Warranty of title

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(a) EXCEPT AS AND TO THE LIMITED EXTENT EXPRESSLY SET FORTH IN ARTICLE VII OF THIS AGREEMENT, THE CERTIFICATES DELIVERED AT CLOSING AND THE SPECIAL WARRANTY OF TITLE SET FORTH IN THE ASSIGNMENT AND BILL OF SALE, (I) SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, AND (II) SELLER EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, STATEMENT OR INFORMATION MADE OR COMMUNICATED (ORALLY OR IN WRITING) TO BUYER OR ANY OF ITS AFFILIATES, EMPLOYEES, AGENTS, CONSULTANTS OR REPRESENTATIVES (INCLUDING, ANY OPINION, INFORMATION, PROJECTION OR ADVICE THAT MAY HAVE BEEN PROVIDED TO BUYER BY ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, CONSULTANT, REPRESENTATIVE OR ADVISOR OF SELLER OR ANY OF ITS AFFILIATES).

(b) Special Warranty of Title. The Assignment and Bill of Sale delivered at the Closing will contain a special warranty of title by Seller and its Affiliates by, through or under Seller (and its Affiliates), but not otherwise, subject, however, to the Permitted Encumbrances and to any matters of record in any of the applicable federal, state and county records. Said special warranty of title contained in the Assignment and Bill of Sale shall be subject to the further limitations and provisions of this Article V.

(a) General Disclaimer of Title Warranties and Representations. Except for Section 7.17 and the special warranty of title contained in the Assignment and Bill of Sale, and without limiting Buyer’s remedies for Title Defects set forth in this Article V, Seller makes no warranty or representation, express, implied, statutory or otherwise, with respect to Seller’s title to any of the Assets and Buyer acknowledges and agrees that Buyer’s sole remedy for any defect of title, including any Title Defect, with respect to any of the Assets (i) before the Closing, shall be with respect to Section 7.17 and as set forth in Section 5.2 and (ii) after the Closing, shall be with respect to Section 7.17 and pursuant to the special warranty of title contained in the Assignment and Bill of Sale.

(b) EXCEPT AS AND TO THE LIMITED EXTENT EXPRESSLY REPRESENTED OTHERWISE IN ARTICLE VII AND THE CERTIFICATES DELIVERED AT CLOSING AND THE SPECIAL WARRANTY OF TITLE SET FORTH IN THE ASSIGNMENT AND BILL OF SALE, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, AS TO (I) TITLE TO ANY OF THE ASSETS, (II) THE CONTENTS, CHARACTER OR NATURE OF ANY REPORT OF ANY PETROLEUM ENGINEERING CONSULTANT OR ANY ENGINEERING, GEOLOGICAL OR SEISMIC DATA OR INTERPRETATION, RELATING TO THE ASSETS, (III) THE QUANTITY, QUALITY OR RECOVERABILITY OF HYDROCARBONS IN OR FROM THE ASSETS, (IV) ANY ESTIMATES OF THE VALUE OF THE ASSETS OR FUTURE REVENUES GENERATED BY THE ASSETS, (V) THE PRODUCTION OF HYDROCARBONS FROM THE ASSETS, (VI) THE MAINTENANCE, REPAIR, CONDITION, QUALITY, SUITABILITY, DESIGN OR MARKETABILITY OF THE ASSETS OR THE PROPERTIES UNDERLYING THE ASSETS, (VII) THE CONTENT, CHARACTER OR NATURE OF ANY INFORMATION MEMORANDUM, REPORTS, BROCHURES, CHARTS OR STATEMENTS PREPARED BY SELLER OR THIRD PARTIES WITH RESPECT TO THE ASSETS, (VIII) ANY OTHER MATERIALS OR INFORMATION THAT MAY HAVE BEEN MADE AVAILABLE TO BUYER OR ITS AFFILIATES OR ITS OR THEIR EMPLOYEES, AGENTS, CONSULTANTS, REPRESENTATIVES OR ADVISORS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY DISCUSSION OR PRESENTATION RELATING THERETO AND (IX) ANY IMPLIED OR EXPRESS WARRANTY OF FREEDOM FROM PATENT OR TRADEMARK INFRINGEMENT. EXCEPT AS AND TO THE LIMITED EXTENT EXPRESSLY REPRESENTED OTHERWISE IN ARTICLE VII OF THIS AGREEMENT, THE CERTIFICATES DELIVERED AT CLOSING, THE SPECIAL WARRANTY OF TITLE SET FORTH IN THE ASSIGNMENT AND BILL OF SALE, SELLER FURTHER DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, OF MERCHANTABILITY, FREEDOM FROM LATENT VICES OR DEFECTS, FITNESS FOR A PARTICULAR PURPOSE OR

