Seller’s Indemnification of Buyer. Subject to the limitations set forth below, Seller shall indemnify, defend and save and hold harmless Buyer and its Affiliates, and its and their respective Representatives (the “Buyer Indemnified Parties”), from and against any and all Losses attributable to or which arise from or in connection with: (i) (Certain Representations) any breach by Seller of any of its representations or warranties under Sections 6.1 through 6.6, inclusive, Section 6.8 and Section 6.19; (ii) (Other Representations) any breach by Seller of any of its representations or warranties under Sections 6.7, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusive; provided (A) Seller shall not have any liability for claims made under this clause (ii) after the first anniversary of the Closing Date; (B) Seller shall have liability for claims made under this clause (ii) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and (C) Seller’s aggregate liability for all claims made under this clause (ii) shall be limited to and shall not exceed 20% of the Base Purchase Price; (iii) (Covenants and Agreements) any breach by Seller of its covenants or agreements under this Agreement; provided that Seller shall not have any liability for claims made under this clause (iii) after the second anniversary of the Closing Date; (iv) (Royalties) any Royalties payable by Seller on or attributable to production from the Assets during the period prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (iv) after the second anniversary of the Closing Date; (v) (Property Expenses) any Property Expenses (excluding Assumed Environmental Liabilities and Buyer’s Plugging and Abandonment Obligations) that are attributable to periods prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing Date; (vi) (Personal Injury) any claim by any Person for personal injury or wrongful death that is attributable to events relating to the Assets and occurring during the period prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary of the Closing Date; (vii) (Taxes) any Taxes allocable to Seller under Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.7); provided that Seller shall have no liability for claims made under this clause (vii) after the expiration of the applicable statute of limitations with respect to such matter; (viii) (Indemnified Title Defect) any Indemnified Title Defect to the extent set forth in Section 4.5(b)(iii); (ix) (Excluded Assets) any claim by any Person relating to ownership, use or operation of the Excluded Assets; (x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule; (xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials, NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets; (xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating to the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto; (xiii) (Debt of Seller) any debt of Seller, whether or not relating to or encumbering the Assets; (xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees to the extent arising out of the governance of Seller; and (xv) (Civil and Criminal Matters) any civil fines or penalties or criminal sanctions imposed on Seller or its Affiliates to the extent relating to any pre-Closing violation of Law by Seller or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS: (A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value of such Asset as set forth in Exhibit C, less the net proceeds received by Buyer therefrom; and (B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and (C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) shall be limited to and shall not exceed an amount equal to 20% of the Base Purchase Price.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Cimarex Energy Co), Purchase and Sale Agreement (Callon Petroleum Co)
Seller’s Indemnification of Buyer. Subject to the limitations set forth belowSeller assumes all risk, Seller liability, obligation and Losses in connection with, and shall defend, indemnify, defend and save and hold harmless Buyer harmless, severally and not jointly, Buyer, its Affiliatesofficers, directors, employees and its and their respective Representatives (the “Buyer Indemnified Parties”)agents, from and against any and all Losses attributable to or which arise directly or indirectly from or in connection with:
with (i) the Retained Liabilities; (Certain Representationsii) the Retained Assets; (iii) any matter for which Seller has agreed to indemnify Buyer under this Agreement; (iv) any breach by Seller of any of its representations Seller’s representations, warranties hereunder; and (v) any failure of Seller to perform Seller’s covenants hereunder.
(i) The indemnities in this Section 15.3 shall terminate as of the termination date of each respective representation, warranty, covenant or warranties under Sections 6.1 through 6.6agreement that is subject to indemnification thereunder, inclusive, Section 6.8 and Section 6.19;except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Party on or before such termination date.
(ii) (Other Representations) any breach by Notwithstanding anything to the contrary, in no event shall Seller of any of its representations or warranties under Sections 6.7, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusive; provided (A) Seller shall not have any liability for claims made indemnification under this clause Subsection 15.3(a), (iiA) after for any individual Claims (defined in Subsection 15.4(b)) that do not exceed One Hundred Thousand Dollars ($100,000.00) in Losses (the first anniversary of the Closing Date; “Individual Claim Threshold”) and (B) Seller shall have until and unless the aggregate amount of the liability for claims made under this clause Losses related to Claims that meet or exceed the Individual Claim Threshold exceeds two percent (ii2%) of the unadjusted Purchase Price, and then only to the extent that such claims in the aggregate Losses exceed a deductible amount equal to 1.5% Two percent (2%) of the Base unadjusted Purchase Price; and Price (Cthe “Aggregate Claim Deductible”). The maximum liability of Seller for indemnification pursuant to Subsection 15.3(a) Seller’s aggregate liability for all claims made under this clause (ii) shall be limited with respect to and Losses suffered by the Buyer shall not exceed 20% Twelve percent (12%) of the Base unadjusted Purchase Price;Price (the “Indemnification Cap”).
(iii) (Covenants and Agreements) The amount of any breach by Seller of its covenants or agreements Losses for which an Indemnified Party is entitled to indemnity under this Agreement; provided that Seller Article 15 shall not have be reduced by (A) the amount of insurance proceeds realized by the Indemnified Party or its Affiliates with respect to such Losses (net of any liability for claims made under this clause collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Party or its Affiliates) and (iiiB) after an amount equal to the second anniversary amount of any tax benefit reasonably expected to be received by the Indemnified Party or its Affiliates in connection with such Losses or any of the Closing Date;circumstances giving rise thereto.
(iv) In no event shall (RoyaltiesA) any Royalties payable by Seller on or attributable Indemnified Party be entitled to production from the Assets during the period prior duplicate compensation with respect to the Effective Time; provided Seller shall not have same Loss, liability, damage, cost, expense, claim, under more than one provision of this Agreement and the various documents delivered in connection with the Closing, or for which an Indemnified Party received the benefits of an adjustment to the Purchase Price pursuant to any liability for claims made under other provision of this clause Agreement and (ivB) after the second anniversary any Person be entitled to indemnification hereunder with respect to a breach by an Indemnifying Party of any of the Closing Date;
(v) (Property Expenses) any Property Expenses (excluding Assumed Environmental Liabilities and Buyer’s Plugging and Abandonment Obligations) that are attributable representations, warranties or covenants made or agreed to periods prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (v) after the second anniversary by such Indemnifying Party hereunder of the Closing Date;
(vi) (Personal Injury) any claim by any which such Person for personal injury or wrongful death that is attributable to events relating to the Assets and occurring during the period had actual knowledge prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary of the Closing Date;
(vii) (Taxes) any Taxes allocable to Seller under Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.7); provided that Seller shall have no liability for claims made under this clause (vii) after the expiration of the applicable statute of limitations with respect to such matter;
(viii) (Indemnified Title Defect) any Indemnified Title Defect to the extent set forth in Section 4.5(b)(iii);
(ix) (Excluded Assets) any claim by any Person relating to ownership, use or operation of the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials, NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating to the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto;
(xiii) (Debt of Seller) any debt of Seller, whether or not relating to or encumbering the Assets;
(xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees to the extent arising out of the governance of Seller; and
(xv) (Civil and Criminal Matters) any civil fines or penalties or criminal sanctions imposed on Seller or its Affiliates to the extent relating to any pre-Closing violation of Law by Seller or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value of such Asset as set forth in Exhibit C, less the net proceeds received by Buyer therefrom; and
(B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) shall be limited to and shall not exceed an amount equal to 20% of the Base Purchase Price.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Legacy Reserves Lp)
Seller’s Indemnification of Buyer. Subject Effective from and after the Closing, subject to the limitations set forth belowthis Section 13 and otherwise in this Agreement, Seller and its successors and assigns shall indemnifybe responsible for, defend shall pay, and save will DEFEND, INDEMNIFY and hold harmless HOLD HARMLESS Buyer and its Affiliates, and all of its and their respective Representatives equity holders, partners, members, directors, officers, managers, employees, agents and representatives (collectively, the “Buyer Indemnified Parties”), ) from and against any and all Losses attributable to claims, causes of actions, payments, charges, interest assessments, judgments, liabilities, losses, damages, penalties, fines or which arise from costs and expenses, including any reasonable fees of attorneys, experts, consultants, accountants and other professional representatives and reasonable legal or other expenses incurred in connection therewith and including liabilities, costs, losses and damages for personal injury, illness or death, property damage, contracts claims, torts or otherwise (collectively, “Liabilities”) arising out of, resulting from, based on, associated with:
, or relating to (i) (Certain Representations) any breach by Seller of any of its representations or warranties under Sections 6.1 through 6.6set forth in this Agreement, inclusivethe Assignment, Section 6.8 and Section 6.19;
and/or the Seller’s Certificate; (ii) (Other Representations) any breach by Seller of any of its representations covenants or warranties under Sections 6.7, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusiveagreements set forth in this Agreement; provided or (Aiii) the Specified Liabilities. Notwithstanding anything herein to the contrary:
(i) Seller shall not have be required to indemnify Buyer with respect to any liability for claims made under this clause Liabilities unless Buyer has provided Seller with a notice pursuant to Section 13.2(c) during the applicable survival period.
