Common use of Audits and Contest Clause in Contracts

Audits and Contest. (a) Distributing or Controlled shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation of a party under this Agreement; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing shall have full control over all matters relating to any Return or any Tax Proceeding relating to any Tax matters of at least one member of the Distributing Group. Except as provided in Section 13(c), Distributing shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. Distributing shall act in good faith in the performance of this Section 13(b). Controlled may, at its own expense, participate in any such Tax Proceeding. (i) Upon request, during the course of any Tax Proceeding relating to a Tax liability or damage described in Section 10(a), Controlled shall from time to time furnish Distributing with evidence reasonably satisfactory to Distributing of Controlled’s ability to pay the amount for which it could reasonably be expected to be responsible pursuant to Section 10(a). If at any time during such Tax Proceeding Distributing determines that Controlled could not pay such amount, then Controlled shall be required to furnish a guarantee or performance bond satisfactory to Distributing in an amount equal to the amount for which Controlled could reasonably be expected to be responsible pursuant to Section 10(a). (ii) Notwithstanding anything to the contrary in this Agreement, in the event a Tax Proceeding involves an issue that is common to both the Distributing Group and the Controlled Group, Distributing shall use its best efforts to settle such issues on behalf of the Distributing Group and the Controlled Group on a consistent basis. (iii) Notwithstanding anything to the contrary in this Agreement, with respect to any Tax Proceeding involving issues relating solely to a Tax liability of one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled shall have control over such Tax Proceeding. (d) The indemnified party agrees to give notice to the indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder within 30 days of such assertion or commencement, or such earlier time that would allow the indemnitor to timely respond to such claim, suit action or proceeding. (e) With respect to Returns relating to Taxes solely attributable to one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled and the members of the Controlled Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled and the members of the Controlled Group shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. (f) Controlled and Distributing shall jointly control the conduct of the Company Proceedings. Controlled shall not agree to any settlement in respect of the Company Proceedings without the consent of Distributing, which consent shall not be unreasonably withheld.

Audits and Contest. (a) Distributing or Controlled shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation of a party under this Agreement; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing The Limited shall have full control over all matters relating to any Return tax return or any Tax tax Proceeding relating to any Tax tax matters of at least one member of the Distributing The Limited Consolidated Group. Except as provided in Section 13(c8(b), Distributing shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. Distributing shall act in good faith in the performance of this Section 13(b). Controlled may, at its own expense, participate in any such Tax Proceeding. (i) Upon request, during the course of any Tax Proceeding relating to a Tax liability or damage described in Section 10(a), Controlled shall from time to time furnish Distributing with evidence reasonably satisfactory to Distributing of Controlled’s ability to pay the amount for which it could reasonably be expected to be responsible pursuant to Section 10(a). If at any time during such Tax Proceeding Distributing determines that Controlled could not pay such amount, then Controlled shall be required to furnish a guarantee or performance bond satisfactory to Distributing in an amount equal to the amount for which Controlled could reasonably be expected to be responsible pursuant to Section 10(a). (ii) Notwithstanding anything to the contrary in this Agreement, in the event a Tax Proceeding involves an issue that is common to both the Distributing Group and the Controlled Group, Distributing shall use its best efforts to settle such issues on behalf of the Distributing Group and the Controlled Group on a consistent basis. (iii) Notwithstanding anything to the contrary in this Agreement, with respect to any Tax Proceeding involving issues relating solely to a Tax liability of one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled shall have control over such Tax Proceeding. (d) The indemnified party agrees to give notice to the indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder within 30 days of such assertion or commencement, or such earlier time that would allow the indemnitor to timely respond to such claim, suit action or proceeding. (e) With respect to Returns relating to Taxes solely attributable to one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled and the members of the Controlled Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled and the members of the Controlled Group Limited shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. (fb) Controlled and Distributing No settlement of any Tax Proceeding relating to any matter that would cause a payment obligation under Sections 5(a) or 5(b) shall jointly control the conduct be accepted or entered into by or on behalf of the Company Proceedings. Controlled shall not agree party entitled to any settlement receive a payment under either Section 5(a) or 5(b), whichever is applicable, unless the party ultimately responsible for such payment under either Section 5(a) or 5(b), whichever is applicable (the "Indemnitor"), consents thereto in respect of the Company Proceedings without the consent of Distributing, writing (which consent shall not be unreasonably withheld). If such consent is unreasonably withheld, all expenses relating to the contest of such matter shall be borne by the Indemnitor, and otherwise they shall be borne equally by the Indemnitor and the indemnified party. If the Indemnitor does not respond to the indemnified party's request for consent within 30 days, the Indemnitor will be deemed to have consented to the settlement. (c) The indemnified party agrees to give prompt notice to the Indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder. (d) With respect to Returns relating to taxes solely attributable to the Abercrombie & Fitch Group, Abercrombie & Fitch and the members of the Abercrombie & Fitch Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Abercrombie & Fitch and the members of the Abercrombie & Fitch Group shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence.

