Common use of No Leakage Clause in Contracts

No Leakage. Except any transaction contemplated by or disclosed in this Agreement in the period between 28 February 2021 (the "Effective Date") and the Signing Date, no member of the Target Group has carried out its business outside the ordinary course. Notwithstanding the generality of the foregoing, except any transactions contemplated by or disclosed in this Agreement, in the time period between the Effective Date and the Signing Date: (a) no member of the Target Group has declared or paid any dividend or made any dividend distribution to the Sellers or any Sellers' Affiliate; (b) no member of the Target Group has, except as in the ordinary course of business and in accordance with past practice, paid any management fees, monitoring fees, advisory fees, directors’ fees or other fees or compensation to Sellers or any Sellers' Affiliate; (c) no member of the Target Group has made any divestiture of a shareholding or business with a value in excess of USD 100,000 each; (d) no member of the Target Group has (i) issued any guarantee or other security interest to secure any indebtedness of a third party in excess of USD 100,000 in an individual case, other than guarantees in favor of any other member of the Target Group or granted in the ordinary course of business and in amounts and on terms consistent with past practice or (ii) created any lien, encumbrance or other security interest of any kind on any asset with respect to a liability in excess of USD 100,000 in an individual case other than in the ordinary course of business and in amounts and on terms consistent with past practice; (e) no member of the Target Group has made any capital expenditures by additions or improvements to property, plant or equipment or acquisition of other fixed assets (Anlagevermögen), which have not been approved before the Signing Date or which have not been provided for in the respective budget or business plans, except for capital expenditures which do not exceed the amounts provided for in the budget or business plan by more than USD 100,000 in the aggregate; (f) no member of the Target Group has entered into any sale, lease, license or other disposal of any material fixed assets exceeding USD 100,000 in an individual case; (g) no member of the Target Group has, except within the framework of the existing financing agreements of the Target Group in place as of the Effective Date (or any extensions or replacement thereof), including, for the avoidance of doubt the existing Shareholder Loans, incurred any indebtedness for borrowed money, issued or sold any debt security or prepaid any debt in each case from a third party (other than from any other member of the Target Group), in excess of USD 100,000 in the aggregate and except for additional shareholder loans granted by the Sellers or Sellers' Affiliates to the Target Group to finance the working capital requirements of the Target Group or otherwise in accordance with past practice; (h) no member of the Target Group has made any advance under, or extended any loan to, any third party (other than to another member of the Target Group), in each case outside the ordinary course of business; (i) no member of the Target Group has made any payments to Sellers or any Sellers' Affiliates except for payments made in accordance with the terms of the Shareholder Loans or the redemption of Bonds which are already reflected in Exhibit 6.3; (j) no member of the Target Group has (i) paid any fees, bonuses or expenses to Sellers (or any Sellers' Affiliates) which are related to the transactions contemplated hereby, and there is no unpaid obligation to make any such payments; or (ii) entered into any obligation to pay any fees, bonuses or expenses to the Sellers (or any Sellers' Affiliate) by virtue of, or in connection with, the execution of this Agreement or the consummation of the Transaction; (k) no member of the Target Group has entered into any settlement (Vergleich) or compromised any disputed rights or claims against any third party or against Sellers or any Sellers' Affiliate exceeding USD 100,000 in an individual case other than in the ordinary course of business and in amounts and on terms consistent with past practice; (l) no member of the Target Group has entered into any other agreement (other than agreements contemplated by or disclosed in this Agreement) with the Sellers or any Sellers' Affiliate which is outside the ordinary course of business; (m) no member of the Target Group has forgiven any claims against, or made any gifts or donations to any director, officer or employee of any member of the Target Group or Sellers or any Sellers' Affiliate other than in the ordinary course of business and in amounts and on terms consistent with past practice; (n) no member of the Target Group has effected any material change to any method of accounting or accounting practice or policy currently applied by the Target Group, as the case may be, except as required by reason of a concurrent change in, or conversion to, the applicable generally accepted accounting principles.

