Common use of Miscellaneous Tax Matters Clause in Contracts

Miscellaneous Tax Matters. (a) Any sales, use, property transfer or gains, documentary, stamp, registration, recording or similar Tax (including, for certainty, goods and services tax, harmonized sales tax and land transfer tax) imposed on or payable in connection with the sale, transfer, assignment, conveyance or delivery of the Designation Rights, the Acquired Assets or the Assumed Liabilities (or any Excluded Asset pursuant to Section 2.8(d)) (“Transfer Taxes”) shall be borne solely by Buyer. Sellers and Buyer shall use reasonable efforts and cooperate in good faith in all matters relating to such Transfer Taxes (including with respect to the application of any exemption therefrom or reduction thereof). Buyer shall prepare and, except to the extent required by applicable Law to be filed by Sellers, Buyer shall file all necessary Tax Returns or other documents with respect to all such Transfer Taxes; provided, however, that in the event any such Tax Return requires execution by the other Party, the preparing Party shall prepare and deliver to the other Party a copy of such Tax Return at least three (3) Business Days before the due date thereof, and such other Party shall promptly execute such Tax Return and return it for filing. If Seller is required to file any such Tax Return, no later than three (3) Business Days before the due date of such Tax Return Buyer shall pay to Sellers the amount of Transfer Taxes shown on such Tax Return. Subject to the other provisions of this Agreement, the Parties shall reasonably cooperate with each other in any reasonable and lawful arrangement designed to minimize any applicable Transfer Taxes. (b) Buyer and Sellers agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating to the Acquired Assets, the Properties, the Business or the Assumed Liabilities as is reasonably necessary for the filing of all Tax Returns, the making of any election relating to Taxes, and the preparation, prosecution or defense of or for any Tax Proceeding. Unless Buyer makes the election under Section 2.12(b) to treat all the transactions described in Article II as Designated Sale Transactions (resulting in no transfer of Sellers Tax attributes to Buyer), to the extent not addressed by the foregoing, Buyer and Sellers shall also furnish or cause to be furnished to each other all documentation and information of Sellers’ or any of their Affiliates as reasonably requested in connection with (i) the treatment of the Transactions as one or more reorganizations under section 368 of the Code and/or in connection with qualifying for the application of section 382(l)(5) of the Code and (ii) the Tax basis, losses and credits (including carryovers), income, gains, deductions and other attributes or Tax items of Buyer or an Assignee that are dependent in whole or in part by the treatment of any such Tax item in any Pre-Assignment Tax Period. Any out-of-pocket expenses incurred in furnishing such information or assistance pursuant to this Section 9.3(b) shall be borne by the Party requesting it. Furthermore, except for any refund, asset or amount described in Section 2.2(h), Sellers shall pay (or cause to be paid) to Buyer any Tax refund actually received by Sellers or any Affiliate of Sellers that is an Acquired Asset, and any such refunds credited against future Taxes of the Sellers or their Subsidiaries (including any interest paid thereon and net of any reasonable out-of-pocket costs and any Taxes incurred in respect of the receipt thereof). Upon Buyer’s reasonable request and at Buyer’s sole cost and expense, Sellers shall (A) file (or cause to be filed) all Tax Returns (including amended Tax Returns) or other documents required to obtain such refunds and (B) take any such other action as may be reasonable and practicable to preserve Sellers’ ability to file a refund claim for any Tax year. Any payments required to be made under this Section 9.3(b) shall be made in immediately available funds, to an account or accounts as directed by Buyer, within ten (10) days after the actual receipt of the refund or the application of any such refunds as a credit against a future tax of Sellers or any Affiliate of Sellers. (c) Buyer shall pay (or cause to be paid) to Sellers any Tax refund, asset or amount described in Section 2.2(h) that is actually received by any Subsidiary of any Seller that is an Acquired Asset, Buyer or any Affiliate of Buyer, and any such refunds or amount credited against future Taxes to which any Subsidiary of any Seller that is an Acquired Asset, Buyer or any Affiliate of Buyer become entitled (including any interest paid thereon and net of any reasonable out-of-pocket costs and any Taxes incurred in respect of the receipt thereof). Upon Sellers’ reasonable request and at Sellers’ sole cost and expense, Buyer shall (A) file (or cause to be filed) all Tax Returns (including amended Tax Returns) or other documents required to obtain such refunds and (B) take any such other action as may be reasonable and practicable to preserve Buyer’s ability to file a refund claim for any Tax year. Any payments required to be made under this Section 9.3(c) shall be made in immediately available funds, to an account or accounts as directed by Sellers, within ten (10) days after