Overprovisions. The Seller may require the auditors of any Company Group Member to certify the existence and amount of any overprovision in the Financial Statements dated as of the Effective Time which were taken into account in the calculation of Working Capital for the purposes of Section 3.3 and Purchasers shall procure that the relevant Company Group Member provides any information or assistance reasonably required for this purpose. If the auditors otherwise discover an overprovision in the Financial Statements dated as of the Effective Time which were taken into account in the calculation of Working Capital for the purposes of Section 3.3, Purchaser, Purchasers shall promptly notify the Seller. Any provision in the Financial Statements dated as of the Effective Time that is proved to be an overprovision and which was taken into account in the calculation of Working Capital for the purposes of Section 3.3 shall (a) first be set off against any payment then due from Seller to Purchasers in respect of a successful claim under Section 12.1, (b) to the extent that there is any excess a refund shall be made to Seller of any previous payment made to Purchasers (and not previously refunded) under Section 12.1, such refund to be paid within five Days of the issue of the certificate by the auditors; and (c) to the extent that there is still an excess the remainder of the excess shall be carried forward and set against any future payments which become due from the Seller to the Purchasers under Section 12.1. For the purposes of this Section 12.7, an overprovision exists if (ignoring the effect of any change in Law made or action taken by Purchasers or the relevant Company Group Member after the Effective Time) any liability in respect of Tax (including deferred Tax), or any contingency or provision in respect of Tax, has been overstated in the Financial Statements dated as of the Effective Time. Notwithstanding the above: (a) no provision in respect of a deferred Tax Liability shall be capable of being taken into account as an overprovision pursuant to this Section 12.7; (b) to the extent that an overprovision has given rise to a refund of Tax in respect of which a payment has been made by Purchaser under Section 12.6, it shall not be taken into account as an overprovision pursuant to this Section 12.7; and (c) for the avoidance of doubt, no account shall be taken in this Section 12.7 of a provision which was not taken into account in the calculation of Working Capital for the purposes of Section 3.3.
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Overprovisions. The Seller may require 5.1 If on or before the date eighteen months after Completion, the auditors for the time being of the Company or any Company Group Member to Subsidiary certify (at the existence request and amount expense of the Warrantors) that any overprovision provision for Tax in the Financial Statements dated as of the Effective Time which were taken into account in the calculation of Working Capital Completion Accounts (other than a provision for the purposes of Section 3.3 and Purchasers shall procure that the relevant Company Group Member provides any information or assistance reasonably required for this purpose. If the auditors otherwise discover an overprovision in the Financial Statements dated as of the Effective Time which were taken into account in the calculation of Working Capital for the purposes of Section 3.3, Purchaser, Purchasers shall promptly notify the Seller. Any provision in the Financial Statements dated as of the Effective Time that is deferred tax) has proved to be an overprovision and which was taken into account in the calculation of Working Capital for the purposes of Section 3.3 shall Overprovision, then:
(a) the amount of any Overprovision shall first be set off against any payment then due from Seller to Purchasers in respect the Warrantors under this Tax Covenant or for breach of a successful claim under Section 12.1, Tax Warranty;
(b) to the extent that there is any excess an excess, a refund shall be made to Seller the Warrantors of any previous payment or payments made to Purchasers by the Warrantors under this Tax Covenant (and not previously refundedrefunded under this Tax Covenant) under Section 12.1, up to the amount of such refund to be paid within five Days excess or for breach of the issue of the certificate by the auditorsa Tax Warranty; and and
(c) to the extent that there such excess as referred to in paragraph 5.1(b) is still an excess not exhausted, the remainder of the that excess shall be carried forward and set off against any future payment or payments which become due from the Seller Warrantors under this Tax Covenant or for breach of a Tax Warranty.
5.2 The Buyer shall use all reasonable endeavours, at the request and expense of the Warrantors, to procure the issue to the Purchasers under Section 12.1. For Warrantors by the purposes auditors for the time being of this Section 12.7, the Company or a Subsidiary of a certificate to the Warrantors as to whether an overprovision Overprovision exists and if (ignoring so its amount.
5.3 After the effect of any change in Law made or action taken by Purchasers Company’s or the relevant Subsidiary’s auditors have produced any certificate under this paragraph 5, the Warrantors or the Buyer may, at any time before the expiry of eighteen months from Completion, request the auditors for the time being of the Company Group Member after or the Effective Timerelevant Subsidiary (as the case may be) any liability in respect to review (at the expense of Tax (including deferred Tax), or any contingency or provision in respect of Tax, has been overstated the person making the request) that certificate in the Financial Statements dated as light of the Effective Time. Notwithstanding the above: (a) no provision in respect of a deferred Tax Liability shall be capable of being taken into account as an overprovision pursuant to this Section 12.7; (b) to the extent that an overprovision has given rise to a refund of Tax in respect all relevant circumstances, including any facts of which a payment has been made by Purchaser under Section 12.6they were not or it was not aware, it shall not be taken into account as an overprovision pursuant to this Section 12.7; and (c) for the avoidance of doubt, no account shall be taken in this Section 12.7 of a provision which was were not taken into account account, at the time when such certificate was produced, and to certify whether, in their opinion, the calculation certificate remains correct or whether, in light of Working Capital those circumstances, it should be amended.
