Common use of Tax Audits Clause in Contracts

Tax Audits. (i) If notice of any action, suit, investigation or audit with respect to Taxes of Subsidiary (a “Tax Claim”) shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this Agreement, the notified party shall notify the other party in writing of such Tax Claim. Failure to notify the other party of the Tax Claim will not relieve the other party of any liability that it may have to the notified party, except to the extent that the other party demonstrates that the defense of such Tax Claim is prejudiced by the notified party’s failure to give such notice. (ii) To the extent the Tax Claim relates to a Pre-Closing Tax Period, Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes such defense, Subsidiary and/or Purchaser shall have the right to participate in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of the Tax Claim in accordance with the above, Subsidiary and/or Purchaser will not consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of Seller. In the event that Seller refuse to assume the defense of the Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of Seller.

Tax Audits. (ia) If notice of any action, suit, investigation Action or audit threatened Action with respect to Taxes of Subsidiary the Company or any of its Subsidiaries (a “Tax Claim”) shall be received by either any party for which the any other party may reasonably be expected to be liable pursuant to this Agreementliable, the notified party shall notify the such other party or parties in writing of such Tax Claim. Failure ; provided, however, that the failure of the notified party to notify the give any other party notice as provided herein shall not relieve such other party of the Tax Claim will not relieve the other party of any liability that it may have to the notified partyits indemnification, compensation or reimbursement obligations under Article 10 or this Article 11 except to the extent that the such other party demonstrates is actually and materially prejudiced thereby. Notwithstanding any provision herein to the contrary, to the extent that the defense a provision of such Tax Claim is prejudiced by the notified party’s failure to give such noticethis Section 11.3 directly conflicts with any provision of Article 10, this Section 11.3 shall govern. (iib) Parent shall have the right to control the conduct of any Tax Claim of the Company or any of its Subsidiaries. To the extent the a Tax Claim relates to Taxes attributable to a Pre-Closing Tax Period, Seller will have Parent shall (i) keep the right Representative reasonably informed of all material developments on a timely basis, (ii) provide to assume control the Representative copies of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the and all correspondence from any Governmental Authority related to such Tax Claim. If Seller assumes such defense, Subsidiary and/or Purchaser shall have (iii) provide the right to participate in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of the Tax Claim in accordance Representative with the aboveopportunity to attend conferences with the relevant Governmental Authority (if reasonably practical) and (iv) not settle, Subsidiary and/or Purchaser will not consent to the entry of any judgment on adjust or enter into any settlement with respect to the otherwise resolve such Tax Claim without the prior written consent of Seller. In the event that Seller refuse Representative (not to assume the defense of the Tax Claim as provided abovebe unreasonably withheld, Subsidiary and/or Purchaser may defend against the Tax Claimconditioned or delayed), if such settlement or other compromise would give rise to Pre-Closing Taxes; provided, howeverthat, that neither Subsidiary nor Purchaser may the Representative’s consent to any such settlement or resolution shall be deemed to have been given unless the entry Representative shall have objected in a writing delivered to Parent within ten (10) Business Days after a written request for such consent is delivered to the Representative by Parent. (c) Notwithstanding anything to the contrary in this Agreement, Parent shall be entitled to pursue and enter into voluntary disclosure agreements (or similar agreements) with tax authorities in respect of Pre-Closing Tax Periods of the Company and its Subsidiaries (a “VDA”) to resolve any unpaid Tax liabilities for such periods; provided that Parent shall (i) keep Representative reasonably informed of all material developments on a timely basis, (ii) provide to the Representative copies of any judgment on and all correspondence from any Governmental Authority related to such VDA and (iii) not settle, adjust or enter into otherwise resolve such VDA without consent of the Representative (not to be unreasonably withheld, conditioned or delayed), if such settlement or other compromise would give rise to Pre-Closing Taxes; provided, that, the Representative’s consent to any such settlement with respect or resolution shall be deemed to have been given unless the Representative shall have objected in a writing delivered to Parent within ten (10) Business Days after a written request for such consent is delivered to the Tax Claim without the prior written consent of SellerRepresentative by Parent.

Tax Audits. (i) If notice of any action, suit, investigation or audit Legal Proceeding with respect to Taxes of Subsidiary any Purchased Entity (a “Tax Claim”) shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this AgreementSections 8.2(a)(i) (on account of Section 5.10), 8.2(a)(vi), 8.2(a)(vii), 8.2(b)(iii) or 8.2(b)(iv) as applicable, the notified party shall notify the such other party in writing of such Tax Claim. Failure ; provided, however, that the failure of the notified party to notify give the other party of the Tax Claim will notice as provided herein shall not relieve the other such failing party of any liability that it may have to the notified party, its obligations under Section 8.2 or this Section 8.5 except to the extent that the other party demonstrates that the defense of such Tax Claim is actually and materially prejudiced by the notified party’s failure to give such noticethereby. (ii) To the extent the Tax Claim relates to a Pre-Closing Tax PeriodExcept as provided in Section 8.5(g)(iv), Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes such defense, Subsidiary and/or Purchaser shall have the right right, at the expense of Sellers to participate in the defense thereof and extent such Tax Claim is subject to employ at their own expense counsel reasonably acceptable indemnification by Sellers pursuant to Seller separate from Section 8.2(a)(i) (on account of Section 5.10), Section 8.2(a)(vi) or Section 8.2(a)(vii) hereof, as the counsel employed by Seller. So long as Seller has assumed and is conducting case may be, to represent the defense interests of the Tax Claim Purchased Entities in accordance with the above, Subsidiary and/or Purchaser will not consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of Seller. In the event that Seller refuse to assume the defense of the Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claim; provided, howeverthat, in the case of Tax Claims subject to indemnification by Sellers pursuant to Section 8.2(a) hereof and provided that neither Subsidiary nor Sellers acknowledge in writing their indemnification responsibilities in connection therewith, (A) Purchaser may consent to shall keep Sellers’ Representative reasonably informed of the entry progress of any judgment on or enter into any settlement such Tax Claim and consult seriously and in good faith with Sellers’ Representative and its tax advisors with respect to any issue relating to such Tax Claim; (B) Purchaser shall provide Sellers’ Representative with copies of all correspondence, notice or other written materials received from any Taxing Authorities and shall otherwise keep Sellers’ Representative and its tax advisors advised of significant developments in the Tax Claim and of significant communications involving representations of the Taxing Authorities; (C) Purchaser shall provide Sellers’ Representative with a copy of any written submission to be sent to a Taxing Authority prior to the submission thereof and shall give serious and good faith consideration to any comments or suggested revisions that Sellers’ Representative or its advisors may have with respect thereto; and (D) there will be no settlement, resolution, or closing or other agreement with respect thereto without the prior written consent of SellerSellers’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed.

Tax Audits. (ia) If notice of any actionjudicial, suitadministrative or arbitral actions, investigation suits, mediation, investigation, inquiry, proceedings or audit claims (including counterclaims) by or before any Governmental or Regulatory Authority with respect to Taxes of the Company or any Subsidiary (a “Tax Claim”) shall be received by either any party for which the other another party may reasonably be expected to would be liable pursuant to this AgreementArticle X, the notified party shall notify the such other party parties in writing of such Tax Claim. Failure to notify the other party of the Tax Claim will not relieve the other party of any liability that it may have to the notified party, except to the extent that the other party demonstrates that the defense of such Tax Claim is prejudiced by the notified party’s failure to give such notice. (iib) To the extent the The Seller Representative may elect, within 30 days of receiving such notice, to direct any Tax Claim Claim, at Sellers expense, that relates solely to a Pre-Closing Tax Period, Period (a “Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time within thirty (30Contest”) days after Seller has received notice of the Tax Claim. If Seller assumes such defense, Subsidiary and/or Purchaser shall have the right to participate in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of the Tax Claim in accordance with the above, Subsidiary and/or Purchaser will not consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of Seller. In the event that Seller refuse to assume the defense of the Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claimits choice; provided, however, that neither Subsidiary nor Purchaser shall have the right, at its expense, to consult with the Seller Representative regarding such Seller Tax Contest. Purchaser, at its expense, shall have the right to control all other Tax Claims (each a “Purchaser’s Tax Contest”); provided, however, that the Seller Representative shall have the right, at its expense, to consult with Purchaser regarding a Purchaser’s Tax Contest if Sellers would be liable for a portion of the Taxes that may result from the Purchaser’s Tax Contest; and provided, further, that Purchaser may consent not agree to the entry of settle any judgment on or enter into any settlement with respect to the such Purchaser’s Tax Claim Contest without the Seller Representative’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, unless the Purchaser agrees to assume and become liable for all Taxes resulting from the Purchaser’s Tax Contest. In the event of Sellera conflict between the provisions of this Section 10.07, on the one hand, and the provisions of Section 12.02, on the other, the provisions of this Section 10.07 shall control.

