Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretion.
Appears in 1 contract
Contests. (ai) If Seller (at Seller’s own expense) shall be entitled to control the defense (including as to settlement, except as provided below) of any claim for Tax audit, litigation, proceeding, or other action with respect to OrbNav's Membership Interest is asserted in Taxes (a Contest “Tax Proceeding”) with respect to a Pre-Closing Tax Period (as defined other than a Straddle Period, Straddle Periods being governed by Section 8.02(i)(iii) below) against to the extent such audit, litigation, proceeding or other action relates to the Company or any of its Subsidiaries (“Pre-Closing Audits”), provided, however, that Seller shall not cause the Company or any of its Subsidiaries to enter into a settlement that by its terms, and without Buyer’s prior written consent, binds the Company or any of its Subsidiaries for a Post-Closing Tax Indemnitee that would Period as a result in of the indemnification settlement of any such Pre-Closing Audit. The Company shall be entitled to control such Tax Indemnitee by Orbital or OrbNav Proceeding (at Seller’s expense) to the extent Seller does not exercise its right to control a Tax Proceeding pursuant to this Section 8 then 8.02(i)(i). The Parties agree that neither the following provisions Company nor any Subsidiary shall be permitted to settle, compromise, or discharge any Pre-Closing Audit, or admit any liability with respect thereto, without the prior written consent of this Seller.
(ii) Notwithstanding Section 8.4(a8.02(i)(i), Buyer (at Buyer’s own expense) will apply shall be entitled to control the handling defense (including as to settlement, except as provided below) of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute Tax Proceeding with respect to any a Pre-Closing Tax matter Period (other than a Straddle Period, Straddle Periods being governed by Section 8.02(i)(iv) below) to the extent such Tax Proceeding relates to the Comfort Products Contributed Assets (“Pre-Closing Comfort Products Audit”), provided, however, that affects OrbNav's Membership Interest in Buyer shall not cause the Company or any other of its Subsidiaries to enter into a settlement that by its terms, and without Seller’s prior written consent, binds the Company or any its Subsidiaries for a Post-Closing Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav Period as a result of the existence settlement of such ContestPre-Closing Comfort Products Audit. The Company shall be entitled to control such Tax Proceeding (at Buyer’s expense) to the extent Buyer does not exercise its right to control a Tax Proceeding pursuant to this Section 8.02(i)(ii).
(iii) In the case of a Tax Proceeding for a Straddle Period, if such Tax Proceeding relates or could reasonably be expected to relate to both a claim for Company Taxes for a Pre-Closing Tax Period and a claim for Company Taxes for a Post-Closing Tax Period, and such claim for Company Taxes for a Pre-Closing Tax Period is not separable from such claim for Company Taxes for a Post-Closing Tax Period, the Purchaser shall give written notice Company (if the claim for Company Taxes that are for a Post-Closing Tax Period exceeds or reasonably could be expected to Orbital and OrbNav of exceed in amount the existence of any Contest relating to claim for Company Taxes for a Pre-Closing Tax matter that is Period) or may be Orbital's otherwise Seller (Seller or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNavCompany, as the case may be, the “Tax Contest Controlling Party”), shall not be liable entitled to control the Purchaser defense of such Tax Proceeding. In such case, the other Party (the “Tax Contest Non-Controlling Party”) shall be entitled to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice participate fully (at the expense of Orbital and OrbNav and to control Tax Contest Non-Controlling Party’s sole expense) in the conduct of such ContestTax Proceeding and the Tax Contest Controlling Party shall not settle, including settlement compromise, or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made discharge such Tax Proceeding without the Purchaser's written consent, consent of such Tax Contest Non-Controlling Party (which consent shall not be unreasonably withheld or delayed). The costs and providedexpenses of conducting the defense of such Tax Proceeding shall be reasonably apportioned based on the relative amounts of the claim for Company Taxes for a Pre-Closing Tax Period and the claim for Company Taxes for a Post-Closing Tax Period.
(iv) Notwithstanding Section 8.02(i)(iii), further, that in the case of a Tax Proceeding for a Straddle Period with respect to the extent Comfort Products Contributed Assets, if such Tax Proceeding relates or could reasonably be expected to relate to both a claim for Taxes with respect to the Comfort Products Contributed Assets (“Comfort Products Taxes”) for a Pre-Closing Tax Period and a claim for Comfort Products Taxes for a Post-Closing Tax Period, and such claim for Comfort Products Taxes for a Pre-Closing Tax Period is not separable from such claim for Comfort Products Taxes for a Post-Closing Tax Period, the Company (if the claim for Comfort Products Taxes that are for a Post-Closing Tax Period exceeds or reasonably could be expected to exceed in amount the claim for Comfort Products Taxes for a Pre-Closing Tax Period) or otherwise Buyer (Buyer or the Company, as the case may be, the “Comfort Products Tax Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity PaymentControlling Party”), the Purchaser will have the right shall be entitled to control the defense of such Tax Proceeding. In such case, the other Party (the “Comfort Products Tax Contest Non-Controlling Party”) shall be entitled to participate fully (at the Comfort Products Tax Contest Non-Controlling Party’s sole expense) in the conduct of such Tax Proceeding and the Comfort Products Tax Contest at its expenseControlling Party shall not settle, and in which case no settlement compromise, or compromise discharge such Tax Proceeding without the consent of issues will be made without Orbital's and OrbNav's written consent, such Comfort Products Tax Contest Non-Controlling Party (which consent shall not be unreasonably withheldwithheld or delayed). The Purchaser costs and expenses of conducting the defense of such Tax Proceeding shall handle any Tax Claim relating to any Tax period be reasonably apportioned based on the relative amounts of the Company included in claim for Comfort Products Taxes for a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such claim for Comfort Products Taxes for a Post-Closing Tax Claim in its sole discretionPeriod.
Appears in 1 contract
Contests. Each of Purchaser, the Company and the Included Subsidiaries, on the one hand, and Seller, on the other hand, (athe "Recipient") shall notify the chief tax officer of the other party in writing within 15 days of receipt by the Recipient of written notice of any pending or threatened audit, deficiency, proposed adjustment, assessment, examination or other administrative or court proceeding, suit, dispute or other claim ("Tax Claim") that could affect the liability for Taxes of such other party, and such notice shall provide the details of such Tax Claim. If the Recipient fails to give such prompt notice to the other party, the Recipient shall not be entitled to indemnification for any claim Taxes arising in connection with such Tax Claim if and to the extent that such failure to give notice materially and adversely affects the other party.Seller shall have the sole right to represent and control the Acquired Companies' interests in any Tax Claim relating to taxable periods ending on or before the Closing Date and to employ counsel of its choice at its expense; provided, however, that Seller shall have no right to represent the Acquired Companies' interest in any such Tax Claim unless Seller shall have first notified Purchaser in writing of Seller's intention to do so within twenty (20) days of notification of the Tax Claim by Purchaser. Purchaser may participate in such Tax Claim at its own expense. In the case of a Split Tax Period, Seller shall be entitled to participate at its expense in any Tax Claim relating in any part to Taxes attributable to the Pre-Closing Period and, with the prior written consent of Purchaser, at Seller's sole expense, may assume the control of such entire Tax Claim. None of Purchaser, any of its Affiliates, or any Acquired Company may settle or otherwise dispose of any Tax Claim for Tax which Seller may have a liability under this Agreement, or which may result in an increase in Seller's liability under this Agreement, without the prior written consent of Seller, which consent may not be unreasonably withheld, unless Purchaser and the Acquired Companies fully indemnify Seller in writing with respect to OrbNav's Membership Interest is asserted such liability in a Contest (as defined below) against manner satisfactory to Seller. Neither Seller nor any of its affiliates may settle or otherwise dispose of any Tax Indemnitee that would result in Claim for which Purchaser or the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of Acquired Companies may have a liability under this Agreement, "Contest" means or which may result in an increase in Purchaser's or the Acquired Companies' liability under this Agreement, without the prior written consent of Purchaser, which consent may not be unreasonably withheld, unless Seller fully indemnifies Purchaser and the Acquired Companies in writing with respect to such liability in a manner satisfactory to Purchaser.Seller shall use its reasonable best efforts to minimize any auditinterest, court proceeding or penalties, and other dispute additions to Taxes that may be payable with respect to any Tax matter that affects OrbNav's Membership Interest in Claim for which the Company or any other Tax Indemnitee. Unless the Purchaser Seller has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionAcquired Companies' interests.
Appears in 1 contract
Sources: Merger Agreement (Imc Global Inc)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted After the Closing, Newport shall promptly notify Parent in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser writing of any written notice of such Contesta proposed assessment or claim in an audit or administrative or judicial proceeding of Newport or of any of the Companies or Subsidiaries which, but in no event later than 15 days prior if determined adversely to the time taxpayer, would be grounds for indemnification under this Section 13; provided, however, that a written response failure to the written give such notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice will not affect Newport’s rights to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser indemnification under this Section 13 except to the extent that, but for such failure, Parent, a Company or a Subsidiary could have avoided all or a portion of the Tax liability in question.
(b) In the case of an audit or administrative or judicial proceeding that Orbital's relates to periods ending on or OrbNav's position is actually prejudiced before the Closing Date, provided that Parent acknowledges in writing its liability under this Agreement to hold Newport, the Companies and the Subsidiaries harmless against the full amount of any adjustment which may be made as a result thereof. Orbital and OrbNav shallof such audit or proceeding that relates to periods ending on or before the Closing Date (or, at their electionin the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 13.3 to the portion of such year ending on or before the Closing Date), Parent shall have the right at its expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that proceeding but only to the extent that such Contest audit or proceeding relates solely to a potential adjustment for which Parent could adversely affect be held liable hereunder; Newport also may participate in any such audit or proceeding and, if Parent does not assume the Purchaser's Tax Liability defense of any such audit or proceeding, Newport may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving ten (after taking into account any required Tax Indemnity Payment), 10) Business Days prior notice to Parent setting forth the Purchaser will have the right terms and conditions of settlement.
(c) With respect to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to a potential adjustment for which both Parent and Newport or the Companies or any Tax period Subsidiary could be liable, each party may participate in the audit or proceeding.
(d) The provisions of this Section 13.8 shall govern and control in the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and event of any inconsistency with the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretiongeneral indemnification procedures of Section 12.7.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted Buyer shall promptly notify the Sellers' Representative in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company or any of the Subsidiaries which, if determined adversely to the taxpayer, could be grounds for indemnification under Section 8.1.1 above; provided, however, that a failure to give such Contestnotice will not -------- ------- affect a Buyer Indemnitee's right to indemnification hereunder, except to the extent, if any, that, but for such failure, Sellers, the Company, the Subsidiaries or the Buyer could have contested in no event later than 15 timely fashion the Tax liability in question. In the case of an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, provided that within 30 days prior to after the time that a written response to Sellers' Representative receives the written notice is requiredfrom Buyer required under this Section 8.5 and prior to taking any action with respect to such audit or administrative or judicial proceeding, unless such written notice is received the Sellers' Representative acknowledges in writing the Sellers' joint and a written response is due in less than 15 days, in several liability under Section 8.1 above to hold the Buyer Indemnitees harmless against the full amount of any adjustment which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital and OrbNav shallof such audit or proceeding, at their election, the Sellers' Representative shall have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the Sellers' expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, proceeding; provided, however, that Orbital and OrbNav will keep neither the Purchaser informed of -------- ------ Sellers nor the progress and disposition of the Contest and no settlement Sellers' Representative shall settle or otherwise compromise of issues will be made (or agree to settle or compromise) any issue or matter without the PurchaserBuyer's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's prior written consent, which consent shall not be unreasonably withheld. The Purchaser Buyer also may participate in such audit or proceeding at its own expense. If the Sellers' Representative does not assume the defense of any such audit or proceeding, Buyer may, without any effect to its or any other Buyer Indemnitee's right to indemnification under Section 8.1 above, defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding. Except as provided otherwise in this Section 8.5, Buyer shall handle control at its own expense any Tax Claim relating and all audit, administrative and judicial proceedings related to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlCompany, and the Purchaser shall be entitled to defend, compromise Subsidiaries or settle such Tax Claim in its sole discretiontheir Taxes.
Appears in 1 contract
Sources: Stock Purchase Agreement (Azz Inc)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "a “Contest" means ” is any audit, court proceeding or other dispute with respect to any Tax tax matter that affects OrbNav's Membership Interest in the Company or Companies, Alcomat, Allied Concrete and any other Tax Indemniteeof their Subsidiaries. Unless the Purchaser Acquiror has previously received written notice from Orbital and OrbNav the Sellers of the existence of such Contest, the Purchaser Acquiror shall give written notice to Orbital and OrbNav the Sellers of the existence of any Contest relating to a Tax tax matter that is or may be Orbital's or OrbNav's the responsibility of the Seller Indemnifying Parties under this Section 8 as soon as practicable after 6.9(b) within ten days from the receipt by the Purchaser Acquiror of any written notice of such Contest, but in no event later than 15 days prior failure to give such notice shall relieve the Seller Indemnifying Parties of any liability hereunder, except to the time extent that a written response the Seller Indemnifying Parties are prejudiced by such failure to give timely notice. Unless the Sellers have previously received written notice is requiredfrom Acquiror of the existence of such Contest, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser Sellers shall give written notice to Orbital Acquiror of the existence of any Contest for which Acquiror has responsibility within ten days from the receipt by the Sellers of any written notice of such Contest. Acquiror, on the one hand, and OrbNav as soon as practicable. If the Purchaser fails Sellers, on the other hand, agree, in each case at no cost to comply the other party, to cooperate with the foregoing sentenceother and the other’s representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, Orbital or OrbNav, as the case may be, shall but not be liable limited to, making available to the Purchaser to the extent that Orbital's other party, during normal business hours, all books, records, returns, documents, files, other information (including, without limitation working papers and schedules), officers or OrbNav's position is actually prejudiced as a result thereofemployees (without substantial interruption of employment) or other relevant information necessary or useful in connection with any Contest requiring any such books, records and files. Orbital and OrbNav The Sellers shall, at their election, have the right to represent the interests each of the Company Company’s interests in any Contest relating to a Tax tax matter for which Orbital arising in a period ending on or OrbNav may be required to make a Tax Indemnity Paymentbefore the Closing Date, to employ counsel of Orbital's and OrbNav's their choice at the their expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, ; provided, however, that Orbital and OrbNav will keep Acquiror shall have the Purchaser informed right to consult with the Sellers regarding any such Contest that may affect either of the progress Companies , Alcomat, Allied Concrete and disposition any of their Subsidiaries or taxes relating to the Contest and no settlement or compromise of issues will be made without BSI Properties for any periods ending after the Purchaser's written consent, which consent shall not be unreasonably withheld Closing Date at Acquiror’s own expense and provided, further, that to the extent any settlement or other disposition of any such Contest could adversely affect may only be with the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)consent of Acquiror, the Purchaser which consent will not be unreasonably withheld, delayed or conditioned. Acquiror shall have the right to control the conduct of the any Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating with respect to any Tax period of the Company included tax matter arising in a Pre-period ending after the Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionDate.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav promptly notify the Seller in writing of the existence commencement of any Contest relating Tax audit or administrative or judicial proceeding and shall also separately notify the Seller in writing of any demand or claim on the Purchaser or the Company which, if determined adversely to a Tax matter that is the taxpayer or may after the lapse of time would be Orbital's or OrbNav's responsibility grounds for indemnification by the Seller under this Section 8 as soon as practicable after Article VII. Such notice shall contain factual information (to the receipt by extent known to the Purchaser or the Company) describing the asserted Tax liability in reasonable detail and shall include copies of any written notice or other document received from any taxing authority in respect of any such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicableasserted Tax liability. If the Purchaser fails to comply with give the foregoing sentenceSeller prompt notice of an asserted Tax liability as required by this Section 7.04, Orbital then (i) if the Seller is precluded by the failure to give prompt notice from contesting the asserted Tax liability in the appropriate administrative or OrbNavjudicial forums, as then the case may be, Seller shall not be liable have any obligation to indemnify the Purchaser for any loss or damage arising out of such asserted Tax liability, and (ii) if the Seller is not so precluded from contesting but such failure to give prompt notice results in a detriment to the Seller, then any amount which the Seller is otherwise required to pay the Purchaser pursuant to this Article VII with respect to such liability shall be reduced by the extent that Orbital's amount of such detriment.
(b) The Seller may elect to direct, through counsel of its own choosing and at its own expense, any audit, or OrbNav's position is actually prejudiced administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under this Article VII (any such audit or proceeding relating to an asserted Tax liability are referred to herein collectively as a result thereof"CONTEST"). Orbital If the Seller elects to direct the Contest of an asserted Tax liability, it shall within 30 calendar days of receipt of the notice of an asserted Tax liability notify the Purchaser of its intent to do so, and OrbNav shallthe Purchaser shall cooperate in good faith and shall cause the Company or its successor to cooperate in good faith, at their electionthe Seller's expense, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct each phase of such Contest. If the Seller contests its obligation to indemnify the Purchaser under Section 7.01 and the Purchaser elects to proceed with the Contest, including settlement the Seller shall only be obligated to pay the Purchaser's expenses in connection with such Contest in the event it is determined that the Seller is obligated to pay such asserted liability under Section 7.01. If the Seller elects not to direct the Contest or other disposition thereoffails to notify the Purchaser of its election as herein provided, the Purchaser or the Company may pay, compromise or contest such asserted liability, at the Seller's expense; provided, however, that Orbital and OrbNav will keep if the Seller has acknowledged its obligations under Section 7.01 with respect to such asserted liability, the Purchaser informed may not contest such asserted liability. However, in such case, neither the Purchaser nor the Company (including any designated representative of either) may settle or compromise any asserted liability over the objection of the progress and disposition of Seller; provided, however, that the Contest and no Seller's consent to settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld (provided that in the event the Seller withholds consent, the Seller shall then be obligated to direct such Contest). In any event, each of the Purchaser (or the Company) and providedthe Seller may participate, furtherat its own expense, that in the Contest. If the Seller chooses to direct the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)Contest, the Purchaser will have shall promptly empower and shall cause the right Company or its successor promptly to control the conduct empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of the Contest at its expense, and in which case no settlement Seller as it may designate to represent the Purchaser or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included or its successor in a Pre-Closing the Contest insofar as the Contest involves an asserted Tax Period liability for which Orbital and OrbNav elect in writing not to control, and the Purchaser shall Seller would be entitled to defend, compromise or settle such Tax Claim in its sole discretionliable under this Article VII.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sykes Healthplan Services Inc)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Seller in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or of any of the Company and the Subsidiaries which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article VII; provided, however, that a failure to give such Contestnotice will not affect the Purchaser's right to indemnification under this Article VII except to the extent, if any, that, but for such failure, the Seller or the Parent could have avoided all or a portion of the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, provided that the Seller acknowledges in writing its liability under this Agreement to hold the Purchaser, the Company and the Subsidiaries harmless against the full amount of any adjustment which may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital of such audit or proceeding that relates to periods ending on or before the Closing Date (or, in the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 7.01(b) to the portion of such year ending on or before the Closing Date), the Seller and OrbNav shall, at their election, the Parent each shall have the right at its expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that proceeding but only to the extent that such Contest could adversely affect audit or proceeding relates solely to a potential adjustment for which the Purchaser's Tax Liability (after taking into account Seller and the Parent each has acknowledged its liability; the Purchaser also may participate in any required Tax Indemnity Payment)such -40- audit or proceeding and, if the Seller or the Parent does not assume the defense of any such audit or proceeding, the Purchaser will may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Seller or the Parent setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Seller and the Parent each has acknowledged its liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right to control the conduct of the Contest right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both the Seller and/or the Parent (as evidenced by its acknowledgment under this Section 7.04) and the Purchaser or the Company or any Subsidiary could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which case no settlement separate issues are otherwise controlled under this Article VII by the Purchaser and the Seller and/or the Parent.
(d) None of the Purchaser, the Parent or the Seller shall enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of issues will be made without Orbital's and OrbNav's written consentthe other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating Purchaser, the Parent and the Seller agree to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlcooperate, and the Purchaser shall be entitled agrees to defendcause the Company and the Subsidiaries to cooperate, in the defense against or compromise of any claim in any audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Sources: Stock Purchase Agreement (United Capital Corp /De/)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) shall be made against any Tax Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee (including a written notice of such proceeding) for any Imposition as to which the Lessees may have an indemnity obligation pursuant to this SECTION 11.5, or if any Tax Indemnitee shall receive notice that would result any Imposition to which the Lessees may have an indemnity obligation pursuant to this SECTION 11.5 may be payable, such Tax Indemnitee shall promptly (and, in any event, within thirty (30) days) notify the Company, as agent for the Lessees, in writing (PROVIDED that failure to so promptly notify the Company within thirty (30) days shall not alter such Tax Indemnitee's rights under this SECTION 11.5 except to the extent such failure precludes or materially adversely affects the ability to conduct a contest of any indemnified Taxes) and shall not take any action with respect to such claim, proceeding or Imposition without the written consent of the Company, as agent for the Lessees, (such consent not to be unreasonably withheld or unreasonably delayed) for thirty (30) days after the receipt of such notice by the Company or thereafter if the applicable Lessee has commenced to take appropriate action; PROVIDED, HOWEVER, that in the indemnification case of any such claim or proceeding, if such Tax Indemnitee shall be required by Orbital law or OrbNav pursuant regulation to this Section 8 take action prior to the end of such 30-day period, such Tax Indemnitee shall in such notice to the applicable Lessee, so inform the Company, as agent for the Lessees, and such Tax Indemnitee shall not take any action with respect to such claim, proceeding or Imposition without the consent of the Company, as agent for the Lessees, (such consent not to be unreasonably withheld or unreasonably delayed) for ten (10) days after the receipt of such notice by the Company, or thereafter if the applicable Lessee has commenced to take appropriate action, unless such Tax Indemnitee shall be required by law or regulation to take action prior to the end of such 10-day period. The Company shall be entitled for a period of thirty (30) days from receipt of such notice from such Tax Indemnitee (or such shorter period as such Tax Indemnitee has notified the Lessees is required by law or regulation for such Tax Indemnitee to commence such contest), to request in writing that such Tax Indemnitee contest the imposition of such Tax, at the expense of the applicable Lessee. If (x) such contest can be pursued in the name of the applicable Lessee and independently from any other proceeding involving a Tax liability of such Tax Indemnitee for which the applicable Lessee has not agreed to indemnify such Tax Indemnitee, (y) such contest must be pursued in the name of such Tax Indemnitee, but can be pursued independently from any other proceeding involving a Tax liability of such Tax Indemnitee for which the applicable Lessee has not agreed to indemnify such Tax Indemnitee or (z) such Tax Indemnitee so requests, then the following provisions of this Section 8.4(a) will apply applicable Lessee shall be permitted to control the handling contest of such claim, PROVIDED that in the case of a contest described in CLAUSE (y), if such Tax Indemnitee determines reasonably and in good faith that such contest by the applicable Lessee could have a material adverse impact on the business or operations of such Tax Indemnitee and provides a written explanation to such Lessee of such determination, such Tax Indemnitee may elect to control or reassert control of the contest, and PROVIDED, that by taking control of the contest, the applicable Lessee acknowledges that such Lessee has an indemnification obligation under Section 11.5 for the Imposition ultimately determined to be due by reason of such claim, and PROVIDED, FURTHER, that in determining the application of CLAUSES (x) and (y) above, each Tax Indemnitee shall take any and all reasonable steps to segregate claims (including claims that are part of a single examination or investigation) for any Taxes for which the applicable Lessee indemnifies hereunder from Taxes for which the applicable Lessee is not obligated to indemnify hereunder, so that the applicable Lessee can control the contest of the former. For purposes In all other claims requested to be contested by the Company, as agent for the Lessees, such Tax Indemnitee shall control the contest of this Agreementsuch claim, "Contest" means acting through counsel reasonably acceptable to the Company, as agent for the Lessees. In no event shall the applicable Lessee be permitted to contest (or such Tax Indemnitee required to contest) any auditclaim, court (A) if such Tax Indemnitee provides the applicable Lessee with a legal opinion of counsel reasonably acceptable to the applicable Lessee that such action, suit or proceeding involves a material risk of imposition of criminal liability or will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Property Lien) on any Property or any part of any thereof unless the applicable Lessee shall have posted and maintained a bond or other dispute security satisfactory to the relevant Tax Indemnitee in respect to such risk, (B) if a Lease Event of Default has occurred and is continuing unless the applicable Lessee shall have posted and maintained a bond or other security satisfactory to the relevant Tax Indemnitee in respect of the Taxes subject to such claim and any and all expenses for which the applicable Lessee is responsible hereunder reasonably foreseeable in connection with the contest of such claim, (C) unless the applicable Lessee shall have agreed to pay and shall pay, to such Tax Indemnitee within thirty (30) days of receiving an itemized list thereof, all reasonable out-of-pocket costs, losses and expenses that such Tax Indemnitee may incur in connection with contesting such Imposition including all reasonable legal, accounting and investigatory fees and disbursements, or (D) if such contest shall involve the payment of the Tax prior to the contest, unless the applicable Lessee shall provide to such Tax Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnitee is required to pay (with no additional net after-tax costs to such Tax Indemnitee). In addition for Tax Indemnitee controlled contests and claims contested in the name of such Tax Indemnitee in a public forum, no contest shall be required: (A) unless the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Tax Indemnitee with respect to any period for which the applicable Lessee may be liable to pay an indemnity under this SECTION 11.5(B)) exceeds $10,000 and (B) unless, if requested by such Tax matter that affects OrbNav's Membership Interest in Indemnitee, the applicable Lessee shall have provided to such Tax Indemnitee an opinion of counsel selected by the Company (which may be in-house counsel) that a reasonable basis exists to contest such claim. In no event shall a Tax Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. The party conducting the contest shall consult in good faith with the other party and its counsel with respect to the contest of such claim for Taxes (or claim for refund) but the decisions regarding what actions to be taken shall be made by the controlling party in its sole judgement, PROVIDED, HOWEVER, that if such Tax Indemnitee is the controlling party and the applicable Lessee recommends the acceptance of a settlement offer made by the relevant Governmental Authority and such Tax Indemnitee rejects such settlement offer then the amount for which the applicable Lessee will be required to indemnify such Tax Indemnitee with respect to the Taxes subject to such offer shall not exceed the amount which it would have owed if such settlement offer had been accepted. In addition, the controlling party shall keep the noncontrolling party reasonably informed as to the progress of the contest, and shall provide the noncontrolling party with a copy of (or appropriate excerpts from) any reports or claims issued by the relevant auditing agents or taxing authority to the controlling party thereof, in connection with such claim or the contest thereof. Each Tax Indemnitee shall at the applicable Lessee's expense supply the applicable Lessee with such information and documents reasonably requested by the Guarantor as are necessary or advisable for the applicable Lessee to participate in any action, suit or proceeding to the extent permitted by this SECTION 11.5(b). Notwithstanding anything in this SECTION 11.5(b) to the contrary, no Tax Indemnitee shall enter into any settlement or other compromise or fail to appeal an adverse ruling (which appeal has been requested in writing by the applicable Lessee) with respect to any claim which may be entitled to be indemnified under this SECTION 11.5 without the prior written consent of the applicable Lessee, such entering into of a settlement or compromise, or such failure to appeal, without such consent, shall constitute a waiver of all rights to indemnification under this SECTION 11.5 with respect to such claim. Notwithstanding anything contained herein to the contrary, a Tax Indemnitee will not be required to contest (and the applicable Lessee shall not be permitted to contest) a claim with respect to the imposition of any Tax if such Tax Indemnitee shall waive in writing, in a form acceptable to the Lessees, its right to indemnification under this SECTION 11.5 with respect to such claim (and any claim with respect to such year or any other Tax Indemnitee. Unless taxable year the Purchaser has previously received written notice from Orbital and OrbNav contest of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that which is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced materially adversely affected as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Paymentwaiver), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretion.
Appears in 1 contract
Sources: Master Lease and Open End Mortgage (Cardinal Health Inc)
Contests. (ai) If any claim for Tax Governmental Body asserts a Claim with respect to OrbNavTaxes, then the party hereto first receiving notice of such Claim promptly shall provide written notice thereof to the party that may be responsible for such Taxes under this Agreement; PROVIDED, HOWEVER, that the failure of such party to give such prompt notice shall not relieve the other party of any of its obligations hereunder, except to the extent that the other party is actually prejudiced thereby. Such notice shall specify in reasonable detail the basis for such Claim and shall include a copy of the relevant portion of any correspondence received from the Governmental Body.
(ii) Notwithstanding anything contained in this Agreement to the contrary, but subject to Section 2.16(e), neither GE nor Crompton shall have the right to participate in any defense, settlement or compromise of a Third Party Claim (A) that the other party is defending and (B) that relates exclusively to Taxes (other than Taxes relating to the Acquired OSi Subsidiaries to the extent such matters are otherwise addressed in Section 9.2(d)(iii)-(v)) for which the other party is responsible, without such party's Membership Interest is asserted in a Contest express written consent.
(as defined belowiii) Crompton shall have the exclusive right to control, at its own expense, any audit, examination, contest, litigation or other proceeding by or against any taxing authority (a "TAX PROCEEDING") in respect of any Acquired OSi Subsidiary for any Pre-Closing Tax Indemnitee Period other than a Tax Proceeding relating to a Straddle Period Return; provided, however, that would result in the indemnification of Crompton shall not settle or compromise any such Tax Indemnitee by Orbital 156 Proceeding if it would adversely affect such Acquired OSi Subsidiary in any Post-Closing Tax Period without the prior written consent of GE (such consent not to be unreasonably withheld or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claimdelayed). For purposes of this Agreementparagraph, "Contest" means settling or compromising a Tax Proceeding on a basis consistent with a position previously taken on the relevant Tax return to which such proceeding relates shall not be deemed to have an adverse effect on an Acquired OSi Subsidiary in a Post-Closing Tax Period.
(iv) In the case of a Tax Proceeding relating to a Straddle Period Return of any audit, court proceeding or other dispute Acquired OSi Subsidiary with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contestwhich Crompton could have responsibility for Taxes pursuant to this Agreement, the Purchaser (A) GE shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shallcontrol, at their electionits own expense, such Tax Proceeding and (B) Crompton shall have the right (but not the obligation) to represent participate, at its own expense, in such Tax Proceeding. In the interests event Crompton elects to participate in such Tax Proceeding, (A) GE shall provide Crompton with a timely and reasonably detailed account of the Company each phase of such Tax Proceeding, (B) GE shall consult with Crompton before taking any significant action in connection with such Tax Proceeding, (C) GE shall consult with Crompton and offer Crompton an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (D) Crompton shall be entitled to participate in any Contest meetings with a Governmental Body relating to a such Tax matter for which Orbital Proceeding, (E) GE shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest, and (F) GE shall not settle, compromise or OrbNav may be required to make a abandon any such Tax Indemnity Payment, to employ counsel Proceeding without obtaining the prior written consent of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consentCrompton, which consent shall not be unreasonably withheld and provided, further, that or delayed. Any dispute relating to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)defense, the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will any such Tax Proceeding shall be made resolved by the Independent Arbitrator. The Independent Arbitrator's determination shall be final and binding upon the parties and its expenses shall be borne equally by the parties.
(v) GE shall have the exclusive right to control, at its own expense, any Tax Proceeding in respect of any Acquired OSi Subsidiary other than a Tax Proceeding described in Section 9.2(d)(iii) or (iv); provided, however, that GE shall not settle or compromise any such Tax Proceeding if it would adversely affect such Acquired OSi Subsidiary for any Pre-Closing Tax Period for which the relevant statute of limitations on assessment has not yet expired without Orbital's and OrbNav's the prior written consentconsent of Crompton (such consent not to be unreasonably withheld or delayed). For purposes of this paragraph, settling or compromising a Tax Proceeding on a basis consistent with a position previously taken on the relevant Tax return to which consent such proceeding relates shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating deemed to any Tax period of the Company included have an adverse effect on an Acquired OSi Subsidiary in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionPeriod.
Appears in 1 contract
Contests. The Sellers and their duly appointed representatives shall have the exclusive authority to control any audit or examination by any taxing authority, to initiate any claim for refund, to amend any Tax return and to contest, resolve and defend against any assessment for additional Taxes, or other adjustment of Taxes of or relating to any liability of the Target or its Subsidiaries for Taxes reflected on any Tax returns covering any Pre-Closing Periods; PROVIDED, HOWEVER, that (a) If neither the Sellers nor any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in of their duly appointed representatives shall, without the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received prior written notice from Orbital and OrbNav consent of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consentBuyer, which consent shall not be unreasonably withheld. The Purchaser shall handle , file any claim for refund, amend any Tax Claim relating to return or enter into any settlement of any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Buyer or any of its Affiliates for any Tax period beginning after the Closing Date (a "POST-CLOSING PERIOD") or any portion of an Overlap Period beginning after the Closing Date, and (b) neither the Sellers nor any of their duly appointed shall, without the prior consent of the Company included in a Buyer, which consent shall not unreasonably be withheld, enter into any settlement of any contest or otherwise compromise any issue that would increase any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Buyer of any amount under Section 9.3 unless the Sellers shall have agreed to indemnify the Buyer for payment of such Taxes. Buyer and its duly appointed representatives shall have the exclusive authority to control any audit or other proceeding relating to Taxes for any taxable year or other the Closing Date; PROVIDED, HOWEVER, that (a) neither Buyer, the Target nor any of their duly appointed representatives shall, without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, enter into any settlement of any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Sellers or any of their affiliates for any Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlor any portion of the Overlap Period ending on the Closing Date, and (b) neither Buyer, the Purchaser Target nor any of their duly appointed representatives shall, without the prior consent of the Sellers, which consent shall not unreasonably be withheld, enter into any settlement of any contest or otherwise compromise any issue that would reduce any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Sellers of any amount under Section 9.3 unless Buyer shall have waived or caused to be waived for itself and the Target any right to indemnification for Taxes from the Sellers. The Sellers shall be entitled to defend, compromise or settle any Tax refund relating to the Target and its Subsidiaries to the extent such Tax Claim refund relates to any Pre-Closing Period or any portion of the Overlap Period ending on the Closing Date, unless such refund has been recorded as an Asset on the Closing Balance Sheet in its sole discretionwhich case Buyer shall be entitled thereto.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "a “Contest" means ” is any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemniteeof its Subsidiaries. Unless the Purchaser Parent has previously received written notice from Orbital and OrbNav the Securityholder Representative of the existence of such Contest, the Purchaser Parent shall give written notice to Orbital and OrbNav the Securityholder Representative of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's the responsibility of the Participating Securityholders under this Section 8 as soon as practicable after 7.2(f) within 14 days from the receipt by the Purchaser Parent of any written notice of such Contest, but in no event later than 15 days prior failure to give such notice shall relieve the time that a written response to the written notice is requiredParticipating Securityholders of any liability hereunder, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser except to the extent that Orbitalthe Participating Securityholders are materially prejudiced by such failure to give timely notice. The Parent, on the one hand, and the Securityholder Representative, on behalf of the Participating Securityholders, on the other hand, agree to cooperate with the other and the other's representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other party (at the other party’s request), during normal business hours, all books, records, Returns, documents, files, other information (including, without limitation working papers and schedules), officers or OrbNav's position is actually prejudiced as a result thereofemployees (without substantial interruption of employment) or other relevant information reasonably necessary or useful in connection with any Contest requiring any such books, records and files. Orbital and OrbNav The Securityholder Representative shall, at their electionits election and at the expense of the Securityholders, have the right to represent the Company’s and its Subsidiaries’ interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required relating to make a Pre-Closing Tax Indemnity PaymentPeriod, to employ counsel of Orbital's and OrbNav's its choice at the Securityholders’ expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, ; provided, however, that Orbital the Parent shall have the right to consult with the Securityholder Representative regarding any such Contest that may affect the Company or any of its Subsidiaries for any Post-Closing Tax Period at the Parent's own expense and OrbNav will keep provided, further, that any settlement or other disposition of any such Contest may only be with the Purchaser informed prior written consent of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consentParent, which consent shall not be unreasonably withheld and providedwithheld, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will conditioned or delayed. The Parent shall have the right to control the conduct of the any Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating with respect to any Tax period of the Company included in matter relating to a PrePost-Closing Tax Period which Orbital and OrbNav elect in writing not to Period. The parties shall jointly control, and each at its own expense, the Purchaser conduct of any Contest relating to a Straddle Period; provided, however, that in the event that such Contest affects only one of the parties, such party shall be entitled have the right to defend, compromise or settle control the conduct of such Tax Claim in its sole discretionContest.
Appears in 1 contract
Sources: Merger Agreement (NICE Ltd.)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice promptly notify or cause the Company to Orbital and OrbNav of notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Seller in writing of any written notice of such Contesta proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or of the Company which, but in no event later than 15 days prior if determined adversely to the time taxpayer, would be grounds for indemnification under this Article VI or could otherwise result in any Tax cost to the Seller; provided, however, that a written response failure to give such notice will not affect the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice Purchaser's right to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser indemnification under this Article VI except to the extent such failure on the part of the Purchaser or the Company prejudices the Seller by preventing the avoidance of all or a portion of the Tax liability in question.
(b) In the case of an audit or administrative or judicial proceeding that Orbital's relates to periods ending on or OrbNav's position is actually prejudiced before the Closing Date, provided that the Seller acknowledge in writing its indemnification obligation liability under Article VI of this Agreement with respect to the potential liability of the Company as a result thereof. Orbital and OrbNav shallof such audit or administrative or judicial proceeding, the Seller shall have the right, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Paymentits expense, to employ counsel of Orbital's participate in and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding; the Purchaser may also participate in any such audit or proceeding and, if the Seller does not assume the defense of any such audit or proceeding, the Purchaser, at its expense, may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Seller setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Seller has acknowledged its indemnification obligation are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or 45 41 proceeding with respect to the latter issues, provided that the Purchaser provides the Seller with a written acknowledgement of the Purchaser's liability.
(c) Notwithstanding Section 6.04(b), neither the Purchaser nor the Seller shall enter into or cause the Company to enter into any compromise or agree to settle or cause the Company to agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or any prior or subsequent year without the written consent of the other party which consent may not be unreasonably withheld. If the Purchaser or the Seller refuses to provide the respective other party with written consent to settle any such claim, then the parties shall submit the matter to an Independent Firm and the Independent Firm shall resolve the issue based on a standard of maximal fairness to both the Purchaser and the Seller.
