Common use of No Leakage Clause in Contracts

No Leakage. 2.4.1 Between the Last Accounting Date and the date of this Agreement: (a) no dividend or other distribution of profits or assets has been declared, paid or made by any Group Company or would be treated as having been paid or made by any Group Company to or for the benefit of any Seller or any Seller Affiliate; (b) no payment has been made by or on behalf of a Group Company to or for the benefit of any Seller or any Seller Affiliate; (c) no share or loan capital or other securities of any Group Company has been redeemed, repurchased or repaid or results in a payment to or an agreement or obligation to make a payment to any Seller or any Seller Affiliate; (d) no amount, liability or obligation owed to any Group Company by any Seller or any Seller Affiliate has been waived or forgiven or discounted; (e) no asset, right or other benefits has been transferred by any Group Company to any Seller or any Seller Affiliate; (f) no liabilities have been assumed or incurred (or any indemnity given in respect thereof) by any Group Company for the benefit of any Seller or any Seller Affiliate; (g) no Encumbrance has been created over any of the assets of any Group Company in favour of or for the benefit of any Seller or any Seller Affiliate; (h) no management, monitoring or other shareholder or directors’ fees or bonuses or payments of a similar nature have been paid by or on behalf of any Group Company to or for the benefit of any Seller or any Seller Affiliate, except that the payment of such fees or bonuses is consistent with past practice; (i) no costs or expenses of any Seller or any Seller Affiliate relating to the transactions contemplated by the Transaction Documents (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 Sale Shares (to any person)), have been paid or incurred, by or on behalf of any Group Company to or on behalf of any Seller or any Seller Affiliate; (j) no Group Company has amended the terms of its borrowing or indebtedness in the nature of borrowing owed by it to any Seller or any Seller Affiliate or for the benefit of any Seller or any Seller Affiliate; (k) no payment of exit bonus has been made to any Seller, any Seller Affiliate or any director, employee, representative or consultant of any Group Company, any Seller or any Seller Affiliate as a result of Completion, and no obligation to make such payment will arise as a result of Completion; (l) no agreements, understandings or arrangements have been entered into whereby the person directly benefiting from any of the matters referred to in paragraphs 2.4.1 (a) to 2.4.1(k) above confers (directly or indirectly) a benefit on a Seller or any Seller Affiliate; (m) none of the Sellers nor any Seller Affiliate has agreed or committed to do any of the things set out in paragraphs 2.4.1 (a) to 2.4.1(l) above; and (n) no Tax has been or will be paid, payable or agreed to be paid, by any Group Company in connection with any of the matters set out above (and no Tax would be so paid or payable but for the availability of Relief), (a) to 2.4.1(n) above, a “Leakage”).

No Leakage. 2.4.1 Between the Last Accounting Date and the date of this Agreement: (a) From the Effective Date until the Signing Date, no dividend Leakage (other than Permitted Leakage) has occurred with regard to any Vinnolit Entity that has not been remedied prior to or other distribution on the Signing Date, or will not have been remedied prior to the Closing Date. (b) Leakage shall mean (i) the declaration and/or payment of profits any dividends, profit transfers or assets has been declared, similar distributions (whether in cash or in kind) to be paid or made by any Group Company of the Vinnolit Entities to any Seller or would any Affiliate of any Seller (other than the Vinnolit Entities); (ii) any payments made, or agreed to be treated as having been paid or made made, by any Group Company of the Vinnolit Entities in respect of any share capital or other securities of any of the Vinnolit Entities being created, issued, redeemed, repurchased or repaid, or any other return of capital; (iii) any payments made, or agreed to be made, or future benefits granted to or assets transferred to, or liabilities assumed, indemnified or incurred (or any guarantee or indemnity given in respect thereof) for the benefit of any Seller or any Affiliate of any Seller