Basket and Cap Sample Clauses

Basket and Cap. The Indemnitor shall not be obligated to indemnify the Indemnitee pursuant to Section 13 of this Agreement unless claims for indemnification against the Indemnitor exceed in the aggregate [**](33) (the “Basket”), at which point the Indemnitee shall be entitled to indemnification for all Losses thereunder in excess of the Basket; provided, however, that in no event shall the Indemnitor be liable pursuant to Section 13 of this Agreement for Losses in excess of [**](34) (“Cap”) (except on account of a breach of Section 7(a), 7(b), 7(g), 7(h), 8(a), 8(b), 8(c) or 8(e) as to which the Cap shall not apply).

Basket and Cap. Notwithstanding anything to the contrary contained in this Agreement, but subject to the provisions of this Section 10.6, no Parent Indemnified Party shall be entitled to indemnification for any breach of any representation or warranty made by the Company hereunder until the sum of all such Damages suffered by the Parent Indemnified Parties in the aggregate exceed $175,000 (the “Basket Amount”), in which case the Parent Indemnified Parties shall be entitled to indemnification for the full amount of all such Damages. Notwithstanding anything to the contrary contained in this Agreement, but subject to the provisions of this Section 10.6, no Company Indemnified Party shall be entitled to indemnification with respect to any Damages for any breach of any representation or warranty made by Parent and Merger Sub hereunder until the sum of all such Damages suffered by the Company Indemnified Parties in the aggregate exceed the Basket Amount, in which case the Company Indemnified Parties shall be entitled to indemnification for the full amount of all such Damages. Notwithstanding the foregoing, neither the Basket Amount nor the applicable Liability Cap shall apply to (a) breaches of the representations and warranties in Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.8, 3.11, 3.16(c), 3.18(b)-(g), 4.1, 4.2, or 4.8, (b) fraud and (c) for the avoidance of doubt, any breach of a Stockholder Representation; provided, however, that any recovery against a particular Company Stockholder for a breach of a Stockholder Representation shall be limited to such Company Stockholder’s pro rata portion of the Merger Consideration; provided, further, that in the event that a Company Stockholder commits fraud, such Company Stockholder shall be liable to the Parent Indemnified Parties for the full amount of Damages to the extent resulting from, arising out of or related to such Company Stockholder’s fraud. All claims by Parent Indemnified Parties for Damages pursuant to Section 10.2(b) shall be recovered (i) first, against the Indemnity Holdback Shares (and any amounts in respect of such Indemnity Holdback Shares held back pursuant to Section 2.9(d)), and (ii) second, directly from the Company Stockholders.

Basket and Cap. Other than with respect to Excepted Claims, which are not subject to pecuniary limitations except as provided below, Parent and the Surviving Corporation will not be entitled to seek indemnification under this Article VIII unless and until the amount of all Losses subject to indemnification hereunder has accumulated to a threshold of $270,000.00, after which Parent and the Surviving Corporation will be entitled to the full amount of all such Losses, including amounts below such threshold. With respect to all Losses under this Article VIII other than Excepted Claims, recourse against any Participating Stockholder shall be limited solely to such Participating Stockholder’s Percentage Share of the Indemnity Holdback held in the Escrow Account. With respect to all Losses under this Article VIII that arise out of or are based upon Excepted Claims, in no event shall the liability incurred by any single Participating Stockholder pursuant to this Article VIII exceed (a) such Participating Stockholder’s Percentage Share of the Indemnity Holdback (net of amounts paid to Parent or Surviving Corporation for indemnification of Losses pursuant to this Article VIII with respect to claims other than Excepted Claims), plus (b) an amount equal to 100% of the portion of the Merger Consideration actually received by such Participating Stockholder (which, in the case of the Participating Stockholders who are individuals, shall be net of Taxes paid with respect thereto).

