Title Defect Adjustment. (a) In the event any Title Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Optionor shall have the opportunity to cure, until sixty (60) days after Closing (“Cure Period”), such Title Defect. In the alternative, Optionor may elect to (i) indemnify Optionee against any damages, claims or expenses that may arise out of such Title Defect, subject to the provisions of Section 8.3(c) below, with no reduction in the Cash Payment or payment to Optionee; or (ii) reduce the Cash Payment by an amount equal to the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible described in Section 8.1(c) (9); or, (iii) if the Purchase Price does not consist of a Cash Payment (but rather a volumetric production payment), pay Optionee at Closing the amount of the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible. Should Optionor elect alternative “(i)” (indemnity) or “(ii)” (price reduction) or “(iii)” (payment to Optionee) in this Section 8.3(a), those Assets affected by the Title Defect shall be transferred to Optionee at Closing. (b) If Optionor elects to attempt to cure a Title Defect after Closing, the Closing with respect to the portion of the Assets affected by such Title Defect will proceed along with all other Assets as provided in this Agreement. If Optionor fails or refuses to cure any Title Defect prior to the expiration of the Cure Period, Optionor shall notify Optionee in writing of such failure or refusal promptly upon the expiration of the Cure Period. In this event, Optionee shall within seven (7) days after receipt by Optionee of Notice from Optionor of such failure or refusal to cure any such Title Defect, pay Optionee an amount equal to the subject Title Defect Value. In the event that any such property is retained by Optionor and such property has been receiving revenue, without complaint, for a period in excess of two (2) years, then Optionee agrees (i) not to take any action to interfere with such revenue stream, and (ii) to the extent that Optionee becomes payor of such revenue, to pay Optionor such revenue upon receipt of an indemnity agreement from Optionor. (c) The following provisions shall apply to an election by Optionor under Section 8.3(a)(i) to indemnify Optionee with regard to such Title Defect: (1) Optionor’s indemnity shall be limited to a period of two (2) years from the Effective Time. (2) In no event shall Optionor’s indemnity exceed the amount of the Title Defect Value as determined under Section 8.4 hereof. (3) Optionor’s indemnity shall be freely transferable by Optionee to its successors and assigns of the Assets affected by such Title Defect, including without limitation, any lender to Optionee and any purchaser of such Assets, whether directly from Optionee or through any foreclosure proceeding; and (4) If the Title Defect Value, as determined under Section 8.4 hereof, individually or in the aggregate, for one or more Title Defects to be covered by the Optionor’s indemnity exceeds two hundred fifty thousand dollars ($250,000.00) (after application of the appropriate deductible(s) provided for in Section 8.1(c)(9), Optionor shall have no right under the second sentence of Section 8.3(a)(iii) to indemnify Optionee with regard to such Title Defects without Optionee’s consent. (d) In the event any adjustment to the Cash Payment, or payment by Optionor to Optionee, is made due to a Title Defect raised by Optionee, the Parties shall proceed with Closing, Optionor shall be under no obligation to correct the Title Defect, and such Title Defect shall become an Assumed Obligation of Optionor.
Appears in 2 contracts
Samples: Option Agreement (Denbury Resources Inc), Option Agreement (Venoco, Inc.)
Title Defect Adjustment. (a) In the event any Title Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Optionor Seller shall have the opportunity to cure, until sixty (60) days after Closing (“Cure Period”), such Title Defect. In the alternative, Optionor Seller may elect to (i) indemnify Optionee cure such Title Defect by indemnifying Buyer against any damages, claims or expenses that may arise out of such Title Defect, subject to the provisions of Section 8.3(c) below, with no reduction in the Cash Payment or payment to OptioneePurchase Price; or (ii) reduce the Cash Payment Purchase Price by an amount equal to the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty twenty five thousand dollars ($50,000.0025,000.00) deductible and the Aggregate Defect Basket described in Section 8.1(c) (9); or, (iii) if the Purchase Price does not consist of a Cash Payment (but rather a volumetric production payment), pay Optionee at Closing the amount of the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible7.4. Should Optionor Seller elect either alternative “(i)” (indemnity) or “(ii)” (price reduction) or “(iii)” (payment to Optionee) in this Section 8.3(a), those Assets affected by the Title Defect shall be transferred to Optionee Buyer at Closing.
(b) If Optionor Seller elects to attempt to cure a Title Defect after Closing, the Closing with respect to the portion of the Assets affected by such Title Defect will proceed along be deferred (the “Closing Deferred Property”). Closing with respect to all other Assets will proceed as provided in this Agreement, but the Base Purchase Price delivered to Seller at such initial Closing shall be reduced by the Allocated Value of all Closing Deferred Properties. If Optionor Seller cures any Title Defect within the Cure Period, then the Closing with respect to the Closing Deferred Property for which such Title Defect has been cured will proceed and will be finalized within seven (7) days following the end of the Cure Period. If Seller fails or refuses to cure any Title Defect prior to the expiration of the Cure Period, Optionor Seller shall notify Optionee Buyer in writing of such failure or refusal promptly upon the expiration of the Cure Period. In this event, Optionee Buyer shall have the right to elect by written notice to Seller, which notice shall be delivered within seven (7) days after receipt by Optionee Buyer of Notice from Optionor Seller of such failure or refusal to cure any such Title Defect, pay Optionee to waive all of the Title Defects applicable to any Closing Deferred Property (which waived Title Defects shall be deemed Permitted Encumbrances) and proceed to Closing on such Closing Deferred Property. If Buyer does not elect to waive an amount equal to existing Title Defect, Seller shall retain the subject Title Defect ValueClosing Deferred Property and the Parties shall have no further obligation with respect thereto. In the event that any such property is retained by Optionor Seller and such property has been receiving revenue, without complaint, for a period in excess of two (2) years, then Optionee Buyer agrees (i) not to take any action to interfere with such revenue stream, and (ii) to the extent that Optionee Buyer becomes payor of such revenue, to pay Optionor Seller such revenue upon receipt of an indemnity agreement from OptionorSeller.
(c) The following provisions shall apply to an election by Optionor Seller under the second sentence of Section 8.3(a)(i8.3(a) to indemnify Optionee cure a Title Defect by indemnifying Buyer with regard to such Title Defect:
(1) OptionorSeller’s indemnity shall be limited to a period of two (2) years from the Effective Time.
(2) In no event shall OptionorSeller’s indemnity exceed the amount of the Title Defect Value as determined under Section 8.4 hereof.
(3) OptionorSeller’s indemnity shall be freely transferable by Optionee Buyer to its successors and assigns of the Assets affected by such Title Defect, including without limitation, any lender to Optionee Buyer and any purchaser of such Assets, whether directly from Optionee Buyer or through any foreclosure proceeding; and
(4) If the Title Defect Value, as determined under Section 8.4 hereof, individually or in the aggregate, for one or more Title Defects to be covered by the OptionorSeller’s indemnity exceeds two seven hundred fifty thousand dollars ($250,000.00750,000.00) (after application of the appropriate deductible(s) and without application of the Aggregate Defect Basket provided for in Section 8.1(c)(97.4), Optionor Seller shall have no right under the second sentence of Section 8.3(a)(iii8.3(a) to indemnify Optionee Buyer with regard to such Title Defects without OptioneeBuyer’s consent.
