Common use of Certain Tax Claims Clause in Contracts

Certain Tax Claims. (a) Any issue raised by any Taxing Authority in any tax inquiry, audit, examination, investigation, dispute, litigation or other proceeding relating to a Common Consolidated Tax Return that would result in tax liability to the Indemnitor is defined as a "Claim." Except as provided in Sections 3.01(b), 5.03(d) and the second sentence of Section 5.02 hereof, and notwithstanding any other provision of this Agreement that may be construed to the contrary, the Controlling Party agrees to contest any Claim and not to settle any Claim without the prior written consent of the Indemnitor, provided that (i) the Controlling Party shall provide notice to Indemnitor pursuant to Section 5.02 hereof of any Claim, (ii) within thirty days after notice by the Controlling Party to the Indemnitor of a Claim is received by the Indemnitor, the Indemnitor shall (1) request in writing that such Claim be contested, and (2) provide an opinion of independent tax counsel, selected by the Indemnitor and reasonably acceptable to the Controlling Party, to the effect that it is more likely than not that a Final Determination shall be substantially consistent with the Indemnitor's position relating to such Claim, (iii) the Indemnitor agrees to pay on demand all out-of-pocket costs, losses and expenses (including, but not limited to, legal and accounting fees) paid or incurred by the Controlling Party in connection with contesting such Claim, except for a Claim where the expenses are shared pursuant to Section 2.04(a) hereof, and (iv) the Controlling Party, after reasonable consultation with the Indemnitor, shall determine in its sole discretion the nature of all actions to be taken to contest such Claim, including (1) whether any action to contest such Claim shall initially be by way of judicial or administrative proceeding, or both, (2) whether any such Claim shall be contested by resisting payment thereof or by paying the same and seeking a refund thereof, and (3) the court or other judicial body before which judicial action, if any, shall be commenced. To the extent the Indemnitor is not participating, the Controlling Party shall keep the Indemnitor and, upon request by the Indemnitor, its counsel, informed as to the progress of the contest. (b) If the Indemnitor requests that the Controlling Party accept a settlement of a Claim offered by any Taxing Authority and if such Claim may, in the reasonable discretion of the Controlling Party, be settled without prejudicing any claims such Taxing Authority may have with respect to matters other than the transactions contemplated by the Distribution Agreement, the Controlling Party shall either accept such settlement offer or agree with the Indemnitor that the Indemnitor's liability with respect to such Claim shall be limited to the lesser of (i) an amount calculated on the basis of such settlement offer or (ii) the amount calculated on the basis of a Final Determination. After a settlement or a Final Determination, the Controlling Party shall reimburse the Indemnitor in an amount equal to the excess, if any, of the amount of expenses paid by the Indemnitor pursuant to clause (iv) of Section 5.03(a) over the Indemnitor's pro rata portion of such expenses based on the Indemnitor's share of the liability with respect to such Claim as determined under the first sentence of this Section 5.03(b). (c) If the Controlling Party shall elect to pay the Claim and seek a refund, the Indemnitor shall lend sufficient funds on an interest-free basis to the Controlling Party, and with no net after-tax cost to the Controlling Party, to cover any applicable indemnity obligations of the Indemnitor. To the extent such refund claim is ultimately disallowed, the loan or portion thereof equal to the amount of the refund claim so disallowed shall be applied against the Indemnitor's obligation to make indemnity payments pursuant to this Agreement. In addition, if the refund is ultimately disallowed, the Controlling Party shall reimburse the Indemnitor for the Controlling Party's pro rata portion of the expenses paid by the Indemnitor under clause (iv) of Section 5.03(a) based on the Controlling Party's share of the tax previously paid. To the extent such refund claim is allowed, the Controlling Party shall pay to the Indemnitor (i) the amounts loaned or advanced to the Controlling Party with respect to the indemnity obligation (not to exceed the Indemnitor's share of any refund), and (ii) the Controlling Party's pro rata portion of the expenses paid by the Indemnitor under clause (iv) of Section 5.03(a) based on the Controlling Party's share of any refund, within ten days of the receipt of such refund (or if the Controlling Party would have received such refund but for the existence of a counterclaim or other claim not indemnified by the Indemnitor under this Agreement, within ten days of the final resolution of the contest), plus an amount equal to any interest received (or that would have been received) from the Taxing Authority that is properly attributable to such amount. (d) Except as provided below, the Controlling Party shall not settle a Claim that Indemnitor is entitled to require the Controlling Party to contest under Section 5.03(a) without the prior written consent of the Indemnitor (which consent shall not be unreasonably withheld). At any time, whether before or after commencing to take any action pursuant to this Section 5.03 with respect to any Claim, the Controlling Party may decline to take action with respect to such Claim and may settle such Claim without the prior written consent of the Indemnitor by notifying the Indemnitor in writing that the Indemnitor is released from its obligations to indemnify the Controlling Party with respect to such Claim (which notification shall release the Indemnitor from such obligations except to the extent the Indemnitor has agreed in writing that it would be willing to have its liability calculated on the basis of a settlement offer, as provided in Section 5.03(b), at that point in the contest) and with respect to any Claim the resolution of which is based on the outcome of such Claim. If the Controlling Party settles any Claim without the consent of the Indemnitor or otherwise takes or declines to take any action pursuant to this paragraph, the Controlling Party shall (i) reimburse the Indemnitor for all the expenses paid by the Indemnitor pursuant to clause (iv) of Section 5.03(a), and (ii) pay to the Indemnitor any other amounts paid or advanced by the Indemnitor with respect to such Claim (other than amounts payable by the Indemnitor in connection with a settlement offer pursuant to Section 5.03(b)), plus interest at a rate equal to the Applicable Federal Rate from the date on which the amounts were advanced.