Audits and Contest. (a) Distributing MS or Controlled MSCI shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation of a party under this Agreement; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing MS shall have full control over all matters relating to any Return or any Tax Proceeding relating to any Tax matters of at least one member of the Distributing MS Group; provided, however, that MSCI shall have full control over Tax Proceedings involving issues relating solely to a Tax liability of one or more members of the MSCI Group. Except as provided in Section 13(c), Distributing MS shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. Distributing shall act in good faith in the performance of this Section 13(b). Controlled may, at its own expense, participate in any such Tax Proceeding. (i) Upon request, during the course of any Tax Proceeding relating to a Tax liability or damage described in Section 10(a), Controlled MSCI shall from time to time furnish Distributing MS with evidence reasonably satisfactory to Distributing MS of ControlledMSCI’s ability to pay the amount for which it could reasonably be expected to be responsible pursuant to Section 10(a). If at any time during such Tax Proceeding Distributing MS determines that Controlled MSCI could not pay such amount, then Controlled MSCI shall be required to furnish a guarantee or performance bond satisfactory to Distributing MS in an amount equal to the amount for which Controlled MSCI could reasonably be expected to be responsible pursuant to Section 10(a). (ii) Notwithstanding anything to the contrary in this Agreement, in the event a Tax Proceeding involves an issue that is common to both the Distributing MS Group and the Controlled MSCI Group, Distributing MS shall use its best efforts to settle such issues on behalf of the Distributing MS Group and the Controlled MSCI Group on a consistent basis. (iii) Notwithstanding anything to the contrary in this Agreement, with respect to any Tax Proceeding involving issues relating solely to a Tax liability of one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled shall have control over such Tax Proceeding. (d) The indemnified party agrees to give notice to the indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder within 30 days of such assertion or commencement, or such earlier time that would allow the indemnitor to timely respond to such claim, suit action or proceeding. (e) With respect to Returns relating to Taxes solely attributable to one or more members of the Controlled MSCI Group (taking into account the parties’ obligations under Section 10), Controlled MSCI and the members of the Controlled MSCI Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled MSCI and the members of the Controlled MSCI Group shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. (f) Controlled and Distributing shall jointly control the conduct of the Company Proceedings. Controlled shall not agree to any settlement in respect of the Company Proceedings without the consent of Distributing, which consent shall not be unreasonably withheld.

Audits and Contest. (a) Distributing MS or Controlled MSCI shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation of a party under this Agreement; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing MS shall have full control over all matters relating to any Return or any Tax Proceeding relating to any Tax matters of at least one member of the Distributing MS Group; provided, however, that MSCI shall have full control over Tax Proceedings involving issues relating solely to a Tax liability of one or more members of the MSCI Group. Except as provided in Section 13(cB(c), Distributing MS shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. Distributing shall act in good faith in the performance of this Section 13(b). Controlled may, at its own expense, participate in any such Tax Proceeding. (i) Upon request, during the course of any Tax Proceeding relating to a Tax liability or damage described in Section 10(al0(a), Controlled MSCI shall from time to time furnish Distributing MS with evidence reasonably satisfactory to Distributing MS of ControlledMSCI’s ability to pay the amount for which it could reasonably be expected to be responsible pursuant to Section 10(al0(a). If at any time during such Tax Proceeding Distributing MS determines that Controlled MSCI could not pay such amount, then Controlled MSCI shall be required to furnish a guarantee or performance bond satisfactory to Distributing MS in an amount equal to the amount for which Controlled MSCI could reasonably be expected to be responsible pursuant to Section 10(a). (ii) Notwithstanding anything to the contrary in this Agreement, in the event a Tax Proceeding involves an issue that is common to both the Distributing MS Group and the Controlled MSCI Group, Distributing MS shall use its best efforts to settle such issues on behalf of the Distributing MS Group and the Controlled MSCI Group on a consistent basis. (iii) Notwithstanding anything to the contrary in this Agreement, with respect to any Tax Proceeding involving issues relating solely to a Tax liability of one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled shall have control over such Tax Proceeding. (d) The indemnified party agrees to give notice to the indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder within 30 days of such assertion or commencement, or such earlier time that would allow the indemnitor to timely respond to such claim, suit action or proceeding. (e) With respect to Returns relating to Taxes solely attributable to one or more members of the Controlled MSCI Group (taking into account the parties’ obligations under Section 10), Controlled MSCI and the members of the Controlled MSCI Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled MSCI and the members of the Controlled MSCI Group shall have absolute discretion with respect to any decisions to be made, or the nature of any any. action to be taken, with respect to any matter described in the preceding sentence. (f) Controlled and Distributing shall jointly control the conduct of the Company Proceedings. Controlled shall not agree to any settlement in respect of the Company Proceedings without the consent of Distributing, which consent shall not be unreasonably withheld.

Audits and Contest. (a) Distributing CS or Controlled DPS shall promptly notify the other in writing upon the receipt of any notice of a Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation a right to indemnification of a party under this AgreementAgreement together with a description in reasonable detail of the Tax Proceeding and the underlying claim within 30 days of the receipt of such notice or such earlier time that would allow the indemnifying party to timely respond to such notice; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing except as otherwise provided in this Section 9(b), CS shall have full control over all any Tax Proceeding in respect of Cadbury Group Taxes and Taxes indemnified against by CS pursuant to this Agreement including any Tax Proceeding involving the DPS Group or any of its members relating to a Confectionery Transaction or a Specified Entity. CS shall have absolute discretion with respect to any decisions to be made (including choice of counsel, venue or judicial forum), or the nature of any action to be taken, with respect to such Tax Proceeding and the contest thereof (including whether to litigate, compromise or otherwise settle the dispute or contest and the amount of any settlement) and DPS shall cooperate with CS in accordance with the provisions of Section 8 and this Section 9; provided that DPS may, at its own expense, participate in any such Tax Proceeding and CS shall consult with and take reasonable direction from DPS in respect of any decisions to be made or actions to be taken in respect of Tax matters of the DPS Group other than with respect to Cadbury Group Taxes, Confectionery Transactions, one or more Specified Entities or other matters relating to Taxes indemnified against by CS pursuant to this Agreement. (c) With respect to Tax Proceedings not described in Section 9(b) but that could result in a right to indemnification for Taxes or Damages by the DPS Group or the Cadbury Group, as the case may be, under this Agreement, the indemnified party shall control the Tax Proceeding and contest the claim indemnified against in good faith as directed by the indemnifying party; provided further that to the extent relating to the claim indemnified against, (i) the indemnified party shall keep the indemnifying party informed of the status and progress of the Tax Proceeding and shall consult with the indemnified party regarding decisions relating to the Tax Proceeding, and (ii) the indemnified party shall not settle or compromise any Return such Tax Proceeding without the prior written consent of the indemnified party (such consent not