Common use of Limitations and Adjustments Clause in Contracts

Limitations and Adjustments. (a) Notwithstanding anything to the contrary herein, no Indemnified Party shall be entitled to make an Indemnification Claim for Losses arising out of, resulting from or in connection with the matters listed in Section 7.02(a) (other than Losses arising out of, resulting from, or in connection with a Fraud Claim or any Breach of the Fundamental Representations) unless the aggregate amount of all such Losses exceeds $35,000 (the “Basket”), in which case the Indemnified Party may make an Indemnification Claim for all Losses (including the amount of the Basket) in an amount up to $300,000.00 (the “Cap”), subject to the limitations set forth in this ARTICLE 7; provided, that for Fundamental Representations, the indemnified Party may make an Indemnification Claim for all Losses in an amount up to the Merger Consideration. For the avoidance of doubt, the Basket and Cap shall not apply to any other Losses or Indemnification Claims therefor. (b) The obligations of the Shareholders under Section 7.02 shall be satisfied as described in Section 7.07 below. No Claim for contribution or other Claim shall be made by any Seller against the Company, Parent or any of their respective Affiliates for Losses for which an Indemnified Party makes an Indemnification Claim. (c) For purposes of determining whether a Breach has occurred and the amount of Losses under Section 7.02, all qualifications and limitations as to materiality, Material Adverse Effect, and words of similar import shall be disregarded (except for the definition of “Material Contract”); provided that with respect to Fundamental Representations any qualifications and limitations as to materiality, Material Adverse Effect, and words of similar import shall be disregarded in calculating the amount of any Losses but not with respect to determining Breach. (d) The representations and warranties of the Company contained in this Agreement, any other Operative Document, or in any certificate delivered pursuant hereto or thereto shall not be deemed waived, modified, or otherwise affected, nor shall the survival of any such representations and warranties be deemed reduced, truncated, or otherwise limited, by any investigation made or any knowledge possessed or acquired by Parent or by any of its directors, officers, employees, consultants, Representatives or agents (or that could have been discovered by any of the foregoing, whether by any investigation made by or on behalf of Parent into the affairs of the Company or otherwise) prior to or after the Closing with respect to (i) the truth and accuracy of any such representations and warranties or (ii) any facts, matters, or circumstances that may give rise to an Indemnification Claim, and no Indemnification Claim made hereunder shall be limited on the basis thereof. The Shareholders acknowledge and agree that Parent is expressly relying on the representations and warranties of the Company contained in this Agreement, any other Operative Document, and in any certificate delivered pursuant hereto or thereto. (e) The amount of Losses related to any Indemnification Claim shall be paid to the applicable Indemnified Party in full, without any set off, counterclaim, restriction, or condition and without any deduction or withholding (except as may be required by Applicable Law or as otherwise agreed). (i) All Losses shall be calculated net of the amount of any recoveries actually received by an Indemnified Party from an unaffiliated, third party under any existing unaffiliated, third party insurance policies and contractual indemnification or contribution provisions (in each case, calculated net of any actual recovery or collection costs and reserves, expenses, deductibles, reimbursement obligations, premium adjustments or retrospectively rated premiums (as determined in good faith by an Indemnified Party), or other costs related to the insurance, indemnification, or contribution arrangement incurred or paid to procure such recoveries) in respect of any Losses suffered, paid, sustained, or incurred by any Indemnified Party; provided that, except as provided in Section 7.03(g)(ii), below, neither Parent, the Surviving Company, nor any of their respective Affiliates will have any obligation hereunder to take any action to obtain such payments or to obtain or maintain any such insurance policies or indemnification or contribution arrangements. (g) Any claim for Losses will be calculated without regard to (and shall not include) any speculative, exemplary, and punitive damages, except to the extent such damages are awarded to a third party in a Third-Party Claim. (h) Any liability for indemnification under this ARTICLE 7 shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach or other violation of more than one representation, warranty, covenant, agreement, certificate, or certification. (i) Following the Closing, this ARTICLE 7 shall constitute the sole and exclusive remedy for recovery of monetary Losses by the Indemnified Parties for all indemnifiable matters or other breaches under this Agreement (including any certificates delivered pursuant to this Agreement). All applicable statutes of limitations or other claims periods with respect to claims for Losses shall be shortened or lengthened to the applicable claims periods and survival periods set forth herein. Notwithstanding the foregoing, nothing in this Agreement shall limit the remedies of Parent or the Surviving Company under any other Operative Document.