(ii) after the first anniversary Seller shall not be required to indemnify Buyer for any individual claim of the Closing Date; Liabilities of less than Fifty Thousand Dollars (B$50,000.00) (“Individual Claim Threshold”).
(iii) Seller shall have liability for claims made under this clause (ii) not be required to indemnify Buyer unless, and then only to the extent that, Liabilities that such claims in exceed the aggregate exceed a deductible amount equal to 1.5% Individual Claim Threshold, exceeds one percent of the Base Purchase Price; and Price (C) Seller’s aggregate liability for all claims made under this clause (ii) shall be limited to and shall not exceed 20% of the Base Purchase Price;
(iii) (Covenants and Agreements) any breach by Seller of its covenants or agreements under this Agreement; provided that Seller shall not have any liability for claims made under this clause (iii) after the second anniversary of the Closing Date;1%).
(iv) (Royalties) any Royalties payable by Seller on or attributable to production from the Assets during the period prior to the Effective Time; provided Seller shall not have be required to indemnify Buyer for the amount of any liability for claims made under this clause Liabilities in excess of thirty-five percent (iv35%) after the second anniversary of the Closing Date;Purchase Price unless such indemnification is due to a breach of Seller’s Fundamental Representations.
(v1) (Property Expenses) any Property Expenses (excluding Assumed Environmental Liabilities For purposes of this Agreement, the term “Fundamental Representations” means the representations and Buyer’s Plugging and Abandonment Obligations) that are attributable to periods prior to the Effective Time; provided warranties of Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing Date;
(vi) (Personal Injury) any claim by any Person for personal injury or wrongful death that is attributable to events relating to the Assets and occurring during the period prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary of the Closing Date;
(vii) (Taxes) any Taxes allocable to Seller under Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.7); provided that Seller shall have no liability for claims made under this clause (vii) after the expiration of the applicable statute of limitations with respect to such matter;
(viii) (Indemnified Title Defect) any Indemnified Title Defect to the extent set forth in Section 4.5(b)(iii);
(ix) (Excluded Assets) any claim by any Person relating to ownership6.1, use or operation of the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials6.2, NORMSection 6.3, asbestosSection 6.5, mercurySection 6.6, drilling fluidsSection 6.8, chemicalsSection 6.11, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating to the employment or termination thereof by Seller or its AffiliatesSection 6.13, and the compensation and benefits inuring thereto;
(xiii) (Debt of Seller) any debt of Seller, whether or not relating to or encumbering the Assets;
(xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees to the extent arising out of the governance of Seller; and
(xv) (Civil and Criminal Matters) any civil fines or penalties or criminal sanctions imposed on Seller or its Affiliates to the extent relating to any pre-Closing violation of Law by Seller or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value of such Asset as set forth in Exhibit C, less the net proceeds received by Buyer therefrom; and
(B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) shall be limited to and shall not exceed an amount equal to 20% of the Base Purchase Price6.21.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Evolution Petroleum Corp), Purchase and Sale Agreement (Evolution Petroleum Corp)
Seller’s Indemnification of Buyer. Subject to If the limitations set forth belowClosing occurs, each Seller shall defend, indemnify, defend and save and hold harmless Buyer Buyer, its officers, directors, employees and its Affiliates, and its and their respective Representatives (the “Buyer Indemnified Parties”)agents, from and against any and all Losses attributable to or which arise directly or indirectly from or in connection with:
with (i) (Certain Representations) any breach by such Seller of any of its representations or warranties under Sections 6.1 through 6.6, inclusive, Section 6.8 and Section 6.19;
this Agreement; (ii) the Eco Resources Letter Agreement or the litigation disclosed in Schedule 5.7 (Other Representationscollectively, “Existing Litigation Losses”), or (iii) any breach by Seller of any of its representations or warranties under Sections 6.7such Seller, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusive; provided (A) Seller shall not have any liability for claims made under this clause (ii) after the first anniversary of the Closing Date; (B) Seller shall have liability for claims made under this clause (ii) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and (C) Seller’s aggregate liability for all claims made under this clause (ii) shall be limited to and shall not exceed 20% of the Base Purchase Price;
(iii) (Covenants and Agreements) any breach by Seller of its covenants or agreements under this Agreement; provided that Seller shall not have any liability for claims made under this clause (iii) after the second anniversary of the Closing Date;
(iv) (Royalties) any Royalties payable by Seller on or attributable to production from the Assets during the period prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (iv) after the second anniversary of the Closing Date;
(v) (Property Expenses) any Property Expenses (excluding Assumed Environmental Liabilities and Buyer’s Plugging and Abandonment Obligations) that are attributable to periods prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing Date;
(vi) (Personal Injury) any claim by any Person for personal injury or wrongful death that is attributable to events relating to the Assets and occurring during the period prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary , of the Closing Date;
(vii) (Taxes) any Taxes allocable to Seller under Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.7)Leases; provided that provided, however, such Seller shall have no liability to Buyer for claims any claim by Buyer for breach of Sections 5.7, 5.8, 5.9, 5.10, 5.11, 5.12, 5.13 or 5.14 that is not made under this clause within six (vii6) months after the expiration Closing Date. As provided in Section 13.17 herein, the obligations of the applicable statute entities comprising Seller are several, not joint and collective, and in no event shall any Seller be liable to indemnify Buyer hereunder from any Losses arising from a breach by any other Seller of limitations this Agreement or the Leases. Notwithstanding any other provision hereof, (i) in no event shall Buyer be entitled to indemnification from a Seller hereunder from Losses which, in the aggregate, exceed such Seller’s portion of the Purchase Price, as adjusted as provided herein; and (ii) except with respect to Existing Litigation Losses, Buyer shall not be entitled to indemnification from Sellers unless the aggregate amount of Losses covered by this Section 12.2(b) exceeds $200,000.00 (the “Indemnity Threshold”), such matter;
(viii) (Indemnified Title Defect) any Indemnified Title Defect amount being a threshold, not a deductible; provided that Existing Litigation Losses shall not be subject to the extent set forth in Section 4.5(b)(iii);
(ix) (Excluded Assets) any claim by any Person relating to ownership, use or operation of the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials, NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating to the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto;
(xiii) (Debt of Seller) any debt of Seller, whether or not relating to or encumbering the Assets;
(xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees to the extent arising out of the governance of Seller; and
(xv) (Civil and Criminal Matters) any civil fines or penalties or criminal sanctions imposed on Seller or its Affiliates to the extent relating to any pre-Closing violation of Law by Seller or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value of such Asset as set forth in Exhibit C, less the net proceeds received by Buyer therefrom; and
(B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) shall be limited to and shall not exceed an amount equal to 20% of the Base Purchase PriceIndemnity Threshold.
Appears in 2 contracts
Samples: Lease Acquisition Agreement, Lease Acquisition Agreement (GMX Resources Inc)
Seller’s Indemnification of Buyer. (a) Subject to the limitations set forth in Section 11.2(b) below, Seller shall indemnifyshall, defend jointly and save and hold harmless severally, indemnify Buyer and its Affiliatesrespective officers, directors, shareholders, members, managers, affiliates, employees, agents, representatives, successors and its assigns (collectively, the "BUYER PARTIES") and their respective Representatives hold each of them harmless against and pay on behalf of or reimburse such Buyer Parties in respect of any loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, tax, penalty, fine or expense, whether foreseeable or unforeseeable, whether or not arising out of third party claims, including, but not limited to, interest or other carrying costs, penalties, legal, accounting and other professional fees and expenses reasonably incurred (the “"LOSSES") which any such Buyer Indemnified Parties”)Party may suffer, from and against any and all Losses attributable to sustain or which arise become subject to, arising from or directly relating to: (i) any material inaccuracy or the breach of any representation or warranty made by Seller contained in connection withthis Agreement or any Schedule or Exhibit hereto, (ii) the breach of any covenant or agreement of Seller contained in this Agreement, (iii) any claim (whether or not successful) by any Person to cause or require Buyer to pay or discharge any debt, obligation, liability or commitment, the existence of which constitutes a breach of any Seller representation, warranty, covenant or agreement, (iv) any other third party claims or demands regarding acts of Seller relating to the conduct of the Acquired Business prior to the Closing that are asserted after Closing and (v) any claim (whether or not successful) by any of the Transferred Employees or by a work council where Seller has made a statement that is incorrect, incomplete or both incorrect and incomplete: (i) from that which is set forth in Change to Working Conditions Statement or (ii) with regard to what the Transferred Employee's work conditions will be subsequent to Buyer's acquisition of the Acquired Business unless the making of such statement was directed by Buyer.
