Common use of Liability for Taxes and Related Matters Clause in Contracts

Liability for Taxes and Related Matters. (a) Seller shall be liable for and shall indemnify Buyer and each Buyer Indemnified Person (as defined in Section 9.2 hereof) for all Taxes (including, without limitation, any obligation to contribute to the payment of a Tax determined on a consolidated, combined or unitary basis with respect to a group of corporations that includes or included any Company or any Company Subsidiary and Taxes resulting from any Company or any Company Subsidiary ceasing to be a member of any affiliated, combined or consolidated group of which such Company or such Company Subsidiary is now a member or attributable to the election to be made under Section 338(h)(10) of the Code and any state, local or foreign law equivalents) (i) imposed on any Company or any Company Subsidiary, or for which any Company or any Company Subsidiary may otherwise be liable, for any Pre- Closing Tax Period, including without limitation, any Taxes triggered by a dividend of shares pursuant to Section 5.9 of this Agreement, the dividends contemplated by Section 3.7(b) of this Agreement or pursuant to Section 338(h)(10) of the Code (and including any Taxes on Phase III income as a result of an election made under Section 338), provided that with respect to Taxes for Pre-Closing Tax Periods not reported on a consolidated, combined or unitary basis with Seller, Seller shall be obligated to indemnify Buyer and the Buyer Indemnified Persons only to the extent such Taxes are in excess of the respective Liability for such Taxes as set forth in the Financial Statements of the Companies and Company Subsidiaries as of December 31, 1999, (ii) imposed with respect to any corporation (other than any Company or any Company Subsidiary) that was a member of an affiliated, combined or consolidated group of which any Company or any Company Subsidiary was a member prior to the Closing Date, for any taxable year, or (iii) attributable to Seller's breach of any representation, warranty or covenant contained in Section 3.9 hereof or this Article VII of this Agreement, provided that Seller shall be obligated to indemnify Buyer and the Buyer Indemnified Persons for matters covered by the indemnity provisions of Section 7.11 hereof only to the extent provided in and pursuant to Section 7.11 hereof. Seller shall be entitled to any refund of Taxes of any Company or any Company Subsidiary (net of Taxes payable by such Company or such Company Subsidiary thereon) received in respect of any Pre-Closing Tax Period except to the extent such refund (i) relates to Taxes for Pre-Closing Tax Periods not reported on a consolidated, combined or unitary basis with Seller, and (ii) is not in excess of the respective Tax Liability set forth on the Financial Statements provided pursuant to Section 3.6 hereof. (b) Buyer shall be liable for and shall indemnify Seller for all Taxes of any Company or any Company Subsidiary (other than Taxes for which Seller is responsible pursuant to Section 7.1(a) hereof) for any Post-Closing Tax Period. Buyer shall be entitled to any refund of Taxes of any Company or any Company Subsidiary received in respect of any Post-Closing Tax Period except to the extent such refund relates solely to Taxes for which Seller has indemnified Buyer or a Buyer Indemnified Party. (c) Whenever it is necessary for purposes of this Section 7.1 to determine the liability for Taxes of any Company or any Company Subsidiary for a taxable year or period that begins on or before and ends after the Closing Date, the determination shall be made by assuming that such Company or such Company Subsidiary had a taxable year or period which ended at the close of business on the Closing Date, except that exemptions, allowances or deductions that are calculated on an annual basis (such as the deduction for depreciation) shall be apportioned on a time basis. (d) Any payment by Buyer to Seller, or by Seller to Buyer, under this Agreement (other than interest payments) shall be treated by the parties as an adjustment to the Purchase Price paid to or received by such party, as the case may be. (e) Buyer shall be liable for all transfer, documentary, sales, use, stamp, registration and similar taxes arising from the Acquisition and the transactions contemplated herein, other than transfer taxes arising from the transfer of the Real Property pursuant to Section 5.25 of this Agreement. (f) The indemnities provided in this Section 7.1 shall continue until the expiration of the applicable statute of limitations and are not subject to any limitations on time for notice of claim set forth in Article IX.

