Common use of No Leakage Clause in Contracts

No Leakage. (a) Each of the Warrantors undertakes that it will cause the Group Companies not to incur any Leakage during the period from the Balance Sheet Date to the Closing Date, unless with the prior written consent of the Purchaser. (b) Subject to the Closing having taken place, if the Seller or any of its Affiliates (other than any Group Company) has received (or is entitled to receive as a result of a binding agreement or binding commitment by any Group Company) a Leakage Amount in respect of any Group Company occurring between the Balance Sheet Date and the Closing Date, the Seller shall be liable to pay to the Purchaser the aggregate sum equal to the Leakage Amount, which amount shall be paid following final determination thereof in accordance with this Section 6.13 and first out of the Indemnity Withheld Amount, to the extent any such amount remains. (c) If the Purchaser wishes to make a claim for any Leakage under this Section 6.13, it must send a written notice (a “Leakage Notice”) to the Seller. A Leakage Notice shall not be valid unless it specifies in reasonable detail the factual basis of the alleged Leakage and evidence on which the Purchaser relies and sets out the Purchaser’s estimate of the amount of the Leakage Amount (including its calculation of the relevant Leakage Amount). The Seller shall not have any liability under this Section 6.13 unless a Leakage Notice has been sent to the Seller in writing on or before the expiry of 24 months after the Closing. (d) Unless within twenty (20) Business Days after the date on which the Seller receives the Leakage Notice the Seller notifies the Purchaser in writing that it does not accept the Leakage Notice, the Seller shall be deemed to have accepted such Leakage Notice. (e) If, within the period of twenty (20) Business Days referred to in Section 6.13(d), the Seller has sent the Purchaser a written notice stating the grounds on which it does not accept the Leakage Notice, the Parties shall negotiate in good faith with a view to reaching an agreement on the matter. (f) In the event that the Seller and the Purchaser are unable to reach an agreement as aforesaid within twenty (20) Business Days of the Seller giving the notice referred to in Section 6.13(e), the matter shall be submitted for determination by an Expert. For the purposes of this Agreement, an “Expert” means one of the Big Four or any other accounting firm mutually agreed upon by the Purchaser and the Seller, or any other accounting firm selected by the secretary general of the Hong Kong International Arbitration Center in accordance with Section 10.3. Any firm proposed or nominated to be an Expert shall be required to declare in writing any current and past associations with the Purchaser, the Seller, and/or their respective Affiliates before appointment and shall have reasonably satisfied the Seller and the Purchaser of such firm’s independence. Each of the Purchaser and the Seller shall use its reasonable efforts to agree upon the terms of engagement for the Expert and appoint an Expert expeditiously within five (5) Business Days after the other Party’s written request for the nomination of the Expert.

No Leakage. 5.1 The Sellers warrant to the Purchaser that as from the Effective Date up to and including the date of this Agreement no Leakage has occurred (aother than as set out in the Leakage Statement) Each of and the Warrantors undertakes Sellers covenant and undertake to the Purchaser that it will cause the Group Companies not to incur any Leakage during the period as from the Balance Sheet date of this Agreement until the Completion Date no Leakage shall occur, except for Permitted Leakage. 5.2 No later than on the 3rd Business Day prior to the Closing Datedate on which Completion is envisaged to take place, unless the Sellers shall deliver to the Purchaser a written statement (Leakage Statement) setting out the items compromising Leakage, the calculation of the Leakage Amount including, to the extent possible, the corresponding Leakage Tax Benefit, and including sufficient detail so as to enable the Purchaser to verify the Leakage Amount. The Leakage Amount so notified shall be binding for purposes of determining the Completion Payment, but shall be subject to challenges (if any) in accordance with the prior written consent provisions of the Purchaserthis Clause 5. (b) 5.3 In the event that Completion is deferred beyond the intended Completion Date in accordance with the terms of this Agreement and a Leakage Statement has been delivered to the Purchaser prior to such deferral occurring, the Sellers shall no later than on the 5th Business Day prior to the rescheduled Completion Date deliver a revised Leakage Statement in accordance with Clause 5.2 and the Leakage Statement previously submitted shall be deemed to have been withdrawn and cease to apply. 