No Leakage Undertaking. 10.1 The Seller undertakes to the Purchaser and the Purchaser Designee that:
(a) between the Locked Box Date to (and including) the Signing Date there has not been any Leakage; and
(b) there shall not be any Leakage other than Permitted Leakage from the Signing Date to (and including) the Completion Date.
10.2 The Seller undertakes that if there is a breach of any of the undertakings set out in Clause 10.1, it shall pay to the Purchaser or, if so requested in writing by the Purchaser, to a Purchaser Designee or a Group Company, an amount in cash (in the same currency as the Leakage) equal to the amount of such Leakage (reduced to take into account any Tax Benefit actually realized by a Group Company as a result of such Leakage, and increased by (i) any Taxes actually payable with respect to the receipt of such payment, and (ii) the product of (A) the reduction of any net operating losses resulting from the receipt of such payment and (B) the applicable statutory Tax rate, provided that this clause (ii) shall not apply to the extent of any increase in net operating losses of the recipient resulting from the Leakage with respect to which such payment is made) and, if applicable to such Leakage, shall terminate, cancel and rescind any and all Contracts that constitute Leakage (other than Permitted Leakage).
10.3 For the purposes of this Agreement, the term “Leakage” means:
(a) any interest payment or any dividend, or distribution (cash or non-cash) declared, paid, made or agreed or obligated to be made by any Group Company to the Seller or any Related Person, or the issue or sale of any securities of any Group Company to the Seller or any Related Person;
(b) any other payments paid, made or agreed to be made (including management fees, monitoring fees, service or directors’ fees, bonuses or other compensation of any kind) by any Group Company to or for the benefit of the Seller or any Related Person;
(c) any transfer of Assets of any Group Company to or for the benefit of the Seller or any Related Person or assumption, indemnification or incurrence by any Group Company of any Liability of or for the benefit of the Seller or any Related Person or any repayment of Indebtedness by the Seller to any related Person or payment by any Group Company of Tax due by the Seller or any Related Person, or any agreement or obligation to take such action;
(d) any Transaction Expenses to the extent paid, payable, assumed, indemnified or incurred by any Group Company but not i...
No Leakage Undertaking. (a) Each MN Seller covenants, warrants and undertakes (for itself and as representative (vekil) for and on behalf of its Affiliates) to the Buyer that no Leakage has occurred or shall occur (as applicable) in the period from (and excluding) the Locked Box Date up to (and including) Completion, provided that if any such Leakage does occur, the MN Sellers shall promptly give notice in writing to the Buyer of the same setting forth (to the extent they are able) in reasonable detail the specific nature and amount of such Leakage.
(b) Other than any Permitted Leakage, from (and excluding) the Locked Box Date up to (and including) Completion, each MN Seller covenants, warrants and undertakes (for itself and as representative (vekil) for and on behalf of its Affiliates) to procure that MN will not pay, or become obliged to pay, to any person any transaction costs relating to the transaction contemplated by this Agreement.
(c) In the event of the occurrence of any Leakage at any time in the period from (and excluding) the Locked Box Date up to (and including) Completion, in respect of which the Buyer has provided to the Sellers’ Representative no later than the date falling 12 months after the Completion Date written notice setting forth (to the extent it is able) in reasonable detail the specific nature and amount of such Leakage, each Corporate Warrantor shall be severally liable to promptly pay to the Buyer on demand in cash on a Dollar for Dollar basis an amount equal to (i) the Leakage, together with interest thereon at the Locked Box Interest Rate from and including the date of the Leakage to and including the actual date of payment, plus (ii) any liabilities, losses, damages, costs or expenses (including reasonable legal expenses but excluding indirect losses or damages) arising out of the occurrence of such Leakage in breach of this Agreement.
(d) The provisions of Clauses 8.3(d) and 8.3(g) through 8.3(x) (inclusive) shall not apply so as to limit the liability of any Corporate Warrantor under this Clause 3.3.
No Leakage Undertaking. 2.5.1 The Seller undertakes to the Purchaser that if there has been any Leakage since the Accounts Date that has not been reflected in the Final Purchase Price then the Seller shall:
(i) subject to Clause 2.5.2, following Closing, pay or procure payment in cash to the Purchaser on demand a sum equal to the aggregate of the amount of such Leakage and reasonable costs and expenses relating to its recovery;; and
(ii) notify the Purchaser in writing within thirty (30) days of Closing of any Leakage between the Accounts Date and Closing.
2.5.2 Any payments that constitute Leakage that are already provided for under this Agreement (if any) shall be disclosed in writing by or on behalf of the Seller to the Purchaser within thirty (30) days of Closing and shall be deducted from the Final Purchase Price. Nothing in this Agreement, however, shall affect the Purchaser’s right to recover any Leakage to the extent that such Leakage was only identified after the Final Purchase Price has been determined and or paid.
