section 11.3 as applicable, shall be calculated this Article 13 for breaches of representations and warranties by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of the Sellers or Purchaser; provided, however, whether Seller Group is entitled to indemnification under this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warranties.Article 13 for
Appears in 1 contract
Samples: Securities Purchase Agreement (Devon Energy Corp/De)
Exclusive Remedy and Certain Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, from and after Closing, except in respect of claims of Fraud, Purchaser’s and Purchaser Group’s sole and exclusive remedy against any member of the Seller Group with respect to the Assets, the Business, the Subject Securities, Company Group, the negotiation, performance, and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants, covenants and agreements of any member of the Seller Group contained herein, and the affirmations of such representations, warranties, covenants, and agreements contained in the certificates delivered by any member of the Seller Group at Closing pursuant to Section 8.2(g) or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group Certificate are the rights to indemnity from Sellers set forth in Section 11.313.2, as limited by the terms of this Article 1113, and the right to seek specific performance under Section 14.16 for the breach or failure of a Seller to perform any covenants required to be performed after Closing. Except for the remedies for indemnification or defense from Sellers contained in this Article 1113, upon Closing, Purchaser waives, releases, remises, and forever discharges, and shall cause each member of the Purchaser Group to waive, release, remise, and forever discharge, each member of the Seller Group from any and all Damages, suits, legal or administrative proceedingsActions, claims, demands, losses, costs, obligations, liabilities, interest, charges, or causes of action whatsoever, in law or in equity, known or unknown, which any member of the Purchaser Group might now or subsequently may have, based on, on relating to, to or arising out of the Assets, the Business, the Subject Securities, Company Group, the negotiation, performance, and consummation of this Agreement or the other Transaction Documents or the transactions contemplated hereunder or thereunder, or any member of the Seller Group’s ownership, use or operation of the Assets and Subject SecuritiesAssets, or the condition, quality, status, status or nature of any Assets, or any matter relating to any member of the Assets Seller Group in their capacity as direct or Subject Securitiesindirect shareholders, members, officers, directors or employees, including any actions taken by managers or officers of Company prior to the Closing Date, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF THE SELLER GROUP, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEE, INVITEES OR THIRD PARTY. Without limiting PARTIES.
(b) Notwithstanding anything to the generality of the immediately preceding sentencecontrary contained in this Agreement, Purchaser agrees, and shall cause each member of the Purchaser Group to agree, that from and after Closing the Closing, except in respect of claims of fraud, Sellers’ and Seller Group’s sole and exclusive remedies remedy against any member of the Purchaser Group with respect to the negotiation, performance, and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants and agreements of any member of the Seller Group’s breach Purchaser Group contained herein, and the affirmations of such representations, warranties, covenants, and agreements herein or contained in the other Transaction Document shall be Purchaser Party Certificate are (i) the rights to indemnity under from Purchaser set forth in Section 11.313.1, as limited by the terms of this Article 1113, and (ii) the right to seek specific performance under Section 14.16 for the breach or failure of Purchaser or Purchaser Parent to perform any covenants required to be performed after Closing. No Party Except for the remedies for indemnification or Person is asserting the accuracy, completeness, or truth of any representation and warranty set forth defense from Purchaser contained in this Agreement; rather Article 13 or in Section 8.10, upon Closing, each Seller waives, releases, remises and forever discharges, and shall cause each member of the Parties have agreed that should Seller Group to waive, release, remise and forever discharge, each member of the Company Group from any representation and all Damages, suits, legal or warranty of any Party prove inaccurateadministrative Actions, incompleteclaims, or untruedemands, the other Party shall have the specific rights and remedies herein specified as the exclusive remedy thereforlosses, but that no other rightscosts, remediesobligations, liabilities, interest, charges or causes of action (whether whatsoever, in law or in equity equity, known or whether in contract or in tort or otherwise) are permitted to unknown, which any Party hereto as a result member of the failureSeller Group might now or subsequently may have, breachbased on, inaccuracyrelating to or arising out of actions or omissions (including any actions taken by managers or officers of the Company), incompletenessfacts or circumstances occurring, arising or untruth of any such representation and warrantyexisting at or prior to the Closing, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEES OR THIRD PARTIES.
(bc) Any claim for indemnity under this Article 11 13 by any current or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, attorney and consultant of any Party must be brought and administered by the applicable Party to this Agreement. No Indemnified Person other than Sellers a Seller and Purchaser shall have any rights against Sellers a Seller, Purchaser or Purchaser Company under the terms of this Article 11 13, except as may be exercised on its behalf by Purchaser or Sellersa Seller, as applicable, pursuant to this Article 1113. Sellers Each Seller and Purchaser may elect to exercise or not exercise indemnification rights under this Section Agreement on behalf of the other Indemnified Persons affiliated with it in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this Section.