(d) The Purchaser and the Seller shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with (i) the filing of Returns pursuant to Section 6.03 (including settlement such amended Returns for periods (or other disposition portions thereof, ) ending on or prior to the Closing Date that the Seller may reasonably request the Purchaser to file or cause the Company to file; provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without if in the Purchaser's written consent, which consent shall not reasonable judgment the filing of the amended return would be unreasonably withheld and provided, further, that disadvantageous to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have may deny the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without OrbitalSeller's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, request and the parties shall submit the matter to an Independent Firm and the Independent Firm shall resolve the issue based on a standard of maximal fairness to both the Purchaser shall be entitled and the Seller and (ii) any audit, litigation or other proceeding with respect to defend, compromise or settle such Tax Claim in its sole discretionTaxes.
Appears in 1 contract
Sources: Share Purchase Agreement (Galileo International Inc)
Contests. (a) If the Purchaser, any claim other Indemnitee or any affiliate thereof receives any written notice of a pending or threatened audit, investigation, inquiry, assessment, proposed adjustment, notice of deficiency, litigation, contest or other dispute that could result in a Loss for Tax which the Indemnitor is obligated to indemnify an Indemnitee under this Indemnity Agreement (a “Claim”), the Purchaser agrees promptly to notify the Indemnitor in writing of such Claim.
(b) Upon written notice from the Indemnitor to the Purchaser within fifteen (15) days after receipt by Indemnitor of the notice referred to in Section 3(a), the Indemnitor or its designee shall have the sole right to represent the REITs in the applicable Claim at the expense of the Indemnitor, with counsel selected by the Indemnitor and in the forum selected by the Indemnitor; provided that in the case of a Claim in respect of Section 2(e), the Indemnitor or its designee shall be entitled so to represent the REITs only in a controversy with the Internal Revenue Service (the “IRS”) for a taxable period ending on or before or that includes the date of Purchaser’s acquisition of the REIT Interests pursuant to the LP Agreement (the “Purchase Date”); provided that the Purchaser or its designee shall be entitled to assume such representation if upon the Purchaser’s request the Indemnitor is not able to demonstrate to the Purchaser’s reasonable satisfaction that the Indemnitor has the financial capability to satisfy its obligations hereunder with respect to OrbNav's Membership Interest is asserted the applicable Claim. Notwithstanding the foregoing, the Indemnitor shall not be entitled to settle any controversy so conducted by the Indemnitor without the prior written consent of the Purchaser (not unreasonably to be withheld, delayed or conditioned) if such settlement could (i) adversely affect the tax status or liability of either REIT, any Indemnitee or any affiliate thereof for any taxable period commencing on or after or that includes the Purchase Date or (ii) reasonably be expected to result in a Contest Loss to an Indemnitee for which such Indemnitee would not be indemnified under this Indemnity Agreement.
(c) The Purchaser or its designee shall contest any Claim not contested by the Indemnitor or its designee pursuant to Section 3(b), in good faith at the expense of the Indemnitor (such expenses, including reasonable legal, accounting and investigatory fees and costs, to be paid currently by the Indemnitor), with counsel selected by the Purchaser and in the forum selected by the Purchaser upon written request therefor from the Indemnitor to the Purchaser within thirty (30) days after receipt by the Indemnitor of the notice referred to in Section 3(a) accompanied by proof reasonably satisfactory to the Purchaser that the Indemnitor has the financial capability to satisfy its obligations hereunder with respect to the applicable Claim along with an opinion in form and substance reasonably satisfactory to Purchaser of independent tax counsel or accountants of recognized standing reasonably satisfactory to the Purchaser to the effect that there is substantial authority for the position that the Purchaser seeks to take in the contest of such Claim, provided that (i) the Purchaser shall not be required to pursue any appeal of a judicial decision under this Section 3(c) unless timely so requested in writing by Indemnitor and shall not be obligated to contest any Claim in the U. S. Supreme Court, and (ii) the Indemnitor shall advance to the Purchaser on an interest free basis sufficient funds to pay the applicable tax, interest, penalties and additions to tax to the extent necessary for the contest to proceed in the forum selected by the Purchaser. The Purchaser shall have the sole right to represent the REITs in any controversy with the IRS that does not constitute a Claim or that is solely with respect to taxable periods beginning after the Purchase Date and to employ counsel of its choice at its expense. The Purchaser shall (except to the extent provided in Section 3(d)) have full control over the conduct of any contest under this Section 3(c) but shall keep the Indemnitor informed as to the progress of such contest, shall provide the Indemnitor with all documents and information related to such contest reasonably requested in writing by the Indemnitor (other than tax returns (except for (i) separate company tax returns of either or both REITS or (ii) portions of tax returns that include but are not limited to either or both REITS or information therefrom compiled by the Purchaser) and other confidential information), and shall consider in good faith any suggestions made by the Indemnitor as to the conduct of such contest. Neither the Purchaser nor any REIT or any Indemnitee shall waive or extend the statute of limitations with respect to any taxable year of either REIT ending on or before or that includes the Purchase Date without the prior written consent of the Indemnitor (not unreasonably to be withheld, delayed or conditioned).
(d) Purchaser shall advise Indemnitor in writing of any settlement offer made by the IRS with respect to a controversy being contested pursuant to Section 3(c). Purchaser shall not be entitled to settle or compromise, either administratively or after the commencement of litigation, any controversy conducted by it pursuant to Section 3(c) without the prior written consent of the Indemnitor (not unreasonably to be withheld, delayed or conditioned) if such settlement or compromise (i) would give rise to an obligation of Indemnitor to indemnify an Indemnitee under this Indemnity Agreement (unless Purchaser waives payment of such indemnity) or (ii) could adversely affect the liability of Indemnitor or any direct or indirect owner of Indemnitor for taxes. If the Indemnitor requests in writing that the Purchaser accept a settlement or compromise offer (other than a settlement or compromise offer that would adversely affect the status of any Indemnitee or any affiliate (other than the REITs) as a real estate investment trust for Federal income tax purposes or a settlement or compromise offer conditioned upon agreement with respect to any matter not indemnified against by Indemnitor under this Indemnity Agreement), the Purchaser shall either accept such settlement offer or agree with the Indemnitor that the liability of the Indemnitor with respect to such Claim under this Indemnity Agreement shall be limited to an amount calculated on the basis of such settlement offer.
(e) Indemnitor shall pay any indemnity amount due under this Indemnity Agreement in respect of a Claim that is contested as set forth in Section 3(b) or 3(c), and Purchaser shall refund to Indemnitor any amount advanced by Indemnitor pursuant to clause (ii) of the proviso to the first sentence of Section 3(c) in excess of the portion thereof due to Purchaser under this Indemnity Agreement, within fifteen (15) Business Days (as defined below) against any Tax Indemnitee that would result in the indemnification LP Agreement) after the earlier of (i) a decision, judgment, decree or other order by any such Tax Indemnitee by Orbital or OrbNav court of competent jurisdiction which has become final and is not appealed pursuant to this Indemnity Agreement, or (ii) entry into a closing agreement or other settlement agreement or compromise in connection with an administrative or judicial proceeding. Indemnitor shall pay any indemnity amount due under this Indemnity Agreement in respect of a Claim other than a Claim that is contested as set forth in Section 8 then 3(b) or 3(c) within fifteen (15) Business Days (as defined in the following LP Agreement) after written demand therefor by the Purchaser accompanied by reasonable evidence of the liability for and amount of the indemnity. Late payments shall bear interest at the rate of eighteen percent (18%) per annum compounded monthly (or if less, the highest rate allowed by law).
(f) Except as provided above, the Purchaser and the other Indemnitees shall have full control over any decisions in respect of contesting or not contesting any tax matter and may pursue or not pursue administrative and/or judicial remedies and conduct any contest in any manner as they may determine, in each case in their sole and absolute discretion.
(g) The Parties shall use commercially reasonable efforts to mitigate any Loss, including by availing the REITs at the expense of the Indemnitor of the mitigation provisions of this Section 8.4(aavailable to real estate investment trusts under the Code.
(h) will apply Notwithstanding anything herein to the handling contrary, under no circumstances shall the Indemnitor be liable for any Loss: (i) incurred by any Person (as defined in the LP Agreement) other than the REITs after the earlier of (A) the day immediately prior to the final day of the calendar quarter that includes the Purchase Date or (B) the last day of the tax year of the REITs that includes the Purchase Date (regardless of when during the Survival Period such claimtaxes are assessed by the IRS) (it being understood that any tax arising from a failure to comply with Section 856(c)(4) of the Code in any quarter is incurred no sooner than the last day of the applicable quarter); or (ii) incurred by either or both of the REITs that results from a transaction (including a transaction deemed to occur for income tax purposes) that occurs after the date which is six (6) months following the Purchase Date (regardless of when during the Survival Period such taxes are assessed by the IRS); provided, however, that Indemnitor’s liability for any Loss relating to taxes shall be determined by reference to, and shall not exceed, the RP REITs’ Tax Liability Limitation (as hereinafter defined). For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect the term “RP REITs’ Tax Liability Limitation” shall mean the tax liabilities of the REITs that would have resulted had REIT I sold its assets on the Purchase Date for the value used to any Tax matter that affects OrbNav's Membership Interest determine the Purchase Payments (as defined in the Company or any other Tax Indemnitee. Unless LP Agreement) under the Purchaser has previously received written notice from Orbital and OrbNav LP Agreement (such maximum tax liabilities to be determined (x) for the sake of the existence of such Contestclarity, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax additional tax arising from such sale resulting from the actual failure of a REIT to qualify as a real estate investment trust within the meaning of Section 856 of the Code on or prior to the Purchase Date, and (y) without giving effect to any items of deduction or credits unrelated to such deemed sales that such REITs would have had available to reduce their tax liabilities resulting from such sales).
(i) Notwithstanding anything contained herein to the contrary, no Specified Matter shall be treated as failing to be true and correct, and therefore no such Specified Matter shall be the basis for indemnification under this Indemnity PaymentAgreement, to the extent any failure of such Specified Matter to be true and correct is the result of a breach by the Partnership or any Indemnitee of any representation or covenant in any Transaction Document, including any failure by the Partnership to operate in accordance with the REIT Requirements (as defined in the LP Agreement), or as a result of any Event of Default (as defined in the Purchaser will have the right to control the conduct of the Contest at its expense, and in LP Agreement).
(j) The amount for which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser Indemnitor is otherwise liable hereunder shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionreduced by reason of any liability that it would not have incurred but for an Event of Default having occurred.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect After the Closing, Parent shall, and shall cause its Affiliates to, promptly notify Holders’ Representative in writing and the Equityholders shall or shall cause Holders’ Representative to OrbNav's Membership Interest is asserted promptly notify Parent in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNavwriting, as the case may be, shall not be liable regarding (i) the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim with respect to any Covered Taxes, Non-Resident Capital Gains Taxes or any Covered Withholding Taxes, which, if determined adversely to the Purchaser taxpayer or after the lapse of time, could be grounds for indemnification under Section 8.2.1(a)(iii) or Section 8.2.1(b)(iii) and (ii) any communications from the PRC Taxing Authorities relating to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereofPublic Notice 7 Submission, provided, however, that Orbital no delay on the part of either party in giving any such notice shall relieve an Indemnifying Person of any indemnification obligations unless, and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that only to the extent that, such Contest Indemnifying Person is actually prejudiced by such delay. Such notice shall include copies of any notice or other document received from any Taxing Authority in respect of any such matter.
(b) In the case of any audit, examination, contest, litigation, appeal, settlement discussion or other proceeding against any Taxing Authority (a “Contest”) that relates to either the Taxes of the Company or any of its Subsidiaries solely for any Tax period ending on or before the Closing Date or any Covered Withholding Taxes, which, if determined adversely to the taxpayer or after the lapse of time, could adversely affect be grounds for indemnification under Section 8.2.1(b)(iii) (excluding, for the Purchaser's Tax Liability (after taking into account avoidance of doubt with respect to Non-Resident Capital Gains Taxes and any required Tax Indemnity Paymentdiscussions with the PRC Taxing Authorities with respect to the Public Notice 7 Submission), the Purchaser will Holders’ Representative shall have the right right, at the Holders’ sole cost and expense, to assume the control the conduct of such Contest by delivering a written notice to Parent no later than twenty (20) days after receipt of written notice regarding the commencement of such Contests, provided that (i) the Holders’ Representative shall diligently defend such Contest at its expenseand shall keep Parent reasonably informed regarding the progress and substantive aspects of such Contest (including promptly forwarding copies to Parent of any related correspondence, and providing Parent with an opportunity to review and comment on any material correspondence before Holders’ Representative sends such correspondence to any Taxing Authority), (ii) Holders’ Representative consult with Parent in which case no connection with the defense or prosecution of any such Contest, (iii) Parent shall have the right (at Parent’s cost and expense) to participate in (but not control) the defense of such Contest (including participating in any discussions with the applicable Taxing Authorities regarding such Contest), and (iv) Holders’ Representative shall not settle or compromise any such Contest without first obtaining the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed). If Holders’ Representative does not elect to control any such Contest, Parent shall, and shall cause its Affiliates (including the Company and its Subsidiaries) to (i) diligently defend the Company and its Subsidiaries in connection with such Contest, (ii) keep Holders’ Representative reasonably informed regarding the progress and substantive aspects of such Contest (including promptly forwarding copies to Holders’ Representative of any related correspondence, and providing Holders’ Representative with an opportunity to review and comment on any material correspondence before Parent sends such correspondence to any Taxing Authority), (iii) consult with Holders’ Representative in connection with the defense or prosecution of any such Contest, (iv) provide Holders’ Representative the right (at the Holders’ cost and expense) to participate in (but not control) the defense of such Contest (including participating in any discussions with the applicable Taxing Authorities regarding such Contest), and (v) not settle or compromise any such Contest without first obtaining the prior written consent of Holders’ Representative (not to be unreasonably withheld, conditioned or delayed) provided, that Parent agrees that it shall be unreasonable for Parent to object a settlement or a compromise of such Contest if such settlement or compromise will not increase the amount of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle Taxes payable by Parent or any Tax Claim relating to any Tax period of its Affiliates (including the Company included or any of its Subsidiaries) in a PrePost-Closing Tax Period which Orbital or impose any restrictions or limits on the activities of Parent or of any its Affiliates (including the Company or any of its Subsidiaries) in a Post-Closing Tax Period. For the avoidance of doubt, to the extent that it is ultimately determined that Covered Taxes or Covered Withholding Taxes are due in connection with any Contest that is controlled by Parent or any of its Affiliates pursuant to the immediately preceding sentence, any reasonable costs and OrbNav elect out-of-pocket expenses incurred by Parent or any of its Affiliates (including the Company and its Subsidiaries) in writing connection with any such Contest shall constitute Losses caused by, as a result of or arising out of, Covered Taxes or Covered Withholding Taxes, as the case may be.
(c) In the case of any Contest that relates to a Straddle Period, Parent shall have the right, at its own cost and expense, to direct and control, through counsel of its own choosing, any such Contest; provided, (i) Parent shall keep Holders’ Representative reasonably informed regarding the progress and substantive aspects of such Contest (including promptly forwarding copies to Holders’ Representative of any related correspondence, and providing Holders’ Representative with an opportunity to review and comment on any material correspondence before Parent sends such correspondence to any Taxing Authority), (ii) Parent shall consult with Holders’ Representative in connection with the defense or prosecution of any such Contest, (iii) Holders’ Representative shall have the right (at the Holders’ cost and expense) to participate in (but not control) the defense of such Contest (including participating in any discussions with the applicable Taxing Authorities regarding such Contest), and (iv) Parent shall not settle or compromise any such Contest without first obtaining the prior written consent of Holders’ Representative (not to be unreasonably withheld, conditioned or delayed).
(d) As long as the Special Tax Escrow Funds have not been substantially depleted or otherwise released (other than in the case of a Contingent Release but only to the extent Holders are still liable for the related Losses in accordance with the provisions of Section 8.2.4(d)(z)), Parent and Holders’ Representative shall jointly control (with each party bearing its respective cost and expense) any Contest that relates to Non-Resident Capital Gains Taxes (including any discussions with the PRC Taxing Authorities with respect to the Public Notice 7 Submission). As part of such joint control, Parent and the Purchaser Holders’ Representative shall (i) keep each other reasonably informed regarding the progress and substantive aspects of such Contest, (ii) promptly forwarding copies to each other of any related correspondence, (iii) provide each other with an opportunity to review and comment on any material correspondence before sending any correspondence to the PRC Taxing Authorities, (iv) consult with each other in connection with the defense or prosecution of any such Contest, (iii) allow each other to participate and jointly control in the defense of such Contest (including participating in any discussions with the PRC Taxing Authorities regarding such Contest), and (iv) shall not settle or compromise any such Contest without first obtaining the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). For the avoidance of doubt, Parent agrees that it shall be entitled unreasonable for Parent to defendobject a settlement or a compromise of such Contest that does not result in any other obligations or limitations on Parent, compromise or settle any of its Affiliates, if the amount of Non-Resident Capital Gains Taxes that would be due by Parent or any of its Affiliates as a result settlement of comprise of any such Contest would not exceed the remaining Special Tax Claim Escrow Funds. Once the Special Tax Escrow Funds have been substantially depleted or otherwise released (other than in the case of a Contingent Release but only to the extent Holders are still liable for the related Losses in accordance with the provisions of Section 8.2.4(d)(z)), Parent shall have the sole right to control Contest that relates to Non-Resident Capital Gains Taxes to which Parent or any of its sole discretionAffiliates is a party to.
(e) Notwithstanding anything to the contrary in this Agreement, (i) this Section 5.8.6 shall control with respect to any Contest, and (ii) Parent shall have no obligation to disclose to Holders’ Representative any Tax information or allow Holders’ Representative to participate in any discussion relating to Tax, in each case to the extent attributable to an affiliated, consolidated, unitary, combined or similar group for Tax purposes of which the Company is a member following the Closing.
Appears in 1 contract
Contests. (a) If an adjustment shall be proposed by the IRS in writing that, if sustained, would result in a Loss for which Old Dominion could be required to indemnify the Owner Participant under this Agreement, the Owner Participant agrees promptly to notify Old Dominion in writing of such proposed adjustment; PROVIDED, HOWEVER, that any claim failure to provide such notice shall not relieve Old Dominion of any obligation to indemnify the Owner Participant hereunder unless such failure precludes or materially adversely effects the initiation or continuation of the contest of such adjustment. If (i) within 90 days after receipt of such notice Old Dominion shall request in writing that the Owner Participant contest such proposed adjustment and (ii) the Owner Participant shall have received, at the commencement of the contest and before each level of judicial proceeding, an opinion of Independent Tax Counsel, to the effect that there is a Reasonable Basis for Tax contesting the proposed adjustment (and, in the case of an appeal from an adverse judicial determination, an opinion from such counsel to the effect that there is a substantial possibility (which is a higher standard than Reasonable Basis, although it is not necessarily more likely than not) that such adverse determination will be reversed or substantially modified upon appeal in a manner favorable to the taxpayer) (which opinions (a) will be furnished at Old Dominion's expense, and (b) the Owner Participant will assist in good faith and with diligence in promptly procuring), the Owner Participant shall contest such proposed adjustment; PROVIDED, HOWEVER, that the Owner Participant may, in its sole discretion, either pay the tax proposed and ▇▇▇ for a refund or contest the proposed adjustment in any permissible forum considering, however, in good faith such requests as Old Dominion may make concerning the most appropriate forum in which to proceed. Notwithstanding the foregoing, the Owner Participant shall not be required to pursue any such contest unless (v) Old Dominion shall have agreed in writing to pay and shall pay on demand all reasonable costs and expenses that the Owner Participant shall incur in connection with contesting such proposed adjustment, including, without limitation, reasonable attorneys', accountants' and investigatory fees and disbursements; (w) the proposed adjustment that could result in a payment by Old Dominion (if a lump-sum amount were to be paid pursuant to Section 4(b)(2) hereof) in connection with such proposed adjustment, taking into account the amount of all similar and logically related adjustments with respect to OrbNavthe transactions contemplated by the Operative Documents that could be raised in an audit of any other taxable year of the Owner Participant (including any future taxable year) not barred by the statute of limitations shall be at least $100,000 and at least $250,000 with respect to any judicial appeal; (x) no Payment Default or Event of Default shall have occurred and be continuing; and (y) if the Owner Participant shall determine to pay the tax proposed and ▇▇▇ for a refund, Old Dominion shall advance to the Owner Participant on an interest-free basis and with no additional net after-tax cost to the Owner Participant sufficient funds to pay the tax and interest, penalties and additions to tax payable with respect thereto (to the extent such amount is indemnified against pursuant to Section 4 hereof (an "Advance")); and PROVIDED, HOWEVER, that the Owner Participant shall not be required to pursue any appeal to the United States Supreme Court.
(b) The Owner Participant also shall not be required to contest any proposed adjustment if the subject matter thereof shall be of a continuing nature and there shall have been a Final Determination with respect thereto, unless there shall have been a change in facts or law (including, without limitation, amendments to statutes or Treasury Regulations, administrative rulings and court decisions), and the Owner Participant shall have received an opinion of Independent Tax Counsel (which opinion (i) will be furnished at Old Dominion's Membership Interest expense, and (ii) the Owner Participant will assist in good faith and with diligence in promptly procuring) to the effect that as the result of such change in facts or law there is asserted in a Contest substantial possibility (as defined belowwhich is a higher standard than Reasonable Basis, although it is not necessarily more likely than not) against any Tax Indemnitee that would result the Owner Participant will prevail in the indemnification contest of such proposed adjustment.
(c) In connection with any proposed adjustment described in Section 6(a) hereof, the Owner Participant shall not make payment of such proposed adjustment for at least 30 days after the giving of written notice of such proposed adjustment to Old Dominion (except that if the Owner Participant shall be required by law or regulation to take action with respect to any such Tax Indemnitee by Orbital or OrbNav adjustment prior to the end of such 30-day period, the Owner Participant shall, in such notice to Old Dominion, so inform Old Dominion, and the Owner Participant shall not take any action with respect to such adjustment without the consent of Old Dominion (not unreasonably to be withheld) before the date on which the Owner Participant shall be required to take action). Notwithstanding anything herein to the contrary, the Owner Participant shall have full control over any contest pursuant to this Section 8 then 6 and shall determine in its sole discretion the following provisions nature of all actions to be taken in connection with any contest including the right to pursue or forego any administrative proceedings; PROVIDED, HOWEVER, that the Owner Participant shall contest such claim at the administrative level if such action shall be necessary to preserve available judicial remedies; and PROVIDED, FURTHER, the Owner Participant shall consult in good faith with Old Dominion and its counsel in the contest of any claim and shall keep such counsel reasonably informed regarding such contest. Nothing contained in this Section 6 shall require the Owner Participant to contest a proposed adjustment that it would otherwise be required to contest pursuant to this Section 6 if the Owner Participant (i) waives the payment by Old Dominion of any amount that might otherwise be payable by Old Dominion under this Agreement by way of indemnity in respect of such proposed adjustment and (ii) pays to Old Dominion any amount of taxes, interest, penalties and additions to tax previously paid or advanced by Old Dominion pursuant to this Agreement with respect to such proposed adjustment, plus interest on such amounts at the IRS rate for refunds, payable from the date of payment by Old Dominion to the Owner Participant of such amounts to (but excluding) the date of repayment of such amounts by the Owner Participant to Old Dominion; PROVIDED, HOWEVER, that if the Owner Participant settles a proposed adjustment such that Old Dominion is precluded as a matter of law from initiating or continuing a contest hereunder of any adjustment for any other taxable period, the Owner Participant shall be deemed to have waived the payment by Old Dominion under this Agreement of any indemnity amounts in respect of such other adjustment.
(d) If Old Dominion shall have requested the Owner Participant to contest a proposed adjustment as above provided and shall have duly complied with all the terms of this Section 8.4(a6, Old Dominion's liability for indemnification due under Section 4 hereof shall, at Old Dominion's election (except for amounts provided for under Section 6(a) will apply to hereof), be deferred until Final Determination of the handling liability of the Owner Participant. At such time, Old Dominion shall become obligated for the payment of any indemnification due under Section 4 hereof resulting from the outcome of such claimcontest. For purposes Upon payment in full by Old Dominion of any indemnity amounts due under this Agreement, "Contest" means the Owner Participant shall become obligated to refund to Old Dominion an amount equal to any audit, court proceeding amount received as a refund of income taxes by the Owner Participant or credited to the Owner Participant (including any refund or credit that would have been received but for a counterclaim or other dispute claim not indemnified by Old Dominion hereunder) that is fairly attributable to advances or indemnity payments made by Old Dominion under this Agreement, together with respect any interest received (or that would have been received) by the Owner Participant on such refund, plus an amount equal to any Tax matter that affects OrbNav's Membership Interest in tax benefit realized by the Company or any other Tax Indemnitee. Unless Owner Participant as the Purchaser has previously received written notice from Orbital and OrbNav result of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav payment contemplated by this sentence. Such obligations of the existence of Owner Participant and Old Dominion will first be set off against each other, and any Contest relating to a Tax matter that is or may difference owing by either party shall be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable paid within 30 days after the receipt by the Purchaser of any written notice of such Contest, Final Determination but in no event later than 15 days not prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due date determined in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply accordance with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionSection 4(b) hereof.
Appears in 1 contract
Sources: Tax Indemnity Agreement (Old Dominion Electric Cooperative)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted After the Closing, Parent shall promptly notify the Stockholders in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of Parent or of the Company which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article VIII; provided, however, that a failure to give such Contestnotice will not affect Parent's right to indemnification under this Article VIII except to the extent, if any, that, but for such failure, the Stockholders could have avoided all or a portion of the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing and provided that the Stockholders acknowledge in writing their liability under this Agreement to hold Parent and the Company harmless against the full amount of any adjustment which may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital of such audit or proceeding that relates to periods ending on or before the Closing (or, in the case of any taxable year that includes the Closing, against an adjustment allocable under Section 8.01 to the portion of such year ending on or before the Closing Date) and OrbNav shallis subject to indemnification under Section 7.01, at their election, the Stockholders shall have the right at their expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that proceeding but only to the extent that such Contest could adversely affect audit or proceeding relates solely to a potential adjustment for which the Purchaser's Tax Liability (Stockholders have acknowledged their liability; Parent also may participate in any such audit or proceeding and, if the Stockholders do not assume the defense of any such audit or proceeding, Parent may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after taking into account any giving five days' prior written notice to the Stockholders setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Stockholders have acknowledged their liability are required Tax Indemnity Payment)to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which Parent would be liable, the Purchaser will Parent shall have the right to control the conduct of the Contest right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both the Stockholders (as evidenced by its acknowledgment under this Section 8.04) and Parent or the Company could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which case no settlement separate issues are otherwise controlled under this Article VIII by Parent and the Stockholders.
(d) Neither Parent nor any Stockholder shall enter into any compromise or compromise agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affectthe other party for such year or a subsequent year without the written consent of issues will be made without Orbital's and OrbNav's written consentthe other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating Parent and the Stockholders agree to any Tax period of cooperate, and Parent agrees to cause the Company included to cooperate, in a Pre-Closing Tax Period which Orbital and OrbNav elect the defense against or compromise of any claim in writing not to control, and the Purchaser shall be entitled to defend, compromise any audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing Date, the Purchaser Buyer shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Sellers in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company or any of its Subsidiaries which, if determined adversely to the Company or relevant Subsidiary, would be grounds for indemnification under this Article 7; provided, -------- however, that a failure to give such Contestnotice will not affect a Buyer Indemnified ------- Person's right to indemnification hereunder except to the extent, if any, that, but for such failure, the Sellers could have avoided the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due question.
(b) Except as provided in less than 15 daysSection 7.3(c) below, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may beof an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, the Sellers shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the their own expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding; provided that within 30 days after the Sellers have -------- received the written notice from the Buyer that is required under Section 7.3(a) above, including settlement and prior to taking any action with respect to such audit or other disposition thereofadministrative or judicial proceeding, provided, however, that Orbital and OrbNav will keep the Purchaser informed Sellers acknowledge in writing their joint liability under Section 7.3(b)(i) of this Agreement to hold any Buyer Indemnified Person harmless against the progress and disposition full amount of the Contest and no settlement or compromise of issues will any adjustment which may be made without as a result of such audit or proceeding that relates to the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that Pre-Closing Period (to the extent such Contest could adversely affect amount exceeds the Purchaser's Closing Balance Sheet Tax Liability (Reserve after taking into account giving effect to all prior and concurrent payments made pursuant to Section 7.3(b)(i) of this Agreement to any required Tax Indemnity PaymentBuyer Indemnified Person); provided, ` -------- further, that the Purchaser will have the right Sellers may not agree to control the conduct of the Contest at its expense, and in which case no a settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period ------- such audit or proceeding that may reasonably be expected to have an adverse effect on the tax liability of the Company included in for a Pre-taxable period after the Closing Tax Period which Orbital and OrbNav elect in writing Date without the prior written consent of the Buyer; provided, -------- further, that if the Buyer does not consent to controlsuch settlement or compromise, and ------- the Purchaser Sellers' liability to indemnify the Buyer as a result of such audit or proceeding shall be entitled limited to defendthe amount that the Sellers would have paid had the Buyer consented to such settlement or compromise. The Buyer also may participate in any such audit or proceeding at its own expense and, compromise if the Sellers do not assume the defense of any such audit or settle proceeding, the Buyer may defend the same at its own expense in such Tax Claim in its sole discretionmanner as it may deem appropriate, including, but not limited to, settling such audit or proceeding, without any effect to any Buyer Indemnified Person's right to indemnification under this Article 7.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Sellers in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or of the Company which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article VII; provided, however, that a failure to give such Contestnotice will not affect the Purchaser's right to indemnification under this Article VII except to the extent, if any, that, but for such failure, the Sellers could have avoided all or a portion of the Tax liability in no event later than 15 days prior question.
(b) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the time Closing Date and provided that a written response the Sellers acknowledge in writing their liability under this Agreement to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case hold the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with Company harmless against the foregoing sentence, Orbital or OrbNav, as the case full amount of any adjustment which may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital of such audit or proceeding that relates to periods ending on or before the Closing Date (or, in the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 7.01(b) to the portion of such year ending on or before the Closing Date) and OrbNav shallis subject to indemnification under Section 7.01(a), at their election, the Sellers shall have the right at their expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that proceeding but only to the extent that such Contest could adversely affect audit or proceeding relates solely to a potential adjustment for which the Purchaser's Tax Liability (after taking into account Sellers have acknowledged their liability; the Purchaser also may participate in any required Tax Indemnity Payment)such audit or proceeding and, if the Sellers do not assume the defense of any such audit or proceeding, the Purchaser will may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Sellers setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Sellers have acknowledged their liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right to control the conduct of the Contest right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both the Sellers (as evidenced by its acknowledgment under this Section 7.04) and the Purchaser or the Company could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which case no settlement separate issues are otherwise controlled under this Article VII by the Purchaser and the Sellers.
(d) Neither the Purchaser nor any Seller shall enter into any compromise or compromise agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of issues will be made without Orbital's and OrbNav's written consentthe other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating and the Sellers agree to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlcooperate, and the Purchaser shall be entitled agrees to defendcause the Company to cooperate, in the defense against or compromise of any claim in any audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Contests. (a) If After the Closing Date, Buyer shall notify Seller promptly (and in any event within 15 business days) of the commencement of any Tax audit or administrative or judicial proceeding, or of any demand or claim for Tax on Buyer or the Company, with respect to OrbNav's Membership Interest is asserted in the Company or its subsidiaries for any period beginning before Closing or the receipt of any notice of proposed adjustment by Buyer or the Company (a Contest (as defined below) against any "Tax Indemnitee that would result Indemnification Event"), which could give rise to a claim for indemnification under Section 6.1 or, in the indemnification case of the breach of a representation in Section 3.11, Article VII. Such notice shall contain factual information (to the extent known to Buyer or the Company) with respect to the Tax Indemnification Event in reasonable detail and shall include copies of any such Tax Indemnitee by Orbital notice or OrbNav pursuant other document received from any Taxing authority in respect thereof. If Buyer fails to this Section 8 then give Seller notice within a reasonable period of time or in sufficient detail to apprise Seller of the following provisions nature of this Section 8.4(a) will apply to the handling claim (in each instance taking into account the facts and circumstances of such claim. For purposes ), Seller shall not be liable under this Agreement for such claim to the extent, if any, that the rights of this AgreementSeller with respect to such claim are actually prejudiced.
(b) Subject to Section 6.3(d), "Contest" means Seller may elect to direct, through counsel of its own choosing and at its own expense, any audit, court claim for refund or administrative or judicial proceeding or other dispute involving any Pre-Closing Tax Periods with respect to any Tax matter that affects OrbNav's Membership Interest which (and to the extent that) indemnity may be sought from Seller, under Section 6.1 or, in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav case of the existence breach of a representation in Section 3.11, Article VII (any such audit, claim for refund or proceeding is referred to herein as a "Contest"). If Seller elects to direct a Contest it shall within 15 business days of receipt of the notice of the Tax Indemnification Event relating to such Contest notify Buyer of its intent to do so and, if requested by Buyer, Seller shall furnish to Buyer in due course, as a condition to further pursuing such Contest, an opinion of Seller's independent Tax counsel to the Purchaser effect that Seller has a reasonable basis to pursue such Contest. If Buyer is requested (or, if an election by Seller is not timely made, shall give written notice determine) to Orbital pay the Tax claimed and OrbNav of sue ▇▇▇ a refund, Seller shall make a tentative indemnity payment to the existence party making such payment. In the case of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to Buyer or the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNavCompany, as the case may be, shall not make payment of the Tax in question for at least 30 days (or such shorter time period as may be liable required by applicable law) after the giving of notice to Seller of its intention to do so (and if Seller has elected to direct the Contest shall not make payment unless requested by Seller), shall give to Seller any information reasonably requested by Seller relating to such Contest and otherwise shall
(c) If, after actual receipt by Buyer or the Company of an amount paid by Seller as a tentative adjustment pursuant to paragraph (b), the extent of the liability of Buyer or the Company with respect to the Purchaser indemnified matter for which Seller is liable under this Agreement shall be established by final determination to be a lesser amount, Buyer or the Company, as the case may be, shall promptly pay to Seller the amount of such difference, including all or the portion of any refund received by or credited to Buyer or the Company with respect to the extent that Orbital's indemnified matter (together with any interest paid or OrbNav's position is actually prejudiced credited thereon by the Taxing authority) plus (i) the amount of the Tax savings, if any, realized by Buyer or the Company as a result thereof. Orbital of such payment, and OrbNav shall, (ii) interest at their election, have the right to represent the interests rate which shall be applicable under section 6621(a)(1) of the Code in respect of federal income taxes and at the rate provided by applicable law in respect of other Taxes from time to time from the date of actual collection by Buyer or the Company in of such refund (and any such interest thereon) to the date of payment to Seller thereunder.
(d) Nothing contained herein shall require Buyer or the Company (i) to contest a Contest relating to a Tax matter for which Orbital or OrbNav may it would otherwise be required to make a Tax Indemnity Payment, contest pursuant to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and 14 16 this Agreement or (ii) to permit Seller control the conduct of any such Contest, including settlement if Buyer shall waive the payment by Seller of any amount that might otherwise be payable by Seller hereunder (or other disposition thereofunder Article VII) by way of indemnity with respect to such Contest. Upon any such waiver, providedBuyer or its Affiliates, howeveras the case may be, that Orbital and OrbNav will keep shall repay to Seller any payments made with respect to such Contest pursuant to Section 6.3(b) together with interest at the Purchaser informed rate which shall be applicable under Section 6621(a)(1) of the progress and disposition of Code from time to time from the Contest and no settlement or compromise of issues will be made without date the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that payment was paid by Seller to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct date of the Contest at repayment by Buyer or its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionAffiliate.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect Parent agrees to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give prompt written notice to Orbital and OrbNav Stockholder Representative of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice by the Company, Parent or any of such ContestParent’s Affiliates which involves the assertion of any claim, but or the commencement of any Action, in no event later than 15 days prior respect of which an indemnity may be sought by Parent pursuant to this ARTICLE VI or which could otherwise result in material Losses to the time parties represented by the Stockholder Representative (a “Tax Claim”); provided that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails any failure to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, this provision shall not be liable reduce Parent’s right to the Purchaser indemnification hereunder only to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereofit adversely affects the ability of the of the Stockholder Representative to contest any Tax Claim relating to such notice. Orbital Stockholder Representative (on behalf of the Stockholders, Optionholders and OrbNav shallWarrantholders) shall be entitled, at their its election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct contest or resolution of any Tax Claim relating entirely to Taxes attributable to Pre-Closing Tax Periods; provided, that Stockholder Representative shall keep Parent informed in all material respect of the statue of such Contest, including settlement or other disposition thereof, Tax Claim; and provided, howeverfurther, that Orbital and OrbNav will keep Stockholder Representative shall obtain the Purchaser informed prior written consent of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, Parent (which consent shall not be unreasonably withheld or delayed) before entering into any settlement of a claim or ceasing to defend such claim and; provided further, that the Parent shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Parent. Parent shall control the contest or resolution of any Tax Claim that Stockholder Representative does not control under this Section 6.06; provided, that Parent shall keep Stockholder Representative informed in all material respect to the status of such Tax Claim; and provided, further, that to Parent shall obtain the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct prior written consent of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, Stockholder Representative (which consent shall not be unreasonably withheld. The Purchaser shall handle withheld or delayed) before entering into any Tax Claim relating settlement of a claim or ceasing to any Tax period of defend such claim and; provided further, that the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser Stockholder Representative shall be entitled to defendparticipate in the defense of such claim and to employ counsel of its choice for such purpose, compromise or settle such Tax Claim in its sole discretionthe fees and expenses of which separate counsel shall be borne solely by Stockholder Representative (on behalf of the Stockholders, Optionholders and Warrantholders).