the actual receipt of the refund or the application of any such refunds as a credit against a future tax of any Subsidiary of any Seller that is an Acquired Asset, Buyer or any Affiliate of Buyer. (d) As soon as practicable (and in any event within ninety (90) days) after the Closing Date, Buyer shall deliver to Sellers a schedule allocating the Purchase Price (including any Assumed Liabilities treated as consideration for the Acquired Assets for Tax purposes) (the “Allocation Schedule”). The Allocation Schedule shall allocate the Purchase Price among the Sellers and among the Acquired Assets acquired from each Seller, and shall be prepared in accordance with Section 1060 of the Code if Buyer makes the election under Section 2.12(b) to treat all the transactions described in Article II as Designated Sale Transactions (resulting in no transfer of Sellers’ Tax attributes to Buyer), and in any case shall be prepared in accordance with applicable law to the extent necessary to comply with reporting in respect of applicable Transfer Taxes. The Allocation Schedule shall be deemed final unless Sellers notify Buyer in writing that Sellers object to one or more items reflected in the Allocation Schedule within forty-five (45) days after delivery of the Allocation Schedule. In the event of any such objection, Buyer and Sellers shall negotiate in good faith to resolve such dispute; provided, however, that if Buyer and Sellers are unable to resolve any dispute with respect to the Allocation Schedule within sixty (60) days after the delivery of the Allocation Schedule, such dispute shall be resolved by the CPA Firm. The fees and expenses of the CPA Firm in connection therewith shall be borne equally by Buyer and Sellers. Each of Buyer and Sellers agrees to file its respective federal, state and local Tax returns in accordance with the Allocation Schedule, and any adjustments to the Purchase Price pursuant to this Section 9.3 shall be allocated in a manner consistent with the Allocation Schedule. For the avoidance of doubt, the Parties shall cooperate in determining the portion of the Purchase Price allocable to the Acquired Assets that are subject to a Transfer Tax prior to the due date of the Tax Return required to be filed in connection with such Transfer Taxes; provided, that if the parties do not agree with respect to such determination, such matter shall be resolved in accordance with the determination of the CPA Firm; provided further, that such Tax Return will be adjusted, as applicable, consistent with the procedures described above, to reflect any adjustments to the allocated Purchase Price.

Miscellaneous Tax Matters. (a) Any salesFollowing the date hereof and for so long as Purchaser is obligated to administer any Administered Contract under the Administrative Services Agreement, use, property transfer or gains, documentary, stamp, registration, recording or similar Tax (including, for certainty, goods and services tax, harmonized sales tax and land transfer tax) imposed on or payable in connection with the sale, transfer, assignment, conveyance or delivery of the Designation Rights, the Acquired Assets or the Assumed Liabilities (or any Excluded Asset pursuant to Section 2.8(d)) (“Transfer Taxes”) shall be borne solely by Buyer. Sellers and Buyer shall use reasonable efforts to promptly notify Purchaser if any Seller or any Affiliate of any Seller receives, and cooperate Purchaser shall use reasonable efforts to promptly notify Sellers if Purchaser or any of its Affiliates receives, written notice (i) that a Product Tax Failure may have occurred with respect to any Administered Contract, (ii) that any Administered Contract is in good faith in all matters breach of the Product Tax Representations, (iii) of a PTF Query, or (iv) relating to any matter that is reasonably expected to give rise to a claim for indemnity under this Agreement with respect to any matter related to Taxes, in each case including the receipt of any written request for information relating to any such Transfer Taxes (matter. To the extent possible without waiver of any legal or other privilege or “work- product” doctrine, the parties shall keep each other reasonably informed and provide prompt updates with respect to such matters, including with respect to the application of any exemption therefrom or reduction thereof). Buyer shall prepare and, except to the extent required by applicable Law to be filed by Sellers, Buyer shall file all necessary Tax Returns or other documents responses provided with respect to all such Transfer Taxes; provided, however, that the matters set forth in the event any such Tax Return requires execution by the other Party, the preparing Party shall prepare and deliver to the other Party a copy of such Tax Return at least three (3) Business Days before the due date thereof, and such other Party shall promptly execute such Tax Return and return it for filing. If Seller is required to file any such Tax Return, no later than three (3) Business Days before the due date of such Tax Return Buyer shall pay to Sellers the amount of Transfer Taxes shown on such Tax Return. Subject to the other provisions of this Agreement, the Parties shall reasonably cooperate with each other in any reasonable and lawful arrangement designed to minimize any applicable