(c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of any member of the Seller Group or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related theretoSection 13.4.
(d) The amount of any Damages for which Purchaser or any member of the Purchaser Group an Indemnified Person is entitled to indemnity under this Article 11 13 shall be reduced by the amount of insurance or other Third Party proceeds, recoupment, reimbursements, or claims realized actually received or that could reasonably be expected to be realized by Purchaser or applicable members of the Purchaser Group if a claim were properly pursued under the relevant insurance arrangements realized, with respect to such Damages, costs or expenses incurred in connection with securing or obtaining such proceeds, recoupment, reimbursements or claims. Purchaser shall, and shall cause the Purchaser Group, and Seller shall, and shall cause the Seller Group, as applicable, to, use commercially reasonable efforts to pursue and prosecute collect any and all claims against amounts available under such insurance coverage or from the applicable Third Parties for which Purchaser or any member of Party; provided that the Purchaser Group foregoing obligation to use commercially reasonable efforts is entitled not a condition precedent to indemnity from Sellers under this Article 11an Indemnified Person’s rights to indemnification hereunder. In the event that any member of the Purchaser Group or Seller Group receives funds or proceeds from any insurance carrier or any other Third Party with respect to any Damages, Purchaser or Sellers’ Representative, as applicable, shall, regardless of when received by such member of the Purchaser Group or Seller Group, respectively, promptly pay to and reimburse the Sellers Other Party such funds or proceeds to the extent of any funds previously paid by Sellers or Purchaser, as applicable, to or received by any member of its Affiliates the Purchaser Group or Seller Group, as applicable, with respect to such Damages.
(e) Subject to the terms hereof, each Each Indemnified Person shall use commercially reasonable efforts to mitigate or minimize all Damages upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If an Indemnified Person fails to use commercially reasonable efforts to so mitigate any indemnifiable Damages under the preceding sentence, (i) such Indemnified Person shall have no right to indemnity hereunder with respect to such Damages and (ii) the Indemnifying Party shall have no liability liability, in each case, for any portion of such Damages that reasonably could have been avoided, reduced, reduced or mitigated had the Indemnified Person made such commercially reasonable efforts.
(f) The Parties shall treat, for U.S. federal and applicable state and local income tax Income Tax purposes, any amounts paid or received under this Article 11 13 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws.
(g) To the extent of the indemnification obligations in this Agreement, Purchaser and Sellers Company, on behalf of itself and Company Group, and each Seller hereby waive for themselves itself and their respective its successors and assigns, including any insurers, any rights to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person under this Agreement. If required by applicable insurance policies, each Party shall obtain a waiver of such subrogation from its insurers.
(h) Notwithstanding anything herein or in any Transaction Document to the contraryFor purposes of this Article 13, the obligations and the rights of the Parties hereunder, and the amount of Damages resulting from any Damages for which any Party is obligated to indemnify, inaccuracy or any member breach of a representation or warranty (but not the Seller Group existence of an inaccuracy or any member breach of the Purchaser Group, as applicable, is entitled to indemnity under Section 11.2 such representation or Section 11.3 as applicablewarranty), shall be calculated by excluding determined without regard to and without giving effect to any qualifiers as if all qualifications as to materiality or materiality, Material Adverse Effect set forth or similar qualifiers contained in any or applicable to such representation or warranty of Sellers or Purchaser; provided, however, this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warrantieswere deleted therefrom.
