Tax Refunds and Correlative Tax Benefits and Spinco Carrybacks Sample Clauses

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Tax Refunds and Correlative Tax Benefits and Spinco Carrybacks 

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Related to Tax Refunds and Correlative Tax Benefits and Spinco Carrybacks

• Refunds and Tax Benefits (a) Except to the extent such refund was accrued as an asset on the Closing Balance Sheet, the Purchaser shall promptly pay to the Seller the amount of any refund or credit (including any interest paid or credited with respect thereto) received or used, in the case of a credit, by the Purchaser or by any Pershing Company of Taxes (i) relating to taxable periods of any Pershing Company or portions thereof ending on or before the Closing Date or (ii) attributable to an amount paid by the Seller under Section 7.01 hereof. The Purchaser shall, if the Seller so requests and at the Seller's expense, cause the relevant entity to file for and use its reasonable best efforts to obtain and expedite the receipt of any refund to which the Seller is entitled under this Section 7.02. The Purchaser shall permit the Seller to participate in (at the Seller's expense) the prosecution of any such refund claim. The Seller shall not be entitled to pursue any refund claim if such claim would increase Taxes payable by any Pershing Company or Purchaser after the Closing unless the Seller shall indemnify Purchaser for such increased Taxes. (b) Any amount otherwise payable by the Seller under Section 7.01 shall be reduced by the estimated present value of any net Tax benefit available to the Purchaser or its Affiliates in connection with the payment of Taxes for which the Seller is responsible under Section 7.01, and increased by the estimated present value of any Tax cost reasonably expected to be incurred by the indemnified party or its Affiliates as the result of the receipt of such indemnity payment. The estimated present value of any net Tax benefit and the estimated present value of any Tax costs referred to in this subsection (and in Section 9.02(e)) shall be computed using the applicable federal rate for the appropriate time period as defined in Section 1274(d)(1) of the Code as the discount rate and a Tax rate for all relevant years of 40%.

• Tax Refunds (a) Seller shall be entitled to the amount of any Income Tax refunds (or any Tax credits received in lieu thereof to the extent such credit in lieu thereof actually reduces Taxes for a Post-Closing Tax Period) that are actually received by Buyer, any Group Company, any of their respective Affiliates, or a consolidated, combined, unitary, or similar group of which any Group Company is a member after the Closing, in each case, for any Pre-Closing Tax Period ending on the Closing Date or the portion of any Straddle Period ending on the Closing Date (determined in accordance with Section 8.6.4), including any such Tax refunds resulting from any Transaction Tax Deductions, and net of any Taxes and reasonable out-of-pocket expenses incurred in connection with obtaining such Tax refunds (or credits in lieu thereof), in each case, to the extent such Tax refund (or credit in lieu thereof) is with respect to Taxes paid by a Group Company prior to the Closing Date or included in the final calculation of the Closing Statement (any such Income Tax refund or credit in lieu thereof, a “Tax Refund”); provided, however, that Seller shall not be entitled to any Tax Refund (x) required to be paid over by any Group Company (or any Affiliate thereof) to any Person under a provision of a Contract (other than this Agreement) to which such Person was a party prior to the Closing, (y) resulting from the payment of Income Taxes by Buyer or any of its Affiliates (including any Group Company) made after the Closing Date to the extent such Income Taxes were not included in the final calculation of the Closing Statement, and (z) resulting from a carryback of a Tax attribute from any period ending after the Closing Date. (b) Buyer shall promptly pay, or cause to be paid, over to Seller by wire transfer of immediately available funds any Tax Refunds that Seller is entitled to pursuant to this Section 8.6.1 within ten (10) Business Days of the actual receipt of the Tax Refund giving rise to Buyer’s obligation to make a payment pursuant to Section 8.6.1 with respect thereto (or, in the case of a credit in lieu of a refund, the Due Date for the filing of a Tax Return that reflects the actual reduction in Taxes resulting from such credit). (c) The Group Companies shall use commercially reasonable efforts to promptly obtain (or cause to be obtained) any reasonably available Tax Refunds with respect to any applicable Pre-Closing Period Income Tax Return by filing, or causing to file, any such Tax Returns as promptly as practicable after the Closing Date, in each case, as finally resolved pursuant to the provisions of Section 8.6.2; provided, however, that the Group Companies shall not be required to file IRS Form 4466 (or any comparable form for state or local Tax purposes). The Group Companies shall not elect to apply any applicable Tax Refund as a credit against Taxes payable for a taxable period (or portion thereof) beginning after the Closing Date. (d) For applicable Tax purposes, Buyer, Seller and each of their respective Affiliates shall treat all payments to Seller made pursuant to this Section 8.6.1 as an adjustment to purchase price to the maximum extent permitted by applicable Law.