Tax Audits. (i) If notice of any action, suit, investigation or audit Proceeding with respect to Taxes of Subsidiary the Company (a “Tax Claim”) shall be received by either party for Taxes which the other party may reasonably be expected to be liable pursuant to this Agreementresponsible, the notified party shall notify the such other party in writing of such Tax Claim. Failure ; provided, however, that the failure of the notified party to notify give the other party of the Tax Claim will notice as provided herein shall not relieve the other such failing party of any liability that it may have to the notified partyits obligations under this Agreement, except to the extent that the other party demonstrates that the defense of such Tax Claim is actually or materially prejudiced by the notified party’s failure to give such noticethereby. (ii) To Parent Seller shall have the extent the right (at its expense) to control any Tax Claim relates with respect to a Pre-the Company for Taxable periods ending on or prior to the Closing Tax PeriodDate; provided, however, that if the Parent Seller will elects to control the contest, the Company and the Buyer shall have the right, at their expense, to participate in such contest. Buyer shall have the right to assume control of the defense of the any Tax Claim with counsel of their choice respect to the Company for any Taxable period ending after the Closing Date, including any Straddle Period, provided, however, that Parent Seller, at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes such defenseits own expense, Subsidiary and/or Purchaser shall have the right to participate in the defense thereof and any Tax Claims with respect to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of the Tax Claim in accordance with the above, Subsidiary and/or Purchaser will not consent a Straddle Period. (iii) Notwithstanding anything to the entry of any judgment on or contrary contained in this Agreement, neither party shall enter into any settlement with respect compromise or agree to the settle any Tax Claim if the resolution of the issue involved in the settlement could have an adverse effect on the liability for Taxes of other party (or their Affiliates) for such Taxable year or a subsequent of earlier Taxable year without the prior written consent of Seller. In the event that Seller refuse to assume the defense of the Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may other party (which consent to the entry of any judgment on will not be unreasonably withheld or enter into any settlement with respect to the Tax Claim without the prior written consent of Sellerdelayed).

Tax Audits. Within thirty (i30) If days after Buyer or Seller has received oral or written notice of (but in any actionevent not less than thirty (30) days before any response to any Governmental Entity is due) that any Governmental Entity is auditing or investigating, suitor intends to audit or investigate, investigation or audit with respect to Taxes of Subsidiary (a “Tax Claim”) shall be received by either party any taxable period for which the other party may reasonably be expected liable, in whole or in part, to be liable pursuant to it under this Agreement, Buyer or Seller, as the notified party case may be, shall notify give to the other party in writing written notice of such Tax Claim. Failure audit or investigation, and shall tender to notify the other party of the Tax Claim will not relieve the other party of any liability that it may have to the notified party, except to the extent that the other party demonstrates that the defense of such Tax Claim is prejudiced by audit or investigation with respect to Taxes for which the notified party’s failure to give such notice. (ii) To the extent the Tax Claim relates to a Pre-Closing Tax Period, Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim108 other party may be liable in whole under this Article VII. If both Buyer and Seller assumes such defensemay be liable in part as to the same Tax, Subsidiary and/or Purchaser Buyer and Seller shall have the right jointly to participate defend such audit or investigation. If the other party accepts the tendered defense of any such audit or investigation, (a) the tendering party shall execute and deliver to the other party all documents necessary or appropriate (including powers of attorney) (i) to enable the other party to act, at its sole cost and expense, on behalf of the tendering party in defending against such audit or investigation, in the defense thereof case of periods for which the other party may be liable in whole, or (ii) to enable the other party to defend against those issues raised in such audit or investigation for which the other party may be liable, in the case of any taxable period or Taxes for which the other party may be liable in part, and (b) the other party shall determine, at its sole discretion, the manner in which such audit or investigation (in the case of periods for which the other party may be liable in whole) will be defended or settled and the other party shall defend or settle such audit or investigation in good faith with respect to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense future taxes of the Tax Claim in accordance with tendering party, PROVIDED, HOWEVER, that the above, Subsidiary and/or Purchaser will not consent to the entry of any judgment on or enter into tendering party may reject any settlement (or portion thereof) proposed by the other party, in which case the other party will have no obligation to indemnify the 109 tendering party with respect to the Tax Claim without the prior written consent of Seller. In the event that Seller refuse to assume the defense taxable period or Taxes under audit or investigation for any amount in excess of the Tax Claim as provided abovesettlement proposed by the other party, Subsidiary and/or Purchaser may defend against reduced by the Tax Claim; providedactual settlement amount, howeverif any, that neither Subsidiary nor Purchaser may consent of the items the proposed settlement of which was not rejected by the tendering party. Notwithstanding anything in this Agreement to the entry of any judgment on or enter into any settlement contrary, the other party shall not be liable to the tendering party with respect to any Taxes for which the Tax Claim without other party's defense or settlement of the prior audit or investigation has been adversely affected by the tendering party's failure to give the timely written consent notice required by this Section 7.04. Each party shall keep the other party fully informed of Sellerthe status of all audits and investigations for which the other party may be liable in whole or in part.

Tax Audits. (i) If Reasonably promptly upon the receipt by Acquiror, the Company, or any of their respective Affiliates of notice from any Governmental Authority or third party of an audit or other proceeding or any action, suit, investigation or audit with respect other claim relating to Taxes of Subsidiary (a “Tax Claim”) shall be received by either party for which the other party may that could reasonably be expected to be liable pursuant give rise to this Agreementa claim for Indemnified Taxes, the notified party Acquiror shall notify the other party in writing of such Tax Claim. Failure to notify the other party of the Tax Claim will not relieve the other party of any liability that it may have provide written notice to the notified partyShareholder regarding such audit, except proceeding or claim; provided, that, no delay in providing such notice shall affect an Indemnified Party’s rights hereunder, unless and only to the extent that the other party demonstrates that the defense of such Tax Claim Shareholder is actually and materially prejudiced by the notified party’s failure to give such notice. (ii) To the extent the Tax Claim relates to a Pre-Closing Tax Period, Seller will thereby. The Shareholder shall have the right to assume control of any Tax audit or other Tax Proceeding to the defense of the extent solely relating to any Indemnified Taxes and not relating to any other Taxes or relating to a Shareholder Combined Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes such defense, Subsidiary and/or Purchaser Return and shall have the right to participate (but not control) in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the prosecution or defense of any Tax audit or other Tax Proceeding that relates to both Indemnified Taxes and other Taxes (a “Pre-Closing Tax Contest”); provided, that, except with respect to a Shareholder Combined Tax Return, (A) the party controlling such Pre-Closing Tax Claim in accordance Contest shall inform the other party of the status of any such Pre-Closing Tax Contest, shall provide the other party with copies of any pleadings, correspondence, and other documents as such party may reasonably request, shall consult with the above, Subsidiary and/or Purchaser will not consent to the entry of any judgment on or enter into any settlement other party with respect to the ongoing conduct of any such Pre-Closing Tax Claim without Contest, and shall obtain the prior written consent of Seller. In the event that Seller refuse other Party prior to assume the settlement of any such Pre-Closing Tax Contest, which consent shall not be unreasonably conditioned, withheld or delayed, and (B) the other party shall have the right to participate (but not control) the prosecution or defense of the such Pre-Closing Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of SellerContest.

Tax Audits. (ia) If one party (including its Affiliates) is responsible for, or would reasonably be expected to be responsible for, the payment of or indemnification in respect of Taxes pursuant to this Article 8 (the “Tax Indemnifying Party”), and the other party to this Agreement (including its Affiliates)(the “Tax Indemnified Party”) receives a notice of any actiondeficiency, proposed adjustment, adjustment, assessment, audit, examination, suit, investigation dispute or audit other claim with respect (in whole or in part) to such Taxes of Subsidiary (a “Tax Claim”) shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this Agreement), the notified party Tax Indemnified Party shall promptly (and in any event within ten (10) Business Days) notify the other party Tax Indemnifying Party in writing of such Tax Claim. Failure ; provided, that the failure to so notify the other party of the Tax Claim will shall not relieve the other party Tax Indemnifying Party of any liability that it may have to the notified partyits obligations hereunder, except to the extent that such party is actually prejudiced by such failure. Such notice shall specify in reasonable detail the other party demonstrates that the defense of basis for such Tax Claim is prejudiced by and shall include a copy of the notified party’s failure to give such noticerelevant portion of any correspondence received from the Taxing Authority. (iib) To In the extent case of any Tax audit, examination, contest, litigation or other Proceeding with or against any Taxing Authority (“Tax Proceeding”) of or with respect to the Tax Claim relates Company relating solely to a any Pre-Closing Tax PeriodPeriod (other than a Tax Proceeding relating to any Tax Return that includes Acquiror or any of its Affiliates (other than, Seller will have after the right to assume control of Closing Date, the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes such defenseCompany)), Subsidiary and/or Purchaser Parent shall have the exclusive right to control such Tax Proceeding; provided, that (i) Parent shall inform Acquiror before taking any significant action in connection with such Tax Proceeding, (ii) Acquiror shall be entitled to (A) participate in the defense thereof such Tax Proceeding, at Acquiror’s sole cost and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of the Tax Claim in accordance expense, (B) attend any meetings or conferences with the above, Subsidiary and/or Purchaser will not consent relevant Taxing Authority to the entry extent reasonably permitted to do so, and (C) comment before Parent or its Affiliate submits any written materials prepared or furnished in connection with such Tax Proceeding, and (iii) neither Parent nor any of any judgment on or enter into any settlement with respect to the its Affiliates shall settle such Tax Claim Proceeding without the prior written consent of Seller. Acquiror (which consent shall not be unreasonably withheld, conditioned, or delayed). (c) In the event that Seller refuse to assume the defense of the Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may consent to the entry case of any judgment on Tax Proceeding of or enter into any settlement with respect to the Company and not described in Section 8.5(b), Acquiror shall have the exclusive right to control such Tax Claim Proceeding; provided, that to the extent that such Tax Proceeding would reasonably be expected to cause or increase a Tax liability or Tax-related indemnification obligation of Member or any of its Affiliate under this Agreement, (i) Acquiror shall inform Parent before taking any significant action in connection with such Tax Proceeding, and, (ii) Parent shall be entitled to participate in such Tax Proceeding, at Parent’s sole cost and expense, and attend any meetings or conferences with the relevant Taxing Authority to the extent reasonably permitted to do so and shall have opportunity to comment before Acquiror or its Affiliate submits any written materials prepared or furnished in connection with such Tax Proceeding, and neither Acquiror not any of its Affiliates shall settle such Tax Proceeding without the prior written consent of SellerParent (which consent shall not be unreasonably withheld, conditioned, or delayed); provided that the foregoing clause (ii) shall not apply with respect to any Tax Proceeding relating to any Tax Return that includes Acquiror or any of its Affiliates (other than, after the Closing Date, the Company).

