Contest Provisions. Each of Buyer and Seller shall promptly notify the other in writing upon receipt of notice of any pending or threatened audits or assessments with respect to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).
Contest Provisions a. The New General Partner shall be entitled to contest, as tax matters partner of CTA in accordance with the CTA Agreement as part of the unified audit of CTA, any claim in respect of any "partnership" item of CTA that, if successful, would result in a Tax Event (a "Partnership Level Issue"). Each Indemnitee shall take such action or refrain from taking such action as may be reasonably necessary in order to cause each item which is the subject of a potential Tax Event to be contested as a Partnership Level Issue. If the New General Partner contests a Partnership Level Issue that, if successful, would result in a Tax Event, Prime's obligation to pay any Tax Indemnity Amounts shall, at Prime's election, be deferred until thirty (30) days after a Final Determination of the Indemnitees' respective federal income tax liabilities in respect of a Tax Event, provided that, upon receipt of the 30-day letter from the Internal Revenue Service, Prime furnishes the Indemnification Security.
b. If an audit or proceeding involving a potential Tax Event is being conducted in a proceeding involving an Indemnitee, which cannot be transferred to CTA as a partnership item (an "Indemnitee Level Issue"), such Indemnitee hereby agrees to promptly notify Prime in writing of such adjustment, and such Indemnitee shall tender the defense of such Indemnitee Level Issue to such legal counsel as Prime may select and which is reasonably acceptable to such Indemnitee ("Contest Counsel"). Such Indemnitee agrees to reasonably cooperate with Contest Counsel in connection with any such proceedings and to follow the advice of Contest Counsel with respect to decisions as to whether to contest such Indemnitee Level Issue, the extent and choice of forum with respect to such contest and other material issues relating thereto. Contest Counsel shall represent an Indemnitee only in connection with such issues as could potentially result in a Tax Event with respect to such Indemnitee, and, unless such Indemnitee, in its sole discretion, otherwise consents, Contest Counsel shall not represent such Indemnitee with respect to any other issues, without regard to whether such other issues are being concurrently challenged by the Internal Revenue Service or other tax authority or appear on the same tax return as the Indemnitee Level Issue in question. Each Indemnitee shall make available to Contest Counsel copies of such Indemnitee's tax returns and other information and materials pertinent to the contest...
Contest Provisions. (a) Purchaser shall promptly notify Seller in writing upon receipt by Purchaser, any of its Affiliates or the Company of notice of any pending or threatened Tax Contest that may affect the Tax liabilities of the Company for which Seller or USA Holdco would be required to indemnify Purchaser pursuant to Section 8.1(a); provided, that Purchaser’s failure so to notify Seller shall not limit Purchaser’s rights under this Article 8 except to the extent Seller is materially prejudiced by such failure.
(b) Seller and USA Holdco shall have the right to represent the Company’s interests in any Tax Contests relating solely to taxable years or periods ending on or before the Closing Date, and to employ counsel of their choice at their expense, provided, that Seller and USA Holdco shall have first notified Purchaser in writing (1) of their intention to do so; (2) the identity of counsel, if any, chosen by Seller or USA Holdco in connection therewith; and (3) that Seller and USA Holdco agree that Seller and USA Holdco shall be liable for any Taxes and any reasonable expenses, including reasonable fees for outside attorneys and other outside consultants incurred in connection with any such Taxes that result from such audit or proceeding. Notwithstanding anything to the contrary contained herein, none of Seller or USA Holdco shall be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes that would materially adversely affect the liability for Taxes of Purchaser or for which Purchaser and the Company are not entitled to full indemnification pursuant to this Agreement (including, but not limited to, the imposition of income tax deficiencies, the calculation of reserve items, the reduction of asset bases or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) without the prior written consent of Purchaser. Such consent shall not be unreasonably withheld, delayed or conditioned.
(c) Seller and USA Holdco shall be entitled to participate at their own expense in the defense of any other Tax Contest which may be the subject of indemnification by Seller or USA Holdco pursuant to Section 8.1(a) and, with the written consent of Purchaser, which consent shall be granted at the sole discretion of Purchaser, and at Seller’s or USA Holdco’s sole expense, may assume the entire defense of such tax claim. Nei...