(d) In the event any adjustment to the Cash Payment, or payment by Optionor to Optionee, Purchase Price is made due to a Title Defect raised by OptioneeBuyer, the Parties shall proceed with Closing, Optionor Seller shall be under no obligation to correct the Title Defect, and such Title Defect shall become an Assumed Obligation of OptionorSeller.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Natural Gas Systems Inc/New), Purchase and Sale Agreement (Natural Gas Systems Inc/New)
Title Defect Adjustment. (a) In the event any Title Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Optionor Seller shall have the opportunity to cure, until sixty thirty (6030) days after Closing (“"Cure Period”"), such any Title Defect. In the alternative, Optionor may elect to (i) indemnify Optionee against any damages, claims or expenses that may arise out of such Title Defect, subject to the provisions of Section 8.3(c) below, with no reduction in the Cash Payment or payment to Optionee; or (ii) reduce the Cash Payment by an amount equal to the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible described in Section 8.1(c) (9); or, (iii) if the Purchase Price does not consist of a Cash Payment (but rather a volumetric production payment), pay Optionee at Closing the amount of the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible. Should Optionor elect alternative “(i)” (indemnity) or “(ii)” (price reduction) or “(iii)” (payment to Optionee) in this Section 8.3(a), those Assets affected by the Title Defect shall be transferred to Optionee at Closing.
(b) If Optionor elects to attempt to cure a Title Defect after Closing, the Closing with respect to the portion of the Assets affected by such Title Defect will proceed along with all other Assets as provided in this Agreement. If Optionor Seller fails or refuses to cure any Title Defect prior to the expiration of the Cure Period, Optionor Buyer shall notify Optionee in writing of such failure or refusal promptly upon separately elect by notice to Seller to either (i) retain the expiration affected Title Defect Property and waive all of the Cure Period. In this eventTitle Defects applicable thereto (which waived Title Defects shall be deemed Permitted Encumbrances), Optionee shall within seven or (7ii) days after receipt by Optionee of Notice receive from Optionor of such failure or refusal to cure any such Title Defect, pay Optionee Seller an amount equal to the subject Title Defect Value. If Buyer elects to receive the Title Defect Value, Buyer shall reconvey to Seller that portion of the Assets, whether an undivided interest, separate interest, or otherwise, that is materially and adversely affected by the Title Defect, as to which Buyer received such adjustment; provided that Seller may, without affecting Buyer's right to an adjustment, elect not to accept a reconveyance of a Title Defect Property or portion thereof, relating to such adjustment. Such reconveyance shall be free and clear of all liens and encumbrances created by, through or under Buyer (other than liens or encumbrances created by Buyer which would constitute Permitted Encumbrances had they been created or suffered by Seller) with Seller receiving all revenues and bearing all expense with respect thereto after the Effective Date and with respect to any interests so reconveyed, they shall be deemed to be excluded from the Assets and, except for the terms of this Section 8.4, from the terms and conditions of this Agreement. In the event that any such property is retained by Optionor reconveyed to Seller and such property has been receiving revenue, without complaint, for a period in excess of two (2) years, then Optionee Buyer agrees (i) not to take any action to interfere with such revenue stream, and (ii) to the extent that Optionee Buyer becomes payor of such revenue, to pay Optionor Seller such revenue upon receipt of an indemnity agreement from Optionorsatisfactory to Buyer.
(c) The following provisions shall apply to an election by Optionor under Section 8.3(a)(i) to indemnify Optionee with regard to such Title Defect:
(1) Optionor’s indemnity shall be limited to a period of two (2) years from the Effective Time.
(2) In no event shall Optionor’s indemnity exceed the amount of the Title Defect Value as determined under Section 8.4 hereof.
(3) Optionor’s indemnity shall be freely transferable by Optionee to its successors and assigns of the Assets affected by such Title Defect, including without limitation, any lender to Optionee and any purchaser of such Assets, whether directly from Optionee or through any foreclosure proceeding; and
(4) If the Title Defect Value, as determined under Section 8.4 hereof, individually or in the aggregate, for one or more Title Defects to be covered by the Optionor’s indemnity exceeds two hundred fifty thousand dollars ($250,000.00) (after application of the appropriate deductible(s) provided for in Section 8.1(c)(9), Optionor shall have no right under the second sentence of Section 8.3(a)(iii) to indemnify Optionee with regard to such Title Defects without Optionee’s consent.
(d) In the event any adjustment to the Cash Payment, or payment by Optionor to Optionee, is made due to a Title Defect raised by Optionee, the Parties shall proceed with Closing, Optionor shall be under no obligation to correct the Title Defect, and such Title Defect shall become an Assumed Obligation of Optionor.
Appears in 1 contract
Title Defect Adjustment. (a) In the event any Title Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Optionor Seller shall have the opportunity to cure, until sixty (60) days after Closing (“"Cure Period”"), such any Title Defect. In the alternative, Optionor or, alternatively, Seller may elect to (i) indemnify Optionee cure such Title Defect by indemnifying Buyer against any damages, claims or expenses that may arise out of such Title Defect, subject to the provisions of Section 8.3(c8.3(b) below, with no reduction in the Cash Payment or payment to Optionee; or (ii) reduce the Cash Payment by an amount equal to the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible described in Section 8.1(c) (9); or, (iii) if the Purchase Price does not consist of a Cash Payment (but rather a volumetric production payment), pay Optionee at Closing the amount of the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible. Should Optionor elect alternative “(i)” (indemnity) or “(ii)” (price reduction) or “(iii)” (payment to Optionee) in this Section 8.3(a), those Assets affected by the Title Defect shall be transferred to Optionee at Closing.
(b) If Optionor Seller elects to attempt to cure a Title Defect after Closing, the Closing with respect to the portion of the Assets affected by such Title Defect will proceed along be deferred (the "Closing Deferred Property"). Closing with respect to all other Assets will proceed as provided in this Agreement (subject to Article 9 and the other provisions of this Agreement), but the Base Purchase Price delivered to Seller at such initial Closing will be reduced by the Allocated Value of all Closing Deferred Properties. If Optionor Seller cures any Title Defect within the Cure Period, then the Closing with respect to the Closing Deferred Property for which such Title Defect has been cured will proceed and will be finalized within seven (7) days following the end of the Cure Period. If Seller fails or refuses to cure any Title Defect prior to the expiration of the Cure Period, Optionor shall notify Optionee in writing of such failure or refusal promptly upon the expiration of the Cure Period. In this eventBuyer may separately elect with respect to each affected Closing Deferred Property, Optionee shall by notice to Seller delivered within seven (7) days after receipt by Optionee Buyer of Notice from Optionor Seller of such failure or refusal to cure any such Title Defect, pay Optionee to waive all of the Title Defects applicable to such Closing Deferred Property (which waived Title Defects shall be deemed Permitted Encumbrances) and proceed to Closing on such Closing Deferred Property. If Buyer does not elect to waive an amount equal to existing Title Defect, Seller shall retain the subject Title Defect Valueaffected Closing Deferred Property and the Parties shall have no further obligation with respect thereto. In the event that any such property is retained by Optionor Seller and such property has been receiving revenue, without complaint, for a period in excess of two (2) years, then Optionee Buyer agrees (i) not to take any action to interfere with such revenue stream, and (ii) to the extent that Optionee Buyer becomes payor of such revenue, to pay Optionor Seller such revenue upon receipt of an indemnity agreement from OptionorSeller.
