Common use of Control of Tax Contests Clause in Contracts

Control of Tax Contests. FTAI shall have the sole responsibility and control over the handling of any Tax Contest, including the exclusive right to communicate with agents of the Taxing Authority, involving (A) any Pre-Closing Period Tax Return of FTAI Infrastructure or any member of the FTAI Infrastructure Group or otherwise relating to the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for a Pre-Closing Period or (B) any Straddle Period Tax Return of FTAI Infrastructure or any member of the FTAI Infrastructure Group or otherwise relating to the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for a Straddle Period, in each case if the liability for the accompanying Tax Contest would be imposed on FTAI, its Subsidiaries, or its Shareholders. Upon FTAI Infrastructure’s request, FTAI Infrastructure shall be allowed to participate in, but not to control, at FTAI Infrastructure’s expense, the handling of any such Tax Contest with respect to any item that may affect FTAI Infrastructure’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement, and upon FTAI’s request, FTAI shall be allowed to participate in, but not to control, at FTAI’s expense, the handling of any other Tax Contest with respect to any item that may affect FTAI’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement. Neither FTAI nor FTAI Infrastructure shall settle or concede any Tax Contest with respect to any item in excess of $50,000 for which the other party or an affiliate of the other party is liable without the prior written consent of such party, which consent shall not be unreasonably withheld, delayed, or conditioned.

Control of Tax Contests. FTAI shall Parent will have the sole responsibility and control over the handling of right to (a) contest, compromise or settle any adjustment or deficiency proposed or asserted with respect to any Tax Contest, including the exclusive right to communicate with agents liability of the Taxing Authority, involving (A) any Pre-Closing Period a Parent Tax Return of FTAI Infrastructure Group member or any a Galleria Tax Group member of the FTAI Infrastructure Group or otherwise relating to the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for a Pre-Closing Tax Period or with respect to a Joint Return, and (Bb) file, prosecute, compromise or settle any Straddle Period Adjustment Request (and determine the manner in which any Refund will be received) with respect to any Tax Return for such period or return; provided, however, that (i) in the case of FTAI Infrastructure a Galleria Separate Return, the Acquiror Tax Group will have the right to actively participate in any action set forth in clauses (a) and (b) above if such action could result in any Galleria Group Taxes or any member Transaction Taxes with respect to which the Acquiror Tax Group could be liable, and, solely to the extent such Tax Contest relates to Galleria Group Taxes or any Transaction Taxes with respect to which the Acquiror Tax Group has previously acknowledged its liability in writing, Acquiror will have the same rights and obligations with respect to any settlement or compromise of such Tax Contest as Acquiror will have in the case of a settlement or compromise of a Tax Contest involving a Joint Return under clause (ii) immediately below; and (ii) in the case of a Joint Return, solely to the extent such Tax Contest relates to Transaction Taxes with respect to which the Acquiror Tax Group could be liable, in whole or in part, under Section 2.02 (an “Acquiror Issue”), Parent will reasonably consult with Acquiror with respect to Parent’s defense and control of such Tax Contest exclusively with respect to the Acquiror Issue, including through the following: (x) Parent will keep Acquiror fully informed, in all material respects, regarding the progress of the FTAI Infrastructure prosecution or defense of such Tax Contest, (y) Parent will promptly provide Acquiror with copies of any correspondence received from any Taxing Authority in connection with such Tax Contest, and (z) Parent will provide Acquiror with drafts of any correspondence from Parent to any Taxing Authority in connection with such Tax Contest and will provide Acquiror with a reasonable opportunity to comment on such correspondence; provided, further, that, if the Acquiror Tax Group acknowledges its liability in writing for all or otherwise relating the relevant percentage (in each case, as determined pursuant to Section 2.02) of the Transaction Taxes that would be owed to a Taxing Authority in the event of an adverse determination with respect to the FTAI Infrastructure Assets Acquiror Issue, Parent will, subject to the Upfront Payment Requirement (as defined below), not settle or FTAI Infrastructure Liabilities compromise any such contest without Acquiror’s written consent, which consent may not be unreasonably withheld, delayed or conditioned; provided, further, however, that, if Acquiror withholds its consent to a settlement or compromise described in the immediately preceding proviso, the Acquiror Tax Group will be liable for all or the relevant percentage (in each case, as determined pursuant to Section 2.02) of the Transaction Taxes resulting from a Final Determination to the extent the basis for the Final Determination is such that the Acquiror Tax Group would have liability, in whole or in part, under Section 2.02 for the applicable Transaction Taxes, or for all of the Transaction Taxes resulting from a Final Determination if