PAYMENTS, SET OFF AND DEFAULT INTEREST. 20.1 The deduction of any sum owed to the Purchaser by or on behalf of any of the Vendors or the deduction of any sum with respect to any Warrantor Liability from the first available Milestone Consideration due will discharge the obligations of the Vendors or the Warrantors’ Liability to pay the sum in question to the extent of the amount so deducted. 20.2 Any cash payment to be made pursuant to this Agreement by the Purchaser to the Vendors shall be made to the Vendors’ Bank Account and any payment to be made by a Vendor to the Purchaser pursuant to this Agreement and not otherwise set off shall be made to the Purchaser’s Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment shall be a good discharge by the payor of its obligation to make such payment. The Purchaser shall not be concerned with, or have any liability whatsoever with respect to, such apportionment of payments made to the Vendors’ Bank Account among the Vendors or for any failure by the Vendors’ Representative to make such apportionment. 20.3 Where any payment or set off is made in satisfaction of a liability arising pursuant to a warranty, representation, indemnity or covenant under this Agreement it shall be an adjustment to the Total Consideration. 20.4 Unless otherwise stated in this Agreement, all payments made by any party to this Agreement under this Agreement, or any of the other Transaction Documents, shall be made free from any set-off, counterclaim or other deduction or withholding of any nature whatsoever, except for deductions or withholdings required to be made by Law. If any deductions or withholdings for, or on account of, Tax are required by Law to be made from any payments made by any party to this Agreement under this Agreement (other than any payment made pursuant to Clause 3 (Consideration), Schedule 7 (Milestone Consideration) or paragraph 1.1(b) or paragraph 2 of Schedule 3 (Completion Obligations)), the amount of the payment shall be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. For the avoidance of doubt, the Purchaser may deduct and withhold from any payments or issuance made pursuant to Clause 3 (Consideration) or Schedule 7 (Milestone Consideration) such amounts as the Purchaser is required by Law to deduct and withhold. 20.5 If any sum payable by any Vendor (or where a right of set-off applies in respect of such payment, any sum deemed to be paid) pursuant to any indemnity under this Agreement or pursuant to paragraph 2 (Covenant to pay) of Schedule 8 (Tax Covenant) is subject to Tax in the hands of the recipient (or would be subject to Tax but for the availability of a Tax relief), the party making such payment shall be liable for such additional amount as shall ensure that the net amount received by the recipient of the payment shall be the amount that the recipient would have received if the payment had not been subject to Tax, provided that such amounts shall be satisfied solely out of and deducted from any Milestone Consideration due to the Vendors. 20.6 The Purchaser shall deduct from any amount due to be made to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration) (other than the First Milestone Cash Consideration (if any)) an amount in satisfaction of: (a) any Warrantor Liability; (b) any amount payable under section 20.5 above; (c) the Shortfall; or (d) any liability arising pursuant to paragraph 8.2 of Schedule 7 (Milestone Consideration) or paragraph 9 of Schedule 8 (Tax Covenant). 20.7 In the event that on a date on which an amount is due to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration), there is a Claim, Indemnity Claim or a Tax Covenant Claim that is not a Settled Claim or a Settled Tax Covenant Claim (as applicable) (the “Relevant Claim”), the Purchaser may withhold from such amount due to the Vendors an amount equal to the Purchaser’s reasonable best estimate of the amount of the Claim or the Tax Covenant Claim (as applicable) (such amount being the “Holdback Amount”). When the Relevant Claim is finally settled or otherwise determined (the “Settled Relevant Claim”), where: (a) the amount of the Settled Relevant Claim is less than the Holdback Amount, the Purchaser shall pay (in the same form of consideration payable for the Milestone Consideration that the Holdback Amount was held back from) the difference between the amount of the Settled Relevant Claim and the Holdback Amount, in the proportions notified to the Purchaser by the Vendors’ Representative; or (b) the Holdback Amount is less than the amount of the Settled Relevant Claim, then the Purchaser shall set off such difference, being a Warrantor Liability, from the next available amount due to the Vendors pursuant to Clause 3.7 or Schedule 7 (Milestone Consideration).
Appears in 1 contract
Samples: Share Purchase Agreement (Sienna Biopharmaceuticals, Inc.)
PAYMENTS, SET OFF AND DEFAULT INTEREST. 20.1 The deduction of any sum owed to the Purchaser by or on behalf of any of the Vendors or the deduction of any sum with respect to any Warrantor Liability from the first available Milestone Consideration due will discharge the obligations of the Vendors or the Warrantors’ Liability to pay the sum in question to the extent of the amount so deducted.
20.2 (a) Any cash payment to be made pursuant to this Agreement by the Purchaser to the Vendors Prism shall be made to the Vendors’ Bank Account Prism Account, any payment to be made pursuant to this Agreement by the Purchaser to Bond shall be made to the Bond Account, and any payment to be made by a Vendor to the Purchaser pursuant to this Agreement and not otherwise set off by a Minority Seller to the Purchaser shall be made to the Purchaser’s Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment shall be a good discharge by the payor of its obligation to make such payment. The Purchaser shall not be concerned with, or have any liability whatsoever with respect to, such apportionment of payments made to the Vendors’ Bank Account among the Vendors or for any failure by the Vendors’ Representative to make such apportionment.
20.3 Where any payment (b) Subject to Clause 18(c) below and other than for payments of interest or set off is made in satisfaction of a liability arising pursuant to a warranty, representation, indemnity or covenant payments required under this Agreement it shall be an adjustment to the Total Consideration.
20.4 Unless otherwise stated in this AgreementClause 3.4(b), all payments made by any party to this Agreement under this Agreement, or any of the other Transaction Documents, shall be made free from any set-off, counterclaim or other deduction or withholding of any nature whatsoever, except for deductions or withholdings required to be made by Lawlaw. If any deductions or withholdings for, or on account of, Tax are required by Law law to be made from any such payments made by any party to this Agreement under this Agreement (other than any payment made pursuant to payments required under Clause 3 (Consideration), Schedule 7 (Milestone Consideration) or paragraph 1.1(b) or paragraph 2 of Schedule 3 (Completion Obligations3.4(b)), the amount of the payment shall be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. For .
(c) Where either of the avoidance of doubt, Minority Sellers or the Purchaser may deduct and withhold from default in the payment when due or any payments damages or issuance made pursuant to Clause 3 (Consideration) or Schedule 7 (Milestone Consideration) such amounts as the Purchaser is required by Law to deduct and withhold.
20.5 If any other sum payable by virtue of this Agreement the liability of the Seller or the Purchaser (as the case may be) shall be increased to include an amount equal to interest on such sum from the date when payment is due to the date of actual payment (both before and after judgment) at that annual rate which is 2% per annum above the base lending rate of HSBC Bank plc from time to time in effect during such period. Such interest shall accrue from day to day and be compounded quarterly and shall be payable without prejudice to any Vendor other remedy available to any of the Minority Sellers or the Purchaser (or where a right of set-off applies as the case may be) in respect of such payment, any sum deemed to be paid) pursuant to any indemnity under this Agreement or pursuant to paragraph 2 (Covenant to pay) of Schedule 8 (Tax Covenant) is subject to Tax in the hands of the recipient (or would be subject to Tax but for the availability of a Tax relief), the party making such payment shall be liable for such additional amount as shall ensure that the net amount received by the recipient of the payment shall be the amount that the recipient would have received if the payment had not been subject to Tax, provided that such amounts shall be satisfied solely out of and deducted from any Milestone Consideration due to the Vendorsdefault.
20.6 The Purchaser shall deduct from any amount due to be made to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration) (other than the First Milestone Cash Consideration (if any)) an amount in satisfaction of:
(a) any Warrantor Liability;
(b) any amount payable under section 20.5 above;
(c) the Shortfall; or
(d) any liability arising pursuant to paragraph 8.2 of Schedule 7 (Milestone Consideration) or paragraph 9 of Schedule 8 (Tax Covenant).