Appears in 1 contract
Samples: Securities Purchase Agreement (Matador Resources Co)
Exclusive Remedy and Certain Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, from and after Closing, Purchaser’s Purchaser Parties’ and Purchaser Group’s sole and exclusive remedy against any member of the Seller Group with respect to the negotiation, performance, and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants, and agreements of any member of the Seller Group contained hereinherein and in any Transaction Document, the affirmations of such representations, warranties, covenants, and agreements contained in the certificates delivered by any member of the Seller Group at Closing pursuant to Section 8.2(g9.2(i) or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group are (i) the rights to indemnity from Seller or reimbursement from the balance of the Holdback Shares (as applicable) set forth in Section 11.312.3, as limited by the terms of this Article 1112, (ii) the right to seek specific performance for the breach or failure of Seller to perform any covenants required to be performed after Closing, (iii) the rights and remedies expressly available post-Closing as set forth in Article 3, (iv) the remedies available post-Closing expressly set forth in Article 7, (v) any additional rights and remedies expressly set forth in any Transaction Document other than this Agreement including the special warranty of Defensible Title provided by Seller in the Conveyances, and (vi) any Defect Indemnity Agreements that may be delivered hereunder. Notwithstanding anything to the contrary contained in this Agreement, from and after Closing, Seller and Seller Group’s sole and exclusive remedy against any member of the Purchaser Group with respect to the negotiation, performance, and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants, and agreements of any member of the Purchaser Group contained herein and in any Transaction Document, the affirmations of such representations, warranties, covenants, and agreements contained in the certificates delivered by Purchaser at Closing pursuant to Section 9.3(i) or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Purchaser Group are (A) the rights to indemnity from Purchaser Parties set forth in Section 12.2, as limited by the terms of this Article 12, (B) the right to seek specific performance for the breach or failure of Purchaser Parties to perform any covenants required to be performed after Closing or any other equitable relief available to Seller, (C) rights and remedies available post-Closing expressly set forth in Article 3, (D) remedies available post-Closing expressly set forth in Article 7, (E) any additional rights and remedies expressly set forth in any Transaction Document other than this Agreement, and (F) any rights of Seller or any designees of Common Stock included in the Stock Purchase Price with respect to any rights or remedies under applicable Laws or contract to the extent arising out of such Person’s ownership of such Common Stock. Except for the rights and remedies described above, and except in the case of any claim based on the actual and intentional fraud of a Party in connection with the making of the representations and warranties contained in this Article 11Agreement or in any Transaction Document (it being understood that nothing in this Agreement shall limit any claim based on the intentional fraud of a Party hereto), upon Closing, each Purchaser Party, on the one hand, and Seller, on the other hand, waives, releases, remises, and forever discharges, and shall cause each member of the Purchaser Group and Seller Group, as applicable, to waive, release, remise, and forever discharge, each member of the Seller Group and Purchaser Group, as applicable, from any and all Damages, suits, legal or administrative proceedings, claims, demands, losses, costs, obligations, liabilities, interest, charges, or causes of action whatsoever, in law Law or in equity, known or unknown, which any member of the Purchaser Group or Seller Group, as applicable, might now or subsequently may have, based on, relating to, to or arising out of the negotiation, performance, and consummation of this Agreement or the other Transaction Documents or the transactions contemplated hereunder or thereunder, or any member of the Seller Group’s or Purchaser Group’s, as applicable, ownership, use use, or operation of the Assets and Subject SecuritiesAssets, or the condition, quality, status, or nature of the Assets or Subject Securitiestheir respective assets, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF THE SELLER GROUP, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, GROSS SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, OR CONCURRENT), STRICT LIABILITY LIABILITY, OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEE, INVITEES OR THIRD PARTYPARTIES). Without limiting the generality of the immediately preceding sentence, Purchaser agreeseach Party agrees that, and shall cause each member of the Purchaser Group to agree, that from and after Closing the sole and exclusive remedies of the Purchaser Group with respect to any member of the Seller Group’s breach of representations, warranties, covenants, and agreements herein or in the other Transaction Document Documents and of the Seller Group with respect to any member of the Purchaser Group’s breach of representations, warranties, covenants, and agreements herein or in the other Transaction Documents shall be be, (x) in the rights to indemnity under Section 11.3, as limited by case of the terms of this Article 11. No Party or Person is asserting the accuracy, completeness, or truth of any representation and warranty set forth in this Agreement; rather the Parties have agreed that should any representation or warranty of any Party prove inaccurate, incomplete, or untruePurchaser Group, the other Party shall have the specific rights and remedies herein specified as described in clauses (i) through (vii) above of this Section 12.5(a), and the exclusive remedy therefor, but that no other rights, remedies, or causes of action (whether in law or in equity or whether in contract or in tort or otherwise) are permitted to any Party hereto as a result members of the failurePurchaser Group shall otherwise have no further right to indemnity or reimbursement under this Agreement, breachand (y) in the case of the Seller Group, inaccuracy, incompleteness, the rights and remedies described in clauses (A) through (F) above of this Section 12.5(a) and the members of the Seller Group shall otherwise have no further right to indemnity or untruth of any such representation and warrantyreimbursement under this Agreement.
(b) Any claim for indemnity under this Article 11 12 by any current or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, and consultant member of any Party Purchaser Group or Seller Group must be brought and administered by the applicable Party to this Agreement. No Indemnified Person other than Sellers Seller and each Purchaser Party shall have any rights against Sellers Seller or Purchaser Parties under the terms of this Article 11 12 except as may be exercised on its behalf by Purchaser Parties or SellersSeller, as applicable, pursuant to this Article 1112. Sellers Seller and Purchaser may elect to exercise or not exercise indemnification rights under this Section Agreement on behalf of the other Indemnified Persons affiliated with it in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this Section.
(c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of any member of the Seller Group or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related thereto.
