Common use of COUNTER COVENANT Clause in Contracts

COUNTER COVENANT. (A) The Purchaser hereby covenants with the Covenantor to pay to the Covenantor an amount equal to any of the following:- (i) any liability or increased liability to Tax of the Covenantor or any of its subsidiaries which arises as a result of or by reference to any reduction or disallowance of Group Relief that would otherwise have been available to the Covenantor or its relevant subsidiary or subsidiaries where and to the extent that such reduction or disallowance occurs as a result of or by reference to:- (a) any total or partial withdrawal effected by a Group Company after Completion of any surrender of Group Relief that was submitted by that Group Company to the Inland Revenue on or before Completion in respect of any accounting period ended on or before Completion; or (b) any total or partial disclaimer made by a Group Company after Completion of any capital allowances available to that Group Company in respect of any accounting period ended on or before Completion save where any such withdrawal or disclaimer is made at the express written request of the Covenantor; (ii) any liability or increased liability to Tax of the Covenantor or any of its subsidiaries:- (a) which is caused by the failure of a Group Company to discharge a liability to Tax (a "Group Company Liability") which arises in respect of an accounting period beginning before Completion; or (b) which is otherwise properly attributable to Marconi (US) (also a "GROUP COMPANY LIABILITY") other than (in either case) a Group Company Liability in respect of which the Purchaser could make a claim under CLAUSE 2 (Covenant); and (iii) any reasonable out-of-pocket legal and accounting or other professional costs and expenses reasonably and properly incurred by the Covenantor or any of its subsidiaries in connection with any such liability or increased liability to Tax (or Claim therefor) or in taking any action under THIS CLAUSE. (B) The Purchaser hereby covenants that it will not cause or permit Marconi (US) or any affiliate of the Purchaser to make or change any Tax election, take any position on any Tax return, adjust the Tax basis of any asset, settle any Tax dispute or otherwise take any action that results in any increased liability to Tax or reduction of any Tax Asset of the Covenantor or any member of the Covenantor's Group and agrees that the Covenantor and any such member are to have no liability for any resulting Tax and that it will indemnify and hold harmless the Covenantor and any such member against any such Tax. (i) Upon the Covenantor becoming aware of a Claim relevant for the purposes of SUB-CLAUSE ((A)), the Covenantor shall forthwith give written notice of that Claim to the Purchaser, and the Covenantor shall or, as the case may be, shall procure that the relevant subsidiary will (if the Purchaser shall indemnify the Covenantor and/or the relevant subsidiary to the Covenantor's reasonable satisfaction against all losses, costs, damages and expenses, including interest on overdue Tax, which may be incurred thereby) take such action and give such information and assistance in connection with the affairs of the Covenantor and/or the relevant subsidiary as the Purchaser may reasonably and promptly by written notice request to avoid, resist, appeal or compromise the Claim; PROVIDED THAT the Covenantor shall not be obliged to appeal against any Tax Assessment or to procure that any subsidiary appeals against any Tax Assessment if, the Purchaser having been given written notice of the receipt of that Tax Assessment in accordance with the preceding provisions of THIS SUB-CLAUSE, the Covenantor or the relevant subsidiary has not within 21 days thereafter received instructions in writing from the Purchaser, in accordance with the preceding provisions of THIS SUB-CLAUSE, to make that appeal. (ii) The actions which the Purchaser may reasonably request under PARAGRAPH ((i)) OF THIS SUB-CLAUSE shall include (without limitation) the Covenantor and/or the relevant subsidiary applying to postpone (so far as legally possible) the payment of any Tax and/or allowing the Purchaser to take on or take over at its own expense the conduct of all or any proceedings of whatsoever nature arising in connection with the Claim in question, and, if the Purchaser takes on or takes over the conduct of proceedings, the Covenantor shall provide and/or shall procure that the relevant subsidiary shall provide such information and assistance as the Purchaser may reasonably require in connection with the preparation for and conduct of those proceedings. (i) Where the Purchaser becomes liable to make any payment under SUB-CLAUSE ((A)), the due date for the making of that payment shall be the date that is the last date on which the Covenantor or, as the case may be, the relevant subsidiary, would have had to have paid to the appropriate Tax Authority the Tax that has given rise to the Purchaser's liability under SUB-CLAUSE ((A)) in order to avoid incurring a liability to interest or a charge or penalty in respect of that amount of Tax. (ii) If any payment required to be made by the Purchaser under sub-clause ((A)) is not made by the due date for the making thereof, then, except to the extent that the Purchaser's liability under SUB-CLAUSE ((A)) compensates the Covenantor for the late payment by virtue of its extending to interest and penalties, that payment shall carry interest from that due date until the date when the payment is actually made at the Default Rate. (i) All sums payable by the Purchaser to the Covenantor under this clause shall be paid free and clear of all deductions or withholdings whatsoever, save only as may be required by law. (ii) If any deductions or withholdings are required by law to be made from any of the sums payable as mentioned in PARAGRAPH ((i)) OF THIS SUB-CLAUSE, the Purchaser shall be obliged to pay to the Covenantor such sum as will, after the deduction or withholding has been made, leave the Covenantor with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. (iii) If any sum payable by the Purchaser to the Covenantor under this clause (other than interest under SUB-CLAUSE ((D))) shall be subject to a liability to Tax in the hands of the Covenantor, the Purchaser shall be under the same obligation to make an increased payment in relation to that liability to Tax as if the liability were a deduction or withholding required by law.

