Taxes (i) All Tax Returns required to be filed by each of the Company and its Subsidiaries have been timely filed, or requests for extensions to file such Tax Returns have been timely filed, granted and have not expired, and all such Tax Returns are complete and correct, except to the extent that such failures to file, to have extensions granted that remain in effect or for such Tax Returns to be complete or correct, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company. All material Taxes that are due with respect to the Company and its Subsidiaries have been paid or properly accrued in accordance with GAAP. Since the date of the most recent SEC Reports, no Tax liability with respect to the Company and its Subsidiaries has been incurred outside the ordinary course of business or otherwise inconsistent with past custom and practice.
(ii) No deficiencies for any Taxes have been proposed, asserted or assessed in writing in respect of or against the Company or any of its Subsidiaries that are not adequately reserved for in the financial statements of the Company included in the Company Financial Statements, except for deficiencies that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company. No written claim has been made to the Company or any of its Subsidiaries by a Governmental Entity in a jurisdiction where the Company or any of its Subsidiaries does not file an income or franchise Tax Return that any of the Company or its Subsidiaries is or may be subject to income or franchise Taxes in that jurisdiction.
(iii) None of Parent, the Company or any of their Subsidiaries has taken any action that could reasonably be expected to prevent the Distribution from qualifying as a distribution eligible for non-recognition under Sections 355(a) and 361(c) of the Code.
(iv) Other than the Distribution and the Regarded Internal Distributions (as defined in the Tax Matters Agreement), within the past five (5) years, none of the Company or its Subsidiaries has been either a “distributing corporation” or a “controlled corporation” in a distribution in which the parties to such distribution treated the distribution as one to which Section 355 of the Code is applicable.
(v) Except for the Transaction Agreements, none of the Company or any of its Subsidiaries is a party to any Tax sharing or Tax indemnity agreements (excluding any commercial agreements not primarily relating to Taxes).
(vi) None of the Company or any of its Subsidiaries has agreed to make, or is required to make, any material adjustment affecting any open taxable year or period under Section 481(a) of the Code or any similar provision of state, local or foreign law by reason of a change in accounting methods or otherwise.
(vii) Neither the Company nor any of its Subsidiaries has any material liability under Treasury Regulation Section 1.1502-6 (or any comparable or similar provision of federal, state, local or foreign Applicable Law), as a transferee or successor, or pursuant to any contractual obligation for any Taxes of any Person other than the Company or any of its Subsidiaries.
(viii) Neither the Company nor any of its Subsidiaries has engaged in one of the types of transactions the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a “listed transaction,” as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(ix) No later than the Effective Time, Parent will have received the opinion of PricewaterhouseCoopers LLP (i) concluding that the Distribution “will” qualify as a transaction that is tax-free for U.S. federal income tax purposes under Sections 355 and Section 361 of the Code (other than with respect to cash in lieu of fractional shares) and (ii) concluding that the Regarded Internal Distributions (as defined in the Tax Matters Agreement) “should” or “will” qualify as tax-free for U.S. federal income tax purposes under Sections 355 and Section 361 of the Code (other than with respect to cash in lieu of fractional shares), which opinion shall not have been amended, replaced or revoked as of the Effective Time.
Tax Liability The Authorized Participant shall be responsible for the payment of any transfer tax, sales or use tax, stamp tax, recording tax, value added tax and any other similar tax or government charge applicable to the creation or redemption of any Basket made pursuant to this Agreement, regardless of whether or not such tax or charge is imposed directly on the Authorized Participant. To the extent the Trustee, the Sponsor or the Trust is required by law to pay any such tax or charge, the Authorized Participant agrees to promptly indemnify such party for any such payment, together with any applicable penalties, additions to tax or interest thereon.
