Common use of Settlement Payments Clause in Contracts

Settlement Payments. (i) Any Party that receives or becomes entitled to (or whose Affiliate receives or becomes entitled to) any Tax refund (or credit for overpayment) with respect to Taxes for which the other Party would be liable under this Section 6.8 (a “Refund Recipient”) shall pay to the other Party the entire amount of such refund or credit to the extent attributable to payments made by such other Party (including any interest thereon from the Taxing Authority, but (1) net of (x) any Taxes imposed by, a Taxing Authority with respect to such refund or credit (or other additional Tax payable as a result thereof), (y) out-of-pocket costs to obtain any such refund or credit and (z) any cost incurred in preparing any claim for such refund or credit) and (2) only to the extent received or actually used to reduce Taxes of the Refund Recipient for a Post-Closing Tax Period, in each case, within two years of the Closing Date, (A) in the case of a refund actually received, no more than 20 Business Days after receiving such refund and (B) in the case of the application of such refund as a credit against future Taxes, no more than 20 Business Days after the filing of the Tax Return electing such credit; provided that if such Refund Recipient is required to repay to the relevant Taxing Authority such refund or credit, the other Party shall, upon the request of such Refund Recipient, repay the amount previously paid to such other Party pursuant to this Section 6.8(e) in respect of such refund or credit (plus any penalties, interest or other charges imposed by the relevant Taxing Authority). (ii) Except as otherwise required by applicable Law or in connection with the resolution of any Tax Claim in accordance with Section 6.8(f), Buyer shall not, and shall cause its Affiliates not to, take any of the following actions without the consent of Seller (not to be unreasonably withheld, conditioned or delayed) if such action would reasonably be expected to result in an increase in Taxes of Seller or any of its Affiliates (excluding any Purchased Entity with respect to Post-Closing Tax Periods) for any taxable period: (A) make or change any Tax election of the Purchased Entities or related to the Purchased Assets, the Assumed Liabilities or the Business for a Pre-Closing Tax Period (it being understood and agreed that Buyer shall not be permitted to make or file a tax election under Section 338 or 336 of the Code with respect to any Purchased Entity), (B) amend, refile or otherwise modify (or grant an extension of any applicable statute of limitations with respect to) any Seller-Signed Tax Return or Buyer-Signed Tax Return that includes a Pre-Closing Tax Period or Straddle Period Tax Return, (C) carry back any Tax attribute, including any loss, credit, credit carry forward, prepaid Tax or refund, and any claim for or right to receive any of the foregoing (a “Tax Attribute”) of any of the Purchased Entities from a Tax period ending after the Closing Date to any Pre-Closing Tax Period or (D) settle, compromise or otherwise concede any Tax Claim relating to a Pre-Closing Tax Period of any Purchased Entities, in each case, on or after the Closing Date (each, a “Post-Closing Tax Action”). Seller’s or any of its Affiliate’s consent to a Post-Closing Tax Action shall relieve Buyer of any responsibility for any such increase in Taxes of Seller or any of its Affiliates resulting from such Post-Closing Tax Action. Buyer shall notify Seller of any proposal to take a Post-Closing Tax Action that would reasonably be expected to result in an increase to Taxes imposed on Seller or any of its Affiliates (excluding any Purchased Entity with respect to Post-Closing Tax Periods) for any period compared to the amount of Taxes that would have been imposed had Buyer not taken such Post-Closing Tax Action, and Seller shall, within 30 Business Days of receiving such notice, inform Buyer of Seller’s decision whether to consent to such Post-Closing Tax Action. After the Closing, Seller shall not, and shall not permit any of its Affiliates to, amend any Tax Returns, change any Tax elections or accounting methods with respect to any of the Purchased Entities, the Purchased Assets, the Assumed Liabilities or the Business to the extent such amendment or change would reasonably be expected to result in additional Taxes or other costs to Buyer or any of its Affiliates (including the Purchased Entities) for which it would not otherwise be indemnified under Section 6.8.