Tax Audits. (ia) If notice After the Closing, the Buyer shall notify ASC in writing (a “Tax Notice”) of any action, suit, investigation demand or audit claim received by the Buyer or either Company from any Tax authority or any other party with respect to Taxes of Subsidiary (a “Tax Claim”) shall be received by either party for which the other party may reasonably be expected to be Tax Indemnifying Party is liable pursuant to this Agreement, Section 11.1 within ten (10) days of the notified party shall notify the other party in writing receipt of such demand or claim by the Buyer or either Company; provided, however, that a failure to give such Tax Claim. Failure to notify Notice will not affect the other party rights of the Tax Claim will not relieve the other party of any liability that it may have Buyer or either Company to the notified partyindemnification under Section 11.1 unless, or except to the extent that such failure precludes the Tax Indemnifying Parties from contesting such demand or claim. Such Tax Notice shall contain factual information (to the extent known) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other party demonstrates that the defense document received from any Tax authority in respect of any such asserted Tax Claim is prejudiced by the notified party’s failure to give such noticeliability. (iib) To Subject to the extent following sentence, ASC may elect to control the conduct, through counsel chosen by ASC and reasonably acceptable to the Buyer and at ASC’s own expense, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 11.1, including any contest in respect of an Interim Period (any such audit, claim for refund, or proceeding relating to an asserted Tax Claim relates liability is referred to herein as a Pre-Closing Tax Period“Contest”). If ASC elects to control a Contest, Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time ASC shall within thirty (30) calendar days after Seller has received notice of receipt of the Tax ClaimNotice notify the Buyer in writing of its intent to do so; provided, however, that the Buyer and the Companies are authorized to file any motion, answer or other pleading that may be reasonably necessary or appropriate to protect their interests during such 30 day period. If Seller assumes such defenseASC properly elects to control a Contest, Subsidiary and/or Purchaser then ASC shall have all rights to settle, compromise and/or concede such asserted liability and the right Buyer shall cooperate and shall cause the Companies (and any of their successors) to participate cooperate in each phase of such Contest. If ASC does not elect to control the defense thereof Contest, the Buyer or the Companies may, without affecting its or any other indemnified party’s rights to indemnification under this Article XI, assume and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting control the defense of such Contest with participation by the Sellers. (c) In the event that a Contest involves an Interim Period (a “Straddle Contest”), the parties shall endeavor to cause the Contest proceeding to be separated into two or more separate proceedings, one of which shall involve exclusively the applicable Interim Period. In the event that such separation cannot, after diligent efforts, be achieved, the Buyer and ASC shall jointly control the Straddle Contest; provided, however, that, subject to this Section 11.5 generally, the Buyer shall have all rights to make decisions, settle, compromise and/or concede such asserted liability as relates to the portion of the taxable period that begins after the Closing Date, and ASC shall have all rights to settle, compromise and/or concede such asserted liability as relates to the Interim Period. (d) With respect to a Contest that is described in paragraphs (b) and (c) of this Section, and which relates to a method of accounting, a recurring item of income, gain, loss, deduction or credit. Taxes other than income Taxes, franchise Taxes, and Transfer and Recording Taxes, ASC’s ability to settle, compromise and/or concede any asserted liability shall be subject to the Buyer’s consent, not to be unreasonably withheld, conditioned or delayed, if ASC’s proposed settlement, compromise or concession would adversely affect such Tax liability of a Company in a Post-Closing period; provided, however, if the Buyer does not provide ASC with such consent, and ASC shall pay to the Buyer the amount that ASC was willing to pay the Taxing authority to settle the asserted Tax liability, ASC shall be released by the Buyer from all indemnification obligations thereto pursuant to Section 11.1 and the Buyer shall assume control over the conduct of such Contest and shall have all rights if such Contest does not involve any issues for which ASC remains liable under this Article XI to make decisions, settle, compromise, and/or concede such asserted liability. (e) Notwithstanding anything contained in this Section 11.5 to the contrary, none of the Buyer or the Companies shall be required to permit ASC to contest any claim; provided, however, that the Tax Claim in accordance with Indemnifying Parties shall have no obligation to pay, indemnify or reimburse the above, Subsidiary and/or Purchaser will Buyer or the Companies for any amounts that the Buyer or the Companies pay without the prior approval of ASC (which may not consent to be unreasonably withheld or delayed if the entry of any judgment related indemnification obligation does not have a material economic impact on ASC or enter into any settlement the Indemnifying Parties) with respect to a claim ASC timely elects to contest but is not permitted to contest under this Section 11.5(e). (f) Notwithstanding anything contained in this Section 11.5 to the Tax Claim contrary, ASC shall not, without the prior written consent of Seller. In the event that Seller refuse Buyer (which consent shall not be unreasonably withheld, contained or delayed), settle, compromise or concede any asserted liability unless ASC has (i) paid or otherwise satisfied the asserted liability on or prior to assume the defense date of such settlement, compromise or concession, or (ii) obtained, as an unconditional term of such settlement, compromise or concession, an unconditional release, issued by the applicable taxing authority in favor of the Tax Claim as provided aboveCompanies, Subsidiary and/or Purchaser may defend against for all responsibility in respect of the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of Sellerasserted liability.

Tax Audits. (i) If either party receives notice of any action, suit, investigation or audit Legal Proceeding with respect to Taxes of Subsidiary the Company (a “Tax ClaimProceeding”) shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this AgreementSection 8.6(a), the notified party receiving such notice shall promptly notify the other party in writing of such Tax ClaimProceeding (and shall deliver a copy of such notice to such other party). Failure to notify the other party of the Tax Claim will not relieve the other party of any liability that it may have to the notified party, except to To the extent that the other party demonstrates that the defense of such Tax Claim is prejudiced by the notified a party’s failure to give provide such noticenotice materially prejudices the other party’s ability to defend such Tax Proceeding, then such other party’s indemnification obligations shall be null and void with regard to such claim. (ii) To The Stockholder Representative (on behalf of the extent the Tax Claim relates to a Pre-Closing Tax Period, Seller will Selling Stockholders) shall have the right to assume conduct and control any Tax Proceeding to the extent it relates to a taxable period ending on or prior to the Closing Date; provided, however, that the Stockholder Representative shall not, without the consent of Purchaser, which consent shall not be unreasonably withheld, delayed or conditioned, settle or compromise any such Tax Proceeding in a manner that would have the effect of materially increasing the Taxes of the defense of Company in a taxable period beginning after the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax ClaimClosing Date. If Seller assumes such defense, Subsidiary and/or Purchaser shall have the right to participate in such Tax Proceeding at its own expense. Purchaser’s right to participate shall include, but shall not be limited to, the defense thereof right to receive copies of all correspondence from any Governmental Body relating to such Tax Proceeding, attend meetings and review and comment on submissions relating to employ at their own expense counsel reasonably acceptable any Tax Proceeding, and the Stockholder Representative shall consider in good faith any comments provided by Purchaser. The Stockholder Representative may elect to Seller separate from waive the counsel employed by SellerStockholder Representative’s right under this Section 8.6(d)(ii) to direct and control any such Tax Proceeding. So long as Seller has assumed Unless the Stockholder Representative notifies Purchaser of its intent to direct and is conducting the defense control any such Tax Proceeding within twenty (20) days of receipt of the Tax Claim in accordance with the above, Subsidiary and/or Purchaser will not consent to the entry notice of any judgment on or enter into any settlement with respect such Tax Proceeding, the Stockholder Representative shall be deemed to the have waived its right to direct and control such Tax Claim without the prior written consent of SellerProceeding. In the event that Seller refuse the Stockholder Representative waives its right to direct and control such Tax Proceeding, Purchaser shall assume control of such Tax Proceeding and the defense Selling Stockholders shall be liable to Purchaser for all costs and expenses of such Tax Proceeding. Upon such a waiver, the Stockholder Representative shall have the right to participate (at the Selling Stockholders’ expense) in any such Tax Proceeding. The Stockholder Representative’s right to participate shall include, but shall not be limited to, the right to receive copies of all correspondence from any Governmental Body relating to such Tax Proceeding, attend meetings and review and comment on submissions relating to any Tax Proceeding, and Purchaser shall consider in good faith any comments provided by the Stockholder Representative. (iii) In the case of any Tax Proceeding relating to a Straddle Period, Purchaser shall have the right to control the conduct of such Tax Proceeding, provided that the Stockholder Representative shall have the right to participate (at the Selling Stockholders’ expense) in any such Tax Proceeding with respect to which payment may be sought from the Selling Stockholders pursuant to this Agreement. The Stockholder Representative’s right to participate shall include, but shall not be limited to, the right to receive copies of all correspondence from any Governmental Body relating to such Tax Proceeding, attend meetings and review and comment on submissions relating to any Tax Proceeding, and Purchaser shall consider in good faith any comments provided by Stockholder Representative. Purchaser may not settle or compromise any Tax Proceeding for any Straddle Period that would result in an indemnification obligation of the Tax Claim as provided above, Subsidiary and/or Purchaser may defend against Selling Stockholders for Taxes under this Agreement without prior written consent of the Tax ClaimStockholder Representative; provided, however, that neither Subsidiary nor Purchaser may consent to the entry of any judgment on shall not be unreasonably withheld, delayed or enter into any settlement with respect to the Tax Claim without the prior written consent of Sellerconditioned.