Certain Tax Claims. (a) Any issue raised by any Taxing a Governmental Authority in any tax inquiry, audit, examination, investigation, dispute, litigation or other proceeding relating Tax Contest with respect to a Common Consolidated Tax Return which the Indemnitor is not the Controlling Party that would could result in tax liability to the Indemnitor under this Agreement is defined as a "Claim (a “Claim." ”). The Controlling Party shall provide notice to Indemnitor pursuant to Section 5.02 of any such Claim. Except as provided in Sections 3.01(b), Section 5.03(d) and the second sentence of Section 5.02 hereof, and notwithstanding any other provision of this Agreement that may be construed to the contrary, the Controlling Party agrees to contest any Claim and not to settle any Claim without the prior written consent of the Indemnitor, provided that if within thirty (i30) days after the Controlling Party shall provide notice to Indemnitor pursuant to described in Section 5.02 hereof of any Claim, (ii) within thirty days after notice by the Controlling Party to the Indemnitor of a Claim is received by the Indemnitor, (i) the Indemnitor shall (1) request requests in writing that such Claim be contested, contested and (2) provide an opinion of independent tax counsel, selected by the Indemnitor and reasonably acceptable to the Controlling Party, to the effect that it is more likely than not that a Final Determination shall be substantially consistent with the Indemnitor's position relating to such Claim, (iiiii) the Indemnitor agrees in writing to pay on demand all out-of-pocket costs, losses and expenses (including, but not limited to, legal and accounting fees) paid or incurred by the Controlling Party in connection with contesting such Claim, except for a Claim where the expenses are shared pursuant to Section 2.04(a) hereof, and (iv) the . The Controlling Party, after reasonable consultation with the Indemnitor, shall determine in its the Controlling Party’s sole discretion the nature of all actions to be taken to contest such Claim, including , without limitation, (1x) whether any action to contest such Claim shall initially be by way of judicial or administrative proceeding, or both, (2y) whether any such Claim shall be contested by resisting payment thereof or by paying the same and seeking a refund thereof, and (3z) the court or other judicial body before which judicial action, if any, shall be commenced. To the extent the Indemnitor is does not participatingParticipate in the Tax Contest, the Controlling Party shall keep the Indemnitor (and, upon request by the Indemnitor, its counsel, ) informed as to the progress of the contestTax Contest with respect to any Claim. (b) If the Indemnitor requests that the Controlling Party accept a settlement of a Claim offered by any Taxing the relevant Governmental Authority and if such Claim may, in the reasonable discretion of the Controlling Party, be settled without prejudicing any claims such Taxing the relevant Governmental Authority may have with respect to matters other than unrelated to the transactions contemplated by the Distribution AgreementClaim, the Controlling Party shall either accept such settlement offer or agree with the Indemnitor that the Indemnitor's ’s liability with respect to such Claim shall be limited to the lesser of (i) an amount related to such Claim calculated on the basis of such settlement offer plus (without duplication) interest and any penalties owed to the relevant Governmental Authority on the date of eventual payment or (ii) the amount related to such Claim calculated on the basis of a Final Determination. After a settlement or a Final Determination, the Controlling Party shall reimburse the Indemnitor in an amount equal to the excess, if any, of the amount of expenses paid by the Indemnitor pursuant to clause (iv) of Section 5.03(a) over the Indemnitor's pro rata portion of such expenses based on the Indemnitor's share of the liability with respect to such Claim as determined under the first sentence of this Section 5.03(b). (c) If If, after consultation with the Indemnitor, the Controlling Party shall elect to pay the Tax claimed pursuant to a Claim and seek a refund, the Indemnitor shall lend provide sufficient funds on an interest-free basis to the Controlling Party, and Party (with no net after-tax Tax cost to the Controlling Party, ) to cover any applicable indemnity obligations of the Indemnitor. To the extent such refund claim is ultimately disallowed, the loan amount provided by the Indemnitor or portion thereof equal to the amount of the refund claim so disallowed shall be applied against the Indemnitor's ’s obligation to make indemnity payments pursuant to this Agreement. In addition, if the refund is ultimately disallowed, the Controlling Party shall reimburse the Indemnitor for the Controlling Party's pro rata portion of the expenses paid by the Indemnitor under clause (iv) of Section 5.03(a) based on the Controlling Party's share of the tax previously paid. To the extent such refund claim is allowed, the