Tax Refunds. (a) Global Crossing NA shall be entitled to any refund of any Pre- Closing Taxes of the Company and its subsidiaries and any Taxes of the Company and its subsidiaries for the pre-Closing portion of a Straddle Period, including, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; provided, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary to the extent that Global Crossing NA has indemnified Exodus against the effects of any such claim for refund. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperation. (b) If an indemnified party receives a refund or credit of Taxes for which it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon). (c) Subject to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereon. (d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
Appears in 2 contracts
Samples: Merger Agreement (Global Crossing LTD), Merger Agreement (Exodus Communications Inc)
Tax Refunds. (a) Global Crossing NA shall be entitled to any refund Without duplication of any Pre- Closing refunds taken into account in the calculation of the Aggregate Purchase Price, all refunds of Taxes of the Company and its subsidiaries and any Taxes Subsidiaries shown on the Tax Returns of the Company and its subsidiaries Subsidiaries for the pre-Closing portion of a Straddle Periodtaxable year ending on December 31, including2022 as filed prior to the date hereof, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA that are received by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of ExodusPurchaser, the Company or its subsidiaries for a Subsidiary or any Post-Closing Tax Period or the portion of a Straddle Period beginning after their Affiliates following 12:01 a.m. Eastern Time on the Closing Date without shall be for the prior written consent account of Exodus; providedthe Equityholders, howeverand the amount of such refunds, that such consent shall not be unreasonably withheld and such consent shall not be necessary to the extent that Global Crossing NA has indemnified Exodus against the effects net of any such claim for refund. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperation.
(b) If an indemnified party receives a refund or credit of Taxes for which it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay to the indemnifying party the amount of obtain such refund or credit (including and of any interest received thereon).
(c) Subject to the following sentence and to the extent permitted Tax incurred by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to ExodusPurchaser, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA Subsidiaries or any of their Affiliates as a result of receiving such refund, shall be paid to the Equityholders’ Representative (for distribution to the Equityholders in accordance with their respective Percentage Shares) within fifteen (15) Business Days after receipt thereof by wire transfer of immediately available funds. Notwithstanding the foregoing, any payment to be made to an Optionholder under this Section 6.11(i) shall not be distributed to the Equityholders’ Representative and instead shall be paid to the Optionholder by the Surviving Corporation or its affiliates Subsidiaries through payroll (other than if applicable) or by wire transfer of immediately available funds. Purchaser shall promptly provide the Company Equityholders’ Representative with written notice of any proposed disallowance or reduction of a refund previously paid to Equityholders’ Representative or the Equityholders pursuant to this Section 6.11(i) and will provide reasonable supporting documentation (including copies of communications from a Governmental Authority) regarding any of its subsidiaries) such proposed disallowance or reduction. The Equityholders’ Representative shall be entitled to carry back losses or tax credits from participate in any Tax Contest relating to such Post-Closing Tax Period refunds pursuant to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basisSection 6.11(f)(ii). Notwithstanding anything herein to the foregoing sentencecontrary, if and to the extent such refund amounts in the aggregate are subsequently disallowed or reduced by a Governmental Authority by more than $100,000 (the “Claw-back Threshold”), any such disallowed amount or reduction, including any Taxes, penalties or interest arising from the disallowance or reduction of such refund in excess of the Claw-back Threshold, shall be promptly repaid to Purchaser by the Equityholders on a several (not joint) and pro rata basis in accordance with each Equityholder’s Indemnification Percentage after written notification (including any reasonable supporting documentation not already provided to the Equityholders’ Representative) of such disallowance or reduction by Purchaser; provided that Exodus is not permitted by applicable law no Equityholder shall be required to forego a carrybackrepay any amounts to Purchaser under this Section 6.11(i) that, then solely with respect in the aggregate, exceed amounts previously paid to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified Equityholder pursuant to this Section 8.2(d6.11(i) hereof)plus any Taxes, incurred by penalties or Taxes payable by Global Crossing NA interest arising from the disallowance or any of its affiliates by reason reduction of such carryback, such refund including any interest received thereonrefund.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
Appears in 2 contracts
Samples: Merger Agreement (Fox Factory Holding Corp), Merger Agreement (Compass Group Diversified Holdings LLC)
Tax Refunds. (a) Global Crossing NA Seller shall be entitled to any refund Tax refunds (and any credits claimed against Tax in lieu of a Tax refund) that any Pre- Closing Taxes of the Company and its subsidiaries and any Taxes of the Company and its subsidiaries for the pre-Closing portion of a Straddle Period, including, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; provided, however, Acquired Companies receives that such consent shall not be unreasonably withheld and such consent shall not be necessary to the extent that Global Crossing NA has indemnified Exodus against the effects of any such claim for refund. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperation.
(b) If an indemnified party receives a refund or credit of Taxes for which it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon).
(c) Subject to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period relates to any Pre-Closing Tax Period and Buyer shall (subject to receive the terms of this Section 8.6) cause each of the Acquired Companies to pay over to Seller any resulting such refund or the amount of Taxes including such credit within thirty (30) days after receipt of such refund or application of such credit; provided that (i) Seller shall not be entitled to any interest received thereon, but only if such Tax refund that is attributable to the carryback would not impose of any loss or other Tax Attribute arising in a material Tax cost taxable period (or otherwise materially adversely affect Global Crossing NA portion thereof) beginning after the Closing Date or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent such Tax refund is taken into account as a current asset in the final determination of the Working Capital Amount; (ii) Seller shall only be entitled to such Tax refunds that Exodus is not permitted are refunds of Taxes of the Acquired Companies that were paid on or prior to the Closing Date or for which a liability was taken into account in the final determination of the Working Capital Amount or for Taxes for which any Buyer Indemnitee was indemnified under Article 7; (iii) the amount of any such Tax refund to be paid to Seller hereunder shall be net of all Taxes and reasonable out-of-pocket costs incurred by applicable law to forego a carryback, then solely the Acquired Companies in connection with obtaining such Tax refund and (iv) any Tax refund or credit with respect to Taxes for any Straddle Period shall be equitably apportioned consistent with the apportionment of Pre-Closing Taxes as set forth in the definition of such carryback term. Upon the request and at the expense of Seller, Buyer shall cause the Acquired Companies to the extent that Global Crossing NA receives file a claim for refund of Taxes attributable any Taxes, including through the filing of amended Tax Returns or otherwise in such form as Seller may reasonably request, to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified which Seller would be entitled pursuant to this Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereon8.6.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
Appears in 2 contracts
Samples: Purchase Agreement (Cree Inc), Purchase Agreement (Cree Inc)
Tax Refunds. (a) Global Crossing NA Mallinckrodt shall be entitled to
(i) any Refund of Current Taxes received by any member of the Mallinckrodt Group or the Covidien Group, where Mallinckrodt or any member of the Mallinckrodt Group is obligated under applicable Law to (i) pay such Taxes or (ii) file a Tax Return with respect to such Taxes;
(ii) any refund Mallinckrodt Refund Amounts;
(iii) 20% of any Pre- Closing Refund of any Unanticipated Separation Taxes received by any member of the Company and its subsidiaries and any Taxes Mallinckrodt Group or the Covidien Group; provided, that, if the proportionate amount of such Tax that was borne by Mallinckrodt was lower than 20%, whether by reason of the Company and its subsidiaries for the pre-Closing portion application of a Straddle PeriodArticle 2.03 or otherwise, including, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not Mallinckrodt will be entitled to make such lower proportionate amount of such Refund of Unanticipated Separation Taxes; and
(iv) any claim for refund Refund of Mallinckrodt Separation Taxes which would materially adversely affect received by any member of the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period Mallinckrodt Group or the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; provided, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary Covidien Group to the extent that Global Crossing NA has indemnified Exodus against liability for such Taxes was actually borne by Mallinckrodt; provided, that, solely for purposes of this Article 2.05(a)(iv), any Refund in respect of a Separation Tax shall be treated first as a Refund of a Mallinckrodt Separation Tax if and only to the effects extent Mallinckrodt bore such Tax, taking into account the application of any such claim for refund. Global Crossing NA shall reimburse Exodus Article 2.03, and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperationthereafter as a Refund of a Covidien Separation Tax.
(b) If an indemnified party receives a refund Covidien shall be entitled to all Refunds related to Specified Taxes received by any member of the Mallinckrodt Group or credit of Taxes for the Covidien Group other than those to which it has been indemnified Mallinckrodt is entitled pursuant to this Agreement, such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereonArticle 2.05(a).
(c) Subject to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA Each Party shall pay to Exodusthe other Party any Refund received by such Party or any member of such Party’s Group that is allocable to the other Party pursuant to this Article 2.05 no later than five (5) Business Days after the receipt of such Refund. For purposes of this Article 2.05(c), net any Refund that arises as a result of any additional costs (an offset, credit, or other similar benefit in respect of Taxes other than costs that are indemnified pursuant a receipt of cash shall be deemed to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any be received on the earlier of its affiliates by reason of such carryback, such refund including any interest received thereon.
(d) If and to the extent that Exodus (i) the date on which a Tax Return is not permitted by applicable law to forego a carryback of any net operating lossfiled claiming such offset, capital loss credit, or tax credit attributable to the Company or its subsidiaries, other similar benefit and (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to the date on which payment of the Tax which would have otherwise been paid absent such carrybackoffset, and credit, or other similar benefit is due (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which determined without taking into account any amended Tax Return shall be prepared and filedapplicable extensions).