to be unreasonably withheld or delayed). (d) With respect to any Tax Proceeding involving issues relating solely to any a Tax matters Return or Taxes of at least one member or more members of the Distributing Group. Except as provided in DPS Group for which the DPS Group has no right to indemnification under this Agreement or Taxes indemnified against by DPS under Section 13(c6(b)(iv), Distributing DPS shall have absolute control over such Tax Proceeding and shall have discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in such Tax Proceeding; provided that to the preceding sentence. Distributing extent that the outcome of the Tax Proceeding can affect the Taxes of the Cadbury Group under the CFC Legislation or otherwise, (i) CS shall act in good faith in have the performance of this Section 13(b). Controlled mayright, at its own expense, to participate in and DPS shall keep CS informed of the status and progress of the Tax Proceeding and shall consult with CS regarding decisions relating to the Tax Proceeding, and (ii) DPS shall not settle or compromise any such Tax Proceeding. Proceeding without the prior written consent of CS (i) Upon request, during the course of any Tax Proceeding relating to a Tax liability or damage described in Section 10(a), Controlled shall from time to time furnish Distributing with evidence reasonably satisfactory to Distributing of Controlled’s ability to pay the amount for which it could reasonably be expected such consent not to be responsible pursuant to Section 10(a). If at any time during such Tax Proceeding Distributing determines that Controlled could not pay such amount, then Controlled shall be required to furnish a guarantee unreasonably withheld or performance bond satisfactory to Distributing in an amount equal to the amount for which Controlled could reasonably be expected to be responsible pursuant to Section 10(adelayed). (iie) Notwithstanding anything to the contrary in this Agreement, in the event a Tax Proceeding involves an issue The DPS Group acknowledges and agrees that is common to both the Distributing Group and the Controlled Group, Distributing shall use its best efforts to settle such issues on behalf of the Distributing Group and the Controlled Group on a consistent basis. (iii) Notwithstanding anything to the contrary in this Agreement, with respect to any Tax Proceeding including or involving issues relating solely the DPS Group that CS controls pursuant to a Tax liability of one or more members this Section 9, (i) the DPS Group shall cooperate fully with CS, (ii) the DPS Group shall act in good faith and use its best efforts to support the defense of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled shall have control over such Tax Proceeding. , and (diii) The indemnified party agrees to give notice to in no event shall the indemnitor DPS Group interfere with CS’ control of the assertion of any claimTax Proceeding or otherwise fail to support, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder within 30 days of such assertion or commencement, or such earlier time that would allow the indemnitor to timely respond to such claim, suit action or proceeding. (e) With respect to Returns relating to Taxes solely attributable to one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled and the members of the Controlled Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled and the members of the Controlled Group shall have absolute discretion with respect to any decisions to be made, or the nature of take any action to be takenthat is inconsistent with, with respect to any matter described the Tax reporting positions for the relevant transaction or item unless otherwise directed by CS in the preceding sentencewriting. (f) Controlled and Distributing shall jointly control the conduct of the Company Proceedings. Controlled shall not agree to any settlement in respect of the Company Proceedings without the consent of Distributing, which consent shall not be unreasonably withheld.

Audits and Contest. (a) Distributing or Controlled shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation of a party under this Agreement; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing Marcam Solutions shall have full control over all matters and Tax Proceedings relating to any Return or any item affecting a Pre-Distribution Marcam Solutions Tax, and MAPICS shall have full control over all matters and Tax Proceeding Proceedings relating to any item affecting a Pre-Distribution MAPICS Tax; provided, however, that no party shall settle such Tax matters of at least one member Proceeding without the prior written consent of the Distributing Group. Except as provided in Section 13(c), Distributing other party (which consent shall not be unreasonably withheld) if such settlement would have absolute discretion with respect to any decisions to be made, or a material adverse effect on the nature of any action to be taken, with respect to any matter described in the preceding sentence. Distributing shall act in good faith in the performance of this Section 13(b). Controlled may, at its own expense, participate in any such Tax Proceedingother party. (ib) Upon request, during the course of any Tax Proceeding relating to a Tax liability or damage described in Section 10(a), Controlled shall from time to time furnish Distributing with evidence reasonably satisfactory to Distributing of Controlled’s ability to pay the amount for which it could reasonably be expected to be responsible pursuant to Section 10(a). If at any time during such Tax Proceeding Distributing determines that Controlled could not pay such amount, then Controlled shall be required to furnish a guarantee or performance bond satisfactory to Distributing in an amount equal to the amount for which Controlled could reasonably be expected to be responsible pursuant to Section 10(a). (ii) Notwithstanding anything to the contrary in this Agreement, in the event a Tax Proceeding involves an issue that is common to both the Distributing Group and the Controlled Group, Distributing shall use its best efforts to settle such issues on behalf of the Distributing Group and the Controlled Group on a consistent basis. (iii) Notwithstanding anything to the contrary in this Agreement, with respect to any Tax Proceeding involving issues relating solely to a Tax liability of one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled shall have control over such Tax Proceeding. (d) The indemnified party MAPICS agrees to give prompt notice to the indemnitor Marcam Solutions of the assertion of any claim, claim or the commencement of any suit, action or proceeding Tax Proceeding in respect of which indemnity may be sought hereunder within 30 days hereunder. The failure of MAPICS to give notice as provided in this Section 8(b) shall not relieve Marcam Solutions of its obligations under this Agreement, except to the extent that Marcam Solutions is materially prejudiced by such assertion or commencement, or such earlier time that would allow the indemnitor failure to timely respond to such claim, suit action or proceedinggive notice. (ec) Marcam Solutions agrees to give prompt notice to MAPICS of the assertion of any claim or the commencement of any Tax Proceeding in respect of which indemnity may be sought hereunder. The failure of Marcam Solutions to give notice as provided in this Section 8(c) shall not relieve MAPICS of its obligations under this Agreement, except to the extent that MAPICS is materially prejudiced by such failure to give notice. (d) With respect to Returns of MAPICS relating to Taxes solely attributable to one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10)Post-Distribution Periods, Controlled and the members of the Controlled Group MAPICS shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled and therewith provided that MAPICS shall not report or assert any Tax position that is inconsistent with (i) Tax positions taken on any Return relating to a Pre-Distribution Marcam Solutions Tax or (ii) the members provisions of the Controlled Group shall have absolute discretion with respect to any decisions to be made, or the nature Section 3(c) of any action to be taken, with respect to any matter described in the preceding sentencethis Agreement. (fe) Controlled and Distributing With respect to Returns of Marcam Solutions relating to Post-Distribution Periods, Marcam Solutions shall jointly have full control the conduct of the Company Proceedings. Controlled over all matters relating to any Tax Proceeding in connection therewith provided that Marcam Solutions shall not agree report or assert any Tax position that is inconsistent with (i) Tax positions taken on any Return relating to any settlement in respect a Pre-Distribution MAPICS Tax or (ii) the provisions of the Company Proceedings without the consent Section 3(c) of Distributing, which consent shall not be unreasonably withheldthis Agreement.