Transfer Taxesnotice. (b) Buyer Sellers shall (and Sellers agree to furnish or shall cause to be furnished to each other, upon request, as promptly as practicable, such information their Affiliates to) timely file and assistance prepare all Tax Returns relating to the Acquired AssetsAdministered Contracts, the Properties, Transferred Assets and the Business that Sellers and their Affiliates are required to prepare and file under Applicable Law or the Assumed Liabilities as is reasonably necessary for the filing of all Tax Returns, the making of any election relating to Taxes, and the preparation, prosecution or defense of or for any Tax Proceeding. Unless Buyer makes the election under Section 2.12(b) to treat all the transactions described in Article II as Designated Sale Transactions (resulting in no transfer of Sellers Tax attributes to Buyer), pursuant to the extent not addressed by the foregoing, Buyer and Sellers shall also furnish or cause to be furnished to each other all documentation and information of Sellers’ or any of their Affiliates as reasonably requested in connection with (i) the treatment terms of the Transactions as one or more reorganizations under section 368 of the Code and/or in connection with qualifying for the application of section 382(l)(5) of the Code and (ii) the Tax basis, losses and credits (including carryovers), income, gains, deductions and other attributes or Tax items of Buyer or an Assignee that are dependent in whole or in part by the treatment of any such Tax item in any Pre-Assignment Tax PeriodAncillary Agreements. Any out-of-pocket expenses incurred in furnishing such information or assistance pursuant to this Section 9.3(b) shall be borne by the Party requesting it. Furthermore, except for any refund, asset or amount described in Section 2.2(h), Sellers shall pay (or cause to be paid) to Buyer any Tax refund actually received by Sellers or any Affiliate of Sellers that is an Acquired Asset, and any such refunds credited against future Taxes of the Sellers or their Subsidiaries (including any interest paid thereon and net of any reasonable out-of-pocket costs and any Taxes incurred in respect of the receipt thereof). Upon Buyer’s reasonable request and at Buyer’s sole cost and expense, Sellers shall (A) file (or cause to be filed) all Such Tax Returns (including amended Tax Returns) or other documents required to obtain such refunds and (B) take any such other action as may be reasonable and practicable to preserve Sellers’ ability to file a refund claim for any Tax year. Any payments required to be made under this Section 9.3(b) shall be made in immediately available funds, to an account or accounts as directed by Buyer, within ten (10) days after the actual receipt of the refund or the application of any such refunds as a credit against a future tax of Sellers or any Affiliate of Sellers. (c) Buyer shall pay (or cause to be paid) to Sellers any Tax refund, asset or amount described in Section 2.2(h) that is actually received by any Subsidiary of any Seller that is an Acquired Asset, Buyer or any Affiliate of Buyer, and any such refunds or amount credited against future Taxes to which any Subsidiary of any Seller that is an Acquired Asset, Buyer or any Affiliate of Buyer become entitled (including any interest paid thereon and net of any reasonable out-of-pocket costs and any Taxes incurred in respect of the receipt thereof). Upon Sellers’ reasonable request and at Sellers’ sole cost and expense, Buyer shall (A) file (or cause to be filed) all Tax Returns (including amended Tax Returns) or other documents required to obtain such refunds and (B) take any such other action as may be reasonable and practicable to preserve Buyer’s ability to file a refund claim for any Tax year. Any payments required to be made under this Section 9.3(c) shall be made in immediately available funds, to an account or accounts as directed by Sellers, within ten (10) days after the actual receipt of the refund or the application of any such refunds as a credit against a future tax of any Subsidiary of any Seller that is an Acquired Asset, Buyer or any Affiliate of Buyer. (d) As soon as practicable (and in any event within ninety (90) days) after the Closing Date, Buyer shall deliver to Sellers a schedule allocating the Purchase Price (including any Assumed Liabilities treated as consideration for the Acquired Assets for Tax purposes) (the “Allocation Schedule”). The Allocation Schedule shall allocate the Purchase Price among the Sellers and among the Acquired Assets acquired from each Seller, and shall be prepared in accordance with Section 1060 of the Code if Buyer makes the election under Section 2.12(b) to treat all the transactions described in Article II as Designated Sale Transactions (resulting in no transfer of Sellers’ Tax attributes to Buyer)past practices and, and in any case shall be prepared in accordance with applicable law to the extent such Tax Returns include an amount of Tax that Purchaser or any of its Affiliates is required to pay or for which Purchaser or any of its Affiliates is required to reimburse Sellers or its Affiliates under this Agreement or any Ancillary Agreement, or if such Tax Returns (or positions taken thereon) would be reasonably expected to adversely affect Purchaser or any of