DATED February 2000
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▇ ▇▇▇▇▇▇▇ AND OTHERS (1)
AND
GREAT PLAINS SOFTWARE, INC. (2)
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TAX DEED
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Veritas House
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TAX DEED
DATE
PARTIES
(1) THE PERSONS described as Warrantors in the Agreement (the "COVENANTOR"
or "COVENANTORS"); and
(2) GREAT PLAINS SOFTWARE , INC. whose principal place of business is at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the
"PURCHASER").
RECITAL
Pursuant to an agreement of today's date the Purchaser has today completed the
purchase of the whole of the issued share capital of PWA GROUP LIMITED in
reliance, among other things, on the undertaking of the Covenantor to enter into
this deed and the undertakings and covenants by the Covenantor contained in it.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
In this deed the following definitions apply:
"ACCOUNTS" means the each Group Company's audited
annual accounts (as defined in section 262 CA 1985)
and the Company's group accounts, prepared in
compliance with section 227 CA 1985, for the
financial year ended on the Accounts Date, including
the notes to those accounts and the associated
directors' and auditors' reports and any profit and
loss account omitted in reliance on section 230(3) CA
1985;
"ACCOUNTS DATE" 30th September 1999;
"ACCOUNTING PERIOD" an accounting period as defined in section 12 of the
Taxes Act;
"AGREEMENT" the agreement of today's date between 3i, the
Covenantor and the Purchaser for the sale and
purchase of the Shares;
"ASSESSMENT" any claim, assessment, notice, demand, letter,
counterclaim or other document issued or made, or
action taken, by or on behalf of any Tax Authority by
virtue of which the Company or any Subsidiary has, or
is alleged to have, a Liability to Tax or from which
it appears that the Company or any Subsidiary has, or
will or may have, a Liability to Tax or from which it
is sought to
impose upon the Company or any Subsidiary a Liability
to Tax;
"BUSINESS DAY" a day other than a Saturday, a Sunday or a day on
which banks are authorised to close in London;
"COMPANY" has the meaning given in the Agreement;
"CLAIM" a claim by the Purchaser against the Covenantor
pursuant to CLAUSE 3;
"COMPLETION" completion of the sale and purchase of the Shares
pursuant to the Agreement;
"DEEMED TAX LIABILITY" a deemed Tax liability as defined in CLAUSE 2.3;
"EVENT" any transaction (including entering into the
Agreement or the purchase or sale of an asset), act
(including Completion, the migration of a company or
the inclusion of a company within a group of
companies for any purpose), omission, receipt,
distribution or failure to make sufficient
distributions to avoid an apportionment or deemed
distribution of income or any combination of two or
more occurrences;
"GROUP" the Company and the Subsidiaries;
"GROUP COMPANY" any company within the Group;
"LIABILITY TO TAX" a liability to pay Tax and any amounts treated as
being a liability to Tax pursuant to CLAUSE 2.2 AND
CLAUSE 2.3;
"RELIEF" any relief, loss, allowance, exemption, set-off,
deduction or credit in respect of any Tax or any
set-off or deduction in computing income, profits or
gains for the purposes of any Tax;
"SHARES" all of the issued ordinary shares of 10 p each in the
share capital of the Company;
"SUBSIDIARIES" the companies details of which are set out in
Schedule 3 of the Agreement;
"TAX" all taxes, duties, levies, imposts, charges and
withholdings of any nature whatsoever, whether
created or imposed in the United Kingdom or elsewhere
and at whatever time created or imposed which are
collected and administered by any Tax Authority
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including, without limitation,
(a) within the United Kingdom, income tax,
corporation tax, advance corporation tax,
capital gains tax, development land tax,
value added tax, customs' duties (including
import duties, excise duties), capital duty,
insurance premium tax, the charge under
section 419 of the Taxes Act, stamp duty,
stamp duty reserve tax, capital transfer
tax, inheritance tax, national insurance
contributions and any other forms of taxes,
duties, levies, imposts, charges or
withholdings similar to or supplementing or
replaced by or replacing them or any of
them; and
(b) outside the United Kingdom, taxes on gross
or net income, taxes on profits or gains and
taxes on receipts, sales, use, occupation,
franchise, value added and personal
property,
in all cases together with all incidental or supplemental penalties,
charges, interest, fines and default surcharges and costs;
