Common use of Baskets Clause in Contracts

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 Payment or prepayment, redemption, purchase, defeasance or other satisfaction of Junior Debt complies with any basket that is based upon the greater of a specified Dollar Equivalent amount and a percentage of Consolidated EBITDA, Consolidated EBITDA shall be calculated on a Pro Forma Basis.

Baskets. (a) For purposes To the extent that a basket which is capped by reference to a Financial Year is not used in full during the relevant Financial Year, the unused amount may be carried forward into the immediately following Financial Year (the “Basket Carry Forward Amount”). A Basket Carry Forward Amount may only be carried forward into the immediately following Financial Year and in that Financial Year the amount of the covenants described in Sections 6.01, 6.02, 6.04 and 6.08, if relevant basket shall be treated as being used prior to 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 reclassificationBasket Carry Forward Amount. (b) Unless otherwise specified hereinIn the event that any amount or transaction meets the criteria of more than one of the baskets or exceptions set out in this Agreement, the baskets Obligors’ Agent, in its sole discretion, will classify and other exceptions set forth may from time to time reclassify that amount or transaction to a particular basket or exception and will only be required to include that amount or transaction in Article VI one 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 those baskets or other exceptions (and, for the avoidance of doubt, if any an amount or transaction may at the option of the Obligors’ Agent be split between different baskets or exceptions). (c) Unless a contrary indication appears, a reference to a basket amount, threshold or limit expressed in US Dollars includes the equivalent of such baskets amount, threshold or limit in other currencies. (including ratio based basketsd) are exceeded as a result Any amounts incurred on the basis 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 VIbasket, such baskets (including ratio based baskets) will not be deemed to have been exceeded as a result of such fluctuations. If any Indebtedness test or Liens securing Indebtedness are incurred to refinance Indebtedness or Liens securing Indebtedness, in each case, initially incurred in reliance on a basket measured permission where an element is set by reference to a percentage an increased or decreased by virtue of Consolidated paragraph (e) below (“Adjusted EBITDA based basket”) shall (provided that such amounts are, at the time of incurrence, duly and properly incurred in accordance with the relevant basket, test or permission) be treated as having been duly and properly incurred without the incurrence of an Event of Default even in the event that such refinancing would cause the percentage Adjusted EBITDA based basket subsequently decreases by virtue of Consolidated EBITDA restriction to be exceeded if calculated based on the Consolidated EBITDA on the date operation 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 that calculation 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 therewithparagraph (e) below. (ce) If at the time Adjusted EBITDA as evidenced in the most recent Compliance Certificate delivered to the Agent pursuant to clause 24.3 (Provision and contents of Compliance Certificate) is shown to have increased or decreased by reference to the Structuring EBITDA (the proportion by which such Adjusted EBITDA is so increased being the “Relevant Increase” and the proportion by which such Adjusted EBITDA is so decreased being the “Relevant Decrease”), each of the Grower Basket amounts in this Agreement shall be increased or decreased by the Relevant Increase or the Relevant Decrease (as applicable) (the “Proportionate Increase” or the “Proportionate Decrease” (as applicable)). Each Proportionate Increase or Proportionate Decrease (as applicable) shall be added or subtracted (as applicable) to each Grower Basket but, for the avoidance of doubt, disregarding any such previous Proportionate Increase or Proportionate Decrease for the purposes of the revised Grower Basket provided that the amount of each Grower Basket shall not decrease below the levels set out in this Agreement as at the date hereof (f) For the purposes of determining whether paragraph (e) above, the incurrence following baskets and amounts are together known as the “Grower Baskets”: (i) the baskets set out in paragraphs (e), (m)(ii), (v) and (x) of any Permitted Disposal definition; (ii) the baskets set out in paragraphs (f), (o) and (u) of Permitted Financial Indebtedness or Lien or definition; (iii) the making baskets set out in paragraphs (k)(iii) and (v) of any InvestmentPermitted Guarantee definition; (iv) the basket set out in paragraph (e)(iii) of Permitted Joint Venture definition; (v) the baskets set out in paragraphs (e), disposition(g), Restricted Payment or prepayment, redemption, purchase, defeasance or other satisfaction (n) and (n)(ii) of Junior Debt complies with any basket that is based upon Permitted Loan definition; and (vi) the greater baskets set out in paragraphs (t) and (w) of a specified Dollar Equivalent amount and a percentage of Consolidated EBITDA, Consolidated EBITDA shall be calculated on a Pro Forma Basis.Permitted Security definition;

