Common use of Transaction Tax Deductions Clause in Contracts

Transaction Tax Deductions. Buyer will pay to Sellers’ Representative (on behalf of Sellers) (to the account (or allocated among accounts) as designated by the Seller’s Representative in writing) the amount of any federal and state income Tax benefit actually realized in a Post-Closing Tax Period or Post-Closing Straddle Period by the consolidated group that includes the Company or its Subsidiaries attributable to any Transaction Tax Deduction NOL within forty-five (45) days after the date the final U.S. federal income tax return for such taxable period is filed for each applicable year (the “Report Date”). A Tax benefit will be deemed actually realized in a taxable period for purposes of this Section 6(d)(viii) if there is an actual reduction in the U.S. federal income Tax liability of the consolidated group that includes the Company or its Subsidiaries in such taxable period attributable to the Transaction Tax Deduction NOL (determined on a “with and without basis”); provided that the Company and its Subsidiaries shall be deemed to recognize all other items of income, gain, loss, deduction or credit that the Company and its Subsidiaries are entitled to use under applicable Law before recognizing any Transaction Tax Deduction NOL; provided further that for purposes of this Section 6(d)(viii), the amount of Tax benefit actually realized by the Company or its Subsidiaries for state Tax purposes in any Tax year shall be deemed to equal 3.5% times the amount of the Transaction Tax Deduction NOL utilized in such Tax year. Notwithstanding anything in this Agreement to the contrary, no payments will be required to be made pursuant to this Section 6(d)(viii) with respect to any income Tax benefit attributable to the Transaction Tax Deduction NOL that is actually realized after the fifth anniversary of the Closing Date. For the avoidance of doubt, no payments shall be required to be made pursuant to this Section 6(d)(viii) with respect to any Tax benefit that is actually realized in, or reduces a Tax liability with respect to, a Pre-Closing Tax Period or a Pre-Closing Straddle Period. On each Report Date (whether or not a payment is due), Buyer shall submit to the Sellers’ Representative a summary of the federal and state taxable income of the consolidated group that includes the Company or its Subsidiaries with and without taking into account the Transaction Tax Deduction NOL, together with a written statement by a senior tax officer of Buyer that such calculation is accurate and correct and in accordance with this section. In the event the Sellers’ Representative disagrees with any of the calculations included in such summary, and such disagreements cannot be resolved by the Sellers’ Representative and the Buyer through direct good faith negotiation, the Sellers’ Representative shall be permitted, at its sole cost and expense, to submit such calculation to tax experts of the Independent Accountants for verification as determined in accordance with this Agreement. Sellers’ Representative and Buyer shall cooperate with the Independent Accountants in verifying such calculations and the determination of the Independent Accountants shall be conclusive and binding on the Parties only to the extent of the requirements of this Section 6(d), absent fraud or manifest error. Notwithstanding anything in this Agreement to the contrary (i) in the event that the Company and its Subsidiaries utilize in a Tax year the maximum amount of the Transaction Tax Deduction NOL that is permitted to be utilized in such Tax year for U.S. federal income tax purposes taking into account the application of Section 382 of the Code, then the Buyer shall not be required to provide any information to any Person pursuant to this Section 6(d)(viii) with respect to such Tax year other than its determination of the annual limitation pursuant to Section 382 of the Code for U.S. federal income tax purposes and (ii) the Buyer shall not be required by this Agreement to make available to any Person any Tax Return of the consolidated group that includes the Company and its Subsidiaries following the Closing or any related workpapers or other Tax information that reflects the income of any Affiliate of Buyer other than the Company and its Subsidiaries.