(cb) The following provisions shall apply to an election by Optionor Seller under the first sentence of Section 8.3(a)(i8.3(a) to indemnify Optionee cure a Title Defect by indemnifying Buyer with regard to such Title Defect, notwithstanding any other provisions of this Agreement:
(1i) Optionor’s Seller's indemnity shall be limited to a period of two (2) years from the Effective Time.unlimited duration;
(2ii) In no event shall Optionor’s indemnity exceed the amount of the Title Defect Value as determined under Section 8.4 hereof.
(3) Optionor’s Seller's indemnity shall be freely transferable by Optionee Buyer to its successors and assigns of to the Assets affected by such Title Defect, including without limitation, any lender to Optionee Buyer and any purchaser of such Assets, whether directly from Optionee Buyer or through any foreclosure proceeding; and
(4iii) If the Title Defect Value, as determined under Section 8.4 hereof, individually or in the aggregate, for one or more Title Defects to be covered by the Optionor’s Seller's indemnity exceeds two hundred fifty thousand dollars ($250,000.00) (after application of 500,000.00, Seller shall not have the appropriate deductible(s) provided for in Section 8.1(c)(9), Optionor shall have no right under the second first sentence of Section 8.3(a)(iii8.3(a) to indemnify Optionee Buyer with regard to such Title Defects without Optionee’s Buyer's consent.
(d) In the event any adjustment to the Cash Payment, or payment by Optionor to Optionee, is made due to a Title Defect raised by Optionee, the Parties shall proceed with Closing, Optionor shall be under no obligation to correct the Title Defect, and if such Title Defect consent is not obtained, then either Seller or Buyer shall become an Assumed Obligation of Optionorhave the option to terminate this Agreement as provided in Article 9 below.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Parallel Petroleum Corp)
Title Defect Adjustment. (a) In the event any Title Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Optionor Seller shall have the opportunity to cure, until sixty (60) days after Closing (“"Cure Period”"), such any Title Defect. In the alternative, Optionor may elect to (i) indemnify Optionee against any damages, claims or expenses that may arise out of such Title Defect, subject to the provisions of Section 8.3(c) below, with no reduction in the Cash Payment or payment to Optionee; or (ii) reduce the Cash Payment by an amount equal to the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible described in Section 8.1(c) (9); or, (iii) if the Purchase Price does not consist of a Cash Payment (but rather a volumetric production payment), pay Optionee at Closing the amount of the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible. Should Optionor elect alternative “(i)” (indemnity) or “(ii)” (price reduction) or “(iii)” (payment to Optionee) in this Section 8.3(a), those Assets affected by the Title Defect shall be transferred to Optionee at Closing.
(b) If Optionor Seller elects to attempt to cure a Title Defect after Closing, the Closing with respect to the portion of the Assets affected by such Title Defect will proceed along be deferred (the "Closing Deferred Property"). Closing with respect to all other Assets will proceed as provided in this Agreement (subject to Article 9 and the other provisions of this Agreement), but the Base Purchase Price delivered to Seller at such initial Closing will be reduced by the Allocated Value of all Closing Deferred Properties. If Optionor Seller cures any Title Defect within the Cure Period, then the Closing with respect to the Closing Deferred Property for which such Title Defect has been cured will proceed and will be finalized within seven (7) days following the end of the Cure Period. If Seller fails or refuses to cure any Title Defect prior to the expiration of the Cure Period, Optionor shall notify Optionee in writing of such failure or refusal promptly upon the expiration of the Cure Period. In this eventBuyer may separately elect with respect to each affected Closing Deferred Property, Optionee shall by notice to Seller delivered within seven (7) days after receipt by Optionee Buyer of Notice from Optionor Seller of such failure or refusal to cure any such Title Defect, pay Optionee to waive all of the Title Defects applicable to such Closing Deferred Property (which waived Title Defects shall be deemed Permitted Encumbrances) and proceed to Closing on such Closing Deferred Property. If Buyer does not elect to waive an amount equal to existing Title Defect, Seller shall retain the subject Title Defect Valueaffected Closing Deferred Property and the Parties shall have no further obligation with respect thereto. In the event that any such property is retained by Optionor Seller and such property has been receiving revenue, without complaint, for a period in excess of two (2) years, then Optionee Buyer agrees (i) not to take any action to interfere with such revenue stream, and (ii) to the extent that Optionee Buyer becomes payor of such revenue, to pay Optionor Seller such revenue upon receipt of an indemnity agreement from OptionorSeller.
(c) The following provisions shall apply to an election by Optionor under Section 8.3(a)(i) to indemnify Optionee with regard to such Title Defect:
(1) Optionor’s indemnity shall be limited to a period of two (2) years from the Effective Time.
(2) In no event shall Optionor’s indemnity exceed the amount of the Title Defect Value as determined under Section 8.4 hereof.
(3) Optionor’s indemnity shall be freely transferable by Optionee to its successors and assigns of the Assets affected by such Title Defect, including without limitation, any lender to Optionee and any purchaser of such Assets, whether directly from Optionee or through any foreclosure proceeding; and
(4) If the Title Defect Value, as determined under Section 8.4 hereof, individually or in the aggregate, for one or more Title Defects to be covered by the Optionor’s indemnity exceeds two hundred fifty thousand dollars ($250,000.00) (after application of the appropriate deductible(s) provided for in Section 8.1(c)(9), Optionor shall have no right under the second sentence of Section 8.3(a)(iii) to indemnify Optionee with regard to such Title Defects without Optionee’s consent.
(d) In the event any adjustment to the Cash Payment, or payment by Optionor to Optionee, is made due to a Title Defect raised by Optionee, the Parties shall proceed with Closing, Optionor shall be under no obligation to correct the Title Defect, and such Title Defect shall become an Assumed Obligation of Optionor.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Parallel Petroleum Corp)
Title Defect Adjustment. (a) In Upon execution of and pursuant to the event any Title Defectterms or this Agreement, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Optionor Buyer shall have the opportunity right, at reasonable times during normal business hours, to conduct its investigation into the status of the title of the Property. If, in the course of conducting such investigation, Buyer discovers Title Defects, Buyer may, no later than five days prior to the Closing Date, notify Seller in writing specifying such Title Defects, the Property affected thereby, and Buyer's estimate of the net reduction in value of the Property affected by such Title Defects. A Title Defect shall not be considered for adjustment unless the collective aggregate value of such defects exceeds $250,000. If Buyer fails to notify Seller no later than five days prior to Closing of any such defects, the defects will be deemed waived, Seller shall be released from any liability therefor, the Parties With respect to such defect(s) that Seller elects not to cure, until sixty (60) days after Closing (“Cure Period”or that Seller has not cured to the reasonable satisfaction of Buyer, Buyer may waive the defect(s). However, such Title Defect. In the alternative, Optionor may with respect to those defects that Buyer does not elect to waive or that have not been cured to the reasonable satisfaction of Buyer, Buyer and Seller will agree to either (i) indemnify Optionee against any damages, claims or expenses that may arise out adjust the Purchase Price by an amount agreed upon by Buyer and Seller to be the value of such defect(s) but in no event shall such adjustment exceed the applicable allocated value as set forth in Exhibit C attached hereto ("Allocated Value") in which event the Property subject to the Title DefectDefect will be sold hereunder, or (ii) exclude the Property subject to the uncured Title Defect from the sale and reduce the Purchase Price by the applicable Allocated Value. If the parties are unable to agree to a course of action with respect to such Title Defects, the matter shall be resolved pursuant to the provisions of Section 8.3(c) below, with no reduction in the Cash Payment or payment to Optionee; or (ii) reduce the Cash Payment by an amount equal to the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible described in Section 8.1(c) (9); or, (iii) if the Purchase Price does not consist of a Cash Payment (but rather a volumetric production payment), pay Optionee at Closing the amount of the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible. Should Optionor elect alternative “(i)” (indemnity) or “(ii)” (price reduction) or “(iii)” (payment to Optionee) in this Section 8.3(a), those Assets affected by the Title Defect shall be transferred to Optionee at Closing.
