Common use of Timing Differences Clause in Contracts

Timing Differences. (a) Purchaser agrees that if (i) there is an audit adjustment (or adjustment in any other Tax Proceeding) made with respect to any Tax Item by any Taxing Authority with respect to Taxes for which Sellers are liable or responsible (and which liability is actually satisfied by Sellers), and (ii) as a result of such adjustment, Purchaser, the NGX/Shorcan Companies or any of their respective Subsidiaries or Affiliates receives in a Post-Closing Period an actual reduction in cash Tax liability or any Tax refund in cash, in each case, in or prior to the taxable year in which the audit or other Tax Proceeding is concluded or in the succeeding two taxable years, then Purchaser shall pay to Sellers the amount of such reduction or refund within fifteen (15) days of filing the Tax Return in which such reduction or refund is actually realized, except to the extent such reduction or refund is reflected in the determination of Closing Working Capital. (b) If Purchaser, the NGX/Shorcan Companies or any of their respective Subsidiaries or Affiliates receives in a Post-Closing Period an actual reduction in cash Tax liability or any Tax refund in cash arising from any deduction arising in respect of any NGX/Shorcan Transaction Expenses that are borne or paid by Sellers, Purchaser acknowledges and agrees that it will pay Sellers the amount of any such reduction or refund that results from such deduction on a Tax Return of Purchaser or any of its Affiliates (including the NGX/Shorcan Companies) in or prior to the taxable year in which the applicable Transaction Expense is paid or in the succeeding two taxable years, which amount shall be paid to Sellers within fifteen (15) days of filing the Tax Return in which such reduction or refund is actually realized, except to the extent such reduction or refund is reflected in the computation of Closing Working Capital and increases the Closing Purchase Price.

Timing Differences. (a) Purchaser agrees Purchasers agree that if (i) there is an audit adjustment (or adjustment in any other Tax Proceeding) made with respect to any Tax Item by any Taxing Authority with respect to Taxes for which Sellers are Seller is liable or responsible (and which liability is actually satisfied by SellersSeller), and (ii) as a result of such adjustment, PurchaserPurchasers, the NGX/Shorcan Trayport Companies or any of their respective Subsidiaries or Affiliates receives in a Post-Closing Period an actual reduction in cash Tax liability or any Tax refund in cash, in each case, in or prior to the taxable year in which the audit or other Tax Proceeding is concluded or in the succeeding two taxable years, then Purchaser Purchasers shall pay to Sellers Seller the amount of such reduction or refund within fifteen (15) days of filing the Tax Return in which such reduction or refund is actually realized, except to the extent such reduction or refund is reflected in the determination of Closing Working Capital. (b) If PurchaserPurchasers, the NGX/Shorcan Trayport Companies or any of their respective Subsidiaries or Affiliates receives in a Post-Closing Period an actual reduction in cash Tax liability or any Tax refund in cash arising from any deduction arising in respect of any NGX/Shorcan Trayport Transaction Expenses that are borne or paid by SellersSeller, Purchaser acknowledges Purchasers acknowledge and agrees agree that it they will pay Sellers Seller the amount of any such reduction or refund that results from such deduction on a Tax Return of Purchaser Purchasers or any of its their Affiliates (including the NGX/Shorcan Trayport Companies) in or prior to the taxable year in which the applicable Trayport Transaction Expense is paid or in the succeeding two taxable years, which amount shall be paid to Sellers Seller within fifteen (15) days of filing the Tax Return in which such reduction or refund is actually realized, except to the extent such reduction or refund is reflected in the computation of Closing Working Capital and increases the Closing Purchase Price.