Liability for Taxes and Related Matters. (a) Seller FDS shall be liable for and shall indemnify Buyer and each Buyer Indemnified Person Purchaser for (as defined in Section 9.2 hereofi) for all Taxes (including, without limitation, any obligation to contribute to the payment of a Tax determined on a consolidated, combined or unitary basis that are imposed with respect to a group of corporations that includes or included any the Company or any Company Subsidiary and Taxes resulting from any Company or any Company Subsidiary ceasing to be a member of any affiliated, combined or consolidated group of which such Company or such Company Subsidiary is now a member or attributable to the election to be made under Section 338(h)(10) of the Code and any state, local or foreign law equivalents) (i) imposed on any Company or any Company Subsidiary, or for which any the Company or any Company Subsidiary may otherwise be liable, for any Pre- Pre-Closing Tax Period, including including, without limitation, any and all Taxes triggered by a dividend of shares pursuant relating to Section 5.9 of this Agreementthe income, the dividends contemplated by Section 3.7(b) of this Agreement business, activities, operations, property or pursuant to Section 338(h)(10) assets of the Code (and including Company or any Taxes on Phase III income as a result of an election made under Section 338), provided that Subsidiary with respect to Taxes for Pre-Closing Tax Periods not reported on a consolidated, combined or unitary basis with Seller, Seller shall be obligated to indemnify Buyer and the Buyer Indemnified Persons only to the extent such Taxes are in excess of the respective Liability for such Taxes as set forth in the Financial Statements of the Companies and Company Subsidiaries as of December 31, 1999, (ii) imposed with respect to any corporation (other than any Company or any Company Subsidiary) that was a member of an affiliated, combined or consolidated group of which any Company or any Company Subsidiary was a member prior to the Closing Date, for any taxable year, or (iii) attributable to Seller's breach of any representation, warranty or covenant contained in Section 3.9 hereof or this Article VII of this Agreement, provided that Seller shall be obligated to indemnify Buyer and the Buyer Indemnified Persons for matters covered by the indemnity provisions of Section 7.11 hereof only to the extent provided in and pursuant to Section 7.11 hereof. Seller shall be entitled to any refund of Taxes of any Company or any Company Subsidiary (net of Taxes payable by such Company or such Company Subsidiary thereon) received in respect of any Pre-Closing Tax Period except and any such Taxes for which the Company or any Subsidiary is or may be or become severally liable under Treasury Regulation Section 1.1502-6 or 1.1502-78(b)(2) (or any similar provision under any applicable foreign, state or local law); provided, that FDS shall be obligated to make payments to Purchaser pursuant to this Section 7.6(a)(i) only to the extent that the cumulative amount that would otherwise be payable by FDS pursuant to this Section 7.6(a)(i) (notwithstanding this proviso) exceeds the cumulative amount of the accruals and reserves for Taxes reflected in the AH Financial Statements, as adjusted for such refund accruals or reserves arising in the ordinary course of business consistent with past practices after the date thereof, (ii) any and all Taxes resulting from a breach of the provisions of Section 3.7, and (iii) liabilities, costs, expenses (including reasonable expenses of investigation and attorneys’ fees and expenses), losses, damages, assessments, settlements or judgments arising out of or incident to the imposition, assessment or assertion of any Tax for which FDS is liable pursuant to (i) relates to Taxes for Pre-Closing Tax Periods not reported on a consolidated, combined or unitary basis with Seller, and (ii) is not above, including those incurred in excess the contest in good faith in appropriate proceedings relating to the imposition, assessment or assertion of any Tax, and any liability as transferee. The indemnification obligations of FDS contained in this Section 7.6(a) shall survive until 60 days after the expiration of the respective Tax Liability applicable statute of limitations, including any extensions thereof (provided, however, that the representations and warranties set forth in Section 3.7 shall only survive until the 18-month anniversary of the Closing, and Purchaser shall not be entitled to assert any claim for indemnification pursuant to clause (i) of the first sentence of this Section 7.6(a) after the expiration of such survival period; provided further, however, that if, on or prior to such expiration of the survival period, a notice of an indemnification claim under such clause shall have been given to FDS, then Purchaser shall continue to have the right to be indemnified with respect of such indemnification claim until such claim for indemnification has been satisfied or otherwise resolved), and are separate from the FDS’ other obligations in this Article VII and are not subject to the limitations on the Financial Statements provided pursuant to Section 3.6 hereof. (b) Buyer amount of indemnification otherwise contained in this Agreement. Purchaser shall be liable for and shall indemnify Seller FDS for (x) all Taxes that are imposed with respect to the Company or any Subsidiary, or for which the Company or any Subsidiary may otherwise be liable for all Taxes of any Company or any Company Subsidiary (other than Taxes for which Seller is responsible pursuant with respect to Section 7.1(a) hereof) for any Post-Closing Tax