Common use of Timing Differences Clause in Contracts

Timing Differences. In the event of any increase in Taxes for any reason in any taxable period of the Company or any Subsidiary resulting from a Timing Adjustment, which increase is subject to indemnification by Seller under Section 8.2(a), such indemnification obligation of Seller shall be reduced by the amount of any Tax savings realized by Buyer, the Company or any Subsidiary as a result of such Timing Adjustment. For purposes of this Section 5.11(c), a Timing Adjustment shall mean any shift of income, deduction or credit between one taxable period and another taxable period which causes an increase in Taxes in the one taxable period and a decrease in Taxes in the other taxable period or results in a Tax benefit in such other taxable period that may be carried to a different taxable period or periods. For this purpose, a Tax Return of the Company or any Subsidiary filed by Buyer for a taxable period beginning after December 31, 2004 and ending on or before the Closing Date which is not consistent with the past practices and positions of the Company and its Subsidiaries shall be considered to result in a Timing Adjustment to the extent that (i) income or deductions that would have been reported on such Tax Return in accordance with the past practices and positions of the Company and its Subsidiaries are shifted to a different taxable period, or (ii) income or deductions that would have been reported in a different taxable period in accordance with the past practices and positions of the Company and its Subsidiaries are shifted to the taxable period reported on such Tax Return. The amount of Tax savings realized shall be equal to the excess of (x) the amount of Taxes that would have been payable in the absence of the Timing Adjustment in the taxable period to which the adjustment is made or any other taxable periods in which a Tax benefit resulting from such adjustment may be recognized over (y) the amount of Taxes actually paid in such taxable period or periods. This Section 5.11(c) shall not be interpreted, in conjunction with Section 8, to allow an indemnified party to be indemnified more than once for the same loss, cost or expense. Notwithstanding the foregoing, Buyer shall be indemnified for any time value of money loss for a taxable period beginning after the Closing Date associated with income acceleration or deduction deferral Timing Adjustments based on the large corporation IRS underpayment rate of interest in effect on the Closing Date.

Timing Differences. In the event of any increase in Taxes for any reason in any taxable period of the Company or any Subsidiary resulting from a Timing Adjustment, which increase is subject to indemnification by Seller under Section 8.2(a), such indemnification obligation of Seller shall be reduced by the amount of any Tax savings realized by Buyer, the Company or any Subsidiary Purchaser agrees that if as a result of any audit adjustment (or adjustment in any other Tax Proceeding) made with respect to any Tax Item that relates to or affects any Excluded Tax, by any taxing authority with respect to a Pre-Closing Period, Purchaser, any Subsidiary Purchaser of any Acquired Company, actually realizes a reduction in cash Taxes payable in a Post-Closing Period and such Timing Adjustmentreduction exceeds $1,000,000, then Purchaser, such Subsidiary Purchaser or such Acquired Company will pay to Seller the amount of such reduction within fifteen calendar days of filing the Tax Return in which such reduction is realized or utilized. If as a result of the foregoing audit adjustment Purchaser incurs any additional Tax and such additional Tax exceeds $1,000,000, then Seller will pay to Purchaser the amount of such additional Tax within fifteen calendar days of the due date for making payment of such additional Tax. For purposes of this Section 5.11(c), a Timing Adjustment shall mean determining the amount and timing of any shift of income, deduction or credit between one taxable period and another taxable period which causes an increase reduction in cash Taxes in the one taxable period and a decrease in Taxes in the other taxable period or results in a Tax benefit in such other taxable period that may be carried to a different taxable period or periods. For this purpose, a Tax Return of the Company payable or any additional Tax incurred by Purchaser, any Subsidiary filed by Buyer for Purchaser and any Acquired Company as a taxable period beginning after December 31result of any such adjustment, 2004 and ending on or before the Closing Date which is not consistent with the past practices and positions of the Company and its Subsidiaries such amount shall be considered deemed to result in a Timing Adjustment to equal the extent that (i) income or deductions that would have been reported on such Tax Return in accordance with difference between the past practices and positions of the Company and its Subsidiaries are shifted to a different taxable period, or (ii) income or deductions that would have been reported in a different taxable period in accordance with the past practices and positions of the Company and its Subsidiaries are shifted to the taxable period reported on such Tax Return. The amount of Tax savings realized shall be equal to payable by Purchaser, any Subsidiary Purchaser or an Acquired Company, as the excess of (x) case may be, taking into account such adjustment and the amount of Taxes that would have been payable in by Purchaser, any