5.4 If the auditors make an amendment to the earlier certificate and the amount of the Overprovision is revised, that revised amount shall be substituted for the purposes of Section 3.3previous amount and any adjusting payment that is required shall be made by or to the Warrantors (as the case may be) as soon as reasonably practicable.
Appears in 1 contract
Sources: Share Purchase Agreement (Bright Horizons Family Solutions Inc.)
Overprovisions. The Seller may require If Purchaser becomes aware that:
(i) any provision for Taxes in calculating Final Closing Date Adjusted Working Capital proves to be an overprovision (other than as a result of the auditors use or set-off of a Purchaser’s Relief or any Company Group Member to certify other Relief which has previously been taken into account for the existence and purposes of this Agreement) (an “Overprovision”); or
(ii) the amount of any overprovision in the Financial Statements dated Tax saved by Purchaser, an Acquired Company or any other member of Purchaser’s Tax Group for which Seller is not liable under Section 6.04(i) as a result of the Effective Time use or set-off of a Relief (other than a right to repayment of Tax) arising to an Acquired Company in respect of any Tax accounting period prior to Closing which were was not taken into account in the calculation of calculating Final Closing Date Adjusted Working Capital and is not otherwise a Purchaser’s Relief (a “Saving”), Purchaser shall, as soon as reasonably practicable, give written details thereof to Seller and Seller may upon receiving such notice, or in the absence of such notice, at any time request the auditors for the purposes time being of Section 3.3 and Purchasers shall procure that the relevant Acquired Company Group Member provides any information to certify (at the expense of Seller) the amount of such Overprovision or assistance reasonably required for this purpose. If Saving, and the auditors otherwise discover an overprovision in amount so certified (the Financial Statements dated “Certified Amount”) shall be dealt with as of follows: (x) the Effective Time which were taken into account in the calculation of Working Capital for the purposes of Section 3.3, Purchaser, Purchasers Certified Amount shall promptly notify the Seller. Any provision in the Financial Statements dated as of the Effective Time that is proved to be an overprovision and which was taken into account in the calculation of Working Capital for the purposes of Section 3.3 shall (a) first be set off against any payment then due from Seller to Purchasers in respect of a successful claim under Section 12.1, 6.04; (by) to the extent that there is the Certified Amount exceeds the amount of any excess payment then due from Seller under Section 6.04, a refund shall be made to Seller of any previous payment made to Purchasers (payments paid by Seller under Section 6.04 and not previously refunded) refunded under this Section 12.1, such refund to be paid within five Days of the issue of the certificate by the auditors6.04(l); and (cz) to the extent that there is still an excess the remainder of the excess any remaining amount shall be carried forward and set off against any future payments which may become due from the Seller to the Purchasers under Section 12.1. For the purposes of this Section 12.7, an overprovision exists if (ignoring the effect of any change in Law made or action taken by Purchasers or the relevant Company Group Member after the Effective Time) any liability in respect of Tax (including deferred Tax), or any contingency or provision in respect of Tax, has been overstated in the Financial Statements dated as of the Effective Time. Notwithstanding the above: (a) no provision in respect of a deferred Tax Liability shall be capable of being taken into account as an overprovision pursuant to this Section 12.7; (b) to the extent that an overprovision has given rise to a refund of Tax in respect of which a payment has been made by Purchaser under Section 12.6, it shall not be taken into account as an overprovision pursuant to this Section 12.7; and (c) for the avoidance of doubt, no account shall be taken in this Section 12.7 of a provision which was not taken into account in the calculation of Working Capital for the purposes of Section 3.36.04.
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Overprovisions. 9.1 The Seller Covenantor may require at any time on or before 31 December 2004 the auditors for the time being of any the Company Group Member to certify (at the Covenator's expense) the existence and amount of any overprovision in and the Financial Statements dated as of UK Buyer and the Effective Time which were taken into account in the calculation of Working Capital for the purposes of Section 3.3 and Purchasers US Buyer shall provide, or procure that the relevant Company Group Member provides provides, any information or assistance reasonably required for this purpose. If the purpose of production by the auditors otherwise discover an overprovision in the Financial Statements dated as of the Effective Time which were taken into account in the calculation of Working Capital for the purposes of Section 3.3, Purchaser, Purchasers shall promptly notify the Seller. Any a certificate to that effect.
