Common use of CORRESPONDING SAVINGS AND OVER-PROVISIONS Clause in Contracts

CORRESPONDING SAVINGS AND OVER-PROVISIONS. 5.1 If the Purchasers or an Acquired Company becomes aware that: (a) any Tax Liability which has resulted in a payment being made by (or becoming due from) the Sellers under this Schedule, where such Tax Liability has given rise to a corresponding saving for an Acquired Company, the Purchasers or any Affiliate thereof; or (b) any provision for Tax (other than deferred Tax) contained in the Balance Sheet or the Financial Statements proves to be an over-provision (other than to the extent the over-provision would arise or be increased as a result of any retrospective change in the law after Completion or by any Post-Completion Relief), the Purchasers shall promptly give details of such corresponding saving or over-provision by written notice to the Sellers. 5.2 The Sellers may at their own cost and expense at any time instruct the relevant Acquired Company’s auditors to determine in writing the extent of any corresponding saving or over-provision (whether or not details have been notified to the Sellers in accordance with paragraph 5.1 of this Schedule). If such auditors determine that a corresponding saving or over-provision has arisen, an amount equal to the value (as so determined in writing) of the Relevant Percentage of such corresponding saving or over-provision: (a) shall be set off against any payment then due from the Sellers to the Purchasers under this Schedule or for breach of paragraph 20 of Schedule 5 (The Sellers’ Warranties); and (b) to the extent there is any excess, such excess shall be set against any payment(s) already made or subsequently due under this Schedule or for breach of paragraph 20 of Schedule 5 (The Sellers’ Warranties) in chronological order until exhausted, provided that to the extent that such corresponding saving or over-provision is set-off against any payment already made by the Sellers, it shall promptly be repaid by the Purchasers to the Sellers. 5.3 If a written determination has been issued as referred to in paragraph 5.2 of this Schedule or this paragraph 5.3, the Sellers or the Purchasers may, on or before the sixth anniversary of Completion, request the relevant Acquired Company’s auditors: (a) to review (at the expense of the Party requesting the review, or where a payment becomes due under paragraph 5.4 of this Schedule, at the expense of the Party which is required to make such payment under such paragraph 5.4) such written determination in the light of all relevant circumstances at the time of the review; and (b) to determine in writing whether in the light of such circumstances the original written determination should be amended. 5.4 If the new written determination referred to at paragraph 5.3 of this Schedule states that the original written determination should be amended, an adjusting payment equal to the difference between the sum in the original written determination and the sum in the amended written determination shall be made by the Sellers or the Purchasers (as appropriate) as soon as reasonably practicable.

CORRESPONDING SAVINGS AND OVER-PROVISIONS. 5.1 If 7.1 The Sellers shall, at any time on or before the Purchasers 30th day following the expiration of the applicable statute of limitations governing the Tax in respect of which a Relevant Amount is to be determined, be entitled to give notice to the Buyer requiring (at the Sellers’ reasonable expense) that the auditors for the time being of a Group Company certify whether a Relevant Amount (as determined in paragraph 7.2) exists in relation to such Group Company for the purposes of this paragraph 7 and the quantum of such Relevant Amount. The Buyer shall provide or an Acquired procure that the relevant Group Company becomes aware thatprovides, in each case at the Sellers’ reasonable expense, such information or assistance which the auditors may require in connection with such certification. The Buyer shall notify the Sellers promptly in writing if it considers that any Relevant Amount may exist. 7.2 A “Relevant Amount” shall be determined for the purposes of this paragraph as follows: (a) any 7.2.1 if the Sellers have made payment to the Buyer in respect of a Tax Liability to which has resulted in this Schedule applies or for a payment being made by (or becoming due from) breach of any of the Sellers under this Schedule, where Tax Warranties and if such Tax Liability has given or the matter giving rise to such breach of the Tax Warranties gives rise to a corresponding saving for an Acquired Company, the Purchasers or any Affiliate thereof; or (b) any provision for Tax Relief (other than deferred Tax) contained a Relief that has been taken into account in computing and so reducing the Balance Sheet or the Financial Statements proves to be an over-provision (other than to the extent the over-provision would arise or be increased as a result of any retrospective change in the law after Completion or by any Post-Completion Relief), the Purchasers shall promptly give details amount of such corresponding saving or over-provision by written notice to the Sellers. 