Audits and Contest. (a) Distributing or Controlled shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation of a party under this Agreement; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing USBANCORP shall have full control over all matters relating to any Return or any Tax Proceeding relating to any Tax matters of at least one member of the Distributing USBANCORP Group. Except as provided in Section 13(c8(b), Distributing USBANCORP shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. Distributing shall act in good faith in the performance of this Section 13(b). Controlled may, at its own expense, participate in any such Tax Proceeding. (ib) Upon request, during the course No settlement of any Tax Proceeding relating to any matter which would cause a Tax liability payment obligation under Sections 5(a) or damage described in 5(b) shall be accepted or entered into by or on behalf of the party entitled to receive a payment under either Section 10(a5(a) or 5(b), Controlled whichever is applicable, unless the party ultimately responsible for such payment under either Section 5(a) or 5(b), whichever is applicable (the "Indemnitor"), consents thereto in writing (which consent shall from time to time furnish Distributing with evidence reasonably satisfactory to Distributing of Controlled’s ability to pay the amount for which it could reasonably not be expected to be responsible pursuant to Section 10(aunreasonably withheld or delayed). If at any time during such Tax Proceeding Distributing determines that Controlled could not pay such amount; provided, then Controlled shall be required to furnish a guarantee or performance bond satisfactory to Distributing in an amount equal to the amount for which Controlled could reasonably be expected to be responsible pursuant to Section 10(a). (ii) Notwithstanding however, that, notwithstanding anything to the contrary in this Agreement, in the event a USBANCORP may settle any Tax Proceeding involves an issue if it determines, in its sole judgment, that Three Rivers is common not cooperating in such Tax Proceeding. If the Indemnitor does not respond to both the Distributing Group and indemnified party's request for consent within 30 days, the Controlled Group, Distributing Indemnitor will be deemed to have consented to the settlement unless the Indemnitor shall use its best efforts to settle such issues on behalf of the Distributing Group and the Controlled Group on have given a consistent basistimely Dispute Resolution Notice under Section 16 hereof. (iii) Notwithstanding anything to the contrary in this Agreement, with respect to any Tax Proceeding involving issues relating solely to a Tax liability of one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled shall have control over such Tax Proceeding. (dc) The indemnified party agrees to give notice to the indemnitor Indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder within 30 days of such assertion or commencement, or such earlier time that would allow the indemnitor Indemnitor to timely respond to such claim, suit action or proceeding. (e) With respect to Returns relating to Taxes solely attributable to one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled and the members of the Controlled Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled and the members of the Controlled Group shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. (f) Controlled and Distributing shall jointly control the conduct of the Company Proceedings. Controlled shall not agree to any settlement in respect of the Company Proceedings without the consent of Distributing, which consent shall not be unreasonably withheld.

Audits and Contest. (a) Distributing or Controlled shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation of a party under this Agreement; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing PepsiCo shall have full control over all matters relating to any Return or any Tax Proceeding relating to any Tax matters of at least one member of the Distributing PepsiCo Group. Except as provided in Section 13(c8(b), Distributing PepsiCo shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. Distributing shall act in good faith in the performance of this Section 13(b). Controlled may, at its own expense, participate in any such Tax Proceeding. (ib) Upon request, during the course No settlement of any Tax Proceeding relating to any matter which would cause a Tax liability payment obligation under Sections 5(a) or damage described in 5(b) shall be accepted or entered into by or on behalf of the party entitled to receive a payment under either Section 10(a5(a) or 5(b), Controlled whichever is applicable, unless the party ultimately responsible for such payment under either Section 5(a) or 5(b), whichever is applicable (the "Indemnitor"), consents thereto in writing (which consent shall from time to time furnish Distributing with evidence reasonably satisfactory to Distributing of Controlled’s ability to pay the amount for which it could reasonably not be expected to be responsible pursuant to Section 10(aunreasonably withheld or delayed). If at any time during such Tax Proceeding Distributing determines that Controlled could not pay such amount; provided, then Controlled shall be required to furnish a guarantee or performance bond satisfactory to Distributing in an amount equal to the amount for which Controlled could reasonably be expected to be responsible pursuant to Section 10(a). (ii) Notwithstanding however, that, notwithstanding anything to the contrary in this Agreement, in the event a PepsiCo may settle any Tax Proceeding involves an issue if it determines, in its sole judgment, that TRICON is common not cooperating in such Tax Proceeding. If the Indemnitor does not respond to both the Distributing Group and indemnified party's request for consent within 30 days, the Controlled Group, Distributing shall use its best efforts Indemnitor will be deemed to settle such issues on behalf of have consented to the Distributing Group and the Controlled Group on a consistent basissettlement. (iii) Notwithstanding anything to the contrary in this Agreement, with respect to any Tax Proceeding involving issues relating solely to a Tax liability of one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled shall have control over such Tax Proceeding. (dc) The indemnified party agrees to give notice to the indemnitor Indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder within 30 days of such assertion or commencement, or such earlier time that would allow the indemnitor Indemnitor to timely respond to such claim, suit action or proceeding. (ed) With respect to Returns relating to Taxes solely attributable to one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10)TRICON Group, Controlled TRICON and the members of the Controlled TRICON Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled TRICON and the members of the Controlled TRICON Group shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. (f) Controlled and Distributing shall jointly control the conduct of the Company Proceedings. Controlled shall not agree to any settlement in respect of the Company Proceedings without the consent of Distributing, which consent shall not be unreasonably withheld.