Controlling Party shall pay to the Indemnitor (i) the all amounts loaned or advanced provided to the Controlling Party with respect to the indemnity obligation (not to exceed the Indemnitor's share of any refund), and (ii) the Controlling Party's pro rata portion of the expenses paid by the Indemnitor under clause (iv) of Section 5.03(a) based on the Controlling Party's share of any refund, within ten (10) days of the receipt of such refund (or if the Controlling Party would have received such refund but for the existence of a counterclaim or other claim not indemnified by the Indemnitor under this Agreement, within ten (10) days of the final resolution of the contest), plus an amount equal to any interest received (or that would have been received) from the Taxing relevant Governmental Authority that is properly attributable to such amount. (d) Except as provided below, the Controlling Party shall not settle a Claim that the Indemnitor is entitled to require the Controlling Party to contest under Section 5.03(a) without the prior written consent of the Indemnitor (Indemnitor, which consent shall may not be unreasonably withheld). At any time, whether before or after commencing to take any action pursuant to this Section 5.03 with respect to any Claim, the Controlling Party may decline to take action with respect to such Claim and may settle such Claim without the prior written consent of the Indemnitor by notifying the Indemnitor in writing that the Indemnitor is released from its obligations to indemnify the Controlling Party with respect to such Claim (which notification shall release the Indemnitor from such obligations except to the extent the Indemnitor has agreed in writing that it would be willing to have its liability calculated on the basis of a settlement offer, as provided in Section 5.03(b), at that point in the contest) and with respect to any Claim the resolution of which is related to such Claim or based on the outcome of such Claim. If the Controlling Party settles any Claim without the consent of the Indemnitor or otherwise takes or declines to take any action pursuant to this paragraph, the Controlling Party shall (i) reimburse the Indemnitor for all the expenses paid by the Indemnitor pursuant to clause (iv) of Section 5.03(a), and (ii) pay to the Indemnitor any other amounts paid or advanced by the Indemnitor with respect to such Claim (other than amounts payable by the Indemnitor in connection with a settlement offer pursuant to Section 5.03(b)), plus interest at a rate equal attributable to the Applicable Federal Rate from the date on which the amounts were advancedsuch amounts.

Certain Tax Claims. (a) Any issue issues (other than issues relating to Restructuring Taxes for which liability is shared under Section 3.04(a), which shall be excluded from the provisions of this Section 5.03) raised by any the relevant Taxing Authority authority in any tax Tax inquiry, audit, examination, investigation, dispute, litigation or other proceeding relating to a Common Consolidated Tax Return that would result in tax liability to the Indemnitor is under this Agreement that in the aggregate would equal or exceed $250,000 with respect to any taxable year are defined as a Claim (a "Claim." CLAIM"). Except as provided in Sections 3.01(b), Section 5.03(d) and the second sentence of Section 5.02 hereof, and notwithstanding any other provision of this Agreement that may be construed to the contrary, the Controlling Party agrees to contest any Claim and not to settle any Claim without the prior written consent of the Indemnitor, provided that (i) the Controlling Party shall provide notice to Indemnitor pursuant to Section 5.02 hereof of any Claim, (ii) within [thirty (30)] days after such notice by the Controlling Party to the Indemnitor of a Claim is received by the Indemnitor, the Indemnitor shall (1) request in writing that such Claim be contested, contested and (2) the Indemnitor shall provide an opinion of independent tax counsel, selected by the Indemnitor and reasonably acceptable to the Controlling Party, to the effect that it is more likely than not that a Final Determination shall will be substantially consistent with the Indemnitor's position relating to such Claim, (iii) the Indemnitor agrees shall agree to pay (and shall pay) on demand all out-of-pocket costs, losses and expenses (including, but not limited to, legal and accounting fees) paid or incurred by the Controlling Party in connection with contesting such Claim, except for a Claim where the expenses are shared pursuant to Section 2.04(a) hereof, and (iv) the Controlling Party, after reasonable consultation with the Indemnitor, shall determine in its the Controlling Party's sole discretion the nature of all actions to be taken to contest such Claim, including including (1x) whether any action to contest such Claim shall initially be by way of judicial or administrative proceeding, or both, (2y) whether any such Claim shall be contested by resisting payment thereof or by paying the same and seeking a refund thereof, and (3z) the