5.2 The Sellers may at their own cost and expense at any time instruct the relevant Acquired Company’s auditors to determine in writing the extent of any corresponding saving or over-provision (whether or not details have been notified to the Sellers payment in accordance with paragraph 5.1 10) which reduces or eliminates an actual liability to Tax of any Buyer’s Group Undertaking whenever arising (other than in the case of a liability to a Tax which is a Tax Liability in respect of which a claim may be brought under this ScheduleSchedule or for breach of any of the Tax Warranties). If , the amount of the actual liability to Tax which is eliminated or the amount by which it is reduced shall be a Relevant Amount provided, however, that in determining whether such auditors determine a liability to Tax is reduced or eliminated, any Relief that is otherwise available to the relevant Buyer’s Group Undertaking shall be deemed to be utilised prior to any utilisation of the Relief specified in this paragraph 7.2.1; 7.2.2 if a corresponding saving Group Company actually receives any amount by way of repayment of any Indemnified Tax (whether by way of a refund or overcredit of such Indemnified Tax (including any interest thereon)) in respect of or attributable to any period (or part-period) falling on or before Completion (other than any repayment which has been taken into account ((i) as an asset in the Last Balance Sheet or (ii) in computing and so reducing or eliminating any allowance, accrual, reserve or provision has arisenfor Tax in the Last Balance Sheet and save to the extent that the loss of the right to such repayment (judged at the time of the receipt of such repayment) would not cause such allowance, accrual, reserve or provision to become an underprovision in respect of the Tax Liability the subject of such allowance, accrual, reserve or provision) and such right to or repayment of such Indemnified Tax does not arise from the use of a Post Completion Relief, an amount equal to the value amount by way of repayment which such Group Company receives (less any (i) Tax chargeable on such Group Company in respect of such repayment and (ii) reasonable out-of-pocket costs and expenses (including reasonable fees and disbursements of outside legal counsel and other external advisers but other than management costs and expenses) properly incurred by the Buyer or the relevant Group Company in recovering such repayment) shall be a Relevant Amount, provided, however, that to the extent that such Group Company is subsequently found not to be entitled to retain any amount of such repayment, the amount 108 which such Group Company is found not to be entitled to retain shall not be a Relevant Amount. 7.3 If either the Sellers challenge or the Buyer challenges the certification of the relevant auditors made under paragraph 7.1 and the Sellers and the Buyer cannot reach agreement (acting reasonably) as so determined in writing) to the existence or quantum of the Relevant Percentage Amount, the Sellers shall, with the consent of the Buyer as to the choice of such corresponding saving Independent Accountant (such consent not to be unreasonably withheld or over-provisiondelayed), instruct an Independent Accountant, in accordance with paragraph 7.4, to certify such Relevant Amount. The Independent Accountant shall act as an expert and not as an arbitrator and the decision of the Independent Accountant as to the quantum of the Relevant Amount shall be binding on the parties. 7.4 The Buyer and the Sellers hereby agree and undertake that if any disagreement or dispute as to the quantum of the Relevant Amount is referred to an Independent Accountant: 7.4.1 the parties will each use all reasonable endeavours to co-operate with the Independent Accountant in resolving such disagreement or dispute, and for that purpose will provide to him all such information within their possession or control and documentation as he may reasonably require; 7.4.2 the Independent Accountant shall have the right to seek such professional assistance and advice as he may reasonably require in fulfilling his duties; 7.4.3 the Independent Accountant shall have the power to allocate his fees (aand any professional fees incurred by him) for payment in whole or in part by either the Buyer or the Sellers at his discretion, but if not otherwise allocated such fees shall be paid by the Buyer on the one hand and the Sellers on the other in equal shares; and 7.4.4 the Independent Accountant shall make his determination pursuant to paragraph 7.3 as soon as reasonably practicable. 