9.2 If any liability contingency or provision in the Financial Statements dated as of the Effective Time that is Accounts has proved to be an overprovision and which was taken into account then the amount of such overprovision shall be dealt with in accordance with clause 9.3.
9.3 Where it is provided under clause 9.2 that any amount is to be dealt with in accordance with this clause 9.3:
(A) the calculation amount of Working Capital for the purposes of Section 3.3 overprovision shall (a) first be set off against any payment then due from Seller to Purchasers the Covenantor under this deed in respect of a successful claim under Section 12.1the Company, the Accounts of which have given rise to an overprovision (bthe "RELEVANT COMPANY")
(B) to the extent that there is any excess an excess, a refund shall be made to Seller the Covenantor of any previous payment or payments made to Purchasers by the Covenantor under this deed in respect of the Relevant Company (and not previously refunded) under Section 12.1, such refund up to be paid within five Days the amount of the issue of the certificate by the auditorsexcess; and and
(cC) to the extent that there the excess referred to in clause 9.3(B) is still an excess not exhausted under that clause, the remainder of the that excess shall be carried forward and set against any future payment or payments which become due from the Seller Covenantor to the Purchasers US Buyer under Section 12.1. this deed in respect of the Relevant Company.
9.4 For the purposes of this Section 12.7, clause an overprovision exists if if:
(ignoring the effect of any change in Law made or action taken by Purchasers or the relevant Company Group Member after the Effective TimeA) any liability in respect of Tax (including any liability in respect of deferred Tax)) has been overstated in the Accounts, or such liability has been discharged or satisfied below the amount attributed thereto in the Accounts, or such liability has been discharged or satisfied below the amount attributed thereto in the Accounts; or
(B) any contingency or provision in respect of Tax, has been overstated Tax in the Financial Statements dated as of the Effective Time. Notwithstanding the above: (a) no provision in respect of a deferred Tax Liability shall Accounts proves to be capable of being taken into account as an overprovision pursuant to this Section 12.7; (b) to the extent that an overprovision has given rise to a refund of Tax in respect of which a payment has been made by Purchaser under Section 12.6, it shall not be taken into account as an overprovision pursuant to this Section 12.7; and (c) for the avoidance of doubt, no account shall be taken in this Section 12.7 of a provision which was not taken into account in the calculation of Working Capital for the purposes of Section 3.3overstated.
Appears in 1 contract
Sources: Tax Deed (Armor Holdings Inc)
Overprovisions. The Seller may require If any provision for taxation (other than a provision for deferred tax but including, for the auditors avoidance of doubt, any Company Group Member to certify provision whether specific or general in respect of the existence and amount of any overprovision Reserve Matters) in the Financial Statements dated as of the Effective Time which were taken into account in the calculation of Working Capital for the purposes of Section 3.3 and Purchasers shall procure that the relevant Company Group Member provides any information or assistance reasonably required for this purpose. If the auditors otherwise discover an overprovision in the Financial Statements dated as of the Effective Time which were taken into account in the calculation of Working Capital for the purposes of Section 3.3, Purchaser, Purchasers shall promptly notify the Seller. Any provision in the Financial Statements dated as of the Effective Time that is Accounts has proved to be an overprovision and which was taken into account over-provision (except to the extent that such over-provision result from the utilisation of an Accounts relief or post-Accounts Date relief) then an amount equal to such over-provision shall be dealt with in accordance with sub-paragraph 10.2 below. Where, pursuant to sub- paragraph 10.1 any amount (the calculation of Working Capital for "Relevant Amount") is to be dealt with in accordance with this sub-paragraph 10.2; the purposes of Section 3.3 Relevant Amount shall (a) be first be set off against any payment then due from Seller to Purchasers in respect of a successful claim the Covenantor under Section 12.1, (b) this Schedule; to the extent that there is any excess an excess, a refund shall be made to Seller the Covenantor of any previous payment or payments made to Purchasers (by them under this Schedule and not previously refunded) refunded under Section 12.1this sub-paragraph, up to the amount of such refund to be paid within five Days of the issue of the certificate by the auditorsexcess; and (c) to the extent that there the excess referred to in sub- paragraph 10.2.2 is still an excess not exhausted under that sub-paragraph, the remainder of the that excess shall be carried forward and set off against any future payment or payments which shall become due from the Seller to the Purchasers Covenantor under Section 12.1this Schedule. For the purposes of this Section 12.7paragraph 10.2, 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 overprovision exists if 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 (ignoring but excluding any liability to taxation to the effect of any change in Law made or action taken by Purchasers or the relevant Company Group Member after the Effective Time) any extent that it is a taxation liability in respect of Tax (including deferred Taxwhich 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 by it pursuant to paragraph 11.1 on or any contingency 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 provision a charge or penalty in respect of Taxthat taxation or, has been overstated in if later, not more than five Business days following the Financial Statements dated as date on which the Covenantor notifies the Purchaser of its liability to make such payment. Paragraph 4 (grossing up) shall apply mutatis mutandis to any amount payable by the Effective TimePurchaser to the Covenantor pursuant to paragraph 11.1. Notwithstanding The Purchaser shall cease to have any liability under this paragraph 11 on the above: (a) no provision sixth anniversary of Completion except in respect of a deferred Tax Liability shall be capable claim of being taken into account as an overprovision pursuant to this Section 12.7; (b) which the Covenantor gives notice to the extent that an overprovision has given rise to a refund of Tax in respect of which a payment has been made by Purchaser under Section 12.6, it shall not be taken into account as an overprovision pursuant to this Section 12.7; and (c) for the avoidance of doubt, no account shall be taken in this Section 12.7 of a provision which was not taken into account in the calculation of Working Capital for the purposes of Section 3.3before such date.