• Tax Benefit If, as the result of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.

• Tax Benefit Payments Section 3.1 Payments 12 Section 3.2 No Duplicative Payments 13

• Tax Benefits any benefits with respect to Taxes which are actually and currently realized by any Tax Indemnitee, which are attributable solely to the incurrence or payment by such Tax Indemnitee of any indemnified Losses or Taxes or an event giving rise to such Losses or Taxes; provided, that for the purpose of calculating such Tax Benefit, such Tax Indemnitee shall be deemed to utilize all other items of income, gain, loss, deduction or credit, including those that arise outside the scope of this Agreement, before utilizing any item arising from the incurrence or payment of any indemnified Loss or Tax. A Tax Indemnitee shall be deemed to have actually and currently realized and utilized a Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by the Tax Indemnitee is actually reduced below the amount of Taxes such Tax Indemnitee would be required to pay but for the incurrence or payment of such Loss or Taxes, computed in accordance with the ordering rules set forth above. Notwithstanding anything to the contrary in this clause (a), in calculating any Tax Benefit, a Tax Indemnitee, to the extent not prohibited by applicable law or by contract, shall determine when Tax Benefits are utilized in a manner which is non-discriminatory with respect to all other Similar Loans, it being understood that if, after taking into account all tax items of such Tax Indemnitee other than from this Loan and Similar Loans, such Tax Indemnitee has the capacity to use some or all of the Tax Benefits and some or all of the tax benefits generated by Similar Loans, it cannot rely upon a provision in such Similar Loan that requires the tax benefits from such Similar Loans to be applied last to avoid applying the tax benefits under those Similar Loans and, based on this non-discriminatory provision, also the Tax Benefits from this Loan in calculating the indemnities due under the respective loan. For purposes of this provision, “Similar Loans” means loans (i) in which the Tax Indemnitee or any affiliate thereof is a participant and with respect to which such Tax Indemnitee or affiliate is entitled to indemnification with respect to Taxes, and (ii) in which the Borrower is a U.S. Borrower with a similar or lesser credit as the Borrower.

• Tax Attributes (i) Tax attributes with respect to, and the -------------- overpayment of, property taxes, sales and use taxes and franchise taxes which relate primarily to the Company Business and (ii) to the extent provided in the Tax Sharing Agreement, tax attributes with respect to, and the overpayment of, income and payroll taxes which relate to the Company Business or are otherwise allocated to the Company.

• Special Basis Adjustments In connection with any assignment or transfer of a Partnership interest permitted by the terms of this Agreement, the General Partner may cause the Partnership, on behalf of the Partners and at the time and in the manner provided in Treasury Regulations Section 1.754-1(b), to make an election to adjust the basis of the Partnership’s property in the manner provided in Sections 734(b) and 743(b) of the Code.

