Common use of Cap and Basket Clause in Contracts

Cap and Basket. Neither Party will be entitled to indemnification under this Article X until Damages to such Party (combined with any Damages to such Party under the AM Purchase Agreement) exceed $50,000 in the aggregate (except for claims pursuant to Section 7.8 of this Agreement and Section 7.9 of the AM Asset Purchase Agreement, which shall be reimbursed from the first dollar for both parties). Once Damages to any Party (combined with any Damages to such Party under the AM Purchase Agreement) exceed $50,000 in the aggregate (excluding all claims made pursuant to Section 7.8 of this Agreement and Section 7.9 of the AM Asset Purchase Agreement), such Party will be entitled to recover the entire amount of the Damages to the maximum extent permitted by this Agreement. The Parties agree that any materiality qualification set forth in this Agreement shall not be taken into account in determining the magnitude of Damages occasioned by any breach for purposes of calculating whether such $50,000 threshold has been reached. The Parties agree that (i) with respect to all claims made pursuant to Article X hereof or Article X of the AM Asset Purchase Agreement during the period beginning on the date of consummation of the transactions contemplated by the FM Asset Purchase Agreement on the KQQK Closing Date and ending on the twelve month anniversary of such date, the maximum aggregate amount for which either Buyer and LBI Holdings on the one hand or Seller on the other hand will be responsible for pursuant to this Agreement and, if the purchase and sale transaction contemplated by the AM Asset Purchase Agreement occurs, the AM Asset Purchase Agreement, is $1,500,000 in the aggregate and (ii) with respect to all claims made pursuant to Article X hereof or Article X of the AM Asset Purchase Agreement during the period commencing on the date after the end of the applicable period set forth in clause (i) of this sentence and ending on the twenty four month anniversary of the consummation of the transaction contemplated by the AM Asset Purchase Agreement (or if the purchase and sale transaction contemplated under the AM Asset Purchase Agreement does not occur, ending on the later of (x) the eighteenth month anniversary of the KQQK Closing Date or (y) the date on which the AM Asset Purchase Agreement is terminated), the maximum aggregate amount for which either Buyer and LBI Holdings on one hand or Seller on the other hand will be responsible for pursuant to this Agreement and, if the purchase and sale transaction contemplated by the AM Asset Purchase Agreement occurs, the AM Asset Purchase Agreement, 39 is $700,000 (above and beyond up to $800,000 of claims made during the period set forth in clause (i) of this sentence) (it being understood that notwithstanding the preceding portion of this clause (ii), neither Buyer and LBI Holdings on the one hand nor Seller on the other hand will be responsible for any claims made after the eighteen month anniversary of the consummation of the transaction contemplated by this Agreeement pursuant to Article X hereof and that the maximum aggregate amount for which either Buyer and LBI Holdings on one hand or Seller on the other hand will be responsible for pursuant to this Agreement with respect to claims made during the six month period between the twelve month anniversary and the eighteen month anniversary of the consummation of the transaction contemplated by this Agreement under this Article X is $500,000 (above and beyond up to $1,000,000 of claims made during the period set forth in clause (i) of this sentence)); provided that the caps set forth in this paragraph shall not apply to any claims made under the AM Asset Purchase Agreement prior to the consummation of the transaction contemplated thereunder on the KEYH Closing Date.