7.5 Subject to paragraph 7.3, a Relevant Amount as referred to in paragraph 7.2.1 (and certified in accordance with this paragraph) shall first be set set-off against any payment then due from the Sellers to the Purchasers under this Schedule or for breach of paragraph 20 of Schedule 5 (The Sellers’ Warranties); and (b) to the extent there is any excess, such excess shall be set against any payment(s) already made or subsequently due under this Schedule or for breach of paragraph 20 of Schedule 5 (The Sellers’ Warranties) in chronological order until exhausted, provided that Agreement and to the extent that such corresponding saving or over-provision there is an excess, that excess shall be repaid to the Sellers. 7.6 Subject to paragraph 7.3, a Relevant Amount as referred to in paragraph 7.2.2 (and certified in accordance with this paragraph) shall: 7.6.1 be set-off against any payment already made by then due from the Sellers, it shall promptly be repaid by the Purchasers Sellers under this Agreement; 7.6.2 to the Sellers.extent that there is an excess, a refund shall be made to the Sellers of any previous payment or payments made in respect of a Relevant Claim under this Agreement and not previously refunded under this paragraph up to the amount of such excess; and 5.3 If a written determination has been issued as 7.6.3 to the extent that the excess referred to in paragraph 5.2 of this Schedule or this paragraph 5.37.6.2 above is not exhausted under that paragraph, the Sellers or the Purchasers may, on or before the sixth anniversary remainder of Completion, request the relevant Acquired Company’s auditors: (a) to review (at the expense of the Party requesting the review, or where a payment becomes due under paragraph 5.4 of this Schedule, at the expense of the Party which is required to make such payment under such paragraph 5.4) such written determination in the light of all relevant circumstances at the time of the review; and (b) to determine in writing whether in the light of such circumstances the original written determination should be amended. 5.4 If the new written determination referred to at paragraph 5.3 of this Schedule states that the original written determination should be amended, an adjusting payment equal to the difference between the sum in the original written determination and the sum in the amended written determination excess shall be made by carried forward and 109 set-off against any future payment or payments which become due from the Sellers or the Purchasers (as appropriate) as soon as reasonably practicableunder this Agreement.

CORRESPONDING SAVINGS AND OVER-PROVISIONS. 5.1 If 7.1 The Sellers shall, at any time on or before the Purchasers 30th day following the expiration of the applicable statute of limitations governing the Tax in respect of which a Relevant Amount is to be determined, be entitled to give notice to the Buyer requiring (at the Sellers’ reasonable expense) that the auditors for the time being of a Group Company certify whether a Relevant Amount (as determined in paragraph 7.2) exists in relation to such Group Company for the purposes of this paragraph 7 and the quantum of such Relevant Amount. The Buyer shall provide or an Acquired procure that the relevant Group Company becomes aware thatprovides, in each case at the Sellers’ reasonable expense, such information or assistance which the auditors may require in connection with such certification. The Buyer shall notify the Sellers promptly in writing if it considers that any Relevant Amount may exist. 7.2 A “Relevant Amount” shall be determined for the purposes of this paragraph as follows: (a) any 7.2.1 if the Sellers have made payment to the Buyer in respect of a Tax Liability to which has resulted in this Schedule applies or for a payment being made by (or becoming due from) breach of any of the Sellers under this Schedule, where Tax Warranties and if such Tax Liability has given or the matter giving rise to such breach of the Tax Warranties gives rise to a corresponding saving for an Acquired Company, the Purchasers or any Affiliate thereof; or (b) any provision for Tax Relief (other than deferred Tax) contained a Relief that has been taken into account in computing and so reducing the Balance Sheet or the Financial Statements proves to be an over-provision (other than to the extent the over-provision would arise or be increased as a result of any retrospective change in the law after Completion or by any Post-Completion Relief), the Purchasers shall promptly give details amount of such corresponding saving or over-provision by written notice to the Sellers. 