(d) The amount of any Damages for which a Purchaser Party or Seller, as applicable, or any member of the Purchaser Group or Seller Group, as applicable, is entitled to indemnity from Seller or Purchaser Parties, as applicable, or reimbursement from the balance of the Holdback Shares (as applicable) under this Article 11 12 shall be reduced by the amount of insurance or other Third Party proceeds, reimbursements, proceeds or claims realized or that could reasonably be expected to be reimbursements actually realized by such Purchaser Party or Seller, as applicable, or applicable members of the Purchaser Group if a claim were properly pursued under the relevant insurance arrangements or Seller Group with respect to such Damages. Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by a member of the Purchaser Group or Seller Group, as applicable); provided that no Purchaser Party or Seller shall use commercially reasonable efforts be required to pursue and or prosecute any and all claims against Third Parties for which such Purchaser Party or Seller any member of the Purchaser Group or Seller, as applicable, is entitled to indemnity from Sellers Seller or reimbursement from the balance of the Holdback Shares (as applicable) or Purchaser Parties, as applicable, under this Article 1112. In the event that any member of the Purchaser Group or Seller Group, as applicable, receives funds or proceeds from any insurance carrier or any other Third Party with respect to any Damages, (i) Purchaser shall, regardless of when received by such member of the Purchaser Group, promptly pay and deposit into the Escrow Account (or if the entirety of the Holdback Shares have been disbursed to the Sellers Seller, to Seller) such funds or proceeds to the extent of any Holdback Shares (valued at the Share Price) previously disbursed with respect to such Damages and (ii) Seller shall, regardless of when received by such member of the Seller Group, promptly pay to Purchaser such funds or proceeds to the extent of any amounts previously paid by Sellers or any of its Affiliates to the Seller Group with respect to such Damages.
(d) Except to the extent a Party elects to proceed with Closing despite the failure of the conditions set forth in Section 8.1(a) or 8.2(a), as applicable, as contemplated by Section 7.11, (i) the representations, warranties, and covenants of each of the Parties set forth in this Agreement shall not be affected by any information furnished to, or any investigation or audit conducted before or after the Closing Date by, any Person in connection with the transactions contemplated hereby (ii) in order to preserve the benefit of the bargain otherwise represented by this Agreement, each Party shall be entitled to rely upon the representations, warranties, covenants, and agreements of the other Party set forth herein notwithstanding any investigation or audit conducted or any knowledge acquired (or capable of being acquired) before or after the Closing Date or the decision of any Party to complete the Closing, and (iii) the right to indemnification or other remedy based on any of the representations, warranties, covenants, or agreements in this Agreement shall not be affected by any investigation or audit conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or agreement.
(e) Subject to the terms hereof, each Each Indemnified Person shall use commercially make reasonable efforts to mitigate or minimize all Damages upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If an Indemnified Person fails to so mitigate any indemnifiable Damages under the preceding sentence; provided, that such Indemnified Person shall have no right not be obligated to indemnity hereunder expend any material costs or expenses in order to comply with respect to such Damages its mitigation covenant hereunder, and the Indemnifying Party shall have no liability for any portion costs or expenses incurred in furtherance of such mitigation covenant shall be considered Damages that reasonably could have been avoided, reduced, or mitigated had the Indemnified Person made such reasonable effortshereunder.
(f) The Parties shall treat, for U.S. federal and applicable state and local income tax Income Tax purposes, any amounts paid or received under this Article 11 12 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws.
(g) Except to the extent of claims and rights expressly included as part of the Assets and as otherwise provided in this Agreement, nothing in this Agreement is intended to limit or otherwise waive any recourse that (i) Seller may have against any Person that is not a member of the Purchaser Group for any Damages, obligations, or liabilities that may be incurred with respect to the ownership or operation of the Assets or the Retained Liabilities and (ii) a Purchaser Party may have against any Person that is not a member of the Seller Group for any Damages, obligations, or liabilities that may be incurred with respect to the ownership or operation of the Assets or the Assumed Obligations; provided, however, notwithstanding anything herein to the contrary, the Parties acknowledge and agree that no past, present, or future director, manager, officer, employee, incorporator, member, partner, stockholder, agent, attorney, representative, Affiliate, or financing source (including, without limitation, Warburg Pincus LLC, Pine Brook Road Partners, LLC, Yorktown Energy Partners IX, L.P., and their respective past, present, or future directors, managers, officers, employees, incorporators, members, partners, stockholders, agents, attorneys, representatives, Affiliates (other than any of the Parties or any of their subsidiaries), or financing sources of any of the Parties to this Agreement (each, a “Non-Recourse Person”), in such capacity, shall have any liability or responsibility (in contract, tort, or otherwise) for any Damages, suits, legal or administrative proceedings, claims, demands, losses, costs, obligations, liabilities, interests, charges, or causes of action whatsoever, in law or in equity, known or unknown, which are based on, related to, or arise out of the negotiation, performance, and consummation of this Agreement or the other Transaction Documents or the transactions contemplated hereunder or thereunder; provided, further, nothing in this proviso shall relieve any Non-Recourse Person for any liability for any actual and intentional fraud with respect to the making of any of the representations and warranties under this Agreement, provided, that such actual and intentional fraud of such Non-Recourse Person shall only be deemed to exist if such Non-Recourse Person had actual knowledge (as opposed to imputed or constructive knowledge) that the representations and warranties made under this Agreement were actually breached when made, with the express intention that Purchaser or Purchaser Parent rely thereon to such Person’s detriment. This Agreement may only be enforced against, and any dispute, controversy, matter, or claim based on, related to, or arising out of this Agreement, or the negotiation, performance, or consummation of this Agreement, may only be brought against the Persons that are expressly named as Parties, and then only with respect to the specific obligations set forth herein with respect to such Party. Each Non-Recourse Person is expressly intended as a Third Party beneficiary of this Section 12.5(g).
