Common use of Tax Matters; Access Clause in Contracts

Tax Matters; Access. (i) The Seller shall be liable for and shall pay any and all Taxes applicable to the Business or the Acquired Assets attributable to periods (or portions thereof) ending on or before the Closing Date. The Buyer shall be liable for and shall pay all Taxes applicable to the Business or the Acquired Assets attributable to periods (or portions thereof) beginning on the day following the Closing Date. The Buyer and the Seller agree to utilize, or cause their respective Affiliates to utilize, the standard procedure set forth in Revenue Procedure 96-60 with respect to wage reporting. (ii) Notwithstanding §5(e)(i) or anything else in this Agreement to the contrary, the Seller and Buyer agree to each pay on a timely basis fifty percent (50%) of all applicable transfer, sales, use, recording, registration and other similar Taxes (excluding any income or similar Taxes) (collectively, the “Transfer Taxes”) arising out of the sale of the Acquired Assets and the Business to the Buyer. The Buyer and the Seller shall cooperate in the preparation, execution and filing of all returns, questionnaires, applications or other documents regarding any Transfer Taxes that become payable in connection with the transactions contemplated by this Agreement. The Buyer and the Seller shall jointly participate in the defense and settlement of any audit of, dispute with taxing authorities regarding, and any judicial or administrative proceeding relating to the liability for Transfer Taxes incurred in connection with this Agreement; provided, that neither Party shall settle any such audit, examination or proceeding without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Each Party shall bear its own costs in participating in any such audit, examination or proceeding. (iii) The Seller or the Buyer, as the case may be, shall reimburse any Tax paid by one Party all or a portion of which is the responsibility of the other Party in accordance with the terms of this §5(e). Within a reasonable time prior to the payment of any such Tax, the Party paying such Tax shall give notice to the other Party of the Tax payable and the portion which is the liability of each Party, although failure to do so will not relieve the other Party from its liability hereunder. (iv) The Buyer shall promptly notify the Seller in writing upon receipt by Buyer of notice of any pending or threatened federal, state, local or foreign Tax audits, examinations or assessments which may materially affect the Tax liabilities which are the responsibility of the Seller pursuant to this §5(e). The Seller shall have the sole right to control any Tax audit or administrative or court proceeding relating to Tax periods ending at the time of or before the Closing, and to employ counsel of its choice at its expense. (v) After the Closing, each of the Seller and the Buyer shall, as reasonably requested by the other Party: (A) assist the other Party in preparing any Tax Returns relating to the Business which such other Party is responsible for preparing and filing; (B) cooperate fully in preparing for any audit of, or dispute with taxing authorities regarding, and any judicial or administrative proceeding relating to, liability for Taxes, in the preparation or conduct of litigation or investigation of claims, and in connection with the preparation of financial statements or other documents to be filed with any Governmental Entity, in each case with respect to the Business or the Acquired Assets; (C) make available to the other and to any Governmental Entity as reasonably requested all information, records, and documents relating to Taxes relating to the Business or the Acquired Assets (at the cost and expense of the requesting party), (D) provide timely notice to the other in writing of any pending or threatened Tax audits or assessments relating to the Business or the Acquired Assets for taxable periods for which the other Party is responsible under this §5(e); and (E) furnish the other with copies of all correspondence received from any taxing authority in connection with any Tax audit or information request with respect to any Tax periods for which the other is responsible under this §5(e). Any information obtained pursuant to this §5(e)(v) or pursuant to any other Section hereof providing for the sharing of information or review of any Tax Return or other schedule relating to Taxes shall be kept confidential by the parties hereto, except to the extent such information is required to be disclosed by law, regulation or judicial order. (vi) Taxes imposed on the Acquired Assets or Business for any taxable period that includes (but does not end on) the Closing Date (a “Straddle Period”), shall be prorated as of the Closing Date, with the Seller liable for such Taxes to the extent such items relate to the portion of the period through the end of the Closing Date (the “Pre-Closing Period”). In the case of any Straddle Period, the amount of any Taxes based on or measured by income or receipts for the Pre-Closing Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date