Common use of Locked Box Clause in Contracts

Locked Box. 5.1 Each of the Sellers severally warrants in respect of itself only to the Buyer that, save for Permitted Leakage between the Locked Box Date and the Completion Date: (a) no Group Company has declared, made or paid any dividend or distribution to that Seller or any of its Affiliates; (b) no Group Company has made any repayment of principal on any debt or payment of any interest on or other payment in relation to any debt obligation to that Seller or any of its Affiliates; (c) no Group Company has made any payments, including bonuses or fees (including consulting fees, monitoring fees, directors' fees, licence fees or royalties), charges or compensation to, or granted future benefits to, or transferred assets to, or assumed, indemnified or incurred liabilities for the benefit of that Seller or any of its Affiliates; (d) no Group Company has made or agreed to make any payments to that Seller or any of its Affiliates in respect of any share capital or other securities of any Group Company being issued, redeemed, purchased or repaid, or any other return of capital; (e) no management charge or fee of any nature whatsoever has been paid to that Seller or any of its Affiliates by any of the Group Companies and there has been no payment of any management charge, consulting, service or other fee or compensation by any of the Group Companies to that Seller or any of its Affiliates; (f) no Group Company has forgiven or waived any amount owed to it by that Seller or any of its Affiliates; and (g) it has not made or entered into any agreement or arrangement (whether conditional or not) or agreed to pay any fees, costs, expenses, Taxation or other amounts relating to any of the matters referred to in this clause 5.1(a) to 5.1(f). 5.2 In the event of any breach by any Seller of any of the warranties in sub-clauses 5.1(a) to 5.1(g), inclusive (including for the avoidance of doubt, any breach after the Completion Date to the extent that it results from an action, omission or agreement made prior to Completion), in relation to that Seller or its Affiliates, that Seller shall pay to the Buyer on demand an amount in cash equal to the amount of any payment or other financial benefit received by it or its Affiliates from the relevant Group Company as a result of such breach. 5.3 No Locked Box Claim may be made against a Seller unless notice of such Locked Box Claim, complying with the provisions of paragraph 3.2 of Schedule 7, is served on that Seller in writing as soon as reasonably practicable after the Buyer becomes aware that it is reasonably likely to have a Locked Box Claim and, in any event, within six months following the Completion Date.

Appears in 2 contracts

Samples: Share Sale and Purchase Agreement, Share Sale and Purchase Agreement (Jones Group Inc)

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Locked Box. 5.1 4.1 Each of the Sellers warrants severally warrants and in respect of itself only to the Buyer that, save except for Permitted Leakage between Leakage, during the period from and excluding the Locked Box Date up to and the Completion Dateincluding Completion: (a) no Group Company none of the Companies has declared, authorised, paid or made to or paid any dividend or distribution to that Seller or any of its Affiliates; (b) no Group Company has made any repayment of principal on any debt or payment of any interest on or other payment in relation to any debt obligation to that Seller or any of its Affiliates; (c) no Group Company has made any payments, including bonuses or fees (including consulting fees, monitoring fees, directors' fees, licence fees or royalties), charges or compensation to, or granted future benefits to, or transferred assets to, or assumed, indemnified or incurred liabilities for the benefit of that Seller or any Connected Person of its Affiliatesthat Seller any dividend, distribution or return of capital; (b) none of the Companies has transferred or surrendered any asset to, or granted any Encumbrance over any asset in favour or for the benefit of, or assumed, indemnified or incurred any obligation or liability for the benefit of, that Seller or any Connected Person of that Seller; (c) none of the Companies has waived, released or forgiven in favour of that Seller or any Connected Person of that Seller any sum or obligation due by that Seller or any Connected Person of that Seller to any of the Companies and neither that Seller nor any Connected Person of that Seller has failed to pay when due any sum due to any of the Companies; (d) no Group Company has made or agreed to make any payments to that Seller or any of its Affiliates in respect of any share capital or other securities of any Group Company being issuedpayment, redeemed, purchased or repaid, or any other return of capital; (e) no management charge or fee of any nature whatsoever has been paid to levied by, or for the benefit of, that Seller or any Connected Person of its Affiliates by that Seller against any of the Group Companies and there has been no payment of any nature including any payment of any management charge, consultingfee, service fee or other similar fee or compensation by any of the Group Companies to to, or for the benefit of, that Seller or any Connected Person of its Affiliatesthat Seller; (e) no liabilities have been paid or incurred by any of the Companies in respect of the transactions contemplated by this Agreement, including any finders’ fees, bonuses, brokerages or other commissions, or any advisers’ fees, costs or expenses; (f) no Group Company none of the Companies has forgiven or waived made any amount owed to it by repayment of principal on any of the Loan Notes for the benefit of that Seller or any Connected Person of its Affiliatesthat Seller; and (g) it neither that Seller nor any Connected Person of that Seller has not made or entered into any agreement or arrangement (whether conditional or not) or agreed to pay any fees, costs, expenses, Taxation or other amounts relating give effect to any of the matters referred to in this clause 5.1(aclauses 4.1(a) to 5.1(f4.1(f). 5.2 4.2 The occurrence of any of the events set out in clause 4.1 at or before Completion but after the Locked Box Date will constitute an incident of “Leakage”. 4.3 In the event of any breach by any Seller of any of the warranties in sub-clauses 5.1(a4.1(a) to 5.1(g4.1(g) (inclusive), inclusive (including for the avoidance of doubt, any breach after the Completion Date to the extent that it results from an action, omission or agreement made prior to Completion), in relation to that Seller or its Affiliates, that each Seller shall pay to the Buyer on demand within 10 Business Days of receipt of a written notice from the Buyer setting out in reasonable detail the nature of the Leakage an amount in cash equal to the aggregate of: (a) the amount of any payment or other financial benefit Leakage actually received by it that Seller or its Affiliates any Connected Person of that Seller from the relevant Group Company as a result of such breach; and (b) all Taxation (excluding recoverable VAT) incurred and payable (whether or not such Taxation actually falls due for payment during the six-month period referred to in clause 4.5 and after taking into account any Sellers’ Relief available in respect of the matter giving rise to the Leakage and, to the extent that the Leakage gives rise to a Relief which reduces a liability to Tax of a relevant Company, taking into account such Relief) by any of the Companies in connection with such Leakage, provided that, to the extent that Leakage falling within clauses 4.1(b), (c) or (e) is not directly received by a Seller or a Connected Person of that Seller, such Leakage shall for the purposes of this Agreement be deemed to have been “received” by (a) by the Seller or Connected Person to whom it is referable (provided that if more than one Seller shall be deemed to have received such Leakage, that Seller shall only be liable for the amount referable to him or his Connected Persons) or (b) if it is not possible to determine to whom such Leakage was referable, by each Seller on a pro rata basis by reference to that Seller’s holding of Shares compared to the aggregate number of Shares held by (or on behalf of) all Sellers. 5.3 4.4 The maximum liability of each Seller in respect of a Locked Box Claim shall not exceed (i) the amount of Leakage giving rise to such claim actually received by it and its Connected Persons and (ii) any amount due under clause 4.3(b). For the avoidance of doubt, in the event that an individual Seller does not satisfy a Locked Box Claim made against him, the Buyer shall not be entitled to bring a Locked Box Claim against any of the other Sellers in respect of such non-satisfaction. 4.5 No Locked Box Claim may be made against a Seller any of the Sellers unless notice of such the Locked Box Claim, complying with specifying in reasonable detail the provisions specific matter in respect of paragraph 3.2 which the Locked Box Claim is made and an indication of Schedule 7the amount claimed, is served on that Seller in writing as soon as reasonably practicable after the Buyer becomes aware that it is reasonably likely of the circumstances giving rise to have a the Locked Box Claim and, in any event, within six months following of the date of Completion, provided always that the liability of that Seller shall cease absolutely unless within six months of service of such notice legal proceedings in respect of such Locked Box Claim have been properly issued and validly served on the relevant Seller. 4.6 The Buyer shall not be entitled to recover from the Sellers more than once for the same damage suffered (whether under this clause 4 or any other provision of this Agreement). 4.7 If Completion Datedoes not occur, the Sellers shall have no liability to the Buyer under any of clauses 4 and 6. 4.8 Nothing in this clause 4 shall have the effect of limiting, restricting or excluding the liability of a Seller in respect of a Locked Box Claim arising as a result of that Seller’s own fraud, but the fraud of that Seller shall not prevent any other Seller who was not a party to that fraud from benefiting from any such limitation, restriction or exclusion to the maximum extent permitted by law.

