ASSESSMENT OR OTHER
CLAIM FROM ANY GOVERNMENT ENTITY WITH RESPECT TO TRANSFER TAXES FOR WHICH THE
OTHER PARTY MAY BE LIABLE PURSUANT TO THIS SECTION 5.7(C), THE NOTIFIED PARTY
SHALL NOTIFY THE OTHER PARTY IN WRITING OF THE RECEIPT OF SUCH NOTICE OF
ASSESSMENT OR OTHER CLAIM PROMPTLY AFTER THE RECEIPT THEREOF.
(VI)
[(V)]ANY ADDITIONAL TRANSFER TAXES RESULTING FROM AN ADVERSE
DETERMINATION BY A GOVERNMENT ENTITY SHALL BE BORNE BY BUYER OR SELLER, AS THE
CASE MAY BE, CONSISTENT WITH THE PROVISIONS OF SECTION 5.7(C)(I); PROVIDED,
HOWEVER, THAT, SO LONG AS THE ADVERSE DETERMINATION BY THE APPLICABLE GOVERNMENT
ENTITY DOES NOT RELATE DIRECTLY TO PURCHASE PRICE ALLOCATION, SELLER SHALL BE
RESPONSIBLE FOR ANY SUCH ADDITIONAL TRANSFER TAXES TO THE EXTENT THAT SUCH
ADDITIONAL TRANSFER TAXES ARE ATTRIBUTABLE TO THE USE OF SELLER'S PURCHASE PRICE
ALLOCATION RATHER THAN BUYER'S PURCHASE PRICE ALLOCATION. SELLER SHALL NOT BE
RELIEVED OF ANY LIABILITY FOR INCREMENTAL TRANSFER TAXES UNDER THIS
SECTION 5.7(C)(VI) BY REASON OF THE FACT THAT SUCH INCREMENTAL TRANSFER TAXES
WERE NOT SET FORTH ON AN INCREMENTAL TRANSFER TAX RETURN NOTICE.
(VII)
[(VI)]ANY TRANSFER TAXES RESULTING FROM ANY SUBSEQUENT INCREASE IN
THE PURCHASE PRICE PURSUANT TO THIS AGREEMENT SHALL BE BORNE IN ACCORDANCE WITH
THE PROVISIONS OF THIS SECTION 5.7(C).
(VIII)
[(VII)] BUYER AND SELLER SHALL COOPERATE IN GOOD FAITH TO MINIMIZE
THE AMOUNT OF TRANSFER TAXES THAT MAY BE IMPOSED OR ASSESSED AS A RESULT OF THE
TRANSACTION, INCLUDING PURSUANT TO ONE OR MORE RESTRUCTURING TRANSACTIONS
CONSUMMATED PURSUANT TO THE PLAN[ PRIOR TO THE CLOSING; PROVIDED, THAT BUYER AND
SELLER CONCLUDE IN GOOD FAITH THAT SUCH RESTRUCTURING WOULD HAVE A MORE LIKELY
THAN NOT PROBABILITY OF PREVAILING IF CHALLENGED BY THE APPLICABLE GOVERNMENT
ENTITY.], JV PLAN AND/OR THE 363 SALE.
(D)
DETERMINATION AND ALLOCATION OF PURCHASE PRICE. SELLER AND BUYER
UNDERTAKE TO ACT IN GOOD FAITH TO JOINTLY AGREE TO A SCHEDULE SETTING FORTH THE
ALLOCATION OF THE AGGREGATE CONSIDERATION AMONG THE TRANSFERRED ASSETS (THE
"PURCHASE PRICE ALLOCATION SCHEDULE") FOR TAX PURPOSES. IF SELLER AND BUYER SO
AGREE WITHIN 180 DAYS OF THE CLOSING DATE, SELLER AND BUYER SHALL, AND SELLER
AND BUYER SHALL CAUSE EACH OF THEIR RESPECTIVE AFFILIATES, (I) TO REPORT THE
FEDERAL, STATE, AND LOCAL INCOME AND OTHER TAX CONSEQUENCES OF THE TRANSACTION
CONTEMPLATED HEREIN IN A MANNER CONSISTENT WITH SUCH PURCHASE PRICE ALLOCATION
SCHEDULE AND (II) NOT TO TAKE ANY POSITION INCONSISTENT THEREWITH FOR ANY TAX
PURPOSES (UNLESS REQUIRED BY A CHANGE IN APPLICABLE TAX LAW OR AS A RESULT OF A
GOOD FAITH RESOLUTION OF A CONTEST). IF SELLER AND BUYER DO NOT SO AGREE WITHIN
180 DAYS OF THE CLOSING DATE, EACH OF SELLER AND BUYER MAY PREPARE THEIR OWN
PURCHASE PRICE ALLOCATION AND, FOR THE AVOIDANCE OF DOUBT AND EXCEPT AS PROVIDED
IN [SECTIONS]SECTION 5.7(C)[(III) AND 5.7(C)(V),] EACH OF BUYER AND SELLER WILL
HAVE NO LIABILITY TO THE OTHER FOR ANY ADDITIONAL TAXES THAT MAY BE IMPOSED BY
ANY GOVERNMENT ENTITY AS A RESULT OF INCONSISTENCIES BETWEEN THE RESPECTIVE
ALLOCATIONS OF BUYER AND SELLER.
109