Common use of Carrybacks and Carryovers Clause in Contracts

Carrybacks and Carryovers. (a) In the event that any member of the OGI Post-Merger Group realizes any loss, deduction, credit or other Tax attribute in any taxable period (or portion thereof) beginning after the Merger Date, such member may, to the extent permitted by law, utilize such loss, deduction, credit or other Tax attribute and obtain any available Refund, including by carrying back such loss, deduction, credit or Tax attribute to a prior Opgroup Consolidated Group taxable year; provided, however, that (except as provided in the second proviso in this sentence), to the extent such carryback is elective, such member of the OGI Post-Merger Group may only carry back such item with the consent of the Authorized Representative (which may be withheld in its sole discretion if the taxable period to which such item may be carried back has not yet been subject either to audit or to a prior or concurrent mandatory carryback); and provided further, however, that, if such item is the result of a disallowance of a Section 381 attribute that was claimed by a member of the OGI Post-Merger Group for a Straddle Period, such item shall be carried back to prior taxable years of the Opgroup Consolidated Group or the OGI Post-Merger Group, as the case may be, to the extent permitted by law, unless CIBC notifies OGI in writing that such item is not to be so carried back. CIBC shall cooperate with OGI in seeking from the appropriate taxing authority any Refund that reasonably would result therefrom. Except to the extent that such Refund is the result of a disallowance of a loss, deduction, credit or other Tax attribute claimed by, or a reduction in an item of income or gain reported by, a member of the Opgroup Consolidated Group for a Pre-Acquisition Taxable Period or the pre-Acquisition portion of a Straddle Period or is attributable to the disallowance of a Section 381 attribute (in any such event such Refund shall be paid first to CIBC to offset any related increase in Tax Liabilities borne by CIBC for Pre-Acquisition Taxable Period(s) or Straddle Period(s) (to the extent not previously indemnified under the Acquisition Agreement or this Agreement) and second to the Seller Trust), OGI shall be entitled to any Refund (or other Tax benefit including any interest thereon received from such taxing authority) realized by a member of the OGI Post-Merger Group attributable to such loss, deduction, credit or other Tax attribute. (b) In the event that any member of the CIBC Post-Acquisition Group realizes any loss, deduction, credit or other Tax attribute in any taxable period (or portion thereof) beginning after the Acquisition Date, such member may, to the extent permitted by law, utilize such loss, deduction, credit or Tax attribute and obtain any available Refund, including by carrying back such loss, deduction, credit or other Tax attribute to a prior Opgroup Consolidated Group taxable year; provided, however, that, to the extent such carryback is elective, such member of the CIBC Post-Acquisition Group may only carry back such item with the consent of the Authorized Representative (which may be withheld in its sole discretion if the taxable period to which such item may be carried back has not yet been subject either to audit or to a prior or concurrent mandatory carryback). OGI shall cooperate with CIBC in seeking from the appropriate taxing authority any Refund that reasonably would result therefrom. Except to the extent that such Refund is the result of a disallowance of a loss, deduction, credit or other Tax attribute claimed by, or a reduction in an item of income or gain reported by, a member of the Opgroup Consolidated Group for a Pre-Merger Taxable Period or the pre-Merger portion of a Straddle Period (in either which event such Refund shall be paid first to OGI to offset any related increase in Tax Liabilities borne by the Opgroup Subgroup for Pre-Merger Taxable Period(s) or Straddle Period(s) (to the extent not previously indemnified under the Merger Agreement or this Agreement) and second to the Seller Trust), CIBC shall be entitled to any Refund (or other Tax benefit including any interest thereon received from such taxing authority) realized by a member of the CIBC Post-Acquisition Group attributable to such loss, deduction, credit or other Tax attribute. (c) In the event that any Excluded Affiliate realizes any loss, credit or other Tax attribute in any taxable period (or portion thereof) beginning after the Merger Date, such member may carry back such loss, credit or Tax attribute to a prior Opgroup Consolidated Group taxable year. CIBC and OGI shall cooperate with the Authorized Representative in seeking from the appropriate taxing authority any Refund that reasonably would result from such carryback. The Seller Trust shall be entitled to any Refund (or other Tax benefit) realized by any Excluded Affiliate (including any interest thereon received from such taxing authority) attributable to such carryback. (d) The OGI Post-Merger Group also shall be entitled to the benefit, in Post-Merger Taxable Periods, of any net operating loss, capital loss or other carryforward, unused investment, foreign tax or other credit arising in a Pre-Merger Taxable Period of the Opgroup Consolidated Group (including from any member of the Holdings Subgroup); provided, however, that members of the CIBC Post-Acquisition Group shall have priority with respect to the benefit, in Post-Acquisition Taxable Periods, of any carryforward which is legally available from the Holdings Subgroup. OGI or CIBC, as the case may be (the "Recipient"), shall apply the Present Value Benefit of such carryforward in the following order of priority: (1) to offset any resulting increase in Tax Liabilities for Pre-Acquisition or Pre-Merger Taxable Period(s) (to the extent not previously indemnified under the Acquisition Agreement, the Merger Agreement or this Agreement), (2) to the Recipient to the extent of any uncompensated Losses for Pre-Merger or Pre-Acquisition Taxable Periods, (3) to the non-Recipient to the extent of any uncompensated Losses for Pre-Acquisition or Pre-Merger Taxable Periods, and (4) to the Seller Trust.

