Common use of Control of Tax Contests Clause in Contracts

Control of Tax Contests. FTAI shall have the sole responsibility and control over the handling of any Tax Contest, including the exclusive right to communicate with agents of the Taxing Authority, involving (A) any Pre-Closing Period Tax Return of FTAI Infrastructure or any member of the FTAI Infrastructure Group or otherwise relating to the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for a Pre-Closing Period or (B) any Straddle Period Tax Return of FTAI Infrastructure or any member of the FTAI Infrastructure Group or otherwise relating to the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for a Straddle Period, in each case if the liability for the accompanying Tax Contest would be imposed on FTAI, its Subsidiaries, or its Shareholders. Upon FTAI Infrastructure’s request, FTAI Infrastructure shall be allowed to participate in, but not to control, at FTAI Infrastructure’s expense, the handling of any such Tax Contest with respect to any item that may affect FTAI Infrastructure’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement, and upon FTAI’s request, FTAI shall be allowed to participate in, but not to control, at FTAI’s expense, the handling of any other Tax Contest with respect to any item that may affect FTAI’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement. Neither FTAI nor FTAI Infrastructure shall settle or concede any Tax Contest with respect to any item in excess of $50,000 for which the other party or an affiliate of the other party is liable without the prior written consent of such party, which consent shall not be unreasonably withheld, delayed, or conditioned.

Control of Tax Contests. FTAI shall Parent will have the sole responsibility and control over the handling of right to (a) contest, compromise or settle any adjustment or deficiency proposed or asserted with respect to any Tax Contest, including the exclusive right to communicate with agents liability of the Taxing Authority, involving (A) any Pre-Closing Period a Parent Tax Return of FTAI Infrastructure Group member or any a Galleria Tax Group member of the FTAI Infrastructure Group or otherwise relating to the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for a Pre-Closing Tax Period or with respect to a Joint Return, and (Bb) file, prosecute, compromise or settle any Straddle Period Adjustment Request (and determine the manner in which any Refund will be received) with respect to any Tax Return for such period or return; provided, however, that (i) in the case of FTAI Infrastructure a Galleria Separate Return, the Acquiror Tax Group will have the right to actively participate in any action set forth in clauses (a) and (b) above if such action could result in any Galleria Group Taxes or any member Transaction Taxes with respect to which the Acquiror Tax Group could be liable, and, solely to the extent such Tax Contest relates to Galleria Group Taxes or any Transaction Taxes with respect to which the Acquiror Tax Group has previously acknowledged its liability in writing, Acquiror will have the same rights and obligations with respect to any settlement or compromise of such Tax Contest as Acquiror will have in the case of a settlement or compromise of a Tax Contest involving a Joint Return under clause (ii) immediately below; and (ii) in the case of a Joint Return, solely to the extent such Tax Contest relates to Transaction Taxes with respect to which the Acquiror Tax Group could be liable, in whole or in part, under Section 2.02 (an “Acquiror Issue”), Parent will reasonably consult with Acquiror with respect to Parent’s defense and control of such Tax Contest exclusively with respect to the Acquiror Issue, including through the following: (x) Parent will keep Acquiror fully informed, in all material respects, regarding the progress of the FTAI Infrastructure prosecution or defense of such Tax Contest, (y) Parent will promptly provide Acquiror with copies of any correspondence received from any Taxing Authority in connection with such Tax Contest, and (z) Parent will provide Acquiror with drafts of any correspondence from Parent to any Taxing Authority in connection with