Appears in 2 contracts
Samples: Tax Matters Agreement (Covidien PLC), Tax Matters Agreement
Tax Refunds. (a) Global Crossing NA Seller shall be entitled to any refund in the form of any Pre- Closing cash received by the Company or a Transferred Subsidiary or direct credits against Taxes otherwise payable by the Company or a Transferred Subsidiary with respect to Taxes of the Company or a Transferred Subsidiary for any Pre-Closing Tax Period (other than any such refund that was reflected in the calculation of Closing Net Working Capital and, for the avoidance of doubt, Purchaser, the Company or their Subsidiaries shall not be required to pay or cause to be paid to Seller pursuant to this Section 9.1(b) any refund or credit to the extent such refund or credit reduced other amounts with respect to which Seller would have been obligated to pay to a Purchaser Indemnified Party pursuant to Section 9.1(a) but for such refund or credit). After receipt by Purchaser, the Company or any of their Subsidiaries of any such Tax refund, or after the filing of a Tax Return on which the Taxes payable for which Purchaser, the Company or any of their Subsidiaries would otherwise be liable is reduced as a result of such Tax credit to which Seller is entitled, Purchaser or the Company shall, or shall cause the applicable Subsidiary to, deliver and its subsidiaries pay over, by wire transfer of immediately available funds, such Tax refunds to Seller. At the request of Seller, Purchaser will, and any Taxes of will cause the Company and its subsidiaries Subsidiaries to, execute such documents and take any other reasonable actions as may be necessary for the pre-Closing portion of a Straddle Period, including, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, ExodusPurchaser, the Company and its subsidiaries their Subsidiaries to obtain Tax refunds for which any such Person is eligible and to which Seller is entitled pursuant to this Section 9.1(b) and Seller shall cooperate fully reimburse Purchaser, the Company and their Subsidiaries for any out-of-pocket expenses incurred by them in connection therewith. Notwithstanding the foregoing, Global Crossing NA any such Tax refunds shall not be entitled to make any claim for refund the account of Taxes which would materially adversely affect the liability for Taxes of ExodusPurchaser, the Company or its subsidiaries for and their Subsidiaries to the extent that such Tax refund is attributable to the carryback from any Post-Closing Tax Period of items of loss, deductions or other Tax items of the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; providedPurchaser, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary to the extent that Global Crossing NA has indemnified Exodus against the effects of any such claim for refund. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperationtheir Subsidiaries.
(b) If an indemnified party receives a refund or credit of Taxes for which it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon).
(c) Subject to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereon.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
Appears in 2 contracts
Samples: Securities Purchase Agreement (BATS Global Markets, Inc.), Securities Purchase Agreement (KCG Holdings, Inc.)
Tax Refunds. Motif may, at its option, cause Nuprim to elect, where permitted by applicable Law, to carry forward or carry back any Tax attribute carryover that would, absent such election, be carried back to a Pre-Closing Tax Period or Straddle Period. Motif shall promptly notify Nuprim Shareholders’ Representative of and pay (or cause to be paid) to Nuprim Shareholders’ Representative on behalf of Nuprim Shareholders: (a) Global Crossing NA shall be entitled to any refund of Taxes paid by Nuprim for any Pre- Closing Taxes of the Company and its subsidiaries and any Taxes of the Company and its subsidiaries for the prePre-Closing Tax Period actually received by Nuprim; or (b) a portion of a any refund of Taxes paid by Nuprim for any Straddle Period, includingPeriod (such portion to be allocated consistent with the principles set forth in Section 8.14 hereof) actually received by Nuprim, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether net of any claim for refund for Tax Liabilities or increase in Tax Liabilities imposed on Motif, or Nuprim resulting from such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; provided, however, that such consent Nuprim Shareholders shall not be unreasonably withheld and such consent shall not be necessary entitled to any refund to the extent that Global Crossing NA has indemnified Exodus against the effects of any such claim for refund. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperation.
(b) If an indemnified party receives a refund or credit of Taxes for which it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon).
(c) Subject relates to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing a carryback of a Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits attribute from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period period ending after the Closing Date, Global Crossing NA . Motif shall pay (or cause to Exodusbe paid) the amounts described in the second sentence of this Section 8.14 within thirty (30) days after the actual receipt of the Tax refund giving rise to Motif’s obligation to make payment hereunder with respect thereto. At the request of Nuprim Shareholders’ Representative, net of Motif shall reasonably cooperate with Nuprim Shareholders’ Representative in obtaining any additional costs (other than costs that such refunds for which Nuprim Shareholders are indemnified entitled pursuant to this Section 8.2(d) hereof)8.14, incurred including through the filing of amended Tax Returns or refund claims as prepared by or Taxes payable by Global Crossing NA or any Nuprim Shareholders’ Representative, at the expense of its affiliates by reason of such carryback, such refund including any interest received thereon.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carrybackNuprim Shareholders; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which if any such amended Tax Return shall be prepared by Nuprim Shareholders’ Representative, Nuprim Shareholders’ Representative shall deliver or cause to be delivered drafts of any such amended Tax Return to Motif for its review prior to the time such amended Tax Return may be filed and filedany such amended Tax Return shall be subject to the consent of Motif, which consent shall not be unreasonably withheld, conditioned or delayed; and provided, further, that Motif shall not be required to cooperate with Nuprim Shareholders’ Representative in obtaining such refunds (or, notwithstanding anything to the contrary contained herein, consent to the filing of such amended Tax Return) if such refund could reasonably be expected to adversely affect Motif or Nuprim in any Straddle Period or Post-Closing Period.
Appears in 2 contracts
Samples: Merger Agreement (Motif Bio PLC), Merger Agreement (Motif Bio PLC)
Tax Refunds. (a) Global Crossing NA shall Paradigm will be entitled to any refund of any Pre- Closing Taxes Tax imposed on or with respect to the Sacagawea Interests, Three Bears Interests, Exemplary Interests, Exemplary Assets or Three Bears Joint Venture Interest and borne by Paradigm with respect to a period, or portion thereof, ending on or prior to the end of the Company and its subsidiaries and any Taxes of day on the Company and its subsidiaries for the pre-Closing portion of a Straddle Period, including, in each case, interest paid thereonDate. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not Pipeline LLC will be entitled to make any claim for refund of Taxes which would materially adversely affect Tax imposed on or with respect to the liability Sacagawea Interests, Three Bears Interests, Exemplary Interests, Exemplary Assets or Three Bears Joint Venture Interest with respect to any Tax period, or portion thereof, beginning after the Closing Date. Refunds for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period or the portion of a Straddle Period will be apportioned to the period through the end of the Closing Date and allocated to Paradigm and to the period beginning after the Closing Date without and allocated to Pipeline LLC based on the prior written consent methodology set forth in Section 8.1(a) for Straddle Periods. Each of Exodus; provided, however, that such consent shall not be unreasonably withheld Paradigm and such consent shall not be necessary to Pipeline LLC will reasonably cooperate with the extent that Global Crossing NA has indemnified Exodus against the effects other in connection with obtaining any refund of any such claim for refundTax as provided in this Section 8.4. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperation.
(b) If an indemnified party either Paradigm or Pipeline LLC receives a refund or credit of Taxes for to which the other is entitled, the entity receiving the refund will pay it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon).
(c) Subject other entitled to the following sentence and to the extent permitted by law, Exodus refund within ten (10) Business Days after receipt. PSXP will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost imposed on or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback the Mountrail Interests or PSXP Assets and borne by PSXP with respect to a period, or portion thereof, ending on or prior to the extent that Global Crossing NA receives a end of the day on the Closing Date. Terminal LLC will be entitled to any refund of Taxes attributable Tax imposed on or with respect to such carryback from a Post-Closing the Mountrail Interests or PSXP Assets for any Tax Period of the Company and its subsidiaries period, or for the portion of a Straddle Period thereof, beginning after the Closing Date, Global Crossing NA shall pay . Refunds for a Straddle Period will be apportioned to Exodus, net the period through the end of any additional costs (other than costs that are indemnified pursuant the Closing Date and allocated to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereon.
(d) If PSXP and to the extent that Exodus (iperiod beginning after the Closing Date and allocated to Terminal LLC based on the methodology set forth in Section 8.1(c) for Straddle Periods. Each of PSXP and Terminal LLC will reasonably cooperate with the other in connection with obtaining any refund of Tax as provided in this Section 8.4. If either PSXP or Terminal LLC receives a refund to which the other is not permitted by applicable law to forego a carryback of any net operating lossentitled, capital loss or tax credit attributable the entity receiving the refund will pay it to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect other entitled to the manner in which any amended Tax Return shall be prepared and filedrefund within ten (10) Business Days after receipt.
