Common use of Over Provisions Clause in Contracts

Over Provisions. 10.1 If a Target Group Company shall receive a repayment of tax which: (a) is not reflected in the Final Completion Statement; (b) does not arise from the use of a Buyer’s Relief; and (c) is not a Relief to which paragraph 8 (corresponding savings and third party recovery) applies, which has been taken into account in paragraph 3.1(h); the Buyer will procure that the relevant Target Group Company will pay to the Sellers an amount equal to the amount of the repayment within three Business Days of being in receipt of the repayment. 10.2 If the Sellers become liable in respect of any claim arising under this Tax Covenant or for breach of any of the Tax Warranties credit must be given to the Sellers against the liability for any amount referred to in paragraph 10.3 (a “Relevant Amount”) which must be dealt with in accordance with paragraph 10.5. 10.3 A Relevant Amount for the purposes of paragraph 10.2 is: (a) the amount by which any provision for Tax (other than a provision for deferred tax) contained in the Final Completion Statement proves to be an over provision; or (b) the amount of any Tax saved by the Buyer, a Target Group Company or any other member of the Buyer’s Tax Group for which the Sellers are not liable under this Tax Covenant or for breach of the Tax Warranties as a result of the use or set off of a Relief (other than a right to a repayment of Tax) arising to a Target Group Company on or prior to Completion (other than a Buyer’s Relief, a Relief which has been taken into account in paragraph 3.1(h), or a Relief to which paragraph 8 applies. 10.4 If the Buyer becomes aware that there are or may be amounts of the kind referred to in paragraph 10.3, it must (or must procure that a Target Group Company will) promptly inform the Sellers of that fact. If the auditors for the time being of a Target Group Company are requested by either of the parties to this Agreement to certify any of the amounts as are referred to above the relevant party must procure that the auditors are instructed to give and will (at the expense of the party requesting) give as soon as practicable the certificate and in so doing they will act as experts and not as arbitrators and (in the absence of manifest error) their decision will be final and binding on the parties hereto. 10.5 Each Relevant Amount is to be dealt as follows: (a) the Relevant Amount must first be set off against any payment then due from the Sellers under this Tax Covenant or for breach of the Tax Warranties; and (b) to the extent there is an excess of the Relevant Amount after any amounts have been set off under paragraph 10.5(a) the excess shall be paid to the Sellers. 10.6 Where any certification as is mentioned in paragraph 10.4 has been made, the Sellers or the Buyer may request the auditors to review the certification in the light of all relevant circumstances, including any facts which have become known only since such certification, and to certify whether the certification remains correct or whether, in the light of those circumstances, the amount that was the subject of such certification should be amended. 10.7 If the auditors certify under paragraph 10.6 that an amount previously certified should be amended, that amended amount will be substituted for the purposes of paragraph 10.5 as the Relevant Amount in respect of the certification in question in place of the amount originally certified, and an adjusting payment (if any) as may be required by virtue of the above mentioned substitution must be made as soon as practicable by the Sellers or the Buyer, as the case may be.