such Tax Contest and will provide Acquiror with a reasonable opportunity to comment on such correspondence; provided, further, that, if the Acquiror Tax Group acknowledges its liability in writing for all or otherwise relating the relevant percentage (in each case, as determined pursuant to Section 2.02) of the Transaction Taxes that would be owed to a Taxing Authority in the event of an adverse determination with respect to the FTAI Infrastructure Assets Acquiror Issue, Parent will, subject to the Upfront Payment Requirement (as defined below), not settle or FTAI Infrastructure Liabilities compromise any such contest without Acquiror’s written consent, which consent may not be unreasonably withheld, delayed or conditioned; provided, further, however, that, if Acquiror withholds its consent to a settlement or compromise described in the immediately preceding proviso, the Acquiror Tax Group will be liable for all or the relevant percentage (in each case, as determined pursuant to Section 2.02) of the Transaction Taxes resulting from a Final Determination to the extent the basis for the Final Determination is such that the Acquiror Tax Group would have liability, in whole or in part, under Section 2.02 for the applicable Transaction Taxes, or for all of the Transaction Taxes resulting from a Final Determination if such Final Determination fails to clearly articulate the basis for liability such that it is not reasonably ascertainable which Party would be liable for the Transaction Taxes under this Agreement. Parent and Acquiror will use their reasonable best efforts to ensure that the Final Determination clearly provides the basis for such determination. Acquiror will have the right to (I) contest, compromise or settle any adjustment or deficiency proposed or asserted with respect to any Tax liability included in any Galleria Separate Return for a Straddle Period, and (II) file, prosecute, compromise or settle any Adjustment Request (and determine the manner in each which any Refund will be received) with respect to any Tax for such period; provided, however, that Parent will have the right to actively participate in any action set forth in clauses (I) and (II) above if such action could result in any Parent Group Taxes or any Transaction Taxes with respect to which Parent has previously acknowledged its liability in writing, and Acquiror will, subject to the Upfront Payment Requirement, not settle or compromise any such contest without Parent’s written consent, which consent may not be unreasonably withheld, delayed or conditioned. If Parent or Acquiror, as the case if the liability for the accompanying may be, properly objects to a proposed settlement or compromise of a Tax Contest would be imposed on FTAIunder this Section 5.02, its Subsidiariesand it is necessary under applicable Law to pay the asserted deficiency in order to pursue the Tax Contest, Parent or Acquiror, as the case may be, will pay, or its Shareholders. Upon FTAI Infrastructure’s requestprovide Acquiror or Parent, FTAI Infrastructure shall as applicable, with funds necessary to pay the Tax deficiency that has been asserted in connection with the Tax Contest and will be allowed entitled to participate inbe repaid any such amounts recovered by any Acquiror Tax Group or Parent Tax Group member, but not to controlas the case may be, at FTAI Infrastructure’s expense, the handling together with any interest received or credited thereon as a result of any such Tax Contest with respect to any item that may affect FTAI Infrastructure’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement, and upon FTAI’s request, FTAI shall be allowed to participate in, but not to control, at FTAI’s expense, the handling of any other Tax Contest with respect to any item that may affect FTAI’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement. Neither FTAI nor FTAI Infrastructure shall settle or concede any Tax Contest with respect to any item in excess of $50,000 for which the other party or an affiliate of the other party is liable without the prior written consent of such party, which consent shall not be unreasonably withheld, delayed, or conditioned“Upfront Payment Requirement”).