Tax Audits. (i) If notice of any action, suit, investigation or audit Tax Proceeding with respect to Taxes of Subsidiary (a “Tax Claim”) the Company shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this AgreementSection 9.08(a), the notified party shall notify the such other party in writing of such Tax Claim. Failure Proceeding; provided, that the failure of the notified party to notify give the other party of the Tax Claim will notice as provided herein shall not relieve the other such failing party of any liability that it may have to the notified party, its obligations under this Section 9.08 except to the extent that the other party demonstrates that the defense of such Tax Claim is actually and materially prejudiced by the notified party’s failure to give such noticethereby. (ii) To Purchaser shall have the sole right to represent the interests of the Company in any other Tax Proceeding to the extent such Tax Proceeding is not a Seller Tax Proceeding. (iii) Sellers shall have the sole right to represent the interests of the Company in any Tax Claim Proceeding with respect to Flow-Through Tax Returns and to the extent it relates to a Pre-Closing matter set forth on Schedule 9.02(b) (a “Seller Tax PeriodProceeding”). With respect to a Seller Tax Proceeding, Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes such defense, Subsidiary and/or Purchaser Representative shall have the right to participate in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of the Tax Claim in accordance with Seller Representative’s choice (at the abovesole cost and expense of Sellers). Notwithstanding the foregoing, Subsidiary and/or Purchaser will Sellers shall not consent be entitled to settle, either administratively or after the entry commencement of litigation, any judgment on or enter into any settlement claim for Taxes with respect to any Tax Return of the Company which would materially and adversely affect the liability for Taxes of Purchaser for any Post-Closing Tax Claim Period or Straddle Period to any extent without the prior written consent of SellerPurchaser, which consent shall not be unreasonably withheld. In With respect to a Seller Tax Proceeding of a Flow-Through Tax Return, the event that Seller refuse Representative shall (x) make or cause the Company to assume the defense of the Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may consent make a “push-out” election under Code Section 6226 (or any analogous election under state or local tax law) or (y) make an arrangement reasonably satisfactory to the entry Company for Sellers to bear the economic burden of any judgment on or enter into “imputed underpayment” and any settlement with respect associated interest, adjustments to the tax and penalties properly attributable to Sellers for such Seller Tax Claim without the prior written consent of SellerProceeding.

Tax Audits. (ia) If In the event ITC or TransCo receives written notice of any action, suit, investigation or audit Tax Controversy relating to the Transactions and with respect to Taxes of Subsidiary (a “Tax Claim”) shall be received by either party for which the other party ITC or TransCo believes Entergy is or may reasonably be expected to be liable responsible pursuant to this AgreementSection 6.02, the notified party ITC or TransCo shall notify the other party Entergy in writing within thirty (30) Business Days after the receipt by ITC or TransCo of such Tax Claim. Failure notice; provided, that any failure to notify the other party provide such prompt notice of the existence of a Tax Claim will Controversy to Entergy shall not relieve the other party of result in any liability that it may have to the notified partyof ITC or TransCo hereunder, except to the extent that the other party demonstrates that the defense of such Tax Claim Entergy is materially prejudiced by the notified party’s failure to give such noticethereby. (iib) To In the extent event Entergy receives written notice of a Tax Controversy relating to the Tax Claim relates Transactions and with respect to a Pre-Closing Tax Periodfor which Entergy believes TransCo is or may be responsible pursuant to Section 6.03, Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time Entergy shall notify TransCo in writing within thirty (30) days Business Days after Seller has received the receipt by Entergy of such notice; provided, that any failure to provide such prompt notice of the existence of a Tax Claim. If Seller assumes such defenseControversy to TransCo shall not result in any liability of Entergy hereunder, Subsidiary and/or Purchaser except to the extent that TransCo is materially prejudiced thereby. (c) Entergy and ITC shall have the right to participate in the defense thereof jointly contest any Tax Controversy (and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of the neither party shall settle or compromise any such Tax Claim in accordance with the above, Subsidiary and/or Purchaser will not consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim Controversy without the prior written consent of Seller. In the event other) relating to any Taxes which could give rise to an indemnity obligation of ITC or TransCo under Section 6.03(a)(ii); provided that Seller refuse to assume the defense if Entergy agrees in writing that ITC would have no liability for any Losses arising out of the Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may consent to the entry of any judgment on or enter into any settlement a Final Determination for Taxes with respect to the such Tax Claim without the prior written consent of Seller.Controversy pursuant to Section 6.03(a)(ii),

Tax Audits. (ia) If notice of any action, suit, investigation or audit Action with respect to Taxes of Subsidiary ICB or Bank (a “Tax Claim”) shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this Agreementany party, the first notified party shall notify the such other party parties in writing of such Tax Claim. Failure ; provided, however, that the failure of the notified party to notify give the other parties notice as provided herein shall not relieve such failing party of the Tax Claim will not relieve the other party of any liability that it may have to the notified party, its benefits or obligations under this Article V except to the extent that the other party demonstrates that parties are actually and materially prejudiced thereby. (b) To the defense of extent such Tax Claim is prejudiced subject to indemnification by ICB pursuant to Section 5.2 or relates exclusively to taxable periods ending on or before the notified party’s failure to give such notice. (ii) To the extent the Tax Claim relates to a Pre-Closing Tax PeriodDate, Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes such defense, Subsidiary and/or Purchaser ICB shall have the right to control the handling and disposition of such Tax Claim (and to employ counsel of its choice at its expense) and ANC shall be entitled to participate in such Tax Claim (and to employ counsel of its choice at its expense). ANC’s right to participate in the defense thereof handling and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense disposition of the such Tax Claim shall include the right to receive copies of all correspondence from any Tax Authority relating to such Tax Claim, attend meetings and review and comment on submissions relating to any such Tax Claim, and ICB shall consider in accordance with the above, Subsidiary and/or Purchaser will not consent to the entry of good faith any judgment on or enter into any settlement comments provided by ANC with respect to the thereto. ICB may not settle or compromise any such Tax Claim without the prior written consent of SellerANC, not to be unreasonably withheld. In the event that Seller refuse to If ICB does not assume the defense control of the handling and disposition of such Tax Claim, ANC may assume control of the handling and disposition of such Tax Claim as provided aboveit may deem appropriate. ANC shall have the right to control, Subsidiary and/or Purchaser may defend against and ICB shall have the right to participate in, the handling and disposition of any other such Tax Claim (and to employ counsel of its choice at its expense) to the extent such Tax Claim might result in an increase in the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may consent liabilities as to which ICB is required to indemnify the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of SellerANC Indemnified Parties.

Tax Audits. (i) If notice of any action, suit, investigation or audit with respect to Taxes of Subsidiary any of the Subsidiaries (a “Tax Claim”) shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this Agreement, the notified party shall notify the other party in writing of such Tax Claim. Failure to notify the other party of the Tax Claim will not relieve the other party of any liability that it may have to the notified party, except to the extent that the other party demonstrates that the defense of such Tax Claim is prejudiced by the notified party’s failure to give such notice. (ii) To the extent the Tax Claim relates to a Pre-Closing Tax Period, Seller Sellers will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has Sellers have received notice of the Tax Claim. If Seller assumes Sellers assume such defense, the relevant Subsidiary and/or Purchaser shall have the right to participate in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller Sellers separate from the counsel employed by SellerSellers. So long as Seller has Sellers have assumed and is are conducting the defense of the Tax Claim in accordance with the above, the relevant Subsidiary and/or Purchaser will not consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of SellerSellers. In the event that Seller Sellers refuse to assume the defense of the Tax Claim as provided above, the relevant Subsidiary and/or Purchaser may defend against the Tax Claim; provided, however, that neither the relevant Subsidiary nor Purchaser may consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of SellerSellers.

