Common use of No Leakage Clause in Contracts

No Leakage. Except as set forth on Section 3.22 of the Disclosure Letter, since the Locked-Box Date: (a) no 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 Estimated Retained Cash; (b) no payments have been made by or on behalf of the Company with respect to Company Transaction Expenses; (c) no 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 Company to or for the benefit of any Company Affiliated Person; (d) no share capital or other interest, equity or securities of the Company has been redeemed, repurchased or repaid for value; (e) no amounts, obligations or Liabilities owed or due to the Company by a Company Affiliated Person have been waived, released or forgiven; (f) no sale of any asset of the Company to, or the purchase of any asset by the Company from, a Company Affiliated Person has occurred; (g) no payment has been made under any guarantee, indemnity or security provided by the Company in respect of the obligations or liabilities of any Company Affiliated Person; (h) no payment has been made of any fees, costs or Tax incurred by the Company as a result of those matters set out in paragraphs (a) to (g) above; and (i) the Company has not agreed to take any of the actions set forth in Section 3.22(a) through (h). Each of any such events in Section 3.22(a) through (i), taken from and after the Locked-Box Date through the Closing Date, and the amounts involved or attributable thereto, without duplication, being “Company Leakage”; provided, however, that, in no event will “Company Leakage” mean or include Permitted Company Leakage.

No Leakage. Except as set forth on Section 3.22 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 Disclosure LetterTarget Group has carried out its business outside the ordinary course. Notwithstanding the generality of the foregoing, since except any transactions contemplated by or disclosed in this Agreement, in the Locked-Box time period between the Effective Date and the Signing Date: (a) no dividend, return member of capital the Target Group has declared or other paid any dividend or made any dividend distribution of profits, cash or assets has been paid, made or declared by the Company (including pursuant to the Retained Cash Distribution) Sellers or the Contributor (including pursuant to the Merger) to any Company Affiliated Person, in each case, in excess of the Estimated Retained CashSellers' Affiliate; (b) no payments have been made by or on behalf member of the Company Target Group has, except as in the ordinary course of business and in accordance with respect past practice, paid any management fees, monitoring fees, advisory fees, directors’ fees or other fees or compensation to Company Transaction ExpensesSellers or any Sellers' Affiliate; (c) no 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 member of the Company to Target Group has made any divestiture of a shareholding or for the benefit business with a value in excess of any Company Affiliated PersonUSD 100,000 each; (d) no share capital member of the Target Group has (i) issued any guarantee or other interestsecurity interest to secure any indebtedness of a third party in excess of USD 100,000 in an individual case, equity or securities other than guarantees in favor of any other member of the Company has been redeemedTarget Group or granted in the ordinary course of business and in amounts and on terms consistent with past practice or (ii) created any lien, repurchased encumbrance or repaid for valueother 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 amountsmember of the Target Group has made any capital expenditures by additions or improvements to property, obligations plant or Liabilities owed equipment or due to acquisition of other fixed assets (Anlagevermögen), which have not been approved before the Company 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 a Company Affiliated Person have been waived, released or forgivenmore than USD 100,000 in the aggregate; (f) no sale member of the Target Group has entered into any sale, lease, license or other disposal of any asset of the Company to, or the purchase of any asset by the Company from, a Company Affiliated Person has occurredmaterial fixed assets exceeding USD 100,000 in an individual case; (g) no payment has been made under 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 guaranteeextensions or replacement thereof), indemnity including, for the avoidance of doubt the existing Shareholder Loans, incurred any indebtedness for borrowed money, issued or sold any debt security provided 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 Company in respect Sellers or Sellers' Affiliates to the Target Group to finance the working capital requirements of the obligations Target Group or liabilities of any Company Affiliated Personotherwise in accordance with past practice; (h) no payment member of the Target Group has been made any advance under, or extended any loan to, any third party (other than to another member of any feesthe Target Group), costs or Tax incurred by in each case outside the Company as a result ordinary course of those matters set out in paragraphs (a) to (g) above; andbusiness; (i) the Company has not agreed to take any no member of the actions set forth Target Group has made any payments to Sellers or any Sellers' Affiliates except for payments made in Section 3.22(aaccordance with the terms of the Shareholder Loans or the redemption of Bonds which are already reflected in Exhibit 6.3; (j) through no member of the Target Group has (h). Each 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 such events member of the Target Group or Sellers or any Sellers' Affiliate other than in Section 3.22(athe ordinary course of business and in amounts and on terms consistent with past practice; (n) through (i)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, taken from and after as the Locked-Box Date through case may be, except as required by reason of a concurrent change in, or conversion to, the Closing Date, and the amounts involved or attributable thereto, without duplication, being “Company Leakage”; provided, however, that, in no event will “Company Leakage” mean or include Permitted Company Leakageapplicable generally accepted accounting principles.