such Final Determination fails to clearly articulate the basis for liability such that it is not reasonably ascertainable which Party would be liable for the Transaction Taxes under this Agreement. Parent and Acquiror will use their reasonable best efforts to ensure that the Final Determination clearly provides the basis for such determination. Acquiror will have the right to (I) contest, compromise or settle any adjustment or deficiency proposed or asserted with respect to any Tax liability included in any Galleria Separate Return for a Straddle Period, and (II) file, prosecute, compromise or settle any Adjustment Request (and determine the manner in each which any Refund will be received) with respect to any Tax for such period; provided, however, that Parent will have the right to actively participate in any action set forth in clauses (I) and (II) above if such action could result in any Parent Group Taxes or any Transaction Taxes with respect to which Parent has previously acknowledged its liability in writing, and Acquiror will, subject to the Upfront Payment Requirement, not settle or compromise any such contest without Parent’s written consent, which consent may not be unreasonably withheld, delayed or conditioned. If Parent or Acquiror, as the case if the liability for the accompanying may be, properly objects to a proposed settlement or compromise of a Tax Contest would be imposed on FTAIunder this Section 5.02, its Subsidiariesand it is necessary under applicable Law to pay the asserted deficiency in order to pursue the Tax Contest, Parent or Acquiror, as the case may be, will pay, or its Shareholders. Upon FTAI Infrastructure’s requestprovide Acquiror or Parent, FTAI Infrastructure shall as applicable, with funds necessary to pay the Tax deficiency that has been asserted in connection with the Tax Contest and will be allowed entitled to participate inbe repaid any such amounts recovered by any Acquiror Tax Group or Parent Tax Group member, but not to controlas the case may be, at FTAI Infrastructure’s expense, the handling together with any interest received or credited thereon as a result of any such Tax Contest with respect to any item that may affect FTAI Infrastructure’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement, and upon FTAI’s request, FTAI shall be allowed to participate in, but not to control, at FTAI’s expense, the handling of any other Tax Contest with respect to any item that may affect FTAI’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement. Neither FTAI nor FTAI Infrastructure shall settle or concede any Tax Contest with respect to any item in excess of $50,000 for which the other party or an affiliate of the other party is liable without the prior written consent of such party, which consent shall not be unreasonably withheld, delayed, or conditioned“Upfront Payment Requirement”).

Control of Tax Contests. FTAI Parent shall have the sole responsibility and control over the handling of right to (i) contest, compromise or settle any adjustment or deficiency proposed or asserted with respect to any Tax Contest, including the exclusive right to communicate with agents liability of the Taxing Authority, involving (A) any Pre-Closing Period Tax Return of FTAI Infrastructure a Parent Group member or any a Wimbledon Group member of the FTAI Infrastructure Group or otherwise relating to the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for a Pre-Closing Period or with respect to a Joint Return, and (Bii) file, prosecute, compromise or settle any Straddle Period Adjustment Request (and determine the manner in which any Refund shall be received) with respect to any Tax Return for such period or return; provided, however, that (a) in the case of FTAI Infrastructure a Wimbledon Separate Return, the Acquiror Group shall have the right to actively participate in any action set forth in clauses (i) and (ii) above if such action could result in any Wimbledon Group Taxes or any member Transaction Taxes with respect to which the Acquiror Group has previously acknowledged its liability in writing, and Parent shall, subject to the last sentence of this Section 5.02, not settle or compromise any such contest without Acquiror’s written consent, which consent may not be unreasonably withheld, delayed or conditioned; and (b) in the case of a Joint Return, to the extent such Tax Contest solely relates to Transaction Taxes with respect to which the Acquiror Group could be liable under Section 2.02(a) (an “Acquiror Issue”), Parent shall reasonably consult with the Acquiror Group with respect to Parent’s defense and control of such Tax Contest, including through the following: (x) Parent shall keep Acquiror fully informed, in all material respects, regarding the progress of the FTAI Infrastructure prosecution or defense of such Tax Contest, (y) Parent shall promptly provide Acquiror with copies of any correspondence received from any Taxing Authority in connection with such Tax Contest, and (z) Parent shall provide Acquiror with drafts of any correspondence from Parent to any Taxing Authority in connection with such Tax Contest and shall provide Acquiror with a reasonable opportunity to comment on such correspondence; provided, further, that, if the Acquiror Group or otherwise relating acknowledges its liability in writing for all the Transaction Taxes that would be owed to a Taxing Authority in the event of an adverse determination with respect to the FTAI Infrastructure Assets Acquiror Issue, Parent shall, subject to the