(b) The indemnification provided for in Section 11.2(a) above is subject to the following limitations:
(i) Subject to the qualifications of Section 11.1, Seller shall be liable to Buyer with respect to claims referred to in subsection (Certain Representationsa) any breach by above only if Buyer gives Seller of any of its representations or warranties under Sections 6.1 through 6.6, inclusive, Section 6.8 and Section 6.19;written notice thereof within eighteen (18) months after the Closing Date.
(ii) (Other Representations) any breach by Seller of any of its representations or warranties under Sections 6.7, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusive; provided (A) Seller shall not be liable to Buyer for any Loss arising under subsection (a) above unless the aggregate amount of all such Losses relating to Breaches thereunder exceeds one percent (1%) of the Initial Purchase Price in the aggregate (the "THRESHOLD"), in which case Seller shall be liable only for any Losses in excess of the Threshold, but only up to an amount which does not exceed twenty-five percent (25%) of the Initial Purchase Price in the aggregate (the "CAP"); provided that:
(1) the Threshold shall not apply to breaches of the representations and warranties set forth in Section 3.6 (Title), Section 3.14 (Environmental), Section 3.15 (Employees), Section 3.16 (Employee Benefits) and Section 3.19 (Taxes),
(2) the Cap shall not apply to breaches of the environmental or tax related representations and warranties set forth in Section 3.6 (Title), Section 3.14 (Environmental), Section 3.15 (Employees), Section 3.16 (Employee Benefits) and Section 3.19 (Taxes),
(3) with respect to the representations and warranties contained in Section 3.8 and Section 3.9, Seller shall not be liable to Buyer for any Loss arising under such Sections unless Seller's breach is found to have been grossly negligent or willful, and
(4) notwithstanding the Cap, all proceeds received by Seller under Seller's liability insurance policies shall be paid over to Buyer to the extent necessary to satisfy any liability Losses which Buyer may incur by reason of such claims and Seller shall use its Commercially Reasonable Efforts to obtain such proceeds from the applicable insurers. Notwithstanding anything to the contrary herein, Buyer shall promptly, after receipt thereof, reimburse Seller for claims made under this clause all indemnification obligations paid by Seller hereunder to the extent of: (i) any insurance proceeds received by Buyer or by Seller and delivered to Buyer, and (ii) after the first anniversary any other third-party recovery in favor of the Closing Date; (B) Seller shall have liability for claims made under this clause (ii) only Buyer. Notwithstanding anything to the extent contrary herein, the parties agree that such claims the protections and remedies for Buyer set forth in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and (C) Seller’s aggregate liability for all claims made under this clause (ii) Section 11 shall be limited to and shall not exceed 20% of the Base Purchase Price;exclusive remedies for Losses described under Section 11.2.
(iii) Except as otherwise provided herein, any matter reflected in this Agreement (Covenants including the exhibits and Agreementsparts attached hereto) and/or in documents, letters, memoranda, booklets, and brochures (the "DISCLOSED DOCUMENTS") delivered to the Buyer which reasonably and adequately discloses a claim or potential claim against any Seller, or a liability or potential liability of Seller, shall be deemed a disclosure of such matter for all purposes of this Agreement. As an example, if a contract between Seller and a vendor is disclosed, Seller shall be relieved of any express payment obligations due vendor and fully shown due in such contract. However, if Seller shall be in material breach by Seller of its covenants or agreements obligations under this Agreement; provided that the Contract, and such breach is not disclosed, Seller shall not have be relieved of responsibility for any liability for claims made under this clause (iii) after the second anniversary of the Closing Date;
(iv) (Royalties) any Royalties payable by Seller on or attributable to production from the Assets during the period prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (iv) after the second anniversary of the Closing Date;
(v) (Property Expenses) any Property Expenses (excluding Assumed Environmental Liabilities and Buyer’s Plugging and Abandonment Obligations) that are attributable to periods prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing Date;
(vi) (Personal Injury) any claim by any Person for personal injury or wrongful death that is attributable to events relating to the Assets and occurring during the period prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary of the Closing Date;
(vii) (Taxes) any Taxes allocable to Seller under Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.7); provided that Seller shall have no liability for claims made under this clause (vii) after the expiration of the applicable statute of limitations with respect to such matter;
(viii) (Indemnified Title Defect) any Indemnified Title Defect to the extent set forth in Section 4.5(b)(iii);
(ix) (Excluded Assets) any claim by any Person relating to ownership, use or operation of the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials, NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating to the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto;
(xiii) (Debt of Seller) any debt of Seller, whether or not relating to or encumbering the Assets;
(xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees to the extent arising out of the governance of Seller; and
(xv) (Civil and Criminal Matters) any civil fines or penalties or criminal sanctions imposed on Seller or its Affiliates to the extent relating to any pre-Closing violation of Law by Seller or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value of such Asset as set forth in Exhibit C, less the net proceeds received by Buyer Loss resulting therefrom; and
(B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) shall be limited to and shall not exceed an amount equal to 20% of the Base Purchase Price.
Appears in 1 contract
Seller’s Indemnification of Buyer. Subject to the limitations set forth belowprovisions of this Section 16., on and after the Closing Date Seller shall indemnifyIndemnify Buyer, defend and save and hold harmless Buyer and its Affiliates, and its affiliates and their respective Representatives officers, directors, shareholders, partners, employees, and agents and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, for the “purposes of Section 8. and Section 16., "Buyer Indemnified Parties”), Party") from and against any and all Losses attributable to or which arise the extent arising from or attributable in connection withany way to:
(i) (Certain Representations) any breach by Seller of any of its representations or warranties under Sections 6.1 through 6.6, inclusive, Section 6.8 and Section 6.19the Excluded Liabilities;
(ii) (Other Representationsx) any breach of or failure to perform any covenant, or agreement in this Agreement by Seller Buyer or (y) any breach of any of its representations representation or warranties under Sections 6.7, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusive; provided (A) Seller shall not have any liability for claims made under warranty in this clause (ii) after the first anniversary of the Closing Date; (B) Seller shall have liability for claims made under this clause (ii) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and (C) Agreement by Seller’s aggregate liability for all claims made under this clause (ii) shall be limited to and shall not exceed 20% of the Base Purchase Price;
(iii) (Covenants and Agreements) any breach failure by Seller to comply with the provisions, if any, of its covenants state or agreements under this Agreement; provided that Seller shall not have any liability for claims made under this clause (iii) after the second anniversary of the Closing Date;local law requiring a seller to publish or notify with respect to bulk sales
(iv) (Royalties) any Royalties payable by Seller on Losses arising from or attributable to production from the Assets during the period prior in any way to the Effective Time; provided Seller shall not have any liability for claims made under this clause (iv) after release or subsequent migration of contamination by Hazardous Substances attributable to the second anniversary of the Closing DateWaste Units;
(v) (Property Expenses) any Property Expenses (excluding Assumed Environmental Liabilities and Buyer’s Plugging and Abandonment Obligations) that are attributable costs or expense for which Seller has assumed or retained responsibility pursuant to periods prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing DateSection 8;
(vi) (Personal Injury) any claim by any Person for personal injury or wrongful death that is attributable to events relating to the Assets and occurring during the period prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary of the Closing Date;
(vii) (Taxes) any Taxes allocable to Seller under Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.7); provided that Seller shall have no liability for claims made under this clause (vii) after the expiration of the applicable statute of limitations with respect to such matter;
(viii) (Indemnified Title Defect) any Indemnified Title Defect to the extent set forth in Section 4.5(b)(iii);
(ix) (Excluded Assets) any claim by any Person relating to ownership, use or operation of the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal violation prior to the Closing Date of any Environmental Law (including, without limitation, any violations identified by the 1997 U.S. Environmental Protection Agency Multimedia Audit of the Refinery),(vii) the presence or release of any Hazardous MaterialsSubstances (other than Contained Hazardous Substances), NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons to the extent that the event or condition relating to any such Loss (a) is existing at or relating to the Refinery or any other materials Purchased Asset as of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating prior to the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto;
(xiii) (Debt of Seller) any debt of SellerClosing Date, whether or not relating to or encumbering the Assets;
(xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of caused by Seller or contributed to by Seller, (b) hereafter exists at or arises out of its respective current the Refinery or former Affiliates, partners, managers, members, directors, officers and employees any other Purchased Asset to the extent arising out of the governance of Seller; and
(xv) (Civil and Criminal Matters) any civil fines caused or penalties or criminal sanctions imposed on Seller or its Affiliates contributed to by a release prior to the extent relating Closing Date, or (c) relates to or stems from the actual or alleged offsite shipment of, or arrangement for the treatment, storage, disposal or shipment of, Hazardous Substances away from the Refinery prior to the Closing Date including, but not limited to any pre-Closing violation of Law by Seller offsite treatment, storage, processing, recycling, reuse or disposal at any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value of such Asset as set forth in Exhibit C, less the net proceeds received by Buyer therefrom; and
(B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) shall be limited to and shall not exceed an amount equal to 20% of the Base Purchase Pricefacility.
