with the filing of
any Tax Returns or claims for refund or in conducting an audit or other
proceeding.
6.5
Transfer Taxes.
Subject to Section 6.6(b)
of this Agreement, all Transfer Taxes incurred in connection with this Agreement
and the transactions contemplated hereby shall be borne by the Buyer and the
Seller in equal portions.
The Seller and the Buyer shall cooperate in timely
making all filings, returns, reports and forms as may be required to comply with
the provisions of such tax laws and in making reasonable arrangements to
lawfully minimize the payment of any such Taxes.
For purposes of this
Agreement, "Transfer Taxes" shall mean transfer, documentary, sales, use,
registration and other such taxes (including all applicable real estate transfer
taxes).
6.6
Tax Indemnification.
(A)
(I) THE SELLER SHALL INDEMNIFY AND HOLD THE
BUYER AND ITS AFFILIATES HARMLESS FROM (A) ALL LIABILITY FOR TAXES OF THE SOLD
COMPANIES, THE SUBSIDIARIES AND THE VENTURE ENTITIES WITH REGARD TO ANY AND ALL
TAXABLE PERIODS OF SUCH PERSONS AND SELLER ENDING ON OR BEFORE THE CLOSING DATE
AND THE PORTION ENDING ON THE CLOSING DATE OF ANY TAXABLE PERIOD THAT INCLUDES
(BUT DOES NOT END ON) SUCH DAY (THE "PRE-CLOSING TAX PERIOD"), (B) ALL TAXES
ARISING OUT OF OR RELATED TO A BREACH OF ANY OF THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 3.12 OF THIS AGREEMENT, AND (C) ALL LIABILITY
(AS A RESULT OF TREASURY REGULATION §1.1502-6(A), OR ANY SIMILAR PROVISION OF
STATE, LOCAL OR FOREIGN LAW) FOR TAXES OF THE SELLER OR ANY OTHER PERSON (OTHER
THAN THE SOLD COMPANIES, THE SUBSIDIARIES OR THE VENTURE ENTITIES) WHICH IS OR
HAS BEEN AFFILIATED WITH ANY OF THE SOLD COMPANIES, THE SUBSIDIARIES OR THE
VENTURE ENTITIES PRIOR TO CLOSING (INCLUDING WITH REGARD TO ANY AUDIT OF SELLER
WHICH COMMENCES IN 2003); PROVIDED, HOWEVER, THAT THE SELLER SHALL NOT HAVE ANY
OBLIGATION UNDER THIS SECTION 6.6(A)(I) TO INDEMNIFY THE BUYER AND ITS
AFFILIATES WITH RESPECT TO ANY OF THE VENTURE ENTITIES (INCLUDING, WITHOUT
LIMITATION, WITH RESPECT TO A BREACH
53
of representation contained in Section 3.12 as to such Venture Entity) for Taxes
in excess of the Buyer's share therein based on the Buyer's percentage ownership
interest in such Venture Entity.
(II)
WITH RESPECT TO A TAXABLE PERIOD WHICH
BEGINS BEFORE AND ENDS AFTER THE CLOSING DATE (A "STRADDLE PERIOD"), THE PORTION
OF SUCH TAXES ATTRIBUTABLE TO THE PRE-CLOSING TAX PERIOD SHALL BE CALCULATED AS
THOUGH THE TAX YEAR TERMINATED AS OF THE CLOSE OF BUSINESS ON THE CLOSING DATE;
PROVIDED, HOWEVER, THAT IN THE CASE OF A TAX NOT BASED ON INCOME, RECEIPTS,
PROCEEDS, PROFITS OR SIMILAR ITEMS, SUCH TAXES SHALL BE EQUAL TO THE AMOUNT OF
TAX FOR THE TAXABLE PERIOD MULTIPLIED BY A FRACTION, THE NUMERATOR OF WHICH
SHALL BE THE NUMBER OF DAYS FROM THE BEGINNING OF THE TAXABLE PERIOD THROUGH THE
CLOSING DATE AND THE DENOMINATOR OF WHICH SHALL BE THE NUMBER OF DAYS IN THE
TAXABLE PERIOD.
(B)
THE BUYER AND ITS AFFILIATES SHALL