Appears in 1 contract
Overprovisions. The Seller may require the auditors of any Company Group Member to certify the existence and amount of any overprovision in the Financial Statements dated as of the Effective Time which were taken into account in the calculation of Working Capital for the purposes of Section 3.3 and Purchasers shall procure that the relevant Company Group Member provides any information or assistance reasonably required for this purpose. 5.1 If the auditors otherwise discover an overprovision in the Financial Statements dated as of the Effective Time which were taken into account in the calculation of Working Capital Purchaser or a Group Company becomes aware that any contingency or provision for the purposes of Section 3.3, Purchaser, Purchasers shall promptly notify the Seller. Any provision in the Financial Statements dated as of the Effective Time Tax that is proved to be an overprovision and which was taken into account in computing the calculation amount of Working Capital the Indebtedness is an overprovision (except to the extent that such overprovision relates to the utilisation of an Accounts Relief or a Purchaser's Relief) applying the accounting policies, principles and practices adopted in relation to computing the amount of Indebtedness (an "Overprovision"), the Purchaser shall promptly notify the Seller and the Seller may upon receiving such notice, or in the absence of such notice, at any time request the auditors for the purposes time being of Section 3.3 the Group Company to certify the amount of such Overprovision, then after the Overprovision is realised:
5.1.1 the amount of such Overprovision shall (a) first be set off against any payment then due from Liability of the Seller to Purchasers in respect of a successful claim under Section 12.1, (b) any Tax Claim then outstanding;
5.1.2 to the extent that there is any excess excess, a refund shall be made to the Seller of any previous payment or payments made to Purchasers (and not previously refunded) under Section 12.1, such refund to be paid within five Days of the issue of the certificate by the auditorsSeller in respect of any historic Tax Claim; and (c) and
5.1.3 to the extent that there any excess referred to in paragraph 5.1.2 is still an excess not exhausted, the remainder of the such excess shall be carried forward and set against any future payments which become due from to be made by the Seller to the Purchasers under Section 12.1. For the purposes of this Section 12.7, an overprovision exists if (ignoring the effect of any change in Law made or action taken by Purchasers or the relevant Company Group Member after the Effective Time) any liability in respect of any future Tax Claim.
5.2 If any dispute arises under this paragraph 5 (including deferred Tax), Overprovisions) as to whether there is or any contingency or provision in respect of Tax, has been overstated in any Overprovision, the Financial Statements dated as provisions of the Effective Time. Notwithstanding the above: (a) no provision in respect of a deferred Tax Liability paragraph 4.2 and 4.3 shall be capable of being taken into account as an overprovision pursuant to this Section 12.7; (b) to the extent that an overprovision has given rise to a refund of Tax in respect of which a payment has been made by Purchaser under Section 12.6, it shall not be taken into account as an overprovision pursuant to this Section 12.7; and (c) for mutatis mutandis apply.
5.3 For the avoidance of doubt, no account shall be taken in this Section 12.7 the Seller acknowledges that the aggregate value of a provision which was not taken into account all deferred Tax assets included in the calculation computation of Working Capital the amount of Indebtedness will be limited to EUR 1,500,000 (one million five hundred thousand Euros) and in the event that the actual value of such deferred Tax assets is greater than the EUR 1,500,000 (one million five hundred thousand Euros), the excess over EUR 1,500,000 (one million five hundred thousand Euros) will not be deemed to reduce any contingency or provision causing an Overprovision for the purposes purpose of Section 3.3this paragraph 5.
5.4 To the extent that any Overprovision is a Refund, the provisions of paragraph 4 shall apply to such Overprovision.
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