Common use of Tax Benefits Clause in Contracts

Tax Benefits. In calculating the amount of any Losses payable under this Article 12, there shall be deducted from any such Losses payable to the Indemnified Party an amount equal to any cash Tax benefit realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 (including any cash Tax benefit realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner in any the Archstone Entities). If a cash Tax benefit with respect to a Loss that has been the subject of indemnification under this Article 12 is realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurred, then payments shall be made by the Indemnified Party to the Indemnifying Party to reflect such cash Tax benefit at the time of realization. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REIT.

Tax Benefits. In calculating the amount of any Losses payable under this Article 12(a) If, there shall be deducted from any such Losses payable to the Indemnified Party an amount equal to any cash Tax benefit realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 (including any cash Tax benefit realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner in any the Archstone Entities). If a cash Tax benefit with respect adjustment pursuant to a Loss Final Determination to any Tax for which a member of the SnackCo Post-Distribution Group is liable hereunder, a member of the GroceryCo Post-Distribution Group realizes a Tax Benefit that has been it would not have realized but for such adjustment (determined on a with and without basis), GroceryCo shall pay to SnackCo the subject Tax Benefit from such adjustment within thirty days of indemnification under this Article 12 is realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary later of the date on which (i) the member of the GroceryCo Post-Distribution Group Effectively Realizes such Loss was incurredTax Benefit or (ii) GroceryCo receives written notice and demand from SnackCo for payment of the amount due, then payments accompanied by evidence of such adjustment describing in reasonable detail the particulars relating thereto. Provided, however, that the amount GroceryCo shall be made pay to SnackCo under this Section 4.04(a) related to any adjustment shall not exceed the lesser of (x) the Tax Benefit(s) Effectively Realized (whether Effectively Realized with respect to the same taxable period or one or more other taxable periods) by the Indemnified Party to member of the Indemnifying Party to reflect such cash GroceryCo Post-Distribution Group or (y) the Tax benefit at Detriment incurred by the time member of realizationthe SnackCo Post-Distribution Group. In the event there are that GroceryCo disagrees with any indemnity payments required under such calculation described in this Article 12Section 4.04(a), GroceryCo shall notify SnackCo in writing within thirty days of receiving the Indemnified Party written calculations set forth above in this Section 4.04(a). The Parties shall provide resolve any such disagreement in accordance with Section 10.03 of this Agreement. (b) If, as a result of an adjustment pursuant to a Final Determination to any Tax for which a member of the GroceryCo Post-Distribution Group is liable hereunder, a member of the SnackCo Post-Distribution Group realizes a Tax Benefit that it would not have realized but for such adjustment (determined on an annual basis a certification by a responsible tax officer with and without basis), SnackCo shall pay to GroceryCo the Tax Benefit from such adjustment within thirty days of the later of the date on which (i) the member of the SnackCo Post-Distribution Group Effectively Realizes such Tax Benefit or (ii) SnackCo receives written notice and demand from GroceryCo for payment of the amount (if any) due, accompanied by evidence of a cash Tax benefit that would reduce such adjustment describing in reasonable detail the particulars relating thereto. Provided, however, the amount of any such indemnity payments or give rise SnackCo shall pay to an obligation to make a payment to the Indemnifying Party GroceryCo under this Section 12.8. In applying 4.04(b) related to any adjustment shall not exceed the foregoing, to lesser of (x) the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized Benefit(s) Effectively Realized (whether Effectively Realized with respect to the beneficial interests owned directly same taxable period or indirectly one or more other taxable periods) by the REITmember of the SnackCo Post-Distribution Group or (y) the Tax Detriment incurred by the member of the GroceryCo Post-Distribution Group. In the event that SnackCo disagrees with any such calculation described in this Section 4.04(b), SnackCo shall notify GroceryCo in writing within thirty days of receiving the written calculation set forth above in this Section 4.04(b). The Parties shall resolve any such disagreements in accordance with Section 10.03 of this Agreement. (c) If, subsequent to a payment by SnackCo or GroceryCo, as appropriate, to the other Party of an amount pursuant to (or in accordance with the principles of) Sections 4.04(a) or 4.04(b) of this Agreement, there shall be a Final Determination that results in a disallowance or a reduction of the Effectively Realized Tax Benefit, the other Party shall repay to SnackCo or GroceryCo, as appropriate, within thirty days after such Final Determination, any amount that would not have been payable to the other Party pursuant to (or in accordance with the principles of) Sections 4.04(a) or 4.04(b) of this Agreement had the Tax Benefit been determined in light of the Final Determination. In addition, that Party receiving a payment from the other Party pursuant to Sections 4.04(a) or 4.04(b) of this Agreement shall hold each member of the other Party’s Group harmless from any penalty or interest payable by any member of the other Party’s Group as a result of any such Final Determination. Any such amount shall be paid by the other Party within thirty days of the payment by the SnackCo Post-Distribution Group or the GroceryCo Post-Distribution Group, as appropriate, of any such penalty or interest.

Tax Benefits. In calculating (a) If a member of the amount Cyclerion Group realizes any Tax Benefit resulting from, attributable to or arising in connection with a Section 336(e) Election, and such Tax Benefit would not have arisen but for such election (determined on a “with and without” basis), Cyclerion shall make a payment to Ironwood within thirty (30) Business Days following each such realization of any Losses payable under this Article 12a Tax Benefit, there shall be deducted from any such Losses payable to the Indemnified Party in an amount equal to any cash (A) the product of (x) such Tax benefit realized or to be realized in Benefit, times (y) the same Taxable period as percentage of the period during total related Distribution Losses represented by the portion of such total Distribution Losses for which the Indemnified Party became entitled Ironwood Group is responsible pursuant to indemnification with respect Section 6.4, plus (B) interest on such amount computed at the Prime Rate based on the number of days from the date of such actual realization of the Tax Benefit to the applicable Loss date of payment of such amount under this Article 12 Section 5.1; provided, however, that (including i) such payments shall be reduced by all reasonable costs incurred by the Cyclerion Group to amend any cash Tax benefit Returns or other governmental filings, and (ii) if a Tax Benefit is realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification (determined on a “with respect to the applicable Loss under Article 12 and without” basis) as a result of being an equity owner in any the Archstone Entities). If audit adjustment by a cash Tax benefit with respect to tax authority for a Loss tax period that has already been completed as of the subject time of indemnification under this Article 12 is such adjustment, then, solely for purposes of determining (x) the date on which Cyclerion must make a payment to Ironwood in respect of such Tax Benefit, (y) the date on which Cyclerion must provide the notice described in Section 5.1(b) , and (z) the date from which interest computed at the Prime Rate accrues on such amount, such Tax Benefit shall be treated as having been realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary as of the date on which the applicable tax authority issued such Loss was incurredadjustment. (b) No later than thirty (30) Business Days after a Tax Benefit described in Section 5.1 is realized by a member of the Cyclerion Group, then payments Cyclerion shall be made provide Ironwood with notice of the amount payable to Ironwood by the Indemnified Party Cyclerion pursuant to the Indemnifying Party to reflect such cash Tax benefit at the time of realization. this Article V. In the event there are that Ironwood disagrees with any indemnity payments required such calculation described in this Section 5.1(b), Ironwood shall so notify Cyclerion in writing within thirty (30) Business Days of receiving the written calculation set forth above in this Section 5.1(b). Ironwood and Cyclerion shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit V shall be considered to have been realized determined in accordance with respect to the beneficial interests owned directly or indirectly by the REITdisagreement resolution provisions of Article XIII as promptly as practicable.

Tax Benefits. In calculating the amount of any Losses payable under this Article 12(a) Except as set forth below, there (i) Encompass shall be deducted entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which Encompass is liable hereunder, (ii) Enhabit shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which Enhabit is liable hereunder, and (iii) a Company receiving a refund to which the other Company is entitled hereunder in whole or in part shall pay over such Losses payable refund (or portion thereof), net of cost (including Taxes) resulting therefrom, to such other Company within 30 days after such refund is received; it being understood that, with respect to any refund (or interest thereon received from the applicable Tax Authority) of Taxes for which both Companies are liable under Section 7.05(c)(i), each Company shall be entitled to the Indemnified Party portion of such refund (or interest thereon) that reflects its proportionate liability for such Taxes. (b) Notwithstanding anything in this Section 6.01 to the contrary and except as provided in Section 6.01(c), with respect to any Encompass Federal Consolidated Income Tax Return or Encompass State Combined Income Tax Return, to the extent any Tax Attribute arising in the Pre-Distribution Period and allocated to any member of the Enhabit Group is utilized on such Tax Return, Encompass shall pay to Enhabit in the year in which the Tax Attribute is utilized an amount equal to any cash the actual Tax benefit savings realized or to be realized by the Encompass Affiliated Group, in accordance with Section 5 of the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect Existing Tax Allocation Agreement (without giving effect to the applicable Loss under this Article 12 termination thereof pursuant to Section 13 thereof or Section 11 hereof). (including c) If (i) a member of the Enhabit Group actually realizes in cash any cash Tax benefit realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 Benefit as a result of being an equity owner adjustment pursuant to a Final Determination or reporting required by clause (x) or clause (y) of Section 4.04(b), in each case, that increases Taxes for which a member of the Encompass Group is liable hereunder (or reduces any Tax Attribute of a member of the Archstone EntitiesEncompass Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis) or (ii) a member of the Encompass Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by clause (x) or clause (y) of Section 4.04(b), in each case, that increases Taxes for which a member of the Enhabit Group is liable hereunder (or reduces any Tax Attribute of a member of the Enhabit Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), then Enhabit or Encompass, as the case may be, shall make a payment to Encompass or Enhabit, as appropriate, within 30 days following such actual realization of the Tax Benefit, in an amount equal to such Tax Benefit actually realized in cash (including any Tax Benefit actually realized as a result of the payment); provided, however, that no Company (or any Affiliates of any Company) shall be obligated to make a payment otherwise required pursuant to this Section 6.01(c) to the extent making such payment would place such Company (or any of its Affiliates) in a less favorable net after-Tax position than such Company (or such Affiliate) would have been in if the relevant Tax Benefit had not been realized. If a Company or one of its Affiliates pays over any amount pursuant to the preceding sentence and such Tax Benefit is subsequently disallowed or adjusted, the Parties shall promptly make appropriate payments (including in respect of any interest paid or imposed by any Tax Authority) to reflect such disallowance or adjustment. (d) No later than 30 days after a Tax Benefit described in Section 6.01(c) is actually realized in cash by a member of the Encompass Group or a member of the Enhabit Group, Encompass (if a member of the Encompass Group actually realizes such Tax Benefit) or Enhabit (if a member of the Enhabit Group actually realizes such Tax Benefit) shall provide the other Company with a written calculation of the amount payable to such other Company by Encompass or Enhabit pursuant to this Section 6. In the event that Encompass or Enhabit disagrees with any such calculation described in this Section 6.01(d), Encompass or Enhabit shall so notify the other Company in writing within 30 days of receiving such written calculation. Encompass and Enhabit shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under this Section 6 shall be determined in accordance with the provisions of Section 14 as promptly as practicable. (e) Enhabit shall be entitled to any refund that is attributable to, and would not have arisen but for, an Enhabit Carryback pursuant to the proviso set forth in Section 4.07; provided, however, that Enhabit shall indemnify and hold the members of the Encompass Group harmless from and against any and all collateral Tax consequences resulting from or caused by any such Enhabit Carryback, including (but not limited to) the loss or postponement of any benefit with respect from the use of Tax Attributes generated by a member of the Encompass Group or an Affiliate thereof if (x) such Tax Attributes expire unutilized, but would have been utilized but for such Enhabit Carryback, or (y) the use of such Tax Attributes is postponed to a Loss that has been later Tax Period than the subject of indemnification under this Article 12 is realized by an Indemnified Party Tax Period in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurredTax Attributes would have been utilized but for such Enhabit Carryback. Any such payment of such refund made by Encompass to Enhabit pursuant to this Section 6.01(e) shall be recalculated in light of any Final Determination (or any other facts that may arise or come to light after such payment is made, then payments such as a carryback of an Encompass Group Tax Attribute to a Tax Period in respect of which such refund is received) that would affect the amount to which Enhabit is entitled, and an appropriate adjusting payment shall be made by Enhabit to Encompass such that the Indemnified Party aggregate amount paid pursuant to the Indemnifying Party to reflect such cash Tax benefit at the time of realization. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REIT6.01(e) equals such recalculated amount.

