Common use of Timing Differences Clause in Contracts

Timing Differences. If pursuant to a Final Determination any Tax Attribute (including those allocated pursuant to Section 2.04(e)) is made allowable to a Reorganized TCEH Entity as a result of an adjustment to any Taxes for which an EFH Party is responsible hereunder (other than Taxes attributable to a Tax-Free Transaction Failure described in Section 2.05(a) or Section 2.05(b)) and such Tax Attribute would not have arisen or been allowable but for such adjustment, or if pursuant to a Final Determination any Tax Attribute is made allowable to a Reorganized EFH Entity as a result of an adjustment to any Taxes for which Reorganized TCEH is responsible hereunder (other than Taxes attributable to a Tax-Free Transaction Failure described in Section 2.05(c) or 2.05(d)) and such Tax Attribute would not have arisen or been allowable but for such adjustment, the Reorganized TCEH Entities (on a joint and several basis) or the Reorganized EFH Entities (on a joint and several basis), as the case may be, shall make a payment to either EFH or Reorganized TCEH, as appropriate, within thirty (30) days after such Party (or its Affiliates) actually realizes a Tax benefit by way of a Refund or a decrease in Taxes reported on a filed Tax Return (in or with respect to a taxable year that ends on or before December 31, 2021) that is attributable to such Tax Attribute, determined using a “with and without” methodology (treating any deductions or amortization attributable to such Tax Attributes as the last items claimed for any taxable year, including after the utilization of any available net operating loss carryovers); provided, that no payment shall be made under this Section unless Reorganized TCEH or EFH, as the case may be, has previously paid the Tax adjustment or indemnified the other Party for such Tax adjustment. In the event of any overlap between Section 3.03 and this Section 4.02, this Section 4.02 shall apply and Section 3.03 shall not apply.

Timing Differences. If pursuant to a Final Determination any Tax Attribute (including those allocated pursuant to Section 2.04(e)) is made allowable to a Reorganized TCEH REIT Entity as a result of an adjustment to any Taxes for which an EFH Party CEC or CEOC is responsible hereunder (other than Taxes attributable to a Tax-Free Transaction Failure described in Section 2.05(a) or Section 2.05(b)) and such Tax Attribute would not have arisen or been allowable but for such adjustment, or if pursuant to a Final Determination any Tax Attribute is made allowable to a Reorganized EFH CEC Entity as a result of an adjustment to any Taxes for which Reorganized TCEH the REIT is responsible hereunder (other than Taxes attributable to a Tax-Free Transaction Failure described in Section 2.05(c) or 2.05(d)) and such Tax Attribute would not have arisen or been allowable but for such adjustment, the Reorganized TCEH Entities (REIT, on a joint and several basis) the one hand, or CEC or CEOC, on the Reorganized EFH Entities (on a joint and several basis)other hand, as the case may be, shall make a payment to either EFH CEC, CEOC or Reorganized TCEHthe REIT, as appropriate, within thirty (30) days after such Party (or its Affiliates) actually realizes a Tax benefit by way of a Refund or a decrease in Taxes reported on a filed Tax Return (in or with respect to a taxable year that ends on or before December 31, 2021) that is attributable to such Tax Attribute, determined using a “with and without” methodology (treating any deductions or amortization attributable to such Tax Attributes as the last items claimed for any taxable year, including after the utilization of any available net operating loss carryoverscarryforwards); provided, that no payment shall be made under this Section unless Reorganized TCEH or EFH, in an amount equal to the lesser of (i) the increase in Taxes (including increases in Taxes as the case may be, has previously paid the a result of any reductions in Tax Attributes) resulting from such adjustment or indemnified the other Party for (ii) such Tax adjustmentbenefit resulting from such Final Determination. In the event of any overlap between Section 3.03 and this Section 4.02, this Section 4.02 shall apply and Section 3.03 shall not apply.