Appears in 2 contracts
Samples: Formation and Contribution Agreement, Formation and Contribution Agreement (Phillips 66 Partners Lp)
Tax Refunds. (a) Global Crossing NA The Greenrose Entities shall be entitled to any refund refunds of any Pre- Closing Taxes of the Company and its subsidiaries and any Taxes of the Company and its subsidiaries for the pre-Closing portion of a Straddle Period, including, in each case, interest taxes paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects Greenrose Entities that relate to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company taxable period ending on or its subsidiaries for any Post-Closing Tax Period or the portion of a Straddle Period beginning after before the Closing Date without that are received by the prior written consent of ExodusGreenrose Entities or NewCo on or after the Effective Date (“Pre-Closing Refunds”); provided, however, that (i) NewCo shall be entitled to refunds of any Specified Tax Liabilities or Transfer Taxes paid by NewCo under this Agreement, (ii) if a Greenrose Entity receives any amount described in clause (i) it shall be treated as receiving such consent amount on behalf of NewCo in trust and (iii) the total amount of Pre-Closing Refunds to which the Greenrose Entities are entitled shall not be unreasonably withheld reduced by the amount of any Specified Tax Liabilities or Transfer Taxes paid or reasonably expected to be payable by NewCo under this Agreement (and NewCo shall be entitled to such consent shall not be necessary Pre-Closing Refunds instead); provided, further, that (i) through (iii) only apply to the extent that Global Crossing NA has indemnified Exodus against the effects Greenrose Entities receive (or would receive but for this provision) an actual payment with respect to such Pre-Closing Refunds. For the avoidance of doubt, any obligation of NewCo to make a payment of a Specified Tax Liability or a Transfer Tax under this Agreement shall be reduced by the amount of any such claim Pre-Closing Refund to which the Greenrose Entities are entitled under this Agreement and have previously received (that has not previously been accounted for refund. Global Crossing NA shall reimburse Exodus in reducing NewCo’s obligations hereunder) and the Company Greenrose Parties shall bear the remainder of the Specified Tax Liability or Transfer Tax, as applicable, to the extent of any Pre-Closing Refund received by the Greenrose Entities (that has not previously been accounted for in reducing NewCo’s obligations hereunder). The Parties shall cooperate to claim any Pre-Closing Refund to which any Greenrose Entity, on the one hand, or NewCo, on the other hand, is entitled under this Agreement, and each Party shall promptly notify the other Parties if it has received a Pre-Closing Refund. If any Greenrose Entity, on the one hand, or NewCo, on the other hand, receives a Pre-Closing Refund to which any other Party is entitled pursuant to this Section 1.4 it shall (and shall cause its subsidiaries for respective affiliates and subsidiaries, as applicable, to) promptly pay to such Person the amount to which such Person is entitled, less any tax or other reasonable and documented out-of-pocket expenses costs incurred in providing such cooperation.
(b) If an indemnified party receives a refund or credit of Taxes for which it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay to by the indemnifying party the amount of such refund or credit (including any interest received thereon).
(c) Subject to the following sentence and first Person to the extent permitted by law, Exodus will elect directly related to forego any carrybacks for the Company and its subsidiaries incurred in any Postportion of such Pre-Closing Tax Period. Except as provided in Refund to which the following sentenceother Person is entitled; provided, neither Global Crossing NA nor any of its affiliates that no Greenrose Entity shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback entitled to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable Refunds that are payable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates another person (other than the Company a Greenrose Entity or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period NewCo pursuant to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent contract that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period part of the Company and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereonTransferred Collateral.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
Appears in 1 contract
Samples: Strict Foreclosure Agreement (Greenrose Holding Co Inc.)
Tax Refunds. (a) Global Crossing NA Notwithstanding anything to the contrary contained in this Agreement, Acquiror is authorized and shall be entitled to withhold, from the Aggregate Company Stockholder Cash Consideration otherwise payable to the Company Stockholders pursuant to Section 1.8(a), $280,000 (the “Tax Refund Holdback Amount”). The Tax Refund Holdback Amount shall be withheld from each Company Stockholder based on such Person’s Pro Rata Share. Any refunds for Taxes paid in 2014 on or prior to the Closing Date (including any interest in respect thereof received from a Governmental Entity) relating to the 2014 Tax Return received by Acquiror, the Surviving Entity or any of their Affiliates, and any credits received in lieu of a Tax refund to which Acquiror, Company of any Pre- Closing Taxes of the Company and its subsidiaries and their Affiliates become entitled (including by way of any amended Tax Return), related to, or resulting or arising, directly or indirectly from, without duplication any Taxes of the Company and its subsidiaries for the pre-Closing portion of a Straddle Period, including, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any PostPre-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; providedPeriod, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary (to the extent not included as an asset in Company Net Working Capital that Global Crossing NA has indemnified Exodus against reduced a Working Capital Shortfall, as finally determined pursuant to Section 1.11) be considered the effects “Tax Refund Amount,” provided that such Tax Refund Amount shall be net of (1) any such claim for refund. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred costs associated in providing obtaining such cooperationrefund of Taxes, (2) any Tax required to be withheld on such payment, and (3) any Taxes borne by Acquiror or Company as a result of its receipt of such credit or refund, and provided that any credit or refund related to a Straddle Period shall be prorated based upon the method employed in the definition of “Pre-Closing Taxes.
(b) If an indemnified party receives a ” Acquiror and its Affiliates shall cause the Surviving Entity to use commercially reasonable efforts to obtain any Tax refund or credit that would contribute to the Tax Refund Amount. Acquiror (or its agent) will disburse to each Company Stockholder such Person’s Pro Rata Share of Taxes for the Tax Refund Holdback Amount or the Tax Refund Amount, whichever is less, to be disbursed within 15 days after Acquiror, the Surviving Entity or any of their Affiliates becomes entitled to the Tax Refund Amount (whether received in cash or applied as a credit against other Tax liabilities of Acquiror, the Surviving Entity or any of their Affiliates). If there is a subsequent reduction by a Governmental Entity (or by virtue of a change in applicable Tax law), of any amounts with respect to which it a payment has been indemnified made to the Company Stockholders by Acquiror pursuant to this AgreementSection 5.17(b), then the Company Stockholders shall pay Acquiror an amount equal to such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including reduction plus any interest received thereon).
(c) Subject to the following sentence and to the extent permitted or penalties imposed by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely Governmental Entity with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereonreduction.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Glu Mobile Inc)
Tax Refunds. (a) Global Crossing NA shall Until the Adjustment End Date, the Securityholders will be entitled to any refund of any Pre- Closing Taxes all Tax refunds, Tax credits or Tax overpayments of the Company and its subsidiaries and any Taxes of the Company and its subsidiaries for the pre-Closing portion of a Straddle Period, including, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any PostPre-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; providedPeriods, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary to the extent that Global Crossing NA has indemnified Exodus against the effects net of any such claim for refund. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses costs incurred in providing obtaining such cooperation.
refund, credit or overpayment of Taxes, and any Taxes borne by Acquiror, the Surviving Entity, or any of their Affiliates as a result of their receipt of such refund, credit or overpayment of Tax. Any refund, credit or overpayment of Tax related to a Straddle Period will be prorated based upon the method set forth in the last sentence of the definition of Pre-Closing Taxes. Notwithstanding the foregoing, the Securityholders will not be entitled to any payment or other benefit in the event any of the Surviving Entity, Acquiror or their Affiliates receives any refund of Taxes that is attributable to carrying back to a Pre-Closing Tax Period a net operating loss or tax credit that arose in a taxable period (bor portion thereof) beginning after the Closing Date. If an indemnified party Acquiror, the Surviving Entity or any of their Affiliates receives a any Tax refund or Tax credit of Taxes for or benefits from a Tax overpayment to which it has been indemnified the Securityholders are entitled pursuant to this AgreementSection 7.6(f) (each a “Pre-Closing Tax Refund”), such indemnified party agrees Acquiror or the Surviving Entity will promptly pay (or cause their respective Affiliates to pay to the indemnifying party pay) the amount of such refund or credit Pre-Closing Tax Refund (including any interest received thereon).
(c) Subject to the following sentence and to the extent permitted paid or credited by lawa Governmental Entity with respect to such refund) to the Exchange Agent for distribution to the Securityholders. Acquiror will, Exodus and will elect cause the Surviving Entity (and any applicable subsidiary) to, use commercially reasonable efforts to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to obtain any Pre-Closing Tax Period of Refund set forth on Schedule 7.6(f), and Acquiror and the Surviving Entity shall have no obligation to pursue any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and Refund. For purposes of this Section 7.6(f), any deferred Taxes described in clause (iii) of Pre-Closing Taxes that are included in Unpaid Pre-Closing Taxes but are determined pursuant to receive any resulting refund of Taxes including any interest received thereonapplicable Law not to be required to be paid or are subsequently refunded, but only if such carryback would not impose in each case, prior to or on the Adjustment End Date will be treated as a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a PostPre-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereonRefund.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
Appears in 1 contract
Samples: Merger Agreement (Pacific Biosciences of California, Inc.)