(h) To the extent of the indemnification obligations in this Agreement, each Purchaser Party and Sellers Seller hereby waive for themselves and their respective successors and assigns, including any insurers, any rights to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person under this Agreement. If required by applicable insurance policies, each Party shall obtain a waiver of such subrogation from its insurers.
(hi) Notwithstanding anything herein or in any Transaction Document to the contrary, the obligations and the rights of the Parties hereunder, and the amount of any Damages for which any Party is obligated to indemnify, or any member of the Seller Group or any each member of the Purchaser Group, as applicable, is entitled Group to indemnity indemnification (and Seller’s obligations) under Section 11.2 or Section 11.3 12.3(d) (as applicable, limited by the terms hereof) shall be calculated satisfied first (A) from the balance of the Holdback Shares until the entirety of the Holdback Shares have been disbursed and second (B) by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of Sellers or Purchaser; provided, however, this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warrantiesSeller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Diamondback Energy, Inc.)
Exclusive Remedy and Certain Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, from and after Closing, Purchaser’s and except with respect to claims or causes of action arising from Fraud, the Purchaser Group’s sole exclusive remedy against any member of the Seller Group with respect to the negotiation, performance, and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants, covenants and agreements of any member of the Seller Group contained herein, and the affirmations of such representations, warranties, covenants, covenants and agreements of each Seller contained in the certificates delivered by any member of the Seller Group at Closing pursuant to Section 8.2(g10.2(e) or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group are (i) the rights set forth in Section 11.313.2, as limited by the terms of this Article 1113; (ii) the right to seek specific performance for the breach or failure of each Seller to perform any covenants required to be performed after Closing; (iii) the rights and remedies expressly available post-Closing as set forth in Article 3; and (iv) the remedies available post-Closing expressly set forth in Article 7. Notwithstanding anything to the contrary contained in this Agreement, from and after Closing, except with respect to claims or causes of action arising from Fraud, the Seller Group’s sole exclusive remedy against any member of the Purchaser Group with respect to any breach of the representations, warranties, covenants and agreements contained herein, and the affirmations of such representations, warranties, covenants and agreements of Purchasers contained in the certificates delivered by a Purchaser at Closing pursuant to Section 10.2(e) are (i) the rights set forth in Section 13.1, as limited by the terms of this Article 13; (ii) the right to seek specific performance for the breach or failure of Purchaser to perform any covenants required to be performed after Closing; (iii) the rights and remedies expressly available post-Closing as set forth in Article 3; (iv) the remedies available post-Closing expressly set forth in Article 7 and (v) any rights of a Seller with respect to any rights or remedies under applicable Laws to the extent arising out of such Person’s ownership of Opco Common Units, Class B Units and/or Common Units (as applicable). Except for the rights and remedies contained described above and with respect to claims or causes of action arising from Fraud (it being understood that nothing in this Article 11Agreement shall limit any claim based on the Fraud of a Party hereto), upon Closing, Purchaser each Purchaser, on the one hand, and each Seller, on the other hand, waives, releases, remises, remises and forever discharges, and shall cause each member of the Purchaser Group or Seller Group, as applicable, to waive, release, remise, remise and forever discharge, each member of the Seller Group or Purchaser Group, as applicable, from any and all Damages, suits, legal or administrative proceedings, claims, demands, losses, costs, obligations, liabilities, interest, charges, charges or causes of action whatsoever, in law or in equity, known or unknown, which any member of the Purchaser Group or Seller Group, as applicable, might now or subsequently may have, based on, relating to, to or arising out of the negotiation, performance, performance and consummation of this Agreement or the transactions contemplated hereunder or any member of the Seller Group’s ownership, use ownership or operation of the Assets and Subject SecuritiesAssets, or the condition, quality, status, or nature ownership of the Assets Subject Companies or the Subject Securities, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF THE SELLER GROUP, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, COMPARATIVE OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEE, INVITEE OR THIRD PARTY. Without limiting the generality of the immediately preceding sentence, Purchaser agrees, and shall cause each member of the Purchaser Group to agree, that from and after Closing the sole and exclusive remedies of the Purchaser Group with respect to any member of the Seller Group’s breach of representations, warranties, covenants, and agreements herein or in the other Transaction Document shall be the rights to indemnity under Section 11.3, as limited by the terms of this Article 11. No Party or Person is asserting the accuracy, completeness, or truth of any representation and warranty set forth in this Agreement; rather the Parties have agreed that should any representation or warranty of any Party prove inaccurate, incomplete, or untrue, the other Party shall have the specific rights and remedies herein specified as the exclusive remedy therefor, but that no other rights, remedies, or causes of action (whether in law or in equity or whether in contract or in tort or otherwise) are permitted to any Party hereto as a result of the failure, breach, inaccuracy, incompleteness, or untruth of any such representation and warranty.