Baskets. Notwithstanding anything to the contrary set forth in this Agreement, but without limiting Section 7.2(b)(i), (aA) For purposes the Effective Time Stockholders shall not have any liability under clause “(i)” or “(xii)” of Section 7.2(a) unless and until the covenants described Damages directly or indirectly relating to, arising out of or in Sections 6.01connection with a particular event, 6.02circumstance, 6.04 and 6.08, if any Indebtedness, Lien, Investment incident or Restricted Payment occurrence (or a portion thereofseries of related events, circumstances, incidents or occurrences or having the same factual or legal basis) would be permitted pursuant to one exceed $10,000 (the “Minimum Threshold”) and if the aggregate of Damages directly or more provisions described thereinindirectly relating to, the Borrower may divide and classify such Indebtednessarising out of or in connection with a particular event, Lienscircumstance, Investments incident or Restricted Payments occurrence (or a portion thereofseries of related events, circumstances, incidents or occurrences or having the same factual or legal basis) exceeds the Minimum Threshold, then the Parent Indemnified Parties shall be entitled to indemnification for all such Damages (including the amount of the Minimum Threshold); and (B) the Parent Indemnified Parties shall not be entitled to recover any Indemnification Claims under or pursuant to clause “(i)” or “(xii)” of Section 7.2(a) unless and until all Damages directly or indirectly paid, sustained or incurred by the Parent Indemnified Parties (or any of them) exceeds $595,000 (the “Damage Threshold”) in the aggregate, and if the aggregate of all Damages directly or indirectly paid, sustained or incurred by the Parent Indemnified Parties (or any manner of them) exceeds the Damage Threshold, then the Parent Indemnified Parties shall be entitled to indemnification for all such Damages (including the amount of the Damage Threshold); provided, however, that complies with notwithstanding the covenants foregoing, the preceding restriction set forth in Sections 6.01this Section 7.2(b)(iv) shall not in any way limit or otherwise restrict any right in respect of Indemnification Claims pursuant to clauses “(ii)” through “(xi)” of Section 7.2(a), 6.02inclusive, 6.04 or any other claims or causes of action under applicable Laws relating to, arising out of or in connection with fraud, willful and 6.08, as applicable, and may later divide and reclassify knowing breach or intentional breach by the Company (or any such Indebtedness, Lien or Investment so long as the Indebtedness, Lien, Investment or Restricted Payment (as so divided and/or reclassifiedCompany Representative) 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 connection with 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 Payment or prepayment, redemption, purchase, defeasance or other satisfaction of Junior Debt complies with any basket that is based upon the greater of a specified Dollar Equivalent amount and a percentage of Consolidated EBITDA, Consolidated EBITDA shall be calculated on a Pro Forma Basistransactions contemplated hereby.

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 LiensXxxxx, 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 Payment or prepayment, redemption, purchase, defeasance or other satisfaction of Junior Debt complies with any basket that is based upon the greater of a specified Dollar Equivalent amount and a percentage of Consolidated EBITDA, Consolidated EBITDA shall be calculated on a Pro Forma Basis.