Appears in 1 contract
Samples: Agreement for the Purchase and Sale (Clark Usa Inc /De/)
Seller’s Indemnification of Buyer. Subject to the limitations set forth belowSeller shall, Seller shall indemnifyon Buyer's demand, defend and save defend, indemnify and hold harmless Buyer Buyer, its successors and its Affiliatesassigns, against and its and their respective Representatives (the “Buyer Indemnified Parties”), from and against in respect of any and all Losses attributable to or which arise assessments, claims, demands, losses, damages, expenses (including without limitation, the reasonable fees and disbursements of legal counsel), liabilities and judgments ("Losses") resulting from or in connection with:
(i) (Certain Representationsa) any misrepresentation, any inaccuracy in or breach of any warranty or representation, (b) any obligation incurred by Seller or any prior party in interest which is not expressly assumed by Buyer hereunder, (c) any liability of Check Services which are not included in the assumed liabilities as set forth in Section 3.1, (d) any nonfulfillment of any agreement on the part of its representations or warranties Seller under Sections 6.1 through 6.6this Agreement, inclusive, Section 6.8 and Section 6.19;
(ii) (Other Representationse) any breach by Tax of the Seller, Check Services, or any affiliated group within the meaning of Code ss. 1504 of which Seller or Check Services was a member, for any Tax period (or portion thereof) ending on or prior to the Closing Date (with it being understood that, for purposes of this clause (e), in the case of any Taxes that are imposed on a periodic basis and are payable for a Taxable period that includes (but does not end on) the Closing Date, the portion of its representations or warranties under Sections 6.7, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusive; provided such Tax which relates to the portion of such Taxable period ending on the Closing Date shall (A) in the case of any Taxes other than Taxes based upon or related to income or receipts, be deemed to be the amount of such Tax for the entire Taxable period multiplied by a fraction, the numerator of which is the number of days in the Taxable period ending on the Closing Date and that denominator of which is the number of days in the entire Taxable period, and (B) in the case of any Tax based upon or related to income or receipts, be deemed equal to the amount which would be payable if the relevant Taxable period ended on the Closing Date). Provided, however, that with respect to any claim for indemnification under Section 8.1(a) above, Seller shall not have any liability for claims made under this clause (ii) after obligation to indemnify any indemnified party against any Losses unless and until the first anniversary indemnified parties have collectively suffered Losses by reasons of the Closing Date; (B) Seller shall have liability for claims made under this clause (ii) all such misrepresentations, inaccuracies, or breach in excess of $200,000.00 and then only to the extent that such claims in the aggregate Losses exceed a deductible amount equal to 1.5% of the Base Purchase Price; and (C) Seller’s aggregate liability for all claims made under this clause (ii) shall be limited to and shall not exceed 20% of the Base Purchase Price;
(iii) (Covenants and Agreements) any breach by Seller of its covenants or agreements under this Agreement; provided that Seller shall not have any liability for claims made under this clause (iii) after the second anniversary of the Closing Date;
(iv) (Royalties) any Royalties payable by Seller on or attributable to production from the Assets during the period prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (iv) after the second anniversary of the Closing Date;
(v) (Property Expenses) any Property Expenses (excluding Assumed Environmental Liabilities and Buyer’s Plugging and Abandonment Obligations) that are attributable to periods prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing Date;
(vi) (Personal Injury) any claim by any Person for personal injury or wrongful death that is attributable to events relating to the Assets and occurring during the period prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary of the Closing Date;
(vii) (Taxes) any Taxes allocable to Seller under Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.7); provided that Seller shall have no liability for claims made under this clause (vii) after the expiration of the applicable statute of limitations with respect to such matter;
(viii) (Indemnified Title Defect) any Indemnified Title Defect to the extent set forth in Section 4.5(b)(iii);
(ix) (Excluded Assets) any claim by any Person relating to ownership, use or operation of the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials, NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating to the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto;
(xiii) (Debt of Seller) any debt of Seller, whether or not relating to or encumbering the Assets;
(xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees to the extent arising out of the governance of Seller; and
(xv) (Civil and Criminal Matters) any civil fines or penalties or criminal sanctions imposed on Seller or its Affiliates to the extent relating to any pre-Closing violation of Law by Seller or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value of such Asset as set forth in Exhibit C, less the net proceeds received by Buyer therefrom; and
(B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) shall be limited to and shall not exceed an amount equal to 20% of the Base Purchase Price.$200,000.00
Appears in 1 contract
Seller’s Indemnification of Buyer. Subject to the limitations set forth below, (a) Seller shall indemnify, defend and save ------------ --------------------------------- indemnify and hold harmless Buyer APS and its Affiliatessubsidiaries (including Buyer) and the officers, directors, employees and its agents of APS and their respective Representatives each of such subsidiaries (the “Buyer collectively, "Buyer's Indemnified Parties”), ") harmless from and against all damages, losses or expenses suffered or paid as a result of any and all Losses attributable claims, demands, suits, causes of action, proceedings, judgments and liabilities to third parties, including reasonable counsel fees incurred in litigation or otherwise, assessed, incurred or sustained by or against Buyer's Indemnified Parties any of them with respect to or which arise from arising out of or in connection any way connected with:
(i) (Certain Representations) any breach by Seller of any of its representations or warranties under Sections 6.1 through 6.6, inclusive, Section 6.8 and Section 6.19;
(ii) (Other Representations) any breach by Seller of any of its representations or warranties under Sections 6.7, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusive; provided (A) Seller shall not have any liability for claims made under this clause (ii) after the first anniversary whether as a result of the Closing Date; (B) negligence of Seller shall have liability for claims made under this clause (ii) only to otherwise, the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% design, construction, operation or maintenance of the Base Purchase PriceProject, including the failure to comply with any applicable Legal Requirements with respect thereto, unless caused by the gross negligence or willful misconduct of Buyer's Indemnified Parties; and (C) Seller’s aggregate liability for all claims made under this clause (ii) shall be limited to and shall not exceed 20% of the Base Purchase Price;
(iii) (Covenants and Agreements) any breach by Seller of its covenants or agreements under this Agreement; provided provided, however, that Seller shall not have any liability for claims made under this clause (iii) after the second anniversary be liable, by reason of the Closing Date;--------- ------- foregoing indemnity, to Buyer's Indemnified Parties or Buyer's customers for any loss of revenues.
(ivb) (Royalties) Promptly after receipt by any Royalties payable by Seller on of Buyer's Indemnified Parties of any claim or attributable to production from the Assets during the period prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (iv) after the second anniversary notice of the Closing Date;
commencement of any action or administrative or legal proceeding or investigation as to which the indemnity provided for in subparagraph (va) (Property Expenses) any Property Expenses (excluding Assumed Environmental Liabilities and Buyer’s Plugging and Abandonment Obligations) that are attributable to periods prior to the Effective Time; provided of this Section 7.1 may apply, Buyer shall notify Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing Date;
(vi) (Personal Injury) any claim by any Person for personal injury or wrongful death that is attributable to events relating to the Assets and occurring during the period prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary of the Closing Date;
(vii) (Taxes) any Taxes allocable to Seller under Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.7); provided that such fact. Seller shall have no liability for claims made the right to assume the defense thereof with counsel designated by Seller and reasonably satisfactory to the indemnified party; provided, however, that if the defendants in any such action include both --------- ------- the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties .
(c) Should any of Buyer's Indemnified Parties be entitled to indemnification under this clause (vii) after the expiration Section 7.1 as a result of the applicable statute of limitations with respect to such matter;
(viii) (Indemnified Title Defect) any Indemnified Title Defect to the extent set forth in Section 4.5(b)(iii);
(ix) (Excluded Assets) any a claim by any Person relating a third party, and should Seller fail to ownershipassume the defense of such claim, use or operation of such indemnified party may at the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials, NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees expense of Seller or its Affiliates relating to contest (or, with the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto;
(xiii) (Debt of Seller) any debt prior consent of Seller, whether settle) such claim; provided, however, that no such contest need be made, and settlement or not relating full --------- ------- payment of any such claim may be made without the consent of Seller (with Seller remaining obligated to indemnify such indemnified party under this Section 7.1), if an Event of Default as to Seller exists or encumbering if, in the Assets;opinion of such indemnified party's counsel, such claim is meritorious or the defendant has no valid defense to such claim.
(xivd) (Corporate Governance) In the event that Seller is obligated to indemnify and hold any claim relating to current or former Affiliatesof Buyer's Indemnified Parties harmless under this Section 7.1, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees the amount owing to the extent arising out of indemnified party shall be the governance of Seller; and
(xv) (Civil and Criminal Matters) any civil fines or penalties or criminal sanctions imposed on Seller or its Affiliates to the extent relating to any pre-Closing violation of Law by Seller or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value amount of such Asset as set forth in Exhibit C, less the indemnified party's actual out-of-pocket loss net proceeds received by Buyer therefrom; and
(B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (of any insurance or other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) shall be limited to and shall not exceed an amount equal to 20% of the Base Purchase Pricerecovery.
Appears in 1 contract
Samples: Electric Energy Purchase Agreement (Environmental Power Corp)
Seller’s Indemnification of Buyer. Subject to the limitations set forth below, each Seller shall indemnify, defend and save and hold harmless Buyer Buyer, its officers, directors, members, managers, employees, representatives, attorneys and its Affiliates, and its and their respective Representatives agents (the “Buyer Indemnified Parties”), from and against any and all Losses attributable to or which arise from or in connection with:
(i) (Certain Representations) any breach by such Seller of any of its representations or warranties under Sections 6.1 7.1 through 6.67.9, inclusive, Section 6.8 and Section 6.19; provided that such Seller shall not have any liability for claims made under this clause (i) after 12 months after the Closing Date;
(ii) (Other Representations) any breach by such Seller of any of its representations or warranties under Sections 6.7, Section 6.9 7.10 through 6.18, inclusive, and Section 6.20 through 6.227.20, inclusive; provided provided:
(A) such Seller shall not have any liability for claims made under this clause (ii) after the first anniversary of 180 days after the Closing Date; ;
(B) no Seller shall have any liability for any individual Loss that relates to or arises out of a breach of such Seller’s representations or warranties under Sections 7.10 through 7.20 unless such Loss has a value in excess of $25,000;
(C) such Seller shall have liability for claims made under this clause (ii) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.52% of such Seller’s Share of the Base Purchase Price; and ;
(CD) such Seller’s aggregate liability for all claims made under this clause (ii) shall be limited to and shall not exceed 20an amount equal to 10% of such Seller’s Share of the Base Purchase Price; and
(E) Buyer shall be deemed to have irrevocably waived any claim under this clause (ii) if, as of the Closing, Buyer has knowledge of the breach giving rise to such claim and such breach causes Buyer’s Closing condition in Section 10.2(a) not to be satisfied but Buyer nonetheless proceeds with the Closing;
(iii) (Covenants and AgreementsRoyalties) any breach third party claims for Royalties payable by such Seller of on or attributable to production from its covenants or agreements under this Agreementinterests in the Assets during the period prior to the Effective Time that such Seller owned such interests; provided that Seller no Sellers shall not have any liability for claims made under this clause (iii) after the second anniversary of 12 months after the Closing Date;
(iv) (RoyaltiesProperty Expenses) any Royalties payable Property Expenses incurred by such Seller on or attributable with respect to production from its interests in the Assets during the period prior to the Effective TimeTime that such Seller owned such interests; provided Seller that no Sellers shall not have any liability for claims made under this clause (iv) after the second anniversary of the Closing Final Settlement Date;
(v) (Property ExpensesPipeline Imbalances) any Property Expenses (excluding Assumed Environmental Liabilities all pipeline and Buyer’s Plugging and Abandonment Obligations) that are transportation imbalances attributable to periods pipeline shipments of Hydrocarbons produced from such Seller’s interests in the Assets during such Seller’s period of ownership thereof prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing Date;
(vi) (Personal Injury) any claim by any Person employee of such Seller or any other person for personal injury or wrongful death that which is attributable to events relating to the Assets and occurring during the period prior to the Closing DateEffective Time that such Seller owned the Assets (but not including any Assumed Environmental Liabilities); provided that such Seller shall not have any liability for claims made under this clause (vi) after the second anniversary of 12 months after the Closing Date;; and
(vii) (TaxesCovenants and Agreements) any Taxes allocable to breach by such Seller of its covenants or agreements under Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.7)this Agreement; provided that such Seller shall not have no any liability for claims made under this clause (vii) after the expiration 90 days after such covenant or agreement was required by this Agreement to be performed;
(1) For purposes of determining whether indemnification is payable under Section 15.2(a)(i) or (ii) and calculating Losses related thereto, all “Material Adverse Effect” qualifiers in each Seller’s representations and warranties set forth in Article 7 shall be disregarded;
(2) Subject to each of the applicable statute of foregoing limitations that may further limit a Seller’s liability with respect to such matter;
(viii) (Indemnified Title Defect) any Indemnified Title Defect to the extent set forth in Section 4.5(b)(iii);
(ix) (Excluded Assets) any claim by any Person relating to ownershipa particular claim, use or operation of the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials, NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating to the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto;
(xiii) (Debt of each Seller) any debt of Seller, whether or not relating to or encumbering the Assets;
(xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees to the extent arising out of the governance of Seller; and
(xv) (Civil and Criminal Matters) any civil fines or penalties or criminal sanctions imposed on Seller or its Affiliates to the extent relating to any pre-Closing violation of Law by Seller or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value of such Asset as set forth in Exhibit C, less the net proceeds received by Buyer therefrom; and
(B) Seller shall have ’s liability for all claims made under this Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims 15.2(a), in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) aggregate, shall be limited to and shall not exceed an amount equal to 2025% of such Seller’s Share of the Base Purchase PricePrice (for clarity, such 25% limit shall not enlarge the 10% limit in Section 15.2(a)(ii)(D) with respect to claims made under Section 15.2(a)(ii)); and
(3) Other than claims under Section 15.2(a) for breach of Section 7.9, this Section 15.2(a) shall not cover or apply to any matter regarding taxes, which shall be handled solely as provided in Section 13.1 and Article 14.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Synergy Resources Corp)
Seller’s Indemnification of Buyer. Subject to the other provisions and limitations set forth belowof this Agreement, following the Closing, Seller shall indemnify, defend and save and hold harmless Buyer and its Affiliates, and its and their respective Representatives (the “Buyer Indemnified Parties”), Parties from and against any and all Losses actually incurred by any Buyer Indemnified Party attributable to or which arise from from:
(a) the breach of any Seller Fundamental Representations; provided, that Seller shall not have any liability for claims made under this clause (a) after 90 days after the expiration of the statute of limitations applicable to matters covered by the Seller Fundamental Representations;
(b) the breach of any Seller Non-Fundamental Representations (other than Section 3.12 or in connection withSection 3.25), subject to the following limitations:
(i) (Certain Representations) any breach by Seller of any of its representations or warranties under Sections 6.1 through 6.6, inclusive, Section 6.8 and Section 6.19;
(ii) (Other Representations) any breach by Seller of any of its representations or warranties under Sections 6.7, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusive; provided (A) Seller shall not have any liability for claims made under this clause (iib) after the first anniversary of 18 months after the Closing Date; ;
(Bii) in no event shall Seller shall have liability be required to provide indemnification to any Buyer Indemnified Party for any single claim or aggregated claims made arising from the breach of any Seller Non-Fundamental Representations unless the amount of such claim or aggregated claims exceeds $50,000 (the “De Minimis”);