Tax Refunds. To the extent the IRS has not approved the Tax Agent, (ai) Global Crossing NA on or before September 30, 2001, Ocelot shall be entitled file IRS Form 1139, Corporation Application for Tentative Refund, to carry-back the approximately $8.4 million year 2000 product liability losses to the tax year ended January 2, 1994 and, if necessary, to any refund of subsequent tax year; (ii) on or before the extended due date for filing the year 2001 Ocelot consolidated federal income Tax Return, the Corporations will prepare and Ocelot shall file IRS Form 1139, Corporation Application for Tentative Refund, to carry-back any Pre- Closing Taxes Tax attribute of the Company Corporations to the earliest tax year possible; (iii) Ocelot shall allow Purchaser and its subsidiaries counsel to review such Form 1139 prepared by Ocelot in advance of filing with the IRS and any Taxes of the Company and its subsidiaries for the pre-Closing portion of a Straddle Period, including, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date file such Form 1139s without the prior written consent of ExodusPurchaser, which will not be unreasonably withheld; provided(iv) Ocelot shall respond to any IRS inquiries relating to such Form 1139s, howeveramended Tax Returns and refund claims on a timely basis so as not to delay receipt of any Tax refunds and allow Purchaser and its counsel to participate in any discussions with the IRS related thereto; and (v) Ocelot shall provide Purchaser at the Closing with a properly prepared and signed IRS Form 2848, that Power of Attorney and Declaration of Representative, granting Purchaser's representatives authority to represent Ocelot, at Purchaser's expense, in Tax matters relating to such consent Form 1139s, amended Tax Returns and Tax refund claims resulting from carryback of any Tax attribute of the Corporations, which Power of Attorney and Declaration of Representative shall not be unreasonably withheld revoked by Ocelot or Shareholders. After Closing, any expenses attributable to preparing such Form 1139s and amended Tax Returns or attaining such consent Tax refunds shall not be necessary borne by the Corporations and the Purchaser. Prior to the extent that Global Crossing NA has indemnified Exodus against Closing, Ocelot and the effects Corporations will use any Tax refund or reduction in Tax liability from the utilization of any such claim for refund. Global Crossing NA shall reimburse Exodus and Tax attribute of any of the Company and its subsidiaries for reasonable out-of-pocket expenses incurred Corporations, other than a reduction in providing such cooperation.
(b) If an indemnified party receives a refund or credit Tax liability of Taxes for which it has been indemnified pursuant to this Agreementany of the Corporations, such indemnified party agrees to pay to off outstanding balances under the indemnifying party the amount of Credit Facility when such refund is received or credit (including such reduction in Tax liability is realized by the Ocelot affiliated group. After the Closing, Ocelot or its successors will immediately pay to Purchaser any interest Tax refund received thereon).
(c) Subject to which results from a utilization of any Tax attribute of any of the following sentence and to the extent permitted Corporations by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided carryback or inclusion in the following sentenceapplicable Ocelot consolidated (or combined) Tax Return, neither Global Crossing NA nor any of its affiliates shall be required whether prepared and filed by the Tax Agent or Ocelot, when such refund is received. Upon request by Purchaser from time to pay to Exodustime, the Company Ocelot or its subsidiaries any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company successors shall provide Purchaser or its subsidiaries in any Post-Closing representatives access to all Tax Period, except that the Company returns and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any related books and records of its affiliates (other than the Company or any of its subsidiaries) shall be entitled Ocelot to carry back losses or tax credits from any such Post-Closing Tax Period enable Purchaser to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereon.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion confirm compliance with respect to the manner in which any amended foregoing Tax Return shall be prepared and filedmatters.
Appears in 1 contract
Tax Refunds. (ai) Global Crossing NA shall be entitled to any refund of any Pre- Closing Taxes of the Company and its subsidiaries and any Taxes of the Company and its subsidiaries for the pre-Closing portion All Tax refunds or credits (in lieu of a Straddle Period, including, in each case, refund) of Taxes (including any interest paid thereon. Global Crossing NA shall have ) of any of the right to determine whether Acquired Companies for any claim for refund for such Pre-Closing Tax Period or the portion of any Straddle Period ending on the Closing Date that are received or actually utilized (in the form of a reduction of cash Taxes actually payable) by Purchaser or the Acquired Companies after the Closing (a “Pre-Closing Tax Refund”) shall be made for the account of the Seller, and Purchaser shall pay to the Seller the amount of any Pre-Closing Tax Refund (net of any reasonable out of pocket costs, expenses and Taxes incurred or imposed on behalf Purchaser, its Affiliates or any Acquired Company in obtaining, receiving or accruing such Pre-Closing Tax Refund) within ten (10) Business Days after receipt of Global Crossing NA by any such Pre-Closing Tax Refund (or in the Company case of a credit, within ten (10) Business Days of the filing of a Tax Return actually utilizing such credit). Purchaser and its subsidiaries. If Global Crossing NA elects to make Affiliates shall, if the Seller so requests (and at Seller’s cost), file a claim for refundand use reasonable efforts to obtain any Pre-Closing Tax Refund; provided, Exodushowever, that Purchaser, its Affiliates and the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA Acquired Companies shall not be entitled required to make take any claim for refund action that could result in or otherwise cause such Person to incur any material unreimbursed costs and expense. This Section 5.6(d) shall not apply to any Pre-Closing Tax Refund that was taken into account in Closing Net Working Capital or that results from the carryback of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company a net operating loss or its subsidiaries for any other Tax attribute incurred in a Post-Closing Tax Period or the portion of any Straddle Period beginning on the day following the Closing Date.
(ii) If any Deductions are not permitted to be reported in a Pre-Closing Period but instead are deductible by the Acquired Companies in a Post-Closing Tax Period or portion of a Straddle Period beginning after the Closing Date without (“Post-Closing Period”), or are deductible in a Pre-Closing Period but the prior written consent of Exodus; provideddeductions contribute to a loss carryforward rather than a reduction in the Taxes payable by the Acquired Companies in such period (determined on a “with and without” basis), howeverthen, that such consent shall not be unreasonably withheld and such consent shall not be necessary except to the extent that Global Crossing NA has indemnified Exodus against reflected as a tax asset in the effects of any such claim for refund. Global Crossing NA Closing Net Working Capital, Purchaser shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperation.
(b) If an indemnified party receives a refund or credit of Taxes for which it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay over to the indemnifying party the Seller an amount of such refund or credit (including any interest received thereon).
(c) Subject equal to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred net reduction in any Post-Closing Tax Period. Except as provided Taxes realized (in the following sentenceform of a refund, neither Global Crossing NA nor any of its affiliates shall be credit or reduction in otherwise required to pay to Exodus, Tax payments otherwise payable by the applicable Acquired Company or its subsidiaries Affiliates) resulting from such Deductions or loss carryforward (a “Tax Benefit Payment”) within ten (10) Business Days after such reduction is realized by any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Acquired Company or its subsidiaries the affiliated, combined or consolidated group including the Acquired Companies, as applicable, provided that Tax Benefit Payments shall only be made if the net reduction in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary Taxes to which they relate are realized during or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period first three taxable years of the Company and its subsidiaries Acquired Companies (or for the portion of a Straddle Period consolidated or affiliated group that includes the Acquired Companies) ending after the Closing Date. For the avoidance of doubt, Global Crossing NA Purchaser shall pay report, or cause the Acquired Companies to Exodusreport, net all Deductions on their income Tax Returns for the first taxable period for which such Deductions may be reported under applicable Law. For each of any additional costs the three taxable periods for which a Tax Benefit Payment could be required, on or prior to ten (other than costs that are indemnified pursuant to Section 8.2(d10) hereofdays following the date on which the Purchaser or relevant Acquired Company files its U.S. federal income Tax Return (whether or not a Tax Benefit Payment is due for such year), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereon.
(d) If and Purchaser will deliver to the extent Seller an explanation and calculation of the Tax Benefit Payment for that Exodus taxable year (i) is not permitted by applicable law even if zero), together with such other information as the Seller may reasonably request to forego a carryback of any net operating loss, capital loss or tax credit attributable allow it to confirm the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filedcalculation.
Appears in 1 contract
Tax Refunds. Purchaser shall use commercially reasonable efforts to apply for and obtain Tax Refunds (aas defined below in this Section 7.5) Global Crossing NA shall be entitled to which the Company or any refund of any Pre- Closing Taxes of the Company Subsidiaries may be entitled and its subsidiaries and to which Seller is entitled to payment of pursuant to this Section 7.5, unless Purchaser reasonably determines that any Taxes of the Company Purchaser Indemnitees would be adversely affected by applying for or obtaining any such Tax Refund; provided that if Seller objects to such determination by Purchaser that any of the Purchaser Indemnitees would be adversely affected by applying for or obtaining any such Tax Refund, Seller may submit the disagreement regarding whether any Purchaser Indemnitee would be adversely affected to the Accountants (as provided in Section 7.3) and its subsidiaries such disagreement shall be deemed to be a dispute regarding the preparation of filing of a Tax Return, using the procedure set forth in Section 7.3 for the preresolution of such dispute. Notwithstanding the foregoing, Purchaser shall not be obligated to pursue any Tax Refund pursuant to this Section 7.5 on behalf of Seller if Purchaser reasonably determines that the cost of applying for and obtaining such Tax Refund exceeds the amount of such Tax Refund, unless Seller pays to Purchaser in advance amounts sufficient to cover such shortfall. Subject to Section 7.6, Purchaser shall pay or cause to be paid to Seller all Tax Refunds that are actually received by the Company or the Company Subsidiaries after the Closing Date (within 10 days of the actual receipt of such refund) for (i) a Pre-Closing Period and (ii) a portion of a all Tax Refunds paid by the Company or the Company Subsidiaries for any Straddle Period, includingPeriod (such portion to be allocated consistent with the principles set forth in Section 7.4), in each case, interest paid thereon. Global Crossing NA shall have the right net of (x) any Taxes (or increase in Taxes) imposed upon or attributable to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company Tax Refund and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; provided, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary to the extent that Global Crossing NA has indemnified Exodus against the effects of any such claim for refund. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for (y) all reasonable out-of-pocket costs and expenses of Purchaser Indemnitees incurred in providing connection with applying for and obtaining such cooperation.