COUNTER COVENANT. (A) The Purchaser hereby covenants with the Covenantor to pay to the Covenantor an amount equal to any of the following:- (i) any liability or increased liability to Tax of the Covenantor or any of its subsidiaries which arises as a result of or by reference to any reduction or disallowance of Group Relief that would otherwise have been available to the Covenantor or its relevant subsidiary or subsidiaries where and to the extent that such reduction or disallowance occurs as a result of or by reference to:- (a) any total or partial withdrawal effected by a Group Company after Completion Completion, of its own accord or at the Purchaser's behest, of any surrender of Group Relief that was submitted by that Group Company to the Inland Revenue on or before Completion in respect of any accounting period ended on or before Completion; or (b) any total or partial disclaimer made by a Group Company after Completion Completion, of its own accord or at the Purchaser's behest, of any capital allowances available to that Group Company in respect of any accounting period ended on or before Completion save where any such withdrawal or disclaimer is made at the express written request of the Covenantor; (ii) any liability or increased liability to Tax of the Covenantor or any of its subsidiaries:- (a) which is caused by the failure of a Group Company to discharge a liability to Tax (a "Group Company Liability") which arises in respect of an accounting period beginning before Completion; or (b) which is otherwise properly attributable to Marconi (US) a Group Company (also a "GROUP COMPANY LIABILITYGroup Company Liability") other than (in either case) a Group Company Liability in respect of which the Purchaser could make a claim under CLAUSE clause 2 (Covenant); and (iii) any reasonable out-of-pocket legal and accounting or other professional costs and expenses reasonably and properly incurred by the Covenantor or any of its subsidiaries in connection with any such liability or increased liability to Tax (or Claim therefor) or in taking any action under THIS CLAUSE. (B) The Purchaser hereby covenants that it will not cause or permit Marconi (US) or any affiliate of the Purchaser to make or change any Tax election, take any position on any Tax return, adjust the Tax basis of any asset, settle any Tax dispute or otherwise take any action that results in any increased liability to Tax or reduction of any Tax Asset of the Covenantor or any member of the Covenantor's Group and agrees that the Covenantor and any such member are to have no liability for any resulting Tax and that it will indemnify and hold harmless the Covenantor and any such member against any such Taxthis clause. (i) Upon the Covenantor becoming aware of a Claim relevant for the purposes of SUBsub-CLAUSE (clause (A)), the Covenantor shall forthwith give written notice of that Claim to the Purchaser, and the Covenantor shall or, as the case may be, shall procure that the relevant subsidiary will (if the Purchaser shall indemnify the Covenantor and/or the relevant subsidiary to the Covenantor's reasonable satisfaction against all losses, costs, damages and expenses, including interest on overdue Tax, which may be incurred thereby) take such action and give such information and assistance in connection with the affairs of the Covenantor and/or the relevant subsidiary as the Purchaser may reasonably and promptly by written notice request to avoid, resist, appeal or compromise the Claim; PROVIDED THAT the Covenantor shall not be obliged to appeal against any Tax Assessment or to procure that any subsidiary appeals against any Tax Assessment if, the Purchaser having been given written notice of the receipt of that Tax Assessment in accordance with the preceding provisions of THIS SUBthis sub-CLAUSEclause, the Covenantor or the relevant subsidiary has not within 21 days thereafter received instructions in writing from the Purchaser, in accordance with the preceding provisions of THIS SUBthis sub-CLAUSEclause, to make that appeal. (ii) The actions which the Purchaser may reasonably request under PARAGRAPH (paragraph (i)) OF THIS SUBof this sub-CLAUSE clause shall include (without limitation) the Covenantor and/or the relevant subsidiary applying to postpone (so far as legally possible) the payment of any Tax and/or allowing the Purchaser to take on or take over at its own expense the conduct of all or any proceedings of whatsoever nature arising in connection with the Claim in question, and, if the Purchaser takes on or takes over the conduct of proceedings, the Covenantor shall provide and/or shall procure that the relevant subsidiary shall provide such information and assistance as the Purchaser may reasonably require in connection with the preparation for and conduct of those proceedings. (i) Where the Purchaser becomes liable to make any payment under SUBsub-CLAUSE (clause (A)), the due date for the making of that payment shall be the date that is the last date on which the Covenantor or, as the case may be, the relevant subsidiary, would have had to have paid to the appropriate