Baskets Sample Clauses

Baskets. To the extent that the size of any basket or carve-out set forth in Article VII is determined by reference to a percentage of Consolidated EBITDA, no Default or Event of Default shall be deemed to occur with respect to any transaction consummated or incurred pursuant to such basket or carve-out as a result of any decrease in the amount of Consolidated EBITDA subsequent to such consummation or incurrence which results in such basket or carve-out no longer being sufficient to permit such transaction or incurrence.

Baskets. (a) For purposes of the covenants described in Sections 6.01, 6.02, 6.04 and 6.08, if any Indebtedness, Lien, Investment or Restricted Payment (or a portion thereof) would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such Indebtedness, Liens, Investments or Restricted Payments (or a portion thereof) in any manner that complies with the covenants set forth in Sections 6.01, 6.02, 6.04 and 6.08, as applicable, and may later divide and reclassify any such Indebtedness, Lien or Investment so long as the Indebtedness, Lien, Investment or Restricted Payment (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification. (b) Unless otherwise specified herein, the baskets and other exceptions set forth in Article VI of this Agreement (or in any defined term used in Article VI) shall be tested solely at the time of consummation of the relevant transaction or action utilizing any of such baskets or other exceptions and, for the avoidance of doubt, if any of such baskets (including ratio based baskets) are exceeded as a result of fluctuations to Consolidated EBITDA for the most recently completed Test Period after the last time such baskets (including ratio based baskets) were calculated for any purpose under Article VI, such baskets (including ratio based baskets) will not be deemed to have been exceeded as a result of such fluctuations. If any Indebtedness or Liens securing Indebtedness are incurred to refinance Indebtedness or Liens securing Indebtedness, in each case, initially incurred in reliance on a basket measured by reference to a percentage of Consolidated EBITDA at the time of incurrence, and such refinancing would cause the percentage of Consolidated EBITDA restriction to be exceeded if calculated based on the Consolidated EBITDA on the date of such refinancing, such percentage of Consolidated EBITDA restriction shall not be deemed to be exceeded so long as the principal amount of such Indebtedness or Indebtedness secured by such Liens, as applicable, does not exceed the principal amount of such Indebtedness or Indebtedness secured by such Liens, as applicable, being refinanced, plus an amount equal to premiums, defeasance costs and fees and expenses in connection therewith. (c) For purposes of determining whether the incurrence of any Indebtedness or Lien or the making of any Investment, disposition, Restricted Pa...

Baskets. The Borrower shall determine in good faith the Dollar Equivalent of any utilization or other measurement denominated in a currency other than Dollars for purposes of compliance with any basket. For purposes of determining compliance with any basket under Article VI or VII with respect to any amount expressed in a currency other than Dollars, no Default shall be deemed to have occurred solely as a result of changes in rates of currency exchange occurring after the time such basket utilization occurs or other basket measurement is made (so long as such basket utilization or other measurement, at the time incurred, made or acquired, was permitted hereunder). Except with respect to any ratio calculated under any basket, any subsequent change in rates of currency exchange with respect to any prior utilization or other measurement of a basket previously made in reliance on such basket (as the same may have been reallocated in accordance with this Agreement) shall be disregarded for purposes of determining any unutilized portion under such basket.

Baskets. (i) In no event shall any Acquirer Indemnitee be entitled to indemnification for any Claim under Section 9.01 until the aggregate amount for each Claim under Section 9.01 that exceeds a De Minimus Claim is in excess of $1,000,000 (the “Basket”), and then Acquirer Indemnitees shall only be entitled to such excess (excluding all De Minimus Claims); provided, however, that the foregoing limitation shall not apply to any Claim for indemnification arising out of or relating to any breach of any representation or warranty contained in Sections 5.01, 5.02(a), 5.04, 5.05, 6.01, 6.02(b), 6.03, 6.04(a)(i), 6.09(b), 6.10(d)(iii), or 6.11 (which Claims are, for the avoidance of doubt, subject to Section 9.06(d) regarding De Minimus Claims). (ii) In no event shall any Contributor Indemnitee be entitled to indemnification for any Claim under Section 9.02 unless the aggregate amount for each Claim under Section 9.02 that exceeds a De Minimus Claim is in excess of the Basket, and then Contributor Indemnitees shall only be entitled to such excess (excluding all De Minimus Claims); provided, however, that the foregoing limitation shall not apply to any Claim for indemnification (A) arising out of or relating to any breach of any representation or warranty contained in Sections 7.01, 7.02 or 7.03(a) (which Claims are, for the avoidance of doubt, subject to Section 9.06(d) regarding De Minimus Claims) or (B) under Section 9.02(b).

Baskets. As stated in the Prospectus, each Fund issues and redeems Creation Units in return for the securities, other instruments, and/or cash that the Fund specifies each business day (the “Basket”). Prior to the beginning of market trading each business day, each Fund will disclose on its website and through the NSCC the Basket that it will accept from, and deliver to, authorized participants to settle purchases and redemptions of Creation Units on that day. Each security included in a Fund’s Basket will be a current holding of the Fund. A Fund’s Basket is not intended to be representative of current holdings and may vary significantly from current portfolio positions. To the extent there is a difference between the NAV of a Creation Unit and the aggregate market value of the Basket instruments exchanged for the Creation Unit, whichever of the Fund or the Participant conveying the lower value will pay to the other an amount in cash equal to that difference (the “Balancing Amount”). The Participant understands that a Creation Unit generally will not be issued until the Basket, as well as applicable Transaction Fees (as discussed below) are transferred to the Trust on or before the settlement date in accordance with the Prospectus.