Subsidiary Purchaser or an Acquired Company, as the absence case may be, if such adjustment had not occurred. If Purchaser shall have made a payment pursuant to this Section 10.6 and Purchaser, any Subsidiary Purchaser or any Acquired Company shall thereafter lose all or any portion of the Timing Adjustment benefit of any reduction in cash Taxes payable that resulted from the adjustment that gave rise to such payment (it being understood that a reduction in cash Taxes payable shall not be considered to be lost as a result of the inability of Purchaser, any Subsidiary Purchaser or any Acquired Company to carry back a net operating loss to the taxable period year such reduction in cash Taxes payable was realized), Seller shall repay to which the adjustment is made or any other taxable periods in which a Tax benefit resulting from such adjustment may be recognized over (y) Purchaser the amount of such lost reduction in cash Taxes actually paid payable within 15 days of receipt of notice from Purchaser specifying in reasonable detail the amount of such taxable period or periodslost reduction. This Section 5.11(c) Nothing in this SECTION 10.6 shall not be interpreted, in conjunction with Section 8, to allow an indemnified party to be indemnified more than once for the same loss, cost or expense. Notwithstanding the foregoing, Buyer shall be indemnified for have any time value of money loss for a taxable period beginning after the Closing Date associated with income acceleration or deduction deferral Timing Adjustments based on the large corporation IRS underpayment rate of interest in effect on the Closing Date.rights and obligations of the parties under the remainder of this ARTICLE X.

Timing Differences. In If as the event result of any increase adjustment to an Excluded Tax made in Taxes for any reason 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 taxable period of 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 Company Buyer or Windmill or any Subsidiary resulting from of their Affiliates obtains a Timing Adjustment, which increase is subject to indemnification by Seller under Section 8.2(a), such indemnification obligation of Seller shall be reduced by the amount of any Tax savings realized by Buyerbenefit, the Company or any Subsidiary as a result of such Timing Adjustment. For purposes of this Section 5.11(c), a Timing Adjustment Buyer shall mean any shift of income, deduction or credit between one taxable period and another taxable period which causes pay to the Sellers an increase in Taxes in amount equal to the one taxable period and a decrease in Taxes in the other taxable period or results in a actual Tax benefit in such other taxable period that may be carried to a different taxable period or periods. For this purpose, a Tax Return of the Company or any Subsidiary filed by Buyer for a taxable period beginning after December 31, 2004 and ending on or before the Closing Date which is not consistent with the past practices and positions of the Company and its Subsidiaries shall be considered to result in a Timing Adjustment to the extent that (i) income or deductions that would have been reported on such Tax Return in accordance with the past practices and positions of the Company and its Subsidiaries are shifted to a different taxable period, or (ii) income or deductions that would have been reported in a different taxable period in accordance with the past practices and positions of the Company and its Subsidiaries are shifted to the taxable period reported on such Tax Returnso derived. The amount of any such Tax savings realized benefit shall be equal to the excess amount of the actual reduction in Taxes (xor 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 of Taxes that would have been payable reflected on such Return in the absence of the Timing Adjustment additional Tax payment by (or reduction in refund or credit of) Sellers. Any adjustment not resulting in a Tax benefit to the taxable period to which the adjustment is made it relates or any other earlier period shall be carried forward to succeeding taxable periods 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 form reasonably acceptable to the Sellers documenting the Tax benefit to which the payment relates. If the Buyer or Windmill makes a payment to Sellers pursuant to this Section 7.3(d) and the actual Tax benefit (or portion thereof) is eventually not realized (or another Tax benefit of Buyer is not -61- utilized because of the prior use of a Tax benefit resulting from for which payment has been made under this Section 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 adjustment may be recognized over notice, the Sellers shall promptly refund such payment (yor allocable portion thereof) to the amount of Taxes actually paid Buyer or Windmill (PROVIDED that in such taxable period or periods. This Section 5.11(c) no case shall not be interpretedSellers, in conjunction with Section 8respect of any payment a refund of which is sought under this sentence, be required to allow refund an indemnified party to be indemnified more than once for the same loss, cost or expense. Notwithstanding the foregoing, Buyer shall be indemnified for any time value amount in excess of money loss for a taxable period beginning after the Closing Date associated with income acceleration or deduction deferral Timing Adjustments based on the large corporation IRS underpayment rate of interest in effect on the Closing Datesuch payment previously received by Sellers from Buyer).

