Common use of Tax Matters Partner; Tax Elections Clause in Contracts

Tax Matters Partner; Tax Elections. 18.10.1 Navistar is hereby appointed the “Tax Matters Partner” of the Company for all purposes pursuant to Sections 6221 through 6231 of the Code. Subject to the immediately following sentence, the Tax Matters Partner shall (a) furnish to each Member affected by an audit of the Company income tax returns a complete copy of each notice or other communication received from the Internal Revenue Service or applicable state authority within five (5) calendar days of receipt (except such notices or communications as are sent directly to such Member), (b) keep such Member reasonably informed of any administrative or judicial proceedings, as required by Section 6623(g) of the Code, (c) allow each Member an opportunity to participate in all such administrative and judicial proceedings, and (d) advise and consult with each Member (and assignee) as to proposed adjustments to the federal or state income tax returns of the Company. The Tax Matters Partner shall act at the direction of the Members and in any event shall not have the authority, unless such action has been approved by the Members, to take any material action or make any material decision, including (i) entering into a settlement agreement with the Internal Revenue Service which purports to bind Members other than the Tax Matters Partner, (ii) filing a petition as contemplated in Section 6226(a) or 6228 of the Code, (iii) intervening in any action as contemplated in Section 6226(b) of the Code, (iv) filing any request contemplated in Section 6227(b) of the Code, or (v) entering into an agreement extending the period of limitations as contemplated in Section 6229(b)(1)(B) of the Code. The Company shall not be obligated to pay any fees or other compensation to the Tax Matters Partner in its capacity as such, but the Company shall reimburse the Tax Matters Partner for all reasonable out-of-pocket costs and expenses (including attorneys’ and other professional fees) incurred by it in its capacity as Tax Matters Partner. The Company shall defend, indemnify, and hold harmless the Tax Matters Partner against any and all Liabilities sustained or incurred as a result of any act or decision concerning Company tax matters and within the scope of such Member’s responsibilities as Tax Matters Partner, so long as such act or decision was done or made in good faith and does not constitute gross negligence or willful misconduct. 18.10.2 If there is a distribution of Company property as described in Code Section 734 or if there is a transfer of a Company interest as described in Code Section 743 then, upon the written request of any Member, the Company shall file an election pursuant to Code Section 754, in accordance with the procedures set forth in the applicable Treasury Regulations to adjust the basis of Company properties. Upon the request of the Company, each Member shall provide the Company with all the information not then possessed by the Company necessary to give effect to any election under Code Section 754.

Tax Matters Partner; Tax Elections. 18.10.1 Navistar is (a) The Company hereby appointed elects to have a “tax matters partner” as provided under Code Section 6231(a)(7)(B) (the “Tax Matters Partner” of the Company for all purposes pursuant to Sections 6221 through 6231 of the Code”). Subject to the immediately following sentenceprovisions of Section 8.3(d) below, the Duke Member is hereby designated as such Tax Matters Partner. For the avoidance of doubt, except for the making of the elections described in Section 8.3(b)(1) and (2) and Section 8.3(c), the Tax Matters Partner shall not (a1) furnish take any action without the approval of the Tax Committee (as defined below) or (2) fail to take any action that it is directed to take by the Tax Committee. (b) The Company shall make all elections required under U.S. federal income tax Laws and regulations and any similar state statutes and shall make the following elections: (1) Adopt the calendar year as the annual accounting period; (2) Adopt the accrual method of accounting; and (3) Adopt the maximum allowable accelerated method and shortest permissible life for determining depreciation deductions. (c) The Company shall make the election provided for in Section 754 of the Code in connection with the filing of Form 1065 (U.S. Return of Partnership Income) for the first tax year for which it may make a valid election but not later than the tax year that includes the First Closing (as defined in the Reorganization Agreement) and shall provide each Member affected with a copy of such election. (d) The Company Board shall establish a separate committee responsible for tax matters (the “Tax Committee”). The Tax Committee shall have two members, one of which shall be appointed by an audit COP and one