(ii) Limitations on Special Warranty. For purposes of the special warranty of title contained in the Assignment and Bill of Sale, which such special warranty of title shall terminate at the end of the Holdback Period, the value of the Assets set forth in Exhibit A-1 shall be deemed to be the Allocated Value thereof, as adjusted herein. Recovery on the special warranty of title contained in the Assignment and Bill of Sale shall be limited to an amount (without any interest accruing thereon) equal to the reduction in the Purchase Price to which Buyer would have been entitled had Buyer asserted the defect of title giving rise to such breach of the special warranty of title contained in the Assignment and Bill of Sale, as applicable, as a Title Defect prior to the Closing pursuant to Section 5.2, in each case without taking into account the Individual Title Defect Threshold and the Title Deductible. Seller shall be entitled to offset any amount owed by Seller for breach of the special warranty of title contained in the Assignment and Bill of Sale with respect to any Asset by the amount of any Title Benefits with respect to such Asset as to which Seller gives Buyer notice after the Defect Claim Date.

(i) Buyer’s Assertion of Title Warranty Breaches. Buyer shall furnish Seller a Title Defect Notice meeting the requirements of Section 5.2(a) setting forth any matters which Buyer intends to assert as a breach of the special warranty of title contained in the Assignment and Bill of Sale. Seller shall have a reasonable opportunity, but not the obligation, to cure any breach asserted by Buyer pursuant to this Section 5.1(c)(i). Buyer agrees to reasonably cooperate with any attempt by Seller to cure any such breach.

(c) EXCEPT AS AND TO THE LIMITED EXTENT EXPRESSLY REPRESENTED OTHERWISE IN ARTICLE VII, THE CERTIFICATES DELIVERED AT CLOSING AND THE SPECIAL WARRANTY OF TITLE SET FORTH IN THE ASSIGNMENT AND BILL OF SALE, SELLER HAS NOT AND WILL NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING ANY MATTER OR CIRCUMSTANCE RELATING TO (I) TITLE TO THE ASSETS OR (II) ENVIRONMENTAL LAWS, THE RELEASE OF MATERIALS INTO THE ENVIRONMENT OR THE PROTECTION OF HUMAN HEALTH, SAFETY, NATURAL RESOURCES OR THE ENVIRONMENT, OR ANY OTHER ENVIRONMENTAL CONDITION OF THE ASSETS OR THE PROPERTIES UNDERLYING THE ASSETS, AND NOTHING IN THIS AGREEMENT OR OTHERWISE SHALL BE CONSTRUED AS SUCH A REPRESENTATION OR WARRANTY, AND, BUYER SHALL BE DEEMED TO BE OBTAINING THE ASSETS “AS IS” AND “WHERE IS” WITH ALL FAULTS FOR PURPOSES OF THEIR ENVIRONMENTAL CONDITION AND THAT BUYER HAS MADE OR CAUSED TO BE MADE OR WILL MAKE OR CAUSE TO BE MADE SUCH TITLE AND ENVIRONMENTAL INSPECTIONS OF THE ASSETS AS BUYER DEEMS APPROPRIATE.

