RULING.
(II)
PRIVATE LETTER RULINGS AT SPINCO'S
REQUEST.
PARENT AGREES THAT AT THE REASONABLE REQUEST OF SPINCO PURSUANT TO
SECTION 4(C), PARENT SHALL (AND SHALL CAUSE EACH MEMBER OF THE PARENT GROUP TO)
COOPERATE WITH SPINCO AND USE ITS REASONABLE BEST EFFORTS TO SEEK TO OBTAIN, AS
EXPEDITIOUSLY AS POSSIBLE, A PRIVATE LETTER RULING FROM THE IRS AND/OR ANY OTHER
APPLICABLE TAX AUTHORITY FOR THE PURPOSE OF CONFIRMING COMPLIANCE ON THE PART OF
SPINCO OR ANY MEMBER OF THE SPINCO GROUP WITH ITS OBLIGATIONS UNDER
SECTION 4(B) OF THIS AGREEMENT.
FURTHER, IN NO EVENT SHALL PARENT BE REQUIRED
TO FILE ANY REQUEST FOR A PRIVATE LETTER RULING UNDER
16
THIS SECTION 4(D)(II) UNLESS SPINCO REPRESENTS THAT (A) IT HAS READ THE REQUEST
FOR THE PRIVATE LETTER RULING AND ANY MATERIALS, APPENDICES AND EXHIBITS
SUBMITTED OR FILED THEREWITH, AND (B) ALL INFORMATION AND REPRESENTATIONS, IF
ANY, RELATING TO ANY MEMBER OF THE SPINCO GROUP, CONTAINED IN THE PRIVATE LETTER
RULING DOCUMENTS ARE TRUE, CORRECT AND COMPLETE IN ALL MATERIAL RESPECTS.
SPINCO SHALL REIMBURSE PARENT FOR ALL REASONABLE COSTS AND EXPENSES INCURRED BY
THE PARENT GROUP IN OBTAINING A PRIVATE LETTER RULING REQUESTED BY SPINCO WITHIN
10 BUSINESS DAYS AFTER RECEIVING AN INVOICE FROM PARENT THEREFOR.
SPINCO HEREBY
AGREES THAT PARENT SHALL HAVE SOLE AND EXCLUSIVE CONTROL OVER THE PROCESS OF
OBTAINING A PRIVATE LETTER RULING, AND THAT ONLY PARENT SHALL APPLY FOR A
PRIVATE LETTER RULING.
IN CONNECTION WITH OBTAINING A PRIVATE LETTER RULING
PURSUANT TO THIS SECTION 4(D)(II), (A) PARENT SHALL, TO THE EXTENT PRACTICABLE,
CONSULT WITH SPINCO REASONABLY IN ADVANCE OF TAKING ANY MATERIAL ACTION IN
CONNECTION THEREWITH; (B) PARENT SHALL (1) REASONABLY IN ADVANCE OF THE
SUBMISSION OF ANY PRIVATE LETTER RULING DOCUMENTS, PROVIDE SPINCO WITH A DRAFT
COPY THEREOF, (2) REASONABLY CONSIDER SPINCO'S COMMENTS ON SUCH DRAFT COPY, AND
(3) PROVIDE SPINCO WITH A FINAL COPY; AND (C) PARENT SHALL PROVIDE SPINCO WITH
NOTICE REASONABLY IN ADVANCE OF, AND SPINCO SHALL HAVE THE RIGHT TO ATTEND AND
PARTICIPATE IN, ANY FORMALLY SCHEDULED MEETINGS WITH ANY TAX AUTHORITY (SUBJECT
TO THE APPROVAL OF THE TAX AUTHORITY) THAT RELATE TO SUCH PRIVATE LETTER RULING.
(III)
PROHIBITION ON SPINCO.
SPINCO HEREBY AGREES
THAT, EXCEPT TO THE EXTENT PERMITTED BY SECTION 4(D)(II), NEITHER IT NOR ANY
MEMBER OF THE SPINCO GROUP SHALL SEEK ANY GUIDANCE FROM THE IRS OR ANY OTHER TAX
AUTHORITY (WHETHER WRITTEN, VERBAL OR OTHERWISE) CONCERNING ANY OF THE
SPIN-OFF-RELATED TRANSACTIONS (OR THE IMPACT OF ANY TRANSACTION ON ANY OF THE
SPIN-OFF-RELATED TRANSACTIONS).
(E)
LIABILITY OF SPINCO FOR UNDERTAKING CERTAIN
ACTIONS.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SPINCO AND
EACH MEMBER OF THE SPINCO GROUP SHALL BE RESPONSIBLE FOR ANY AND ALL TAX-RELATED
LOSSES THAT ARE ATTRIBUTABLE TO, OR RESULT FROM:
(I)
ANY ACT OR FAILURE TO ACT BY SPINCO OR
ANY MEMBER OF THE SPINCO GROUP, WHICH ACTION OR FAILURE TO ACT BREACHES ANY OF
THE COVENANTS DESCRIBED IN SECTION 4(B)(I) THROUGH 4(B)(VI) OF THIS AGREEMENT
(DETERMINED WITHOUT REGARD TO THE EXCEPTIONS OR PROVISOS