court or other judicial body before which judicial action, if any, shall be commenced. To the extent the Indemnitor is not participating, the Controlling Party shall keep the Indemnitor (and, upon request by the Indemnitor, its counsel, ) informed as to the progress of the contest. (b) If the Indemnitor requests that the Controlling Party accept a settlement of a Claim offered by any the relevant Taxing Authority authority and if such Claim may, in the reasonable discretion of the Controlling Party, be settled without prejudicing any claims such the relevant Taxing Authority authority may have with respect to matters other than unrelated to the transactions contemplated by the Distribution AgreementClaim, the Controlling Party shall either accept such settlement offer or agree with the Indemnitor that the Indemnitor's liability with respect to such Claim shall be limited to the lesser of (i) an amount calculated on the basis of such settlement offer plus interest owed to the relevant Taxing authority on the date of eventual payment or (ii) the amount calculated on the basis of a Final Determination. After a settlement or a Final Determination, the Controlling Party shall reimburse the Indemnitor in an amount equal to the excess, if any, of the amount of expenses paid by the Indemnitor pursuant to clause (iv) of Section 5.03(a) over the Indemnitor's pro rata portion of such expenses based on the Indemnitor's share of the liability with respect to such Claim as determined under the first sentence of this Section 5.03(b). (c) If the Controlling Party shall elect to pay the Claim Tax claimed and seek a refund, the Indemnitor shall lend sufficient funds on an interest-free basis to the Controlling Party, and Party (with no net after-tax cost to the Controlling Party), to cover any applicable indemnity obligations of the Indemnitor. To the extent such refund claim is ultimately disallowed, the loan or portion thereof equal to the amount of the refund claim so disallowed shall be applied against the Indemnitor's obligation to make indemnity payments pursuant to this Agreement. In addition, if the refund is ultimately disallowed, the Controlling Party shall reimburse the Indemnitor for the Controlling Party's pro rata portion of the expenses paid by the Indemnitor under clause (iv) of Section 5.03(a) based on the Controlling Party's share of the tax previously paid. To the extent such refund claim is allowed, the Controlling Party shall pay to the Indemnitor (i) the all amounts loaned or advanced to the Controlling Party with respect to the indemnity obligation within [ten (not to exceed the Indemnitor's share of any refund10), and (ii) the Controlling Party's pro rata portion of the expenses paid by the Indemnitor under clause (iv) of Section 5.03(a) based on the Controlling Party's share of any refund, within ten ] days of the receipt of such refund (or if the Controlling Party would have received such refund but for the existence of a counterclaim or other claim not indemnified by the Indemnitor under this Agreement, within [ten (10)] days of the final resolution of the contest), plus an amount equal to any interest received (or that would have been received) from the relevant Taxing Authority authority that is properly attributable to such amount. (d) Except as provided below, the Controlling Party shall not settle a Claim that the Indemnitor is entitled to require the Controlling Party to contest under Section 5.03(a) without the prior written consent of the Indemnitor (which consent shall not be unreasonably withheld)Indemnitor. At any time, whether before or after commencing to take any action pursuant to this Section 5.03 with respect to any Claim, the Controlling Party may decline to take action with respect to such Claim and may settle such Claim without the prior written consent of the Indemnitor by notifying the Indemnitor in writing that the Indemnitor is released from its obligations to indemnify the Controlling Party with respect to such Claim (which notification shall release the Indemnitor from such obligations except to the extent the Indemnitor has agreed in writing that it would be willing to have its liability calculated on the basis of a settlement offer, as provided in Section 5.03(b), at that point in the contest) and with respect to any Claim the resolution of which is related to such Claim or based on the outcome of such Claim. If the Controlling Party settles any Claim without the consent of the Indemnitor or otherwise takes or declines to take any action pursuant to this paragraph, the Controlling Party shall (i) reimburse the Indemnitor for all the expenses paid by the Indemnitor pursuant to clause (iv) of Section 5.03(a), and (ii) pay to the Indemnitor any other amounts paid or advanced by the Indemnitor with respect to such Claim (other than amounts payable by the Indemnitor in connection with a settlement offer pursuant to Section 5.03(b)), plus interest at a rate equal attributable to the Applicable Federal Rate from the date on which the amounts were advancedsuch amounts.