20.7 In the event that on a date on which an amount is due to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration), there is a Claim, Indemnity Claim or a Tax Covenant Claim that is not a Settled Claim or a Settled Tax Covenant Claim (as applicable) (the “Relevant Claim”), the Purchaser may withhold from such amount due to the Vendors an amount equal to the Purchaser’s reasonable best estimate of the amount of the Claim or the Tax Covenant Claim (as applicable) (such amount being the “Holdback Amount”). When the Relevant Claim is finally settled or otherwise determined (the “Settled Relevant Claim”), where:
(a) the amount of the Settled Relevant Claim is less than the Holdback Amount, the Purchaser shall pay (in the same form of consideration payable for the Milestone Consideration that the Holdback Amount was held back from) the difference between the amount of the Settled Relevant Claim and the Holdback Amount, in the proportions notified to the Purchaser by the Vendors’ Representative; or
(b) the Holdback Amount is less than the amount of the Settled Relevant Claim, then the Purchaser shall set off such difference, being a Warrantor Liability, from the next available amount due to the Vendors pursuant to Clause 3.7 or Schedule 7 (Milestone Consideration).
Appears in 1 contract
PAYMENTS, SET OFF AND DEFAULT INTEREST. 20.1 The deduction of any sum owed to the Purchaser by or on behalf of any of the Vendors or the deduction of any sum with respect to any Warrantor Liability from the first available Milestone Consideration due will discharge the obligations of the Vendors or the Warrantors’ Liability to pay the sum in question to the extent of the amount so deducted.
20.2 23.1 Any cash payment to be made pursuant to this Agreement by the Purchaser to the Vendors Vendor shall be made to the Vendors’ Vendor’s Bank Account and any payment to be made pursuant to this Agreement by a the Vendor to the Purchaser pursuant to this Agreement and not otherwise set off shall be made to the Purchaser’s Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment shall be a good discharge by the payor of its obligation to make such payment. The Purchaser shall not be concerned with, or have any liability whatsoever with respect to, such apportionment of payments made to the Vendors’ Bank Account among the Vendors or for any failure by the Vendors’ Representative to make such apportionment.
20.3 23.2 Where any payment or set off is made in satisfaction of a liability arising pursuant to a warranty, representation, indemnity or covenant under this Agreement it (other than pursuant to Clause 3) the amount of the payment shall be be, to the extent lawful, treated as an adjustment to the Total Final Consideration.
20.4 Unless otherwise stated in this Agreement, all 23.3 All payments made by any party to this Agreement under this Agreement, or any of the other Transaction Documents, shall be made free from any set-off, counterclaim or other deduction or withholding of any nature whatsoever, except for deductions or withholdings required to be made by Law. If any deductions or withholdings for, or on account of, Tax are required by Law to be made from any such payments made by any party to this Agreement under this Agreement (other than excluding payments of interest or the payment of the Initial Consideration or any payment made pursuant to Clause 3 (Consideration)due under Clauses 3.4, Schedule 7 (Milestone Consideration) 3.5, 7.7, 7.9 or paragraph 1.1(b) 11 or paragraph 2 of Schedule 3 (Completion Obligations)under the Escrow Agreement), the amount of the payment shall be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.
23.4 To the extent that any party becomes aware of any requirement to deduct or withhold any amount of or in respect of Tax from the payment of the Initial Consideration or any payment due under Clauses 3.4, 3.5 or 11, such party shall notify the other party as soon as reasonably practicable. For the avoidance of doubt, the Purchaser may deduct and withhold from If any payments deduction or issuance made pursuant to Clause 3 (Consideration) or Schedule 7 (Milestone Consideration) such amounts as the Purchaser withholding is required by Law Law, the parties shall cooperate in good faith and shall use reasonable endeavours to deduct and withholdmitigate or counteract any such deduction or withholding.
20.5 If 23.5 Where the Vendor or the Purchaser default in the payment when due of any damages or other sum payable by virtue of this Agreement or any other Transaction Documents the liability of the Vendor or the Purchaser (as the case may be) shall be increased to include an amount equal to interest on such sum from the date when payment is due to the date of actual payment (both before and after judgment) at that annual rate which is 2% per annum above the base lending EU-DOCS\16547119.1 rate of HSBC Bank plc from time to time in effect during such period. Such interest shall accrue from day to day and be compounded quarterly and shall be payable without prejudice to any other remedy available to the Vendor or where a right of set-off applies the Purchaser (as the case may be) in respect of such payment, any sum deemed to be paid) pursuant to any indemnity under this Agreement or pursuant to paragraph 2 (Covenant to pay) of Schedule 8 (Tax Covenant) is subject to Tax in the hands of the recipient (or would be subject to Tax but for the availability of a Tax relief), the party making such payment shall be liable for such additional amount as shall ensure that the net amount received by the recipient of the payment shall be the amount that the recipient would have received if the payment had not been subject to Tax, provided that such amounts shall be satisfied solely out of and deducted from any Milestone Consideration due to the Vendorsdefault.
20.6 The Purchaser shall deduct from any amount due to be made to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration) (other than the First Milestone Cash Consideration (if any)) an amount in satisfaction of:
(a) any Warrantor Liability;
(b) any amount payable under section 20.5 above;
(c) the Shortfall; or
(d) any liability arising pursuant to paragraph 8.2 of Schedule 7 (Milestone Consideration) or paragraph 9 of Schedule 8 (Tax Covenant).
20.7 In the event that on a date on which an amount is due to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration), there is a Claim, Indemnity Claim or a Tax Covenant Claim that is not a Settled Claim or a Settled Tax Covenant Claim (as applicable) (the “Relevant Claim”), the Purchaser may withhold from such amount due to the Vendors an amount equal to the Purchaser’s reasonable best estimate of the amount of the Claim or the Tax Covenant Claim (as applicable) (such amount being the “Holdback Amount”). When the Relevant Claim is finally settled or otherwise determined (the “Settled Relevant Claim”), where:
(a) the amount of the Settled Relevant Claim is less than the Holdback Amount, the Purchaser shall pay (in the same form of consideration payable for the Milestone Consideration that the Holdback Amount was held back from) the difference between the amount of the Settled Relevant Claim and the Holdback Amount, in the proportions notified to the Purchaser by the Vendors’ Representative; or
(b) the Holdback Amount is less than the amount of the Settled Relevant Claim, then the Purchaser shall set off such difference, being a Warrantor Liability, from the next available amount due to the Vendors pursuant to Clause 3.7 or Schedule 7 (Milestone Consideration).
Appears in 1 contract
PAYMENTS, SET OFF AND DEFAULT INTEREST. 20.1 The deduction of any sum owed to the Purchaser by or on behalf of any of the Vendors or the deduction of any sum with respect to any Warrantor Liability from the first available Milestone Consideration due will discharge the obligations of the Vendors or the Warrantors’ Liability to pay the sum in question to the extent of the amount so deducted.
20.2 24.1 Any cash payment to be made pursuant to this Agreement by the Purchaser to the Vendors shall be made to the Vendors’ Vendor Representative’s Bank Account and any payment to be made by a Vendor to the Purchaser pursuant to this Agreement and not otherwise set off by the Vendors to the Purchaser shall be made to the Purchaser’s Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment shall be a good discharge by the payor of its obligation to make such payment. The Purchaser shall not be concerned with, or have any liability whatsoever with respect to, such apportionment of payments made to the Vendors’ Bank Account among the Vendors or for any failure by the Vendors’ Representative to make such apportionment.
20.3 24.2 Where any payment or set off is made in satisfaction of a liability arising pursuant to a warranty, representation, indemnity or covenant under this Agreement it shall be an adjustment to the Total ConsiderationFinal Consideration to the extent of the payment.
20.4 Unless otherwise stated in this Agreement, all 24.3 All payments made by any party to this Agreement the Purchaser under this Agreement, or any of the other Transaction Documents, shall be made free from any set-off, counterclaim or other deduction or withholding of any nature whatsoever, except for deductions or withholdings required to be made by Law. If any deductions or withholdings for, or on account of, Tax are required by Law to be made from any payments made by any party to this Agreement under this Agreement (other than any payment made pursuant to Clause 3 (Consideration), Schedule 7 (Milestone Consideration) or paragraph 1.1(b) or paragraph 2 of Schedule 3 (Completion Obligations))such payments, the amount of the payment shall be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. For .