and the amount of other Taxes that relates to the Pre-Closing Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the total number of days in such Straddle Period. The Buyer shall prepare and timely file all Tax Returns required to be filed in connection with the Business or the Acquired Assets for the Straddle Period (such Tax Returns, the “Straddle Period Tax Returns”). All such Straddle Period Tax Returns shall be prepared and filed in a manner that is consistent with the prior practice, except as required by the applicable Law. The Buyer shall deliver drafts of all such Straddle Period Tax Returns to the Seller for its review at least 10 days prior to the due date of any such Tax Return (taking into account valid extensions) and shall notify the Seller of the Buyer’s calculation of the Seller’s share of the Taxes of the Business for the Straddle Period; provided, however, that such drafts of any such Straddle Period Tax Returns and such calculations of the Seller’s share of the Tax liability for such Straddle Period shall be subject to the Seller’s review and approval, which approval shall not be unreasonably withheld or delayed. If the Seller disputes any item on such Tax Return, it shall notify the Buyer (by written notice within 10 days of receipt of the Buyer’s calculation) of such disputed item (or items) and the basis for its objection. If the Seller does not object by written notice within such period, the Buyer’s calculation of the Seller’s share of the Taxes for the Straddle Period shall be deemed to have been accepted and agreed upon, and final and conclusive, for all purposes hereof. The Parties shall act in good faith to resolve any such dispute prior to the date on which the Tax Return is required to be filed. If the Parties cannot resolve any disputed item, the item in question shall be resolved by an independent auditor (selected in accordance with the provisions set forth in §2(d)(ii)) in accordance with the standards set forth in this §5(e) and as promptly as practicable. The fees and expenses of the independent auditor shall be paid in the manner set forth in §2(d)(ii). No later than five (5) days prior to the filing of such Tax Return, the Seller shall pay the Buyer in immediately available funds the amount of the Seller’s share of the Tax liability for the Straddle Period determined under this §5(e)(vi). Subject to the preceding sentence, the Buyer shall pay or cause to be paid all Taxes due and payable in respect of all such Straddle Period Tax Returns. (vii) On or prior to the Closing Date, Seller and each Affiliate of Seller that is selling and assigning Acquired Assets pursuant to this Agreement shall furnish to Buyer a certificate, in the form attached hereto as Exhibit F, stating, under penalties of perjury, the Seller’s or Affiliate’s (as the case may be) taxpayer identification number, and that such Seller or relevant Affiliate is not a foreign person in accordance with Section 1445(b)(2) of the Code.

Tax Matters; Access. (ia) The Seller Member Representative shall prepare and file all Tax Returns for any Pre-Closing Tax Periods (other than Straddle Periods) relating to the Target. Member Representative shall be liable for and shall pay any and all Taxes applicable related to the Business Target or the Acquired Assets attributable to periods (or portions thereof) ending on or before conduct of the Target’s business for all Pre-Closing DateTax Periods. The Buyer shall prepare and file all Tax Returns for any Post-Closing Tax Period. The Buyer shall be liable for and shall pay all Taxes applicable related to the Business or conduct of the Acquired Assets attributable to periods (or portions thereof) beginning on the day following the Target’s business for all Post-Closing Date. The Buyer and the Seller agree to utilize, or cause their respective Affiliates to utilize, the standard procedure set forth in Revenue Procedure 96-60 with respect to wage reportingTax Periods. (ii) Notwithstanding §5(e)(i) or anything else in this Agreement to the contrary, the Seller and Buyer agree to each pay on a timely basis fifty percent (50%) of all applicable transfer, sales, use, recording, registration and other similar Taxes (excluding any income or similar Taxes) (collectively, the “Transfer Taxes”) arising out of the sale of the Acquired Assets and the Business to the Buyer. The Buyer and the Seller shall cooperate in the preparation, execution and filing of all returns, questionnaires, applications or other documents regarding any Transfer Taxes that become payable in connection with the transactions contemplated by this Agreement. The Buyer and the Seller shall jointly participate in the defense and settlement of any audit of, dispute with taxing authorities regarding, and any judicial or administrative proceeding relating to the liability for Transfer Taxes incurred in connection with this Agreement; provided, that neither Party shall settle any such audit, examination or proceeding without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Each Party shall bear its own costs in participating in