5.4 Without prejudice to Clause 5.2, the Sellers undertake to the Purchaser to notify the Purchaser in writing as soon as reasonably possible prior to Completion upon becoming aware of any Leakage from the Effective Date until Completion. 5.5 Subject to Clause 5.9, in case of Leakage in breach of Clause 5.1 which was not deducted from the Closing having taken place, if the Seller or any of its Affiliates Purchase Price pursuant to Clause 3.1.4 and Clause 5.2 (other than any Group Company) has received (or is entitled to receive as a result of a binding agreement or binding commitment by any Group Company) a Leakage Amount in respect of any Group Company occurring between the Balance Sheet Date and the Closing DateAdditional Leakage), the Seller Sellers shall be liable to pay to the Purchaser the aggregate sum Purchaser, as an exclusive remedy, an amount equal to the corresponding Leakage Amount, Amount plus interest over the Leakage Amount against the Interest Rate over the period as from the date the Leakage occurred up to the date on which amount shall be the Additional Leakage is fully paid following final determination thereof to the Purchaser in accordance with this Section 6.13 and first out Clause 5 (together the Additional Leakage Amount) on a euro-for-euro basis, for the avoidance of doubt, taking into account any corresponding Leakage Tax Benefit. 5.6 Any notice (Additional Leakage Amount Statement) by the Purchaser given after Completion regarding the Additional Leakage Amount must be made within nine (9) months of the Indemnity Withheld Completion Date. For the avoidance of doubt, the Sellers shall not be liable to reimburse the Purchaser in respect of (i) any Permitted Leakage; or (ii) any Additional Leakage notified after the expiry of nine (9) months after the Completion Date. 5.7 The Additional Leakage Amount Statement shall set out the items comprising the Additional Leakage in sufficient detail so as to enable the Sellers to verify the Additional Leakage Amount. For the avoidance of doubt, if and to the extent any such amount remains. (c) If the Purchaser wishes to make a claim for disputes any amount of Leakage Tax Benefit taken into account (or in the event no Leakage Tax Benefit was taken into account, disputes the absence of any Leakage under this Section 6.13, it must send a written notice (a “Tax Benefit) when calculating the Leakage Notice”) Amount as notified by the Sellers to the Seller. A Purchaser pursuant to Clause 5.2, such disputed Leakage Notice Tax Benefit shall not be valid unless it specifies in reasonable detail the factual basis of the alleged also constitute Additional Leakage and evidence on which the Purchaser relies and sets out the Purchaser’s estimate of the amount of the Leakage Amount (including its calculation of the relevant Leakage Amount). The Seller shall not have any liability under this Section 6.13 unless a Leakage Notice has been sent to the Seller in writing on or before the expiry of 24 months after the Closing. (d) Unless within twenty (20) Business Days after the date on which the Seller receives the Leakage Notice the Seller notifies the Purchaser in writing that it does not accept the Leakage Notice, the Seller shall be deemed to have accepted such Leakage Notice. (e) If, within the period of twenty (20) Business Days referred to in Section 6.13(d), the Seller has sent the Purchaser a written notice stating the grounds on which it does not accept the Leakage Notice, the Parties shall negotiate in good faith with a view to reaching an agreement on the matter. (f) In the event that the Seller and the Purchaser are unable to reach an agreement as aforesaid within twenty (20) Business Days of the Seller giving the notice referred to in Section 6.13(e), the matter shall be submitted for determination by an Expert. For the purposes of this Agreement, an “Expert” means one of the Big Four or any other accounting firm mutually agreed upon Tax Benefit so disputed by the Purchaser shall be considered the Additional Leakage Amount, and the Seller, or any other accounting firm selected by provisions of this Clause 5 shall apply mutatis mutandis to the secretary general of the Hong Kong International Arbitration Center in accordance with Section 10.3. Any firm proposed or nominated to be an Expert shall be required to declare in writing any current and past associations with the Purchaser, the Seller, and/or their respective Affiliates before appointment and shall have reasonably satisfied the Seller and the Purchaser of such firm’s independence. Each of the Purchaser and the Seller shall use its reasonable efforts to agree upon the terms of engagement for the Expert and appoint an Expert expeditiously within five (5) Business Days after the other Party’s written request for the nomination of the Expertdisputed Leakage Tax Benefit.

