PARENT IN ACCORDANCE WITH TREASURY REGULATION SECTIONS 1.1502-21,
1.1502-21T, 1.1502-22, 1.1502-79 AND, IF APPLICABLE, 1.1502-79A.
(II)
NO TAX ATTRIBUTE WITH RESPECT TO
CONSOLIDATED U.S. FEDERAL INCOME TAX OF THE PARENT CONSOLIDATED GROUP, OTHER
THAN THOSE DESCRIBED IN SECTION 7(A)(I), AND NO TAX ATTRIBUTE WITH RESPECT TO
CONSOLIDATED, COMBINED OR UNITARY STATE, LOCAL, OR FOREIGN INCOME TAX, IN EACH
CASE, ARISING IN RESPECT OF A COMBINED RETURN SHALL BE APPORTIONED TO SPINCO OR
ANY MEMBER OF THE SPINCO GROUP, EXCEPT AS PARENT (OR SUCH MEMBER OF THE PARENT
GROUP AS PARENT SHALL DESIGNATE) DETERMINES IS OTHERWISE REQUIRED UNDER
APPLICABLE LAW.
(III)
PARENT (OR ITS DESIGNEE) SHALL DETERMINE THE
PORTION, IF ANY, OF ANY TAX ATTRIBUTE WHICH MUST (ABSENT A FINAL DETERMINATION
TO THE CONTRARY) BE APPORTIONED TO SPINCO OR ANY MEMBER OF THE SPINCO GROUP IN
ACCORDANCE WITH THIS SECTION 7(A) AND APPLICABLE LAW, AND THE AMOUNT OF TAX
BASIS AND EARNINGS AND PROFITS TO BE APPORTIONED TO SPINCO OR ANY MEMBER OF THE
SPINCO GROUP IN ACCORDANCE WITH APPLICABLE LAW, AND SHALL PROVIDE WRITTEN NOTICE
OF THE CALCULATION THEREOF TO SPINCO AS SOON AS PRACTICABLE AFTER THE
INFORMATION NECESSARY TO MAKE SUCH CALCULATION BECOMES AVAILABLE TO PARENT.
(IV)
EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW
OR PURSUANT TO A FINAL DETERMINATION, SPINCO SHALL NOT TAKE ANY POSITION
(WHETHER ON A TAX RETURN OR OTHERWISE) THAT IS INCONSISTENT WITH THE INFORMATION
CONTAINED IN THE WRITTEN NOTICE DELIVERED BY PARENT PURSUANT TO
SECTION 7(A)(III).
(B)
CARRYBACKS.
EXCEPT TO THE EXTENT OTHERWISE
CONSENTED TO BY PARENT OR PROHIBITED BY APPLICABLE LAW, SPINCO SHALL ELECT TO
RELINQUISH, WAIVE OR OTHERWISE FORGO ALL CARRYBACKS.
IN THE EVENT THAT SPINCO
(OR THE APPROPRIATE MEMBER OF THE SPINCO GROUP) IS PROHIBITED BY APPLICABLE LAW
TO RELINQUISH, WAIVE OR OTHERWISE FORGO A CARRYBACK (OR PARENT CONSENTS TO A
CARRYBACK), (I) PARENT SHALL COOPERATE WITH SPINCO, AT SPINCO'S EXPENSE, IN
SEEKING FROM THE APPROPRIATE TAX AUTHORITY SUCH REFUND AS REASONABLY WOULD
RESULT FROM SUCH CARRYBACK, AND (II) SPINCO SHALL BE ENTITLED TO ANY INCOME TAX
BENEFIT ACTUALLY REALIZED BY A MEMBER OF THE PARENT GROUP (INCLUDING ANY
INTEREST THEREON RECEIVED FROM SUCH TAX AUTHORITY), TO THE EXTENT THAT SUCH
REFUND IS DIRECTLY ATTRIBUTABLE TO SUCH CARRYBACK, WITHIN 15 BUSINESS DAYS AFTER
SUCH REFUND IS ACTUALLY REALIZED; PROVIDED, HOWEVER, THAT SPINCO SHALL INDEMNIFY
AND HOLD THE MEMBERS OF THE PARENT GROUP HARMLESS FROM AND AGAINST ANY AND ALL
COLLATERAL TAX CONSEQUENCES RESULTING FROM OR CAUSED BY ANY SUCH CARRYBACK,
INCLUDING (BUT NOT LIMITED TO) THE LOSS OR POSTPONEMENT OF ANY BENEFIT FROM THE
USE OF TAX ATTRIBUTES GENERATED BY A MEMBER OF THE PARENT GROUP OR AN AFFILIATE
THEREOF IF (X) SUCH TAX ATTRIBUTES EXPIRE UNUTILIZED, BUT WOULD HAVE
21
BEEN UTILIZED BUT FOR SUCH CARRYBACK, OR (Y) THE USE OF SUCH TAX ATTRIBUTES IS
POSTPONED TO A LATER TAXABLE PERIOD THAN THE TAXABLE PERIOD IN WHICH SUCH TAX
ATTRIBUTES WOULD HAVE BEEN UTILIZED BUT FOR SUCH CARRYBACK.
IF THERE IS A FINAL
DETERMINATION THAT RESULTS IN ANY CHANGE