(b) If Optionor elects to attempt to cure a Title Defect after Closing, the Closing with respect to the portion of the Assets affected by such Title Defect will proceed along with all other Assets as provided in this Agreement. If Optionor fails or refuses to cure any Title Defect prior to the expiration of the Cure Period, Optionor shall notify Optionee in writing of such failure or refusal promptly upon the expiration of the Cure Period. In this event, Optionee shall within seven (7) days after receipt by Optionee of Notice from Optionor of such failure or refusal to cure any such Title Defect, pay Optionee an amount equal to the subject Title Defect Value. In the event that any such property is retained by Optionor and such property has been receiving revenue, without complaint, for a period in excess of two (2) years, then Optionee agrees (i) not to take any action to interfere with such revenue stream, and (ii) to the extent that Optionee becomes payor of such revenue, to pay Optionor such revenue upon receipt of an indemnity agreement from Optionor.
(c) The following provisions shall apply to an election by Optionor under Section 8.3(a)(i) to indemnify Optionee with regard to such Title Defect:
(1) Optionor’s indemnity shall be limited to a period of two (2) years from the Effective Time.
(2) In no event shall Optionor’s indemnity exceed the amount of the Title Defect Value as determined under Section 8.4 Article XIV hereof.
(3) Optionor’s indemnity shall be freely transferable by Optionee to its successors and assigns of the Assets affected by such Title Defect, including without limitation, any lender to Optionee and any purchaser of such Assets, whether directly from Optionee or through any foreclosure proceeding; and
(4) If the Title Defect Value, as determined under Section 8.4 hereof, individually or in the aggregate, for one or more Title Defects to be covered by the Optionor’s indemnity exceeds two hundred fifty thousand dollars ($250,000.00) (after application of the appropriate deductible(s) provided for in Section 8.1(c)(9), Optionor shall have no right under the second sentence of Section 8.3(a)(iii) to indemnify Optionee with regard to such Title Defects without Optionee’s consent.
(d) In the event any adjustment to the Cash Payment, or payment by Optionor to Optionee, is made due to a Title Defect raised by Optionee, the Parties shall proceed with Closing, Optionor shall be under no obligation to correct the Title Defect, and such Title Defect shall become an Assumed Obligation of Optionor.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Titan Exploration Inc)
Title Defect Adjustment. (a) In the event any Title Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Optionor shall have the opportunity to cureBuyer, until sixty (60) days after Closing (“Cure Period”)in its sold discretion, such Title Defect. In the alternative, Optionor may elect to either (i) indemnify Optionee accept Seller's agreement prior to closing to cure such Title Defect by indemnifying Buyer against any damages, claims or expenses Claims that may arise out of such Title Defect, subject to the provisions of Section 8.3(c) below, with no reduction in the Cash Payment or payment to OptioneePurchase Price; or (ii) reduce the Cash Payment Stock Consideration by an amount equal to the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty five thousand dollars ($50,000.005,000.00) deductible described in Section 8.1(c) (9); or, with the number of shares of Common Stock being reduced based on the closing price of the Common Stock on the Closing Date or (iii) if exclude the Purchase Price does not consist of a Cash Payment (but rather a volumetric production payment), pay Optionee at Closing the amount of Asset impacted by the Title Defect from the transactions contemplated herein (such that they are not Purchased Assets) and reduce the Stock Consideration by an amount equal to the Allocated Value as determined pursuant to Section 8.4, and subject to application of such Asset with the number of shares of Common Stock being reduced based on the closing price of the fifty thousand dollars ($50,000.00) deductibleCommon Stock on the Closing Date. Should Optionor Seller elect either alternative “"(i)” " (indemnity) or “(ii)” ) (price reduction) or “(iii)” (payment to Optionee) in this Section 8.3(a), those Assets affected by the Title Defect shall be transferred to Optionee Buyer at Closing.
(b) If Optionor elects to attempt to cure a Title Defect after Closing, the Closing with respect to the portion of the Assets affected by such Title Defect will proceed along with all other Assets as provided in this Agreement. If Optionor fails or refuses to cure any Title Defect prior to the expiration of the Cure Period, Optionor shall notify Optionee in writing of such failure or refusal promptly upon the expiration of the Cure Period. In this event, Optionee shall within seven (7) days after receipt by Optionee of Notice from Optionor of such failure or refusal to cure any such Title Defect, pay Optionee an amount equal to the subject Title Defect Value. In the event that any such property is retained by Optionor and such property has been receiving revenue, without complaint, for a period in excess of two (2) years, then Optionee agrees (i) not to take any action to interfere with such revenue stream, and (ii) to the extent that Optionee becomes payor of such revenue, to pay Optionor such revenue upon receipt of an indemnity agreement from Optionor.
(c) The following provisions shall apply to an election by Optionor Seller under the second sentence of Section 8.3(a)(i8.3(a) to indemnify Optionee cure a Title Defect by indemnifying Buyer with regard to such Title Defect:
(1) Optionor’s Seller's indemnity shall be limited to a for an indefinite period of two (2) years from the Effective Timetime.
(2) In no event Seller shall Optionor’s execute and deliver to Buyer a mutually agreeable form of indemnity exceed agreement with respect to such Title Defect, which shall indemnify Buyer from and against any and all Claims arising from or related to such Title Defect, including, without limitation, the amount portion of the Title Defect Value as determined under Section 8.4 hereofPurchase Price paid by Buyer for the Assets affected thereby and all capital expenditures and other costs and expenses incurred by Buyer in connection with the ownership, operation and development of the Assets affected thereby.
(3) Optionor’s Seller's indemnity shall be freely transferable by Optionee Buyer to its successors and assigns of the Assets affected by such Title Defect, including without limitation, any lender to Optionee Buyer and any purchaser Buyer of such Assets, whether directly from Optionee Buyer or through any foreclosure proceeding; and
(4c) If the Title Defect ValueExcept as provided in Article 9, as determined under Section 8.4 hereof, individually or in the aggregate, for one or more Title Defects to be covered by the Optionor’s indemnity exceeds two hundred fifty thousand dollars ($250,000.00) (after application of the appropriate deductible(s) provided for in Section 8.1(c)(9), Optionor shall have no right under the second sentence of Section 8.3(a)(iii) to indemnify Optionee with regard to such Title Defects without Optionee’s consent.