Tax Benefits. In calculating (a) Except as provided in Section 6.01(b), (i) XPO shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Taxes that are related to a Joint Return and for which XPO is responsible pursuant to Section 2.02, 2.03 or 2.04 and of Taxes related to any XPO Separate Return, (ii) SpinCo shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Taxes that are related to a Joint Return and for which SpinCo is responsible pursuant to Section 2.02, 2.03 or 2.04 and of Taxes related to any SpinCo Separate Return and (iii) a Company receiving a refund to which the other Company is entitled hereunder in whole or in part shall pay over such refund (or portion thereof), net of cost (including Taxes) resulting therefrom, to such other Company within 30 days after such refund is received; provided, that, with respect to any refund (or any interest thereon received from the applicable Tax Authority) of Shared Taxes or Taxes for which both Companies are liable under Section 7.05(c)(i), each Company shall be entitled to the portion of such refund that reflects its proportionate liability for such Taxes, as determined by XPO in its sole and absolute discretion. (b) SpinCo shall be entitled to any refund that is attributable to, and would not have arisen but for, a SpinCo Carryback pursuant to the proviso set forth in Section 4.08; provided, however, that SpinCo shall indemnify and hold the members of the XPO Group harmless from and against any and all collateral Tax consequences resulting from or caused by any such SpinCo Carryback as determined by XPO in its sole and absolute discretion, including (but not limited to) the loss or postponement of any benefit from the use of Tax Attributes generated by a member of the XPO Group or an Affiliate thereof if (x) such Tax Attributes expire unutilized, but would have been utilized but for such SpinCo Carryback or (y) the use of such Tax Attributes is postponed to a later Tax Period than the Tax Period in which such Tax Attributes would have been utilized but for such SpinCo Carryback. Any such payment of such refund made by XPO to SpinCo pursuant to this Section 6.01(b) shall be recalculated in light of any Final Determination (or any other facts that may arise or come to light after such payment is made, such as a carryback of an XPO Group Tax Attribute to a Tax Period in respect of which such refund is received) that would affect the amount of any Losses payable under this Article 12to which SpinCo is entitled, there and an appropriate adjusting payment shall be deducted from made by SpinCo to XPO such that the aggregate amount paid pursuant to this Section 6.01(b) equals such recalculated amount. (c) If (i) (A) a member of the SpinCo Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by clause (x) or clause (y) of Section 4.05(b), in each case, that increases Taxes for which a member of the XPO Group is liable hereunder (or reduces any Tax Attribute of a member of the XPO Group) and such Losses payable Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), or (B) a member of the XPO Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by clause (x) or clause (y) of Section 4.05(b), in each case, that increases Taxes for which a member of the Indemnified Party SpinCo Group is liable hereunder (or reduces any Tax Attribute of a member of the SpinCo Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), and (ii) the aggregate Tax Benefit realized or realizable by a member of the SpinCo Group or a member of the XPO Group, as applicable, as a result of such adjustment or reporting would reasonably be expected to exceed $1 million, then, SpinCo or XPO, as the case may be, shall make a payment to XPO or SpinCo, as appropriate, within 30 days following such actual realization of the Tax Benefit in an amount equal to any cash such Tax benefit realized or to be Benefit actually realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 cash (including any cash Tax benefit Benefit actually realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner the payment); provided, further, that no Company (or any Affiliate of any Company) shall be obligated to make a payment otherwise required pursuant to this Section 6.01(c) to the extent making such payment would place such Company (or any of its Affiliates) in any a less favorable net after-Tax position than such Company (or such Affiliate) would have been in if the Archstone Entities)relevant Tax Benefit had not been realized. If a cash Tax benefit with respect to a Loss that has been the subject Company or one of indemnification under this Article 12 is realized by an Indemnified Party in another Taxable period that ends on or prior its Affiliates pays over any amount pursuant to the three-year anniversary preceding sentence and such Tax Benefit is subsequently disallowed or adjusted, the Parties shall promptly make appropriate payments (including in respect of the date on which such Loss was incurred, then payments shall be made any interest paid or imposed by the Indemnified Party to the Indemnifying Party any Tax Authority) to reflect such disallowance or adjustment. (d) No later than 30 days after a Tax Benefit described in Section 6.01(c) is actually realized in cash by a member of the XPO Group or a member of the SpinCo Group, XPO (if a member of the XPO Group actually realizes such Tax benefit at Benefit) or SpinCo (if a member of the time SpinCo Group actually realizes such Tax Benefit) shall provide the other Company with a written calculation of realizationthe amount payable to such other Company by XPO or SpinCo pursuant to this Section 6. In the event there are that XPO or SpinCo disagrees with any indemnity payments required under such calculation described in this Article 12Section 6.01(d), XPO or SpinCo shall so notify the other Company in writing within 30 days of receiving the written calculation set forth above in this Section 6.01(d). XPO and SpinCo shall endeavor in good faith to resolve such disagreement, and, failing that, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party payable under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit 6 shall be considered determined in accordance with the provisions of Section 14 as promptly as practicable. (e) Any Party that realizes a Tax Benefit generated under an agreement pursuant to have been realized with respect to which the beneficial interests owned directly or indirectly by applicable advisor is compensated on a contingency fee basis is responsible for such contingency fee, regardless of the REITParty that executed such agreement.

Tax Benefits. In calculating (a) If a member of the amount 2seventy Group realizes any Tax Benefit resulting from, attributable to or arising in connection with a Section 336(e) Election, and such Tax Benefit would not have arisen but for such election (determined on a “with and without” basis), 2seventy shall make a payment to bluebird within thirty (30) Business Days following each such realization of any Losses payable under this Article 12a Tax Benefit, there shall be deducted from any such Losses payable to the Indemnified Party in an amount equal to any cash (A) the product of (x) such Tax benefit realized or to be realized in Benefit, times (y) the same Taxable period as percentage of the period during total related Distribution Losses represented by the portion of such total Distribution Losses for which the Indemnified Party became entitled bluebird Group is responsible pursuant to indemnification with respect Section 6.3, plus (B) interest on such amount computed at the Prime Rate based on the number of days from the date of such actual realization of the Tax Benefit to the applicable Loss date of payment of such amount under this Article 12 Section 5.1; provided, however, that (including i) such payments shall be reduced by all reasonable costs incurred by the 2seventy Group to amend any cash Tax benefit Returns or other governmental filings, and (ii) if a Tax Benefit is realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification (determined on a “with respect to the applicable Loss under Article 12 and without” basis) as a result of being an equity owner in any the Archstone Entities). If audit adjustment by a cash Tax benefit with respect to tax authority for a Loss tax period that has already been completed as of the subject time of indemnification under this Article 12 is such adjustment, then, solely for purposes of determining (x) the date on which 2seventy must make a payment to bluebird in respect of such Tax Benefit, (y) the date on which 2seventy must provide the notice described in Section 5.1(b) , and (z) the date from which interest computed at the Prime Rate accrues on such amount, such Tax Benefit shall be treated as having been realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary as of the date on which the applicable tax authority issued such Loss was incurredadjustment. (b) No later than thirty (30) Business Days after a Tax Benefit described in Section 5.1 is realized by a member of the 2seventy Group, then payments 2seventy shall be made provide bluebird with notice of the amount payable to bluebird by the Indemnified Party 2seventy pursuant to the Indemnifying Party to reflect such cash Tax benefit at the time of realization. this Article V. In the event there are that bluebird disagrees with any indemnity payments required such calculation described in this Section 5.1(b), bluebird shall so notify 2seventy in writing within thirty (30) Business Days of receiving the written calculation set forth above in this Section 5.1(b). bluebird and 2seventy shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit V shall be considered to have been realized determined in accordance with respect to the beneficial interests owned directly or indirectly by the REITdisagreement resolution provisions of Article XIII as promptly as practicable.