Control of Tax Contests. FTAI Parent shall have the sole responsibility and control over the handling of right to (i) contest, compromise or settle any adjustment or deficiency proposed or asserted with respect to any Tax Contest, including the exclusive right to communicate with agents liability of the Taxing Authority, involving (A) any Pre-Closing Period Tax Return of FTAI Infrastructure a Parent Group member or any a Wimbledon Group member of the FTAI Infrastructure Group or otherwise relating to the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for a Pre-Closing Period or with respect to a Joint Return, and (Bii) file, prosecute, compromise or settle any Straddle Period Adjustment Request (and determine the manner in which any Refund shall be received) with respect to any Tax Return for such period or return; provided, however, that (a) in the case of FTAI Infrastructure a Wimbledon Separate Return, the Acquiror Group shall have the right to actively participate in any action set forth in clauses (i) and (ii) above if such action could result in any Wimbledon Group Taxes or any member Transaction Taxes with respect to which the Acquiror Group has previously acknowledged its liability in writing, and Parent shall, subject to the last sentence of this Section 5.02, not settle or compromise any such contest without Acquiror’s written consent, which consent may not be unreasonably withheld, delayed or conditioned; and (b) in the case of a Joint Return, to the extent such Tax Contest solely relates to Transaction Taxes with respect to which the Acquiror Group could be liable under Section 2.02(a) (an “Acquiror Issue”), Parent shall reasonably consult with the Acquiror Group with respect to Parent’s defense and control of such Tax Contest, including through the following: (x) Parent shall keep Acquiror fully informed, in all material respects, regarding the progress of the FTAI Infrastructure prosecution or defense of such Tax Contest, (y) Parent shall promptly provide Acquiror with copies of any correspondence received from any Taxing Authority in connection with such Tax Contest, and (z) Parent shall provide Acquiror with drafts of any correspondence from Parent to any Taxing Authority in connection with such Tax Contest and shall provide Acquiror with a reasonable opportunity to comment on such correspondence; provided, further, that, if the Acquiror Group or otherwise relating acknowledges its liability in writing for all the Transaction Taxes that would be owed to a Taxing Authority in the event of an adverse determination with respect to the FTAI Infrastructure Assets Acquiror Issue, Parent shall, subject to the last sentence of this Section 5.02, not settle or FTAI Infrastructure Liabilities compromise any such contest without Acquiror’s written consent, which consent may not be unreasonably withheld, delayed or conditioned; provided, further, however, that, if Acquiror withholds its consent to a settlement or compromise described in the immediately preceding proviso, Acquiror shall be liable for any Transaction Taxes resulting from a Final Determination to the extent the basis for the Final Determination is such that the Acquiror Group would have liability for the applicable Transaction Taxes under this Agreement, or if the Final Determination fails to clearly articulate the basis for liability such that it is not reasonably ascertainable which party would be liable for the Transaction Taxes under this Agreement. Parent and Acquiror shall use their reasonable best efforts to ensure that the Final Determination clearly provides the basis for such determination. Acquiror shall have the right to (I) contest, compromise or settle any adjustment or deficiency proposed or asserted with respect to any Tax liability included in any Wimbledon Separate Return for a Straddle Period, and (II) file, prosecute, compromise or settle any Adjustment Request (and determine the manner in each case if the liability for the accompanying Tax Contest would be imposed on FTAI, its Subsidiaries, or its Shareholders. Upon FTAI Infrastructure’s request, FTAI Infrastructure which any Refund shall be allowed to participate in, but not to control, at FTAI Infrastructure’s expense, the handling of any such Tax Contest received) with respect to any item Tax for such period; provided, however, that may affect FTAI Infrastructure’s Parent shall have the right to actively participate in any action set forth in clauses (I) and (II) above if such action could result in any Parent Group Taxes or its Subsidiaries or its Shareholders’) liability for any Transaction Taxes pursuant to this Agreement, and upon FTAI’s request, FTAI shall be allowed to participate in, but not to control, at FTAI’s expense, the handling of any other Tax Contest with respect to any item that may affect FTAI’s (or which the Parent Group has previously acknowledged its Subsidiaries or its Shareholders’) liability for Taxes pursuant in writing and Acquiror shall, subject to the last sentence of this Agreement. Neither FTAI nor FTAI Infrastructure shall Section 5.02, not settle or concede compromise any Tax Contest with respect to any item in excess of $50,000 for which the other party or an affiliate of the other party is liable such contest without the prior Parent’s written consent of such partyconsent, which consent shall may not be unreasonably withheld, delayeddelayed or conditioned. If Parent or Acquiror, as the case may be, properly objects to a proposed settlement or compromise of a Tax Contest under this Section 5.02, and it is necessary under applicable Law to pay the asserted deficiency in order to pursue the Tax Contest, Parent or Acquiror, as the case may be, shall pay, or conditionedprovide Acquiror or Parent, as applicable, with funds necessary to pay the Tax deficiency that has been asserted in connection with the Tax Contest and shall be entitled to be repaid any such amounts recovered by any Acquiror Group or Parent Group member, as the case may be, together with any interest received or credited thereon as a result of any such Tax Contest.