Certain Tax Claims. (a) Any issue raised by PubCo will notify the Stockholders’ Representative in writing of the commencement of any Taxing Authority in any tax inquirycontest, audit, examination, investigation, dispute, litigation audit or other proceeding relating (a “Tax Claim”) in respect of Pre-Closing Taxes within ten (10) days of receiving written notice of such commencement. If the Tax Claim relates to a Common Consolidated Pre-Closing Taxes that are reasonably expected to reduce Tax Return that would result in tax liability to the Indemnitor is defined as a "Claim." Except as provided in Sections 3.01(b), 5.03(d) and the second sentence of Section 5.02 hereof, and notwithstanding any other provision of this Agreement that may be construed to the contrary, the Controlling Party agrees to contest any Claim and not to settle any Claim without the prior written consent of the Indemnitor, provided that (i) the Controlling Party shall provide notice to Indemnitor Benefit Payments pursuant to Section 5.02 hereof 3.03, then the Stockholders’ Representative may, at the expense of any Claimthe Sellers, (ii) within thirty days after notice by participate in the Controlling Party Tax Claim to the Indemnitor of a Claim is received by the Indemnitor, the Indemnitor shall (1) request in writing that such Claim be contested, and (2) provide an opinion of independent tax counsel, selected by the Indemnitor and reasonably acceptable to the Controlling Party, to the effect that extent it is more likely than not that a Final Determination shall be substantially consistent with the Indemnitor's position relating relates to such Claimmaterial Pre-Closing Taxes and PubCo shall not be entitled to settle, (iii) either administratively or after the Indemnitor agrees to pay on demand all out-of-pocket costscommencement of litigation, losses and expenses (including, but not limited to, legal and accounting fees) paid or incurred by the Controlling Party in connection with contesting such Claim, except for a Claim where the expenses are shared pursuant to Section 2.04(a) hereof, and (iv) the Controlling Party, after reasonable consultation with the Indemnitor, shall determine in its sole discretion the nature of all actions to be taken to contest such Claim, including (1) whether any action to contest such Claim shall initially be by way of judicial or administrative proceeding, or both, (2) whether any such Tax Claim shall be contested by resisting payment thereof or by paying the same and seeking a refund thereof, and (3) the court or other judicial body before which judicial action, if any, shall be commenced. To the extent the Indemnitor is not participating, the Controlling Party shall keep the Indemnitor and, upon request by the Indemnitor, its counsel, informed as to the progress of the contest. (b) If the Indemnitor requests that the Controlling Party accept a settlement of a Claim offered by any Taxing Authority and if such Claim may, in the reasonable discretion of the Controlling Party, be settled without prejudicing any claims such Taxing Authority may have with respect to matters other than the transactions contemplated by the Distribution Agreement, the Controlling Party shall either accept such settlement offer or agree with the Indemnitor that the Indemnitor's liability with respect to such Claim shall be limited to the lesser of (i) an amount calculated on the basis of such settlement offer or (ii) the amount calculated on the basis of a Final Determination. After a settlement or a Final Determination, the Controlling Party shall reimburse the Indemnitor in an amount equal to the excess, if any, of the amount of expenses paid by the Indemnitor pursuant to clause (iv) of Section 5.03(a) over the Indemnitor's pro rata portion of such expenses based on the Indemnitor's share of the liability with respect to such Claim as determined under the first sentence of this Section 5.03(b). (c) If the Controlling Party shall elect to pay the Claim and seek a refund, the Indemnitor shall lend sufficient funds on an interest-free basis to the Controlling Party, and with no net after-tax cost to the Controlling Party, to cover any applicable indemnity obligations of the Indemnitor. To the extent such refund claim is ultimately disallowed, the loan or portion thereof equal to the amount of the refund claim so disallowed shall be applied against the Indemnitor's obligation to make indemnity payments pursuant to this Agreement. In addition, if the refund is ultimately disallowed, the Controlling Party shall reimburse the Indemnitor for the Controlling Party's pro rata portion of the expenses paid by the Indemnitor under clause (iv) of Section 5.03(a) based on the Controlling Party's share of the tax previously paid. To the extent such refund claim is allowed, the Controlling Party shall pay to the Indemnitor (i) the amounts loaned or advanced to the Controlling Party with respect to the indemnity obligation (not to exceed the Indemnitor's share of any refund), and (ii) the Controlling Party's pro rata portion of the expenses paid by the Indemnitor under clause (iv) of Section 5.03(a) based on the Controlling Party's share of any refund, within ten days of the receipt of such refund (or if the Controlling Party would have received such refund but for the existence of a counterclaim or other claim not indemnified by the Indemnitor under this Agreement, within ten days of the final resolution of the contest), plus an amount equal to any interest received (or that would have been received) from the Taxing Authority that is properly attributable to such amount. (d) Except as provided below, the Controlling Party shall not settle a Claim that Indemnitor is entitled to require the Controlling Party to contest under Section 5.03(a) without the Stockholders’ Representative’s prior written consent of the Indemnitor (consent, which consent shall not be unreasonably withheld). At any time, conditioned or delayed; provided, that, if the majority of the exposure in respect of such Tax Claim relates to Pre-Closing Taxes that are reasonably expected to reduce Tax Benefit Payments pursuant to Section 3.03 then upon notice to PubCo, Stockholders’ Representative may assume control of the defense of such Tax Claim, whether such Tax Claim commenced before or commences after commencing the Merger Closing Date and, in such case, PubCo shall be permitted, at its expense, to take be present at, and participate in, the defense of any action pursuant such Tax Claim and the Stockholders’ Representative shall not be entitled to this Section 5.03 settle, either administratively or after the commencement of litigation, any such Tax Claim without PubCo’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided further, that any dispute with respect to any Claim, whether the Controlling Party may decline to take action with respect to such Claim and may settle such Claim without withholding of consent by either party is reasonable shall be resolved by the prior written consent of the Indemnitor by notifying the Indemnitor in writing that the Indemnitor is released from its obligations to indemnify the Controlling Party with respect to such Claim (which notification shall release the Indemnitor from such obligations except Expert pursuant to the extent the Indemnitor has agreed in writing that it would be willing to have its liability calculated on the basis of a settlement offer, as provided in Section 5.03(b), at that point in the contest) and with respect to any Claim the resolution of which is based on the outcome of such Claim. If the Controlling Party settles any Claim without the consent of the Indemnitor or otherwise takes or declines to take any action pursuant to this paragraph, the Controlling Party shall (i) reimburse the Indemnitor for all the expenses paid by the Indemnitor pursuant to clause (iv) of Section 5.03(a), and (ii) pay to the Indemnitor any other amounts paid or advanced by the Indemnitor with respect to such Claim (other than amounts payable by the Indemnitor in connection with a settlement offer pursuant to Section 5.03(b)), plus interest at a rate equal to the Applicable Federal Rate from the date on which the amounts were advancedReconciliation Procedures.