Settlement Payments. (a) Without prejudicing in any manner the rights or obligations of the parties pursuant to Section 5.05 (including the preparation of the Final Adjusted Closing Date Schedule, the settlement of the Purchase Price in accordance with Section 2.05(b) and the dispute resolution procedures in respect of the Draft Closing Statements and the Final Closing Statements in accordance with Section 5.05(a)(iv) and Section 5.05(b)), within two (2) Business Days following the date of the delivery by the Purchaser of the Interim Balance Sheet pursuant to Section 5.05(a)(iii), the following amounts shall be paid, by wire transfer of immediately available funds, to an account designated in writing prior to such payment date by the recipient thereof to the party required to make such payment: (i) Any Party that receives or becomes entitled to if the Interim Purchase Price exceeds the Initial Payment, the Purchaser shall (or whose Affiliate receives or becomes entitled and/or shall cause the applicable Acquiring Entity to) pay to the Seller the absolute value of the amount of such excess, together with accrued interest thereon, calculated at the Settlement Rate as from time to time in effect, for the period from the Closing Date to and including the date upon which such payment is made (calculated on the basis of the actual number of days elapsed in a year of 365 or 366 days, as the case may be); and (ii) if the Initial Payment exceeds the Interim Purchase Price, the Seller shall pay, or shall cause to be paid, to the Purchaser (and/or one or more Acquiring Entities, as directed by the Purchaser) the absolute value of the amount of such excess, together with accrued interest thereon, calculated at the Settlement Rate as from time to time in effect, for the period from the Closing Date to and including the date upon which such payment is made (calculated on the basis of the actual number of days elapsed in a year of 365 or 366 days, as the case may be); provided, however, that notwithstanding any Tax refund provision of Section 5.05, any disputes in respect of the preparation of the draft Closing Date Schedule, the Interim Balance Sheet or the calculation of the Interim Purchase Price and any proposals for adjustments to any of the foregoing shall be reserved (or credit for overpaymentand not waived) by the parties and deferred until the conclusion of the settlement in accordance with respect to Taxes for which the other Party would be liable under this Section 6.8 2.05(a) and the delivery of the draft of the audited Closing Date Schedule. (b) In the event the parties settle certain amounts in accordance with Section 2.05(a), then on the Settlement Date, the following amounts shall be paid, by wire transfer of immediately available funds, to an account designated in writing prior to the Settlement Date by the recipient thereof to the party required to make such payment: (i) if the Purchase Price exceeds the Interim Purchase Price, the Purchaser shall (and/or shall cause the applicable Acquiring Entity to) pay to the Seller an amount equal to the absolute value of the amount of such excess, together with accrued interest thereon, calculated at the Settlement Rate as from time to time in effect, for the period from the Closing Date to and including the Settlement Date (calculated on the basis of the actual number of days elapsed in a “Refund Recipient”year of 365 or 366 days, as the case may be); or (ii) if the Interim Purchase Price exceeds the Purchase Price, the Seller shall pay to the other Party Purchaser (and/or one or more Acquiring Entities, as directed by the entire Purchaser) an amount equal to the absolute value of the amount of such refund excess, together with accrued interest thereon, calculated at the Settlement Rate as from time to time in effect, for the period from the Closing Date to and including the Settlement Date (calculated on the basis of the actual number of days elapsed in a year of 365 or credit 366 days, as the case may be). (c) In the event the parties do not settle any amounts in accordance with Section 2.05(a), then on the Settlement Date, the following amounts shall be paid, by wire transfer of immediately available funds, to an account designated in writing prior to the extent attributable Settlement Date by the recipient thereof to payments made the party required to make such payment: (i) if the Purchase Price exceeds the Interim Purchase Price, the Purchaser shall (and/or shall cause the applicable Acquiring Entity to) pay to the Seller an amount equal to the Settlement Payment plus the Settlement Interest in respect thereof; or (ii) if the Initial Payment exceeds the Purchase Price, the Seller shall pay to the Purchaser (and/or one or more Acquiring Entities, as directed by such other Party the Purchaser) an amount equal to the Settlement Payment plus the Settlement Interest in respect thereof." (including any interest thereon from b) Section 5.01(d) of the Taxing AuthorityPurchase Agreement is hereby amended by deleting the proviso in its entirety and restating it as follows: "provided, but however, that nothing contained in this Agreement shall prohibit (1) net of (xA) any Taxes imposed by, a Taxing Authority with respect Seller Entity from granting Encumbrances to such refund secure borrowings that will be repaid at or credit prior to Closing or (or other additional Tax payable as a result thereof), (y) out-of-pocket costs to obtain any such refund or credit and (zB) any cost incurred Seller Entity from complying with each Non-Purchased Securitization Document or continuing each Securitization Transaction in preparing any claim for effect on the date hereof in compliance with such refund or credit) and (2) only Securitization Documents in effect on the date hereof, subject to the extent received or actually used to reduce Taxes satisfaction of the Refund Recipient for a Post-Closing Tax Periodcondition set forth in Section 6.01(l), in each case, within two years in the ordinary course of business consistent with past practices." (c) Section 5.03(c) of the Closing DatePurchase Agreement is hereby amended by deleting the last two sentences thereof and replacing them with the following: "The Seller or the