Tax Authority the Tax that has given rise to the Purchaser's liability under SUBsub-CLAUSE (clause (A)) in order to avoid incurring a liability to interest or a charge or penalty in respect of that amount of Tax. (ii) If any payment required to be made by the Purchaser under sub-clause ((A)) is not made by the due date for the making thereof, then, except to the extent that the Purchaser's liability under SUBsub-CLAUSE (clause (A)) compensates the Covenantor for the late payment by virtue of its extending to interest and penalties, that payment shall carry interest from that due date until the date when the payment is actually made at the Default Raterate of 2 per cent. above the base rate from time to time of National Westminster Bank plc. (i) All sums payable by the Purchaser to the Covenantor under this clause shall be paid free and clear of all deductions or withholdings whatsoever, save only as may be required by law. (ii) If any deductions or withholdings are required by law to be made from any of the sums payable as mentioned in PARAGRAPH (paragraph (i)) OF THIS SUBof this sub-CLAUSEclause, the Purchaser shall be obliged to pay to the Covenantor such sum as will, after the deduction or withholding has been made, leave the Covenantor with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. (iii) If any sum payable by the Purchaser to the Covenantor under this clause (other than interest under SUBsub-CLAUSE clause ((D)C)) shall be subject to a liability to Tax in the hands of the Covenantor, the Purchaser shall be under the same obligation to make an increased payment in relation to that liability to Tax as if the liability were a deduction or withholding required by law.

COUNTER COVENANT. (A) 13.1 The Purchaser hereby covenants with the Covenantor to pay to the Covenantor an amount equal to any of the following:- (iA) any liability or increased liability to Tax of the Covenantor or any other member of its subsidiaries the Covenantor’s Group which arises as a result of or by reference to any reduction or disallowance of Group Relief validly surrendered by the Company that would otherwise have been available to the Covenantor or its relevant subsidiary or subsidiaries other member of the Covenantor’s Group where and to the extent that such reduction or disallowance occurs as a result of or by reference to:- (ai) any total or partial withdrawal effected by a Group the Company after Completion of any surrender of Group Relief that was submitted by that Group Company to the Inland Revenue on or before Completion in respect of any accounting period ended on or before Completion; orvalidly made; (bii) any total or partial disclaimer made by a Group the Company after Completion of any capital allowances available to that Group the Company in respect of the Straddle Period or any prior accounting period ended on or before Completion period; or (iii) any breach by the Purchaser of its obligations under Clause 9 (TAX RETURNS) save where any such withdrawal or disclaimer as is referred to in sub-paragraphs (i) and (ii) above is made at the express written request request, or with the express written approval, of the Covenantor; (iiB) any liability or increased liability to Tax of the Covenantor or any member of its subsidiaries:-the Covenantor’s Group which arises as a result of or by reference to the making or giving or the amendment by the Purchaser or the Company at any time after Completion of any election, claim, surrender, disclaimer, notice, consent, or any Tax return, in each case, validly made, given or completed and relating wholly or partly to the Straddle Period or any prior accounting period, save where any such action is made at the express written request, or with the express written approval, of the Covenantor; (aC) which is caused by the failure liability of any member of the Covenantor’s Group to make a Group Company to discharge a liability to Tax payment of VAT (a "Group Company Liability"including, without limitation, interest and penalties) which arises as a result of the Company being in respect a group for the purposes of an accounting period beginning before any VAT with a member of the Covenantor’s Group after Completion; or; (b) which is otherwise properly attributable to Marconi (US) (also a "GROUP COMPANY LIABILITY") other than (in either case) a Group Company Liability in respect of which the Purchaser could make a claim under CLAUSE 2 (Covenant); and (iiiD) any reasonable out-of-pocket legal and accounting or other professional costs and expenses reasonably and properly incurred by the Covenantor or any of its subsidiaries in connection with any such liability or increased liability to Tax (or Claim therefor) or in taking any action under THIS CLAUSE. (B) The Purchaser hereby covenants that it will not cause or permit Marconi (US) or any affiliate of the Purchaser to make or change any Tax election, take any position on any Tax return, adjust the Tax basis of any asset, settle any Tax dispute or otherwise take any action that results in any increased liability to Tax or reduction of any Tax Asset of the