An over-cure is a term used in the context of an equity cure where the sponsor injects more equity than is required to cure the immediate breach of financial covenant.

A transaction between two counterparties who engage in a transaction directly, rather than through a recognised exchange.

A term used for derivatives which are privately negotiated between the parties and not traded on an exchange.

Film and television content provided by providers such as Netflix, via a high-speed internet connection rather than a cable or satellite provider.

Overage (or clawback) is a seller’s right to recover additional payment(s) from a buyer at some point in the future, usually after completion of a sale, often triggered by the occurrence of an event which increases the value of the land (eg the grant of planning or completion of development).

Date [date] Parties 1 [name of Seller] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Seller) 2 [name of Buyer] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Buyer) [ background (A) By a sale and purchase agreement (the 'Contract') dated [date] the Seller agreed to sell the Property to the Buyer. (B) The transfer of the Property made between the Seller and the Buyer was completed [today OR [date]] (the ‘Transfer’). (C) This deed is supplemental to [both the Contract and] the Transfer.] 1 Definitions In this Deed, the following definitions apply: Affordable Housing • [social rented, affordable rented and intermediate subsidised housing available to persons who cannot afford to rent or buy housing generally available on the open market OR has the meaning given to that expression in Annex B of the National Planning Policy Framework current today]; Competent Authority • any: (a) local authority, highway authority, government department or other authority, body or person exercising powers under statute or by Royal Charter; or (b) utility service or supply company; Development • the development of the Property in accordance with the Schedule; Disposal • [the transfer of a freehold interest

Date [date] Parties 1 [name of Seller] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Seller) 2 [name of Buyer] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Buyer) [ background (A) By a sale and purchase agreement (the Contract) dated [date] the Seller agreed to sell the Property to the Buyer. (B) The transfer of the Property made between the Seller and the Buyer was completed [today OR [date]] (the Transfer). (C) This deed is supplemental to [both the Contract and] the Transfer.] 1 Definitions In this Deed, the following definitions apply: [Affordable Housing • [social rented, affordable rented and intermediate subsidised housing available to persons who cannot afford to rent or buy housing generally available on the open market OR has the meaning given to that expression in Annex B of the National Planning Policy Framework current today];] Appeal • an appeal by the Buyer (whether or not acting jointly with the Tenant) to the Secretary of State under section 78 of TCPA 1990; Approval • any approval, consent, permission

When a lawyer is instructed to draft and negotiate an agreement that includes the right to receive overage payments, those instructions will include (expressly or impliedly) an obligation to provide mechanisms to protect the seller’s entitlement to those payments (which may well only accrue several years later). A positive obligation to pay overage in the form of a covenant by the buyer will not automatically bind the buyer's successors in title (since the burden of a positive covenant does not run either in law or in equity). Failure to provide an effective method of protection may lead to a claim in negligence, with damages based on loss of opportunity. Protection by legal charge It is possible (and fairly common) to secure entitlement to overage by way of a legal charge on the land that is being sold and that is subject to the overage. It secures any overage payment as and when it arises. If the overage is not paid after it has fallen due, the seller/chargee can exercise its power of sale and discharge the overage out

Overage is a covenant or contractual obligation by the buyer to make an additional payment to the seller over and above the original purchase price if a specified event occurs. It is important to stress to clients that payment of this additional sum is by no means certain. For example: • the specified trigger event may not occur within the overage period • the local authority's development plan for the site or other circumstances surrounding the property may change over time • even if the trigger event does occur, the buyer may simply fail to make the payment to the seller • the buyer may become insolvent in the intervening period At the outset At the outset (ie when heads of terms are circulated) consider whether overage is appropriate for the transaction. Is it likely that the overage will be triggered during the anticipated overage period? If it is a near certainty, a more appropriate solution may be that the price should be adjusted upwards instead. If the overage is being imposed simply to cover the ‘what

Overage (sometimes known as ‘clawback’ or ‘deferred consideration’) enables a seller to benefit from an uplift in the value of land (eg where planning permission is obtained or where completed units are sold) after the original sale by the seller. Entitlement to overage is a contractual matter and overage provisions will be construed against the person seeking to rely on them. Clarity is therefore essential. At the outset, consider whether overage is appropriate. It may be the case that your client’s interests would be better served by agreeing a conditional contract for the sale of the property rather than an outright sale with overage. It is also important to keep perspective when negotiating overage as it often makes negotiations more time-consuming and costly. Management of your client's expectations regarding timing and fees may also be required. Sellers (particularly in the public sector) often impose overage to protect themselves against future embarrassment if the buyer manages to develop and/or dispose of the land at a significant profit. From the seller’s perspective, overage will leave ‘trailing wires’ and the seller will

[ To be printed on the headed paper of the lender ] [insert date] To: [insert name and address of borrower] Dear [insert name of borrower], We are pleased to advise you (the Company) that we are prepared to make available to you [against the guarantee of [insert name of guarantor] (the Guarantor) (the Guarantee)] an overdraft facility on the following terms and conditions: 1 Facility by way of sterling overdraft This facility is available by way of a sterling overdraft on your current account with us up to an amount of £[•] ([•] sterling). 2 Interest Interest will be calculated in respect of the amount for the time being overdrawn under this facility on the basis of a 365-day year and for the actual number of days elapsed, at a rate equal to our base rate from time to time plus [•]% ([•] per cent) a year and will be payable both before and after judgment. Interest so calculated will be payable [monthly] in arrears. 3 Purpose of the facility This facility

This Practice Note explains the features of three common types of loan facility: • overdrafts • term loans, and • revolving credit facilities (RCFs) It also considers the advantages and disadvantages of each type of loan facility from a borrower's perspective. What is an overdraft? An overdraft is the most common form of bank lending and is used to help solve short-term, day-to-day cash flow issues. As such, an overdraft facility is sometimes referred to as a 'working capital facility'. An overdraft is a loan—it enables the borrower to borrow on a designated account up to a specified amount. An overdraft can be 'planned' or 'authorised' (ie expressly agreed) or 'unplanned' or 'unauthorised' (ie arise from an implied request for an overdraft arising from the borrower giving a payment instruction that would take it beyond its agreed overdraft limit (if any)). The lender does not have to let the borrower become overdrawn. The key features of an overdraft are that it: • is generally uncommitted ie it can be withdrawn