of which shall be appointed by Duke. The Tax Committee shall be responsible for, and shall determine all actions to be taken with respect to, all tax matters of the Company income and its Subsidiaries (consistent with the terms of this Agreement, the Reorganization Agreement and the Contribution Agreement) for all open taxable periods, including (1) approving all elections under U.S. federal, state and local and foreign tax returns a complete copy of each notice or Laws and regulations other communication received from than the Internal Revenue Service or applicable state authority within five elections made pursuant to Sections 8.3(b)(1) and (52) calendar days of receipt (except such notices or communications as are sent directly to such Memberand 8.3(c), (b2) keep such Member reasonably informed of any administrative or judicial proceedings, as required by Section 6623(g) of the Codereviewing tax returns (including all federal income tax returns), (c3) allow each Member an opportunity to participate in all such administrative and judicial proceedings, controlling tax audits and (d4) advise and consult with each Member (and assignee) as to proposed making any adjustments to depreciation deductions claimed by the federal Company or state income tax returns of the Company. The Tax Matters Partner shall act at the direction of allocated to the Members for taxable years prior to 2005 or other adjustments to taxable income, deductions and in any event shall not have the authority, unless such action has been approved by the Members, to take any material action or make any material decision, including (i) entering into a settlement agreement with the Internal Revenue Service which purports to bind Members other than the Tax Matters Partner, (ii) filing a petition as contemplated in Section 6226(a) or 6228 of the Code, (iii) intervening in any action as contemplated in Section 6226(b) of the Code, (iv) filing any request contemplated in Section 6227(b) of the Code, or (v) entering into an agreement extending the period of limitations as contemplated in Section 6229(b)(1)(B) of the Codeallocations. The Company shall not be obligated to pay provide the Tax Committee, Duke and COP with drafts of each IRS Form 1065 (U.S. Return of Partnership Income), Schedule K-1, and any fees other significant federal, state, local or other compensation foreign tax return at least three and one-half months prior to the Tax Matters Partner in its capacity as such, but the Company shall reimburse due date (including extensions) thereof for review and approval by the Tax Matters Partner for all reasonable out-of-pocket costs Committee. COP and expenses (including attorneys’ Duke and other professional fees) incurred by it in its capacity as Tax Matters Partner. The Company shall defend, indemnify, and hold harmless the members of the Tax Matters Partner against Committee shall have 30 days to review such returns and provide comments thereon. All decisions of the Tax Committee shall be unanimous. In the event that the Tax Committee is unable to agree with respect to any and all Liabilities sustained or incurred as a result tax matter, then the members of any act or decision concerning Company tax matters and within the scope of such Member’s responsibilities as Tax Matters Partner, so long as such act or decision was done or made Committee shall negotiate in good faith and does not constitute gross negligence or willful misconduct. 18.10.2 If there is for a distribution period of Company property as described 21 days in Code Section 734 or if there is a transfer of a Company interest as described in Code Section 743 then, upon the written request of any Member, the Company shall file an election pursuant attempt to Code Section 754, in accordance with the procedures set forth in the applicable Treasury Regulations to adjust the basis of Company properties. Upon the request of the Company, each Member shall provide the Company with all the information not then possessed by the Company necessary to give effect to any election under Code Section 754.resolve the

Tax Matters Partner; Tax Elections. 18.10.1 Navistar (a) The DTCC Member shall serve as the initial “tax matters partner” (as such term is hereby appointed defined in section 6231(a)(7) of the Code and any similar provision of state and local income tax Law, the “Tax Matters Partner” of the Company for all purposes pursuant to Sections 6221 through 6231 of the Code. Subject to the immediately following sentence, the Tax Matters Partner shall (a) furnish to each Member affected by an audit of the Company income tax returns a complete copy of each notice or other communication received from the Internal Revenue Service or applicable state authority within five (5) calendar days of receipt (except such notices or communications as are sent directly to such Member), (b) keep