Appears in 2 contracts

Samples: Share Sale and Purchase Agreement, Share Sale and Purchase Agreement (Encore Capital Group Inc)

Locked Box. 5.1 4.1 Each of the Sellers severally warrants in respect of itself only undertakes to the Buyer that, save for Permitted Leakage between Purchaser as at Completion that since the Locked Box Date and the Completion Date(all dates inclusive) other than any Permitted Payment: (a) 4.1.1 no management charge or fee has been levied by that Seller or any of its Seller Parties against any Group Company has declaredand there have been no payments of any management, made service or paid other fees or compensation from any dividend or distribution Group Company to that Seller or any of its AffiliatesSeller Parties; 4.1.2 no bonus has been declared or awarded (bunpaid or paid) no by any Group Company has made any repayment of principal on any debt or payment of any interest on or other payment in relation to any debt obligation to that Seller or any of its AffiliatesSeller Parties or any of their respective employees; (c) 4.1.3 no share or loan capital of any Group Company held by that Seller or any of its Seller Parties has made any paymentsbeen redeemed, including bonuses purchased or fees (including consulting fees, monitoring fees, directors' fees, licence fees repaid; 4.1.4 no assets of the Group have been transferred or royalties), charges or compensation surrendered to, or granted future benefits to, any liabilities of that Seller or transferred assets to, or any of its Seller Parties assumed, indemnified or incurred liabilities by, a Group Company for the benefit of that Seller or any of its AffiliatesSeller Parties; (d) 4.1.5 no Group Company has made liabilities or agreed to make any payments to obligations of that Seller or any of its Affiliates Seller Parties in respect favour of a Group Company have been waived (wholly or partially); 4.1.6 no dividend or distribution of profits or assets (including any share capital distribution as defined in Part 23 of the Corporation Tax Act 2010) has been paid or other securities of declared or made by any Group Company being issued, redeemed, purchased to or repaid, or any other return in favour of capital; (e) no management charge or fee of any nature whatsoever has been paid to that Seller or any of its Affiliates by any of the Group Companies and there has been Seller Parties; 4.1.7 no payment of any management charge, consulting, service or other fee or compensation by any of the Group Companies to transactions have taken place between that Seller or any of its AffiliatesSeller Parties and any Group Company at an undervalue; (f) 4.1.8 no Group Company has forgiven further obligations or waived any amount owed to it by liabilities towards that Seller or any of its AffiliatesSeller Parties have been agreed to or assumed by any Group Company outside the ordinary course of trading of the Business; and (g) it 4.1.9 none of that Seller or any of its Seller Parties has not made or entered into any agreement or arrangement (whether conditional or not) or agreed to pay any fees, costs, expenses, Taxation or other amounts relating to any of the matters referred to in this clause 5.1(a) to 5.1(f4.1 (other than Permitted Payments). 5.2 In 4.2 Each Seller severally covenants to pay to the event Purchaser, in respect of such of those benefits (if any) referred to at clauses 4.1.1 to 4.1.9 above which are received by that Seller (or his/its Seller Party) only, an amount equal to: 4.2.1 the amount of any breach by any Seller payment made; 4.2.2 the value of any asset transferred or surrendered or any liability assumed, indemnified or incurred; 4.2.3 the value of any liability or obligation waived; 4.2.4 the warranties undervalue element of any transaction at an undervalue; or 4.2.5 the amount of any liability incurred. 4.3 All sums payable under this clause 4 and/or clauses 6, 8 and 9 shall be paid in subcash without set-clauses 5.1(a) to 5.1(g), inclusive off and free and clear of all deductions or withholdings (including for Tax) unless the avoidance of doubt, deduction or withholding is required by law. If any breach after the Completion Date deduction or withholding is required by law to the extent that it results be made from an action, omission or agreement made prior to Completion), in relation to that Seller or its Affiliatesany such payment by a Seller, that Seller shall pay to the Buyer on demand an Purchaser such additional amount or amounts as will in cash equal aggregate be sufficient to ensure that after all required deductions and withholdings have been made from the amounts paid there shall be left in the hands of the Purchaser the amount of any payment or other financial benefit received by it or its Affiliates which the Purchaser would have been entitled to receive from the relevant Group Company as a result of such breach. 5.3 No Locked Box Claim may be made against a Seller unless notice of such Locked Box Claim, complying with the provisions of paragraph 3.2 of Schedule 7, is served on that Seller in writing as soon as reasonably practicable after the Buyer becomes aware that it is reasonably likely absence of any requirement to have make a Locked Box Claim anddeduction or withholding. 4.4 For the avoidance of doubt, the limitations on the Sellers’ liability set out in clause 6, clause 7 and Part 6 of the Schedule shall not apply to any event, within six months following the Completion Dateclaim under this clause 4.

Appears in 2 contracts

Samples: Share Purchase Agreement, Share Purchase Agreement (RigNet, Inc.)