• Carrybacks (a) If any member of the Non-Filing Party’s Group generates a Tax Attribute during a Post-Distribution Period that can be carried back to a Pre-Distribution Period, then, upon the request of the Non-Filing Party, the Filing Party, at the Non-Filing Party’s expense, shall file (or shall cause the appropriate member of its Group to file) a claim for refund arising from such carryback and will pay to the Non-Filing Party the actual Tax Benefit from the carryback within thirty days of Effective Realization by any member of the Filing Party’s Group. Such Tax Benefit shall be equal to the excess of (i) the amount of Tax that would have been payable (or of the Tax refund actually receivable) by the Party (or member of its Group) liable for the Tax reported on such Tax Return for such period in the absence of such carryback, over (ii) the amount of Tax actually payable for such period (or of the Tax refund that would have been receivable) by the Party (or member of its Group) liable for the Tax reported on such Tax Return. In the absence of controlling legal authority, if the SnackCo Post-Distribution Group and the GroceryCo Post-Distribution Group can both carryback Tax Attributes from the same Post-Distribution Period to a Pre-Distribution Period and both Parties Tax Attributes cannot be fully utilized, the Tax Attributes of both Groups shall be carried back proportionately to the Tax Attributes each Party is seeking to utilize. (b) If, subsequent to the payment by the Filing Party to the Non-Filing Party of any amount pursuant to (or in accordance with the principles of) Section 4.01(a) of this Agreement, there shall be a Final Determination that results in a disallowance or a reduction of the Tax Attributes of the Non-Filing Party’s Group so carried back, the Non-Filing Party shall repay to the Filing Party, within thirty days after such Final Determination, any amount that would not have been payable to the Non-Filing Party pursuant to (or in accordance with the principles of) Section 4.01(a) of this Agreement had the Tax Benefit been determined in light of the Final Determination. In addition, the Non-Filing Party shall hold each member of the Filing Party’s Group harmless from any penalty or interest payable by any member of the Filing Party’s Group as a result of any such Final Determination. Any such amount shall be paid by the Non-Filing Party within thirty days of the payment by the Filing Party’s Group of any such penalty or interest. (c) For purposes of this Section 4.01, GroceryCo (or the applicable member of the GroceryCo Post-Distribution Group) shall be considered the Filing Party for all State Income Tax Returns for which it is liable for the Tax under Section 2.01 of this Agreement.

• Tax Benefit Schedule Within one hundred fifty (150) calendar days after the filing of the U.S. federal income Tax Return of the Corporation for any Taxable Year in which there is a Realized Tax Benefit or Realized Tax Detriment, the Corporation shall provide to the Members a schedule showing, in reasonable detail, the calculation of the Realized Tax Benefit or Realized Tax Detriment for such Taxable Year (a “Tax Benefit Schedule”). The Tax Benefit Schedule will become final and binding on the Parties pursuant to the procedures set forth in Section 2.4(a), and may be amended by the Parties pursuant to the procedures set forth in Section 2.4(b).

• Tax Matters Partner; Tax Elections; Special Basis Adjustments (a) The General Partner shall be the Tax Matters Partner of the Partnership within the meaning of Section 6231(a)(7) of the Code. As Tax Matters Partner, the General Partner shall have the right and obligation to take all actions authorized and required, respectively, by the Code for the Tax Matters Partner. The General Partner shall have the right to retain professional assistance in respect of any audit of the Partnership by the Service and all out-of-pocket expenses and fees incurred by the General Partner on behalf of the Partnership as Tax Matters Partner shall constitute Partnership expenses. In the event the General Partner receives notice of a final Partnership adjustment under Section 6223(a)(2) of the Code, the General Partner shall either (i) file a court petition for judicial review of such final adjustment within the period provided under Section 6226(a) of the Code, a copy of which petition shall be mailed to all Limited Partners on the date such petition is filed, or (ii) mail a written notice to all Limited Partners, within such period, that describes the General Partner’s reasons for determining not to file such a petition. (b) All elections required or permitted to be made by the Partnership under the Code or any applicable state or local tax law shall be made by the General Partner in its sole and absolute discretion. (c) In the event of a transfer of all or any part of the Partnership Interest of any Partner, the Partnership, at the option of the General Partner, may elect pursuant to Section 754 of the Code to adjust the basis of the Partnership’s assets. Notwithstanding anything contained in Article 5 of this Agreement, any adjustments made pursuant to Section 754 of the Code shall affect only the successor in interest to the transferring Partner and in no event shall be taken into account in establishing, maintaining or computing Capital Accounts for the other Partners for any purpose under this Agreement. Each Partner will furnish the Partnership with all information necessary to give effect to such election.