Tax Audits. (ia) If a claim shall be made by any Taxing authority, then the Party with notice of the claim shall give notice to the other Party in writing of such claim and of any action, suit, investigation or audit with respect counterclaim the notifying Party proposes to Taxes of Subsidiary assert (a “Tax Claim”) shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this Agreement); provided, however, the notified party failure to give such notice shall notify not affect the other party in writing of such Tax Claim. Failure to notify the other party of the Tax Claim will not relieve the other party of any liability that it may have to the notified party, indemnification provided hereunder except to the extent that the other party demonstrates that the defense Party has been materially prejudiced as a result of such failure. With respect to any Tax Claim is prejudiced by the notified party’s failure to give such notice. (ii) To the extent the for any income Tax Claim relates Return relating to a Pre-Closing Tax Period (other than a Straddle Period), Seller will have the right to assume Sellers’ Representative shall, solely at the cost and expense of Sellers, control all proceedings and may make all decisions taken in connection with such Tax Claim (including selection of counsel) and, without limiting the defense of foregoing, may in its sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any Taxing authority with respect thereto, and may, in its sole discretion, either pay the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes claimed and xxx for a refund where applicable law permits such defense, Subsidiary and/or Purchaser shall have the right to participate in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of refund suits or contest the Tax Claim in accordance with any permissible manner. Notwithstanding the aboveforegoing, Subsidiary and/or Purchaser will not consent the Buyer shall have the right, at its expense, to participate (including through its own counsel) in such Tax Claim, and the entry Sellers’ Representative shall keep the Buyer informed of the progress of any judgment on or enter into any settlement with respect to the such Tax Claim, and shall not settle such Tax Claim without the prior written consent of SellerBuyer, which consent shall not be unreasonably conditioned, withheld or delayed. In With respect to any Tax Claim relating to a Straddle Period or a Post-Closing Tax Period or any other Tax Claim the event that Seller refuse to assume Sellers’ Representative does not control, the defense Buyer shall, solely at its own cost and expense, control all proceedings and may make all decisions taken in connection with such Tax Claim (including selection of counsel) and, without limiting the foregoing, may in its sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any Taxing authority with respect thereto, and may, in its sole discretion, either pay the Tax claimed and xxx for a refund where applicable law permits such refund suits or contest the Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claimin any permissible manner; provided, howeverthat the Sellers’ Representative may, that neither Subsidiary nor Purchaser may consent at the Sellers’ expense, participate (including through its own counsel) in any contest of any Tax Claim in respect of a Straddle Period to the entry of extent that the Sellers will economically bear any judgment on or enter into resulting Tax liabilities. Notwithstanding the foregoing, the Buyer shall not settle any settlement such Tax Claim with respect to the Tax Claim such Straddle Period without the prior written consent of Sellerthe Sellers’ Representative, which consent shall not be unreasonably conditioned, withheld or delayed. Except to the extent otherwise provided with the prior written consent of the Buyer, Comfort Care, and its respective “partnership representatives” or “designated individuals” (as defined under the Partnership Audit Rules) shall make a “push-out” election under Section 6226 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to any taxable period ending on or before the Closing Date or any Straddle Period, following the final resolution of any Tax audit, examination or Proceeding, and following receipt of a notice of final partnership adjustment with respect to an imputed underpayment under Chapter 63 of the Code (or under similar state, local, or non-U.S. Law), and each Seller agrees to report its respective shares of any such adjustments on its respective U.S. federal income Tax Returns in compliance with the requirements of Section 6226 of the Code and the Treasury Regulations promulgated thereunder.

Tax Audits. (i) If any written notice of any actionpending or threatened audit or assessment, suit, investigation proposed adjustment, deficiency, dispute, administrative or audit with respect judicial proceeding or other similar claim is made by any taxing authority, which, if successful, might result in an indemnity payment to Taxes an indemnified party pursuant to Article 9, then such indemnified party shall give notice to the indemnifying party in writing of Subsidiary such claim and of any counterclaim the indemnified party proposes to assert (a “Tax Claim”) shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this Agreement); provided, however, the notified party failure to give such notice shall notify not affect the other party in writing of such Tax Claim. Failure to notify the other party of the Tax Claim will not relieve the other party of any liability that it may have to the notified party, indemnification provided hereunder except to the extent that the other indemnifying party demonstrates that the defense has been materially prejudiced as a result of such failure. With respect to any Tax Claim is prejudiced by the notified party’s failure to give such notice. (ii) To the extent the Tax Claim relates relating to a Pre-Closing Tax Period (other than a portion of any Straddle Period), Seller will have shall, solely at its own cost and expense, control all proceedings and may make all decisions in connection with such Tax Claim (including selection of counsel) and, without limiting the right to assume control of the defense of foregoing, may in its sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect thereto, and may, in its sole discretion, either pay the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes claimed and xxx for a refund where applicable Law permits such defense, Subsidiary and/or Purchaser shall have the right to participate in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of refund suits or contest the Tax Claim in accordance with any permissible manner. Notwithstanding the aboveforegoing, Subsidiary and/or Purchaser will Seller shall not consent to the entry of any judgment on or enter into any settlement with respect to the settle such Tax Claim without the prior written consent of SellerBuyer, which consent shall not be unreasonably conditioned, withheld, or delayed, if it reasonably determines that such Tax Claim could have a material adverse impact on the Taxes of either Acquired Company in a Post-Closing Tax Period. In the event that Seller refuse and Buyer shall jointly control and participate in all proceedings taken in connection with any Tax Claim relating to assume the defense Taxes of the Tax Claim as provided aboveAcquired Companies for a Straddle Period, Subsidiary and/or Purchaser may defend against the Tax Claim; provided, however, that neither Subsidiary and shall bear their own respective costs and expenses. Neither Seller nor Purchaser may consent to the entry of Buyer shall settle any judgment on or enter into any settlement with respect to the such Tax Claim without the prior written consent of Sellerthe other, which consent shall not be unreasonably conditioned, withheld, or delayed.

Tax Audits. (i) If notice of any action, suit, investigation or audit with respect to Taxes Tax Audit of Subsidiary the Company (a “”Tax Claim”) shall be received by either party (the “Recipient”) for which the other party may reasonably be expected to be liable pursuant to this AgreementSection 9.5(a), the notified party shall notify the such other party in writing of such Tax Claim no later than the earlier of (i) 5 days of receipt by the Recipient of such Tax Claim and (ii) 10 days prior to the deadline for responding to the Tax Claim. Failure Such notice shall contain factual information describing any asserted liability for Taxes in reasonable detail and shall be accompanied by copies of any notice and other documents received from any Taxing Authority with respect to notify such Tax Claim; provided, however, that if the Recipient fails to give such notice to the other party of the party, it shall not be entitled to indemnification pursuant to this Agreement in connection with such Tax Claim will not relieve the other party of any liability that it may have to the notified party, except to the extent that the other party demonstrates that the defense of such Tax Claim is prejudiced by the notified party’s failure to give such noticeAudit Notice results in a monetary detriment to the other party. (ii) To Purchaser shall have the right, at the expense of Seller to the extent the such Tax Claim relates is subject to indemnification by Seller pursuant to Section 9.5(a) hereof, to represent the interests of the Company in, and control the disposition of, any Tax Claim except Tax Claims relating to tax periods occurring prior to the Closing Date. With respect to a Pre-Tax Claim relating exclusively to taxable periods ending on or before the Closing Tax PeriodDate, Seller will shall have the sole right to assume represent the Company and exclusive control of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice disposition of the Tax Claim. If Seller assumes such defense, Subsidiary and/or Purchaser shall have With respect to any Tax Claim made by a Taxing Authority that creates liability to the right Company (as opposed to participate in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed Seller) that is part of an appeal by Seller. So long as , Seller has assumed and is conducting the defense shall not make any disposition of the Tax Claim in accordance with the above, Subsidiary and/or Purchaser will not consent to the entry of any judgment on or enter into any settlement with respect to the such Tax Claim without the prior written consent of Purchaser. (iii) If a Tax Claim is subject to indemnification by Seller pursuant to Section 9.5(a), and in order to (i) contest such Tax Claim or (ii) avoid the imposition of penalties (whether monetary or otherwise, including, without limitation, a stricter evidentiary standard) on the relevant taxpayer, Purchaser (or any Affiliate of Purchaser) or other relevant party must pay such Taxes in advance of such Tax Claim or post a bond, letter of credit, deposit, or other form of security, Seller. In , upon request of Purchaser, shall provide the event relevant Taxing Authority with such form of security as is acceptable to such Taxing Authority in order that Seller refuse to assume the defense of (i) the Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of Sellerbe contested and (ii) no such penalties are imposed.

