Common use of Basket Amount Clause in Contracts

Basket Amount. (i) Notwithstanding any provision of this Agreement to the contrary, except as set forth in clause (ii) of this Section 8.4(b), an Indemnified Party may not recover any Losses under Section 8.2(a)(i) hereof unless and until one or more Officer’s Certificates identifying such Losses under Section 8.2(a)(i) hereof in excess of $250,000 in the aggregate (the “Basket Amount”) (it being understood if a common or related set of occurrences, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining if the Basket Amount has been satisfied) has or have been delivered to the Escrow Agent or Stockholder as provided in Section 8.4(c) hereof and such Losses are found to be valid and payable (if not for the terms of this Section 8.4(b) pursuant to the terms of Section 8.4, in which case Parent shall be entitled to recover all Losses in excess of the Basket Amount so identified in Officer’s Certificates and found to be payable pursuant to the terms of this Section 8.4 in excess of the Basket Amount. (ii) Parent shall be entitled to recover for, and the Basket Amount shall not apply as a threshold to, any and all claims or payments made with respect to all Losses (a) incurred pursuant to any intentional breach of a representation or warranty of the Company contained in this Agreement or any certificates or other instruments delivered by or on behalf of the Company pursuant to this Agreement (provided that for purposes of determining any such breach or inaccuracy and the amount of any Loss no effect will be given to any qualification as to “materiality,” a “Material Adverse Effect,” a “material adverse effect” or “Knowledge” contained therein), or (b) incurred pursuant to a breach of any Company Fundamental Representations or Stockholder Fundamental Representations or any Losses arising from intentional misrepresentation, fraud, criminal activity or willful misconduct.

Basket Amount. (i) Notwithstanding any provision of this Agreement The Purchaser Indemnified Parties shall not be entitled to the contrary, except as set forth in clause (ii) of this Section 8.4(b), an Indemnified Party may not recover any Losses Indemnification Claims under or pursuant to Section 8.2(a)(i7.2(a)(i) hereof or Section 7.2(a)(ii) unless and until one all Damages directly or more Officer’s Certificates identifying such Losses under Section 8.2(a)(iindirectly paid, sustained or incurred by the Purchaser Indemnified Parties (or any of them) hereof in excess of exceeds $250,000 in the aggregate 130,000 (the “Basket Amount”) (it being understood if a common or related set of occurrencesin the aggregate, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining and if the aggregate of all Damages directly or indirectly paid, sustained or incurred against by the Purchaser Indemnified Parties (or any of them) exceeds the Basket Amount has been satisfied) has or have been delivered to Amount, then the Escrow Agent or Stockholder as provided in Section 8.4(c) hereof and such Losses are found to be valid and payable (if not for the terms of this Section 8.4(b) pursuant to the terms of Section 8.4, in which case Parent Purchaser Indemnified Parties shall be entitled to recover indemnification for all Losses in excess such Damages from the first dollar of the Basket Amount so identified in Officer’s Certificates and found such Damages without regard to be payable pursuant to the terms of this Section 8.4 in excess of the Basket Amount. ; provided, however, that, notwithstanding the foregoing, the preceding restriction set forth in this Section 7.2(c)(v) shall not in any way limit or otherwise restrict any right in respect of Indemnification Claims pursuant to Section 7.2(a)(iii) through Section 7.2(a)(ix) inclusive, or any other claims or causes of action arising out of fraud or intentional misrepresentation under applicable law. The Selling Member Indemnified Parties shall not be entitled to recover any Indemnification Claims under or pursuant to Section 7.2(b)(i) and Section 7.2(b)(ii) unless and until all Damages directly or indirectly paid, sustained or incurred by the Selling Member Indemnified Parties (iior any of them) Parent exceeds the Basket Amount, and if the aggregate of all Damages paid, sustained or incurred against by the Selling Member Indemnified Parties (or any of them) exceeds the Basket Amount, then the Selling Member Indemnified Parties shall be entitled to recover for, and indemnification for all such Damages from the first dollar of such Damages without regard to the Basket Amount Amount; provided, however, that, notwithstanding the foregoing, the preceding restriction set forth in this Section 7.2(c)(v) shall not apply as a threshold toin any way limit or otherwise restrict any right in respect of Indemnification Claims pursuant to Section 7.2(b)(iii) through (v) inclusive, or any and all other claims or payments made with respect to all Losses (a) incurred pursuant to any causes of action arising out of fraud or intentional breach of a representation or warranty of the Company contained in this Agreement or any certificates or other instruments delivered by or on behalf of the Company pursuant to this Agreement (provided that for purposes of determining any such breach or inaccuracy and the amount of any Loss no effect will be given to any qualification as to “materiality,” a “Material Adverse Effect,” a “material adverse effect” or “Knowledge” contained therein), or (b) incurred pursuant to a breach of any Company Fundamental Representations or Stockholder Fundamental Representations or any Losses arising from intentional misrepresentation, fraud, criminal activity or willful misconductmisrepresentation under applicable law.