(iii) the provisions for indemnity under this clause (iib) shall be effective only to the extent that such claims in when the aggregate amount of all Losses, excluding Losses that do not exceed a deductible the De Minimis, incurred by the Buyer Indemnified Parties in respect of all claims against Seller for indemnification under such provisions exceeds an amount equal to 1.5$1,600,000 (the “Deductible”), in which case the Buyer Indemnified Parties shall be entitled to indemnification for only the amount of Losses in excess of the Deductible; and
(iv) in no event shall the aggregate amount of all Losses for which Seller is obligated to indemnify the Buyer Indemnified Parties pursuant to (x) this clause (b) and (y) Section 9.1(c) for breaches of Section 3.12 exceed, in the aggregate, an amount equal to 15% of the Base Purchase Price; and Price (C) Seller’s aggregate liability for all claims made under this clause (ii) shall be limited to and shall not exceed 20% of the Base Purchase Price“Cap”);
(iiic) the breach of Section 3.12 or Section 3.25, subject to the following limitations:
(Covenants and Agreementsi) any breach by Seller of its covenants or agreements under this Agreement; provided that Seller shall not have any liability for claims made under this clause (iiic) after, with respect to (x) any breach of Section 3.12, 3 years after the second anniversary Closing Date and (y) any breach of Section 3.25, the date that is 180 days after the expiration of the Closing Dateapplicable statute of limitations;
(ivii) the provisions for indemnity under this clause (Royaltiesc) shall be effective only when the aggregate amount of all Losses, excluding Losses that do not exceed the De Minimis, incurred by the Buyer Indemnified Parties in respect of all claims against Seller for indemnification under such provisions exceeds an amount equal to the Deductible, in which case the Buyer Indemnified Parties shall be entitled to indemnification for only the amount of Losses in excess of the Deductible; and
(iii) in no event shall the aggregate amount of all Losses for which Seller is obligated to indemnify the Buyer Indemnified Parties pursuant to this clause (c) and Section 9.1(b) exceed an amount equal to 100% of the Base Purchase Price (provided, that claims for breach of Section 3.12 shall be subject to the Cap set forth in Section 9.1(b)(iv)); or
(d) the breach or violation of any Royalties payable covenant or agreement made or given in this Agreement by Seller on or attributable any of its Affiliates; provided, that (i) with respect to production from the Assets during the period covenants and agreements that by their nature are to be performed by or prior to the Effective Time; provided Closing, Seller shall not have any liability for claims made under this clause (ivd) after the second anniversary of 18-months after the Closing Date;
Date and (vii) (Property Expenses) any Property Expenses (excluding Assumed Environmental Liabilities with respect to covenants and Buyer’s Plugging and Abandonment Obligations) agreements that by their nature are attributable to periods prior to be performed following the Effective Time; provided Closing, Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing Date;
(vi) (Personal Injury) any claim by any Person for personal injury or wrongful death that is attributable to events relating to the Assets and occurring during the period prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary of the Closing Date;
(vii) (Taxes) any Taxes allocable to Seller under Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.7); provided that Seller shall have no liability for claims made under this clause (viid) after the expiration of the applicable statute of limitations such covenants or agreements in accordance with respect to such matter;
their terms plus sixty (viii60) (Indemnified Title Defect) any Indemnified Title Defect to the extent set forth in Section 4.5(b)(iii);
(ix) (Excluded Assets) any claim by any Person relating to ownership, use or operation of the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials, NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating to the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto;
(xiii) (Debt of Seller) any debt of Seller, whether or not relating to or encumbering the Assets;
(xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees to the extent arising out of the governance of Seller; and
(xv) (Civil and Criminal Matters) any civil fines or penalties or criminal sanctions imposed on Seller or its Affiliates to the extent relating to any pre-Closing violation of Law by Seller or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value of such Asset as set forth in Exhibit C, less the net proceeds received by Buyer therefrom; and
(B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) shall be limited to and shall not exceed an amount equal to 20% of the Base Purchase Pricedays.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (New Jersey Resources Corp)
Seller’s Indemnification of Buyer. Subject Except as otherwise provided herein and subject to the limitations set forth belowprovisions of this Section 15, from and after the Closing Date, Seller shall indemnify, defend and defend, save and hold harmless Buyer and harmless, Buyer, its Affiliates, and its affiliates and their respective Representatives directors, officers, employees, shareholders, partners, counsel, auditors, accountants, agents, advisors and other representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “"Buyer Indemnified Parties”), ") from and against any and all Losses attributable to or of any kind which are caused by, arise from or from, are incurred in connection withwith or relate in any way to:
(i) the Excluded Assets or the Excluded Liabilities (Certain Representationsother than any environmental matters covered by Section 15(c)ii below) any breach (provided, however, that with respect to the Excluded Liabilities, the provisions of Sections 15(i) through 15(m) will not apply to indemnity claims by Seller Buyer relating to Sections 4(b)(i) through (vi) and 4(b)(ix) through (xii) of any of its representations or warranties under Sections 6.1 through 6.6, inclusive, Section 6.8 and Section 6.19this Agreement);
(ii) (Other RepresentationsA) Seller's breach of or failure to perform any breach covenant or agreement in this Agreement requiring performance by Seller of any of its representations on or warranties under Sections 6.7, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusive; provided (A) Seller shall not have any liability for claims made under this clause (ii) after the first anniversary of the Closing Date; or (B) Seller Seller's breach of any representation or warranty in this Agreement which survives the Closing; provided that, for purposes of this Section 15, any occurrence relating to Seller's representation contained in (x) Section 6(e)(iii) shall not be deemed to be material or have liability for claims made under this clause a material adverse effect on the Business unless such effect or adverse effect exceeds Two Million Thousand Dollars (ii$2,000,000) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and (Cy) Seller’s aggregate liability for all claims made under this clause (iiSection 6(m) shall not be limited deemed to and shall not exceed 20% of be material or to have a material adverse effect on the Base Purchase PriceBusiness unless such effect or adverse effect exceeds Four Million Dollars ($4,000,000);
(iii) (Covenants and Agreements) any breach failure by Seller to comply with the provisions, if any, of its covenants state or agreements under this Agreementlocal bulk sales laws; provided -43- 55
(iv) property damage caused by, or any environmental remediation required due to a violation of, Health, Safety and Environmental Laws during the pre-Closing operation of the Business ("Remediation Losses"); and
(v) subject to the limitations set forth in Section 15(m), disruption in the operation of the Product Pipelines resulting from the absence or invalidity of any easements, rights-of-way, permits, licenses or other rights of access relating to the Product Pipelines ("Rights-of-Way Losses"); provided, however, that Seller shall not have any liability for claims made under this clause (iiiii) after above for any breach of a representation or warranty contained in this Agreement or the second anniversary other agreements contemplated hereby if Buyer had knowledge of such breach at the time of Closing Date;
(iv) (Royalties) any Royalties payable by and failed to notify Seller on or attributable to production from the Assets during the period prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (iv) after the second anniversary of the Closing Date;
(v) (Property Expenses) any Property Expenses (excluding Assumed Environmental Liabilities and Buyer’s Plugging and Abandonment Obligations) that are attributable to periods prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing Date;
(vi) (Personal Injury) any claim by any Person for personal injury or wrongful death that is attributable to events relating to the Assets and occurring during the period prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary of the Closing Date;
(vii) (Taxes) any Taxes allocable to Seller under such breach in accordance with Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.710(b)(ii); provided that Seller shall have no liability for claims made under this clause (vii) after the expiration of the applicable statute of limitations with respect to such matter;
(viii) (Indemnified Title Defect) any Indemnified Title Defect to the extent set forth in Section 4.5(b)(iii);
(ix) (Excluded Assets) any claim by any Person relating to ownership, use or operation of the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials, NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating to the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto;
(xiii) (Debt of Seller) no Losses caused by, arising from, incurred in connection with or related in any debt of Seller, whether or not relating to or encumbering the Assets;
(xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees to the extent arising out of the governance of Seller; and
(xv) (Civil and Criminal Matters) any civil fines or penalties or criminal sanctions imposed on Seller or its Affiliates to the extent relating to any pre-Closing violation of Law by Seller or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value of such Asset as set forth in Exhibit C, less the net proceeds received by Buyer therefrom; and
(B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) way thereto shall be limited to and shall not exceed an amount equal to 20% aggregated for purposes of the Base Purchase PriceSection 15(j).