Locked Box. 5.1 4.1 Each of the Sellers Seller severally warrants and in respect of itself only only, warrants and undertakes to the Buyer that, save for Permitted Leakage between Purchaser that in the Locked Box period commencing on the day immediately following the Signing Date up to and including the Completion Date, save to the extent that the same would constitute Permitted Leakage: (a) no Group Company dividend or other distribution of profits or assets (including any distribution as defined in Part IV of the Taxes Act and extended by section 418 of the Taxes Act) has been or will be declared, made by the Company or would be treated as having been paid any dividend or distribution made by the Company to that or for the benefit of a Seller or any of its Affiliatesperson connected with either Seller (a “Seller’s Affiliate”); (b) no Group payments have been or will be made by or on behalf of the Company has made any repayment to or for the benefit of principal on any debt or payment of any interest on or other payment in relation to any debt obligation to that a Seller or any of its Affiliatesa Seller’s Affiliate; (c) no Group share or loan capital of the Company has made any paymentsbeen or will be redeemed, including bonuses repurchased or fees (including consulting fees, monitoring fees, directors' fees, licence fees repaid or royalties), charges result in a payment to or compensation to, an agreement or granted future benefits to, or transferred assets to, or assumed, indemnified or incurred liabilities for the benefit of that obligation to make a payment to a Seller or any of its Affiliatesa Seller’s Affiliate; (d) no Group amounts owed to the Company has made or agreed to make any payments to that by a Seller or any of its Affiliates in respect of any share capital Seller’s Affiliate have been or other securities of any Group Company being issued, redeemed, purchased or repaid, or any other return of capitalwill be waived; (e) no management charge assets, rights or fee of any nature whatsoever has other benefits have been paid or will be transferred by the Company to that a Seller or any of its Affiliates by any of the Group Companies and there has been no payment of any management charge, consulting, service or other fee or compensation by any of the Group Companies to that Seller or any of its Affiliatesa Seller’s Affiliate; (f) no Group indebtedness or other liabilities have been or will be assumed or incurred, guaranteed or indemnified by the Company for the benefit of a Seller or a Seller’s Affiliate; (g) no Encumbrance has been created over any of the assets of the Company in favour of or for the benefit of a Seller or a Seller’s Affiliate; (h) no management, service, monitoring or other shareholder or directors’ fees or bonuses or payments of a similar nature have been or will be paid by or on behalf of the Company to or for the benefit of a Seller or a Seller’s Affiliate; (i) no costs or expenses of a Seller or Seller’s Affiliate relating to the sale of the Shares (to any person), or to the other transactions contemplated by this agreement (including any professional advisers’ fees and any transaction or sale bonuses or other payments payable as a result of the completion of the sale of the Shares (to any person)), have been or will be paid or incurred, by or on behalf of the Company to or on behalf of a Seller or a Seller’s Affiliate; (j) the Company has forgiven not has amended, nor will it amend the terms of its borrowing or waived any amount indebtedness in the nature of borrowing owed by it to it by that a Seller or a Seller’s Affiliate to the benefit of a Seller or a Seller’s Affiliate; (k) the Company has not entered into or amended the terms of any arrangement or agreement with any Sellers’ Affiliate, otherwise than, in each case, on arm’s length terms; (l) no agreements, understandings or arrangements have been or will be entered into whereby the person directly benefiting from any of its Affiliatesthe matters referred to in paragraphs (a) to (k) confers (directly or indirectly) a benefit on a Seller or a Seller’s Affiliate; and (gm) it no Seller or Seller’s Affiliate has not made or entered into any agreement or binding arrangement (whether conditional or not) or agreed to pay any fees, costs, expenses, Taxation or other amounts relating give effect to any of the matters referred to in this clause 5.1(aparagraphs (a) to 5.1(f)(k) above. 5.2 4.2 Each Seller shall notify the Purchaser in writing without delay if it becomes aware of a payment or transaction which constitutes or which might constitute a breach of clause 4.1. 4.3 In the event of any breach by of clause 4.1, each Seller severally undertakes (in respect of itself and any Seller of its Seller’s Affiliates only and not in respect of any other Seller or their respective Seller’s Affiliates) by the Purchaser to pay to the Purchaser (the Purchaser acting for itself and as agent and trustee for each member of the warranties in sub-clauses 5.1(aPurchaser’s Group), an amount equal (on a pound for pound basis) to 5.1(g), inclusive (including for the avoidance of doubt, any breach after the Completion Date to the extent that it results from an action, omission amount or agreement made prior to Completion), in relation to benefit received by that Seller or its Affiliates, that Seller respective Seller’s Affiliates and shall pay take such action as may be necessary to put the Buyer on demand an amount Purchaser or any Member of its Group in cash equal to the amount same position as if the breach had not occurred (including payment of any payment Tax paid in connection with such breach), whether before or other financial benefit received by it after the start of an action arising (directly or its Affiliates from the relevant Group Company as a result indirectly) out of such breach. 5.3 No Locked Box Claim 4.4 In the event of any breach of clause 4.1 prior to Completion, each Seller agrees that the Purchaser may be made set off any liability of such Seller to the Purchaser under clause 4.3, against the obligation of the Purchaser to pay the Consideration payable to that Seller under clause 3, to the extent that such liability is Settled (as defined in clause 4.2 of the Escrow Agreement) in favour of the Purchaser. 4.5 The liability of a Seller unless notice of such Locked Box Claimunder this clause 4 shall not be limited, complying with the provisions of paragraph 3.2 of Schedule 7, is served on that Seller in writing as soon as reasonably practicable after the Buyer becomes aware that it is reasonably likely to have a Locked Box Claim and, restricted or excluded in any event, within six months following the Completion Daterespect by any other provision of this agreement.

Appears in 2 contracts

Samples: Share Purchase Agreement, Share Purchase Agreement (Bottomline Technologies Inc /De/)

Locked Box. 5.1 4.1 Each of the Sellers severally warrants Seller undertakes (in respect of itself payments made to him or benefit conferred on him and persons Connected with him only and not in respect of any payments made to or benefit conferred on any other Seller or persons Connected with them) to the Buyer that, save for Permitted Leakage between that from (and excluding) the Locked Box Date to (and including) the Completion Date, other than any Permitted Leakage: (a) there has been no payment of any management, service or other fees or compensation or transaction bonuses from any Group Company has declared, made or paid any dividend or distribution to that Seller or any of its Affiliatesto persons Connected with him; (b) no share or loan capital of any Group Company has made any repayment of principal on any debt (or payment of any interest on or other payment in relation to any debt obligation thereon) has been issued to that Seller or to any person Connected with that Seller or redeemed, purchased or repaid by such Group Company for the benefit of its Affiliatesthat Seller or for the benefit of any person Connected with that Seller; (c) the only payments received by that Seller or by a person Connected with that Seller from any Group Company have been payments in respect of Permitted Leakages; (d) no dividend or distribution of profits, capital or assets, or any bonus or other payment of any nature has been paid or declared or made by any Group Company to or in favour of that Seller; (e) no Group Company has made waived, deferred or released or agreed to waive, defer or release (whether conditional or not) any paymentsamount. liability or obligation owed to that Group Company by that Seller or by a person Connected with that Seller; (f) no liabilities have been assumed or incurred (or any indemnity or guarantee given in respect thereof) by any Group Company in favour of or on behalf of that Seller or by a person Connected with that Seller; (g) no Encumbrance has been created over the assets of any Group Company in favour of or on behalf of that Seller or by a person Connected with that Seller; (h) no costs or expenses of that Seller or any person Connected with that Seller which relate either to the sale of the Sale Shares (to any person) or to the other transactions contemplated by this agreement (and any document required to be executed or delivered at Completion) have been paid or incurred (whether by way of repayment of any debt or otherwise) or have been agreed to be paid or incurred, including bonuses by any Group Company; (i) no assets have been transferred to or fees (including consulting fees, monitoring fees, directors' fees, licence fees or royalties), charges or compensation to, or granted future benefits to, or transferred assets to, or liabilities assumed, indemnified or incurred liabilities by any Group Member in favour or for the benefit of that Seller or any of its Affiliates; (d) no Group Company has made or agreed to make any payments to person Connected with that Seller or any of its Affiliates in respect of any share capital or other securities of any Group Company being issued, redeemed, purchased or repaid, or any other return of capital; (e) no management charge or fee of any nature whatsoever has been paid to that Seller or any of its Affiliates by any of the Group Companies and there has been no payment of any management charge, consulting, service or other fee or compensation by any of the Group Companies to that Seller or any of its Affiliates; (f) no Group Company has forgiven or waived any amount owed to it by that Seller or any of its AffiliatesSeller; and (gj) it the relevant Seller has not made or entered into any agreement or arrangement (whether conditional or not) or agreed to pay any fees, costs, expenses, Taxation or other amounts relating to any of the matters referred to in this clause 5.1(a4.1. 4.2 Each Seller undertakes (in respect of himself and persons Connected with him only and not in respect of any other Seller or persons Connected with them) to 5.1(f).the Buyer to notify the Buyer in writing promptly after becoming aware of any receipt by that Seller or by a person Connected with that Seller of any payments or benefits conferred or circumstances which could constitute a breach by him of the undertakings in clause 4.1 5.2 4.3 In the event of any breach of clause 4.1, the relevant Seller shall, on demand by the Buyer at any time between Completion and the date falling 9 months following Completion, pay to the Buyer (the Buyer acting for itself and as agent and trustee for each Group Company) an amount equal (on a pound for pound basis) to the payment, benefit or other item received by the Seller or by the person Connected with that Seller in breach of clause 4.1. Any such payments shall, to the extent possible, be deemed to give rise to a corresponding reduction in the consideration received by that Seller for the Sale Shares sold by that Seller. The Buyer shall have no remedy for a breach of any of the warranties undertakings set out in subclause 4.1 save for this clause 4.3 including without limitation in respect of any demand served after a 9 month period following Completion (save in the event of fraud, wilful misstatement, wilful non-clauses 5.1(a) to 5.1(g), inclusive (including for disclosure or dishonesty by the avoidance of doubt, any breach after the Completion Date to the extent that it results from an action, omission or agreement made prior to Completion), in relation to that relevant Seller or its Affiliates, that Seller shall pay to the Buyer on demand an amount in cash equal to the amount of any payment or other financial benefit received by it or its Affiliates from the relevant Group Company as a result of such breachperson Connected with him). 5.3 No Locked Box Claim may 4.4 The liability of each Seller under this clause 4 shall not be made against a Seller unless notice of such Locked Box Claim, complying with limited or qualified in any respect by the provisions of paragraph 3.2 clause 6. 4.5 Notwithstanding any provision to the contrary contained in this agreement, the Sellers shall not be deemed to be Connected with any Group Companies or any other Seller (with the exception, in the case of Schedule 7the Warrantors, is served on that Seller in writing as soon as reasonably practicable after of their spouses) for the Buyer becomes aware that it is reasonably likely to have a purpose of the Locked Box Claim and, arrangements set out in any event, within six months following the Completion Datethis clause 4.