No Leakage. Except as In accordance with and under the limitations set forth on Section 3.22 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 an increase of the Disclosure Lettervalue of its HEG-Shares) any Leakage, since other than a Permitted Leakage (in each case as defined below), between the Locked-Box Effective Date and the Signing Date that has not been remedied prior to or on the Signing Date:. (a) no dividendLeakage shall mean (i) any payment or declaration of any dividend or similar distribution (whether in cash or in kind) by any of the Group Companies (except to other Group Companies), return or any reduction of capital 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 distribution compensation (in each case of profits, cash or assets has been paid, made or declared by the Company (including pursuant iii) and (iv) to the Retained Cash Distribution) extent related to the execution of this Agreement, or the Contributor preparation or consummation of the Transaction, any of which shall be deemed to be of benefit to each Seller), (including pursuant 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 MergerTransaction, (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 Affiliated Person, in each case, in excess of the Estimated Retained Cash; (b) no payments have been made by or on behalf of the Company with respect to Company Transaction Expenses; (c) no 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 Company to 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 Affiliated 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, (dix) no share capital any grant to a Seller or other interesta Seller Connected Person by any Group Company of any surety, equity guarantee or securities 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 Company has been redeemedforegoing, repurchased or repaid for value; (e) no amountsincluding, obligations or Liabilities owed or due to the Company by a Company Affiliated Person have been waived, released or forgiven; (f) no sale of any asset of the Company to, or the purchase of any asset by the Company from, a Company Affiliated Person has occurred; (g) no payment has been made under any guarantee, indemnity or security provided by the Company in respect of the obligations or liabilities of any Company Affiliated Person; all payments and payment commitments referred to in clauses (h) no payment has been made of any fees, costs or Tax incurred by the Company as a result of those matters set out in paragraphs (ai) to (gxi) above; and, 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 person or entity Connected with the Sellers under any service agreement (Dienstleistungsvertrag) 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 Holdback Payment Amount, in all cases of (i) to (iv) above including any Tax associated with such payments or payment commitments. The amount of the 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 such amount. (c) A person or entity is Connected with a Seller or Loan Note Holder if: (i) the Company has not agreed to take any Seller or Loan Note Holder is a company and that person or entity is an Affiliate of the actions set forth in Section 3.22(aSeller or Loan Note Holder; and (ii) through the Seller or Loan Note Holder is an individual and that person or entity is a “related person” (hnahestehende 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 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 beneficiary (any such person, if Connected with a Seller, a Seller Connected Person). Each . (d) Affiliate of any company means an affiliate of such events in Section 3.22(acompany within the meaning of sec. 15 et. seq. of the German Stock Corporation Act (Aktiengesetz – AktG) through and any company of which it is an affiliate and any affiliate of any company of which it is an affiliate (iother than the Group Companies), taken from and after the Locked-Box Date through the Closing Date, and the amounts involved or attributable thereto, without duplication, being “Company Leakage”; provided, however, that, in no event will “Company Leakage” mean or include Permitted Company Leakage.

No Leakage. Except as set forth (a) The Seller shall procure (x) that no Leakage, other than Permitted Leakage, will occur between the Effective Date and the Closing Date that has not been remedied prior to or on Section 3.22 of the Disclosure LetterClosing Date, since and (y) that no arrangement or agreement has been made or will until the Locked-Box Closing Date be made that will result in any Leakage that has not been remedied prior to or on the Closing Date. (b) Leakage shall mean: (ai) no dividendany payment or declaration of any interim, exceptional or other dividend or similar distribution of profits (whether in cash or in kind) of the Group Companies; (ii) any asset transfer, 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 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, excluding the impact of any foreign exchange movement; (iv) any return of capital (whether by repurchase, repayment, reduction, redemption, cancellation of any share capital, loan capital or other distribution securities); (v) any encumbrance created over any of profitsthe assets of the Group 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) to (vi) above, by or on behalf of any of the Group Companies to, or 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 the Data Room shall be deemed to be within the ordinary course of business and at arms’ length terms; (viii) any option entitling the Seller and/or any of the Seller’s Affiliates to receive payments or to acquire assets has been paidfrom Tower Europe Group after the Closing Date, made or declared with the exception of payments in connection with services provided under the IT TSA and the Engineering Services Agreement; (ix) any payment of Transaction Expenses by any of the Group Companies. Transaction Expenses shall mean the amount of, without duplication, (a) the fees, costs and expenses owed by the Company 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 pursuant to the Retained Cash DistributionPre-Sale Restructuring), and (b) the aggregate amount of any transaction bonuses, transaction commissions, transaction-related incentive payments, change of control, transaction-related retention, stay or similar compensatory payments owed by the Contributor (including pursuant to the Merger) 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 employment, withholding or payroll Taxes or similar amounts owed by or imposed on the Company, or for which the Company Affiliated Personmay otherwise be liable, in each case, triggered in excess of the Estimated Retained Cash; (b) no payments have been made by or on behalf of the Company with respect to Company Transaction Expenses; (c) no payments (whether by gift or otherwise) or obligations to make payments (including costs and expenses of any Company Affiliated Person) have been paidconnection with, made, incurred or accrued by or on behalf of the Company to or for the benefit of any Company Affiliated Person; (d) no share capital or other interest, equity or securities of the Company has been redeemed, repurchased or repaid for value; (e) no amounts, obligations or Liabilities owed or due to the Company by a Company Affiliated Person have been waived, released or forgiven; (f) no sale of any asset of the Company to, or the purchase of any asset by the Company from, a Company Affiliated Person has occurred; (g) no payment has been made under any guarantee, indemnity or security provided by the Company in respect of the obligations or liabilities of any Company Affiliated Person; (h) no payment has been made of any fees, costs or Tax incurred by the Company as a result of, or arising from the payment of those matters set out such aggregate amount); in paragraphs (a) to (g) aboveeach case undertaken or committed on or before the Closing Date; andor (ix) any undertaking or commitment before or on the Company has not agreed Closing Date to take do, make or pay any of the actions set forth in Section 3.22(a) through (h). Each above; but, for the avoidance of doubt, does not include any such events in Section 3.22(a) through (i), taken from and after the Locked-Box Date through the Closing Date, and the amounts involved or attributable thereto, without duplication, being “Company Leakage”; provided, however, that, in no event will “Company Leakage” mean or include Permitted Company Leakage.