"TAX AUTHORITY" any taxing or other authority (whether within or
outside the United Kingdom) competent to impose,
administer or collect any Tax;
"TAXES ACT" the Income and Corporation Taxes Act 1988;
2. INTERPRETATION
2.1 In this deed:
2.1.1. the contents and clause headings are included for convenience only and
do not affect its construction;
2.1.2 words denoting the singular include the plural and vice versa;
2.1.3 words denoting one gender include each and all genders
2.1.4 a reference to the loss of a Relief or of a right to repayment of Tax
includes a reference to any loss, withdrawal, nullifying or
cancellation of a Relief or of a right to repayment of Tax; and
2.1.5 a reference to the utilisation of a Relief or of a right to repayment
of Tax includes a
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reference to the utilisation or setting off of a Relief, or of a right
to repayment of Tax
2.1.6 a reference to income, profits or gains accrued, or being earned or
received, on or before a particular date or in respect of a particular
period shall include any profits deemed for Tax purposes to have
accrued, or to have been earned or received, on or before that date or
in respect of that period; and
2.1.7 a reference to income, profits or gains shall include receipts, value
and any other criteria used in establishing the incidence of any Tax or
measure in establishing the amount of any Liability to Tax.
2.2 Subject to CLAUSE 2.3 below there shall be treated as a Liability to
Tax:
2.2.1 any amount of Relief arising prior to Completion where and to the
extent that such Relief has been taken into account in computing, or in
obviating the need for, any provision for Tax or deferred tax in the
Accounts, or shown as an asset in the Accounts, which is not available
to any Group Company;
2.2.2 all or any part of a right to repayment of Tax where and to the extent
that such right to repayment of Tax has been treated as an asset of any
Group Company in the Accounts or taken into account in computing, or in
obviating the need for, any provision for Tax or deferred tax in the
Accounts which is not available to any Group Company;
2.2.3 all or any part of a right to repayment of Tax which arises as a result
of an Event occurring after Completion which has been set against any
liability to make an actual payment of Tax in circumstances where the
Purchaser would (but for such utilisation or set-off) have been
entitled to make a Claim ;
2.2.4 the amount of any Relief which arises as a result of an Event occurring
after Completion which is used to relieve income, profits or gains in
circumstances where (but for such utilisation) the Purchaser would have
been entitled to make a Claim ;
2.3 In any case falling within CLAUSE 2.2 the amount that is to be treated
for the purposes of this deed as a Liability to Tax of a Group Company
("DEEMED TAX LIABILITY") shall be determined as follows:
2.3.1 in a case which falls within CLAUSE 2.2.1 where the relevant Relief
consisted of a deduction from or offset against Tax, the Deemed Tax
Liability shall be the amount of that deduction or offset;
2.3.2 in a case which falls within CLAUSE 2.2.1 or CLAUSE 2.2.4 where the
relevant Relief consisted of a deduction from or offset against income,
profits or gains, the Deemed Tax Liability shall be:
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(a) if the Relief is not available, the amount of Tax which would, on the
basis of the rates of tax current at Completion, have been saved had
such Relief been available (assuming sufficient income, profits or
gains to be able fully to utilise the Relief; or
(b) if the Relief was the subject of such a utilisation, the amount of tax
which has been saved in consequence of the utilisation; and
2.3.3 in a case falling within CLAUSE 2.2.2 the Deemed Tax Liability shall be
the amount of such repayment of Tax or part of it;
2.3.4 In a case falling within CLAUSE 2.2.3 the Deemed Tax Liability shall be
the amount of tax which has been saved in consequence of the
utilisation.
2.4 In this deed, reference to an Event occurring on or before Completion
shall include the combined result of any two or more Events the first
of which shall have occurred before Completion outside the ordinary
course of business of a Group Company and the second or subsequent one
of which occurs after Completion in the ordinary course of business of
a Group Company, as that business is carried on immediately before
Completion.
2.5 Words and phrases (if any) which are defined in the Agreement and which
are not expressly defined in this deed shall have the same meaning in
and shall apply to this deed and shall be deemed to be incorporated in
this deed.