No Leakage. Except any transaction contemplated In accordance with and under the limitations set out in clause 7.1, each Seller guarantees to the Purchaser that it has not and no Seller Connected Person has received or benefitted from (other than by or disclosed in this Agreement in the period between 28 February 2021 (the "Effective Date") and the Signing Date, no member an increase of the Target Group has carried out value of its business outside the ordinary course. Notwithstanding the generality of the foregoingHEG-Shares) any Leakage, except any transactions contemplated by or disclosed other than a Permitted Leakage (in this Agreementeach case as defined below), in the time period between the Effective Date and the Signing Date that has not been remedied prior to or on the Signing Date:. (a) no member Leakage shall mean (i) any payment or declaration of the Target Group has declared or paid any dividend or made similar distribution (whether in cash or in kind) by any dividend distribution of the Group Companies (except to other Group Companies), or any reduction of its paid-up share capital, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its share capital, (ii) any payment by any of the Group Companies of interest on, the increase of interest payable on, or repayment of principal of, the Loan Notes or any other indebtedness of any Group Company owed to a Seller or a Seller Connected Person, (iii) any payment by any of the Group Companies of, or any Group Company incurring a liability to pay transaction costs (including legal, accounting and financial advisory fees and expenses), (iv) any payment by any of the Group Companies of, or any Group Company on a liability to pay any, brokerage, finder’s fee, commission, advisor’s fee, bonus or other compensation (in each case of (iii) and (iv) to the extent related to the execution of this Agreement, or the preparation or consummation of the Transaction, any of which shall be deemed to be of benefit to each Seller), (v) any payment to a Seller or a Seller Connected Person by any of the Group Companies of, or any Group Company on a liability to pay any management, service or other charge or fee, provided that the foregoing is not a bona fide, arm’s length commercial transaction on customary terms and is not related to the Transaction, (vi) any transfer to a Seller or a Seller Connected Person of a right or asset by a Group Company, provided that the foregoing is not a bona fide, arm’s length commercial transaction on customary terms and is not related to the Transaction, (vii) any assumption or incurring of any liability by any Group Company on behalf of or for the benefit of a Seller or a Seller Connected Person, provided that the foregoing is not a bona fide, arm’s length commercial transaction on customary terms and is not related to the Transaction, (viii) any waiver, release or deferral by a Group Company of any obligation owed to it by a Seller or a Seller Connected Person, provided that the foregoing is not a bona fide, arm’s length commercial transaction on customary terms and is not related to the Transaction, (ix) any grant to a Seller or a Seller Connected Person by any Group Company of any surety, guarantee or indemnity, provided that the foregoing is not a bona fide, arm’s length commercial transaction on customary terms and is not related to the Transaction, (x) any transaction entered into by a Group Company which is not at arms’ length, or (xi) any commitment of any Group Company to do any of the foregoing, including, in respect of all payments and payment commitments referred to in clauses (i) to (xi) above, inclusive, any Tax associated with such payments or payment commitments. (b) Permitted Leakage shall mean (i) any accrual of interest payable to the Loan Note Holders under the Loan Notes, (ii) any payment or commitment to pay to the Sellers or any Sellers' Affiliate; person or entity Connected with the Sellers under any service agreement (bDienstleistungsvertrag) no member listed in Exhibit 7.2.3(b)(ii), up to a maximum of EUR 350,000 per calendar quarter, (iii) any payment or commitment to pay as set forth in Exhibit 7.2.3(b)(iii) and (iv) any payment to the Indigo Sellers of the Target Group hasHoldback Payment Amount, except as in all cases of (i) to (iv) above including any Tax associated with such payments or payment commitments. The amount of the ordinary course Permitted Leakage specified under no. 5 through 11 in Exhibit 7.2.3(b)(iii) (Transaction Advisor Fees) shall be notified by the Sellers (acting through the Sellers’ Representative) to the Purchaser three (3) Business Days prior to the Closing Date and shall reduce the Share Purchase Price on an Euro-by-Euro basis which shall discharge the Sellers’ obligation to make a payment of business and in accordance with past practice, paid any management fees, monitoring fees, advisory fees, directors’ fees or other fees or compensation to Sellers or any Sellers' Affiliate;such amount. (c) no member A person or entity is Connected with a Seller or Loan Note Holder if: (i) the Seller or Loan Note Holder