Carrybacks and Carryovers. (a) In the event that any member of the OGI Post-Merger Group realizes any loss, deduction, credit or other Tax attribute in any taxable period (or portion thereof) beginning after the Merger Date, such member may, to the extent permitted by law, utilize such loss, deduction, credit or other Tax attribute and obtain any available Refund, including by carrying back such loss, deduction, credit or Tax attribute to a prior Opgroup Consolidated Group taxable year; provided, however, that (except as provided in the second proviso in this sentence), to the extent such carryback is elective, such member of the OGI Post-Merger Group may only carry back such item with the consent of the Authorized Representative (which may be withheld in its sole discretion if the taxable period to which such item may be carried back has not yet been subject either to audit or to a prior or concurrent mandatory carryback); and provided further, however, that, if such item is the result of a disallowance of a Section 381 attribute that was claimed by a member of the OGI Post-Merger Group for a Straddle Period, such item shall be carried back to prior taxable years of the Opgroup Consolidated Group or the OGI Post-Merger Group, as the case may be, to the extent permitted by law, unless CIBC notifies OGI in writing that such item is not to be so carried back. CIBC shall cooperate with OGI in seeking from the appropriate taxing authority any Refund that reasonably would result therefrom. Except to the extent that such Refund is the result of a disallowance of a loss, deduction, credit or other Tax attribute claimed by, or a reduction in an item of income or gain reported by, a member of the Opgroup Consolidated Group for a Pre-Acquisition Taxable Period or the pre-Acquisition portion of a Straddle Period or is attributable to the disallowance of a Section 381 attribute (in any such event such Refund shall be paid first to CIBC to offset any related increase in Tax Liabilities borne by CIBC for Pre-Acquisition Taxable Period(s) or Straddle Period(s) (to the extent not previously indemnified under the Acquisition Agreement or this Agreement) and second to the Seller Trust), OGI shall be entitled to any Refund (or other Tax benefit including any interest thereon received from such taxing authority) realized by a member of the OGI Post-Merger Group attributable to such loss, deduction, credit or other Tax attribute. (b) In the event that any member of the CIBC Post-Acquisition Group realizes any loss, deduction, credit or other Tax attribute in any taxable period (or portion thereof) beginning after the Acquisition Date, such member may, to the extent permitted by law, utilize such loss, deduction, credit or Tax attribute and obtain any available Refund, including by carrying back such loss, deduction, credit or other Tax attribute to a prior Opgroup Consolidated Group taxable year; provided, however, that, to the extent such carryback is elective, such member of the CIBC Post-Acquisition Group may only carry back such item with the consent of the Authorized Representative (which may be withheld in its sole discretion if the taxable period to which such item may be carried back has not yet been subject either to audit or to a prior or concurrent mandatory carryback). OGI shall cooperate with CIBC in seeking from the appropriate taxing authority any Refund that reasonably would result therefrom. Except to the extent that such Refund is the result of a disallowance of a loss, deduction, credit or other Tax attribute claimed by, or a reduction in an item of income or gain reported by, a member of the Opgroup Consolidated Group for a Pre-Merger Taxable Period or the pre-Merger portion of a Straddle Period (in either which event such Refund shall be paid first to OGI to offset any related increase in Tax Liabilities borne by the Opgroup ------------------------- Ventiv Subgroup for Pre-Merger Taxable Period(s) or Straddle Period(s) (to the extent not previously indemnified under the Merger Agreement or this Agreement) and second to the Seller Trust), CIBC shall be entitled to any Refund (or other Tax benefit including any interest thereon received from such taxing authority) realized by a member of the CIBC Post-Acquisition Group attributable to such loss, deduction, credit or other Tax attribute. (c) In the event that any Excluded Affiliate realizes any loss, credit or other Tax attribute in any taxable period (or portion thereof) beginning after the Merger DatePost- Distribution Taxable Period, such member may elect to carry back such loss, credit or Tax attribute to a prior Opgroup Xxxxxx Consolidated Group taxable year. CIBC and OGI Xxxxxx shall cooperate with the Authorized Representative Ventiv in seeking from the appropriate taxing authority any Refund that reasonably would result from such carryback. The Seller Trust Ventiv shall be entitled to any Refund (or other Tax benefit) realized by any Excluded Affiliate a member