its Affiliates, Sellers shall (or shall cause) such Tax Returns to be submitted to Purchaser for review and comment no later than 20 days prior to the date such return is required to be filed. Sellers and their Affiliates shall cause all such Tax Returns to be true, complete and correct upon filing and thereafter, and Sellers shall, subject to the terms of the Administrative Services Agreement, pay all Taxes with respect to such Tax Returns within the time and in the manner prescribed by Applicable Law. (c) Following the Closing Date and for so long as Purchaser is obligated to administer any Administered Contract under the Administrative Services Agreement: (i) Except as otherwise provided in this Section 11.03(c) or with the written consent of Sellers and Purchaser, each of Purchaser and Sellers shall not and shall cause their respective Affiliates to not (A) notify any Contractholder, Governmental Entity or other third party of a Product Tax Failure or alleged Product Tax Failure; (B) take any action with respect to correcting, remediating or otherwise altering any Administered Contract in order to correct a Product Tax Failure or (C) with respect to a particular Administered Contract or group of Administered Contracts, voluntarily subject any Administered Contract to third party testing for purposes of determining whether there is a Product Tax Failure (collectively and individually, a “Product Tax Action”). To the extent that (A) Purchaser or Sellers reasonably believe that a Product Tax Action is necessary for Sellers or their Affiliates or Purchaser or its Affiliates to comply with reporting the Code as it relates to the Administered Contracts, (B) a PTF Query has been received by any party or its Affiliates, (C) the failure to take a Product Tax Action is reasonably likely to result in a party breaching its obligations under this Agreement or any Ancillary Agreement or (D) Purchaser or its Affiliates, on the one hand, or Sellers or their Affiliates, on the other hand, have breached Section 11.03(c)(i)(A) and the non-breaching parties reasonably believe that a Product Tax Action should be taken with respect of applicable Transfer Taxes. The Allocation Schedule to the relevant actual or alleged Product Tax Failure, Purchaser or Sellers (as the case may be) shall be deemed final unless Sellers use reasonable efforts to promptly notify Buyer in writing that Sellers object to one or more items reflected in the Allocation Schedule within forty-five (45) days after delivery other party of the Allocation Scheduleneed to take such Product Tax Action with a description of the reasons for such Product Tax Action. In the event of any such objectionevent, Buyer (1) Sellers and Sellers Purchaser shall negotiate in good faith determine which party has the greater potential liability and/or Loss (based on reasonable estimates and present value) with respect thereto taking into account, among other items, (y) all indemnification obligations pursuant to resolve the terms of this Agreement and (z) Losses that are lost profits, (2) the party with the greater potential liability as determined pursuant to clause (1) shall control such disputeaction if it so elects, (3) if the party with the greater potential liability as determined pursuant to clause (1) waives such right, then the other party shall control such Product Tax Action. The party that controls the Product Tax action shall reasonably address such Product Tax Action, which shall include the actions described in clause (iii) below; provided, however, that if Buyer and the non-controlling party reasonably determines that the controlling party has failed reasonably to take any Product Tax Action described in this clause (ii), such party shall provide notice of such failure to the other party, and, if such party determines that such failure has not been reasonably corrected by the other party within 15 days after receiving such notice, may elect to take control of such Product Tax Action. Notwithstanding any other provision of this Agreement, controlling a Product Tax Action shall in no event give Purchaser the authority to bind Sellers are unable to resolve any dispute with respect to the Allocation Schedule within sixty settlement, remediation or discharge of any Product Tax Action relating to the actual or alleged Product Tax Failure without Sellers’ consent (60which may be withheld at Sellers’ sole discretion). In the event that Sellers control a Product Tax Action, Sellers shall have the authority to bind Purchaser with respect to the settlement, remediation or discharge of such actual or alleged Product Tax Failure only with Purchaser’s consent, not to be unreasonably withheld, conditioned or delayed. In connection with any settlement, remediation or discharge of a Product Tax Failure, Sellers shall consider in good faith any adverse effect on Purchaser of such settlement, remediation or discharge. If one party notifies the other party that the notifying party wishes to settle, remediate or discharge an actual or alleged Product Tax Failure that relates to a Product Tax Action and the notified party chooses not to settle, remediate or discharge (or not to consent to such settlement, remediation or discharge) at such time, the notified party shall indemnify the notifying party for the amount