Control of Tax Contests. FTAI shall have (i) If Buyer, the sole responsibility and control over the handling Company, its Subsidiaries or any of their respective Affiliates receives written notice of any audits, examinations, or similar administrative or judicial proceedings by a Tax Contest, including the exclusive right to communicate authority with agents of the Taxing Authority, involving (A) any Pre-Closing Period Tax Return of FTAI Infrastructure or any member of the FTAI Infrastructure Group or otherwise relating respect to the FTAI Infrastructure Assets Company or FTAI Infrastructure Liabilities for its Subsidiaries with respect to a Pre-Closing Tax Period prior to the time when the funds held in the Indemnity Escrow Account are exhausted or (B) any Straddle Period Tax Return of FTAI Infrastructure or any member otherwise released from the escrow pursuant to the terms of the FTAI Infrastructure Group Escrow Agreement (a “Tax Contest”), Buyer shall promptly notify or otherwise relating to cause the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for a Straddle Period, in each case if the liability for the accompanying Tax Contest would be imposed on FTAI, its Subsidiaries, or its Shareholders. Upon FTAI Infrastructure’s request, FTAI Infrastructure shall be allowed to participate in, but not to control, at FTAI Infrastructure’s expense, the handling of any such Tax Contest with respect to any item that may affect FTAI Infrastructure’s (Company or its Subsidiaries to notify the Shareholders’ Representative in writing of such Tax Contest, provided, however, that failure to provide such notification shall not obviate or its limit the rights and remedies of the Buyer Indemnitees under this Section 6.15, except and only to the extent that the Sellers are materially prejudiced by such failure. Buyer shall have the right to conduct and control the defense or settlement of such Tax Contests, provided, Buyer shall use commercially reasonable efforts to (i) keep the Shareholders’’ Representative informed of the progress of such Tax Contests, (ii) liability for Taxes pursuant provide the Shareholders’ Representative with copies of all material documents pertaining to this Agreement, such Tax Contests and upon FTAI’s request, FTAI shall be allowed to participate in, but (iii) not to control, at FTAI’s expense, the handling of any other Tax Contest with respect to any item that may affect FTAI’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement. Neither FTAI nor FTAI Infrastructure shall settle or concede any Tax Contest with respect to any item in excess of $50,000 for which the other party or an affiliate of the other party is liable without the prior Shareholders’ Representative’s advanced written consent of such partyconsent, which consent shall not be unreasonably withheld, delayed, delayed or conditioned. (ii) Notwithstanding the foregoing and at Sellers’ sole cost and expense, if the Tax Contest relates to the Pre-Closing Reorganization, the Buyer Indemnitee shall take all commercially reasonable steps requested by the Shareholders’ Representative in writing, on behalf of the Sellers, to mitigate any Liability of the Sellers pursuant to Section 6.15(e), including the Company making the election under subsection 184(3) of the ITA; provided, that such request will not cause any adverse consequences to any Buyer Indemnitee, the Company, any of its Subsidiaries or any of their respective Affiliates.

Control of Tax Contests. FTAI shall have the sole responsibility and control over the handling of any Tax Contest, including the exclusive right to communicate with agents of the Taxing Authority, involving (A) any Pre-Closing Period Tax Return of FTAI Infrastructure or any member of the FTAI Infrastructure Group or otherwise relating to the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for a Pre-Closing Period or (B) any Straddle Period Tax Return of FTAI Infrastructure or any member of the FTAI Infrastructure Group or otherwise relating to the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for a Straddle Period, in each case if the liability for the accompanying Tax Contest would be imposed on FTAI, its Subsidiaries, or its Shareholders. Upon FTAI Infrastructure’s request, FTAI Infrastructure shall be allowed to participate in, but not to control, at FTAI Infrastructure’s expense, the handling of any such Tax Contest with respect to any item that may affect FTAI Infrastructure’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement, and upon FTAI’s request, FTAI shall be allowed to participate in, but not to control, at FTAI’s expense, the handling of any other Tax Contest with respect to any item that may affect FTAI’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement. Neither FTAI nor FTAI Infrastructure shall settle or concede any Tax Contest with respect to any item in excess of $50,000 for which the other party or an affiliate of the other party is liable without the prior written consent of such party, which consent shall not be unreasonably withheld, delayed, or conditioned.]