Transaction Tax Deductions. (a) As promptly as possible, and in any event within twenty-one (21) calendar days following the date hereof, the Company shall prepare in good faith and provide Buyer will pay with a draft schedule of the Transaction Tax Deductions that the Company proposes to Sellers’ Representative be taken into account in the calculation of the Accrued Income Tax Amount (on behalf which schedule shall include the entity that is expected to be entitled to the deduction, and an estimate of Sellersthe amount thereof) (the “Draft TTD Schedule”), together with any supporting documentation that Buyer may reasonably request. The parties agree that only items of expense or loss that are “more likely than not” deductible by Supreme Cabinetry Brands, Inc. or its Subsidiaries in a pre-Closing Tax period shall be included for this purpose. Buyer may, within five (5) Business Days after receipt of the Draft TTD Schedule, deliver written notice to the account Company if it disagrees in good faith with any item thereon. In the event the Buyer delivers such written notice within such period, the disputed item(s) shall promptly be submitted to the Accounting Referee for resolution in accordance with the procedures set forth in Section 2.05, mutatis mutandis; provided that the parties shall simultaneously work together in good faith to reach agreement on the disputed items, and in the event the parties are able to reach such agreement within ten (10) days following Buyer’s delivery of notice, such agreement shall be binding (and the Accounting Referee shall not resolve such disputed item). The parties agree that only items of expense or allocated among accounts) as designated loss that are agreed upon by the Seller’s parties, or that the Accounting Referee has determined are deductible at a “more likely than not” standard by the applicable entity, shall be taken into account in calculating the Accrued Income Tax Amount for purposes of determining Indebtedness in the Closing Statement and the Final Purchase Price. To the extent a dispute is ongoing at the time the Estimated Closing Statement is delivered to Buyer pursuant to Section 2.05, the Company shall include an amount of estimated Indebtedness in the Estimated Closing Statement that reflects the amounts in the Draft TTD Schedule, adjusted as appropriate by the Company after taking into account any amounts of Transaction Tax Deductions actually agreed between Buyer and the Seller Representative in writing) accordance with this Section 7.07 on or prior to that time. The parties hereto further agree that the amount of any federal and state income Tax benefit actually realized in a Post-Closing Tax Period or Post-Closing Straddle Period by the consolidated group that includes the Company or its Subsidiaries attributable to any Transaction Tax Deduction NOL within forty-five (45) days after the date the final U.S. federal income tax return for such taxable period is filed for each applicable year (the “Report Date”). A Tax benefit will Deductions shall be deemed actually realized in a taxable period to have been “finally determined” for purposes of this Section 6(d)(viii7.07 (and for all other purposes where such phrase is used in this Agreement with respect to Section 7.07) if there is an actual reduction in the U.S. federal income Tax liability once all items of the consolidated group that includes the Company expense or its Subsidiaries in such taxable period attributable loss with respect to the calculation of Transaction Tax Deduction NOL Deductions in accordance with Section 7.07 have either been (x) agreed upon by the parties or (y) determined on by the Accounting Referee to be (or not to be, as the case may be) deductible at a “more likely than not” standard by the applicable entity (with and without basis”); provided that the Company and its Subsidiaries shall be deemed to recognize all any other items of income, gain, loss, deduction expense or credit that loss on the Company and its Subsidiaries are entitled to use under applicable Law before recognizing any Transaction Tax Deduction NOL; provided further that for purposes of this Section 6(d)(viii), the amount of Tax benefit actually realized Draft TTD Schedule having been agreed by the Company parties not to meet this standard, if applicable, or its Subsidiaries for state Tax purposes in any Tax year shall be deemed determined by the Accounting Referee not to equal 3.5% times the amount meet this standard, if applicable). The fees, costs and expenses of the Transaction Tax Deduction NOL utilized in such Tax year. Notwithstanding anything in this Agreement to the contrary, no payments will be required to be made Accounting