24.4 Where the avoidance of doubt, Vendors or the Purchaser may deduct and withhold from default in the payment when due of any payments damages or issuance made pursuant to Clause 3 (Consideration) or Schedule 7 (Milestone Consideration) such amounts as the Purchaser is required by Law to deduct and withhold.
20.5 If any other sum payable by virtue of this Agreement or any Vendor other Transaction Documents the liability of the Vendors or the Purchaser (as the case may be) shall be increased to include an amount equal to interest on such sum from the date when payment is due to the date of actual payment (both before and after judgment) at that annual rate which is 5% per annum above the base lending rate of HSBC from time to time in effect during such period. Such interest shall accrue from day to day and be compounded quarterly and shall be payable without prejudice to any other remedy available to the Vendors or where a right of set-off applies the Purchaser (as the case may be) in respect of such payment, any sum deemed to be paid) pursuant to any indemnity under this Agreement or pursuant to paragraph 2 (Covenant to pay) of Schedule 8 (Tax Covenant) is subject to Tax in the hands of the recipient (or would be subject to Tax but for the availability of a Tax relief), the party making such payment shall be liable for such additional amount as shall ensure that the net amount received by the recipient of the payment shall be the amount that the recipient would have received if the payment had not been subject to Tax, provided that such amounts shall be satisfied solely out of and deducted from any Milestone Consideration due to the Vendorsdefault.
20.6 The Purchaser shall deduct from any amount due to be made to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration) (other than the First Milestone Cash Consideration (if any)) an amount in satisfaction of:
(a) any Warrantor Liability;
(b) any amount payable under section 20.5 above;
(c) the Shortfall; or
(d) any liability arising pursuant to paragraph 8.2 of Schedule 7 (Milestone Consideration) or paragraph 9 of Schedule 8 (Tax Covenant).
20.7 In the event that on a date on which an amount is due to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration), there is a Claim, Indemnity Claim or a Tax Covenant Claim that is not a Settled Claim or a Settled Tax Covenant Claim (as applicable) (the “Relevant Claim”), the Purchaser may withhold from such amount due to the Vendors an amount equal to the Purchaser’s reasonable best estimate of the amount of the Claim or the Tax Covenant Claim (as applicable) (such amount being the “Holdback Amount”). When the Relevant Claim is finally settled or otherwise determined (the “Settled Relevant Claim”), where:
(a) the amount of the Settled Relevant Claim is less than the Holdback Amount, the Purchaser shall pay (in the same form of consideration payable for the Milestone Consideration that the Holdback Amount was held back from) the difference between the amount of the Settled Relevant Claim and the Holdback Amount, in the proportions notified to the Purchaser by the Vendors’ Representative; or
(b) the Holdback Amount is less than the amount of the Settled Relevant Claim, then the Purchaser shall set off such difference, being a Warrantor Liability, from the next available amount due to the Vendors pursuant to Clause 3.7 or Schedule 7 (Milestone Consideration).
Appears in 1 contract
Samples: Share Purchase Agreement (China Lodging Group, LTD)
PAYMENTS, SET OFF AND DEFAULT INTEREST. 20.1 The deduction of any sum owed to the Purchaser by or on behalf of any of the Vendors or the deduction of any sum with respect to any Warrantor Liability from the first available Milestone Consideration due will discharge the obligations of the Vendors or the Warrantors’ Liability to pay the sum in question to the extent of the amount so deducted.
20.2 (a) Any cash payment to be made pursuant to this Agreement by the Purchaser to the Vendors Sellers shall be made to the Vendorsbank account of the Sellers’ Bank Account Lawyer and any payment to be made by a Vendor to the Purchaser pursuant to this Agreement and not otherwise set off by the Sellers to the Purchaser shall be made to the Purchaser’s Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment shall be a good discharge by the payor of its obligation to make such payment. The Purchaser shall not be concerned with, or have any liability whatsoever with respect to, such apportionment of payments made to the Vendors’ Bank Account among the Vendors or for any failure by the Vendors’ Representative to make such apportionment.
20.3 Where any payment (b) Subject to Clause 22(c) below and other than for payments of interest or set off is made in satisfaction of a liability arising pursuant to a warranty, representation, indemnity or covenant under this Agreement it shall be an adjustment to the Total Consideration.
20.4 Unless otherwise stated in this Agreementpayments required by Clause 3.2, all payments made by any party to this Agreement under this Agreement, or any of the other Transaction Documents, shall be made free from any set-off, counterclaim or other deduction or withholding of any nature whatsoever, except for deductions or withholdings required to be made by Lawlaw. If any deductions or withholdings for, or on account of, Tax are required by Law law to be made from any payments made by any party to this Agreement under this Agreement (other than any payment made pursuant to Clause 3 (Consideration), Schedule 7 (Milestone Consideration) or paragraph 1.1(b) or paragraph 2 of Schedule 3 (Completion Obligations))such payments, the amount of the payment shall be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. For This Clause 22(b) shall not apply in respect of a deduction or withholding required in respect of the avoidance Purchase Price in respect of doubt, which the Purchaser may deduct and withhold from any payments or issuance has made a claim pursuant to Clause 3 the Deed of Tax Covenant.
(Considerationc) Where any of the Sellers or Schedule 7 (Milestone Consideration) such amounts as the Purchaser is required by Law to deduct and withhold.
20.5 If default in the payment when due of any damages or other sum payable by virtue of this Agreement or any Vendor other Transaction Documents the liability of any of the Sellers or the Purchaser (as the case may be) shall be increased to include an amount equal to interest on such sum from the date when payment is due to the date of actual payment (both before and after judgment) at that annual rate which is 2% per annum above the base lending rate of HSBC Bank plc from time to time in effect during such period. Such interest shall accrue from day to day and be compounded quarterly and shall be payable without prejudice to any other remedy available to any of the Sellers or where a right of set-off applies the Purchaser (as the case may be) in respect of such payment, any sum deemed to be paid) pursuant to any indemnity under this Agreement or pursuant to paragraph 2 (Covenant to pay) of Schedule 8 (Tax Covenant) is subject to Tax in the hands of the recipient (or would be subject to Tax but for the availability of a Tax relief), the party making such payment shall be liable for such additional amount as shall ensure that the net amount received by the recipient of the payment shall be the amount that the recipient would have received if the payment had not been subject to Tax, provided that such amounts shall be satisfied solely out of and deducted from any Milestone Consideration due to the Vendorsdefault.
20.6 The Purchaser shall deduct from any amount due to be made to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration) (other than the First Milestone Cash Consideration (if any)) an amount in satisfaction of:
(a) any Warrantor Liability;
(b) any amount payable under section 20.5 above;
(c) the Shortfall; or
(d) any liability arising pursuant to paragraph 8.2 of Schedule 7 (Milestone Consideration) or paragraph 9 of Schedule 8 (Tax Covenant).
20.7 In the event that on a date on which an amount is due to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration), there is a Claim, Indemnity Claim or a Tax Covenant Claim that is not a Settled Claim or a Settled Tax Covenant Claim (as applicable) (the “Relevant Claim”), the Purchaser may withhold from such amount due to the Vendors an amount equal to the Purchaser’s reasonable best estimate of the amount of the Claim or the Tax Covenant Claim (as applicable) (such amount being the “Holdback Amount”). When the Relevant Claim is finally settled or otherwise determined (the “Settled Relevant Claim”), where:
(a) the amount of the Settled Relevant Claim is less than the Holdback Amount, the Purchaser shall pay (in the same form of consideration payable for the Milestone Consideration that the Holdback Amount was held back from) the difference between the amount of the Settled Relevant Claim and the Holdback Amount, in the proportions notified to the Purchaser by the Vendors’ Representative; or
(b) the Holdback Amount is less than the amount of the Settled Relevant Claim, then the Purchaser shall set off such difference, being a Warrantor Liability, from the next available amount due to the Vendors pursuant to Clause 3.7 or Schedule 7 (Milestone Consideration).
Appears in 1 contract
PAYMENTS, SET OFF AND DEFAULT INTEREST. 20.1 The deduction of 23.1 Except as otherwise provided in this Agreement, any sum owed to the Purchaser by or on behalf of any of the Vendors or the deduction of any sum with respect to any Warrantor Liability from the first available Milestone Consideration due will discharge the obligations of the Vendors or the Warrantors’ Liability to pay the sum in question to the extent of the amount so deducted.