2.6 Words and phrases (if any) neither defined in this deed nor in the
Agreement but which are defined or used in any legislation relating to
Tax and which are relevant in the context shall have the same
respective meanings in this deed as they have in such legislation
(unless the consent otherwise requires).
2.7 In this deed, unless otherwise specified or the context otherwise
requires, a reference to:
2.7.1 a person is to be construed to include a reference to any individual,
firm, partnership, company, corporation, association, organisation or
trust (in each case whether or not having a separate legal
personality);
2.7.2 a document, instrument, deed or agreement (including, without
limitation, this deed) is a reference to any such document, instrument,
deed or agreement as modified, amended, varied, supplemented or novated
from time to time;
2.7.3 a clause or schedule is a reference to a clause of or schedule to this
deed and a reference to this deed includes its schedule;
2.7.4 a statutory provision is to be construed as a reference to such
provision as amended, consolidated or re-enacted from time to time and
to any orders, regulations, instruments or other subordinate
legislation (and relevant codes of practice) made under the relevant
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statute except to the extent that any amendment, consolidation, or
re-enactment coming into force after the date of this deed would
increase or extend the liability of any party to this deed to any other
party.
2.8 In this deed, unless otherwise specified, the rule of construction
known as the `ejusdem generis rule' shall not apply so that words or
phrases of a generally descriptive nature shall not be given a
restrictive meaning by reason only of the fact that they are preceded
by more specific words or phrases and words of a generally descriptive
nature shall not be given a restrictive meaning by reason only of the
fact that they are followed by specific examples.
3. COVENANT
3.1 Subject to the following clauses of this deed, the Covenantors jointly
and severally covenant with the Purchaser as follows:
3.1.1 to pay to the Purchaser an amount equal to any Liability to Tax of a
Group Company which arises as a consequence of or by reference to:
(a) any Event occurring on or before Completion;
(b) any income, profits or gains which accrued, or which were earned or
received, on or before Completion or in respect of a period ending on
or before Completion;
(c) any dividend or other distribution made by a Group Company before
Completion;
in each case whether or not such Liability to Tax is also chargeable
against or attributable to any other person; and
3.1.2 to pay to the Purchaser from time to time amounts equal to any costs
and expenses properly and reasonably incurred by the Purchaser or a
Group Company in connection with any Liability to Tax as is referred to
in CLAUSE 3.1.1 or any successful Claim or in taking or defending any
successful action pursuant to this deed.
3.2 Each of the covenants contained in CLAUSES 3.1.1(a), (b), (c) shall be
construed as giving rise to separate and independent obligations and
shall not be restricted by the other save that (for the avoidance of
doubt) any payment by the Covenantor in respect of a liability under
one covenant shall discharge any liability under the other to the
extent of such payment and in so far as it arises from the same subject
matter.
4. LIMITATIONS
4.1 EXCLUSIONS
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The Covenantor shall have no liability in respect of any Claim under
CLAUSE 3.1.1 to the extent that:
4.1.1 the Accounts make provision or reserve in respect of the Liability to
Tax (not being a provision or reserve for deferred tax); or
4.1.2 the Liability to Tax arises from the passing of, or change in, after
the date of the Agreement, any law, regulation, rule or published
practice of any government, governmental department, agency, regulatory
body or Tax Authority or any judgment delivered after the date of the
Agreement with retrospective effect, or any increase in the rates of
Tax or any imposition of Tax not in effect at the date of the Agreement
or any retrospective withdrawal after the date of the Agreement of any
practice or extra-statutory concession previously published by any Tax
Authority; or
4.1.3 the Liability to Tax arises from a change after Completion in
accounting policy or practice (other than a change to secure compliance
with generally accepted accounting practice within the United Kingdom
("UK GAAP") where previously the accounting practice was not in
accordance with UK GAAP) or any change to the length of the Accounting
Period or to the accounting reference date of a Group Company; or
4.1.4 the Liability to Tax would not have arisen but for a voluntary act or
omission of the Purchaser or any Group Company after Completion