Timing Differences. (a) Purchaser agrees that if (i) there is If as the result of any adjustment to an Excluded Tax made in an audit adjustment or other Tax proceeding, the Sellers are required to make an additional Tax payment (either directly to a Taxing Authority or as an indemnity payment under Section 9.2 of this Agreement), or suffer a reduction in any refund or credit, and, due to such Tax payment (or reduction in refund or credit, or adjustment giving rise to such payment or reduction in any other Tax Proceeding) made with respect to any Tax Item by any Taxing Authority with respect to Taxes for which Sellers are liable such refund or responsible (and which liability is actually satisfied by Sellerscredit), and (ii) as a result of such adjustment, Purchaser, the NGX/Shorcan Companies Buyer or Windmill or any of their respective Subsidiaries or Affiliates receives in obtains a Post-Closing Period Tax benefit, the Buyer shall pay to the Sellers an amount equal to the actual Tax benefit so derived. The amount of any such Tax benefit shall be equal to the amount of the actual reduction in cash Tax liability Taxes (or increase in refund or credit) reflected on any Tax refund in cash, in each case, in Return of the Buyer or prior to the taxable year in which the audit or other Tax Proceeding is concluded or in the succeeding two taxable years, then Purchaser shall pay to Sellers the amount of such reduction or refund within fifteen (15) days of filing the Tax Return in which such reduction or refund is actually realized, except to the extent such reduction or refund is reflected in the determination of Closing Working Capital. (b) If Purchaser, the NGX/Shorcan Companies Windmill or any of their respective Subsidiaries Affiliates (net of any resulting increases in Taxes borne by Buyer on any such other filed Return) for such period (or Affiliates receives any earlier period) as compared to the amount that would have been reflected on such Return in the absence of the additional Tax payment by (or reduction in refund or credit of) Sellers. Any adjustment not resulting in a Post-Closing Period an actual reduction in cash Tax liability benefit to the period to which it relates or any earlier period shall be carried forward to succeeding taxable years until used to the extent permitted by Law. All payments to Sellers pursuant to this Section 7.3(d) shall be made within 15 days after the filing of the applicable Return for the period in which the Tax benefit is realized by Buyer or Windmill and shall be accompanied by supporting calculations in a 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 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 notice, the Sellers shall promptly refund such payment (or allocable portion thereof) to the Buyer or Windmill (PROVIDED that in cash arising from any deduction arising no case shall Sellers, in respect of any NGX/Shorcan Transaction Expenses that are borne or paid payment a refund of which is sought under this sentence, be required to refund an amount in excess of such payment previously received by Sellers, Purchaser acknowledges and agrees that it will pay Sellers the amount of any such reduction or refund that results from such deduction on a Tax Return of Purchaser or any of its Affiliates (including the NGX/Shorcan Companies) in or prior to the taxable year in which the applicable Transaction Expense is paid or in the succeeding two taxable years, which amount shall be paid to Sellers within fifteen (15) days of filing the Tax Return in which such reduction or refund is actually realized, except to the extent such reduction or refund is reflected in the computation of Closing Working Capital and increases the Closing Purchase PriceBuyer).

Timing Differences. (a) Purchaser agrees that if (i) there is If as the result of any adjustment to an Excluded Tax made in an audit adjustment or other Tax proceeding, the Sellers are required to make an additional Tax payment (either directly to a Taxing Authority or as an indemnity payment under Section 9.2 of this Agreement), or suffer a reduction in any refund or credit, and, due to such Tax payment (or reduction in refund or credit, or adjustment giving rise to such payment or reduction in any other Tax Proceeding) made with respect to any Tax Item by any Taxing Authority with respect to Taxes for which Sellers are liable such refund or responsible (and which liability is actually satisfied by Sellerscredit), and (ii) as a result of such adjustment, Purchaser, the NGX/Shorcan Companies Buyer or Windmill or any of their respective Subsidiaries or Affiliates receives in obtains a Post-Closing Period Tax benefit, the Buyer shall pay to the Sellers an amount equal to the actual Tax benefit so derived. The amount of any such Tax benefit shall be equal to the amount of the actual reduction in cash Tax liability Taxes (or increase in refund or credit) reflected on any Tax refund in cash, in each case, in Return of the Buyer or prior to the taxable year in which the audit or other Tax Proceeding is concluded or in the succeeding two taxable years, then Purchaser shall pay to Sellers the amount of such reduction or refund within fifteen (15) days of filing the Tax Return in which such reduction or refund is actually realized, except to the extent such reduction or refund is reflected in the determination of Closing Working Capital. (b) If Purchaser, the NGX/Shorcan Companies Windmill or any of their respective Subsidiaries Affiliates (net of any resulting increases in Taxes borne by Buyer on any such other filed Return) for such period (or Affiliates receives any earlier period) as compared to the amount that would have been reflected on such Return in the absence of the additional Tax payment by (or reduction in refund or credit of) Sellers. Any adjustment not resulting in a Post-Closing Period an actual reduction in cash Tax liability benefit to the period to which it relates or any earlier period shall be carried forward to succeeding taxable years until used to the extent permitted by law. All payments to Sellers pursuant to this Section 7.3(d) shall be made within 15 days after the filing of the applicable Return for the period in which the Tax benefit is realized by Buyer or Windmill and shall be accompanied by supporting calculations in a 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 utilized because of the prior use of a Tax benefit 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 notice, the Sellers shall promptly refund such payment (or allocable portion thereof) to the Buyer or Windmill (PROVIDED that in cash arising from any deduction arising no case shall Sellers, in respect of any NGX/Shorcan Transaction Expenses that are borne or paid payment a refund of which is sought under this sentence, be required to refund an amount in excess of such payment previously received by Sellers, Purchaser acknowledges and agrees that it will pay Sellers the amount of any such reduction or refund that results from such deduction on a Tax Return of Purchaser or any of its Affiliates (including the NGX/Shorcan Companies) in or prior to the taxable year in which the applicable Transaction Expense is paid or in the succeeding two taxable years, which amount shall be paid to Sellers within fifteen (15) days of filing the Tax Return in which such reduction or refund is actually realized, except to the extent such reduction or refund is reflected in the computation of Closing Working Capital and increases the Closing Purchase PriceBuyer).