of the Xxxxxx Subgroup (including any interest thereon received from such taxing authority) attributable to such carryback. , within 10 days after such Refund (dor other benefit) The OGI Postis received; provided, however, that -------- ------- Xxxxxx shall be entitled to Refunds that result from the carryback of a loss, credit or other Tax attribute by a member of the Xxxxxx Subgroup from a Post- Distribution Taxable Period to a Pre-Merger Distribution Taxable Period. Except as otherwise provided by applicable law, if a member of the Ventiv Subgroup and a member of the Xxxxxx Subgroup both may carry back a loss or other Tax attribute to the same Xxxxxx Consolidated Group also taxable year, any Refund (or other Tax benefit) resulting therefrom shall be allocated between Ventiv and Xxxxxx proportionately based on the relative amounts of the Refunds (or other Tax benefits) to which the Ventiv Subgroup and the Xxxxxx Subgroup, respectively, would have been entitled had its carrybacks been the only carrybacks to such taxable year. Similarly, Ventiv shall be entitled to the benefit, in Post-Merger Post- Distribution Taxable Periods, of any net operating loss, capital loss loss, unused investment or foreign tax credit or other carryforward, unused investment, foreign tax or other credit Tax attribute arising in a Pre-Merger Pre- Distribution Taxable Period of the Opgroup Consolidated Group (including from any with respect to an affiliated group of which Ventiv was a member) and properly apportioned to a member of the Holdings Subgroup); provided, however, that members of the CIBC PostVentiv Subgroup in accordance with Treasury Regulation Sections 1.1502-Acquisition Group shall have priority with respect to the benefit, in Post21 and 1.1502-Acquisition Taxable Periods, of any carryforward which is legally available from the Holdings Subgroup. OGI 22 or CIBC, as the case may be (the "Recipient"), shall apply the Present Value Benefit of such carryforward in the following order of priority: (1) to offset any resulting increase in Tax Liabilities for Pre-Acquisition or Pre-Merger Taxable Period(s) (to the extent not previously indemnified under the Acquisition Agreement, the Merger Agreement or this Agreement), (2) to the Recipient to the extent of any uncompensated Losses for Pre-Merger or Pre-Acquisition Taxable Periods, (3) to the non-Recipient to the extent of any uncompensated Losses for Pre-Acquisition or Pre-Merger Taxable Periods, and (4) to the Seller Trustother applicable law.

Carrybacks and Carryovers. (a) In the event that any member of the OGI Post-Merger Group realizes any loss, deduction, credit or other Tax attribute in any taxable period (or portion thereof) beginning after the Merger Date, such member may, to the extent permitted by law, utilize such loss, deduction, credit or other Tax attribute and obtain any available Refund, including by carrying back such loss, deduction, credit or Tax attribute to a prior Opgroup Consolidated Group taxable year; provided, however, that (except as provided in the second proviso in this sentence), to the extent such carryback is elective, such member of the OGI Post-Merger Group may only carry back such item with the consent of the Authorized Representative (which may be withheld in its sole discretion if the taxable period to which such item may be carried back has not yet been subject either to audit or to a prior or concurrent mandatory carryback); and provided further, however, that, if such item is the result of a disallowance of a Section 381 attribute that was claimed by a member of the OGI Post-Merger Group for a Straddle Period, such item shall be carried back to prior taxable years of the Opgroup Consolidated Group or the OGI Post-Merger Group, as the case may be, to the extent permitted by law, unless CIBC notifies OGI in writing that such item is not to be so carried back. CIBC shall cooperate with OGI in seeking from the appropriate taxing authority any Refund that reasonably would result therefrom. Except to the extent that such Refund is the result of a disallowance of a loss, deduction, credit or other Tax attribute claimed by, or a reduction in an item of income or gain reported by, a member of the Opgroup Consolidated Group for a Pre-Acquisition Taxable Period or the pre-Acquisition portion of a Straddle Period or is attributable to the disallowance of a Section 381 attribute (in any such event such Refund shall be paid first to CIBC to offset any related increase in Tax Liabilities borne by CIBC for Pre-Acquisition Taxable Period(s) or Straddle Period(s) (to the extent not previously indemnified under the Acquisition Agreement or this Agreement) and second to the Seller Trust), OGI shall be entitled to any Refund (or other Tax benefit including any interest thereon received from such taxing authority) realized by a member of the OGI Post-Merger Group attributable to such loss, deduction, credit or other Tax attribute. (b) In the event that any member of