Tax Benefits. In calculating the amount of any Losses payable under this Article 12(a) Except as set forth below, there eBay shall be deducted entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which eBay is liable hereunder, SpinCo shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which SpinCo is liable hereunder and a Company receiving a refund to which another Company is entitled hereunder in whole or in part shall pay over such Losses payable refund (or portion thereof) to such other Company within 90 days after such refund is received (together with interest computed at the Prime Rate based on the number of days from the date the refund was received to the Indemnified Party date the refund was paid over). (b) If (i) a member of the SpinCo Group actually realizes in cash any Tax Benefit as a result of (A) an adjustment pursuant to a Final Determination or reporting required by Section 4.02(b) or (c) that increases Taxes for which a member of the eBay Group is liable hereunder (or reduces any Tax Attribute of a member of the eBay Group), or (B) any income inclusion by the SpinCo Group with respect to which eBay is responsible for Federal Income Taxes pursuant to Section 2.02(b) or (c), and, in each case, such Tax Benefit would not have arisen but for such adjustment, reporting or income inclusion (determined on a “with and without” basis), or (ii) if a member of the eBay Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by Section 4.02(b) or (c) that increases Taxes for which a member of the SpinCo Group is liable hereunder (or reduces any Tax Attribute of a member of the SpinCo Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), SpinCo or eBay, as the case may be, shall make a payment to either eBay or SpinCo, as appropriate, within 90 days following such actual realization of the Tax Benefit, in an amount equal to any cash such Tax benefit realized or to be Benefit actually realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 cash (including any cash Tax benefit Benefit actually realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner the payment), plus interest on such amount computed at the Prime Rate based on the number of days from the date of such actual realization of the Tax Benefit to the date of payment of such amount under this Section 6.01(b). (c) No later than 90 days after a Tax Benefit described in Section 6.01(b) is actually realized in cash by a member of the eBay Group or a member of the SpinCo Group, eBay (if a member of the eBay Group actually realizes such Tax Benefit) or SpinCo (if a member of the SpinCo Group actually realizes such Tax Benefit) shall provide the other Company with a written calculation of the amount payable to such other Company by eBay or SpinCo pursuant to this Section 6. In the event that eBay or SpinCo disagrees with any such calculation described in this Section 6.01(c), eBay or SpinCo shall so notify the Archstone Entitiesother Company in writing within 90 days of receiving the written calculation set forth above in this Section 6.01(c). If eBay and SpinCo shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under this Section 6 shall be determined in accordance with the disagreement resolution provisions of Section 14 as promptly as practicable. (d) SpinCo shall be entitled to any refund that is attributable to, and would not have arisen but for, a cash SpinCo Carryback Item pursuant to the proviso set forth in Section 4.05; provided, however, SpinCo shall indemnify and hold the members of the eBay 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 any benefit with respect from the use of Tax Attributes generated by a member of the eBay Group or an Affiliate thereof if (x) such Tax Attributes expire unutilized, but would have been utilized but for such Carryback, or (y) the use of such Tax Attributes is postponed to a Loss that has been later Tax Period than the subject of indemnification under this Article 12 is realized by an Indemnified Party Tax Period in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurredTax Attributes would have been utilized but for such Carryback. Any such payment of such refund made by eBay to SpinCo pursuant to this Section 6.01(d) shall be recalculated in light of any Final Determination (or any other facts that may arise or come to light after such payment is made, then payments such as a carryback of an eBay Group Tax Attribute to a Tax Period in respect of which such refund is received) that would affect the amount to which SpinCo is entitled, and an appropriate adjusting payment shall be made by SpinCo to eBay such that the Indemnified Party aggregate amount paid pursuant to the Indemnifying Party to reflect this Section 6.01(d) equals such cash Tax benefit recalculated amount (with interest computed at the time of realization. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REITPrime Rate).

Tax Benefits. In calculating the amount of any Losses payable under this Article 12(a) Except as set forth below, there Valero shall be deducted entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which Valero is liable hereunder, Corner Store shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which Corner Store is liable hereunder and a Company receiving a refund to which another Company is entitled hereunder shall pay over such Losses payable refund to such other Company within 30 days after such refund is received (together with interest computed at the Prime Rate based on the number of days from the date the refund was received to the Indemnified Party date the refund was paid over). (b) If a member of the Corner Store Group actually realizes in cash any Tax Benefit as a result of an adjustment (other than an adjustment set forth in Schedule 6.01(b), as such Schedule 6.01(b) may be amended by mutual agreement by the Companies prior to the Distribution Date) pursuant to a Final Determination to any Taxes for which a member of the Valero Group is liable hereunder (or any Tax Attribute of a member of the Valero Group) and such Tax Benefit would not have arisen but for such adjustment (determined on a “with and without” basis), or if a member of the Valero Group actually realizes in cash any Tax Benefit as a result of an adjustment (other than an adjustment set forth in Schedule 6.01(b), as such Schedule 6.01(b) may be amended by mutual agreement by the Companies prior to the Distribution Date) pursuant to a Final Determination to any Taxes for which a member of the Corner Store Group is liable hereunder (or any Tax Attribute of a member of the Corner Store Group) and such Tax Benefit would not have arisen but for such adjustment (determined on a “with and without” basis), Corner Store or Valero, as the case may be, shall make a payment to either Valero or Corner Store, as appropriate, within 30 days following such actual realization of the Tax Benefit, in an amount equal to any cash such Tax benefit realized or to be Benefit actually realized in cash (including any Tax Benefit actually realized as a result of the same Taxable period payment), plus interest on such amount computed at the Prime Rate based on the number of days from the date of such actual realization of the Tax Benefit to the date of payment of such amount under this Section 6.01(b). (c) No later than 30 days after a Tax Benefit described in Section 6.01(b) is actually realized in cash by a member of the Valero Group or a member of the Corner Store Group, Valero (if a member of the Valero Group actually realizes such Tax Benefit) or Corner Store (if a member of the Corner Store Group actually realizes such Tax Benefit) shall provide the other Company with a written calculation of the amount payable to such other Company by Valero or Corner Store pursuant to this Section 6. In the event that Valero or Corner Store disagrees with any such calculation described in this Section 6.01(c), Valero or Corner Store shall so notify the other Company in writing within 30 days of receiving the written calculation set forth above in this Section 6.01(c). Valero and Corner Store shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under this Section 6 shall be determined in accordance with the disagreement resolution provisions of Section 14 as the period during which the Indemnified Party became promptly as practicable. (d) Corner Store shall be entitled to indemnification any refund that is attributable to, and would not have arisen but for, a Corner Store Carryback pursuant to the proviso set forth in Section 4.07. Any such payment of such refund made by Valero to Corner Store pursuant to this Section 6.01(d) shall be recalculated in light of any Final Determination (or any other facts that may arise or come to light after such payment is made, such as a carryback of a Valero Group Tax Attribute to a Tax Period in respect of which such refund is received) that would affect the amount to which Corner Store is entitled, and an appropriate adjusting payment shall be made by Corner Store to Valero such that the aggregate amounts paid pursuant to this Section 6.01(d) equals such recalculated amount (with interest computed at the Prime Rate). (e) Valero shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Taxes as a result of a Final Determination in respect of the Specified Tax Contest, and Corner Store shall, if it or any of its Affiliates receives such refund, pay over such refund to Valero within 30 days after such refund is received (together with interest computed at the Prime Rate based on the number of days from the date the refund was received to the date the refund was paid over and net of any Taxes imposed on Corner Store or such Affiliate with respect to the applicable Loss under this Article 12 (including any cash Tax benefit realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result receipt of being an equity owner in any the Archstone Entitiessuch refund). If a cash Tax benefit with respect to a Loss that has been the subject of indemnification under this Article 12 is realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurred, then payments shall be made by the Indemnified Party to the Indemnifying Party to reflect such cash Tax benefit at the time of realization. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REIT.

Tax Benefits. In calculating the amount of any Losses payable under this Article 12(a) Except as set forth below, there (i) New IAC shall be deducted entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which New IAC is liable hereunder, (ii) IAC shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which IAC is liable hereunder, and (iii) a Company receiving a refund to which another Company is entitled hereunder in whole or in part shall pay over such Losses payable refund (or portion thereof), net of cost (including Taxes) resulting therefrom, to such other Company within 30 days after such refund is received; it being understood that, with respect to any refund (or any interest thereon received from the applicable Tax Authority) of Taxes for which both Companies are liable under Section 7.03(c), each Company shall be entitled to the Indemnified Party portion of such refund (or interest thereon) that reflects its proportionate liability for such Taxes. (b) If (i) a member of the New Match Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by clause (x) or clause (y) of Section 4.04(b), in each case, that increases Taxes for which a member of the New IAC Group is liable hereunder (or reduces any Tax Attribute of a member of the New IAC Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), or (ii) a member of the New IAC Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by clause (x) or clause (y) of Section 4.04(b), in each case, that increases Taxes for which a member of the New Match Group is liable hereunder (or reduces any Tax Attribute of a member of the New Match Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), then, IAC or New IAC, as the case may be, shall make a payment to New IAC or IAC, as appropriate, within 30 days following such actual realization of the Tax Benefit, in an amount equal to any cash such Tax benefit realized or to be Benefit actually realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 cash (including any cash Tax benefit Benefit actually realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner the payment); provided, however, that no Company (or any Affiliates of any Company) shall be obligated to make a payment otherwise required pursuant to this Section 6.01(b) to the extent making such payment would place such Company (or any of its Affiliates) in any a less favorable net after-Tax position than such Company (or such Affiliate) would have been in if the Archstone Entities)relevant Tax Benefit had not been realized. If a Company or one of its Affiliates pays over any amount pursuant to the preceding sentence and such Tax Benefit is subsequently disallowed or adjusted, the Parties shall promptly make appropriate payments (including in respect of any interest paid or imposed by any Tax Authority) to reflect such disallowance or adjustment. (c) No later than 30 days after a Tax Benefit described in Section 6.01(b) is actually realized in cash by a member of the New IAC Group or a member of the New Match Group, New IAC (if a member of the New IAC Group actually realizes such Tax benefit Benefit) or IAC (if a member of the New Match Group actually realizes such Tax Benefit) shall provide the other Company with respect a written calculation of the amount payable to such other Company by New IAC or IAC pursuant to this Section 6. In the event that New IAC or IAC disagrees with any such calculation described in this Section 6.01(c), New IAC or IAC shall so notify the other Company in writing within 30 days of receiving the written calculation set forth above in this Section 6.01(c). New IAC and IAC shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under this Section 6 shall be determined in accordance with the provisions of Section 14 as promptly as practicable. (d) New IAC shall be entitled to any refund that is attributable to, and would not have arisen but for, a New IAC Carryback pursuant to Section 4.07. Any such payment of such refund made by IAC to New IAC pursuant to this Section 6.01(d) shall be recalculated in light of any Final Determination (or any other facts that may arise or come to light after such payment is made, such as a carryback of a New Match Group Tax Attribute to a Loss that has been the subject Tax Period in respect of indemnification under this Article 12 is realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurredrefund is received) that would affect the amount to which New IAC is entitled, then payments and an appropriate adjusting payment shall be made by New IAC to IAC such that the Indemnified Party aggregate amount paid pursuant to the Indemnifying Party this Section 6.01(d) equals such recalculated amount. (e) If (i) as a result of an adjustment pursuant to reflect such cash a Final Determination, any New Match Tax benefit at the time of realization. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis Attribute is utilized to reduce Taxes for a certification by Pre-Deconsolidation Period for which a responsible tax officer member of the amount New IAC Group would otherwise be liable hereunder, (if anyii) of such reduction in Taxes would not have arisen but for such adjustment (determined on a cash Tax benefit that would reduce “with and without” basis), and (iii) the amount of Taxes payable by any member of the New Match Group for a Post-Deconsolidation Period exceeds the amount of Taxes that otherwise would have been payable by such member of the New Match Group for such Post-Deconsolidation Period absent such utilization (determined on a “with and without” basis), then New IAC shall indemnify and hold the members of the New Match Group harmless from and against any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoingexcess Tax liability, to the extent that the Purchased Interests as, if, and when such Taxes are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REITactually incurred.