by which the notifying party’s ultimate liability with respect to such actual or alleged Product Tax Failure exceeds the amount for which the notifying party would have been liable in connection with such settlement, remediation and discharge at the time of the notifying party’s requested settlement, remediation or discharge if such item had been settled, remediated or discharged. (ii) Sellers and Purchaser agree that, for purposes of clause (ii) above, the party controlling a Product Tax Action with respect to a PTF Query shall be required actively to respond to such inquiry in a reasonably prompt manner (but in no event after any deadline imposed with respect to a PTF Query by a Governmental Entity, regulator or under the terms of an XXX) during the pendency of such PTF Query (or any related additional or subsequent PTF Query). (iii) Sellers and Purchaser agree that the limitations on Product Tax Actions set forth in this Section 11.03(c) shall have no further force or effect upon the parties upon the receipt of a Claim Notice with respect to any matter reasonably relating to such Claim Notice (or the matters set forth therein), and Sellers and Purchaser shall, to the extent provided in Section 10.02, be free to conduct the defense of, or prosecute, any Action with respect to such Claim Notice. (iv) The party not controlling the taking of a Product Tax Action shall reasonably cooperate and cause its Affiliates to reasonably cooperate with the other party in the taking of such actions. To the extent a party does not control the taking of a Product Tax Action, such party may participate in all actions taken by the other party. Such participating party shall pay its own participation cost. The party controlling the taking of any such action shall, to the extent possible without waiver of any privilege or “work-product” doctrine, provide to the other party, for such party’s review and comments, copies of any related materials, documents or correspondence submitted to a Governmental Entity, copies of all reports and studies relating to the testing of any Administered Contracts for such Product Tax Failure and the copies of any memorandum or opinion prepared by counsel or other advisors with respect to such matter. (d) Purchaser shall be liable for all expenses incurred by Purchaser or its Affiliates with respect to any voluntary investigation undertaken by Purchaser or its Affiliates to determine if an Administered Contract has experienced a Product Tax Failure and shall not seek reimbursement of such expenses from Sellers or its Affiliates, unless (i) (x) it is demonstrated that such Administered Contracts experienced a Product Tax Failure (other than a Purchaser Product Tax Failure) or (y) such expenses relate to the settlement, remediation or discharge of any Action in compliance with Section 11.03(c) relating to an alleged Product Tax Failure (other than a Purchaser Product Tax Failure) (including the entering into of any closing agreement with a Governmental Entity), (ii) such expenses resulted from actions taken by Purchaser or its Affiliates at the express direction or request of Sellers or their Affiliates, or to the extent that Sellers or their Affiliates consented to such expenses, in each case, except with respect to a Purchaser Product Tax Failure or (iii) such expenses relate to actions required to be taken under Section 11.03(e) (other than with respect to Purchaser Product Tax Failure) (clauses (i) through (iii) collectively, the “Seller Indemnified Expenses”). (e) Each party hereto shall (i) except to the extent contrary with Applicable Law, comply with and cause its Affiliates to comply with the terms or requirements of any agreements entered into by Sellers or their Affiliates or by Purchaser or its Affiliates, as the case may be, that settle, compromise, remediate or correct any actual, proposed or alleged Product Tax Failure with respect to an Administered Contract to the extent such action by such party is not in breach of any covenant set forth in this Agreement or the Ancillary Agreements and (ii) comply with and cause its Affiliates to comply with any final determination of a Governmental Entity with appropriate jurisdiction relating to a Product Tax Failure of an Administered Contract; provided that a final determination shall include any determination that the relevant party fails to timely appeal. (f) Purchaser and Sellers acknowledge and agree that the transactions contemplated by the Transaction Documents constitute an overall transaction subject to sections 1060 of the Code and the Treasury Regulations promulgated thereunder (the “Applicable Asset Acquisition”). (i) Within thirty (30) days after the delivery conclusion of Closing Date, Purchaser shall prepare and deliver to Sellers a statement (the “Allocation”), allocating the “aggregate deemed sale price” (as defined and determined under such Treasury Regulations) among the assets acquired or deemed acquired in the Applicable Asset Acquisition and making such other determinations contemplated by such provisions, all as required by such provisions. (For the avoidance of doubt, Sellers and Purchaser acknowledge and agree that the assets acquired or deemed acquired in the Applicable Asset Acquisition include the intangible capital asset represented by the excess