(d) In the event any adjustment to the Cash Payment, or payment by Optionor to Optionee, Stock Consideration is made pursuant to alternative (ii) in the first sentence of Section 8(a) due to a Title Defect raised by OptioneeBuyer, the Parties shall proceed with Closing, Optionor Seller shall be under no obligation to correct the Title Defectsuch defect, and such Title Defect defect shall become an Assumed Obligation of OptionorBuyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Sun River Energy, Inc)
Title Defect Adjustment. (a) In the event any Title Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Optionor Seller shall have the opportunity to cure, until sixty (60) days after Closing (“Cure Period”"CURE PERIOD"), such Title Defect. In the alternative, Optionor Seller may elect to (i) indemnify Optionee cure such Title Defect by indemnifying Buyer against any damages, claims or expenses that may arise out of such Title Defect, subject to the provisions of Section 8.3(c) below, with no reduction in the Cash Payment or payment to OptioneePurchase Price; or (ii) reduce the Cash Payment Purchase Price by an amount equal to the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty twenty five thousand dollars ($50,000.0025,000.00) deductible and the Aggregate Defect Basket described in Section 8.1(c) (9); or, (iii) if the Purchase Price does not consist of a Cash Payment (but rather a volumetric production payment), pay Optionee at Closing the amount of the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible7.4. Should Optionor Seller elect either alternative “"(i)” " (indemnity) or “"(ii)” " (price reduction) or “(iii)” (payment to Optionee) in this Section 8.3(a), those Assets affected by the Title Defect shall be transferred to Optionee Buyer at Closing.
(b) If Optionor Seller elects to attempt to cure a Title Defect after Closing, the Closing with respect to the portion of the Assets affected by such Title Defect will proceed along be deferred (the "Closing Deferred Property"). Closing with respect to all other Assets will proceed as provided in this Agreement, but the Base Purchase Price delivered to Seller at such initial Closing shall be reduced by the Allocated Value of all Closing Deferred Properties. If Optionor Seller cures any Title Defect within the Cure Period, then the Closing with respect to the Closing Deferred Property for which such Title Defect has been cured will proceed and will be finalized within seven (7) days following the end of the Cure Period. If Seller fails or refuses to cure any Title Defect prior to the expiration of the Cure Period, Optionor Seller shall notify Optionee Buyer in writing of such failure or refusal promptly upon the expiration of the Cure Period. In this event, Optionee Buyer shall have the right to elect by written notice to Seller, which notice shall be delivered within seven (7) days after receipt by Optionee Buyer of Notice from Optionor Seller of such failure or refusal to cure any such Title Defect, pay Optionee to waive all of the Title Defects applicable to any Closing Deferred Property (which waived Title Defects shall be deemed Permitted Encumbrances) and proceed to Closing on such Closing Deferred Property. If Buyer does not elect to waive an amount equal to existing Title Defect, Seller shall retain the subject Title Defect ValueClosing Deferred Property and the Parties shall have no further obligation with respect thereto. In the event that any such property is retained by Optionor Seller and such property has been receiving revenue, without complaint, for a period in excess of two (2) years, then Optionee Buyer agrees (i) not to take any action to interfere with such revenue stream, and (ii) to the extent that Optionee Buyer becomes payor of such revenue, to pay Optionor Seller such revenue upon receipt of an indemnity agreement from OptionorSeller.
(c) The following provisions shall apply to an election by Optionor Seller under the second sentence of Section 8.3(a)(i8.3(a) to indemnify Optionee cure a Title Defect by indemnifying Buyer with regard to such Title Defect:
(1) Optionor’s Seller's indemnity shall be limited to a period of two (2) years from the Effective Time.
(2) In no event shall Optionor’s Seller's indemnity exceed the amount of the Title Defect Value as determined under Section 8.4 hereof.
(3) Optionor’s Seller's indemnity shall be freely transferable by Optionee Buyer to its successors and assigns of the Assets affected by such Title Defect, including without limitation, any lender to Optionee Buyer and any purchaser of such Assets, whether directly from Optionee Buyer or through any foreclosure proceeding; and
(4) If the Title Defect Value, as determined under Section 8.4 hereof, individually or in the aggregate, for one or more Title Defects to be covered by the Optionor’s Seller's indemnity exceeds two seven hundred fifty thousand dollars ($250,000.00750,000.00) (after application of the appropriate deductible(s) and without application of the Aggregate Defect Basket provided for in Section 8.1(c)(97.4), Optionor Seller shall have no right under the second sentence of Section 8.3(a)(iii8.3(a) to indemnify Optionee Buyer with regard to such Title Defects without Optionee’s Buyer's consent.
(d) In the event any adjustment to the Cash Payment, or payment by Optionor to Optionee, Purchase Price is made due to a Title Defect raised by OptioneeBuyer, the Parties shall proceed with Closing, Optionor Seller shall be under no obligation to correct the Title Defect, and such Title Defect shall become an Assumed Obligation of OptionorSeller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Natural Gas Systems Inc/New)
Title Defect Adjustment. (a) In the event any Title Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Optionor Seller shall have the opportunity to cure, until sixty (60) days after Closing the Final Settlement Date (“Cure Period”), such Title Defect. In the alternative, Optionor (i) Seller may elect to (i) indemnify Optionee against any damages, claims or expenses that may arise out of such Title Defect, subject to the provisions of Section 8.3(c) below, with no reduction in the Cash Payment or payment to Optionee; or (ii) reduce the Cash Payment Purchase Price by an amount equal to the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty seventy-five thousand dollars ($50,000.0075,000.00) deductible and the Aggregate Defect Basket described in Section 8.1(c7.4, or (ii) (9); or, (iii) if the Purchase Price does not consist of Seller and Buyer can enter into a Cash Payment (but rather a volumetric production payment), pay Optionee at Closing the amount of the mutually agreeable indemnity for such Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductibleDefect. Should Optionor Seller elect either alternative “(i)” (indemnityprice reduction) or Buyer and Seller elect “(ii)” (price reduction) or “(iii)” (payment to Optioneemutually agreeable indemnity) in this Section 8.3(a), those Assets affected by the Title Defect shall be transferred to Optionee Buyer at Closing.