(b) Any claim for indemnity under this Article 11 13 by any current or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, and consultant of any Party must be brought and administered by the applicable Party to this Agreement. No Indemnified Person other than Sellers and Purchaser Purchasers shall have any rights against Sellers or Purchaser Purchasers under the terms of this Article 11 13 except as may be exercised on its behalf by Purchaser Purchasers or Sellers, as applicable, pursuant to this Article 1113. Sellers and Purchaser Purchasers may elect to exercise or not exercise indemnification rights under this Section Article 13 on behalf of the other Indemnified Persons affiliated with it them in its their sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this Section.
(c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of any member of the Seller Group or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related thereto.
(d) The amount of any Damages for which Purchaser a Party or any member of the Purchaser Group or Seller Group, as applicable, is entitled to indemnity under this Article 11 13 shall be reduced by the amount of insurance or other Third Party proceeds, reimbursements, reimbursements or claims realized or that could reasonably be expected to be realized actually received by Purchaser such Party or applicable members of the Purchaser Group if a claim were properly pursued under or Seller Group (less the relevant insurance arrangements with respect to amount of any deductible paid or costs incurred by such Damagesindemnified Party in connection therewith). Purchaser Purchasers shall use commercially reasonable efforts to pursue and prosecute any and all claims against Third Parties recover under insurance policies or other rights of recovery for which Purchaser Purchasers or any member of the Purchaser Group is entitled to indemnity from Sellers any Seller under this Article 1113. In the event that any member of the Purchaser Group receives funds or proceeds from any insurance carrier or any other Third Party with respect to any Damages, Purchaser Purchasers shall, regardless of when received by such member of the Purchaser Group, promptly pay to the Sellers applicable Seller such funds or proceeds to the extent of any funds previously paid by Sellers such Seller or any of its Affiliates with respect to such Damages.
(ed) Subject to the terms hereof, each Indemnified Person shall use commercially make reasonable efforts to mitigate or minimize all Damages upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If an Indemnified Person fails to so mitigate any indemnifiable Damages under the preceding sentence; provided, that such Indemnified Person shall have no right not be obligated to indemnity expend any material costs or expenses in order to comply with its mitigation covenant hereunder with respect to such Damages and the Indemnifying Party shall have no liability for any portion costs or expenses incurred in furtherance of such mitigation covenant shall be considered Damages that reasonably could have been avoided, reduced, or mitigated had the Indemnified Person made such reasonable effortshereunder.
(fe) The Parties shall treat, for U.S. federal and applicable state and local income tax Tax purposes, any amounts paid or received under this Article 11 13 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws.
(gf) To the extent of the indemnification obligations in this Agreement, Purchaser Purchasers and Sellers hereby waive for themselves and their respective successors the members of the Purchaser Group and assignsSeller Group, as applicable, including any insurers, any rights to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person under this Agreement. If required by applicable insurance policies, each Party shall obtain a waiver of such subrogation from its insurers.