(a) Title Defect Notices. Buyer must deliver, on or before 5:00 p.m. Central Time on July 16, 2018 (the “Defect Claim Date”), claim notices to Seller meeting the requirements of this Section 5.2(a) (collectively the “Title Defect Notices” and individually a “Title Defect Notice”) setting forth any matters which, in Buyer’s reasonable opinion, constitute Title Defects and which Buyer intends to assert as a Title Defect pursuant to this Section 5.2. For all purposes of this Agreement and notwithstanding anything herein to the contrary (except for the special warranty of title contained in the Assignment and Bill of Sale as limited by Section 5.1(c) and with respect to Section 7.17), Buyer shall be deemed to have waived, and Seller shall have no liability for, any Title Defect or other defect, failure, irregularity or Encumbrance affecting title to the Assets that Buyer fails to assert as a Title Defect by a Title Defect Notice received by Seller on or before the Defect Claim Date. To be effective, each Title Defect Notice shall be in writing, and shall include (i) a description of the alleged Title Defect and the Asset affected by such Title Defect (each a “Title Defect Property”), (ii) the Allocated Value of each Title Defect Property, (iii) supporting documents reasonably necessary for Seller to verify the existence of such Title Defect and (iv) the amount by which Buyer reasonably believes the Allocated Value of each Title Defect Property is reduced by such Title Defect and the computations upon which Buyer’s belief is based. To give Seller an opportunity to commence reviewing and curing Title Defects, Buyer agrees to use reasonable efforts to give Seller, on or before the end of each calendar week prior to the Defect Claim Date, written notice of all Title Defects discovered by Buyer during the preceding calendar week, which notice may be preliminary in nature and supplemented prior to the Defect Claim Date. Buyer shall also promptly furnish Seller with written notice of any Title Benefit which is discovered by any of Buyer’s or any of its Affiliate’s employees, title attorneys, landmen or other title examiners while conducting Buyer’s due diligence with respect to the Assets prior to the Defect Claim Date.

1. Assignment of Certain Leases to Coal Creek. At closing of this Agreement, WILLC and Viking shall execute and deliver to Coal Creek their assignments, in the form attached hereto as Exhibit A, assigning to Coal Creek all of WILLC’s and Viking’s right, title, and interest in and to the oil and gas leases described on Exhibit B attached hereto, except any overriding royalty interests of record. Such assignments shall be without warranty of title or warranties of any kind, and shall be “as is, where is” with respect to machinery, equipment, and other tangible personal property assigned thereunder; provided, however, that the assignors shall warranty that the interests assigned are free and clear of any encumbrances arising by or through assignors.

2. Assignment of Certain Leases to WILLC. At closing of this Agreement, Coal Creek shall execute and deliver to WILLC its assignment, in the form attached hereto as Exhibit C, assigning to WILLC all of Coal Creek’s right, title, and interest in and to the oil and gas leases described on Exhibit D attached hereto, except any overriding royalty interests of record. Such assignment shall be without warranty of title or warranties of any kind, and shall be “as is, where is” with respect to machinery, equipment, and other tangible personal property assigned thereunder; provided, however, that the assignor shall warranty that the interests assigned are free and clear of any encumbrances arising by or through assignor.

3. Assignment of Certain Leases to WILLC and Viking. At closing of this Agreement, Coal Creek shall execute and deliver to WILLC and Viking its assignment, in the form attached hereto as Exhibit E, assigning to WILLC an undivided sixty-five percent (65%) of its right, title, and interest, and to Viking an undivided thirty-five percent (35%) of its right, title, and interest in and to the oil and gas leases described on Exhibit F attached hereto, except any overriding royalty interests of record. Such assignment shall be without warranty of title or warranties of any kind, and shall be “as is, where is” with respect to machinery, equipment, and other tangible personal property assigned thereunder; provided, however, that the assignor shall warranty that the interests assigned are free and clear of any encumbrances arising by or through assignor.

(f) Defensible Title. Seller has defensible title to the Remaining Royalty Interest, and such title is free and clear of any defect in title arising by, through or under Seller. Notwithstanding the foregoing representation or any other provision of this Agreement, as of the Effective Date, Purchaser’s remedies with respect to defects in title shall be limited to recourse against Seller on the special warranty of title contained in the Assignment, except that Purchaser shall have full rights of subrogation to all covenants and warranties of title by parties heretofore given or made to Seller or Seller’s predecessors-in-title as set forth in the Assignment.

This Assignment is made, executed, and delivered without covenant or warranty of title, either express, implied or statutory, even as to a return of the purchase price, except that Assignor warrants title to the Leases and Wells unto Assignee, its successors and assigns, from and against all transfers, conveyances, assignments, liens or encumbrances affecting the Assets arising by, through or under Assignor’s own acts, and with full substitution and subrogation in and to all rights and actions of warranty of title which Assignor has or may have against all preceding owners and vendors, except to the extent any such warranty is not transferrable or is subject to a transfer fee or similar payment (unless Assignee assumes responsibility for such transfer fee or similar payment) (“Special Warranty of Title”).