Period. Buyer shall be entitled to any refund of Taxes of any Company or any Company Subsidiary received in respect of any Post-Closing Tax Period except and (y) any and all liabilities, costs, expenses (including reasonable expenses of investigation and attorneys’ fees and expenses), losses, damages, assessments, settlements or judgments arising out of or incident to the extent such refund relates solely to Taxes for which Seller has indemnified Buyer imposition, assessment or a Buyer Indemnified Partyassertion of any Tax described in (x) above. (cb) Whenever For purposes of Section 7.6(a), whenever it is necessary for purposes of this Section 7.1 to determine the liability for Income Taxes of the Company and any Company or any Company Subsidiary for a portion of a taxable year or period that begins on or before and ends after the Closing Date, the determination of the Taxes of the Company or any such Subsidiary for the Pre-Closing Tax Period shall be made determined by assuming that such the Company or such Company and each Subsidiary had a taxable year or period which ended at the close as of business on and including the Closing Date, except that Taxes, exemptions, allowances or deductions that are calculated on an annual basis (basis, such as real or personal property Taxes and the deduction for depreciation) , shall be apportioned on a time pro rata basis. (c) FDS shall prepare and timely file or shall cause to be prepared and timely filed all Income Tax Returns by or with respect to the Company or any Subsidiary for any Pre-Closing Tax Period (but not including any Tax Return for a Straddle Tax Period) and shall pay or shall cause to be paid any Taxes with respect to such Tax Returns. FDS shall provide to Purchaser drafts of all Tax Returns prepared pursuant to this Section 7.6(c), together with appropriate supporting information and schedules, at least 30 calendar days prior to the due date for the filing of such Tax Returns (including extensions) or such shorter period as is necessary to allow for the timely filing of any such Tax Return. At least 15 calendar days prior to the due date for the filing of such Tax Returns (including extensions), Purchaser shall notify FDS of the existence of any objection (specifying in reasonable detail the nature and basis of such objection) Purchaser may have to any items set forth on such draft Tax Returns (a “Dispute Notice”). FDS and Purchaser agree to consult and resolve in good faith any such objection. In the case of each Tax Return described in this Section 7.6(c), unless Purchaser has timely delivered a Dispute Notice, Purchaser shall file such Tax Return as prepared by FDS. If Purchaser submits a Dispute Notice and FDS and Purchaser cannot resolve any such objection, the matter shall be referred to a nationally-recognized accounting firm, which shall resolve any disputed item within 30 days of having the item referred to them pursuant to such procedures as it may require. The costs, fees and expenses of such accounting firm shall be borne equally by FDS and Purchaser. The resolution of any dispute by the accounting firm shall be binding on the parties hereto, and FDS and Purchaser agree to act in accordance with the decision of the accounting firm in the preparation, filing and audit of any Tax Return. (d) Any Purchaser shall prepare and timely file or shall cause to be prepared and timely filed all Tax Returns that are required to be filed by or with respect to the Company or any Subsidiary for which FDS is not responsible pursuant to Section 7.6(c). On the Closing Date, FDS shall provide to Purchaser a list of all Tax Returns for any Pre-Closing Tax Period that Purchaser shall be required to prepare and timely file pursuant to the preceding sentence. Purchaser shall provide to FDS drafts of all Income Tax Returns that reflect any Straddle Tax Period and a statement indicating the amount of Income Tax shown on such Income Tax Return that is allocable to FDS pursuant to Section 7.6(a), together with appropriate supporting information and schedules, at least 30 calendar days prior to the due date for the filing of such Income Tax Returns (including extensions) or such shorter period as is necessary to allow for the timely filing of any such Income Tax Return. At least 15 calendar days prior to the due date for the filing of such Income Tax Returns (including extensions), FDS shall deliver any Dispute Notice to Purchaser. Purchaser and FDS agree to consult and resolve in good faith any such objection. In the case of each Tax Return described in this Section 7.6(d), unless FDS has timely delivered a Dispute Notice, not later than 5 calendars days before the due date for payment of Taxes with respect to such Tax Return, FDS shall pay to Purchaser an amount equal to the total amount of Taxes reflected on the Tax Return which are the responsibility of FDS (net of any payments made prior to the Closing Date in respect of such Taxes, whether as estimated Taxes or otherwise), and Purchaser shall (i) file such Tax Returns as prepared by Buyer Purchaser and (ii) pay to Sellerthe appropriate Governmental Entity (A) any such amount paid to Purchaser by FDS and (B) an amount equal to the sum of the accruals and reserves for sales and payroll Taxes reflected in the AH Financial Statements, as adjusted for such accruals or by Seller reserves arising in the ordinary course of business consistent with past practices after the date thereof (net of any payments made prior to Buyerthe Closing Date in respect of such Taxes, under whether as estimated Taxes or otherwise). The amount of Taxes shown to be due on any Tax Return filed in accordance with this Agreement (other than