Referee pursuant to this Section 6(d)(viii) with respect to any income Tax benefit attributable to the Transaction Tax Deduction NOL that is actually realized after the fifth anniversary of the Closing Date. For the avoidance of doubt, no payments 7.07 shall be required to be made pursuant to this Section 6(d)(viii) with respect to any Tax benefit that is actually realized in, or reduces a Tax liability with respect to, a Pre-Closing Tax Period or a Pre-Closing Straddle Period. On each Report Date (whether or not a payment is due), Buyer shall submit to the Sellers’ Representative a summary of the federal and state taxable income of the consolidated group that includes the Company or its Subsidiaries with and without taking into account the Transaction Tax Deduction NOL, together with a written statement borne 100% by a senior tax officer of Buyer that such calculation is accurate and correct and in accordance with this section. In the event the Sellers’ Representative disagrees with any of the calculations included in such summary, and such disagreements cannot be resolved by the Sellers’ Representative and the Buyer through direct good faith negotiation, the Sellers’ Representative shall be permitted, at its sole cost and expense, to submit such calculation to tax experts of the Independent Accountants for verification as determined in accordance with this Agreement. Sellers’ Representative and Buyer shall cooperate with the Independent Accountants in verifying such calculations and the determination of the Independent Accountants shall be conclusive and binding on the Parties only to the extent of the requirements of this Section 6(d), absent fraud or manifest error. Notwithstanding anything in this Agreement to the contrary (i) in the event that the Company and its Subsidiaries utilize in a Tax year the maximum amount of the Transaction Tax Deduction NOL that is permitted to be utilized in such Tax year for U.S. federal income tax purposes taking into account the application of Section 382 of the Code, then the Buyer shall not be required to provide any information to any Person pursuant to this Section 6(d)(viii) with respect to such Tax year other than its determination of the annual limitation pursuant to Section 382 of the Code for U.S. federal income tax purposes and (ii) the Buyer shall not be required by this Agreement to make available to any Person any Tax Return of the consolidated group that includes the Company and its Subsidiaries following the Closing or any related workpapers or other Tax information that reflects the income of any Affiliate of Buyer other than the Company and its SubsidiariesBuyer.

Transaction Tax Deductions. Buyer will pay to Sellers’ Representative (on behalf In connection with the preparation of Sellers) (Tax Returns under Section 11G, any Transaction Tax Deductions, to the account (extent “more likely than not” deductible under applicable Tax law for the Pre-Closing Tax Period, shall be treated as properly allocable to the Tax period ending on the Closing Date and such Tax Returns shall include such applicable Transaction Tax Deductions as deductions in the Tax Returns of the Company, any Subsidiary of the Company, or allocated among accounts) any Blocker, as designated by applicable, for the Seller’s Representative in writing) the amount of any federal and state income Tax benefit actually realized in a PostPre-Closing Tax Period or Postthat ends on the Closing Date. After the Closing, the Representative shall cause the Company, any Subsidiary of the Company, and the Blockers to make a timely election to apply Rev. Proc. 2011-Closing Straddle Period by the consolidated group that includes the Company or its Subsidiaries attributable 29 with respect to any Transaction success based fees within the scope of such Rev. Proc. paid by or on behalf of the Sellers, the Company, any Subsidiary of the Company, or any Blocker. Sellers shall be responsible for all costs and expenses with respect to making such election. Without limiting the generality of the foregoing, in connection with preparing the Tax Deduction NOL Returns described in Section 11G, within forty-five sixty (4560) days after Closing, in consultation with its tax counsel, Representative shall provide written notice (including any supporting work papers, schedules, memoranda or documents) to the date the final U.S. federal income tax return for such taxable period is filed for each applicable year Buyer with respect to its view (consistent with the “Report Date”). A Tax benefit will be deemed actually realized more likely than not” standard set forth in a taxable period for purposes of this Section 6(d)(viii11G(xii) if there is an actual