Limitations and Adjustments. (a) Except for Losses under Section 7.2(a)(vii) and Section 7.2(b)(v), the aggregate liability of the Vested Equityholders for all Indemnification Claims shall be limited to the Escrow Fund. (b) Notwithstanding anything to the contrary herein, no Indemnified Party shall be entitled to make an Indemnification Claim for Losses arising out of, resulting from or in connection with the matters listed in Section 7.02(a) 7.2(a)(i), (other than Losses arising out of, resulting from, or in connection with a for Fraud Claim or any Breach breach of the any Fundamental RepresentationsRepresentation) unless the and until a Claim Notice (together with any other delivered Claim Notices) describing Losses in an aggregate amount of all such Losses exceeds greater than $35,000 2,000,000 (the “BasketDeductible”)) is delivered, in which case the Indemnified Party may make an Indemnification Claim Claims and receive cash from the Escrow Fund for Losses solely to the extent in excess of the Deductible for such matters. (c) Each Vested Equityholder shall be liable only for such Vested Equityholder’s Pro Rata Share of the Losses finally determined under this Agreement to be indemnifiable for such Indemnification Claim, and in no event shall the liability of any Vested Equityholder for any and all Losses (including Indemnification Claims in the aggregate under Section 7.2 or otherwise arising under or relating to this Agreement and the Transactions exceed the amount of Merger Consideration received by such Vested Equityholder (including any funds from the Basket) in an amount up to $300,000.00 (the “Cap”Escrow Fund), subject to the limitations set forth ; provided that nothing in this ARTICLE 7; provided, that Section 7.3(c) shall limit the liability of any Vested Equityholder for Fundamental Representations, the indemnified Party may make an Indemnification Claim for any and all Losses in an amount up to the Merger Consideration. For the avoidance of doubt, the Basket and Cap shall not apply to any other Losses or Indemnification Claims therefor. (b) The obligations of the Shareholders under Section 7.02 shall be satisfied as described in 7.2(a)(vii) and/or Section 7.07 below. No Claim for contribution or other Claim shall be made by any Seller against 7.2(b)(v) if the Company, Parent or any of their respective Affiliates for Losses for which an Indemnified Party makes an Vested Equityholder committed the Fraud underlying such Indemnification Claim. (cd) For purposes of determining whether a Breach breach has occurred and the amount of Losses under Section 7.027.2, all qualifications and limitations as to materiality, Material Adverse Effect, and words of similar import shall be disregarded disregarded; provided that in no event shall (except for the definition of x) “Material Contract”” be read to mean “Contract,” (y) “material” be read out of “all material respects” in Section 2.5(a); provided that with respect to Fundamental Representations any qualifications and limitations as to materiality, or (z) the term “Material Adverse Effect, and words ” be read out of similar import shall be disregarded in calculating the amount of any Losses but not with respect to determining Breach. (d) The representations and warranties of the Company contained in this Agreement, any other Operative Document, or in any certificate delivered pursuant hereto or thereto shall not be deemed waived, modified, or otherwise affected, nor shall the survival of any such representations and warranties be deemed reduced, truncated, or otherwise limited, by any investigation made or any knowledge possessed or acquired by Parent or by any of its directors, officers, employees, consultants, Representatives or agents (or that could have been discovered by any of the foregoing, whether by any investigation made by or on behalf of Parent into the affairs of the Company or otherwise) prior to or after the Closing with respect to (i) the truth and accuracy of any such representations and warranties or (ii) any facts, matters, or circumstances that may give rise to an Indemnification Claim, and no Indemnification Claim made hereunder shall be limited on the basis thereof. The Shareholders acknowledge and agree that Parent is expressly relying on the representations and warranties of the Company contained in this Agreement, any other Operative Document, and in any certificate delivered pursuant hereto or thereto. (e) The amount of Losses related to any Indemnification Claim shall be paid to the