Common use of Over Provisions Clause in Contracts

Over Provisions. 6.1 The Covenantor may request the auditors for the time being of the Company (not later than six years after Completion) to certify at the Covenantor's request and expense, whether any provision in the Completion Balance Sheet has proved to be an over provision (the amount by which there is an over provision being referred to in this paragraph 6 as the "Over Provision") and Global shall, on receipt of such request and at the expense of the Covenantor, procure that the Company provides any information or assistance reasonably required in order to allow the auditors to provide that certificate. 6.2 The amount of any Over Provision shall be calculated without taking into account: (a) a retrospective change in the law of Taxation announced after Completion; or (b) any Relief other than a Covenantor's Relief; or (c) any act of Global or the Company carried out after Completion other than in the ordinary course of business as carried on at Completion. 6.3 If any amount shall be certified by the auditors in accordance with paragraph 6.1 above to be an Over Provision (other than in respect of the Section 179 Liability) in respect of the Company, then: (a) the Over Provision shall first be set off against any payment then due from the Covenantor under this Covenant or the Tax Warranties; and (b) to the extent there is an excess, a refund of the excess shall be made to the Covenantor (within five Business Days of the certificate being given) of any previous payment or payments made by the Covenantor under this covenant or the Tax Warranties (and not previously refunded under this Covenant or the Tax Warranties) up to the amount of such excess; and (c) if the payment mentioned in paragraph 6.3(b) above do not exhaust the excess, or if there are no such payments, the remainder of that excess shall be carried forward to be set off against any payment which may in the future become due from the Covenantor under this Covenant or the Tax Warranties. 6.4 If any amount shall be certified by the auditors in accordance with paragraph 6.1 above to be an Over Provision in respect of the Section 179 Liability, then the amount of such Over Provision shall be paid by Global to the Covenantor by way of a reduction, to the extent possible, of the purchase price hereunder, within five Business Days of such certificate being given. 6.5 Where a certificate has been provided by the auditors in accordance with paragraph 6.1 or 6.4 above, either the Covenantor or Global may (at the expense of the requesting party), request the auditors to review the certificate in the event that there are relevant circumstances or facts of which it was not aware and which were not taken into account at the time when such certificate was produced, and to certify whether in the light of those circumstances, the amount of the certification remains correct or whether ir should be amended.

Over Provisions. 6.1 The Covenantor may request 3.1. If any provision for Tax (other than deferred tax) in the Locked Box Accounts has proved to be an over-provision or the amount of any repayment of Tax included (or which should have been included) in the Locked Box Accounts has proved to be an understatement then an amount equal to such over-provision or understatement (as determined and certified (in their opinion) by the auditors for the time being of the relevant Group Company (not later than six years after Completion) to certify at the Covenantor's request and expense, whether any provision in the Completion Balance Sheet has proved to be an over provision (the amount by which there is an over provision being referred to in this paragraph 6 as the "Over Provision") and Global shall, on receipt of such request and at the expense reasonable cost of the Covenantor, procure that the Company provides any information or assistance reasonably required in order to allow the auditors to provide that certificate. 6.2 The amount of any Over Provision Founders) shall be calculated without taking into account: (a) a retrospective change in the law of Taxation announced after Completion; or (b) any Relief other than a Covenantor's Relief; or (c) any act of Global or the Company carried out after Completion other than in the ordinary course of business as carried on at Completion. 6.3 If any amount shall be certified by the auditors dealt with in accordance with paragraph 6.1 above 3.2 of this Part 4. The Buyer shall not procure the said auditors to certify (in their opinion) such over-provision or understatement unless and until requested to do so by the Founders. 3.2. Where pursuant to paragraph 3.1 any amount (a “Relevant Amount”) is to be an Over Provision (other than dealt with in respect of the Section 179 Liability) in respect of the Company, thenaccordance with this paragraph 3.2: (a) 3.2.1. the Over Provision Relevant Amount shall first be set set-off against any payment then due from the Covenantor Founders under this Covenant or the Tax Warranties; andAgreement; (b) 3.2.2. to the extent that there is an excess, a refund of the excess shall be made to the Covenantor (Founders, within five Business Days of the certificate being given) certification by the auditors, of any previous payment or payments previously made by the Covenantor Founders under this covenant or the Tax Warranties (and not previously refunded under this Covenant or the Tax Warranties) up to the amount of such excessAgreement; and (c) if 3.2.3. to the payment mentioned in paragraph 6.3(b) above do not exhaust the extent there is any further excess, or if there are no such payments, the remainder of that excess balance shall be carried forward to be set and set-off against any payment future payments which may in the future become due from the Covenantor Founders under this Covenant Agreement. 