otherwise in the ordinary course of business of the relevant Group
Company as carried out at Completion or pursuant to a legally binding
obligation of the relevant Group Company entered into prior to
Completion or with the written approval or written request of the
Covenantor; or
4.1.5 the Liability to Tax would not have arisen or would have been reduced
or eliminated, but for a failure on the part of a Group Company to make
any claim, election, surrender or disclaimer or give any notice or
consent after Completion, the making, giving or doing of which was
taken into account in preparing the Accounts and full details of which
are set out in the Disclosure Letter or notified to the Purchaser or
the relevant Group Company no later than 20 Business Days prior to the
last date on which any such claim, election, surrender, disclosure,
notice or consent can validly be made; or
4.1.6 the Liability to Tax would not have arisen but for a disclaimer of or
election to reduce capital allowances or any other claim, election,
surrender or disclaimer where such claim, election, surrender or
disclaimer is made after Completion and was not assumed to have been
made given or done in the Accounts; or
4.1.7 the liability is to fines, interest or penalties in respect of any Tax
which arises or which is increased as a result of the failure of the
Purchaser to comply with its obligations under this Deed; or
4.1.8 there is available any Relief, other than a Relief arising after
Completion or a Relief
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referred to in CLAUSES 2.2.1 AND 2.2.2, which is offset against the
Liability to Tax in question (and so that the Purchaser and the
relevant Group Company shall take all reasonable steps to claim the
benefit of any such Relief); or
4.1.9 the Liability to Tax arises from the cessation of trade or the winding
up of any Group Company or a major change in the nature of conduct of
the trade of any Group Company which, in any such case, occurs after
Completion; or
4.1.10 the Company or the Purchaser has already recovered from any other
person any sum in respect of the Liability to Tax in question; or
4.1.11 the Liability to Tax has prior to Completion been discharged or paid;
or
4.1.12 the Liability to Tax is a liability to corporation tax on income which
arises in the ordinary course of business of any Group Company after
the Accounts Date.
4.2 MAXIMUM LIABILITY
4.2.1 The aggregate liability of the Covenantor for all Claims including
claims made under the Agreement shall not exceed -[ ].
4.2.2 The Purchaser agrees with the Covenantor that the Covenantor shall not
be liable under this deed if and to the extent that the Covenantor has
fully satisfied a liability for a breach of warranty or undertaking or
a misrepresentation which arises in relation to the same Liability to
Tax.
4.3 TIME LIMITS FOR MAKING CLAIMS
No Claim shall be made unless notice of such Claim is given to the
Covenantor by the Purchaser within seven years from the date of this
deed.
5. RECOVERY FROM OTHER PERSONS
5.1 Where the Purchaser or any Group Company is or becomes entitled to
recover from some other person not being the Purchaser or any Group
Company any amount which is referable to a Liability to Tax which has
resulted in a payment being made by the Covenantors under this deed,
the Purchaser shall or procure that the relevant Group Company shall:
5.1.1 notify the Covenantors of its entitlement; and
5.1.2 if so required by the Covenantors and at the cost and expense of the
Covenantors, take or procure that the relevant Group Company takes all
reasonable steps to enforce that recovery.
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5.2 If the Purchaser or any Group Company recovers any amount referred to
in sub-clause 5.1 the Purchaser shall account to the Covenantors for
the lesser of :
5.2.1 any amount recovered (including any related interest or related
repayment supplement) less any tax thereon; and
5.2.2 the amount paid by the Covenantors under this deed in respect of the
Liability to Tax in question.
6. RELIEFS & CORRESPONDING SAVINGS
Where:
6.1 the Covenantors have made a payment under this deed in respect of a
Liability to Tax which has arisen in consequence of the disallowance
for the purpose of Tax of any expenditure, provision or reserve
recognised in the Accounts and which was treated as deductible or
allowable in those Accounts; and
6.2 in any accounting period ending on or after the Accounts Date, a Group
Company becomes entitled to a Relief in respect of such expenditure,
provision or reserve as is mentioned in sub clause 6.1 hereof or the
items or matters to which such expenditure relates
then the Purchaser shall make a payment to the Covenantors of an amount equal to
the amount by which the Company's liability to Tax is reduced as a result of the
utilisation of the Relief referred to in sub-paragraph 6.2 hereof.
