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.
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 10.01 unless the aggregate amount for each claim under Section 10.01 that exceeds a De Minimus Claim is in excess of $500,000 (the “Basket”) and then the 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), 5.03, 5.05, 6.01, 6.02(b), 6.03, 6.04(a)(i), 6.09(b) or 6.10(d)(iii) (which claims are, for the avoidance of doubt, subject to Section 10.06(d)).
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. 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. 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. (a) The Buyer Group Indemnitees shall not be entitled to seek any indemnification payment pursuant to Section 9.2 until such time as the total amount of all Damages that have been directly or indirectly suffered or incurred by any one or more of the Buyer Group Indemnitees, or to which any one or more of the Buyer Group Indemnitees has or have otherwise become subject, exceeds $200,000 in the aggregate, and thereafter, only to the extent of such excess.
Baskets. Notwithstanding anything to the contrary in this Agreement, neither the Seller Parties nor the Buyers shall be liable (for indemnification or otherwise) with respect to the matters described herein unless the aggregate amount of claims shall collectively exceed a total of $217,000, (the “Basket Amount”) and then only for the amount by which such claims exceed the Basket Amount. However, the Basket Amount shall not apply to claims based upon (A) any intentional misrepresentation or willful breach of any matter contained herein or fraud; (B) breaches of the representations and warranties contained in Section 3(a) or 4(a)(Organization, Qualification, and Corporate Power), Section 3(o)(Intellectual Property) and Section 3(x)(Environmental Matters) or (C) any indemnification by Sellers for Retained Liability, any indemnification by Buyers for Assumed Liabilities, or breaches of any of Seller Parties’ covenants or Buyers’ covenants herein. Neither the Seller Parties nor the Buyer shall be liable (for indemnification or otherwise) for any claim in an amount less than $10,000, provided, that when any such claim is based upon (A) any intentional misrepresentation or willful breach of any matter contained herein or fraud (B) breaches of the representations and warranties contained in Section 3(o)(Intellectual Property) or Section 3(x)(Environmental Matters) or (C) any Retained Liability, Assumed Liability or breaches of any of Seller Parties’ covenants or Buyers’ covenants herein and exceeds $10,000, the Seller Parties or the Buyers, as the case may be, shall, subject to the limitations in this Section 8(g) and the other provisions of this Agreement, be liable for the entire amount of such claim without regard to any deductible or threshold amount.
Baskets. (a) Noble and the Sellers, collectively, shall have no liability for indemnification with respect to the matters described in this Article V unless and until, and only to the extent that, the aggregate amount of all Losses for which indemnification is sought from Noble and the Sellers exceeds $500,000 (the "Indemnity Threshold"); provided, however, that the Indemnity Threshold shall not apply to Losses incurred solely in connection with breaches of the representations and warranties set forth in Sections 2.1 and 2.2.