Purchaser, (A) in as the case of a refund actually receivedmay be, no more than 20 Business Days after receiving such refund shall retain in its possession all Tax Returns and (B) in the case of the application of such refund as a credit against future Taxestax records, no more than 20 Business Days after the filing of the Tax Return electing such credit; provided that if such Refund Recipient is required to repay to the relevant Taxing Authority such refund or credit, the other Party shall, upon the request of such Refund Recipient, repay the amount previously paid to such other Party pursuant to this Section 6.8(e) in respect of such refund or credit (plus any penalties, interest or other charges imposed by the relevant Taxing Authority). (ii) Except as otherwise required by applicable Law or in connection with the resolution of any Tax Claim in accordance with Section 6.8(f), Buyer shall not, and shall cause its Affiliates not to, take any of the following actions without the consent of Seller (not to be unreasonably withheld, conditioned or delayed) if such action would reasonably be expected to result in an increase in Taxes of Seller or any of its Affiliates (excluding any Purchased Entity with respect to Post-Closing Tax Periods) for any taxable period: (A) make or change any Tax election of the Purchased Entities or related relating to the Purchased Assets, held by such party immediately after the Assumed Liabilities or the Business for a Pre-Closing Tax Period (it being understood and agreed that Buyer shall not might be permitted to make or file a tax election under Section 338 or 336 of the Code with respect relevant to any Purchased Entity), (B) amend, refile Taxable period ending on or otherwise modify (or grant an extension of any applicable prior to the Closing Date until the relevant statute of limitations with respect tohas expired. After such time, the Seller or the Purchaser, as the case may be, may dispose of such materials; provided, however, that prior to such disposition the Seller or the Purchaser, as the case may be, shall give the other party a reasonable opportunity to take possession of such materials, at such other party's expense." (d) any Seller-Signed Tax Return or Buyer-Signed Tax Return that includes a Pre-Closing Tax Period or Straddle Period Tax Return, (CSection 5.05(a)(iii) carry back any Tax attribute, including any loss, credit, credit carry forward, prepaid Tax or refund, and any claim for or right to receive any of the foregoing (a “Tax Attribute”) of any Purchase Agreement is hereby amended by deleting the first sentence and replacing it as follows: "Concurrently with the preparation and delivery to the Purchaser's Accountants, the Seller and the Seller's Accountants of the Purchased Entities from draft Closing Date Schedule, the Purchaser shall, or shall cause the Purchaser's Accountants to, prepare and deliver to the Purchaser or the Purchaser's Accountants, as applicable, the Seller and the Seller's Accountants, a Tax period ending after draft of the adjusted Closing Date Schedule that reflects the Special Adjustments (the "Interim Balance Sheet").". (e) Section 5.20 of the Purchase Agreement is hereby amended by deleting the words "setting forth the Portfolio Information as of the Closing Date to any Pre-Closing Tax Period or Date". (Df) settle, compromise or otherwise concede any Tax Claim relating to a Pre-Closing Tax Period of any Purchased Entities, in each case, on or after the Closing Date (each, a “Post-Closing Tax Action”). Seller’s or any of its Affiliate’s consent to a Post-Closing Tax Action shall relieve Buyer of any responsibility for any such increase in Taxes of Seller or any of its Affiliates resulting from such Post-Closing Tax Action. Buyer shall notify Seller of any proposal to take a Post-Closing Tax Action that would reasonably be expected to result in an increase to Taxes imposed on Seller or any of its Affiliates (excluding any Purchased Entity with respect to Post-Closing Tax Periods) for any period compared to the amount of Taxes that would have been imposed had Buyer not taken such Post-Closing Tax Action, and Seller shall, within 30 Business Days of receiving such notice, inform Buyer of Seller’s decision whether to consent to such Post-Closing Tax Action. After the Closing, Seller shall not, and shall not permit any of its Affiliates to, amend any Tax Returns, change any Tax elections or accounting methods with respect to any Section 5.22 of the Purchased Entities, the Purchased Assets, the Assumed Liabilities or the Business to the extent Purchase Agreement is hereby amended by deleting such amendment or change would reasonably be expected to result section in additional Taxes or other costs to Buyer or any of its Affiliates (including the Purchased Entities) for which it would not otherwise be indemnified under Section 6.8.entirety and replacing as follows:

Settlement Payments. On the Settlement Date, the following amounts shall be paid, by wire transfer (a) of immediately available funds to an account designated in writing by the recipient thereof to the other party prior to the Settlement Date, as follows: (i) Any Party that receives if the Purchase Price exceeds the Initial Payment, Purchaser shall pay, or becomes entitled cause any Purchaser Affiliate to (pay, to Seller or whose Affiliate receives or becomes entitled to) any Tax refund (or credit for overpayment) with respect to Taxes for which the other Party would be liable under this Section 6.8 (a “Refund Recipient”) shall pay Assigning Subsidiary, as applicable, an aggregate amount equal to the other Party the entire amount sum of such refund or credit to the extent attributable to payments made by such other Party (including any interest thereon from the Taxing Authority, but (1) net of (x) any Taxes imposed by, a Taxing Authority with respect to such refund or credit (or other additional Tax payable as a result thereof), (y) out-of-pocket costs to obtain any such refund or credit and (z) any cost incurred in preparing any claim for such refund or credit) and (2) only to the extent received or actually used to reduce Taxes of the Refund Recipient for a Post-Closing Tax Period, in each case, within two years