of the “aggregate deemed sale price” over the aggregate value of the tangible and fixed-value intangible assets acquired or deemed acquired under this Agreement.) Sellers shall notify Purchaser of any disagreement with the proposed Allocation Schedule, within ten (10) Business Days of Sellers’ receipt of such Allocation. Any dispute regarding the Allocation shall be resolved pursuant to the procedures set forth below in Section 11.03(f)(ii). Sellers and Purchaser shall (x) be bound by the CPA Firm. The fees Allocation for purposes of determining any Taxes; (y) prepare and expenses of file, and cause their Affiliates to prepare and file, their Tax Returns on a basis consistent with the CPA Firm in connection therewith shall be borne equally by Buyer Allocation; and Sellers. Each of Buyer (z) take no position, and Sellers agrees cause their Affiliates to file its respective federaltake no position, state and local Tax returns in accordance inconsistent with the Allocation Scheduleon any applicable Tax Return or in any proceeding before any Tax Authority or otherwise. In the event that the Allocation is disputed by any Tax Authority, the party receiving notice of the dispute shall promptly notify the other party hereto, and Sellers and Purchaser agree to use their commercially reasonable efforts to defend such Allocation in any audit, contest or similar proceeding. To the extent permissible under Applicable Law, Sellers and Purchaser will account for any adjustments made to the Purchase Price pursuant to this Section 9.3 shall be allocated consideration payable under the Transaction Documents (including any indemnification payments) in a manner consistent with the Allocation ScheduleAllocation. (ii) If Sellers and Purchaser fail to agree on the Allocation, such matter may be referred by either Sellers or Purchaser to PricewaterhouseCoopers LLP is not available, another independent certified public accounting firm of national standing and reputation mutually acceptable to Purchaser and such Seller, which firm shall not have a material relationship with Sellers or any of their Affiliates or Purchaser or any of its Affiliates (the “Neutral Auditor”) for binding arbitration. For the avoidance Within thirty (30) days of doubtsuch referral, the Parties each of Sellers and Purchaser shall cooperate in determining the portion of the Purchase Price allocable deliver to the Acquired Assets Neutral Auditor copies of any schedules or documentation that are subject may reasonably be required by the Neutral Auditor to make its determination, together with a Transfer Tax prior to the due date of the Tax Return required to be filed in connection with memorandum setting forth such Transfer Taxes; provided, that if the parties do not agree party’s position with respect to such determination, such matter arbitration. The Neutral Auditor shall be resolved in accordance render a determination consistent with the provisions of this Agreement and the Ancillary Agreements within thirty (30) days of its receipt of the last submission. The determination of the CPA Firm; provided furtherNeutral Auditor shall be final and binding on all parties. The costs incurred in retaining the Neutral Auditor shall be shared equally, that such Tax Return will be adjusted, as applicable, consistent with the procedures described above, to reflect any adjustments to the allocated Purchase Pricefifty percent (50%) by Sellers and fifty percent (50%) by Purchaser.

Miscellaneous Tax Matters. From and after the Closing Date: (a) Any salesThe Buyer, use, property transfer or gains, documentary, stamp, registration, recording or similar Tax (including, for certainty, goods Total and services tax, harmonized sales tax and land transfer tax) imposed on or payable in connection with the sale, transfer, assignment, conveyance or delivery of the Designation Rights, the Acquired Assets or the Assumed Liabilities (or any Excluded Asset pursuant to Section 2.8(d)) (“Transfer Taxes”) shall be borne solely by Buyer. Sellers and Buyer shall use reasonable efforts and cooperate in good faith in all matters relating to such Transfer Taxes (including with respect to the application of any exemption therefrom or reduction thereof). Buyer shall prepare and, except to the extent required by applicable Law to be filed by Sellers, Buyer shall file all necessary Tax Returns or other documents with respect to all such Transfer Taxes; provided, however, that in the event any such Tax Return requires execution by the other Party, the preparing Party shall prepare and deliver to the other Party a copy of such Tax Return at least three (3) Business Days before the due date thereof, and such other Party shall promptly execute such Tax Return and return it for filing. If Seller is required to file any such Tax Return, no later than three (3) Business Days before the due date of such Tax Return Buyer shall pay to Sellers the amount of Transfer Taxes shown on such Tax Return. Subject to the other provisions of this Agreement, the Parties shall reasonably cooperate with each other in any reasonable and lawful arrangement designed to minimize any applicable Transfer Taxes. (b) Buyer and Sellers agree to furnish or cause to be furnished to each otherother and their counsel, accountants and other authorized representatives, upon