Tax Refund and except to the extent such Tax Refund in (bi) If an indemnified party receives a refund or credit of Taxes and (ii) are reflected on the Closing Working Capital Statement (in which case, such Tax Refund and the related out-of-pocket costs and expenses shall be for which it has been indemnified pursuant Purchaser’s account). Notwithstanding anything to the contrary contained in this Agreement, such indemnified party agrees Seller shall not be entitled to pay any Tax Refund with respect to the indemnifying party Company or the amount Company Subsidiaries which relates to a carryback of such refund or credit a Tax attribute (including net operating losses and net capital losses) generated in any Taxable period beginning after the Closing Date. For this purpose, a «Tax Refund« shall mean any refund, rebate, abatement, reduction or other recovery (whether directly or indirectly through a right of setoff or credit) of Taxes (including payments of estimated Taxes) of the Company, the Subsidiaries and their Affiliates and any interest received thereon).
(c) Subject to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback thereon with respect to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to Periods and the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA shall pay to Exodus, net Portion of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereonStraddle Period.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
Appears in 1 contract
Samples: Stock Purchase Agreement (Jean Coutu Group (PJC) Inc.)
Tax Refunds. (a) Global Crossing NA shall be entitled to any Any Tax refund of any Pre- Closing Taxes of the Company and its subsidiaries and that relates to Taxes paid prior to the Closing Date for any Pre-Closing Tax Period or to Taxes that are taken into account in determining final Closing Working Capital (or any other component of the Company and Purchase Price) that are actually received by Buyer or its subsidiaries Affiliates after the Closing Date (including any interest thereon) (a "Pre-Closing Tax Refund") shall be for the pre-account of Sellers, except (i) to the extent any such refund (or the Tax benefit to which it relates) was taken into account in determining final Closing portion Working Capital or (ii) for refunds arising from the carryback of a Straddle Period, including, loss arising in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period or to a Pre-Closing Tax Period (for the portion avoidance of a Straddle doubt, except as provided in clause (i), the carryback of any Income Tax losses incurred for the Pre-Closing Tax Period beginning after ending on the Closing Date without shall generate Pre-Closing Tax Refunds that are for the prior written consent account of Exodus; providedSellers, however, that regardless of when the Tax Return(s) claiming such consent refund are filed or such refunds are actually paid). Buyer shall not be unreasonably withheld and such consent shall not be necessary pay to Seller Representative (for the extent that Global Crossing NA has indemnified Exodus against benefit of the effects Sellers) the amount of any such claim for refund. Global Crossing NA shall reimburse Exodus Pre-Closing Tax Refund (less any Taxes imposed on the receipt thereof and the Company and its subsidiaries for reasonable all out-of-pocket expenses incurred in providing obtaining such cooperation.
(bamounts) If an indemnified party receives a refund or credit within 10 business days after receipt of Taxes for any such Pre-Closing Tax Refund. Each Pre-Closing Tax Refund shall be claimed in cash, and no available Pre-Closing Tax Refund to which it has been indemnified Sellers are entitled pursuant to this Agreement, such indemnified party agrees Section 8.5(e) shall be used or applied by Buyer or the Company to pay to the indemnifying party the amount Taxes that may be due in respect of such refund or credit (including any interest received thereon).
(c) Subject to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any The allocation of its affiliates a refund for a Straddle Period shall be required to pay to Exodusdetermined consistently with the principles of Section 8.5(d). Buyer shall, and shall cause the Company or its subsidiaries any refund or credit of Taxes that results from to, take all actions reasonably requested by the carryback Seller Representative (at the Sellers' expense) to secure any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period Refunds after the Closing Date, Global Crossing NA shall pay to Exodus, net (including using any available accelerated or "quick" refund procedures) for the benefit of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereonthe Sellers.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
Appears in 1 contract
Tax Refunds. (a) Global Crossing NA shall be entitled to any refund The Seller Share of the amount of any Pre- Closing refunds of Taxes of the Company and its subsidiaries and Subsidiaries for any Taxes of the Company and its subsidiaries for the prePre-Closing portion of a Straddle Period, including, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA Effective Time Period received by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of ExodusPurchaser, the Company or its subsidiaries Subsidiaries shall be for any Post-Closing Tax Period or the portion account of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; providedSeller, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary except to the extent that Global Crossing NA has indemnified Exodus against the effects of any such claim for refund. Global Crossing NA shall reimburse Exodus and refund (a) was included as a Working Capital Asset (as defined in the Company and its subsidiaries for reasonable out-of-pocket expenses incurred Class A Purchase Agreement) in providing such cooperation.
the final determination of Effective Time Working Capital (as defined in the Class A Purchase Agreement) in accordance with the Class A Purchase Agreement, (b) If an indemnified party receives a refund or credit of Taxes for which it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon).
(c) Subject to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereon.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss credit or tax credit attributable to other Tax attribute from any Tax period (or portion thereof) beginning after the Effective Time or (c) is of Seller Taxes that are paid by Purchaser, any of its Affiliates, the Company or any of its subsidiariesSubsidiaries after the Closing that have not been indemnified by Seller pursuant to Section 12.2(b)(iii). The amount of any refunds of Taxes of the Company and its Subsidiaries for any Tax period beginning after the Effective Time shall be for the account of Purchaser. The Seller Share of the amount of any refunds of Taxes of the Company and its Subsidiaries for any Straddle Period shall be equitably apportioned between Purchaser and Seller in accordance with the principles set forth in Section 10.3, except that no such refund shall be apportioned to Seller to the extent any such refund (i) was included as a Working Capital Asset (as defined in the Class A Purchase Agreement) in the final determination of Effective Time Working Capital (as defined in the Class A Purchase Agreement) in accordance with the Class A Purchase Agreement, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carrybackresults from the carryback of any net operating loss, and credit or other Tax attribute from any Tax period (or portion thereof) beginning after the Closing Date or (iii) indemnifies is of Seller Taxes that are paid by Purchaser, any of its Affiliates, the Company or any of its Subsidiaries after the Closing that have not been indemnified by Seller pursuant to Section 12.2(b)(iii). Each party shall forward, and holds harmless Global Crossing NA on an aftershall cause its Affiliates to forward, to the party entitled to receive a refund of Tax pursuant to this Section 10.6 the amount of such refund within thirty (30) days after such refund is received, net of any reasonable third-tax basis for all party costs and or expenses incurred by such party or its Affiliates in respect of obtaining procuring such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
Appears in 1 contract
Samples: Securities Purchase Agreement (Plains All American Pipeline Lp)
Tax Refunds. (ai) Global Crossing NA shall be entitled After the Closing Date, except to any refund the extent (A) included as an asset in Closing Net Working Capital as finally determined hereunder, or (B) attributable to the carryback of any Pre- Closing Taxes of the Company and its subsidiaries and any Taxes of the Company and its subsidiaries for the pre-Closing portion of loss from a Straddle Period, including, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period to a Pre-Closing Tax Period, if Arion or any of its Affiliates receives any Tax refund of the portion of a Straddle Purchased Entities for the Pre-Closing Tax Period beginning after the Closing Date without the prior written consent of Exodus; providedor with respect to other Taxes for which Sphinx is responsible under Section 6.9(a)(i) or an Overpayment Credit, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary in each case to the extent that Global Crossing NA has attributable to (x) Taxes paid by or on behalf of Sphinx, any Purchased Entity or any of Sphinx’s Affiliates on or prior to the Closing Date, (y) Taxes actually indemnified Exodus against the effects of any such claim for refund. Global Crossing NA by Sphinx hereunder or (z) Taxes included as a liability in Closing Net Working Capital (if any) (in each case, as finally determined hereunder), Arion shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperation.
(b) If an indemnified party receives a refund or credit of Taxes for which it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay to Sphinx the indemnifying party the entire amount of such refund or credit Overpayment Credit (including any interest received thereonthereon from the Taxing Authorities, but net of any Taxes imposed by, a Taxing Authority with respect to such Tax refund or other costs and expenses incurred by Arion or its Affiliates) as soon as practicable after receipt thereof; provided that if Arion is required to repay to the relevant Taxing Authority such Tax refund, Sphinx shall repay the amount previously paid by Arion to Sphinx pursuant to this Section 6.9(d) in respect of such refund (plus any penalties, interest or other charges imposed by the relevant Taxing Authority). Arion shall, at Sphinx’s sole cost and expense, prosecute in good faith and with reasonable diligence any Tax refund claims filed by a Purchased Entity or with respect to the Purchased Assets prior to the Closing which are identified in writing by Sphinx to Arion within 90 days of the Closing Date. Arion shall also, if requested by Sphinx within 90 days of the Closing Date, and at Sphinx’s sole cost and expense, cause the relevant entity to file for and attempt in good faith and with reasonable diligence to obtain any Tax refund (or Overpayment Credit) that would give rise to a payment under this Section 6.9(d); provided that, Arion shall only be required to take such action if (A) pursuing or obtaining such refund is, in Arion’s good faith judgment (after consultation with applicable tax counsel), reasonably expected to have the effect of increasing the Tax liability or decreasing any Tax asset or attribute (other than the Tax refund payable to Sphinx hereunder) of the Arion or its Affiliates in a Post-Closing Taxable Period, and (B) the legal right to such Tax refund has a “more likely than not” (or high confidence level) basis of being sustained if challenged by the relevant governmental authority.