of the Closing Date, (A) in the case of a refund actually receivedSettlement Payment, no more than 20 Business Days after receiving such refund and (B) the Settlement Interest; or (ii) if the Initial Payment exceeds the Purchase Price, Seller shall pay, or cause the Assigning Subsidiaries to pay, to Purchaser or Purchaser Affiliate, as applicable, an aggregate amount equal to the sum of (A) (i) the excess amount of the Initial Payment over the Purchase Price (the "Excess Amount") plus (ii) interest on the Excess Amount calculated at the Settlement Rate, as in effect on the Settlement Date, for the period from the Closing Date to, but not including, the Settlement Date (calculated on the basis of the actual number of days elapsed in a year of 365 or 366 days, as the case may be) plus (B) (i) the amount equal to the product of (X) the Excess Amount divided by the Initial Payment and (Y) the Cut-Off Date Initial Payment Interest plus (ii) interest on the amount calculated in clause (B)(i) at the Settlement Rate, as in effect on the Settlement Date, for the period from the Closing Date to, but not including, the Settlement Date (calculated on the basis of the actual number of days elapsed in a year of 365 or 366 days, as the case may be). (b) Notwithstanding anything to the contrary in this Section 2.4 or elsewhere in this Agreement, with respect to Assigning Subsidiaries that, in the case ordinary course of the application of business, maintain balance sheets denominated in other than U.S. dollars, all payments to be made by Purchaser or a Purchaser Affiliate to any such refund as a credit against future Taxes, no more than 20 Business Days after the filing of the Tax Return electing such credit; provided that if such Refund Recipient is required to repay to the relevant Taxing Authority such refund or credit, the other Party shall, upon the request of such Refund Recipient, repay the amount previously paid to such other Party Assigning Subsidiary pursuant to this Section 6.8(e2.4 (to the extent related to a Purchased Financing Contract) shall, in respect the sole discretion of such refund Assigning Subsidiary, be converted for the purposes of making such payment into the currency in which payments due under such Purchased Financing Contract are denominated using the exchange rate for such currency established in a bona fide, arms-length transaction by Purchaser or credit a Purchaser Affiliate on customary market terms with a currency exchange broker/market maker that is otherwise not an Affiliate of the Purchaser or a Purchaser Affiliate in effect five (plus 5) Business Days prior to the applicable Settlement Date; provided, however, that neither Purchaser nor any penaltiesPurchaser Affiliate shall be obligated to make payments hereunder in currency other than U.S. dollars, interest Japanese Yen, Euros or other charges imposed by Pounds Sterling. Not later than three (3) Business Days prior to the relevant Taxing Authority). Settlement Date, Purchaser shall provide Seller with written notice of the following: (i) the name of Purchaser and each Purchaser Affiliate that desires to make foreign currency payments to any member of the Seller Group in accordance with this Section 2.4(b) and (ii) Except as otherwise required by applicable Law the specific type of foreign currency that such Purchaser or in connection with the resolution of any Tax Claim in accordance with Section 6.8(f), Buyer shall not, and shall cause its Affiliates not to, take any of the following actions without the consent of Seller (not Purchaser Affiliate desires to be unreasonably withheld, conditioned or delayed) if utilize for such action would reasonably be expected to result in an increase in Taxes of Seller or any of its Affiliates (excluding any Purchased Entity with respect to Post-Closing Tax Periods) for any taxable period: (A) make or change any Tax election of the Purchased Entities or related to the Purchased Assets, the Assumed Liabilities or the Business for a Pre-Closing Tax Period (it being understood and agreed that Buyer shall not be permitted to make or file a tax election under Section 338 or 336 of the Code with respect to any Purchased Entity), (B) amend, refile or otherwise modify (or grant an extension of any applicable statute of limitations with respect to) any Seller-Signed Tax Return or Buyer-Signed Tax Return that includes a Pre-Closing Tax Period or Straddle Period Tax Return, (C) carry back any Tax attribute, including any loss, credit, credit carry forward, prepaid Tax or refund, and any claim for or right to receive any of the foregoing (a “Tax Attribute”) of any of the Purchased Entities from a Tax period ending after the Closing Date to any Pre-Closing Tax Period or (D) settle, compromise or otherwise concede any Tax Claim relating to a Pre-Closing Tax Period of any Purchased Entities, in each case, on or after the Closing Date (each, a “Post-Closing Tax Action”). Seller’s or any of its Affiliate’s consent to a Post-Closing Tax Action shall relieve Buyer of any responsibility for any such increase in Taxes of Seller or any of its Affiliates resulting from such Post-Closing Tax Action. Buyer shall notify Seller of any proposal to take a Post-Closing Tax Action that would reasonably be expected to result in an increase to Taxes imposed on Seller or any of its Affiliates (excluding any Purchased Entity with respect to Post-Closing Tax Periods) for any period compared to the amount of Taxes that would have been imposed had Buyer not taken such Post-Closing Tax Action, and Seller shall, within 30 Business Days of receiving such notice, inform Buyer of Seller’s decision whether to consent to such Post-Closing Tax Action. After the Closing, Seller shall not, and shall not permit any of its Affiliates to, amend any Tax Returns, change any Tax elections or accounting methods with respect to any of the Purchased Entities, the Purchased Assets, the Assumed Liabilities or the Business to the extent such amendment or change would reasonably be expected to result in additional Taxes or other costs to Buyer or any of its Affiliates (including the Purchased Entities) for which it would not otherwise be indemnified under Section 6.8foreign currency payments.