Audits and Contest. (a) Distributing or Controlled shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation of a party under this Agreement; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing CVS shall have full control over all matters relating to any Federal Tax return filed by the CVS Consolidated Group, any Consolidated State or Unitary State Tax Return, any Other Tax Return (other than one relating solely to the Linens Group), or any Tax Proceeding relating to any Tax matters of at least one member of the Distributing CVS Group. Except as provided in Section 13(c8(b), Distributing shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. Distributing shall act in good faith in the performance of this Section 13(b). Controlled may, at its own expense, participate in any such Tax Proceeding. (i) Upon request, during the course of any Tax Proceeding relating to a Tax liability or damage described in Section 10(a), Controlled shall from time to time furnish Distributing with evidence reasonably satisfactory to Distributing of Controlled’s ability to pay the amount for which it could reasonably be expected to be responsible pursuant to Section 10(a). If at any time during such Tax Proceeding Distributing determines that Controlled could not pay such amount, then Controlled shall be required to furnish a guarantee or performance bond satisfactory to Distributing in an amount equal to the amount for which Controlled could reasonably be expected to be responsible pursuant to Section 10(a). (ii) Notwithstanding anything to the contrary in this Agreement, in the event a Tax Proceeding involves an issue that is common to both the Distributing Group and the Controlled Group, Distributing shall use its best efforts to settle such issues on behalf of the Distributing Group and the Controlled Group on a consistent basis. (iii) Notwithstanding anything to the contrary in this Agreement, with respect to any Tax Proceeding involving issues relating solely to a Tax liability of one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled shall have control over such Tax Proceeding. (d) The indemnified party agrees to give notice to the indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder within 30 days of such assertion or commencement, or such earlier time that would allow the indemnitor to timely respond to such claim, suit action or proceeding. (e) With respect to Returns relating to Taxes solely attributable to one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled and the members of the Controlled Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled and the members of the Controlled Group CVS shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. (fb) Controlled and Distributing No settlement of any Tax Proceeding relating to any matter which would cause a payment obligation under Sections 6(a) or 6(b) shall jointly control the conduct be accepted or entered into by or on behalf of the Company Proceedings. Controlled shall not agree party entitled to any settlement receive a payment under either Section 6(a) or Section 6(b), whichever is applicable, unless the party ultimately responsible for such payment under either Section 6(a) or Section 6(b), whichever is applicable (the "Indemnitor"), consents thereto in respect of the Company Proceedings without the consent of Distributing, writing (which consent shall not be unreasonably withheld). If such consent is unreasonably withheld, all expenses relating to the contest of such matter shall be borne by the Indemnitor, and otherwise they shall be borne equally by the Indemnitor and the indemnified party. If the Indemnitor does not respond to the indemnified party's request for consent within 30 days, the Indemnitor will be deemed to have consented to the settlement. Notwithstanding anything to the contrary herein, the indemnified party shall have the right, without the consent of the Indemnitor, to settle any Tax Proceeding relating to any matter which would cause a payment obligation under Sections 6(a) or 6(b), provided, however, that in such event the Indemnitor shall have no liability under Section 6(a) or (b), as the case may be, with respect to such matter. (c) The indemnified party agrees to give prompt notice to the Indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder. The failure of the indemnified party to give notice as provided in this Section 8(c) shall not relieve the Indemnitor of its obligations under this Agreement, except to the extent that the Indemnitor is materially prejudiced by such failure to give notice. (d) With respect to Returns relating to Other Taxes solely attributable to the Linens Group, Linens and its Post-Deconsolidation Affiliates shall have full control over all matters relating to any Tax Proceeding in connection therewith. Linens and its Post-Deconsolidation Affiliates shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence.