(b) If Optionor Seller elects to attempt to cure a Title Defect after Closing, the Closing with respect to the portion of the Assets affected by such Title Defect will proceed along be deferred (the “Closing Deferred Property”). Closing with respect to all other Assets will proceed as provided in this Agreement, but the Purchase Price delivered to Seller at such initial Closing shall be reduced by the Allocated Value of the Assets for all Closing Deferred Properties. If Optionor Seller cures any Title Defect within the Cure Period, then the Closing with respect to the Closing Deferred Property for which such Title Defect has been cured will proceed and will be finalized within seven (7) days following the end of the Cure Period. If Seller fails or refuses to cure any Title Defect prior to the expiration of the Cure Period, Optionor Buyer shall notify Optionee in writing of such failure or refusal promptly upon have the expiration of the Cure Period. In this eventright to elect by written notice to Seller, Optionee which notice shall be delivered within seven (7) days after receipt by Optionee Buyer of Notice from Optionor Seller of such failure or refusal to cure any such Title Defect, pay Optionee to waive all of the Title Defects applicable to any Closing Deferred Property (which waived Title Defects shall be deemed Permitted Encumbrances) and proceed to Closing on such Closing Deferred Property (“Waiver Notice Date”) . If Buyer does not elect to waive an amount equal existing Title Defect, the Parties shall either (i) enter into a mutually agreeable indemnity for such Title Defect, or (ii) negotiate a mutually agreeable value for the Closing Deferred Property and proceed to the subject Title Defect ValueClosing on such Closing Deferred Property. In the event that any such the Parties are unable to mutually agree to either “(i)” (mutually agreeable indemnity) or “(ii)” (mutually agreeable value) within thirty (30) days after the Waiver Notice Date, then the Parties shall refer the matter to arbitration and the value of the Closing Deferred Property shall be exclusively and finally resolved pursuant to this Section 8.3(b). There shall be a single arbitrator to determine the value of the Closing Deferred Property who shall be an evaluation petroleum engineer with at least ten (10) years experience in oil and gas property valuation in the regional area in which the Closing Deferred Property is retained located, which shall be selected by Optionor mutual agreement of Buyer and such property Seller within fifteen (15) Business Days after the date in which the matter has been receiving revenuereferred to arbitration, without complaintand absent such agreement, by the Dallas office of the American Arbitration Association (the “Value Arbitrator”). The Value Arbitrator shall not have been employed by or performed services for either the Seller or Buyer for a period five (5) years prior to the Closing Date. The arbitration proceeding shall be held in Dallas, Texas and shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, to the extent such rules do not conflict with the terms of this Section. The Value Arbitrator’s determination shall be made within fifteen (15) Business Days after submission of the matters in dispute and shall be final and binding upon both parties, without right of appeal. In making his determination as to the value of the Closing Deferred Property, the Value Arbitrator shall (i) be bound by the rules set forth in this Section 8.3(b), (ii) utilize the guidelines as set forth in Section 8.4(a), (b), and (c), and (iii) utilize the Allocated Value of the Closing Deferred Property. Additionally the Value Arbitrator may consider such other matters as in the opinion of the Value Arbitrator are necessary or helpful to make a proper determination with respect to the value of the Closing Deferred Property. Furthermore, the Value Arbitrator may consult with and engage disinterested third parties to advise the arbitrator. The Value Arbitrator shall act as an expert for the limited purpose of determining the value of the Closing Deferred Property as submitted by either party and may not award damages, interest or penalties to either party with respect to any matter and any such award shall not be in excess of two the Allocated Value for the Closing Deferred Property. Seller and Buyer shall each bear its own legal fees and other costs of presenting its case. Each party shall bear one-half of the costs and expenses of the Value Arbitrator, including any costs incurred by the Value Arbitrator that are attributable to such third party consultation. Within ten (210) years, then Optionee agrees (i) not days after the Value Arbitrator delivers written notice to take any action to interfere Buyer and Seller of his award with such revenue stream, and (ii) respect to the extent that Optionee becomes payor of specific Closing Deferred Property, the Parties shall and proceed to Closing on such revenue, to pay Optionor such revenue upon receipt of an indemnity agreement from OptionorClosing Deferred Property utilizing the value determined by the Value Arbitrator.
(c) The following provisions shall apply to an election by Optionor under Section 8.3(a)(i) to indemnify Optionee with regard to such Title Defect:
(1) Optionor’s indemnity shall be limited to a period of two (2) years from the Effective Time.
(2) In no event shall Optionor’s indemnity exceed the amount of the Title Defect Value as determined under Section 8.4 hereof.
(3) Optionor’s indemnity shall be freely transferable by Optionee to its successors and assigns of the Assets affected by such Title Defect, including without limitation, any lender to Optionee and any purchaser of such Assets, whether directly from Optionee or through any foreclosure proceeding; and
(4) If the Title Defect Value, as determined under Section 8.4 hereof, individually or in the aggregate, for one or more Title Defects to be covered by the Optionor’s indemnity exceeds two hundred fifty thousand dollars ($250,000.00) (after application of the appropriate deductible(s) provided for in Section 8.1(c)(9), Optionor shall have no right under the second sentence of Section 8.3(a)(iii) to indemnify Optionee with regard to such Title Defects without Optionee’s consent.
(d) In the event any adjustment to the Cash Payment, or payment by Optionor to Optionee, Purchase Price is made due to a Title Defect raised by OptioneeBuyer, the Parties shall proceed with Closing, Optionor Seller shall be under no obligation to correct the Title Defectsuch defect, and such Title Defect defect shall become an Assumed Obligation of OptionorBuyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Denbury Resources Inc)
Title Defect Adjustment. (a) In the event any Title Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Optionor shall have the opportunity to cure, until sixty (60) days after Closing (“Cure Period”), such Title Defect. In the alternative, Optionor Seller may elect to (i) indemnify Optionee cure such Title Defect by indemnifying Buyer against any damages, claims or expenses that may arise out of such Title Defect, subject to the provisions of Section 8.3(c8.3(b) below, with no reduction in the Cash Payment or payment to OptioneePurchase Price; or (ii) reduce the Cash Payment Purchase Price by an amount equal to the Title Defect Value as determined pursuant to Section 8.4, to the extent that each individual Title Defect exceeds a Ten Thousand And No/100 dollar ($10,000.00) threshold, and subject to application the sum of the fifty thousand all individual Title Defects in excess of each threshold amount exceeds Forty Five Thousand And No/100 dollars ($50,000.0045,000.00) deductible (the “Title Defect Deductible”) and the Aggregate Defect Basket described in Section 8.1(c) (9); or, (iii) if the Purchase Price does not consist of a Cash Payment (but rather a volumetric production payment), pay Optionee at Closing the amount of the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible7.4. Should Optionor Seller elect either alternative “(i)” (indemnity) or “(ii)” (price reduction) or “(iii)” (payment to Optionee) in this Section 8.3(a), those Assets affected by the Title Defect shall be transferred to Optionee Buyer at Closing.
(b) If Optionor elects to attempt to cure a Title Defect after Closing, the Closing with respect to the portion of the Assets affected by such Title Defect will proceed along with all other Assets as provided in this Agreement. If Optionor fails or refuses to cure any Title Defect prior to the expiration of the Cure Period, Optionor shall notify Optionee in writing of such failure or refusal promptly upon the expiration of the Cure Period. In this event, Optionee shall within seven (7) days after receipt by Optionee of Notice from Optionor of such failure or refusal to cure any such Title Defect, pay Optionee an amount equal to the subject Title Defect Value. In the event that any such property is retained by Optionor and such property has been receiving revenue, without complaint, for a period in excess of two (2) years, then Optionee agrees (i) not to take any action to interfere with such revenue stream, and (ii) to the extent that Optionee becomes payor of such revenue, to pay Optionor such revenue upon receipt of an indemnity agreement from Optionor.
(c) The following provisions shall apply to an election by Optionor Seller under the second sentence of Section 8.3(a)(i8.3(a) to indemnify Optionee cure a Title Defect by indemnifying Buyer with regard to such Title Defect:
(1) OptionorSeller’s indemnity shall be limited to a period of two (2) years from the Effective Time.
(2) In no event shall OptionorSeller’s indemnity exceed the amount of the Title Defect Value as determined under Section 8.4 hereof.
(3) OptionorSeller’s indemnity shall be freely transferable by Optionee Buyer to its successors and assigns of the Assets affected by such Title Defect, including without limitation, any lender to Optionee Buyer and any purchaser of such Assets, whether directly from Optionee Buyer or through any foreclosure proceeding; and
(4) If the Title Defect Value, as determined under Section 8.4 hereof, individually or in the aggregate, for one or more Title Defects to be covered by the OptionorSeller’s indemnity exceeds two hundred fifty thousand Seven Hundred Fifty Thousand and No/100 dollars ($250,000.00750,000.00) (after application of the appropriate deductible(s) and without application of the Aggregate Defect Basket provided for in Section 8.1(c)(97.4), Optionor Seller shall have no right under the second sentence of Section 8.3(a)(iii) to indemnify Optionee Buyer with regard to such Title Defects without OptioneeBuyer’s consent.
