Common use of Basket Clause in Contracts

Basket. Notwithstanding any provision hereof to the contrary, the Acquiror Indemnified Parties shall only be entitled to indemnification pursuant to Section 12.2(a)(i) to the extent the aggregate amount of all Losses incurred by the Acquiror Indemnified Parties for which the Acquiror Indemnified Parties are entitled to indemnification pursuant to Section 12.2(a)(i) exceeds $100,000 (the “Basket Amount”); provided, however, (i) if the aggregate amount of Losses incurred by the Acquiror Indemnified Parties for which the Acquiror Indemnified Parties are entitled to indemnification pursuant to this Article XII exceeds the Basket Amount, the Acquiror Indemnified Parties shall be entitled to recover from the first dollar of such Losses and (ii) the Basket Amount shall not apply to (i) breaches of Fundamental Representations and Section 12.2(a)(ii)-(vi), (ii) in respect of indemnification claims made pursuant to Sections 12.2(c) and (d) of this Agreement, or (iii) the case of fraud, intentional misrepresentation or willful breach. Notwithstanding any provision hereof to the contrary, the Seller Indemnified Parties shall only be entitled to indemnification pursuant to Section 12.2(b)(i) to the extent the aggregate amount of all Losses incurred by the Seller Indemnified Parties for which the Seller Indemnified Parties are entitled to indemnification pursuant to this Article XII exceeds the Basket Amount, and the Seller Indemnified Parties shall be entitled to recover from the first dollar of such Losses.

Basket. 7.4.3.2.1 Notwithstanding any provision hereof anything to the contrarycontrary set forth in this Agreement (but subject to the terms of this Section 7.4), the Acquiror Seller shall have no liability to any Purchaser Indemnified Parties shall only be entitled to indemnification Party pursuant to Section 12.2(a)(i7.4.1(a) to of this Agreement unless and until the extent the aggregate amount of Claims, Damages and Expenses incurred by all Purchaser Indemnified Parties as a result thereof, together with all Losses (as defined in the SNS Purchase Agreement) incurred by the Acquiror Purchaser Indemnified Parties (as defined in the SNS Purchase Agreement) for which the Acquiror Indemnified Parties Sellers (as defined in the SNS Purchase Agreement) are entitled to indemnification pursuant to liable under Section 12.2(a)(i6.07 or Section 8.02(a) exceeds $100,000 of the SNS Purchase Agreement, exceed, in the aggregate, the Basket Amount (as defined in the “Basket Amount”SNS Purchase Agreement); provided, however, (i) if that in the aggregate amount of Losses incurred by event that such Claims, Damages and Expenses together with such Losses, in the Acquiror Indemnified Parties for which the Acquiror Indemnified Parties are entitled to indemnification pursuant to this Article XII exceeds aggregate, exceed the Basket Amount, Seller shall fully indemnify the Acquiror Purchaser Indemnified Parties shall be entitled to recover from the first dollar for all Claims, Damages and Expenses in excess of such Losses and (ii) the Basket Amount shall not apply that are incurred by the Purchaser Indemnified Parties and that are within the indemnification obligations of Seller under Section 7.4.1(a). 7.4.3.2.2 Notwithstanding anything to the contrary set forth in this Agreement (i) breaches but subject to the terms of Fundamental Representations and this Section 12.2(a)(ii)-(vi7.4), (ii) in respect of indemnification claims made the Purchaser shall have no liability to any Seller Indemnified Party pursuant to Sections 12.2(c) and (dSection 7.4.2(a) of this AgreementAgreement unless and until the Claims, or (iii) the case of fraud, intentional misrepresentation or willful breach. Notwithstanding any provision hereof to the contrary, the Seller Indemnified Parties shall only be entitled to indemnification pursuant to Section 12.2(b)(i) to the extent the aggregate amount of all Losses Damages and Expenses incurred by the Seller Indemnified Parties as a result thereof, together with the Losses incurred by Seller Indemnified Parties (as defined in the SNS Purchase Agreement) for which the SNS Purchaser is liable under Section 6.07 or Section 8.03(a) of the SNS Purchase Agreement, exceed, in the aggregate, the Basket Amount, provided, however, that in the event such Claims, Damages and Expenses together with such Losses, in the aggregate, exceed the Basket Amount, the Purchaser shall fully indemnify the Seller Indemnified Parties are entitled to indemnification pursuant to this Article XII exceeds for all Claims, Damages and Expenses in excess of the Basket Amount, and Amount that are incurred by the Seller Indemnified Parties shall be entitled to recover from and that are within the first dollar indemnification obligations of such Lossesthe Purchaser under Section 7.4.2(a).