Tax Benefits. In calculating the amount of any Losses payable under this Article 12(a) Except as set forth below, there (i) New IAC shall be deducted entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which New IAC is liable hereunder, (ii) IAC shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which IAC is liable hereunder, and (iii) a Company receiving a refund to which another Company is entitled hereunder in whole or in part shall pay over such Losses payable refund (or portion thereof), net of cost (including Taxes) resulting therefrom, to such other Company within 30 days after such refund is received; it being understood that, with respect to any refund (or any interest thereon received from the applicable Tax Authority) of Taxes for which both Companies are liable under Section 7.03(c)(i), each Company shall be entitled to the Indemnified Party portion of such refund (or interest thereon) that reflects its proportionate liability for such Taxes. (b) If (i) a member of the New Match Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by clause (x) or clause (y) of Section 4.04(b), in each case, that increases Taxes for which a member of the New IAC Group is liable hereunder (or reduces any Tax Attribute of a member of the New IAC Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), or (ii) a member of the New IAC Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by clause (x) or clause (y) of Section 4.04(b), in each case, that increases Taxes for which a member of the New Match Group is liable hereunder (or reduces any Tax Attribute of a member of the New Match Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), then, IAC or New IAC, as the case may be, shall make a payment to New IAC or IAC, as appropriate, within 30 days following such actual realization of the Tax Benefit, in an amount equal to any cash such Tax benefit realized or to be Benefit actually realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 cash (including any cash Tax benefit Benefit actually realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner the payment); provided, however, that no Company (or any Affiliates of any Company) shall be obligated to make a payment otherwise required pursuant to this Section 6.01(b) to the extent making such payment would place such Company (or any of its Affiliates) in any a less favorable net after-Tax position than such Company (or such Affiliate) would have been in if the Archstone Entities)relevant Tax Benefit had not been realized. If a Company or one of its Affiliates pays over any amount pursuant to the preceding sentence and such Tax Benefit is subsequently disallowed or adjusted, the Parties shall promptly make appropriate payments (including in respect of any interest paid or imposed by any Tax Authority) to reflect such disallowance or adjustment. (c) No later than 30 days after a Tax Benefit described in Section 6.01(b) is actually realized in cash by a member of the New IAC Group or a member of the New Match Group, New IAC (if a member of the New IAC Group actually realizes such Tax benefit Benefit) or IAC (if a member of the New Match Group actually realizes such Tax Benefit) shall provide the other Company with respect a written calculation of the amount payable to such other Company by New IAC or IAC pursuant to this Section 6. In the event that New IAC or IAC disagrees with any such calculation described in this Section 6.01(c), New IAC or IAC shall so notify the other Company in writing within 30 days of receiving the written calculation set forth above in this Section 6.01(c). New IAC and IAC shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under this Section 6 shall be determined in accordance with the provisions of Section 14 as promptly as practicable. (d) New IAC shall be entitled to any refund that is attributable to, and would not have arisen but for, a New IAC Carryback pursuant to Section 4.07. Any such payment of such refund made by IAC to New IAC pursuant to this Section 6.01(d) shall be recalculated in light of any Final Determination (or any other facts that may arise or come to light after such payment is made, such as a carryback of a New Match Group Tax Attribute to a Loss that has been the subject Tax Period in respect of indemnification under this Article 12 is realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurredrefund is received) that would affect the amount to which New IAC is entitled, then payments and an appropriate adjusting payment shall be made by New IAC to IAC such that the Indemnified Party aggregate amount paid pursuant to the Indemnifying Party this Section 6.01(d) equals such recalculated amount. (e) If (i) as a result of an adjustment pursuant to reflect such cash a Final Determination, any New Match Tax benefit at the time of realization. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis Attribute is utilized to reduce Taxes for a certification by Pre-Deconsolidation Period for which a responsible tax officer member of the amount New IAC Group would otherwise be liable hereunder, (if anyii) of such reduction in Taxes would not have arisen but for such adjustment (determined on a cash Tax benefit that would reduce “with and without” basis), and (iii) the amount of Taxes payable by any member of the New Match Group for a Post-Deconsolidation Period exceeds the amount of Taxes that otherwise would have been payable by such member of the New Match Group for such Post-Deconsolidation Period absent such utilization (determined on a “with and without” basis), then New IAC shall indemnify and hold the members of the New Match Group harmless from and against any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoingexcess Tax liability, to the extent that the Purchased Interests as, if, and when such Taxes are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REITactually incurred.

Tax Benefits. In calculating the amount of any Losses payable under this Article 12(a) Except as set forth below, there Parent shall be deducted entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which Parent is liable hereunder, Enova shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which Enova is liable hereunder and a Company receiving a refund to which another Company is entitled hereunder shall pay over such Losses payable refund to such other Company within 30 days after such refund is received (together with interest computed in accordance with Section 15). (b) If a member of the Indemnified Party Enova Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination to any Taxes for which a member of the Parent Group is liable hereunder (or to any Tax Attribute of a member of the Parent Group) and such Tax Benefit would not have arisen but for such adjustment (determined on a “with and without” basis), or if a member of the Parent Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination to any Taxes for which a member of the Enova Group is liable hereunder (or to any Tax Attribute of a member of the Enova Group) and such Tax Benefit would not have arisen but for such adjustment (determined on a “with and without” basis), Enova or Parent, as the case may be, shall make a payment to either Parent or Enova, as appropriate, within 30 days following such actual realization of the Tax Benefit, in an amount equal to any cash such Tax benefit realized or to be Benefit actually realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 cash (including any cash Tax benefit Benefit actually realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner the payment), plus interest on such amount computed in accordance with Section 15 based on the number of days from the date of such actual realization of the Tax Benefit to the date of payment of such amount under this Section 6.01(b). (c) No later than 30 days after a Tax Benefit described in Section 6.01(b) is actually realized in cash by a member of the Parent Group or a member of the Enova Group, Parent (if a member of the Parent Group actually realizes such Tax Benefit) or Enova (if a member of the Enova Group actually realizes such Tax Benefit) shall provide the other Company with a written calculation of the amount payable to such other Company by Parent or Enova pursuant to this Section 6. In the event that Parent or Enova disagrees with any such calculation described in this Section 6.01(c), Parent or Enova shall so notify the Archstone Entitiesother Company in writing within 30 days of receiving the written calculation set forth above in this Section 6.01(c). If Parent and Enova shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under this Section 6 shall be determined in accordance with the disagreement resolution provisions of Section 14 as promptly as practicable. (d) Enova shall be entitled to any refund that is attributable to, and would not have arisen but for, an Enova Carryback pursuant to the proviso set forth in Section 4.07. Any such payment of such refund made by Parent to Enova pursuant to this Section 6.01(d) shall be recalculated in light of any Final Determination (or any other facts that may arise or come to light after such payment is made, such as a cash carryback of a Parent Group Tax benefit with respect Attribute to a Loss that has been the subject Tax Period in respect of indemnification under this Article 12 is realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurredrefund is received) that would affect the amount to which Enova is entitled, then payments and an appropriate adjusting payment shall be made by Enova to Parent such that the Indemnified Party aggregate amounts paid pursuant to the Indemnifying Party to reflect this Section 6.01(d) equals such cash Tax benefit at the time of realization. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the recalculated amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this with interest computed in accordance with Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REIT15).

Tax Benefits. In calculating the amount of any Losses payable under this Article 12(a) Except as set forth below, there EPC shall be deducted entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which EPC is liable hereunder, SpinCo shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which SpinCo is liable hereunder, and a Company receiving a refund to which another Company is entitled hereunder in whole or in part shall pay over such Losses payable refund (or portion thereof) to such other Company within 30 days after such refund is received (together with interest computed at the Prime Rate based on the number of days from the date the refund was received to the Indemnified Party date the refund was paid over); provided, however, that no such interest shall become due and payable if such refund is paid over within 30 days after such refund is received. (b) If a member of the SpinCo Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by Section 4.04(b) that increases Taxes for which a member of the EPC Group is liable hereunder (or reduces any Tax Attribute of a member of the EPC Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), or if a member of the EPC Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by Section 4.04(b) that increases Taxes for which a member of the SpinCo Group is liable hereunder (or reduces any Tax Attribute of a member of the SpinCo Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), SpinCo or EPC, as the case may be, shall make a payment to either EPC or SpinCo, as appropriate, within 30 days following such actual realization of the Tax Benefit, in an amount equal to any cash such Tax benefit realized or to be Benefit actually realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 cash (including any cash Tax benefit Benefit actually realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner the payment), plus interest on such amount computed at the Prime Rate based on the number of days from the date of such actual realization of the Tax Benefit to the date of payment of such amount under this Section 6.01(b); provided, however, that no such interest shall become due and payable if such payment is made within 30 days of actual realization of the Tax Benefit. (c) No later than 30 days after a Tax Benefit described in Section 6.01(b) is actually realized in cash by a member of the EPC Group or a member of the SpinCo Group, EPC (if a member of the EPC Group actually realizes such Tax Benefit) or SpinCo (if a member of the SpinCo Group actually realizes such Tax Benefit) shall provide the other Company with a written calculation of the amount payable to such other Company by EPC or SpinCo pursuant to this Section 6. In the event that EPC or SpinCo disagrees with any such calculation described in this Section 6.01(c), EPC or SpinCo shall so notify the Archstone Entitiesother Company in writing within 30 days of receiving the written calculation set forth above in this Section 6.01(c). If EPC and SpinCo shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under this Section 6 shall be determined in accordance with the disagreement resolution provisions of Section 14 as promptly as practicable. (d) SpinCo shall be entitled to any refund that is attributable to, and would not have arisen but for, a cash SpinCo Carryback pursuant to the proviso set forth in Section 4.07; provided, however, SpinCo shall indemnify and hold the members of the EPC 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 any benefit with respect from the use of Tax Attributes generated by a member of the EPC Group or an Affiliate thereof if (x) such Tax Attributes expire unutilized, but would have been utilized but for such Carryback, or (y) the use of such Tax Attributes is postponed to a Loss that has been later taxable period than the subject of indemnification under this Article 12 is realized by an Indemnified Party taxable period in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurredTax Attributes would have been utilized but for such Carryback. Any such payment of such refund made by EPC to SpinCo pursuant to this Section 6.01(d) shall be recalculated in light of any Final Determination (or any other facts that may arise or come to light after such payment is made, then payments such as a carryback of an EPC Group Tax Attribute to a Tax Period in respect of which such refund is received) that would affect the amount to which SpinCo is entitled, and an appropriate adjusting payment shall be made by SpinCo to EPC such that the Indemnified Party aggregate amount paid pursuant to the Indemnifying Party to reflect this Section 6.01(d) equals such cash Tax benefit recalculated amount (with interest computed at the time of realization. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REITPrime Rate).