any such audit, examination or proceeding. (iii) The Seller or the Buyer, as the case may be, shall reimburse any Tax paid by one Party all or a portion of which is the responsibility of the other Party in accordance with the terms of this §5(e). Within a reasonable time prior to the payment of any such Tax, the Party paying such Tax shall give notice to the other Party of the Tax payable and the portion which is the liability of each Party, although failure to do so will not relieve the other Party from its liability hereunder. (ivb) The Buyer shall promptly notify the Seller Member Representative in writing upon with five (5) days of receipt by the Buyer of notice of any pending or threatened federal, state, local or foreign Tax audits, examinations examinations, compliance checks or assessments for which the Members may materially affect the Tax liabilities which are the responsibility of the Seller pursuant to this §5(e)be liable. The Seller Members shall have the sole right to control any Tax audit or administrative or court proceeding relating to any Pre-Closing Tax periods ending at the time of or before the ClosingPeriods (other than Straddle Periods), and to employ counsel of its choice at its expense. (vc) After the Closing, each of the Seller Members and the Buyer shall, as reasonably requested by the other Partyparty: (Ai) assist cooperate with the other Party party in preparing any Tax Returns relating to the Business which such other Party is responsible for preparing and filingconduct of the Target’s business; (Bii) cooperate fully in preparing for any audit of, or dispute with taxing authorities any Governmental Entity regarding, and any judicial or administrative proceeding relating to, liability for Taxes, in the preparation or conduct of litigation or investigation of claims, and in connection with the preparation of financial statements or other documents to be filed with any Governmental Entity, in each case with respect to the Business or the Acquired Assets; (C) make available to the other and to any Governmental Entity as reasonably requested all information, records, and documents relating to Taxes relating to the Business or the Acquired Assets (at the cost and expense conduct of the requesting party), (D) provide timely notice to the other in writing of any pending or threatened Tax audits or assessments relating to the Business or the Acquired Assets for taxable periods for which the other Party is responsible under this §5(e)Target’s business; and (Eiii) furnish the other with copies of all correspondence received from any taxing authority in connection with any Tax audit audit, examinations, compliance checks or information request with respect to any Tax periods for which the other is responsible under this §5(e)responsible. Any information obtained pursuant to this §5(e)(vSection 7.1(c) or pursuant to any other Section hereof providing for the sharing of information or review of any Tax Return or other schedule relating to Taxes shall be kept confidential by the parties heretoParties, except to the extent such information is required to be disclosed by lawLaw. Notwithstanding anything in this Agreement to the contrary, regulation neither the Buyer nor the Members shall be obligated to provide or judicial ordermake available to the other party any proprietary business information or copies of either party’s respective Tax Return. (vid) Taxes imposed on the Acquired Assets or Business for any taxable period that includes (but does not end on) the Closing Date (a “Straddle Period”), shall be prorated as of the Closing Date, with the Seller liable for such Taxes to the extent such items relate to the portion of the period through the end of the Closing Date (the “Pre-Closing Period”). In the case of any Straddle Period, the amount of any Taxes based on or measured by income or receipts for the Pre-Closing Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date The Buyer and the amount of other Taxes that relates Target agree to utilize, or cause their respective Affiliates to utilize the Pre-Closing Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the total number of days in such Straddle Period. The Buyer shall prepare and timely file all Tax Returns required to be filed in connection with the Business or the Acquired Assets for the Straddle Period (such Tax Returns, the “Straddle Period Tax Returns”). All such Straddle Period Tax Returns shall be prepared and filed in a manner that is consistent with the prior practice, except as required by the applicable Law. The Buyer shall deliver drafts of all such Straddle Period Tax Returns to the Seller for its review at least 10 days prior to the due date of any such Tax Return (taking into account valid extensions) and shall notify the Seller of the Buyer’s calculation of the Seller’s share of the Taxes of the Business for the Straddle Period; provided, however, that such drafts of any such Straddle Period Tax Returns and such calculations of the Seller’s share of the Tax liability for such Straddle Period shall be subject to the Seller’s review and approval, which