Basket. Notwithstanding any provision hereof to the contrary, the Acquiror (i) No Purchaser Indemnified Parties Party shall only be entitled to indemnification pursuant be indemnified for, and Stockholders shall not have any liability for or be required to Section 12.2(a)(i) to the extent indemnify, defend or hold harmless any Purchaser Indemnified Party hereunder for, any Losses arising under this Article IX, unless and until the aggregate amount of all Losses incurred by the Acquiror Indemnified Parties Stockholders are collectively liable for which the Acquiror Indemnified Parties are entitled to indemnification pursuant to Section 12.2(a)(i) under this Article IX equals or exceeds $100,000 60,000 (the “Basket Amount”), and then Stockholders’ obligations hereunder shall apply solely to the amount of the Losses in excess of the Basket Amount; provided, however, that the limitation of liability under this Section 9.9(a)(i) shall not apply to Losses related to any breach, violation or inaccuracy in any of the Fundamental Stockholder Representations, Fundamental Company Representations, or any Claims under Sections 9.2(c) or (id) if or any claims arising out of any fraud on the aggregate amount part of Losses incurred by the Acquiror Indemnifying Party. (ii) No Stockholder Indemnified Parties for which the Acquiror Indemnified Parties are entitled to indemnification pursuant to this Article XII exceeds the Basket Amount, the Acquiror Indemnified Parties Party shall be entitled to recover from the first dollar of such Losses be indemnified for, and (ii) the Basket Amount Purchaser shall not apply have any liability for or be required to (i) breaches of Fundamental Representations indemnify, defend or hold harmless any Purchaser Indemnified Party hereunder for, any Losses arising under this Article IX, unless and Section 12.2(a)(ii)-(vi), (ii) in respect of indemnification claims made pursuant to Sections 12.2(c) and (d) of this Agreement, or (iii) the case of fraud, intentional misrepresentation or willful breach. Notwithstanding any provision hereof to the contrary, the Seller Indemnified Parties shall only be entitled to indemnification pursuant to Section 12.2(b)(i) to the extent until the aggregate amount of all Losses incurred by the Seller Indemnified Parties Purchaser is liable for which the Seller Indemnified Parties are entitled to indemnification pursuant to under this Article XII IX equals or exceeds the Basket Amount, and then Purchaser’s obligations hereunder shall apply solely to the Seller Indemnified Parties entire amount of the Losses in excess of the Basket Amount; provided, however, that the limitation of liability under this Section 9.9(a)(ii) shall be entitled not apply to recover from Losses related to any breach, violation or inaccuracy in any of the first dollar Fundamental Purchaser Representations, any Claims under Section 9.3(b) or 9.3(c), or any claim arising out of such Lossesany fraud on the part of any Stockholder.

Basket. Notwithstanding any provision hereof to the contrary, the Acquiror Indemnified Parties shall only be entitled to indemnification pursuant to Section 12.2(a)(i) this Article XI to the extent the aggregate amount of all Losses incurred by the Acquiror Indemnified Parties for which the Acquiror Indemnified Parties are entitled to indemnification pursuant to Section 12.2(a)(i11.2(a)(i) exceeds $100,000 300,000 (the “Basket Amount”); provided, however, that the Basket Amount shall not apply to (i) if breaches of Fundamental Representations, (ii) in respect of indemnification claims made pursuant to Sections 1.6, 6.2 and 11.2(c) of this Agreement, or (iii) the case of fraud, intentional misrepresentation or willful breach. If the aggregate amount of Losses incurred by the Acquiror Indemnified Parties for which the Acquiror Indemnified Parties are entitled to indemnification pursuant to this Article XII XI exceeds the Basket Amount, the Acquiror Indemnified Parties shall be entitled to recover from the first dollar only in excess of such Losses and (ii) the Basket Amount shall not apply to (i) breaches of Fundamental Representations and Section 12.2(a)(ii)-(vi), (ii) in respect of indemnification claims made pursuant to Sections 12.2(c) and (d) of this Agreement, or (iii) the case of fraud, intentional misrepresentation or willful breachAmount. Notwithstanding any provision hereof to the contrary, the Seller Indemnified Parties shall only be entitled to indemnification pursuant to Section 12.2(b)(i11.2(b)(i) to the extent the aggregate amount of all Losses incurred by the Seller Indemnified Parties for which the Seller Indemnified Parties are entitled to indemnification pursuant to this Article XII XI exceeds the Basket Amount, and the Seller Indemnified Parties shall be entitled to recover from such Losses only in excess of the first dollar of such LossesBasket Amount.