the CIBC Post-Acquisition Group realizes any loss, deduction, credit or other Tax attribute in any taxable period (or portion thereof) beginning after the Acquisition Date, such member may, to the extent permitted by law, utilize such loss, deduction, credit or Tax attribute and obtain any available Refund, including by carrying back such loss, deduction, credit or other Tax attribute to a prior Opgroup Consolidated Group taxable year; provided, however, that, to the extent such carryback is elective, such member of the CIBC Post-Acquisition Group may only carry back such item with the consent of the Authorized Representative (which may be withheld in its sole discretion if the taxable period to which such item may be carried back has not yet been subject either to audit or to a prior or concurrent mandatory carryback). OGI shall cooperate with CIBC in seeking from the appropriate taxing authority any Refund that reasonably would result therefrom. Except to the extent that such Refund is the result of a disallowance of a loss, deduction, credit or other Tax attribute claimed by, or a reduction in an item of income or gain reported by, a member of the Opgroup Consolidated Group for a Pre-Merger Taxable Period or the pre-Merger portion of a Straddle Period (in either which event such Refund shall be paid first to OGI to offset any related increase in Tax Liabilities borne by the Opgroup IFG ------------------------- Subgroup for Pre-Merger Taxable Period(s) or Straddle Period(s) (to the extent not previously indemnified under the Merger Agreement or this Agreement) and second to the Seller Trust), CIBC shall be entitled to any Refund (or other Tax benefit including any interest thereon received from such taxing authority) realized by a member of the CIBC Post-Acquisition Group attributable to such loss, deduction, credit or other Tax attribute. (c) In the event that any Excluded Affiliate realizes any loss, credit or other Tax attribute in any taxable period (or portion thereof) beginning after the Merger DatePost- Distribution Taxable Period, such member may elect to carry back such loss, credit or Tax attribute to a prior Opgroup Imperial Consolidated Group taxable year. CIBC and OGI Imperial shall cooperate with the Authorized Representative IFG in seeking from the appropriate taxing authority any Refund that reasonably would result from such carryback. The Seller Trust IFG shall be entitled to any Refund (or other Tax benefit) realized by any Excluded Affiliate a member of the Imperial Subgroup (including any interest thereon received from such taxing authority) attributable to such carryback. , within 10 days after such Refund (dor other benefit) The OGI is received; provided, however, that Imperial shall be entitled -------- ------- to Refunds that result from the carryback of a loss, credit or other Tax attribute by a member of the Imperial Subgroup from a Post-Merger Distribution Taxable Period to a Pre-Distribution Taxable Period. Except as otherwise provided by applicable law, if a member of the IFG Subgroup and a member of the Imperial Subgroup both may carry back a loss or other Tax attribute to the same Imperial Consolidated Group also taxable year, any Refund (or other Tax benefit) resulting therefrom shall be allocated between IFG and Imperial proportionately based on the relative amounts of the Refunds (or other Tax benefits) to which the IFG Subgroup and the Imperial Subgroup, respectively, would have been entitled had its carrybacks been the only carrybacks to such taxable year. Similarly, IFG shall be entitled to the benefit, in Post-Merger Distribution Taxable Periods, of any net operating loss, capital loss loss, unused investment or foreign tax credit or other carryforward, unused investment, foreign tax or other credit Tax attribute arising in a Pre-Merger Distribution Taxable Period of the Opgroup Consolidated Group (including from any with respect to an affiliated group of which IFG was a member) and properly apportioned to a member of the Holdings Subgroup); provided, however, that members of the CIBC PostIFG Subgroup in accordance with Treasury Regulation Sections 1.1502-Acquisition Group shall have priority with respect to the benefit, in Post-Acquisition Taxable Periods, of any carryforward which is legally available from the Holdings Subgroup. OGI 79A and -21T or CIBC, as the case may be (the "Recipient"), shall apply the Present Value Benefit of such carryforward in the following order of priority: (1) to offset any resulting increase in Tax Liabilities for Pre-Acquisition or Pre-Merger Taxable Period(s) (to the extent not previously indemnified under the Acquisition Agreement, the Merger Agreement or this Agreement), (2) to the Recipient to the extent of any uncompensated Losses for Pre-Merger or Pre-Acquisition Taxable Periods, (3) to the non-Recipient to the extent of any uncompensated Losses for Pre-Acquisition or Pre-Merger Taxable Periods, and (4) to the Seller Trustother applicable law.