Cap and Basket. (a) Neither Party will be entitled to indemnification under this Article X until Damages to such Party (combined with any Damages to such Party under the AM Purchase Agreement) exceed $50,000 in the aggregate (except for claims pursuant to described in Section 7.8 of this Agreement and Section 7.9 of the AM Asset Purchase Agreement10.4(b), which shall be reimbursed from the first dollar for both parties). Once Damages to any Party (combined with any Damages to such Party under the AM Purchase Agreement) exceed $50,000 in the aggregate (excluding all claims made pursuant to described in Section 7.8 of this Agreement and Section 7.9 of 10.4(b), which shall be reimbursed from the AM Asset Purchase Agreementfirst dollar for both parties), such Party will be entitled to recover the entire amount of the Damages to the maximum extent permitted by this Agreement. The Parties agree that any materiality qualification set forth in this Agreement shall not be taken into account in determining the magnitude of Damages occasioned by any breach for purposes of calculating whether such $50,000 threshold has been reached. The Parties agree that (i) with respect to all claims made pursuant to Article X hereof or Article X of the AM Asset Purchase Agreement during the period beginning on the date of consummation of the transactions contemplated by the FM Asset Purchase Agreement on the KQQK Closing Date and ending on the twelve month anniversary of such date, the maximum aggregate amount for which either Buyer and LBI Holdings on the one hand or Seller on the other hand will be responsible for pursuant to this Agreement and, if the purchase and sale transaction contemplated by the AM Asset Purchase Agreement occurs, the AM Asset Purchase Agreement, is $1,500,000 in the aggregate and (ii) with respect to all claims made pursuant to Article X hereof or Article X of the AM Asset Purchase Agreement during the period commencing on the date after the end of the applicable period set forth in clause (i) of this sentence and ending on the twenty four month anniversary of the consummation of the transaction contemplated by the AM Asset Purchase Agreement (or if the purchase and sale transaction contemplated under the AM Asset Purchase Agreement does not occur, ending on the later of (x) the eighteenth month anniversary of the KQQK Closing Date or (y) the date on which the AM Asset Purchase Agreement is terminated), the maximum aggregate amount for which either Buyer and LBI Holdings on one hand or Seller on the other hand will be responsible for pursuant to this Agreement and, if the purchase and sale transaction contemplated by the AM Asset Purchase Agreement occurs, the AM Asset Purchase Agreement, 39 is $700,000 (above and beyond up to $800,000 of claims made during the period set forth in clause (i) of this sentence) (it being understood that notwithstanding the preceding portion of this clause (ii), neither Buyer and LBI Holdings on the one hand nor Seller on the other hand will be responsible for any claims made after the eighteen month anniversary of the consummation of the transaction contemplated by this Agreeement Agreement pursuant to Article X hereof and that the maximum aggregate amount for which either Buyer and LBI Holdings on one hand or Seller on the other hand will be responsible for pursuant to this Agreement with respect to claims made during the six month period between the twelve month anniversary and the eighteen month anniversary of the consummation of the transaction contemplated by this Agreement under this Article X is $500,000 (above and beyond up to $1,000,000 of claims made during the period set forth in clause (i) of this sentence)hereof); provided that the caps set forth in this paragraph shall not apply to any claims made under the AM Asset Purchase Agreement prior to the consummation of the transaction contemplated thereunder on the KEYH Closing DateDate (other than claims made under Section 10.4(c)). (b) The requirement that Damages total $50,000 in the aggregate before a Party will be entitled to indemnification does not apply to (i) any claims pursuant to Section 7.8 or Section 7.11 of this Agreement or Section 7.9 of the AM Asset Purchase Agreement, or (ii) any claims relating to payments to third parties or other Damages resulting from Encumbrances on Purchased Assets (as defined herein) or Purchased Assets (as defined the AM Asset Purchase Agreement), each of which claims described in clause (i) or clause (ii) will be reimbursed from the first dollar. (c) Should the transactions contemplated by the AM Asset Purchase Agreement fail to be consummated within twelve months of the KQQK Closing Date as a result of the breach by the Seller, LBI Holdings and the Buyer shall have the right to be reimbursed from the Holdback for documented costs, fees and expenses (including without limitation legal and engineering fees, costs and expenses) relating to (1) the AM Repair Closing Satisfaction Event (as defined in the AM Asset Purchase Agreement), including any such costs, fees and expenses incurred in connection with any efforts to satisfy the AM Repair Closing Satisfaction Event and/or (2) the KEYH phasor; provided, however that amounts over $200,000 shall be reimbursable to LBI Holdings and the Buyer only to the extent that the incurrence of such fees, costs and expenses were reasonable (as determined by Rxx Xxxxxxx of du Treil, Lxxxxx & Rxxxxxx, Inc. and the firm of Cxxxxx, Mxxxx & Dxxxx, Inc. or, if such parties are unable to agree, a third party engineer mutually agreeable to both Rxx Xxxxxxx of du Treil, Lxxxxx & Rxxxxxx, Inc. and the firm of Cxxxxx, Mxxxx & Dxxxx, Inc.) and in no event shall the amount reimbursable pursuant to this Section 10.4(c) exceed $300,000. LBI Holdings, the Buyer and Seller agree that LBI Holdings may (and the Parties hereby authorize LBI Holdings to) execute a unilateral release instruction to the Holdback Escrow Agent authorizing the release of such documented fees, costs and expenses to LBI Holdings (not to exceed $300,000) if LBI Holdings reasonably believes that the failure to consummate the transactions contemplated under the AM Asset Purchase Agreement is due to the breach by Seller. If Seller contests the payment to LBI Holdings pursuant to this Section 10.4(c), with respect to such dispute, the arbitrator shall order the non-prevailing party to pay, and the non-prevailing party shall pay, to the prevailing party in such dispute reasonable attorney’s fees and expenses incurred in connection with such dispute and (2) 10% interest on the amount that the non-prevailing party is found to have improperly withdrawn (in the case of LBI Holdings or Buyer) or to have improperly contested (in the case of Seller) from the date of the withdrawal (in the case of LBI Holdings) or the date of the contest (in the case of Seller). It is expressly agreed that LBI Holdings and Buyer are not in any way limiting any other damages that they may suffer as a result of any breach by Seller and expressly reserve all other rights and remedies they may have.”