Over Provisions. 10.1 If a Target Group Company shall receive a repayment of tax which: (a) is not reflected in the Final Completion Statement; (b) does not arise from the use of a Buyer’s Relief; and (c) is not a Relief to which paragraph 8 (corresponding savings and third party recovery) applies, which has been taken into account in paragraph 3.1(h); the Buyer will procure that the relevant Target Group Company will pay to the Sellers an amount equal to the amount of the repayment within three Business Days of being in receipt of the repayment. 10.2 9.1 If the Sellers Seller shall become liable in respect of any claim arising under this Tax Covenant or for breach of any of the Tax Warranties credit must shall be given to the Sellers Seller against the such liability for any amount referred to in paragraph 10.3 9.2 (a “Relevant Amount”) which must shall be dealt with in accordance with paragraph 10.59.4. 10.3 9.2 A Relevant Amount for the purposes of paragraph 10.2 is9.1 shall be: (a) the amount by which any provision for Tax (other than a provision for deferred tax) contained in the Final Completion Net Current Assets Statement proves to be an over provisionprovision (otherwise than by reason of the use or set off of any Purchaser’s Relief); or (b) the amount of any right to repayment of Tax owed to a Group Member by a Tax Authority which: (i) arises as a consequence of or by reference to any Event which occurred (or is treated for Tax purposes as occurring) on or before Completion or in respect of or by reference to any Income, Profits or Gains earned, accrued or received on or before Completion; (ii) is not reflected in the Net Current Assets Statement; (iii) does not arise from the use of a Purchaser’s Relief; and (iv) is not a Relief to which paragraph 8 applies, which has been taken into account in paragraph 3.1(j) or in respect of which credit has been given under any other provision of paragraph 9; or (c) the amount of any Tax saved by the BuyerPurchaser, a Target Group Company Member or any other member of the BuyerPurchaser’s Tax Group for which the Sellers are Seller is not liable under this Tax Covenant or for breach of the Tax Warranties as a result of the use or set off of a Relief (other than a right to a repayment of Tax) arising to a Target Group Company Member on or prior to Completion (other than a BuyerPurchaser’s Relief, a Relief which has been taken into account in paragraph 3.1(h3.1(j), or a Relief to which paragraph 8 appliesapplies or a Relief in respect of which credit has been given under any other provision of paragraph 9). 10.4 9.3 If the Buyer Purchaser becomes aware that there are or may be such amounts of the kind as are referred to in paragraph 10.39.2, it must shall (or must shall procure that the relevant Group Member or a Target member of the Purchaser’s Group Company willshall) promptly inform the Sellers Seller of that fact. If the auditors for the time being of a Target Group Company Member or any member of the Purchaser’s Group are requested by either of the parties to this Agreement hereto to certify any of the such amounts as are referred to above the relevant party must shall procure that the auditors are instructed to give and will shall (at the expense of the party requesting) give as soon as practicable the such certificate and in so doing they will shall act as experts and not as arbitrators and (in the absence of manifest error) their decision will shall be final and binding on the parties hereto. 10.5 9.4 Each Relevant Amount is to be dealt with as follows: (a) the Relevant Amount must shall first be set off against any payment then due from the Sellers Seller under this Tax Covenant or for breach of the Tax Warranties; and (b) to the extent there is an excess of the Relevant Amount after any amounts have been set off under paragraph 10.5(a9.4 (a) a refund shall be made to the Seller of any previous payment or payments made by the Seller under this Tax Covenant or for breach of the Tax Warranties and which have not previously been refunded under this paragraph 9.4(b), up to the amount of such excess; and (c) to the extent that the excess referred to in paragraph 9.4(b) is not exhausted under that paragraph, the remainder of that excess shall be paid to carried forward and set off against any future payment or payments which become due from the SellersSellers under this Tax Covenant or for breach of the Tax Warranties. 10.6 9.5 Where any such certification as is mentioned in paragraph 10.4 9.3 has been made, the Sellers Seller or the Buyer Purchaser may (at its own expense) request the auditors to review the such certification in the light of all relevant circumstances, including any facts which have become known only since such certification, and to certify whether the such certification remains correct or whether, in the light of those circumstances, the amount that was the subject of such certification should be amended. 10.7 9.6 If the auditors certify under paragraph 10.6 9.5 that an amount previously certified should be amended, that amended amount will shall be substituted for the purposes of paragraph 10.5 9.4 as the Relevant Amount in respect of the certification in question in place of the amount originally certified, and an such adjusting payment (if any) as may be required by virtue of the above mentioned substitution must shall be made as soon as practicable by the Sellers Seller or the BuyerPurchaser, as the case may be.