20.2 Any cash payment to be made pursuant to this Agreement by the Purchaser to the Vendors a party shall be made to the Vendors’ such party’s Bank Account and any payment to be made by a Vendor to the Purchaser pursuant to this Agreement and not otherwise set off shall be made to the Purchaser’s Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment shall be a good discharge by the payor payer of its obligation to make such payment. The Purchaser .
23.2 Where any Seller, the Buyer or LMC defaults in the payment when due of any damages or other sum payable by virtue of this Agreement or any other Transaction Document the liability of such Seller, the Buyer or LMC (as the case may be) shall not be concerned with, or have any liability whatsoever with respect to, increased to include an amount equal to interest on such apportionment of payments made sum from the date when payment is due to the Vendors’ date of actual payment (both before and after judgment) at that annual rate which is 2% per annum above the base lending rate of HSBC Bank Account among plc from time to time in effect during such period. Such interest shall accrue from day to day and be compounded quarterly and shall be payable without prejudice to any other remedy available to any other party (as the Vendors or for any failure by the Vendors’ Representative to make case may be) in respect of such apportionmentdefault.
20.3 Where any payment or set off is made in satisfaction of a liability arising pursuant to a warranty, representation, indemnity or covenant 23.3 All sums payable under this Agreement it shall be paid free and clear of all deductions or withholdings whatsoever, save only as provided in this Agreement or as required by applicable Law, provided that any such payment made by way of indemnity or reimbursement, or for breach of this Agreement, shall be made on an adjustment after-Tax basis.
23.4 Notwithstanding anything to the Total Consideration.
20.4 Unless otherwise stated contrary in this Agreement, all the following payments made by any party to this Agreement under this Agreement, or any of the other Transaction Documents, shall not be made free from any set-off, counterclaim or other deduction or withholding of any nature whatsoever, except for deductions or withholdings required to be made on an after-Tax basis: (i) the payment of any Purchased Shares Consideration (including, without limitation, in the form of Consideration Shares) by Lawor on behalf of the Buyer, LMC or any of their Affiliates (as applicable); (ii) in circumstances where this Agreement has been terminated without Completion having occurred, any payment by or on behalf of the Buyer, LMC or any of their Affiliates for breach or non-performance (or a purported breach or non-performance) of this Agreement if and to the extent that such payment represents the amount forgone by the Sellers with respect to the Purchased Shares Consideration (including, without limitation, in the form of Consideration Shares); (iii) subject to Clause 16.3, the payment of the Buyer Break Fee (if any) by LMC; and (iv) subject to Clause 16.3, the payment of the Upfront Amount (if any) by LMC.
23.5 The Buyer and LMC confirm that, as at the date of this Agreement, they do not expect any amount to be required to be deducted or withheld for or on account of Tax from any payment of the Purchased Shares Consideration (including, without limitation, in the form of Consideration Shares), the Buyer Break Fee or the Upfront Amount. If The Buyer and LMC shall provide the Sellers with prompt notice of their intention to make any deduction or withholding for or on account of Tax from payment of any Purchased Shares Consideration, the Buyer Break Fee or the Upfront Amount along with an explanation of the requirement for such deduction or withholding set forth in reasonable detail, and shall reasonably cooperate with the Sellers in good faith so as to reduce or eliminate any such deduction or withholding in a manner permitted by applicable Laws. Any such deductions or withholdings for, for or on account of, of Tax are required by Law to be made from any payments made by any party to this Agreement under this Agreement (other than any payment made pursuant to Clause 3 (Consideration), Schedule 7 (Milestone Consideration) or paragraph 1.1(b) or paragraph 2 of Schedule 3 (Completion Obligations)), the amount of the payment shall be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. For the avoidance of doubt, the Purchaser may deduct and withhold from any payments or issuance made pursuant to Clause 3 (Consideration) or Schedule 7 (Milestone Consideration) such amounts as the Purchaser is required by Law to deduct and withhold.
20.5 If any sum payable by any Vendor (or where a right of set-off applies in respect of such payment, any sum deemed to be paid) pursuant to any indemnity under this Agreement or pursuant to paragraph 2 (Covenant to pay) of Schedule 8 (Tax Covenant) is subject to Tax in the hands of the recipient (or would be subject to Tax but for the availability of a Tax relief), the party making such payment shall be liable for such additional amount as shall ensure that the net amount received by the recipient of the payment shall be the amount that the recipient would have received if the payment had not been subject to Tax, provided that such amounts shall be satisfied solely out of and deducted from any Milestone Consideration due to the Vendors.
20.6 The Purchaser shall deduct from any amount due to be made to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration) (other than the First Milestone Cash Consideration (if any)) an amount in satisfaction of:
Transaction Document: (a) shall be in the minimum amount required by applicable Laws and shall be remitted to the relevant Tax Authority within any Warrantor Liability;
applicable deadline; and (b) any amount payable under section 20.5 above;
(c) the Shortfall; or
(d) any liability arising pursuant to paragraph 8.2 of Schedule 7 (Milestone Consideration) or paragraph 9 of Schedule 8 (Tax Covenant).
20.7 In the event that on a date on which an amount is due shall be treated for all purposes as having been paid to the Vendors pursuant person to Clause 3.6, Clause 3.7 whom such amounts otherwise would have been paid absent such deduction or Schedule 7 (Milestone Consideration), there is a Claim, Indemnity Claim or a Tax Covenant Claim that is not a Settled Claim or a Settled Tax Covenant Claim (as applicable) (the “Relevant Claim”), the Purchaser may withhold from such amount due to the Vendors an amount equal to the Purchaser’s reasonable best estimate of the amount of the Claim or the Tax Covenant Claim (as applicable) (such amount being the “Holdback Amount”). When the Relevant Claim is finally settled or otherwise determined (the “Settled Relevant Claim”), where:
(a) the amount of the Settled Relevant Claim is less than the Holdback Amount, the Purchaser shall pay (in the same form of consideration payable for the Milestone Consideration that the Holdback Amount was held back from) the difference between the amount of the Settled Relevant Claim and the Holdback Amount, in the proportions notified to the Purchaser by the Vendors’ Representative; or
(b) the Holdback Amount is less than the amount of the Settled Relevant Claim, then the Purchaser shall set off such difference, being a Warrantor Liability, from the next available amount due to the Vendors pursuant to Clause 3.7 or Schedule 7 (Milestone Consideration)withholding.
Appears in 1 contract
PAYMENTS, SET OFF AND DEFAULT INTEREST. 20.1 The deduction of 25.1 Except as otherwise provided in this Agreement, any sum owed to the Purchaser by or on behalf of any of the Vendors or the deduction of any sum with respect to any Warrantor Liability from the first available Milestone Consideration due will discharge the obligations of the Vendors or the Warrantors’ Liability to pay the sum in question to the extent of the amount so deducted.
20.2 Any cash payment to be made pursuant to this Agreement by the Purchaser Buyer to the Vendors any Seller shall be made to the Vendors’ Bank Account of such Seller and any payment to be made by a Vendor to the Purchaser pursuant to this Agreement and not otherwise set off by any Seller to the Buyer shall be made to the Purchaser’s Bank AccountAccount of the Buyer, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment shall be a good discharge by the payor payer of its obligation to make such payment. The Purchaser shall not be concerned with, or have any liability whatsoever with respect to, such apportionment of payments made to the Vendors’ Bank Account among the Vendors or for any failure by the Vendors’ Representative to make such apportionment.
20.3 Where any payment or set off is made in satisfaction of a liability arising pursuant 25.2 Subject to a warranty, representation, indemnity or covenant under this Agreement it shall be an adjustment to the Total Consideration.