Tax Audits. (i) If Purchaser shall promptly notify Cap Corp upon receipt by Purchaser or the Corporation of written notice of any actionTax audits of or proposed assessments against the Corporation for the taxation year ending immediately prior to the Closing Date; provided, suithowever, investigation or audit with respect that the failure -------- ------- of Purchaser to Taxes of Subsidiary (a “Tax Claim”) give Cap Corp prompt notice as required herein shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this Agreement, the notified party shall notify the other party in writing of such Tax Claim. Failure to notify the other party of the Tax Claim will not relieve the other party Cap Corp of any liability that it may have of its obligations to the notified party, pay such Taxes except and to the extent that the other party demonstrates that the defense of such Tax Claim Cap Corp is actually and materially prejudiced by the notified party’s failure to give such notice. (ii) To the extent the Tax Claim relates to a Pre-Closing Tax Period, Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claimthereby. If Seller assumes such defense, Subsidiary and/or Purchaser shall have the right to participate represent the Corporation in any such Tax audit or administrative or court proceeding and to employ counsel of its choice; provided, that Purchaser may not agree to a -------- settlement or compromise thereof without the prior consent of Cap Corp which consent will not be unreasonably withheld. Cap Corp and Gus agree xhat they will cooperate fully with Purchaser and its counsel in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from against or compromise of any claim in any said audit or proceeding. (ii) Cap Corp shall promptly notify Purchaser upon receipt by Cap Corp of written notice of any Tax audit or proposed assessment or other proposed change or adjustment which may affect the counsel employed by SellerCorporation or its Tax attributes. So long as Seller has assumed and is conducting the defense Cap Corp shall keep Purchaser duly informed of the progress thereof and, if the results of such Tax Claim in accordance with audit or proceeding may have an adverse effect on the aboveCorporation, Subsidiary and/or Purchaser or its Affiliates for any taxable period including or ending after the Closing Date, then Cap Corp may not agree to a settlement or compromise thereof without Purchaser's consent, which consent will not consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of Seller. In the event that Seller refuse to assume the defense of the Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of Sellerbe unreasonably withheld.

Tax Audits. (ia) If notice After the Closing, the Buyer shall notify ASC in writing (a “Tax Notice”) of any action, suit, investigation demand or audit claim received by the Buyer or any Company from any Tax authority or any other party with respect to Taxes of Subsidiary (a “Tax Claim”) shall be received by either party for which the other party may reasonably be expected to be Tax Indemnifying Party is liable pursuant to this Agreement, Section 11.1 within ten (10) days of the notified party shall notify the other party in writing receipt of such demand or claim by the Buyer or any Company; provided, however, that a failure to give such Tax Claim. Failure to notify Notice will not affect the other party rights of the Tax Claim will not relieve the other party of Buyer or any liability that it may have Company to the notified partyindemnification under Section 11.1 unless, or except to the extent that such failure precludes the Tax Indemnifying Parties from contesting such demand or claim. Such Tax Notice shall contain factual information (to the extent known) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other party demonstrates that the defense document received from any Tax authority in respect of any such asserted Tax Claim is prejudiced by the notified party’s failure to give such noticeliability. (iib) To Subject to the extent following sentence, ASC may elect to control the conduct, through counsel chosen by ASC and reasonably acceptable to the Buyer and at ASC’s own expense, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 11.1, including any contest in respect of an Interim Period (any such audit, claim for refund, or proceeding relating to an asserted Tax Claim relates liability is referred to herein as a Pre-Closing Tax Period“Contest”). If ASC elects to control a Contest, Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time ASC shall within thirty (30) calendar days after Seller has received notice of receipt of the Tax ClaimNotice notify the Buyer in writing of its intent to do so; provided, however, that the Buyer and the Companies are authorized to file any motion, answer or other pleading that may be reasonably necessary or appropriate to protect their interests during such 30 day period. If Seller assumes such defenseASC properly elects to control a Contest, Subsidiary and/or Purchaser then ASC shall have all rights to settle, compromise and/or concede such asserted liability and the right Buyer shall cooperate and shall cause the Companies (and any of their successors) to participate cooperate in each phase of such Contest. If ASC does not elect to control the defense thereof Contest, the Buyer or the Companies may, without affecting its or any other indemnified party’s rights to indemnification under this Article XI, assume and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting control the defense of such Contest with participation by the Sellers. (c) In the event that a Contest involves an Interim Period (a “Straddle Contest”), the parties shall endeavor to cause the Contest proceeding to be separated into two or more separate proceedings, one of which shall involve exclusively the applicable Interim Period. In the event that such separation cannot, after diligent efforts, be achieved, the Buyer and ASC shall jointly control the Straddle Contest; provided, however, that, subject to this Section 11.5 generally, the Buyer shall have all rights to make decisions, settle, compromise and/or concede such asserted liability as relates to the portion of the taxable period that begins after the Closing Date, and ASC shall have all rights to settle, compromise and/or concede such asserted liability as relates to the Interim Period. (d) With respect to a Contest that is described in paragraphs (b) and (c) of this Section, and which relates to a method of accounting, a recurring item of income, gain, loss, deduction or credit. Taxes other than income Taxes, franchise Taxes, and Transfer and Recording Taxes, ASC’s ability to settle, compromise and/or concede any asserted liability shall be subject to the Buyer’s consent, not to be unreasonably withheld, conditioned or delayed, if ASC’s proposed settlement, compromise or concession would adversely affect such Tax liability of a Company in a Post-Closing period; provided, however, if the Buyer does not provide ASC with such consent, and ASC shall pay to the Buyer the amount that ASC was willing to pay the Taxing authority to settle the asserted Tax liability, ASC shall be released by the Buyer from all indemnification obligations thereto pursuant to Section 11.1 and the Buyer shall assume control over the conduct of such Contest and shall have all rights if such Contest does not involve any issues for which ASC remains liable under this Article XI to make decisions, settle, compromise, and/or concede such asserted liability. (e) Notwithstanding anything contained in this Section 11.5 to the contrary, none of the Buyer or the Companies shall be required to permit ASC to contest any claim; provided, however, that the Tax Claim in accordance with Indemnifying Parties shall have no obligation to pay, indemnify or reimburse the above, Subsidiary and/or Purchaser will Buyer or the Companies for any amounts that the Buyer or the Companies pay without the prior approval of ASC (which may not consent to be unreasonably withheld or delayed if the entry of any judgment related indemnification obligation does not have a material economic impact on ASC or enter into any settlement the Indemnifying Parties) with respect to a claim ASC timely elects to contest but is not permitted to contest under this Section 11.5(e). (f) Notwithstanding anything contained in this Section 11.5 to the Tax Claim contrary, ASC shall not, without the prior written consent of Seller. In the event that Seller refuse Buyer (which consent shall not be unreasonably withheld, contained or delayed), settle, compromise or concede any asserted liability unless ASC has (i) paid or otherwise satisfied the asserted liability on or prior to assume the defense date of such settlement, compromise or concession, or (ii) obtained, as an unconditional term of such settlement, compromise or concession, an unconditional release, issued by the applicable taxing authority in favor of the Tax Claim as provided aboveCompanies, Subsidiary and/or Purchaser may defend against for all responsibility in respect of the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of Sellerasserted liability.

Tax Audits. (i) If any written notice of any actionpending or threatened audit or assessment, suit, investigation proposed adjustment, deficiency, dispute, administrative or audit with respect judicial proceeding or other similar claim is made by any taxing authority, which, if successful, might result in an indemnity payment to Taxes an indemnified party pursuant to Article 9, then such indemnified party shall give notice to the indemnifying party in writing of Subsidiary such claim and of any counterclaim the indemnified party proposes to assert (a “Tax Claim”) shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this Agreement); provided, however, the notified party failure to give such notice shall notify not affect the other party in writing of such Tax Claim. Failure to notify the other party of the Tax Claim will not relieve the other party of any liability that it may have to the notified party, indemnification provided hereunder except to the extent that the other indemnifying party demonstrates that the defense has been materially prejudiced as a result of such failure. With respect to any Tax Claim is prejudiced by the notified party’s failure to give such notice. (ii) To the extent the Tax Claim relates relating solely to a Pre-Closing Tax Period (other than a portion of any Straddle Period), Seller will have the right to assume shall, solely at its own cost and expense, control of the defense of the all proceedings and may make all decisions in connection with such Tax Claim with counsel (including selection of their choice at any time within thirty (30) days after counsel). Notwithstanding the foregoing, Seller has received notice of the Tax Claim. If Seller assumes shall not settle or otherwise resolve such defense, Subsidiary and/or Purchaser shall have the right to participate in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of the Tax Claim in accordance with the above, Subsidiary and/or Purchaser will not consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of SellerBuyer, which consent shall not be unreasonably conditioned, withheld, or delayed. In the event that Seller refuse Buyer shall control all proceedings taken in connection with any Tax Claim relating to assume the defense Taxes of the Tax Claim as provided above, Subsidiary and/or Purchaser Company for a Straddle Period and Seller may defend against the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may consent to the entry of participate in such proceedings at its own expense. Buyer shall not settle any judgment on or enter into any settlement with respect to the such Tax Claim without the prior written consent of the Seller, which consent shall not be unreasonably conditioned, withheld, or delayed.