Appears in 1 contract

Samples: Sale and Purchase Agreement (Global Eagle Entertainment Inc.)

Locked Box. 5.1 8.1 Each of the Sellers severally warrants Seller (in respect of itself only and not in respect of any other Seller) other than the Warrantholders severally covenants and undertakes to the Buyer that, save for Permitted Leakage between that in the period from (and excluding) the Locked Box Date up to (and including) the Completion DateDate (the “Locked Box Period”), apart from any Permitted Leakages, no payments, distributions, contributions or gifts have been made (and no agreement has been entered into to make any payments, distributions, contributions or gifts) by any Group Company to any Seller or the officers, employees, agents and advisers of any Seller or any of its Affiliates and without prejudice to the generality of the foregoing: 8.1.1 no dividend or other distribution of profits or assets (aincluding any distribution as defined in Part IV of the Taxes Act and extended by section 418 of the Taxes Act) no has been or will be declared, paid or made by the Company or would be treated as having been paid or made by the Company to or for the benefit of that Seller whether in its capacity as shareholder or director; 8.1.2 the only payments to that Seller by a Group Company are in respect of Permitted Leakages and are listed in Schedule 4; 8.1.3 no share or loan capital of the Company has declaredbeen created, made issued redeemed, repurchased or paid repaid, or, in respect of any dividend Group Company, issued or distribution repaid to or redeemed or purchased from that Seller or its Affiliates; 8.1.4 no amounts owed to a Group Company by that Seller have been waived or forgiven; 8.1.5 no liabilities have been assumed or incurred (or any indemnity given in respect thereof) by a Group Company for the benefit of that Seller; 8.1.6 no new Encumbrance has been created over any of the assets of any Group Company in favour of that Seller; 8.1.7 no management charge or fee has been levied by that Seller against any Group Company and there has been no payment of any management, service or other fees or compensation from any Group Company to that Seller or any of its Affiliates; (b) 8.1.8 no payment has been made, or liability incurred, by the Group Company has made any repayment in respect of principal on any debt or payment of any interest on or other payment in relation to any debt obligation to Transaction Costs; and 8.1.9 that Seller has not agreed or committed and will not agree or commit to do any of its Affiliates;the things set out in clauses 8.1.1 to 8.1.8 (inclusive) above. 8.2 Each Seller (c) no Group Company has made any payments, including bonuses or fees (including consulting fees, monitoring fees, directors' fees, licence fees or royalties), charges or compensation to, or granted future benefits to, or transferred assets to, or assumed, indemnified or incurred liabilities for the benefit in respect of that Seller or any of its Affiliates; (d) no Group Company has made or agreed to make any payments to that Seller or any of its Affiliates itself only and not in respect of any share capital other Seller) shall notify the Buyer in writing if it becomes aware of a payment or other securities transaction which constitutes or will constitute if made a breach of any Group Company being issued, redeemed, purchased or repaid, or any other return of capital; (e) no management charge or fee of any nature whatsoever has been paid to that Seller or any of its Affiliates by any of the Group Companies and there has been no payment of any management charge, consulting, service or other fee or compensation by any of the Group Companies to that Seller or any of its Affiliates; (f) no Group Company has forgiven or waived any amount owed to it by that Seller or any of its Affiliates; and (g) it has not made or entered into any agreement or arrangement (whether conditional or not) or agreed to pay any fees, costs, expenses, Taxation or other amounts relating to any of the matters referred to in this clause 5.1(a) to 5.1(f)8.1. 5.2 In 8.3 Subject to clause 8.4 in the event of any breach by any of clause 8.1, each Seller shall (in respect of itself only and not in respect of any of other Seller) on demand by the warranties in sub-clauses 5.1(a) to 5.1(g), inclusive (including for the avoidance of doubt, any breach after the Completion Date to the extent that it results from an action, omission or agreement made prior to Completion), in relation to that Seller or its Affiliates, that Seller shall Buyer pay to the Buyer the amount (the Buyer acting for itself and as agent and trustee for each Buyer’s Group Undertaking) on demand an amount in cash a £ for £ basis, as a reduction of the Total Consideration, equal to the amount of any payment or other financial benefit received by it or its Affiliates from the relevant Group Company as a result that Seller in respect of such breach, such reduction being deducted firstly from that Seller’s Share Consideration and secondly from that Seller’s Investor Loan Note Consideration or Management Loan Note Redemption Amount as appropriate. A claim under this clause 8.3 shall be the sole remedy available to the Buyer arising (directly or indirectly) from a breach of clause 8.1. 5.3 No Locked Box Claim may be made against 8.4 Each Seller (in respect of itself only and not in respect of any other Seller) is not liable to make a Seller unless notice of such Locked Box Claim, complying with the provisions of paragraph 3.2 of Schedule 7, is served on that Seller in writing as soon as reasonably practicable after the Buyer becomes aware that it is reasonably likely to have a Locked Box Claim and, in any event, within six months following the Completion Date.payment under clause 8.3:

Appears in 1 contract

Samples: Agreement for the Sale and Purchase of Shares (Alberto-Culver CO)

Locked Box. 5.1 Each 13.1 UBGI warrants to NEH that the Balance Sheet has been prepared applying accounting policies and procedures consistent with those employed in preparing the Management Accounts (in the form set out in Data Room “A”) which are consistent with those adopted in the audited accounts at 31 December 2005. 13.2 UBGI warrants to NEH (for itself and as trustee for and on behalf of each UBSE Group Company) that between the Sellers severally warrants Accounts Date and the date of this agreement (other than in respect of itself only to the Buyer that, save for Permitted Leakage between the Locked Box Date and the Completion Date:Leakage): (a) no Group Company has declared, made or paid any dividend or distribution to that Seller or any of its Affiliates; (b) no Group Company has made any repayment of principal on any debt or payment of any interest on or other payment in relation to any debt obligation to that Seller or any of its Affiliates; (c) no Group Company has made any payments, including bonuses or fees (including consulting fees, monitoring fees, directors' fees, licence fees or royalties), charges or compensation to, or granted future benefits to, or transferred assets to, or assumed, indemnified or incurred liabilities for the benefit of that Seller or any of its Affiliates; (d) no Group Company has made or agreed to make any payments to that Seller or any of its Affiliates in respect of any share capital or other securities of any Group Company being issued, redeemed, purchased or repaid, or any other return of capital; (e) no management charge or fee of any nature whatsoever has been paid to that Seller or any of its Affiliates levied by any member of the UB Group Companies against any UBSE Group Company and there has been no payment of any management chargecharges, consulting, service or other fee fees or compensation from any UBSE Group Company to any member of the UB Group; (b) no dividend or distribution of profits or assets (including without limitation any distribution as defined in Part VI Income and Corporation Taxes Act 1988 (ICTA) and extended by section 418 ICTA), or any bonus or other payment of any nature has been paid or declared or made by any UBSE Group Company to or in favour of any member of the UB Group; (c) no UB Transaction Costs have been paid or incurred, or have been agreed to be paid or incurred, by any UBSE Group Companies Company; (d) no share or loan capital of any UBSE Group Company has been created, issued, redeemed, purchased or repaid; and (e) no member of the UBSE Group has changed its practices as to that Seller collection of trade debtors or any payment of its Affiliates;trade creditors, there has been no acceleration of payments or accruals for Intra-Group Trading Amounts in each case, whether effected by way of a repayment of Inter-Company Debt or otherwise; and (f) no UB Group Company has forgiven or waived any amount owed to it by that Seller or any of its Affiliates; and (g) it has not made or entered into any agreement or arrangement (whether conditional or not) or agreed to pay any fees, costs, expenses, Taxation or other amounts relating give effect to any of the matters referred to in this clause 5.1(a(a) to 5.1(f)(e) above. 5.2 In 13.3 UBGI undertakes to NEH (for itself and as trustee for and on behalf of NEH and each UBSE Group Company) that between the event date of this agreement and Completion no UBSE Group Company will (other than in respect of Permitted Leakage): (a) pay, or agree or commit to pay, management charges, consulting, service or other fees or compensation to any member of the UB Group or to any Affiliate of any member of the UB Group; (b) declare, pay or make any dividend of distribution of profits or assets (including without limitation any distribution defined in Part VI ICTA and extended by section 418 ICTA) to or in favour of any UB Group Company; (c) make or agree to make or pay any bonus, service fee or other payment or compensation to any member of the UB Group Company; (d) pay or incur, or agree to pay or incur, any UB Transaction Costs; (e) redeem, purchase or repay, or agree to redeem, purchase or repay, any share or loan capital of a UBSE Group Company to or in favour of any member of the UB Group Company; or (f) change its practices as to collection of trade debtors or payment of trade creditors. 13.4 UBGI undertakes to NEH to notify NEH in writing promptly after becoming aware of the same of any receipt by any member of the UB Group of any of the payments referred to in clauses 13.2 or 13.3 above or otherwise of any payment described in such clauses. 13.5 UBGI warrants to NEH that as at the Accounts Date the UBSE Group had in aggregate Cash of £11.7 million on the Balance Sheet. 13.6 UBGI warrants to NEH that as at the Accounts Date the UBSE Group had in aggregate Indebtedness of £0.1 million on the Balance Sheet. 13.7 UBGI undertakes to NEH that it shall pay to New Iberia (for itself and as trustee for and on behalf of each UBSE Group Company) on a £ for £ after tax basis in respect of any breach by any Seller of any of the warranties and undertakings set out in sub-clauses 5.1(a) to 5.1(g)13.2, inclusive (including for 13.3, 13.5 and 13.6. 13.8 For the avoidance purposes of doubtthis clause 13, UB Group means the UB Group and any breach after the Completion Date to the extent that it results from an action, omission or agreement made prior to Completion), in relation to that Seller or its Affiliates, that Seller shall pay to the Buyer on demand an amount in cash equal to the amount Affiliate of any payment or other financial benefit received by it or its Affiliates from member of the relevant Group Company as a result of such breachUB Group. 5.3 No Locked Box Claim may be made against a Seller unless notice of such Locked Box Claim, complying with the provisions of paragraph 3.2 of Schedule 7, is served on that Seller in writing as soon as reasonably practicable after the Buyer becomes aware that it is reasonably likely to have a Locked Box Claim and, in any event, within six months following the Completion Date.