Appears in 1 contract
Contests. (a) If any claim for Tax Except as otherwise provided in Section 12.1 of the Master Lease with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) Property Taxes, if any claim shall be made against any Tax Indemnitee that would result in the indemnification of or if any such proceeding shall be commenced against any Tax Indemnitee by Orbital or OrbNav (including a written notice of such proceeding) for any Imposition as to which the Lessees may have an indemnity obligation pursuant to this Section 8 13.5, or if any Tax Indemnitee shall receive notice that any Imposition to which the Lessees may have an indemnity obligation pursuant to this Section 13.5 may be payable, such Tax Indemnitee shall promptly (and, in any event, within 30 days) notify the Company, as agent for the Lessees, in writing (provided that failure to so promptly notify the Company within 30 days shall not alter such Tax Indemnitee's rights under this Section 13.5 except to the extent such failure precludes or materially adversely affects the ability to conduct a contest of any indemnified Taxes) and shall not take any action with respect to such claim, proceeding or Imposition without the written consent of the Company, as agent for the Lessees, (such consent not to be unreasonably withheld or unreasonably delayed) for 30 days after the receipt of such notice by the Company or thereafter if the applicable Lessee has commenced to take appropriate action; provided, however, that in the case of any such claim or proceeding, if such Tax Indemnitee shall be required by law or regulation to take action prior to the end of such 30-day period, such Tax Indemnitee shall in such notice to the applicable Lessee, so inform the Company, as agent for the Lessees, and such Tax Indemnitee shall not take any action with respect to such claim, proceeding or Imposition without the consent of the Company, as agent for the Lessees, (such consent not to be unreasonably withheld or unreasonably delayed) for 10 days after the receipt of such notice by the Company or thereafter if the applicable Lessee has commenced to take appropriate action, unless such Tax Indemnitee shall be required by law or regulation to take action prior to the end of such 10-day period. The Company shall be entitled for a period of 30 days from receipt of such notice from such Tax Indemnitee (or such shorter period as such Tax Indemnitee has notified the Lessees is required by law or regulation for such Tax Indemnitee to commence such contest), to request in writing that such Tax Indemnitee contest the imposition of such Tax, at the expense of the applicable Lessee. If (x) such contest can be pursued in the name of the applicable Lessee and independently from any other proceeding involving a Tax liability of such Tax Indemnitee for which the applicable Lessee has not agreed to indemnify such Tax Indemnitee, (y) such contest must be pursued in the name of such Tax Indemnitee, but can be pursued independently from any other proceeding involving a Tax liability of such Tax Indemnitee for which the applicable Lessee has not agreed to indemnify such Tax Indemnitee or (z) such Tax Indemnitee so requests, then the following provisions of this Section 8.4(a) will apply applicable Lessee shall be permitted to control the handling contest of such claim, provided that in the case of a contest described in clause (y), if such Tax Indemnitee determines reasonably and in good faith that such contest by the applicable Lessee could have a material adverse impact on the business or operations of such Tax Indemnitee and provides a written explanation to such Lessee of such determination, such Tax Indemnitee may elect to control or reassert control of the contest, and provided, that by taking control of the contest, the applicable Lessee acknowledges that it is responsible for the Imposition ultimately determined to be due by reason of such claim, and provided, further, that in determining the application of clauses (x) and (y) above, each Tax Indemnitee shall take any and all reasonable steps to segregate claims for any Taxes for which the applicable Lessee indemnifies hereunder from Taxes for which the applicable Lessee is not obligated to indemnify hereunder, so that the applicable Lessee can control the contest of the former. For purposes In all other claims requested to be contested by the Company, as agent for the Lessees, such Tax Indemnitee shall control the contest of this Agreementsuch claim, "Contest" means acting through counsel reasonably acceptable to the Company, as agent for the Lessees. In no event shall the applicable Lessee be permitted to contest (or such Tax Indemnitee required to contest) any auditclaim, court (A) if such Tax Indemnitee provides the applicable Lessee with a legal opinion of counsel reasonably acceptable to the applicable Lessee that such action, suit or proceeding involves a material risk of imposition of criminal liability or will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on any Property or any part of any thereof unless the applicable Lessee shall have posted and maintained a bond or other dispute security satisfactory to the relevant Tax Indemnitee in respect to such risk, (B) if an Event of Default has occurred and is continuing unless the applicable Lessee shall have posted and maintained a bond or other security satisfactory to the relevant Tax Indemnitee in respect of the Taxes subject to such claim and any and all expenses for which the applicable Lessee is responsible hereunder reasonably foreseeable in connection with the contest of such claim, (C) unless the applicable Lessee shall have agreed to pay and shall pay, to such Tax Indemnitee on demand all reasonable out-of-pocket costs, losses and expenses that such Tax Indemnitee may incur in connection with contesting such Imposition including all reasonable legal, accounting and investigatory fees and disbursements, or (D) if such contest shall involve the payment of the Tax prior to the contest, unless the applicable Lessee shall provide to such Tax Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnitee is required to pay (with no additional net after-tax costs to such Tax Indemnitee). In addition for Tax Indemnitee controlled contests and claims contested in the name of such Tax Indemnitee in a public forum, no contest shall be required: (A) unless the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Tax Indemnitee with respect to any Tax matter that affects OrbNav's Membership Interest in period for which the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or applicable Lessee may be Orbital's or OrbNav's responsibility liable to pay an indemnity under this Section 8 as soon as practicable after 13.5(b)) exceeds $25,000 and (B) unless, if requested by such Tax Indemnitee, the receipt applicable Lessee shall have provided to such Tax Indemnitee an opinion of counsel selected by the Purchaser Company (which may be in-house counsel) (except, in the case of any written notice income taxes indemnified hereunder which shall be an opinion of independent tax counsel selected by such Contest, but in Tax Indemnitee and reasonably acceptable to the applicable Lessee) that a reasonable basis exists to contest such claim. In no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may Indemnitee be required to make a Tax Indemnity Payment, appeal an adverse judicial determination to employ the United States Supreme Court. The party conducting the contest shall consult in good faith with the other party and its counsel of Orbital's and OrbNav's choice at with respect to the expense of Orbital and OrbNav and to control the conduct contest of such Contest, including settlement claim for Taxes (or other disposition thereofclaim for refund) but the decisions regarding what actions to be taken shall be made by the controlling party in its sole judgement, provided, however, that Orbital if such Tax Indemnitee is the controlling party and OrbNav the applicable Lessee recommends the acceptance of a settlement offer made by the relevant Governmental Authority and such Tax Indemnitee rejects such settlement offer then the amount for which the applicable Lessee will be required to indemnify such Tax Indemnitee with respect to the Taxes subject to such offer shall not exceed the amount which it would have owed if such settlement offer had been accepted. In addition, the controlling party shall keep the Purchaser noncontrolling party reasonably informed as to the progress of the progress contest, and disposition shall provide the noncontrolling party with a copy of (or appropriate excerpts from) any reports or claims issued by the relevant auditing agents or taxing authority to the controlling party thereof, in connection with such claim or the contest thereof. Each Tax Indemnitee shall at the applicable Lessee's expense supply the applicable Lessee with such information and documents reasonably requested by the Company as are necessary or advisable for the applicable Lessee to participate in any action, suit or proceeding to the extent permitted by this Section 13.5(b). Notwithstanding anything in this Section 13.5(b) to the contrary, no Tax Indemnitee shall enter into any settlement or other compromise or fail to appeal an adverse ruling (which appeal has been requested in writing by the applicable Lessee) with respect to any claim which may be entitled to be indemnified under this Section 13.5 without the prior written consent of the Contest and no applicable Lessee, such entering into of a settlement or compromise of issues will be made compromise, or such failure to appeal, without the Purchaser's written such consent, which consent shall constitute a waiver of all rights to indemnification under this Section 13.5 with respect to such claim. Notwithstanding anything contained herein to the contrary, a Tax Indemnitee will not be required to contest (and the applicable Lessee shall not be unreasonably withheld and provided, further, that permitted to contest) a claim with respect to the extent imposition of any Tax if such Contest could adversely affect Tax Indemnitee shall waive in writing, in a form acceptable to the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)Lessees, the Purchaser will have the its right to control indemnification under this Section 13.5 with respect to such claim (and any claim with respect to such year or any other taxable year the conduct contest of the Contest at its expense, and in which case no settlement or compromise is materially adversely affected as a result of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionwaiver).
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted After the Closing, ISC shall notify ISI in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification writing within 10 days of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of any of ISC and the Subsidiaries which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article VII; provided, however, that a failure to give such Contestnotice will not affect ISC's right to indemnification under this Article VII except to the extent, if any, that, but for such failure, ISI could have avoided all or a portion of the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, provided that ISI acknowledges in writing its liability under this Agreement to hold ISC and the Subsidiaries harmless against the full amount of any adjustment which may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital and OrbNav shallof such audit or proceeding that relates to periods ending at or before the Closing Date (or, at their electionin the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 7.01(b) to the portion of such year ending on or before the Closing Date), ISI shall have the right at its expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding but only to the extent that such audit or proceeding relates solely to a potential adjustment for which ISI has acknowledged its liability; ISC also may participate in any such audit or proceeding and, including settlement if ISI does not assume the defense of any such audit or proceeding, ISC may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to ISI setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which ISI has acknowledged its liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which ISC would be liable, ISC shall have the right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both ISI (as evidenced by its acknowledgment under this Section 7.04) and ISC or any Subsidiary could be liable, (i) each party may participate in the audit or proceeding and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VII by ISI and ISC.
(d) Neither ISI nor ISC shall enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other disposition thereofparty for such year or a subsequent year without the written consent of the other party, which consent may not be unreasonably withheld; provided, however, that Orbital nothing herein will require ISI to seek ISC's agreement concerning the resolution of disputes about the value of ISC's property for property tax purposes for periods prior to the Effective Date. ISI and OrbNav will keep ISC agree to cooperate in the Purchaser informed of the progress and disposition of the Contest and no settlement defense against or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and claim in which case no settlement any audit or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Sources: Merger Agreement (Inland Steel Co)
Contests. Buyer agrees to give written notice to Sellers upon receipt of any written notice relating to the assertion of any claim, or the commencement of any Proceeding by a Governmental Authority in respect of Taxes for which the Sellers may be liable pursuant to §9(a) (a) If each, a “Tax Claim”); provided, that any claim for failure or delay in giving such notice shall not affect Buyer’s right to indemnification hereunder, unless the failure or delay in giving such notice results in a bar or forfeiture of the right or privilege to contest, protest or appeal the Tax with Claim. In such event, Buyer will have no right to indemnification of the Tax Claim. With respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result Claim relating to a Pre-Closing Tax Period, the Sellers may assume and control all proceedings taken in connection with such Tax Claim; provided, however, the Sellers shall consult with Buyer in the indemnification negotiation and settlement of any such Tax Indemnitee by Orbital Claim and Sellers shall not, without the written consent of Buyer, settle or OrbNav pursuant compromise any Tax Claim in a manner that would reasonably be expected to this Section 8 then have a Material Adverse Effect on any Tax period of Company ending after the following provisions of this Section 8.4(a) will apply to the handling of such claimClosing Date. For purposes of this Agreement, "Contest" means any audit, court proceeding or All other dispute Tax Claims with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt controlled by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, Buyer; provided, however, that Orbital Buyer shall consult with the Sellers in the negotiation and OrbNav will keep settlement of any post-Closing Tax period (including any Straddle Period) Tax Claim and Buyer shall not, without the Purchaser informed written consent of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consentSellers, which consent shall not be unreasonably withheld. The Purchaser shall handle , settle or compromise any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretiona manner that could have any material impact on the Sellers’ indemnification obligations hereunder.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "a “Contest" means ” is any audit, court proceeding or other dispute with respect to any Tax tax matter that affects OrbNav's Membership Interest in the Company or any other Tax IndemniteeHotel Owner. Unless the Purchaser has previously received written notice from Orbital and OrbNav Seller of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav Seller of the existence of any Contest relating to a Tax matter that is arising in a period ending on or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after before the Closing Date within ten (10) days from the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior failure to give such notice shall relieve the time Seller of any liability hereunder, except that a written response to the any additional Taxes owing on account of such failure shall be payable by Purchaser. Unless Seller has previously received written notice is requiredfrom Purchaser of the existence of such Contest, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser Seller shall give written notice to Orbital Purchaser of the existence of any Contest for which Purchaser has responsibility within ten (10) days from the receipt by Seller of any written notice of such Contest. Purchaser, on the one hand, and OrbNav as soon as practicable. If Seller, on the Purchaser fails other, agree, in each case at no cost to comply the other party, to cooperate with the foregoing sentenceother and the other’s representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, Orbital or OrbNav, as the case may be, shall but not be liable limited to, making available to the Purchaser other party, during normal business hours, all books, records, Tax Returns, documents, files, other information (including working papers and schedules), officers or employees (without substantial interruption of employment) or other relevant information necessary or useful in connection with any Contest requiring any such books, records and files (excluding items (x) which are protected by attorney-client privilege or (z) to the extent that Orbital's the disclosure thereof would violate confidentiality obligations of Seller, Purchaser or OrbNav's position is actually prejudiced as a result thereofany of their respective Affiliates). Orbital and OrbNav If Seller could be liable for any Tax resulting from such Contest, Seller shall, at their its election, have the right to represent the Hotel Owner’s interests of the Company in any Contest relating to a Tax matter for which Orbital arising in a period ending on or OrbNav may be required to make a Tax Indemnity Paymentbefore the Closing Date, to employ counsel of Orbital's and OrbNav's its choice at the Seller’s expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, ; provided, however, that Orbital and OrbNav will keep Purchaser shall have the Purchaser informed of right to consult with the progress and disposition of Seller regarding any such Contest that may affect the Contest and no settlement or compromise of issues will be made without Hotel Owner for any periods ending after the Closing Date at Purchaser's written consent, which consent shall not be unreasonably withheld ’s own expense; and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise other disposition of issues will any such Contest, may only be made without Orbital's and OrbNav's written consentwith the consent of Purchaser, which consent shall will not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise conditioned or settle such Tax Claim in its sole discretiondelayed.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Sunstone Hotel Investors, Inc.)
Contests. (a) After the Closing, Buyer shall promptly notify Sellers, and Sellers shall promptly notify Buyer, in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim which, if determined adversely to the taxpayer, could be grounds for indemnification under, respectively, Section 12.2(a) or 12.2(b). Such notice shall contain factual information (to the extent known) describing the asserted Tax liability. If any claim party hereto fails to give prompt notice of an asserted Tax liability as required by this Section 12.4, then (i) if the party entitled to notice is precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then such party shall not have any obligation to indemnify for any loss arising out of such asserted Tax with respect liability, and (ii) if the party entitled to OrbNav's Membership Interest notice is asserted not so precluded from contesting but such failure to give prompt notice results in a Contest (as defined below) against detriment to such party or to such party's ability to fully and properly contest such asserted Tax liability, then any Tax Indemnitee that would result in the indemnification of any amount which such Tax Indemnitee by Orbital or OrbNav party is otherwise required to pay pursuant to this Section 8 then the following provisions of this Section 8.4(a12.2(a) will apply to the handling of such claim. For purposes of this Agreementor 12.2(b), "Contest" means any auditas applicable, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in such liability shall be reduced by the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence amount of such Contestdetriment.
(b) Sellers may elect to direct, the Purchaser shall give written notice to Orbital through counsel of their own choosing and OrbNav of the existence of at their own expense, any Contest audit, claim for refund and administrative or judicial proceeding involving any asserted liability (any such audit, claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a Tax matter that is or "Contest") with respect to which indemnity may be Orbital's sought under Section 12.2(a); PROVIDED, HOWEVER, that Sellers may not settle, compromise, or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice otherwise dispose of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's prior written consentconsent of Buyer, which consent shall not be unreasonably withheld or delayed. If Sellers elect to direct a Contest, they shall within 30 calendar days of receipt of the notice of asserted Tax liability provided for in Section 12.4
(a) notify Buyer of their intent to do so, and Buyer shall cooperate and shall cause each Acquired Company or its successor to cooperate, at the expense of Sellers, in each phase of such Contest. If Sellers elect not to direct the Contest or fail to notify Buyer of their election as herein provided, furtherBuyer or the Acquired Companies, may, in good faith, pay, compromise or contest such asserted liability, subject to Sellers' consent, which shall not be withheld or delayed unreasonably; provided, however, that to any reasonable expense incurred by Buyer in connection with such assumption of the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct direction of the Contest shall be included as Damages subject to Section 12.2(a) hereof. If Sellers direct such Contest as hereinabove provided, Buyer and each Acquired Company (and any successor thereto) shall empower (by power of attorney or such other documentation as may be appropriate) such representatives of Sellers as the latter may designate to handle such Contest.
(c) Buyer may at its election and solely at its expense, participate in, but not control, any Contest with respect to which indemnity may be sought under Section 12.2(b). Sellers shall be required to consult with Buyer only on those aspects of any such Contest with respect to which Buyer would be liable for indemnification under Section 12.2(b). Sellers shall regularly inform Buyer of the status of any such Contest and in which case no settlement shall provide Buyer with any documents, correspondence, or compromise other material or information as Buyer may reasonably request relating thereto. Sellers shall obtain the consent of issues will be made without Orbital's and OrbNav's written consentBuyer, which consent shall not be unreasonably withheldwithheld or delayed, prior to taking any significant actions on any matter in such Contest with respect to which Buyer could be liable for indemnification. The Purchaser shall handle any Tax Claim relating Such significant actions include but are not limited to any Tax period the filing of a motion or appeal, as well as a settlement, compromise, or other disposition of the Company included matter. Sellers shall at all times act in a Pre-Closing Tax Period which Orbital and OrbNav elect good faith in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionsatisfying their obligations under this Section 12.4(c).
Appears in 1 contract
Contests. (ai) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this AgreementClosing Date, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser promptly notify Seller Representative in writing of any written notice of such Contesta proposed adjustment or Claim in an audit or administrative or judicial proceeding involving Purchaser or any of the Company Parties which, but in no event later than 15 days prior if determined adversely to the time taxpayer, would be grounds for indemnification under this Section 10.3; provided, however, that a written response failure or delay to give such notice will not affect Purchaser’s right to indemnification thereunder except to the written notice is requiredextent, unless such written notice is received and a written response is due in less than 15 daysif any, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as that Sellers are materially prejudiced thereby.
(ii) In the case may beof an audit or administrative or judicial proceeding that relates solely to taxable periods ending on or before the Closing Date, shall not be liable provided, that, Seller Representative acknowledges in writing its obligation to indemnify Purchaser and the Purchaser Company Parties (to the extent not covered by the R&W Insurance Policy or Indemnity Escrow Account) amount of any adjustment that Orbital's or OrbNav's position is actually prejudiced may be made as a result thereof. Orbital and OrbNav shallof such audit or proceeding and, at their electionprovided further, that such audit or proceeding does not seek criminal penalties against any of the Company Parties or material equitable or other non-monetary remedies against any of the Company Parties, Seller Representative shall have the right at Seller Representative’s expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding. Subject to the provisions and limitations set forth in the preceding sentence, including settlement Purchaser shall use its commercially reasonable efforts to allow Seller Representative, at Seller Representative’s expense, to control any portion of any other audit or other disposition thereof, provided, however, proceeding that Orbital and OrbNav will relates to taxable periods ending on or before the Closing Date. The Seller Representative shall keep the Purchaser informed of the progress of any such audit or proceeding (including the prompt provision to Purchaser of all material correspondence, pleadings, protests, briefs and disposition of the Contest and no settlement other documents pertaining to such audit or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Paymentproceeding), the and Purchaser will have the right to control the conduct of the Contest also may participate in any such audit or proceeding at its expense, and in which case no settlement . Seller Representative shall not settle any such audit or compromise proceeding without the advance written consent of issues will be made without Orbital's and OrbNav's written consentPurchaser, which consent shall not be unreasonably withheld, conditioned or delayed. The If Seller Representative does not assume the defense of any such audit or proceeding, the provisions of Section 10.3(e)(iii) shall apply with respect thereto.
(iii) With respect to any other audit or proceeding not controlled by Seller Representative, such audit or proceeding shall be controlled by Purchaser. If, however, Sellers could be subject to any liability under this Agreement in connection with any such audit or proceeding, Purchaser shall handle keep the Seller Representative informed of the progress of any Tax Claim such audit or proceeding (including the prompt provision to Seller Representative of all material correspondence, pleadings, protests, briefs and other documents pertaining to such audit or proceeding), Seller Representative may also participate in any such audit or proceeding at its expense and Purchaser shall not settle any such audit or proceeding without the advance written consent of Seller Representative, which consent shall not be unreasonably withheld, conditioned or delayed.
(iv) For the avoidance of doubt, the provisions of this Section 10.3(e), and not those of Section 9.3, shall apply in the case of any adjustment, claim, controversy or administrative or judicial proceeding relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionTaxes.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted After the Closing, NSAP shall promptly notify the Stockholders in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding with respect to Taxes of NSAP or of any of the Acquired Entities which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article X; provided, however, that a failure to give such Contestnotice will not affect NSAP's right to indemnification under this Article X except to the extent, if any, that, but for such failure, the Stockholders could have avoided all or a portion of the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case of an audit or administrative or judicial proceeding with respect to Taxes that relates to periods ending on or before the Closing Date, provided that the Stockholders acknowledge in writing their liability under this Agreement to hold NSAP and the Acquired Entity harmless against the full amount of any adjustment which may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital and OrbNav shallof such audit or proceeding that relates to periods ending on or before the Closing Date (or, at their electionin the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 10.01(b) to the portion of such year ending on or before the Closing Date), the Stockholders shall have the right at their expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that proceeding but only to the extent that such Contest could adversely affect audit or proceeding relates solely to a potential adjustment for which the Purchaser's Tax Liability (Stockholders have acknowledged their liability; NSAP also may participate in any such audit or proceeding and, if the Stockholders do not assume the defense of any such audit or proceeding, NSAP may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after taking into account any giving five days' prior written notice to the Stockholders setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Stockholders have acknowledged their liability are required Tax Indemnity Payment)to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which NSAP would be liable, the Purchaser will NSAP shall have the right to control the conduct of the Contest right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both the Stockholders (as evidenced by its acknowledgment under this Section 10.02) and NSAP or the Acquired Entities could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which case no settlement separate issues are otherwise controlled under this Article X by NSAP and the Stockholders.
(d) Neither NSAP nor the Stockholders shall enter into any compromise or compromise agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of issues will be made without Orbital's and OrbNav's written consentthe other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating NSAP and the Stockholders agree to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlcooperate, and NSAP agrees to cause the Purchaser shall be entitled Acquired Entities to defendcooperate, in the defense against or compromise of any claim in any audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Sources: Stock Acquisition Agreement (Nu Skin Asia Pacific Inc)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) shall be made against any Tax Indemnitee that would result in or -------- if any proceeding shall be commenced against any Indemnitee (including a written notice of such proceeding) for any Imposition as to which the indemnification of any such Tax Indemnitee by Orbital or OrbNav Lessee may have an indemnity obligation pursuant to this Section 8 then 27.3, or if any Indemnitee shall determine that any Imposition to which the following provisions of Lessee may have an indemnity obligation pursuant to this Section 8.4(a27.3 may be payable, such Indemnitee shall, within thirty (30) will apply days, notify the Lessee in writing (provided that failure to so notify the Lessee within thirty (30) days shall not alter such Indemnitee's rights under this Section 27.3 except to the handling extent such failure precludes the ability to conduct a contest of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute indemnified Taxes) and shall not take any action with respect to any Tax matter that affects OrbNav's Membership Interest in such claim, proceeding or Impositions without the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav consent of the existence of Lessee (such Contest, the Purchaser shall give written notice consent not to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is be unreasonably withheld or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable unreasonably delayed) for thirty (30) days after the receipt of such notice by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, Lessee; provided, however, that Orbital in the case of any such claim or proceeding, -------- ------- if such Indemnitee shall be required by law or regulation to take action prior to the end of such 30-day period, such Indemnitee shall in such notice to the Lessee, so inform the Lessee, and OrbNav will keep such Indemnitee shall not take any action with respect to such claim, proceeding or Impositions without the Purchaser informed consent of the progress and disposition Lessee (such consent not to be unreasonably withheld or unreasonably delayed) for ten (10) days after the receipt of such notice by the Lessee unless such Indemnitee shall be required by law or regulation to take action prior to the end of such 10-day period. The Lessee shall be entitled for a period of sixty (60) days from receipt of such notice from such Indemnitee (or such shorter period as such Indemnitee has notified the Lessee is required by law or regulation for such Indemnitee to commence such contest), to request in writing that such Indemnitee contest the imposition of such Tax, at the Lessee's expense. If (x) such contest can be pursued in the name of the Contest Lessee and independently from any other proceeding involving a Tax liability of such Indemnitee for which the Lessee has not agreed to indemnify such Indemnitee or (y) such Indemnitee so requests, then the Lessee shall be permitted to control the contest of such claim, provided, that by taking control of the contest, the Lessee acknowledges that it is responsible for the Impositions ultimately determined to be due by reason of such claim. In all other claims requested to be contested by the Lessee, such Indemnitee shall control the contest of such claim, acting through counsel reasonably acceptable to the Lessee. In no settlement event shall the Lessee be permitted to contest (or compromise such Indemnitee required to contest) any claim (A) if such Indemnitee provides the Lessee with a legal opinion of issues counsel reasonably acceptable to the Lessee that such action, suit or proceeding involves a risk of imposition of criminal liability or will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Property Lien) on the Property or any part of any thereof unless the Lessee shall have posted and maintained a bond or other security satisfactory to the relevant Indemnitee in its sole discretion in respect to such risk, (B) if a Lease Event of Default has occurred and is continuing, unless the Lessee shall have posted and maintained a bond or other security satisfactory to the relevant Indemnitee in its sole discretion in respect of the Taxes subject to such claim and any and all expenses for which the Lessee is responsible hereunder is reasonably foreseeable in connection with the contest of such claim, (C) unless the Lessee shall have agreed to pay and shall pay, to such Indemnitee on demand all reasonable out-of-pocket costs, losses and expenses that such Indemnitee may incur in connection with contesting such Impositions including all reasonable legal, accounting and investigatory fees and disbursements, or (D) if such contest shall involve the payment of the Tax prior to the contest, unless the Lessee shall provide to such Indemnitee an interest-free advance in an amount equal to the Impositions that the Indemnitee is required to pay (with no additional net after-tax costs to such Indemnitee). In addition, for Indemnitee controlled contests and claims contested in the name of such Indemnitee in a public forum, no contest shall be made without required: (A) unless the Purchaser's written consentamount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Indemnitee with respect to any period for which the Lessee may be liable to pay an indemnity under this Section 27.3(b)) exceeds $100,000 and (B) unless, if requested by such Indemnitee, the Lessee shall have provided to such Indemnitee an opinion of counsel selected by the Lessee and reasonably acceptable to such Indemnitee (except, in the case of income taxes indemnified hereunder, in which consent case such opinion shall be an opinion of independent tax counsel selected by such Indemnitee and reasonably acceptable to the Lessee) that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, and opinion of such counsel to the effect that there is substantial authority for the position asserted in such appeal). In no event shall an Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnitee shall not be unreasonably withheld required to contest any claim in its name (or that of an Affiliate) if the subject matter thereof shall be of a continuing nature and providedshall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 27.3(b), furtherunless there shall have been a change in law (or interpretation thereof) and the Indemnitee shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Lessee and reasonably acceptable to the Indemnitee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnitee will prevail in such contest. The party conducting the contest shall consult in good faith with the other party and its counsel with respect to the contest of such claim for Taxes but the decisions regarding what actions to be taken shall be made by the controlling party in its sole judgement. In addition, the controlling party shall keep the noncontrolling party reasonably informed as to the progress of the contest, and shall provide the noncontrolling party with a copy of (or appropriate excerpts from) any reports or claims issued by the relevant auditing agents or taxing authority to the controlling party thereof, in connection with such claim or the contest thereof. Each Indemnitee shall, at the Lessee's expense, supply the Lessee with such information and documents reasonably requested by the Lessee as are necessary or advisable for the Lessee to participate in any action, suit or proceeding to the extent permitted by this Section 27.3(b). Notwithstanding anything in this Section 27.3(b) to the contrary, no Indemnitee shall enter into any settlement or other compromise or fail to appeal an adverse ruling with respect to any claim which is entitled to be indemnified under this Section 27.3 (and with respect to which contest is required under this Section 27.3(b)) without the prior written consent of the Lessee, unless such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the Indemnitee waives its right to control the conduct be indemnified under this Section 27.3 with respect to such claim. No settlement of the Contest at its expense, and in which case no settlement or compromise of issues will any contest may be made by the Lessee without Orbital's and OrbNavthe Indemnitee's written consent, which consent shall not be unreasonably withheld. The Purchaser Notwithstanding anything contained herein to the contrary, a Indemnitee will not be required to contest (and the Lessee shall handle not be permitted to contest) a claim with respect to the imposition of any Tax Claim relating if such Indemnitee shall waive its right to indemnification under this Section 27.3 with respect to such claim (and any Tax period claim with respect to such year or any other taxable year the contest of the Company included in which is materially adversely affected as a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle result of such Tax Claim in its sole discretionwaiver).
Appears in 1 contract
Sources: Lease Agreement (Palm Inc)
Contests. (a) If After the Closing, the party first receiving notice shall promptly notify the other party in writing of any demand or claim for on the first party from any Tax authority or other party with respect to OrbNav's Membership Interest Taxes for which the other party is liable pursuant to Section 8.1. Such notice shall contain factual information (to the extent known) describing the asserted Tax liability in a Contest (as defined below) against reasonable detail and shall include copies of any notice or other document received from any Tax Indemnitee that would result authority in the indemnification respect of any such asserted Tax Indemnitee liability. If such notifying party fails to give the other party prompt notice of an asserted Tax liability as required by Orbital this Section 8.3, then (a) if the other party is precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then such notifying party shall have sole responsibility for such Tax liability or OrbNav (b) if the other party is not precluded from contesting but such failure to give prompt notice results in detriment to the other party, then any amount that the other party is otherwise required to pay to such notifying party pursuant to this Section 8 then 8.1 with respect to such liability shall be reduced by the following provisions of this Section 8.4(a) will apply to the handling amount of such claim. For purposes detriment.
(b) Parent, at its own expense, shall control the conduct to a final determination, through counsel of this Agreementits own choosing at its own expense, "Contest" means of any audit, court claim for refund and administrative or judicial proceeding or other dispute involving any asserted liability with respect to which indemnity may be sought by CS under Section 8.1(a) (any such audit, claim for refund or proceeding relating to an asserted Tax matter that affects OrbNav's Membership Interest in the liability is referred to herein as a "CONTEST"). Parent shall have all rights to settle, compromise and/or concede such asserted liability and CS shall cooperate, and shall cause a Beverage Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence its successors to cooperate, in each phase of such ContestContest PROVIDED, the Purchaser HOWEVER, that Parent shall give written notice not settle, compromise or concede any such liability that is reasonably likely to Orbital result in a cost to CS or its Affiliates in excess of $100,000.00 without CS's consent, not to be unreasonably withheld. Parent shall inform CS of all material developments and OrbNav of the existence of any Contest events relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser such Contest (including, without limitation, providing to CS copies of any all written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest materials relating to a Tax matter for which Orbital or OrbNav may such Contest reasonably requested by CS), and CS and its authorized representatives shall be required to make a Tax Indemnity Paymententitled, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital CS, to attend, but not participate in or control, all conferences, meetings and OrbNav and proceedings relating to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretion.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Sellers in writing of any written notice of the commencement of any Action or proposed assessment or Claim made against, or with respect to, the Purchaser or any of the Acquired Companies or Subsidiaries which (i) relates to a Pre-Closing Period or a Straddle Period of any Acquired Company or Subsidiary or (ii) if determined adversely to the taxpayer, could be grounds for indemnification under this Article VII (a “Tax Action”); provided, however, that the failure to give such Contestnotice will not affect the Purchaser’s right to indemnification under this Article VII except to the extent, if any, that, but for such failure, the Sellers could have avoided all or a portion of the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case may beof a Tax Action (other than a Tax Action that relates to a Straddle Period), shall not be liable to the Purchaser provided that, and only to the extent that Orbital's or OrbNav's position is actually prejudiced that, the Sellers acknowledge in writing their liability under this Agreement to hold the Purchaser, the Acquired Companies and the Subsidiaries harmless against the amount of any adjustment which may be made as a result thereof. Orbital and OrbNav shallof such audit or proceeding that relates to Pre-Closing Periods to the extent so provided under Section 7.01, the Sellers shall have the right, at their electionexpense, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of the Tax Action, provided that the Sellers shall keep the Purchaser informed as to the progress of the Tax Action in a timely manner. The Purchaser may also, at its expense, participate in, but not control, any such ContestTax Action to the extent that it is related to a Stand-Alone Return or a Non-Income Tax Return and, including settlement if the Sellers do not assume the defense of a Tax Action, the Purchaser may defend the same in such manner as it may deem appropriate. In the case of a Tax Action that relates to a Straddle Period, the Purchaser shall have the right, at its expense, to control the Tax Action; the Sellers may also, at their expense, participate in, but not control, any such Tax Action and, if the Purchaser does not assume the defense of any such Tax Action, the Sellers may defend the same in such manner as they may deem appropriate.
(c) In the event that there is a Tax Action that involves (i) the commencement of a tax examination or other disposition thereofaudit of one or more Pre-Closing Periods and either a Straddle Period and/or one or more Post-Closing Periods and (ii) the same type of Non-Income Tax (or Income Tax, if no Section 338(h)(10) Election was allowed by the relevant Governmental Authority or a Governmental Authority is challenging a Section 338(h)(10) Election) is at issue with respect to all such periods, then, the Sellers and the Purchaser may participate in the audit or examination and the audit or examination shall be jointly controlled by Sellers and Purchaser with respect to the Non-Income Tax (or Income Tax) at issue, provided, however, that Orbital at the point that it can be reasonably determined which party would have the burden of the greater portion of the sum of any proposed adjustments and OrbNav will keep any corresponding adjustments for such periods, then that party shall control the audit and examination
(d) Notwithstanding anything to the contrary in this Section 7.04, with respect to any taxable period that begins before the Closing Date, neither the Purchaser informed nor the Sellers shall enter into any compromise or agree to settle any Tax Action which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consentother party, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall may not be unreasonably withheld, conditioned or delayed. The Purchaser shall handle any Tax Claim relating and the Sellers agree to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlcooperate, and the Purchaser shall be entitled agrees to defendcause the Acquired Companies and the Subsidiaries to cooperate, in the defense against or compromise or settle such of any Tax Claim in its sole discretionAction.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav date of the existence of such ContestEffective Time, Parent shall promptly notify the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Equityholders’ Representative in writing of any written notice of a proposed adjustment or claim in an audit or administrative or judicial proceeding involving Parent or the Company or its Subsidiaries which, if determined adversely to the taxpayer, would be grounds for indemnification under Article IX; provided, however, that a failure to give such Contestnotice will not affect Parent's right to indemnification thereunder except to the extent, if any, that, but for such failure, the Equity Holders could have avoided the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case of an audit or administrative or judicial proceeding that relates to taxable periods ending on or before the date of the Effective Time, provided that the Equityholders’ Representative on behalf of all Equity Holders acknowledges in writing the Equity Holders’ liability under this Agreement to hold Parent and the Surviving Corporation and its Subsidiaries harmless against the full amount of any adjustment that may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital of such audit or proceeding, and OrbNav shallprovided further that such audit or proceeding relates solely to a potential adjustment for which the Equityholders’ Representative has acknowledged the Equity Holders’ liability and the issue underlying the proposed adjustment if resolved would not materially prejudice the Surviving Corporation or its Subsidiaries from taking a contrary position for any period ending after the date of the Effective Time with respect to such recurring issue, at their election, the Equityholders’ Representative shall have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the Equity Holders’ expense of Orbital to participate in and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will proceeding. The Equityholders’ Representative shall keep the Purchaser Parent informed of the progress of any such audit or proceeding, and disposition Parent also may participate in any such audit or proceeding at its expense. If the Equityholders’ Representative does not assume the defense of any such audit or proceeding, Parent may defend the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent same in such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest manner as it may deem appropriate at its expense, including, but not limited to, settling such audit or proceeding.
(c) With respect to an audit or proceeding that relates to a potential adjustment for which the Equity Holders are liable and as to which the second proviso set forth in which case no settlement Section 10.3(b) is not satisfied, (i) the Equityholders’ Representative may participate in the audit or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of proceeding at its expense provided that the Company included first proviso set forth in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlSection 10.3(b) is satisfied, and (ii) the Purchaser audit or proceeding shall be entitled to defend, compromise or settle such Tax Claim in its sole discretioncontrolled by Parent.
Appears in 1 contract
Contests. If no Event of Default has occurred and is then continuing, Tenant, on its own or on Landlord's behalf (or in Landlord's name ), but at Tenant's sole cost and expense, upon ten days' prior Notice to Landlord, may contest, by appropriate legal proceedings conducted in good faith and with due diligence, without prejudice to Landlord's rights hereunder the amount, validity or application, in whole or in part, of any Imposition, Legal Requirement, Insurance Requirement, lien, attachment, levy, encumbrance, charge or claim not otherwise permitted by Article XII, provided that (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification case of an unpaid Imposition, lien, attachment, levy, encumbrance, charge or claim, the commencement and continuation of such proceedings shall suspend the collection thereof from Landlord and from the Property, (b) neither the Property nor any Rent therefrom nor any part thereof or interest therein would be subject to any risk of being sold, forfeited, attached, foreclosed, or lost, (c) in the case of a Legal Requirement, Landlord would not be -35- 41 in any danger of incurring any lien, charge, fee, penalty, or other civil or criminal liability for failure to comply therewith pending the outcome of such proceedings, (d) in the event that any such Tax Indemnitee by Orbital contest shall involve a sum of money or OrbNav pursuant potential loss in excess of $100,000 then, in any such event, Tenant shall deliver to this Section 8 then the following provisions of this Section 8.4(a) will apply Landlord an Officer's Certificate to the handling of such claim. For purposes of this Agreementeffect set forth in clauses (a), "Contest" means any audit(b) and (c), court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's applicable, (e) in the case of a Legal Requirement or OrbNav's position is actually prejudiced an Imposition, lien, encumbrance or charge, Tenant shall give such reasonable security as a result thereof. Orbital and OrbNav shall, at their election, have the right may be demanded by Landlord to represent the interests insure ultimate payment of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav same and to control prevent any loss or injury to Landlord, including but not limited to any sale or forfeiture of the conduct affected portion of the Property or the Rent by reason of such Contest, including settlement non-payment or other disposition thereof, non-compliance; provided, however, that Orbital and OrbNav will keep the Purchaser informed provisions of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent this Article shall not be unreasonably withheld and providedconstrued to permit Tenant to contest the payment of Rent (except as to contests concerning the method of computation or the basis of levy of any Imposition) or any other sums payable by Tenant to Landlord hereunder, further, that to (f) in the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)case of an Insurance Requirement, the Purchaser will have coverage required by Article XIV shall be maintained, and (g) if such contest be finally resolved against Landlord or Tenant, Tenant shall, as Additional Charges due hereunder, promptly pay the right amount required to control be paid, together with all interest and penalties accrued thereon, or comply with the conduct of the Contest applicable Legal Requirement or Insurance Requirement. Landlord, at its Tenant's expense, shall execute and deliver to Tenant such authorizations and other documents as may reasonably be required in which case no settlement any such contest and, if reasonably requested by Tenant or compromise if Landlord so desires, Landlord shall join as a party therein. Tenant shall indemnify and save Landlord harmless against any liability, cost or expense of issues will any kind that may be made without Orbital's imposed upon Landlord in connection with any such contest and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionloss resulting therefrom.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest Following the Closing, Purchaser shall control all Contests (as defined below) against relating to Taxes of the Company or any Tax Indemnitee that would result of its Subsidiaries, except as otherwise provided in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then 10.4. In the following provisions case of a Contest that relates solely and exclusively to Pre-Closing Periods or for which Purchaser may otherwise seek indemnification from Seller under this Section 8.4(a) will apply Agreement; provided, that Seller shall have acknowledged its obligation to indemnify Purchaser under this Article X, Seller shall have the handling right, at its expense, to control the conduct of such claimContest, and Purchaser shall have the right, at its expense, to participate in such Contest. In the case of a Contest that relates to Pre-Closing Periods and Post-Closing Periods, provided Seller shall have acknowledged its obligation to indemnify Purchaser under this Article X, Seller shall have the right, bearing its own expenses, to jointly conduct such Contest with Purchaser with respect to Tax items for which Purchaser may seek indemnification from Seller. If Seller chooses not to control such Contest, Seller shall have the right, at its expense, to participate in such Contest. The Party controlling a Contest for a Pre-Closing Period shall in any event keep the other Party informed of the progress of such Contest, shall promptly provide the other Party with copies of all material documents (including material notices, protests, briefs, written rulings and determinations and correspondence) pertaining to such audit or proceeding and shall not settle such Contest without the other Party’s advance written consent, which consent shall not be unreasonably withheld, conditioned or delayed. For purposes of this Agreement, "a “Contest" means ” is any audit, court administrative or judicial proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNavits Subsidiaries, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretion.