Basket and Cap. An Indemnified Party shall have no right to indemnification unless and until the aggregate of all claims of the Indemnified Party pursuant to this Agreement and the Other Agreements exceeds $ _________Agreement exceeds One Hundred Thousand Dollars ($100,000) above any applicable insurance coverage and further an Indemnifying Party's liability for indemnification pursuant to this Agreement and the other AgreementsOther Agreement shall in no event exceed $________ million.$3 million above any applicable insurance coverage. The foregoing limitations on liability shall not apply, however, to (a) Third Party claims arising in connection with homes delivered by ▇▇▇▇▇▇▇ prior to Effective Date including any product liability or warranty claims in connection therewith or (b) payment of the balance of the Purchase Price pursuant to section 2(h). The foregoing shall not limit the amount which may be recoverable pursuant to applicable insurance coverage.

Basket and Cap. VCI shall be indemnified by VUN and the Selling -------------- Shareholders and the Selling Shareholders shall be indemnified by VCI, in each case to the extent that the aggregate of all Losses, determined without regard to whether any Loss was Material or not, exceeds $10,000 (the "Basket Amount"), provided that in no circumstance shall the aggregate liability of the Selling Shareholders or VCI exceed $1,500,000. Notwithstanding the foregoing, there shall be no Basket Amount applicable to any Loss resulting from a breach of representations and warranties in Sections 3.5 or 3.19 or from a failure to make any adjustment or pay any amount payable under Article II.

Basket and Cap. The provisions for indemnity contained in this Agreement shall be effective only in the event that the aggregate amount of all indemnifiable Liabilities for which the applicable Indemnifying Party is liable under this Agreement exceeds Thirty Five Thousand Dollars ($35,000) (the “Indemnification Basket”); provided, however, that in the event the indemnifiable Liabilities for which the Indemnifying Party are liable exceed the Indemnification Basket, the applicable Indemnifying Party shall be responsible for the entire amount of all such Liabilities in excess of the Indemnification Basket. In no event shall indemnifiable Liabilities of Shareholder (exclusive of Liabilities based on claims for indemnification based on a breach of the representations and warranties contained in Sections 4.1 (Organization), 4.2 (Authorization), 4.4 (Ownership), 4.10 (Taxes), 4.12(a) (Title to Assets), 4.15 (Employee Benefits), 4.16(e) (Certain Labor Matters), 4.19 (Environmental) and 4.24 (Financial Advisor)) exceed One Million Dollars ($1,000,000). Notwithstanding anything to the contrary contained herein, nothing in this Agreement limits the liability of any Person for fraud or willful misconduct.

Basket and Cap. Certain Sellers shall indemnify and hold harmless the Company, Purchaser and NAVTEQ with respect to any Loss suffered by the Company, Purchaser or NAVTEQ under Sections 14.1(g) through 14.1(j) if, and only if, such Loss together with the aggregate of all Losses theretofore incurred by the Company, Purchaser or NAVTEQ under such Sections shall exceed twenty-five thousand U.S. dollars (US$25,000), in which case Certain Sellers shall be liable for the aggregate amount of all Losses suffered by the Company, Purchaser or NAVTEQ, up to a maximum equal to one hundred percent (100%) of the Purchase Price, as adjusted. For the avoidance of doubt, Certain Sellers shall indemnify and hold harmless the Company, Purchaser and NAVTEQ with respect to any Loss suffered by the Company, Purchaser or NAVTEQ under Section 14.1(a) through 14.1(f) from the first dollar without any basket, but subject to the cap noted in this Section 14.3.

Basket and Cap. Notwithstanding any other provision of this Agreement to the contrary, (a) Seller and the Shareholders shall not be required to indemnify Buyer under Section 10.2 unless the aggregate of all amounts for which indemnity would otherwise be due under Section 10.2 from Seller and the Shareholders exceeds $350,000, in which case Seller shall be responsible only for such indemnifiable amounts in excess of $350,000, and (b) the aggregate amount for which Seller shall be liable under Section 10.2 shall not exceed $2,500,000.

Basket and Cap. (A) Indemnification for claims under Section 6.1 shall be payable only if and to the extent that the aggregate amount of all Losses of the Indemnified Persons shall exceed $100,000, and shall not be payable in any event with respect to the first $100,000 of such Losses. The Original Holders' liability for all claims under this Section 6.1 shall not exceed the sum of $2,500,000 (the "Indemnity Cap").