7. CONDUCT OF CLAIMS
7.1 If the Purchaser becomes aware of any Assessment which does or may give
rise to a Claim the Purchaser shall give notice in writing of such
Assessment as soon as reasonably practicable to the Covenantor (and in
any event, where the Assessment requires a response within a time limit
to avoid the imposition of any penalty, fine or interest, or to
preserve a right of appeal, no later than 10 days prior to the expiry
of such time limit) The giving of such notice shall not be a condition
precedent to the liability of the Covenantors under this deed.
7.2 If the Covenantors shall indemnify the relevant Group Company and the
Purchaser to their reasonable satisfaction against any additional Tax,
losses, fines, penalties, interest, charges, costs and expenses, the
Purchaser shall and shall procure that the Company shall, subject to
CLAUSE 7.3, take such lawful and reasonable action as the Covenantor
shall reasonably require to avoid, dispute, resist, appeal, compromise
or contest such Assessment (the "COVENANTOR'S ACTION").
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7.3 Neither the Purchaser nor any Group Company shall be obliged to appeal
against any Assessment if, having given the Covenantor notice of the
receipt of that Assessment, it has not within 10 Business Days received
instructions in writing from the Covenantor in accordance with CLAUSE
5.2 to make that appeal.
7.4 Neither the Purchaser nor any Group Company shall be obliged to take
any action or further action under this clause in respect of any
Assessment if the Purchaser has reasonable grounds to believe that
either the Covenantor or the relevant Group Company prior to its being
in the ownership of the Purchaser, have committed acts or omissions
which may constitute fraudulent or negligent conduct.
7.5 Neither the Purchaser nor any Group Company shall be required to take
any action which in its reasonable opinion is likely to result in any
Group Company incurring a Liability to Tax or an increased Liability to
Tax or it is likely to affect the future liability to Tax of any Group
Company.
7.6 Neither the Purchaser nor any Group Company shall be obliged to take
any action under this CLAUSE 7 which involves continuing the
Covenantor's Action or contesting any Assessment before any court or
other appellate body (excluding the Tax Authority demanding the Tax in
question) unless the Covenantor furnishes the Purchaser with the
written opinion of leading Tax counsel to the effect that an appeal
against the Assessment in question will, on the balance of
probabilities, be won.
7.7 The Purchaser and any Group Company shall be at liberty without
reference to the Covenantor to admit, compromise, settle, discharge or
otherwise deal with any Assessment after whichever is the earliest of:
7.7.1 the Purchaser or the relevant Group Company being notified by the
Covenantor in writing that it considers the Assessment should no longer
be resisted;
7.7.2 the expiry of a period of 7 days following the service of a written
notice by the Purchaser or the relevant Group Company on the
Covenantor, requiring the Covenantor to clarify or explain the terms of
any request made under CLAUSE 5.2 during which period no such
clarification or explanation has been received by the Purchaser or the
relevant Group Company; and
7.7.3 if appropriate, the expiration of any period prescribed by applicable
legislation for the making of an appeal against either the Assessment
or the decision of any court or tribunal in respect of any such
Assessment, as the case may be.
7.8 The Covenantor shall be bound to accept for the purposes of this deed
any admission, compromise, settlement or discharge of any Assessment
and the outcome of any proceedings relating to it made or arrived at in
accordance with the provisions of this
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CLAUSE 7.
8. DUE DATE FOR PAYMENT
8.1 Where the Covenantor become liable to make any payment pursuant to
CLAUSE 3, the due date for the making of that payment shall be:
8.1.1 in a case that involves an actual payment of Tax by a Group Company,
the date that is 3 Business Days immediately before the last date on
which the relevant Group Company would have had to have paid to the
relevant Tax Authority the Tax that has given rise to the Covenantor's
liability under this deed in order to avoid incurring a liability to
interest or a charge or penalty in respect of that Liability to Tax; or
8.1.2 in a case falling within CLAUSE 2.2, the later of the date falling 5
Business Days after the date on which the Covenantor has been notified
by the Purchaser in writing that there is a liability for a
determinable amount (in accordance with CLAUSE 2.3) such notification
to be accompanied by a certificate of the auditors for the time being
of the Group certifying the amount due and (i) in a case falling within
CLAUSE 2.2.2 the date on which any repayment of Tax would have been due
to the relevant Group Company; or (ii) in a case falling within CLAUSE
2.2.3 or CLAUSE 2.2.4, the date on which the relevant Group Company
would have been required to make a payment of Tax but for the
utilisation of a Relief .