Baskets. (a) For purposes Notwithstanding anything in this Agreement or any Loan Document to the contrary, (i) unless the Borrower elects otherwise, if the Borrower or its Subsidiaries in connection with any substantially concurrent transaction or series of such related transaction (A) incurs Indebtedness, creates Liens, makes dispositions, makes Investments, makes Restricted Payments or repays any Indebtedness or takes any other action under or as permitted by a ratio-based basket (any such amounts, the “Incurrence-Based Amounts”) and (B) incurs Indebtedness, creates Liens, makes dispositions, makes Investments, makes Restricted Payments, or repays any Indebtedness or takes any other action under a non-ratio-based basket (including, without limitation, any basket with a fixed dollar amount or based on a percentage of Consolidated EBITDA) (any such amounts, the “Fixed Amounts”) (which shall occur concurrently or substantially concurrently with the events in clause (A) above), then the Fixed Amounts shall be disregarded in the calculation of the covenants described in Sections 6.01, 6.02, 6.04 financial test or ratio test applicable to such Incurrence-Based Amounts and 6.08, (ii) if the Borrower or its Subsidiaries enters into any Indebtedness, Lien, Investment or Restricted Payment (or a portion thereof) would be permitted pursuant to one or more provisions described thereincommitted revolving credit facility, the Borrower may divide elect to determine compliance of such facility (including the incurrence of Indebtedness and classify Liens from time to time in connection therewith) with this Agreement and each other Loan Document on the date commitments with respect thereto are first received, assuming the full amount of such Indebtednessfacility is incurred (and any applicable Liens are granted) on such date, in lieu of determining such compliance on any subsequent date (including any date on which Indebtedness is incurred pursuant to such facility). In addition, any Indebtedness (and associated Liens, Investments or Restricted Payments subject to the applicable priorities required pursuant to the applicable Incurrence-Based Amounts), (or a or, in each case, any 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 incurred or Investment so long as the Indebtedness, Lien, Investment or Restricted Payment (as so divided and/or reclassified) would be permitted to be made otherwise effected in reliance on Fixed Amounts shall be automatically and immediately reclassified at any time, unless the Borrower otherwise elects from time to time, as incurred under the applicable exception as of Incurrence-Based Amounts if the date of Borrower subsequently meets the applicable ratio for such reclassificationIncurrence-Based Amounts on a pro forma basis. (b) Unless otherwise specified hereinIf any Lien, the baskets and Indebtedness, Disqualified Equity Interests, Preferred Stock, Disposition, Investment, Restricted Payment, or other exceptions set forth in Article VI of this Agreement transaction, action, judgment or amount (or in any defined term used in Article VI) shall be tested solely at the time of consummation of the relevant foregoing in substantially concurrent transactions, a single transaction or action utilizing any a series of such baskets related transactions) is incurred, issued, taken 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 consummated in reliance on a basket categories of any amount, threshold, exception, value or other baskets measured by reference to a percentage of Consolidated EBITDA at the time of incurrenceEBITDA, and such any Lien, Indebtedness, Disqualified Equity Interests, Disposition, Investment, Restricted Payment, or other transaction, action, judgment or amount (including in connection with refinancing thereof) would cause subsequently exceed the applicable percentage of Consolidated EBITDA restriction to be exceeded if calculated based on the Consolidated EBITDA on a later date (including the date of such refinancingany refinancing or re-classification), such percentage of Consolidated EBITDA restriction shall not will be deemed not 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 therewithexceeded. (c) For purposes of determining whether the incurrence permissibility of any Indebtedness action, change, transaction or Lien or the making event that requires a calculation of any Investmentfinancial ratio or financial test (including pro forma compliance with Section 5.5 or any test based on EBITDA less CapEx) and/or the amount of Consolidated EBITDA or Net Income, dispositionsuch financial ratio, Restricted Payment financial test or prepaymentamount shall, redemptionsubject to this Section 1.8, purchasebe calculated at the time such action is taken, defeasance such change is made, such transaction is consummated or other satisfaction such event occurs, as the case may be, and no Default or Event of Junior Debt complies with any basket that is based upon the greater Default shall be deemed to have occurred solely as a result of a specified Dollar Equivalent change in such financial ratio, financial test or amount and a percentage of Consolidated EBITDAoccurring after the time such action is taken, Consolidated EBITDA shall be calculated on a Pro Forma Basissuch change is made, such transaction is consummated or such event occurs, as the case may be.