Timing Differences. In If as the event result of any increase adjustment to an Excluded Tax made in Taxes for any reason 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 taxable period of 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 Company Buyer or Windmill or any Subsidiary resulting from of their Affiliates obtains a Timing Adjustment, which increase is subject to indemnification by Seller under Section 8.2(a), such indemnification obligation of Seller shall be reduced by the amount of any Tax savings realized by Buyerbenefit, the Company or any Subsidiary as a result of such Timing Adjustment. For purposes of this Section 5.11(c), a Timing Adjustment Buyer shall mean any shift of income, deduction or credit between one taxable period and another taxable period which causes pay to the Sellers an increase in Taxes in amount equal to the one taxable period and a decrease in Taxes in the other taxable period or results in a actual Tax benefit in such other taxable period that may be carried to a different taxable period or periods. For this purpose, a Tax Return of the Company or any Subsidiary filed by Buyer for a taxable period beginning after December 31, 2004 and ending on or before the Closing Date which is not consistent with the past practices and positions of the Company and its Subsidiaries shall be considered to result in a Timing Adjustment to the extent that (i) income or deductions that would have been reported on such Tax Return in accordance with the past practices and positions of the Company and its Subsidiaries are shifted to a different taxable period, or (ii) income or deductions that would have been reported in a different taxable period in accordance with the past practices and positions of the Company and its Subsidiaries are shifted to the taxable period reported on such Tax Returnso derived. The amount of any such Tax savings realized benefit shall be equal to the excess amount of the actual reduction in Taxes (xor 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 of Taxes that would have been payable reflected on such Return in the absence of the Timing Adjustment additional Tax payment by (or reduction in refund or credit of) Sellers. Any adjustment not resulting in a Tax benefit to the taxable period to which the adjustment is made it relates or any other earlier period shall be carried forward to succeeding taxable periods 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 form reasonably acceptable to the Sellers documenting the Tax benefit to which the payment relates. If the Buyer or Windmill makes a payment to Sellers pursuant to this Section 7.3(d) and the actual Tax benefit (or portion thereof) is eventually not realized (or another Tax benefit of Buyer is not -61- <Page> utilized because of the prior use of a Tax benefit resulting from for which payment has been made under this Section 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 adjustment may be recognized over notice, the Sellers shall promptly refund such payment (yor allocable portion thereof) to the amount of Taxes actually paid Buyer or Windmill (PROVIDED that in such taxable period or periods. This Section 5.11(c) no case shall not be interpretedSellers, in conjunction with Section 8respect of any payment a refund of which is sought under this sentence, be required to allow refund an indemnified party to be indemnified more than once for the same loss, cost or expenseamount in excess of such payment previously received by Sellers from Buyer). Notwithstanding the foregoing, Buyer shall be indemnified for any time value of money loss for a taxable period beginning after the Closing Date associated with income acceleration or deduction deferral Timing Adjustments based on the large corporation IRS underpayment rate of interest in effect on the Closing Date.(e)