Timing Differences. (a) Purchaser agrees that if (i) there is an audit adjustment (or adjustment In the event of any increase in Taxes for any reason in any other Tax Proceeding) made with respect 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 Item savings realized by Buyer, the Company or any Taxing Authority with respect to Taxes for which Sellers are liable or responsible (and which liability is actually satisfied by Sellers), and (ii) Subsidiary as a result of such adjustmentTiming Adjustment. For purposes of this Section 5.11(c), Purchasera 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 NGX/Shorcan Companies one taxable period and a decrease in Taxes in the other taxable period or any of their respective Subsidiaries or Affiliates receives results in a Post-Closing Period an actual reduction Tax benefit in cash Tax liability such other taxable period that may be carried to a different taxable period or any Tax refund in cashperiods. For this purpose, in each case, in or prior to the taxable year in which the audit or other Tax Proceeding is concluded or in the succeeding two taxable years, then Purchaser shall pay to Sellers the amount of such reduction or refund within fifteen (15) days of filing the Tax Return in which such reduction or refund is actually realized, except to the extent such reduction or refund is reflected in the determination of Closing Working Capital. (b) If Purchaser, the NGX/Shorcan Companies or any of their respective Subsidiaries or Affiliates receives in a Post-Closing Period an actual reduction in cash Tax liability or any Tax refund in cash arising from any deduction arising in respect of any NGX/Shorcan Transaction Expenses that are borne or paid by Sellers, Purchaser acknowledges and agrees that it will pay Sellers the amount of any such reduction or refund that results from such deduction on a Tax Return of Purchaser 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 Affiliates Subsidiaries shall be considered to result in a Timing Adjustment to the extent that (including i) income or deductions that would have been reported on such Tax Return in accordance with the NGX/Shorcan Companiespast 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 or prior a different taxable period in accordance with the past practices and positions of the Company and its Subsidiaries are shifted to the taxable year 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 applicable Transaction Expense is 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 succeeding two taxable yearssame loss, which amount cost or expense. Notwithstanding the foregoing, Buyer shall be paid to Sellers within fifteen (15) days indemnified for any time value of filing the Tax Return in which such reduction or refund is actually realized, except to the extent such reduction or refund is reflected in the computation of Closing Working Capital and increases money loss for a taxable period beginning after the Closing Purchase PriceDate 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. (a) Purchaser agrees that if (i) there is an 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 taxing authority with respect to Taxes for which Sellers are liable or responsible (and which liability is actually satisfied by Sellers), and (ii) as a result of such adjustmentPre-Closing Period, Purchaser, the NGX/Shorcan Companies or any Subsidiary Purchaser of their respective Subsidiaries or Affiliates receives any Acquired Company, actually realizes a reduction in cash Taxes payable in a Post-Closing Period an actual and such reduction in cash Tax liability or any Tax refund in cash, in each case, in or prior to the taxable year in which the audit or other Tax Proceeding is concluded or in the succeeding two taxable yearsexceeds $1,000,000, then Purchaser, such Subsidiary Purchaser shall or such Acquired Company will pay to Sellers Seller the amount of such reduction or refund within fifteen (15) calendar days of filing the Tax Return in which such reduction is realized or refund is actually realizedutilized. If as a result of the foregoing audit adjustment Purchaser incurs any additional Tax and such additional Tax exceeds $1,000,000, except then Seller will pay to Purchaser the extent amount of such reduction or refund is reflected in additional Tax within fifteen calendar days of the determination due date for making payment of Closing Working Capital. (b) If Purchaser, such additional Tax. For purposes of determining the NGX/Shorcan Companies or amount and timing of any of their respective Subsidiaries or Affiliates receives in a Post-Closing Period an actual reduction in cash Tax liability Taxes payable or any additional Tax refund in cash arising from incurred by Purchaser, any deduction arising in respect Subsidiary Purchaser and any Acquired Company as a result of any NGX/Shorcan Transaction Expenses that are borne or paid by Sellerssuch adjustment, Purchaser acknowledges and agrees that it will pay Sellers such amount shall be deemed to equal the difference between the amount of Tax payable by Purchaser, any Subsidiary Purchaser or an Acquired Company, as the case may be, taking into account such reduction adjustment and the Taxes that would have been