Audits and Contest. (a) Distributing or Controlled shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation of a party under this Agreement; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing Melville shall have full control over all matters relating to any Federal Tax return filed by the Melville Consolidated Group, any Consolidated State or Unitary State Tax Return, any Other Tax Return (other than one relating solely to the Footstar Group), or any Tax Proceeding relating to any Tax matters of at least one member of the Distributing Melville Group. Except as provided in Section 13(c8(b), Distributing shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. Distributing shall act in good faith in the performance of this Section 13(b). Controlled may, at its own expense, participate in any such Tax Proceeding. (i) Upon request, during the course of any Tax Proceeding relating to a Tax liability or damage described in Section 10(a), Controlled shall from time to time furnish Distributing with evidence reasonably satisfactory to Distributing of Controlled’s ability to pay the amount for which it could reasonably be expected to be responsible pursuant to Section 10(a). If at any time during such Tax Proceeding Distributing determines that Controlled could not pay such amount, then Controlled shall be required to furnish a guarantee or performance bond satisfactory to Distributing in an amount equal to the amount for which Controlled could reasonably be expected to be responsible pursuant to Section 10(a). (ii) Notwithstanding anything to the contrary in this Agreement, in the event a Tax Proceeding involves an issue that is common to both the Distributing Group and the Controlled Group, Distributing shall use its best efforts to settle such issues on behalf of the Distributing Group and the Controlled Group on a consistent basis. (iii) Notwithstanding anything to the contrary in this Agreement, with respect to any Tax Proceeding involving issues relating solely to a Tax liability of one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled shall have control over such Tax Proceeding. (d) The indemnified party agrees to give notice to the indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder within 30 days of such assertion or commencement, or such earlier time that would allow the indemnitor to timely respond to such claim, suit action or proceeding. (e) With respect to Returns relating to Taxes solely attributable to one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled and the members of the Controlled Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled and the members of the Controlled Group Melville shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. (fb) Controlled and Distributing No settlement of any Tax Proceeding relating to any matter which would cause a payment obligation under Sections 6(a) or 6(b) shall jointly control the conduct be accepted or entered into by or on behalf of the Company Proceedings. Controlled shall not agree party entitled to any settlement receive a payment under either Section 6(a) or Section 6(b), whichever is applicable, unless the party ultimately responsible for such payment under either Section 6(a) or Section 6(b), whichever is applicable (the "Indemnitor"), consents thereto in respect of the Company Proceedings without the consent of Distributing, writing (which consent shall not be unreasonably withheld). If such consent is unreasonably withheld, all expenses relating to the contest of such matter shall be borne by the Indemnitor, and otherwise they shall be borne equally by the Indemnitor and the indemnified party. If the Indemnitor does not respond to the indemnified party's request for consent within 30 days, the Indemnitor will be deemed to have consented to the settlement. (c) The indemnified party agrees to give prompt notice to the Indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder. The failure of the indemnified party to give notice as provided in this Section 8(c) shall not relieve the Indemnitor of its obligations under this Agreement, except to the extent that the Indemnitor is materially prejudiced by such failure to give notice. (d) With respect to Returns relating to Other Taxes solely attributable to the Footstar Group, Footstar and its Post-Distribution Affiliates shall have full control over all matters relating to any Tax Proceeding in connection therewith. Footstar and its Post-Distribution Affiliates shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence.

Audits and Contest. (a) Distributing or Controlled shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation of a party under this Agreement; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing PepsiCo shall have full control over all matters relating to any Return or any Tax Proceeding relating to any Tax matters of at least one member of the Distributing GroupPepsiCo Group or any Tax liability resulting from the Restructuring. PBG may, at its own expense, participate in any such Tax Proceeding. Except as provided in Section 13(c8(b), Distributing PepsiCo shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. Distributing PepsiCo shall act in good faith with respect to the matters described in the performance of this Section 13(b8(a). Controlled may, at its own expense, participate in any such Tax Proceeding. (i) Upon request, during the course No settlement of any Tax Proceeding relating to any matter which would cause a Tax liability payment obligation under Sections 5(a) or damage described in 5(b) shall be accepted or entered into by or on behalf of the party entitled to receive a payment under either Section 10(a5(a) or 5(b), Controlled whichever is applicable, unless the party ultimately responsible for such payment under either Section 5(a) or 5(b), whichever is applicable (the "Indemnitor"), consents thereto in writing (which consent shall from time not be unreasonably withheld or delayed); PROVIDED, HOWEVER, that, notwithstanding anything to time furnish Distributing with evidence reasonably satisfactory to Distributing of Controlled’s ability to pay the amount for which contrary in this Agreement, PepsiCo may settle any Tax Proceeding if it could reasonably be expected to be responsible pursuant to Section 10(a)determines, in its sole reasonable judgment, that PBG is not cooperating in such Tax Proceeding. If at any time during such Tax Proceeding Distributing determines that Controlled could the Indemnitor does not pay such amount, then Controlled shall be required to furnish a guarantee or performance bond satisfactory to Distributing in an amount equal respond to the amount indemnified party's request for which Controlled could reasonably consent within 30 days, the Indemnitor will be expected deemed to be responsible pursuant have consented to Section 10(a)the settlement. (ii) Notwithstanding anything to the contrary in this Agreement, in the event a Tax Proceeding involves an issue that is common to both the Distributing PepsiCo Group and the Controlled PBG Group, Distributing PepsiCo shall use its best efforts to settle such issues on behalf of the Distributing PepsiCo Group and the Controlled PBG Group on a consistent basis. (iii) Notwithstanding anything to the contrary in this Agreement, with With respect to any Tax Proceeding involving issues relating solely that relates to a PBG Tax liability liability, PepsiCo agrees to act in good faith on behalf of one or more PBG and the members of the Controlled PBG Group (taking into account the parties’ obligations under Section 10), Controlled shall have control over in settling such Tax Proceeding. (dc) The indemnified party agrees to give notice to the indemnitor Indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder within 30 days of such assertion or commencement, or such earlier time that would allow the indemnitor Indemnitor to timely respond to such claim, suit action or proceeding. (ed) With respect to Returns relating to Taxes solely attributable to one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10)PBG Group, Controlled PBG and the members of the Controlled PBG Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled PBG and the members of the Controlled PBG Group shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. (f) Controlled and Distributing shall jointly control the conduct of the Company Proceedings. Controlled shall not agree to any settlement in respect of the Company Proceedings without the consent of Distributing, which consent shall not be unreasonably withheld.