is a company and that person or entity is an Affiliate of the Target Group has made Seller or Loan Note Holder; and (ii) the Seller or Loan Note Holder is an individual and that person or entity is a “related person” (nahestehende Personen) within the meaning of sec. 138 (1) of the German insolvency act (Insolvenzverordnung) or a trust (as recognised under English law) which was established by the Seller or Loan Note Holder or any divestiture person or entity Connected with the Seller or Loan Note Holder or of which the Seller or Loan Note Holder or any person or entity Connected with the Seller or Loan Note Holder is a shareholding or business beneficiary (any such person, if Connected with a value in excess of USD 100,000 each;Seller, a Seller Connected Person). (d) no member Affiliate of any company means an affiliate of such company within the meaning of sec. 15 et. seq. of the Target Group has German Stock Corporation Act (iAktiengesetz – AktG) issued and any guarantee or other security interest to secure company of which it is an affiliate and any indebtedness of a third party in excess of USD 100,000 in an individual case, other than guarantees in favor affiliate of any other member company of the Target Group or granted in the ordinary course of business and in amounts and on terms consistent with past practice or (ii) created any lien, encumbrance or other security interest of any kind on any asset with respect to a liability in excess of USD 100,000 in which it is an individual case other than in the ordinary course of business and in amounts and on terms consistent with past practice; (e) no member of the Target Group has made any capital expenditures by additions or improvements to property, plant or equipment or acquisition of other fixed assets (Anlagevermögen), which have not been approved before the Signing Date or which have not been provided for in the respective budget or business plans, except for capital expenditures which do not exceed the amounts provided for in the budget or business plan by more than USD 100,000 in the aggregate; (f) no member of the Target Group has entered into any sale, lease, license or other disposal of any material fixed assets exceeding USD 100,000 in an individual case; (g) no member of the Target Group has, except within the framework of the existing financing agreements of the Target Group in place as of the Effective Date (or any extensions or replacement thereof), including, for the avoidance of doubt the existing Shareholder Loans, incurred any indebtedness for borrowed money, issued or sold any debt security or prepaid any debt in each case from a third party affiliate (other than from any other member of the Target GroupGroup Companies), in excess of USD 100,000 in the aggregate and except for additional shareholder loans granted by the Sellers or Sellers' Affiliates to the Target Group to finance the working capital requirements of the Target Group or otherwise in accordance with past practice; (h) no member of the Target Group has made any advance under, or extended any loan to, any third party (other than to another member of the Target Group), in each case outside the ordinary course of business; (i) no member of the Target Group has made any payments to Sellers or any Sellers' Affiliates except for payments made in accordance with the terms of the Shareholder Loans or the redemption of Bonds which are already reflected in Exhibit 6.3; (j) no member of the Target Group has (i) paid any fees, bonuses or expenses to Sellers (or any Sellers' Affiliates) which are related to the transactions contemplated hereby, and there is no unpaid obligation to make any such payments; or (ii) entered into any obligation to pay any fees, bonuses or expenses to the Sellers (or any Sellers' Affiliate) by virtue of, or in connection with, the execution of this Agreement or the consummation of the Transaction; (k) no member of the Target Group has entered into any settlement (Vergleich) or compromised any disputed rights or claims against any third party or against Sellers or any Sellers' Affiliate exceeding USD 100,000 in an individual case other than in the ordinary course of business and in amounts and on terms consistent with past practice; (l) no member of the Target Group has entered into any other agreement (other than agreements contemplated by or disclosed in this Agreement) with the Sellers or any Sellers' Affiliate which is outside the ordinary course of business; (m) no member of the Target Group has forgiven any claims against, or made any gifts or donations to any director, officer or employee of any member of the Target Group or Sellers or any Sellers' Affiliate other than in the ordinary course of business and in amounts and on terms consistent with past practice; (n) no member of the Target Group has effected any material change to any method of accounting or accounting practice or policy currently applied by the Target Group, as the case may be, except as required by reason of a concurrent change in, or conversion to, the applicable generally accepted accounting principles.