Affiliate(other than the Vinnolit Entities) by any of the Vinnolit Entities (in each case other than payments for the delivery of products or services consistent with past practice); (biv) no payment has been made the waiver, or agreement to waive, by or on behalf any of a Group Company the Vinnolit Entities of any amount owed to or for the benefit of that Vinnolit Entity by any Seller or any Affiliate of any Seller Affiliate(other than the Vinnolit Entities); (cv) no share or loan capital or other securities the payment of any Group Company has been redeemedmanagement, repurchased monitoring, service, director’s, consulting or repaid or results in a payment to or an agreement or obligation to make a payment similar fees by any of the Vinnolit Entities to any Seller or any Affiliate of any Seller Affiliate(other than the Vinnolit Entities) and the incurring of any such liability; (dvi) no amount, any payment or any liability incurred or obligation owed benefit provided by any of the Vinnolit Entities to any Group Company director or employee of any Seller or of any Affiliate of any Seller (other than the Vinnolit Entities) except where such person is a director, employee or member of a corporate body of a Vinnolit Entity and has received such payment or benefit or benefited from such liability in such function; (vii) the payment of any bonus, retention bonus or incentive payment, success fee or similar payment by any of the Vinnolit Entities to any director or employee in relation to this Agreement; (viii) the payment of any costs, expenses or fees by any of the Vinnolit Entities in relation to this Agreement including lawyer fees and fees for financial or other professional advisors, and incurring of any such liability; (ix) any Taxes paid or that will become payable by any of the Vinnolit Entities to the extent attributable to any of the foregoing; (x) any agreement or legally binding offer to do any of the foregoing; and (xi) any measures described in (i) through (x) taken by any Seller or any Seller Affiliate has been waived or forgiven or discounted; (e) no asset, right or other benefits has been transferred by any Group Company to any Seller or any Seller Affiliate; (f) no liabilities have been assumed or incurred (or any indemnity given in respect thereof) by any Group Company for the benefit of any Seller or any Seller Affiliate; (gother than the Vinnolit Entities) no Encumbrance has been created over any of for the assets account of any Group Company in favour of or for the benefit of any Seller or any Seller Affiliate; (h) no management, monitoring or other shareholder or directors’ fees or bonuses or payments of a similar nature have been paid by or on behalf of any Group Company to or for the benefit of any Seller or any Seller Affiliate, except that the payment of such fees or bonuses is consistent with past practice; (i) no costs or expenses of any Seller or any Seller Affiliate relating to the transactions contemplated by the Transaction Documents (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 Sale Shares (to any person)), have been paid or incurred, by or on behalf of any Group Company to or on behalf of any Seller or any Seller Affiliate; (j) no Group Company has amended the terms of its borrowing or indebtedness in the nature of borrowing owed by it to any Seller or any Seller Affiliate or for the benefit of any Seller or any Seller Affiliate; (k) no payment of exit bonus has been made to any Seller, any Seller Affiliate or any director, employee, representative or consultant of any Group Company, any Seller or any Seller Affiliate as a result of Completion, and no obligation to make such payment will arise as a result of Completion; (l) no agreements, understandings or arrangements have been entered into whereby the person directly benefiting from any of the matters referred to in paragraphs 2.4.1 (a) to 2.4.1(k) above confers (directly or indirectly) a benefit on a Seller or any Seller Affiliate; (m) none of the Sellers nor any Seller Affiliate has agreed or committed to do any of the things set out in paragraphs 2.4.1 (a) to 2.4.1(l) above; and (n) no Tax has been or will be paid, payable or agreed to be paid, by any Group Company in connection with any of the matters set out above (and no Tax would be so paid or payable but for the availability of Relief), (a) to 2.4.1(n) above, a “Leakage”)Vinnolit Entity.