request, as promptly as practicable, such information and assistance relating to any of the Acquired AssetsGroup Companies (including access to books and records, the Propertiesemployees, the Business or the Assumed Liabilities contractors and representatives) as is reasonably necessary for the filing of all Tax Returns, the calculation of Pre-Closing Taxes and Post-Closing Taxes, the making of any election relating related to Taxes, the preparation for any audit by any Taxing Authority, and the preparation, prosecution or defense of any claim, suit or for proceeding relating to any Tax Proceeding. Unless Buyer makes the election under Section 2.12(b) to treat all the transactions described in Article II as Designated Sale Transactions (resulting in no transfer of Sellers Tax attributes to Buyer), to the extent not addressed by the foregoing, Buyer and Sellers shall also furnish or cause to be furnished to each other all documentation and information of Sellers’ or any of their Affiliates as reasonably requested in connection with (i) the treatment of the Transactions as one or more reorganizations under section 368 of the Code and/or in connection with qualifying for the application of section 382(l)(5) of the Code and (ii) the Tax basis, losses and credits (including carryovers), income, gains, deductions and other attributes or Tax items of Buyer or an Assignee that are dependent in whole or in part by the treatment of any such Tax item in any Pre-Assignment Tax Period. Any out-of-pocket expenses incurred in furnishing such information or assistance pursuant to this Section 9.3(b) shall be borne by the Party requesting it. Furthermore, except for any refund, asset or amount described in Section 2.2(h), Sellers shall pay (or cause to be paid) to Buyer any Tax refund actually received by Sellers or any Affiliate of Sellers that is an Acquired Asset, and any such refunds credited against future Taxes of the Sellers or their Subsidiaries (including any interest paid thereon and net of any reasonable out-of-pocket costs and any Taxes incurred in respect of the receipt thereof). Upon Buyer’s reasonable request and at Buyer’s sole cost and expense, Sellers shall (A) file (or cause to be filed) all Tax Returns (including amended Tax Returns) or other documents required to obtain such refunds and (B) take any such other action as may be reasonable and practicable to preserve Sellers’ ability to file a refund claim for any Tax year. Any payments required to be made under this Section 9.3(b) shall be made in immediately available funds, to an account or accounts as directed by Buyer, within ten (10) days after the actual receipt of the refund or the application of any such refunds as a credit against a future tax of Sellers or any Affiliate of Sellers. (c) Buyer shall pay (or cause to be paid) to Sellers any Tax refund, asset or amount described in Section 2.2(h) that is actually received by any Subsidiary of any Seller that is an Acquired Asset, Buyer or any Affiliate of Buyer, and any such refunds or amount credited against future Taxes to which any Subsidiary of any Seller that is an Acquired Asset, Buyer or any Affiliate of Buyer become entitled (including any interest paid thereon and net of any reasonable out-of-pocket costs and any Taxes incurred in respect of the receipt thereof). Upon Sellers’ reasonable request and at Sellers’ sole cost and expense, Buyer shall (A) file (or cause to be filed) all Tax Returns (including amended Tax Returns) or other documents required to obtain such refunds and (B) take any such other action as may be reasonable and practicable to preserve Buyer’s ability to file a refund claim for any Tax year. Any payments required to be made under this Section 9.3(c) shall be made in immediately available funds, to an account or accounts as directed by Sellers, within ten (10) days after the actual receipt of the refund or the application of any such refunds as a credit against a future tax of any Subsidiary of any Seller that is an Acquired Asset, Buyer or any Affiliate of Buyer. (d) As soon as practicable (and in any event within ninety (90) days) after the Closing Date, Buyer shall deliver to Sellers a schedule allocating the Purchase Price (including any Assumed Liabilities treated as consideration for the Acquired Assets for Tax purposes) (the “Allocation Schedule”). The Allocation Schedule shall allocate the Purchase Price among the Sellers and among the Acquired Assets acquired from each Seller, and shall be prepared in accordance with Section 1060 of the Code if Buyer makes the election under Section 2.12(b) to treat all the transactions described in Article II as Designated Sale Transactions (resulting in no transfer of Sellers’ Tax attributes to Buyer), and in any case shall be prepared in accordance with applicable law to the extent necessary to comply with reporting in respect of applicable Transfer Taxes. The Allocation Schedule shall be deemed final unless Sellers notify Buyer in writing that Sellers object to one or more items reflected in the Allocation Schedule within forty-five (45) days after delivery of the Allocation Schedule. In the event of any such objection, Buyer and Sellers shall negotiate in good faith to resolve such dispute; provided, however, that if Buyer and Sellers are unable to