5.2 The Sellers may at their own cost and expense at any time instruct the relevant Acquired Company’s auditors to determine in writing the extent of any corresponding saving or over-provision (whether or not details have been notified to the Sellers payment in accordance with paragraph 5.1 10) which reduces or eliminates an actual liability to Tax of any Buyer’s Group Undertaking whenever arising (other than in the case of a liability to a Tax which is a Tax Liability in respect of which a claim may be brought under this ScheduleSchedule or for breach of any of the Tax Warranties). If , the amount of the actual liability to Tax which is eliminated or the amount by which it is reduced shall be a Relevant Amount provided, however, that in determining whether such auditors determine a liability to Tax is reduced or eliminated, any Relief that is otherwise available to the relevant Buyer’s Group Undertaking shall be deemed to be utilised prior to any utilisation of the Relief specified in this paragraph 7.2.1; 7.2.2 if a corresponding saving Group Company actually receives any amount by way of repayment of any Indemnified Tax (whether by way of a refund or overcredit of such Indemnified Tax (including any interest thereon)) in respect of or attributable to any period (or part-period) falling on or before Completion (other than any repayment which has been taken into account ((i) as an asset in the Last Balance Sheet or (ii) in computing and so reducing or eliminating any allowance, accrual, reserve or provision has arisenfor Tax in the Last Balance Sheet and save to the extent that the loss of the right to such repayment (judged at the time of the receipt of such repayment) would not cause such allowance, accrual, reserve or provision to become an underprovision in respect of the Tax Liability the subject of such allowance, accrual, reserve or provision) and such right to or repayment of such Indemnified Tax does not arise from the use of a Post Completion Relief, an amount equal to the value amount by way of repayment which such Group Company receives (less any (i) Tax chargeable on such Group Company in respect of such repayment and (ii) reasonable out-of-pocket costs and expenses (including reasonable fees and disbursements of outside legal counsel and other external advisers but other than management costs and expenses) properly incurred by the Buyer or the relevant Group Company in recovering such repayment) shall be a Relevant Amount, provided, however, that to the extent that such Group Company is subsequently found not to be entitled to retain any amount of such repayment, the amount which such Group Company is found not to be entitled to retain shall not be a Relevant Amount. 7.3 If either the Sellers challenge or the Buyer challenges the certification of the relevant auditors made under paragraph 7.1 and the Sellers and the Buyer cannot reach agreement (acting reasonably) as so determined in writing) to the existence or quantum of the Relevant Percentage Amount, the Sellers shall, with the consent of the Buyer as to the choice of such corresponding saving Independent Accountant (such consent not to be unreasonably withheld or over-provisiondelayed), instruct an Independent Accountant, in accordance with paragraph 7.4, to certify such Relevant Amount. The Independent Accountant shall act as an expert and not as an arbitrator and the decision of the Independent Accountant as to the quantum of the Relevant Amount shall be binding on the parties. 7.4 The Buyer and the Sellers hereby agree and undertake that if any disagreement or dispute as to the quantum of the Relevant Amount is referred to an Independent Accountant: 7.4.1 the parties will each use all reasonable endeavours to co-operate with the Independent Accountant in resolving such disagreement or dispute, and for that purpose will provide to him all such information within their possession or control and documentation as he may reasonably require; 7.4.2 the Independent Accountant shall have the right to seek such professional assistance and advice as he may reasonably require in fulfilling his duties; 7.4.3 the Independent Accountant shall have the power to allocate his fees (aand any professional fees incurred by him) for payment in whole or in part by either the Buyer or the Sellers at his discretion, but if not otherwise allocated such fees shall be paid by the Buyer on the one hand and the Sellers on the other in equal shares; and 7.4.4 the Independent Accountant shall make his determination pursuant to paragraph 7.3 as soon as reasonably practicable. 