(h) Notwithstanding anything herein or in any Transaction Document to the contrary, the obligations and the rights of the Parties hereunder, and the amount of any Damages for which any Party is obligated to indemnify, or any member of the Seller Group or any member of the Purchaser Group, as applicable, is entitled to indemnity under Section 11.2 or Section 11.3 as applicable, shall be calculated by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of Sellers or Purchaser; provided, however, this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warranties.this
Appears in 1 contract
Samples: Securities Purchase Agreement (Kimbell Royalty Partners, LP)
Exclusive Remedy and Certain Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, other than with respect to any claims arising from Fraud of a Party, to which this Section 12.4(a) shall not apply, from and after Closing, Closing each of Purchaser’s and Purchaser Group’s and Seller’s and Seller Group’s sole and exclusive remedy against any member of the Seller Group or the Purchaser Group, as applicable, with respect to the negotiation, performance, performance and consummation of the transactions contemplated hereunder, any breach of the representations, warranties, covenants, covenants and agreements of any member of the Seller Group or the Purchaser Group, as applicable, contained herein, the affirmations of such representations, warranties, covenants, covenants and agreements contained in the certificates delivered by any member of Seller Certificate or the Seller Group at Closing pursuant to Section 8.2(g) Purchaser Certificate, respectively, or contained in any other Transaction Document delivered hereunder by or on behalf of any member of the Seller Group or the Purchaser Group, as applicable, are (i) the rights to indemnification or defense from Seller set forth in Section 11.312.2 or from Purchaser as set forth in Section 12.1, each as limited by the terms of this Article 1112 and (ii) the right to seek specific performance for the breach or failure of Seller or Purchaser to perform any covenants required to be performed after Closing. Except for the remedies for indemnification or defense from Seller or Purchaser, as applicable, contained in this Article 11, 12 or elsewhere in this Agreement upon Closing, any rights or claims of the Company or Seller (or any of their Affiliates) pursuant to any other written agreement with the Seller Group or the Purchaser Group, as applicable, each of Purchaser and Seller waives, releases, remises, remises and forever discharges, and shall cause each member of the Purchaser Group or Seller Group, as applicable, to waive, release, remise, remise and forever discharge, each member of the Seller Group or Purchaser Group, as applicable, from any and all Damages, suits, legal or administrative proceedings, claims, demands, losses, costs, obligations, liabilities, interest, charges, charges or causes of action whatsoever, in law Law or in equity, known or unknown, which any member of the Purchaser Group or Seller Group, as applicable, might now or subsequently may have, based on, relating to, to or arising out of the negotiation, performance, performance and consummation of this Agreement or the other Transaction Documents or the -57- transactions contemplated hereunder or any member of the Seller Group’s ownership, use or operation of the Assets and Subject Securitiesthereunder, or the condition, quality, status, status or nature of the Assets or Subject Securitiesany Assets, INCLUDING RIGHTS TO CONTRIBUTION UNDER CERCLA OR ANY OTHER ENVIRONMENTAL LAW, BREACHES OF STATUTORY AND IMPLIED WARRANTIES, NUISANCE OR OTHER TORT ACTIONS, RIGHTS TO PUNITIVE DAMAGES, COMMON LAW RIGHTS OF CONTRIBUTION, ANY RIGHTS UNDER INSURANCE POLICIES ISSUED OR UNDERWRITTEN BY ANY MEMBER OF THE PURCHASER GROUP, AND ANY RIGHTS UNDER AGREEMENTS AMONG ANY MEMBERS OF GROUP OR THE SELLER GROUP, AS APPLICABLE, EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE, COMPARATIVE OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY RELEASED PERSON, INVITEE, INVITEES OR THIRD PARTY. Without limiting the generality of the immediately preceding sentence, Purchaser agrees, and shall cause each member of the Purchaser Group to agree, that from and after Closing the sole and exclusive remedies of the Purchaser Group with respect to any member of the Seller Group’s breach of representations, warranties, covenants, and agreements herein or in the other Transaction Document shall be the rights to indemnity under Section 11.3, as limited by the terms of this Article 11PARTIES. No Party or Person is asserting the accuracy, completeness, completeness or truth of any representation and warranty set forth in this Agreement; rather rather, the Parties have agreed that should any representation or warranty of any Party prove inaccurate, incomplete, incomplete or untrue, the other Party shall have the specific rights and remedies herein specified as the exclusive remedy therefor, but that no other rights, remedies, remedies or causes of action (whether in law Law or in equity or whether in contract or in tort or otherwise) are permitted to any Party hereto as a result of the failure, breach, inaccuracy, incompleteness, incompleteness or untruth untruthfulness of any such representation and warranty.
(b) Any claim for indemnity under this Article 11 12 by any current or former Affiliate, stockholder, member, officer, director, employee, agent, lender, advisor, representative, accountant, attorney, attorney and consultant of any Party must be brought and administered by the applicable Party to this Agreement. No Indemnified Person other than Sellers Seller and Purchaser shall have any rights against Sellers Seller or Purchaser under the terms of this Article 11 12, except as may be exercised on its behalf by Purchaser or SellersSeller, as applicable, pursuant to this Article 1112. Sellers Seller and Purchaser may elect to exercise or not exercise indemnification rights under this Section Agreement on behalf of the other Indemnified Persons affiliated with it in its sole discretion and shall have no liability to any such other Indemnified Person for any action or inaction under this SectionSection 12.4.