20.4 Unless otherwise stated in this AgreementClause 25.4, all payments made by any party to this Agreement under this Agreement, or any of the other Transaction DocumentsDocument, shall be made free from any set-off, counterclaim or other deduction or withholding of any nature whatsoever, except for deductions or withholdings required to be made by Law. If any such deductions or withholdings for, for or on account of, of Tax are required by Law to be made from any payments made payable by any party to Seller(s) under this Agreement under in respect of any Tax Covenant Claim, any indemnity or for breach of this Agreement (other than any payment made pursuant to Clause 3 (Consideration), Schedule 7 (Milestone Considerationof interest) or paragraph 1.1(b) or paragraph 2 of Schedule 3 (Completion Obligations)), the amount of the payment shall be increased by the Seller(s) by such amount as will, after the deduction or withholding has been made, leave the recipient Buyer or relevant member of the payment Buyer Group with the same net after-tax amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. For the avoidance of doubt, the Purchaser may deduct and withhold from any payments or issuance made pursuant to Clause 3 (Consideration) or Schedule 7 (Milestone Consideration) such amounts as the Purchaser is required by Law to deduct and withhold.
20.5 25.3 If any sum payable under this Agreement by any Vendor (or where a right of set-off applies Seller(s) under this Agreement in respect of such payment, any sum deemed to be paid) pursuant to Tax Covenant Claim (other than any indemnity under this Agreement or pursuant to paragraph 2 (Covenant to pay) payment of Schedule 8 (Tax Covenantinterest) is subject to Tax in the hands of the recipient Buyer or relevant member of the Buyer Group (as applicable) (or would be subject to Tax but for the availability of a Tax reliefRelief) (other than by deduction or withholding), the party making such payment Seller(s) shall be liable for pay such additional amount as shall ensure that the net after-tax amount received by the recipient Buyer or relevant member of the payment Buyer Group (as applicable) shall be the amount that the recipient payee would have received if the payment had not been subject to Tax.
25.4 To the extent that the Buyer shall have transferred (by whatever means, provided including by way of a declaration of trust or anything that such amounts in substance to a transfer) the benefit in whole or in part of this Agreement or shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the Seller(s) under Clauses 25.2 and 25.3 shall be satisfied solely out of and deducted from any Milestone Consideration due limited to the Vendors.
20.6 The Purchaser shall deduct from any amount due to be made to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration) (other than the First Milestone Cash Consideration that (if any)) which it would have been had no such transfer or change taken place.
25.5 Where any Seller or the Buyer default in the payment when due of any damages or other sum payable by virtue of this Agreement or any other Transaction Document the liability of such Seller or the Buyer (as the case may be) shall be increased to include an amount in satisfaction of:
(a) any Warrantor Liability;
(b) any amount payable under section 20.5 above;
(c) equal to interest on such sum from the Shortfall; or
(d) any liability arising pursuant to paragraph 8.2 of Schedule 7 (Milestone Consideration) or paragraph 9 of Schedule 8 (Tax Covenant).
20.7 In the event that on a date on which an amount when payment is due to the Vendors pursuant date of actual payment (both before and after judgment) at that annual rate which is 2.5% per annum above the base lending rate of HSBC Bank plc from time to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration), there is a Claim, Indemnity Claim or a Tax Covenant Claim that is not a Settled Claim or a Settled Tax Covenant Claim time in effect during such period. Such interest shall accrue from day to day and be compounded quarterly and shall be payable without prejudice to any other remedy available to any other party (as applicablethe case may be) (the “Relevant Claim”), the Purchaser may withhold from in respect of such amount due to the Vendors an amount equal to the Purchaser’s reasonable best estimate of the amount of the Claim or the Tax Covenant Claim (as applicable) (such amount being the “Holdback Amount”). When the Relevant Claim is finally settled or otherwise determined (the “Settled Relevant Claim”), where:
(a) the amount of the Settled Relevant Claim is less than the Holdback Amount, the Purchaser shall pay (in the same form of consideration payable for the Milestone Consideration that the Holdback Amount was held back from) the difference between the amount of the Settled Relevant Claim and the Holdback Amount, in the proportions notified to the Purchaser by the Vendors’ Representative; or
(b) the Holdback Amount is less than the amount of the Settled Relevant Claim, then the Purchaser shall set off such difference, being a Warrantor Liability, from the next available amount due to the Vendors pursuant to Clause 3.7 or Schedule 7 (Milestone Consideration)default.
Appears in 1 contract
Samples: Share Purchase Agreement (Cadence Design Systems Inc)
PAYMENTS, SET OFF AND DEFAULT INTEREST. 20.1 The deduction of 30.1 Except as otherwise provided in this Agreement, any sum owed to the Purchaser by or on behalf of any of the Vendors or the deduction of any sum with respect to any Warrantor Liability from the first available Milestone Consideration due will discharge the obligations of the Vendors or the Warrantors’ Liability to pay the sum in question to the extent of the amount so deducted.
20.2 Any cash payment to be made pursuant to this Agreement by the Purchaser to the Vendors shall be made to the Vendors’ Bank Account and any payment to be made by a Vendor to the Purchaser pursuant to this Agreement and not otherwise set off shall be made to the Purchaser’s Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment shall be a good discharge by the payor payer of its obligation to make such payment. The Purchaser shall not be concerned withrelevant account for a given payment is:
(a) if that payment is to Ardutch, or have any liability whatsoever with respect tothe Ardutch Bank Account;
(b) if that payment is to Whirlpool, such apportionment of payments made to the Vendors’ Whirlpool Bank Account among Account; and
(c) if that payment is to the Vendors Buyer, to such account as the Buyer shall, not less than 10 Business Days before the date that payment is due, have specified by notice in writing for the purpose of that payment to the entity making the payment and such entity having consented to that account (such consent not to be unreasonably withheld or for any failure by the Vendors’ Representative to make such apportionmentdelayed).
20.3 Where any payment or set off is made in satisfaction of a liability arising pursuant to a warranty, representation, indemnity or covenant under this Agreement it shall be an adjustment to the Total Consideration.
20.4 Unless otherwise stated in this Agreement, all 30.2 All payments made by any party to under this Agreement under this Agreement, or any of the other Transaction Documents, shall be made free from any set-off, counterclaim or other deduction or withholding of any nature whatsoever, except for deductions or withholdings required to be made by Law. If any such deductions or withholdings for, or on account of, Tax are required by Law to be made from any such payments made by any party to this Agreement under this Agreement for or on account of Tax (other than any payments of interest or any payment made pursuant to Clause 3 (Consideration)2, Schedule 7 (Milestone Consideration) Clause 21, paragraph 6.3 of the Whirlpool Tax Covenant or paragraph 1.1(b6.1 of the Ardutch Tax Covenant) or paragraph 2 of Schedule 3 (Completion Obligations)), the amount of the payment shall be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. For .
30.3 If, following the avoidance payment of doubtan additional amount under Clause 30.2 the recipient of the increased payment subsequently obtains any Relief on account of such deduction or withholding, the Purchaser may deduct and withhold from any payments recipient shall pay to the payer of the increased payment such amount (not exceeding the amount of the Relief) that the recipient shall determine (acting reasonably) will leave it in no better or issuance made pursuant worse position than it would have been in had no withholding or deduction been required to Clause 3 (Consideration) or Schedule 7 (Milestone Consideration) such amounts as the Purchaser is required by Law to deduct and withholdbe made.
20.5 30.4 If any sum payable by any Vendor (or where a right of set-off applies in respect of such payment, any sum deemed to be paid) pursuant to any indemnity under this Agreement or pursuant to paragraph 2 (Covenant to pay) of Schedule 8 (Tax Covenant) Compensation Amount is subject to Tax in the hands of the recipient (or would be subject to Tax but for the availability of a Tax reliefRelief, other than a Relief arising from the matter giving rise to the Compensation Amount), the party making such payment payor shall be liable for pay to the recipient such additional amount as shall ensure that, after taking into account any Relief which has been obtained in respect of the matter giving rise to the payment of the Compensation Amount, the recipient is left in the same after-Tax position as it would have been in absent the Tax arising in the hands of the recipient (or absent the Tax that would have arisen in the net hands of the recipient but for the availability of a Relief).
30.5 The parties agree to use reasonable endeavours to cause the payment of any Compensation Amount to be structured in a Tax efficient manner so as to avoid or minimise the need for any additional amount received by to be paid pursuant to Clause 30.4, including without limitation, where the recipient of the Compensation Amount is the Buyer, in the form of a subscription for deferred shares in the Buyer which does not alter the economic interests, voting rights or other rights of any shareholder.