Contest Provisions. Promptly after receipt by the Buyer or any Seller of written notice of the assertion or commencement of any claim, audit, examination or other proposed change or adjustment by any Tax Authority relating to Taxes of the Company with respect to a Pre-Closing Tax Period (a “Tax Claim”), the recipient shall promptly notify the Buyer or the Sellers, as applicable. Such notice shall contain factual information (to the extent known) describing the asserted Tax Claim in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax Claim. The Sellers shall have the right to represent the Company’s interests in any Tax audit or administrative or court proceeding relating to Pre-Closing Tax Periods as to any issues that could materially affect the Sellers’ liability for Taxes or indemnification obligations, and to employ counsel (reasonably acceptable to the Buyer) of the Sellers’ choice at its expense; provided, however, that Buyer and its Representatives shall be permitted, at their expense, to be present at any such audit or proceeding and to participate in any such audit or proceeding to the extent such audit or proceeding could affect the Tax liability of the Buyer. The Sellers shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which would materially adversely affect the liability for Taxes of the Buyer or the Company for any period after the Closing Date without the prior written consent of the Buyer unless adequate provision to indemnify the Buyer against the effects of any such settlement is made by the Sellers; provided, however, if Buyer does not consent to a settlement agreed to in principal by the IRS and the Sellers, and additional Tax liability results to the Sellers as a result of failing to accept the terms of such settlement, then the Buyer shall indemnify the Sellers against such additional Tax liability no later than 10 days after demand by the Sellers. The indemnity provided for herein shall survive indefinitely.
Contest Provisions. (1) Seller shall have the right to represent the Bank’s interests in connection with the Refund Claim and any other Tax Contest relating to taxable years or periods ending on or before the Closing Date and to employ counsel of its choice at its expense, provided, that, except with respect to the Refund Claim, Seller shall have first notified Purchaser in writing (i) of its intention to do so; (ii) of the identity of counsel, if any, chosen by Seller in connection therewith; and (iii) they agree that Seller shall be liable for any reasonable expenses, including reasonable fees for outside attorneys and other outside consultants incurred in connection with the Refund Claim and any other Tax Contest; provided, further, that with respect to any Tax Contest (other than the Refund Claim) described in this Section 4.11(f)(1), Seller shall (A) keep Purchaser reasonably informed with respect to such Tax Contest, and (B) not settle, compromise or abandon any such Tax Contest without obtaining the prior written consent of Purchaser, which consent shall not be unreasonably withheld.
(2) In the case of a Tax Contest for a Straddle Period of the Bank or any of its Subsidiaries, Purchaser shall have the right to control, at its own expense, such Tax Contest; provided, however, that (i) Purchaser shall provide Seller with a timely and reasonably detailed account of each phase of such Tax Contest, (ii) Purchaser shall consult with Seller before taking any significant action in connection with such Tax Contest, and (iii) Seller shall be entitled to participate in such Tax Proceeding, at its own expense.
(3) Purchaser shall have the exclusive right to control, at its own expense, any Tax Contest involving the Bank or any of its Subsidiaries (other than any Tax Contest described in Sections 4.11(f)(1) and (2)).
Contest Provisions. (i) Buyer shall promptly notify the Stockholder Representative in writing upon receipt by Buyer, any of its Affiliates or any of the Acquired Companies of notice of any pending or threatened federal, state, local or foreign Tax audits, examinations or assessments which might affect the Tax liabilities for which Sellers may be liable pursuant to this Section 7.1; provided, however, that the failure to give notice as provided in this Section 7.1(c)(i) shall not affect Buyer’s right to indemnification under this Agreement except to the extent Sellers shall have been prejudiced by such failure.
(ii) The Stockholder Representative shall have the sole right to represent the Acquired Companies’ interests in any Tax audit or administrative or court proceeding relating to taxable periods ending on or before the Closing Date or otherwise relating to Taxes for which Sellers may be liable pursuant to this Section 7.1, and to employ counsel of its choice at its expense. In the case of a Straddle Period, the Stockholder Representative shall be entitled to participate at its expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes attributable to the portion of such Straddle Period ending on and including the Closing Date and, with the written consent of Buyer, and at Sellers’ sole expense, may assume the entire control of such audit or proceeding. None of Buyer, any of its Affiliates or any of the Acquired Companies, on the one hand, or the Stockholder Representative or any Seller, on the other hand, may settle any Tax claim for any Taxes for which Sellers may be liable pursuant to Section 7.1(a), without the prior written consent of the Stockholder Representative or Buyer, respectively, which consent shall not be unreasonably withheld, conditioned or delayed.
Contest Provisions. (a) The party responsible for preparation and filing Tax Returns under Section 3.1 (the “Responsible Party”), shall have the exclusive right to control, contest, and represent the interests of Parent, Spinco and their respective Affiliates in any Tax controversy, including (without limitation) any audit, protest, or claim for refund to the Appeals Division of the IRS, competent authority proceeding and litigation in Tax Court or any other court of competent jurisdiction (a “Tax Controversy”) related to such Tax Return. Subject to Section 5.2(c) hereof, such exclusive right shall include the right, in the Responsible Party’s reasonable discretion, to resolve, settle or agree to any deficiency, claim or adjustment proposed, asserted or assessed in connection with or as a result of any such Tax Controversy. Such control rights shall extend to any matter pertaining to the management and control of a Tax Controversy, including execution of waivers, choice of forum, scheduling of conferences and the resolution of any Tax Item. Any costs incurred in the handling or contesting of a Tax Controversy shall be borne by the Responsible Party.