No Leakage. 2.4.1 Between Except as set forth on Section 4.20 of the Last Accounting Date and Disclosure Letter, since the date of this AgreementLocked-Box Date: (a) no dividend dividend, return of capital or other distribution of profits profits, cash or assets has been declaredpaid, paid made or declared by Acquiror to any Acquiror Affiliated Person; (b) no payments have been made by or on behalf of the Acquiror with respect to Acquiror Transaction Expenses; (c) no payments (whether by gift or otherwise) or obligations to make payments (including costs and expenses of any Group Company Acquiror Affiliated Person) have been paid, made, incurred or would be treated as having been paid accrued by or made by any Group Company on behalf of Acquiror to or for the benefit of any Seller or any Seller AffiliateAcquiror Affiliated Person; (b) no payment has been made by or on behalf of a Group Company to or for the benefit of any Seller or any Seller Affiliate; (cd) no share or loan capital or other interest, equity or securities of any Group Company Acquiror has been redeemed, repurchased or repaid or results in a payment to or an agreement or obligation to make a payment to any Seller or any Seller Affiliate; (d) no amount, liability or obligation owed to any Group Company by any Seller or any Seller Affiliate has been waived or forgiven or discountedfor value; (e) no assetamounts, right obligations or other benefits has Liabilities owed or due to Acquiror by an Acquiror Affiliated Person have been transferred by any Group Company to any Seller waived, released or any Seller Affiliateforgiven; (f) no liabilities have been assumed or incurred (or any indemnity given in respect thereof) by any Group Company for the benefit sale of any Seller asset of Acquiror to, or the purchase of any Seller Affiliateasset by Acquiror from, an Acquiror Affiliated Person has occurred; (g) no Encumbrance has been created over payment made under any guarantee, indemnity or security provided by Acquiror in respect of the assets obligations or liabilities of any Group Company in favour of or for the benefit of any Seller or any Seller AffiliateAcquiror Affiliated Person; (h) no managementpayment of any fees, monitoring costs or other shareholder or directors’ fees or bonuses or payments Tax incurred by Acquiror as a result of a similar nature those matters set out in paragraphs (a) to (g) above have been paid by or on behalf of any Group Company to or for the benefit of any Seller or any Seller Affiliate, except that the payment of such fees or bonuses is consistent with past practice;made; and (i) no costs or expenses of any Seller or any Seller Affiliate relating Acquiror has not agreed to the transactions contemplated by the Transaction Documents (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 Sale Shares (to any person)), have been paid or incurred, by or on behalf of any Group Company to or on behalf of any Seller or any Seller Affiliate; (j) no Group Company has amended the terms of its borrowing or indebtedness in the nature of borrowing owed by it to any Seller or any Seller Affiliate or for the benefit of any Seller or any Seller Affiliate; (k) no payment of exit bonus has been made to any Seller, any Seller Affiliate or any director, employee, representative or consultant of any Group Company, any Seller or any Seller Affiliate as a result of Completion, and no obligation to make such payment will arise as a result of Completion; (l) no agreements, understandings or arrangements have been entered into whereby the person directly benefiting from take any of the matters referred to actions set forth in paragraphs 2.4.1 Section 4.20(a) through (ah). Each of any such events in Section 4.20(a) to 2.4.1(k) above confers through (directly i), taken from and after the Locked-Box Date through the Closing Date, and the amounts involved or indirectly) a benefit on a Seller or any Seller Affiliate; (m) none of the Sellers nor any Seller Affiliate has agreed or committed to do any of the things set out in paragraphs 2.4.1 (a) to 2.4.1(l) above; and (n) no Tax has been or will be paidattributable thereto, payable or agreed to be paidwithout duplication, by any Group Company in connection with any of the matters set out above (and no Tax would be so paid or payable but for the availability of Relief), (a) to 2.4.1(n) above, a being “Acquiror Leakage”); provided, however, that, in no event will “Acquiror Leakage” mean or include Permitted Acquiror Leakage.