30.6 Where any person defaults in the payment when due of any damages or other sum payable by virtue of this Agreement or any other Transaction Document the liability of such person shall be the amount that the recipient would have received if the payment had not been subject increased to Tax, provided that such amounts shall be satisfied solely out of and deducted from any Milestone Consideration due to the Vendors.
20.6 The Purchaser shall deduct from any amount due to be made to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration) (other than the First Milestone Cash Consideration (if any)) include an amount in satisfaction of:
(a) any Warrantor Liability;
(b) any amount payable under section 20.5 above;
(c) equal to interest on such sum from the Shortfall; or
(d) any liability arising pursuant to paragraph 8.2 of Schedule 7 (Milestone Consideration) or paragraph 9 of Schedule 8 (Tax Covenant).
20.7 In the event that on a date on which an amount when payment is due to the Vendors pursuant date of actual payment (both before and after judgment) at that annual rate which is 2% per annum above the base lending rate of HSBC Bank plc from time to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration), there is a Claim, Indemnity Claim or a Tax Covenant Claim that is not a Settled Claim or a Settled Tax Covenant Claim time in effect during such period. Such interest shall accrue from day to day and be compounded quarterly and shall be payable without prejudice to any other remedy available to any other party (as applicablethe case may be) (the “Relevant Claim”), the Purchaser may withhold from in respect of such amount due to the Vendors an amount equal to the Purchaser’s reasonable best estimate of the amount of the Claim or the Tax Covenant Claim (as applicable) (such amount being the “Holdback Amount”). When the Relevant Claim is finally settled or otherwise determined (the “Settled Relevant Claim”), where:
(a) the amount of the Settled Relevant Claim is less than the Holdback Amount, the Purchaser shall pay (in the same form of consideration payable for the Milestone Consideration that the Holdback Amount was held back from) the difference between the amount of the Settled Relevant Claim and the Holdback Amount, in the proportions notified to the Purchaser by the Vendors’ Representative; or
(b) the Holdback Amount is less than the amount of the Settled Relevant Claim, then the Purchaser shall set off such difference, being a Warrantor Liability, from the next available amount due to the Vendors pursuant to Clause 3.7 or Schedule 7 (Milestone Consideration)default.
Appears in 1 contract
PAYMENTS, SET OFF AND DEFAULT INTEREST. 20.1 The deduction of any sum owed to the Purchaser by or on behalf of any of the Vendors or the deduction of any sum with respect to any Warrantor Liability from the first available Milestone Consideration due will discharge the obligations of the Vendors or the Warrantors’ Liability to pay the sum in question to the extent of the amount so deducted.
20.2 26.1 Any cash payment to be made pursuant to this Agreement by the Purchaser to the Vendors shall be made to the Vendors’ Bank Account and any payment to be made pursuant to this Agreement by a Vendor to the Purchaser pursuant to this Agreement and not otherwise set off shall be made to the Purchaser’s Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment shall be a good discharge by the payor of its obligation to make such payment. The Purchaser shall not be concerned with, or have any liability whatsoever with respect to, such apportionment of payments made to the Vendors’ Bank Account among the Vendors or for any failure by the Vendors’ Representative to make such apportionment.
20.3 26.2 Where any payment or set off is made in satisfaction of a liability arising pursuant to a warranty, representation, indemnity or covenant under this Agreement it shall be an adjustment to the Total Consideration.
20.4 Unless otherwise stated in this Agreement, all 26.3 All payments made by any party to this Agreement under this Agreement, or any of the other Transaction Documents, shall be made free from any set-off, counterclaim or other deduction or withholding of any nature whatsoever, except for deductions or withholdings required to be made by Law. If any deductions or withholdings for, or on account of, Tax are required by Law to be made from any payments made by any party to this Agreement under this Agreement (other than any payment made pursuant to Clause 3 (Consideration), Schedule 7 (Milestone Consideration) or paragraph 1.1(b) or paragraph 2 of Schedule 3 (Completion Obligations))such payments, the amount of the payment (save for any payment or part payment of the Consideration) shall be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. For .
26.4 Where the avoidance of doubt, Vendors or the Purchaser may deduct and withhold from default in the payment when due of any payments damages or issuance made pursuant to Clause 3 (Consideration) or Schedule 7 (Milestone Consideration) such amounts as the Purchaser is required by Law to deduct and withhold.
20.5 If any other sum payable by virtue of this Agreement or any Vendor other Transaction Documents the liability of the Vendors or the Purchaser (as the case may be) shall be increased to include an amount equal to interest on such sum from the date when payment is due to the date of actual payment (both before and after judgment) at that annual rate which is 2% per annum above the base lending rate of HSBC Bank plc from time to time in effect during such period. Such interest shall accrue from day to day and be compounded quarterly and shall be payable without prejudice to any other remedy available to the Vendors or where a right of set-off applies the Purchaser (as the case may be) in respect of such payment, any sum deemed to be paid) pursuant to any indemnity under this Agreement or pursuant to paragraph 2 (Covenant to pay) of Schedule 8 (Tax Covenant) is subject to Tax in the hands of the recipient (or would be subject to Tax but for the availability of a Tax relief), the party making such payment shall be liable for such additional amount as shall ensure that the net amount received by the recipient of the payment shall be the amount that the recipient would have received if the payment had not been subject to Tax, provided that such amounts shall be satisfied solely out of and deducted from any Milestone Consideration due to the Vendorsdefault.
20.6 The Purchaser shall deduct from any amount due to be made to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration) (other than the First Milestone Cash Consideration (if any)) an amount in satisfaction of:
(a) any Warrantor Liability;
(b) any amount payable under section 20.5 above;
(c) the Shortfall; or
(d) any liability arising pursuant to paragraph 8.2 of Schedule 7 (Milestone Consideration) or paragraph 9 of Schedule 8 (Tax Covenant).
20.7 In the event that on a date on which an amount is due to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration), there is a Claim, Indemnity Claim or a Tax Covenant Claim that is not a Settled Claim or a Settled Tax Covenant Claim (as applicable) (the “Relevant Claim”), the Purchaser may withhold from such amount due to the Vendors an amount equal to the Purchaser’s reasonable best estimate of the amount of the Claim or the Tax Covenant Claim (as applicable) (such amount being the “Holdback Amount”). When the Relevant Claim is finally settled or otherwise determined (the “Settled Relevant Claim”), where:
(a) the amount of the Settled Relevant Claim is less than the Holdback Amount, the Purchaser shall pay (in the same form of consideration payable for the Milestone Consideration that the Holdback Amount was held back from) the difference between the amount of the Settled Relevant Claim and the Holdback Amount, in the proportions notified to the Purchaser by the Vendors’ Representative; or
(b) the Holdback Amount is less than the amount of the Settled Relevant Claim, then the Purchaser shall set off such difference, being a Warrantor Liability, from the next available amount due to the Vendors pursuant to Clause 3.7 or Schedule 7 (Milestone Consideration).
Appears in 1 contract
PAYMENTS, SET OFF AND DEFAULT INTEREST. 20.1 The deduction of 40.1 Except as otherwise provided in this Deed, any sum owed to the Purchaser by or on behalf of any of the Vendors or the deduction of any sum with respect to any Warrantor Liability from the first available Milestone Consideration due will discharge the obligations of the Vendors or the Warrantors’ Liability to pay the sum in question to the extent of the amount so deducted.
20.2 Any cash payment to be made pursuant to this Agreement Deed by the Purchaser Buyer or the Buyer Guarantor to the Vendors shall Seller or the Seller Guarantor must be made to the Vendors’ Seller’s Bank Account Account, and any payment to be made by a Vendor to the Purchaser pursuant to this Agreement and not otherwise set off shall Deed by the Seller or the Seller Guarantor to the Buyer or the Buyer Guarantor must be made to the PurchaserBuyer’s Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment shall be a good will discharge by the payor payer of its obligation to make such payment. The Purchaser shall not be concerned with, or have any liability whatsoever with respect to, such apportionment of payments made to the Vendors’ Bank Account among the Vendors or for any failure by the Vendors’ Representative to make such apportionment.