interest paymentsSection 7.6(d) shall be treated final and binding upon the parties hereto, subject to any adjustment resulting from Tax contests. If FDS submits a Dispute Notice and Purchaser and FDS cannot resolve any such objection, the matter shall be referred to a nationally-recognized accounting firm, which shall resolve any disputed item within 30 days of having the item referred to them pursuant to such procedures as it may require. The costs, fees and expenses of such accounting firm shall be borne equally by Purchaser and FDS. The resolution of any dispute by the accounting firm shall be binding on the parties as an adjustment hereto, and Purchaser and FDS agree to act in accordance with the Purchase Price paid to or received by such partydecision of the accounting firm in the preparation, as the case may befiling and audit of any Tax Return. (e) Buyer Purchaser shall promptly notify FDS in writing upon receipt by Purchaser, the Company or any Subsidiary of notice of any pending or threatened Income Tax or franchise tax audits or assessments which may affect the tax liabilities of the Company or any Subsidiary for which FDS would be required to indemnify Purchaser pursuant to Section 7.6(a). FDS shall have the right to represent the Company’s or any Subsidiary’s interests in any such tax audit or administrative or court proceeding relating to any Pre-Closing Tax Period at its expense. Purchaser shall be liable entitled to attend and participate in any such proceeding at their sole cost and expense. If FDS elects to control the conduct of any Income Tax or franchise tax audit pursuant to this Section 7.6(e), then FDS may not settle, dispose or otherwise compromise any such proceeding that would affect the tax liability of the Company or any Subsidiary for any Post-Closing Tax Period without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed. Purchaser shall have the right to control any proceeding which FDS does not elect to control under this Section 7.6(e), or with respect to which FDS does not meet the requirements of this Section 7.6(e). (f) After the Closing Date, each of FDS and Purchaser shall (i) assist and cause their respective Affiliates to assist the other party in preparing any Tax Returns that such other party is responsible for preparing and filing in accordance with this Section 7.6, (ii) cooperate fully in preparing for any audits of, or disputes with taxing authorities regarding, any Tax Returns of the Company or the Subsidiaries, (iii) make available to the other party and to any taxing authority as reasonably requested all information, records, and documents relating to the Taxes of the Company or the Subsidiaries, (iv) provide timely written notice to the other party of any pending or threatened Tax audits or assessment of the Company or the Subsidiaries for taxable periods for which the other party may have a liability under this Section 7.6, and (v) furnish the other party with copies of all correspondence received from any taxing authority in connection with any Tax audit or information request with respect to any such taxable period. (g) The obligations of the parties set forth in this Section 7.6 shall be unconditional and absolute and shall remain in effect until 60 days after the expiration of the statute of limitations, including any extensions thereof, with respect to any particular Taxes that may be subject to indemnification under Section 7.6(a). (h) FDS shall, and shall cause its Affiliates to, take appropriate action to terminate all tax sharing agreements and arrangements between the Company and/or the Subsidiaries, on the one hand, and FDS and its Affiliates (other than those agreements and arrangements entered into only between the Company and the Subsidiaries), on the other hand, as of the Closing Date with respect to all taxable periods, past, current and future, and from and after the Closing Date, the Company and the Subsidiaries shall have no further liabilities under any such agreements or arrangements, and any such agreements or arrangements shall have no further force or effect for any taxable period (whether past, current or future). (i) In the event of a conflict between any of the provisions of this Section 7.6 and any other provision of this Agreement, the provisions of this Section 7.6 shall control. (j) All transfer, documentary, sales, use, stamp, registration and similar taxes arising from other such Taxes, and all conveyance fees, recording charges and other fees and charges incurred in connection with the Acquisition and consummation of the transactions contemplated hereinby this Agreement shall be paid by FDS, and Purchaser will, at its own expense, file all necessary Tax Returns and other than transfer taxes arising from documentation with respect to all such Taxes, fees and charges, FDS will cooperate with Purchaser in the transfer preparation of any such Tax Returns and other documentation and, if required by applicable Law, FDS will, and will cause its Affiliates to, join in the Real Property pursuant execution of any such Tax Returns and other documentation. At least 15 calendar days prior to Section 5.25 the due date for the filing of this Agreement. any such Tax Return (f) The indemnities provided including extensions), Purchaser shall deliver a draft of any such Tax Return and other documentation to FDS for its review and comment. Purchaser and FDS agree to consult and resolve in this Section 7.1 shall continue until the expiration of the applicable statute of limitations and are not subject good faith any such objection to any limitations on time for notice of claim set forth in Article IXsuch Tax Return and other documentation.