reduction in the U.S. federal income Tax liability of the consolidated group that includes the Company or its Subsidiaries in such taxable period attributable as to the Transaction Tax Deduction NOL (determined on a “with and without basis”); provided that the Company and its Subsidiaries shall be deemed to recognize all other items of income, gain, loss, deduction or credit that the Company and its Subsidiaries are entitled to use under applicable Law before recognizing any Transaction Tax Deduction NOL; provided further that for purposes of this Section 6(d)(viii), the amount of Tax benefit actually realized by the Company or its Subsidiaries for state Tax purposes in any Tax year shall be deemed to equal 3.5% times A) the amount of the Transaction Tax Deduction NOL utilized in such Tax year. Notwithstanding anything in this Agreement to Deductions that are “more likely than not” deductible, (B) the contrary, no payments will amount and description of any deduction that would be required to be made pursuant to this Section 6(d)(viii) with respect to any income Tax benefit attributable to the a Transaction Tax Deduction NOL if it were “more likely than not” deductible but that is actually realized after does not meet that standard and (C) the fifth anniversary of taxable period in which the Closing Datevarious Transaction Tax Deductions that are “more likely than not” deductible would be deductible) (collectively, the “Deduction Statement”). For the avoidance of doubt, no payments shall be required to be made pursuant to this Section 6(d)(viii) with respect to If Buyer has any Tax benefit that is actually realized in, or reduces a Tax liability with respect to, a Pre-Closing Tax Period or a Pre-Closing Straddle Period. On each Report Date (whether or not a payment is due), Buyer shall submit objections to the Sellers’ Representative a summary of Deduction Statement, it shall inform the federal and state taxable income of Representative, in writing, within sixty (60) days after receiving the consolidated group that includes the Company or its Subsidiaries with and without taking into account the Transaction Tax Deduction NOL, together with a written statement by a senior tax officer of Buyer that such calculation is accurate and correct and in accordance with this sectionStatement. In the event the Sellers’ Representative disagrees with any of the calculations included in such summary, and such disagreements cannot be resolved by the Sellers’ Representative and the Buyer through direct good faith negotiation, the Sellers’ Representative shall be permitted, at its sole cost and expense, to submit such calculation to tax experts of the Independent Accountants for verification as determined in accordance with this Agreement. Sellers’ Representative and Buyer shall cooperate with the Independent Accountants negotiate in verifying good faith to resolve such calculations dispute and the determination Deduction Statement shall be modified accordingly. If the Representative and Buyer do not reach a final resolution within thirty (30) days after delivery of the Independent Accountants Deduction Statement, Representative and Buyer shall be conclusive and binding on promptly submit any unresolved items regarding the Parties only Deduction Statement to the extent mutually agreed third-party accountant for resolution (and shall execute any customary engagement letter and agree to any other customary terms and conditions of the requirements of this Section 6(d), absent fraud or manifest errorengagement) for prompt resolution. Notwithstanding anything The third-party accountant in this Agreement resolving such dispute shall apply a “more likely than not” standard as to the contrary (i) in the event that the Company and its Subsidiaries utilize in whether a Tax year the maximum amount of the Transaction Tax Deduction NOL that is permitted to deductible and the appropriate Tax period in which such deduction shall be utilized in such Tax year for U.S. federal income tax purposes taking into account the application of Section 382 of the Code, then the Buyer shall not be required to provide any information to any Person pursuant to this Section 6(d)(viii) with respect to such Tax year other than its determination of the annual limitation pursuant to Section 382 of the Code for U.S. federal income tax purposes and (ii) the Buyer shall not be required by this Agreement to make available to any Person any Tax Return of the consolidated group that includes the Company and its Subsidiaries following the Closing or any related workpapers or other Tax information that reflects the income of any Affiliate of Buyer other than the Company and its Subsidiariesallocable.