Appears in 1 contract
Samples: Asset Purchase Agreement (Tesoro Petroleum Corp /New/)
Seller’s Indemnification of Buyer. Subject to After the limitations set forth belowClosing Date, Seller shall indemnify, defend and save indemnify and hold Buyer harmless Buyer and its Affiliates, and its and their respective Representatives (the “Buyer Indemnified Parties”)on demand for, from and against all losses, actual damages, liabilities, claims, demands, obligations, deficiencies, payments, judgments, settlements, costs and expenses of any nature whatsoever (including without limitation the costs and expenses of any and all Losses attributable to investigations, actions, suits, proceedings, demands, assessments, judgments, settlements and compromises relating thereto, and reasonable attorneys' and others fees in connection therewith) ("Losses") resulting or which arise arising, directly or indirectly from the following: (a) Any inaccuracy or misrepresentation in, or breach or nonfulfillment of, any representation or warranty of Seller or any breach or nonfulfillment of any covenant of Seller, contained in this Agreement, in any Exhibit or Schedule delivered hereunder by Seller, or in connection with:
(i) (Certain Representations) any breach certificates or documents delivered by Seller of any of its representations or warranties under Sections 6.1 through 6.6, inclusive, Section 6.8 and Section 6.19;
(ii) (Other Representations) any breach by Seller of any of its representations or warranties under Sections 6.7, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusive; provided (A) Seller shall not have any liability for claims made under pursuant to this clause (ii) after the first anniversary of the Closing DateAgreement; (Bb) Seller shall have liability for claims made under this clause Any and all employment obligations and excluded liabilities including but not limited to all liabilities delineated in Section 1.3 (ii) only whether or not disclosed to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase PriceBuyer); and (Cc) Seller’s aggregate liability for all claims made under this clause (ii) shall be limited to and shall not exceed 20% The use, ownership or operation of the Base Purchase Price;
(iii) (Covenants and Agreements) any breach by Seller Assets or the conduct of its covenants or agreements under this Agreement; provided that Seller shall not have any liability for claims made under this clause (iii) after the second anniversary of the Closing Date;
(iv) (Royalties) any Royalties payable by Seller on or attributable to production from the Assets during the period business prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (iv) after the second anniversary of the Closing Date;
(v) (Property Expenses) any Property Expenses (excluding Assumed Environmental Liabilities and Buyer’s Plugging and Abandonment Obligations) that are attributable to periods prior Closing. Notwithstanding anything to the Effective Time; provided Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing Date;
(vi) (Personal Injury) any claim by any Person for personal injury or wrongful death that is attributable to events relating to the Assets and occurring during the period prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary of the Closing Date;
(vii) (Taxes) any Taxes allocable to Seller under Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.7); provided that contrary contained herein, Seller shall have no liability for claims made under this clause (vii) after indemnification obligations hereunder:
Section 9.2.1 Until the expiration aggregate amount of Buyer's Losses exceeds $10,000, in which cases the full amount of the applicable statute Losses shall be reimbursable hereunder up to a cap in the amount of limitations with respect to such matter;
(viii) (Indemnified Title Defect) any Indemnified Title Defect to the extent set forth in Section 4.5(b)(iii);
(ix) (Excluded Assets) any claim by any Person relating to ownership, use or operation of the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials, NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating to the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto;
(xiii) (Debt of Seller) any debt of Seller, whether or not relating to or encumbering the Assets;
(xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees to the extent arising out of the governance of Seller$100,000; and
(xv) (Civil and Criminal Matters) Section 9.2.2 For any civil fines Losses resulting from Seller's breach of a representation, warranty or penalties or criminal sanctions imposed on Seller or its Affiliates to covenant contained herein if the extent relating to any pre-Closing violation of Law by Seller or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value Buyer obtained knowledge of such Asset as set forth in Exhibit C, less breach on or before the net proceeds received by Buyer therefrom; and
(B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) shall be limited to and shall not exceed an amount equal to 20% of the Base Purchase PriceClosing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Epazz Inc)
Seller’s Indemnification of Buyer. Subject to the limitations set forth belowherein, Seller shall defend, indemnify, defend and save and hold harmless Buyer Buyer, its Affiliates and its Buyer’s and such Affiliates’ respective officers, directors, shareholders, members, managers, partners, employees, representatives, attorneys and its and their respective Representatives agents (the “Buyer Indemnified Parties”), from and against any and all Losses attributable to or which arise from or in connection with:
: (i) the Retained Liabilities; (Certain Representationsii) any breach of representations, warranties, covenants, or agreements by Seller under this Agreement (provided, however, for purposes of any the interpretation of its representations or warranties under Sections 6.1 through 6.6, inclusive, Section 6.8 and Section 6.19;
(ii) (Other Representations) any breach by Seller of any of its representations or warranties under Sections 6.7, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusive; provided (A) Seller shall not have any liability for claims made the indemnity under this clause (ii) after the first anniversary of the Closing Date; (B) Seller shall have liability for claims made under this clause (ii) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and (C) ), Seller’s aggregate liability for all claims made under this clause (ii) covenants, agreements, representations and warranties qualified by “material” or materiality generally shall be limited deemed to and shall not exceed 20% of have been made without the Base Purchase Price;
“material” or materiality qualification) (iii) (Covenants the special warranty of title contained in the Assignment, Xxxx of Sale and Agreements) any breach by Seller of its covenants or agreements under this AgreementConveyance delivered in connection herewith; provided that Seller shall not have any liability for claims made under this clause (iii) after the second anniversary of the Closing Date;
(iv) (Royalties) any Royalties payable by Seller on or the payment of Property Expenses attributable to production from the Assets during the period prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause Time (iv) after except to the second anniversary of extent that Buyer has received an adjustment to the Closing Date;
(v) (Property Expenses) any Purchase Price with respect to such Property Expenses (and excluding Property Expenses relating to the Assumed Environmental Liabilities and Buyer’s Plugging and Abandonment Obligations); (v) that are the payment of royalties, overriding royalties and of production or proceeds to forced pooled interest owners in each case attributable to periods production from the Leases prior to the Effective TimeTime (except to the extent attributable to amounts held in Suspense Accounts transferred to Buyer as provided in Section 6.5 hereof); provided Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing Date;
(vi) (Personal Injury) any claim by any Person for personal injury claims and third party property damage claims (other than, in each case, such claims relating to or wrongful death that is attributable arising from alleged violation of Environmental Laws or otherwise pertaining to events pollution) relating to the ownership or operation of the Assets and occurring during the period prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary Effective Time during Seller’s period of ownership of the Closing Date;
Leases; (vii) personal injury claims and third party property damage (Taxesother than pollution damage) any Taxes allocable claims related to Seller under Section 14.1 (the period between the Effective Time and the Closing Date to the extent not taken into account as attributable to Seller’s gross negligence or willful misconduct; (viii) any Claims or entitlements to overriding royalty interests of any current or former employees or officers of Seller, or (ix) Imbalances with respect to the Assets attributable to production prior to the Effective Time (except to the extent that Buyer has received an adjustment to the Base Purchase Price pursuant to Section 2.7); provided that Seller shall have no liability for claims made under this clause (vii) after the expiration of the applicable statute of limitations with respect to such matter;
(viii) (Indemnified Title Defect) any Indemnified Title Defect to the extent set forth in Section 4.5(b)(iiiImbalance);
(ix) (Excluded Assets) any claim by any Person relating to ownership, use or operation of the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials, NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating to the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto;
(xiii) (Debt of Seller) any debt of Seller, whether or not relating to or encumbering the Assets;
(xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees to the extent arising out of the governance of Seller; and
(xv) (Civil and Criminal Matters) any civil fines or penalties or criminal sanctions imposed on Seller or its Affiliates to the extent relating to any pre-Closing violation of Law by Seller or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value of such Asset as set forth in Exhibit C, less the net proceeds received by Buyer therefrom; and
(B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) shall be limited to and shall not exceed an amount equal to 20% of the Base Purchase Price.