7.5 Subject to paragraph 7.3, a Relevant Amount as referred to in paragraph 7.2.1 (and certified in accordance with this paragraph) shall first be set set-off against any payment then due from the Sellers to the Purchasers under this Schedule or for breach of paragraph 20 of Schedule 5 (The Sellers’ Warranties); and (b) to the extent there is any excess, such excess shall be set against any payment(s) already made or subsequently due under this Schedule or for breach of paragraph 20 of Schedule 5 (The Sellers’ Warranties) in chronological order until exhausted, provided that Agreement and to the extent that such corresponding saving or over-provision there is an excess, that excess shall be repaid to the Sellers. 7.6 Subject to paragraph 7.3, a Relevant Amount as referred to in paragraph 7.2.2 (and certified in accordance with this paragraph) shall: 7.6.1 be set-off against any payment already made by then due from the Sellers, it shall promptly be repaid by the Purchasers Sellers under this Agreement; 7.6.2 to the Sellers.extent that there is an excess, a refund shall be made to the Sellers of any previous payment or payments made in respect of a Relevant Claim under this Agreement and not previously refunded under this paragraph up to the amount of such excess; and 5.3 If a written determination has been issued as 7.6.3 to the extent that the excess referred to in paragraph 5.2 of this Schedule or this paragraph 5.37.6.2 above is not exhausted under that paragraph, the Sellers or the Purchasers may, on or before the sixth anniversary remainder of Completion, request the relevant Acquired Company’s auditors: (a) to review (at the expense of the Party requesting the review, or where a payment becomes due under paragraph 5.4 of this Schedule, at the expense of the Party which is required to make such payment under such paragraph 5.4) such written determination in the light of all relevant circumstances at the time of the review; and (b) to determine in writing whether in the light of such circumstances the original written determination should be amended. 5.4 If the new written determination referred to at paragraph 5.3 of this Schedule states that the original written determination should be amended, an adjusting payment equal to the difference between the sum in the original written determination and the sum in the amended written determination excess shall be made by carried forward and set-off against any future payment or payments which become due from the Sellers or the Purchasers (as appropriate) as soon as reasonably practicableunder this Agreement.

CORRESPONDING SAVINGS AND OVER-PROVISIONS. 5.1 If 7.1 The Sellers shall, at any time on or before the Purchasers 30th day following the expiration of the applicable statute of limitations governing the Tax in respect of which a Relevant Amount is to be determined, be entitled to give notice to the Buyer requiring (at the Sellers’ reasonable expense) that the auditors for the time being of a Group Company certify whether a Relevant Amount (as determined in paragraph 7.2) exists in relation to such Group Company for the purposes of this paragraph 7 and the quantum of such Relevant Amount. The Buyer shall provide or an Acquired procure that the relevant Group Company becomes aware thatprovides, in each case at the Sellers’ reasonable expense, such information or assistance which the auditors may require in connection with such certification. The Buyer shall notify the Sellers promptly in writing if it considers that any Relevant Amount may exist. 7.2 A “Relevant Amount” shall be determined for the purposes of this paragraph as follows: (a) any 7.2.1 if the Sellers have made payment to the Buyer in respect of a Tax Liability to which has resulted in this Schedule applies or for a payment being made by (or becoming due from) breach of any of the Sellers under this Schedule, where Tax Warranties and if such Tax Liability has given or the matter giving rise to such breach of the Tax Warranties gives rise to a corresponding saving for an Acquired Company, the Purchasers or any Affiliate thereof; or (b) any provision for Tax Relief (other than deferred Tax) contained a Relief that has been taken into account in computing and so reducing the Balance Sheet or the Financial Statements proves to be an over-provision (other than to the extent the over-provision would arise or be increased as a result of any retrospective change in the law after Completion or by any Post-Completion Relief), the Purchasers shall promptly give details amount of such corresponding saving or over-provision by written notice to the Sellers. 