Common use of Apportionment of Tax Attributes Clause in Contracts

Apportionment of Tax Attributes. (a) If the PC Mall Consolidated Group has a Tax Attribute, the portion, if any, of such Tax Attribute that shall be apportioned to eCOST and treated as a carryover to the first Post-Distribution Period of eCOST shall be determined in accordance with Treasury Regulation §§ 1.1502-21(b), 1.1502-22(b), 1.1502-79 and 1.1502-79A; provided, however, that the portion, if any, of any consolidated unused Foreign Tax credit which shall be apportioned to eCOST or such member shall be determined separately with respect to each of the items of income listed in Section 904(d) of the Code. (b) No consolidated U.S. federal income Tax Attribute of the PC Mall Consolidated Group, other than those described in Section 6.1(a) hereof, and no consolidated, combined or unitary state, local, or foreign income Tax Attribute arising in respect of a PC Mall State, Local and Foreign Return, shall be apportioned to eCOST, except as PC Mall (or such member of the PC Mall Group as PC Mall shall designate) determines is otherwise required under the provisions of applicable law. (c) PC Mall shall determine the portion, if any, of any Tax Attribute which must (absent a Final Determination to the contrary) be apportioned to eCOST in accordance with this Section 6.1 and applicable law, and the amount of tax basis and earnings and profits to be apportioned to eCOST in accordance with applicable law, and shall provide written notice of the calculation thereof to eCOST as soon as practicable after the information necessary to make such calculation becomes available to PC Mall. (d) eCOST shall prepare, or cause to be prepared, and file, or cause to be filed, all Income Tax Returns for which it is responsible under this Agreement, so as to take into account, to the extent permitted by applicable law, any Tax Attribute (and the amount of tax basis and earnings and profits) apportioned to eCOST as calculated pursuant to Section 6.1(c) hereof. Until such time as any such Tax Attribute has been utilized by eCOST (or would have been so utilized had eCOST complied with the requirements of the previous sentence), eCOST shall, in connection with each Income Tax Return filed by it, provide PC Mall with a statement, signed by eCOST’s chief financial officer and certified by eCOST’s independent accounting firm, setting forth in reasonable detail a calculation of the extent to which any such Tax Attribute was utilized on such Income Tax Return (or would have been so utilized had eCOST complied with the requirements of the previous sentence). (e) Notwithstanding any other provision of this Agreement, eCOST hereby expressly agrees to elect (under Section 172(b)(3) of the Code and, to the extent feasible, any similar provision of any state, local or Foreign Tax law) to relinquish any right to carry back net operating losses for any tax year with respect to which such net operating loss could otherwise be carried back into a Consolidated Return or a Combined Return (in which event no payment shall be due from PC Mall to eCOST in respect of such net operating loss). (f) PC Mall shall be entitled to all Refunds (and any interest thereon received from the applicable Governmental Authority) in respect of Income Taxes for all PC Mall Consolidated Return Periods. Except to the extent provided in Section 6.1(e), eCOST shall be entitled to all Refunds (and any interest thereon received from the applicable Governmental Authority) in respect of Income Taxes paid by eCOST for all Post-Distribution Periods. A Party receiving a Refund to which another Party is entitled pursuant to this Section 6.1(f) shall pay the amount to which such other Party is entitled within ten (10) days after such Refund is Actually Realized. PC Mall shall be permitted to file, and eCOST shall fully cooperate with PC Mall in connection with, any claim for Refund in respect of an Income Tax for which any member of the PC Mall Group is responsible pursuant to Section 2 hereof. Any costs and expenses, if any, incurred in connection with obtaining a Refund shall be borne by the Party that is entitled to such Refund under this Section 6.1(f).