Appears in 1 contract
Seller’s Indemnification of Buyer. Subject to After the limitations set forth belowClosing Date, each Seller shall indemnifydefend, defend indemnify and save and hold harmless Buyer Buyer, its officers, directors, employees, representatives, agents, beneficiaries, personal representatives, successors and its Affiliates, and its and their respective Representatives (the “Buyer Indemnified Parties”), assigns forever from and against any and all Losses attributable to or (other than Losses arising from Buyer’s Assumed Liabilities) which arise from or in connection with:
with (i) the Retained Liabilities of Seller, (Certain Representationsii) any matter for which Seller has agreed to indemnify Buyer in this Agreement, or (iii) any breach by Seller of any this Agreement (subject to the limitations of its representations or warranties under Sections 6.1 through 6.6, inclusive, Section 6.8 and Section 6.19;
(ii) (Other Representations) any breach by Seller of any of its representations or warranties under Sections 6.7, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusive; provided (A) Seller shall not have any liability for claims made under this clause (ii) after the first anniversary of the Closing Date; (B) Seller 11.2). “Losses” shall have liability for claims made under this clause (ii) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and (C) Seller’s aggregate liability for all claims made under this clause (ii) shall be limited to and shall not exceed 20% of the Base Purchase Price;
(iii) (Covenants and Agreements) any breach by Seller of its covenants or agreements under this Agreement; provided that Seller shall not have any liability for claims made under this clause (iii) after the second anniversary of the Closing Date;
(iv) (Royalties) any Royalties payable by Seller on or attributable to production from the Assets during the period prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (iv) after the second anniversary of the Closing Date;
(v) (Property Expenses) any Property Expenses (excluding Assumed Environmental Liabilities and Buyer’s Plugging and Abandonment Obligations) that are attributable to periods prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing Date;
(vi) (Personal Injury) any claim by any Person for personal injury or wrongful death that is attributable to events relating to the Assets and occurring during the period prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary of the Closing Date;
(vii) (Taxes) any Taxes allocable to Seller under Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.7); provided that Seller shall have no liability for claims made under this clause (vii) after the expiration of the applicable statute of limitations with respect to such matter;
(viii) (Indemnified Title Defect) any Indemnified Title Defect to the extent meaning set forth in Section 4.5(b)(iii);
(ix) (Excluded Assets) any claim by any Person relating to ownership, use or operation of 14.2. Seller’s obligations under indemnities for the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials, NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating to the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto;
(xiii) (Debt of Seller) any debt of Seller, whether or not relating to or encumbering the Assets;
(xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees Retained Liabilities shall only arise to the extent the indemnity for any individual event exceeds a deductible of $50,000 net to Seller’s account. Notwithstanding anything contained in this Agreement to the contrary, Seller’s obligations under all indemnities by Seller contained in this Agreement shall not, in the aggregate and without duplication, exceed twenty-five percent (25%) of the Purchase Price as it may be adjusted under this Agreement up to the Final Settlement Date. Further, Seller’s indemnification obligations under this Section 14.4 do not cover or apply to any claims, judgments, causes of action, Loss, damages, costs or expenses arising out of the governance of Seller; and
(xv) (Civil and Criminal Matters) any civil fines or penalties or criminal sanctions imposed on gas balancing matters, suspense funds delivered by Seller or its Affiliates to Buyer, title to the extent relating to any pre-Closing violation of Law by Seller Assets, environmental matters or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value of such Asset Current Operations, as Buyer’s exclusive remedies for these matters are set forth in Exhibit C, less the net proceeds received by Buyer therefrom; and
(B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% Sections of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) shall be limited to and shall not exceed an amount equal to 20% of the Base Purchase Pricethis Agreement.
Appears in 1 contract
Seller’s Indemnification of Buyer. Subject Except as otherwise provided herein and subject to the limitations set forth belowprovisions of this Section 15, from and after the Closing Date, Seller shall indemnify, defend and defend, save and hold harmless Buyer and harmless, Buyer, its Affiliates, and its affiliates and their respective Representatives directors, officers, employees, shareholders, partners, counsel, auditors, accountants, agents, advisors and other representatives and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “"Buyer Indemnified Parties”), ") from and against any and all Losses attributable to or of any kind which are caused by, arise from or from, are incurred in connection withwith or relate in any way to:
(i) the Excluded Assets or the Excluded Liabilities (Certain Representationsother than any environmental matters covered by Section 15(c)(ii) any breach below) (provided, however, that with respect to the Excluded Liabilities, the provisions of Sections 15(i) through (l) will not apply to indemnity claims by Seller Buyer relating to Sections 4(b)(i) through (vi) and 4(b)(ix) through (xii) of any of its representations or warranties under Sections 6.1 through 6.6, inclusive, Section 6.8 and Section 6.19this Agreement);
(ii) (Other RepresentationsA) Seller's breach of or failure to perform any breach covenant or agreement in this Agreement requiring performance by Seller of any of its representations on or warranties under Sections 6.7, Section 6.9 through 6.18, inclusive, and Section 6.20 through 6.22, inclusive; provided (A) Seller shall not have any liability for claims made under this clause (ii) after the first anniversary of the Closing Date; or (B) Seller shall have liability for claims made under Seller's breach of any representation or warranty in this clause (ii) only to Agreement which survives the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and (C) Seller’s aggregate liability for all claims made under this clause (ii) shall be limited to and shall not exceed 20% of the Base Purchase PriceClosing;
(iii) (Covenants and Agreements) any breach failure by Seller to comply with the provisions, if any, of its covenants state or agreements under this Agreementlocal bulk sales laws; provided and
(iv) subject to the limitations set forth in Section 15(l), property damage caused by, or any environmental remediation required due to a violation of the Health, Safety and Environmental Laws during the pre-Closing operation of the Business by Seller or other members of the BP Group ("Remediation Losses"); provided, however, that Seller shall not have any liability for claims made under this clause (iiiii) after above for any breach of a representation or warranty contained in this Agreement or the second anniversary other agreements contemplated hereby if Buyer had knowledge of such breach at the time of Closing Date;
(iv) (Royalties) any Royalties payable by and failed to notify Seller on or attributable to production from the Assets during the period prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (iv) after the second anniversary of the Closing Date;
(v) (Property Expenses) any Property Expenses (excluding Assumed Environmental Liabilities and Buyer’s Plugging and Abandonment Obligations) that are attributable to periods prior to the Effective Time; provided Seller shall not have any liability for claims made under this clause (v) after the second anniversary of the Closing Date;
(vi) (Personal Injury) any claim by any Person for personal injury or wrongful death that is attributable to events relating to the Assets and occurring during the period prior to the Closing Date; provided Seller shall not have any liability for claims made under this clause (vi) after the second anniversary of the Closing Date;
(vii) (Taxes) any Taxes allocable to Seller under such breach in accordance with Section 14.1 (to the extent not taken into account as an adjustment to the Base Purchase Price pursuant to Section 2.710(b)(ii); provided that Seller shall have no liability for claims made under this clause (vii) after the expiration of the applicable statute of limitations with respect to such matter;
(viii) (Indemnified Title Defect) any Indemnified Title Defect to the extent set forth in Section 4.5(b)(iii);
(ix) (Excluded Assets) any claim by any Person relating to ownership, use or operation of the Excluded Assets;
(x) (Existing Litigation) any Existing Seller Claims and any litigation that should have been set forth on Section 6.9 of the Disclosure Schedule;
(xi) (Offsite Disposal) any claim by any Person for offsite disposal prior to the Closing Date of Hazardous Materials, NORM, asbestos, mercury, drilling fluids, chemicals, produced waters, Hydrocarbons or any other materials of any nature produced from the Assets;
(xii) (Former Employees) any claim by any employees of Seller or its Affiliates relating to the employment or termination thereof by Seller or its Affiliates, and the compensation and benefits inuring thereto;
(xiii) (Debt of Seller) no Losses caused by, arising from, incurred in connection with or related in any debt of Seller, whether or not relating to or encumbering the Assets;
(xiv) (Corporate Governance) any claim relating to current or former Affiliates, partners, managers, members, directors, officers and employees of Seller or of its respective current or former Affiliates, partners, managers, members, directors, officers and employees to the extent arising out of the governance of Seller; and
(xv) (Civil and Criminal Matters) any civil fines or penalties or criminal sanctions imposed on Seller or its Affiliates to the extent relating to any pre-Closing violation of Law by Seller or any of its Affiliates. PROVIDED THAT SELLER’S LIABILITY WITH RESPECT TO CLAIMS UNDER THIS SECTION 15.3 SHALL BE FURTHER LIMITED AS FOLLOWS:
(A) Losses arising from diminution of value of an Asset shall in no event exceed the Allocated Value of such Asset as set forth in Exhibit C, less the net proceeds received by Buyer therefrom; and
(B) Seller shall have liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) only to the extent that such claims in the aggregate exceed a deductible amount equal to 1.5% of the Base Purchase Price; and
(C) Seller’s aggregate liability for all claims made under Section 15.3(a)(ii) through (a)(vi) (other than claims relating to the covenant in Section 13.6) way thereto shall be limited to and shall not exceed an amount equal to 20% aggregated for purposes of the Base Purchase PriceSection 15(j).
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