No Leakage. (a) Each Seller represents to the Purchaser that no Leakage other than Permitted Leakages has occurred in connection with the Company since the Locked Box Date and undertakes to procure, to the extent of its powers as direct or indirect shareholder, director, manager or officer of the Warrantors undertakes Company that it no Leakage other than Permitted Leakages will cause occur in connection with the Group Companies not to incur any Leakage during Company between the period from the Balance Sheet Date to date hereof and the Closing Date, unless with the prior written consent of the Purchaser. (b) Subject to the occurrence of Closing having taken placeand to the provisions of Section 3.1.2(d), the Sellers shall repay to the Purchaser, on demand and on a Euro for Euro basis, a sum equal to the positive difference between (i) the amount of any Leakage and (ii) any monetary gain or other benefit (including any Tax Relief) available to the Purchaser and/or any of its Affiliates and/or the Company in respect of any matter giving rise to such Leakage, in accordance with the following: (i) if a Leakage is made to or for the benefit of a given Seller or any of its Affiliates (other than any Group Company) has received (or is entitled to receive Affiliates, the payment obligation shall be entirely borne by such Seller and be treated as a result reduction of a binding agreement or binding commitment by any Group Companyits portion of the Cash Consideration; (ii) a Leakage Amount in respect of any Group Company occurring between the Balance Sheet Date and the Closing Dateall other cases, the Seller payment obligation shall be liable borne by all Sellers, on a several basis (conjointement), in proportion to pay to the Purchaser the aggregate sum equal to the Leakage Amount, which amount shall their respective Allocable Percentage and be paid following final determination thereof in accordance with this Section 6.13 and first out treated as a reduction of their portion of the Indemnity Withheld Amount, to the extent any such amount remainsCash Consideration. (c) If For the avoidance of doubt, (x) the Sellers shall not be liable to reimburse the Purchaser wishes in respect of any Permitted Leakage, and (y) a Leakage may not be repaid more than once to make a claim for the Purchaser. The Parties hereby agree that any Leakage payment made by the Sellers under this Section 6.13, it must send a written notice (a “Leakage Notice”) 3.1.2 shall be deemed to constitute an adjustment to the Seller. A Leakage Notice Total Consideration and agree to treat any such payment as such for all Tax, accounting and financial reporting purposes. (d) No Seller shall not be valid unless it specifies in reasonable detail the factual basis of the alleged Leakage and evidence on which have any repayment liability under Section 3.1.2 unless: (i) a claim has been notified by the Purchaser relies and sets out the Purchaser’s estimate of the amount of the Leakage Amount (including its calculation of to the relevant Leakage Amount). The Seller shall not have any liability under this Section 6.13 unless a Leakage Notice has been sent to and the Seller Sellers’ Agent in writing on or before the expiry of 24 date which is ten (10) months after the ClosingClosing Date, including all relevant details of the nature and the amount of any Leakage which the Purchaser, acting reasonably, believes has been received by any Seller(s) (or all the Sellers) and/or any of their Affiliates or in respect of which the Purchaser believes any Seller(s) (or all the Sellers) and/or any of their Affiliate benefitted; and (ii) judicial proceedings have been brought by an Entity of the Purchaser’s Group against the relevant Seller(s) within ten (10) months of such Seller(s) and the Sellers’ Agent being notified in accordance with the provision of Section 3.1.2(d) if the relevant claim has not been agreed by such Seller(s). (de) Unless The repayment of any amount due by any Seller to the Purchaser under Section 3.1.2 shall be made within twenty (20) Business Days after following the date on which the Seller receives amount of the Leakage Notice the Seller notifies Seller’s repayment liability to the Purchaser in writing that it does not accept the Leakage Notice, the Seller shall be deemed have been finally determined pursuant to have accepted such Leakage Notice. (e) If, within the period of