2.5.3 For the purposes of Clause 2.5 the amount of any Leakage shall not include any amount in respect of VAT which is recoverable by repayment or credit by a Group Company (whether directly or through a representative member of any group for VAT purposes)
2.5.4 The liability of the Seller pursuant to this Article 2.5 shall terminate on the date falling six (6) months after Closing unless before that date the Purchaser has notified the Seller of a breach of the undertakings set out in Article 2.5.1, in which case, in relation to any relevant breaches notified, the Seller shall remain liable until any relevant claims have been satisfied, settled or withdrawn.
No Leakage Undertaking. 4.1 Each Seller severally:
(a) warrants to the Purchaser that there has been no Leakage from any Target Entity in the period from (and excluding) the Locked Box Date up to (and including) the date of this Deed; and
(b) undertakes that no arrangements or agreement has been or will be made that will result in Leakage from any Target Entity after the date of this Deed, provided that in the event that Closing does not occur no Seller shall have any liability to the Purchaser under this paragraph 4.1.
4.2 In the event of any Leakage occurring during the period referred to in paragraph 4.1 above, any Seller receiving Leakage (or whose Related Party has received such Leakage) shall on demand by the Purchaser pay to the Purchaser (or any Target Entity as the Purchaser directs) an amount in cash equal to the amount or value (to be determined by auditors, acting as experts) of Leakage received by that Seller or its Related Party.
No Leakage Undertaking. 3.1 The Seller warrants and undertakes to the Purchaser that:
(a) since the Locked Box Accounts Date, there has not been any Leakage; and
(b) prior to Closing, there will not be any Leakage, other than Permitted Leakage.
3.2 Subject to clause 3.4, the Seller undertakes to the Purchaser that if there is a breach of any of the warranties or undertakings set out in clause 3.1, it shall, with effect from Closing, promptly pay in cash to the Purchaser on demand a sum equal to the amount of such Leakage.
3.3 The Seller undertakes to notify the Purchaser in writing promptly, and in any event at least two Business Days prior to the Closing Date, of any Leakage or any Permitted Leakage, together with the amount of such Leakage or Permitted Leakage, that has occurred on or prior to the date that is three Business Days prior to the Closing Date.
3.4 The liability of the Seller pursuant to this clause 3 shall terminate on the date falling six (6) months after Closing unless before that date the Purchaser has notified the Seller of a breach of the warranties and undertakings set out in clause 3.1, in which case, in relation to any relevant breaches notified, the Seller shall remain liable until any relevant Claims have been satisfied, settled or withdrawn.
3.5 For the avoidance of doubt, the sole remedy of the Purchaser for a breach by the Seller of the warranties and undertakings set out in clause 3.1 shall be a claim or demand for payment pursuant to clause 3.2.
No Leakage Undertaking. 10.1 The Seller undertakes to the Purchaser that since the Balance Sheet Date and on the basis that Closing takes place:
(a) there has not been any Leakage and there will not be any Leakage in the Pre-Closing Period; and
(b) no arrangement or agreement has been made or will be made that will result in any Leakage.
10.2 Subject to clause 10.3, the Seller undertakes to the Purchaser that if there is a breach of any of the undertakings set out in clause 10.1 by it, it shall, following Closing, pay or procure payment in cash to the Purchaser promptly and in any event no later than the second Business Day following written demand (referring to this clause 10.2) by the Purchaser a sum equal to the aggregate sum of:
(a) the amount of such Leakage;
(b) all reasonable costs incurred by the Purchaser in connection with the collection thereof; and
(c) interest (calculated in accordance with clause 11.4) on such amount from the date of the breach, which amount shall be paid on a full indemnity basis (the Leakage Amount).
10.3 The liability of the Seller pursuant to this clause 10 shall terminate on the date falling 12 months after Closing unless prior to that date the Purchaser has notified the Seller of a breach by the Seller of the undertakings set out in clauses 10.1 to 10.2.
No Leakage Undertaking. 5.1 Other than any Permitted Leakage, the Seller undertakes to the Purchaser that during the period from the Locked Box Balance Sheet Date to and including the Closing Date neither it nor any of its Affiliates has received or will receive, has agreed to receive or will agree to receive, or has the right to receive or will have the right to receive, any Leakage or Benefit from any Target Company.
5.2 Save in respect of tax, the Seller warrants and undertakes that since the Locked Box Balance Sheet Date no Target Company has paid nor has become or will become obliged to pay any third party costs relating to the Proposed Transaction.
5.3 In the event of any Leakage to the Seller or any of its Representatives (other than any Permitted Leakage) during the period from the Locked Box Balance Sheet Date to and including the Closing Date, then the Seller shall on demand by the Purchaser pay to the relevant Target Company (or as the Purchaser directs) an amount in cash equal to such Leakage received by it (other than any tax) plus an amount equal to the total interest that would accrue on a deposit of an amount equal to such Leakage, made on the date on which it was received by the Seller or its Representative as appropriate, and which carries interest (accrued daily) at LIBOR.