Over Provisions. 10.1 If a Target Group Company shall receive a repayment of tax which: (a) is not reflected in the Final Completion Statement; (b) does not arise from the use of a Buyer’s Relief; and (c) is not a Relief to which paragraph 8 (corresponding savings and third party recovery) applies, which has been taken into account in paragraph 3.1(h); the Buyer will procure that the relevant Target Group Company will pay to the Sellers an amount equal to the amount of the repayment within three Business Days of being in receipt of the repayment. 10.2 11.1 If the Sellers Covenantor shall become liable in respect of any claim arising under this Tax Covenant or for breach of any of the Tax Warranties Deed, credit must shall be given to the Sellers Covenantor against the such liability for any amount the amounts referred to in paragraph 10.3 (a “Relevant Amount”) clause 11.2 below which must shall be dealt with in accordance with paragraph 10.5clause 11.4 below. 10.3 A Relevant Amount for the purposes of paragraph 10.2 is11.2 The amounts referred to in clause 11.1 above are: (a) the amount by which any provision for Tax (other than a provision for deferred tax) contained in the Final Completion Statement Accounts proves to be an over provision; or; (b) the amount by which the right to any repayment of any Tax saved to the Company by the Buyer, a Target Group Company Inland Revenue or any other member Tax authority reflected in the Completion Accounts proves to be understated (or if no amount is stated, the amount of the Buyer’s Tax Group for which the Sellers are not liable under this Tax Covenant or for breach of the Tax Warranties as a result of the use or set off of a Relief (other than a right to a any repayment of Tax) arising Tax to a Target Group the Company on or relating to the period prior to Completion (other than a Buyer’s Reliefthe Balance Sheet Date) but, a Relief which has been taken into account in paragraph 3.1(h)for the avoidance of doubt, or a Relief this Clause 11 shall not apply to which paragraph 8 appliesthe Repayment. 10.4 11.3 If the Buyer Purchaser becomes aware that there are or may be such amounts of the kind as are referred to in paragraph 10.3clause 11.2 above, it must shall (or must shall procure that a Target Group the Company willshall) promptly inform the Sellers Covenantor of that fact. If the auditors for the time being of a Target Group the Company are requested by either of the parties to this Agreement hereto to certify any of the such amounts as are referred to above the relevant party must shall procure that the auditors are instructed to give and will shall (at the expense of the party requesting) give as soon as practicable the such certificate and in so doing they will shall act as experts and not as arbitrators and (in the absence of manifest error) their decision will shall be final and binding on the parties hereto. 10.5 Each 11.4 Where it is provided under clause 11.1 above that any amount (the "Relevant Amount Amount") is to be dealt as followswith in accordance with this clause 11: (a) the Relevant Amount must shall first be set off against any payment then due from the Sellers Covenantor under this Tax Covenant covenant, and reduce or for breach of eliminate the Tax Warrantiesliability against which it is so set-off; and (b) to the extent there is an excess of the Relevant Amount after any amounts have been set off under paragraph 10.5(aclause 11.4(a) above a refund shall be made to the Covenantor of any previous payment or payments by the Covenantor under this covenant and not previously refunded under this clause 11.4(b) up to the amount of such excess; and (c) to the extent that the excess referred to in clause 11.4(b) is not exhausted under that clause, the remainder of that excess shall be paid to carried forward and set off against any future payment or payments which become due from the SellersCovenantor under this covenant and reduce or eliminate the liability against which it is so set-off. 10.6 11.5 Where any such certification as is mentioned in paragraph 10.4 clause 11.3 above has been made, the Sellers Covenantor or the Buyer Purchaser may (at their own expense) request the auditors to review the such certification in the light of all relevant circumstances, including any facts which have become known only since such certification, and to certify whether the such certification remains correct or whether, in the light of those circumstances, the amount that was the subject of such certification should be amended. 10.7 11.6 If the auditors certify under paragraph 10.6 clause 11.5 that an amount previously certified should be amended, that amended amount will shall be substituted for the purposes of paragraph 10.5 clause 11.4 as the Relevant Amount in respect of the certification in question in place of the amount originally certified, and an such adjusting payment (if any) as may be required by virtue of the above mentioned substitution must shall be made as soon as practicable by the Sellers Covenantor or the BuyerPurchaser, as the case may be.