Certain Tax Claims. (a) Any issue raised by any Taxing Authority the relevant Governmental Entity in any tax Tax inquiry, audit, redetermination, examination, investigation, dispute, litigation or other proceeding relating to a Common Consolidated Tax Return that would result in tax liability to the Indemnitor under this Agreement is defined as a "Claim (a “Claim." Except as provided in Sections 3.01(b”), 5.03(d) and the second sentence of Section 5.02 hereof, and notwithstanding . Notwithstanding any other provision of this Agreement that may be construed to the contrary, the Controlling Party agrees to contest any Claim for which the Controlling Party is not reasonably likely to have any liability at the direction of the Indemnitor and not to settle any Claim without the prior written consent of the Indemnitor, provided that (i) the Controlling Party shall provide notice to Indemnitor pursuant to Section 5.02 hereof of any Claim, (ii) within thirty 30 days after notice by the Controlling Party to the Indemnitor of a Claim is received by the Indemnitor, the Indemnitor shall (1) request in writing that such Claim be contested, contested and (2) provide an opinion of independent tax counsel, selected by the Indemnitor and reasonably acceptable to the Controlling Party, to the effect that it is more likely than not that a Final Determination shall be substantially consistent with the Indemnitor's position relating to such Claim, (iiiii) the Indemnitor agrees shall agree to pay (and shall pay) on demand all reasonable out-of-pocket costs, losses and expenses Indemnifiable Losses (including, but not limited to, legal and accounting fees) paid or incurred by the Controlling Party in connection with contesting such Claim. The Indemnitor, except for a Claim where the expenses are shared pursuant at its option, may select as lead counsel of such defense any legal counsel reasonably satisfactory to Section 2.04(a) hereof, and (iv) the Controlling Party. In contesting any Claim in accordance with the foregoing, the Indemnitor shall, after reasonable consultation with the IndemnitorControlling Party, shall determine in its sole discretion the nature of all actions to be taken to contest such Claim, including including (1x) whether any action to contest such Claim shall initially be by way of judicial or administrative proceeding, or both, (2y) whether any such Claim shall be contested by resisting payment thereof or by paying the same and seeking a refund thereofthereof (provided that the Indemnitor will provide funds on an interest-free basis for payment in the case of the latter course consistent with Section 3.04(b) below), and (3z) the court or other judicial body before which judicial action, if any, shall be commenced. To the extent the Indemnitor is not participating, the Controlling Party shall keep the Indemnitor (and, upon request by the Indemnitor, its counsel, ) informed as to the progress of the contest. (b) If . In the Indemnitor requests that case of a Claim for which both the Controlling Party accept and the Indemnitor may bear liability, each party shall bear its own expenses in contesting such a settlement Claim, and the parties agree to use reasonable best efforts to separate the issues for resolution, to the extent possible. To the extent the issues cannot be separated, the parties shall, in good faith, use reasonable best efforts to jointly control the contesting of such a Claim offered by any Taxing Authority and if (including the selection of lead counsel), although the party with the greater liability at stake shall ultimately have control over the settlement or other disposition of such Claim may(including decisions described in clauses (x), in the reasonable discretion (y) and (z) of the Controlling Party, be settled without prejudicing any claims such Taxing Authority may have with respect to matters other than the transactions contemplated by the Distribution Agreement, the Controlling Party shall either accept such settlement offer or agree with the Indemnitor that the Indemnitor's liability with respect to such Claim shall be limited to the lesser of (i) an amount calculated on the basis of such settlement offer or (ii) the amount calculated on the basis of a Final Determination. After a settlement or a Final Determination, the Controlling Party shall reimburse the Indemnitor in an amount equal to the excess, if any, of the amount of expenses paid by the Indemnitor pursuant to clause (iv) of Section 5.03(a) over the Indemnitor's pro rata portion of such expenses based on the Indemnitor's share of the liability with respect to such Claim as determined under the first fourth sentence of this Section 5.03(b). (c3.03) If after affording the Controlling Party shall elect other party the right to pay participate fully in contesting the Claim (including without limitation the right to attend material conference calls and seek a refund, the Indemnitor shall lend sufficient funds on an interest-free basis meetings and to have reasonable comments incorporated in any written submission or response submitted to the Controlling Party, and with no net after-tax cost relevant Tax authority to the Controlling Party, to cover any applicable indemnity obligations of the Indemnitor. To the extent such refund claim is ultimately disallowed, the loan or portion thereof equal to the amount of the refund claim so disallowed shall be applied against the Indemnitor's obligation to make indemnity payments pursuant to this Agreement. In addition, if the refund is ultimately disallowed, the Controlling Party shall reimburse the Indemnitor for the Controlling Party's pro rata portion of the expenses paid by