Settlement Payments. On the Settlement Date, the following amounts shall be paid, by wire transfer (a) of immediately available funds to an account designated in writing by the recipient thereof to the other party prior to the Settlement Date, as follows: (i) Any Party that receives if the Purchase Price exceeds the Initial Payment, Purchaser shall pay, or becomes entitled cause any Purchaser Affiliate to (pay, to Seller or whose Affiliate receives or becomes entitled to) any Tax refund (or credit for overpayment) with respect to Taxes for which the other Party would be liable under this Section 6.8 (a “Refund Recipient”) shall pay Assigning Subsidiary, as applicable, an aggregate amount equal to the other Party the entire amount sum of such refund or credit to the extent attributable to payments made by such other Party (including any interest thereon from the Taxing Authority, but (1) net of (x) any Taxes imposed by, a Taxing Authority with respect to such refund or credit (or other additional Tax payable as a result thereof), (y) out-of-pocket costs to obtain any such refund or credit and (z) any cost incurred in preparing any claim for such refund or credit) and (2) only to the extent received or actually used to reduce Taxes of the Refund Recipient for a Post-Closing Tax Period, in each case, within two years of the Closing Date, (A) in the case of a refund actually receivedSettlement Payment, no more than 20 Business Days after receiving such refund and (B) the Settlement Interest; or (ii) if the Initial Payment exceeds the Purchase Price, Seller shall pay, or cause the Assigning Subsidiaries to pay, to Purchaser or Purchaser Affiliate, as applicable, an aggregate amount equal to the sum of (A) (i) the excess amount of the Initial Payment over the Purchase Price (the "Excess Amount") plus (ii) interest on the Excess Amount calculated at the ---- Settlement Rate, as in effect on the Settlement Date, for the period from the Closing Date to, but not including, the Settlement Date (calculated on the basis of the actual number of days elapsed in a year of 365 or 366 days, as the case may be) plus (B) (i) the amount equal to the product of (X) the Excess Amount divided by the Initial Payment and (Y) the Cut-Off ---- Date Initial Payment Interest plus (ii) interest on the amount calculated in clause (B)(i) at the Settlement Rate, as in ---- effect on the Settlement Date, for the period from the Closing Date to, but not including, the Settlement Date (calculated on the basis of the actual number of days elapsed in a year of 365 or 366 days, as the case may be). (b) Notwithstanding anything to the contrary in this Section 2.4 or elsewhere in this Agreement, with respect to Assigning Subsidiaries that, in the case ordinary course of the application of business, maintain balance sheets denominated in other than U.S. dollars, all payments to be made by Purchaser or a Purchaser Affiliate to any such refund as a credit against future Taxes, no more than 20 Business Days after the filing of the Tax Return electing such credit; provided that if such Refund Recipient is required to repay to the relevant Taxing Authority such refund or credit, the other Party shall, upon the request of such Refund Recipient, repay the amount previously paid to such other Party Assigning Subsidiary pursuant to this Section 6.8(e2.4 (to the extent related to a Purchased Financing Contract) shall, in respect the sole discretion of such refund Assigning Subsidiary, be converted for the purposes of making such payment into the currency in which payments due under such Purchased Financing Contract are denominated using the exchange rate for such currency established in a bona fide, arms-length transaction by Purchaser or credit a Purchaser Affiliate on customary market terms with a currency exchange broker/market maker that is otherwise not an Affiliate of the Purchaser or a Purchaser Affiliate in effect five (plus 5) Business Days prior to the applicable Settlement Date; provided, however, that neither Purchaser nor any penaltiesPurchaser Affiliate shall be obligated to make payments hereunder in currency other than U.S. dollars, interest Japanese Yen, Euros or other charges imposed by Pounds Sterling. Not later than three (3) Business Days prior to the relevant Taxing Authority). Settlement Date, Purchaser shall provide Seller with written notice of the following: (i) the name of Purchaser and each Purchaser Affiliate that desires to make foreign currency payments to any member of the Seller Group in accordance with this Section 2.4(b) and (ii) Except as otherwise required by applicable Law the specific type of foreign currency that such Purchaser or in connection with the resolution of any Tax Claim in accordance with Section 6.8(f), Buyer shall not, and shall cause its Affiliates not to, take any of the following actions without the consent of Seller (not Purchaser Affiliate desires to be unreasonably withheld, conditioned or delayed) if utilize for such action would reasonably be expected to result in an increase in Taxes of Seller or any of its Affiliates (excluding any Purchased Entity with respect to Post-Closing Tax Periods) for any taxable period: (A) make or change any Tax election of the Purchased Entities or related to the Purchased Assets, the Assumed Liabilities or the Business for a Pre-Closing Tax Period (it being understood and agreed that Buyer shall not be permitted to make or file a tax election under Section 338 or 336 of the Code with respect to any Purchased Entity), (B) amend, refile or otherwise modify (or grant an extension of any applicable statute of limitations with respect to) any Seller-Signed Tax Return or Buyer-Signed Tax Return that includes a Pre-Closing Tax Period or Straddle Period Tax Return, (C) carry back any Tax attribute, including any loss, credit, credit carry forward, prepaid Tax or refund, and any claim for or right to receive any of the foregoing (a “Tax Attribute”) of any of the Purchased Entities from a Tax period ending after the Closing Date to any Pre-Closing Tax Period or (D) settle, compromise or otherwise concede any Tax Claim relating to a Pre-Closing Tax Period of any Purchased Entities, in each case, on or after the Closing Date (each, a “Post-Closing Tax Action”). Seller’s or any of its Affiliate’s consent to a Post-Closing Tax Action shall relieve Buyer of any responsibility for any such increase in Taxes of Seller or any of its Affiliates resulting from such Post-Closing Tax Action. Buyer shall notify Seller of any proposal to take a Post-Closing Tax Action that would reasonably be expected to result in an increase to Taxes imposed on Seller or any of its Affiliates (excluding any Purchased Entity with respect to Post-Closing Tax Periods) for any period compared to the amount of Taxes that would have been imposed had Buyer not taken such Post-Closing Tax Action, and Seller shall, within 30 Business Days of receiving such notice, inform Buyer of Seller’s decision whether to consent to such Post-Closing Tax Action. After the Closing, Seller shall not, and shall not permit any of its Affiliates to, amend any Tax Returns, change any Tax elections or accounting methods with respect to any of the Purchased Entities, the Purchased Assets, the Assumed Liabilities or the Business to the extent such amendment or change would reasonably be expected to result in additional Taxes or other costs to Buyer or any of its Affiliates (including the Purchased Entities) for which it would not otherwise be indemnified under Section 6.8foreign currency payments.