Tax Benefits. In calculating the amount of any Losses payable under this Article 12(a) Except as set forth below, there (i) IAC shall be deducted entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which IAC is liable hereunder, (ii) SpinCo shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which SpinCo is liable hereunder, and (iii) a Company receiving a refund to which another Company is entitled hereunder in whole or in part shall pay over such Losses payable refund (or portion thereof), net of cost (including Taxes) resulting therefrom, to such other Company within 30 days after such refund is received; it being understood that, with respect to any refund (or interest thereon received from the applicable Tax Authority) of Taxes for which both Companies are liable under Section 7.05(c)(i), each Company shall be entitled to the Indemnified Party portion of such refund (or interest thereon) that reflects its proportionate liability for such Taxes. (b) If (i) a member of the SpinCo Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by clause (x) or clause (y) of Section 4.04(b), in each case, that increases Taxes for which a member of the IAC Group is liable hereunder (or reduces any Tax Attribute of a member of the IAC Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis) or (ii) a member of the IAC Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by clause (x) or clause (y) of Section 4.04(b) that increases Taxes for which a member of the SpinCo Group is liable hereunder (or reduces any Tax Attribute of a member of the SpinCo Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), then, SpinCo or IAC, as the case may be, shall make a payment to IAC or SpinCo, as appropriate, within 30 days following such actual realization of the Tax Benefit, in an amount equal to any cash such Tax benefit realized or to be Benefit actually realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 cash (including any cash Tax benefit Benefit actually realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner the payment); provided, however, that no Company (or any Affiliates of any Company) shall be obligated to make a payment otherwise required pursuant to this Section 6.01(b) to the extent making such payment would place such Company (or any of its Affiliates) in any a less favorable net after-Tax position than such Company (or such Affiliate) would have been in if the Archstone Entities)relevant Tax Benefit had not been realized. If a Company or one of its Affiliates pays over any amount pursuant to the preceding sentence and such Tax Benefit is subsequently disallowed or adjusted, the Parties shall promptly make appropriate payments (including in respect of any interest paid or imposed by any Tax Authority) to reflect such disallowance or adjustment. (c) No later than 30 days after a Tax Benefit described in Section 6.01(b) is actually realized in cash by a member of the IAC Group or a member of the SpinCo Group, IAC (if a member of the IAC Group actually realizes such Tax Benefit) or SpinCo (if a member of the SpinCo Group actually realizes such Tax Benefit) shall provide the other Company with a written calculation of the amount payable to such other Company by IAC or SpinCo pursuant to this Section 6. In the event that IAC or SpinCo disagrees with any such calculation described in this Section 6.01(c), IAC or SpinCo shall so notify the other Company in writing within 30 days of receiving the written calculation set forth above in this Section 6.01(c). IAC and SpinCo shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under this Section 6 shall be determined in accordance with the provisions of Section 14 as promptly as practicable. (d) SpinCo shall be entitled to any refund that is attributable to, and would not have arisen but for, a SpinCo Carryback pursuant to the proviso set forth in Section 4.07; provided, however, that SpinCo shall indemnify and hold the members of the IAC 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 any benefit with respect from the use of Tax Attributes generated by a member of the IAC Group or an Affiliate thereof if (x) such Tax Attributes expire unutilized, but would have been utilized but for such Carryback, or (y) the use of such Tax Attributes is postponed to a Loss that has been later Tax Period than the subject of indemnification under this Article 12 is realized by an Indemnified Party Tax Period in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurredTax Attributes would have been utilized but for such Carryback. Any such payment of such refund made by IAC to SpinCo pursuant to this Section 6.01(d) shall be recalculated in light of any Final Determination (or any other facts that may arise or come to light after such payment is made, then payments such as a carryback of an IAC Group Tax Attribute to a Tax Period in respect of which such refund is received) that would affect the amount to which SpinCo is entitled, and an appropriate adjusting payment shall be made by SpinCo to IAC such that the Indemnified Party aggregate amount paid pursuant to the Indemnifying Party to reflect such cash Tax benefit at the time of realization. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REIT6.01(d) equals such recalculated amount.

Tax Benefits. In calculating the amount of any Losses payable under this Article 12(a) Except as set forth below, there SYNNEX shall be deducted entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes (or the applicable portion thereof) for which SYNNEX is liable hereunder, Concentrix shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes (or the applicable portion thereof) for which Concentrix is liable hereunder, and a Party receiving a refund to which another Party is entitled hereunder in whole or in part shall pay over such Losses payable refund (or portion thereof) to such other Party within 45 days after such refund is received (together with interest computed at the Prime Rate based on the number of days from the date the refund was received to the Indemnified Party date the refund was paid over). (b) If (i) a member of the Concentrix Group actually realizes in cash any Tax Benefit as a result of (A) an adjustment pursuant to a Final Determination or reporting required by Section 4.02(b) or (c) that increases Taxes for which a member of the SYNNEX Group is liable hereunder (or reduces any Tax Attribute of a member of the SYNNEX Group), or (B) any income inclusion by the Concentrix Group with respect to which SYNNEX is responsible for Taxes pursuant to Section 2.02(b) or (c), and, in each case, such Tax Benefit would not have arisen but for such adjustment, reporting or income inclusion (determined on a “with and without” basis), or (ii) if a member of the SYNNEX Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by Section 4.02(b) or (c) that increases Taxes for which a member of the Concentrix Group is liable hereunder (or reduces any Tax Attribute of a member of the Concentrix Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), Concentrix or SYNNEX, as the case may be, shall make a payment to either SYNNEX or Concentrix, as appropriate, within 45 days following such actual realization of the Tax Benefit, in an amount equal to any cash such Tax benefit realized or to be Benefit actually realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 cash (including any cash Tax benefit Benefit actually realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner in any the Archstone Entitiespayment). If a cash , plus interest on such amount computed at the Prime Rate based on the number of days from the date of such actual realization of the Tax benefit with respect Benefit to a Loss that has been the subject date of indemnification payment of such amount under this Article 12 Section 6.01(b). (c) No later than 45 days after a Tax Benefit described in Section 6.01(b) is actually realized in cash by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary a member of the date on which SYNNEX Group or a member of the Concentrix Group, SYNNEX (if a member of the SYNNEX Group actually realizes such Loss was incurred, then payments Tax Benefit) or Concentrix (if a member of the Concentrix Group actually realizes such Tax Benefit) shall be made provide the other Party with a written calculation of the amount payable to such other Party by the Indemnified Party SYNNEX or Concentrix pursuant to the Indemnifying Party to reflect such cash Tax benefit at the time of realizationthis Section 6. In the event there are that SYNNEX or Concentrix disagrees with any indemnity payments required under such calculation described in this Article 12Section 6.01(c), SYNNEX or Concentrix shall so notify the other Party in writing within 45 days of receiving the written calculation set forth above in this Section 6.01(c). SYNNEX and Concentrix shall endeavor in good faith to resolve such disagreement, and, failing that, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party payable under this Section 12.8. In applying 6 shall be determined in accordance with the foregoingdispute resolution provisions of Section 14 as promptly as practicable. (d) Concentrix shall be entitled to any refund that is attributable to, and would not have arisen but for, a Concentrix Carryback Item pursuant to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes proviso set forth in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REIT.Section