Appears in 1 contract
Sources: Stock Purchase Agreement (New Media Investment Group Inc.)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, a "Contest" means is any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax IndemniteeAcquired Companies. Unless the Purchaser Silgan previously has previously received written notice from Orbital and OrbNav the Selling Parties of the existence of such Contest, the Purchaser Silgan shall give written notice to Orbital and OrbNav the Selling Parties of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's the Selling Parties' responsibility under this Section 8 as soon as practicable after 9.1(b) within ten (10) Business Days from the receipt by the Purchaser Silgan of any written notice of such Contest, but in no event later than 15 days prior to . Unless the time that a written response to the Selling Parties previously have received written notice is requiredfrom Silgan of the existence of such Contest, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser Selling Parties shall give written notice to Orbital Silgan of the existence of any Contest for which Silgan has responsibility within ten (10) Business Days from the receipt by the Selling Parties of any written notice of such Contest. Silgan, on the one hand, and OrbNav as soon as practicable. If the Purchaser fails Selling Parties, on the other, agree, in each case at no cost to comply the other Party, to cooperate with the foregoing sentenceother and the other's representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, Orbital or OrbNav, as the case may be, shall but not be liable limited to, making available to the Purchaser to the extent that Orbital's other Party, during normal business hours, all books, records, returns, documents, files, other information (including working papers and Schedules), officers or OrbNav's position is actually prejudiced as a result thereofemployees (without substantial interruption of employment) or other relevant information necessary or useful in connection with any Contest requiring any such books, records and files. Orbital and OrbNav The Selling Parties shall, at their election, have the right to represent the Acquired Companies' interests of the Company in any Contest relating to a Tax matter for which Orbital arising in a period ending on or OrbNav may be required to make a Tax Indemnity Paymentbefore the Closing Date, to employ counsel of Orbital's and OrbNav's their choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, ; provided, however, that Orbital and OrbNav will keep Silgan, at its own expense, shall have the Purchaser informed of right to consult with the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent Selling Parties regarding any such Contest could adversely that may affect the Purchaser's Tax Liability (Acquired Companies for any periods ending after taking into account any required Tax Indemnity Payment), the Purchaser will Closing Date. Silgan shall have the right to control the conduct of any Contest with respect to any Tax matter arising in a period ending after the Contest Closing Date; provided, however, that the Selling Parties, at its their own expense, shall have the right to consult with Silgan regarding any such Contest that may affect the Acquired Companies for any periods ending on or before the Closing Date; and in which case no provided further that any settlement or compromise other disposition of issues will any such Contest may only be made without Orbital's and OrbNav's written consentwith the consent of the Selling Parties, which consent shall not be unreasonably withheld. The Purchaser shall handle , conditioned or delayed; and provided further that any Tax Claim relating to settlement or other disposition of any Tax period of such Contest that affects both the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, Selling Parties and the Purchaser shall (i.e., affects taxable periods both before and after the Closing Date) may only be entitled to defend, compromise or settle such Tax Claim in its sole discretionwith the consent of both Parties.
Appears in 1 contract
Contests. (a) If Subject to the rights of insurers under policies of -------- insurance maintained pursuant to Section 16 of the Charter, the Charterer shall have the right, at its sole cost and expense, to investigate, and the right in its sole discretion to defend or compromise, any claim Claim for Tax which indemnification is sought under this Section 13.1, and the Indemnitee shall cooperate, at the Charterer's expense, with all reasonable requests of the Charterer in connection therewith. The Charterer will provide the Indemnitee with such information not within the control of such Indemnitee, as is in the Charterer's control or is reasonably available to the Charterer, which such Indemnitee may reasonably request and shall otherwise cooperate with such Indemnitee so as to enable such Indemnitee to fulfill its obligations under this Section 13.
1. Where the Charterer or the insurers under a policy of insurance maintained by the Charterer undertake the defense of an Indemnitee with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital Claim, no additional legal fees or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling expenses of such claim. For purposes Indemnitee in connection with the defense of this Agreement, "Contest" means any audit, court proceeding such claim shall be indemnified hereunder unless such fees or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in expenses were incurred at the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav request of the existence of Charterer or such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, insurers; provided, however, that Orbital if (i) in the written opinion of counsel to such -------- ------- Indemnitee an actual or potential material conflict of interest exists where it is advisable for such Indemnitee to be represented by separate counsel or (ii) such Indemnitee has been indicted or otherwise charged in a criminal complaint in connection with a Claim not excluded by Section 13.1(a) and OrbNav will keep such Indemnitee informs the Purchaser informed Charterer that such Indemnitee desires to be represented by separate counsel, the reasonable fees and expenses of such separate counsel shall be borne by the Charterer. Subject to the requirements of any policy of insurance, an Indemnitee may participate at its own expense in any judicial proceeding controlled by the Charterer pursuant to the preceding provisions; provided that such party's participation -------- does not, in the reasonable opinion of the progress independent counsel appointed by the Charterer or its insurers to conduct such proceedings, significantly interfere with such control; and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent such participation shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have constitute a waiver of the right to control receive the conduct indemnification provided in this Section 13.1. Notwithstanding anything to the contrary contained herein, (x) the Charterer shall not under any circumstances be liable for the fees and expenses of more than one counsel for each of (i) the Owner Participant, the Owner Trustees and the Owner Trust (and their respective successors and permitted assigns, agents and servants) and (ii) the Loan Participants and the Indenture Trustee (and their respective successors and permitted assigns, agents and servants), and (y) during the continuance of a specified Charter Event of Default, the Charterer ------------------------ shall not compromise any Claim without the consent of the Contest at its expenseapplicable Indemnitee, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which such consent shall not to be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretion.
Appears in 1 contract
Sources: Participation Agreement (Mobil Corp)
Contests. (a) If Effective upon the consummation of the Closing, Buyer, the Company and its Subsidiaries, on the one hand, and Seller and its Affiliates, on the other hand, shall promptly notify each other upon receipt by such party of written notice of the assertion of any claim for Tax claim, or the commencement of any audit, suit, action or proceeding with respect to OrbNav's Membership Interest is asserted Taxes in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification respect of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or which indemnity may be Orbital's or OrbNav's responsibility sought under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest7.4(a) (collectively, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a “Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, Claim”); provided, however, that Orbital and OrbNav will keep the Purchaser informed failure on the part of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent Buyer to so notify Seller shall not be unreasonably withheld and provided, further, that limit any indemnification obligations of Seller under Section 7.4 (except to the extent such Contest could adversely affect failure actually and materially prejudices the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct defense of the Contest Tax Claim).
(b) Seller may, at its own expense, and in which case no settlement or compromise assume control of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle the defense of any Tax Claim with respect to Taxes relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect (excluding any Tax Claim with respect to a Straddle Tax Period); provided, however, that Seller shall have first notified Buyer in writing not of Seller's intention to controldo so and of the identity of counsel, and if any, chosen by Seller in connection therewith; provided, further, that Buyer shall have the Purchaser shall be entitled right, at its own expense, to defend, compromise or settle participate in such Tax Claim and to employ counsel of its choice for purposes of such participation. In no case shall Seller settle or otherwise compromise such Tax Claim without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
(c) Buyer shall control the defense of any Tax Claim not controlled by Seller pursuant to Section 7.5(b) (including any Tax Claim with respect to a Straddle Tax Period); provided, however, that Seller shall have the right to participate in such Tax Claim and, at its sole discretionown expense, to employ counsel of its choice for purposes of such participation. In no case shall Buyer settle or otherwise compromise such Tax Claim without Seller's prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Sources: Stock Purchase Agreement (Republic Airways Holdings Inc)
Contests. (ai) If The ▇▇▇▇▇ Representative and its duly appointed representatives shall have the authority to control any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) audit or examination by any taxing authority, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding deficiency or other dispute with respect adjustment of Taxes of or relating to any Tax matter liability of ▇▇▇▇▇ and its subsidiaries for all ▇▇▇▇▇ Pre-Closing Periods; PROVIDED, HOWEVER, that affects OrbNav's Membership Interest in neither the Company or ▇▇▇▇▇ Representative nor any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav duly appointed representative of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav ▇▇▇▇▇ Representative shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which prior consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consentUbiquiTel Parent, which consent shall not be unreasonably withheld, enter into any settlement of any contest or otherwise compromise any issue that would have a material adverse effect on the Tax benefits of UbiquiTel Parent or ▇▇▇▇▇ or any subsidiary for taxable years ending after the Closing Date. The Purchaser UbiquiTel Parent and its duly appointed Representatives shall handle have the exclusive authority to control any audit or examination by any taxing authority, initiate any claim for refund, amend any Tax Claim Return and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any Tax liability of ▇▇▇▇▇ and its subsidiaries for Taxes for any taxable year or other taxable period ending after the Closing Date (the "POST-CLOSING PERIODS"); PROVIDED, HOWEVER, that (a) none of UbiquiTel Parent, ▇▇▇▇▇, its subsidiaries nor any of their duly appointed representatives shall, without the prior written consent of the Company included in a ▇▇▇▇▇ Representative, enter into any settlement of any contest or otherwise compromise any issue that adversely affects the liability of the ▇▇▇▇▇ Stockholders for any ▇▇▇▇▇ Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlTaxes, and (b) none of UbiquiTel Parent, ▇▇▇▇▇, its subsidiaries nor any of their duly appointed representatives shall, without the Purchaser prior consent of the ▇▇▇▇▇ Representative, enter into any settlement of any contest or otherwise compromise any issue that would require payment by the Controlling ▇▇▇▇▇ Stockholders (as defined herein) of any amount under this Agreement unless UbiquiTel Parent shall have waived or caused to be entitled waived for itself and ▇▇▇▇▇ and its subsidiaries any right to defend, compromise or settle such Tax Claim in its sole discretionindemnification for Taxes from the Controlling ▇▇▇▇▇ Stockholders.
Appears in 1 contract
Contests. (a) If Purchaser shall promptly notify Parent in writing if Purchaser or any Affiliate of Purchaser receives, after the Closing Date, any written notice of a proposed assessment or claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against an audit or administrative or judicial proceeding involving WWI, any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Affiliate of Purchaser which, if determined adversely to the relevant taxpayer, would be grounds for indemnification under Section 12.2(a) of this Agreement; provided, however, that a failure to give such notice will not affect a Purchaser Indemnified Person's right to indemnification hereunder, except to the extent, if any, that, but for such failure, Parent could have avoided the Tax Indemniteeliability in question. Unless In the Purchaser has previously received case of an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, provided that within 60 days after Parent receives the written notice from Orbital Purchaser required under Section 12.11(a) and OrbNav prior to taking any action with respect to such audit or administrative or judicial proceeding, Parent acknowledges in writing its liability under Section 12.2(a) of this Agreement to hold the existence of such Contest, relevant Purchaser Indemnified Person (or Persons) harmless against the Purchaser shall give written notice to Orbital and OrbNav of the existence full amount of any Contest relating to a Tax matter that is or adjustment which may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital and OrbNav shallof such audit or proceeding, at their election, Parent shall have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the its own expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, proceeding; provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement Parent shall not settle or otherwise compromise of issues will be made any issue or matter without the Purchaser's prior written consentconsent if such issue or matter could have a material adverse effect on the Tax liability of Purchaser, which consent shall WWI, any Company or any other Affiliate of Purchaser for a post-Closing taxable year or period. Purchaser also may participate in any such audit or proceeding at its own expense and, if Parent does not be unreasonably withheld and providedassume the defense of any such audit or proceeding, furtherPurchaser may, that without any effect to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account its or any required Tax Indemnity Payment), the other Purchaser will have the Indemnified Persons' right to indemnification under Section 12.2(a) of this Agreement, defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding. In the case of an audit or administrative or judicial proceeding that relates to any period that begins before and ends after the Closing Date, Parent and Purchaser shall jointly control the conduct of the Contest such audit or proceeding, each to bear its own expenses. Except as expressly set forth in this Section 12.11(a), Purchaser shall control at its expenseown expense the conduct of any and all audits or the proceedings related to the Taxes, or the Tax liability, of WWI and the Companies.
(b) Parent and Purchaser shall cooperate, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The after the Closing Purchaser shall handle cause 62 WWI and each Company to cooperate, to the extent that it is reasonable and helpful in any Proceeding, including making available relevant records and documents in their possession. Neither Parent, Purchaser, WWI nor any Company shall be required to disclose a consolidated, combined, or unitary Tax Claim relating to Return including a corporation that is not WWI or any Tax period of the Companies, but if information with respect to WWI or any Company included contained in such a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not Return is relevant to controla Proceeding, and the Purchaser such information shall be entitled to defendfurnished as a pro forma separate return of WWI, compromise or settle such Tax Claim in its sole discretionany Company.
Appears in 1 contract
Sources: Recapitalization and Stock Purchase Agreement (Gutbusters Pty LTD)
Contests. Tenant, on its own or on Landlord’s behalf (or in Landlord’s name), but at Tenant’s sole cost and expense, may contest, by appropriate legal proceedings conducted in good faith and with due diligence, the amount, validity or application, in whole or in part, of any Imposition, Legal Requirement, Insurance Requirement, lien, attachment, levy, encumbrance, charge or claim not otherwise permitted by Article 12, provided that (a) If in the case of an unpaid Imposition, lien, 1845797.11-NYCSR07A - MSW attachment, levy, encumbrance, charge or claim, the commencement and continuation of such proceedings shall suspend the collection thereof from Landlord or Tenant and from the portion of the Property subject to such contest, (b) neither such Property nor any claim Rent therefrom nor any part thereof nor interest therein would be subject to any risk of being sold, forfeited, attached, foreclosed, or lost as a result of such non-payment or non-compliance, (c) in the case of a Legal Requirement, Landlord would not be in any danger of civil or criminal liability for Tax failure to comply therewith pending the outcome of such proceedings, (d) [Intentionally omitted], (e) in the case of a Legal Requirement or an Imposition, lien, encumbrance or charge, Tenant shall give such security as may be demanded by Landlord to insure ultimate payment of the same and to prevent any sale or forfeiture of the affected portion of the Property or the Rent by reason of such non-payment or non-compliance, including, without limitation, a guaranty in form and substance acceptable to Landlord and executed by a guarantor reasonably acceptable to Landlord (provided Tenant shall only be required to comply with this subsection (e) if the aggregate amount then due and payable with respect to OrbNav's Membership Interest is asserted in a Contest all Legal Requirements, Impositions, liens, encumbrances or charges, directly affecting the Facilities, exceeds $15,000,000), (as defined belowf) against any Tax Indemnitee that would result in the indemnification case of an Insurance Requirement, the coverage required by Article 14 shall be maintained, and (g) if such contest be finally resolved against Landlord or Tenant, Tenant shall, as Additional Charges due hereunder, promptly pay the amount required to be paid, together with all interest and penalties accrued thereon, or comply with the applicable Legal Requirement or Insurance Requirement. Notwithstanding any such Tax Indemnitee by Orbital express or OrbNav pursuant implied provision of this Article to this Section 8 then the following contrary, the provisions of this Section 8.4(aArticle shall not be construed to permit Tenant to contest the payment of Base Rent (except as to contests concerning the method of computation) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemniteesums payable by Tenant to Landlord hereunder. Unless the Purchaser has previously received written notice from Orbital Landlord, at Tenant’s expense, shall execute and OrbNav of the existence of deliver to Tenant such Contestauthorizations and other documents as may reasonably be required in any such contest and, the Purchaser if reasonably requested by Tenant or if Landlord so desires, Landlord shall give written notice to Orbital join as a party therein. Tenant shall indemnify, defend and OrbNav of the existence save Landlord harmless against any liability, cost or expense of any Contest relating to a Tax matter kind that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of imposed upon Landlord in connection with any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received contest and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionloss resulting therefrom.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted After the Closing, each party shall promptly notify the other party in a Contest (as defined below) against writing of the proposed assessment or the commencement of any Tax Indemnitee that would result audit or administrative or judicial proceeding or of any demand or claim on the other party or its Affiliates which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification under Section 7.01. Such notice shall contain factual information (to the extent known to such party) describing the asserted Tax liability in the indemnification reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax Indemnitee liability. If either party fails to give the other party prompt notice of an asserted Tax liability as required by Orbital or OrbNav pursuant to this Section 8 7.03, then the following provisions of this Section 8.4(a) will apply such party shall not have any obligation to the handling indemnify for any loss arising out of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any asserted Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contestliability, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser only to the extent that Orbital's failure to give such notice results in a detriment to such party.
(b) In the case of a Tax audit or OrbNav's position is actually prejudiced as administrative or judicial proceeding (a result thereof. Orbital and OrbNav shall“Contest”) that relates to taxable periods ending on or before the date of the Closing, the Seller shall have the sole right, at their electionits expense, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep if the resolution of any such Contest would result in an increase in Taxes otherwise borne by Purchaser informed of (or either Company for any Tax period beginning after the progress and disposition of the Contest and no settlement or compromise of issues will be made Closing Date), Seller shall not resolve such contest without the prior written consent of Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that or delayed.
(c) With respect to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)Straddle Periods, the Purchaser will have Seller may elect to direct and control, through counsel of its own choosing, any Contest involving any asserted Tax liability with respect to which indemnity may be sought from the right Seller pursuant to control Section 7.01. If the conduct Seller elects to direct such Contest, the Seller shall within 30 days of receipt of the Contest at notice of asserted Tax liability notify the Purchaser of its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating intent to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controldo so, and the Purchaser shall cooperate and shall cause the Companies to cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects to direct such Contest, then the Purchaser may participate in such Contest, at the Purchaser’s expense. If the Seller elects not to direct the Contest, the Purchaser may assume control of such Contest (at the Purchaser’s expense). If the Purchaser assumes control of such Contest, then the Seller may participate, at its own expense, in the Contest. Neither the Seller nor the Purchaser may settle or compromise any asserted liability with respect to any Contest governed by this Section 7.03(c) without prior written consent of the other party, which shall not be entitled unreasonably withheld or delayed.
(d) The Purchaser and the Seller agree to defendcooperate, and agree to cause their Affiliates to cooperate, in the defense against or compromise or settle such Tax Claim of any claim in its sole discretionany Contest.
Appears in 1 contract
Sources: Stock Purchase Agreement (HLTH Corp)
Contests. (a) If any claim for Tax Authority asserts a Tax Claim with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against Wind River or any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 its Subsidiaries, then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written party first receiving notice of such Contest, but in no event later than 15 days prior Tax Claim promptly shall provide written notice thereof to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital other party or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, parties; provided, however, that Orbital and OrbNav will keep the Purchaser informed failure of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent such party to give such prompt notice shall not be unreasonably withheld and providedrelieve the other party of any of its obligations under this Article 9, further, that except to the extent that the other party is actually prejudiced thereby. Such notice shall specify in reasonable detail the basis for such Contest could adversely affect Tax Claim and shall include a copy of the Purchaser's relevant portion of any correspondence received from the Tax Liability Authority.
(after taking into account any required Tax Indemnity Payment), the Purchaser will b) The Trusts shall have the right to control the conduct of the Contest control, at its their own expense, any audit, examination, contest, litigation or other proceeding with respect to Taxes by or against any Tax Authority (a "Tax Proceeding") in respect of Wind River or any of its Subsidiaries for any taxable period that ends on or before the Closing Date but only to the extent that such Tax Proceeding relates to a potential adjustment for which the Trusts have acknowledged in writing their liability under this Agreement to hold Cayman Purchaser, Wind River and in which case no settlement or compromise its Subsidiaries harmless against the full amount of issues will any adjustment that may be made without Orbital's and OrbNav's written consentas a result of such Tax Proceeding (or in the case of any taxable year that includes the Closing Date, which consent shall not be unreasonably withheld. The Purchaser shall handle against that portion of any Tax Claim relating adjustment allocable to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect under Section 9.01(a)). If the Trusts do not expressly assume the defense of any such Tax Proceeding by providing Cayman Purchaser with written notice of the Trusts' intent to control such Tax Proceeding within 45 days after first receiving notice of such Tax Proceeding, Cayman Purchaser may defend the same in writing such manner as it may deem appropriate; provided, that such 45-day period shall be extended for such additional period as may be reasonably necessary (but not to controlexceed an additional 45 days) in order to allow the Trusts to determine whether they should acknowledge liability as provided in this Section 9.05(b); and provided further, that the Trusts shall reimburse Cayman Purchaser for its reasonable fees for attorneys and the Purchaser shall be entitled to defend, compromise or settle other outside consultants incurred during such Tax Claim in its sole discretion.additional
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted After the Effective Time, the Purchaser -------- shall promptly notify the Partners in a Contest (as defined below) against writing of the commencement of any Tax Indemnitee that audit or administrative or judicial proceeding or of any demand or claim on the Purchaser or KBC which, if determined adversely to the taxpayer or after the lapse of time, would result be grounds for indemnification under Section 8.02. Such notice shall contain factual information (to the extent known to the Purchaser or KBC) describing the asserted Tax liability in the indemnification reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicableliability. If the Purchaser fails to comply give the Partners prompt notice of an asserted Tax liability as required by this Section 8.05, then (i) if the Partners are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then the Partners shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if the Partners are not so precluded from contesting but such failure to give prompt notice results in a detriment to the Partners, then any amount which the Partners are otherwise required to pay the Purchaser pursuant to Section 8.02 with respect to such liability shall be reduced by the amount of such detriment.
(b) The Partners shall control in their sole and absolute discretion, and the Purchaser and KBC shall cooperate with the foregoing sentencePartners with respect to, Orbital any audit, controversy or OrbNavadministrative or judicial proceeding relating to Income Tax Returns of KBC or the Partners for any taxable period ending at or before the Effective Time.
(c) The Partners may elect to control any audit, claim for refund and administrative or judicial proceeding involving any asserted Non-Income Tax liability with respect to which indemnity may be sought under Section 8.02 (any such audit, claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a "Contest"). If the case may bePartners elect to direct a ------- Contest, shall not be liable to they shall, within 30 calendar days of receipt of the notice of asserted Tax liability, notify the Purchaser of their intent to do so, and the extent that Orbital's Purchaser shall cooperate and shall cause KBC or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shallits successor to cooperate, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and the Partners, in each phase of such Contest. If the Partners elect not to control the conduct of such Contest, including settlement fail to notify the Purchaser of their election as herein provided or other disposition thereofcontest their obligation to indemnify under Section 8.02, the Purchaser or KBC may pay, compromise or contest, at its own expense, such asserted liability. However, in such case, neither the Purchaser nor KBC may settle or compromise any asserted liability over the objection of the Partners; provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no consent to settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be -------- ------- unreasonably withheld and providedwithheld. In any event, furtherthe Partners may participate, that at their own expense, in the Contest. If the Partners choose to direct the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)Contest, the Purchaser will have the right shall promptly empower and shall cause KBC or its successor promptly to control the conduct empower (by power of attorney and such other documentation as may be appropriate) such representatives of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating Partners as it may designate to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and represent the Purchaser shall or KBC or its successor in the Contest insofar as the Contest involves an asserted Tax liability for which the Partners would be entitled to defend, compromise or settle such Tax Claim in its sole discretionliable under Section 8.02.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing Date, the Purchaser Buyer shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Sellers in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company or any of its Subsidiaries which, if determined adversely to the Company or relevant Subsidiary, would be grounds for indemnification under this Article 7; provided, -------- however, that a failure to give such Contestnotice will not affect a Buyer Indemnified ------- Person's right to indemnification hereunder except to the extent, if any, that, but for such failure, the Sellers could have avoided the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case may beof an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, the Sellers shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the their own expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding; provided -------- that within 30 days after the Sellers have received the written notice from the Buyer that is required under Section 7.3(a) above, including settlement and prior to taking any action with respect to such audit or other disposition thereofadministrative or judicial proceeding, provided, however, that Orbital and OrbNav will keep the Purchaser informed Sellers acknowledge in writing their joint liability under Section 7.3(b)(i) of this Agreement to hold any Buyer Indemnified Person harmless against the progress and disposition full amount of the Contest and no settlement or compromise of issues will any adjustment which may be made without as a result of such audit or proceeding that relates to the Purchaser's written consent, which consent shall not be unreasonably withheld Pre-Closing Period (to the extent such amount exceeds the Closing Balance Sheet Tax Reserve after giving effect to all prior and concurrent payments made pursuant to Section 7.3(b)(i) of this Agreement to any Buyer Indemnified Person); provided, further, that the Sellers may not agree -------- ------- to a settlement or compromise to any such audit or proceeding that may reasonably be expected to have an adverse effect on the tax liability of the Company for a taxable period after the Closing Date without the prior written consent of the Buyer; provided, -------- further, that if the Buyer does not consent to such settlement or compromise, ------- the Sellers' liability to indemnify the Buyer as a result of such audit or proceeding shall be limited to the extent amount that the Sellers would have paid had the Buyer consented to such Contest could adversely affect settlement or compromise. The Buyer also may participate in any such audit or proceeding at its own expense and, if the Purchaser's Tax Liability (after taking into account Sellers do not assume the defense of any required Tax Indemnity Payment)such audit or proceeding, the Purchaser will Buyer may defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding, without any effect to any Buyer Indemnified Person's right to indemnification under this Article 7.
(c) In the case of an audit or administrative or judicial proceeding that relates to the Interim Period, the Buyer shall have the right at its own expense to control the conduct of such audit or proceeding; provided that the Contest at its expense, and in which case no -------- Buyer may not agree to a settlement or compromise in any such audit or proceeding without the prior written consent of issues will be made without Orbitalthe Seller's and OrbNav's written consentRepresentative (as defined in Section 12.5 below), which consent shall not be unreasonably withheld. The Purchaser shall handle Sellers also may participate in any Tax Claim relating such audit or proceeding at their own expense and, if the Buyer does not assume the defense of any such audit or proceeding, the Sellers may defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding, without any effect to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not Sellers' right to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionindemnification under this Article 7.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing Date, the Purchaser Buyer shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Sellers in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company or any of its Subsidiaries which, if determined adversely to the Company or relevant Subsidiary, would be grounds for indemnification under this Article 7; provided, -------- however, that a failure to give such Contestnotice will not affect a Buyer Indemnified ------- Person's right to indemnification hereunder except to the extent, if any, that, but for such failure, the Sellers could have avoided the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due question.
(b) Except as provided in less than 15 daysSection 7.3(c) below, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may beof an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, the Sellers shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the their own expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding; provided that within 30 days after the -------- Sellers have received the written notice from the Buyer that is required under Section 7.3(a) above, including settlement and prior to taking any action with respect to such audit or other disposition thereofadministrative or judicial proceeding, provided, however, that Orbital and OrbNav will keep the Purchaser informed Sellers acknowledge in writing their joint liability under Section 7.3(b)(i) of this Agreement to hold any Buyer Indemnified Person harmless against the progress and disposition full amount of the Contest and no settlement or compromise of issues will any adjustment which may be made without as a result of such audit or proceeding that relates to the Purchaser's written consent, which consent shall not be unreasonably withheld Pre-Closing Period (to the extent such amount exceeds the Closing Balance Sheet Tax Reserve after giving effect to all prior and concurrent payments made pursuant to Section 7.3(b)(i) of this Agreement to any Buyer Indemnified Person); provided, further, that the Sellers may not agree to a ----------------- settlement or compromise to any such audit or proceeding that may reasonably be expected to have an adverse effect on the tax liability of the Company for a taxable period after the Closing Date without the prior written consent of the Buyer; provided, further, that if the Buyer does not consent to such settlement ----------------- or compromise, the Sellers' liability to indemnify the Buyer as a result of such audit or proceeding shall be limited to the extent amount that the Sellers would have paid had the Buyer consented to such Contest could adversely affect settlement or compromise. The Buyer also may participate in any such audit or proceeding at its own expense and, if the Purchaser's Tax Liability (after taking into account Sellers do not assume the defense of any required Tax Indemnity Payment)such audit or proceeding, the Purchaser Buyer may defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding, without any effect to any Buyer Indemnified Person's right to indemnification under this Article 7.
(c) Notwithstanding subsection (a) above, any contest and/or settlement of any issue raised in an official inquiry, examination or proceeding that relates to the validity or effect of the Election will be conducted by the Buyer and the Company.
(d) In the case of an audit or administrative or judicial proceeding that relates to the Interim Period, the Buyer shall have the right at its own expense to control the conduct of such audit or proceeding; provided that the Contest at its expense, and in which case no -------- Buyer may not agree to a settlement or compromise in any such audit or proceeding without the prior written consent of issues will be made without Orbitalthe Seller's and OrbNav's written consentRepresentative (as defined in Section 12.5 below), which consent shall not be unreasonably withheld. The Purchaser shall handle Sellers also may participate in any Tax Claim relating such audit or proceeding at their own expense and, if the Buyer does not assume the defense of any such audit or proceeding, the Sellers may defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding, without any effect to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not Sellers' right to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionindemnification under this Article 7.
Appears in 1 contract
Contests. (ai) If Each of Buyer and Seller shall notify the other in writing within ten (10) days upon receipt of written notice of any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest pending or threatened audit, notice of deficiency, examination, assessment or any other administrative or judicial proceeding (as defined below“Audit”) against which may affect any Tax Indemnitee that would result in liability for which the indemnification of any such Tax Indemnitee by Orbital or OrbNav other party may be liable pursuant to this Section 8 then 5.17; provided that no delay on the following provisions part of this Section 8.4(athe Indemnified Party in giving such notice shall relieve the Indemnifying Party of any indemnification obligation hereunder unless the Indemnifying Party is prejudiced by such delay.
(ii) will apply to Seller shall have the handling of such claim. For purposes of this Agreement, "Contest" means sole and absolute right to: (i) conduct any audit, court proceeding Audit or other dispute claim that relates to (A) any Hess Group Tax Return or (B) any other Tax Return or Tax for a taxable period ending before the Closing Date; (ii) employ counsel of its choice in connection therewith; and (iii) settle any such Audit or other claim on such terms as it may determine. Seller and Buyer jointly shall control any Audit for Taxes in respect of the Acquired Entities or the Acquired Assets (other than a Hess Group Tax Return) with respect to a Straddle Period, including entering into a joint defense agreement with counsel agreeable to both Seller and Buyer. Buyer shall have the sole and absolute right to: (i) conduct any Audit or other claim that relates to any Tax matter that affects OrbNav's Membership Interest in the Company Return or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to for a Tax matter that is taxable period beginning on or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to Closing Date; (ii) employ counsel of Orbital's its choice in connection therewith; and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of (iii) settle any such Contest, including settlement Audit or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent claim on such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionterms as it may determine.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the The following provisions of this Section 8.4(a) will requirements shall apply to any appeal, objection or contest to any tax or assessment permitted to be made by Lessee under this Lease: the handling of such claim. For purposes of this Agreementcontest, "Contest" means any auditopposition, court proceeding or objection must be filed before the tax, assessment, or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital charge at which it is directed becomes delinquent and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of the contest, opposition, or objection must be given to Lessor before the date the tax, assessment, or other charge becomes delinquent. No such Contestcontest, but in no event later than 15 days opposition, or objection shall be continued or maintained after the date the tax, assessment, or other charge at which it is directed becomes delinquent unless Lessee has met one of the following conditions: (i) paid such tax, assessment, or other charge under protest prior to its becoming delinquent; or (ii) obtained and maintained a stay of all proceedings for enforcement and collection of the time tax, assessment, or other charge by posting such bond or other matter required by law for such a stay; or (iii) delivered to Lessor a good and sufficient undertaking in a form reasonably acceptable to Lessor in an amount equal to one hundred twenty-five percent (125%) of the amount in controversy (inclusive of fines, interests, penalties, costs, and other expenses that may have accrued or been imposed thereon) and issued by a written response surety company authorized to issue undertakings in California, conditioned on the written notice is requiredpayment by Lessee of the tax, unless assessment, or charge together with any fines, interest, penalties, costs, and expenses that may have accrued or been imposed thereon within thirty (30) days after final determination of Lessee’s contest, opposition, or objection to such written notice is received and a written response is due in less than 15 daystax, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicableassessment, or other charge. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, Lessor shall not be liable required to join in any proceedings or contest brought by Lessee unless the Purchaser to provisions of any law requires the extent that Orbital's proceeding or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have contest be brought by or in the right to represent the interests name of Lessor or any successor in interest of the Company Site. In that case, Lessor shall join in any Contest relating the proceeding or contest or permit it to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of brought in Lessor’s name but such Contest, including settlement action shall be without cost or other disposition thereof, provided, however, that Orbital liability to Lessor and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that Lessee agrees to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right pay to control the conduct of the Contest at its expense, and Lessor all costs incurred by Lessor in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionconnection therewith.
Appears in 1 contract
Sources: Billboard Site Lease
Contests. (ai) If Each of Buyer, on the one hand, and the Seller Representative, on the other hand, will promptly notify the other Party in writing upon receipt by such Party (or any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined belowof its Affiliates) against any Tax Indemnitee that would result in the indemnification of notice of any such Tax Indemnitee pending or threatened audit, examination or Proceeding by Orbital or OrbNav a Governmental Entity in respect of which an indemnity may be sought pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Agreement (a “Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, Claim”); provided, however, that Orbital and OrbNav will keep the Purchaser informed failure of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent such Party to give prompt notice shall not be unreasonably withheld and provided, further, that relieve the other Party of any of its obligations under this Section 7.11(e) except to the extent the other Party can demonstrate actual prejudice as a result of such Contest could adversely affect the Purchaser's Tax Liability failure.
(after taking into account any required Tax Indemnity Payment)ii) The Seller Representative may, the Purchaser will have the right to control the conduct of the Contest at its own expense, participate in, and in which case no settlement or compromise upon written notice to Buyer, assume the defense of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not that ends on or prior to controlthe Closing Date, and if the Purchaser shall be entitled to defend, compromise or settle such Seller Representative at all times conduct the defense of the Tax Claim in its sole discretiongood faith and in a reasonably diligent manner.
(iii) The Seller Representative will have the right to participate jointly with Buyer in representing the interests of the Acquired Companies in any Tax Claim relating to a Straddle Period, if and to the extent that such period includes any Pre-Closing Tax Period. Buyer and the Seller Representative agree to cooperate in the defense of any claim in such Proceeding and Buyer shall not settle any such claim without the Seller Representative’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
(iv) Notwithstanding anything herein to the contrary, to the extent that there is an audit of any of the Acquired Companies that is subject to the centralized partnership audit regime provided for by the Bipartisan Budget Act of 2015 (the “BBA Procedures”) with respect to any taxable year or portion thereof prior to the Closing that results in an imputed underpayment of tax for such year or portion thereof, the Seller Representative shall cause the relevant “partnership representative” or “designated individual” (as those terms are defined by the Code and applicable Treasury Regulations) of any such of the Acquired Entities to cause such Acquired Entity or Acquired Entities to make a push-out election pursuant to Section 6226 of the Code, to the extent permissible under the Code and the Treasury Regulations; provided, however, that the Seller Representative shall consult with Buyer before making any such election to confirm Buyer’s consent with such election. To the extent such an election cannot be made, the remainder of this Section 7.11(e) shall control with respect to such audit.
Appears in 1 contract
Sources: Securities Purchase Agreement (J&j Snack Foods Corp)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then Closing Date, the following provisions of this Section 8.4(a) will apply Company shall, and prior to the handling of such claim. For purposes of this AgreementClosing Date, "Contest" means any auditBAT shall, court proceeding or promptly notify the other dispute with respect to any Tax matter that affects OrbNav's Membership Interest Party in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser writing of any written notice of such Contesta proposed assessment or claim in an audit or administrative or judicial proceeding involving the other Party which, but in no event later than 15 days prior if determined adversely to the time taxpayer, would be grounds for indemnification under this Section 7; provided, however, that a written response failure to give such notice will not affect the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case Shareholders’ or the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNavCompany’s right, as the case may be, shall not be liable to indemnification hereunder, except to the Purchaser extent, if any, that, but for such failure, the other Party could have avoided or contested the Tax liability in question.
(b) In the case of an audit or administrative or judicial proceeding that relates to any period ended on or before the Closing Date, provided that within 30 days after the Shareholders receive the written notice from Company, and prior to taking any action with respect to such audit or administrative or judicial proceeding, the Shareholders acknowledges in writing the Shareholders’ liability under Section7.3(a) of this Agreement to hold the Company harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to such period, except to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shallprovided otherwise in Section 7.5(c) below, at their election, The Shareholders shall have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the Shareholders’ own expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding. The Company also may participate in any such audit or proceeding at the Company’s expense and, including settlement if the Shareholders do not assume the defense of any such audit or proceeding, the Company may, without any effect to the Company’s right to indemnification under this Section 7, defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days’ prior written notice to the Shareholders setting forth the terms and conditions of such settlement.
(c) With respect to a proposed adjustment for which both the Shareholders (as evidenced by the Shareholders’ acknowledgment under this Section 7.5) and the Company could be liable, or which involves an adjustment to a period ended on or before the Closing Date or a change of accounting method or other disposition thereofissue that recurs for any post Closing period (whether or not the subject of an audit or proceeding at such time), provided(i) each Party may participate in the audit or proceeding, however, and (ii) the audit or proceeding shall be controlled by that Orbital and OrbNav will keep Party which would bear the Purchaser informed burden of the progress and disposition greater portion of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct sum of the Contest at its expenseadjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, and choice of judicial forum) in situations in which case no settlement or compromise of separate issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of are otherwise controlled hereunder by the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionShareholders.