No Leakage. 2.4.1 Between 7.1 GKN warrants and undertakes that from and including the Last Accounting Effective Date and until and including the date of this AgreementShare Purchase Time, other than Permitted Leakage: (aA) no dividend or other distribution member of profits or assets the GKN Driveline Group has been declared, authorised, paid or made (whether actual or deemed) to any member of the Retained Group or any Retained Group Related Person, any dividend, distribution or other return of capital (whether by reduction of capital, purchase of shares or otherwise) or will do any of those things; (B) no member of the GKN Driveline Group has transferred or surrendered any asset or future benefit to, or assumed, indemnified or incurred any liability (including, without limitation, any indebtedness, expenses or costs) for the benefit of, the Retained Group or any Retained Group Related Person or will do any of those things; (C) no member of the GKN Driveline Group has made any payment of interest on any loan to any member of the Retained Group or any Retained Group Related Person or will do any of those things; (D) no member of the GKN Driveline Group has made or will make any payment to any Global Retirement Benefit Arrangement; (E) no member of the GKN Driveline Group has forgiven, waived or released, whether conditional or not, in favour of any member of the Retained Group or Retained Group Related Person, any sum or obligation due by any such member of the Retained Group Company to any member of the GKN Driveline Group, or would be treated as having been paid or will do any such thing; (F) no member of the GKN Driveline Group has made by any Group Company to or payments for the benefit of any Seller the Retained Group or any Seller AffiliateRetained Group Related Person (including, without limitation, management, advisory, professional services or other such charges, fees, costs or expenses, or any transaction, retention or sale bonuses (including but not limited to any bonuses paid to any person in connection with the transactions contemplated by this Agreement)) or will do any such thing; (bG) no payment has been made by GKN Industries Limited to GKN Enterprise Limited pursuant to clause 10.1(A) or on behalf of a Group Company to or for the benefit of any Seller or any Seller Affiliate10.1(B); (cH) no share or loan capital or other securities of any Group Company has been redeemed, repurchased or repaid or results in a payment to or an agreement or obligation to make a payment to any Seller or any Seller Affiliate; (d) no amount, liability or obligation owed to any Group Company by any Seller or any Seller Affiliate has been waived or forgiven or discounted; (e) no asset, right or other benefits has been transferred by any Group Company to any Seller or any Seller Affiliate; (f) no liabilities have been assumed or incurred (or any indemnity given in respect thereof) by any Group Company for the benefit of any Seller or any Seller Affiliate; (g) no Encumbrance has been created over any member of the assets of GKN Driveline Group has made any Group Company in favour of or for the benefit of any Seller or any Seller Affiliate; (h) no management, monitoring or other shareholder or directors’ fees or bonuses or payments of a similar nature have been paid by or on behalf of any Group Company to or for the benefit of any Seller or any Seller Affiliate, except that the payment of such fees Tax nor incurred any Tax Liability in connection with or bonuses is consistent with past practice; (i) no costs or expenses arising out of any Seller or any Seller Affiliate relating to the transactions contemplated by the Transaction Documents (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 Sale Shares (to any person)), have been paid or incurred, by or on behalf of any Group Company to or on behalf of any Seller or any Seller Affiliate; (j) no Group Company has amended the terms of its borrowing or indebtedness in the nature of borrowing owed by it to any Seller or any Seller Affiliate or for the benefit of any Seller or any Seller Affiliate; (k) no payment of exit bonus has been made to any Seller, any Seller Affiliate or any director, employee, representative or consultant of any Group Company, any Seller or any Seller Affiliate as a result of Completion, and no obligation to make such payment will arise as a result of Completion; (l) no agreements, understandings or arrangements have been entered into whereby the person directly benefiting from any of the matters referred to in paragraphs 2.4.1 (aA) to 2.4.1(k) above confers (directly or indirectly) a benefit on a Seller or any Seller Affiliate; (m) none of the Sellers nor any Seller Affiliate has agreed or committed to do any of the things set out in paragraphs 2.4.1 (a) to 2.4.1(lG) above; and (nI) no Tax member of the GKN Driveline Group has been made or will be paid, payable entered into any agreement or agreed arrangement to be paid, by any Group Company in connection with give effect to any of the matters referred to in (A) to (G) above or will do any of those things, the occurrence of any of the events set out above (and no Tax would be so paid or payable but for the availability in this clause 7.1 constituting an incident of Relief), (a) to 2.4.1(n) above, a “Leakage”. 