(b) Parent shall use reasonable efforts to keep Spinco advised as to the status of Tax audits and litigation involving any issue that relates to a Tax of Spinco or any Spinco Affiliate or that could give rise to a liability of Spinco or any Spinco Affiliate under this Agreement, and Spinco shall use reasonable efforts to keep Parent advised as to the status of Tax audits and litigation involving any issue that related to a Tax of Parent or any Parent Affiliate or could give rise to a liability of Parent or any Parent Affiliate under this Agreement (in each case, a “Liability Issue”). Parent and Spinco shall promptly furnish each other copies of any inquiries or requests for information from any Taxing Authority or any other administrative, judicial, or other governmental authority concerning any Liability Issue pertaining to the other party. Without limiting the foregoing, Parent and Spinco, as the case may be, shall each promptly furnish to the other within 30 days of receipt a copy of the relevant section of the revenue agent’s report or similar report, notice of proposed adjustment, or notice of deficiency received by Parent or its Affiliate or by Spinco or its Affiliate, as the case may be, relating to any Liability Issue or any adjustment referred to in this Section 5.2(b).
(c) Notwithstanding Section 5.2(a),
i) To the extent...
Contest Provisions. Whenever Buyer becomes aware of the existence of an issue raised by any taxing authority which could reasonably be expected to result in a determination that would require an indemnity payment under this Agreement (an "Indemnity Issue"), Buyer shall in good faith promptly give notice to Parent of such Indemnity Issue. The failure of Buyer to give such notice shall not relieve Parent of its obligations under this Agreement except to the extent Parent is actually materially prejudiced by such failure to give notice. Parent and its Affiliates, at Parent's expense, shall be entitled to participate (A) in all conferences, meetings or proceedings with any taxing authority, the subject matter of which is or includes an Indemnity Issue and (B) in all appearances before any court, the subject matter of which is or includes an Indemnity Issue. Buyer shall control all audits and similar proceedings; provided, however, Buyer shall take such reasonable action in contesting an Indemnity Issue as Parent shall reasonably request in writing from time to time, including the selection of counsel and experts and the execution of powers of attorney; provided that (i) within fifteen days after the notice required by this Section 3 has been delivered, Parent requests that such claim be contested; (ii) prior to taking such action, Parent shall have furnished Buyer with an opinion of Dechert (or other national law or accounting firm of recognized standing chosen by Parent and reasonably acceptable to Buyer) to the effect that there exists "substantial authority" within the meaning of Code Section 6662 for the position to be asserted by Buyer in contesting the Indemnity Issue; (iii) prior to taking such action Parent shall have acknowledged in writing its obligation to indemnify Buyer hereunder in the event Buyer does not prevail in such contest with respect to the Indemnity Issue and Parent shall have agreed to indemnify and reimburse (and shall indemnify and reimburse) Buyer, on demand from time to time, all costs, fees and expenses that the Buyer Group may reasonably incur in connection with contesting such Indemnity Issue, including, without limitation, (A) reasonable attorneys' and accountants' fees and disbursements and (B) the amount of any interest, penalties or additions to tax indemnified hereunder that may ultimately be payable as a result of contesting such Indemnity Issue; (iv) such action would not likely increase the amount of Taxes payable by the Buyer Group for whi...
Contest Provisions. If, subsequent to the Closing, Purchaser or any Acquired Company receives notice of a Tax Contest with respect to any Tax Return for a Pre-Closing Tax Period (a “Pre-Closing Return”) with respect to which Purchaser has a right to indemnification under this Agreement, then within 10 days after receipt of such notice, Purchaser shall notify Seller of such notice; provided, however, that any failure on the part of Purchaser to so notify Seller shall not limit any of the obligations of Seller under Article 10 (except to the extent such failure materially prejudices the defense of such Tax Contest or materially increases the Seller’s liability). Purchaser shall have the right to control the conduct and resolution of such Tax Contest, provided that Purchaser shall keep Seller reasonably informed of all material developments on a timely basis, shall consider in good faith any comments provided by the Seller in connection with the conduct and resolution of such Tax Contest and Purchaser shall not resolve such Tax Contest in a manner that could reasonably be expected to have an adverse impact on Seller’s indemnification obligations under this Agreement without Seller’s written consent, which consent shall not be unreasonably withheld. “Tax Contest” means any audit, other administrative proceeding or inquiry by a Government Authority, or judicial proceeding, in each case relating to the relevant Tax Return.
Contest Provisions. 64 SECTION 7.4