3.3. The Buyer shall notify the Founders as soon as reasonably practicable after becoming aware of any such over-provision or understatement and in any event within ten Business Days thereafter. 3.4. The provisions of this paragraph 3 shall not apply where the relevant overprovision or understatement has arisen as a result of any change in law that is made after Completion, or the Tax Warrantiesutilisation of any Relief arising to any Group Company other than a Founders’ Relief. 6.4 If any amount shall be certified by the auditors in accordance with paragraph 6.1 above to be an Over Provision in respect of the Section 179 Liability, then the amount of such Over Provision shall be paid by Global to the Covenantor by way of a reduction, to the extent possible, of the purchase price hereunder, within five Business Days of such certificate being given. 6.5 Where a certificate has been provided by the auditors in accordance with paragraph 6.1 or 6.4 above, either the Covenantor or Global may (at the expense of the requesting party), request the auditors to review the certificate in the event that there are relevant circumstances or facts of which it was not aware and which were not taken into account at the time when such certificate was produced, and to certify whether in the light of those circumstances, the amount of the certification remains correct or whether ir should be amended.

Over Provisions. 6.1 The Covenantor may request the auditors for the time being of the Company (not later than six years after Completiona) to certify at the Covenantor's request and expense, whether any provision in the Completion Balance Sheet has proved to be an over provision If: (i) the amount by which any provision for Tax (excluding for the avoidance of doubt any provision for deferred Taxation) contained in the 2009 Accounts proves to be an over-provision then the over-provision shall be dealt with in accordance with Section 8.4(c) below; (ii) the amount of any repayment of Tax to an Acquired Entity by any Taxation Authority in the 2009 Accounts proves to be understated (or if no amount is stated, the amount of any repayment of Tax to the Acquired Entities), then the amount of such repayment understated shall be dealt with in accordance with Section 8.4(c) below. (b) If the Buyer becomes aware that there is an over provision being are or may be such amounts as are referred to in this paragraph 6 Section 8.4(a) above, it shall (or shall procure that the Acquired Entities shall) as soon as reasonably practicable inform the "Over Provision") Management Sellers’ Representative of the fact and Global shall, on receipt the amount in question. If the Auditors are requested by either of the parties hereto to certify any of such request amounts as are referred to above the relevant party shall procure that the Auditors are instructed to give and shall (at the expense of the Covenantor, procure that party requesting) give as soon as practicable such certificate and in so doing they shall act as experts and not as arbitrators and (in the Company provides any information or assistance reasonably required in order to allow the auditors to provide that certificate. 6.2 The amount absence of any Over Provision manifest error) their decision shall be calculated without taking into account: (a) a retrospective change in final and binding on the law of Taxation announced after Completion; or (b) any Relief other than a Covenantor's Relief; orparties hereto. (c) any act of Global or the Company carried out after Completion other than in the ordinary course of business as carried on at Completion. 6.3 If Where it is provided under Section 8.4(a) above that any amount shall (the “Relevant Amount”) is to be certified by the auditors dealt with in accordance with paragraph 6.1 above to be an Over Provision (other than in respect of the this Section 179 Liability) in respect of the Company, then:8.4(c): (ai) the Over Provision Relevant Amount shall first be set off against any payment then due from the Covenantor Sellers or ▇▇▇▇▇▇▇ under this Covenant Section or for breach of the Tax Warranties; and; (bii) to the extent there is an excessexcess of the Relevant Amount after any amounts have been set off under Section 8.4(c)(i) above, a refund of the excess shall be made to the Covenantor (within five Business Days of the certificate being given) Sellers or ▇▇▇▇▇▇▇ of any previous payment or payments made by the Covenantor Sellers or ▇▇▇▇▇▇▇ under this covenant clause or for breach of the Tax Warranties (and not previously refunded under this Covenant or the Tax WarrantiesSection 8.4(c)(ii) up to the amount of such excess; and; (ciii) if to the payment mentioned extent that the excess referred to in paragraph 6.3(bSection 8.4(c)(ii) above do is not exhaust the excess, or if there are no such paymentsexhausted under that paragraph, the remainder of that excess shall be carried forward to be and set off against any future payment or payment which may in the future become due from the Covenantor Sellers or ▇▇▇▇▇▇▇ under this Covenant clause or for breach of the Tax Warranties. 