twenty (20) Business Days referred to in Section 6.13(d), the Seller has sent the Purchaser a written notice stating the grounds on which it does not accept the Leakage Notice, the Parties shall negotiate in good faith with a view to reaching either an amicable agreement on the matter. (f) In the event that the Seller and the Purchaser are unable to reach an agreement as aforesaid within twenty (20) Business Days of the Seller giving the notice referred to in Section 6.13(e), the matter shall be submitted for determination by an Expert. For the purposes of this Agreement, an “Expert” means one of the Big Four or any other accounting firm mutually agreed upon by settlement between the Purchaser and the Seller, relevant Seller or any other accounting firm selected by an enforceable decision of a court of competent jurisdiction (décision exécutoire) which is not subject to appeal or with respect to which the secretary general of the Hong Kong International Arbitration Center in accordance with time for appeal has elapsed pursuant to Section 10.3. Any firm proposed or nominated to be an Expert shall be required to declare in writing any current and past associations with the Purchaser, the Seller, and/or their respective Affiliates before appointment and shall have reasonably satisfied the Seller and the Purchaser of such firm’s independence. Each of the Purchaser and the Seller shall use its reasonable efforts to agree upon the terms of engagement for the Expert and appoint an Expert expeditiously within five (5) Business Days after the other Party’s written request for the nomination of the Expert11.17.

No Leakage. (a) Each of the Warrantors undertakes that it will cause the Group Companies not Seller confirms and covenants to incur any Leakage during the period Purchaser that, from the Balance Sheet Locked Box Date to until Closing, no Leakage (except for Permitted Leakage) from the Closing Date, unless with the prior written consent of the PurchaserCompany has occurred or will occur. (b) Subject always to Closing taking place, the Seller undertakes to, irrespective of any fault, indemnify and hold harmless the Purchaser in the sense of article 111 CO for any Leakage in the period from (but excluding) the Locked Box Date until the Closing by paying in cash to the Closing having taken place, if Purchaser on a CHF for CHF basis the amount of such Leakage received by the Seller or any of its Affiliates (other than or Related Parties and, if applicable, upon request of Purchaser, use reasonable efforts to procure the termination, cancellation or rescission of any Group Company) has received (or is entitled to receive as a result of a binding agreement or binding commitment by any Group Company) a Leakage Amount in respect of any Group Company occurring between the Balance Sheet Date and the Closing Date, the Seller shall be liable to pay to the Purchaser the aggregate sum equal to the Leakage Amount, which amount shall be paid following final determination thereof in accordance with this Section 6.13 and first out of the Indemnity Withheld Amount, to the extent any such amount remainsarrangement that constitutes Leakage. (c) If the Purchaser wishes The limitations of Section 13.1(b) (except for para. (iii)) shall apply by analogy to make a claim for any Leakage under this Section 6.13, it must send a written notice (a “Leakage Notice”) to the Seller. A Leakage Notice shall not be valid unless it specifies in reasonable detail the factual basis of the alleged Leakage and evidence on which the Purchaser relies and sets out the Purchaser’s estimate of the amount of the Leakage Amount (including its calculation of the relevant Leakage Amount). The Seller shall not have any liability under this Section 6.13 unless a Leakage Notice has been sent to the Seller in writing on or before the expiry of 24 months after the Closing2.4. (d) Unless within twenty (20) Business Days after The amount of any Leakage to be indemnified shall take into account any Tax liabilities payable and any Tax benefits of the date on which the Seller receives the Leakage Notice the Seller notifies Company or the Purchaser and its Affiliates in writing that it does not accept connection with such Leakage or the Leakage Notice, the Seller repayment thereof and shall be deemed to have accepted such Leakage Noticeincreased or reduced accordingly. (e) If, within the period The