Appears in 1 contract

Samples: Agreement Relating to United Biscuits Southern Europe (Kraft Foods Inc)

Locked Box. 5.1 Each of the Sellers severally 4.1 The Seller warrants in respect of itself only to the Buyer that, save for Permitted Leakage between and the Parent that (other than as set forth in Schedule 4 hereto) as at Completion: 4.1.1 since the Locked Box Date and Date, no management charge or fee has been levied by the Completion Date: (a) no Seller or any of its Affiliates against any Group Company and there has declaredbeen no payment of any management, made service or paid other fees or compensation from any dividend or distribution Group Company to that the Seller or any of its Affiliates; (b) 4.1.2 since the Locked Box Date, no share or loan capital of any Group Company has made any repayment been issued, redeemed, purchased or repaid to or in favour of principal on any debt or payment of any interest on or other payment in relation to any debt obligation to that the Seller or any of its Affiliates; (c) 4.1.3 since the Locked Box Date, the only payments received by the Seller or any of its Affiliates from the Group Companies have been payments set forth in Schedule 4 hereto; 4.1.4 since the Locked Box Date, no dividend or other distribution of profits or assets or any bonus or other payment of any nature has been paid or declared or made by any Group Company has made any payments, including bonuses to or fees (including consulting fees, monitoring fees, directors' fees, licence fees or royalties), charges or compensation to, or granted future benefits to, or transferred assets to, or assumed, indemnified or incurred liabilities for in favour of the benefit of that Seller or any of its Affiliates; (d) 4.1.5 since the Locked Box Date, no Group Company has made paid or agreed to make accrued any advisory fees, Transaction fees or out-of-pocket expenses or management incentive payments to that Seller or any of its Affiliates in respect of any share capital kind in connection with the Transaction or the other securities of any Group Company being issued, redeemed, purchased or repaid, or any transactions contemplated hereunder (other return of capitalthan as set forth in Schedule 4 hereto); (e) no management charge or fee of any nature whatsoever has been paid to that Seller or any of its Affiliates by any of 4.1.6 since the Group Companies and there has been no payment of any management chargeLocked Box Date, consulting, service or other fee or compensation by any of the Group Companies to that Seller or any of its Affiliates; (f) no Group Company has forgiven or waived any amount owed to it the Group by that the Seller or any of its Affiliates; and (g) it 4.1.7 neither the Seller nor any of its Affiliates has not made or entered into any agreement or arrangement (whether conditional or not) or agreed to pay any fees, costs, expenses, Taxation or other amounts relating to any of the matters referred to in this clause 5.1(aClause 4.1 (other than as set forth in Schedule 4 hereto). Notwithstanding the foregoing, no transaction undertaken on an arms’ length basis and in the ordinary course of business between (x) to 5.1(f)any Group Company, on the one hand, and (y) any other portfolio company of any private equity fund or similar investment vehicle managed or advised by any direct or indirect shareholder of the Seller or any Affiliate of such shareholder, on the other hand, shall be deemed a breach of the warranties set forth in this Clause 4.1. 5.2 In 4.2 The Seller shall notify the event Buyer and the Parent in writing promptly after becoming aware of any receipt by the Seller of any payment constituting a breach of the warranties set forth in Clause 4.1. 4.3 Subject to Clauses 8.4 and 8.5, the Seller shall indemnify the Parent and the Buyer (as trustee for and on behalf of each member of the Buyer’s Group) on a euro for euro basis in respect of any breach by any Seller it of any of the warranties set forth in sub-clauses 5.1(a) to 5.1(g), inclusive (including for the avoidance of doubt, any breach after the Completion Date Clause 4.1. Any payment under this Clause 4.3 shall be treated as an adjustment to the extent that it results from an action, omission or agreement made prior to Completion), in relation to that Seller or its Affiliates, that Seller shall pay to the Buyer on demand an amount in cash equal to the amount of any payment or other financial benefit received by it or its Affiliates from the relevant Group Company as a result of such breachCash Consideration. 5.3 No Locked Box Claim may be made against a Seller unless notice of such Locked Box Claim, complying with the provisions of paragraph 3.2 of Schedule 7, is served on that Seller in writing as soon as reasonably practicable after the Buyer becomes aware that it is reasonably likely to have a Locked Box Claim and, in any event, within six months following the Completion Date.

Appears in 1 contract

Samples: Agreement for the Sale and Purchase of Sigmakalon (Bc) Holdco b.V. (PPG Industries Inc)