Basket Amount. (i) Notwithstanding any provision of this Agreement to the contrary, except as set forth in clause (ii) of this Section 8.4(b7.4(b), an Indemnified Party may not recover any Losses under clause (i) of Section 8.2(a)(i7.2(a) hereof unless and until one or more Officer’s Certificates identifying such Losses under clause (i) of Section 8.2(a)(i7.2(a) hereof in excess of $250,000 500,000 in the aggregate (the “Basket Amount”) (it being understood if a common or related set of occurrences, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining if the Basket Amount has been satisfied) has or have been delivered to the Escrow Agent or and the Stockholder Representative as provided in Section 8.4(c7.4(g) hereof and such Losses are found to be valid and payable (if not for the terms of this Section 8.4(b) pursuant to the terms of Section 8.4hereof, in which case Parent shall be entitled to recover all Losses in excess of the Basket Amount so identified in Officer’s Certificates and found to be payable pursuant to the terms of this Section 8.4 in excess of the Basket Amountidentified. (ii) Parent shall be entitled to recover for, and the Basket Amount shall not apply as a threshold to, any and all claims or payments made with respect to all Losses (a) incurred pursuant to any intentional breach clauses (ii) through (x) of a representation or warranty of the Company contained in this Agreement or any certificates or other instruments delivered by or on behalf of the Company pursuant to this Agreement (provided that for purposes of determining any such breach or inaccuracy and the amount of any Loss no effect will be given to any qualification as to “materiality,” a “Material Adverse Effect,” a “material adverse effect” or “Knowledge” contained therein)Section 7.2(a) hereof, or (b) incurred pursuant as a result of any breach or inaccuracy of the representations or warranties set forth in Section 2.2 (under the heading “Company Capital Structure”), Section 2.4 (under the heading “Authority”), or Section 2.15 hereof (under the heading “Intellectual Property”) and (c) that are Agreed Upon-Losses (as defined in Section 7.4(i)(v) hereof). (iii) For the purposes hereof, “Officer’s Certificate” shall mean a certificate signed by any officer of Parent: (1) stating that an Indemnified Party has paid, sustained, incurred, or properly accrued, or reasonably anticipates that it will have to a pay, sustain, incur, or accrue Losses, and (2) specifying in reasonable detail the individual items of Losses included in the amount so stated (and the method of computation of each such item of Loss, if applicable), the date each such item was paid, sustained, incurred, or properly accrued (in accordance with GAAP), or the basis for such reasonably anticipated Loss(es), and (3) the basis for indemnification under Section 7.2 to which such item of Loss is related (including, if applicable, the specific nature of the misrepresentation, breach of any Company Fundamental Representations warranty or Stockholder Fundamental Representations or any Losses arising from intentional misrepresentation, fraud, criminal activity or willful misconductcovenant to which such item is related).