Appears in 1 contract
Sources: Stock Exchange Agreement (Tree Top Industries, Inc.)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Sellers’ Representative in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or the Company which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article VI; provided, however, that the failure to give such Contestnotice will not affect the Purchaser’s right to indemnification under this Article VI except to the extent, if any, that, but for such failure, the Sellers could have avoided all or a portion of the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case may beof an audit or administrative or judicial proceeding that relates to taxable periods ending on or before the Closing Date, shall not be liable to the Purchaser provided that, and only to the extent that Orbital's or OrbNav's position is actually prejudiced that, the Sellers acknowledge in writing their liability under this Agreement to hold the Purchaser and the Company harmless against the full amount of any adjustment which may be made as a result thereof. Orbital and OrbNav shallof such audit or proceeding, at their election, the Sellers’ Representative shall have the right at his expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding; the Purchaser also may participate in any such audit or proceeding at its own expense and, if the Sellers’ Representative does not assume the defense of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including settlement settling such audit or other disposition thereofproceeding after fifteen days prior written notice to the Sellers’ Representative setting forth the terms and conditions of settlement. Notwithstanding anything to the contrary contained in Section 8.05, in the event that issues relating to a potential adjustment for which the Sellers have acknowledged liability are required to be contested in the same audit or proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or proceeding with respect to the latter issues; provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control settle any such matter without the conduct consent of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consentSellers’ Representative, which consent shall not be unreasonably withheld.
(c) Notwithstanding anything to the contrary contained in Section 6.04, with respect to issues relating to a potential adjustment for which both the Sellers (as evidenced by their written acknowledgement under this Section 6.04) and the Purchaser or the Company could be liable, (i) both the Sellers’ Representative and the Purchaser may participate in the audit or proceeding; (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future taxable periods; and (iii) the controlling party shall not settle any such matter without the consent of the non-controlling party (which consent shall not be unreasonably withheld). The principle set forth in this Section 6.04(c) also shall govern for purposes of deciding any issue that must be decided jointly (including choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VI by the Purchaser and the Sellers’ Representative.
(d) With respect to any Tax audit or proceeding for a taxable period that begins before the Closing Date, neither the Purchaser nor the Sellers’ Representative shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating and the Sellers’ Representative agree to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlcooperate, and the Purchaser shall be entitled agrees to defendcause the Company to cooperate, in the defense against or compromise of any claim in any such audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Sources: Stock Purchase Agreement (Lincoln Educational Services Corp)
Contests. The Sellers and their duly appointed representatives shall have the exclusive authority to control any audit or examination by any taxing authority, to initiate any claim for refund, to amend any Tax return and to contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any liability of the Target or its Subsidiaries for Taxes reflected on any Tax returns covering any Pre-Closing Periods; PROVIDED, HOWEVER, that (a) If neither the Sellers nor any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in of their duly appointed representatives shall, without the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received prior written notice from Orbital and OrbNav consent of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consentBuyer, which consent shall not be unreasonably withheld. The Purchaser shall handle , file any claim for refund, amend any Tax Claim relating to return or enter into any settlement of any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Buyer or any of its Affiliates for any Tax period beginning after the Closing Date (a "POST-CLOSING PERIOD") or any portion of an Overlap Period beginning after the Closing Date, and (b) neither the Sellers nor any of their duly appointed representatives shall, without the prior consent of the Company included in a Buyer, which consent shall not unreasonably be withheld, enter into any settlement of any contest or otherwise compromise any issue that would increase any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Buyer of any amount under Section 9.3 unless the Sellers shall have agreed to indemnify the Buyer for payment of such Taxes. Buyer and its duly appointed representatives shall have the exclusive authority to control any audit or other proceeding relating to Taxes for any taxable year or other taxable period ending after the Closing Date; PROVIDED, HOWEVER, that (a) neither Buyer, the Target nor any of their duly appointed representatives shall, without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, enter into any settlement of any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Sellers or any of their affiliates for any Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlor any portion of the Overlap Period ending on the Closing Date, and (b) neither Buyer, the Purchaser Target nor any of their duly appointed representatives shall, without the prior consent of the Sellers, which consent shall not unreasonably be withheld, enter into any settlement of any contest or otherwise compromise any issue that would reduce any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Sellers of any amount under Section 9.3 unless Buyer shall have waived or caused to be waived for itself and the Target any right to indemnification for Taxes from the Sellers. The Sellers shall be entitled to defend, compromise or settle any Tax refund relating to the Target and its Subsidiaries to the extent such Tax Claim refund relates to any Pre-Closing Period or any portion of the Overlap Period ending on the Closing Date, unless such refund has been recorded as an Asset on the Closing Balance Sheet in its sole discretionwhich case Buyer shall be entitled thereto.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing Date, the Purchaser Buyer shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Sellers in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company or any of its Subsidiaries which, if determined adversely to the Company or relevant Subsidiary, would be grounds for indemnification under this Article 7; provided, however, that a failure to give such Contest-------- ------- notice will not affect a Buyer Indemnified Person's right to indemnification hereunder except to the extent, if any, that, but for such failure, the Sellers could have avoided the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due question.
(b) Except as provided in less than 15 daysSection 7.3(c) below, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may beof an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, the Sellers shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the their own expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding; provided -------- that within 30 days after the Sellers have received the written notice from the Buyer that is required under Section 7.3(a) above, including settlement and prior to taking any action with respect to such audit or other disposition thereofadministrative or judicial proceeding, the Sellers acknowledge in writing their joint liability under Section 7.3(b)(i) of this Agreement to hold any Buyer Indemnified Person harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to the Pre-Closing Period (to the extent such amount exceeds the Closing Balance Sheet Tax Reserve after giving effect to all prior and concurrent payments made pursuant to Section 7.3(b)(i) of this Agreement to any Buyer Indemnified Person); provided, however-------- further, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no Sellers may not agree to a settlement or compromise ------- to any such audit or proceeding that may reasonably be expected to have an adverse effect on the tax liability of issues will be made the Company for a taxable period after the Closing Date without the Purchaser's prior written consent, which consent shall not be unreasonably withheld and of the Buyer; provided, further, that if the Buyer does not consent to such -------- ------- settlement or compromise, the Sellers' liability to indemnify the Buyer as a result of such audit or proceeding shall be limited to the extent amount that the Sellers would have paid had the Buyer consented to such Contest could adversely affect settlement or compromise. The Buyer also may participate in any such audit or proceeding at its own expense and, if the Purchaser's Tax Liability (after taking into account Sellers do not assume the defense of any required Tax Indemnity Payment)such audit or proceeding, the Purchaser Buyer may defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding, without any effect to any Buyer Indemnified Person's right to indemnification under this Article 7.
(c) Notwithstanding subsection (a) above, any contest and/or settlement of any issue raised in an official inquiry, examination or proceeding that relates to the validity or effect of the Election will be conducted by the Buyer and the Company.
(d) In the case of an audit or administrative or judicial proceeding that relates to the Interim Period, the Buyer shall have the right at its own expense to control the conduct of such audit or proceeding; provided that the Contest at its expense, and in which case no Buyer may not agree to a settlement or -------- compromise in any such audit or proceeding without the prior written consent of issues will be made without Orbitalthe Seller's and OrbNav's written consentRepresentative (as defined in Section 12.5 below), which consent shall not be unreasonably withheld. The Purchaser shall handle Sellers also may participate in any Tax Claim relating such audit or proceeding at their own expense and, if the Buyer does not assume the defense of any such audit or proceeding, the Sellers may defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding, without any effect to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not Sellers' right to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionindemnification under this Article 7.
Appears in 1 contract
Sources: Share Purchase Agreement (United Rentals North America Inc)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Seller in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or of April which, if determined adversely to the taxpayer, would be grounds for indemnification under this Section 4; provided, however, that a failure to give such Contestnotice will not affect the Purchaser's right to indemnification under this Section 4 except to the extent, if any, that, but for such failure, the Seller could have avoided all or a portion of the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, provided that SHOC and the Principals acknowledge in writing their liability under this Agreement to hold the Beazer Indemnified Parties and April harmless against the full amount of any Adjustment which may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital and OrbNav shallof such audit or proceeding that relates to periods ending on or before the Closing Date (or, at their electionin the case of any taxable year that includes the Closing Date, against an Adjustment allocable under Section 4.1(a) to the portion of such year ending on or before the Closing Date), the Shareholders shall have the right at their expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that proceeding but only to the extent that such Contest could adversely affect audit or proceeding relates solely to a potential Adjustment for which the Purchaser's Tax Liability (after taking into account Shareholders have acknowledged their liability; the Purchaser also may participate in any required Tax Indemnity Payment)such audit or proceeding and, if the Shareholders do not assume the defense of any such audit or proceeding, the Purchaser will may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days’ prior written notice to the Shareholders setting forth the terms and conditions of settlement. In the event that issues relating to a potential Adjustment for which the Shareholders and the Principals have acknowledged their liability are required to be dealt with in the same proceeding as separate issues relating to a potential Adjustment for which the Purchaser would be liable, the Purchaser shall have the right to control the conduct of the Contest right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential Adjustment for which both the Shareholders and the Principals (as evidenced by its acknowledgment under this Section 4.4) and the Purchaser or April or High View could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the Adjustment and any corresponding Adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which case no settlement separate issues are otherwise controlled under this Section 4 by the Purchaser and the Shareholders.
(d) Neither the Purchaser nor the Shareholders shall enter into any compromise or compromise agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of issues will be made without Orbital's and OrbNav's written consentthe other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating and the Shareholders agree to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlcooperate, and the Purchaser shall be entitled agrees to defendcause April and High View to cooperate, in the defense against or compromise of any claim in any audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Assets and Stock (Beazer Homes Usa Inc)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted Notwithstanding anything in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply Agreement to the handling of such claim. For purposes of this Agreementcontrary (including Section 8.4), "Contest" means any audit, court proceeding or other dispute with respect (i) Buyer agrees to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav HTA Holdings of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Company or its Affiliates, Buyer or any of Buyer’s Affiliates of any written notice asserting any claim, or the commencement of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 daysany action, in respect of which case the Purchaser shall give written notice an indemnity is reasonably expected to Orbital and OrbNav be sought by Buyer under Article VIII as soon as practicable. If the Purchaser fails a result of a breach of a representation or warranty set forth in Section 3.17 or under Section 8.2(d) (a “Tax Indemnity Claim”); provided, that failure to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser release any Indemnifying Party from any of its obligations under Article VIII except to the extent that Orbital's or OrbNav's position the Indemnifying Party is actually materially prejudiced as a result thereof. Orbital by such failure and OrbNav shall, at their election, have the right to represent the interests (ii) each of the Company HTA Holdings Owners and the Charity agree to give written notice to Buyer of the receipt by the HTA Holdings Owners (or their direct or indirect owners or Affiliates) or the Charity, as applicable, of any Action that could reasonably be expected to result in any Contest relating an adjustment to the Tax Adjustment Amount (a “Tax matter for which Orbital or OrbNav may be required to make Adjustment Claim,” and together with a Tax Indemnity PaymentClaim, a “Tax Claim”); provided, that failure to employ counsel comply with the foregoing shall not release Buyer from any of Orbital's and OrbNav's choice at its obligations under Section 6.7(e) except to the expense of Orbital and OrbNav and to extent that Buyer is materially prejudiced by such failure. Buyer shall control the conduct contest or resolution of such Contest, including settlement or other disposition thereof, any Tax Indemnity Claim and any matter in any Tax Adjustment Claim that could result in an adjustment to the Tax Adjustment Amount; provided, however, that Orbital and OrbNav will keep Buyer shall obtain the Purchaser informed prior written consent of HTA Holdings (in the progress and disposition case of a Tax Indemnity Claim) or the Contest and no settlement HTA Holdings Owners or compromise the Charity, as applicable (in the case of issues will be made without the Purchaser's written consent, a Tax Adjustment Claim)) (which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which each case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle , conditioned or delayed) before entering into any settlement of a claim or ceasing to defend such claim; and, provided further, that HTA Holdings (in the case of a Tax Claim relating to any Indemnity Claim) or the HTA Holdings Owners or the Charity, as applicable (in the case of a Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlAdjustment Claim), and the Purchaser shall be entitled to defendparticipate in the defense of such claim and to employ counsel of such Person’s choice for such purpose, compromise or settle the fees and expenses of which separate counsel shall be borne solely by such Tax Claim in its sole discretionPerson.
Appears in 1 contract
Contests. (ai) If any claim for Tax Sellers and Buyer agree, in each case at no cost to the other party, to cooperate with respect to OrbNavthe other and the other's Membership Interest is asserted representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other party, during normal business hours, all books, records, returns, documents, files, other information (including, without limitation working papers and schedules), officers or employees (without substantial interruption of employment) or other relevant information necessary or useful in connection with any Contest (as defined below) against requiring any such books, records and files. Sellers shall, at their election, have the right to represent a Target Company's interests in any Contest relating to a Tax Indemnitee matter arising in, or related to, a Pre-Closing Period to the extent such Contest is in connection with any Taxes for which Sellers may be liable pursuant to Section 10.2 hereof, to employ counsel of their choice at their expense and to control the conduct of such Contest, including Settlement or Other Disposition thereof; provided, however, that would result in Buyer shall have the indemnification right to consult with Sellers regarding any such Contest that may affect a Target Company for any periods ending after the Closing Date, at Buyer's own expense, and provided further, that any settlement or other disposition of any such Tax Indemnitee Contest may only be made with the consent of Buyer, which consent will not be unreasonably withheld. In connection with any Contest which is controlled by Orbital or OrbNav Sellers pursuant to this Section 8 then 9.5(b), no Seller shall, without the following provisions prior written consent of this Section 8.4(aBuyer (which consent shall not be unreasonably withheld), (A) will apply make any election, change any annual accounting period, or adopt or change any accounting method if such election, adoption or change would have the effect of increasing the tax liability of Buyer, or its Affiliates or any of the Target Companies in any Tax Period ending after the Closing Date, or (B) file any amended return, enter into any closing agreement, surrender any right to claim a refund of taxes, consent to any extension or waiver of the limitation period applicable to any tax claim or assessment relating to the handling Target Companies or take any action, if such amendment, agreement, settlement, surrender, consent of such claim. For purposes other action would have the effect, directly or indirectly, of this Agreementincreasing the liability for Taxes of Buyer, "Contest" means its Affiliates, or any audit, court proceeding of the Target Companies for or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest Period ending after the Closing Date. Buyer shall not, without the prior written consent of Seller (which consent shall not be unreasonably withheld), (A) make any election, change any annual accounting period, or adopt or change any accounting method if such election, adoption or change would have the effect of increasing liability for Taxes in any Tax Period ending on or before the Company Closing Date, or (B) file any amended return, enter into any closing agreement, surrender any right to claim a refund of taxes, consent to any extension or waiver of the limitation period applicable to any tax claim or assessment relating to the Target Companies or take any action, if such amendment, agreement, settlement, surrender, consent of other action would have the effect, directly or indirectly, of increasing the liability for Taxes for or with respect to any Tax IndemniteePeriod ending on or before the Closing Date. Notwithstanding anything herein to the contrary, Buyer shall the right to control any Contest with respect to Straddle Periods of the Target Companies.
(ii) Unless the Purchaser has Sellers have previously received written notice from Orbital and OrbNav Buyer or the Target Companies of the existence of such a Contest, the Purchaser Sellers shall give written notice to Orbital and OrbNav Buyer of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNavBuyer's responsibility under pursuant to this Section 8 as soon as practicable after Agreement within twenty (20) days from the date of receipt by the Purchaser a Seller of any written notice of such Contest by a Taxing Authority; provided that failure to give such notice shall relieve Buyer of any liability with respect to such Contest unless Buyer was otherwise aware of such Contest or the failure to give such notice did not result in additional expenses or otherwise prejudice the Buyer. Unless the Buyer has previously received written notice from Sellers of the existence of a Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser Buyer shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests Sellers of the Company in existence of any Contest relating to a Tax matter for which Orbital or OrbNav Sellers may be required to make a Tax Indemnity Payment, to employ counsel have responsibility within twenty (20) days from the receipt by the Buyer of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct any written notice of such Contest, including settlement or other disposition thereof, provided, however, Contest by a Taxing Authority; provided that Orbital and OrbNav will keep the Purchaser informed failure to give such notice shall relieve Sellers of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that any liability with respect to the extent such Contest could adversely affect unless the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), Insider Stockholders were otherwise aware of such Contest or the Purchaser will have the right failure to control the conduct of the Contest at its expense, and give such notice did not result in which case no settlement additional expenses or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionotherwise prejudice Sellers.
Appears in 1 contract
Sources: Stock Purchase Agreement (Valassis Communications Inc)
Contests. (a) If Subject to the rights of insurers under policies of -------- insurance maintained pursuant to Section 16 of the Charter, the Charterer shall have the right, at its sole cost and expense, to investigate, and the right in its sole discretion to defend or compromise, any claim Claim for Tax which indemnification is sought under this Section 13.1, and the Indemnitee shall cooperate, at the Charterer's expense, with all reasonable requests of the Charterer in connection therewith. The Charterer will provide the Indemnitee with such information not within the control of such Indemnitee, as is in the Charterer's control or is reasonably available to the Charterer, which such Indemnitee may reasonably request and shall otherwise cooperate with such Indemnitee so as to enable such Indemnitee to fulfill its obligations under this Section 13.
1. Where the Charterer or the insurers under a policy of insurance maintained by the Charterer undertake the defense of an Indemnitee with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital Claim, no additional legal fees or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling expenses of such claim. For purposes Indemnitee in connection with the defense of this Agreement, "Contest" means any audit, court proceeding such claim shall be indemnified hereunder unless such fees or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in expenses were incurred at the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav request of the existence of Charterer or such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, insurers; provided, however, that Orbital if (i) in the written opinion of counsel to such -------- ------- Indemnitee an actual or potential material conflict of interest exists where it is advisable for such Indemnitee to be represented by separate counsel or (ii) such Indemnitee has been indicted or otherwise charged in a criminal complaint in connection with a Claim not excluded by Section 13.1(a) and OrbNav will keep such Indemnitee informs the Purchaser informed Charterer that such Indemnitee desires to be represented by separate counsel, the reasonable fees and expenses of such separate counsel shall be borne by the Charterer. Subject to the requirements of any policy of insurance, an Indemnitee may participate at its own expense in any judicial proceeding controlled by the Charterer pursuant to the preceding provisions; provided that -------- such party's participation does not, in the reasonable opinion of the progress independent counsel appointed by the Charterer or its insurers to conduct such proceedings, significantly interfere with such control; and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent such participation shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have constitute a waiver of the right to control receive the conduct indemnification provided in this Section 13.1. Notwithstanding anything to the contrary contained herein, (x) the Charterer shall not under any circumstances be liable for the fees and expenses of more than one counsel for each of (i) the Owner Participant, the Owner Trustees and the Owner Trust (and their respective successors and permitted assigns, agents and servants) and (ii) the Loan Participants and the Indenture Trustee (and their respective successors and permitted assigns, agents and servants), and (y) during the continuance of a specified Charter Event of ---------------- Default, the Charterer shall not compromise any Claim without the consent of the Contest at its expense------- applicable Indemnitee, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which such consent shall not to be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretion.
Appears in 1 contract
Sources: Participation Agreement (Mobil Corp)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital Closing, Buyer or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNavStockholders, as the case may be, shall not be liable promptly notify the other Party in writing of the commencement of any audit, examination or proceeding or of any claim or other proposed change or adjustment of which it or any of its Affiliates has been informed in writing by any Tax authority which, if determined adversely to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a taxpayer, may result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests in liability of the Company other Party under Article VII (each, a "Tax Claim") describing in reasonable detail the nature of the Tax Claim and including copies of any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement notices or other disposition thereof, documents received from the Tax authority; provided, however, that Orbital the failure to timely give such notice will not affect the indemnified party's right to indemnification under Article VII except to the extent the indemnifying party is materially prejudiced by such delay or omission.
(b) In the case of a Tax Claim that relates to Tax periods ending on or before the Closing Date, Stockholders shall have the right at their expense to participate in and OrbNav will keep control the Purchaser informed conduct of any audit or proceeding, but only to the progress extent that such audit or proceeding relates to a potential adjustment for which Stockholders may be liable; Buyer also may participate in any such audit or proceeding. If Stockholders do not assume the defense of any such audit or proceeding within 30 business days after Buyer gives written notice of such Tax Claim to the Stockholders, Buyer may defend the same in such manner as it may deem appropriate.
(c) In the case of a Tax Claim that relates to an Interim Tax Period, the Parties shall jointly control any audit or proceeding, and disposition of the Contest and there shall be no settlement or compromise of issues will be made with respect thereto without the Purchaser's prior written consentconsent of both such parties, which consent shall not unreasonably be unreasonably withheld and providedwithheld.
(d) In the event that issues relating to a potential adjustment for which Stockholders may be liable are required to be dealt with in the same audit or proceeding as separate issues relating to a potential adjustment for which Buyer may be liable, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will Stockholders shall have the right right, at their expense, to control the conduct of audit or proceeding with respect to the Contest former issues, and Buyer shall have the right, at its expense, and in which case no settlement to control the audit or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating proceeding with respect to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionlatter issues.
Appears in 1 contract
Contests. (ai) If any claim for Tax with respect to OrbNav's Membership Interest is asserted After the Closing Date, Seller and Buyer each shall notify the other party in a Contest writing within ten (as defined below10) against days of the commencement of any Tax Indemnitee that audit or administrative or judicial proceeding affecting the Taxes of any of Panhandle or the Panhandle Subsidiaries that, if determined adversely to the taxpayer (the "TAX INDEMNIFIED PARTY") or after the lapse of time would result be grounds for indemnification under this Section 5.6 by the other party (the "TAX INDEMNIFYING PARTY" and a "TAX CLAIM"). Such notice shall contain factual information describing any asserted Tax liability in the indemnification reasonable detail and shall include copies of any notice or other document received from any Tax authority in respect of any such asserted Tax Indemnitee by Orbital or OrbNav pursuant liability. Failure to give such notification shall not affect the indemnification provided in this Section 8 then the following provisions of this Section 8.4(a) will apply 5.6 except to the handling extent the Tax Indemnifying Party shall have been prejudiced as a result of such claimfailure (except that the Tax Indemnifying Party shall not be liable for any expenses incurred during the period in which the Tax Indemnified Party failed to give such notice). For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestThereafter, the Purchaser Tax Indemnified Party shall give written notice deliver to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 Indemnifying Party, as soon promptly as practicable after the receipt by the Purchaser of any written notice of such Contest, possible but in no event later than 15 ten (10) days prior to after the time that a written response to Tax Indemnified Party's receipt thereof, copies of all relevant notices and documents (including court papers) received by the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as Tax Indemnified Party.
(ii) In the case may beof an audit or administrative or judicial proceeding involving any asserted liability for Taxes relating to any Taxable years or periods ending on or before the Closing Date, Seller shall not be liable to have the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shallright, at their electionits expense, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, proceeding; provided, however, that Orbital and OrbNav will keep if Seller does not timely take control of such audit or proceeding, Buyer may, at its expense, control the Purchaser informed conduct of the progress and disposition audit or proceeding. In the case of the Contest and no settlement an audit or compromise of issues will be made without the Purchaser's written consentadministrative or judicial proceeding involving any asserted liability for Taxes relating to any Straddle Period, which consent Buyer shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right right, at its expense, to control the conduct of such audit or proceeding; PROVIDED, HOWEVER, that (A) Buyer shall keep Seller reasonably informed with respect to the Contest status of such audit or proceeding and provide Seller with copies of all written correspondence with respect to such audit or proceeding in a timely manner and (B) if such audit or proceeding would be reasonably expected to result in a material increase in Tax liability of Panhandle or the Panhandle Subsidiaries for which Seller would be liable under this Section 5.6, Seller may participate in the conduct of such audit or proceeding at its own expense.
(iii) In the case of an audit or administrative or judicial proceeding involving any asserted liability for Taxes relating to any Taxable years or periods beginning after the Closing Date, Buyer shall have the right, at its expense, to control the conduct of such audit or proceeding.
(iv) Buyer and Seller shall reasonably cooperate in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle connection with any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlClaim, and such cooperation shall include the Purchaser shall be entitled provision to defend, compromise or settle the Tax Indemnifying Party of records and information which are reasonably relevant to such Tax Claim in its sole discretionand making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Panhandle Eastern Pipe Line Co)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav promptly notify the Seller in writing of (i) the existence initiation of any Contest relating to audit or other examination by a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser taxing authority of any Pre-Closing Period and (ii) any written notice of such Contesta proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or any member of the Target Group which, but in no event later than 15 days prior if determined adversely to the time taxpayer, would be grounds for indemnification under this Article VII; provided, however, that a written response the failure to give such notice will not affect the Purchaser’s right to indemnification under this Article VII except to the written extent, if any, that such failure to promptly provide notice is required, unless such written notice is received and a written response is due materially affected the ability of the Seller to successfully avoid or materially reduce the Tax liability in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case may beof an audit or administrative or judicial proceeding that relates to Pre-Closing Period, the Seller shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right at its expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will keep proceeding; the Purchaser informed of also may participate, at its own expense, in any such audit or proceeding, provided that the progress and disposition of the Contest and no settlement Purchaser may not settle such audit or compromise of issues will be made proceeding without the Purchaser's ’s consent if the Seller does not agree prior to entering into such settlement to pay the resulting Tax. I If the Seller does not assume the control of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including settling such audit or proceeding, subject to the Seller’s consent, which shall not be unreasonable withheld or delayed. In the event that issues relating to a potential adjustment are required to be contested in the same audit or proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or proceeding with respect to the latter issues, except to the extent that it would be harmful to the Seller.
(c) With respect to issues relating to a potential adjustment for which both the Seller and the Purchaser or any member of the Target Group could be liable, (i) both the Seller and the Purchaser may participate in the audit or proceeding and (ii) the audit or proceeding shall be controlled by the Purchaser, and the Seller and Purchaser shall take commercially reasonable efforts to separate such audit or proceeding so that issues relating to each of them can be handled separately. The principle set forth in this Section 7.04(c) also shall govern for purposes of deciding any issue that must be decided jointly (including choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VII by the Purchaser and the Seller.
(d) With respect to any Tax audit or proceeding for a Pre-Closing Period, neither the Purchaser nor the Seller shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consentconsent of the other party, which consent shall not be unreasonably withheld timely and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld, delayed or conditioned. The Purchaser shall handle any Tax Claim relating and the Seller agree to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlcooperate, and the Purchaser shall be entitled agrees to defendcause its Affiliates to cooperate, in the defense against or compromise of any claim in any such audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Sources: Master Purchase Agreement (China Lodging Group, LTD)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted After the Closing, Parent will promptly notify within 10 days Siemens in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser writing of any written notice of such Contesta proposed assessment or claim in an audit or administrative or judicial proceeding of Parent or of the Company or any Company Subsidiary which, but in no event later than 15 days prior if determined adversely to the time taxpayer, would be grounds for indemnification under this Article IX; provided, however, that a written response failure to the written give such notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice will not affect Parent's right to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser indemnification under this Article IX except to the extent that Orbital's such that failure effectively precluded Siemens from avoiding all or OrbNav's position is actually prejudiced a portion of the Tax liability in question.
(b) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, provided that Siemens acknowledges in writing its liability under this Agreement to hold Parent, the Company and its Company Subsidiaries harmless against the full amount of any adjustment which may be made as a result thereof. Orbital and OrbNav shallof such audit or proceeding that relates to periods ending on or before the Closing Date (or, at their electionin the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 9.1(b) to the portion of such year ending on or before the Closing Date), Siemens shall have the right at its expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding but only to the extent that such audit or proceeding relates solely to a potential adjustment for which Siemens could be held liable hereunder; Parent also may participate in any such audit or proceeding and, including settlement if Siemens does not assume the defense of any such audit or proceeding, Parent may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving ten business days' prior written notice to Siemens setting forth the terms and conditions of settlement.
(c) With respect to issues relating to a potential adjustment for which both Siemens and Parent or the Company or any Company Subsidiary could be liable, each party may participate in the audit or proceeding.
(d) Neither Parent nor Siemens shall enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other disposition thereof, provided, however, that Orbital and OrbNav will keep party for such year or a subsequent year without the Purchaser informed written consent of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consentother party, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating Parent and Siemens agree to any Tax period of cooperate, and Parent agrees to cause the Company included and its Company Subsidiaries to cooperate, in a Pre-Closing Tax Period which Orbital and OrbNav elect the defense against or compromise of any claim in writing not to control, and the Purchaser shall be entitled to defend, compromise any audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Contests. (a) If the Purchaser, any claim other Indemnitee or any affiliate thereof receives any written notice of a pending or threatened audit, investigation, inquiry, assessment, proposed adjustment, notice of deficiency, litigation, contest or other dispute that could result in a Loss for Tax which the Indemnitor is obligated to indemnify an Indemnitee under this Indemnity Agreement (a “Claim”), the Purchaser agrees promptly to notify the Indemnitor in writing of such Claim.
(b) Upon written notice from the Indemnitor to the Purchaser within fifteen (15) days after receipt by Indemnitor of the notice referred to in Section 3(a), the Indemnitor or its designee shall have the sole right to represent the REITs in the applicable Claim at the expense of the Indemnitor, with counsel selected by the Indemnitor and in the forum selected by the Indemnitor; provided that in the case of a Claim in respect of Section 2(e), the Indemnitor or its designee shall be entitled so to represent the REITs only in a controversy with the Internal Revenue Service (the “IRS”) for a taxable period ending on or before or that includes the date of Purchaser’s acquisition of the REIT Interests pursuant to the LP Agreement (the “Purchase Date”); provided that the Purchaser or its designee shall be entitled to assume such representation if upon the Purchaser’s request the Indemnitor is not able to demonstrate to the Purchaser’s reasonable satisfaction that the Indemnitor has the financial capability to satisfy its obligations hereunder with respect to OrbNav's Membership Interest is asserted the applicable Claim. Notwithstanding the foregoing, the Indemnitor shall not be entitled to settle any controversy so conducted by the Indemnitor without the prior written consent of the Purchaser (not unreasonably to be withheld, delayed or conditioned) if such settlement could
(i) adversely affect the tax status or liability of any REIT, any Indemnitee or any affiliate thereof for any taxable period commencing on or after or that includes the Purchase Date or (ii) reasonably be expected to result in a Contest Loss to an Indemnitee for which such Indemnitee would not be indemnified under this Indemnity Agreement.
(c) The Purchaser or its designee shall contest any Claim not contested by the Indemnitor or its designee pursuant to Section 3(b), in good faith at the expense of the Indemnitor (such expenses, including reasonable legal, accounting and investigatory fees and costs, to be paid currently by the Indemnitor), with counsel selected by the Purchaser and in the forum selected by the Purchaser upon written request therefor from the Indemnitor to the Purchaser within thirty (30) days after receipt by the Indemnitor of the notice referred to in Section 3(a) accompanied by proof reasonably satisfactory to the Purchaser that the Indemnitor has the financial capability to satisfy its obligations hereunder with respect to the applicable Claim along with an opinion in form and substance reasonably satisfactory to Purchaser of independent tax counsel or accountants of recognized standing reasonably satisfactory to the Purchaser to the effect that there is substantial authority for the position that the Purchaser seeks to take in the contest of such Claim, provided that (i) the Purchaser shall not be required to pursue any appeal of a judicial decision under this Section 3(c) unless timely so requested in writing by Indemnitor and shall not be obligated to contest any Claim in the U. S. Supreme Court, and (ii) the Indemnitor shall advance to the Purchaser on an interest free basis sufficient funds to pay the applicable tax, interest, penalties and additions to tax to the extent necessary for the contest to proceed in the forum selected by the Purchaser. The Purchaser shall have the sole right to represent the REITs in any controversy with the IRS that does not constitute a Claim or that is solely with respect to taxable periods beginning after the Purchase Date and to employ counsel of its choice at its expense. The Purchaser shall (except to the extent provided in Section 3(d)) have full control over the conduct of any contest under this Section 3(c) but shall keep the Indemnitor informed as to the progress of such contest, shall provide the Indemnitor with all documents and information related to such contest reasonably requested in writing by the Indemnitor (other than tax returns (except for (i) separate company tax returns of any or all REITS or (ii) portions of tax returns that include but are not limited to any or all REITS or information therefrom compiled by the Purchaser) and other confidential information), and shall consider in good faith any suggestions made by the Indemnitor as to the conduct of such contest. Neither the Purchaser nor any REIT or any Indemnitee shall waive or extend the statute of limitations with respect to any taxable year of any REIT ending on or before or that includes the Purchase Date without the prior written consent of the Indemnitor (not unreasonably to be withheld, delayed or conditioned).
(d) Purchaser shall advise Indemnitor in writing of any settlement offer made by the IRS with respect to a controversy being contested pursuant to Section 3(c). Purchaser shall not be entitled to settle or compromise, either administratively or after the commencement of litigation, any controversy conducted by it pursuant to Section 3(c) without the prior written consent of the Indemnitor (not unreasonably to be withheld, delayed or conditioned) if such settlement or compromise (i) would give rise to an obligation of Indemnitor to indemnify an Indemnitee under this Indemnity Agreement (unless Purchaser waives payment of such indemnity) or (ii) could adversely affect the liability of Indemnitor or any direct or indirect owner of Indemnitor for taxes. If the Indemnitor requests in writing that the Purchaser accept a settlement or compromise offer (other than a settlement or compromise offer that would adversely affect the status of any Indemnitee or any affiliate (other than the REITs) as a real estate investment trust for Federal income tax purposes or a settlement or compromise offer conditioned upon agreement with respect to any matter not indemnified against by Indemnitor under this Indemnity Agreement), the Purchaser shall either accept such settlement offer or agree with the Indemnitor that the liability of the Indemnitor with respect to such Claim under this Indemnity Agreement shall be limited to an amount calculated on the basis of such settlement offer.
(e) Indemnitor shall pay any indemnity amount due under this Indemnity Agreement in respect of a Claim that is contested as set forth in Section 3(b) or 3(c), and Purchaser shall refund to Indemnitor any amount advanced by Indemnitor pursuant to clause (ii) of the proviso to the first sentence of Section 3(c) in excess of the portion thereof due to Purchaser under this Indemnity Agreement, within fifteen (15) Business Days (as defined below) against any Tax Indemnitee that would result in the indemnification LP Agreement) after the earlier of (i) a decision, judgment, decree or other order by any such Tax Indemnitee by Orbital or OrbNav court of competent jurisdiction which has become final and is not appealed pursuant to this Indemnity Agreement, or (ii) entry into a closing agreement or other settlement agreement or compromise in connection with an administrative or judicial proceeding. Indemnitor shall pay any indemnity amount due under this Indemnity Agreement in respect of a Claim other than a Claim that is contested as set forth in Section 8 then 3(b) or 3(c) within fifteen (15) Business Days (as defined in the following LP Agreement) after written demand therefor by the Purchaser accompanied by reasonable evidence of the liability for and amount of the indemnity. Late payments shall bear interest at the rate of eighteen percent (18%) per annum compounded monthly (or if less, the highest rate allowed by law).
(f) Except as provided above, the Purchaser and the other Indemnitees shall have full control over any decisions in respect of contesting or not contesting any tax matter and may pursue or not pursue administrative and/or judicial remedies and conduct any contest in any manner as they may determine, in each case in their sole and absolute discretion.
(g) The Parties shall use commercially reasonable efforts to mitigate any Loss, including by availing the REITs at the expense of the Indemnitor of the mitigation provisions of this Section 8.4(aavailable to real estate investment trusts under the Code.
(h) will apply Notwithstanding anything herein to the handling contrary, under no circumstances shall the Indemnitor be liable for any Loss: (i) incurred by any Person (as defined in the LP Agreement) other than the REITs after the earlier of (A) the day immediately prior to the last day of the calendar quarter that includes the Purchase Date or (B) the last day of the tax year of the REITs that includes the Purchase Date (regardless of when during the Survival Period such claimtaxes are assessed by the IRS) (it being understood that any tax arising from a failure to comply with Section 856(c)(4) of the Code in any quarter is incurred no sooner than the last day of the applicable quarter); or (ii) incurred by any or all of the REITs that results from a transaction (including a transaction deemed to occur for income tax purposes) that occurs after the date which is six (6) months following the Purchase Date (regardless of when during the Survival Period such taxes are assessed by the IRS); provided, however, that Indemnitor’s liability for any Loss relating to taxes shall be determined by reference to, and shall not exceed, the RP REITs’ Tax Liability Limitation (as hereinafter defined). For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute the term “RP REITs’ Tax Liability Limitation” (1) with respect to any Tax matter REIT I and REIT II shall mean the tax liabilities of the REITs that affects OrbNav's Membership Interest would have resulted had REIT I sold its assets on the Purchase Date for the value used to determine the Purchase Payments (as defined in the Company or any other Tax Indemnitee. Unless LP Agreement) under the Purchaser has previously received written notice from Orbital and OrbNav LP Agreement (such maximum tax liabilities to be determined (x) for the sake of the existence of such Contestclarity, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Paymentadditional tax arising from such sale resulting from the actual failure of either or both such REITs to qualify as a real estate investment trust within the meaning of Section 856 of the Code on or prior to the Purchase Date, and (y) without giving effect to any items of deduction or credits unrelated to such deemed sales that either or both REITs would have had available to reduce their tax liabilities resulting from such sales), and (2) with respect to REIT III and REIT IV, shall mean the Purchaser will have same as such term is defined in clause (1), but substituting “REIT III” for “REIT I” where used therein.
(i) Notwithstanding anything contained herein to the right contrary, no Specified Matter shall be treated as failing to control the conduct of the Contest at its expensebe true and correct, and in which case therefore no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser such Specified Matter shall be entitled the basis for indemnification under this Indemnity Agreement, to defendthe extent any failure of such Specified Matter to be true and correct is the result of a breach by the Partnership or any Indemnitee of any representation or covenant in any Transaction Document, compromise including any failure by the Partnership to operate in accordance with the REIT Requirements (as defined in the LP Agreement), or settle such Tax Claim as a result of any Event of Default (as defined in its sole discretionthe LP Agreement).