such Member reasonably informed of any administrative or judicial proceedings, as required by Section 6623(g”) of the CodeCompany, (c) allow each Member an opportunity to participate in all such administrative and judicial proceedings, and (d) advise and consult with each Member (and assignee) as to proposed adjustments to the federal or state income tax returns of the Company. The Tax Matters Partner shall act at the direction of the Members and in any event shall not have the authority, unless such action has been approved by the Members, to take any material action or make any material decision, including (i) entering into a settlement agreement with the Internal Revenue Service which purports to bind Members other than provided that the Tax Matters Partner, in its capacity as the “tax matters partner” will not (i) agree to extend the statute of limitation regarding any tax matter or (ii) filing a petition as contemplated in Section 6226(a) or 6228 agree to jurisdiction of any court other than the U.S. Tax Court to adjudicate the Company’s tax matters without the prior written consent of other Founding Member. Each Member hereby consents to such designation and agrees that, upon the request of the CodeTax Matters Partner, such Member will execute, certify, acknowledge, deliver, swear to, file and record at the appropriate public offices, such documents as may be necessary or appropriate to evidence such consent. (iiib) intervening in any action as contemplated in Section 6226(b) Promptly following the written request of the CodeTax Matters Partner, (iv) filing any request contemplated in Section 6227(b) of the CodeCompany shall, or (v) entering into an agreement extending to the period of limitations as contemplated in Section 6229(b)(1)(B) of fullest extent permitted by Law, reimburse and indemnify the Code. The Company shall not be obligated to pay any fees or other compensation to Tax Matters Partner for all reasonable expenses, including reasonable legal and accounting fees, claims, liabilities, losses and damages incurred by the Tax Matters Partner in its capacity as sucha “tax matters partner” in connection with any administrative or judicial proceeding with respect to the tax liability of the Members, but except to the Company shall reimburse extent arising from the Tax Matters Partner for all reasonable out-of-pocket costs and expenses (including attorneys’ and other professional fees) incurred bad faith, gross negligence, willful violation of Law, fraud or breach of this Agreement by it in its capacity as such Tax Matters Partner. The provisions of this Section 6.5(b) shall survive the termination of the Company or the termination of any Member’s Interest in the Company and shall defend, indemnify, remain binding on the Members for as long a period of time as is necessary to resolve with the Internal Revenue Service any and hold harmless all matters regarding the income taxation of the Company or the Members resulting from their interest in the Company with respect to any period during which a Member held an Interest in the Company. (c) Neither the Tax Matters Partner against nor any and all Liabilities sustained other Member shall make, or incurred shall permit the Company to make, the election to treat the Company as an association taxable as a result corporation for United States federal income tax purposes under section 301.7701(a)- 3 of the Treasury Regulations or any act similar provision of state or decision concerning Company tax matters and within the scope of such Member’s responsibilities as Tax Matters Partner, so long as such act or decision was done or made in good faith and does not constitute gross negligence or willful misconductlocal Law. 18.10.2 If there is a distribution of Company property as described (d) Notwithstanding anything to the contrary in Code Section 734 this Agreement, any material tax election or if there is a transfer of a Company interest as described substantial change in Code Section 743 thentax, upon the written request of any Member, the Company shall file an election pursuant to Code Section 754, in accordance with the procedures set forth in the applicable Treasury Regulations to adjust the basis of Company properties. Upon the request accounting or auditing practices of the Company, each Member including any change in the Tax Matters Partner or any appointment or removal of the Company’s independent auditors and any determination of fair market value of assets or of any Adjustment Date, and the settlement of any tax audit or other tax proceeding involving the Company, shall provide require unanimous prior written approval of the Company with all the information Founding Members, which approval shall not then possessed by the Company necessary to give effect to any election under Code Section 754be unreasonably conditioned, withheld or delayed.