applicable Indemnified Party in full, without any set off, counterclaim, restriction, or condition and without any deduction or withholding (except as may be required by Applicable Law or as otherwise agreedSection 2.6(a). (i) All Losses shall be calculated net of the amount of any recoveries actually received by an Indemnified Party from an unaffiliated, third party under any existing unaffiliated, third party insurance policies and contractual indemnification or contribution provisions (in each case, calculated net of any actual recovery or collection costs and reserves, expenses, deductibles, reimbursement obligations, premium adjustments or retrospectively rated premiums (as determined in good faith by an Indemnified Party), or other costs related to the insurance, indemnification, or contribution arrangement incurred or paid to procure such recoveries) in respect of any Losses suffered, paid, sustained, or incurred by any Indemnified Party; provided that, except as provided in Section 7.03(g)(ii), below, neither Parent, the Surviving Company, nor any of their respective Affiliates will have any obligation hereunder to take any action to obtain such payments or to obtain or maintain any such insurance policies or indemnification or contribution arrangements. (g) Any claim for Losses will be calculated without regard to (and shall not include) any speculative, exemplary, and punitive damages, except to the extent such damages are awarded to a third party in a Third-Party Claim. (h) Any liability for indemnification under this ARTICLE 7 shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach or other violation of more than one representation, warranty, covenant, agreement, certificate, or certification. (i) Following the Closing, this ARTICLE 7 shall constitute the sole and exclusive remedy for recovery of monetary Losses by the Indemnified Parties for all indemnifiable matters or other breaches under this Agreement (including any certificates delivered pursuant to this Agreement). All applicable statutes of limitations or other claims periods with respect to claims for Losses shall be shortened or lengthened to the applicable claims periods and survival periods set forth herein. Notwithstanding the foregoing, nothing in this Agreement shall limit the remedies of Parent or the Surviving Company under any other Operative Document.

Limitations and Adjustments. (a) The aggregate liability of the Shareholders of any Indemnification pursuant to Section 7.02 shall be limited to the aggregate amount of the Escrow Fund, and each individual Shareholder’s liability of any Indemnification pursuant to Section 7.02 shall be limited to their Pro Rata Share of the Escrow Fund. (b) Notwithstanding anything to the contrary herein, no Indemnified Party shall be entitled to make an Indemnification Claim for Losses arising out of, resulting from or in connection with the matters listed in Section 7.02(a) (other than Losses arising out of, resulting from, or in connection with a Fraud Claim or any Breach of the Fundamental Representations) unless the aggregate amount of all such Losses exceeds $35,000 500,000 (the “Basket”), in which case the Indemnified Party may make an Indemnification Claim for all Losses (including the amount of the Basket) in an amount up to $300,000.00 (out of such Shareholder’s Pro Rata Share of the “Cap”)Escrow Fund, subject to the limitations set forth in this ARTICLE Article 7; provided, that for Fundamental Representations, the indemnified Party may make an Indemnification Claim for all Losses in an amount up to the Merger Consideration. For the avoidance of doubt, the Basket and Cap shall not apply to any other Losses or Indemnification Claims therefor. (bc) The obligations of the Shareholders under Section 7.02 shall be satisfied as described in Section 7.07 belowsolely and exclusively from the Escrow Fund. No Claim for contribution or other Claim shall be made by any Seller Shareholder against the Company, Parent or any of their respective Affiliates for Losses for which an Indemnified Party makes an Indemnification Claim. Notwithstanding the foregoing, Parent may elect to delay recovery of any Losses from the Escrow Fund until such time as the Escrow Fund would otherwise be released to the Shareholders. (cd) For purposes of determining whether a Breach has occurred and the amount of Losses under Section 7.02, all qualifications and limitations as to materiality, Material Adverse Effect, and words of similar import shall be disregarded (except for the