Common use of Overprovisions Clause in Contracts

Overprovisions. (a) If any member of Purchaser German TopCo Group becomes aware that any liability, provision or reserve for Taxes (generally only for liabilities, provisions or reserves included in a line item described or identified as tax liability, tax provision or tax reserve in Schedule 2, however, in case of payroll tax, irrespective of whether such liability, provision or reserve is included in a line item described or identified as tax liability, tax provision or tax reserve in Schedule 2) which have been taken into account in calculating Working Capital in the Closing Statement is likely to be an Overprovision (other than to the extent the Overprovision would arise or be increased as a result of any retrospective change in the law after the Financial Closing Date or any Purchaser's Relief) Purchaser shall promptly give details of such likely Overprovision by written notice to Sellers. (b) Purchaser shall deliver, for the next ten (10) calendar years following the Financial Closing Date to Sellers within six months following the end of a calendar year a written statement stating whether and to what extent Overprovisions have arisen during the previous calendar year. Sellers shall be entitled to review such statement, and Purchaser shall, and shall procure that the Target Companies will, provide to Sellers upon Sellers' request such information and documentation reasonably requested by Sellers in order to verify the amount of the relevant Overprovision. (c) If an Overprovision has arisen, the amount of such Overprovision shall be: (i) set off against any payment then due from Sellers to Purchaser under this clause 12; and (ii) (to the extent there is any excess) promptly paid by Purchaser to Sellers. For the avoidance of doubt, such amounts which were already set off or paid out shall reduce the aggregate amount of specific liabilities and provisions that limits the Sellers’ liability pursuant to clause 12.2(a)(i). (d) Any amount payable to the Seller pursuant to clause 12.5(c)(ii) shall be due and payable within twenty (20) Business Days after receipt of the relevant written statement pursuant to clause 12.5(b) by Sellers but at the latest within seven (7) months following the end of the respective calendar year.

Overprovisions. 4.1 The Vendor or the Relevant Vendor may require the auditors for the time being of any Sale Company or of any Subsidiary to certify, at the Vendor's or the Relevant Vendor's request and expense, the existence and amount of any Overprovision and the Purchaser shall provide, or procure that each Relevant Purchaser, each Sale Company and each Subsidiary provide, any information or assistance required for the purpose of production by the auditors of a certificate to that effect. 4.2 Subject to paragraph 4.4 below: (a) If any member of Purchaser German TopCo Group becomes aware that any liability, provision or reserve for Taxes (generally only for liabilities, provisions or reserves included in a line item described or identified as tax liability, tax provision or tax reserve in Schedule 2, however, in case of payroll tax, irrespective of whether such liability, provision or reserve is included in a line item described or identified as tax liability, tax provision or tax reserve in Schedule 2) which have been taken into account in calculating Working Capital in the Closing Statement is likely to be an Overprovision (other than to the extent the Overprovision would arise or be increased as a result of any retrospective change in the law after the Financial Closing Date or any Purchaser's Relief) Purchaser shall promptly give details of such likely Overprovision by written notice to Sellers. (b) Purchaser shall deliver, for the next ten (10) calendar years following the Financial Closing Date to Sellers within six months following the end of a calendar year a written statement stating whether and to what extent Overprovisions have arisen during the previous calendar year. Sellers shall be entitled to review such statement, and Purchaser shall, and shall procure that the Target Companies will, provide to Sellers upon Sellers' request such information and documentation reasonably requested by Sellers in order to verify the amount of the relevant Overprovision. (c) If an Overprovision has arisen, the amount of such Overprovision shall be: (i) first be set off against any payment then due from Sellers to Purchaser any Relevant Vendor under this clause 12; andSchedule or for breach of any Tax Warranty or of any other Warranty insofar as it relates to tax; (iib) (to the extent there is an excess, a refund shall be made to any Relevant Vendor of any previous payment or payments made by that Relevant Vendor under this Schedule or for breach of any Tax Warranty Page 104 or of any other Warranty insofar as it relates to tax (and not previously refunded under this Schedule) or otherwise up to the amount of the excess; and (c) promptly paid to the extent that the excess referred to paragraph 4.2(b) is not exhausted under that sub-paragraph, the remainder of that excess shall be carried forward and set against any future payment or payments which become due from any Relevant Vendor under this Schedule or for breach of any Tax Warranty or of any other Warranty insofar as it relates to tax. 4.3 Any of the Vendor, the Relevant Vendor, the Purchaser or the Relevant Purchaser may, at its expense, require any certificate produced in accordance with paragraph 4.1 above to be reviewed by Purchaser to Sellers. For the avoidance auditors for the time being of doubtthe Sale Company (or any relevant Subsidiary) if there are relevant circumstances or facts of which it was not aware, such amounts and which were already set off not taken into account, at the time when such certificate was produced, and to certify whether the certificate remains correct or paid out shall reduce whether it should be amended. 4.4 If following a request under paragraph 4.3 the aggregate certificate is amended, the revised amount of specific liabilities and provisions that limits the Sellers’ liability pursuant to clause 12.2(a)(i). (d) Any amount payable to the Seller pursuant to clause 12.5(c)(ii) Overprovision shall be due substituted for the purposes of paragraph 4.2, and payable within twenty (20) Business Days after receipt of the relevant written statement pursuant to clause 12.5(b) by Sellers but at the latest within seven (7) months following the end of the respective calendar yearany adjusting payment that is required shall be made forthwith.