6.4 If (d) Where any amount shall be certified by the auditors such certification as is mentioned in accordance with paragraph 6.1 Section 8.4(b) above to be an Over Provision in respect of the Section 179 Liability, then the amount of such Over Provision shall be paid by Global to the Covenantor by way of a reduction, to the extent possible, of the purchase price hereunder, within five Business Days of such certificate being given. 6.5 Where a certificate has been provided by made, the auditors in accordance with paragraph 6.1 Sellers or 6.4 above, either ▇▇▇▇▇▇▇ or the Covenantor or Global Buyer may (at the expense of the requesting party), its respective expense) request the auditors Auditors to review the certificate such certification in the event that there are light of all relevant circumstances or circumstances, including any facts of which it was not aware and which were not taken into account at the time when have become known only since such certificate was producedcertification, and to certify whether such certification remains correct or whether, in the light of those circumstances, the amount that was the subject of the such certification remains correct or whether ir should be amended. (e) If the Auditors certify under Section 8.4(d) above that an amount previously certified should be amended, that amended amount shall be substituted for the purpose of Section 8.4(c) above as the relevant Amount in respect of the certification in question in place of the amount originally certified, and such adjusting payment (if any) as may be required by virtue of the above mentioned substitution shall be made as soon as reasonably practicable by the Sellers, ▇▇▇▇▇▇▇ or the Buyer as the case may be.

Over Provisions. 6.1 5.1 The Covenantor may Buyer shall at the written request and expense of the Seller require the auditors for the time being of the Company (not later than six years after CompletionAuditors) to certify at the Covenantor's request determine (as experts and expense, whether not as arbitrators) whether: (a) any provision for Taxation or for payment for Group Relief in the Completion Balance Sheet Relevant Accounts has proved to be an over over-provision (the amount by which there is an over provision being referred to in this paragraph 6 as the "Over Provision") and Global shall, on receipt of such request and at the expense of the Covenantor, procure that the Company provides any information or assistance reasonably required in order to allow the auditors to provide that certificate. 6.2 The amount of any Over Provision shall be calculated without taking into account: (a) a retrospective change in the law of Taxation announced after Completion; orif so its amount; (b) any Relief other than right to a Covenantor's Reliefrepayment of Taxation treated as an asset in the Relevant Accounts has proved to be understated and if so its amount or, where no right to repayment of Taxation was treated as an asset in the Relevant Accounts, whether any such amount should have been treated as an asset in the Relevant Accounts and if so the amount; or (c) any act Actual Taxation Liability which arises or would otherwise have arisen (other than one which would otherwise have given rise to a corresponding liability of Global the Seller under the Tax Covenant) is avoided or reduced or any repayment of an amount of Taxation is obtained in either case by the use of a relief (other than a Buyer’s Relief), and, if so, the amount of Taxation so saved or the Company carried out after Completion other than in amount of that repayment; and if the ordinary course Auditors determine that there has proved to be any such over-provision, understatement or amount, the amount of business such over-provision, understatement or amount (as carried on at Completion. 6.3 If any amount the case may be) shall be certified by the auditors dealt with in accordance with paragraph 6.1 above 5.2. 5.2 Where it is provided under paragraph 5.1 that any amount is to be an Over Provision (other than dealt with in respect of the Section 179 Liability) in respect of the Company, thenaccordance with this paragraph: (a) the Over Provision amount shall first be set off against any payment then due from the Covenantor Seller under this the Tax Covenant or in respect of the Tax Warranties; and; (b) to the extent there is an excess, a refund of the excess shall be made to the Covenantor (within five Business Days of the certificate being given) Seller of any previous payment or payments made by the Covenantor Seller under this covenant the Tax Covenant or in respect of the Tax Warranties (and not previously refunded under this Covenant paragraph 5 (or the Tax Warrantiesparagraph 6) up to the amount of such excess; and (c) if to the payment mentioned extent that the excess referred to in paragraph 6.3(b5.2(b) above do is not exhaust the excess, or if there are no such paymentsexhausted thereunder, the remainder of that excess shall be carried forward to be and set off against any future payment which may in the future become becomes due from the Covenantor Seller under this the Tax Covenant or in respect of the Tax Warranties. 6.4 If any amount shall be certified 5.3 Where such determination by the auditors Auditors as is mentioned in accordance with paragraph 6.1 above to be an Over Provision in respect of the Section 179 Liability, then the amount of such Over Provision shall be paid by Global to the Covenantor by way of a reduction, to the extent possible, of the purchase price hereunder, within five Business Days of such certificate being given. 