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Locked Box. 5.1 Each of the Sellers severally The Seller warrants in respect of itself only to the Buyer that, save for that (other than any Permitted Leakage between Payment) during the Locked Box Date and period from 1st August 2008 to the Completion Date:Date (both dates inclusive): (a) no Group Company has declared, transfers of value have been made or paid any dividend or distribution to that the Seller or any other member of its Affiliatesthe Seller’s Group by the Company and no debt or amount owing by the Seller or any other member of the Seller’s Group to the Company has been waived or forgiven; (b) no Group indemnity has been granted by the Company has made any repayment in favour of principal on any debt or payment of any interest on or other payment in relation to any debt obligation to that the Seller or any other member of its Affiliatesthe Seller’s Group; (c) no Group Company has made any payments, including bonuses or fees (including consulting fees, monitoring fees, directors' fees, licence fees or royalties), charges or compensation to, or granted future benefits to, or transferred assets to, or assumed, indemnified or incurred liabilities for the benefit of that Seller or any of its Affiliates; (d) no Group Company has made or agreed to make any payments to that Seller or any of its Affiliates in respect of any share capital or other securities of any Group Company being issued, redeemed, purchased or repaid, or any other return of capital; (e) no management charge or fee of any nature whatsoever has been paid to that levied by the Seller or any of its Affiliates by any other member of the Seller’s Group Companies against the Company and there has been no payment of any management charge, consultingmanagement, service or other fee fees or compensation by any of from the Group Companies Company to that the Seller or any other member of its Affiliatesthe Seller’s Group; (d) no share or loan capital of the Company has been created, issued, redeemed, purchase or repaid; (e) the only payments received by the Seller or any other member of the Seller’s Group from the Company have been payments in respect of Permitted Payments as listed in schedule 7; (f) no Group dividend or distribution of profits or assets (including any distribution as defined in Part VI Income and Corporation Taxes Act 1988 (ICTA) and extended by section 418 ICTA), or any bonus or other payment of any nature has been paid or declared or made by the Company has forgiven to or waived any amount owed to it by that in favour of the Seller or any other member of its Affiliatesthe Seller’s Group; and (g) it neither the Seller nor any other member of the Seller’s Group has not made or entered into any agreement or arrangement (whether conditional or not) or agreed to pay any fees, costs, expenses, Taxation or other amounts relating to any of the matters referred to in this clause 5.1(a) to 5.1(f5.1 (other than Permitted Payments). 5.2 In The Seller undertakes to notify the event Buyer in writing promptly after becoming aware of any receipt by the Seller or any of the payments which would constitute a breach by it of the warranty in clause 5.1. 5.3 The Seller warrants to the Buyer that: (a) the Borrowings as at Completion do not exceed £0; (b) the balance in the Company’s bank statements was at 28 November 2008 £13,690,872 in aggregate; (c) the sum which remains payable to Software AG (UK) Limited pursuant to the Software AG Agreement is £782,792 (inclusive of VAT) (Software AG Liability) and there are no other sums payable (actual or contingent) to Software AG (UK) Limited in respect of the Software AG Litigation; and (d) the list of debtors of the Company as at 30 November 2008, in the agreed form, is accurate as at that date and none of those debts has been released, discharged or waived by the Company. 5.4 Subject to clause 5.5 below, the Seller shall indemnify the Buyer on demand on a £ for £ basis in respect of any breach by any Seller it of any of the warranties set out in sub-clauses 5.1(a) to 5.1(g), inclusive (including clause 5.1 and/or 5.3. 5.5 The liability of the Seller for the avoidance any claim in respect of doubt, any breach after the Completion Date to the extent that by it results from an action, omission or agreement made prior to Completion), in relation to that Seller or its Affiliates, that Seller shall pay to the Buyer on demand an amount in cash equal to the amount of any payment or other financial benefit received by it or its Affiliates from of the relevant Group Company as a result warranties set out in clauses 5.1 and 5.3 (Locked Box Claim) shall terminate 6 months after Completion save in respect of such breach. 5.3 No any Locked Box Claim may be made against a Seller unless notice of such Locked Box Claim, complying with the provisions of paragraph 3.2 of Schedule 7, is served on that Seller in writing as soon as reasonably practicable after which the Buyer becomes aware that it is reasonably likely has notified to have a Locked Box Claim andthe Seller on or before the date falling 6 months after Completion. 5.6 The Seller warrants that, in any eventsave as provided under the Transaction Documents, within six months following there are no monies outstanding by the Completion DateCompany to the Seller’s Group as at Completion.

Appears in 1 contract

Samples: Share Purchase Agreement (Solera Holdings, Inc)

Locked Box. 5.1 7.1 Each of the Sellers severally warrants in respect of itself only Seller covenants and undertakes to the Buyer that, save for Permitted Leakage between that in the period from (and excluding) the Locked Box Date up to (and including) the Completion Date:Date (save to the extent comprising a Permitted Leakage): 7.1.1 no dividend or other distribution (awhether in cash or in kind) no (including any distribution as defined in Part 23 of the CTA 2010) has been or will be declared, paid or made by any Group Company has declared, made to or paid any dividend or distribution to that for the benefit of such Seller or any of its AffiliatesAffiliates or Portfolio Companies; (b) 7.1.2 no Group Company has made returned or will return (in cash or in kind) any repayment of principal on any debt its share capital (as applicable) to or payment for the benefit of any interest on or other payment in relation to any debt obligation to that a Seller or any of its AffiliatesAffiliates or Portfolio Companies, whether as a result of a redemption, repurchase, repayment, reduction of its share capital or otherwise; (c) 7.1.3 no Group Company has made transferred or will transfer any paymentsmaterial asset, including bonuses rights or fees (including consulting fees, monitoring fees, directors' fees, licence fees other benefits to or royalties), charges or compensation to, or granted future benefits to, or transferred assets to, or assumed, indemnified or incurred liabilities for the benefit of that a Seller or any of its AffiliatesAffiliates or Portfolio Companies, other than on arm’s length commercial terms; 7.1.4 no Group Company has amended or will amend the terms of its borrowing or indebtedness in the nature of borrowing owed by it to a Seller or any of its Affiliates or Portfolio Companies; 7.1.5 no Encumbrance has been or will be created over any of the assets of a Group Company in favour of or for the benefit of a Seller or any of its Affiliates or Portfolio Companies; 7.1.6 no payments have been or will be made by or on behalf of any Group Company to or for the benefit of a Seller or any of its Affiliates or (dotherwise than in the ordinary course of business) any of its Portfolio Companies; 7.1.7 no amounts owed to any Group Company by a Seller or any its Affiliates or Portfolio Companies have been or will be waived, deferred or forgiven nor has any liability of a Seller or any of its Affiliates or Portfolio Companies been assumed or discharged nor will it be assumed or discharged; 7.1.8 no management, monitoring or other shareholder or directors’ fees or bonuses or payments of a similar nature have been or will be paid by or on behalf of any Group Company to or for the benefit of such Seller or any of its Affiliates or its Portfolio Companies; 7.1.9 no costs or expenses relating to the sale of the Shares (to any person), (including any professional advisers’ fees nor any transaction or sale bonuses or other payments payable as a result of Completion (to any person), have been or will be paid or incurred, by or on behalf of any Group Company to or on behalf of such Seller or any of its Affiliates or its Portfolio Companies; 7.1.10 no Group Company has made or provided or agreed to or will make or provide or agree any payments to that gift (including any transfer of an asset, right or other benefit otherwise than on arm’s length terms), guarantee, security, third party right, or loan to, or for the benefit of, a Seller or any of its Affiliates in respect of any share capital or other securities of any Group Company being issued, redeemed, purchased or repaid, or any other return of capitalits Portfolio Companies; (e) no management charge or fee of any nature whatsoever has been paid to that 7.1.11 neither the relevant Seller or nor any of its Affiliates by nor any Portfolio Company have agreed or committed or will agree or commit to take or omit any of the Group Companies and there has been no payment of any management chargeactions set out in clauses 7.1.1 to 7.1.10 (inclusive) above, consulting, service or other fee or compensation by any of the Group Companies to that Seller or any of its Affiliates; (f) no Group Company has forgiven or waived any amount owed to it by that Seller or any of its Affiliates; and (g) it has not made or entered into any agreement or arrangement (whether conditional or not) or agreed to pay any fees, costs, expenses, Taxation or other amounts relating to any of the matters referred to in this clause 5.1(a) to 5.1(f“Leakage”). 5.2 In 7.2 Subject to Completion having taken place, in the event of any breach of clause 7.1 by any a Seller, the relevant Seller shall on demand by the Buyer pay the Buyer or procure payment to the Buyer an amount, as an adjustment to the Consideration Amount, equal (on a £ for £ basis) to the sum of any cash or cash equivalent value (as of the warranties date thereof) of the (i) Leakage; (ii) plus any documented professional advisers’ fees and other out of pocket expenses properly incurred in sub-clauses 5.1(arecovery of the Leakage; (iii) to 5.1(g)plus, inclusive (including for the avoidance of doubt, any breach after the Completion Date to the extent that not included in 7.2(i), any Tax incurred by the Buyer, any Buyer’s Group Undertaking or any member of the Group on the Leakage; (iv) less an amount equal to any credit, repayment or refund of Tax to a Buyer’s Group Undertaking or any member of the Group as a result of the Leakage (clause 7.2 (i), (ii), (iii) and (iv) together being the “Gross Leakage”); plus interest at [REDACTED – Percentage] per annum on the Gross Leakage from the date on which the Leakage occurs to the date on which it results is repaid by the relevant Seller. A claim under this clause 7.2 shall be the sole remedy available to the Buyer arising (directly or indirectly) from an actiona breach of clause 7. 7.3 No Seller is liable to make a payment under clause 7.2 unless the Buyer has notified the Seller in writing of its breach of clause 7.1, omission or agreement made prior to Completion)the claim under clause 7.2, stating in reasonable detail the nature of the breach and, if practicable, the amount claimed, on or before the date falling [REDACTED – Time Period] from the Completion Date, in which case, in relation to that Seller or its Affiliatesany relevant breaches notified, that Seller shall pay remain liable until any relevant claims have been satisfied, settled or withdrawn and any payment in respect of any such satisfaction or settlement has been made to the Buyer on demand an amount Buyer. 7.4 Nothing in cash equal to this clause 7 shall have the amount effect of limiting, restricting or excluding any payment or other financial benefit received by it or its Affiliates from the relevant Group Company liability arising as a result of such breachany fraud (or fraudulent misrepresentation). 5.3 No Locked Box Claim may be made against a Seller unless notice of such Locked Box Claim, complying with the provisions of paragraph 3.2 of Schedule 7, is served on that Seller in writing as soon as reasonably practicable after the Buyer becomes aware that it is reasonably likely to have a Locked Box Claim and, in any event, within six months following the Completion Date.