20.3 Where any payment or set off is made in satisfaction of a liability arising pursuant 40.2 Subject to a warranty, representation, indemnity or covenant under this Agreement it shall be an adjustment to the Total Consideration.
20.4 Unless otherwise stated in this AgreementClauses 40.3 and 8, all payments made by any party to this Agreement under this AgreementDeed, or any of the other Transaction DocumentsDocument, shall must be made free from any set-off, counterclaim or other deduction or withholding of any nature whatsoevernature, except for deductions or withholdings required to be made by Law. If any such deductions or withholdings for, or on account of, Tax are required by Law to be made from any such payments made by any party to this Agreement under this Agreement for or on account of Tax (other than any payment made pursuant payments of interest or an amount permitted to be withheld by the Buyer under Clause 3 (Consideration), Schedule 7 (Milestone Consideration) or paragraph 1.1(b) or paragraph 2 of Schedule 3 (Completion Obligations))8), the amount of the payment shall must be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. For .
40.3 If, following the avoidance payment of doubtan additional amount under Clause 40.2, the Purchaser may deduct and withhold from recipient of the increased payment subsequently obtains any payments Relief on account of such deduction or issuance made pursuant withholding, the recipient shall pay to Clause 3 the payer of the increased payment such amount (Considerationnot exceeding the amount of the Relief) that the recipient shall determine (acting reasonably) will leave it in no better or Schedule 7 (Milestone Consideration) such amounts as the Purchaser is worse position than it would have been in had no withholding or deduction been required by Law to deduct and withholdbe made.
20.5 40.4 If any sum payable by any Vendor (or where a right of set-off applies in respect of such payment, any sum deemed to be paid) pursuant to any indemnity under this Agreement Deed (other than any payment of interest or pursuant to paragraph 2 (Covenant to pay) of Schedule 8 (Tax Covenantthe Consideration) is subject to Tax in the hands of the recipient (or would be subject to Tax but for the availability of a Tax reliefRelief), the party making such payment payor shall be liable for pay such additional amount as shall will ensure that the net amount received by the recipient (after giving credit for any Relief which has been obtained by the recipient, as applicable, in respect of the payment shall losses, costs and expenses or other items giving rise to such payment) will be the amount that the recipient would have received if the payment had not been subject to Tax, provided that such amounts shall be satisfied solely out of and deducted from any Milestone Consideration due to the Vendors.
20.6 The Purchaser shall deduct from 40.5 Where the Seller or the Buyer default in the payment when due of any amount due damages or other sum payable by virtue of this Deed or any other Transaction Document, the Seller’s liability or the Buyer’s liability (as the case may be) will be increased to be made to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration) (other than the First Milestone Cash Consideration (if any)) include an amount in satisfaction of:
(a) any Warrantor Liability;
(b) any amount payable under section 20.5 above;
(c) equal to interest on such sum from the Shortfall; or
(d) any liability arising pursuant to paragraph 8.2 of Schedule 7 (Milestone Consideration) or paragraph 9 of Schedule 8 (Tax Covenant).
20.7 In the event that on a date on which an amount when payment is due to the Vendors pursuant date of actual payment (both before and after judgment) at that annual rate which is 2 % per annum above SOFR in effect during such period. Such interest will accrue from day to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration), there is a Claim, Indemnity Claim or a Tax Covenant Claim that is not a Settled Claim or a Settled Tax Covenant Claim day and be compounded quarterly and will be payable without prejudice to any other remedy available to any other party (as applicablethe case may be) (the “Relevant Claim”), the Purchaser may withhold from in respect of such amount due to the Vendors an amount equal to the Purchaser’s reasonable best estimate of the amount of the Claim or the Tax Covenant Claim (as applicable) (such amount being the “Holdback Amount”). When the Relevant Claim is finally settled or otherwise determined (the “Settled Relevant Claim”), where:
(a) the amount of the Settled Relevant Claim is less than the Holdback Amount, the Purchaser shall pay (in the same form of consideration payable for the Milestone Consideration that the Holdback Amount was held back from) the difference between the amount of the Settled Relevant Claim and the Holdback Amount, in the proportions notified to the Purchaser by the Vendors’ Representative; or
(b) the Holdback Amount is less than the amount of the Settled Relevant Claim, then the Purchaser shall set off such difference, being a Warrantor Liability, from the next available amount due to the Vendors pursuant to Clause 3.7 or Schedule 7 (Milestone Consideration)default.
Appears in 1 contract
PAYMENTS, SET OFF AND DEFAULT INTEREST. 20.1 The deduction of any sum owed to the Purchaser by or on behalf of any of the Vendors or the deduction of any sum with respect to any Warrantor Liability from the first available Milestone Consideration due will discharge the obligations of the Vendors or the Warrantors’ Liability to pay the sum in question to the extent of the amount so deducted.
20.2 19.1 Any cash payment to be made pursuant to this Agreement by the Purchaser Buyer to the Vendors a Seller shall be made to the Vendors’ Sellers' Bank Account and any payment to be made by a Vendor to the Purchaser pursuant to this Agreement and not otherwise set off by the Sellers, or any of them, to the Buyer shall be made to the Purchaser’s Buyer's Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment shall be a good discharge by the payor of its obligation to make such payment. The Purchaser payment and the parties shall not be concerned with, or have any liability whatsoever with respect to, such obliged to see to the application and/or apportionment of payments made to the Vendors’ Bank Account among payment as between those on whose behalf the Vendors or for any failure by the Vendors’ Representative to make such apportionmentpayment is received.
20.3 19.2 Where any payment or set off is made by a Seller in satisfaction of a liability arising pursuant to a warranty, representation, indemnity under or covenant under for breach of this Agreement it shall be an adjustment shall, to the Total Considerationextent possible, be treated as a reduction of the consideration paid to such Seller in respect of the Interest or the GP Interests (as applicable).
20.4 Unless otherwise stated in this Agreement, all 19.3 All payments made by any party to this Agreement under this Agreement, or any of the other Transaction Documents, shall be made free from any set-off, counterclaim or other deduction or withholding of any nature whatsoever, except for deductions or withholdings required to be made by Law. If any deductions or withholdings for, or on account of, Tax are required by Law to be made from any such payments (except, in the case of payments made by the Buyer, the Initial Consideration, Final Consideration, Partner Loans Amount or any party to this Agreement under this Agreement (other than any payment made pursuant to amount in accordance with Clause 3 (Consideration), Schedule 7 (Milestone Consideration) or paragraph 1.1(b) or paragraph 2 of Schedule 3 (Completion Obligations)6 and/or Clause 9), the amount of the payment shall be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. For .
19.4 If the avoidance recipient of doubt, the Purchaser may deduct and withhold from any payments or issuance a payment made pursuant to Clause 3 (Consideration) an indemnity, compensation or Schedule 7 (Milestone Consideration) such amounts as the Purchaser is required by Law to deduct and withhold.
20.5 If any sum payable by any Vendor (or where a right of set-off applies in respect of such payment, any sum deemed to be paid) pursuant to any indemnity reimbursement provision under this Agreement or pursuant to paragraph 2 (Covenant to pay) of Schedule 8 (Tax Covenant) is subject to Tax in the hands any of the recipient Transaction Documents, incurs a Taxation liability (or would be subject to Tax have incurred a Taxation liability but for the availability use of a Tax reliefRelief) which results from, or is calculated by reference to, that payment (other than Taxation on a capital gain), the party making such payment shall be liable for such additional amount as shall ensure that the net amount received by the recipient of the payment shall be increased by such amount as will ensure that, after payment of the amount Taxation liability (and after giving credit for the net present value of any Relief that is or will be available to the recipient in respect of the matter giving rise to the payment), the recipient is left with a net sum equal to the sum it would have received if had no such Taxation liability arisen.
19.5 Where any Seller or the Buyer default in the payment had not been subject to Tax, provided that when due of any damages or other sum payable by virtue of this Agreement or any other Transaction Documents the liability of such amounts Seller or the Buyer (as the case may be) shall be satisfied solely out of and deducted from any Milestone Consideration due increased to the Vendors.