last sentence of this Section 5.02, not settle or FTAI Infrastructure Liabilities compromise any such contest without Acquiror’s written consent, which consent may not be unreasonably withheld, delayed or conditioned; provided, further, however, that, if Acquiror withholds its consent to a settlement or compromise described in the immediately preceding proviso, Acquiror shall be liable for any Transaction Taxes resulting from a Final Determination to the extent the basis for the Final Determination is such that the Acquiror Group would have liability for the applicable Transaction Taxes under this Agreement, or if the Final Determination fails to clearly articulate the basis for liability such that it is not reasonably ascertainable which party would be liable for the Transaction Taxes under this Agreement. Parent and Acquiror shall use their reasonable best efforts to ensure that the Final Determination clearly provides the basis for such determination. Acquiror shall have the right to (I) contest, compromise or settle any adjustment or deficiency proposed or asserted with respect to any Tax liability included in any Wimbledon Separate Return for a Straddle Period, and (II) file, prosecute, compromise or settle any Adjustment Request (and determine the manner in each case if the liability for the accompanying Tax Contest would be imposed on FTAI, its Subsidiaries, or its Shareholders. Upon FTAI Infrastructure’s request, FTAI Infrastructure which any Refund shall be allowed to participate in, but not to control, at FTAI Infrastructure’s expense, the handling of any such Tax Contest received) with respect to any item Tax for such period; provided, however, that may affect FTAI Infrastructure’s Parent shall have the right to actively participate in any action set forth in clauses (I) and (II) above if such action could result in any Parent Group Taxes or its Subsidiaries or its Shareholders’) liability for any Transaction Taxes pursuant to this Agreement, and upon FTAI’s request, FTAI shall be allowed to participate in, but not to control, at FTAI’s expense, the handling of any other Tax Contest with respect to any item that may affect FTAI’s (or which the Parent Group has previously acknowledged its Subsidiaries or its Shareholders’) liability for Taxes pursuant in writing and Acquiror shall, subject to the last sentence of this Agreement. Neither FTAI nor FTAI Infrastructure shall Section 5.02, not settle or concede compromise any Tax Contest with respect to any item in excess of $50,000 for which the other party or an affiliate of the other party is liable such contest without the prior Parent’s written consent of such partyconsent, which consent shall may not be unreasonably withheld, delayeddelayed or conditioned. If Parent or Acquiror, as the case may be, properly objects to a proposed settlement or compromise of a Tax Contest under this Section 5.02, and it is necessary under applicable Law to pay the asserted deficiency in order to pursue the Tax Contest, Parent or Acquiror, as the case may be, shall pay, or conditionedprovide Acquiror or Parent, as applicable, with funds necessary to pay the Tax deficiency that has been asserted in connection with the Tax Contest and shall be entitled to be repaid any such amounts recovered by any Acquiror Group or Parent Group member, as the case may be, together with any interest received or credited thereon as a result of any such Tax Contest.

Control of Tax Contests. FTAI shall have the sole responsibility and control over the handling of (i) Except for any Tax Contest, including the exclusive right Contest covered under Section 5.7(i)(ii) relating to communicate with agents of the Taxing Authority, involving (A) any Pre-Closing Period 2016 Tax Return of FTAI Infrastructure Periods or any member of the FTAI Infrastructure Group or otherwise Tax Contest relating to the FTAI Infrastructure Assets or FTAI Infrastructure Liabilities for a Pre-Closing Period or (B) any Straddle Period Tax Return covered under Section 5.7(i)(iv), if notice of FTAI Infrastructure or any member of the FTAI Infrastructure Group or otherwise Tax Contest relating to the FTAI Infrastructure Assets Company that might give rise to a claim for indemnity pursuant to Section 5.7(h) is received by Seller or FTAI Infrastructure Liabilities for a Straddle PeriodBuyer (or any of their Affiliates), the party that receives such notice shall notify the other party in writing of such Tax Contest within fifteen (15) days after receipt thereof; provided, that the failure of the Buyer to deliver any required notice shall not relieve the Seller of any of its obligations under this Section 5.7 except to the extent the Seller is actually and materially prejudiced by such failure. With respect to any such Tax Contest, if the Seller notifies the Buyer that it wishes to assume control of the Tax Contest within fifteen (15) days of receipt of the notice of such Tax Contest, the Seller shall be entitled to control the conduct of such Tax Contest at Seller’s expense; provided, however, that with respect to any Tax Contest covered under this Section 5.7(i)(i), (A) the Buyer shall have the right to participate in such Tax Contest at its own expense, (B) Seller shall keep Buyer reasonably informed with respect to such Tax Contest, shall consult with Buyer in advance of making any material written submissions in respect of such Tax Contest and shall promptly provide Buyer with copies of any material correspondence with respect to such Tax Contest and (C) the