7.2 The parties acknowledge and agree that none of the following events shall constitute an incident of Leakage: (A) payments or accruals in respect of ordinary course payments consistent with past practice to be made by a member of the GKN Driveline Group or part of the GKN Driveline Business to GKN Investments LP, pursuant to property leases from time to time granted by GKN Investments LP in accordance with the terms of the limited partnership agreement between GKN Holdings Plc, GKN Investments LP, GKN Group Pension Trustee Limited and GKN Group Pension Trustee (No. 2) Limited dated 31 May 2013, as amended or restated from time to time; (B) payments or transfers of cash under and in accordance with the GKN Group’s cash pooling and treasury management arrangements existing as at the date of this Agreement (provided that a corresponding intercompany balance is duly recorded by the payor or transferor in respect of any such payment or transfer and provided that such cash pooling balances are settled in cash at the Share Purchase Time in accordance with clause 10); and (C) the assumption by SpinCo of GKN’s liabilities under the Reorganisation Note pursuant to clause 4.1(C) and the Reorganisation Note Assumption Deed. 7.3 Promptly following service by SpinCo (or any person on behalf of SpinCo) on GKN of a Leakage Notice, GKN and SpinCo shall seek to agree the amount of the relevant Leakage. A Leakage Notice shall be in writing without prejudice to clause 7.9 and shall specify in reasonable detail the nature of the Leakage and the amount claimed. 7.4 If the amount of Leakage stated in a Leakage Notice is disputed by GKN, GKN shall give notice in writing of such fact to SpinCo within 10 Business Days of receipt of the Leakage Notice specifying in reasonable detail the matters which are in dispute (a “Dispute Notice”). To the extent that GKN and SpinCo cannot reach agreement on the amount of Leakage within 10 Business Days after service of a Dispute Notice, SpinCo or GKN may refer the dispute to the Expert, on the basis that the Expert is to make a decision on the dispute and notify SpinCo and GKN of its decision within 30 Business Days of receiving the reference or such longer reasonable period as the Expert may determine. 7.5 Each party shall bear its own costs with respect to the finalisation of any amount of Leakage. The costs of the Expert shall be borne by GKN and SpinCo as set out in clause 7.6(C) below. 7.6 In any reference to the Expert in accordance with clause 7.4 above: (A) the Expert shall act as an expert and not as an arbitrator; (B) the decision of the Expert shall, in the absence of fraud or manifest error, be final and binding on the parties; (C) the costs of the Expert shall be paid by GKN and SpinCo equally or as otherwise determined by the Expert; and (D) each of GKN and SpinCo shall respectively provide or procure the provision to the Expert of all such information as the Expert shall reasonably require. 7.7 If any amount of Leakage is agreed or determined before the Share Purchase Time, notwithstanding any provision of this Agreement, the parties hereby agree that the consideration payable in respect of the Shares shall be reduced by an amount equal to the amount of such Leakage. 7.8 If any amount of Leakage is agreed or determined in accordance with clause 7.3 or clause 7.4 after the Share Purchase Time, to the extent such any amount of Leakage is not already accounted for pursuant to clause 7.7, the parties hereby agree that an amount in cash equal to the amount of such Leakage shall be paid by GKN to SpinCo on an after-Tax basis immediately following such agreement or determination (as far as possible by way of repayment of the Cash Consideration). 7.9 GKN shall not be liable in respect of any claim or obligation arising as a result of any Leakage unless GKN has received a Leakage Notice from SpinCo (or any person on behalf of SpinCo) on or before the date which is nine months after the Share Purchase Time.