No Leakage Undertaking. 3.1 Each of the Sellers severally (but not jointly or jointly and severally) warrants and undertakes, in respect of itself only, to the Purchaser that since the Locked Box Accounts Date:
(a) neither it nor any of its Related Persons has received or benefitted from any Leakage and neither it nor any of its Related Persons will receive or benefit from any Leakage in the Pre-Closing Period; and
(b) no arrangement or agreement has been made or will in the Pre-Closing Period be made that has or will result in it or any of its Related Persons receiving or benefitting from any Leakage.
3.2 Subject to clauses 3.3 and 3.4 below, and as the Purchaser’s sole and exclusive remedy for any breach of clause 3.1, each Seller shall severally (but not jointly or jointly and severally), following Closing, pay or procure payment in cash to the Purchaser on demand on a euro for euro basis:
(a) in the case of Leakage falling within paragraph (a) of the definition of Leakage, a sum equal to the amount of such Leakage received by or on behalf of, or for the benefit of, that Seller or any of its Related Persons (as the case may be); or
(b) in the case of Leakage falling with paragraph (b) of the definition of Leakage which is not attributable to a specific Seller, a sum equal to that Seller’s Relevant Proportion of that Leakage.
3.3 For the purposes of clause 3.2 the amount of any Leakage shall:
(a) not include any amount in respect of VAT which is recoverable by repayment or credit by a Target Company or by the representative member of any group for VAT purposes of which the relevant Target Company is a member; and
(b) be calculated net of the net present value of any Relief or other Tax benefit available to a Target Company or the Purchaser as a result of the Leakage or the matter giving rise to it, provided that pursuing such Relief or other Tax benefit does not (in the opinion of the Purchaser, acting reasonably) damage the reputation of the Purchaser.
3.4 The liability of the Sellers pursuant to this clause 3 (No Leakage Undertaking) shall terminate on the date falling six months after Closing unless prior to that date the Purchaser has notified the relevant Seller(s) in writing of a breach by the relevant Seller(s) of the undertakings set out in clause 3.1, setting out the amount and reasonable details of such Leakage together with reasonable evidence thereof, in which case, in relation to any relevant breaches so notified, that Seller shall remain liable until any relevant ...
No Leakage Undertaking. 12.1. Each of the Institutional Sellers jointly and severally covenants and undertakes to the Purchaser that if, on or prior to Closing:
(a) there has been Leakage since the Locked Box Date; or
(b) any arrangement or agreement has been made that has resulted in any Leakage since the Locked Box Date, then, subject to clauses 12.3 and 12.4, the Institutional Sellers shall jointly and severally, following Closing, pay or procure payment in cash to the Purchaser on demand a sum equal to the amount of such Leakage received by, or for the benefit of, any Institutional Seller or any of its Affiliates (as the case may be) on a pound for pound basis.
12.2. Save for the Institutional Sellers, each of the other Sellers severally (but not jointly or jointly and severally) covenants and undertakes, in respect of itself only, to the Purchaser that if, on or prior to Closing:
(a) there has been Leakage since the Locked Box Date; or
(b) any arrangement or agreement has been made that has resulted in any Leakage since the Locked Box Date, then, such Seller shall severally (but not jointly and severally), subject to clauses 12.3 to 12.4, following Closing, pay or procure payment in cash to the Purchaser on demand a sum equal to the amount of such Leakage received by, or for the benefit of, that Seller or any of its Affiliates (as the case may be) on a pound for pound basis.
12.3. Any payment due under clause 12.1 or clause 12.2 shall be reduced to take account of the net financial benefit of any Relief available to the Purchaser, a member of the Purchaser Group or a Target Company in the financial years ending 31 December 2016 or 2017 in respect of the matter giving rise to the payment.
12.4. The liability of each of the Sellers pursuant to this clause 12 shall terminate on the date falling six months after Closing unless prior to that date the Purchaser has notified the relevant Seller of a breach by it of the undertaking set out in clause 12.1 or clause 12.2 (as the case may be) in which case, in relation to any relevant breaches notified, that Seller shall 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 Purchaser.
12.5. If the Purchaser is notified of any Leakage prior to Closing and a Seller alleged to be in breach of clause 12.1 or 12.2 (as the case may be) (each a Relevant Seller) agrees that such Leakage has occurred and the amount of such Leakage ...
No Leakage Undertaking. Each of the Shareholders (for itself) undertakes to the Purchaser that since the Balance Sheet Date, it has not received, and is not entitled to receive, any dividend or other distribution or return of capital (whether by reduction of capital, redemption or purchase of shares) paid or made by the Company.