Apportionment of Tax Attributes. (a) If the PC Mall Consolidated Group has a Tax Attribute, the portion, if any, of such Tax Attribute that shall be apportioned to eCOST and treated as a carryover to the first Post-Distribution Period of eCOST shall be determined in accordance with Treasury Regulation §§ Sections 1.1502-21(b), 1.1502-22(b), 1.1502-79 and 1.1502-79A; provided, however, that the portion, if any, of any consolidated unused Foreign Tax credit which shall be apportioned to eCOST or such member shall be determined separately with respect to each of the items of income listed in Section 904(d) of the Code. (b) No consolidated U.S. federal income Tax Attribute of the PC Mall Consolidated Group, other than those described in Section 6.1(a) hereof, and no consolidated, combined or unitary state, local, or foreign income Tax Attribute arising in respect of a PC Mall State, Local and Foreign Return, shall be apportioned to eCOST, except as PC Mall (or such member of the PC Mall Group as PC Mall shall designate) determines is otherwise required under the provisions of applicable law. (c) PC Mall shall determine the portion, if any, of any Tax Attribute which must (absent a Final Determination to the contrary) be apportioned to eCOST in accordance with this this Section 6.1 and applicable law, and the amount of tax basis and earnings and profits to be apportioned to eCOST in accordance with applicable law, and shall provide written notice of the calculation thereof to eCOST as soon as practicable after the information necessary to make such calculation becomes available to PC Mall. (d) eCOST shall prepare, or cause to be prepared, and file, or cause to be filed, all Income Tax Returns for which it is responsible under this Agreement, so as to take into account, to the extent permitted by applicable law, any Tax Attribute (and the amount of tax basis and earnings and profits) apportioned to eCOST as calculated pursuant to Section 6.1(c) hereof. Until such time as any such Tax Attribute has been utilized by eCOST (or would have been so utilized had eCOST complied with the requirements of the previous sentence), eCOST shall, in connection with each Income Tax Return filed by it, provide PC Mall with a statement, signed by eCOST’s 's chief financial officer and certified by eCOST’s 's independent accounting firm, setting forth in reasonable detail a calculation of the extent to which any such Tax Attribute was utilized on such Income Tax Return (or would have been so utilized had eCOST complied with the requirements of the previous sentence). (e) Notwithstanding any other provision of this Agreement, eCOST hereby expressly agrees to elect (under Section 172(b)(3) of the Code and, to the extent feasible, any similar provision of any state, local or Foreign Tax law) to relinquish any right to carry back net operating losses for any tax year with respect to which such net operating loss could otherwise be carried back into a Consolidated Return or a Combined Return (in which event no payment shall be due from PC Mall to eCOST in respect of such net operating loss). (f) PC Mall shall be entitled to all Refunds (and any interest thereon received from the applicable Governmental Authority) in respect of Income Taxes for all PC Mall Consolidated Return Periods. Except to the extent provided in Section 6.1(e), eCOST shall be entitled to all Refunds (and any interest thereon received from the applicable Governmental Authority) in respect of Income Taxes paid by eCOST for all Post-Distribution Periods. A Party receiving a Refund to which another Party is entitled pursuant to this Section 6.1(f) shall pay the amount to which such other Party is entitled within ten (10) days after such Refund is Actually Realized. PC Mall shall be permitted to file, and eCOST shall fully cooperate with PC Mall in connection with, any claim for Refund in respect of an Income Tax for which any member of the PC Mall Group is responsible pursuant to Section 2 hereof. Any costs and expenses, if any, incurred in connection with obtaining a Refund shall be borne by the Party that is entitled to such Refund under this Section 6.1(f).

Apportionment of Tax Attributes. (a) If the PC Mall CCI Consolidated Group has a Tax Attribute, the portion, if any, of such Tax Attribute that shall be apportioned to eCOST uBid and treated as a carryover to the first Post-Distribution Taxable Period of eCOST uBid shall be determined in accordance with Treasury Regulation §§ 1.1502-21(b), 1.1502-22(b), 1.1502(S)(S)1.1502-79 and 1.1502-1.1502- 79A; provided, however, that the portion, if any, of any consolidated unused Foreign Tax foreign tax credit which shall be apportioned to eCOST uBid or such member shall be determined separately with respect to each of the items of income listed in Section 904(d) of the Code. (b) No consolidated U.S. federal income Tax Attribute of the PC Mall CCI Consolidated Group, other than those described in Section 6.1(a8.1(a) hereof, and no consolidated, combined or unitary state, local, or foreign income Tax Attribute arising in respect of a PC Mall CCI State, Local and Foreign Return, shall be apportioned to eCOSTuBid, except as PC Mall CCI (or such member of the PC Mall CCI Group as PC Mall CCI shall designate) determines is otherwise required under the provisions of applicable law. (c) PC Mall CCI (or its designee) shall determine the portion, if any, of any Tax Attribute which must (absent a Final Determination to the contrary) be apportioned to eCOST uBid in accordance with this this Section 6.1 8.1 and applicable law, and the amount of tax basis and earnings and profits to be apportioned to eCOST uBid in accordance with applicable law, and shall provide written notice of the calculation thereof to eCOST uBid as soon as practicable after the information necessary to make such calculation becomes