Settlement Payments. (a) Upon the first business day prior to the Termination Date, the Executive shall receive a lump-sum payment equal to $495,000, representing that part of the Initial Payment referenced in Exhibit A hereto which is made in respect of bonus earned but not yet paid for the Company's fiscal year ended March 31, 1999 under paragraph 9(c)(iii) of his Employment Agreement and bonus payable in satisfaction of Paragraph 9(c)(ii) of his Employment Agreement; (b) Upon the Termination Date, the Executive shall receive (i) Any Party that receives or becomes entitled a lump sum payment equal to (or whose Affiliate receives or becomes entitled to) any Tax refund (or credit for overpayment) with respect to Taxes for which $450,000, representing the other Party would be liable under this Section 6.8 (a “Refund Recipient”) shall pay to the other Party the entire amount of such refund or credit to the extent attributable to payments made by such other Party (including any interest thereon from the Taxing Authority, but (1) net of (x) any Taxes imposed by, a Taxing Authority with respect to such refund or credit (or other additional Tax payable as a result thereof), (y) out-of-pocket costs to obtain any such refund or credit and (z) any cost incurred in preparing any claim for such refund or credit) and (2) only to the extent received or actually used to reduce Taxes balance of the Refund Recipient for a Post-Closing Tax Period, Initial Payments referenced in each case, within two years of the Closing Date, (A) in the case of a refund actually received, no more than 20 Business Days after receiving such refund and (B) in the case of the application of such refund as a credit against future Taxes, no more than 20 Business Days after the filing of the Tax Return electing such credit; provided that if such Refund Recipient is required to repay to the relevant Taxing Authority such refund or credit, the other Party shall, upon the request of such Refund Recipient, repay the amount previously paid to such other Party Exhibit A pursuant to this Section 6.8(eparagraph 9(c)(i) in respect of such refund or credit (plus any penalties, interest or other charges imposed by the relevant Taxing Authority)his Employment Agreement. (ii) Except the immediate vesting of all stock options held by the Executive pursuant to paragraph 9(c)(v) of his Employment Agreement notwithstanding the terms of any such grant to the contrary, with the ability to exercise any such options for 12 months following the Termination Date, or for such shorter period as otherwise required is expressly permitted by applicable Law the Merger Agreement, or for such longer period as will permit the Executive to exercise his options in connection with any transaction resulting from a Follow-On Agreement, as hereinafter defined, but in no event after the resolution earlier of any Tax Claim in accordance with Section 6.8(f), Buyer shall not, and shall cause its Affiliates not to, take any of the following actions without the consent of Seller (not to be unreasonably withheld, conditioned or delayed) if such action would reasonably be expected to result in an increase in Taxes of Seller or any of its Affiliates (excluding any Purchased Entity with respect to Post-Closing Tax Periods) for any taxable period: (A) make or change any Tax election the expiration of the Purchased Entities originally applicable five or related to ten- year option term, as the Purchased Assetssame may have been previously extended, the Assumed Liabilities or the Business for a Pre-Closing Tax Period (it being understood and agreed that Buyer shall not be permitted to make or file a tax election under Section 338 or 336 of the Code with respect to any Purchased Entity), (B) amendSeptember 30, refile or otherwise modify 2000; and (or grant an extension iii) continuation coverage rights from the Company under the Federal Consolidated Omnibus Budget Reconciliation Act of any applicable statute 1985, as amended, which shall commence on the Termination Date pursuant to paragraph 9(c)(vi) of limitations with respect to) any Seller-Signed Tax Return or Buyer-Signed Tax Return that includes a Pre-Closing Tax Period or Straddle Period Tax Return, (C) carry back any Tax attribute, including any loss, credit, credit carry forward, prepaid Tax or refund, and any claim for or right to receive any of his Employment Agreement. Notwithstanding the foregoing (paragraph 2(b)(ii), Executive agrees that upon a “Tax Attribute”) Merger, as hereinafter defined, the Company may, if required in the Follow-On Agreement, as hereinafter defined, require that Executive surrender for cancellation all of any of the Purchased Entities from Executive's outstanding options in exchange for a Tax period ending after the Closing Date to any Pre-Closing Tax Period or (D) settle, compromise or otherwise concede any Tax Claim relating to a Pre-Closing Tax Period of any Purchased Entities, in each case, on or after the Closing Date (each, a “Post-Closing Tax Action”). Seller’s or any of its Affiliate’s consent to a Post-Closing Tax Action shall relieve Buyer of any responsibility for any such increase in Taxes of Seller or any of its Affiliates resulting from such Post-Closing Tax Action. Buyer shall notify Seller of any proposal to take a Post-Closing Tax Action that would reasonably be expected to result in an increase to Taxes imposed on Seller or any of its Affiliates (excluding any Purchased Entity with respect to Post-Closing Tax Periods) for any period compared cash payment equal to the amount (if any) by which the