5.2 The Sellers may at their own cost and expense at any time instruct the relevant Acquired Company’s auditors to determine in writing the extent of any corresponding saving or over-provision (whether or not details have been notified to the Sellers payment in accordance with paragraph 5.1 10) which reduces or eliminates an actual liability to Tax of this Schedule). If such auditors determine that any Buyer’s Group Undertaking whenever arising (other than in the case of a corresponding saving or over-provision has arisen, an amount equal liability to the value (as so determined a Tax which is a Tax Liability in writing) respect of the Relevant Percentage of such corresponding saving or over-provision: (a) shall which a claim may be set off against any payment then due from the Sellers to the Purchasers brought under this Schedule or for breach of paragraph 20 any of Schedule 5 (The Sellers’ the Tax Warranties); and, the amount of the actual liability to Tax which is eliminated or the amount by which it is reduced shall be a Relevant Amount provided, however, that in determining whether such a liability to Tax is reduced or eliminated, any Relief that is otherwise available to the relevant Buyer’s Group Undertaking shall be deemed to be utilised prior to any utilisation of the Relief specified in this paragraph 7.2.1; 7.2.2 if a Group Company actually receives any amount by way of repayment of any Indemnified Tax (bwhether by way of a refund or credit of such Indemnified Tax (including any interest thereon)) in respect of or attributable to any period (or part-period) falling on or before Completion (other than any repayment which has been taken into account ((i) as an asset in the Last Balance Sheet or (ii) in computing and so reducing or eliminating any allowance, accrual, reserve or provision for Tax in the Last Balance Sheet and save to the extent there is that the loss of the right to such repayment (judged at the time of the receipt of such repayment) would not cause such allowance, accrual, reserve or provision to become an underprovision in respect of the Tax Liability the subject of such allowance, accrual, reserve or provision) and such right to or repayment of such Indemnified Tax does not arise from the use of a Post Completion Relief, an amount equal to the amount by way of repayment which such Group Company receives (less any excess, (i) Tax chargeable on such excess Group Company in respect of such repayment and (ii) reasonable out-of-pocket costs and expenses (including reasonable fees and disbursements of outside legal counsel and other external advisers but other than management costs and expenses) properly incurred by the Buyer or the relevant Group Company in recovering such repayment) shall be set against any payment(s) already made or subsequently due under this Schedule or for breach of paragraph 20 of Schedule 5 (The Sellers’ Warranties) in chronological order until exhausteda Relevant Amount, provided provided, however, that to the extent that such corresponding saving or over-provision Group Company is set-off against subsequently found not to be entitled to retain any payment already made by the Sellers, it shall promptly be repaid by the Purchasers to the Sellers. 5.3 If a written determination has been issued as referred to in paragraph 5.2 amount of this Schedule or this paragraph 5.3such repayment, the Sellers or the Purchasers may, on or before the sixth anniversary of Completion, request the relevant Acquired Company’s auditors: (a) amount which such Group Company is found not to review (at the expense of the Party requesting the review, or where be entitled to retain shall not be a payment becomes due under paragraph 5.4 of this Schedule, at the expense of the Party which is required to make such payment under such paragraph 5.4) such written determination in the light of all relevant circumstances at the time of the review; and (b) to determine in writing whether in the light of such circumstances the original written determination should be amendedRelevant Amount. 5.4 If the new written determination referred to at paragraph 5.3 of this Schedule states that the original written determination should be amended, an adjusting payment equal to the difference between the sum in the original written determination and the sum in the amended written determination shall be made by the Sellers or the Purchasers (as appropriate) as soon as reasonably practicable.