definition of “Material Contract”); provided that with respect to Fundamental Representations any qualifications and limitations as to materiality, Material Adverse Effect, and words of similar import shall be disregarded in calculating the amount of any Losses but not with respect to determining Breach. (de) The representations and warranties of the Company contained in this Agreement, any other Operative Document, or in any certificate delivered pursuant hereto or thereto shall not be deemed waived, modified, or otherwise affected, nor shall the survival of any such representations and warranties be deemed reduced, truncated, or otherwise limited, by any investigation made or any knowledge possessed or acquired by Parent or by any of its directors, officers, employees, consultants, Representatives or agents (or that could have been discovered by any of the foregoing, whether by any investigation made by or on behalf of Parent into the affairs of the Company or otherwise) prior to or after the Closing with respect to (i) the truth and accuracy of any such representations and warranties or (ii) any facts, matters, or circumstances that may give rise to an Indemnification Claim, and no Indemnification Claim made hereunder shall be limited on the basis thereof. The Shareholders acknowledge and agree that Parent is expressly relying on the representations and warranties of the Company contained in this Agreement, any other Operative Document, and in any certificate delivered pursuant hereto or thereto. (ef) The amount of Losses related to any Indemnification Claim shall be paid to the applicable Indemnified Party in full, without any set off, counterclaim, restriction, or condition and without any deduction or withholding (except as may be required by Applicable Law or as otherwise agreed). (i) All Losses shall be calculated net of the amount of any recoveries actually received by an Indemnified Party from an unaffiliated, third party under any existing unaffiliated, third party insurance policies and contractual indemnification or contribution provisions (in each case, calculated net of any actual recovery or collection costs and reserves, expenses, deductibles, reimbursement obligations, premium adjustments or retrospectively rated premiums (as determined in good faith by an Indemnified Party), or other costs related to the insurance, indemnification, or contribution arrangement incurred or paid to procure such recoveries) in respect of any Losses suffered, paid, sustained, or incurred by any Indemnified Party; provided that, except as provided in Section 7.03(g)(ii), below, neither Parent, the Surviving Company, nor any of their respective Affiliates will have any obligation hereunder to take any action to obtain such payments or to obtain or maintain any such insurance policies or indemnification or contribution arrangements. (gii) Notwithstanding any other provision herein, Parent and Merger Sub covenant and agree that, prior to asserting any claim for Loss against the Company, the Shareholders or the Escrow Fund with respect to any alleged Loss that would be the responsibility of Denbury to defend, indemnify, protect and hold the Company (or its successor) harmless from under the terms of the Denbury Settlement Agreement, Parent and Merger Sub shall first diligently pursue all rights and remedies of Parent and/or Merger Sub arising under the Denbury Settlement Agreement. (h) Any claim for Losses will be calculated without regard to (and shall not include) any speculative, exemplary, and punitive damages, except to the extent such damages are awarded to a third party in a Third-Party Claim. (hi) Any liability for indemnification under this ARTICLE Article 7 shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach or other violation of more than one representation, warranty, covenant, agreement, certificate, or certification. (ij) Following the Closing, this ARTICLE Article 7 shall constitute the sole and exclusive remedy for recovery of monetary Losses by the Indemnified Parties for all indemnifiable matters or other breaches under this Agreement (including any certificates delivered pursuant to this Agreement). All applicable statutes of limitations or other claims periods with respect to claims for Losses shall be shortened or lengthened to the applicable claims periods and survival periods set forth herein. Notwithstanding the foregoing, nothing in this Agreement shall limit the remedies of Parent or the Surviving Company under any other Operative Document.