Transaction Tax Deductions. Buyer To the extent permitted by applicable Tax law, Parent will pay to Sellers’ Representative (on behalf of Sellers) (to the account (or allocated among accounts) as designated by the Seller’s Representative in writing) the amount of any federal and state income Tax benefit actually realized in a Post-Closing Tax Period or Post-Closing Straddle Period by the consolidated group that includes the Company or its Subsidiaries attributable to any Transaction Tax Deduction NOL within forty-five (45) days after the date the final U.S. federal income tax return for such taxable period is filed for each applicable year (the “Report Date”). A Tax benefit will be deemed actually realized in a taxable period for purposes of this Section 6(d)(viii) if there is an actual reduction in the U.S. federal income Tax liability of the consolidated group that includes the Company or its Subsidiaries in such taxable period attributable to the Transaction Tax Deduction NOL (determined on a “with and without basis”); provided that cause the Company and its Subsidiaries shall be deemed to recognize all other items of income, gain, loss, deduction or credit that the Company and its Subsidiaries are entitled to use under applicable Law before recognizing (i) claim any Transaction Tax Deduction NOL; provided further that Deductions in its Pre-Closing Taxable Period ending on the Closing Date and (ii) elect to carry back any net operating loss for purposes such period. The Securityholders shall be entitled to (1) any refund or credit of this Section 6(d)(viii), the amount of Tax benefit Income Taxes actually realized paid by the Company or its Subsidiaries for state Tax purposes in any Tax year shall be deemed to equal 3.5% times the amount of the Transaction Tax Deduction NOL utilized in such Tax year. Notwithstanding anything in this Agreement prior to the contrary, no payments will be required Closing Date for any Pre-Closing Taxable Period to be made pursuant to this Section 6(d)(viii) with respect to any income Tax benefit the extent that such refund or credit is attributable to the Transaction Tax Deduction NOL Deductions or the carryback of a net operating loss attributable to such Transaction Tax Deductions (with such Transaction Tax Deductions treated as the last deductionsclaimed in such Pre-Closing Taxable Period for this purpose) and (2) the amount by which (x) the Income Tax Reserve exceeds (y) the amount of Income Taxes for any Pre-Closing Taxable Period that is actually realized after the fifth anniversary of the Closing Date. For the avoidance of doubt, no payments shall be are required to be made paid after the Closing by the Surviving Corporation, to the extent such difference results from the Transaction Tax Deductions (with such Transaction Tax Deductions treated as the last deductions claimed in any Pre-Closing Taxable Period for this purpose). Parent shall file such Tax Returns (or other requests for refunds, but not any refund claims pursuant to IRS Form 1139 or any similar state processes) for the Pre-Closing Taxable Period as are reasonably requested by the Seller Representative to obtain or secure any amounts to which the Securityholders may be entitled pursuant to the preceding sentence, and Parent shall afford the Seller Representative and its Representatives reasonable access to the books and records and management of the Company and its Subsidiaries in furtherance of the foregoing. The Surviving Corporation shall deliver and pay over to the Paying Agent (on behalf of the Securityholders) any amounts described in the second sentence of this Section 6(d)(viii4.13(i) as soon as reasonably practicable after receipt or actual realization thereof (which, in the case of a Tax described in clause (2) of the second sentence of this Section 4.13(i), shall be when such Tax would have been payable to the relevant Tax authority in the absence of Transaction Tax Deductions), net of (a) any Taxes imposed with respect to the receipt or payment of such refund or credit, and (b) the amount of any Tax benefit that is actually realized in, or reduces a Tax liability with respect to, a Pre-Closing Tax Period or a Pre-Closing Straddle Period. On each Report Date Refund Payments (whether or not a payment is due), Buyer shall submit as defined below) actually paid to the Sellers’ Representative a summary Optionholders. The Securityholders shall not be entitled to any refund or credit attributable to (i) the carryback ofnet operating losses or other Tax attributes economically generated after the Closing Date or the carryback of the federal and state taxable income of the consolidated group that includes losses sustained by the Company or its Subsidiaries with after December 31, 2016 and without taking into account prior to the Closing Date other than in respect of Transaction Tax Deduction NOL, together with