8.1.3 in any other case, the date which is 5 Business Days after the date on
which the Purchaser has notified the Covenantors in writing, such
notification to be accompanied by reasonable and appropriate evidence
that an amount has fallen due .
8.2 If any payment required to be made by the Covenantor under this deed is
not made by the due date then except to the extent that the
Covenantor's liability under CLAUSE 3 compensates the Company for the
late payment by virtue of its extending to interest and penalties, that
payment shall carry interest from (and including) that due date until
(but excluding) the date when the payment is actually made at the rate
of 4 per cent above the base rate from time to time of Lloyds Bank PLC.
9. DEDUCTIONS FROM PAYMENTS
9.1 All sums payable by the Covenantor to the Purchaser under this deed
shall be paid free and clear of all deductions or withholdings
whatsoever, save only as may be required by law.
9.2 If any deduction or withholding in respect of Tax or otherwise is
required by law to be made from any of the sums payable as mentioned in
CLAUSE 9.1, the Covenantor shall be obliged to pay to the Purchaser
such greater sum as will, after such deduction or withholding as is
required to be made has been made, leave the Purchaser with the same
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amount as it would have been entitled to receive in the absence of any
such requirement to make a deduction or withholding provided that this
CLAUSE 9.2 shall not apply to any interest paid pursuant to CLAUSE 8.2.
9.3 If any sum (the "FIRST SUM") payable by the Covenantor to the Purchaser
under this deed shall be subject to Tax in the hands of the Purchaser
or would have been taxable in the hands of the Purchaser assuming that
the Purchaser had sufficient taxable profits to use all Reliefs
available to it in the Accounting Period in which it receives a sum
under this deed then the Covenantor shall pay to the Purchaser (as
often as shall be necessary) such additional sum or sums as will after
such Tax (and any Tax on such additional sum or sums) leave the
Purchaser with such amount as the Purchaser would have been left with
had the first sum not been subject to Tax in the hands of the Purchaser
provided that this CLAUSE 9.3 shall not apply to any interest paid
pursuant to CLAUSE 8.2 or to any payment made to a person other than
the Purchaser.
9.4 If any additional amount is paid pursuant to CLAUSES 9.2 AND 9.3 above
and the Purchaser receives a tax credit, repayment or other benefit by
reason of any deduction or withholding in respect of which the
Covenantors have paid an additional amount, the Purchaser shall pay to
the Covenantors forthwith the amount of such tax credit, repayment or
other benefit.
9.5 All sums payable by the Covenantor under this deed are to be paid in
the currency or currencies appropriate to the Assessment as a result of
which the liability to make a payment of Tax has arisen.
9.6 The Purchaser may direct the Covenantor to pay to any Group Company any
sums due to the Purchaser under this deed and such payment shall be
treated as a payment to the Purchaser and not a payment to the relevant
Group Company.
10. PURCHASER'S UNDERTAKING
10.1 The Purchaser hereby covenants to pay to the Covenantors on demand:
10.1.1 an amount equal to any liability for Tax of any Group Company in
respect of which an assessment is made on the Covenantors by virtue of
sections 767A, 767AA, 767B and 769 ICTA 1988 (or any similar provision
in the UK or elsewhere imposing secondary liabilities for Tax on the
Covenantors for Tax primarily chargeable on a Group Company) and for
which the Covenantors are not liable to make a payment to the Purchaser
pursuant to CLAUSE 3 and where the section 767A assessment would not
have been made but for the failure by the Group Company to discharge
that liability for Tax; and
10.1.2 where the Covenantors have made a payment in respect of Tax to the
Purchaser under CLAUSE 3 and a Group Company fails to discharge such
Tax, an amount equal to any
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liability to Taxation which subsequently becomes payable by the
Covenantors under sections 767A, 767AA, 767B and 769 ICTA 1988 (or any
similar provision in the UK or elsewhere imposing secondary liabilities
for Tax on the Covenantors for Tax primarily chargeable on a Group
Company) in respect of the same subject matter.