20.6 The Purchaser shall deduct from any amount due to be made to the Vendors pursuant to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration) (other than the First Milestone Cash Consideration (if any)) include an amount in satisfaction of:
(a) any Warrantor Liability;
(b) any amount payable under section 20.5 above;
(c) equal to interest on such sum from the Shortfall; or
(d) any liability arising pursuant to paragraph 8.2 of Schedule 7 (Milestone Consideration) or paragraph 9 of Schedule 8 (Tax Covenant).
20.7 In the event that on a date on which an amount when payment is due to the Vendors pursuant date of actual payment (both before and after judgment) at that annual rate which is 2% per annum above the base lending rate of HSBC Bank plc from time to Clause 3.6, Clause 3.7 time in effect during such period. Such interest shall accrue from day to day and be compounded quarterly and shall be payable without prejudice to any other remedy available to the Sellers or Schedule 7 (Milestone Consideration), there is a Claim, Indemnity Claim or a Tax Covenant Claim that is not a Settled Claim or a Settled Tax Covenant Claim the Buyer (as applicablethe case may be) (the “Relevant Claim”), the Purchaser may withhold from in respect of such amount due to the Vendors an amount equal to the Purchaser’s reasonable best estimate of the amount of the Claim or the Tax Covenant Claim (as applicable) (such amount being the “Holdback Amount”). When the Relevant Claim is finally settled or otherwise determined (the “Settled Relevant Claim”), where:
(a) the amount of the Settled Relevant Claim is less than the Holdback Amount, the Purchaser shall pay (in the same form of consideration payable for the Milestone Consideration that the Holdback Amount was held back from) the difference between the amount of the Settled Relevant Claim and the Holdback Amount, in the proportions notified to the Purchaser by the Vendors’ Representative; or
(b) the Holdback Amount is less than the amount of the Settled Relevant Claim, then the Purchaser shall set off such difference, being a Warrantor Liability, from the next available amount due to the Vendors pursuant to Clause 3.7 or Schedule 7 (Milestone Consideration)default.
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Samples: Sale and Purchase Agreement (Landmark Infrastructure Partners LP)
PAYMENTS, SET OFF AND DEFAULT INTEREST. 20.1 The deduction of any sum owed to the Purchaser by or on behalf of any of the Vendors or the deduction of any sum with respect to any Warrantor Liability from the first available Milestone Consideration due will discharge the obligations of the Vendors or the Warrantors’ Liability to pay the sum in question to the extent of the amount so deducted.
20.2 22.1 Any cash payment to be made pursuant to this Agreement by by:
(a) the Purchaser to the Vendors a Vendor shall be made in cash in pounds sterling to the Vendors’ relevant Vendor’s Bank Account and Account; and
(b) by any payment to be made by a Vendor to the Purchaser pursuant to this Agreement and not otherwise set off shall be made in cash in pounds sterling to the Purchaser’s Bank Account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account on or before the due date for payment in accordance with this Clause 22.1 shall (to the extent of the sum so received) be a good discharge by the payor of its obligation to make such payment. The Purchaser payment (and the payor shall not be concerned with, with or have responsible for the application or allocation of any liability whatsoever with respect to, such apportionment of payments made to the Vendors’ Bank Account among the Vendors or for any failure by the Vendors’ Representative to make such apportionmentsum).
20.3 22.2 Where any payment or set off is made in satisfaction of a liability arising pursuant to a warranty, representation, indemnity or covenant under this Agreement or under the Tax Deed of Covenant (including the payment out of any Charged Amount of any Due Amount to the Purchaser by the Security Bank) it shall be an adjustment to the Total Final Initial Consideration.
20.4 Unless otherwise stated in this Agreement, all 22.3 All payments made by any party to this Agreement under this Agreement, or any of the other Transaction Documents, shall be made free from any set-off, counterclaim or other deduction or withholding of any nature whatsoever, except for deductions or withholdings required to be made by Law. If any deductions deduction or withholdings for, or on account of, Tax are withholding is required by any applicable Law to be made from on any payments made by any party to this Agreement under this Agreement (other than any payment of interest or any payment made pursuant to Clause 3 (Consideration)3, Clause 5, Schedule 7 (Milestone Consideration) 4 or paragraph 1.1(b) or paragraph 2 of Schedule 3 (Completion Obligations)9), the amount party making the payment must: (a) provide to the recipient of the payment shall be increased by such evidence of the relevant withholding as the recipient may reasonably require; and (b) pay to the recipient of the payment an amount as willthat will ensure that, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would will have been entitled received a sum equal to receive in the absence of any such requirement to make a deduction or withholding. For the avoidance of doubt, the Purchaser may deduct and withhold from any payments or issuance made pursuant to Clause 3 (Consideration) or Schedule 7 (Milestone Consideration) such amounts as the Purchaser is required by Law to deduct and withhold.
20.5 If any sum payable by any Vendor (or where a right of set-off applies in respect of such payment, any sum deemed to be paid) pursuant to any indemnity under this Agreement or pursuant to paragraph 2 (Covenant to pay) of Schedule 8 (Tax Covenant) is subject to Tax in the hands of the recipient (or would be subject to Tax but for the availability of a Tax relief), the party making such payment shall be liable for such additional amount as shall ensure that the net amount received by the recipient of the payment shall be the amount that the recipient would otherwise have received if in the payment had not been subject to Tax, provided that such amounts shall be satisfied solely out absence of and deducted from any Milestone Consideration due to the Vendorsdeduction or withholding.
20.6 The Purchaser shall deduct from 22.4 If a Tax Authority charges to Tax any amount due sum paid (the “original payment”) to be a party under this Agreement (other than any payment of interest or any payment made to the Vendors pursuant to Clause 3.63, Clause 3.7 5, Schedule 4 or Schedule 7 9), the party making the payment will be obliged to pay to the recipient of the payment an additional amount (Milestone Considerationthe “additional payment”) as will ensure that, after the payment of the Tax so charged on the original payment and any Tax chargeable on the additional payment, there will remain a net sum equal to the amount of the original payment, the additional payment to be paid three Business Days after the recipient has served notice that Tax on the original payment has become due and payable, or, in the case of a relief being available, would have become due and payable but for the availability of such relief.
22.5 Where a Vendor or the Purchaser defaults in the payment when due of any sum payable pursuant to this Agreement or any other Transaction Documents the liability of such Vendor or the Purchaser (other than as the First Milestone Cash Consideration (if any)case may be) shall be increased to include an amount in satisfaction of:
(a) any Warrantor Liability;
(b) any amount payable under section 20.5 above;
(c) equal to interest on such sum from the Shortfall; or
(d) any liability arising pursuant to paragraph 8.2 of Schedule 7 (Milestone Consideration) or paragraph 9 of Schedule 8 (Tax Covenant).
20.7 In the event that on a date on which an amount when payment is due to the Vendors pursuant date of actual payment (both before and after judgment) at that annual rate which is 2% per annum above the base lending rate of HSBC Bank plc from time to Clause 3.6, Clause 3.7 or Schedule 7 (Milestone Consideration), there is a Claim, Indemnity Claim or a Tax Covenant Claim that is not a Settled Claim or a Settled Tax Covenant Claim (as applicable) (the “Relevant Claim”), the Purchaser may withhold time in effect during such period. Such interest shall accrue from such amount due day to day and be compounded quarterly and shall be payable without prejudice to any other remedy available to the Vendors an amount equal to the Purchaser’s reasonable best estimate of the amount of the Claim or the Tax Covenant Claim Purchaser (as applicablethe case may be) (in respect of such amount being the “Holdback Amount”). When the Relevant Claim is finally settled or otherwise determined (the “Settled Relevant Claim”), where:
(a) the amount of the Settled Relevant Claim is less than the Holdback Amount, the Purchaser shall pay (in the same form of consideration payable for the Milestone Consideration that the Holdback Amount was held back from) the difference between the amount of the Settled Relevant Claim and the Holdback Amount, in the proportions notified to the Purchaser by the Vendors’ Representative; or
(b) the Holdback Amount is less than the amount of the Settled Relevant Claim, then the Purchaser shall set off such difference, being a Warrantor Liability, from the next available amount due to the Vendors pursuant to Clause 3.7 or Schedule 7 (Milestone Consideration)default.
Appears in 1 contract