(cii) Subject Except as otherwise required by applicable Law or in connection with the resolution of any Tax Claim in accordance with Section 6.9(f), Arion shall not, and shall cause its Affiliates not to, (A) make or change any Tax election of the Purchased Entities or related to the following sentence and to Purchased Assets, the extent permitted by law, Exodus will elect to forego any carrybacks Assumed Liabilities or the Business for the Company and its subsidiaries incurred in any Posta Pre-Closing Tax Period or Straddle Period. Except as provided in the following sentence, neither Global Crossing NA nor (B) amend, file, refile or otherwise modify (or grant an extension of any applicable statute of limitations with respect to) any Pre-Closing Tax Return or Straddle Period Tax Return or (C) carry back any Tax attribute, including any loss, loss carry forward, credit, credit carry forward, prepaid Tax or refund, and any claim for or right to receive any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries foregoing (a “Tax Attribute”) of any refund or credit of Taxes that results the Purchased Entities from a Tax period ending after the carryback Closing Date to any Pre-Closing Tax Period (each, a “Post-Closing Tax Action”) in each case, without the prior written consent of Sphinx (such consent not to be unreasonably withheld, conditioned or delayed). If Arion or any net operating loss, capital loss or tax credit attributable of its Affiliates does carry back a Tax Attribute to the Company or its subsidiaries in any Posta Pre-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns then (x) no payment with Global Crossing NA respect to such carryback shall be due to Arion or any of its affiliates (other than the Company Affiliates from Sphinx or any of its subsidiariesSubsidiaries and (y) if Arion or any of its Affiliates receives any refund, credit or offset of any Taxes in connection with such carryback, Arion shall be entitled promptly pay to carry back losses Sphinx the full amount of such refund of Taxes pursuant to Section 6.9(d). After the Closing, Sphinx shall not, and shall not permit any of its Subsidiaries to, amend any Tax Returns or tax credits from change any such Post-Closing Tax Period elections or accounting methods with respect to any of the Purchased Entities, the Purchased Assets, the Assumed Liabilities or the Business relating to any Pre-Closing Tax Period and to receive any resulting refund the extent such amendment or change could be expected to increase the Taxes of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA Arion or any of its affiliatesAffiliates (including the Purchased Entities) for which it would not otherwise be indemnified under Section 6.9(a) unless such change is necessary to comply with applicable Tax law, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted as reasonably determined in good faith by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereonSphinx.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
Appears in 1 contract
Samples: Purchase Agreement (Symantec Corp)
Tax Refunds. (ai) Global Crossing NA GA Interholdco shall be entitled to any refund refunds (or credits received in lieu of any Pre- Closing Taxes of the Company and its subsidiaries and any Taxes of the Company and its subsidiaries for the pre-Closing portion of a Straddle Period, including, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability refunds) received for Taxes of Exodus, the Company or its subsidiaries paid for any PostPre-Closing Tax Period of the GA Blocker (the “GA Blocker Tax Refund”), (ii) each RCP Blocker Stockholder, in accordance with the percentages set forth opposite such RCP Blocker Stockholder’s name on Schedule 1.1, shall be entitled to any refunds (or credits received in lieu of such refunds) received for Taxes paid for any Pre-Closing Tax Period of the portion RCP Blocker (the “RCP Blocker Tax Refund” and together with the GA Blocker Tax Refund, the “Blocker Tax Refunds”) and (iii) the Blocker Sellers and the Unitholders (other than any holder of Blocker Units) shall be entitled to any refunds (or credits received in lieu of such refunds) received for Taxes paid for any Pre-Closing Tax Period of the Barteca Entities (including, for the avoidance of doubt, any refunds of employment, payroll and similar Taxes paid or withheld by the Barteca Entities in respect of employees or other service providers of, the Barteca Entities prior to the Closing) (each, a “Barteca Tax Refund”), in each case along with any interest paid by the relevant Tax Authority with respect thereto; provided that Blocker Tax Refunds and Barteca Tax Refunds shall exclude any Tax refund (or credit in lieu of such refund) (A) resulting from the carryback of a Straddle Period beginning net operating loss from a Tax period (or portion thereof) ending after the Closing Date without to a Pre-Closing Tax Period, (B) with respect to Taxes which are economically borne by Purchaser or any of its Affiliates (including, after the prior written consent of Exodus; providedClosing, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary the Barteca Entities) or (C) to the extent that Global Crossing NA has indemnified Exodus against such Tax refund (or credit in lieu of such refund) was included in the effects final calculation of the Actual Working Capital. Purchaser shall be entitled to any refunds (or credits received in lieu of such claim refunds) received for refund. Global Crossing NA shall reimburse Exodus taxes paid by any of the Barteca Entities or the Blockers other than the Blocker Tax Refunds and the Company and Barteca Tax Refunds. Any Party (or any of its subsidiaries for Affiliates) that receives a refund (or credit received in lieu of such refund) to which another Party is entitled under this Section 7.6(d) shall pay the amount of such refund (or credit received in lieu of such refund), net of (1) any reasonable out-of-pocket expenses incurred in providing such cooperation.
(b) If an indemnified party receives a refund or credit of Taxes for which it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay to the indemnifying party the amount of connection with obtaining such refund or credit credit, and (including any interest received thereon).
(c2) Subject to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any case of its affiliates shall be required to pay to Exodus, a Barteca Tax Refund resulting from a Tax Action that is described in clause (iii) of the Company or its subsidiaries any refund or credit proviso in the definition of Taxes that results from the carryback to any Pre-Closing Tax Period of Taxes, any net operating loss, capital loss amounts paid or tax credit attributable to payable by the Company or its subsidiaries that are described in any Post-Closing Tax Period, except that clause (iii) of the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any proviso in the definition of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereonTaxes, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to Party entitled thereto within ten (10) Business Days after receipt thereof. At the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period request of the Company Sellers’ Representative, Purchaser and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA Affiliates shall pay to Exodus, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereon.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all use commercially reasonable measures efforts to obtain a refund with respect to any such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Blocker Tax Return shall be prepared and filedRefunds and/or Barteca Tax Refunds.
Appears in 1 contract
Samples: Purchase Agreement (Del Frisco's Restaurant Group, Inc.)
Tax Refunds. (a) Global Crossing NA shall be entitled to any refund of any Pre- Closing Taxes of the Company If and its subsidiaries and any Taxes of the Company and its subsidiaries for the pre-Closing portion of a Straddle Period, including, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; provided, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary to the extent that Global Crossing NA (i) Equity Seller or Sellers' Parent has indemnified Exodus against the effects Equity Purchaser or ATPG from any Taxes and (ii) such Taxes are refunded in any form (e.g., by way of payment, set-off, etc.) as a result of appeals being filed or by reason of a court decision or a closing agreement or any such claim for refund. Global Crossing NA other final settlement agreement entered into in connection with an administrative or judicial proceeding, Equity Purchaser or its legal successors shall reimburse Exodus and Equity Seller for payments made by Equity Seller under Section 10.1 with respect to such Taxes, together with any interest paid on the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperationreimbursed amounts by the relevant tax authorities.
(b) If an indemnified party receives a refund or credit of Taxes for which it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay and to the indemnifying party extent (i) Equity Seller has indemnified Equity Purchaser or ATPG from any Taxes and (ii) the amount Seller Parties or their consultants determine that such Taxes are refundable in any form (e.g., by way of payment, set-off, etc.), then Equity Purchaser shall ensure that ATPG takes all commercially reasonable actions necessary to ensure that such refund or credit (including Taxes are refunded to Equity Seller, including, without limitation, making filings with Governmental Entities, provided that the Seller Parties shall be responsible for any interest received thereon)and all costs incurred by 66 Equity Purchaser in connection with such actions. Sellers shall not be responsible for the cost of any services covered by the Armacell Agreement.
(c) Subject Equity Purchaser or their legal successors shall reimburse Equity Seller the amount of any other Tax refund of ATPG relating to (portions of) periods prior to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes Date including any interest received thereon, but only if paid thereon unless such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus refund is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period after shown in the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereonDate Balance Sheet.
(d) If and to Equity Purchaser shall notify Equity Seller in writing of the extent that Exodus (i) is not permitted by applicable law to forego a carryback receipt of any net operating lossTax refund in any form (e.g., capital loss or tax credit attributable by way of payment, set-off, etc.) within thirty (30) Business Days following such receipt, set-off, etc. Any amount payable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect Equity Seller pursuant to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return this Section 10.4 shall be prepared due and filedpayable within ten (10) Business Days after delivery of such notice.
Appears in 1 contract
Tax Refunds. (a) Global Crossing NA shall be entitled to any refund of any Pre- Closing Taxes of the Company and its subsidiaries and any Taxes of the Company and its subsidiaries for the pre-Closing portion of a Straddle Period, including, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund Any refunds of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; provided, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary to the extent that Global Crossing NA has indemnified Exodus against the effects of any such claim for refund. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperation.
(b) If an indemnified party receives a refund or credit of Taxes for which it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon).