Basket. Notwithstanding (i) Seller shall not be required to make any provision hereof to the contrary, the Acquiror Indemnified Parties shall only be entitled to indemnification payment pursuant to Section 12.2(a)(i8.2(a): (A) to if the extent Damages associated with any individual claim, or series of related claims, are less than $15,000 (the aggregate “De Minimis Claim Amount”), it being understood that any such individual claims for amounts less than the De Minimis Claim Amount shall be taken into account in determining whether the Basket Amount has been exceeded and thereafter; and (B) until such time as the total amount of all Losses Damages that have been directly or indirectly suffered or incurred by any one or more of the Acquiror Indemnified Parties for Buyer Indemnitees, or to which any one or more of the Acquiror Indemnified Parties are entitled to indemnification pursuant to Section 12.2(a)(i) Buyer Indemnitees has or have otherwise directly or indirectly become subject, exceeds $100,000 150,000 plus 1% of the payments made under the terms of Exhibit A (the sum, the “Basket Amount”); provided, however, (i) if in the aggregate aggregate. Once the total amount of Losses incurred by the Acquiror Indemnified Parties for which the Acquiror Indemnified Parties are entitled to indemnification pursuant to this Article XII such Damages exceeds the Basket Amount, then the Acquiror Indemnified Parties Buyer Indemnitees shall be entitled to recover from be indemnified and held harmless against and compensated and reimbursed for the first dollar entire amount of such Losses Damages, and not merely the portion of such Damages exceeding the Basket Amount. (ii) Buyer shall not be required to make any indemnification payment pursuant to Section 8.3(a): (A) if the Damages associated with any individual claim, or series of related claims, are less than the De Minimis Claim Amount it being understood that any such individual claims for amounts less than the De Minimis Claim Amount shall be taken into account in determining whether the Basket Amount shall not apply to (i) breaches of Fundamental Representations has been exceeded and Section 12.2(a)(ii)-(vi), (ii) in respect of indemnification claims made pursuant to Sections 12.2(c) thereafter; and (dB) of this Agreement, or (iii) until such time as the case of fraud, intentional misrepresentation or willful breach. Notwithstanding any provision hereof to the contrary, the Seller Indemnified Parties shall only be entitled to indemnification pursuant to Section 12.2(b)(i) to the extent the aggregate total amount of all Losses Damages that have been directly or indirectly suffered or incurred by any one or more of the Seller Indemnified Parties for Indemnitees, or to which any one or more of the Seller Indemnified Parties are entitled to indemnification pursuant to this Article XII Indemnitees has or have otherwise directly or indirectly become subject, exceeds the Basket Amount in the aggregate. Once the total amount of such Damages exceeds the Basket Amount, and then the Seller Indemnified Parties Indemnitees shall be entitled to recover from be indemnified and held harmless against and compensated and reimbursed for the first dollar entire amount of such LossesDamages, and not merely the portion of such Damages exceeding the Basket Amount. (iii) The limitations set forth in Section 8.4(a)(i) and Section 8.4(a)(ii) shall not apply (and shall not limit the indemnification or other obligations of Seller or Buyer, as the case may be): (A) in the event of intentional misrepresentation or fraud; or (B) to material inaccuracies in or breaches of any of the Specified Representations.