Basket Amount. (i) Notwithstanding any provision Other than for Losses resulting from claims brought on the basis of this Agreement willful fraud or intentional misrepresentation, none of the Buyer Indemnified Parties shall be entitled to the contrary, except as set forth in clause (ii) of this Section 8.4(b), an Indemnified Party may not recover indemnification for any Losses under Section 8.2(a)(i9.2(a)(i) hereof unless and until one or more Officer’s Certificates identifying the aggregate amount of such Losses suffered, sustained or incurred by all of the Buyer Indemnified Parties, collectively, under Section 8.2(a)(i9.2(a)(i) hereof in excess of that would otherwise be indemnifiable exceeds $250,000 in the aggregate (the “Basket Amount”) (it being understood if a common or related set of occurrences, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining if the Basket Amount has been satisfied) has or have been delivered to the Escrow Agent or Stockholder as provided in Section 8.4(c) hereof and such Losses are found to be valid and payable (if not for the terms of this Section 8.4(b) pursuant to the terms of Section 8.4), in which case Parent the obligations to provide indemnification to the applicable Buyer Indemnified Party shall be entitled for the amount of all such Losses from the first dollar; provided, that such limitation shall not apply to recover all Losses in excess resulting from breaches of the Basket Amount so identified in Officer’s Certificates and found to be payable pursuant to the terms of this Section 8.4 in excess of the Basket AmountCompany Fundamental Representations. (ii) Parent Other than for Losses resulting from claims brought on the basis of willful fraud or intentional misrepresentation, none of the Seller Indemnified Parties shall be entitled to recover forindemnification for any Losses under Section 9.2(b)(i) unless and until the aggregate amount of such Losses suffered, and sustained or incurred by all of the Seller Indemnified Parties, collectively, under Section 9.2(b)(i) that would otherwise be indemnifiable exceeds the Basket Amount Amount, in which case the obligations to provide indemnification to the applicable Seller Indemnified Party shall be for the amount of all such Losses from the first dollar; provided, that such limitation shall not apply as a threshold to, any and all claims or payments made with respect to all Losses (a) incurred pursuant to any intentional breach resulting from breaches of a representation or warranty of the Company contained in this Agreement or any certificates or other instruments delivered by or on behalf of the Company pursuant to this Agreement (provided that for purposes of determining any such breach or inaccuracy and the amount of any Loss no effect will be given to any qualification as to “materiality,” a “Material Adverse Effect,” a “material adverse effect” or “Knowledge” contained therein), or (b) incurred pursuant to a breach of any Company Buyer Fundamental Representations or Stockholder Fundamental Representations or any Losses arising from intentional misrepresentation, fraud, criminal activity or willful misconductRepresentations.

Basket Amount. (i) Notwithstanding any provision of this Agreement A Buyer Indemnified Person shall not be entitled to the contrary, except as set forth in clause (ii) of this Section 8.4(b), an Indemnified Party may not recover any Losses make a claim for indemnification under Section 8.2(a)(i9.2(a) hereof unless and until one or more Officer’s Certificates identifying such Losses under Section 8.2(a)(i) hereof in excess of $250,000 in the aggregate amount of indemnifiable Losses that may be recovered thereunder from the Seller equals or exceeds $10,500,000 (the “Basket Amount”) (it being understood if a common or related set of occurrences, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining if the Basket Amount has been satisfied) has or have been delivered to the Escrow Agent or Stockholder as provided in Section 8.4(c) hereof and such Losses are found to be valid and payable (if not for the terms of this Section 8.4(b) pursuant to the terms of Section 8.4), in which case Parent the Seller shall be entitled to recover all liable only for the Losses in excess of the Basket Amount so identified Amount; provided, however, that no Losses may be claimed by any Buyer Indemnified Person or shall be reimbursable by the Seller or shall be included in Officer’s Certificates and found to be payable pursuant to calculating the terms aggregate Losses for purposes of this Section 8.4 9.8(a)(i) other than Losses in excess of $200,000 (the Basket “Minimum Loss Amount”) resulting from any single claim or aggregated claims arising out of similar facts, events or circumstances; provided, further, that the foregoing provisions of this Section 9.8(a)(i) will not apply to or otherwise be comprised of any Losses relating to the breach of any Seller Fundamental Representation or the indemnification obligations under Article VII. (ii) Parent Except for Losses relating to the Seller’s obligations under Section 6.10(g), Section 6.13 and Section 6.18, no Losses may be claimed by any Buyer Indemnified Person or shall be entitled to recover for, and reimbursable by the Basket Amount Seller or shall not apply as a threshold to, be included in calculating the aggregate Losses for any and all claims or payments made with respect to all claim for indemnification under Section 9.2(b) other than Losses (a) incurred pursuant to any intentional breach of a representation or warranty in excess of the Company contained in this Agreement Minimum Loss Amount resulting from any single claim or any certificates aggregated claims arising out of similar facts, events or other instruments delivered by or on behalf of the Company pursuant to this Agreement (provided that for purposes of determining any such breach or inaccuracy and the amount of any Loss no effect will be given to any qualification as to “materiality,” a “Material Adverse Effect,” a “material adverse effect” or “Knowledge” contained therein), or (b) incurred pursuant to a breach of any Company Fundamental Representations or Stockholder Fundamental Representations or any Losses arising from intentional misrepresentation, fraud, criminal activity or willful misconductcircumstances.