Appears in 1 contract

Samples: Agreement for the Sale and Purchase of Amdipharm Mercury Limited (Concordia Healthcare Corp.)

Locked Box. 5.1 Each of the Sellers severally warrants in respect of itself only 4.1 The Seller undertakes to the Buyer that, save for Permitted Leakage between Purchaser that since the Locked Box Reference Balance Sheet Date and the Completion Dateno Group Company: (a) no has made any payment to, or for the benefit of, any member of the Seller’s Group Company has declared, made or paid any dividend or distribution to that Seller or any director of its Affiliatesany member of the Seller’s Group excluding any payment under an employee contract or service contract entered into prior to the Reference Balance Sheet Date and on the terms prevailing at that date, details of which are in the Data Room; (b) no has suffered or incurred any debt, liability (whether actual, contingent or prospective) or obligation to, or for the benefit of, any member of the Seller’s Group Company has made or any repayment of principal on any debt or payment director of any interest member of the Seller’s Group excluding any debt, liability or obligation under an employment contract or service contract entered into prior to the Reference Balance Sheet Date and on or other payment the terms prevailing at that date, details of which are in relation to any debt obligation to that Seller or any of its Affiliatesthe Data Room; (c) no Group Company has given, or become bound by, or made any payments, including bonuses or fees (including consulting fees, monitoring fees, directors' fees, licence fees or royalties), charges or compensation payment pursuant to, any security, guarantee, indemnity, counter-indemnity or granted future benefits tosurety of any nature whatsoever in respect of any debt, liability or transferred assets toobligation of any member of the Seller’s Group, any director of any member of the Seller’s Group excluding any debt, liability or assumed, indemnified obligation under an employment contract or incurred liabilities for service contract entered into prior to the benefit of Reference Balance Sheet Date and on the terms prevailing at that Seller or any of its Affiliatesdate; (d) no has acquired or purchased from or sold, transferred or otherwise disposed of or lent or gifted to any member of the Seller’s Group Company has made or agreed to make any payments to that Seller or any of its Affiliates in respect director of any share capital member of the Seller’s Group any money, asset (whether tangible or other securities of any Group Company being issued, redeemed, purchased or repaid, intangible) or any other return of capitalright, title or interest therein; (e) no management charge has made, paid or fee declared any dividend of any nature whatsoever has been or other distribution of any kind or paid any interest or principal (on any debt or loan) to that Seller or any of its Affiliates by any member of the Seller’s Group Companies and there has been no payment of any management charge, consulting, service or (other fee or compensation by any of the than another Group Companies to that Seller or any of its AffiliatesCompany); (f) no has created, allotted or issued any share or loan capital or purchased or redeemed any of its share or loan capital (other than to or from another Group Company Company); or (g) has materially varied the payment practices relating to trade creditors or accelerated the collection of trade debts; or (h) has forgiven or waived any amount amounts owed to it a Group Company by that Seller any members of the Seller’s Group; or (i) has paid or incurred any costs or expenses relating to the sale of the Shares (to any person) or to any other transaction contemplated by this agreement (except in relation to the LTIP); or (j) has amended the terms of any of its Affiliatesborrowing or indebtedness in the nature of borrowing owed by it to any member of the Seller’s Group; andor (gk) it has not made incurred any borrowing or entered into any agreement indebtedness in the nature of borrowing; or (l) has agreed or arrangement (whether conditional further undertaken or not) conditionally agreed or agreed undertaken to pay any fees, costs, expenses, Taxation or other amounts relating to do any of the matters referred foregoing. 4.2 The Purchaser shall not be entitled to in bring any claim under this clause 5.1(a) 4 in respect of a matter, fact or circumstance which is fairly disclosed in the Disclosure Letter with reference to 5.1(f)this clause 4. 5.2 In the event of any breach by any Seller of any of the warranties in sub-clauses 5.1(a) to 5.1(g), inclusive (including for the avoidance of doubt, any breach after the Completion Date to the extent that it results from an action, omission or agreement made prior to Completion), in relation to that Seller or its Affiliates, that Seller shall pay to the Buyer on demand an amount in cash equal to the amount of any payment or other financial benefit received by it or its Affiliates from the relevant Group Company as a result of such breach. 5.3 No Locked Box Claim may be made against a Seller unless notice of such Locked Box Claim, complying with the provisions of paragraph 3.2 of Schedule 7, is served on that Seller in writing as soon as reasonably practicable after the Buyer becomes aware that it is reasonably likely to have a Locked Box Claim and, in any event, within six months following the Completion Date.

Appears in 1 contract

Samples: Sale and Purchase Agreement (IHS Inc.)