No Leakage. Except any transaction contemplated by or disclosed in this Agreement in the period between 28 February 2021 (the "Effective Date") and the Signing Date, no member as set forth on Section 3.22 of the Target Group has carried out its business outside Disclosure Letter, since the ordinary course. Notwithstanding the generality of the foregoing, except any transactions contemplated by or disclosed in this Agreement, in the time period between the Effective Date and the Signing Locked-Box Date: (a) no member dividend, return of capital or other distribution of profits, cash or assets has been paid, made or declared by the Company (including pursuant to the Retained Cash Distribution) or the Contributor (including pursuant to the Merger) to any Company Affiliated Person, in each case, in excess of the Target Group has declared or paid any dividend or made any dividend distribution to the Sellers or any Sellers' AffiliateEstimated Retained Cash; (b) no member payments have been made by or on behalf of the Target Group has, except as in the ordinary course of business and in accordance Company with past practice, paid any management fees, monitoring fees, advisory fees, directors’ fees or other fees or compensation respect to Sellers or any Sellers' AffiliateCompany Transaction Expenses; (c) no member payments (whether by gift or otherwise) or obligations to make payments (including costs and expenses of any Company Affiliated Person) have been paid, made, incurred or accrued by or on behalf of the Target Group has made Company to or for the benefit of any divestiture of a shareholding or business with a value in excess of USD 100,000 eachCompany Affiliated Person; (d) no member share capital or other interest, equity or securities of the Target Group Company has (i) issued any guarantee been redeemed, repurchased or other security interest to secure any indebtedness of a third party in excess of USD 100,000 in an individual case, other than guarantees in favor of any other member of the Target Group or granted in the ordinary course of business and in amounts and on terms consistent with past practice or (ii) created any lien, encumbrance or other security interest of any kind on any asset with respect to a liability in excess of USD 100,000 in an individual case other than in the ordinary course of business and in amounts and on terms consistent with past practicerepaid for value; (e) no member of amounts, obligations or Liabilities owed or due to the Target Group has made any capital expenditures Company by additions a Company Affiliated Person have been waived, released or improvements to property, plant or equipment or acquisition of other fixed assets (Anlagevermögen), which have not been approved before the Signing Date or which have not been provided for in the respective budget or business plans, except for capital expenditures which do not exceed the amounts provided for in the budget or business plan by more than USD 100,000 in the aggregateforgiven; (f) no member sale of any asset of the Target Group has entered into any saleCompany to, lease, license or other disposal the purchase of any material fixed assets exceeding USD 100,000 in an individual caseasset by the Company from, a Company Affiliated Person has occurred; (g) no member payment has been made under any guarantee, indemnity or security provided by the Company in respect of the Target Group has, except within the framework obligations or liabilities of the existing financing agreements of the Target Group in place as of the Effective Date (or any extensions or replacement thereof), including, for the avoidance of doubt the existing Shareholder Loans, incurred any indebtedness for borrowed money, issued or sold any debt security or prepaid any debt in each case from a third party (other than from any other member of the Target Group), in excess of USD 100,000 in the aggregate and except for additional shareholder loans granted by the Sellers or Sellers' Affiliates to the Target Group to finance the working capital requirements of the Target Group or otherwise in accordance with past practiceCompany Affiliated Person; (h) no member payment has been made of any fees, costs or Tax incurred by the Target Group has made any advance under, or extended any loan to, any third party Company as a result of those matters set out in paragraphs (other than a) to another member of the Target Group), in each case outside the ordinary course of business;(g) above; and (i) no member the Company has not agreed to take any of the Target Group has made actions set forth in Section 3.22(a) through (h). Each of any payments to Sellers or any Sellers' Affiliates except for payments made such events in accordance with the terms of the Shareholder Loans or the redemption of Bonds which are already reflected in Exhibit 6.3; (jSection 3.22(a) no member of the Target Group has through (i) paid any fees), bonuses or expenses to Sellers (or any Sellers' Affiliates) which are related to taken from and after the transactions contemplated herebyLocked-Box