(j) The amount for which Indemnitor is otherwise liable hereunder shall be reduced by reason of any liability that it would not have incurred but for an Event of Default having occurred.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Seller in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Company, which, if determined adversely to the taxpayer, would be grounds for indemnification under Section 6.03; provided, however, that the failure to give such Contestnotice will not affect the Purchaser’s right to indemnification under this Agreement except to the extent, if any, that, but for such failure, the Seller would have avoided the Tax Liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case may beof an audit or administrative or judicial proceeding (a “Contest”) that relates to a Pre-Closing Period, the Seller shall not be liable to have the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shallright, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Paymentits expense, to employ counsel of Orbital's participate in and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that but only to the extent that such Contest could adversely affect relates solely to a potential adjustment for which the Purchaser's Tax Liability (after taking into account Seller has acknowledged, in writing, its liability under this Agreement to hold the Purchaser and the Company harmless against the full amount of any required Tax Indemnity Payment)adjustment which may be made as a result of such Contest. The Purchaser also may participate in any such Contest, and, if the Seller does not assume the defense of any such Contest, the Purchaser will may defend the same in such manner as it may deem appropriate, including settling such Contest after five days’ prior written notice to the Seller setting forth the terms and conditions of settlement. Notwithstanding anything to the contrary contained in this Agreement, in the event that issues relating to a potential adjustment for which the Seller has acknowledged its liability in writing are required to be contested in the same Contest as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right to control the conduct of the Contest right, at its expense, and in which to control the Contest with respect to the latter issues.
(c) In the case no settlement of a Contest that relates to a Straddle Period, or compromise of otherwise with respect to issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period a potential adjustment for which the Seller (as evidenced by its written acknowledgement of liability under this Section 6.04), on the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlone hand, and the Purchaser, on the other hand, could be liable, (i) each of the Seller and the Purchaser may participate in the Contest, and (ii) such Contest shall be entitled controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future taxable periods. The principle set forth in this Section 6.04(c) also shall govern for purposes of deciding any issue that must be decided jointly (including choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VI by the Purchaser and the Seller.
(d) Notwithstanding anything to defendthe contrary herein, the Seller shall not enter into any compromise or agree to settle such Tax Claim any claim pursuant to a Contest, which would adversely affect the Purchaser or the Company in its sole discretiona taxable period ending after the Closing Date without the prior written consent of the Purchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement (Macquarie Infrastructure CO Trust)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) shall be made against any Tax Indemnitee that would result in the indemnification or if any proceeding shall be commenced against any Indemnitee (including a written notice of such proceeding) for any such Tax Indemnitee by Orbital or OrbNav Imposition as to which Lessee reasonably may have an indemnity obligation pursuant to this Section 8 then the following provisions of 7.2, or if any Indemnitee reasonably shall determine that any Imposition for which Lessee may have an indemnity obligation pursuant to this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or 7.2 may be Orbitalpayable, such Indemnitee shall promptly (and in any event, within 30 days) notify Lessee in writing (provided that failure to so notify Lessee within 30 days shall not alter such Indemnitee's or OrbNav's responsibility rights under this Section 8 as soon as practicable after 7.2, except to the receipt by extent such failure precludes or materially adversely affects the Purchaser ability to conduct a contest of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 daysindemnified Imposition, in which case Lessee shall have no indemnification obligation hereunder to the Purchaser extent such failure precludes or materially affects their ability to conduct a contest) and shall give not take any action with respect to such claim, proceeding or Imposition without the written consent of Lessee (such consent not to be unreasonably withheld or unreasonably delayed) for 30 days after the receipt of such notice by Lessee; provided, however, that in the case of any such claim or proceeding, if such Indemnitee shall be required by law or regulation to take action prior to the end of such 30-day period, such Indemnitee shall in such notice to Orbital Lessee, so inform Lessee, and OrbNav such Indemnitee shall not take any action with respect to such claim, proceeding or Imposition without the consent of Lessee (such consent not to be unreasonably withheld or unreasonably delayed) for 10 days after the receipt of such notice by Lessee, unless the Indemnitee shall be required by law or regulation to take action prior to the end of such 10-day period. Lessee shall be entitled for a period of 30 days from receipt of such notice from the Indemnitee (or such shorter period as soon as practicablethe Indemnitee has notified Lessee is required by law or regulation for the Indemnitee to commence such contest), to request in writing that such Indemnitee contest in good faith of such Imposition, at Lessee's expense. If (x) such contest can be pursued in the Purchaser fails name of Lessee and independently from any other proceeding involving an Imposition for which Lessee has not agreed to comply indemnify such Indemnitee, (y) such contest must be pursued in the name of the Indemnitee, but can be pursued independently from any other proceeding involving an Imposition for which Lessee has not agreed to indemnify such Indemnitee or (z) the Indemnitee so requests, then Lessee shall be permitted to control the contest of such claim, provided that in the case of a contest described in any of clause (x), (y) or (z) if the Indemnitee determines in good faith that such contest by Lessee reasonably could have a material adverse impact on the business or operations of the Indemnitee and provides a written explanation to Lessee of such determination, the Indemnitee may elect to control or reassert control of the contest, and provided, that by taking control of the contest, Lessee acknowledges that it is responsible for the Imposition ultimately determined to be due by reason of such claim, and provided, further, that in determining the application of clauses (x) and (y), each Indemnitee LSI Trust No. 2001-A Participation Agreement shall take any and all reasonable steps to segregate claims for any Impositions for which Lessee indemnifies hereunder from Impositions for which Lessee is not obligated to indemnify hereunder, so that Lessee can control the contest of the former. In all other claims requested to be contested by Lessee, the Indemnitee shall control the contest of such claim, acting through counsel reasonably acceptable to Lessee. In any contest controlled by an Indemnitee, the Indemnitee shall conduct such contest in good faith. In no event shall Lessee be permitted to contest (or the Indemnitee required to contest) any claim (A) if such Indemnitee provides Lessee with a legal opinion of independent counsel that such action, suit or proceeding involves a material risk of imposition of criminal liability or will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on any Item or Items of Equipment or any part thereof unless Lessee shall have posted and maintained a bond or other security reasonably satisfactory to the relevant Indemnitee in respect to such risk, (B) if a Lease Event of Default has occurred and is continuing, unless Lessee shall have posted and maintained a bond or other security reasonably satisfactory to the relevant Indemnitee in respect of the Impositions subject to such claim and any and all expenses for which Lessee is responsible hereunder reasonably foreseeable in connection with the foregoing sentencecontest of such claim, Orbital (C) unless Lessee shall have agreed to pay and shall pay to such Indemnitee on demand all reasonable out-of-pocket costs, losses and expenses that such Indemnitee may incur in connection with contesting such Imposition, including all reasonable legal, accounting and investigatory fees and disbursements, or OrbNav(D) if such contest shall involve the payment of the Impositions prior to the contest, as unless Lessee shall provide to the case Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnitee is required to pay (with no additional net after-tax costs (including Taxes) to such Indemnitee). In addition, for Indemnitee-controlled contests and claims contested in the name of the Indemnitee in a public forum, no contest shall be required: (A) unless the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Indemnitee for which Lessee may be, shall not be liable to pay an indemnity under this Section 7.2) exceeds $75,000 and (B) unless, if requested by the Purchaser Indemnitee, the Lessee shall have provided to the extent Indemnitee an opinion of counsel selected by Lessee that Orbital's or OrbNav's position is actually prejudiced as a result thereofreasonable basis exists to contest such claim. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may In no event shall an Indemnitee be required to make a Tax Indemnity Payment, appeal an adverse judicial determination to employ the United States Supreme Court. The party conducting the contest shall consult in good faith with the other party and its counsel of Orbital's and OrbNav's choice at with respect to the expense of Orbital and OrbNav and to control the conduct contest of such Contest, including settlement claim for Impositions (or other disposition thereofclaim for refund) but the decisions regarding what actions to be taken shall be made by the controlling party in its sole judgement, provided, however, that Orbital and OrbNav will keep if the Purchaser informed Indemnitee is the controlling party, no settlement offer with respect to such claims shall be made or accepted by the Indemnitee without the prior consent of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, Lessee (which consent shall not unreasonably be unreasonably withheld withheld), and provided, provided further, that if the Indemnitee is the controlling party and Lessee recommends the acceptance of a settlement offer made by the relevant Governmental Agency and such Indemnitee rejects such settlement offer then the amount for which Lessee will be required to indemnify such Indemnitee with respect to the Taxes subject to such offer shall not exceed the amount which it would have owed if such settlement offer had been accepted. In addition, the controlling party shall keep the noncontrolling party reasonably informed as to the progress of the contest, and shall provide the noncontrolling party with a copy of (or appropriate excerpts from) any reports or claims issued LSI Trust No. 2001-A Participation Agreement by the relevant auditing agent or taxing authority to the controlling party thereof, in connection with such claim or the contest thereof. Each Indemnitee shall supply Lessee with such information and documents reasonably requested by Lessee as is necessary or advisable for Lessee to participate in any action, suit or proceeding to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Paymentpermitted by this Section 7.2(b), and Lessee shall promptly reimburse such Indemnitee for the Purchaser will have reasonable out-of-pocket expenses of supplying such information and documents. No Indemnitee shall enter into any settlement or other compromise or fail to appeal an adverse ruling with respect to any claim which is entitled to be indemnified under this Section 7.2 (and with respect to which contest is required under this Section 7.2(b)) without the prior written consent of Lessee (such consent not to be unreasonably withheld), unless such Indemnitee waives its right to control be indemnified under this Section 7.2 with respect to such claim. Notwithstanding anything contained herein to the conduct of the Contest at its expensecontrary, an Indemnitee will not be required to contest (and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent Lessee shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating permitted to contest) a claim with respect to any Tax period Imposition if (i) such Indemnitee shall waive its right to indemnification under this Section 7.2 with respect to such claim (and any claim with respect to such year or any other taxable year, the contest of which is materially adversely affected as a result of such waiver) or (ii) such Imposition is the sole result of a claim of a continuing and consistent nature, which claim has previously been resolved against the relevant Indemnitee (unless a change in law or facts has occurred since such prior adverse resolution and Lessee provides an opinion of independent tax counsel to the effect that it is more likely than not that such change in law or facts will result in a favorable resolution of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionclaim at issue).
Appears in 1 contract
Contests. (a) If any claim for Tax with respect Buyer agrees to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav Seller of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice by the Company, Buyer or any of such ContestBuyer’s Affiliates which involves the assertion of any claim, but in no event later than 15 days prior to or the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 dayscommencement of any Action, in respect of which case the Purchaser shall give written notice an indemnity may be sought by Buyer pursuant to Orbital and OrbNav as soon as practicable. If the Purchaser fails this ARTICLE VI (a “Tax Claim”); provided, that failure to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, this provision shall not be liable affect Buyer’s right to the Purchaser indemnification hereunder except to the extent that Orbital's or OrbNav's position is Seller was actually and materially prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have .
(b) Seller shall control the right to represent the interests contest or resolution of the Company in any Contest Tax Claim relating to a Pre-Closing Tax matter for which Orbital or OrbNav may be required to make Period (other than any Pre-Closing Tax Period included in a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, Straddle Period); provided, however, that Orbital and OrbNav will (i) Seller shall keep the Purchaser Buyer reasonably informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consentany such Tax Claim, which consent (ii) Buyer shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control participate in the conduct defense of the Contest any such Tax Claim at its Buyer’s sole cost and expense, and (iii) solely with respect to a Tax Claim that would adversely affect Buyer in which case no settlement or compromise a Post-Closing Tax Period, Seller shall obtain the prior written consent of issues will be made without Orbital's and OrbNav's written consent, Buyer (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Tax Claim or ceasing to defend such Tax Claim; provided however, that if Seller determines that such Tax Claim would not adversely affect Buyer in a Post-Closing Tax Period and therefore does not require Seller to obtain Buyer's prior written consent pursuant to this clause (iii), Seller shall provide written confirmation to Buyer of Seller's obligation pursuant to Section 6.03 to indemnify Buyer with respect to such Tax Claim within ten (10) days of entering into any settlement of such Tax Claim or ceasing to defend such Tax Claim. The Purchaser If Seller fails to, or does not elect to, timely exercise control over the conduct with respect to any such Tax Claim, Buyer shall handle have control over the conduct with respect to such Tax Claim; provided, however, that Seller shall have the right, but not the obligation, to participate in such defense with separate counsel of its choosing at its sole cost and expense. Buyer shall obtain the prior written consent of Seller (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Tax Claim or ceasing to defend such Tax Claim.
(c) Buyer shall control the contest or resolution of any Tax Claim relating to any Tax period a Straddle Period; provided, however, that (i) Buyer shall keep Seller reasonably informed of the Company included progress of any such Tax Claim, (ii) Seller shall have the right to participate in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle defense of any such Tax Claim in its at Seller’s sole discretioncost and expense, and (iii) Buyer shall obtain the prior written consent of Seller (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Tax Claim or ceasing to defend such Tax Claim.
Appears in 1 contract
Sources: Stock Purchase Agreement (BurgerFi International, Inc.)
Contests. (ai) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing Date, the Purchaser Buyer shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is Seller, or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by Seller shall promptly notify the Purchaser Buyer, in each case in writing, of any written notice of such Contesta proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company or its Subsidiaries which, but in no event later than 15 days prior if determined adversely to the time taxpayer, would be grounds for indemnification under this Section 5.11; provided, however, that a written response failure to the give prompt written notice is required, unless of any such written notice is received and a written response is due in less than 15 days, in which case the Purchaser claim shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser bar indemnification hereunder only to the extent such failure materially prejudices the Indemnifying Party.
(ii) Except as provided in Section 5.11(e)(iii) below, in the case of an audit or administrative or judicial proceeding that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shallrelates to any Pre-Closing Period, the Seller shall have the right, at their electionits own expense, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding, including settlement provided that within 30 days after the Seller has received notice directly, or other disposition thereofthe written notice from the Buyer that is required under Section 5.11(e)(i) above, providedand prior to taking any action with respect to such audit or administrative or judicial proceeding, howeverthe Seller acknowledges in writing its liability under Sections 5.11(a) above, subject to the limitations set forth in Section 5.11(f) of this Agreement, to hold the Buyer harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to the Pre-Closing Period and provided further, that Orbital and OrbNav will keep the Purchaser informed Seller shall not settle or agree to settle any such audit or proceeding without the written consent of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, Buyer (which consent shall not be unreasonably withheld and providedor delayed). The Buyer also may participate in any such audit or proceeding at its own expense and, further, that to if the extent Seller does not assume the defense of any such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)audit or proceeding, the Purchaser will have Buyer may defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding, without any effect on the Buyer's right to control indemnification under this Section 5.11.
(iii) With respect to a proposed adjustment for an Interim Period or for which both the conduct Seller (as evidenced by its acknowledgment under this Section 5.11(e)) and the Buyer could be liable (x) the Seller and the Buyer may each participate in the audit or proceeding, and (y) the audit or proceeding shall be controlled by the Seller or the Buyer, whichever would bear the burden of the Contest at its expensegreatest portion of the adjustment. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, and choice of judicial forum) in situations in which case no settlement or compromise of separate issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of are otherwise controlled hereunder by the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, Seller and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionBuyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Spectrasite Holdings Inc)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing Date, the Purchaser Buyer shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Sellers in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company or any of its Subsidiaries which, if determined adversely to the Company or relevant Subsidiary, would be grounds for indemnification under this Article 7; provided, however, that a -------- ------- failure to give such Contestnotice will not affect a Buyer Indemnified Person's right to indemnification hereunder except to the extent, if any, that, but for such failure, the Sellers could have avoided the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due question.
(b) [Except as provided in less than 15 days, Section 7.3(c) below,] in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may beof an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, the Sellers shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the their own expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding; provided that within 30 days after the -------- Sellers have received the written notice from the Buyer that is required under Section 7.3(a) above, including settlement and prior to taking any action with respect to such audit or other disposition thereofadministrative or judicial proceeding, provided, however, that Orbital and OrbNav will keep the Purchaser informed Sellers acknowledge in writing their joint liability under Section 7.3(b)(i) of this Agreement to hold any Buyer Indemnified Person harmless against the progress and disposition full amount of the Contest and no settlement or compromise of issues will any adjustment which may be made without as a result of such audit or proceeding that relates to the Purchaser's written consent, which consent shall not be unreasonably withheld Pre-Closing Period (to the extent such amount exceeds the Closing Balance Sheet Tax Reserve after giving effect to all prior and concurrent payments made pursuant to Section 7.3(b)(i) of this Agreement to any Buyer Indemnified Person); provided, further, that the Sellers may not -------- ------- agree to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no a settlement or compromise to any such audit or proceeding that may reasonably be expected to have an adverse effect on the tax liability of issues will be made the Company for a taxable period after the Closing Date without Orbital's and OrbNav's the prior written consent, consent of the Buyer which consent shall not be unreasonably withheld; provided, further, that if the Buyer does not consent to such settlement or -------- ------- compromise, the Sellers' liability to indemnify the Buyer as a result of such audit or proceeding shall be limited to the amount that the Sellers would have paid had the Buyer consented to such settlement or compromise. The Purchaser shall handle Buyer also may participate in any Tax Claim relating such audit or proceeding at its own expense and, if the Sellers do not assume the defense of any such audit or proceeding, the Buyer may defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding, without any effect to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not Buyer Indemnified Person's right to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionindemnification under this Article 7.
Appears in 1 contract
Sources: Share Purchase Agreement (United Rentals North America Inc)
Contests. (ai) If a Party entitled to indemnification pursuant to Section 5.14(i) receives any claim for communication from a Taxing Authority concerning any pending or threatened audit, claim, demand or administrative or judicial proceeding relating to any Taxes or Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would Return which might result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav Party being entitled to an indemnity payment pursuant to this Section 8 then the following provisions of this Section 8.4(a5.14(i) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any (a “Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClaim”), the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter Party that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contestentitled to indemnification shall promptly, but and in no event later than 15 days prior ten (10) Business Days after receipt of any such communication, provide to the time Party that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make provide indemnification written notice specifying in reasonable detail the basis for such Tax Claim and shall include a Tax Indemnity Payment, to employ counsel copy of Orbital's and OrbNav's choice at the expense relevant portion of Orbital and OrbNav and to control any correspondence received from the conduct Taxing Authority in respect of such Contest, including settlement or other disposition thereof, Tax Claim; provided, however, that Orbital the failure of such Party seeking indemnification to give such prompt and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent detailed notice shall not relieve the Party that may be unreasonably withheld required to provide indemnification of any of its obligations under Section 5.14(i), except if, and provided, further, that only to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)that, the Purchaser will have Party that may be required to provide indemnification is prejudiced by such failure (as determined by a court of competent jurisdiction).
(ii) Sellers shall control, in their sole discretion, the right defense or prosecution of any Tax Claim relating to control the conduct of the Contest Acquired Companies for any Pre-Closing Tax Period; provided, however, that Purchasers shall be entitled to participate in any such Tax Claim at its their own cost and expense, and in which case no settlement or compromise Sellers shall not, without the prior written consent of issues will be made without Orbital's and OrbNav's written consentPurchasers, which consent shall not be unreasonably withheld. The Purchaser , conditioned or delayed, enter into any compromise or settlement of any such Tax Claim that is reasonably likely to increase Purchasers’ or the Acquired Companies’ liability for Taxes of the Acquired Companies for a Post-Closing Tax Period.
(iii) Purchasers shall handle control, in their sole discretion, the defense or prosecution of any Tax Claim relating to the Acquired Companies that is not covered by clause (ii); provided, however, that in the case of any such Tax period of the Company included in Claim with respect to a PreStraddle Period or with respect to a Post-Closing Tax Period for which Orbital any Seller may have liability under this Agreement, (A) Purchasers shall defend or prosecute the applicable Tax Claim diligently and OrbNav elect in writing not to controlgood faith; (B) Purchasers shall not, and without the Purchaser shall be entitled to defendprior written consent of Sellers, enter into any compromise or settle settlement of any such Tax Claim; (C) Purchasers shall promptly inform Sellers of all developments and events relating to such Tax Claim in its sole discretion(including promptly responding to questions and information requests and promptly providing to Sellers copies of relevant correspondence to or from any applicable Taxing Authorities relating to such Tax Claim); (D) Sellers or their authorized representatives shall be entitled, at the expense of Sellers, to attend, observe and participate in, but not control, all conferences, meetings and proceedings relating to such Tax Claim; and (E) Purchasers shall take into account all reasonable comments received by Sellers with respect to the defense or prosecution of such Tax Claim.
Appears in 1 contract
Contests. (ai) If Purchaser shall notify SALD in writing promptly (and in any event within no more than 10 Business Days) upon receipt by Purchaser, any of its Affiliates or the Transferred Subsidiaries of notice of any pending or threatened Federal, state, local or non-U.S. income or franchise tax audits or assessments or notification of any claim for taxation which may materially affect the Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav liabilities of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter Transferred Subsidiaries for which Orbital SALD or OrbNav may the Entity Sellers would be required to make indemnify a Tax Indemnity Payment, Purchaser Indemnified Party pursuant to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, Section 8.4; provided, however, that Orbital a failure to give such notice shall not affect such Purchaser Indemnified Party's rights to indemnification thereunder, except to the extent, if any, that, but for such failure, SALD or the Entity Sellers could have avoided or reduced the Tax liability in question. SALD shall have the right to control, and OrbNav will keep in that connection, shall be empowered by Purchaser with the necessary authority for, the conduct of any audit, or the prosecution or defense of any such audit or claim or administrative or judicial proceeding relating to any Pre-Closing Period (other than an Interim Period (as defined in Section 8.4(a)), the treatment of which is discussed in Section 5.6(b)(ii)), and to employ counsel of its own choosing and at its expense. Notwithstanding the foregoing, SALD may not settle, either administratively or after the commencement of litigation, any claim for Taxes which would adversely affect the liability for Taxes of Purchaser informed or the Transferred Subsidiaries for any period after the Closing Date (including, but not limited to, the imposition of income tax deficiencies, the progress and disposition reduction of asset basis or cost adjustments, the Contest and no settlement lengthening of any amortization or compromise depreciation periods, the denial of issues will be made any amortization or depreciation deductions, the reduction of loss or credit carryforwards or the denial or reduction of any credit or similar item) without the prior written consent of Purchaser's written consent, which consent shall not be unreasonably withheld or delayed. As of the date of this Agreement, Purchaser and its representatives shall be entitled, at the expense of Purchaser, to participate in any such audit, or the prosecution or defense of any such audit or claim or administrative or judicial proceeding (including, but not limited to the audits of Poloco, S.A. currently being conducted by the French taxing authorities (the "French Tax Audit")). If SALD does not assume the responsibility for the conduct or defense of any such audit or claim or proceeding promptly (and in any event within no more than 10 Business Days), Purchaser (or its representatives) may, at SALD's reasonable expense and without any effect on the rights of any Purchaser Indemnified Party to indemnification under Section 8.4, defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding.
(ii) SALD shall be entitled, at the sole expense of SALD, to participate in the prosecution or the defense of any claim for Taxes for an Interim Period which may be subject to indemnification pursuant to Section 8.4, provided, furtherhowever, that that, notwithstanding the foregoing, SALD shall not be entitled to settle or otherwise compromise, either administratively or after the extent commencement of litigation, any such Contest could adversely affect Tax claim without the Purchaser's Tax Liability prior written consent of Purchaser (after taking into account any required Tax Indemnity Payment), which consent shall not be unreasonably withheld or delayed) if the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise would result in any additional liability for Taxes of issues will Purchaser or the Transferred Subsidiaries for such Interim Period or any period after the Closing Date (including, but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of any amortization or depreciation deductions, the reduction of loss or credit carryforwards or the denial or reduction of any credit or similar item) which would not be made fully indemnified by SALD and the Entity Sellers under Section 8.4. Purchaser and the Transferred Subsidiaries shall not agree to settle any Tax claim for the portion of the year or period ending on the Closing Date which may be subject to indemnification by SALD or the Entity Sellers under Section 8.4 without Orbital's and OrbNav's the prior written consentconsent of SALD, which consent shall not be unreasonably withheldwithheld or delayed. The Except as otherwise provided in Section 5.6(a) and this Section 5.6(b), Purchaser shall handle control at its own expense any Tax Claim relating and all audit, administrative and judicial proceedings related to any Tax period the Taxes of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionTransferred Subsidiaries.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Polo Ralph Lauren Corp)
Contests. (a) If the Purchaser, any claim other Indemnitee or any affiliate thereof receives any written notice of a pending or threatened audit, investigation, inquiry, assessment, proposed adjustment, notice of deficiency, litigation, contest or other dispute that could result in a Loss for Tax which the Indemnitor is obligated to indemnify an Indemnitee under this Indemnity Agreement (a “Claim”), the Purchaser agrees promptly to notify the Indemnitor in writing of such Claim.
(b) Upon written notice from the Indemnitor to the Purchaser within fifteen (15) days after receipt by Indemnitor of the notice referred to in Section 3(a), the Indemnitor or its designee shall have the sole right to represent the REITs in the applicable Claim at the expense of the Indemnitor, with counsel selected by the Indemnitor and in the forum selected by the Indemnitor; provided that in the case of a Claim in respect of Section 2(e), the Indemnitor or its designee shall be entitled so to represent the REITs only in a controversy with the Internal Revenue Service (the “IRS”) for a taxable period ending on or before or that includes the date of Purchaser’s acquisition of the REIT Interests pursuant to the LP Agreement (the “Purchase Date”); provided that the Purchaser or its designee shall be entitled to assume such representation if upon the Purchaser’s request the Indemnitor is not able to demonstrate to the Purchaser’s reasonable satisfaction that the Indemnitor has the financial capability to satisfy its obligations hereunder with respect to OrbNav's Membership Interest is asserted the applicable Claim. Notwithstanding the foregoing, the Indemnitor shall not be entitled to settle any controversy so conducted by the Indemnitor without the prior written consent of the Purchaser (not unreasonably to be withheld, delayed or conditioned) if such settlement could (i) adversely affect the tax status or liability of either REIT, any Indemnitee or any affiliate thereof for any taxable period commencing on or after or that includes the Purchase Date or (ii) reasonably be expected to result in a Contest Loss to an Indemnitee for which such Indemnitee would not be indemnified under this Indemnity Agreement.
(c) The Purchaser or its designee shall contest any Claim not contested by the Indemnitor or its designee pursuant to Section 3(b), in good faith at the expense of the Indemnitor (such expenses, including reasonable legal, accounting and investigatory fees and costs, to be paid currently by the Indemnitor), with counsel selected by the Purchaser and in the forum selected by the Purchaser upon written request therefor from the Indemnitor to the Purchaser within thirty (30) days after receipt by the Indemnitor of the notice referred to in Section 3(a) accompanied by proof reasonably satisfactory to the Purchaser that the Indemnitor has the financial capability to satisfy its obligations hereunder with respect to the applicable Claim along with an opinion in form and substance reasonably satisfactory to Purchaser of independent tax counsel or accountants of recognized standing reasonably satisfactory to the Purchaser to the effect that there is substantial authority for the position that the Purchaser seeks to take in the contest of such Claim, provided that (i) the Purchaser shall not be required to pursue any appeal of a judicial decision under this Section 3(c) unless timely so requested in writing by Indemnitor and shall not be obligated to contest any Claim in the U. S. Supreme Court, and (ii) the Indemnitor shall advance to the Purchaser on an interest free basis sufficient funds to pay the applicable tax, interest, penalties and additions to tax to the extent necessary for the contest to proceed in the forum selected by the Purchaser. The Purchaser shall have the sole right to represent the REITs in any controversy with the IRS that does not constitute a Claim or that is solely with respect to taxable periods beginning after the Purchase Date and to employ counsel of its choice at its expense. The Purchaser shall (except to the extent provided in Section 3(d)) have full control over the conduct of any contest under this Section 3(c) but shall keep the Indemnitor informed as to the progress of such contest, shall provide the Indemnitor with all documents and information related to such contest reasonably requested in writing by the Indemnitor (other than tax returns (except for (i) separate company tax returns of either or both REITS or (ii) portions of tax returns that include but are not limited to either or both REITS or information therefrom compiled by the Purchaser) and other confidential information), and shall consider in good faith any suggestions made by the Indemnitor as to the conduct of such contest. Neither the Purchaser nor any REIT or any Indemnitee shall waive or extend the statute of limitations with respect to any taxable year of either REIT ending on or before or that includes the Purchase Date without the prior written consent of the Indemnitor (not unreasonably to be withheld, delayed or conditioned).
(d) Purchaser shall advise Indemnitor in writing of any settlement offer made by the IRS with respect to a controversy being contested pursuant to Section 3(c). Purchaser shall not be entitled to settle or compromise, either administratively or after the commencement of litigation, any controversy conducted by it pursuant to Section 3(c) without the prior written consent of the Indemnitor (not unreasonably to be withheld, delayed or conditioned) if such settlement or compromise (i) would give rise to an obligation of Indemnitor to indemnify an Indemnitee under this Indemnity Agreement (unless Purchaser waives payment of such indemnity) or (ii) could adversely affect the liability of Indemnitor or any direct or indirect owner of Indemnitor for taxes. If the Indemnitor requests in writing that the Purchaser accept a settlement or compromise offer (other than a settlement or compromise offer that would adversely affect the status of any Indemnitee or any affiliate (other than the REITs) as a real estate investment trust for Federal income tax purposes or a settlement or compromise offer conditioned upon agreement with respect to any matter not indemnified against by Indemnitor under this Indemnity Agreement), the Purchaser shall either accept such settlement offer or agree with the Indemnitor that the liability of the Indemnitor with respect to such Claim under this Indemnity Agreement shall be limited to an amount calculated on the basis of such settlement offer.
(e) Indemnitor shall pay any indemnity amount due under this Indemnity Agreement in respect of a Claim that is contested as set forth in Section 3(b) or 3(c), and Purchaser shall refund to Indemnitor any amount advanced by Indemnitor pursuant to clause (ii) of the proviso to the first sentence of Section 3(c) in excess of the portion thereof due to Purchaser under this Indemnity Agreement, within fifteen (15) Business Days (as defined below) against any Tax Indemnitee that would result in the indemnification LP Agreement) after the earlier of (i) a decision, judgment, decree or other order by any such Tax Indemnitee by Orbital or OrbNav court of competent jurisdiction which has become final and is not appealed pursuant to this Indemnity Agreement, or (ii) entry into a closing agreement or other settlement agreement or compromise in connection with an administrative or judicial proceeding. Indemnitor shall pay any indemnity amount due under this Indemnity Agreement in respect of a Claim other than a Claim that is contested as set forth in Section 8 then 3(b) or 3(c) within fifteen (15) Business Days (as defined in the following LP Agreement) after written demand therefor by the Purchaser accompanied by reasonable evidence of the liability for and amount of the indemnity. Late payments shall bear interest at the rate of eighteen percent (18%) per annum compounded monthly (or if less, the highest rate allowed by law).
(f) Except as provided above, the Purchaser and the other Indemnitees shall have full control over any decisions in respect of contesting or not contesting any tax matter and may pursue or not pursue administrative and/or judicial remedies and conduct any contest in any manner as they may determine, in each case in their sole and absolute discretion.
(g) The Parties shall use commercially reasonable efforts to mitigate any Loss, including by availing the REITs at the expense of the Indemnitor of the mitigation provisions of this Section 8.4(aavailable to real estate investment trusts under the Code.
(h) will apply Notwithstanding anything herein to the handling contrary, under no circumstances shall the Indemnitor be liable for any Loss: (i) incurred by any Person (as defined in the LP Agreement) other than the REITs after the earlier of (A) the day immediately prior to the last day of the calendar quarter that includes the Purchase Date or (B) the last day of the tax year of the REITs that includes the Purchase Date (regardless of when during the Survival Period such claimtaxes are assessed by the IRS) (it being understood that any tax arising from a failure to comply with Section 856(c)(4) of the Code in any quarter is incurred no sooner than the last day of the applicable quarter); or (ii) incurred by either or both of the REITs that results from a transaction (including a transaction deemed to occur for income tax purposes) that occurs after the date which is six (6) months following the Purchase Date (regardless of when during the Survival Period such taxes are assessed by the IRS); provided, however, that Indemnitor’s liability for any Loss relating to taxes shall be determined by reference to, and shall not exceed, the RP REITs’ Tax Liability Limitation (as hereinafter defined). For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect the term “RP REITs’ Tax Liability Limitation” shall mean the tax liabilities of the REITs that would have resulted had REIT I sold its assets on the Purchase Date for the value used to any Tax matter that affects OrbNav's Membership Interest determine the Purchase Payments (as defined in the Company or any other Tax Indemnitee. Unless LP Agreement) under the Purchaser has previously received written notice from Orbital and OrbNav LP Agreement (such maximum tax liabilities to be determined (x) for the sake of the existence of such Contestclarity, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), additional tax arising from such sale resulting from the Purchaser will have actual failure of a REIT to qualify as a real estate investment trust within the right to control the conduct meaning of Section 856 of the Contest at its expenseCode on or prior to the Purchase Date, and in which case no settlement or compromise of issues will be made (y) without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating giving effect to any Tax period items of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not deduction or credits unrelated to control, and the Purchaser shall be entitled such deemed sales that such REITs would have had available to defend, compromise or settle reduce their tax liabilities resulting from such Tax Claim in its sole discretionsales).
Appears in 1 contract
Sources: Preferred Equity Investment Agreement (Mack Cali Realty L P)
Contests. (a) If any claim for Tax with respect The Parent agrees to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav the Company Managers of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice by the Parent or any of such Contestthe Parent’s Affiliates which involves the assertion of any claim, but in no event later than 15 days prior to or the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 dayscommencement of any Action, in respect of which case an indemnity may be sought by the Purchaser shall give written notice Parent pursuant to Orbital and OrbNav as soon as practicable. If the Purchaser fails this Article VII (a “Tax Claim”); provided, that failure to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, this provision shall not be liable to affect the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the Parent’ right to represent the interests of the indemnification hereunder. The Company in any Contest relating to a Tax matter for which Orbital or OrbNav may Managers shall be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and entitled to control the conduct contest or resolution of such Contestany Tax Claim only if (a) the Company Managers provide the Parent with evidence reasonably acceptable to the Parent that the Company Members will have adequate financial resources to defend against the Tax Claim and fulfill the Company’s indemnification obligations hereunder, including settlement (b) the Tax Claim involves only money damages and does not seek an injunction or other disposition thereofequitable relief against the Parent or any of the Parent’s Affiliates, (c) the Parent has not been advised by counsel that an actual or potential conflict exists between the Parent and the Company Members in connection with the defense of the Tax Claim, (d) the Tax Claim does not relate to or otherwise arise in connection with any criminal or regulatory enforcement Action or proceeding and (e) the Company Managers conduct the defense of the Tax Claim actively and diligently; provided, however, that Orbital and OrbNav will keep the Purchaser informed Company Managers shall obtain the prior written consent of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, Parent (which consent shall not be unreasonably withheld and providedor delayed) before entering into any settlement of a claim or ceasing to defend such claim; and, provided further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser Parent shall be entitled to defendparticipate in the defense of such claim and to employ counsel of its choice for such purpose, compromise the fees and expenses of which separate counsel shall be borne solely by the Parent. If the Company Managers are not entitled to control the consent or settle resolution of a Tax Claim, the Parent shall control the contest or resolution of such Tax Claim in its sole discretionClaim.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Green Thumb Industries Inc.)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Sellers in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or any of the Companies which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article VI; provided, however, that the failure to give such Contestnotice will not affect the Purchaser’s right to indemnification under this Article VI except to the extent, if any, that, but for such failure, the Sellers could have avoided all or a portion of the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case may beof an audit or administrative or judicial proceeding that relates to taxable periods ending on or before the date of Closing, shall not be liable to the Purchaser provided that, and only to the extent that Orbital's or OrbNav's position is actually prejudiced that, the Sellers acknowledges in writing their liability under this Agreement to hold the Purchaser, the Companies and their Affiliates harmless against the full amount of any adjustment which may be made as a result thereof. Orbital and OrbNav shallof such audit or proceeding, at their election, the Sellers shall have the right at their expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will keep proceeding; the Purchaser informed also may participate in any such audit or proceeding and, if the Sellers do not assume the defense of the progress and disposition of the Contest and no settlement any such audit or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)proceeding, the Purchaser will may defend the same in such manner as it may deem appropriate, including settling such audit or proceeding after five days prior written notice to the Sellers setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Sellers have acknowledged its liability are required to be contested in the same audit or proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right to control the conduct of the Contest right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for a Straddle Period the Sellers may participate in the audit or proceeding at their expense, provided that, and only to the extent that, the Sellers acknowledges in writing their liability under this Agreement to hold the Purchaser, the Companies and their Affiliates harmless against the amount of any adjustment which case no settlement or compromise of issues will may be made as a result of such audit or proceeding and that is allocable, pursuant to Section 6.01(b) to the portion of the Straddle Period ending on the date of Closing.
(d) With respect to any Tax audit or proceeding for a taxable period that begins before the date of the Closing, neither the Purchaser nor the Sellers shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without Orbital's and OrbNav's the written consentconsent of the other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating and the Sellers agree to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlcooperate, and the Purchaser shall be entitled agrees to defendcause the Companies to cooperate, in the defense against or compromise of any claim in any such audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser Buyer shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser promptly notify Sellers in writing of any written notice of such Contesta proposed assessment or claim in an audit or administrative or judicial proceeding of the Buyer or of any of the Acquired Companies which, but in no event later than 15 days prior if determined adversely to the time that a written response to the written notice is requiredtaxpayer, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not would be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter grounds for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, indemnification under this Article 8; provided, however, that Orbital and OrbNav a failure to give such notice will keep not affect the Purchaser informed Buyer' right to indemnification under this Article 8 except to the extent, if any, that, but for such failure, the Sellers could have avoided all or a portion of the progress Tax liability in question.
