Common use of Certain Conduct Clause in Contracts

Certain Conduct. (i) Without the prior written consent of Seller, not to be unreasonably withheld, conditioned or delayed, Buyer shall not (and shall not cause or permit any of its Affiliates, the Acquired Companies or the Related Consolidated Entities to): (x) amend, refile or otherwise modify any Tax Return of or relating (in whole or in part) to the Acquired Companies or Related Consolidated Entities with respect to any Pre-Closing Tax Period, or (y) make any Tax election (A) with respect to any of the Acquired Companies or Related Consolidated Entities that has retroactive effect to a Pre-Closing Tax Period or relates to any Seller Tax Return or (B) if such election would reasonably be expected to result in a material adverse consequence to Seller under this Agreement or to any member of the Seller Group. Neither Buyer nor Seller (nor any of their Affiliates) shall file or cause to be filed any election under Section 338 or Section 336 of the Code (or any similar election under state, local or non-U.S. law) with respect to the Transactions. (ii) Seller hereby agrees to make an election (which may be on a protective basis) under Treasury Regulations Section 1.1502-36(d)(6)(i)(A) (and under any comparable provisions of state or local Law) to reduce Seller’s basis in the Acquired Interests in order to avoid any reduction in the Tax attributes of any of the Acquired Companies or Related Consolidated Entities pursuant to Treasury Regulations Section 1.1502-36 (and pursuant to any comparable provisions of state or local Law). Seller shall provide a copy of any election described in this Section 5.11(c)(ii) (together with reasonable supporting documentation setting forth any relevant calculations) to Buyer at least 30 days prior to the due date for such election and shall reflect any reasonable comments delivered by Buyer on such election.