(dc) In the event any adjustment to the Cash Payment, or payment by Optionor to Optionee, Purchase Price is made due to a Title Defect raised by OptioneeBuyer, the Parties shall proceed with Closing, Optionor Seller shall be under no obligation to correct the Title Defectsuch defect, and such Title Defect defect shall become an Assumed Obligation of OptionorBuyer.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Evolution Petroleum Corp)
Title Defect Adjustment. (a) In the event any Buyer provides Seller with a Title Defect, for which notice has been timely given Defect Notice as provided hereinabovein Section 8.2 above, remains uncured as of ClosingSeller, Optionor at its sole option, shall have the opportunity with respect to cure, until each such Title Defect (i) agree to cure such Title Defect within sixty (60) days after Closing (“"Cure Period”"), (ii) reduce the Purchase Price by the Title Defect Value agreed upon by Seller and Buyer with respect to such Title Defect. In , less the alternativedeductible, Optionor may elect to or (iiii) indemnify Optionee provide Buyer with indemnification against any damages, claims or expenses that may arise out of such Title Defect, subject to the provisions of Section 8.3(c) below, with no reduction in the Cash Payment or payment to Optionee; or (ii) reduce the Cash Payment by an amount equal to the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible described in Section 8.1(c) (9); or, (iii) if the Purchase Price does not consist of a Cash Payment (but rather a volumetric production payment), pay Optionee at Closing the amount of the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible. Should Optionor elect alternative “(i)” (indemnity) or “(ii)” (price reduction) or “(iii)” (payment to Optionee) in this Section 8.3(a), those Assets affected by the Title Defect shall be transferred to Optionee at Closing.
(b) If Optionor Seller elects to attempt to cure a Title Defect after Closing, the Closing with respect to the portion of the Assets affected by such Title Defect will proceed along be deferred (the “Closing Deferred Property”). Closing with respect to all other Assets will proceed as provided in this Agreement, but the Purchase Price delivered to Sellers at such initial Closing will be reduced by the Allocated Value of all Closing Deferred Properties. If Optionor Sellers cure any Title Defect within the Cure Period, then the Closing with respect to the Closing Deferred Property for which such Title Defect has been cured will proceed and will be finalized within seven (7) days following the end of the Cure Period. If Seller fails or refuses to cure any Title Defect prior to the expiration of the Cure Period, Optionor shall notify Optionee in writing of such failure or refusal promptly upon the expiration of the Cure Period. In this eventBuyer may separately elect, Optionee shall by notice to Seller delivered within seven (7) days after receipt by Optionee Buyer of Notice from Optionor Seller of such failure or refusal to cure any such Title Defect, pay Optionee to waive all of the Title Defects applicable to any Closing Deferred Property (which waived Title Defects shall be deemed Permitted Encumbrances) and proceed to Closing on such Closing Deferred Property. If Buyer does not elect to waive an amount equal to existing Title Defect, Seller shall retain the subject Title Defect ValueClosing Deferred Property, and the Parties shall have no further obligation with respect thereto. In the event that any such property Asset is retained by Optionor Seller and such property Asset has been receiving revenue, without complaint, for a period in excess of two (2) years, then Optionee Buyer agrees (i) not to take any action to interfere with such revenue stream, and (ii) to the extent that Optionee Buyer becomes payor of such revenue, to pay Optionor Seller such revenue upon receipt of an indemnity agreement from OptionorSeller.
(c) The following provisions shall apply to an election by Optionor under Section 8.3(a)(i) to indemnify Optionee with regard to such Title Defect:
(1) Optionor’s indemnity shall be limited to a period of two (2) years from the Effective Time.
(2) In no event shall Optionor’s indemnity exceed the amount of the Title Defect Value as determined under Section 8.4 hereof.
(3) Optionor’s indemnity shall be freely transferable by Optionee to its successors and assigns of the Assets affected by such Title Defect, including without limitation, any lender to Optionee and any purchaser of such Assets, whether directly from Optionee or through any foreclosure proceeding; and
(4) If the Title Defect Value, as determined under Section 8.4 hereof, individually or in the aggregate, for one or more Title Defects to be covered by the Optionor’s indemnity exceeds two hundred fifty thousand dollars ($250,000.00) (after application of the appropriate deductible(s) provided for in Section 8.1(c)(9), Optionor shall have no right under the second sentence of Section 8.3(a)(iii) to indemnify Optionee with regard to such Title Defects without Optionee’s consent.
(d) In the event any adjustment to the Cash Payment, or payment by Optionor to Optionee, is made due to a Title Defect raised by Optionee, the Parties shall proceed with Closing, Optionor shall be under no obligation to correct the Title Defect, and such Title Defect shall become an Assumed Obligation of Optionor.
Appears in 1 contract
Title Defect Adjustment. (a) In the event any Title DefectDefect for the Assets, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Optionor Seller shall have the opportunity opportunity, but not the obligation, to cure, cure until sixty (60) days after Closing the Final Settlement Date (“Cure Period”), such Title Defect. In the alternative, Optionor may elect to (i) indemnify Optionee against any damages, claims or expenses that may arise out of such Title Defect, subject or, alternatively, Seller may elect to the provisions of Section 8.3(c) below, with no reduction in the Cash Payment or payment to Optionee; or (ii) reduce the Cash Payment Purchase Price by an amount equal to the Title Defect Value as determined pursuant to Section 8.4, and subject to the application of the fifty thousand dollars Thirty Thousand and No/100 Dollars ($50,000.0030,000.00) deductible threshold for each such Title Defect and the Defect Basket described in Section 8.1(c) (9); or, (iii) if 7.4. Should Seller elect to reduce the Purchase Price does not consist of a Cash Payment (but rather a volumetric production payment), pay Optionee at Closing the amount of the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductible. Should Optionor elect alternative “(i)” (indemnity) or “(ii)” (price reduction) or “(iii)” (payment to Optionee) in this Section 8.3(a), those Assets affected by the Title Defect shall be transferred to Optionee Buyer at Closing. In no event shall the Defect Value for any Title Defect ever exceed the Allocated Value of such Asset.
(b) If Optionor Seller elects to attempt to cure a Title Defect for the Assets after Closing, the Closing with respect to the portion of the Assets affected by such Title Defect will proceed along be deferred (the “Closing Deferred Property”). Closing with respect to all other Assets will proceed as provided in this Agreement, but the Purchase Price delivered to Seller at such initial Closing shall be reduced by the aggregate Allocated Value of the Assets for all Closing Deferred Properties. If Optionor Seller cures any Title Defect within the Cure Period, then the Closing with respect to the Closing Deferred Property for which such Title Defect has been cured will proceed and will be finalized within seven (7) days following the end of the Cure Period. If Seller fails or refuses to cure any Title Defect prior to the expiration of the Cure Period, Optionor Buyer shall notify Optionee in writing of such failure or refusal promptly upon have the expiration of the Cure Period. In this eventright to elect by written notice to Seller, Optionee which notice shall be delivered within seven (7) days after receipt by Optionee Buyer of Notice notice from Optionor Seller of such failure or refusal to cure any such Title Defect, pay Optionee to waive all of the Title Defects applicable to any Closing Deferred Property (which waived Title Defects shall be deemed Permitted Encumbrances) and proceed to Closing on such Closing Deferred Property. If Buyer does not elect to waive an amount equal to existing Title Defect, Seller shall retain the subject Title Defect Value. In Closing Deferred Property, and the event that any such property is retained by Optionor Parties shall have no further obligation with respect thereto and such property has been receiving revenue, without complaint, for a period in excess of two (2) years, then Optionee agrees (i) shall not to take any action to interfere with such revenue stream, and (ii) be subject to the extent that Optionee becomes payor terms of such revenue, to pay Optionor such revenue upon receipt of an indemnity agreement from Optionorthis Agreement.