(b) In the case of an audit or administrative or judicial proceeding that relates to periods (including a partial period) ending on or before the Closing Date, provided that the Sellers acknowledge in writing their liability under this Agreement to hold the Buyer and disposition the Acquired Companies harmless against the full amount of the Contest and no settlement or compromise of issues will any adjustment which may be made without as a result of such audit or proceeding that relates to periods (including a partial period) ending on or before the Purchaser's written consentClosing Date, which consent Sellers shall not be unreasonably withheld have the right at their expense to participate in and provided, further, that control (to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control allowable) the conduct of such audit or proceeding but only to the Contest extent that such audit or proceeding relates solely to a potential adjustment for which the Sellers have acknowledged their liability; the Buyer also may participate in any such audit or proceeding and, if the Sellers do not assume the defense of any such audit or proceeding, the Buyer may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five (5) days' prior written notice to Sellers setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which Sellers have acknowledged its liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Buyer would be liable, the Buyer shall have the right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both, on the one hand, the Sellers (as evidenced by their acknowledgment under this Section 8.2) and, on the other hand, the Buyer or any Acquired Company could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which case no settlement separate issues are otherwise controlled under this Article 8 by the Buyer and the Sellers . - -
(d) Neither the Buyer nor any of the Sellers shall enter into any compromise or compromise agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of issues will be made without Orbital's and OrbNav's written consentthe other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating Buyer and Sellers agree to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlcooperate, and the Purchaser shall be entitled Buyer agrees to defendcause the Acquired Companies to cooperate, in the defense against or compromise of any claim in any audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Contests. Subject to Section 6.2, ▇▇▇▇▇▇ has the right to contest the amount, validity or applicability, in whole or in part, of any Impositions, mechanics’ lien or encumbrance (aincluding any arising from work performed or materials provided to Tenant or any Subtenant to improve all or a portion of the Premises) by appropriate proceedings conducted in good faith and with due diligence, at no cost to Port, provided that, prior to commencement of such contest, Tenant notifies Port of such contest. Tenant must notify Port of the final determination of such contest within fifteen (15) days after such determination. Subject to Section 6.2, nothing in this Lease requires Tenant to pay any Impositions, mechanics’ lien, or encumbrance so long as Tenant contests the validity, applicability or amount of such Impositions, mechanics’ lien or encumbrance in good faith, and so long as it does not allow the portion of the Premises affected by such Impositions, mechanics’ lien or encumbrance to be forfeited to the entity levying such Impositions, mechanics’ lien or encumbrance as a result of its nonpayment. If any claim Law requires as a condition to such contest, that the disputed amount be paid under protest, or that a bond or similar security be provided, Tenant must comply with such condition as a condition to its right to contest. Tenant is responsible for Tax with respect the payment of any interest, penalties or other charges that may accrue as a result of any contest, and Tenant must provide a statutory lien release bond or other security reasonably satisfactory to OrbNav's Membership Interest is asserted Port in a Contest (as defined below) against any Tax Indemnitee that would result instance where Port’s interest in the indemnification Premises may be subjected to such lien or claim. Tenant is not required to pay any Impositions, mechanics’ lien or encumbrance being so contested during the pendency of any such Tax Indemnitee proceedings unless payment is required by Orbital the court or OrbNav pursuant agency conducting such proceedings. Port, at its own expense and at its sole option, may elect to this Section 8 then join in any such proceeding whether or not any Law requires that such proceedings be brought by or in the following provisions name of this Section 8.4(a) Port or any owner of the Premises. Port will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect not be subjected to any Tax matter that affects OrbNav's Membership Interest liability for the payment of any fines or penalties, and except as provided in the Company precedent sentence, costs, expenses, or fees, including Attorneys’ Fees and Costs, in connection with any other Tax Indemniteesuch proceeding. Unless Without limiting Article 28, Tenant will Indemnify the Purchaser has previously received written notice Indemnified Parties for all Losses resulting from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence ▇▇▇▇▇▇’s contest of any Contest relating to a Tax matter that is Imposition, mechanics’ lien or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionencumbrance.
Appears in 1 contract
Sources: Master Lease
Contests. (ai) If The ▇▇▇▇▇ Representative and its duly appointed representatives shall have the authority to control any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) audit or examination by any taxing authority, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding deficiency or other dispute with respect adjustment of Taxes of or relating to any Tax matter liability of ▇▇▇▇▇ and its subsidiaries for all ▇▇▇▇▇ PRE-CLOSING Periods; PROVIDED, HOWEVER, that affects OrbNav's Membership Interest in neither the Company or ▇▇▇▇▇ Representative nor any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav duly appointed representative of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav ▇▇▇▇▇ Representative shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which prior consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consentUbiquiTel Parent, which consent shall not be unreasonably withheld, enter into any settlement of any contest or otherwise compromise any issue that would have a material adverse effect on the Tax benefits of UbiquiTel Parent or ▇▇▇▇▇ or any subsidiary for taxable years ending after the CLOSING DATE. The Purchaser UbiquiTel Parent and its duly appointed Representatives shall handle have the exclusive authority to control any audit or examination by any taxing authority, initiate any claim for refund, amend any Tax Claim Return and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any Tax liability of ▇▇▇▇▇ and its subsidiaries for Taxes for any taxable year or other taxable period ending after the CLOSING DATE (the "POST-CLOSING PERIODS"); PROVIDED, HOWEVER, that (a) none of UbiquiTel Parent, ▇▇▇▇▇, its subsidiaries nor any of their duly appointed representatives shall, without the prior written consent of the Company included in a Pre▇▇▇▇▇ Representative, enter into any settlement of any contest or otherwise compromise any issue that adversely affects the liability of the ▇▇▇▇▇ Stockholders for any ▇▇▇▇▇ PRE-Closing Tax CLOSING Period which Orbital and OrbNav elect in writing not to controlTaxes, and (b) none of UbiquiTel Parent, ▇▇▇▇▇, its subsidiaries nor any of their duly appointed representatives shall, without the Purchaser prior consent of the ▇▇▇▇▇ Representative, enter into any settlement of any contest or otherwise compromise any issue that would require payment by the Controlling ▇▇▇▇▇ Stockholders (as defined herein) of any amount under this Agreement unless UbiquiTel Parent shall have waived or caused to be entitled waived for itself and ▇▇▇▇▇ and its subsidiaries any right to defend, compromise or settle such Tax Claim in its sole discretionindemnification for Taxes from the Controlling ▇▇▇▇▇ Stockholders.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser promptly notify Covance in writing of any written notice or any communication from the IRS or other Tax authority, in the context of an audit, examination, request for information or otherwise, of any matter that could give rise to a right of indemnification under Article VIII (a "Tax Claim"). Such notice of a Tax Claim shall state the nature of the claim, amount indemnified against, if known, and the method of computing such amount. If notice of a Tax Claim is not given promptly after receipt of such Contestcommunication by the Purchaser, but or in no event later than 15 days prior reasonable detail to inform Covance of the time that a written response to nature of the written notice is required, unless such written notice is received and a written response is due in less than 15 daysTax Claim, in which each case taking into account the Purchaser shall give written notice facts and circumstances with respect to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentencesuch Tax Claim, Orbital or OrbNav, as the case may be, Covance shall not be liable to the Purchaser Purchaser, but only to the extent that Orbital's or OrbNavCovance's position is actually prejudiced as a result thereof. Orbital and OrbNav shallof such failure to so promptly notify or inform.
(b) In the case of a Tax Claim that relates to one or more Pre-Closing Tax Periods, Covance shall have the right, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Paymentits own expense, to employ counsel of Orbital's participate in and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of all proceedings in connection with such ContestTax Claim (including selection of counsel). Covance shall not admit any liability with respect to, including settlement or other disposition thereofsettle, providedcompromise or discharge, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made such Tax Claim without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's prior written consent, which consent shall not be unreasonably withheld. The If Covance does not elect to contest any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to Covance setting forth the terms and conditions of settlement, and, if Covance does not so elect, Covance shall handle reimburse the Purchaser for all reasonable out-of-pocket expenses (including reasonable attorney and accountant fees) in connection with contesting any proposed disallowance of the Company NOL to the extent such proposed disallowance would cause the Company NOL to be less than $49.5 million.
(c) With respect to issues included in a Tax Claim relating to a potential adjustment for which both Covance and the Purchaser could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in situations in which separate issues are otherwise jointly controlled under this Article VIII by the Purchaser and Covance. Neither party shall admit any liability with respect to, or settle, compromise or discharge, such Tax period issues or claim without the other party's prior written consent, which consent shall not be unreasonably withheld.
(d) Notwithstanding Section 8.06(c) hereof, with respect to any proposed disallowance of the Company included in a PreNOL for any Post-Closing Tax Period indemnified against by Covance under Section 8.01(b)(ii) (an "NOL Tax Claim"), the Purchaser will contest such NOL Tax Claim in good faith, and will not take any action with respect to such contest and NOL Tax Claim without the consent of Covance (which Orbital and OrbNav elect shall not be unreasonably withheld) for a 30-day period after delivery of notice of such NOL Tax Claim to Covance; provided, however, that (i) within 25 days after Covance has been notified in writing not by the Purchaser of the NOL Tax Claim, Covance shall request in writing that such NOL Tax Claim be contested; and (ii) the conduct of such contest shall remain within the control of the Purchaser and its counsel (who shall be independent tax counsel of national reputation, selected by the Purchaser and reasonably satisfactory to controlCovance); provided further that, without limiting the right of the Purchaser to control any NOL Tax Claim contest, the Purchaser shall consult in good faith with Covance with respect to any Tax Proceeding related to such NOL Tax Claim, including, without limitation, keeping Covance informed of material developments with respect to such Tax Proceeding on a timely basis, providing Covance with the Purchaser's material written submissions or replies with respect to such Tax Proceeding prior to filing thereof with such authority or with the relevant court, and copies of documents actually filed in such Tax Proceeding, and considering in good faith the comments and views of Covance with respect to the conduct of such Tax Proceeding.
(e) Covance shall reimburse Purchaser for all reasonable out-of-pocket expenses (including attorney and accountant fees) of contesting an NOL Tax Claim as such expenses are incurred and the Purchaser delivers materials to Covance evidencing such expenses. The Purchaser shall be entitled to defendnot admit any liability with respect to, or settle, compromise or settle discharge, any NOL Tax Claim without Covance's prior written consent, which consent shall not be unreasonably withheld. Covance shall advance to Purchaser sufficient funds for Purchaser to pay any Tax contested in any Tax Proceeding pertaining to any portion of the Company NOL in which the Tax contested must be paid prior to, or upon commencement of such Tax Proceeding. Following a Final Determination of an NOL Tax Claim, the Purchaser shall refund to Covance any amounts advanced for this purpose (together with any related amounts of interest received) that are in excess of amounts finally determined to be due by Covance in respect of such NOL Tax Claim in its sole discretionunder this Agreement.
Appears in 1 contract
Contests. (ai) If any claim for Tax with respect In the case of an audit or administrative or judicial proceeding that relates to OrbNav's Membership Interest is asserted periods ending at or before the Effective Time, the GJP Parties shall have the right, at their expense, to participate in a Contest (as defined below) against any Tax Indemnitee that would result in and control 50 the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling conduct of such claim. For purposes of this Agreement, "Contest" means any audit, court audit or proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser only to the extent that Orbital's such audit or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating proceeding relates solely to a Tax matter potential adjustment for which Orbital or OrbNav may be required the GJP Parties have acknowledged GJP's liability in writing and the issue underlying the potential adjustment does not recur for any period ending subsequent to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will Effective Time. The GJP Parties shall keep the Purchaser TPEG fully informed of the progress and disposition of any such audit or proceeding and, if it appears in the Contest and no settlement or compromise sole discretion of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, furtherTPEG, that to the extent such Contest could audit or proceeding may adversely affect TPEG or TPEG Sub II, TPEG also may participate in any such audit or proceeding. If the Purchaser's Tax Liability GJP Parties do not assume the defense of any such audit or proceeding promptly, TPEG may defend and settle the same (after taking into account any required Tax Indemnity Payment)for the GJP Parties' account) in such reasonable manner as it may deem appropriate. In the event that a potential adjustment as to which the GJP Parties would be liable is present in the same proceeding as a potential adjustment for which TPEG or TPEG Sub II would be liable, the Purchaser will TPEG shall have the right to control the conduct of the Contest right, at its expense, to control the audit or proceeding with respect to the latter potential adjustment.
(ii) With respect to a potential adjustment for which both GJP and TPEG and/or TPEG Sub II could be liable, or which involves an issue that recurs for any period ending after the Effective Time (whether or not the subject of audit at such time), (i) both the GJP Parties and TPEG may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the dollar amount of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the preceding sentence shall also govern for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in circumstances in which case no settlement separate issues are otherwise controlled hereunder by TPEG and the GJP Parties.
(iii) Except as provided in clause (i) of this Section 6(e), neither TPEG nor the GJP Parties shall enter into any compromise or compromise agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of issues will be made without Orbital's and OrbNav's written consentthe other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretion.
Appears in 1 contract
Sources: Merger Agreement (Producers Entertainment Group LTD)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply Closing Date, Purchaser shall, and prior to the handling of such claim. For purposes of this AgreementClosing Date, "Contest" means any auditParent shall, court proceeding or promptly notify the other dispute with respect to any Tax matter that affects OrbNav's Membership Interest party in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser writing of any written notice of such Contesta proposed assessment or claim in an audit or administrative or judicial proceeding involving the other party or any of the Company and the Subsidiaries which, but in no event later than 15 days prior if determined adversely to the time taxpayer, would be grounds for indemnification under this Article VIII; provided, however, that a written response failure to the written give such notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital will not affect Purchaser's or OrbNavParent's right, as the case may be, shall not be liable to indemnification hereunder, except to the extent, if any, that, but for such failure, the other party could have avoided or contested the Tax liability in question.
(b) In the case of an audit or administrative or judicial proceeding that relates to any period ended on or before September 30, 1996 or to a tax described in clause (iii) of Section 8.01(a), provided that within 30 days after Parent receives the written notice from Purchaser required under Section 8.03(a) above, and prior to taking any action with respect to such audit or administrative or judicial proceeding, Parent acknowledges in writing its liability under Section 8.01(a) of this Agreement to hold Purchaser, the Company and the Subsidiaries harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to such period (to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital such amount exceeds the Tax Reserve after giving effect to all prior and OrbNav shallconcurrent payments made pursuant to Section 8.01(a) of this Agreement to the Purchaser, at their electionthe Company and any Subsidiary), except to the extent provided otherwise in Section 8.03(c) below, Parent shall have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the its own expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding. Purchaser also may participate in any such audit or proceeding at its own expense and, including settlement if Parent does not assume the defense of any such audit or proceeding, Purchaser may, without any effect to its, the Company's or any Subsidiary's right to indemnification under this Article VIII, defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to Parent setting forth the terms and conditions of such settlement.
(c) With respect to a proposed adjustment for which both Parent (as evidenced by its acknowledgement under this Section 8.03) and Purchaser, or the Company or any Subsidiary could be liable, or which involves an adjustment to a period ended on or before September 30, 1996 or a change of accounting method or other disposition thereofissue that recurs for any post September 30, provided1996 period (whether or not the subject of an audit or proceeding at such time), however(i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that Orbital and OrbNav will keep party which would bear the Purchaser informed burden of the progress and disposition greater portion of the Contest sum of the adjustment and no settlement any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in situations in which separate issues are otherwise controlled hereunder by Purchaser and Parent.
(d) Purchaser and Parent agree to cooperate and to act in good faith, and Purchaser agrees to cause the Company and the Subsidiaries to cooperate and to act in good faith, in conducting, and in the defense against or compromise of issues will be made without the Purchaser's written consentany claim in, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement audit or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Sources: Recapitalization and Stock Purchase Agreement (E&s Holdings Corp)
Contests. (a) If notice of any claim for Tax Legal Action with respect to OrbNav's Membership Interest is asserted Taxes (“Tax Proceeding”) relating to the Seller shall be received by either party for which the other party may reasonably be expected to be liable pursuant to Section 8.05 (a “Tax Claim”), the notified party shall promptly inform the other party in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification writing of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then Claim, provided that the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav failure of the existence of notified party to give the other party such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to relieve the Purchaser failing party of its obligations under Section 8.05 except to the extent that Orbital's or OrbNav's position the other party is actually and materially prejudiced as a result thereof. Orbital and OrbNav shall, at their election, thereby.
(b) Company shall have the right at its expense to represent the interests of Company or the Company Seller in any Contest Tax Claim relating exclusively to a taxable periods ending on or before the Closing Date, provided that: (i) Company shall allow Buyer and its counsel to participate in the defense of any such Tax matter Proceeding at Buyer’s sole expense; (ii) Company shall keep Buyer informed with respect to the status of any such Tax Proceeding; (iii) if any such Tax Proceeding involves an issue that recurs in taxable periods ending after the Closing Date or otherwise could adversely affect Buyer or the Seller for which Orbital or OrbNav may be required to make a Tax Indemnity Paymentany taxable period ending after the Closing Date, to employ counsel of Orbital's then Company and OrbNav's choice at the expense of Orbital and OrbNav and to Buyer shall jointly control the conduct defense of any such ContestTax Proceeding, including settlement or each party shall cooperate with the other disposition thereofparty, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and there shall be no settlement or compromise of issues will be made closing or other agreement with respect to such Tax Proceeding without the Purchaser's written consentconsent of the other party, which consent shall not be unreasonably withheld withheld; and provided(iv) if Company does not elect to represent the interests of Company or the Seller in any such Tax Proceeding, further, that to then Buyer or the extent Seller may contest such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, Proceeding and in which case no settlement may pay or compromise of issues will be made without Orbital's and OrbNav's such Tax Claim with Company’s written consent, which consent shall not be unreasonably withheld. The Purchaser .
(c) Buyer shall handle represent at its expense the interests of the Seller in any Tax Claim relating to a Straddle Period, provided that: (i) Buyer shall allow Company and its counsel to participate in the defense of any such Tax period Proceeding at Company’s sole expense; (ii) Buyer shall keep Company informed with respect to the status of any such Tax Proceeding; and (iii) if any such Tax Proceeding involves an issue which is the subject of indemnification by Company pursuant to Section 8.05, then Buyer and Company shall jointly control the defense of any such Tax Proceeding, each party shall cooperate with the other party, and there shall be no settlement or closing or other agreement with respect to such Tax Proceeding without the consent of the other party, which consent shall not be unreasonably withheld.
(d) Notwithstanding anything in the Agreement to the contrary, Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defendcontrol in all respects, compromise and neither Buyer nor any of their Affiliates shall be entitled to participate in, any Tax Proceeding with respect to: (i) any Tax Return of Company; or settle such (ii) any Tax Claim in Return of a consolidated, combined, affiliated, or unitary group that includes Company or any of its sole discretionAffiliates (including the Seller).
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav promptly notify the Seller in writing of the existence proposed assessment or the commencement of any Contest relating Tax audit or administrative or judicial proceeding or of any demand or claim on the Business, the Purchaser, its Affiliates or any of the Acquired Companies which, if determined adversely to a Tax matter that is the taxpayer or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt lapse of time, could be grounds for indemnification by the Purchaser Seller under Section 7.01. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates or any of the Acquired Companies) describing the asserted Tax liability in reasonable detail and shall include copies of any written notice or other document received from any Taxing Authority in respect of any such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicableasserted Tax liability. If the Purchaser fails to comply with give the foregoing sentenceSeller prompt notice of an asserted Tax liability as required by this Section 7.03, Orbital or OrbNav, as then the case may be, Seller shall not be liable to the Purchaser released from any of its obligations under this Article VII, except to the extent the Seller is materially prejudiced by such failure.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shallrelates to Pre-Closing Periods, the Seller shall have the sole right, at their electionits expense, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including ; provided that (i) the Seller shall keep the Purchaser reasonably informed regarding the progress and substantive aspects of such Contest and (ii) if the settlement or compromise of such Contest would be expected to increase the Taxes of the Purchaser or any of its Affiliates (including the Acquired Companies) in a Post-Closing Period, or bind the Purchaser or any of its Affiliates or any Acquired Company to a Tax position with respect to any Post-Closing Period, then the Seller shall not enter into such settlement or compromise without the prior written consent of the Purchaser (not to be unreasonably withheld, conditioned or delayed). The Seller’s right to control a Contest shall be limited to amounts in dispute which would be paid by the Seller or for which the Seller would be liable pursuant to this Agreement.
(c) With respect to Straddle Periods (other disposition thereofthan a Contest described in Section 7.03(d)), the Seller may elect to direct and control any Contest involving any asserted Tax liability with respect to which indemnity may be sought from the Seller pursuant to Section 7.01 through counsel reasonably acceptable to Purchaser. If the Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax liability notify the Purchaser of its intent to do so and keep the Purchaser reasonably informed regarding the progress and substantive aspects of such Contest. If the Seller elects not to direct the Contest and so notifies the Purchaser within such thirty (30)-day period, the Purchaser or any of the Acquired Companies may assume control of such Contest and keep the Seller reasonably informed regarding the progress and substantive aspects of such Contest. Any and all reasonable out-of-pocket costs and expenses of any such Contest shall be borne by each Party’s shared expense in proportion to the Tax liabilities finally determined with respect to such Contest that are allocable to the pre-Closing and post-Closing portions of such Straddle Period, provided that, if such liability as finally determined is zero, such expenses shall be shared equally by the Parties. In either case, the controlling party may not settle or compromise any asserted liability without prior written consent of the other party; provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no consent to settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. , conditioned or delayed.
(d) Notwithstanding anything to the contrary in this Agreement, the Seller shall have the exclusive right to control in all respects, and neither the Purchaser nor any of its Affiliates shall be entitled to participate in, any Contest with respect to (i) any Tax Return of the Seller or any of its Subsidiaries (other than the Acquired Companies) and (ii) any Tax Return of an Affiliated Group of which the Seller is a member.
(e) The Purchaser shall handle any Tax Claim relating and the Seller agree to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlreasonably cooperate, and the Purchaser agrees to cause the Acquired Companies to reasonably cooperate, in the defense against or compromise of any claim in any Contest.
(f) Notwithstanding anything to the contrary in this Agreement, this Section 7.03 shall be entitled control with respect to defend, compromise or settle such Tax Claim in its sole discretionany Contest.
Appears in 1 contract
Sources: Unit Purchase Agreement (American Axle & Manufacturing Holdings Inc)
Contests. (a) If any claim for Tax with respect Parent agrees to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give prompt written notice to Orbital and OrbNav the Holder Representative of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice by the Company, the Surviving Corporation, Merger Sub, Parent or any of such ContestParent’s Affiliates which involves the assertion of any claim, but in no event later than 15 days prior to or the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 dayscommencement of any Action, in respect of which case an indemnity may be sought by the Purchaser shall Parent Indemnities pursuant to Article IX (specifying with reasonable particularity the basis therefor) (a “Tax Claim”) and will give written notice to Orbital and OrbNav the Holder Representative such information with respect thereto as soon as practicable. If the Purchaser fails Holder Representative may reasonably request; provided, that failure to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, this provision shall not be liable affect the Parent Indemnities’ right to the Purchaser indemnification under Article IX except to the extent that Orbital's or OrbNav's position is the Holders are actually prejudiced as a result thereofthereby. Orbital and OrbNav shallThe Holder Representative may, at their electionthe Holders’ expense and upon notice to Parent, have assume the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital defense or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such ContestTax Claim, including settlement provided that the Holder Representative shall not, and shall cause none of the Holder Representative’s Affiliates to, settle, compromise and/or concede any such Tax Claim to the extent that it would reasonably be expected to adversely affect the Tax liability of Merger Sub, Parent or, after the Closing, the Company, without the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or other disposition thereofdelayed. If the Holder Representative fails to provide notice to Parent that it intends to assume the defense or conduct of such a Tax Claim, Parent shall control the contest or resolution of any Tax Claim; provided, however, that Orbital (x) the Holder Representative shall be entitled to participate in the defense of such claim and OrbNav will keep to employ counsel of its choice for such purpose, the Purchaser informed fees and expenses of which separate counsel shall be borne solely by the Holder Representative, and (y) Parent shall not, and shall cause none of the progress and disposition Company, the Surviving Corporation, Merger Sub or any of Parent’s Affiliates to, settle, compromise and/or concede, any such Tax Claim without the prior written consent of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consentHolder Representative, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretiondelayed.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted After the Closing Date, each of the Sellers and the Purchaser shall promptly notify the other party in a Contest (as defined below) against writing upon receipt of written notice of the commencement of any Tax Indemnitee that audit or administrative or judicial proceeding or of any demand or claim on the Sellers, the Purchaser or Century CP which, if determined adversely to the taxpayer or after the lapse of time, would result be grounds for indemnification by the other party under Section 7.01. Such notice shall contain factual information (to the extent known to the notifying party) describing the asserted Tax liability in the indemnification reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicableliability. If the Purchaser indemnitee under Section 7.01 fails to comply with give the foregoing sentenceindemnitor under Section 7.01 prompt notice of an asserted Tax liability as required by this Section 7.08, Orbital or OrbNav, as then the case may be, indemnitor shall not be liable have any obligation to the Purchaser indemnify for any loss arising out of such asserted Tax liability but only to the extent that Orbital's failure to give such notice results in a detriment to the indemnitor.
(b) In the case of an audit or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shalladministrative or judicial proceeding that relates to periods ending on or before the Closing Date, the Sellers shall have the sole right, at their electionexpense, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding, including settlement but only to the extent that such audit or other disposition thereof, proceeding relates to a Tax for which the Sellers have a potential indemnification obligation under Section 7.01; provided, however, that Orbital and OrbNav will keep if the results of such contest could reasonably be expected to have a material Tax cost to the Purchaser informed or Century CP for any taxable period including or ending after the Closing Date, then the Sellers and the Purchaser shall jointly control the defense and settlement of any such contest and each party shall cooperate with the progress other party at its own expense and disposition of the Contest and there shall be no settlement or compromise of issues will be made closing or other agreement with respect thereto without the Purchaser's written consentconsent of the other party, which consent shall not be unreasonably withheld and and, if the Sellers do not assume the defense of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding; provided, furtherhowever, that the Purchaser shall not settle any such audit or proceeding without the consent of the Sellers, which consent shall not be unreasonably withheld. If the Sellers choose to control the extent contest, the Purchaser shall promptly empower and shall cause Century CP or other party promptly to empower (by power of attorney and such Contest other documentation as may be appropriate) such representatives of the Sellers as they may designate to represent the Purchaser or Century CP or other party or its successor in the contest insofar as the contest involves an asserted tax liability for which the Sellers would be liable under Section 7.01. The Purchaser shall have sole control over the defense and settlement of any contest relating to taxable periods or portions thereof that begin on or after the Closing Date (including, subject to Section 7.08(c) hereof, any Taxes allocated to such period under Section 7.01(b) hereof) or relating to taxable periods or portions thereof ending on or before the Closing Date 63 64 provided the Taxes to which such contest relates are Taxes for which Sellers are not liable under Section 7.01(a) hereof, provided, however, that if the results of any such contest otherwise controlled by the Purchaser could reasonably be expected to have a material Tax cost or otherwise materially adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)Sellers, then the Sellers and the Purchaser will have the right to shall jointly control the conduct defense and settlement of any such contest and each party shall cooperate with the Contest other party at its expense, own expense and in which case there shall be no settlement or compromise closing or other agreement with respect thereto without the consent of issues will the other party, which consent shall not be made unreasonably withheld.
(c) With respect to periods beginning before the Closing Date and ending after the Closing Date, (i) each party may participate in an audit or proceeding which relates to any such period and (ii) such audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods; provided that neither party shall settle any such audit or proceeding without Orbital's and OrbNav's written consentthe consent of the other, which consent shall not be unreasonably withheld. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in situations in which separate issues are otherwise controlled hereunder by the Purchaser shall handle any Tax Claim relating and the Sellers.
(d) The Purchaser and the Sellers agree to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlcooperate, and the Purchaser agrees to cause Century CP to cooperate, in the defense against or compromise of any claim in any audit or proceeding.
(e) The Sellers shall promptly notify the Purchaser of the commencement of any claim, audit, examination or other written change or adjustment received by the Sellers, in each case relating to Century CP, by any taxing authority which could reasonably be entitled expected to defendaffect the liability of the Purchaser or Century CP for a material amount of Taxes, compromise or settle and the Sellers shall keep the Purchaser informed of the progress thereof. The failure to provide such Tax Claim in its sole discretionnotice shall not affect the indemnification obligations under this Article VII unless the indemnified party is materially prejudiced as a result of such failure.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Century Aluminum Co)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Seller in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article XII; provided, however, that a failure to give such Contestnotice will not affect the Purchaser's right to indemnification under this Agreement except to the extent, if any, that, but for such failure, the Seller could have avoided all or a portion of the Tax liability in no event later than 15 days prior question.
(b) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the time Closing Date, provided that a written response the Seller acknowledges in writing its responsibility under this Agreement to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case hold the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If harmless against the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case full amount of any adjustment which may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital and OrbNav shallof such audit or proceeding that relates to periods ending on or before the Closing Date (or, at their electionin the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 12.01 (b) to the portion of such year ending on or before the Closing Date), the Seller shall have the right at its expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that proceeding but only to the extent that such Contest could adversely affect audit or proceeding relates solely to a potential adjustment for which the Purchaser's Tax Liability (after taking into account Seller has acknowledged its liability; the Purchaser also may participate in any required Tax Indemnity Payment)such audit or proceeding and, if the Seller does not assume the defense of any such audit or proceeding, the Purchaser will may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Seller setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Seller has acknowledged its liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right to control the conduct of the Contest right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both the Seller (as evidenced by its acknowledgment under this Section 12.04) and the Purchaser could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in situations in which case no settlement separate issues are otherwise controlled under this Article XII by the Purchaser and the Seller.
(d) Neither the Purchaser nor the Seller shall enter into any compromise or compromise agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of issues will be made without Orbital's and OrbNav's written consentthe other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled Seller agree to defend, cooperate in the defense against or compromise of any claim in any audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Sources: Acquisition Agreement (Sylvan Learning Systems Inc)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Sellers in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or of any of the Company and the Subsidiaries which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article VI; PROVIDED, HOWEVER, that a failure to give such Contestnotice will not affect the Purchaser's right to indemnification under this Article VI except to the extent, if any, that, but for such failure, the Sellers could have avoided all or a portion of the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, provided that the Sellers acknowledge in writing their liability under this Agreement to hold the Purchaser, the Company and the Subsidiaries harmless against the full amount of any adjustment which may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital and OrbNav shallof such audit or proceeding that relates to periods ending on or before the Closing Date (or, at their electionin the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 6.01(b) to the portion of such year ending on or before the Closing Date), the Sellers shall have the right at their expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that proceeding but only to the extent that such Contest could adversely affect audit or proceeding relates solely to a potential adjustment for which the Purchaser's Tax Liability (after taking into account Sellers have acknowledged their liability; the Purchaser also may participate in any required Tax Indemnity Payment)such audit or proceeding and, if the Sellers does not assume the defense of any such audit or proceeding, the Purchaser will may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Sellers setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Sellers have acknowledged their liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right to control the conduct of the Contest right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both the Sellers (as evidenced by their acknowledgment under this Section 6.04) and the Purchaser or the Company or any Subsidiary could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which case no settlement separate issues are otherwise controlled under this Article VI by the Purchaser and the Sellers.
(d) Neither the Purchaser nor the Sellers shall enter into any compromise or compromise agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of issues will be made without Orbital's and OrbNav's written consentthe other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating and the Sellers agree to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlcooperate, and the Purchaser shall be entitled agrees to defendcause the Company and the Subsidiaries to cooperate, in the defense against or compromise of any claim in any audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Contests. (ai) If The Charterer shall have the right, at its sole -------- cost and expense, to investigate, and the right in its sole discretion to defend or contest by appropriate proceedings or compromise, any claim Claim for Tax with respect to OrbNav's Membership Interest which indemnification is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to sought under this Section 8 then 12.1, and each Indemnitee and each member of a Related Indemnitee Group shall cooperate, at the following provisions Charterer's expense, with all reasonable requests of this Section 8.4(a) will apply the Charterer in connection therewith, provided that the Charterer shall not have the right without the consent of the -------- Indemnitee to the handling of such claim. For purposes of this Agreementdefend, "Contest" means contest or compromise any audit, court proceeding or other dispute Claim with respect to any Tax matter that affects OrbNav's Membership Interest in the Company Indemnitee or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital member of its Related Indemnitee Group:
(A) if a Specified Charter Event of Default shall have occurred and OrbNav be continuing; or
(B) if such Claim involves a realistic possibility of the existence criminal sanctions or criminal liability to such Indemnitee or any member of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 daysits Related Indemnitee Group, in which event the Indemnitee (or, in the case of clause (B) only, the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If Owner Participant and/or the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNavLenders, as the case may be, ) shall not be liable entitled to control and assume responsibility for the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests defense of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice such Claim at the expense of Orbital and OrbNav and to control the conduct Charterer but shall consult in good faith with the Charterer regarding such defense. The Charterer agrees that it will not settle a Claim against an Indemnitee without the consent of such ContestIndemnitee if the settlement requires the admission by such Indemnitee that it has engaged in illegal conduct. During the continuance of a Charter Event of Default, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed Charterer shall not compromise any claim without the consent of the progress and disposition of the Contest and no settlement relevant Indemnitee unless such claim is simultaneously released or compromise of issues will be made without the Purchaser's written consentdischarged, which such consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretion.
Appears in 1 contract
Sources: Participation Agreement (Mobil Corp)
Contests. (a) If any claim for Tax with respect Buyer agrees to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav Sellers of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser an Acquired Company, Buyer or any of Buyer’s Affiliates of any written notice which involves the assertion of such Contestany claim, but or the commencement of any Action, by a Governmental Authority or other Person who is not a party to this Agreement (or an Affiliate of a party to this Agreement or a Representative of any of the foregoing) in no event later than 15 days prior respect of which an indemnity claim may be sought by Buyer pursuant to the time Section 6.03(a) (a “Tax Claim”); provided, that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails failure to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, this provision shall not be liable affect Buyer’s right to the Purchaser indemnification hereunder, except as provided in Section 6.09 or otherwise to the extent that Orbital's Sellers forfeit substantive rights or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests defenses by reason of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to such failure.
(b) Sellers shall control the conduct contest or resolution of such Contest, including settlement or other disposition thereof, any Tax Claim; provided, however, that Orbital and OrbNav will keep if such Tax Claim could reasonably be expected to adversely affect the Purchaser informed Company, Buyer or their Affiliates for any Post-Closing Tax Period, Sellers shall not settle any Tax liabilities arising out of the progress and disposition of the Contest and no settlement or compromise of issues will be made such Tax Claim without the Purchaser's written consentconsent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed; and provided, provided further, that to Buyer and the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)Company, the Purchaser will at their expense, shall have the right to participate with Sellers in the defense of such Tax Claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Buyer. If Sellers so request, Buyer shall take all reasonable actions requested by Sellers to permit Sellers, at their expense, to control the conduct defense of such Tax Claim. Notwithstanding the Contest at its expenseforegoing, and if Sellers do not promptly notify Buyer in which case no settlement writing of their election to assume the defense of a Tax Claim following notice thereof, Buyer shall control the contest or compromise resolution of issues will be made without Orbital's and OrbNav's such Tax Claim; provided, however, that Buyer shall obtain the prior written consent, consent of Sellers (which consent shall not be unreasonably withheld. The Purchaser shall handle , conditioned or delayed) before entering into any settlement of such Tax Claim relating or ceasing to any defend such Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlClaim; and, and the Purchaser provided further, that Sellers shall be entitled to defend, compromise or settle participate in the defense of such Tax Claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Sellers. Cooperation and Exchange of Information . Sellers and Buyer shall provide each other with such cooperation and information as either of them reasonably may request of the other in filing any Tax Return pursuant to this Article VI or in connection with any audit or other proceeding in respect of Taxes of the Companies. Such cooperation and information shall include providing copies of relevant Tax Returns or portions thereof, together with accompanying schedules, related work papers and documents relating to rulings or other determinations by tax authorities. Each of Sellers and Buyer shall retain all Tax Returns, schedules and work papers, records and other documents in its sole discretionpossession relating to Tax matters of the Companies for any taxable period beginning before the Closing Date until the expiration of the statute of limitations of the taxable periods to which such Tax Returns and other documents relate, without regard to extensions except to the extent notified by the other party in writing of such extensions for the respective Tax periods. Prior to transferring, destroying or discarding any Tax Returns, schedules and work papers, records and other documents in its possession relating to Tax matters of the Company for any taxable period beginning before the Closing Date, Sellers or Buyer (as the case may be) shall provide the other party with reasonable written notice and offer the other party the opportunity to take custody of such materials. Tax Treatment of Indemnification Payments . Any indemnification payments pursuant to this Article VI shall be treated as an adjustment to the Purchase Price by the parties for Tax purposes, unless otherwise required by Law.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted The Buyer shall promptly notify the Seller in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company which, if determined adversely to the taxpayer, would be grounds for indemnification under this Section 6.4; PROVIDED, HOWEVER, that a failure to give such Contestnotice will not affect the Buyer's right to indemnification hereunder, except to the extent, if any, that, but for such failure, the Seller could have avoided the Tax liability in no event later than 15 question. In the case of an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, PROVIDED that within 30 days prior to after the time that a written response to Seller receives the written notice is requiredfrom the Buyer required under this Section 6.4(k) and prior to taking any action with respect to such audit or administrative or judicial proceeding, unless such written notice is received the Seller acknowledges in writing the Seller's liability under this Section 6.4 to hold the Buyer and a written response is due in less than 15 days, in the Company harmless against the full amount of any adjustment which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital and OrbNav shallof such audit or proceeding, at their election, the Seller shall have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the his own expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding; PROVIDED, including settlement or other disposition thereof, provided, howeverHOWEVER, that Orbital and OrbNav the Seller shall not settle or otherwise compromise any issue or matter without the Buyer's prior written consent if such issue or matter will keep have a material affect on the Purchaser informed Tax liability of the progress and disposition Buyer or the Company for a Post-Closing taxable year or period (or for an Interim Period). The Buyer also may participate in any such audit or proceeding at its own expense and, if the Seller does not assume the defense of any such audit or proceeding, the Contest and no settlement Buyer may, without any effect to its or compromise of issues will be made without the PurchaserCompany's written consentright to indemnification under this Section 6.4, which consent shall defend the same in such manner as it may deem appropriate, including, but not be unreasonably withheld and providedlimited to, further, that to the extent settling such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Paymentaudit or proceeding. Except as provided otherwise in this Section 6.4(k), the Purchaser will have the right to Buyer shall control the conduct of the Contest at its expenseown expense any and all audit, administrative and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating judicial proceedings related to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and or the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionCompany's Taxes.
Appears in 1 contract
Sources: Stock Purchase Agreement (Russell-Stanley Holdings Inc)
Contests. (ai) If any claim for Tax with respect After the Closing and continuing through the period during which holders of Company Shares are required to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in indemnify Parent and the indemnification of any such Tax Indemnitee by Orbital or OrbNav Surviving Corporation pursuant to this Section 8 then Article VIII, Parent shall promptly notify the following provisions Stockholder’s Representative in writing of this Section 8.4(a(A) will apply to the handling commencement of such claim. For purposes of this Agreement, "Contest" means any audit, court investigation or administrative or judicial proceeding or other dispute with respect relating to any Tax matter that affects OrbNav's Membership Interest in the Company tax of Company, any subsidiary or any other Tax Indemnitee. Unless the Purchaser has previously received written holder of Company Shares for any Pre-Closing Period and (B) any notice from Orbital and OrbNav of the existence of such Contesta proposed assessment or claim in an audit, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest investigation or administrative or judicial proceeding relating to a Tax matter that is any tax for any Pre-Closing Period of Company, any subsidiary or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser any holder of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, Shares; provided, however, that Orbital the failure to give such notice will not affect Parent’s right to indemnification except to the extent, if any, that such failure materially prejudices the holders of Company Shares’ ability to contest the tax liability in question.