Audits and Contest. (a) Distributing or Controlled shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation of a party under this Agreement; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing PepsiCo shall have full control over all matters relating to any Return or any Tax Proceeding relating to any Tax matters of at least one member of the Distributing PepsiCo Group. Except as provided in Section 13(c8(b), Distributing PepsiCo shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. Distributing shall act in good faith in the performance of this Section 13(b). Controlled may, at its own expense, participate in any such Tax Proceeding. (i) No settlement of any Tax Proceeding relating to any matter which would cause a payment obligation under Sections 5(a) or 5(b) shall be accepted or entered into by or on behalf of the party entitled to receive a payment under either Section 5(a) or 5(b), whichever is applicable, unless the party ultimately responsible for such payment under either Section 5(a) or 5(b), whichever is applicable (the "Indemnitor"), consents thereto in writing (which consent shall not be unreasonably withheld or delayed); provided, however, that, notwithstanding anything to the contrary in this Agreement, PepsiCo may settle any Tax Proceeding if it determines, in its sole judgment, that TRICON is not cooperating in such Tax Proceeding. If the Indemnitor does not respond to the indemnified party's request for consent within 30 days, the Indemnitor will be deemed to have consented to the settlement. (ii) Upon request, during the course of any Tax Proceeding relating to a Tax liability or damage described in Section 10(a5(a), Controlled TRICON shall from time to time furnish Distributing PepsiCo with evidence reasonably satisfactory to Distributing PepsiCo of Controlled’s TRICON's ability to pay the amount for which it could reasonably be expected to be is responsible pursuant to Section 10(aSectioin 5(a). If at any time during such Tax Proceeding Distributing PepsiCo determines that Controlled TRICON could not pay such amount, then Controlled TRICON shall be required to furnish a guarantee or performance bond satisfactory to Distributing PepsiCo in an amount equal to the amount for which Controlled could reasonably be expected to be TRICON is responsible pursuant to Secton 5(a). If TRICON fails to furnish such guarantee or bond, PepsiCo may settle the Tax proceeding without TRICON's consent, and TRICON shall remain obligated to indemnify PepsiCo pursuant to Section 10(a5(a). (ii) Notwithstanding anything to the contrary in this Agreement, in the event a Tax Proceeding involves an issue that is common to both the Distributing Group and the Controlled Group, Distributing shall use its best efforts to settle such issues on behalf of the Distributing Group and the Controlled Group on a consistent basis. (iii) Notwithstanding anything to the contrary in this Agreement, with respect to any Tax Proceeding involving issues relating solely to a Tax liability of one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled shall have control over such Tax Proceeding. (dc) The indemnified party agrees to give notice to the indemnitor Indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder within 30 days of such assertion or commencement, or such earlier time that would allow the indemnitor Indemnitor to timely respond to such claim, suit action or proceeding. (ed) With respect to Returns relating to Taxes solely attributable to one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10)TRICON Group, Controlled TRICON and the members of the Controlled TRICON Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled TRICON and the members of the Controlled TRICON Group shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. (f) Controlled and Distributing shall jointly control the conduct of the Company Proceedings. Controlled shall not agree to any settlement in respect of the Company Proceedings without the consent of Distributing, which consent shall not be unreasonably withheld.

Audits and Contest. (a) Distributing CS or Controlled DPS shall promptly notify the other in writing upon the receipt of any notice of a Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation a right to indemnification of a party under this AgreementAgreement together with a description in reasonable detail of the Tax Proceeding and the underlying claim within 30 days of the receipt of such notice or such earlier time that would allow the indemnifying party to timely respond to such notice; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing except as otherwise provided in this Section 9(b), CS shall have full control over all any Tax Proceeding in respect of Cadbury Group Taxes and Taxes indemnified against by Cadbury pursuant to this Agreement including any Tax Proceeding involving the DPS Group or any of its members relating to a Confectionery Transaction or a Specified Entity. CS shall have absolute discretion with respect to any decisions to be made (including choice of counsel, venue or judicial forum), or the nature of any action to be taken, with respect to such Tax Proceeding and the contest thereof (including whether to litigate, compromise or otherwise settle the dispute or contest and the amount of any settlement) and DPS shall cooperate with CS in accordance with the provisions of Section 8 and this Section 9; provided that DPS may, at its own expense, participate in any such Tax Proceeding and CS shall consult with and take reasonable direction from DPS in respect of any decisions to be made or actions to be taken in respect of Tax matters of the DPS Group other than with respect to Cadbury Group Taxes, Confectionery Transactions, one or more Specified Entities or other matters relating to Taxes indemnified against by Cadbury pursuant to this Agreement. (c) With respect to Tax Proceedings not described in Section 9(b) but that could result in right to indemnification for Taxes or Damages by the DPS Group or the Cadbury Group, as the case may be, under this Agreement, the indemnified party shall control the Tax Proceeding and contest the claim indemnified against in good faith as directed by the indemnifying party; provided further that to the extent relating to the claim indemnified against, (i) the indemnified party shall keep the indemnifying party informed of the status and progress of the Tax Proceeding and shall consult with the indemnified party regarding decisions relating to the Tax Proceeding, and (ii) the indemnified party shall not settle or compromise any Return such Tax Proceeding without the prior written consent of the indemnified party (such consent not to be unreasonably withheld or delayed). (d) With respect to any Tax Proceeding involving issues relating solely to any a Tax matters Return or Taxes of at least one member or more members of the Distributing Group. Except as provided in Section 13(c)DPS Group for which the DPS Group has no right to indemnification under this Agreement, Distributing DPS shall have absolute control over such Tax Proceeding and shall have discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in such Tax Proceeding; provided that to the preceding sentence. Distributing extent that the outcome of the Tax Proceeding can affect the Taxes of the Cadbury Group under the CFC Legislation or otherwise, (i) CS shall act in good faith in have the performance of this Section 13(b). Controlled mayright, at its own expense, to participate in and DPS shall keep CS informed of the status and progress of the Tax Proceeding and shall consult with CS regarding decisions relating to the Tax Proceeding, and (ii) DPS shall not settle or compromise any such Tax Proceeding. Proceeding without the prior written