(c) Subject to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback with respect to any Pre-Closing Tax Period that are received by Purchaser, Bregal Blocker, Vista Blocker or the Company Group after the Closing Date, (any such refund, a “Pre-Closing Tax Refund”), shall be for the account of the Sellers, and Purchaser shall pay over to Sellers’ Representative for the benefit of the Sellers any such Pre-Closing Tax Refund within fifteen (15) days after receipt thereof; provided, that (i) to the extent any such Pre-Closing Tax Refunds are received with respect to Bregal Blocker, such Pre-Closing Tax Refunds shall be for the account of Bregal Seller; and (ii) to the extent any such Pre-Closing Tax Refunds are received with respect to Vista Blocker, then such Pre-Closing Tax Refunds shall be for the account of Vista Seller. Purchaser shall reasonably cooperate with Sellers’ Representative in obtaining such refunds, including through the filing of amended Tax Returns or refund claims, it being understood that (A) Purchaser shall not, and shall cause each of Bregal Blocker, Vista Blocker and the Company Group not to waive any carryback of net operating loss or other Tax attribute of any member of Bregal Blocker, Vista Blocker or the Company Group generated or otherwise attributable to a Pre-Closing Tax Period if such waiver would reduce the amount due to the Sellers pursuant to this Section 9.8(f), (B) Purchaser, Bregal Blocker, Vista Blocker and the Company Group will carryback any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in losses for any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such PostPre-Closing Tax Period to prior taxable periods as allowable by applicable law and shall claim Tax refunds as a result of such carryback (including through the filing of amended Tax Returns), (C) any such Pre-Closing Tax Refunds will be claimed in cash rather than as a credit against future Tax liabilities, (D) Purchaser, Bregal Blocker, Vista Blocker and the Company Group shall reasonably cooperate with Sellers in timely preparing and filing Tax Returns (including amendments of prior Tax Returns and claims for refunds, including claims for refunds on IRS Forms 1139 and/or 4466) for any Pre-Closing Tax Period and to receive for any resulting refund Straddle Period, and (E) apportionment of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a PostPre-Closing Tax Period of the Company and its subsidiaries or for Refund to the portion of a Straddle Period after ending on and including the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereon.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return Date shall be prepared and fileddetermined in accordance with Section 9.8(d).
Appears in 1 contract
Samples: Purchase Agreement (Blackbaud Inc)
Tax Refunds. (a) Global Crossing NA shall be entitled to any refund of any Pre- Closing Taxes of the Company and its subsidiaries and any Taxes of the Company and its subsidiaries for the pre-Closing portion of a Straddle Period, including, in each case, interest paid thereon. Global Crossing NA Seller shall have the right to determine whether any claim for refund for such Taxes pursue and shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects entitled to make a claim for refundretain, Exodusor to receive prompt payment from Purchaser, Company, the Company Subsidiaries and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoingtheir Affiliates, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; provided, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary to the extent that Global Crossing NA has indemnified Exodus against the effects secured by any of them, any such claim for refund. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperation.
(b) If an indemnified party receives a overpayment, refund or credit of Taxes (including, without limitation, refunds and credits arising by reason of Tax Returns as originally filed or amended Tax Returns) relating to the Company and the Company Subsidiaries for Pre-Closing Tax Periods (and, in the case of any Straddle Period, Purchaser shall pursue any such overpayment, refund or credit of Taxes pertaining to such Straddle Period as reasonably requested by Seller and Seller shall have the right to retain or receive prompt payment of that portion of the overpayment, refund or credit relating to the portion of the Straddle Period ending on the Closing Date), including any Tax overpayment, refund or credit of Taxes paid with respect to any such period, only to the extent that any such Tax overpayment, refund or credit has not been included as an asset (or reduction of a liability) on the Company Closing Balance Sheet or in the computation of statutory surplus reflected in the UNICARE Closing Balance Sheet. Prior to formally asserting any such claim, Seller shall give Purchaser notice of its intent to pursue such claim in the event there is a reasonable likelihood that such claim could have an adverse effect on Purchaser, the Company or the Company Subsidiaries. Purchaser (or the Company and the Company Subsidiaries) shall have the right to pursue and shall be entitled to retain, or to receive prompt payment from Seller to the extent secured by it, any overpayment, refund or credit of Taxes relating to the Company or either Company Subsidiary to which it has been indemnified Seller is not entitled pursuant to the preceding sentence. If Purchaser or its Affiliates or Seller or its Affiliates receives a Tax refund to which the other party is entitled pursuant to this Agreement, such indemnified party agrees party, as the case may be, shall pay or cause the recipient to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon).
(c) Subject to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period other party within ten (10) days after the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereonreceipt thereof.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
Appears in 1 contract
Samples: Stock Purchase Agreement (Wellpoint Health Networks Inc /De/)
Tax Refunds. (a) Global Crossing NA shall be entitled to For any refund of any Pre- Closing Taxes of Consolidated Return Year in which the Company and its subsidiaries and any Taxes of receives a tax refund from a taxing authority, the Company and its subsidiaries obtains these funds as an agent for the pre-Closing portion of a Straddle Period, including, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made Group on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, Group members; the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; provided, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary to the extent that Global Crossing NA has indemnified Exodus against the effects amount of any such claim for refund. Global Crossing NA shall reimburse Exodus and refund attributable to the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperationSubsidiaries is the property of the Subsidiaries.
(b) If an indemnified party receives If, for any taxable year, the Subsidiaries incur a loss for tax purposes (calculated on a Separate Entity Basis, under Section 3(a) above), the Subsidiaries shall record a current tax benefit and receive a refund or credit from the Company in an amount no less than the amount the Subsidiaries would have been entitled to receive as separate entities. The refund will be made to the Subsidiaries by the Company within ten days following the date the Subsidiaries would have filed their own return, regardless of Taxes whether the consolidated group is receiving a refund. This period will not exceed the period for which it has been indemnified pursuant refunding excess estimated payments specified in Section 3(b) above. This Agreement does not prevent the Company from reimbursing the Subsidiaries in an amount greater than the refund amount due to the Subsidiaries on a Separate Entity Basis. If the Subsidiaries will not be required to repay this Agreementexcess amount to the Company, such indemnified party agrees to pay to an additional amount received by the indemnifying party Subsidiaries from the amount of such refund or credit (including any interest received thereon)Company shall be reported as a capital contribution.
(c) Subject For any taxable year in which the Subsidiaries incur a tax loss calculated on a Separate Entity Basis, and the Subsidiaries as separate entities would not be entitled to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodusa current refund because they have no carryback benefits available on a Separate Entity Basis, the Company or its subsidiaries any refund or credit may still be able to utilize the Subsidiaries’ tax loss to reduce the consolidated group’s current tax liability. In this situation, the Company may elect to reimburse the Subsidiaries for use of Taxes that results from the carryback Subsidiaries’ tax loss. If such reimbursement to any Pre-Closing Tax Period the Subsidiaries are made by the Company within a reasonable time following the Company’s use of any net operating the tax loss, capital the Subsidiaries will reflect the tax benefit of the loss or tax credit attributable to in the Company or its subsidiaries current portion of their applicable income taxes in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than period the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any loss is incurred. If such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding reimbursement is made after the foregoing period described in the previous sentence, if and to the extent that Exodus Subsidiaries will not recognize the tax benefit in the current portion of their applicable income taxes in the loss year. In this latter case where reimbursement is not permitted by applicable law to forego made, the tax loss represents a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period loss carryforward of the Company and its subsidiaries or for Subsidiaries, the portion benefit of which is recognized as a Straddle Period after deferred tax asset of the Closing Date, Global Crossing NA shall pay to ExodusSubsidiaries, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereonvaluation allowance.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
Appears in 1 contract
Samples: Tax Allocation Agreement (Gouverneur Bancorp, Inc./Md/)
Tax Refunds. (a) Global Crossing NA Except to the extent taken into account in the calculation of Net Working Capital as finally determined pursuant to Section 1.04, taken into account in calculating the Final Cash Consideration or subject to a payment obligation of the Company or its Subsidiaries to another Person that is in effect on or before the Closing Date, the Seller shall be entitled to any refund or credit for overpayment of any Pre- Closing Taxes of the Company and its subsidiaries and any Taxes of the Company and its subsidiaries for the pre-Closing portion (in lieu of a Straddle Period, including, in each case, refund) (including any interest paid by a Governmental Entity thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA ) received by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period or Subsidiaries prior to the portion second anniversary of a Straddle Period beginning after the Closing Date without the prior written consent (a “Tax Refund”) of Exodus; provided, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary to the extent that Global Crossing NA has indemnified Exodus against the effects of any such claim for refund. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperation.
(b) If an indemnified party receives a refund or credit of Taxes for which it has been indemnified pursuant to this Agreement, such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon).