Control of Tax Contests. FTAI Notwithstanding any other provision in this Agreement: (a) After the Closing, Purchaser, on the one hand, and Seller, on the other hand, shall promptly notify the other in writing upon the receipt by it or any of its Affiliates (including, in the case of Purchaser, the Company and the Company’s Subsidiaries) of any written notice of any pending or threatened audit or assessment, suit, proposed adjustment, deficiency, dispute, administrative or judicial proceeding, or other similar claim (any such action or proceeding, a “Tax Contest”) received by it or any of its Affiliates from any Taxing Authority or any other party with respect to Taxes of or relating to the Company or the Company’s Subsidiaries or the business of the Company or the Company’s Subsidiaries for any Pre-Closing Tax Period or Straddle Period, if such Tax Contest could reasonably be expected to result in indemnification pursuant to this Agreement (a “Tax Claim”); provided, however, that the failure of Purchaser or Seller to give the other notice of a Tax Contest as provided herein shall not relieve the Indemnifying Party of its indemnification obligations pursuant to this Agreement with respect to a Tax Claim arising as a result of such Tax Contest, except to the extent, that the Indemnifying Party shall have been materially prejudiced by such failure to give timely notice in connection with the Tax Contest. Such notice shall include a copy of the relevant portion of any correspondence received from the relevant Taxing Authority and describe in reasonable detail the nature of such Tax Claim. (b) Seller shall have the sole responsibility and right to control over the handling conduct of any Tax Contest, including to the exclusive right extent such Tax Matter relates to communicate with agents of the Taxing Authority, involving (A) any Pre-Closing Period Tax Return Periods (other than, for purposes of FTAI Infrastructure or any member of the FTAI Infrastructure Group or otherwise relating to the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for a Pre-Closing Period or (B) any Straddle Period Tax Return of FTAI Infrastructure or any member of the FTAI Infrastructure Group or otherwise relating to the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for clarity, a Straddle Period); provided, in each case if that Seller shall keep Purchaser reasonably informed regarding the liability for the accompanying Tax Contest would be imposed on FTAI, its Subsidiaries, or its Shareholders. Upon FTAI Infrastructure’s request, FTAI Infrastructure shall be allowed to participate in, but not to control, at FTAI Infrastructure’s expense, the handling progress and substantive aspects of any such Tax Contest with respect to any item that may affect FTAI Infrastructure’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement, and upon FTAI’s request, FTAI Contest. Purchaser shall be allowed entitled at its expense to participate in, but not to control, at FTAI’s expense, the handling of in any other such Tax Contest with respect to and Seller shall not compromise or settle any item that may affect FTAI’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement. Neither FTAI nor FTAI Infrastructure shall settle or concede any such Tax Contest with respect to any item in excess of $50,000 for which the other party or an affiliate of the other party is liable without the obtaining Purchaser’s prior written consent of such party, (which consent shall not be unreasonably withheld, conditioned or delayed). If Seller does not elect to control the conduct of a Tax Contest with respect to a Pre-Closing Tax Period (other than, for purposes of clarity, a Straddle Period), then Purchaser, at Seller’s expense (to the extent that such expenses exceed $10,000), shall have the right to control the conduct of any issues in any such Tax Contest; provided, that Purchaser shall reasonably keep Seller informed regarding the progress and substantive aspects of such Tax Contest. (c) Purchaser shall have the right, at its expense, to control, in whole or conditionedin part, any Tax Contest relating to all Tax periods that end after the Closing Date. Seller shall be entitled at its expense to participate in a Tax Contest relating to a Straddle Period and Purchaser shall not compromise or settle any such Tax Contest that would result in Seller being obligated to indemnify Purchaser for Taxes under this Agreement, without obtaining Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).