resolve any dispute with respect to the Allocation Schedule within sixty (60) days after the delivery of the Allocation Schedule, such dispute shall be resolved by the CPA Firm. The fees and expenses of the CPA Firm in connection therewith shall be borne equally by Buyer and Sellers. Each of Buyer and Sellers agrees to file its respective federal, state and local Tax returns in accordance with the Allocation Schedule, and any adjustments to the Purchase Price pursuant to this Section 9.3 shall be allocated in a manner consistent with the Allocation ScheduleReturn. For the avoidance of doubt, the Parties shall cooperate in determining the portion obligation of assistance as a result of the Purchase Price allocable foregoing sentence shall include, until the expiration of the applicable statute of limitation (taking into consideration any extension thereof granted or imposed by any Taxing Authority), (i) any assistance that may be required by Total, in connection with its duties resulting from worldwide consolidation for Tax purposes and (ii) any assistance that may be required by the Buyer, in connection with any transfer pricing determination, liability or related issues. The Buyer and Total shall retain all books and records with respect to Taxes pertaining to the Acquired Assets that are subject Group Companies relating to a Transfer Tax prior taxable years beginning before the Closing Date until the expiration of all relevant statutes of limitations (and, to the due date extent notified by the Buyer and Total, any extensions thereof). At the end of such period, each party shall provide the other with at least thirty- (30)- days prior written notice before destroying any such books and records, during which period the party receiving such notice can elect to take possession, at its own expense, of such books and records. (b) The Buyer shall prepare and file, or cause to be prepared and filed, all Tax Return Returns required to be filed by any of the Group Companies for any taxable year or period that are required to be filed after the Closing Date. The Buyer shall provide to Total and the Sellers copies of all Tax Returns for any taxable year or period ending on or before the Closing Date as soon as reasonably possible but at least thirty- (30)- days before such Tax Returns are required to be filed. Total and the Sellers shall notify the Buyer of any proposed revisions to such Tax Returns within fifteen- (15)- days after receipt of such Tax Returns from the Buyer. The Buyer shall reflect such revisions in connection such Tax Returns except where such revisions are unreasonable, inconsistent with prior practice of the Group Companies, or contrary to applicable Law. The Buyer shall also provide to Total and the Sellers copies of all Tax Returns for taxable year closed in 2010 as soon as reasonably possible but at least thirty- (30)- days before such Tax Returns are required to be filed. Total and the Sellers shall notify the Buyer of any proposed revisions to such Tax Returns within fifteen- (15)- days after receipt of such Tax Returns from the Buyer. The Buyer shall reflect such revisions in such Tax Returns except where such revisions are unreasonable, inconsistent with prior practice of the Group Companies, or contrary to applicable Law. In order to enable the Buyer to provide to Total and the Sellers copies of Tax Returns at least thirty- (30)-days before such Tax Returns are required to be filed, Total and the Seller shall provide the information and assistance requested by the Buyer relating to any of the Group Companies) as is reasonably necessary for the preparation of such Tax Returns within such time frame. The Buyer’s information or assistance requests shall be sent to Total and the Sellers with reasonable prior notice. If the Buyer were to consider that Total or the Sellers have not timely provided the requested information or assistance, the Buyer shall nevertheless provide to Total and the Sellers the Tax Returns as soon as they are available. The Buyer shall not amend the Tax Returns prepared and filed in accordance with this paragraph. (c) Except for the Transfer Taxes on the real estate properties held by the Group Companies in Germany, which shall be borne by the Sellers, the Buyer shall pay all transfer, documentary, sales, use, registration and other such Taxes (including all applicable real estate transfer Taxes), and related fees (including any penalties, interest and additions to Tax) incurred solely as a result of the purchase and sale of the Shares pursuant to Section 2.1 (the “Transfer Taxes; provided, that if the parties do not agree ”). The Buyer shall be responsible for preparing and timely filing any Tax Returns required with respect to such determination, such matter any Transfer Taxes. Such Tax Returns shall be resolved prepared in accordance with the determination of the CPA Firm; provided further, that such Tax Return will be adjusted, as applicable, a manner consistent with the procedures described above, allocation of Purchase Price pursuant to reflect Section 2.5 hereof. The Buyer shall deliver to Total within five- (5)- days following the date any adjustments Transfer Tax become due evidence that such Transfer Tax has been duly and timely paid to the allocated Purchase Pricerelevant taxing authority.