a written statement by a senior tax officer Deductions or (ii) the use of Buyer that such calculation is accurate and correct and in accordance with this section. In the event the Sellers’ Representative disagrees with any net operating loss of the calculations included Company attributable to Transaction Tax Deductions in such summary, and such disagreements cannot be resolved by the Sellers’ Representative and the Buyer through direct good faith negotiationa Post-Closing Taxable Period. At least three (3) business days prior to Closing, the Sellers’ Representative Company shall be permitted, at its sole cost and expense, to submit such calculation to tax experts prepare an estimate of the Independent Accountants for verification as determined in accordance with this Agreement. Sellers’ Representative and Buyer shall cooperate with the Independent Accountants in verifying such calculations and the determination of the Independent Accountants shall aggregate amounts -68- **MSPSC Electronic Copy ** 2016-UA-186 Filed on 09/23/2016 ** that would reasonably be conclusive and binding on the Parties only expected to be paid to the extent of the requirements of this Section 6(d), absent fraud or manifest error. Notwithstanding anything in this Agreement to the contrary (i) in the event that the Company and its Subsidiaries utilize in a Tax year the maximum amount of the Transaction Tax Deduction NOL that is permitted to be utilized in such Tax year for U.S. federal income tax purposes taking into account the application of Section 382 of the Code, then the Buyer shall not be required to provide any information to any Person Securityholders pursuant to this Section 6(d)(viii4.13(ik which calculation shall be reasonably acceptable to Parent (the "Estimated Tax Refund Amount"). At Closing, Parent shall pay to the Company, for payment to each of the Optionholders set forth on Section 4.13(j) with respect of the Disclosure Schedule, an amount for each such Optionholder equal to the portion of the Estimated Tax Refund Amount that would be allocable to such Optionholder under Section 1.6(c) (Effect on Company Options) and Section 1.6(e) (Post-Closing Payments) if the entire Estimated Tax year Refund Amount were to be paid to all Securityholders at Closing (the "Closing Tax Refund Payments"). Thereafter, any payments payable to the Seller Representative after the Closing pursuant to this Section 4.13(i) (which for the avoidance of doubt shall be determined net of the Closing Tax Refund Payments) (the "Post- Closing Tax Refund Payments") shall be allocated by the Seller Representative among the Securityholders (other than its determination the Optionholders set forth on Section 4.13(†) of the annual limitation pursuant to Section 382 Disclosure Schedule) in accordance with the relative Pro Rata Portions of such other Securityholders (the "Per Share Tax Refund Amounts"), provided, that if the aggregate Per Share Tax Refund Amount exceeds the portion of the Code for U.S. federal income tax purposes and (iiClosing Tax Refund Payments that each Optionholder set forth on Section 4.13(i) the Buyer shall not be required by this Agreement to make available to any Person any Tax Return of the consolidated group Disclosure Schedule received in respect of each share of Company Capital Stock underlying such Company Options, then the Post-Closing Tax Refund Payments shall be allocated by the Seller Representative among all of the Securityholders (including the Optionholders set forth on Section 4.13(i) of the Disclosure Schedule), such that includes all Securityholders, on a cumulative basis, receive their Pro Rata Portion of the full amount due to Securityholders under this Section 4.13(j) (it being understood that, post-Closing, the Optionholders set forth on Section 4.13(i) of the Disclosure Schedule shall only receive amounts that are in excess of their applicable portion of the Closing Tax Refund Payments) and the Per Share Tax Refund Amount shall be appropriately adjusted. Notwithstanding anything to the contrary herein, in calculating the Estimated Tax Refund Amount, .the Closing Tax Refund Payments or the Per Share Tax Refund Amounts, any deductions of the Company and or its Subsidiaries following the Closing resulting from or attributable to (i) any related workpapers expenses incurred or other Tax information that reflects the income of any Affiliate of Buyer assumed by Parent, MergerSub or their Affiliates (other than the Company and its Subsidiaries), (ii) any activities or transactions on the Closing Date after the Closing outside of the ordinary course of business or (iii) any expenses of Parent, Merger Sub or their Affiliates that are assumed by the Company or its Subsidiaries at or after the Closing, that, in each case, do not constitute Transaction Tax Deductions, shall be taken into account after the Transaction Tax Deductions.