Tax Benefits. In calculating (a) Except as set forth below, (i) XPO shall be entitled to any refund (and any interest thereon received from the amount applicable Tax Authority) of (A) Income Taxes and Other Taxes for which XPO is liable hereunder (except as otherwise provided in clause (ii)(A)) and (B) Foreign Income Taxes reported on any Tax Return for a Tax Period ending on or prior to (or including) the Deconsolidation Date to the extent such refund results in a disallowance or adjustment of any Losses payable under this Article 12, there shall be deducted from foreign Tax credit claimed by the XPO Group (and any such Losses interest payable to the Indemnified Party applicable Tax Authority as a result of such disallowance or adjustment), (ii) SpinCo shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) (A) to the extent such refund arises as a result of any adjustment pursuant to a Final Determination of any item of income, gain, loss, deduction or credit on any XPO Federal Consolidated Income Tax Return, XPO State Combined Income Tax Return or XPO Foreign Combined Income Tax Return, in each case, that is attributable (as reasonably determined by XPO) to members of the SpinCo Group and (B) of any other Income Taxes and Other Taxes for which SpinCo is liable hereunder, and (iii) a Company receiving a refund to which another Company is entitled hereunder in whole or in part shall pay over such refund (or portion thereof), net of cost (including Taxes) resulting therefrom, to such other Company within 30 days after such refund is received; it being understood that, with respect to any refund (or any interest thereon received from the applicable Tax Authority) of Shared Taxes or Taxes for which both Companies are liable under Section 7.05(c)(i), each Company shall be entitled to the portion of such refund that reflects its proportionate liability for such Taxes. (b) If (i) (A) a member of the SpinCo Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by clause (x) or clause (y) of Section 4.05(b), in each case, that increases Taxes for which a member of the XPO Group is liable hereunder (or reduces any Tax Attribute of a member of the XPO Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), or (B) a member of the XPO Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination or reporting required by clause (x) or clause (y) of Section 4.05(b), in each case, that increases Taxes for which a member of the SpinCo Group is liable hereunder (or reduces any Tax Attribute of a member of the SpinCo Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), and (ii) the aggregate Tax Benefit realized or realizable by a member of the SpinCo Group or a member of the XPO Group, as applicable, as a result of such adjustment or reporting would reasonably be expected to exceed $1 million, then, SpinCo or XPO, as the case may be, shall make a payment to XPO or SpinCo, as appropriate, within 30 days following such actual realization of the Tax Benefit, in an amount equal to any cash such Tax benefit realized or to be Benefit actually realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 cash (including any cash Tax benefit Benefit actually realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner the payment); provided, further, that no Company (or any Affiliates of any Company) shall be obligated to make a payment otherwise required pursuant to this Section 6.01(b) to the extent making such payment would place such Company (or any of its Affiliates) in any a less favorable net after-Tax position than such Company (or such Affiliate) would have been in if the Archstone Entities)relevant Tax Benefit had not been realized. If a Company or one of its Affiliates pays over any amount pursuant to the preceding sentence and such Tax Benefit is subsequently disallowed or adjusted, the Parties shall promptly make appropriate payments (including in respect of any interest paid or imposed by any Tax Authority) to reflect such disallowance or adjustment. (c) No later than 30 days after a Tax Benefit described in Section 6.01(b) is actually realized in cash by a member of the XPO Group or a member of the SpinCo Group, XPO (if a member of the XPO Group actually realizes such Tax Benefit) or SpinCo (if a member of the SpinCo Group actually realizes such Tax Benefit) shall provide the other Company with a written calculation of the amount payable to such other Company by XPO or SpinCo pursuant to this Section 6. In the event that XPO or SpinCo disagrees with any such calculation described in this Section 6.01(c), XPO or SpinCo shall so notify the other Company in writing within 30 days of receiving the written calculation set forth above in this Section 6.01(c). XPO and SpinCo shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under this Section 6 shall be determined in accordance with the provisions of Section 14 as promptly as practicable. (d) SpinCo shall be entitled to any refund that is attributable to, and would not have arisen but for, a SpinCo Carryback pursuant to the proviso set forth in Section 4.08; provided, however, that SpinCo shall indemnify and hold the members of the XPO Group harmless from and against any and all collateral Tax consequences resulting from or caused by any such SpinCo Carryback, including (but not limited to) the loss or postponement of any benefit with respect from the use of Tax Attributes generated by a member of the XPO Group or an Affiliate thereof if (x) such Tax Attributes expire unutilized, but would have been utilized but for such SpinCo Carryback, or (y) the use of such Tax Attributes is postponed to a Loss that has been later Tax Period than the subject of indemnification under this Article 12 is realized by an Indemnified Party Tax Period in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurredTax Attributes would have been utilized but for such SpinCo Carryback. Any such payment of such refund made by XPO to SpinCo pursuant to this Section 6.01(d) shall be recalculated in light of any Final Determination (or any other facts that may arise or come to light after such payment is made, then payments such as a carryback of a XPO Group Tax Attribute to a Tax Period in respect of which such refund is received) that would affect the amount to which SpinCo is entitled, and an appropriate adjusting payment shall be made by SpinCo to XPO such that the Indemnified Party aggregate amount paid pursuant to the Indemnifying Party to reflect such cash Tax benefit at the time of realization. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REIT6.01(d) equals such recalculated amount.

Tax Benefits. In calculating (a) Buyer agrees to pay to Seller any Tax Benefit received by any Company, any Subsidiary of such Company, Buyer or any Affiliate of Buyer from the use in any Post-Effective Date Tax Period of a carryforward of any Tax Asset of such Company or any Subsidiary of such Company from a Pre-Effective Date Tax Period. Such Tax Benefit shall be considered equal to the excess of (i) the amount of Taxes that would have been payable by any Losses Company, any Subsidiary of such Company, Buyer or any Affiliate of Buyer over (ii) the amount of Taxes actually payable under this Article 12by such Company, any Subsidiary of such Company, Buyer or any Affiliate of Buyer. Payment of the amount of such Tax Benefit shall be made within 90 days of the filing of the applicable Tax Return for the taxable year in which the Tax Asset is utilized. If, subsequent to the payment by Buyer to Seller of any such amount, there shall be deducted from any such Losses payable to (A) a Final Determination which results in a disallowance or a reduction of the Indemnified Party an amount equal to any cash Tax benefit realized Asset so carried forward or to be realized (B) a reduction in the same Taxable period as amount of the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 (including Tax Benefit realized by any cash Tax benefit realized Company, any Subsidiary of such Company, Buyer or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 any Affiliate of Buyer as a result of being any other Tax Asset that arises in a Post-Effective Date Tax Period, Seller shall repay to Buyer, within 90 days of such event described in clause (A) or (B) (an equity owner in any the Archstone Entities). If a cash Tax benefit with respect to a Loss that has been the subject of indemnification under this Article 12 is realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurred“Event” or, then payments shall be made by the Indemnified Party to the Indemnifying Party to reflect such cash Tax benefit at the time of realization. In the event there are any indemnity payments required under this Article 12collectively, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the “Events”), any amount (if anywhich would not have been payable to Seller pursuant to this Section 6.05(a) of a cash Tax benefit that would reduce had the amount of any such indemnity payments the Tax Benefit been determined in light of the Events. (b) Any amount paid to or give rise to an obligation to make a payment to the Indemnifying Party by Seller under this Section 12.86.05 will be treated as an adjustment to the Purchase Price unless a Final Determination causes any such amount to not constitute an adjustment to the Purchase Price for Tax purposes. In applying such event, Buyer or Seller, as the foregoingcase may be, shall pay an amount that reflects the hypothetical Tax consequences of the receipt or accrual of such payment, using the maximum statutory rate (or rates, in the case of an item that affects more than one Tax) applicable to the extent that recipient of such payment for the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership relevant year, reflecting, for U.S. federal income Tax purposes in which a REIT owns, directly or indirectlyexample, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly effect of deductions available for interest paid or indirectly by the REITaccrued and Taxes such as state and local income Taxes.

Tax Benefits. In calculating the amount of any Losses payable under this Article 12(a) Except as set forth below, there EPC shall be deducted entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which EPC is liable hereunder, SpinCo shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which SpinCo is liable hereunder, and a Company receiving a refund to which another Company is entitled hereunder in whole or in part shall pay over such Losses payable refund (or portion thereof) to such other Company within 30 days after such refund is received (together with interest computed at the Prime Rate based on the number of days from the date the refund was received to the Indemnified Party date the refund was paid over); provided, however, that no such interest shall become due and payable if such refund is paid over within 30 days after such refund is received. (b) If a member of the SpinCo Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination to any Taxes (or any Taxes resulting from reporting required by Section 4.04(b)) for which a member of the EPC Group is liable hereunder (or any Tax Attribute of a member of the EPC Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), or if a member of the EPC Group actually realizes in cash any Tax Benefit as a result of an adjustment pursuant to a Final Determination to any Taxes (or any Taxes resulting from reporting required by Section 4.04(b)) for which a member of the SpinCo Group is liable hereunder (or any Tax Attribute of a member of the SpinCo Group) and such Tax Benefit would not have arisen but for such adjustment or reporting (determined on a “with and without” basis), SpinCo or EPC, as the case may be, shall make a payment to either EPC or SpinCo, as appropriate, within 30 days following such actual realization of the Tax Benefit, in an amount equal to any cash such Tax benefit realized or to be Benefit actually realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 cash (including any cash Tax benefit Benefit actually realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner the payment), plus interest on such amount computed at the Prime Rate based on the number of days from the date of such actual realization of the Tax Benefit to the date of payment of such amount under this Section 6.01(b); provided, however, that no such interest shall become due and payable if such payment is made within 30 days of actual realization of the Tax Benefit. (c) No later than 30 days after a Tax Benefit described in Section 6.01(b) is actually realized in cash by a member of the EPC Group or a member of the SpinCo Group, EPC (if a member of the EPC Group actually realizes such Tax Benefit) or SpinCo (if a member of the SpinCo Group actually realizes such Tax Benefit) shall provide the other Company with a written calculation of the amount payable to such other Company by EPC or SpinCo pursuant to this Section 6. In the event that EPC or SpinCo disagrees with any such calculation described in this Section 6.01(c), EPC or SpinCo shall so notify the Archstone Entitiesother Company in writing within 30 days of receiving the written calculation set forth above in this Section 6.01(c). If EPC and SpinCo shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under this Section 6 shall be determined in accordance with the disagreement resolution provisions of Section 14 as promptly as practicable. (d) SpinCo shall be entitled to any refund that is attributable to, and would not have arisen but for, a cash SpinCo Carryback pursuant to the proviso set forth in Section 4.07; provided, however, SpinCo shall indemnify and hold the members of the EPC 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 any benefit with respect from the use of Tax Attributes generated by a member of the EPC Group or an Affiliate thereof if (x) such Tax Attributes expire unutilized, but would have been utilized but for such Carryback, or (y) the use of such Tax Attributes is postponed to a Loss that has been later taxable period than the subject of indemnification under this Article 12 is realized by an Indemnified Party taxable period in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurredTax Attributes would have been utilized but for such Carryback. Any such payment of such refund made by EPC to SpinCo pursuant to this Section 6.01(d) shall be recalculated in light of any Final Determination (or any other facts that may arise or come to light after such payment is made, then payments such as a carryback of an EPC Group Tax Attribute to a Tax Period in respect of which such refund is received) that would affect the amount to which SpinCo is entitled, and an appropriate adjusting payment shall be made by SpinCo to EPC such that the Indemnified Party aggregate amount paid pursuant to the Indemnifying Party to reflect this Section 6.01(d) equals such cash Tax benefit recalculated amount (with interest computed at the time of realization. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REITPrime Rate).