Tax Audits. (ia) If notice of any action, suit, investigation or audit Legal Proceeding with respect to Taxes of Subsidiary relating to BPP or the Transferred Assets (a “Tax Claim”) shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this AgreementSection 11.1, the notified party shall notify the promptly inform such other party in writing of such Tax Claim. Failure ; provided, however, that the failure of the notified party to notify give the other party of the Tax Claim will notice as provided herein shall not relieve the other such failing party of any liability that it may have to the notified party, its obligations under Section 11.1 except to the extent that the other party demonstrates that the defense of such Tax Claim is actually and materially prejudiced by the notified party’s failure to give such noticethereby. (iib) To the extent the Tax Claim relates to a Pre-Closing Tax Period, Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes such defense, Subsidiary and/or Purchaser shall have the right right, at its expense to represent the interests of the Seller Entities or BPP in any Tax Claim relating exclusively to taxable periods ending on or before the Closing Date, provided, however, that (i) Seller shall allow Purchaser and its counsel to participate in the defense thereof any Legal Proceeding at Purchaser’s sole expense; (ii) Seller shall keep Purchaser fully and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of the Tax Claim in accordance with the above, Subsidiary and/or Purchaser will not consent to the entry of any judgment on or enter into any settlement timely informed with respect to the commencement, status and nature of any such Legal Proceeding; (iii) if the results of any such Legal Proceeding involve an issue that recurs in taxable periods ending after the Closing Date or otherwise could adversely affect Purchaser, BPP or their Affiliates for any taxable period ending after the Closing Date, then Seller and Purchaser shall jointly control the defense and settlement of any such Legal Proceeding and each party shall cooperate with the other party at its own expense, and there shall be no settlement or closing or other agreement with respect thereto without the consent of the other party, which consent shall not be unreasonably withheld; and (iv) if Seller does not elect to represent the Seller Entities’ or BPP’s interests in any such Legal Proceeding, then Purchaser, BPP or any of their Affiliates may pay, compromise or contest such asserted Tax Claim without with Seller’s written consent, which consent shall not be unreasonably withheld. (c) Purchaser shall represent, at its expense, the prior written consent interests of Seller. In the event that Seller refuse to assume the defense of the BPP in any Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claimrelating to a Straddle Period; provided, however, that neither Subsidiary nor (i) Purchaser may consent shall allow Seller and its counsel to the entry of participate in any judgment on or enter into any settlement Legal Proceeding at Seller’s sole expense; (ii) Purchaser shall keep Seller fully and timely informed with respect to the Tax Claim commencement, status and nature of such Legal Proceeding; and (iii) if the results of any such Legal Proceeding involve an issue which is the subject of indemnification by Seller pursuant to Section 11.1, then Purchaser and Seller shall jointly control the defense and settlement of any such Legal Proceeding and each party shall cooperate with the other party at its own expense, and there shall be no settlement or closing or other agreement with respect thereto without the prior written consent of Sellerthe other party, which consent shall not be unreasonably withheld.

Tax Audits. (i) If notice the Company or MGP OP receives any claim, demand, assessment or other assertion that could (i) result in recognition of any actionBuilt-In Gain by, suitor allocation of Built-In Gain to, investigation a Protected Party, (ii) impact the allocation of liabilities to MGP OP (through the MGP Member), or audit with respect to Taxes (ii) impact the tax treatment of Subsidiary the Transactions (a “Company Tax ClaimAudit”) shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this Agreement), the notified party Company, shall notify the other party in writing of such Tax Claim. Failure to notify the other party of the Tax Claim will not relieve the other party of any liability that it may have provide notice to the notified partyProtected Party Representative and MGP REIT, except to and the extent that the other party demonstrates that the defense of such Tax Claim is prejudiced by the notified party’s failure to give such notice. (ii) To the extent the Tax Claim relates to a Pre-Closing Tax Period, Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes such defense, Subsidiary and/or Purchaser Protected Party Representative shall have the right to participate in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of the such Company Tax Claim in accordance with the above, Subsidiary and/or Purchaser will not consent to the entry of any judgment on or enter into any settlement Audit with respect to such matters, and the Company, shall not settle the applicable portion of any such Company Tax Claim Audit without the prior written consent of Seller. In the event that Seller refuse Protected Party Representative (such consent not to assume the defense of the Tax Claim as provided abovebe unreasonably withheld, Subsidiary and/or Purchaser may defend against the Tax Claimconditioned or delayed); provided, however, that neither Subsidiary nor Purchaser may consent if and to the entry extent that the Company agrees in writing that the Protected Parties’ tax (including the amount of any judgment on or enter into any settlement such tax) with respect to a matter is indemnified under Section 3 of this Agreement, the Protected Party Representative’s consent shall not be required to settle such matter. (ii) If any Protected Party receives any claim, demand, assessment or other assertion that could result in a tax liability giving rise to an indemnification obligation by the Company under Section 3(a) (a “Protected Party Tax Claim Audit” or Company Tax Audit herein referred to as a “Tax Audit”), such Protected Party shall provide notice to the Company, and the Company shall have the right to participate in such claim, demand, assessment or other contest to the extent of the applicable portion that could result in an obligation of the Company under this Agreement, and such Protected Party shall not settle the applicable portion of any such claim, demand, assessment or other contest without the prior written consent of Sellerthe Company, such consent not to be unreasonably withheld, conditioned or delayed. (iii) Notwithstanding anything to the contrary herein, if any Tax Audit causes a change in the amount owed by the Company to any Protected Party pursuant to Section 3(a), then (i) if there is an increase in the amount owed by the Company to any Protected Party, the Company shall pay to such Protected Party any incremental amount of damages resulting from such increase, or (ii) if there is a decrease in the amount owed by the Company to any Protected Party, such Protected Party shall pay to the Company any incremental decrease in the amount of damages previously paid to the Protected Party, in each case, as calculated pursuant to Section 3(a).

Tax Audits. If a claim shall be made by any Taxing Authority that, if successful, would result in the indemnification of a Purchaser Indemnitee for any claim in respect of Taxes under Section 8.5(a), the Purchaser Indemnitee shall promptly notify the Seller in writing of such fact. The Seller shall control the conduct of any such contest, taking into account the reasonable requests of the Purchaser Indemnitee with respect to the conduct of the contest, provided that (i) If notice such contest relates to a period that ends on or prior to the Closing Date, (ii) such contest may be conducted separately from the defense of any actionclaim, suit, investigation action or audit proceeding not subject to this Section 8.5(d), and (iii) such contest would not reasonably be expected to have any material negative impact on any period ending after the Closing Date. Notwithstanding any provision of this Agreement to the contrary, Purchaser shall control any Tax contest that is not described in the preceding sentence, and Seller shall be permitted to participate in, but not control, any such Tax contest. The Seller with respect to Taxes any Tax contest, and the applicable Purchaser Indemnitee with respect to any such Tax contest that relates to a Straddle Period, hereby agree: (x) to provide, or cause to be provided, to the other party copies of Subsidiary all correspondence received from or delivered to the applicable Taxing Authority; (a “Tax Claim”y) shall be received by either party for which to confer with the other party, as the other party may reasonably be expected request from time to be liable pursuant time with respect to this Agreementsuch Tax contest; and, (z) except with respect to any Tax contest controlled by Purchaser and which relates to a period ending after the notified party shall notify Closing Date, not to settle or close the Tax contest without the consent of the other party in writing of such Tax Claim. Failure to notify the other party of the Tax Claim will (which consent shall not relieve the other party of any liability that it may have to the notified party, except to the extent that the other party demonstrates that the defense of such Tax Claim is prejudiced by the notified party’s failure to give such noticebe unreasonably withheld or delayed). (ii) To the extent the Tax Claim relates to a Pre-Closing Tax Period, Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes such defense, Subsidiary and/or Purchaser shall have the right to participate in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of the Tax Claim in accordance with the above, Subsidiary and/or Purchaser will not consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of Seller. In the event that Seller refuse to assume the defense of the Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of Seller.