approval shall not be unreasonably withheld or delayed. If the Seller disputes any item on such Tax Return, it shall notify the Buyer (by written notice within 10 days of receipt of the Buyer’s calculation) of such disputed item (or items) and the basis for its objection. If the Seller does not object by written notice within such period, the Buyer’s calculation of the Seller’s share of the Taxes for the Straddle Period shall be deemed to have been accepted and agreed upon, and final and conclusive, for all purposes hereof. The Parties shall act in good faith to resolve any such dispute prior to the date on which the Tax Return is required to be filed. If the Parties cannot resolve any disputed item, the item in question shall be resolved by an independent auditor (selected in accordance with the provisions standard procedure set forth in §2(d)(ii)) in accordance Revenue Procedure 2004-53 with the standards set forth in this §5(e) and as promptly as practicable. The fees and expenses of the independent auditor shall be paid in the manner set forth in §2(d)(ii). No later than five (5) days prior respect to the filing of such Tax Return, the Seller shall pay the Buyer in immediately available funds the amount of the Seller’s share of the Tax liability for the Straddle Period determined under this §5(e)(vi). Subject to the preceding sentence, the Buyer shall pay or cause to be paid all Taxes due and payable in respect of all such Straddle Period Tax Returnswage reporting. (vii) On or prior to the Closing Date, Seller and each Affiliate of Seller that is selling and assigning Acquired Assets pursuant to this Agreement shall furnish to Buyer a certificate, in the form attached hereto as Exhibit F, stating, under penalties of perjury, the Seller’s or Affiliate’s (as the case may be) taxpayer identification number, and that such Seller or relevant Affiliate is not a foreign person in accordance with Section 1445(b)(2) of the Code.

Tax Matters; Access. (ia) The Seller shall be liable for and shall pay any and all Taxes applicable to the Business or the Acquired Purchased Assets attributable to periods (or portions thereof) ending on or before the Closing Date. The Buyer shall be liable for and shall pay all Taxes applicable to the Business or the Acquired Purchased Assets attributable to periods (or portions thereof) beginning on the day following the Closing Date. The Buyer and the Seller agree to utilize, or cause their respective Affiliates to utilize, the standard procedure set forth in Revenue Procedure 9690-60 with respect to wage reporting. (iib) Notwithstanding §5(e)(i) or anything else in this Agreement to the contrary, the Seller and Buyer agree agrees to each pay on a timely basis fifty percent (50%) of all applicable transfer, sales, use, recording, registration and other similar Taxes (excluding any income or similar Taxes) (collectively, the “Transfer Taxes”) arising out of the sale of the Acquired Purchased Assets and the Business to the Buyer. The Buyer and the Seller shall cooperate in the preparation, execution and filing of all returns, questionnaires, applications or other documents regarding any Transfer Taxes that become payable in connection with the transactions contemplated by this Agreement. The Buyer and the Seller shall jointly participate in the defense and settlement of any audit of, dispute with taxing authorities regarding, and any judicial or administrative proceeding relating to the liability for Transfer Taxes incurred in connection with this Agreement; provided, that neither Party shall settle any such audit, examination or proceeding without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Each Party shall bear its own costs in participating in any such audit, examination or proceeding. (iiic) The Seller or the Buyer, as the case may be, shall reimburse any Tax paid by one Party all or a portion of which is the responsibility of the other Party in accordance with the terms of this §5(e)Section 9.01. Within a reasonable time prior to the payment of any such Tax, the Party paying such Tax shall give notice to the other Party of the Tax payable and the portion which is the liability of each Party, although failure to do so will not relieve the other Party from its liability hereunder. (ivd) The Buyer shall promptly notify the Seller in writing upon receipt by Buyer of notice of any pending or threatened federal, state, local or foreign Tax audits, examinations or assessments which may materially affect the Tax liabilities which are the responsibility of the Seller pursuant to this §5(e)Section 9.01. The Seller shall have the sole right to control any Tax audit or administrative or court proceeding relating to Tax periods ending at the time of or before the Closing, and to employ counsel of its choice at its expense. (ve) After the Closing, each of the Seller and the Buyer shall, as reasonably requested by the other Partyparty: (A) assist the other Party in preparing any Tax Returns relating to the Business which such other Party is responsible for preparing and filing; (B) cooperate fully in preparing for