Date through the Closing Date, and there is the amounts involved or attributable thereto, without duplication, being “Company Leakage”; provided, however, that, in no unpaid obligation to make any such payments; event will “Company Leakage” mean or (ii) entered into any obligation to pay any fees, bonuses or expenses to the Sellers (or any Sellers' Affiliate) by virtue of, or in connection with, the execution of this Agreement or the consummation of the Transaction; (k) no member of the Target Group has entered into any settlement (Vergleich) or compromised any disputed rights or claims against any third party or against Sellers or any Sellers' Affiliate exceeding USD 100,000 in an individual case other than in the ordinary course of business and in amounts and on terms consistent with past practice; (l) no member of the Target Group has entered into any other agreement (other than agreements contemplated by or disclosed in this Agreement) with the Sellers or any Sellers' Affiliate which is outside the ordinary course of business; (m) no member of the Target Group has forgiven any claims against, or made any gifts or donations to any director, officer or employee of any member of the Target Group or Sellers or any Sellers' Affiliate other than in the ordinary course of business and in amounts and on terms consistent with past practice; (n) no member of the Target Group has effected any material change to any method of accounting or accounting practice or policy currently applied by the Target Group, as the case may be, except as required by reason of a concurrent change in, or conversion to, the applicable generally accepted accounting principlesinclude Permitted Company Leakage.

No Leakage. Except any transaction contemplated by or disclosed in this Agreement in the period between 28 February 2021 (the "Effective Date"a) and the Signing DateThe Seller shall procure (x) that no Leakage, no member of the Target Group has carried out its business outside the ordinary course. Notwithstanding the generality of the foregoingother than Permitted Leakage, except any transactions contemplated by or disclosed in this Agreement, in the time period will occur between the Effective Date and the Signing Closing Date that has not been remedied prior to or on the Closing Date: , and (ay) that no member of arrangement or agreement has been made or will until the Target Group Closing Date be made that will result in any Leakage that has declared not been remedied prior to or paid any dividend or made any dividend distribution to on the Sellers or any Sellers' Affiliate;Closing Date. (b) no member Leakage shall mean: (i) any payment or declaration of any interim, exceptional or other dividend or similar distribution of profits (whether in cash or in kind) of the Target Group hasCompanies; (ii) any asset transfer, except as in purchase or disposal, other than under the Intra-Group Agreements, which is not made within the ordinary course of business and at arms’ length; (iii) any payment in accordance connection with services provided under the IT TSA and the Engineering Services Agreement at a price exceeding the current terms and conditions agreed upon between the Seller’s Affiliates and the Group Companies or not consistent with past practice, paid excluding the impact of any management fees, monitoring fees, advisory fees, directors’ fees or other fees or compensation to Sellers or any Sellers' Affiliateforeign exchange movement; (civ) no member any return of the Target Group has made capital (whether by repurchase, repayment, reduction, redemption, cancellation of any divestiture of a shareholding share capital, loan capital or business with a value in excess of USD 100,000 eachother securities); (dv) no member any encumbrance created over any of the Target assets of the Group has Companies other than by operation of law; (vi) the grant of a waiver, release or deferral in respect of any sum due or obligation owed; in each case of paragraphs (i) issued any guarantee to (vi) above, by or other security interest to secure any indebtedness of a third party in excess of USD 100,000 in an individual case, other than guarantees in favor on behalf of any other member of the Target Group Companies to, or granted on behalf of, or for the benefit of the Seller or any of the Seller’s Affiliates (except payments to other Group Companies); (vii) any transaction with, or payment (whether in cash or in kind) to, or to the benefit of the Seller or any of the Seller’s Affiliates by, or on behalf of any of the Group Companies (except payments to other Group Companies) which is not made within the ordinary course of business and at arms’ length terms, provided that Intra-Group Agreements disclosed in amounts and on terms consistent with past practice or (ii) created any lien, encumbrance or other security interest of any kind on any asset with respect the Data Room shall be deemed to a liability in excess of USD 100,000 in an individual case other than in be within the ordinary course of business and in amounts and on terms