(ii) In the case of an audit, investigation or administrative or judicial proceeding that relates to any tax of Company or any of its subsidiaries for any Pre-Closing Period, the Stockholders’ Representative shall have the right at its expense to control the conduct, defense and OrbNav will keep settlement of any such audit, investigation or proceeding; provided, however, that the Purchaser informed Stockholders’ Representative shall not settle any such audit, investigation or proceeding in a manner that would materially affect the taxes of Company or its subsidiaries in any period after the progress and disposition of the Contest and no settlement or compromise of issues will be made Closing, without the Purchaser's written consentconsent of Company, which consent shall not be unreasonably withheld and or delayed; provided, further, however, that the Stockholders’ Representatives’ rights contained in this Section 6.9(c)(ii) shall apply only to tax matters with respect to which holders of Company Shares are required to indemnify Parent and Surviving Corporation pursuant to Article VIII.
(iii) Except as provided otherwise in this Section 6.9, following the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)Closing, the Purchaser Parent will have the sole right to control the conduct of the Contest at its expense, and in which case no settlement any tax audit or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim other tax contest relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionCompany.
Appears in 1 contract
Sources: Merger Agreement (F5 Networks Inc)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Seller in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article VII; provided, however, that a failure to give such Contestnotice will not affect the Purchaser's right to indemnification under this Agreement except to the extent, if any, that, but for such failure, the Seller could have avoided all or a portion of the Tax liability in no event later than 15 days prior question.
(b) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the time Closing Date, provided that a written response the Seller acknowledges in writing its responsibility under this Agreement to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case hold the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If harmless against the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case full amount of any adjustment which may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital and OrbNav shallof such audit or proceeding that relates to periods ending on or before the Closing Date (or, at their electionin the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 7.01(b) to the portion of such year ending on or before the Closing Date), the Seller shall have the right at its expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that proceeding but only to the extent that such Contest could adversely affect audit or proceeding relates solely to a potential adjustment for which the Purchaser's Tax Liability (after taking into account Seller has acknowledged its liability; the Purchaser also may participate in any required Tax Indemnity Payment)such audit or proceeding and, if the Seller does not assume the defense of any such audit or proceeding, the Purchaser will may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Seller setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Seller has acknowledged its liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right to control the conduct of the Contest right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both the Seller (as evidenced by its acknowledgment under this Section 7.04) and the Purchaser could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in situations in which case no settlement separate issues are otherwise controlled under this Article VII by the Purchaser and the Seller.
(d) Neither the Purchaser nor the Seller shall enter into any compromise or compromise agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of issues will be made without Orbital's and OrbNav's written consentthe other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled Seller agree to defend, cooperate in the defense against or compromise of any claim in any audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sylvan Learning Systems Inc)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted The Buyer shall promptly notify the Sellers' Representative in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company or any Subsidiary which, if determined adversely to the taxpayer, would be grounds for indemnification under this Section 6.4; PROVIDED, HOWEVER, that a failure to give such Contestnotice will not affect the Buyer's right to indemnification hereunder, except to the extent, if any, that, but for such failure, the Sellers' Representative could have avoided the Tax liability in no event later than 15 question. In the case of an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, PROVIDED that within 30 days prior to after the time that a written response to Sellers' Representative receives the written notice is requiredfrom the Buyer required under this Section 6.4(d) and prior to taking any action with respect to such audit or administrative or judicial proceeding, unless such written notice is received the Sellers' Representative acknowledges in writing the Sellers' liability under this Section 6.4 to hold the Buyer and a written response is due in less than 15 days, in the Company harmless against the full amount of any adjustment which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital and OrbNav shallof such audit or proceeding, at their election, the Sellers' Representative shall have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital at his, her or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the its own expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding; PROVIDED, including settlement or other disposition thereof, provided, howeverHOWEVER, that Orbital and OrbNav the Sellers' Representative shall not settle or otherwise compromise any issue or matter without the Buyer's prior written consent if such issue or matter will keep have a material effect on the Purchaser informed Tax liability of the progress and disposition Buyer or the Company or any Subsidiary for a post-Closing taxable year or period. The Buyer also may participate in any such audit or proceeding at its own expense and, if the Sellers' Representative does not assume the defense of any such audit or proceeding, the Contest and no settlement Buyer may, without any effect to its or compromise of issues will be made without the PurchaserCompany's written consentright to indemnification under this Section 6.4, which consent shall defend the same in such manner as it may deem appropriate, including, but not be unreasonably withheld and providedlimited to, further, that to the extent settling such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Paymentaudit or proceeding. Except as provided otherwise in this Section 6.4(d), the Purchaser will have the right to Buyer shall control the conduct of the Contest at its expenseown expense any and all audit, administrative and in which case no settlement judicial proceedings related to the Company, the Subsidiaries or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretiontheir Taxes.
Appears in 1 contract
Sources: Share Purchase Agreement (Russell-Stanley Holdings Inc)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav date of the existence of such ContestEffective Time, Parent shall promptly notify the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Shareholders' Representative in writing of any written notice of a proposed adjustment or claim in an audit or administrative or judicial proceeding involving Parent or the Company or the Subsidiary which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article VIII; provided, however, that a failure to give such Contestnotice will not affect Parent's right to indemnification hereunder except to the extent, if any, that, but for such failure, the Shareholders could have avoided the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case of an audit or administrative or judicial proceeding that relates to taxable periods ending on or before the date of the Effective Time, provided that the Shareholders' Representative on behalf of all Shareholders acknowledges in writing the Shareholders' liability under this Agreement to hold Parent and the Company and the Subsidiary harmless against the full amount of any adjustment that may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital and OrbNav shallof such audit or proceeding that relates to taxable periods ending on or before the date of the Effective Time, at their election, the Shareholders' Representative shall have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the Shareholders' expense of Orbital to participate in and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, proceeding but only to the extent that Orbital such audit or proceeding relates solely to a potential adjustment for which the Shareholders' Representative has acknowledged the Shareholders' liability and OrbNav will the issue underlying the proposed adjustment if resolved would not materially prejudice the Company or the Subsidiary from taking a contrary position for any period ending after the date of the Effective Time with respect to such recurring issue. The Shareholders' Representative shall keep the Purchaser Parent informed of the progress of any such audit or proceeding and disposition if it appears in the reasonable discretion of the Contest and no settlement Parent that such audit or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could proceeding may adversely affect Parent, Parent also may participate in any such audit or proceeding at its expense. If the Purchaser's Tax Liability (after taking into account Shareholders' Representative does not assume the defense of any required Tax Indemnity Payment)such audit or proceeding, Parent may defend the Purchaser will have the right to control the conduct of the Contest same in such manner as it may deem appropriate at its expense, including, but not limited to, settling such audit or proceeding after giving five days prior written notice to the Shareholders' Representative setting forth the terms and conditions of settlement. In the event that a potential adjustment as to which the Shareholders' Representative has acknowledged the Shareholders' liability is present in the same proceeding as a potential adjustment for which Parent would be liable, Parent shall have the right at its expense, to control the audit or proceeding with respect to the latter potential adjustment.
(c) With respect to an audit or proceeding that relates to a potential adjustment for which both the Shareholders (as evidenced by their acknowledgement under this Section 8.04) and Parent or the Company or the Subsidiary could be liable, or which involves a taxable period ending after the Effective Time but includes the Effective Time (and the Shareholders' Representative has acknowledged in writing the Shareholders' portion of the tax liability under Section 8.01(b)) or an issue that recurs for any period ending after the date of the Effective Time (whether or not the subject of audit at such time) that the Shareholders' Representative does not control pursuant to Section 8.04(b) above, (i) each of the Shareholders' Representative and Parent may participate in the audit or proceeding at their respective expense, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in situation in which case no settlement separate issues are otherwise controlled hereunder by Parent and the Shareholders' Representative.
(d) Except as otherwise provided in Section 8.04(b) above, neither Parent nor the Shareholders' Representative shall enter into any compromise or compromise agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of issues will be made without Orbital's and OrbNav's written consentthe other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating Parent and the Shareholders agree to any Tax period of cooperate, and Parent agrees to cause the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled Subsidiary to defendcooperate, in the defense against or compromise of any claim in any audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, a "Contest" means is any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax IndemniteeCompany. Unless the Purchaser has previously received written notice from Orbital and OrbNav the Seller of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav the Seller of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNavthe Seller's responsibility under this Section 8 as soon as practicable after 11.3 within ten (10) days from the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior failure to give such notice shall relieve the Seller of any liability hereunder except to the time extent such failure increases any interest or penalties that a written response to otherwise would be payable by Seller hereunder. Unless the Seller has previously received written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case from the Purchaser of the existence of such Contest, the Seller shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in existence of any Contest relating to a Tax matter for which Orbital the Purchaser has responsibility within ten (10) days from the receipt by the Seller of any written notice of such Contest but no failure to give such notice shall relieve the Purchaser of any liability hereunder except to the extent such failure increases any interest or OrbNav may penalties that otherwise would be required payable by Purchaser hereunder. The Purchaser, on the one hand, and the Seller, on the other, agree, in each case at no cost to make the other party, to cooperate with the other and the other's representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other party, during normal business hours, all books, records, returns, documents, files, other information (including without limitation working papers and schedules), officers or employees (without substantial interruption of employment) or other relevant information necessary or useful in connection with any Contest requiring any such books, records, files, other items, persons and information. The Seller shall, at its election, have the right to represent the Company's interests in any Contest relating to a Tax Indemnity Paymentmatter relating to or arising in a Pre-Acquisition Period, to employ counsel of Orbital's and OrbNav's its choice at its expense, which counsel shall be reasonably acceptable to the expense of Orbital and OrbNav Purchaser, and to control the conduct of such Contest, including settlement or other disposition thereof, ; provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control consult with the conduct of Seller regarding any such Contest that may affect the Contest Company for any Post-Acquisition Periods at its the Purchaser's own expense, and in which case no provided further that any settlement or compromise other disposition of issues will any such Contest may only be made without Orbital's and OrbNav's written consentwith the consent of Purchaser, which consent shall not be unreasonably withheld. With regard to Contests relating solely to Tax matters that are the Seller's responsibility under Section 11.3 and which could have no effect on any Taxes that are the Purchaser's responsibility under Section 11.4, the Seller shall have the exclusive right to decide whether any consent or waivers to extend applicable statutes of limitations shall be granted. The Purchaser shall handle have the sole and exclusive right to control the conduct of any Tax Claim relating Contest, including settlement or other disposition thereof, with respect to any Tax period of matter relating to or arising in a Post-Acquisition Period; provided, however, that the Seller shall have the right to consult with the Purchaser regarding any such Contest that may affect the Company included in a for any Pre-Closing Tax Period Acquisition Periods at the Seller's own expense, provided further that any settlement or other disposition of any such Contest may only be made with the consent of Seller, which Orbital and OrbNav elect in writing consent shall not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionunreasonably withheld.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this AgreementClosing, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser promptly notify Seller in writing of any written notice of all audits proposed assessment or claim in an audit or administrative or judicial proceeding of Purchaser which, if determined adversely to the taxpayer, could result in grounds for indemnification under this Article VII; provided, however, that a failure to give such Contestnotice will not affect Purchaser’s right to indemnification under this Agreement except to the extent, if any, that, but for such failure, Seller could have avoided all or a portion of the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case may beof an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, provided that Seller acknowledges in writing its liability with respect to any Taxes arising therefrom in accordance with this Article VII, Seller shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right at its expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that but only to the extent that such Contest could adversely affect audit or proceeding relates solely to a potential adjustment for which Seller has acknowledged its liability hereunder; Purchaser also may participate in any such audit or proceeding, and, if Seller does not assume the Purchaser's Tax Liability (after taking into account defense of any such audit or proceeding, Purchaser may defend the same in such manner as it may deem appropriate, including, without limitation, settling such audit or proceeding in accordance with Section 7.4(d). In the event that issues relating to a potential adjustment for which Seller has acknowledged its liability are required Tax Indemnity Payment)to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which Purchaser would be liable, the Purchaser will shall have the right to control the conduct of the Contest right, at its expense, to control the audit or proceeding with respect to the latter issues, provided that Purchaser shall use reasonable efforts to bifurcate the issues in such proceeding as reasonably requested by Seller.
(c) With respect to issues relating to a potential adjustment for which both Seller (as evidenced by its acknowledgment under this Section 7.4) and Purchaser could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in situations in which case no settlement separate issues are otherwise controlled under this Article VII by Purchaser and Seller.
(d) Neither Purchaser nor Seller shall enter into any compromise or compromise agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of issues will be made without Orbital's and OrbNav's written consentthe other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle and Seller agree to cooperate in the defense against or compromise of any Tax Claim relating to claim in any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Contests. Notwithstanding anything to the contrary contained in this Agreement:
(a) If After the Closing Date, Purchaser shall notify Seller in writing within ten (10) days of the date a claim is made or threatened in writing by any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would Taxing Authority that, if successful, may reasonably result in an indemnity payment by Seller under Section 6.4 (a "Tax Claim"). Such notice shall contain factual information describing in reasonable detail the indemnification nature and basis of such claim and the amount thereof, to the extent known, and shall include copies of any notice or other document received from any Taxing Authority in respect of any such asserted Tax Indemnitee liability. Failure by Orbital or OrbNav pursuant Purchaser to this Section 8 then the following provisions of this Section 8.4(a) will apply give such notice to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in Seller shall not relieve the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence Seller of any Contest relating to a Tax matter liability that is or it may be Orbital's or OrbNav's responsibility have on account of its indemnification obligation under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such ContestArticle VI, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser except to the extent that Orbital's or OrbNav's position Seller is actually materially and adversely prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have thereby in the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct defense of such Contest, including settlement or other disposition thereof, Tax Claim; provided, however, that Orbital and OrbNav will keep irrespective of whether the Purchaser informed Seller is materially or adversely prejudiced, Seller shall be permitted to reduce any liability Seller may have on account of its indemnification obligation under this Article VI by the progress and disposition amount of the Contest and no settlement or compromise of issues will be made without its actual, out-of-pocket monetary damages that are caused by the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that failure to timely give the extent such Contest could adversely affect the Purchaser's Tax Liability notice required pursuant to this Section 6.7(a).
(after taking into account any required Tax Indemnity Payment), the Purchaser b) Seller will have the right, at its option, upon timely notice to Purchaser, to assume at its own expense control of any audit or other defense of any Tax Claim (other than a Tax Claim relating solely to Taxes of RSA SLISI for a Straddle Period, which as described below, the parties shall jointly control) with its own counsel, provided that Seller's notice acknowledges Seller's indemnification liability for such claim. Seller's right to control a Tax Claim will be limited to issues in respect of which amounts in dispute would be paid by Seller or for which Seller would be liable pursuant to Section 6.4. Costs of defending or contesting such Tax Claims are to be borne by Seller unless the conduct Tax Claim relates to a Straddle Period, in which event such costs shall be fairly apportioned as described below. Purchaser and RSA SLISI at their own expense each shall cooperate with Seller in contesting any Tax Claim, which cooperation shall include the retention and, upon Seller's request, the provision of records and information that are reasonably relevant to such Tax Claim and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder. Notwithstanding the foregoing, Seller shall neither consent nor agree to the settlement of any Tax Claim with respect to any liability for Taxes that may affect the liability for any state, federal or foreign income tax of RSA SLISI or any affiliated group (as defined in section 1504(a) of the Contest at its expense, and in Code) of which case no settlement or compromise RSA SLISI is a member for any Post-Closing Tax Period without the prior written consent of issues will be made without Orbital's and OrbNav's written consentPurchaser, which consent shall not be unreasonably withheld. The Purchaser , conditioned or delayed, and neither Seller, nor any Affiliate of Seller, shall handle file an amended Tax Return that may increase the liability for Taxes of RSA SLISI for any Tax Claim relating to any Tax period of the Company included in a PrePost-Closing Tax Period without the prior written consent of Purchaser, which Orbital consent shall not be unreasonably withheld, conditioned or delayed. Purchaser and OrbNav elect Seller shall jointly control all proceedings taken in writing not connection with any Tax Claims relating solely to control, a Straddle Period of RSA SLISI and each party shall bear its own out-of-pocket costs and expenses of the Purchaser contest and all joint costs and expenses of the contest shall be entitled to defend, compromise or settle such borne in the same ratio as the applicable proposed Tax Claim in its sole discretionwould be allocated.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) shall be made against any Tax Indemnitee that would result in the indemnification of or if any such Tax proceeding shall be commenced against any Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to (including a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contestproceeding) for any Taxes as to which Lessee may have an indemnity obligation pursuant to SECTION 8.1, but in no event later than 15 days prior or if any Indemnitee shall determine that any Taxes as to the time that a written response which Lessee may have an indemnity obligation pursuant to the written notice is requiredSECTION 8.1 may be payable, unless such written notice is received and a written response is due in less than 15 daysIndemnitee shall promptly notify Lessee. Lessee shall be entitled, in which case the Purchaser shall give written notice at its expense, acting through counsel reasonably acceptable to Orbital and OrbNav as soon as practicable. If the Purchaser fails such Indemnitee, to comply with the foregoing sentenceparticipate in, Orbital or OrbNavand, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's Lessee desires to, assume and control the defense thereof; PROVIDED, HOWEVER, that Lessee shall not be entitled to assume and control the defense of any such action, suit or OrbNav's position proceeding if and to the extent that (A) Lessee is actually prejudiced as not able to provide such Indemnitee with a result legal opinion of counsel reasonably acceptable to such Indemnitee that such action, suit or proceeding does not involve (x) a risk of imposition of criminal liability or (y) any material risk of material civil liability on such Indemnitee and will not involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Encumbrance) on the Equipment, the Trust Estate or any part thereof. Orbital , unless, in the case of this CLAUSE (y), Lessee contemporaneously with such opinion shall have posted a bond or other security satisfactory to the relevant Indemnitee in respect to such risk, (B) the control of such action, suit or proceeding would involve a bona fide conflict of interest, (C) such proceeding involves Claims not fully indemnified by Lessee which Lessee and OrbNav shallthe Indemnitee have been unable to sever from the indemnified claim(s), at their election(D) a Default or Lease Event of Default has occurred and is continuing, have (E) such action, suit or proceeding involves matters which extend beyond or are unrelated to the right transaction contemplated by the Operative Documents and if determined adversely could be materially detrimental to represent the interests of the Company such Indemnitee notwithstanding indemnification by Lessee or (F) Lessee shall not have acknowledged in writing its obligation to indemnify fully such Indemnitee in respect of such action, suit or proceeding. The Indemnitee may participate in a reasonable manner at its own expense and with its own counsel in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at proceeding conducted by Lessee in accordance with the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionforegoing.
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Sellers in writing of any written notice of such Contesta proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or any of the Company and the Subsidiaries which, but in no event later than 15 days prior if determined adversely to the time taxpayer, would be grounds for indemnification under this Article VIII; provided, however, that a written response the failure to give such notice will not affect the written notice is requiredPurchaser’s right to indemnification under this Article VIII, unless the Sellers’ contesting of such written notice is received and a written response is due in less than 15 days, in which case assessment or claim would be materially prejudiced by the Purchaser shall Purchaser’s failure to promptly give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as such notice.
(b) In the case may beof an audit or administrative or judicial proceeding that relates to Pre-Closing Periods, shall not be liable to the Purchaser provided that, and only to the extent that, the Sellers acknowledge in writing their liability under this Agreement to hold the Purchaser, the Company and the Subsidiaries harmless against (i) in the case of such audit or proceeding that Orbital's or OrbNav's position is actually prejudiced relates to Pre-Closing Periods, the full amount of any adjustment which may be made as a result thereof. Orbital of such audit or proceeding that relates to such Pre-Closing Periods other than to the extent of Straddle Periods included in such Pre-Closing Periods, and OrbNav shall(ii) in the case of such audit or proceeding that relates to Pre-Closing Periods but only to the extent any such period includes a Straddle Period, at their electionan adjustment ultimately determined as allocable under Section 8.01(b) to the portion of such Straddle Period ending on or before the Closing Date), the Sellers shall have the right at their expense to represent the interests of the Company participate in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will keep proceeding; the Purchaser informed also may participate in any such audit or proceeding and, if the Sellers do not assume the defense of the progress and disposition of the Contest and no settlement any such audit or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment)proceeding, the Purchaser will may defend the same in such manner as it may deem appropriate, including settling such audit or proceeding after five days prior written notice to the Sellers setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Sellers have acknowledged their liability are required to be contested in the same audit or proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right to control the conduct of the Contest right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both the Sellers (as evidenced by their written acknowledgement under this Section 8.04) and the Purchaser or the Company or any Subsidiary could be liable, (i) both the Sellers and the Purchaser may participate in the audit or proceeding and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future taxable periods. The principle set forth in this Section 8.04(c) also shall govern for purposes of deciding any issue that must be decided jointly (including choice of judicial forum) in situations in which case no settlement separate issues are otherwise controlled under this Article VIII by the Purchaser and the Sellers.
(d) With respect to any Tax audit or proceeding for a taxable period that begins before the Closing Date, neither the Purchaser nor the Sellers shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of issues will be made without Orbital's and OrbNav's written consentthe other party, which consent shall may not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating and the Sellers agree to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlcooperate, and the Purchaser shall be entitled agrees to defendcause the Company and the Subsidiaries to cooperate, in the defense against or compromise of any claim in any such audit or settle such Tax Claim in its sole discretionproceeding.
Appears in 1 contract
Contests. Seller agrees to give written notice to Buyer, and Buyer agrees to give written notice to Seller, of the receipt of any written notice which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity relating to any Tax may be sought by Buyer from Seller pursuant to this Agreement (aa “Tax Claim”); provided, that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder. Seller may, at the Seller’s cost and expense, participate in and, upon written notice to Buyer (a “Defense Notice”), assume the defense of any Action relating solely to a Tax Claim, provided that (i) If Seller provides such written notice within ten (10) days after becoming aware of the commencement of any claim Tax Claim, (ii) the defense of such Tax Claim can be conducted separately from the defense of any Action for Tax which Seller is not responsible pursuant to this Agreement, (iii) counsel engaged by Seller is reasonably acceptable to Buyer, (iv) Seller shall thereafter regularly consult with Buyer and keep Buyer informed of any material developments with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital Claim and (v) Seller shall not, without Buyer’s prior written consent (not to be unreasonably withheld, delayed or OrbNav pursuant conditioned), agree to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreementany settlement, "Contest" means or appeal any auditadverse determination, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or Claim (each such Tax Claim assumed by Seller, a “Seller Tax Claim,” and any other Tax IndemniteeClaim, a “Buyer Tax Claim”). Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser Buyer shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right (but not the duty) to represent participate in the interests defense of any Seller Tax Claim and to employ counsel, at its own expense, separate from the counsel employed by Seller in such Seller Tax Claim. Buyer shall retain the defense over any Buyer Tax Claim, provided that (i) Buyer shall provide written notice within ten (10) days after becoming aware of the Company in commencement of any Contest relating Buyer Tax Claim, (ii) counsel engaged by Buyer is reasonably acceptable to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity PaymentSeller, to employ counsel of Orbital's (iv) Buyer shall thereafter regularly consult with Seller and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser Seller informed of the progress any material developments with respect to such Buyer Tax Claim and disposition of the Contest and no settlement or compromise of issues will be made (v) Buyer shall not, without the Purchaser's Seller’s prior written consent, which consent shall (not to be unreasonably withheld and providedwithheld, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Paymentdelayed or conditioned), the Purchaser will agree to any settlement, or appeal any adverse determination, with respect to any Buyer Tax Claim. Seller shall have the right (but not the duty) to control participate in the conduct defense of the Contest any Buyer Tax Claim and to employ counsel, at its own expense, and separate from the counsel employed by Buyer in which case no settlement or compromise such Buyer Tax Claim. Seller’s delivery of issues will be made without Orbital's and OrbNav's written consenta Defense Notice shall constitute an acceptance of its obligation hereunder to indemnify Buyer with respect to all Losses, which consent shall not be unreasonably withheld. The Purchaser shall handle any if any, resulting from the subject Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretionClaim.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Century Casinos Inc /Co/)
Contests. (ai) If Promptly after receipt by any claim Party or any of their Affiliates of a written notice of the assertion or commencement of any claim, assessment, deficiency, audit, review, examination or other proposed change or adjustment by any Governmental Body or any judicial or administrative proceeding (each, a “Tax Claim”) relating to a Pre-Closing Tax Period of Mandate (or any other Tax Claim for which the Sellers may be liable under this Agreement), the recipient shall notify in writing Purchaser and/or the Mandate Representative of the Tax with respect to OrbNav's Membership Interest is asserted Claim, as applicable. Such notice must be sent in a Contest timely manner and must contain factual information (as defined belowto the extent known) against describing the Tax Claim in reasonable detail and must include copies of the notice and any Tax Indemnitee that would result or other document received from any Governmental Body in the indemnification respect of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(aClaim.
(ii) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest Except as provided in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contestsubparagraph (iv) below, the Purchaser Mandate Representative shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser of any written notice of such Contest, but in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent control and direct the interests conduct, defense, prosecution, settlement and compromise of such Tax Claim and to file amended Tax Returns or claims for Tax refunds or credits with respect to Tax periods ending on or before the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity PaymentClosing Date, and to employ counsel of Orbital's and OrbNav's its choice at the its expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, in connection therewith; provided, however, that Orbital Purchaser and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues its representatives will be made permitted, at their expense, to be present at all proceedings and to review all correspondence and submissions related to any such Tax Claim, amended Tax Return or claim for Tax refund or credit. Notwithstanding the foregoing, the Mandate Representative shall not have the right to settle, concede or compromise, either administratively or after the commencement of litigation, any such Tax Claim or file any amended Tax Return or claim for Tax refund or Tax credit, that would result in an aggregate increased Tax liability for Purchaser or its Affiliates (excluding Taxes covered by the Sellers’ indemnification obligations) of more than Thirty-Five Thousand Dollars ($35,000), excluding interest and penalties, without the prior written consent of Purchaser's written consent, which . Such consent shall not be unreasonably withheld withheld, and provided, further, that shall not be necessary to the extent that the Sellers or Mandate have agreed to indemnify Purchaser or its Affiliates against such Contest could adversely affect the Purchaser's increased Tax Liability liability.
(after taking into account any required Tax Indemnity Payment)iii) Except as provided in subparagraph (iv) below, the Purchaser will shall have the right to control and direct the conduct, defense, prosecution, settlement and compromise of any Tax Claim to the extent that such Tax Claim pertains to a taxable period beginning after the Closing Date; provided, however, that the Mandate Representative and its representatives will be permitted, at their expense, to be present at all proceedings and review all correspondence and submissions related to any such Tax Claim if it is reasonably foreseeable that the disposition thereof could affect the Sellers’ liability for Taxes to any Governmental Body or to Purchaser under this Agreement. Neither Purchaser nor any of its Affiliates (including Mandate) shall have the right to settle, concede or compromise, either administratively or after the commencement of litigation, any Tax Claim or file any amended Tax Return or claim for Tax refund or Tax credit, if such action would adversely affect the aggregate liability for Taxes of any Seller or their indemnification obligations to Purchaser under this agreement of more than Thirty-Five Thousand Dollars ($35,000), excluding penalties and interest, without the prior written consent of the Mandate Representative. Such consent shall not be unreasonably withheld, and shall not be necessary to the extent that Purchaser has agreed to indemnify the Sellers against the effects of any such settlement.
(iv) In the case of a Tax Claim involving a Tax liability or potential Tax liability of Mandate relating to a period beginning before and ending after the Closing Date (a “Straddle Period”), then the conduct of such Tax Claim shall be tendered to the Contest Mandate Representative provided (1) the Tax Claim pertains solely to Taxes for which the Sellers are financially responsible under this Agreement and (2) the resolution of such Tax Claim shall not adversely affect the Purchaser’s tax reporting positions for items of income, gain, deductions and losses arising after the Closing Date. In all other cases relating to a Straddle Period, the Mandate Representative and the Purchaser will jointly conduct the Tax Claim using legal counsel or other tax advisors reasonably acceptable to both parties. Regardless of which party controls a Tax Claim under this subparagraph (iv), both the Purchaser and the Mandate Representative and their representatives will be permitted, at its their expense, to be present at all proceedings and in which case no settlement to review all correspondence and submissions related to such Tax Claim, and neither party shall, or cause or permit any of its Affiliates or Mandate to, settle, concede or compromise a Tax Claim relating to a Straddle Period without the prior written consent of issues will the Mandate Representative (if the Sellers may be made without Orbital's and OrbNav's adversely affected thereby) or the prior written consentconsent of LGE (if Purchaser or LGE maybe adversely affected thereby), which consent shall not be unreasonably withheld. The Purchaser shall handle any Except as provided in the preceding sentence, all of the costs of the conduct of a Tax Claim relating to any Tax period a Straddle Period that can be directly allocated to the portions of the Company included in a Pre-Closing Tax Period Claim for which Orbital the Sellers or Purchaser are financially responsible, as applicable, shall be so allocated to such parties and OrbNav elect in writing any costs that cannot to control, be so allocated will be shared between Purchaser and the Purchaser Sellers based on their proportionate amounts of the Tax that is ultimately assessed (or, if such Tax is not ultimately assessed, the proportionate amount of such Tax that was contested in such Tax Claim) that relates to the portion of such Straddle Period ending on the Closing Date and the portion thereof beginning after the Closing Date.
(v) If the Parties are unable to resolve any dispute relating to the settlement of a Tax Claim, the matter shall be entitled submitted to defenda mutually acceptable nationally recognized accounting firm for resolution, compromise or settle which accounting firm shall be instructed to resolve such Tax Claim dispute in its sole discretionaccordance with the standards contained in this Section 5.1.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Lions Gate Entertainment Corp /Cn/)
Contests. This Section 7.15(e), and not Section 10.4 shall govern Tax Claims.
(ai) If Parent or any controlled affiliate of Parent is notified that a claim for shall be made against Parent, the Stockholder, any Certificate Holder, or any S Corporation Shareholder, the Company, or any of their affiliates, by any Governmental Entity, which, if successful, could be reasonably expected to (A) increase the Tax with respect to OrbNav's Membership Interest is asserted in a Contest liability of the Stockholder, any Certificate Holder, or any S Corporation Shareholder or (as defined belowB) against any Tax Indemnitee that would result in the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this an indemnity payment under Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such Contest, the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest 10.2 relating to a Tax matter that is breach or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser inaccuracy of any written notice representation made in Section 3.10 or relating to a breach of a covenant or agreement contained in Section 6.2(p) or this Article VII (any such claim, a “Tax Claim”), then Parent shall promptly notify the Stockholder in writing of such ContestTax Claim stating the nature and basis of such Tax Claim and the amount thereof; provided, but in no event later than 15 days prior that the failure to timely notify the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as the case may be, Stockholder shall not be liable relieve the Stockholder of any liability pursuant to the Purchaser Section 10.2 except to the extent that Orbital's or OrbNav's position the Stockholder is actually prejudiced as a result thereof. Orbital and OrbNav shallconsequence of such failure.
(ii) With respect to any audit, at their electionassessment, have the right to represent the interests of the Company in any Contest relating or administrative or court proceeding or similar proceeding (a “Tax Proceeding”) that relates to a Tax matter for which Orbital or OrbNav may be required Claim solely with respect to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or other disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect of the Company or any Subsidiary of the Company, the Stockholder shall have the right to control all proceedings taken in writing not to controlconnection with such Tax Proceeding (including selection of counsel); provided, and the Purchaser that (A) Parent shall be entitled to defendparticipate at its own expense in any such Tax Proceeding, compromise (B) the Stockholder shall cooperate with Parent in the defense of any such Tax Proceeding and (C) the Stockholder shall obtain the prior written consent of Parent (not to be unreasonably conditioned, withheld or settle delayed) prior to the settlement of any Tax Proceeding that could reasonably be expected to increase the tax liability of Parent or, for any taxable period other than a Pre-Closing Tax Period, the Company or any Subsidiary of the Company. Parent, the Company, and the Company’s Subsidiaries shall grant, and shall use their reasonable efforts to cause their respective affiliates to grant, one or more powers of attorney deemed reasonably necessary or appropriate by the Stockholder in connection with any Tax Proceeding subject to this Section 7.15(e)(ii). The Stockholder shall remit or cause to be remitted any Taxes resulting from settlement of such Tax Claim.
(iii) With respect to any Tax Proceeding that is not the subject of Section 7.15(e)(ii) and that relates either to a Tax Claim or to a Pre-Closing Tax Period or Straddle Period of the Company or any of its Subsidiaries, Parent shall control all proceedings taken in connection with such Tax Proceeding (including selection of counsel); provided, that (i) Stockholder shall be entitled to participate at its own expense in any such Tax Proceeding, (ii) Parent will cooperate with Stockholder in the defense of any such Tax Proceeding and (iii) Parent shall obtain the prior written consent of the Stockholder (not to be unreasonably conditioned, withheld or delayed) prior to the settlement of any such Tax Proceeding. Parent shall remit or cause to be remitted any Taxes resulting from settlement of such Tax Claim; provided, that the Stockholder shall pay Parent or cause Parent to be paid the amount of Taxes resulting from settlement of such Tax Claim that are allocable to a Pre-Closing Tax Period or the portion of a Straddle Period ending on and including the Closing Date.
(iv) Parent shall control all Tax Proceedings that are not described in its sole discretionSection 7.15(e)(ii)-(iii).
Appears in 1 contract
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of the existence of such ContestClosing, the Purchaser shall give written notice to Orbital and OrbNav of promptly notify the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Sellers in writing of any written notice of such Contesta proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or of any of the Partnership and the Subsidiaries which, but in no event later than 15 days prior if determined adversely to the time taxpayer, would be grounds for indemnification under this Article VI or could otherwise result in any Tax cost to any of the Sellers; provided, however, that a written response failure to give such notice will not affect the Purchaser's right to indemnification under this Article VI except to the written notice is required, unless extent such written notice is received and a written response is due in less than 15 days, in which case failure on the part of the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If or any Affiliate of the Purchaser fails prejudices the Sellers by preventing the avoidance of all or a portion of the Tax liability in question.
(b) In the case of an audit or administrative or judicial proceeding that relates to comply periods ending on or before the Closing Date, provided that the Sellers acknowledge in writing their indemnification obligation liability under Article VI of this Agreement with respect to the foregoing sentencepotential liability of the Purchaser, Orbital the Partnership or OrbNavany Subsidiary as a result of such audit or administrative or judicial proceeding, the Sellers (or the Parent Entities, as the case may be, ) shall not be liable to have the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shallright, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Paymentexpense, to employ counsel of Orbital's participate in and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contestaudit or proceeding; the Purchaser may also participate in any such audit or proceeding but only if such audit or proceeding relates to non-income Taxes and, if the Sellers do not assume the defense of any such audit or proceeding, the Purchaser, at its expense, may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Sellers setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Sellers have acknowledged their indemnification obligation are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or proceeding with respect to the latter issues, provided that the Purchaser provides the Sellers with a written acknowledgement of the Purchaser's liability.
(c) Notwithstanding Section 6.04(b), neither the Purchaser nor the Sellers shall enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding, including settlement without limitation a Federal, state or local income Tax audit or 49 44 proceeding to the extent it involves Partnership items, which would adversely affect the other disposition party for such year or any prior or subsequent year without the written consent of the other party which consent may not be unreasonably withheld. If the Purchaser or the Sellers refuse to provide the respective other party with written consent to settle any such claim, then the parties shall submit the matter to an Independent Firm and the Independent Firm shall resolve the issue based on a standard of maximal fairness to both the Purchaser and the Sellers.
(d) The Purchaser and the Sellers (or the Parent Entities, as the case may be) shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with (i) the filing of Returns pursuant to Section 6.03 (including such amended Returns for periods (or portions thereof, ) ending on or prior to the Closing Date that the Sellers or the Parent Entities may reasonably request the Purchaser to file; provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without if in the Purchaser's written consent, which consent shall not reasonable judgment the filing of the amended return would be unreasonably withheld and provided, further, that disadvantageous to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have may deny the right to control Sellers' or the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, Parent Entities' request and the parties shall submit the matter to an Independent Firm and the Independent Firm shall resolve the issue based on a standard of maximal fairness to both the Purchaser shall be entitled and the Sellers or the Parent Entities, as the case may be]) and (ii) any audit, litigation or other proceeding with respect to defend, compromise or settle such Tax Claim in its sole discretionTaxes.
Appears in 1 contract
Sources: General Partnership Interest Purchase Agreement (Galileo International Inc)
Contests. (a) If any claim for Tax with respect to OrbNav's Membership Interest is asserted in a Contest (as defined below) against any Tax Indemnitee that would result in After the indemnification of any such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this Section 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, "Contest" means any audit, court proceeding or other dispute with respect to any Tax matter that affects OrbNav's Membership Interest in the Company or any other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav date of the existence of such ContestEffective Time, Parent shall promptly notify the Purchaser shall give written notice to Orbital and OrbNav of the existence of any Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by the Purchaser Equityholders’ Representative in writing of any written notice of a proposed adjustment or claim in an audit or administrative or judicial proceeding involving Parent or the Company which, if determined adversely to the taxpayer, would be grounds for indemnification under Article 9; provided, however, that a failure to give such Contestnotice will not affect Parent’s right to indemnification thereunder except to the extent, if any, that, but for such failure, the Equityholders could have avoided the Tax liability in no event later than 15 days prior to the time that a written response to the written notice is required, unless such written notice is received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or OrbNav, as question.
(b) In the case of an audit or administrative or judicial proceeding that relates solely to taxable periods ending on or before the date of the Effective Time, provided that the Equityholders’ Representative acknowledges in writing the right of the Parent Indemnified Persons to be held harmless against the full amount of any adjustment that may be, shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced made as a result thereof. Orbital and OrbNav shallof such audit or proceeding, at their election, the Equityholders’ Representative shall have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the Equityholders’ expense of Orbital to participate in and OrbNav and to control the conduct of such Contest, including settlement audit or other disposition thereof, provided, however, that Orbital and OrbNav will proceeding. The Equityholders’ Representative shall keep the Purchaser Parent informed of the progress of any such audit or proceeding, and disposition of the Contest and no settlement Parent also may participate in any such audit or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest proceeding at its expense, and in which case no settlement or compromise . The Equityholders’ Representative shall not settle any proceeding without the consent of issues will be made without Orbital's and OrbNav's written consentParent, which consent shall not be unreasonably withheld, if the settlement would adversely affect the Surviving Corporation. The Purchaser shall handle If the Equityholders’ Representative does not assume the defense of any Tax Claim relating such audit or proceeding, Parent may defend the same in such manner as it may deem appropriate at its expense, including, but not limited to, settling such audit or proceeding.
(c) With respect to any Tax period of other audit or proceeding not controlled by the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to controlEquityholders’ Representative, and the Purchaser such audit or proceeding shall be entitled to defend, compromise or settle such Tax Claim in its sole discretioncontrolled by Parent.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Medicis Pharmaceutical Corp)