Locked Box. 5.1 Each of the Sellers severally warrants in respect of itself only 7.1 The Seller covenants and undertakes to the Buyer that, save for Permitted that no Leakage between has occurred nor shall occur in the period from (and excluding) the Locked Box Date up to (and including) Closing. 7.2 Each of the Completion Date:following shall, in the period from (and excluding) the Locked Box Date up to (and including) Closing, constitute a “Leakage” (save to the extent that such Leakage is a Permitted Leakage): (a) no Group Company has declared, made or paid 7.2.1 any dividend or other distribution of profits or assets declared, paid or made by the Company to that or for the benefit of a Seller or any member of its Affiliatesthe Seller’s Group; (b) no 7.2.2 any payment made by or on behalf of the Company to or for the benefit of the Seller or any member of the Seller’s Group Company has made or any waiver or release in favour of any member of the Seller’s Group of any sum or obligation due by any such member of the Seller’s Group to the Company; 7.2.3 any redemption, repurchase or repayment of principal on share or loan capital of the Company which results in a payment to, or an agreement or obligation to make a payment to, the Seller or any debt member of the Seller’s Group; 7.2.4 any Encumbrance created over any of the assets of the Company in favour of or for the benefit of the Seller or any member of the Seller’s Group; 7.2.5 any payments made including management, monitoring or other shareholder or directors’ fee or recharges of corporate costs, bonus, charges or compensation or payment of any interest nature paid by or on behalf of the Company to or other payment in relation to any debt obligation to that Seller or any of its Affiliates; (c) no Group Company has made any payments, including bonuses or fees (including consulting fees, monitoring fees, directors' fees, licence fees or royalties), charges or compensation to, or granted future benefits to, or transferred assets to, or assumed, indemnified or incurred liabilities for the benefit of that the Seller or any member of its Affiliatesthe Seller’s Group; (d) no Group Company has made or agreed to make 7.2.6 any payments to that Seller or any of its Affiliates in respect transfer of any share capital asset to, or other securities assumption, indemnification or incurrence of any Group Company being issued, redeemed, purchased or repaid, or liability for the benefit of any other return member of capitalthe Seller’s Group; (e) no management charge 7.2.7 any agreement or fee of any nature whatsoever has been paid commitment by the Company to that Seller or any of its Affiliates by do any of the Group Companies and there has been no payment of any management charge, consulting, service or other fee or compensation by any of the Group Companies things set out in Clause 7.2.1 to that Seller or any of its Affiliates; 7.2.6 (f) no Group Company has forgiven or waived any amount owed to it by that Seller or any of its Affiliates; and (g) it has not made or entered into any agreement or arrangement (whether conditional or not) or agreed to pay any fees, costs, expenses, Taxation or other amounts relating to any of the matters referred to in this clause 5.1(a) to 5.1(finclusive). 5.2 In 7.3 Subject to Clause 7.4, in the event of any breach Leakage, the Seller undertakes to, on demand by the Purchaser, reimburse the Company an amount equal to such Leakage received by any Seller of any member of the warranties Seller’s Group. A claim under this Clause 7.3 shall be the sole remedy available to the Purchaser arising (directly or indirectly) from a breach of Clause 7.1. 7.4 The Seller is not liable to make a payment under Clause 7.3 unless the Purchaser has notified the Seller in sub-clauses 5.1(a) to 5.1(g)writing of the Leakage, inclusive (including for or the avoidance claim under Clause 7.3, stating in reasonable detail the nature of doubtthe breach and, any breach if practicable, the amount claimed, on or before the date falling three months after the Completion Date to Closing Date. 7.5 Nothing in this Clause 7 shall have the extent that it results from an actioneffect of limiting, omission restricting or agreement made prior to Completion), in relation to that Seller or its Affiliates, that Seller shall pay to the Buyer on demand an amount in cash equal to the amount of excluding any payment or other financial benefit received by it or its Affiliates from the relevant Group Company liability arising as a result of such breachany fraud by the Seller. 5.3 No Locked Box Claim may be made against a Seller unless notice of such Locked Box Claim, complying with the provisions of paragraph 3.2 of Schedule 7, is served on that Seller in writing as soon as reasonably practicable after the Buyer becomes aware that it is reasonably likely to have a Locked Box Claim and, in any event, within six months following the Completion Date.

Appears in 1 contract

Samples: Share Sale Agreement (Bearingpoint Inc)

Locked Box. 5.1 7.1 Each of the Sellers severally warrants in respect of itself only Seller covenants and undertakes to the Buyer that, save for Permitted Leakage between that in the period from (and excluding) the Locked Box Date up to (and including) the Completion Date:Date (save to the extent comprising a Permitted Leakage): 7.1.1 no dividend or other distribution (awhether in cash or in kind) no (including any distribution as defined in Part 23 of the CTA 2010) has been or will be declared, paid or made by any Group Company has declared, made to or paid any dividend or distribution to that for the benefit of such Seller or any of its AffiliatesAffiliates or Portfolio Companies; (b) 7.1.2 no Group Company has made returned or will return (in cash or in kind) any repayment of principal on any debt its share capital (as applicable) to or payment for the benefit of any interest on or other payment in relation to any debt obligation to that a Seller or any of its AffiliatesAffiliates or Portfolio Companies, whether as a result of a redemption, repurchase, repayment, reduction of its share capital or otherwise; (c) 7.1.3 no Group Company has made transferred or will transfer any paymentsmaterial asset, including bonuses rights or fees (including consulting fees, monitoring fees, directors' fees, licence fees other benefits to or royalties), charges or compensation to, or granted future benefits to, or transferred assets to, or assumed, indemnified or incurred liabilities for the benefit of that a Seller or any of its AffiliatesAffiliates or Portfolio Companies, other than on arm’s length commercial terms; 7.1.4 no Group Company has amended or will amend the terms of its borrowing or indebtedness in the nature of borrowing owed by it to a Seller or any of its Affiliates or Portfolio Companies; 7.1.5 no Encumbrance has been or will be created over any of the assets of a Group Company in favour of or for the benefit of a Seller or any of its Affiliates or Portfolio Companies; 7.1.6 no payments have been or will be made by or on behalf of any Group Company to or for the benefit of a Seller or any of its Affiliates or (dotherwise than in the ordinary course of business) any of its Portfolio Companies; 7.1.7 no amounts owed to any Group Company by a Seller or any its Affiliates or Portfolio Companies have been or will be waived, deferred or forgiven nor has any liability of a Seller or any of its Affiliates or Portfolio Companies been assumed or discharged nor will it be assumed or discharged; 7.1.8 no management, monitoring or other shareholder or directors’ fees or bonuses or payments of a similar nature have been or will be paid by or on behalf of any Group Company to or for the benefit of such Seller or any of its Affiliates or its Portfolio Companies; 7.1.9 no costs or expenses relating to the sale of the Shares (to any person), (including any professional advisers’ fees nor any transaction or sale bonuses or other payments payable as a result of Completion (to any person), have been or will be paid or incurred, by or on behalf of any Group Company to or on behalf of such Seller or any of its Affiliates or its Portfolio Companies; 7.1.10 no Group Company has made or provided or agreed to or will make or provide or agree any payments to that gift (including any transfer of an asset, right or other benefit otherwise than on arm’s length terms), guarantee, security, third party right, or loan to, or for the benefit of, a Seller or any of its Affiliates in respect of any share capital or other securities of any Group Company being issued, redeemed, purchased or repaid, or any other return of capitalits Portfolio Companies; (e) no management charge or fee of any nature whatsoever has been paid to that 7.1.11 neither the relevant Seller or nor any of its Affiliates by nor any Portfolio Company have agreed or committed or will agree or commit to take or omit any of the Group Companies and there has been no payment of any management chargeactions set out in clauses 7.1.1 to 7.1.10 (inclusive) above, consulting, service or other fee or compensation by any of the Group Companies to that Seller or any of its Affiliates; (f) no Group Company has forgiven or waived any amount owed to it by that Seller or any of its Affiliates; and (g) it has not made or entered into any agreement or arrangement (whether conditional or not) or agreed to pay any fees, costs, expenses, Taxation or other amounts relating to any of the matters referred to in this clause 5.1(a) to 5.1(f“Leakage”). 5.2 In 7.2 Subject to Completion having taken place, in the event of any breach of clause 7.1 by any a Seller, the relevant Seller shall on demand by the Buyer pay the Buyer or procure payment to the Buyer an amount, as an adjustment to the Consideration Amount, equal (on a £ for £ basis) to the sum of any cash or cash equivalent value (as of the warranties date thereof) of the (i) Leakage; (ii) plus any documented professional advisers’ fees and 7.3 No Seller is liable to make a payment under clause 7.2 unless the Buyer has notified the Seller in sub-clauses 5.1(a) to 5.1(g)writing of its breach of clause 7.1, inclusive (including for or the avoidance claim under clause 7.2, stating in reasonable detail the nature of doubtthe breach and, any breach after if practicable, the amount claimed, on or before the date falling [REDACTED – Time Period] from the Completion Date to the extent that it results from an actionDate, omission or agreement made prior to Completion)in which case, in relation to that Seller or its Affiliatesany relevant breaches notified, that Seller shall pay remain liable until any relevant claims have been satisfied, settled or withdrawn and any payment in respect of any such satisfaction or settlement has been made to the Buyer on demand an amount Buyer. 7.4 Nothing in cash equal to this clause 7 shall have the amount effect of limiting, restricting or excluding any payment or other financial benefit received by it or its Affiliates from the relevant Group Company liability arising as a result of such breachany fraud (or fraudulent misrepresentation). 5.3 No Locked Box Claim may be made against a Seller unless notice of such Locked Box Claim, complying with the provisions of paragraph 3.2 of Schedule 7, is served on that Seller in writing as soon as reasonably practicable after the Buyer becomes aware that it is reasonably likely to have a Locked Box Claim and, in any event, within six months following the Completion Date.

Appears in 1 contract

Samples: Agreement for the Sale and Purchase of Amdipharm Mercury Limited (Concordia Healthcare Corp.)

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