6.5 Where a certificate 5.1 has been provided by made, the auditors in accordance with paragraph 6.1 Seller or 6.4 above, either the Covenantor or Global Buyer may request the Auditors to review such determination (at the expense of the requesting party), request person making the auditors to review the certificate request) in the event that there are light of all relevant circumstances or circumstances, including any facts of which it was not aware and which were not taken into account at the time when have become known only since such certificate was produceddetermination, and to certify determine whether such determination remains correct or whether, in the light of those circumstances, the amount that was the subject of the certification remains correct or whether ir such determination should be amended. 5.4 If the Auditors determine under paragraph 5.3 that an amount previously determined should be amended, that amended amount shall be substituted for the purposes of paragraph 5.1, in place of the amount originally determined and such adjusting payment (if any) as may be required by virtue of such substitution shall forthwith be made by the Seller to the Buyer or, as the case may be, by the Buyer to the Seller. 5.5 The Buyer shall notify the Seller in writing within 15 Business Days of it or the Company becoming aware of any amount referred to in 5.1.

Over Provisions. 6.1 The Covenantor may request 3.1 If any provision for Tax in the Accounts has proved to be an over-provision then an amount equal to such over-provision (as determined and certified (in their opinion) by the auditors for the time being of the Company (not later than six years after Completion) to certify at the Covenantor's request and expense, whether any provision in the Completion Balance Sheet has proved to be an over provision (the amount by which there is an over provision being referred to in this paragraph 6 as the "Over Provision") and Global shall, on receipt of such request and at the expense cost of the Covenantor, procure that the Company provides any information or assistance reasonably required in order to allow the auditors to provide that certificate. 6.2 The amount of any Over Provision Sellers) shall be calculated without taking into account: (a) a retrospective change in the law of Taxation announced after Completion; or (b) any Relief other than a Covenantor's Relief; or (c) any act of Global or the Company carried out after Completion other than in the ordinary course of business as carried on at Completion. 6.3 If any amount shall be certified by the auditors dealt with in accordance with the terms of paragraph 6.1 above 3.2 of this part 4. The Buyer shall not require the said auditors to certify (in their opinion) such over-provision unless and until requested to do so by the Sellers. 3.2 Where pursuant to paragraph 3.1 of this part 4 any amount (a “Relevant Amount”) is to be an Over Provision (other than dealt with in respect of the Section 179 Liability) in respect of the Company, thenaccordance with this paragraph: (a) 3.2.1 the Over Provision Relevant Amount shall be first be set set-off against any payment then due from the Covenantor under this Covenant Sellers pursuant to any Tax Warranty Claim or the Tax Warranties; andClaim; (b) 3.2.2 to the extent that there is an excess, a refund of the excess shall be made to the Covenantor (within five Business Days of the certificate being given) Sellers of any previous payment or payments made by the Covenantor under this covenant Sellers pursuant to any Tax Warranty Claim or the any Tax Warranties (Claim and not previously refunded under this Covenant or the Tax Warranties) paragraph, up to the amount of such excess; and (c) if 3.2.3 to the payment mentioned extent that the excess referred to in paragraph 6.3(b) above do 3.2.2 of this part 4 is not exhaust the excess, or if there are no such paymentsexhausted, the remainder of that excess balance shall be carried forward to be set and set-off against any future payment or payments which may in the future become due from the Covenantor under this Covenant Sellers pursuant to any Warranty Claim or the any Tax WarrantiesClaim. 6.4 If 3.3 The Buyer shall notify the Sellers of any amount shall be certified by the auditors Event giving rise to a Relevant Amount as soon as reasonably practicable after and in accordance with paragraph 6.1 above to be an Over Provision in respect of the Section 179 Liability, then the amount of such Over Provision shall be paid by Global to the Covenantor by way of a reduction, to the extent possible, of the purchase price hereunder, any case within five 20 Business Days of such certificate being given. 6.5 Where a certificate has been provided by following the auditors in accordance with paragraph 6.1 or 6.4 above, either the Covenantor or Global may (at the expense of the requesting party), request the auditors to review the certificate in the event day on which it became aware that there are relevant circumstances or facts of which it was not aware and which were not taken into account at the time when such certificate was produced, and to certify whether in the light of those circumstances, the amount of the certification remains correct or whether ir should be amendedan over-provision.