Baskets. (a) If in any Financial Year of the Parent (the "Original Financial Year") the aggregate amount of the annual basket contained in paragraph (g)(iv) of the definition of Permitted Acquisition or paragraph (t) of the definition of Permitted Disposal originally applied, committed to be applied or designated by the board of directors to be applied in that Financial Year is less than the basket originally available for that Financial Year (the difference being referred to as the "Available Amount"), then the maximum basket for the immediately following Financial Year (the "Carry Forward Year") shall be increased by an amount equal to the Available Amount provided that the original basket shall be used first and if the Available Amount is not used for the relevant basket in that Carry Forward Year, it shall cease to be available. In any Carry Forward Year, the original amount of that basket shall be treated as having been applied before any Available Amount carried forward into such Carry Forward Year. The basket for the next Financial Year may be carried back to the current Financial Year with a corresponding reduction for the next following Financial Year provided that in respect of the annual basket relating to paragraph (g) (iv) of Permitted Acquisition, only 50 per cent. of the basket may be carried back.

Baskets. The Indemnified Parties shall not be entitled to recover any Indemnifiable Damages under Section 9.1(a)(i) unless and until the aggregate amount of all such Indemnifiable Damages exceeds $1,000,000 (the “Basket Amount”), in which case the Indemnified Parties shall be entitled to recover all such Indemnifiable Damages, including the Basket Amount, in accordance with the terms and subject to the limitations of this Article IX; provided that the limitations in this Section 9.2(d) shall not apply to (i) Company Fundamental Claims, (ii) Shareholder Fundamental Claims, or (iii) any breach of the representations and warranties set forth in Section 2.11.

Baskets. (i) Notwithstanding anything in Section 10(b)(i) above to the contrary, the Members and/or MyFamilyMD shall not have any obligation to indemnify I-trax or the Holding Company from and against any Adverse Consequences resulting from, arising out of, relating to, in the nature of, or caused by any breach (or any alleged breach) of any representation or warranty contained in Sections 6(a)-(j) and 6(l)-(z) above until I-trax and/or the Holding Company has suffered Adverse Consequences by reason of all such breaches (or alleged breaches) in excess of a $25,000 aggregate threshold (the "MyFamilyMD Threshold Amount") and then only to the extent that I-trax and/or the Holding Company has suffered Adverse Consequences by reason of all such breaches (or alleged breaches) in excess of the MyFamilyMD Threshold Amount. Any qualifications and exceptions relating to materiality or MyFamilyMD Material Adverse Effect with respect to any representations or warranties in Sections 6(a)-(j) and 6(l)-(z) above shall be disregarded for the purposes of determining whether the Members and/or MyFamilyMD shall have an obligation to indemnify I-trax or the Holding Company pursuant to this Section 10(h)(i) and Section 10(b)(i) above. (ii) Notwithstanding anything in Section 10(c) above to the contrary, I-trax and/or the Holding Company shall not have any obligation to indemnify the Members from and against any Adverse Consequences resulting from, arising out of, relating to, in the nature of, or caused by any breach (or any alleged breach) of any representation or warranty contained in Sections 5(a)-(g) and 5(i)-(j) above until the Members have suffered Adverse Consequences by reason of all such breaches (or alleged breaches) in excess of a $25,000 aggregate threshold (the "I-trax Threshold Amount") and then only to the extent that the Members have suffered Adverse Consequences by reason of all such breaches (or alleged breaches) in excess of the I-trax Threshold Amount. Any qualifications and exceptions relating to materiality or I-trax Material Adverse Effect with respect to any representations or warranties in Sections 5(a)-(g) and 5(i)-(j) above shall be disregarded for the purposes of determining whether I-trax or the Holding Company shall have any obligation to indemnify the Members pursuant to this Section 10(h)(ii) and Section 10(c) above.

Baskets. (a) For purposes of the covenants described in Sections 6.01, 6.02, 6.04 and 6.08, if any Indebtedness, Lien, Investment or Restricted Payment(or a portion thereof) would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such Indebtedness, Liens, Investments or Restricted Payments (or a portion thereof) in any manner that complies with the covenants set forth in Sections 6.01, 6.02, 6.04 and 6.08, as applicable, and may later divide and reclassify any such Indebtedness, Lien or Investment so long as the Indebtedness, Lien, Investment or Restricted Payment (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification. (b) Notwithstanding any other provisions to the contrary in this Agreement or any other Loan Document, prior to the date on which the Cristal Acquisition is consummated, the amount of any fixed Dollar amount in any permission, test or basket (including all de minimis baskets or thresholds) set forth in this Agreement and the other Loan Documents (other than thatthose set forth in Section 6.01(a)(xx) and Section 6.08(a)(xviii)) (each a “Fixed Dollar Basket”) shall be deemed to be reduced to 50% of the amount of the Fixed Dollar Basket set forth herein.

Baskets. Each party's obligation to indemnify pursuant to Section ------- 9.1 (a) or 9.2(a) above shall become operative only after the aggregate amount of all claims to indemnification made by the other party exceed the sum of Ten Thousand Dollars ($10,000.00); provided, however, that the entire amount of the -------- ------- indemnified claims shall be paid once such limitation is exceeded. Notwithstanding anything to the contrary set forth in this Agreement, no claim for indemnification pursuant to Section 9.1(a) or 9.2(a) of this Agreement shall be valid unless the indemnified party shall have given the indemnifying party written notice of such claim on or before ninety (90) days after the second anniversary date of the Effective Date.