Tax Benefits. (a) Borrower shall maintain (subject to matters beyond its control such as changes in the applicable laws eliminating the benefits provided) pursuant to Section 421-a of the New York Real Property Tax Law, Chapter 6, Title 28 of the Rules of the City of New York, and all other applicable Legal Requirements, a partial exemption of the residential portion of the Improvements from New York real estate taxes for a ten (10) year period commencing after the completion of construction of the Improvements as described in Section 6-02(d)(1) of the Rules of the City of New York (the "421-A TAX BENEFITS"), as contemplated in the 421-a Negotiable Certificates and the written agreement pursuant to which the same were issued. In calculating connection therewith, Borrower shall construct the amount of any Losses payable under this Article 12, there shall Improvements to be deducted from any such Losses payable in compliance with the Legal Requirements applicable to the Indemnified Party an amount equal 421-a Tax Benefits. (b) Borrower shall not assign any of the 421-a Negotiable Certificates, or surrender, cancel, modify in any material respect, or transfer, or permit the surrender, cancellation, modification in any material respect, revocation or transfer of, the 421-a Tax Benefits, provided that Borrower shall have the right to any cash Tax benefit realized sell a portion the 421-a Negotiable -100- Certificates which exceed the number of 421-a Negotiable Certificates that Borrower needs in order to maintain a partial exemption of the entire residential portion of the Improvements from New York real estate taxes for a ten (10) year period commencing after the completion of the Improvements. (c) On or before the Closing Date, Residential Owner shall deliver to be realized Agent the 421-a Negotiable Certificates together with a duly executed assignment in blank of the same Taxable period as the period during which the Indemnified Party became entitled in form and substance reasonably satisfactory to indemnification with respect to the applicable Loss under this Article 12 (including any cash Tax benefit realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner in any the Archstone Entities). If a cash Tax benefit with respect to a Loss that has been the subject of indemnification under this Article 12 is realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurred, then payments shall be made by the Indemnified Party to the Indemnifying Party to reflect such cash Tax benefit at the time of realizationAgent. In the event there are any indemnity payments required under this Article 12that after the 421-a Negotiable Certificates have been delivered to Agent pursuant to the terms hereof, the Indemnified Party Borrower shall provide on an annual basis a certification by a responsible tax officer require possession of the amount (if any) of a cash Tax benefit that would reduce Certificates in order to effectuate the amount of any such indemnity payments or give rise purposes for which the same are intended, Agent shall redeliver the Certificates to an obligation Borrower's counsel pursuant to make a payment escrow instructions reasonably satisfactory to the Indemnifying Party under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes Agent in which such escrow holder recognizes Agents and (subject also to Section 4.1.38) Lenders interests in such Certificates and agrees to hold the same in accordance with said instructions for the benefit of Agent and Lenders. (d) Borrower shall notify Agent of the modification in any material respect, revocation of or failure to maintain any 421-a REIT owns, directly Negotiable Certificate or indirectly, any of the beneficial interests, then no 421-a Tax benefit Benefits within five (5) Business Days after Borrower obtains knowledge thereof. Borrower's notice to Agent shall be considered include a statement setting forth details of the occurrence referred to have been realized therein and stating what action Borrower proposes to take with respect thereto. Borrower shall deliver to Agent any material notices received or sent by Borrower or the City of New York or any other party with respect to any 421-a Negotiable Certificate or any of the beneficial interests owned directly 421-a Tax Benefits within five (5) Business Days after Borrower receives or indirectly by concurrently with Borrower's sending the REITsame.

Tax Benefits. If the amount with respect to which any claim is ------------ made under this Article 10 (an "Indemnity Claim") gives rise to a Tax Benefit --------------- (as defined below) the indemnity payment shall be reduced by the amount of the Tax Benefit. For the purposes of this Agreement, any Tax Benefit shall be treated as though it were a reduction in the amount of the initial Indemnity Claim, and the liabilities of the parties shall be redetermined as though both occurred at or prior to the time of the indemnity payment. For purposes of this Section 10.7, a "Tax Benefit" means an amount by which the tax liability of a party subject to the highest effective marginal combined Federal and state income tax prescribed for a corporation resident in New York State (but not in New York City) would be reduced by use of such benefit assuming such benefit could be fully currently realized (including, without limitation, by deduction, entitlement to refund, credit or otherwise) plus any related interest received from the relevant taxing authority; provided, however, that any Tax Benefit that would result in a reduction of income by virtue of increased tax basis which must be depreciated or amortized over more than one taxable year shall be equal to the Present Value of such Tax Benefit. For purposes of the preceding sentence, "Present Value" shall mean the sum of the deductions generated by a Tax Benefit; provided that each such deduction will be discounted at the rate of 10% per annum from the year or years in which each such deduction would be realized using the applicable Company's actual method of depreciation or amortization to the year of payment. In calculating the event that there should be a determination disallowing the Tax Benefit, the indemnifying party shall be liable to refund to the indemnified party the amount of any Losses payable under related reduction previously allowed or payments previously made to the indemnifying party pursuant to this Article 12, there Section 10.7. The amount of the refunded reduction or payment shall be deducted from any such Losses payable to the Indemnified Party an amount equal to any cash Tax benefit realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 (including any cash Tax benefit realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner in any the Archstone Entities). If a cash Tax benefit with respect to a Loss that has been the subject of indemnification under this Article 12 is realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurred, then payments shall be made by the Indemnified Party to the Indemnifying Party to reflect such cash Tax benefit at the time of realization. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make deemed a payment to the Indemnifying Party under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit 10.7 and thus shall be considered paid subject to have been realized with respect to the beneficial interests owned directly or indirectly by the REITany applicable reductions under this Section 10.7.

Tax Benefits. ANC agrees that it will not take any tax deduction or claim any other Tax benefit in respect of any Assumed Liability paid by Pechiney Plastics. In calculating the event that Pechiney Plastics pays any Assumed Liability and ANC derives a net Tax benefit from such payment, then ANC shall pay Pechiney Plastics the amount of any Losses payable under this Article 12, there shall be deducted from any such Losses payable to the Indemnified Party an amount equal to any cash net Tax benefit actually realized or to be realized in by ANC arising from the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 (including any cash payment by Pechiney Plastics within 30 days after such Tax benefit realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner in any the Archstone Entities). If a cash Tax benefit with respect to a Loss that has been the subject of indemnification under this Article 12 is actually realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurred, then payments shall be made by the Indemnified Party to the Indemnifying Party to reflect such cash Tax benefit at the time of realizationANC. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce computing the amount of any such indemnity payments Tax benefit, ANC shall be deemed to recognize all other items of loss, deduction or give rise to credit before recognizing any item arising from the payment of an obligation to make a payment to the Indemnifying Party under Assumed Liability. For purposes of this Section 12.8. In applying the foregoing9.04, ANC shall be deemed to have "actually realized" a net Tax benefit to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT ownsthat, directly or indirectlyand at such time as, the beneficial interestsamount of Taxes payable (including Taxes payable on an estimated basis) by ANC is reduced below the amount of Taxes that ANC would be required to pay but for the payment of such Assumed Liability. If any payments are made pursuant to this Section 9.04 and the amount of such payment required by this Section 9.04 would have been different if the computation of such payment were made at a later time (because of final settlements or final dispositions of audit adjustments, administrative or judicial proceedings, amended returns, the execution of Form 870- AD or successor forms or other reasons), then no Tax benefit the amount of such payment shall be considered to have been realized with respect recomputed by ANC and Pechiney Plastics at such later time by taking into account such subsequent events and the parties shall make an adjusting payment between each other as is appropriate because of such recomputation within 15 business days of their agreement as to the beneficial interests owned directly amount of such adjusting payment. For purposes of this Section 9.04, references to ANC or indirectly by Pechiney Plastics shall include any subsidiary of ANC or Pechiney Plastics (as the REITcase may be) and any group which has ANC or Pechiney Plastics (as the case may be) or any such subsidiary as a member and that files a Tax return on a combined, consolidated or unitary basis.

Tax Benefits. In calculating the amount of any Losses payable under this Article 12(a) Except as set forth below, there Motorola shall be deducted entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which Motorola is liable hereunder, SpinCo shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which SpinCo is liable hereunder and a Company receiving a refund to which another Company is entitled hereunder shall pay over such Losses payable refund to such other Company within 30 days after such refund is received (together with interest computed at the Prime Rate based on the number of days from the date the refund was received to the Indemnified Party date the refund was paid over). (b) If a member of the SpinCo Group actually realizes in cash any Tax Benefit as a result of an adjustment (other than an adjustment set forth in Schedule 6.01(b), as such Schedule 6.01(b) may be amended by mutual agreement by the Companies prior to the Distribution Date) pursuant to a Final Determination to any Taxes for which a member of the Motorola Group is liable hereunder (or any Tax Attribute of a member of the Motorola Group) and such Tax Benefit would not have arisen but for such adjustment (determined on a “with and without” basis), or if a member of the Motorola Group actually realizes in cash any Tax Benefit as a result of an adjustment (other than an adjustment set forth in Schedule 6.01(b), as such Schedule 6.01(b) may be amended by mutual agreement by the Companies prior to the Distribution Date) pursuant to a Final Determination to any Taxes for which a member of the SpinCo Group is liable hereunder (or any Tax Attribute of a member of the SpinCo Group) and such Tax Benefit would not have arisen but for such adjustment (determined on a “with and without” basis), SpinCo or Motorola, as the case may be, shall make a payment to either Motorola or SpinCo, as appropriate, within 30 days following such actual realization of the Tax Benefit, in an amount equal to any cash such Tax benefit realized or to be Benefit actually realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 cash (including any cash Tax benefit Benefit actually realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner in any the Archstone Entitiespayment). If a cash , plus interest on such amount computed at the Prime Rate based on the number of days from the date of such actual realization of the Tax benefit with respect Benefit to a Loss that has been the subject date of indemnification payment of such amount under this Article 12 Section 6.01(b). (c) No later than 30 days after a Tax Benefit described in Section 6.01(b) is actually realized in cash by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary a member of the date on which Motorola Group or a member of the SpinCo Group, Motorola (if a member of the Motorola Group actually realizes such Loss was incurred, then payments Tax Benefit) or SpinCo (if a member of the SpinCo Group actually realizes such Tax Benefit) shall be made provide the other Company with a written calculation of the amount payable to such other Company by the Indemnified Party Motorola or SpinCo pursuant to the Indemnifying Party to reflect such cash Tax benefit at the time of realizationthis Section 6. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of Motorola or SpinCo disagrees with any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under calculation described in this Section 12.8. In applying 6.01(c), Motorola or SpinCo shall so notify the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REIT.other