consistent with past practiceat arms’ length terms; (eviii) no member any option entitling the Seller and/or any of the Target Seller’s Affiliates to receive payments or to acquire assets from Tower Europe Group has made any capital expenditures by additions or improvements to propertyafter the Closing Date, plant or equipment or acquisition with the exception of other fixed assets (Anlagevermögen), which have not been approved before payments in connection with services provided under the Signing Date or which have not been provided for in IT TSA and the respective budget or business plans, except for capital expenditures which do not exceed the amounts provided for in the budget or business plan by more than USD 100,000 in the aggregateEngineering Services Agreement; (fix) no member any payment of Transaction Expenses by any of the Target Group has entered into Companies. Transaction Expenses shall mean the amount of, without duplication, (a) the fees, costs and expenses owed by the Group Companies to their investment bankers, attorneys, accountants, advisors, brokers and other professionals payable in connection with or relating to the negotiation of this agreement or the consummation of the transactions contemplated hereby (including the Pre-Sale Restructuring), and (b) the aggregate amount of any saletransaction bonuses, leasetransaction commissions, license transaction-related incentive payments, change of control, transaction-related retention, stay or similar compensatory payments owed by the Group Companies to any former or current director, officer, manager, consultant, or employee thereof (in such capacity) (in each case, including any social security, unemployment or other disposal employment, withholding or payroll Taxes or similar amounts owed by or imposed on the Company, or for which the Company may otherwise be liable, in each case, triggered in connection with, as a result of, or arising from the payment of any material fixed assets exceeding USD 100,000 such aggregate amount); in an individual case;each case undertaken or committed on or before the Closing Date; or (gx) no member any undertaking or commitment before or on the Closing Date to do, make or pay any of the Target Group has, except within the framework of the existing financing agreements of the Target Group in place as of the Effective Date (or any extensions or replacement thereof), includingabove; but, for the avoidance of doubt the existing Shareholder Loansdoubt, incurred does not include any indebtedness for borrowed money, issued or sold any debt security or prepaid any debt in each case from a third party (other than from any other member of the Target Group), in excess of USD 100,000 in the aggregate and except for additional shareholder loans granted by the Sellers or Sellers' Affiliates to the Target Group to finance the working capital requirements of the Target Group or otherwise in accordance with past practice; (h) no member of the Target Group has made any advance under, or extended any loan to, any third party (other than to another member of the Target Group), in each case outside the ordinary course of business; (i) no member of the Target Group has made any payments to Sellers or any Sellers' Affiliates except for payments made in accordance with the terms of the Shareholder Loans or the redemption of Bonds which are already reflected in Exhibit 6.3; (j) no member of the Target Group has (i) paid any fees, bonuses or expenses to Sellers (or any Sellers' Affiliates) which are related to the transactions contemplated hereby, and there is no unpaid obligation to make any such payments; or (ii) entered into any obligation to pay any fees, bonuses or expenses to the Sellers (or any Sellers' Affiliate) by virtue of, or in connection with, the execution of this Agreement or the consummation of the Transaction; (k) no member of the Target Group has entered into any settlement (Vergleich) or compromised any disputed rights or claims against any third party or against Sellers or any Sellers' Affiliate exceeding USD 100,000 in an individual case other than in the ordinary course of business and in amounts and on terms consistent with past practice; (l) no member of the Target Group has entered into any other agreement (other than agreements contemplated by or disclosed in this Agreement) with the Sellers or any Sellers' Affiliate which is outside the ordinary course of business; (m) no member of the Target Group has forgiven any claims against, or made any gifts or donations to any director, officer or employee of any member of the Target Group or Sellers or any Sellers' Affiliate other than in the ordinary course of business and in amounts and on terms consistent with past practice; (n) no member of the Target Group has effected any material change to any method of accounting or accounting practice or policy currently applied by the Target Group, as the case may be, except as required by reason of a concurrent change in, or conversion to, the applicable generally accepted accounting principlesPermitted Leakage.