(c) Notwithstanding anything in this Agreement to the contrary, if the Closing occurs, in no event shall any member of the Purchaser Group be entitled to assert the breach or failure of any representation, warranty, or covenant of any member of the Seller Group or any condition precedent of Purchaser in this Agreement or any related document or any certificate delivered pursuant hereto or thereto as a basis for a claim for indemnification or defense under this Article 11 to the extent that any member of the Purchaser Group had knowledge of such breach or failure prior to the Closing Date, and the members of the Purchaser Group shall be deemed to have waived any claim for breach of a covenant, representation, or warranty or for indemnity hereunder related thereto.
(d) The amount of any Damages for which Purchaser a Party or any member of the Purchaser Group or the Seller Group, as applicable, is entitled to indemnity under this Article 11 12 shall be reduced by the amount of insurance or other Third Party third party proceeds, reimbursementsrecoupment, reimbursements or claims realized or that could reasonably be expected to be realized by Purchaser or applicable members of the Purchaser Group if a claim were properly pursued (including Company and any Subsidiary) or the Seller Group, as applicable, under the relevant insurance arrangements arrangements, agreements, contracts or applicable Laws with respect to such Damages, less all costs of pursuing such claim. Purchaser Each Party shall use use, and shall cause its Affiliates to use, commercially reasonable efforts to pursue and prosecute any and all claims against Third Parties (including against Concho under the terms of the Class A Purchase Agreement) for which Purchaser such Party or any member of the Purchaser Group (including Company and any Subsidiary) or the Seller Group, as applicable, is entitled to indemnity indemnification or defense from Sellers the other Party under this Article 1112. In the event that any set of facts or circumstances may give a Party or any member of the Purchaser Group or the Seller Group, as applicable, a claim to indemnification or defense under both this Agreement and the Class A Purchase Agreement, such Party shall be required to concurrently seek indemnification or defense under the Class A Purchase Agreement for such claim, and to exhaust all remedies thereunder in connection with such claims or right of defense. In the -58- event that any member of the Purchaser Group or the Seller Group, as applicable, receives funds or proceeds from Concho or any insurance carrier or any other Third Party with respect to any Damages, Purchaser or Seller, as applicable, shall, regardless of when received by such member of the Purchaser Group or the Seller Group, as applicable, promptly pay to and reimburse the Sellers other Party such funds or proceeds to the extent of any funds previously paid by Sellers to any member of the Purchaser Group or any of its Affiliates the Seller Group, as applicable, with respect to such Damages, less all costs of pursuing such claim; provided, in no case shall Seller be entitled to any proceeds Purchaser recovers from Concho with respect to Damages in respect of a breach of a Company-Specific Representation.
(ed) Subject to the terms hereof, each Each Indemnified Person shall use commercially make reasonable efforts to mitigate or minimize all Damages upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Damages that are indemnifiable hereunder. If an Indemnified Person fails to so mitigate any indemnifiable Damages under the preceding sentence, such Indemnified Person shall have no right to indemnity hereunder with respect to such Damages and the Indemnifying Party shall have no liability for any the portion of such Damages that reasonably could have been avoided, reduced, reduced or mitigated had the Indemnified Person made such reasonable efforts.
(fe) The Parties shall treat, for U.S. federal and applicable state and local income tax Tax purposes, any amounts paid or received under this Article 11 12 as an adjustment to the Adjusted Purchase Price, unless otherwise required by applicable Laws.
(f) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances shall any Party be entitled to double recovery under this Agreement, and to the extent a Party is compensated for a matter through an adjustment to the Purchase Price or third party recovery or insurance recovery (including from Concho under the Class A Purchase Agreement or any other agreements) actually received, such Party shall not have a separate right to indemnification hereunder for such matter.
(g) To the extent of the indemnification obligations in this Agreement, Purchaser and Sellers Seller hereby waive for themselves and their respective successors and assigns, including any insurers, any rights to subrogation for Damages for which such Party is liable or against which such Party indemnifies any other Person under this Agreement. If required by applicable insurance policies, each Party shall obtain a waiver of such subrogation from its insurers.
(h) Notwithstanding anything herein or in any Transaction Document to the contrary, the obligations and the rights of the Parties hereunder, and the amount of any Damages for which any Party is obligated to indemnify, or any member of the Seller Group or any member of the Purchaser Group, as applicable, is entitled to indemnity under Section 11.2 or Section 11.3 as applicable, shall be calculated by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of Sellers or Purchaser; provided, however, this subpart (h) shall not apply in connection with the determination of any breaches of any such representations or warranties.
Appears in 1 contract
Samples: Securities Purchase Agreement (Plains All American Pipeline Lp)
