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. (a) If any member provision for taxation (other than a provision for deferred tax but including, for the avoidance of Purchaser German TopCo Group becomes aware that doubt, any liability, provision whether specific or reserve for Taxes (generally only for liabilities, provisions or reserves included general in a line item described or identified as tax liability, tax provision or tax reserve in Schedule 2, however, in case respect 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 2the Reserve Matters) which have been taken into account in calculating Working Capital in the Closing Statement is likely Accounts has proved to be an Overprovision over-provision (other than except to the extent that such over-provision result from the Overprovision would arise utilisation of an Accounts relief or be increased as a result of any retrospective change in the law after the Financial Closing post-Accounts Date or any Purchaser's Reliefrelief) Purchaser shall promptly give details of then an amount equal to 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 over-provision shall be entitled dealt with in accordance with sub-paragraph 10.2 below. Where, pursuant to review such statement, and Purchaser shall, and sub- paragraph 10.1 any amount (the "Relevant Amount") is to be dealt with in accordance with this sub-paragraph 10.2; the Relevant Amount 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) be first set off against any payment then due from Sellers to Purchaser the Covenantor under this clause 12Schedule; and (ii) (to the extent that there is an excess, a refund shall be made to the Covenantor of any previous payment or payments made by them under this Schedule and not previously refunded under this sub-paragraph, up to the amount of such excess) promptly paid by Purchaser ; and to Sellersthe extent that the excess referred to in sub- paragraph 10.2.2 is not exhausted under that sub-paragraph, the remainder of that excess shall be carried forward and set off against any future payment or payments which shall become due from the Covenantor under this Schedule. For the avoidance purposes of doubtparagraph 10.2, such amounts no relief shall be treated as having arisen until it has been realised by the Company or relevant Subsidiary in money or money's worth. Secondary Tax Liabilities The Purchaser covenants to pay to the Covenantor an amount equal to any taxation liability or taxation claim recoverable from the Covenantor and all reasonable costs and expenses attributable thereto or arising in connection therewith by reason of the Company or any of the Subsidiaries failing to meet its primary liability to taxation when due under ICTA sections 767A and 767AA in respect of corporation tax assessed on the Company (but excluding any liability to taxation to the extent that it is a taxation liability in respect of which were already set off or Covenantor is liable under paragraph 2 of for breach of the Warranties relating to tax). The Purchaser shall pay any amount which is required to be paid out shall reduce the aggregate amount of specific liabilities and provisions that limits the Sellers’ liability by it pursuant to clause 12.2(a)(i). paragraph 11.1 on or before the fifth Business Day before the date on which the taxation in question has to be paid to the appropriate taxation authority in order to avoid incurring a liability to interest or a charge or penalty in respect of that taxation or, if later, not more than five Business days following the date on which the Covenantor notifies the Purchaser of its liability to make such payment. Paragraph 4 (dgrossing up) Any shall apply mutatis mutandis to any amount payable by the Purchaser to the Seller Covenantor pursuant to clause 12.5(c)(ii) paragraph 11.1. The Purchaser shall be due and payable within twenty (20) Business Days after receipt cease to have any liability under this paragraph 11 on the sixth anniversary of Completion except in respect of a claim of which the relevant written statement pursuant Covenantor gives notice to clause 12.5(b) by Sellers but at the latest within seven (7) months following the end of the respective calendar yearPurchaser before such date.

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.