ASSIGNOR HEREBY DISCLAIMS ANY, AND ASSIGNEE HEREBY ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED UPON ANY, EXPRESS, STATUTORY OR IMPLIED WARRANTY OR REPRESENTATION OF ANY KIND, INCLUDING WARRANTIES RELATING TO (i) TILE CONDITION OR MERCHANTABILITY OF THE ASSETS; (ii) THE FITNESS OF THE ASSETS FOR A PARTICULAR PURPOSE; (iii) (EXCEPT FOR THE SPECIAL WARRANTY OF TITLE) TITLE TO ANY OF THE ASSETS; (iv) THE CONTENTS, CHARACTER OR NATURE OF ANY REPORT OF ANY PETROLEUM ENGINEERING CONSULTANT, OR ANY ENGINEERING, GEOLOGICAL OR SEISMIC DATA OR INTERPRETATION, RELATING TO THE ASSETS; (v) THE MAINTENANCE, REPAIR, CONDITION, QUALITY, SUITABILITY, DESIGN OR MARKETABILITY OF THE ASSETS; (vi) THE CONTENT, CHARACTER OR NATURE OF ANY INFORMATION MEMORANDUM, REPORTS, BROCHURES, CHARTS OR STATEMENTS PREPARED BY ASSIGNOR OR THIRD PARTIES WITH RESPECT TO THE ASSETS; AND (vii) ANY OTHER MATERIALS OR INFORMATION THAT MAY HAVE BEEN MADE AVAILABLE TO ASSIGNEE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS ASSIGNMENT OR ANY DISCUSSION OR PRESENTATION RELATING THERETO. EXCEPT AS EXPRESSLY SET FORTH IN THIS ASSIGNMENT, ASSIGNOR FURTHER DISCLAIMS, AND ASSIGNEE AGREES AND ACKNOWLEDGES THAT IT HAS NOT RELIED UPON, ANY REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, OF THE CONDITION OF THE FACILITIES, OF FREEDOM FROM LATENT VICES OR DEFECTS OR CONFORMITY TO MODELS OR SAMPLES OF MATERIALS OF ANY ASSETS OR RIGHTS OF A PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION OR RETURN OF THE PURCHASE PRICE. ASSIGNEE ACCEPTS THE ASSETS “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS” AND IN ITS PRESENT CONDITION AND STATE OF REPAIR. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ASSIGNOR MAKES NO, AND ASSIGNEE ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED UPON ANY, EXCEPT FOR THE SPECIAL WARRANTY OF TITLE, REPRESENTATION OR WARRANTY AS TO (i) THE VALUE, QUALITY, QUANTITY, VOLUME OR DELIVERABILITY OF ANY OIL, GAS OR OTHER MINERALS OR RESERVES (IF ANY) IN, UNDER OR ATTRIBUTABLE TO THE ASSETS (INCLUDING WITHOUT LIMITATION PRODUCTION RATES, DECLINE RATES AND RECOMPLETION OR DRILLING OPPORTUNITIES), (ii) GAS BALANCING OR PAYOUT ACCOUNT INFORMATION, ALLOWABLES, OR OTHER REGULATORY MATTERS, (iii) THE PHYSICAL, OPERATING OR REGULATORY COMPLIANCE OF THE ASSETS, (iv) ANY MATTER OR CIRCUMSTANCE RELATING TO ENVIRONMENTAL LAWS, THE RELEASE OF MATERIALS INTO THE ENVIRONMENT OR THE PROTECTION OF HUMAN HEALTH, SAFETY, NATURAL RESOURCES OR THE ENVIRONMENT OR ANY OTHER ENVIRONMENTAL CONDITION OF THE PROPERTY, (v) PROJECTIONS AS TO EVENTS THAT COULD OR COULD NOT OCCUR, OR (vi) THE GEOLOGICAL OR ENGINEERING CONDITION OF THE ASSETS OR ANY VALUE THEREOF. ASSIGNEE ACKNOWLEDGES THAT THIS WAIVER IS CONSPICUOUS.

With respect to the physical condition of the Assets, Assignee shall rely on its own investigation and due diligence of the physical condition of the Assets, including environmental conditions, and Assignee accepts the Assets inclusive of any Adverse Environmental Condition presently existing, whether known or unknown. Assignee has accepted this Assignment solely on the basis of its own investigation and agrees it is acquiring the Assets on an “AS IS-WHERE IS” basis, without any representation or warranty, except the special warranty of title contained in this Assignment.

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