Tax Matters Partner; Tax Elections. 18.10.1 Navistar is hereby appointed the “Tax Matters Partner” of the Company for all purposes pursuant to Sections 6221 through 6231 of the Code. Subject to the immediately following sentence, the Tax Matters Partner shall (a) furnish to each Member affected by an audit of The Managing Partner shall be the Company income "tax returns a complete copy of each notice or other communication received from matters partner" (as that term is used in the Internal Revenue Service or applicable state authority within five (5) calendar days of receipt (except such notices or communications as are sent directly to such Member), (b) keep such Member reasonably informed of any administrative or judicial proceedings, as required by Section 6623(gCode) of the Code, Partnership. The tax matters partner shall (ci) allow each Member an opportunity cause to participate in be prepared and shall sign all such administrative and judicial proceedings, and (d) advise and consult with each Member (and assignee) as to proposed adjustments to the federal or state income tax returns of the Company. The Tax Matters Partner shall act at the direction of the Members and in any event shall not have the authority, unless such action has been approved by the Members, to take any material action or make any material decision, including (i) entering into a settlement agreement with the Internal Revenue Service which purports to bind Members other than the Tax Matters Partner, Partnership, (ii) filing monitor any governmental tax authority in any audit that such authority may conduct of the Partnership's books and records or other documents of which the tax matters partner is aware, (iii) give Notice to all Partners as follows: (I) within 30 days after it receives notice from the IRS of any administrative proceeding with respect to an examination of, or a petition proposed adjustment to, any item of income, gain, loss, deduction or credit of the Partnership, (II) from time to time, of the current status of such administrative proceeding, (III) within 30 days of the final outcome of such administrative proceeding, as to such outcome, and (IV) at least five days prior to submitting a request for administrative adjustment on behalf of the Partnership, (iv) promptly send to each Partner a copy of all nonministerial notices or communications received by the Partnership from, or sent by the Partnership to, the IRS, and (v) take all other action to be taken by it as contemplated in Section 6226(a) or 6228 of the Code, (iii) intervening in any action as contemplated in Section 6226(b) of the Code, (iv) filing any request contemplated in Section 6227(b) of the Code, or (v) entering into an agreement extending the period of limitations as contemplated in Section 6229(b)(1)(B) sections 6221 through 6232 of the Code. The Company shall not be obligated to pay Partnership will reimburse the tax matters partner for all expenses reasonably incurred by it (including reasonable overhead expenses) in connection with any fees administrative or other compensation judicial proceeding with respect to the Tax Matters Partner tax liabilities of the Partners which relate to the Partnership. (b) At the request of any Partner, the Partnership shall make an election to adjust its basis in its capacity as suchassets pursuant to section 754 of the Code. The Partner making such request shall pay to the Partnership, but within ten days after demand therefor by the Company shall reimburse the Tax Matters Partner for Managing Partner, all reasonable out-of-pocket costs and expenses (including attorneys’ and other professional fees) paid or incurred by it in its capacity as Tax Matters Partner. The Company shall defend, indemnify, and hold harmless the Tax Matters Partner against any and all Liabilities sustained or incurred Partnership as a result of any act or decision concerning Company tax matters and within the scope making of such Member’s responsibilities as Tax Matters Partner, so long as such act or decision was done or made in good faith and does not constitute gross negligence or willful misconductelection. 18.10.2 If there is a distribution of Company property as described in Code Section 734 or if there is a transfer of a Company interest as described in Code Section 743 then, upon the written request of any Member, the Company (c) The Partnership shall file make an election to amortize its organizational expenditures pursuant to Code Section 754, in accordance with the procedures set forth in the applicable Treasury Regulations to adjust the basis of Company properties. Upon the request section 709 of the CompanyCode, each Member shall provide and to amortize any "start-up" expenditures pursuant to section 195 of the Company with all the information not then possessed by the Company necessary to give effect to any election under Code Section 754Code.