consent of CS (i) Upon request, during the course of any Tax Proceeding relating to a Tax liability or damage described in Section 10(a), Controlled shall from time to time furnish Distributing with evidence reasonably satisfactory to Distributing of Controlled’s ability to pay the amount for which it could reasonably be expected such consent not to be responsible pursuant to Section 10(a). If at any time during such Tax Proceeding Distributing determines that Controlled could not pay such amount, then Controlled shall be required to furnish a guarantee unreasonably withheld or performance bond satisfactory to Distributing in an amount equal to the amount for which Controlled could reasonably be expected to be responsible pursuant to Section 10(adelayed). (iie) Notwithstanding anything to the contrary in this Agreement, in the event a Tax Proceeding involves an issue The DPS Group acknowledges and agrees that is common to both the Distributing Group and the Controlled Group, Distributing shall use its best efforts to settle such issues on behalf of the Distributing Group and the Controlled Group on a consistent basis. (iii) Notwithstanding anything to the contrary in this Agreement, with respect to any Tax Proceeding including or involving issues relating solely the DPS Group that CS controls pursuant to a Tax liability of one or more members this Section 9, (i) the DPS Group shall cooperate fully with CS, (ii) the DPS Group shall act in good faith and use its best efforts to support the defense of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled shall have control over such Tax Proceeding. , and (diii) The indemnified party agrees to give notice to in no event shall the indemnitor DPS Group interfere with CS’ control of the assertion of any claimTax Proceeding or otherwise fail to support, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder within 30 days of such assertion or commencement, or such earlier time that would allow the indemnitor to timely respond to such claim, suit action or proceeding. (e) With respect to Returns relating to Taxes solely attributable to one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10), Controlled and the members of the Controlled Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled and the members of the Controlled Group shall have absolute discretion with respect to any decisions to be made, or the nature of take any action to be takenthat is inconsistent with, with respect to any matter described the Tax reporting positions for the relevant transaction or item unless otherwise directed by Cadbury in the preceding sentencewriting. (f) Controlled and Distributing shall jointly control the conduct of the Company Proceedings. Controlled shall not agree to any settlement in respect of the Company Proceedings without the consent of Distributing, which consent shall not be unreasonably withheld.

Audits and Contest. (a) Distributing or Controlled shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority that could reasonably result in an indemnity obligation of a party under this Agreement; provided, that a party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is materially prejudiced by such failure. (b) Notwithstanding anything in this Agreement to the contrary, Distributing PepsiCo shall have full control over all matters relating to any Return or any Tax Proceeding relating to any Tax matters of at least one member of the Distributing PepsiCo Group. TRICON may, at its own expense, participate in any such Tax Proceeding. Except as provided in Section 13(c8(b), Distributing PepsiCo shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. Distributing shall act in good faith in the performance of this Section 13(b). Controlled may, at its own expense, participate in any such Tax Proceeding. (i) No settlement of any Tax Proceeding relating to any matter which would cause a payment obligation under Sections 5(a) or 5(b) shall be accepted or entered into by or on behalf of the party entitled to receive a payment under either Section 5(a) or 5(b), whichever is applicable, unless the party ultimately responsible for such payment under either Section 5(a) or 5(b), whichever is applicable (the "Indemnitor"), consents thereto in writing (which consent shall not be unreasonably withheld or delayed); provided, however, that, notwithstanding anything to the contrary in this Agreement, PepsiCo may settle any Tax Proceeding if it determines, in its sole judgment, that TRICON is not cooperating in such Tax Proceeding. If the Indemnitor does not respond to the indemnified party's request for consent within 30 days, the Indemnitor will be deemed to have consented to the settlement. (ii) Upon request, during the course of any Tax Proceeding relating to a Tax liability or damage described in Section 10(a5(a), Controlled TRICON shall from time to time furnish Distributing PepsiCo with evidence reasonably satisfactory to Distributing PepsiCo of Controlled’s TRICON's ability to pay the amount for which it could reasonably be expected to be is responsible pursuant to Section 10(aSectioin 5(a). If at any time during such Tax Proceeding Distributing PepsiCo determines that Controlled TRICON could not pay such amount, then Controlled TRICON shall be required to furnish a guarantee or performance bond satisfactory to Distributing PepsiCo in an amount equal to the amount for which Controlled could reasonably be expected to be TRICON is responsible pursuant to Secton 5(a). If TRICON fails to furnish such guarantee or bond, PepsiCo may settle the Tax proceeding without TRICON's consent, and TRICON shall remain obligated to indemnify PepsiCo pursuant to Section 10(a5(a). (iiiii) Notwithstanding anything to the contrary in this Agreement, in the event a Tax Proceeding involves an issue that is common to both the Distributing PepsiCo Group and the Controlled TRICON Group, Distributing including but not limited to the pending litigation regarding Section 1253 of the Code, PepsiCo shall use its best efforts to settle such issues on behalf of the Distributing PepsiCo Group and the Controlled TRICON Group on a consistent basis. (iiiiv) Notwithstanding Nothwithstanding anything to the contrary in this Agreement, with respect to any Tax Proceeding involving issues relating solely related to a TRICON Tax liability of one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10)liability, Controlled TRICON shall have control over such Tax Proceeding. (dv) With respect to any Tax Proceeding that relates to a TRICON Tax liability, PepsiCo agrees to act in good faith on behalf of TRICON and the members of the TRICON Group in settling such Tax Proceeding. (c) The indemnified party agrees to give notice to the indemnitor Indemnitor of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought hereunder within 30 days of such assertion or commencement, or such earlier time that would allow the indemnitor Indemnitor to timely respond to such claim, suit action or proceeding. (ed) With respect to Returns relating to Taxes solely attributable to one or more members of the Controlled Group (taking into account the parties’ obligations under Section 10)TRICON Group, Controlled TRICON and the members of the Controlled TRICON Group shall have full control over all matters relating to any Tax Proceeding in connection therewith. Controlled TRICON and the members of the Controlled TRICON Group shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any matter described in the preceding sentence. (f) Controlled and Distributing shall jointly control the conduct of the Company Proceedings. Controlled shall not agree to any settlement in respect of the Company Proceedings without the consent of Distributing, which consent shall not be unreasonably withheld.