No Leakage. 2.4.1 Between (a) The Seller covenants and undertakes to the Last Accounting Date Buyer that it shall procure, to the extent that it is able, that no Leakage shall occur in the period from (and excluding) December 31, 2009 up to (and including) Closing. (b) Each of the date of this Agreementfollowing shall, if done or committed to in the period from (and excluding) December 31, 2009 up to (and including) Closing, constitute a “Leakage”: (ai) no dividend any dividend, or other distribution of profits or assets has been declared, paid paid, made or agreed or obligated to be made by the Company to the Seller; (ii) any Group Company payments made (including management fees, professional advisers fees, consulting fees, monitoring fees, service fees, directors’ fees or would any other amounts under any agreement or arrangement), or agreed or obligated to be treated ** Portions of the Exhibit have been omitted and have been filed separately pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as having been paid or made amended. made, by any Mepha Group Company to or for the benefit of (or assets transferred to or liabilities assumed, indemnified, or incurred by any Mepha Group Company for the benefit of) the Seller or any Seller Affiliatemember of the Seller’s Group; (biii) no payment has been any fees, bonuses or expenses in connection with the transactions contemplated by this Agreement owed by either Seller or any member of the Seller’s Group to the extent paid, payable, assumed, indemnified or incurred by any Mepha Group Company; (iv) any payments made or agreed to be made by or on behalf of a any Mepha Group Company to the Seller or for to any member of the benefit Seller’s Group in respect of any Seller or any Seller Affiliate; (c) no share or loan capital or other securities of any Mepha Group Company has been being issued, redeemed, repurchased purchased or repaid repaid, or results in a payment any other return of capital; (v) the waiver by any Mepha Group Company of any debt or amount owed to or an agreement or obligation to make a payment to any it by the Seller or any Seller Affiliatemember of the Seller’s Group; (dvi) no amount, liability any indemnity or obligation owed to waiver granted by any Mepha Group Company by any Seller or any Seller Affiliate has been waived or forgiven or discounted; (e) no asset, right or other benefits has been transferred by any Group Company to any Seller or any Seller Affiliate; (f) no liabilities have been assumed or incurred (or any indemnity given in respect thereof) by any Group Company for the benefit of any Seller or any Seller Affiliate; (g) no Encumbrance has been created over any of the assets of any Group Company its subsidiaries in favour of or for the benefit of any the Seller or any Seller Affiliate;member of the Seller’s Group; and (hvii) no management, monitoring any agreement or other shareholder arrangement proposed or directors’ fees or bonuses or payments of a similar nature have been paid by or on behalf of entered into between any Mepha Group Company to or for and the benefit of any Seller or any Seller Affiliatemember of the Seller’s Group relating to any matter referred to in this Section 11.1.4(b); provided, except however, that the payment of such fees or bonuses is consistent with past practice; (i) no costs any payment under the Retention Bonus Plan, (ii) the repayment of the Seller’s Loan, (iii) any payment or expenses actions in connection with the VEM Loan Assignment Agreement and German VEM Loan Assignment Agreement, (iv) the release of any Seller or any Seller Affiliate relating to pledge rights in connection with the transactions contemplated by the Transaction Documents (to any person)VEM Loan Assignment Agreement, or to the (v) any other transactions action contemplated by this Agreement and required to be taken by such Party under this Agreement, shall not be considered to fall within the definition of Leakage. (including c) From and after Closing, if there has been any professional advisers’ fees Leakage between December 31, 2009 and any transaction or sale bonuses or other payments payable as a result of Closing, at the completion of Buyer’s discretion, either (a) the sale of Buyer shall be entitled to claim the Sale Shares (to any person)), have been paid or incurred, by or on behalf amount of any Group Company Leakage in accordance with Section 5 or (b) the Seller shall pay to the Buyer (or on behalf of any Seller or any Seller Affiliate; (j) no Group Company has amended to the terms of its borrowing or indebtedness in the nature of borrowing owed by it to any Seller or any Seller Affiliate or for the benefit of any Seller or any Seller Affiliate; (k) no payment of exit bonus has been made to any Seller, any Seller Affiliate or any director, employee, representative or consultant of any relevant Mepha Group Company, any Seller or any Seller Affiliate as a result if so directed by the Buyer) within ** Portions of Completion, and no obligation to make such payment will arise as a result of Completion; (l) no agreements, understandings or arrangements the Exhibit have been entered into whereby omitted and have been filed separately pursuant to an application for confidential treatment filed with the person directly benefiting Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. five (5) Business Days of receipt of a demand from the Buyer, an amount equal to the amount of any of the matters referred to in paragraphs 2.4.1 (a) to 2.4.1(k) above confers (directly or indirectly) a benefit on a Seller or any Seller Affiliate; (m) none of the Sellers nor any Seller Affiliate has agreed or committed to do any of the things set out in paragraphs 2.4.1 (a) to 2.4.1(l) above; and (n) no Tax has been or will be paid, payable or agreed to be paid, by any Group Company in connection with any of the matters set out above (and no Tax would be so paid or payable but for the availability of Relief), (a) to 2.4.1(n) above, a “Leakage”).