the Indemnitor under clause (iv) of Section 5.03(a) based items bear on the Controlling Party's share of the tax previously paid. To the extent such refund claim is allowed, the Controlling Party shall pay to the Indemnitor (i) the amounts loaned or advanced to the Controlling Party with respect to the indemnity obligation (not to exceed the Indemnitor's share of any refund), and (ii) the Controlling Party's pro rata portion of the expenses paid by the Indemnitor under clause (iv) of Section 5.03(a) based on the Controlling Party's share of any refund, within ten days of the receipt of such refund (or if the Controlling Party would have received such refund but Tax for the existence of a counterclaim or other claim not indemnified by the Indemnitor under this Agreement, within ten days of the final resolution of the contest), plus an amount equal to any interest received (or that would have been received) from the Taxing Authority that is properly attributable to such amount. (d) Except as provided below, the Controlling Party shall not settle a Claim that Indemnitor is entitled to require the Controlling Party to contest under Section 5.03(a) without the prior written consent of the Indemnitor (which consent shall not be unreasonably withheld). At any time, whether before or after commencing to take any action pursuant to this Section 5.03 with respect to any Claim, the Controlling Party may decline to take action with respect to such Claim and may settle such Claim without the prior written consent of the Indemnitor by notifying the Indemnitor in writing that the Indemnitor is released from its obligations to indemnify the Controlling Party with respect to such Claim (which notification shall release the Indemnitor from such obligations except to the extent the Indemnitor has agreed in writing that it would be willing to have its liability calculated on the basis of a settlement offer, as provided in Section 5.03(b), at that point in the contest) and with respect to any Claim the resolution of which is based on the outcome of such Claim. If the Controlling Party settles any Claim without the consent of the Indemnitor or otherwise takes or declines to take any action pursuant to this paragraph, the Controlling Party shall (i) reimburse the Indemnitor for all the expenses paid by the Indemnitor pursuant to clause (iv) of Section 5.03(a), and (ii) pay to the Indemnitor any other amounts paid or advanced by the Indemnitor with respect to such Claim (other than amounts payable by the Indemnitor in connection with a settlement offer pursuant to Section 5.03(b)), plus interest at a rate equal to the Applicable Federal Rate from the date on which the amounts were advancedother party could be liable).

Certain Tax Claims. (a) Any issue raised by any the relevant Taxing Authority authority in any tax Tax inquiry, audit, redetermination, examination, investigation, dispute, litigation or other proceeding relating to a Common Consolidated Tax Return that would result in tax liability to the Indemnitor under this Agreement is defined as a "Claim (a “Claim." Except as provided in Sections 3.01(b”), 5.03(d) and the second sentence of Section 5.02 hereof, and notwithstanding . Notwithstanding any other provision of this Agreement that may be construed to the contrary, the Controlling Party agrees to contest any Claim for which the Controlling Party is not reasonably likely to have any liability at the direction of the Indemnitor and not to settle any Claim without the prior written consent of the Indemnitor, provided that (i) the Controlling Party shall provide notice to Indemnitor pursuant to Section 5.02 hereof of any Claim, (ii) within thirty 30 days after notice by the Controlling Party to the Indemnitor of a Claim is received by the Indemnitor, the Indemnitor shall (1) request in writing that such Claim be contested, and (2) provide an opinion of independent tax counsel, selected by the Indemnitor and reasonably acceptable to the Controlling Party, to the effect that it is more likely than not that a Final Determination shall be substantially consistent with the Indemnitor's position relating to such Claimcontested and, (iiiii) the Indemnitor agrees shall agree to pay (and shall pay) on demand all reasonable out-of-pocket costs, losses and expenses Indemnifiable Losses (including, but not limited to, legal and accounting fees) paid or incurred by the Controlling Party in connection with contesting such Claim. The Indemnitor, except for a Claim where the expenses are shared pursuant at its option, may select as lead counsel of such defense any legal counsel reasonably satisfactory to Section 2.04(a) hereof, and (iv) the Controlling Party. In contesting any Claim in accordance with the foregoing, the Indemnitor shall, after reasonable consultation with the IndemnitorControlling Party, shall determine in its sole discretion the nature of all actions to be taken to contest such Claim, including including (1x) whether any action to contest such Claim shall initially be by way of judicial or administrative proceeding, or both, (2y) whether any such Claim shall be contested by resisting payment thereof or by paying the same and seeking a refund thereofthereof (provided that the Indemnitor will provide funds on an interest-free basis for payment in the case of the latter course consistent with Section 3.04(b) below), and (3z) the court or other judicial body before which judicial action, if any, shall be commenced. To the extent the Indemnitor is not participating, the Controlling Party shall keep the Indemnitor (and, upon request by the Indemnitor, its counsel, ) informed as to the progress of the contest. . In the