Over Provisions. 10.1 If a Target Group Company the Seller shall receive a repayment of tax which: (a) is not reflected in the Final Completion Statement; (b) does not arise from the use of a Buyer’s Relief; and (c) is not a Relief to which paragraph 8 (corresponding savings and third party recovery) applies, which has been taken into account in paragraph 3.1(h); the Buyer will procure that the relevant Target Group Company will pay to the Sellers an amount equal to the amount of the repayment within three Business Days of being in receipt of the repayment. 10.2 If the Sellers become liable in respect of any claim arising under this Tax Covenant or for breach of any of the Tax Warranties schedule, credit must shall be given to the Sellers Seller against the such liability for any amount the amounts referred to in paragraph 10.3 (a “Relevant Amount”) 10.2 below which must shall be dealt with in accordance with paragraph 10.510.4 below. 10.3 A Relevant Amount for the purposes of 10.2 The amounts referred to in paragraph 10.2 is10.1 above are: (a) the amount by which any provision for Tax (other than a provision for deferred tax) contained in the Final Completion Statement Accounts proves to be an over provision; or; (b) the amount by which the right to any repayment of any Tax saved to the Company by the Buyer, a Target Group Company Inland Revenue or any other member Tax Authority reflected in the Completion Accounts proves to be understated (or if no amount is stated, the amount of any repayment of Tax to the Buyer’s Tax Group for which Company relating to the Sellers are period prior to Completion) provided that this does not liable under this Tax Covenant or for breach of the Tax Warranties arise as a result of the any use or set off of a Relief (other than a right to a repayment of Tax) arising to a Target Group Company on or prior to Post-Completion (other than a Buyer’s Relief, a Relief which has been taken into account in paragraph 3.1(h), or a Relief to which paragraph 8 applies. 10.4 10.3 If the Buyer Purchaser becomes aware that there are or may be such amounts of the kind as are referred to in paragraph 10.310.2 above, it must shall (or must shall procure that a Target Group the Company willshall) promptly inform the Sellers Seller of that fact. If the auditors for the time being of a Target Group the Company are requested by either of the parties to this Agreement hereto to certify any of the such amounts as are referred to above the relevant party must shall procure that the auditors are instructed to give and will shall (at the expense of the party requesting) give as soon as practicable the such certificate and in so doing they will shall act as experts and not as arbitrators and (in the absence of manifest error) their decision will shall be final and binding on the parties hereto. 10.5 Each 10.4 Where it is provided under paragraph 10.1 above that any amount (the “Relevant Amount Amount”) is to be dealt as followswith in accordance with this paragraph 10: (a) the Relevant Amount must shall first be set off against any payment then due from the Sellers Seller under this Tax Covenant covenant, and reduce or for breach eliminate the liability against which it is so set-off, pursuant to paragraph 3(h) of the Tax Warrantiesthis Schedule 6 ; and (b) to the extent there is an excess of the Relevant Amount after any amounts have been set off under paragraph 10.5(a10.4(a) above a refund shall be made to the Seller of any previous payment or payments by the Seller under this covenant and not previously refunded under this paragraph 10.4(b) up to the amount of such excess; and (c) to the extent that the excess referred to in paragraph 10.4(b) above is not exhausted under that paragraph, the remainder of that excess shall be paid carried forward and set off against any future payment or payments which become due from the Seller under this covenant and reduce or eliminate the liability against which it is so set-off, pursuant to the Sellersparagraph 3(h) of this Schedule 6. 10.6 10.5 Where any such certification as is mentioned in paragraph 10.4 10.3 above has been made, the Sellers Seller or the Buyer Purchaser may (at their own expense) request the auditors to review the such certification in the light of all relevant circumstances, including any facts which have become known only since such certification, and to certify whether the such certification remains correct or whether, in the light of those circumstances, the amount that was the subject of such certification should be amended. 10.7 10.6 If the auditors certify under paragraph 10.6 10.5 above that an amount previously certified should be amended, that amended amount will shall be substituted for the purposes of paragraph 10.5 10.4 above as the Relevant Amount in respect of the certification in question in place of the amount originally certified, and an such adjusting payment (if any) as may be required by virtue of the above mentioned substitution must shall be made as soon as practicable by the Sellers Seller or the BuyerPurchaser, as the case may be. 10.7 If a Relief arises or becomes available to a Company, in respect of any period occurring, or in respect of any income, profits or gains accrued or received, prior to Completion, as a consequence of any change in the actual provision made or imposed between two persons and which is required to be made in respect of UK Taxation pursuant to Schedule 28AA ICTA 1988 or, in respect of non-UK Taxation, an equivalent provision in a relevant jurisdiction, and which would not otherwise have arisen and which does not give rise to an equivalent (but opposite) corresponding adjustment or provision in another Company, then the Purchaser shall procure that full details of such Relief are given to the Seller as soon as reasonably practicable. 10.8 To the extent that the liability of the Purchaser or any Company to make an actual payment of or in respect of Tax is reduced by reason of such Relief referred to in clause 10.7 above, or to the extent that the Purchaser or any Company becomes entitled to a credit or refund in respect of Tax by reason of such Relief, the amount of such Relief shall be deemed a Relevant Amount and shall be dealt with in accordance with clause 10.4 above.