payable by Purchaser, any Subsidiary Purchaser or refund that results from an Acquired Company, as the case may be, if such deduction on adjustment had not occurred. If Purchaser shall have made a Tax Return of payment pursuant to this Section 10.6 and Purchaser, any Subsidiary Purchaser or any Acquired Company shall thereafter lose all or any portion of its Affiliates the benefit of any reduction in cash Taxes payable that resulted from the adjustment that gave rise to such payment (including it being understood that a reduction in cash Taxes payable shall not be considered to be lost as a result of the NGX/Shorcan Companies) in inability of Purchaser, any Subsidiary Purchaser or prior any Acquired Company to carry back a net operating loss to the taxable year such reduction in which cash Taxes payable was realized), Seller shall repay to Purchaser the applicable Transaction Expense is paid or amount of such lost reduction in the succeeding two taxable years, which amount shall be paid to Sellers cash Taxes payable within fifteen (15) 15 days of filing receipt of notice from Purchaser specifying in reasonable detail the Tax Return amount of such lost reduction. Nothing in which such reduction or refund is actually realized, except to this SECTION 10.6 shall have any effect on the extent such reduction or refund is reflected in rights and obligations of the computation parties under the remainder of Closing Working Capital and increases the Closing Purchase Price.this ARTICLE X.

Timing Differences. (a) Purchaser agrees that if (i) there is If as the result of any adjustment to an Excluded Tax made in an audit adjustment or other Tax proceeding, the Sellers are required to make an additional Tax payment (either directly to a Taxing Authority or as an indemnity payment under Section 9.2 of this Agreement), or suffer a reduction in any refund or credit, and, due to such Tax payment (or reduction in refund or credit, or adjustment giving rise to such payment or reduction in any other Tax Proceeding) made with respect to any Tax Item by any Taxing Authority with respect to Taxes for which Sellers are liable such refund or responsible (and which liability is actually satisfied by Sellerscredit), and (ii) as a result of such adjustment, Purchaser, the NGX/Shorcan Companies Buyer or Windmill or any of their respective Subsidiaries or Affiliates receives in obtains a Post-Closing Period Tax benefit, the Buyer shall pay to the Sellers an amount equal to the actual Tax benefit so derived. The amount of any such Tax benefit shall be equal to the amount of the actual reduction in cash Tax liability Taxes (or increase in refund or credit) reflected on any Tax refund in cash, in each case, in Return of the Buyer or prior to the taxable year in which the audit or other Tax Proceeding is concluded or in the succeeding two taxable years, then Purchaser shall pay to Sellers the amount of such reduction or refund within fifteen (15) days of filing the Tax Return in which such reduction or refund is actually realized, except to the extent such reduction or refund is reflected in the determination of Closing Working Capital. (b) If Purchaser, the NGX/Shorcan Companies Windmill or any of their respective Subsidiaries Affiliates (net of any resulting increases in Taxes borne by Buyer on any such other filed Return) for such period (or Affiliates receives any earlier period) as compared to the amount that would have been reflected on such Return in the absence of the additional Tax payment by (or reduction in refund or credit of) Sellers. Any adjustment not resulting in a Post-Closing Period an actual reduction in cash Tax liability benefit to the period to which it relates or any earlier period shall be carried forward to succeeding taxable years until used to the extent permitted by Law. All payments to Sellers pursuant to this Section 7.3(d) shall be made within 15 days after the filing of the applicable Return for the period in which the Tax benefit is realized by Buyer or Windmill and shall be accompanied by supporting calculations in a 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 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 notice, the Sellers shall promptly refund such payment (or allocable portion thereof) to the Buyer or Windmill (PROVIDED that in cash arising from any deduction arising no case shall Sellers, in respect of any NGX/Shorcan Transaction Expenses that are borne or paid payment a refund of which is sought under this sentence, be required to refund an amount in excess of such payment previously received by Sellers, Purchaser acknowledges and agrees that it will pay Sellers the amount of any such reduction or refund that results from such deduction on a Tax Return of Purchaser or any of its Affiliates (including the NGX/Shorcan Companies) in or prior to the taxable year in which the applicable Transaction Expense is paid or in the succeeding two taxable years, which amount shall be paid to Sellers within fifteen (15) days of filing the Tax Return in which such reduction or refund is actually realized, except to the extent such reduction or refund is reflected in the computation of Closing Working Capital and increases the Closing Purchase PriceBuyer).