Tax Audits. (a) In the event a Tax authority notifies Purchaser or any of its Affiliates (including, effective upon the Closing, the Sold Subsidiaries) in writing of a Tax audit or other administrative or judicial proceeding which could reasonably be expected to affect the liability of a Sold Subsidiary, Purchaser or an Affiliate of Purchaser for Taxes for which such party is entitled to indemnification under Section 8.2 (an “Excluded Tax Proceeding”), Purchaser shall give prompt written notice thereof to Sellers and will give Sellers such information with respect thereto as Sellers may reasonably request. Sellers may, at their own expense, (i) If participate in and (ii) upon notice to Purchaser, assume control of the conduct of any actionsuch Excluded Tax Proceeding; provided that (x) Sellers shall thereafter keep Purchaser promptly and fully informed as to the progress of such Excluded Tax Proceeding and (y) Sellers shall not, suitwithout Purchaser’s prior written consent, investigation agree to any settlement or audit compromise of or take or omit to take any other action or omission in respect of such proceeding or the Taxes or Tax Returns at issue therein if such settlement or compromise or other action could adversely affect the Tax liability of any Purchaser Indemnified Party with respect to Taxes for which such party would not be entitled to indemnification under Sections 8.2 and 8.4. Unless and until Sellers assume control of Subsidiary an Excluded Tax Proceeding in accordance with the preceding sentence, Purchaser shall control the conduct of such proceeding. Subject to the foregoing provisions of this Section 7.2(a), all of the parties shall cooperate in the conduct of an Excluded Tax Proceeding. Sellers shall not be liable under Section 8.2(f) with respect to any breach by Purchaser of the first sentence of this Section 7.2(a), to the extent Sellers’ liability under Section 8.2(f) is materially adversely affected as a result thereof. In addition, notwithstanding anything to the contrary in this Agreement, this Section 7.2(a) and not Section 8.5 shall govern the conduct of all Excluded Tax Proceedings. In the event a Purchaser Indemnified Party decides to seek indemnification for an Excluded Tax, a Tax described in Section 2.4(f) or a Tax resulting from a breach of a representation or warranty in Section 3.7, it shall notify Sellers in writing of such claim and the amount due. In the event that (x) Purchaser or any of its Affiliates (including, effective upon the Closing, the Sold Subsidiaries) receives a refund of Taxes arising from or related to any Excluded Tax Proceeding, (y) the amount of the 2006 Tax Refund received by Purchaser or any of its Affiliates exceeds the 2006 Tax Refund Amount, or (z) the Tax Escrow Agreement has expired in accordance with its terms, the 2006 Tax Refund Amount deposited pursuant thereto has been returned to Purchaser, and Purchaser or any of its Affiliates receives the 2006 Tax Refund following such expiration, Purchaser shall, within 10 Business Days after receipt thereof, pay any such refund over to Sellers (or any party designated by Sellers), together with interest received from the applicable taxing authority in respect of such refund; provided, however, that any such amount to be repaid to Sellers shall be (i) decreased by any Tax imposed (in the form of an actual increase of its cash Tax expense for the period in which the applicable amount is received by Purchaser or its Affiliate or prior periods) in respect of the receipt or accrual of such refund or interest by Purchaser or its Affiliate, (ii) increased by any Tax benefit realized or reasonably expected to be realized by Purchaser or its Affiliate (in the form of an actual reduction of its cash Tax expense for the period in which the applicable amount is paid by Purchaser pursuant to this Section 7.2 or prior periods) in respect of the payment of any amount pursuant to this Section 7.2, and (iii) in the case of the 2006 Tax Refund, decreased by any reasonable costs or expenses of Purchaser or its Affiliates (including the Sold Subsidiaries) incurred after the Closing Date in connection with the pursuit of such 2006 Tax Refund and not otherwise paid to Purchaser or such Affiliate from the 2006 Tax Refund Amount held in escrow. (b) In the event a Tax authority notifies a Seller or any Affiliate of a Seller in writing of an audit or other administrative or judicial proceeding in respect of an Excluded Tax or a Tax described in Section 2.4(f) for which any Purchaser Indemnified Party could be held liable under applicable Law, by contract or otherwise (a “Seller Excluded Tax ClaimProceeding”), Sellers shall give prompt notice thereof to Purchaser and will keep Purchaser promptly and fully informed as to the progress of such Seller Excluded Tax Proceeding, including providing copies of the Tax Returns at issue in such proceeding promptly after the commencement of such proceeding and providing promptly copies of all correspondence between the parties to the proceeding. If at any time following the commencement of a Seller Excluded Tax Proceeding a Seller or a material Affiliate of a Seller (if such Seller Excluded Tax Proceeding relates to such material Affiliate) becomes Bankrupt, then Sellers shall be received by either party for which give prompt notice to Purchaser thereof and, if (A) Purchaser reasonably determines that Sellers are not devoting similar resources and effort to contesting such proceeding as Sellers would have devoted had Sellers not become Bankrupt and (B) the other party may Tax liability resulting from such proceeding would reasonably be expected to be liable exceed the remaining Escrow Amount at such time, less the aggregate amount of any outstanding claims for indemnification made by Purchaser pursuant to this AgreementSection 8.2, the notified party shall notify the other party in writing of such Tax Claim. Failure to notify the other party of the Tax Claim will not relieve the other party of any liability that it may have to the notified party, except to the extent that the other party demonstrates that the defense of such Tax Claim is prejudiced by the notified party’s failure to give such notice. (iii) To the extent the Tax Claim relates to a Pre-Closing Tax Period, Seller will have the right to assume control of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes such defense, Subsidiary and/or Purchaser shall have the right be entitled to participate in the defense thereof conduct of such Seller Excluded Tax Proceeding and to employ (ii) if the final settlement or compromise reached with the taxing authority will exceed the remaining Escrow Amount at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense time of the Tax Claim in accordance with settlement or compromise, less the above, Subsidiary and/or Purchaser will not consent to the entry aggregate amount of any judgment on outstanding claims for indemnification made by Purchaser pursuant to Section 8.2, Sellers shall not settle or enter into any settlement with respect to the compromise such Seller Excluded Tax Claim Proceeding without the prior written consent of SellerPurchaser (not to be unreasonably withheld). In the event that Seller refuse to assume the defense For purposes of the Tax Claim as provided abovethis Section, Subsidiary and/or Purchaser may defend against the Tax Claim; provided“Bankrupt” means, however, that neither Subsidiary nor Purchaser may consent to the entry of any judgment on or enter into any settlement with respect to any Person, that such Person becomes a party to a bankruptcy, liquidation or winding up proceeding or, to the Tax Claim without extent this paragraph is applied to a material Affiliate of the prior written consent Seller located outside the United States, the substantial equivalent of Sellersuch proceedings in such foreign jurisdiction.

Tax Audits. Each Party shall notify the other Parties in writing upon receipt of any claim for Taxes of the Company or any of its Subsidiaries (i) If including notice of a pending audit) by any action, suit, investigation Governmental Body which relates to any Pre-Closing Period or audit with respect to Taxes of Subsidiary Straddle Period (a “Tax Claim”). (i) The Shareholder Representative shall be received by either party for have the right to represent the interests of the Company in any Tax Claim which relates solely to a Pre-Closing Period and to employ counsel of its choice at its expense. Buyer shall have the other party may reasonably be expected right to be liable pursuant to this Agreementparticipate, the notified party shall notify the other party at its own expense, in writing of any such Tax Claim. Failure to notify the other party of the Tax Claim will not relieve the other party of any liability that it may have to the notified party, except to the extent that the other party demonstrates that the defense of such Tax Claim is prejudiced by could have a Material Adverse Effect on Buyer after the notified party’s failure Closing Date. Notwithstanding the foregoing, the Shareholder Representative may not settle, either administratively or after the commencement of litigation, any Tax Claim in which Buyer has a right to give such noticeparticipate as provided in the preceding sentence without the prior written consent of Buyer, which consent will not be unreasonably withheld, delayed, or conditioned. (ii) To the extent the Tax Claim relates to a Pre-Closing Tax Period, Seller will Buyer shall have the right to assume control represent the interests of the defense of the Company in any Tax Claim with which relates solely to the Straddle Periods and to employ counsel of their its choice at any time within thirty (30) days after Seller has received notice of the Tax Claimits expense. If Seller assumes such defense, Subsidiary and/or Purchaser The Shareholder Representative shall have the right to participate in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of the any such Tax Claim in accordance with at it own expense. Notwithstanding the aboveforegoing, Subsidiary and/or Purchaser will Buyer may not consent to settle, either administratively or after the entry commencement of litigation, any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of Seller. In the event that Seller refuse to assume the defense of the Tax Claim as provided aboveShareholder Representative, Subsidiary and/or Purchaser may defend against the Tax Claim; providedwhich consent will not be unreasonably withheld, however, that neither Subsidiary nor Purchaser may consent to the entry of any judgment on delayed or enter into any settlement with respect to the Tax Claim without the prior written consent of Sellerconditioned.

Tax Audits. (ia) If notice Seller shall exercise, at its sole cost and expense, complete control over the handling, disposition and settlement of any actionGovernmental Authority inquiry, suit, investigation examination or audit proceeding with respect to Taxes of Subsidiary any Combined Company for any taxable period for which Seller is or may be liable or may be required to indemnify Buyer pursuant to this Agreement (a “Tax ClaimAudit”). (b) shall be received by either party for which the other party may reasonably be expected to be liable pursuant to this AgreementBuyer or Seller, the notified party as applicable, shall notify the other party Party in writing promptly upon learning of such any Tax Claim. Failure Audit provided that any failure of a Party to so notify the other party of the any Tax Claim will Audit shall not relieve the other party such Party of any liability that it may have with respect to the notified party, such Tax Audit except to the extent that the other party demonstrates that the defense of such Tax Claim is Party was actually prejudiced by the notified party’s failure to give such noticeas a result thereof. (iic) To the extent the Tax Claim relates to a Pre-Closing Tax Period, Seller will have the right to assume control shall keep Buyer reasonably informed of the defense of the Tax Claim with counsel of their choice at any time within thirty (30) days after Seller has received notice of the Tax Claim. If Seller assumes such defense, Subsidiary and/or Purchaser shall have the right to participate in the defense thereof and to employ at their own expense counsel reasonably acceptable to Seller separate from the counsel employed by Seller. So long as Seller has assumed and is conducting the defense of the Tax Claim in accordance with the above, Subsidiary and/or Purchaser will not consent to the entry progress of any judgment on or enter into Tax Audit under Seller’s sole control pursuant to this Section 10.5, and Seller shall not effect any settlement with respect to or compromise of any such Tax Audit that would materially increase the Tax Claim Taxes for which Buyer is liable under this Agreement without the obtaining Buyer’s prior written consent thereto, which consent shall not be unreasonably withheld or delayed. (d) Buyer shall cooperate with Seller, as Seller may reasonably require, in any such Tax Audit. (e) The provisions of Seller. In the event that Seller refuse Section 12.3 do not apply to assume the defense of the a Tax Claim as provided above, Subsidiary and/or Purchaser may defend against the Tax Claim; provided, however, that neither Subsidiary nor Purchaser may consent to the entry of any judgment on or enter into any settlement with respect to the Tax Claim without the prior written consent of SellerAudit.