obligations of twenty (20) Business Days referred to in Section 6.13(d), the Seller under this Section 2.4 shall be forfeited and precluded from being made (verwirkt) on the date falling six months after the Closing Date unless Purchaser has sent notified the Seller in writing by that time of any Leakage, setting out the identity of the Seller and the amount and reasonable details of such Leakage, together with reasonable evidence thereof to the extent available enabling the Seller to remedy or procure remediation of the Leakage. With respect to any claims for Leakage notified by Purchaser in accordance with this paragraph, on the date falling three months after such notice unless the Purchaser a written notice stating the grounds on which it does not accept the Leakage Notice, the Parties shall negotiate has by that time initiated arbitral proceedings in good faith accordance with a view to reaching an agreement on the matterSection 15 (Applicable Law and Dispute Resolution) in respect of such claim for Leakage. (f) In The Seller has the event that the Seller and the Purchaser are unable to reach an agreement as aforesaid right within twenty 30 (20thirty) Business Days from receipt of Purchaser’s notice of any Leakage to remedy or procure remediation of the respective Leakage as required in respect of the nature of such Leakage and Purchaser shall, and shall procure that the Company will, upon Seller’s request reasonably cooperate with the Seller giving with respect to such Leakage remedy. (g) Any payments by the notice referred Seller to the Purchaser in discharge of its obligations under Section 6.13(e), the matter 2.4 shall be submitted for determination by an Expert. For the purposes of this Agreement, an “Expert” means one treated as a reduction of the Big Four or any other accounting firm mutually agreed upon by the Purchaser and the Seller, or any other accounting firm selected by the secretary general of the Hong Kong International Arbitration Center in accordance with Section 10.3. Any firm proposed or nominated to be an Expert shall be required to declare in writing any current and past associations with the Purchaser, the Seller, and/or their respective Affiliates before appointment and shall have reasonably satisfied the Seller and the Purchaser of such firm’s independence. Each of the Purchaser and the Seller shall use its reasonable efforts to agree upon the terms of engagement for the Expert and appoint an Expert expeditiously within five (5) Business Days after the other Party’s written request for the nomination of the ExpertPurchase Price.

No Leakage. (a) Each of The Seller covenants, warrants and undertakes to the Warrantors undertakes Buyer that it will cause the Group Companies not to incur any no Leakage during has occurred or shall occur (as applicable) in the period from (and excluding) the Balance Sheet Locked Box Date up to (and including) the Closing Date, unless with provided that if any such Leakage occurs, the prior written consent Seller shall promptly give notice in writing to the Buyer of the Purchasersame setting forth in reasonable detail the specific nature and amount of such Leakage. (b) Subject 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) the Closing Date (not included in the Known Leakages), irrespective as to whether such Leakage has been disclosed to the Closing having taken placeBuyer or not, if the Seller or any of its Affiliates (other than any Group Company) has received (or is entitled to receive as a result of a binding agreement or binding commitment by any Group Company) a Leakage Amount in respect of any Group Company occurring between which the Balance Sheet Date and Buyer has provided to the Seller, no later than the date falling nine months after the Closing Date, written notice setting forth its assessment of the type and the amount of such Leakage (a "Leakage Notice"), the Seller shall be liable to pay to the Purchaser the aggregate sum Buyer on demand in cash on a CHF for CHF basis an amount equal to (i) the Leakage AmountLeakage, which amount shall be paid following final determination thereof in accordance with this Section 6.13 plus (ii) any liabilities, losses, damages, costs and first expenses (including court's costs and reasonable legal fees and expenses) arising out of the Indemnity Withheld occurrence of such Leakage in breach of this Agreement (collectively, the "Leakage Adjustment Amount, to the extent any such amount remains"). (c) If the Purchaser wishes to make a claim for any Leakage under this Section 6.13Adjustment Amount or the absence thereof is disputed by the Seller or the Buyer, it must send a written the disputing Party shall give notice (a “Leakage Notice”) in writing of such fact to the Seller. A other Party within 20 Business Days of receipt of the Leakage Notice shall not be valid unless it specifies specifying in reasonable detail the factual basis of the alleged matters which are in dispute (a "Leakage and evidence on Dispute Notice") failing which the Purchaser relies and sets out the Purchaser’s estimate of the amount of the such Leakage Adjustment Amount (including its calculation of the relevant Leakage Amount). The Seller shall not have any liability under this Section 6.13 unless a Leakage Notice has been sent to the Seller in writing on or before the expiry of 24 months after the Closing. (d) Unless within twenty (20) Business Days after the date on which the Seller receives the Leakage Notice the Seller notifies the Purchaser in writing that it does not accept the Leakage Notice, the Seller shall be deemed to have accepted such Leakage Notice. (e) If, within agreed. To the period of twenty (20) Business Days referred to in Section 6.13(d), the Seller has sent the Purchaser a written notice stating the grounds on which it does not accept the Leakage Notice, the Parties shall negotiate in good faith with a view to reaching an agreement on the matter. (f) In the event extent that the Seller and the Purchaser are unable Buyer cannot reach agreement on the relevant Leakage Adjustment Amount within 20 Business Days after service of a Leakage Dispute Notice, the Buyer or the relevant Seller may refer the dispute to reach Ernst & Young AG, Switzerland or, if it refuses, to an agreement as aforesaid accounting firm appointed by the President of the Geneva Chamber of Commerce, Industry and Services (the "Independent Accountant"), on the basis that the Independent Accountant is to make a decision on the dispute and notify the Buyer and the Seller of its decision within twenty (20) 15 Business Days of receiving the Seller giving reference, or such longer period as the notice referred Independent Accountant may reasonably determine or require. In any reference to the Independent Accountant in Section 6.13(e), this Article 2.5: (i) the matter Independent Accountant shall act as an expert within the meaning of Article 189 of the Swiss Federal Code of Civil Procedure and not as an arbitrator; (ii) the Independent Accountant shall be submitted directed to determine any dispute by reference to the accounting policies, principles, practices, bases and methodologies that were used for determination by an Expert. For the purposes of this Agreementpreparing, an “Expert” means one and reflected in, the Financial Statements; (iii) the procedure of the Big Four or any other accounting firm mutually agreed upon Independent Accountant shall comply with the requirements of due process; (iv) the Independent Accountant shall only review items, which are being disputed by the Purchaser Parties, excluding re-calculation of any items that are not disputed; (v) the decision of the Independent Accountant shall, in the absence of fraud or manifest error, be final and binding on the Buyer and the Seller, or any other accounting firm selected by ; (vi) the secretary general costs of the Hong Kong International Arbitration Center in accordance with Section 10.3. Any firm proposed or nominated to be an Expert Independent Accountant shall be required to declare in writing any current and past associations with the Purchaser, the Seller, and/or their respective Affiliates before appointment and shall have reasonably satisfied paid by the Seller and the Purchaser Buyer as determined by the Independent Accountant based on the outcome of such firm’s independence. Each of its decision; and (vii) the Purchaser Seller and the Seller Buyer shall use its reasonable efforts respectively provide or procure the provision to agree upon the terms Independent Accountant, in a timely manner, of engagement for all such information as the Expert and appoint an Expert expeditiously within five (5) Business Days after the other Party’s written request for the nomination of the ExpertIndependent Accountant shall reasonably require.