Tax Matters Partner; Tax Elections. 18.10.1 Navistar is (a) The Company hereby appointed elects to have a “tax matters partner” as provided under Code Section 6231(a)(7)(B) (the “Tax Matters Partner” of the Company for all purposes pursuant to Sections 6221 through 6231 of the Code”). Subject to the immediately following sentenceprovisions of Section 8.3(d) below, the Duke Member is hereby designated as such Tax Matters Partner. For the avoidance of doubt, except for the making of the elections described in Section 8.3(b)(1) and (2) and Section 8.3(c), the Tax Matters Partner shall not (a1) furnish take any action without the approval of the Tax Committee (as defined below) or (2) fail to take any action that it is directed to take by the Tax Committee. (b) The Company shall make all elections required under U.S. federal income tax Laws and regulations and any similar state statutes and shall make the following elections: (1) Adopt the calendar year as the annual accounting period; (2) Adopt the accrual method of accounting; and (3) Adopt the maximum allowable accelerated method and shortest permissible life for determining depreciation deductions. (c) The Company shall make the election provided for in Section 754 of the Code in connection with the filing of Form 1065 (U.S. Return of Partnership Income) for the first tax year for which it may make a valid election but not later than the tax year that includes the First Closing (as defined in the Reorganization Agreement) and shall provide each Member affected with a copy of such election. (d) The Company Board shall establish a separate committee responsible for tax matters (the “Tax Committee”). The Tax Committee shall have two members, one of which shall be appointed by an audit COP and one of which shall be appointed by Duke. The Tax Committee shall be responsible for, and shall determine all actions to be taken with respect to, all tax matters of the Company income and its Subsidiaries (consistent with the terms of this Agreement, the Reorganization Agreement and the Contribution Agreement) for all open taxable periods, including (1) approving all elections under U.S. federal, state and local and foreign tax returns a complete copy of each notice or Laws and regulations other communication received from than the Internal Revenue Service or applicable state authority within five elections made pursuant to Sections 8.3(b)(1) and (52) calendar days of receipt (except such notices or communications as are sent directly to such Memberand 8.3(c), (b2) keep such Member reasonably informed of any administrative or judicial proceedings, as required by Section 6623(g) of the Codereviewing tax returns (including all federal income tax returns), (c3) allow each Member an opportunity to participate in all such administrative and judicial proceedings, controlling tax audits and (d4) advise and consult with each Member (and assignee) as to proposed making any adjustments to depreciation deductions claimed by the federal Company or state income tax returns of the Company. The Tax Matters Partner shall act at the direction of allocated to the Members for taxable years prior to 2005 or other adjustments to taxable income, deductions and in any event shall not have the authority, unless such action has been approved by the Members, to take any material action or make any material decision, including (i) entering into a settlement agreement with the Internal Revenue Service which purports to bind Members other than the Tax Matters Partner, (ii) filing a petition as contemplated in Section 6226(a) or 6228 of the Code, (iii) intervening in any action as contemplated in Section 6226(b) of the Code, (iv) filing any request contemplated in Section 6227(b) of the Code, or (v) entering into an agreement extending the period of limitations as contemplated in Section 6229(b)(1)(B) of the Codeallocations. The Company shall not be obligated to pay provide the Tax Committee, Duke and COP with drafts of each IRS Form 1065 (U.S. Return of Partnership Income), Schedule K-1, and any fees other significant federal, state, local or other compensation foreign tax return at least three and one-half months prior to the Tax Matters Partner in its capacity as such, but the Company shall reimburse due date (including extensions) thereof for review and approval by the Tax Matters Partner for all reasonable out-of-pocket costs Committee. COP and expenses (including attorneys’ Duke and other professional fees) incurred by it in its capacity as Tax Matters Partner. The Company shall defend, indemnify, and hold harmless the members of the Tax Matters Partner against Committee shall have 30 days to review such returns and provide comments thereon. All decisions of the Tax Committee shall be unanimous. In the event that the Tax Committee is unable to agree with respect to any and all Liabilities sustained or incurred as a result tax matter, then the members of any act or decision concerning Company tax matters and within the scope of such Member’s responsibilities as Tax Matters Partner, so long as such act or decision was done or made Committee shall negotiate in good faith and does not constitute gross negligence or willful misconduct. 18.10.2 If there is for a distribution period of Company property as described 21 days in Code Section 734 or if there is a transfer an attempt to resolve the issue. If, at the end of a Company interest as described in Code Section 743 then, upon the written request of any Member21 days, the Company members of the Tax Committee have been unable to resolve the disputed issue, the Chief Financial Officer of Duke (the “Duke CFO”) and the Chief Financial Officer of COP (the “COP CFO” and, together with the Duke CFO, the “CFOs”) shall file an election pursuant endeavor in good faith for a period of 21 days to Code Section 754resolve the issue. If, at the end of 21 days, the CFOs have been unable to resolve the disputed issue, such issue shall be referred to the Neutral Firm, which shall resolve the dispute in accordance with this Agreement, the procedures set forth Contribution Agreement and the Reorganization Agreement in the applicable Treasury Regulations to adjust the basis of Company properties. Upon the request of the Company, each Member shall provide the Company with all the information not then possessed a timely manner as directed by the Company necessary to give effect to Tax Committee. This Section 8.3(d) and any election under Code Section 754other provisions in this Agreement regarding the Tax Committee are for the benefit of COP and Duke and shall not be amended without their prior written consent.