Covenantor or any member of the Covenantor's ’s Group and agrees that which arises as a consequence of or by reference to any of the Covenantor and following occurring or being deemed to occur at any such member are to have no liability for any resulting Tax and that it will indemnify and hold harmless the Covenantor and any such member against any such Tax.time after Completion:- (i) Upon the Covenantor becoming aware disposal by any Relevant Company of any asset or of any interest in or right over any asset; (ii) the making by any Relevant Company of any such payment or deemed payment as constitutes a Claim relevant chargeable payment for the purposes of SUB-CLAUSE section 214 ICTA; (iii) any Relevant Company ceasing to be resident in the United Kingdom for the purposes of any Tax; or (Aiv) the effecting by any Relevant Company of any such payment or transfer of assets as constitutes the receipt by another person of an abnormal amount by way of dividend (as defined in section 709 ICTA)), ; or (v) any Relevant Company failing to pay the Covenantor shall forthwith give written notice of that Claim to the Purchaser, and the Covenantor shall or, as the case may be, shall procure that the relevant subsidiary will (if the Purchaser shall indemnify the Covenantor and/or the relevant subsidiary to the Covenantor's reasonable satisfaction against all losses, costs, damages and expenses, including interest on overdue Tax, which may be incurred thereby) take such action and give such information and assistance in connection with the affairs whole of the Covenantor and/or the relevant subsidiary as the Purchaser may reasonably and promptly Tax charged by written notice request to avoid, resist, appeal or compromise the Claim; PROVIDED THAT the Covenantor shall not be obliged to appeal against any Tax Assessment or to procure that any subsidiary appeals against any Tax Assessment if, the Purchaser having been given written notice of the receipt of that Tax Assessment in accordance with the preceding provisions of THIS SUB-CLAUSE, the Covenantor or the relevant subsidiary has not within 21 days thereafter received instructions in writing from the Purchaser, in accordance with the preceding provisions of THIS SUB-CLAUSE, to make that appeal. (ii) The actions which the Purchaser may reasonably request under PARAGRAPH ((i)) OF THIS SUB-CLAUSE shall include (without limitation) the Covenantor and/or the relevant subsidiary applying to postpone (so far as legally possible) the payment of any Tax and/or allowing the Purchaser to take on or take over at its own expense the conduct of all or any proceedings of whatsoever nature arising in connection with the Claim in question, and, if the Purchaser takes on or takes over the conduct of proceedings, the Covenantor shall provide and/or shall procure that the relevant subsidiary shall provide such information and assistance as the Purchaser may reasonably require in connection with the preparation for and conduct of those proceedings. (i) Where the Purchaser becomes liable to make any payment under SUB-CLAUSE ((A)), the due date for the making of that payment shall be the date that is the last date on which the Covenantor or, as the case may be, the relevant subsidiary, would have had to have paid to the appropriate Tax Authority the Tax that has given rise to the Purchaser's liability under SUB-CLAUSE ((A)) in order to avoid incurring a liability to interest or a charge or penalty made in respect of that amount of Tax. Relevant Company where (ii) If any payment required to be made by the Purchaser under sub-clause ((A)) is not made by the due date for the making thereof, then, except and to the extent that) the liability for that Tax arises in circumstances such that the Purchaser's liability under SUB-CLAUSE ((A)) compensates the Covenantor for the late payment by virtue of its extending to interest and penalties, that payment shall carry interest from that due date until the date when the payment is actually made at the Default Rate. (i) All sums payable by the Purchaser to the Covenantor under this clause shall be paid free and clear of all deductions or withholdings whatsoever, save only as may be required by law. (ii) If any deductions or withholdings are required by law to be made from any of the sums payable as mentioned in PARAGRAPH ((i)) OF THIS SUB-CLAUSE, the Purchaser shall be obliged to pay to the Covenantor such sum as will, after the deduction or withholding has been made, leave the Covenantor with the same amount as it would not have been entitled to receive in the absence of any such requirement to make a deduction or withholding. (iii) If any sum payable by the Purchaser to claim against the Covenantor under Clause 2 (COVENANT) of this clause (other than interest under SUB-CLAUSE ((D))) shall be subject to a liability to deed in respect of that Tax in had it been paid by the hands of the Covenantor, the Purchaser shall be under the same obligation to make an increased payment in relation to that liability to Tax as if the liability were a deduction or withholding required by law.Relevant Company,