Cap and Basket. (a) Neither Party will be entitled to indemnification under this Article X until Damages to such Party (combined with any Damages to such Party under the AM FM Purchase Agreement) exceed $50,000 in the aggregate (except for claims pursuant to described in Section 7.8 of this Agreement and Section 7.9 of the AM Asset Purchase Agreement10.4(b), which shall be reimbursed from the first dollar for both parties). Once Damages to any Party (combined with any Damages to such Party under the AM FM Purchase Agreement) exceed $50,000 in the aggregate (excluding all claims made pursuant to described in Section 7.8 of this Agreement and Section 7.9 of 10.4(b), which shall be reimbursed from the AM Asset Purchase Agreementfirst dollar for both parties), such Party will be entitled to recover the entire amount of the Damages to the maximum extent permitted by this Agreement. The Parties agree that any materiality qualification set forth in this Agreement shall not be taken into account in determining the magnitude of Damages occasioned by any breach for purposes of calculating whether such $50,000 threshold has been reached. The Parties agree that (i) with respect to all claims made pursuant to Article X hereof or Article X of the AM FM Asset Purchase Agreement during the period beginning on the date of consummation of the transactions contemplated by the FM Asset Purchase Agreement on the KQQK Closing Date and ending on the twelve month anniversary of such date, the maximum aggregate amount for which either Buyer and LBI Holdings on the one hand or Seller on the other hand will be responsible for pursuant to this Agreement and, if and the purchase and sale transaction contemplated by the AM Asset Purchase Agreement occurs, the AM FM Asset Purchase Agreement, is $1,500,000 in the aggregate and (ii) with respect to all claims made pursuant to Article X hereof or Article X of the AM FM Asset Purchase Agreement during the period commencing on the date after the end of the applicable period set forth in clause (i) of this sentence and ending on the twenty four month anniversary of the consummation of the transaction contemplated by the AM Asset Purchase this Agreement (or if the purchase and sale transaction contemplated under the AM Asset Purchase this Agreement does not occur, ending on the later of (x) the eighteenth month anniversary of the KQQK Closing Date or (y) the date on which the AM Asset Purchase this Agreement is terminated), the maximum aggregate amount for which either Buyer and LBI Holdings on one hand or Seller on the other hand will be responsible for pursuant to this Agreement and, if and the purchase and sale transaction contemplated by the AM Asset Purchase Agreement occurs, the AM FM Asset Purchase Agreement, 39 is $700,000 (above and beyond up to $800,000 of claims made during the period set forth in clause (i) of this sentence) (it being understood that notwithstanding the preceding portion of this clause (ii), neither Buyer and LBI Holdings on the one hand nor Seller on the other hand will be responsible for any claims made after the eighteen month anniversary of the consummation of the transaction contemplated by this Agreeement pursuant to Article X hereof and that the maximum aggregate amount for which either Buyer and LBI Holdings on one hand or Seller on the other hand will be responsible for pursuant to this Agreement with respect to claims made during the six month period between the twelve month anniversary and the eighteen month anniversary of the consummation of the transaction contemplated by this Agreement under this Article X is $500,000 (above and beyond up to $1,000,000 of claims made during the period set forth in clause (i) of this sentence)); provided that the caps set forth in this paragraph shall not apply to any claims made under the AM Asset Purchase this Agreement prior to the consummation of the transaction contemplated thereunder hereunder on the KEYH Closing Date. (b) The requirement that Damages total $50,000 in the aggregate before a Party will be entitled to indemnification does not apply to (i) any claims pursuant to Section 7.9 of this Agreement or Section 7.8 or Section 7.11 of the FM Asset Purchase Agreement, or (ii) any claims relating to payments to third parties or other Damages resulting from Encumbrances on Purchased Assets (as defined herein) or Purchased Assets (as defined in the FM Asset Purchase Agreement), each of which claims described in clause (i) or clause (ii) will be reimbursed from the first dollar.” C. Section 10.6 of the AM Asset Purchase Agreement is amended by substituting the word “eighteen” appearing therein with the phrase “twenty-four”.