Limitations and Adjustments. (a) Except for Losses arising out of, resulting from, or in connection with Fraud or any Breach of the Fundamental Representations or the Special Representations, the aggregate liability of Seller and Seller Parent for any Indemnification Claim pursuant to Section 7.2(a)(i) shall be limited to the Indemnification Holdback Amount. (b) Subject to Section 7.3(a), the aggregate liability for any Indemnification Claim pursuant to Section 7.2(a) (except in the case of Fraud, or any Indemnification Claim related to Excluded Assets or Excluded Liabilities) shall be limited for Seller and Seller Parent to the Purchase Price (inclusive of the Indemnification Holdback Amount). (c) Notwithstanding anything to the contrary herein, no Indemnified Party shall be entitled to make an Indemnification Claim for Losses arising out of, resulting from or in connection with the matters listed in Section 7.02(a7.2(a)(i) (other than Losses arising out of, resulting from, or in connection with a Fraud Claim or any Breach of the Fundamental Representations or Special Representations) unless the and until a Claim Notice (together with any other delivered Claim Notice) describing Losses in an aggregate amount of all such Losses exceeds greater than $35,000 [***] (the “Basket”)) is delivered, in which case the Indemnified Party may make an Indemnification Claim and receive cash from the Indemnification Holdback Fund for all Losses (including the amount of the Basket); provided, however, that no Losses may be claimed by any Indemnified Party or shall be reimbursable by Seller or Seller Parent or shall be included in calculating the aggregate Losses, in each case, for purposes of this clause (c) other than Losses in an amount up to excess of $300,000.00 [***] (the “CapMinimum Loss Amount”)) resulting from any single claim or aggregated claims arising out of the same facts, events or circumstances; provided further, that Losses resulting from any breaches by Seller or Seller Parent of Fundamental Representations or Special Representations shall not be subject to the limitations set forth in this ARTICLE 7; provided, that for Fundamental Representations, Basket or the indemnified Party may make an Indemnification Claim for all Losses in an amount up to Minimum Loss Amount and shall instead be recoverable from the Merger Considerationfirst dollar thereof. For the avoidance of doubt, the The Basket and Cap shall not apply to any other Losses or Indemnification Claims therefor. (bd) The obligations of the Shareholders Seller and Seller Parent under Section 7.02 7.2 shall be satisfied, first, from the Indemnification Holdback Fund. If the full amount of the Indemnification Holdback Fund is retained by Buyer in satisfaction of Indemnification Claims, subject to the caps set forth in this Section 7.3, any additional liability of Seller and Seller Parent under Section 7.2 shall be satisfied as described from Seller and Seller Parent, with such payment to be made to Buyer promptly following (and in Section 7.07 belowany event within 5 Business Days) the date such amount becomes payable pursuant to this Article VII. No Claim for contribution or other Claim shall be made by Seller or Seller Parent against any Seller against the Company, Parent or any of their respective Affiliates Buyer Entity for Losses for which an Indemnified Party makes an Indemnification Claim. (ce) Notwithstanding anything to the contrary herein, the amounts that an Indemnified Party recovers from the Indemnification Holdback Fund pursuant to (i) Indemnification Claims for Breaches of Fundamental Representations or Special Representations, or (ii) any other Indemnification Claim that is not made pursuant to Section 7.2(a)(i) (collectively, Indemnification Claims contemplated by clauses (i) and (ii), “Specified Claims”) shall not reduce the amount that an Indemnified Party may recover with respect to Indemnification Claims that are not Specified Claims. By way of illustration and not limitation, assuming there are no other Indemnification Claims for indemnification, compensation, or reimbursement, in the event that Losses resulting from a Specified Claim are first satisfied from the Indemnification Holdback Fund and such recovery fully depletes the Indemnification Holdback Fund, the maximum amount recoverable by an Indemnified Party pursuant to a subsequent Indemnification Claim that is not a Specified Claim shall continue to be the full Indemnification Holdback Amount irrespective of the fact that the Indemnification Holdback Fund was used to satisfy such Specified Claim, such that the amount recoverable for such two Indemnification Claims would be the same regardless of the chronological order in which they were made. (f) For purposes of determining whether a Breach has occurred and the amount of Losses under Section 7.027.2, all qualifications and limitations as to materiality, Material Adverse Effect, and words of similar import shall be disregarded (except for the definition of “Material Contract”); provided that with respect to Fundamental Representations any qualifications and limitations as to materiality, Material Adverse Effect, and words of similar import shall be disregarded in calculating the amount of any Losses but not with respect to determining Breachdisregarded. (dg) The representations and warranties of the Company Seller