Basket. Notwithstanding (i) The Shareholders shall not have any provision hereof obligation to indemnify the Buyer Indemnitees for Losses incurred hereunder until the aggregate amount of indemnifiable Losses incurred by the Buyer Indemnitees exceeds $600,000, after which point the Shareholders shall be obligated only to indemnify the Buyer Indemnitees from and against further Losses in excess of $600,000. Further, and in addition to the contrarygeneral basket set forth above, the Acquiror Shareholders shall not have any obligation to indemnify the Buyer Indemnitees for Losses incurred due solely to a breach of the representation and warranty set forth in Section 3.9 of this Agreement until the aggregate amount of indemnifiable Losses incurred by the Buyer Indemnitees thereunder exceeds $600,000, after which point the Shareholders shall be obligated only to indemnify the Buyer Indemnitees from and against further such Losses in excess of $600,000. The parties acknowledge and agree that the two baskets set forth above in this subparagraph (i) are separate and distinct, and Losses attributable solely to breaches under Section 3.9 shall not be included in the general basket, and Losses attributable to breaches under the other provisions of Article 3 shall not be included in the basket applicable to Section 3.9. (ii) Neither Delta nor the Buyer shall have any obligation to indemnify the Shareholder Indemnitees for Losses incurred hereunder until the aggregate amount of indemnifiable Losses incurred by the Shareholder Indemnitees exceeds $600,000, after which point Delta and the Buyer shall be obligated only to indemnify the Shareholder Indemnitees from and against further Losses in excess of $600,000. (iii) Notwithstanding the foregoing, the provisions of Section 10.3(a)(i) and (a)(ii) above shall not apply to, and the Indemnified Parties Party shall only be entitled to indemnification pursuant without regard to Section 12.2(a)(i) to the extent the aggregate amount satisfaction of all Losses incurred by the Acquiror Indemnified Parties for which the Acquiror Indemnified Parties are entitled to indemnification pursuant to Section 12.2(a)(i) exceeds $100,000 (the “Basket Amount”); provided, howeversuch provisions with respect to, (i) if the aggregate amount of Losses incurred by the Acquiror Indemnified Parties for which the Acquiror Indemnified Parties are entitled to indemnification pursuant to this Article XII exceeds the Basket Amount, the Acquiror Indemnified Parties shall be entitled to recover resulting from the first dollar of such Losses and (ii) the Basket Amount shall not apply to (i) breaches of Fundamental Representations and Section 12.2(a)(ii)-(vi), (ii) in respect of indemnification claims made pursuant to Sections 12.2(c) and (d) of this Agreement, or (iii) the case of fraud, intentional misrepresentation or willful breach. Notwithstanding any provision hereof to intentional breach of the contraryrepresentations, warranties or covenants of the Seller Indemnified Parties shall only be entitled to indemnification Indemnifying Party; (ii) Losses described in Section 10.2(a)(iii) that arise out of or in connection with the proceedings listed (or that should have been listed) on Sellers' Disclosure Schedule pursuant to Section 12.2(b)(i3.5(c) hereof; (iii) Losses described in Section 10.2(a)(iv) that arise out of or in connection with the failure of the Company to be qualified as a foreign corporation or otherwise authorized to do business, at any time prior to the extent Closing Date, in the aggregate amount states of all Missouri, Massachusetts, Michigan, California, or Georgia; and (iv) Losses incurred by the Seller Indemnified Parties for which the Seller Indemnified Parties are entitled to indemnification pursuant to this Article XII exceeds the Basket Amount, and the Seller Indemnified Parties shall be entitled to recover from the first dollar of such Lossesdescribed in Section 10.2(b)(iv).

Basket. Notwithstanding i. Seller shall not be required to make any provision hereof to the contrary, the Acquiror Indemnified Parties shall only be entitled to indemnification payment pursuant to Section 12.2(a)(i8.2(a): (A) to if the extent Damages associated with any individual claim, or series of related claims, are less than $15,000 (the aggregate “De Minimis Claim Amount”), it being understood that any such individual claims for amounts less than the De Minimis Claim Amount shall be taken into account in determining whether the Basket Amount has been exceeded and thereafter; and (B) until such time as the total amount of all Losses Damages that have been directly or indirectly suffered or incurred by any one or more of the Acquiror Indemnified Parties for Buyer Indemnitees, or to which any one or more of the Acquiror Indemnified Parties are entitled to indemnification pursuant to Section 12.2(a)(i) Buyer Indemnitees has or have otherwise directly or indirectly become subject, exceeds $100,000 150,000 plus 1% of the payments made under the terms of Exhibit A (the sum, the “Basket Amount”); provided, however, (i) if in the aggregate aggregate. Once the total amount of Losses incurred by the Acquiror Indemnified Parties for which the Acquiror Indemnified Parties are entitled to indemnification pursuant to this Article XII such Damages exceeds the Basket Amount, then the Acquiror Indemnified Parties Buyer Indemnitees shall be entitled to recover from be indemnified and held harmless against and compensated and reimbursed for the first dollar entire amount of such Losses