Overprovisions. (a) If any member of Purchaser German TopCo Group becomes aware that any liability6.1 If, provision on or reserve before the last date on which a Claim could be made against the Seller pursuant to paragraph 2 above, the auditors for Taxes (generally only for liabilities, provisions or reserves included in a line item described or identified as tax liability, tax provision or tax reserve in Schedule 2, however, in case of payroll tax, irrespective of whether such liability, provision or reserve is included in a line item described or identified as tax liability, tax provision or tax reserve in Schedule 2) which have been taken into account in calculating Working Capital in the Closing Statement is likely to be an Overprovision (other than to the extent the Overprovision would arise or be increased as a result time being of any retrospective change in Transferred Company (or, if such auditors are unable or unwilling to act, such independent firm of chartered accountants as is nominated by the law after Seller) determine (at the Financial Closing Date or any Purchaser's Reliefrequest and expense of the Seller) Purchaser shall promptly give details of such likely Overprovision by written notice to Sellers.that there is an Overprovision, then: (bA) Purchaser shall deliver, for the next ten (10) calendar years following the Financial Closing Date to Sellers within six months following the end of a calendar year a written statement stating whether and to what extent Overprovisions have arisen during the previous calendar year. Sellers shall be entitled to review such statement, and Purchaser shall, and shall procure that the Target Companies will, provide to Sellers upon Sellers' request such information and documentation reasonably requested by Sellers in order to verify the amount of any Overprovision (as determined by the relevant Overprovision. (cauditors or the independent firm of chartered accountants) If an Overprovision has arisen, the amount of such Overprovision shall be: (i) first be set off against any payment then due from Sellers to Purchaser the Seller under this clause 12Schedule or for breach of any of the Tax Warranties; (B) if there is an excess, a refund shall be made to the Seller of any previous payment or payments made by the Seller under this Schedule or for breach of any of the Tax Warranties (net of any Tax on such previous payment(s) and net of any such Tax that would have been payable but for the use or setting off of any Purchaser’s Relief), and not previously refunded under this Schedule, up to the amount of that excess; (C) if the excess referred to in paragraph 6.1(B) above is not exhausted, the remainder of that excess will be carried forward and set off against any future payment or payments that become due from the Seller under this Schedule or for breach of any of the Tax Warranties; and (iiD) (to the extent there that the excess referred to in in paragraph 6.1(B) above is any excess) promptly paid by Purchaser to Sellers. For the avoidance of doubt, such amounts which were already not exhausted and has not been set off against any future payment or paid out shall reduce payments that become due from the aggregate amount Seller under this Schedule or for breach of specific liabilities and provisions that limits any of the Sellers’ liability pursuant to clause 12.2(a)(i). (d) Any amount payable to Tax Warranties by the last date on which a Claim could be made against the Seller pursuant to clause 12.5(c)(iiparagraph 2 above, the Purchaser or the relevant Purchasing Entity shall promptly make a payment to the Seller equal to that excess. 6.2 After the Transferred Company's auditors (or the independent firm of chartered accountants) have made a determination under paragraph 6.1(A) above, the Seller or the Purchaser or the relevant Purchasing Entity may, at any time before the last date on which a Claim could be made against the Seller pursuant to paragraph 2 above, request that the Transferred Company instruct (and, if so requested, the Purchaser or the relevant Purchasing Entity shall procure that the Transferred Company shall instruct) the auditors for the time being of the Transferred Company (or, if such auditors are unable or unwilling to act, such independent firm of chartered accountants as is nominated by the Seller) to review and, if necessary and as appropriate, amend the original determination (at the expense of the party requesting the review, or where a payment becomes due under this paragraph 6.2 at the expense of the party required to make that payment) and an adjusting payment equal to the amount of any disparity between the original and revised determinations shall be due made by or to the Seller as soon as reasonably practicable. 6.3 If the Purchaser, the relevant Purchasing Entity or a Transferred Company discovers or believes that there has been an Overprovision, the Purchaser or the relevant Purchasing Entity shall, as soon as reasonably practicable, give full details thereof to the Seller, and payable within twenty (20) Business Days after receipt the Purchaser or the relevant Purchasing Entity shall supply to the Seller such information as the Seller may reasonably require to verify the Overprovision and to instigate the instruction of the relevant written statement pursuant auditors or the independent firm of chartered accountants to clause 12.5(ballow them to make a determination within paragraph 6.1(A) by Sellers but at the latest within seven (7) months following the end of the respective calendar yearabove.