Change in Control price of Taxes the stock underlying Executive's options exceeds the applicable option price, and, in that would event, all such options will be canceled (without regard to whether the fair market value of the stock exceeds the option price at such time). (c) In the event of, and immediately upon the closing of, a Merger, as hereinafter defined, the Executive or, in the event of his death, the beneficiary or beneficiaries whom the Executive has identified to the Company for this purpose, or, in the event notice from the Executive to the Company identifying his beneficiaries has not been received prior to the Executive's date of death, the Executive's estate shall receive an additional lump-sum payment, pursuant to paragraph 9(d) of his Employment Agreement, equal to $2,285,000 representing the contingent payments referenced in Exhibit A. For purposes of this paragraph 2(b), a Merger shall mean the consummation of a transaction constituting a "Change of Control", as defined under paragraph 1(g) of the Employment Agreement (a "Change in Control"), with Jackpot Enterprises, Inc., or any subsidiary thereof, occurring at any time after the Effective Date, or with any other entity identified on Exhibit B hereto, provided a definitive agreement to complete such transaction shall have been imposed had Buyer not taken entered into by the Company with such Post-Closing Tax Action, and Seller shall, other entity within 30 Business Days of receiving such notice, inform Buyer of Seller’s decision whether to consent to such Post-Closing Tax Action. After six months following the Closing, Seller shall not, and shall not permit any of its Affiliates to, amend any Tax Returns, change any Tax elections or accounting methods with respect to any termination of the Purchased EntitiesMerger Agreement but in no event later than September 30, 2000 (a "Follow-On Agreement"). (d) The Company shall be entitled to withhold from the Purchased Assets, the Assumed Liabilities or the Business benefits and payments described herein (and in Exhibit A) all income and employment taxes required to the extent such amendment or change would reasonably be expected to result in additional Taxes or other costs to Buyer or any of its Affiliates (including the Purchased Entities) for which it would not otherwise be indemnified under Section 6.8withheld by applicable law.

Settlement Payments. (a) Without prejudicing in any manner the rights or obligations of the parties pursuant to Section 5.05 (including the preparation of the Final Adjusted Closing Date Schedule, the settlement of the Purchase Price in accordance with Section 2.05(b) and the dispute resolution procedures in respect of the Draft Closing Statements and the Final Closing Statements in accordance with Section 5.05(a)(iv) and Section 5.05(b)), within two (2) Business Days following the date of the delivery by the Purchaser of the Interim Balance Sheet pursuant to Section 5.05(a)(iii), the following amounts shall be paid, by wire transfer of immediately available funds, to an account designated in writing prior to such payment date by the recipient thereof to the party required to make such payment: (i) Any Party that receives or becomes entitled to if the Interim Purchase Price exceeds the Initial Payment, the Purchaser shall (or whose Affiliate receives or becomes entitled and/or shall cause the applicable Acquiring Entity to) pay to the Seller the absolute value of the amount of such excess, together with accrued interest thereon, calculated at the Settlement Rate as from time to time in effect, for the period from the date hereof to and including the date upon which such payment is made (calculated on the basis of the actual number of days elapsed in a year of 365 or 366 days, as the case may be); and (ii) if the Initial Payment exceeds the Interim Purchase Price, the Seller shall pay, or shall cause to be paid, to the Purchaser (and/or one or more Acquiring Entities, as directed by the Purchaser) the absolute value of the amount of such excess, together with accrued interest thereon, calculated at the Settlement Rate as from time to time in effect, for the period from the date hereof to and including the date upon which such payment is made (calculated on the basis of the actual number of days elapsed in a year of 365 or 366 days, as the case may be); provided, however, that notwithstanding any Tax refund provision of Section 5.05, any disputes in respect of the preparation of the draft Closing Date Schedule, the Interim Balance Sheet or the calculation of the Interim Purchase Price and any proposals for adjustments to any of the foregoing shall be reserved (or credit for overpaymentand not waived) by the parties and deferred until the conclusion of the settlement in accordance with respect to Taxes for which the other Party would be liable under this Section 6.8 2.05(a) and the delivery of the draft of the audited Closing Date Schedule. (b) In the event the parties settle certain amounts in accordance with Section 2.05(a), then on the Settlement Date, the following amounts shall be paid, by wire transfer of immediately available funds, to an account designated in writing prior to the Settlement Date by the recipient thereof to the party required to make such payment: (i) if the Purchase Price exceeds the Interim Purchase Price, the Purchaser shall (and/or shall cause the applicable Acquiring Entity to) pay to the Seller an amount equal to the absolute value of the amount of such excess, together with accrued interest thereon, calculated at the Settlement Rate as from