available to PC MallCCI. (d) eCOST uBid shall prepare, or cause to be prepared, and file, or cause to be filed, all Income Tax Returns for which it is responsible under this Agreement, so as to take into account, to the extent permitted by applicable law, any Tax Attribute (and the amount of tax basis and earnings and profits) apportioned to eCOST uBid as calculated pursuant to Section 6.1(c8.1(c) hereof. Until such time as any such Tax Attribute has been utilized by eCOST uBid (or would have been so utilized had eCOST uBid complied with the requirements of the previous sentence), eCOST uBid shall, in connection with each Income Tax Return filed by it, provide PC Mall CCI with a statement, signed by eCOST’s uBid's chief financial officer and certified by eCOST’s uBid's independent accounting firm, setting forth in reasonable detail a calculation of the extent to which any such Tax Attribute was utilized on such Income Tax Return (or would have been so utilized had eCOST uBid complied with the requirements of the previous sentence). (e) Notwithstanding If any other provision Tax Attribute is carried forward to an Income Tax Return of this AgreementuBid for any Post-Distribution Taxable Period, eCOST hereby expressly agrees uBid shall pay to elect CCI (under Section 172(b)(3or its designee) the amount of any Income Tax Benefit Actually Realized by uBid as a result of the carryover of such Tax Attribute, including interest (computed at the Overpayment Rate) from the original due date (without extensions) of the Code and, to Income Tax Return for the extent feasible, any similar provision of any state, local or Foreign Tax law) to relinquish any right to carry back net operating losses for any tax year with respect to taxable period in which such net operating loss could otherwise Income Tax Benefit is Actually Realized through the date of payment under this Section 8.1(e) (but without duplication of the amount of interest, if any, included in the Income Tax Benefit Actually Realized); provided, however, that the failure of uBid to comply with the requirements of the first sentence of Section 8.1(d) hereof shall not relieve uBid of the obligation to make the payment that it would be carried back into a Consolidated Return or a Combined Return (in which event no payment shall be due from PC Mall required to eCOST in respect of make pursuant to this Section 8.1(e) were uBid to have complied with such net operating loss)requirements. (f) PC Mall If there is a Final Determination that results in any change to or adjustment of the portion of any Tax Attribute which shall have been apportioned to uBid pursuant to this Section 8.1, then CCI (or its designee) shall make a payment to uBid, or uBid shall make a payment to CCI (or its designee),as may be necessary to adjust the payments between uBid and CCI(or its designee) to reflect the payments that would have been made under Section 8.1(e) had the adjusted amount of the Tax Attribute been taken into account in computing the payments due under Section 8.1(e) hereof. (g) Except to the extent otherwise consented to by CCI or prohibited by applicable law, uBid shall elect to relinquish, waive or otherwise forego all Carrybacks. In the event that uBid is prohibited by applicable law to relinquish, waive or otherwise forego a Carryback (or CCI consents thereto), (i) CCI shall cooperate with uBid, at uBid's expense, in seeking from the appropriate Taxing Jurisdiction such Refund as reasonably would result from such Carryback, and (ii) uBid shall be entitled to all Refunds any Income Tax Benefit Actually Realized by a member of the CCI Group (and including any interest thereon received from the applicable Governmental Authority) in respect of Income Taxes for all PC Mall Consolidated Return Periods. Except such Taxing Jurisdiction), to the extent provided in Section 6.1(e)that such Refund is directly attributable to such Carryback, eCOST shall be entitled to all Refunds (and any interest thereon received from the applicable Governmental Authority) in respect of Income Taxes paid by eCOST for all Post-Distribution Periods. A Party receiving a Refund to which another Party is entitled pursuant to this Section 6.1(f) shall pay the amount to which such other Party is entitled within ten (10) 10 days after such Refund is Actually Realized; provided, however, that uBid shall indemnify and hold the members of the CCI Group harmless from and against any and all collateral tax consequences resulting from or caused by any such Carryback, including (but not limited to) the loss or postponement of benefit from the use of tax attributes generated by a member of the CCI Group or an Affiliate thereof and (x) that expire unutilized, but would have been utilized but for such Carryback, or (y) the use of which is postponed to a later taxable period than the taxable period in which such tax attributes otherwise would have been utilized but for such Carryback. PC Mall shall be permitted If there is a Final Determination that results in any change to file, and eCOST shall fully cooperate with PC Mall in connection with, any claim for Refund in respect or adjustment of an Income Tax for which any Benefit Actually Realized by a member of the PC Mall CCI Group is responsible pursuant to Section 2 hereof. Any costs and expenses, if any, incurred in connection with obtaining a Refund shall be borne by the Party that is entitled directly attributable to such Refund a Carryback, then CCI (or its designee) shall make a payment to uBid, or uBid shall make a payment to CCI (or its designee), as may be necessary to adjust the payments between uBid and CCI (or its designee) to reflect the payments that would have been made under this Section 6.1(f8.1(g) had the adjusted amount of such Income Tax Benefit been taken into account in computing the payments due under this Section 8.1(g).