Cap and Basket. Neither Party will be entitled to indemnification under this Article X until Damages to such Party (combined with any Damages to such Party under the AM FM Purchase Agreement) exceed $50,000 in the aggregate (except for claims pursuant to Section 7.8 7.9 of this Agreement and Section 7.9 7.8 of the AM FM Asset Purchase Agreement, which shall be reimbursed from the first dollar for both parties). Once Damages to any Party (combined with any Damages to such Party under the AM FM Purchase Agreement) exceed $50,000 in the aggregate (excluding all claims made pursuant to Section 7.8 7.9 of this Agreement and Section 7.9 7.8 of the AM FM Asset Purchase Agreement), such Party will be entitled to recover the entire amount of the Damages to the maximum extent permitted by this Agreement. The Parties agree that any materiality qualification set forth in this Agreement shall not be taken into account in determining the magnitude of Damages occasioned by any breach for purposes of calculating whether such $50,000 threshold has been reached. The Parties agree that (i) with respect to all claims made pursuant to Article X hereof or Article X of the AM FM Asset Purchase Agreement during the period beginning on the date of consummation of the transactions contemplated by the FM Asset Purchase Agreement on the KQQK Closing Date and ending on the twelve month anniversary of such date, the maximum aggregate amount for which either Buyer and LBI Holdings on the one hand or Seller on the other hand will be responsible for pursuant to this Agreement and, if and the purchase and sale transaction contemplated by the AM Asset Purchase Agreement occurs, the AM FM Asset Purchase Agreement, is $1,500,000 in the aggregate and (ii) with respect to all claims made pursuant to Article X hereof or Article X of the AM FM Asset Purchase Agreement during the period commencing on the date after the end of the applicable period set forth in clause (i) of this sentence and ending on the twenty four month anniversary of the consummation of the transaction contemplated by the AM Asset Purchase this Agreement (or if the purchase and sale transaction contemplated under the AM Asset Purchase this Agreement does not occur, ending on the later of (x) the eighteenth month anniversary of the KQQK Closing Date or (y) the date on which the AM Asset Purchase this Agreement is terminated), the maximum aggregate amount for which either Buyer and LBI Holdings on one hand or Seller on the other hand will be responsible for pursuant to this Agreement and, if and the purchase and sale transaction contemplated by the AM Asset Purchase Agreement occurs, the AM FM Asset Purchase Agreement, 39 is $700,000 (above and beyond up to $800,000 of claims made during the period set forth in clause (i) of this sentence) (it being understood that notwithstanding the preceding portion of this clause (ii), neither Buyer and LBI Holdings on the one hand nor Seller on the other hand will be responsible for any claims made after the eighteen month anniversary of the consummation of the transaction contemplated by this Agreeement pursuant to Article X hereof and that the maximum aggregate amount for which either Buyer and LBI Holdings on one hand or Seller on the other hand will be responsible for pursuant to this Agreement with respect to claims made during the six month period between the twelve month anniversary and the eighteen month anniversary of the consummation of the transaction contemplated by this Agreement under this Article X is $500,000 (above and beyond up to $1,000,000 of claims made during the period set forth in clause (i) of this sentence)); provided that the caps set forth in this paragraph shall not apply to any claims made under the AM Asset Purchase this Agreement prior to the consummation of the transaction contemplated thereunder hereunder on the KEYH Closing Date.