time to time in effect, for the period from the date hereof to and including the Settlement Date (calculated on the basis of the actual number of days elapsed in a “Refund Recipient”year of 365 or 366 days, as the case may be); or (ii) if the Interim Purchase Price exceeds the Purchase Price, the Seller shall pay to the other Party Purchaser (and/or one or more Acquiring Entities, as directed by the entire Purchaser) an amount equal to the absolute value of the amount of such refund or credit excess, together with accrued interest thereon, calculated at the Settlement Rate as from time to time in effect, for the extent attributable to payments made by such other Party (including any interest thereon period from the Taxing Authority, but date hereof to and including the Settlement Date (1) net of (x) any Taxes imposed by, a Taxing Authority with respect to such refund or credit (or other additional Tax payable as a result thereof), (y) out-of-pocket costs to obtain any such refund or credit and (z) any cost incurred in preparing any claim for such refund or credit) and (2) only to calculated on the extent received or actually used to reduce Taxes basis of the Refund Recipient for actual number of days elapsed in a Post-Closing Tax Periodyear of 365 or 366 days, in each case, within two years of the Closing Date, (A) in as the case of a refund actually received, no more than 20 Business Days after receiving such refund and (B) in the case of the application of such refund as a credit against future Taxes, no more than 20 Business Days after the filing of the Tax Return electing such credit; provided that if such Refund Recipient is required to repay to the relevant Taxing Authority such refund or credit, the other Party shall, upon the request of such Refund Recipient, repay the amount previously paid to such other Party pursuant to this Section 6.8(e) in respect of such refund or credit (plus any penalties, interest or other charges imposed by the relevant Taxing Authoritymay be). (iic) Except as otherwise required by applicable Law or in connection with In the resolution of event the parties do not settle any Tax Claim amounts in accordance with Section 6.8(f2.05(a), Buyer then on the Settlement Date, the following amounts shall notbe paid, and by wire transfer of immediately available funds, to an account designated in writing prior to the Settlement Date by the recipient thereof to the party required to make such payment: (i) if the Purchase Price exceeds the Initial Payment, the Purchaser shall (and/or shall cause its Affiliates not the applicable Acquiring Entity to, take any of ) pay to the following actions without Seller an amount equal to the consent of Seller Settlement Payment plus the Settlement Interest in respect thereof; or (not to be unreasonably withheld, conditioned or delayedii) if such action would reasonably be expected to result in an increase in Taxes of the Initial Payment exceeds the Purchase Price, the Seller or any of its Affiliates (excluding any Purchased Entity with respect to Post-Closing Tax Periods) for any taxable period: (A) make or change any Tax election of the Purchased Entities or related shall pay to the Purchased Assets, the Assumed Liabilities Purchaser (and/or one or the Business for a Pre-Closing Tax Period (it being understood and agreed that Buyer shall not be permitted to make or file a tax election under Section 338 or 336 of the Code with respect to any Purchased Entity), (B) amend, refile or otherwise modify (or grant an extension of any applicable statute of limitations with respect to) any Seller-Signed Tax Return or Buyer-Signed Tax Return that includes a Pre-Closing Tax Period or Straddle Period Tax Return, (C) carry back any Tax attribute, including any loss, credit, credit carry forward, prepaid Tax or refund, and any claim for or right to receive any of the foregoing (a “Tax Attribute”) of any of the Purchased Entities from a Tax period ending after the Closing Date to any Pre-Closing Tax Period or (D) settle, compromise or otherwise concede any Tax Claim relating to a Pre-Closing Tax Period of any Purchased more Acquiring Entities, in each case, on or after as directed by the Closing Date (each, a “Post-Closing Tax Action”). Seller’s or any of its Affiliate’s consent to a Post-Closing Tax Action shall relieve Buyer of any responsibility for any such increase in Taxes of Seller or any of its Affiliates resulting from such Post-Closing Tax Action. Buyer shall notify Seller of any proposal to take a Post-Closing Tax Action that would reasonably be expected to result in Purchaser) an increase to Taxes imposed on Seller or any of its Affiliates (excluding any Purchased Entity with respect to Post-Closing Tax Periods) for any period compared amount equal to the amount of Taxes that would have been imposed had Buyer not taken such Post-Closing Tax Action, and Seller shall, within 30 Business Days of receiving such notice, inform Buyer of Seller’s decision whether to consent to such Post-Closing Tax Action. After Settlement Payment plus the Closing, Seller shall not, and shall not permit any of its Affiliates to, amend any Tax Returns, change any Tax elections or accounting methods with Settlement Interest in respect to any of the Purchased Entities, the Purchased Assets, the Assumed Liabilities or the Business to the extent such amendment or change would reasonably be expected to result in additional Taxes or other costs to Buyer or any of its Affiliates (including the Purchased Entities) for which it would not otherwise be indemnified under Section 6.8thereof.