Apportionment of Tax Attributes. (a) If the PC Mall CCI Consolidated Group has a Tax Attribute, the portion, if any, of such Tax Attribute that shall be apportioned to eCOST uBid and treated as a carryover to the first Post-Distribution Taxable Period of eCOST uBid shall be determined in accordance with Treasury Regulation §§ 1.1502-21(b), 1.1502-22(b), 1.1502(S)(S)1.1502-79 and 1.1502-1.1502- 79A; provided, however, that the portion, if any, of any consolidated unused Foreign Tax foreign tax credit which shall be apportioned to eCOST uBid or such member shall be determined separately with respect to each of the items of income listed in Section 904(d) of the Code. (b) No consolidated U.S. federal income Tax Attribute of the PC Mall CCI Consolidated Group, other than those described in Section 6.1(a8.1(a) hereof, and no consolidated, combined or unitary state, local, or foreign income Tax Attribute arising in respect of a PC Mall CCI State, Local and Foreign Return, shall be apportioned to eCOSTuBid, except as PC Mall CCI (or such member of the PC Mall CCI Group as PC Mall CCI shall designate) determines is otherwise required under the provisions of applicable law. (c) PC Mall CCI (or its designee) shall determine the portion, if any, of any Tax Attribute which must (absent a Final Determination to the contrary) be apportioned to eCOST uBid in accordance with this this Section 6.1 8.1 and applicable law, and the amount of tax basis and earnings and profits to be apportioned to eCOST uBid in accordance with applicable law, and shall provide written notice of the calculation thereof to eCOST uBid as soon as practicable after the information necessary to make such calculation becomes available to PC MallCCI. (d) eCOST uBid shall prepare, or cause to be prepared, and file, or cause to be filed, all Income Tax Returns for which it is responsible under this Agreement, so as to take into account, to the extent permitted by applicable law, any Tax Attribute (and the amount of tax basis and earnings and profits) apportioned to eCOST uBid as calculated pursuant to Section 6.1(c8.1(c) hereof. Until such time as any such Tax Attribute has been utilized by eCOST uBid (or would have been so utilized had eCOST uBid complied with the requirements of the previous sentence), eCOST uBid shall, in connection with each Income Tax Return filed by it, provide PC Mall CCI with a statement, signed by eCOST’s uBid's chief financial officer and certified by eCOST’s uBid's independent accounting firm, setting forth in reasonable detail a calculation of the extent to which any such Tax Attribute was utilized on such Income Tax Return (or would have been so utilized had eCOST uBid complied with the requirements of the previous sentence). (e) Notwithstanding any other provision of this Agreement, eCOST hereby expressly agrees to elect (under Section 172(b)(3) of the Code and, Except to the extent feasibleotherwise consented to by CCI or prohibited by applicable law, any similar provision of any stateuBid shall elect to relinquish, local waive or Foreign Tax lawotherwise forego all Carrybacks. In the event that uBid is prohibited by applicable law to relinquish, waive or otherwise forego a Carryback (or CCI consents thereto), (i) to relinquish any right to carry back net operating losses for any tax year CCI shall cooperate with respect to which uBid, at uBid's expense, in seeking from the appropriate Taxing Jurisdiction such net operating loss could otherwise be carried back into a Consolidated Return or a Combined Return Refund as reasonably would result from such Carryback, and (in which event no payment shall be due from PC Mall to eCOST in respect of such net operating loss). (fii) PC Mall uBid shall be entitled to all Refunds any Income Tax Benefit Actually Realized by a member of the CCI Group (and including any interest thereon received from the applicable Governmental Authority) in respect of Income Taxes for all PC Mall Consolidated Return Periods. Except such Taxing Jurisdiction), to the extent provided in Section 6.1(e)that such Refund is directly attributable to such Carryback, eCOST shall be entitled to all Refunds (and any interest thereon received from the applicable Governmental Authority) in respect of Income Taxes paid by eCOST for all Post-Distribution Periods. A Party receiving a Refund to which another Party is entitled pursuant to this Section 6.1(f) shall pay the amount to which such other Party is entitled within ten (10) 10 days after such Refund is Actually Realized; provided, however, that uBid shall indemnify and hold the members of the CCI Group harmless from and against any and all collateral tax consequences resulting from or caused by any such Carryback, including (but not limited to) the loss or postponement of benefit from the use of tax attributes generated by a member of the CCI Group or an Affiliate thereof and (x) that expire unutilized, but would have been utilized but for such Carryback, or (y) the use of which is postponed to a later taxable period than the taxable period in which such tax attributes otherwise would have been utilized but for such Carryback. PC Mall shall be permitted If there is a Final Determination that results in any change to file, and eCOST shall fully cooperate with PC Mall in connection with, any claim for Refund in respect or adjustment of an Income Tax for which any Benefit Actually Realized by a member of the PC Mall CCI Group is responsible pursuant to Section 2 hereof. Any costs and expenses, if any, incurred in connection with obtaining a Refund shall be borne by the Party that is entitled directly attributable to such Refund a Carryback, then CCI (or its designee) shall make a payment to uBid, or uBid shall make a payment to CCI (or its designee), as may be necessary to adjust the payments between uBid and CCI (or its designee) to reflect the payments that would have been made under this Section 6.1(f8.1(e) had the adjusted amount of such Income Tax Benefit been taken into account in computing the payments due under this Section 8.1(e).