Seller shall not settle, compromise and/or concede any portion of such Tax Contest without the prior written consent of the Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, in each the case if the liability for the accompanying Tax Contest would be imposed on FTAI, its Subsidiaries, or its Shareholders. Upon FTAI Infrastructure’s request, FTAI Infrastructure shall be allowed to participate in, but not to control, at FTAI Infrastructure’s expense, the handling of any such a Tax Contest with respect to any item that may affect FTAI Infrastructure’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this AgreementCombined Tax Return, and upon FTAI’s request, FTAI the Seller shall be allowed have the sole right to participate in, but control and resolve such Tax Contest. (ii) If notice of any Tax Contest relating to the Company (including Predecessor) for any 2016 Tax Period that might give rise to an indemnity claim under Section 5.7(h) is received by the Seller or Buyer (or any of their Affiliates), the party that receives such notice shall notify the other party in writing of such Tax Contest within fifteen (15) days after receipt thereof; provided, that the failure of Buyer to deliver any required notice shall not relieve the Seller of any of its obligations under this Section 5.7 except to the extent the Seller is actually and materially prejudiced by such failure. With respect to any such Tax Contest, the Seller shall (at Seller’s expense) have the right to control, at FTAI’s expenseand/or to designate a Person familiar with the tax issues of the Company (including Predecessor) relating to the 2016 Tax Period (the “Designated Tax Person”) to control, the handling conduct and resolution of any other such Tax Contest Contest; provided, however, that, subject to the last sentence of this Section 5.7(i)(ii), (A) Seller shall keep Buyer reasonably informed with respect to such Tax Contest, shall consult with Buyer in advance of making any item that may affect FTAI’s (or its Subsidiaries or its Shareholders’) liability for Taxes pursuant to this Agreement. Neither FTAI nor FTAI Infrastructure shall settle or concede any written material submissions in respect of such Tax Contest and shall promptly provide Buyer with copies of any material correspondence with respect to such Tax Contest and (B) the Seller (or the Designated Tax Person, as applicable) shall not settle, compromise and/or concede any item in excess portion of $50,000 for which such Tax Contest that would affect the other party or an affiliate of the other party is liable Buyer, without the prior written consent of the Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the preceding sentence, if with respect to any Tax Contest described in this Section 5.7(i)(ii): (A) the 2016 Seller has the right to control such Tax Contest pursuant to the 2016 Acquisition Agreement and chooses to do so and (B) the 2016 Acquisition Agreement limits the Seller’s rights to notice or the receipt of information with respect to, or the Seller’s right to consent or withhold consent to any settlement of, such Tax Contest, Buyer’s rights under the preceding sentence with respect to such Tax Contest shall be correspondingly limited for so long as (and to the extent that) the Seller’s rights remain so limited. (iii) Except with respect to any Tax relating to any Straddle Period Tax Return covered under Section 5.7(i)(iv), if (x) the Seller shall decline to assume control of the conduct of a Tax Contest described in Section 5.7(i)(i) or (y) the Seller and the Designated Tax Person each shall decline to assume control of the conduct of a Tax Contest described in Section 5.7(i)(ii), then, in each case, the Buyer may (at Seller’s expense) assume the control of the conduct of such Tax Contest; provided that (A) the Seller (and/or the Designated Tax Person, as applicable) shall have the right to participate in such Tax Contest at its (or their) own expense and (B) the Buyer shall not settle, compromise and/or concede such Tax Contest without the prior written consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed. (iv) If any notice of any Tax Contest in respect of any Straddle Period that might give rise to an indemnity claim under Section 5.7(h) is received by Seller or Buyer (or any of their Affiliates), the party that receives such notice shall notify the other party in writing of such Tax Contest within fifteen (15) days after receipt thereof; provided, that the failure of the Buyer to deliver any required notice shall not relieve the Seller of any of its obligations under this Section 5.7 except to the extent the Seller is actually and materially prejudiced by such failure. The Seller and the Buyer shall have joint control over any such Tax Contest at their own expense; provided, however, that, (A) each party shall keep the other party reasonably informed with respect to such Tax Contest, shall consult with the other party in advance of making any written submissions in respect of such Tax Contest and shall promptly provide the other party with copies of any material correspondence with respect to such Tax Contest and (B) neither party shall settle, compromise and/or concede any portion of such Tax Contest without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, or conditioned. (v) Any Tax Contest that is outstanding at the time of the Closing shall be governed by the provisions set forth in the applicable paragraph in this Section 5.7(i) (as if the Buyer had notified the Seller of such Tax Contest).