any audit of, or dispute with taxing authorities regarding, and any judicial or administrative proceeding relating to, liability for Taxes, in the preparation or conduct of litigation or investigation of claims, and in connection with the preparation of financial statements or other documents to be filed with any Governmental Entity, in each case with respect to the Business or the Acquired Purchased Assets; (C) make available to the other and to any Governmental Entity as reasonably requested all information, records, and documents relating to Taxes relating to the Business or the Acquired Assets (at the cost and expense of the requesting party), ; (D) provide timely notice to the other in writing of any pending or threatened Tax audits or assessments relating to the Business or the Acquired Assets for taxable periods for which the other Party is responsible under this §5(e)Section 9.01; and (E) furnish the other with copies of all correspondence received from any taxing authority in connection with any Tax audit or information request with respect to any Tax periods for which the other is responsible under this §5(e)Section 9.01. Any information obtained pursuant to this §5(e)(v) Section 9.01 or pursuant to any other Section hereof providing for the sharing of information or review of any Tax Return or other schedule relating to Taxes shall be kept confidential by the parties hereto, except to the extent such information is required to be disclosed by law, regulation or judicial order. (vif) Taxes imposed on the Acquired Purchased Assets or Business for any taxable period that includes (but does not end on) the Closing Date (a “Straddle Period”), shall be prorated as of the Closing Date, with the Seller liable for such Taxes to the extent such items relate to the portion of the period through the end of the Closing Date (the “Pre-Closing Period”). In the case of any Straddle Period, the amount of any Taxes based on or measured by income or receipts for the Pre-Closing Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date and the amount of other Taxes that relates to the Pre-Closing Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the total number of days in such Straddle Period. The Buyer shall prepare and timely file all Tax Returns required to be filed in connection with the Business or the Acquired Purchased Assets for the Straddle Period (such Tax Returns, the “Straddle Period Tax Returns”). All such Straddle Period Tax Returns shall be prepared and filed in a manner that is consistent with the prior practice, except as required by the applicable Applicable Law. The Buyer shall deliver drafts of all such Straddle Period Tax Returns to the Seller for its their review at least 10 days prior to the due date of any such Tax Return (taking into account valid extensions) and shall notify the Seller of the Buyer’s calculation of the Seller’s share of the Taxes of the Business for the Straddle Period; provided, however, that such drafts of any such Straddle Period Tax Returns and such calculations of the Seller’s share of the Tax liability for such Straddle Period shall be subject to the Seller’s review and approval, which approval shall not be unreasonably withheld or delayed. If the Seller disputes any item on such Tax Return, it they shall notify the Buyer (by written notice within 10 days of receipt of the Buyer’s calculation) of such disputed item (or items) and the basis for its objection. If the Seller does not object by written notice within such period, the Buyer’s calculation of the Seller’s Seller share of the Taxes for the Straddle Period shall be deemed to have been accepted and agreed upon, and final and conclusive, for all purposes hereof. The Parties shall act in good faith to resolve any such dispute prior to the date on which the Tax Return is required to be filed. If the Parties cannot resolve any disputed item, the item in question shall be resolved by an independent auditor (selected in accordance with the provisions set forth in §2(d)(ii)) in accordance with the standards set forth in this §5(e) Section 9.01 and as promptly as practicable. The fees and expenses of the independent auditor shall be paid in the manner set forth in §2(d)(ii). No later than five (5) days prior to the filing of such Tax Return, the Seller shall pay the Buyer in immediately available funds the amount of the Seller’s share of the Tax liability for the Straddle Period determined under this §5(e)(vi)Section 9.01. Subject to the preceding sentence, the Buyer shall pay or cause to be paid all Taxes due and payable in respect of all such Straddle Period Tax Returns. (viig) On or prior to the Closing Date, Seller and each Affiliate of Seller that is selling and assigning Acquired Assets pursuant to this Agreement shall will furnish to Buyer a certificate, in the form attached hereto as Exhibit Facceptable to Buyer, stating, under penalties of perjury, the Seller’s or Affiliate’s (as the case may be) taxpayer identification number, and that such Seller or relevant Affiliate is not a foreign person in accordance with Section 1445(b)(2) of the Code.