(c) The following provisions shall apply to an election by Optionor under Section 8.3(a)(i) to indemnify Optionee with regard to such Title Defect:
(1) Optionor’s indemnity shall be limited to a period of two (2) years from the Effective Time.
(2) In no event shall Optionor’s indemnity exceed the amount of the Title Defect Value as determined under Section 8.4 hereof.
(3) Optionor’s indemnity shall be freely transferable by Optionee to its successors and assigns of the Assets affected by such Title Defect, including without limitation, any lender to Optionee and any purchaser of such Assets, whether directly from Optionee or through any foreclosure proceeding; and
(4) If the Title Defect Value, as determined under Section 8.4 hereof, individually or in the aggregate, for one or more Title Defects to be covered by the Optionor’s indemnity exceeds two hundred fifty thousand dollars ($250,000.00) (after application of the appropriate deductible(s) provided for in Section 8.1(c)(9), Optionor shall have no right under the second sentence of Section 8.3(a)(iii) to indemnify Optionee with regard to such Title Defects without Optionee’s consent.
(d) In the event any adjustment to the Cash Payment, or payment by Optionor to Optionee, Purchase Price is made due to a Title Defect raised by OptioneeBuyer, the Parties shall proceed with Closing, Optionor Seller shall be under no obligation to correct the such Title Defect, and such Title Defect shall become an Assumed Obligation of OptionorBuyer.
Appears in 1 contract
Title Defect Adjustment. (a) In the event any Title Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Optionor shall have the opportunity Buyer, in its sole discretion, may elect to cureeither (i) accept Seller’s agreement prior to closing to cure such Title Defect by October 31, until sixty (60) days after Closing 2012 (“Cure Period”), such Title Defect. In the alternative, Optionor may elect to (i) indemnify Optionee and by indemnifying Buyer against any damages, claims or expenses Claims that may arise out of such Title Defect, subject to the provisions of Section 8.3(c) below8.3(d)below, with no reduction in the Cash Payment or payment to OptioneePurchase Price; or (ii) reduce the Cash Payment Purchase Price by an amount equal to the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars five thousanddollars ($50,000.005,000.00) deductible described in Section 8.1(c) (9); or, or (iii) if exclude the portion of the Asset impacted by the Title Defect from the transactions contemplated herein (such that they are not Purchased Assets) and reduce the Purchase Price does not consist by an amount equal to the Allocated Value of a Cash Payment (but rather a volumetric production payment), pay Optionee at Closing the amount such portion of the Title Defect Value as determined pursuant to Section 8.4, and subject to application of the fifty thousand dollars ($50,000.00) deductiblesuch Asset. Should Optionor Seller elect either alternative “(i)” (indemnity) or “(ii)” ) (price reduction) or “(iii)” (payment to Optionee) in this Section 8.3(a), those Assets affected by the Title Defect shall be transferred to Optionee Buyer at Closing.. Purchase and Sale Agreement- Sun River Energy, Inc. and Katy Resources ETX, LLC
(b) If Optionor Seller elects to attempt to cure a Title Defect after Closing, the Closing with respect to the portion of the Assets affected by such Title Defect will proceed along be deferred (the “Closing Deferred Property”). Closing with respect to all other Assets will proceed as provided in this Agreement, but the Purchase Price delivered to Seller at such initial Closing shall be reduced by the Allocated Value of the Assets for all Closing Deferred Properties. If Optionor Seller cures any Title Defect within the Cure Period, then the Closing with respect to the Closing Deferred Property for which such Title Defect has been cured will proceed and will be finalized within seven (7) days following the end of the Cure Period. If Seller fails or refuses to cure any Title Defect prior to the expiration of the Cure Period, Optionor Buyer shall notify Optionee in writing of such failure or refusal promptly upon have the expiration of the Cure Period. In this eventright to elect by written notice to Seller, Optionee which notice shall be delivered within seven (7) days after receipt by Optionee Buyer of Notice from Optionor Seller of such failure or refusal to cure any such Title Defect, pay Optionee to waive all of the Title Defects applicable to any Closing Deferred Property (which waived Title Defects shall be deemed Permitted Encumbrances) and proceed to Closing on such Closing Deferred Property. If Buyer does not elect to waive an amount equal to existing Title Defect, Seller shall retain the subject Title Defect ValueClosing Deferred Property and the Parties shall have no further obligation with respect thereto. In the event that any such property is retained by Optionor Seller and revenue has regularly been paid with respect to such property has been receiving revenueproperty, without complaint, for a period in excess of two (2) years, then Optionee agrees Buyer agrees, except as required by law (i) not to take any action to interfere with such revenue stream, and (ii) to the extent that Optionee Buyer becomes payor of such revenue, to pay Optionor Seller such revenue upon receipt of an indemnity agreement from OptionorSeller.
(c) The following provisions shall apply to an election by Optionor Seller under the second sentence of Section 8.3(a)(i8.3(a) to indemnify Optionee cure a Title Defect by indemnifying Buyer with regard to such Title Defect:
(1) OptionorSeller’s indemnity shall be limited to a for an indefinite period of two (2) years from the Effective Timetime.
(2) In no event Seller shall Optionor’s execute and deliver to Buyer a mutually agreeable form of indemnity exceed agreement with respect to such Title Defect, which shall indemnify Buyer from and against any and all Claims arising from or related to such Title Defect, including, without limitation, the amount portion of the Title Defect Value as determined under Section 8.4 hereofPurchase Price paid by Buyer for the Assets affected thereby and all capital expenditures and other costs and expenses incurred by Buyer in connection with the ownership, operation and development of the Assets affected thereby.
(3) OptionorSeller’s indemnity shall be freely transferable by Optionee Buyer to its successors and assigns of the Assets affected by such Title Defect, including without limitation, any lender to Optionee Buyer and any purchaser Buyer of such Assets, whether directly from Optionee Buyer or through any foreclosure proceeding; and
(4) If the Title Defect Value, as determined under Section 8.4 hereof, individually or in the aggregate, for one or more Title Defects to be covered by the Optionor’s indemnity exceeds two hundred fifty thousand dollars ($250,000.00) (after application of the appropriate deductible(s) provided for in Section 8.1(c)(9), Optionor shall have no right under the second sentence of Section 8.3(a)(iii) to indemnify Optionee with regard to such Title Defects without Optionee’s consent.
(d) In Except as provided in Article 9, in the event any adjustment to the Cash Payment, or payment by Optionor to Optionee, Purchase Price is made pursuant to alternative (ii) in the first sentence of Section 8(a) due to a Title Defect raised by OptioneeBuyer, the Parties shall proceed with Closing, Optionor Closing and Seller shall be under no obligation to correct the Title Defectsuch defect. Purchase and Sale Agreement- Sun River Energy, Inc. and such Title Defect shall become an Assumed Obligation of Optionor.Katy Resources ETX, LLC
Appears in 1 contract
Samples: Purchase and Sale Agreement (Sun River Energy, Inc)