case of Restructuring Taxes for which liability is shared under Section 2.04(a), each party shall pay a portion (bbased on each party’s share of such Restructuring Taxes) If of the Indemnitor requests that reasonable expenses (including legal and accounting fees) incurred in connection with contesting such Restructuring Tax dispute. In the case of a Claim for which both the Controlling Party accept a settlement of a Claim offered by any Taxing Authority and if such Claim may, in the reasonable discretion of the Controlling Party, be settled without prejudicing any claims such Taxing Authority may have with respect to matters other than the transactions contemplated by the Distribution Agreement, the Controlling Party shall either accept such settlement offer or agree with the Indemnitor that may bear liability, each party shall bear its own expenses in contesting such a Claim, and the Indemnitor's liability with respect parties agree to such Claim shall be limited use reasonable best efforts to separate the issues for resolution, to the lesser of (i) an amount calculated on the basis of such settlement offer or (ii) the amount calculated on the basis of a Final Determination. After a settlement or a Final Determination, the Controlling Party shall reimburse the Indemnitor in an amount equal to the excess, if any, of the amount of expenses paid by the Indemnitor pursuant to clause (iv) of Section 5.03(a) over the Indemnitor's pro rata portion of such expenses based on the Indemnitor's share of the liability with respect to such Claim as determined under the first sentence of this Section 5.03(b). (c) If the Controlling Party shall elect to pay the Claim and seek a refund, the Indemnitor shall lend sufficient funds on an interest-free basis to the Controlling Party, and with no net after-tax cost to the Controlling Party, to cover any applicable indemnity obligations of the Indemnitorextent possible. To the extent such refund claim is ultimately disallowedthe issues cannot be separated, the loan parties shall, in good faith, use reasonable best efforts to jointly control the contesting of such a Claim (including the selection of lead counsel), although the party with the greater liability at stake shall ultimately have control over the settlement or portion thereof equal other disposition of such Claim after affording the other party the right to participate fully in contesting the Claim (including without limitation the right to attend material conference calls and meetings and to have reasonable comments incorporated in any written submission or response submitted to the amount of the refund claim so disallowed shall be applied against the Indemnitor's obligation relevant Tax authority to make indemnity payments pursuant to this Agreement. In addition, if the refund is ultimately disallowed, the Controlling Party shall reimburse the Indemnitor for the Controlling Party's pro rata portion of the expenses paid by the Indemnitor under clause (iv) of Section 5.03(a) based on the Controlling Party's share of the tax previously paid. To the extent such refund claim is allowed, the Controlling Party shall pay to the Indemnitor (i) the amounts loaned or advanced to the Controlling Party with respect to the indemnity obligation (not to exceed the Indemnitor's share of any refund), and (ii) the Controlling Party's pro rata portion of the expenses paid by the Indemnitor under clause (iv) of Section 5.03(a) based items bear on the Controlling Party's share of any refund, within ten days of the receipt of such refund (or if the Controlling Party would have received such refund but Tax for the existence of a counterclaim or other claim not indemnified by the Indemnitor under this Agreement, within ten days of the final resolution of the contest), plus an amount equal to any interest received (or that would have been received) from the Taxing Authority that is properly attributable to such amount. (d) Except as provided below, the Controlling Party shall not settle a Claim that Indemnitor is entitled to require the Controlling Party to contest under Section 5.03(a) without the prior written consent of the Indemnitor (which consent shall not be unreasonably withheld). At any time, whether before or after commencing to take any action pursuant to this Section 5.03 with respect to any Claim, the Controlling Party may decline to take action with respect to such Claim and may settle such Claim without the prior written consent of the Indemnitor by notifying the Indemnitor in writing that the Indemnitor is released from its obligations to indemnify the Controlling Party with respect to such Claim (which notification shall release the Indemnitor from such obligations except to the extent the Indemnitor has agreed in writing that it would be willing to have its liability calculated on the basis of a settlement offer, as provided in Section 5.03(b), at that point in the contest) and with respect to any Claim the resolution of which is based on the outcome of such Claim. If the Controlling Party settles any Claim without the consent of the Indemnitor or otherwise takes or declines to take any action pursuant to this paragraph, the Controlling Party shall (i) reimburse the Indemnitor for all the expenses paid by the Indemnitor pursuant to clause (iv) of Section 5.03(a), and (ii) pay to the Indemnitor any other amounts paid or advanced by the Indemnitor with respect to such Claim (other than amounts payable by the Indemnitor in connection with a settlement offer pursuant to Section 5.03(b)), plus interest at a rate equal to the Applicable Federal Rate from the date on which the amounts were advancedother party could be liable).