and Seller Parent contained in this Agreement, any other Operative Document, or in any certificate delivered pursuant hereto or thereto shall not be deemed waived, modified, or otherwise affected, nor shall the survival of any such representations and warranties be deemed reduced, truncated, or otherwise limited, by any investigation made or any knowledge possessed or acquired by Parent Buyer or by any of its directors, officers, employees, consultants, Representatives or agents (or that could have been discovered by any of the foregoing, whether by any investigation made by or on behalf of Parent Buyer into the affairs of the Company Seller or otherwise) prior to or after the Closing with respect to (i) the truth and accuracy of any such representations and warranties or (ii) any facts, matters, or circumstances that may give rise to an Indemnification Claim, and no Indemnification Claim made hereunder shall be limited on the basis thereof. The Shareholders acknowledge and agree that Parent is expressly relying on . (h) No party hereto shall have any liability under any provision of this Agreement for any punitive, incidental, special or indirect damages, including business interruption, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the representations and warranties breach or alleged breach of the Company contained in this Agreement, except to the extent any other Operative Document, and in any certificate delivered pursuant hereto or theretosuch damages are awarded to a third party. (ei) The amount of Losses related to any Indemnification Claim shall be paid to the applicable Indemnified Party in full, without any set off, counterclaim, restriction, or condition and without any deduction or withholding (except as may be required by Applicable Law or as otherwise agreed); provided that, for all purposes of this Article VII, “Losses” shall be net of any insurance or other recoveries actually received by the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification; provided further, however, that the Indemnified Parties shall not be required to seek recovery for any such Losses from any of their, Seller or Seller Parent’s then-existing insurance policies. (ij) All Losses shall be calculated net For purposes of determining whether there has been a Breach of a representation or warranty in Section ‎2.9, Section ‎2.14, or any other representation or warranty with respect to Taxes and the amount of any recoveries actually received by Losses arising therefrom, disclosures made in the Disclosure Memorandum shall be disregarded. (k) If an Indemnification Claim may be properly characterized in multiple ways in accordance with this Article VII such that such Indemnification Claim may or may not be subject to different limitations depending on such characterization, then the Indemnified Party from an unaffiliated, third party under any existing unaffiliated, third party insurance policies shall have the right to characterize such Indemnification Claim in a manner that maximizes the recovery and contractual indemnification or contribution provisions (time to assert such Indemnification Claim permitted in each case, calculated net of any actual recovery or collection costs and reserves, expenses, deductibles, reimbursement obligations, premium adjustments or retrospectively rated premiums (as determined in good faith by an Indemnified Party), or other costs related to the insurance, indemnification, or contribution arrangement incurred or paid to procure such recoveries) in respect of any Losses suffered, paid, sustained, or incurred by any Indemnified Partyaccordance with this Article VII; provided that, except as provided for the avoidance of doubt and notwithstanding anything to the contrary in Section 7.03(g)(ii)this Agreement, below, neither Parent, the Surviving Company, nor in no event shall any of their respective Affiliates will have Indemnified Party be entitled to any obligation hereunder double recovery with respect to take any action to obtain such payments particular Loss or to obtain or maintain any such insurance policies or indemnification or contribution arrangementsclaim. (gl) Any claim for Losses will be calculated without regard to (and shall not include) any speculative, exemplary, and punitive damages, except to the extent such damages are awarded to a third party in a Third-Party Claim. (h) Any liability for indemnification under this ARTICLE 7 shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach or other violation of more than one representation, warranty, covenant, agreement, certificate, or certification. (i) Following the Closing, this ARTICLE 7 shall constitute the sole and exclusive remedy for recovery of monetary Losses by the Indemnified Parties for all indemnifiable matters or other breaches under this Agreement (including any certificates delivered pursuant to this Agreement). All applicable statutes of limitations or other claims periods with respect to claims for Losses shall be shortened or lengthened to the applicable claims periods and survival periods set forth herein. Notwithstanding the foregoing, nothing Nothing in this Agreement shall will limit the remedies aggregate liability of Seller, Seller Parent or Buyer, respectively, in the Surviving Company under any other Operative Documentevent of Fraud by Seller, Seller Parent or Buyer, as the case may be.