Tax Benefits. In calculating (a) The Surviving Corporation shall pay the amount of any Losses payable under this Article 12, there shall be deducted from any such Losses payable to the Indemnified Party an amount equal to any cash Tax benefit realized or to be realized Benefit (reduced as provided in the same Taxable period as first two sentences of the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 (including any cash Tax benefit realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as last paragraph of Section 5.12(b)), plus interest at a result rate of being an equity owner in any the Archstone Entities). If a cash Tax benefit with respect to a Loss that has been the subject of indemnification under this Article 12 is realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary of 10% per annum compounding monthly, from the date on which such Loss was incurredTax Benefit is actually realized, then payments shall be made by the Indemnified Party minus any unreimbursed Tax Preparation Amount, to the Indemnifying Party to reflect such cash Tax benefit at Former Common Securities Holders and the time Former Series C Preferred Holders not later than five business days after the date on which the Surviving Corporation (or any consolidated group of realization. In which the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on Surviving Corporation is a member) files an annual basis a certification by a responsible tax officer of (or part-year, in the amount (if any) case of a cash short tax year) federal or California income Tax benefit that would reduce Return (not including any amended Tax Return) with respect to a period for which a Tax Benefit is actually realized. (b) For purposes of this Section 5.12, the amount of any Tax Benefit for any tax year (or part-year, in the case of a short tax year), shall be calculated on a “with and without” basis, and shall equal the excess, if any, of: (i) the aggregate amount of federal and California income Tax liability of the Surviving Corporation, any Subsidiary of the Surviving Corporation and any consolidated group of which any such indemnity payments entity is a member for such tax year (or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoingpart-year) if no Tax Benefit Items had been available for any year, but all other items of deduction, credit or other Tax attributes were available and had been applied as if no Tax Benefit Items were ever available, to the extent that Surviving Corporation, any Subsidiary of the Purchased Interests are held by a REIT or by an Surviving Corporation and any consolidated group of which any such entity that is a disregarded entity member for that or partnership for U.S. any other tax year, over (ii) the aggregate amount of federal and California income Tax purposes liability of the Surviving Corporation, any Subsidiary of the Surviving Corporation and any consolidated group of which any such entity is a member for any tax year (or part-year, in which the case of a REIT ownsshort tax year), directly taking into account both Tax Benefit Items and all other items of deduction, credit or indirectly, other Tax attributes as all such items are actually used under applicable Tax law. In calculating the beneficial interests, then no Tax benefit shall amount to be considered paid by the Surviving Corporation pursuant to have been realized this Section 5.12 with respect to the beneficial interests owned directly short tax year ending on or indirectly before the Closing Date, the amount of such payment shall be the lesser of the amount of Tax Benefit calculated above and the amount of cash federal or California income Tax refund received by the REITSurviving Corporation or any Subsidiary of the Surviving Corporation, after the Closing Date, with respect to such short tax year. If the Surviving Corporation or any Subsidiary of the Surviving Corporation is required to pay any federal or California income Taxes, after the Closing Date, with respect to such short tax year (that is, if the estimated and other Tax payments made by the Surviving Corporation or such Subsidiaires prior to the Closing Date are less than the Tax liability determined under clause (ii) above), the aggregate amount to be paid by the Surviving Corporation pursuant to this Section 5.12 for any later tax years shall be reduced by the amount of such post-Closing Tax payment. For the avoidance of doubt, there may be a Tax Benefit attributable to a Tax Benefit Item for a year after the year in which a Tax Benefit Item is used to reduce Taxes as a matter of Tax law. (c) The date on which a Tax Benefit is actually realized shall be the date that is two months and fifteen days after the last day of the tax year with respect to which the Surviving Corporation pays less Taxes than it would be required to pay if there were no Tax Benefit (using the “with and without” methodology of Section 5.12(b)). (d) For the avoidance of doubt, any Tax Benefit Item applied in the computation of Ventura Sale Taxes shall be treated as no longer being available for purposes of this Section 5.12 and shall not result in additional payment to the Former Common Securities Holders and the Former Series C Preferred Holders in respect of such Tax Benefit Item in any year in which such Tax Benefit Item is used by the Surviving Corporation. (e) The Surviving Corporation shall not make, change or revoke any election that would limit the ability to carry back any Tax losses attributable to a Tax Benefit Item. (f) Until the entire Tax Benefit has been paid to the Former Common Securities Holders and the Former Series C Preferred Holders, the Surviving Corporation shall provide to the Representative an annual report (the “Tax Benefit Schedule”), not later than thirty (30) days after the date on which a federal income Tax Return including the Surviving Corporation is filed for any tax year (or part-year, in the case of a short year), computing in reasonable detail what Tax Benefit Items, if any, have been used and the amount of any Tax Benefit, if any, for such year, which report shall be prepared or reviewed by an independent accounting firm of national or regional repute, which may be the accounting firm engaged by the Surviving Corporation for the preparation or review of its tax returns generally (the “Tax Benefit Advisor”), and shall provide to the Representative any information reasonably requested to support such computation. The amount of any payment under this Section 5.12 by the Surviving Corporation to the Former Common Securities Holders and the Former Series C Preferred Holders shall be reduced by the reasonable fees, out-of-pocket costs and expenses of the Tax Benefit Advisor in connection with the computations required for the calculation of the Tax Benefit (whether for purposes of this Section 5.12 or determination of Ventura Sale Taxes) and the amount of any payment to be made under this Section 5.12 (collectively, including a reasonable estimate of any accrued costs and expenses, the “Tax Preparation Amount”). The Representative shall have the opportunity to review and comment on the Tax Benefit Schedule for any year, it being understood that the Surviving Corporation shall be required to take into account any such comments with respect to manifest errors, and shall be permitted to, but shall not be required to, take into account any other such comments (in its sole discretion), in a revised Tax Benefit Schedule. The Tax Benefit Schedule, subject to any such revisions, shall be binding on the Surviving Corporation and the Representative, the Former Common Securities Holders and the Former Series C Preferred Holders. (g) Any Tax Benefit payments to be made to the Former Common Securities Holders and Former Series C Preferred Holders shall be distributed to such holders in accordance with the Applicable Percentage. (h) If there is a Change in Control, the Surviving Corporation and its Subsidiaries may (but shall not be required to) pay the Former Common Securities Holders and Former Series C Preferred Holders an aggregate amount equal to 90% times the sum of ((x) plus (y) minus (z)), where (x) equals the maximum aggregate amount of any Tax credits that could be claimed as a result of any Tax Benefit Items (whether or not such Tax Benefit Items have yet given rise to any such tax credits), (y) equals the product of (i) 41% and (ii) the total amount of Tax Benefit Items that give or gave rise to Tax deductions (whether or not such Tax deductions have been used as a matter of Tax law), and (z) equals the total amount of Tax Benefits actually paid to the Former Common Securities Holders and Former Series C Preferred Holders pursuant to this Agreement. If the Surviving Corporation makes the payment described in this Section 5.12(h), not later than 30 days after the Change in Control, it shall have no future obligation to make any payment with respect to any Tax Benefits.

Tax Benefits. In calculating the amount of any Losses payable under this Article 12(a) Except as set forth below, there Motorola shall be deducted entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which Motorola is liable hereunder, SpinCo shall be entitled to any refund (and any interest thereon received from the applicable Tax Authority) of Income Taxes and Other Taxes for which SpinCo is liable hereunder and a Company receiving a refund to which another Company is entitled hereunder shall pay over such Losses payable refund to such other Company within 30 days after such refund is received (together with interest computed at the Prime Rate based on the number of days from the date the refund was received to the Indemnified Party date the refund was paid over). (b) If a member of the SpinCo Group actually realizes in cash any Tax Benefit as a result of an adjustment (other than an adjustment set forth in Schedule 6.01(b), as such Schedule 6.01(b) may be amended by mutual agreement by the Companies prior to the Distribution Date) pursuant to a Final Determination to any Taxes for which a member of the Motorola Group is liable hereunder (or any Tax Attribute of a member of the Motorola Group) and such Tax Benefit would not have arisen but for such adjustment (determined on a “with and without” basis), or if a member of the Motorola Group actually realizes in cash any Tax Benefit as a result of an adjustment (other than an adjustment set forth in Schedule 6.01(b), as such Schedule 6.01(b) may be amended by mutual agreement by the Companies prior to the Distribution Date) pursuant to a Final Determination to any Taxes for which a member of the SpinCo Group is liable hereunder (or any Tax Attribute of a member of the SpinCo Group) and such Tax Benefit would not have arisen but for such adjustment (determined on a “with and without” basis), SpinCo or Motorola, as the case may be, shall make a payment to either Motorola or SpinCo, as appropriate, within 30 days following such actual realization of the Tax Benefit, in an amount equal to any cash such Tax benefit realized or to be Benefit actually realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under this Article 12 cash (including any cash Tax benefit Benefit actually realized or to be realized in the same Taxable period as the period during which the Indemnified Party became entitled to indemnification with respect to the applicable Loss under Article 12 as a result of being an equity owner the payment), plus interest on such amount computed at the Prime Rate based on the number of days from the date of such actual realization of the Tax Benefit to the date of payment of such amount under this Section 6.01(b). (c) No later than 30 days after a Tax Benefit described in Section 6.01(b) is actually realized in cash by a member of the Motorola Group or a member of the SpinCo Group, Motorola (if a member of the Motorola Group actually realizes such Tax Benefit) or SpinCo (if a member of the SpinCo Group actually realizes such Tax Benefit) shall provide the other Company with a written calculation of the amount payable to such other Company by Motorola or SpinCo pursuant to this Section 6. In the event that Motorola or SpinCo disagrees with any such calculation described in this Section 6.01(c), Motorola or SpinCo shall so notify the Archstone Entitiesother Company in writing within 30 days of receiving the written calculation set forth above in this Section 6.01(c). If Motorola and SpinCo shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under this Section 6 shall be determined in accordance with the disagreement resolution provisions of Section 14 as promptly as practicable. (d) SpinCo shall be entitled to any refund that is attributable to, and would not have arisen but for, a cash SpinCo Carryback pursuant to the proviso set forth in Section 4.07. Any such payment of such refund made by Motorola to SpinCo pursuant to this Section 6.01(d) shall be recalculated in light of any Final Determination (or any other facts that may arise or come to light after such payment is made, such as a carryback of a Motorola Group Tax benefit with respect Attribute to a Loss that has been the subject Tax Period in respect of indemnification under this Article 12 is realized by an Indemnified Party in another Taxable period that ends on or prior to the three-year anniversary of the date on which such Loss was incurredrefund is received) that would affect the amount to which SpinCo is entitled, then payments and an appropriate adjusting payment shall be made by SpinCo to Motorola such that the Indemnified Party aggregate amounts paid pursuant to the Indemnifying Party to reflect this Section 6.01(d) equals such cash Tax benefit recalculated amount (with interest computed at the time of realization. In the event there are any indemnity payments required under this Article 12, the Indemnified Party shall provide on an annual basis a certification by a responsible tax officer of the amount (if any) of a cash Tax benefit that would reduce the amount of any such indemnity payments or give rise to an obligation to make a payment to the Indemnifying Party under this Section 12.8. In applying the foregoing, to the extent that the Purchased Interests are held by a REIT or by an entity that is a disregarded entity or partnership for U.S. federal income Tax purposes in which a REIT owns, directly or indirectly, the beneficial interests, then no Tax benefit shall be considered to have been realized with respect to the beneficial interests owned directly or indirectly by the REITPrime Rate).