(c) Subject to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to Subsidiaries for any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than Taxes paid by the Company or any of its subsidiariesSubsidiaries on or before the Closing Date. Within five (5) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereonBusiness Days after receipt by the Purchaser, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA the Company or any Subsidiary thereof of its affiliatesany Tax Refund to which the Seller is entitled, unless Exodus has indemnified Global Crossing NA for the Purchaser or the Company shall, or shall cause the applicable Subsidiary to, deliver and pay over, by wire transfer of immediately available funds, such material Tax costs Refund to an account or material adverse affect on an after-tax basisaccounts designated by the Seller, net of any Taxes and other expenses incurred to obtain such Tax Refunds. Notwithstanding the foregoing sentenceThe Purchaser will, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of will cause the Company and its subsidiaries or Subsidiaries to, at the Seller’s expense, execute such documents, take reasonable additional actions and otherwise reasonably cooperate as may be necessary for the portion Purchaser, the Company and its Subsidiaries to perfect their rights in and obtain all Tax Refunds for which any such Person is eligible and to which the Seller is entitled. None of a the Purchaser, the Company, or its Subsidiaries shall forfeit, fail to collect or otherwise minimize any Tax Refund to which the Seller would be entitled under this Section 10.02(h), except as required by applicable Laws. In the case of any Straddle Period, the amount of Tax Refunds to which the Seller is entitled shall be determined as if the relevant Straddle Period after ended on the Closing Date. Notwithstanding any other provision in this Agreement, Global Crossing NA shall pay to Exodus, net of if any additional costs (other than costs such refunds that are indemnified subsequently required to be paid back to a Governmental Entity (each, a “Disallowed Tax Benefit”), then such refunds shall be indemnifiable Losses for which the Seller shall indemnity the Purchaser pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereonArticle XI.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
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Samples: Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Tax Refunds. Purchaser shall use commercially reasonable efforts to apply for and obtain Tax Refunds (aas defined below in this Section 7.5) Global Crossing NA shall be entitled to which the Company or any refund of any Pre- Closing Taxes of the Company Subsidiaries may be entitled and its subsidiaries and to which Seller is entitled to payment of pursuant to this Section 7.5, unless Purchaser reasonably determines that any Taxes of the Company Purchaser Indemnitees would be adversely affected by applying for or obtaining any such Tax Refund; provided that if Seller objects to such determination by Purchaser that any of the Purchaser Indemnitees would be adversely affected by applying for or obtaining any such Tax Refund, Seller may submit the disagreement regarding whether any Purchaser Indemnitee would be adversely affected to the Accountants (as provided in Section 7.3) and its subsidiaries such disagreement shall be deemed to be a dispute regarding the preparation of filing of a Tax Return, using the procedure set forth in Section 7.3 for the preresolution of such dispute. Notwithstanding the foregoing, Purchaser shall not be obligated to pursue any Tax Refund pursuant to this Section 7.5 on behalf of Seller if Purchaser reasonably determines that the cost of applying for and obtaining such Tax Refund exceeds the amount of such Tax Refund, unless Seller pays to Purchaser in advance amounts sufficient to cover such shortfall. Subject to Section 7.6, Purchaser shall pay or cause to be paid to Seller all Tax Refunds that are actually received by the Company or the Company Subsidiaries after the Closing Date (within 10 days of the actual receipt of such refund) for (i) a Pre-Closing Period and (ii) a portion of a all Tax Refunds paid by the Company or the Company Subsidiaries for any Straddle Period, includingPeriod (such portion to be allocated consistent with the principles set forth in Section 7.4), in each case, interest paid thereon. Global Crossing NA shall have the right net of (x) any Taxes (or increase in Taxes) imposed upon or attributable to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company Tax Refund and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company or its subsidiaries for any Post-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; provided, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary to the extent that Global Crossing NA has indemnified Exodus against the effects of any such claim for refund. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for (y) all reasonable out-of-pocket costs and expenses of Purchaser Indemnitees incurred in providing connection with applying for and obtaining such cooperation.
Tax Refund and except to the extent such Tax Refund in (bi) If an indemnified party receives a refund or credit of Taxes and (ii) are reflected on the Closing Working Capital Statement (in which case, such Tax Refund and the related out-of-pocket costs and expenses shall be for which it has been indemnified pursuant Purchaser’s account). Notwithstanding anything to the contrary contained in this Agreement, such indemnified party agrees Seller shall not be entitled to pay any Tax Refund with respect to the indemnifying party Company or the amount Company Subsidiaries which relates to a carryback of such refund or credit a Tax attribute (including net operating losses and net capital losses) generated in any Taxable period beginning after the Closing Date. For this purpose, a “Tax Refund” shall mean any refund, rebate, abatement, reduction or other recovery (whether directly or indirectly through a right of setoff or credit) of Taxes (including payments of estimated Taxes) of the Company, the Subsidiaries and their Affiliates and any interest received thereon).
(c) Subject to the following sentence and to the extent permitted by law, Exodus will elect to forego any carrybacks for the Company and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback thereon with respect to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to Periods and the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period of the Company and its subsidiaries or for the portion of a Straddle Period after the Closing Date, Global Crossing NA shall pay to Exodus, net Portion of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereonStraddle Period.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
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Tax Refunds. Borrower has informed Agent and Lenders that it expects to receive the Tax Refunds and hereby agrees and reaffirms that Agent has a lien on and security interest in the Tax Refunds pursuant to the terms and provisions of the Collateral Documents. Notwithstanding the foregoing and without limiting, prejudicing, qualifying or otherwise modifying the terms of the Collateral Documents, Borrower hereby assigns all of its rights, title and interest to the Tax Refunds to Agent on behalf of the Lenders and grants to Agent a lien upon and security interest in the Tax Refunds. In furtherance of the foregoing, Borrower hereby agrees as follows:
(a) Global Crossing NA Borrower shall be entitled file its 1998 and 2000 Federal and state income tax returns and/or amendments as soon as practicable but in no event later than June 30, 2001 and shall take all reasonable steps and actions to any refund of any Pre- Closing Taxes expedite the processing and obtaining of the Company and its subsidiaries Tax Refunds. Borrower shall provide Agent with certified copies of such returns and any Taxes of the Company and its subsidiaries for the pre-Closing portion of a Straddle Periodassociated filings, includingamendments, in each case, interest paid thereon. Global Crossing NA shall have the right to determine whether any claim for refund for such Taxes shall be made on behalf of Global Crossing NA by the Company and its subsidiaries. If Global Crossing NA elects to make a claim for refund, Exodus, the Company and its subsidiaries shall cooperate fully in connection therewith. Notwithstanding the foregoing, Global Crossing NA shall not be entitled to make any claim for refund of Taxes which would materially adversely affect the liability for Taxes of Exodus, the Company documents or its subsidiaries for any Post-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date without the prior written consent of Exodus; provided, however, that such consent shall not be unreasonably withheld and such consent shall not be necessary to the extent that Global Crossing NA has indemnified Exodus against the effects of any such claim for refund. Global Crossing NA shall reimburse Exodus and the Company and its subsidiaries for reasonable out-of-pocket expenses incurred in providing such cooperationcorrespondence relating thereto.
(b) If Borrower shall direct the Internal Revenue Service, on IRS Form 8888 or any successor form thereto, to deposit that portion of the Tax Refunds representing Federal income tax refunds, directly to an indemnified party receives a refund account designated and controlled by Agent. Borrower shall not, thereafter amend, modify or credit of Taxes for which it has been indemnified pursuant to this Agreement, rescind such indemnified party agrees to pay direction to the indemnifying party Internal Revenue Service. Borrower hereby directs and authorizes Agent to apply the amount Tax Refunds, as and when received by Agent, to the immediate reduction of such refund or credit the then outstanding principal balance of the Term Loan and upon payment of the Term Loan in full (including any together with all unpaid and accrued interest received thereon), to the repayment of the other Obligations as provided in the Credit Agreement and in permanent reduction of the Aggregate Commitment.
(c) Subject Borrower agrees to the following sentence execute such other documents, instruments or agreements and to take such other actions as Agent may reasonably request in order to facilitate and expedite the extent permitted by law, Exodus will elect to forego any carrybacks for the Company obtaining and its subsidiaries incurred in any Post-Closing Tax Period. Except as provided in the following sentence, neither Global Crossing NA nor any of its affiliates shall be required to pay to Exodus, the Company or its subsidiaries any refund or credit of Taxes that results from the carryback to any Pre-Closing Tax Period of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries in any Post-Closing Tax Period, except that the Company and its subsidiaries that have not filed consolidated, combined, unitary or similar returns with Global Crossing NA or any of its affiliates (other than the Company or any of its subsidiaries) shall be entitled to carry back losses or tax credits from any such Post-Closing Tax Period to any Pre-Closing Tax Period and to receive any resulting refund of Taxes including any interest received thereon, but only if such carryback would not impose a material Tax cost or otherwise materially adversely affect Global Crossing NA or any of its affiliates, unless Exodus has indemnified Global Crossing NA for such material Tax costs or material adverse affect on an after-tax basis. Notwithstanding the foregoing sentence, if and to the extent that Exodus is not permitted by applicable law to forego a carryback, then solely with respect to such carryback to the extent that Global Crossing NA receives a refund of Taxes attributable to such carryback from a Post-Closing Tax Period application of the Company and its subsidiaries or for Tax Refunds as contemplated hereunder. Borrower’s failure to strictly comply with the portion provisions of a Straddle Period after this Section 3 shall constitute an immediate Default under the Closing Date, Global Crossing NA shall pay to Exodus, net of any additional costs (other than costs that are indemnified pursuant to Section 8.2(d) hereof), incurred by or Taxes payable by Global Crossing NA or any of its affiliates by reason of such carryback, such refund including any interest received thereonCredit Agreement.
(d) If and to the extent that Exodus (i) is not permitted by applicable law to forego a carryback of any net operating loss, capital loss or tax credit attributable to the Company or its subsidiaries, (ii) timely requests in writing that Global Crossing NA obtain a refund with respect to such carryback, and (iii) indemnifies and holds harmless Global Crossing NA on an after-tax basis for all costs and expenses incurred in respect of obtaining such refund, then Global Crossing NA shall take all reasonable measures to obtain a refund with respect to such carryback; provided, however, that Global Crossing NA shall have sole discretion with respect to the manner in which any amended Tax Return shall be prepared and filed.
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