10.2 Where sub-clause 10.1 applies and the Covenantors discharge the
assessment concerned, they shall have no further liability under CLAUSE
3 in respect of the liability for Tax in question.
11. MITIGATION
Subject to the express provisions of this deed, neither the Purchaser
nor any Group Company shall be under any obligation or duty to mitigate
any loss or take any other action to reduce the Covenantor's liability
under this deed.
12. OTHER PROVISIONS
12.1 JOINT AND SEVERAL LIABILITY
All representations, agreements, covenants, indemnities and obligations
made or given or entered into by the Covenantors in this deed are made
or given or entered into jointly and severally by each Covenantor.
The liability of any Covenantor may, in whole or in part, be released,
compounded or compromised or other relaxation or indulgence may be
given by the Purchaser (in its absolute discretion) without in any way
prejudicing or affecting the Purchaser's rights against any other
Covenantor.
12.2 WAIVERS AND REMEDIES
12.2.1 No failure or delay to exercise, or other relaxation or indulgence
granted in relation to, any power, right or remedy under this deed of
either party to it shall operate as a waiver of it or impair or
prejudice it nor shall any single or partial exercise or waiver of any
power, right or remedy preclude its further exercise or the exercise of
any other power, right or remedy.
12.2.2 All rights of the parties contained in this deed are in addition to all
rights vested or to be vested in it pursuant to common law or statute.
12.3 SUCCESSORS
This deed shall be binding on and enure to the benefit of each party
and its lawful successors and assigns.
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12.4 ASSIGNMENT
The provisions of CLAUSE 18 of the Agreement shall apply mutatis
mutandis to this Deed as if references therein to the assignment of the
benefit of any rights under the Agreement were a reference to the
benefit of any rights under this Deed.
12.5 COUNTERPARTS AND DELIVERY
12.5.1 This deed may be executed in 2 counterparts, each of which shall be
deemed an original and which shall together constitute one and the same
document.
12.5.2 If this deed is executed in more than one counterpart, it shall be
deemed to be delivered and shall have effect when:
(a) each party has signed a counterpart of this deed;
(b) each party has handed over such counterpart to the other party to this
deed; and
(c) each of the counterparts has been dated.
12.5.3 If this deed is not executed in more than one counterpart, it shall be
deemed to be delivered and has effect when each party has signed it and
it has been dated.
12.6 Warranty Claims
Where any facts or circumstances could give rise both to a claim under
this deed and a claim under the warranties contained in the Agreement,
the Covenantors shall not be liable in respect of both claims.
13. NOTICES
13.1 The provisions of CLAUSE 12 of the Agreement shall apply mutatis
mutandis to this Deed as if the same were set at herein and references
to the Agreement were references to this Deed.
14. LAW AND JURISDICTION
14.1 This deed, and all disputes or claims arising out of or in connection
with it, shall be governed by and construed in accordance with English
law.
14.2 The parties to this deed irrevocably and unconditionally agree that the
High Court of Justice in England shall have non-exclusive jurisdiction
over all disputes or claims arising out of or in connection with this
deed.
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14.3 The Purchaser irrevocably designates, appoints and empowers ▇▇▇▇▇▇ &
Whitney at present of Veritas House, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇ to receive, for it and on its behalf, service of process in
England in connection with any dispute arising out of or in connection
with this deed.
14.4 Each of the parties waives objection to the High Court of Justice in
England on the grounds of inconvenient forum or otherwise as regards
proceedings in connection with this deed and agrees that the judgment
or order of such Court in connection with this deed is conclusive and
binding on it and may be enforced against it in the courts of any other
jurisdiction.
IN WITNESS of which this deed has been duly signed as a deed and delivered on
the date written at the beginning of this deed.
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Signed as a deed by )
in the presence of: )
Signed as a deed by )
in the presence of: )
Signed as a deed by GREAT PLAINS )
SOFTWARE, INC. acting by: )
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