Over Provisions. 6.1 The Covenantor may request 8.1. If the auditors for the time being of the a Group Company shall certify (not later than six years after Completion) to certify at the Covenantor's request and expense, whether expense of the Covenantor) that any provision for Taxation in the Completion Balance Sheet Accounts has proved to be an over over-provision (then the amount by which there is an over provision being referred to in this paragraph 6 as the "Over Provision") and Global shall, on receipt of such over-provision shall be dealt with in accordance with clause 7.3. 8.2. If the auditors for the time being of a Group Company shall certify (at the request and at the expense of the Covenantor, procure ) that any Liability for Taxation which has resulted in a payment having been made or becoming due from the Covenantor under this Deed has given or will give rise to a corresponding saving for a Group Company which would not otherwise have arisen then as and when the liability of the Company provides any information to make an actual payment of or assistance reasonably required in order to allow the auditors to provide in 8.3. Where it is provided under clause 7.1 or 7.2 above that certificate. 6.2 The amount of any Over Provision shall be calculated without taking into account: (a) a retrospective change in the law of Taxation announced after Completion; or (b) any Relief other than a Covenantor's Relief; or (c) any act of Global or the Company carried out after Completion other than in the ordinary course of business as carried on at Completion. 6.3 If any amount shall (the "Relevant Amount") is to be certified by the auditors dealt with in accordance with paragraph 6.1 above to be an Over Provision (other than in respect of the Section 179 Liability) in respect of the Company, thenthis clause 7.3: (a) 8.3.1. the Over Provision shall Relevant Amou▇▇ ▇▇▇ll first be set off against any payment then due from the Covenantor under this Covenant or the Tax WarrantiesDeed; and (b) 8.3.2. to the extent there is an excess, a excess refund of the excess shall should be made to the Covenantor (within five Business Days of the certificate being given) of any previous payment or payments made by the Covenantor under this covenant or the Tax Warranties (Deed and not previously refunded under this Covenant or the Tax Warranties) clause up to the amount of such excess; and (c) if 8.3.3. to the payment mentioned extent that the excess referred in paragraph 6.3(b) clause 7.3.2 above do is not exhaust the excess, or if there are no such payments, exhausted the remainder of that excess shall be carried forward to be and set off against any future payment or payments which may in the future become due from the Covenantor under this Covenant Deed 8.4. Where any such certification as is mentioned in clause 7.1 or the Tax Warranties. 6.4 If any amount shall be certified by the auditors in accordance with paragraph 6.1 7.2 above to be an Over Provision in respect of the Section 179 Liability, then the amount of such Over Provision shall be paid by Global to the Covenantor by way of a reduction, to the extent possible, of the purchase price hereunder, within five Business Days of such certificate being given. 6.5 Where a certificate has been provided by the auditors in accordance with paragraph 6.1 or 6.4 above, either made the Covenantor or Global the Purchaser or a Group Company may (request the auditors of a Group Company for the time being at the expense of the requesting party), parties so making the request the auditors to review the certificate such certification in the event that there are light of all relevant circumstances or including any facts of which it was not aware and which were not taken into account at the time when have become known only since such certificate was produced, certification and to certify whether such certification remains correct or whether in the light of those circumstances, circumstances the amount that was the subject of the such certification remains correct or whether ir should be amended. 8.5. If the auditors certify under clause 7.5 above that an amount previously certified should be amended that amended amount should be substituted for the purposes of clause 7.3 as the Relevant Amount in respect of the certification in question in place of the amount originally certified and such adjusting payment (if any) as may be required by virtue of the aforementioned substitution shall be made as soon as practicable by the Covenantor or (as the case may be) to the Covenantor. 8.6. The Purchaser undertakes to supply, and undertakes to procure that the Company shall supply, to the Purchaser and subsequently to any firm of accountants nominated to deal with any such dispute in accordance with clause 7.6 (with copies to the Covenantor) all documents accounts notices papers and other necessary information as may be reasonably required for the purpose of making any such determination as to whether there is or has been any over-provision or a corresponding saving for the purposes of this clause 7. -72- 76