Damages, and not merely the portion of such Damages exceeding the Basket Amount. ii. Buyer shall not be required to make any indemnification payment pursuant to Section 8.3(a): (iiA) if the Damages associated with any individual claim, or series of related claims, are less than the De Minimis Claim Amount it being understood that any such individual claims for amounts less than the De Minimis Claim Amount shall be taken into account in determining whether the Basket Amount shall not apply to (i) breaches of Fundamental Representations has been exceeded and Section 12.2(a)(ii)-(vi), (ii) in respect of indemnification claims made pursuant to Sections 12.2(c) thereafter; and (dB) of this Agreement, or (iii) until such time as the case of fraud, intentional misrepresentation or willful breach. Notwithstanding any provision hereof to the contrary, the Seller Indemnified Parties shall only be entitled to indemnification pursuant to Section 12.2(b)(i) to the extent the aggregate total amount of all Losses Damages that have been directly or indirectly suffered or incurred by any one or more of the Seller Indemnified Parties for Indemnitees, or to which any one or more of the Seller Indemnified Parties are entitled to indemnification pursuant to this Article XII Indemnitees has or have otherwise directly or indirectly become subject, exceeds the Basket Amount in the aggregate. Once the total amount of such Damages exceeds the Basket Amount, and then the Seller Indemnified Parties Indemnitees shall be entitled to recover from be indemnified and held harmless against and compensated and reimbursed for the first dollar entire amount of such LossesDamages, and not merely the portion of such Damages exceeding the Basket Amount. iii. The limitations set forth in Section 8.4(a)(i) and Section 8.4(a)(ii) shall not apply (and shall not limit the indemnification or other obligations of Seller or Buyer, as the case may be): (A) in the event of intentional misrepresentation or fraud; or (B) to material inaccuracies in or breaches of any of the Specified Representations. 4826-7940-7793v12/101501-0066

Basket. Notwithstanding In no event shall Seller incur any provision hereof to the contrary, the Acquiror Indemnified Parties shall only be entitled to liability for indemnification pursuant to Section 12.2(a)(i) to the extent under this Article 12 unless and until the aggregate amount of all Losses Damages incurred by the Acquiror Indemnified Parties any Buyer Indemnitees for which such Buyer Indemnitees seek indemnification under Section 12.2(a) hereof exceeds the Acquiror Indemnified Parties are entitled to indemnification pursuant to Section 12.2(a)(i) exceeds $100,000 cumulative aggregate amount of Fifty Thousand United States Dollars (the “Basket Amount”U.S.$50,000); providedPROVIDED, howeverHOWEVER, (i) if that when the aggregate amount of Losses all such Damages incurred by any Buyer Indemnitees exceeds Fifty Thousand Dollars ($50,000), then Seller shall thereafter be liable for all Damages (including the Acquiror Indemnified Parties for which the Acquiror Indemnified Parties are entitled to indemnification pursuant to this Article XII exceeds the Basket Amount, the Acquiror Indemnified Parties shall be entitled to recover from the first dollar such Fifty Thousand United States Dollars (U.S.$50,000) of such Losses and (ii) Damages); PROVIDED, FURTHER, that the Basket Amount foregoing limitation shall not apply to any claims arising from or related to (i) breaches of Fundamental Representations and Section 12.2(a)(ii)-(viintentional misrepresentation or fraud (including fraudulent concealment), (ii) in respect any Excluded Asset or Excluded Liabilities, (iii) any Solvency Claims or Stockholder Claims, or (iv) a misrepresentation or breach of indemnification claims made pursuant to a representation, warranty or covenant of Seller arising under Sections 12.2(c) and (d2.6(b), 2.7 or 3.13(a) of this AgreementAgreement (collectively, "SPECIAL SELLER CLAIMS"). In no event shall Buyer incur any liability for indemnification under this Article 12 unless and until the aggregate amount of all Damages incurred by any Seller Indemnitees for which such Seller Indemnitees seek indemnification under Section 12.2(b) hereof exceeds the cumulative aggregate amount of Fifty Thousand United States Dollars (U.S.$50,000); PROVIDED, HOWEVER, that when the aggregate amount of all such Damages incurred by any Seller Indemnitees exceeds Fifty Thousand United States Dollars (U.S.$50,000), then the Buyer shall thereafter be liable for all Damages (including the such Fifty Thousand United States Dollars (U.S.$50,000) of such Damages); PROVIDED, FURTHER, that the foregoing limitation shall not apply to any claims arising from or related to (i) intentional misrepresentation or fraud (including fraudulent concealment), (ii) any Assumed Liabilities, or (iii) the case of fraud, intentional a misrepresentation or willful breach. Notwithstanding any provision hereof to the contrarybreach of a representation, the Seller Indemnified Parties shall only be entitled to indemnification pursuant to Section 12.2(b)(iwarranty or covenant of Buyer arising under Sections 2.6(a) to the extent the aggregate amount or 2.7 of all Losses incurred by the Seller Indemnified Parties for which the Seller Indemnified Parties are entitled to indemnification pursuant to this Article XII exceeds the Basket AmountAgreement (collectively, and the Seller Indemnified Parties shall be entitled to recover from the first dollar of such Losses"SPECIAL BUYER CLAIMS").