Timing Differences. If as the result of any adjustment to an Excluded Tax made in an audit or other Tax proceeding, the Sellers are required to make an additional Tax payment (either directly to a Taxing Authority or as an indemnity payment under Section 9.2 of this Agreement), or suffer a reduction in any refund or credit, and, due to such Tax payment (or reduction in refund or credit, or adjustment giving rise to such payment or reduction in such refund or credit), the Buyer or Windmill or any of their Affiliates obtains a Tax benefit, the Buyer shall pay to the Sellers an amount equal to the actual Tax benefit so derived. The amount of any such Tax benefit shall be equal to the amount of the actual reduction in Taxes (or increase in refund or credit) reflected on any Return of the Buyer or Windmill or any of their Affiliates (net of any resulting increases in Taxes borne by Buyer on any such other filed Return) for such period (or any earlier period) as compared to the amount that would have been reflected on such Return in the absence of the additional Tax payment by (or reduction in refund or credit of) Sellers. Any adjustment not resulting in a Tax benefit to the period to which it relates or any earlier period shall be carried forward to succeeding taxable years until used to the extent permitted by law. All payments to Sellers pursuant to this Section 7.3(d) shall be made within 15 days after the filing of the applicable Return for the period in which the Tax benefit is realized by Buyer or Windmill and shall be accompanied by supporting calculations in a Final Determination any form reasonably acceptable to the Sellers documenting the Tax Attribute (including those allocated pursuant benefit to Section 2.04(e)) is made allowable to a Reorganized TCEH Entity as a result of an adjustment to any Taxes for which an EFH Party is responsible hereunder (other than Taxes attributable to a Tax-Free Transaction Failure described in Section 2.05(a) the payment relates. If the Buyer or Section 2.05(b)) and such Tax Attribute would not have arisen or been allowable but for such adjustment, or if pursuant to a Final Determination any Tax Attribute is made allowable to a Reorganized EFH Entity as a result of an adjustment to any Taxes for which Reorganized TCEH is responsible hereunder (other than Taxes attributable to a Tax-Free Transaction Failure described in Section 2.05(c) or 2.05(d)) and such Tax Attribute would not have arisen or been allowable but for such adjustment, the Reorganized TCEH Entities (on a joint and several basis) or the Reorganized EFH Entities (on a joint and several basis), as the case may be, shall make Windmill makes a payment to either EFH or Reorganized TCEH, as appropriate, within thirty (30Sellers pursuant to this Section 7.3(d) days after such Party and the actual Tax benefit (or its Affiliatesportion thereof) actually realizes is eventually not realized (or another Tax benefit of Buyer is not utilized because of the prior use of a Tax benefit by way of a Refund or a decrease in Taxes reported on a filed Tax Return (in or with respect to a taxable year that ends on or before December 31, 2021) that is attributable to such Tax Attribute, determined using a “with and without” methodology (treating any deductions or amortization attributable to such Tax Attributes as the last items claimed for any taxable year, including after the utilization of any available net operating loss carryovers); provided, that no which payment shall be has been made under this Section unless Reorganized TCEH 7.3(d)), the Buyer shall promptly notify the Sellers (with documents reasonably acceptable to Sellers supporting the loss of Tax benefit) and, upon receipt of such notice, the Sellers shall promptly refund such payment (or EFHallocable portion thereof) to the Buyer or Windmill (PROVIDED that in no case shall Sellers, as the case may be, has previously paid the Tax adjustment or indemnified the other Party for such Tax adjustment. In the event in respect of any overlap between Section 3.03 and payment a refund of which is sought under this Section 4.02sentence, this Section 4.02 shall apply and Section 3.03 shall not applybe required to refund an amount in excess of such payment previously received by Sellers from Buyer).

Timing Differences. If pursuant to a Final Determination any Tax Attribute (including those allocated pursuant to Section 2.04(e)) is made allowable to a Reorganized TCEH Entity as a result of an adjustment to any Taxes for which an EFH Party is responsible hereunder (other than Taxes attributable to a Tax-Free Transaction Failure described in Section 2.05(a) or Section 2.05(b)Failure) and such Tax Attribute would not have arisen or been allowable but for such adjustment, or if pursuant to a Final Determination any Tax Attribute is made allowable to a Reorganized EFH Entity as a result of an adjustment to any Taxes for which Reorganized TCEH is responsible hereunder (other than Taxes attributable to a Tax-Free Transaction Failure described in Section 2.05(c) or 2.05(d)) and such Tax Attribute would not have arisen or been allowable but for such adjustment, the Reorganized TCEH Entities or the EFH Parties (on a joint and several basis) or the Reorganized EFH Entities (on a joint and several basis), as the case may be, shall make a payment to either the applicable EFH Party or Reorganized TCEH, as appropriate, within thirty (30) days after such Party (or its Affiliates) actually realizes a Tax benefit by way of a Refund or a decrease in Taxes reported on a filed Tax Return (in or with respect to a taxable year that ends on or before December 31, 2021) that is attributable to such Tax Attribute, determined using a “with and without” methodology (treating any deductions or amortization attributable to such Tax Attributes as the last items claimed for any taxable year, including after the utilization of any available net operating loss carryovers); provided, provided that no payment shall be made under this Section unless Reorganized TCEH or EFHthe applicable EFH Party, as the case may be, has previously paid the Tax adjustment or indemnified the other Party for such Tax adjustment. In the event of any overlap between Section 3.03 and this Section 4.02, this Section 4.02 shall apply and Section 3.03 shall not apply.