Apportionment of Tax Attributes. (a) If the PC Mall Consolidated Group has a Tax Attribute, the portion, if any, of such Tax Attribute that shall be apportioned to eCOST and treated as a carryover to the first Post-Distribution Period of eCOST shall be determined in accordance with Treasury Regulation §§ §1.1502-21(b), 1.1502-22(b), 1.1502-79 and 1.1502-79A; provided, however, that the portion, if any, of any consolidated unused Foreign Tax credit which shall be apportioned to eCOST or such member shall be determined separately with respect to each of the items of income listed in Section 904(d) of the Code. (b) No consolidated U.S. federal income Tax Attribute of the PC Mall Consolidated Group, other than those described in Section 6.1(a) hereof, and no consolidated, combined or unitary state, local, or foreign income Tax Attribute arising in respect of a PC Mall State, Local and Foreign Return, shall be apportioned to eCOST, except as PC Mall (or such member of the PC Mall Group as PC Mall shall designate) determines is otherwise required under the provisions of applicable law. (c) PC Mall shall determine the portion, if any, of any Tax Attribute which must (absent a Final Determination to the contrary) be apportioned to eCOST in accordance with this this Section 6.1 and applicable law, and the amount of tax basis and earnings and profits to be apportioned to eCOST in accordance with applicable law, and shall provide written notice of the calculation thereof to eCOST as soon as practicable after the information necessary to make such calculation becomes available to PC Mall. (d) eCOST shall prepare, or cause to be prepared, and file, or cause to be filed, all Income Tax Returns for which it is responsible under this Agreement, so as to take into account, to the extent permitted by applicable law, any Tax Attribute (and the amount of tax basis and earnings and profits) apportioned to eCOST as calculated pursuant to Section 6.1(c) hereof. Until such time as any such Tax Attribute has been utilized by eCOST (or would have been so utilized had eCOST complied with the requirements of the previous sentence), eCOST shall, in connection with each Income Tax Return filed by it, provide PC Mall with a statement, signed by eCOST’s chief financial officer and certified by eCOST’s independent accounting firm, setting forth in reasonable detail a calculation of the extent to which any such Tax Attribute was utilized on such Income Tax Return (or would have been so utilized had eCOST complied with the requirements of the previous sentence). (e) Notwithstanding any other provision of this Agreement, eCOST hereby expressly agrees to elect (under Section 172(b)(3) of the Code and, to the extent feasible, any similar provision of any state, local or Foreign Tax law) to relinquish any right to carry back net operating losses for any tax year with respect to which such net operating loss could otherwise be carried back into a Consolidated Return or a Combined Return (in which event no payment shall be due from PC Mall to eCOST in respect of such net operating loss). (f) PC Mall shall be entitled to all Refunds (and any interest thereon received from the applicable Governmental Authority) in respect of Income Taxes for all PC Mall Consolidated Return Periods. Except to the extent provided in Section 6.1(e), eCOST shall be entitled to all Refunds (and any interest thereon received from the applicable Governmental Authority) in respect of Income Taxes paid by eCOST for all Post-Distribution Periods. A Party receiving a Refund to which another Party is entitled pursuant to this Section 6.1(f) shall pay the amount to which such other Party is entitled within ten (10) days after such Refund is Actually Realized. PC Mall shall be permitted to file, and eCOST shall fully cooperate with PC Mall in connection with, any claim for Refund in respect of an Income Tax for which any member of the PC Mall Group is responsible pursuant to Section 2 hereof. Any costs and expenses, if any, incurred in connection with obtaining a Refund shall be borne by the Party that is entitled to such Refund under this Section 6.1(f).