Tax Matters Partner; Tax Elections. 18.10.1 Navistar is hereby appointed the “Tax Matters Partner” of the Company for all purposes pursuant to Sections 6221 through 6231 of the Code. Subject to the immediately following sentence, the Tax Matters Partner shall (a) furnish to each Member affected by an audit of The Managing Partner shall be the Company income "tax returns a complete copy of each notice or other communication received from matters partner" (as that term is used in the Internal Revenue Service or applicable state authority within five (5) calendar days of receipt (except such notices or communications as are sent directly to such Member), (b) keep such Member reasonably informed of any administrative or judicial proceedings, as required by Section 6623(gCode) of the Code, Partnership. The tax matters partner shall (ci) allow each Member an opportunity cause to participate in be prepared and shall sign all such administrative and judicial proceedings, and (d) advise and consult with each Member (and assignee) as to proposed adjustments to the federal or state income tax returns of the Company. The Tax Matters Partner shall act at the direction of the Members and in any event shall not have the authority, unless such action has been approved by the Members, to take any material action or make any material decision, including (i) entering into a settlement agreement with the Internal Revenue Service which purports to bind Members other than the Tax Matters Partner, Partnership, (ii) filing monitor any governmental tax authority in any audit that such authority may conduct of the Partnership's books and records or other documents of which the tax matters partner is aware, (iii) give Notice to all Partners as follows: (I) within 30 days after it receives notice from the IRS of any administrative proceeding with respect to an examination of, or a petition proposed adjustment to, any item of income, gain, loss, deduction or credit of the Partnership, (II) from time to time, of the current status of such administrative proceeding, (III) within 30 days of the final outcome of such administrative proceeding, as to such outcome, and (IV) at least five days prior to submitting a request for administrative adjustment on behalf of the Partnership, (iv) promptly send to each Partner a copy of all nonministerial notices or communications received by the Partnership from, or sent by the Partnership to, the IRS and (v) take all other action to be taken by it as contemplated in Section 6226(a) or 6228 of the Code, (iii) intervening in any action as contemplated in Section 6226(b) of the Code, (iv) filing any request contemplated in Section 6227(b) of the Code, or (v) entering into an agreement extending the period of limitations as contemplated in Section 6229(b)(1)(B) Sections 6221 through 6232 of the Code. The Company shall not be obligated to pay Partnership will reimburse the tax matters partner for all expenses reasonably incurred by it (including reasonable overhead expenses) in connection with any fees administrative or other compensation judicial proceeding with respect to the Tax Matters Partner tax liabilities of the Partners which relate to the Partnership. (b) At the request of any Partner, the Partnership shall make an election to adjust its basis in its capacity as suchassets pursuant to section 754 of the Code. The Partner making such request shall pay to the Partnership, but within ten days after demand therefor by the Company shall reimburse the Tax Matters Partner for Managing Partner, all reasonable out-of-pocket costs and expenses (including attorneys’ and other professional fees) paid or incurred by it in its capacity as Tax Matters Partner. The Company shall defend, indemnify, and hold harmless the Tax Matters Partner against any and all Liabilities sustained or incurred Partnership as a result of any act or decision concerning Company tax matters and within the scope making of such Member’s responsibilities as Tax Matters Partner, so long as such act or decision was done or made in good faith and does not constitute gross negligence or willful misconductelection. 18.10.2 If there is a distribution of Company property as described in Code Section 734 or if there is a transfer of a Company interest as described in Code Section 743 then, upon the written request of any Member, the Company (c) The Partnership shall file make an election to amortize its organizational expenditures pursuant to Code Section 754, in accordance with the procedures set forth in the applicable Treasury Regulations to adjust the basis of Company properties. Upon the request section 709 of the CompanyCode, each Member shall provide and to amortize any "start-up" expenditures pursuant to section 195 of the Company with all the information not then possessed by the Company necessary to give effect to any election under Code Section 754Code.