Transaction Tax Deductions. Buyer will pay Without duplication of any amount payable to Sellers’ Representative (on behalf of Sellers) (Seller pursuant to Section 7.6(b),Seller shall be entitled, as additional consideration for the Shares, to the account (or allocated among accounts) as designated amount equal to the reduction in the cash Income Taxes payable by the Seller’s Representative Buyer and any of its Affiliates (including following the Closing, the Acquired Companies) in writingthe Taxable period ending or before December 31, 2022 resulting from the Transaction Tax Deductions (including for the avoidance of doubt, as the result of, any net operating losses resulting from the Transaction Tax Deductions) that are available to offset income of Buyer or any of its Affiliates (including, following the amount of Closing, the Acquired Companies) for any federal and state income Tax benefit actually realized in a Post-Closing Tax Period or as and when such Transaction Tax Deductions are first used to offset income. The amount of any such reduction in cash Income Taxes payable for such Post-Closing Straddle Taxable Period by shall equal the consolidated group that includes excess, if any, of (i) the Company or its Subsidiaries attributable to any Transaction Tax Deduction NOL within forty-five (45) days after the date the final U.S. federal income tax return for such taxable period is filed for each applicable year (the “Report Date”). A Tax benefit will be deemed actually realized in a taxable period for purposes of this Section 6(d)(viii) if there is an actual reduction in the U.S. federal income Tax liability of the consolidated group that includes the Company or its Subsidiaries in such taxable period attributable to the Transaction Tax Deduction NOL (determined on a “with and without basis”); provided that the Company Buyer and its Subsidiaries shall be deemed to recognize all other items of income, gain, loss, deduction or credit that the Company and its Subsidiaries are entitled to use under applicable Law before recognizing any Transaction Tax Deduction NOL; provided further that Affiliates for purposes of this Section 6(d)(viii), the amount of Tax benefit actually realized by the Company or its Subsidiaries for state Tax purposes in any Tax year shall be deemed to equal 3.5% times the amount of the Transaction Tax Deduction NOL utilized in such Tax year. Notwithstanding anything in this Agreement to the contrary, no payments will be required to be made pursuant to this Section 6(d)(viii) with respect to any income Tax benefit attributable to the Transaction Tax Deduction NOL that is actually realized after the fifth anniversary of the Closing Date. For the avoidance of doubt, no payments shall be required to be made pursuant to this Section 6(d)(viii) with respect to any Tax benefit that is actually realized in, or reduces a Tax liability with respect to, a PrePost-Closing Tax Period or a Pre-Closing Straddle Period. On each Report Date (whether or not a payment is due), Buyer shall submit to the Sellers’ Representative a summary of the federal and state taxable income of the consolidated group that includes the Company or its Subsidiaries with and computed without taking into account the Transaction Tax Deduction NOL, together with a written statement by a senior tax officer of Buyer that such calculation is accurate and correct and in accordance with this section. In the event the Sellers’ Representative disagrees with any of the calculations included in such summary, and such disagreements cannot be resolved by the Sellers’ Representative and the Buyer through direct good faith negotiation, the Sellers’ Representative shall be permitted, at its sole cost and expense, to submit such calculation to tax experts of the Independent Accountants for verification as determined in accordance with this Agreement. Sellers’ Representative and Buyer shall cooperate with the Independent Accountants in verifying such calculations and the determination of the Independent Accountants shall be conclusive and binding on the Parties only to the extent of the requirements of this Section 6(d), absent fraud or manifest error. Notwithstanding anything in this Agreement to the contrary (i) in the event that the Company and its Subsidiaries utilize in a Tax year the maximum amount of the Transaction Tax Deduction NOL that is permitted to be utilized in such Tax year for U.S. federal income tax purposes taking into account the application of Section 382 of the Code, then the Buyer shall not be required to provide any information to any Person pursuant to this Section 6(d)(viii) with respect to such Tax year other than its determination of the annual limitation pursuant to Section 382 of the Code for U.S. federal income tax purposes Deductions and (ii) the Tax liability of the Buyer and its Affiliates for such Post-Closing Tax Period computed by taking into LEGAL_US_E # 161486834.17 account the Transaction Tax Deductions. Promptly upon (and no later than ten (10) days after) the filing of any such Tax Return on which any Transaction Tax Deductions are taken into account to offset income of Buyer or any of its Affiliates, Buyer shall not be required by this Agreement pay over to make available Seller, as additional purchase price for the Shares, an amount equal to the reduction in the Tax liability of the Buyer and any Person any of its Affiliates (including, following the Closing, the Acquired Companies) reflected on such Tax Return of the consolidated group that includes the Company and its Subsidiaries following the Closing or any related workpapers or other attributable to such Transaction Tax information that reflects the income of any Affiliate of Buyer other than the Company and its SubsidiariesDeductions.