Liability for Taxes and Related Matters. (a) Seller shall be liable for and shall indemnify Buyer and each Buyer Indemnified Person (as defined in Section 9.2 hereof) for all Taxes (including, without limitation, any obligation to contribute to the payment of a Tax determined on a consolidated, combined or unitary basis with respect to a group of corporations that includes or included any Company or any Company Subsidiary and Taxes resulting from any Company or any Company Subsidiary ceasing to be a member of any affiliated, combined or consolidated group of which such Company or such Company Subsidiary is now a member or attributable to the election to be made under Section 338(h)(10) of the Code and any state, local or foreign law equivalents) (i) imposed on any Company or any Company Subsidiary, or for which any Company or any Company Subsidiary may otherwise be liable, for any Pre- Pre-Closing Tax Period, including without limitation, any Taxes triggered by a dividend of shares pursuant to Section 5.9 of this Agreement, the dividends contemplated by Section 3.7(b) of this Agreement or pursuant to Section 338(h)(10) of the Code (and including any Taxes on Phase III income as a result of an election made under Section 338), provided that with respect to Taxes for Pre-Closing Tax Periods not reported on a consolidated, combined or unitary basis with Seller, Seller shall be obligated to indemnify Buyer and the Buyer Indemnified Persons only to the extent such Taxes are in excess of the respective Liability for such Taxes as set forth in the Financial Statements of the Companies and Company Subsidiaries as of December 31, 1999, (ii) imposed with respect to any corporation (other than any Company or any Company Subsidiary) that was a member of an affiliated, combined or consolidated group of which any Company or any Company Subsidiary was a member prior to the Closing Date, for any taxable year, or (iii) attributable to Seller's breach of any representation, warranty or covenant contained in Section 3.9 hereof or this Article VII of this Agreement, provided that Seller shall be obligated to indemnify Buyer and the Buyer Indemnified Persons for matters covered by the indemnity provisions of Section 7.11 hereof only to the extent provided in and pursuant to Section 7.11 hereof. Seller shall be entitled to any refund of Taxes of any Company or any Company Subsidiary (net of Taxes payable by such Company or such Company Subsidiary thereon) received in respect of any Pre-Closing Tax Period except to the extent such refund (i) relates to Taxes for Pre-Closing Tax Periods not reported on a consolidated, combined or unitary basis with Seller, and (ii) is not in excess of the respective Tax Liability set forth on the Financial Statements provided pursuant to Section 3.6 hereof. (b) Buyer shall be liable for and shall indemnify Seller for all Taxes of any Company or any Company Subsidiary (other than Taxes for which Seller is responsible pursuant to Section 7.1(a) hereof) for any Post-Closing Tax Period. Buyer shall be entitled to any refund of Taxes of any Company or any Company Subsidiary received in respect of any Post-Closing Tax Period except to the extent such refund relates solely to Taxes for which Seller has indemnified Buyer or a Buyer Indemnified Party. (c) Whenever it is necessary for purposes of this Section 7.1 to determine the liability for Taxes of any Company or any Company Subsidiary for a taxable year or period that begins on or before and ends after the Closing Date, the determination shall be made by assuming that such Company or such Company Subsidiary had a taxable year or period which ended at the close of business on the Closing Date, except that exemptions, allowances or deductions that are calculated on an annual basis (such as the deduction for depreciation) shall be apportioned on a time basis. (d) Any payment by Buyer to Seller, or by Seller to Buyer, under this Agreement (other than interest payments) shall be treated by the parties as an adjustment to the Purchase Price paid to or received by such party, as the case may be. (e) Buyer shall be liable for all transfer, documentary, sales, use, stamp, registration and similar taxes arising from the Acquisition and the transactions contemplated herein, other than transfer taxes arising from the transfer of the Real Property pursuant to Section 5.25 of this Agreement. (f) The indemnities provided in this Section 7.1 shall continue until the expiration of the applicable statute of limitations and are not subject to any limitations on time for notice of claim set forth in Article IX.