definiens: means Seller Taxes that ( i ) do notarise out of, or constitute, a breach of the representations and warrantiescontained in Section 4.1 ( determined without regard to any exception to therepresentations and warranties contained in Section 4.1(i ) that may be disclosedin the disclosure schedules or any materiality qualification or similarqualification contained in Section 4.1(i ) ), ( ii ) were either accrued as currenttaxes on the March Balance Sheet in accordance with GAAP or were incurred afterthe March Balance Sheet Date in the ordinary course of business, and ( iii ) arenot attributable to transfer pricing or similar issues . A isany tax period that includes ( but does not end on ) the Closing Date . Income orfranchise Taxes attributable to a Straddle Period of the Company and theSubsidiaries shall be determined as if the taxable period ended on the ClosingDate based on a closing of the books on such date . Notwithstanding theforegoing, the Seller shall not pay, cause to be paid or be responsible for, andthe Buyer shall be responsible for, and indemnify and hold the Seller harmlessagainst ( without any of the limitations contained in Section 7.2 ) any SellerTaxes arising from a transaction or election that occurs or is deemed to occuron ( or before, in the case of an election ) the Closing Date which transaction orelection is both ( x ) not in the ordinary course of business, not arising from, or constituting, a breach of the representations and warranties contained inSection 4.1 and not contemplated by this Agreement, or consented to by theSeller, and ( y ) caused by an affirmative act taken by the Buyer ( or an Affiliateof the Buyer other than the Company or the Subsidiaries ) or by the Company orany Subsidiary at the affirmative direction of the Buyer, including but notlimited to, an election under either Section - 59 -<PAGE>338 of the Code or the so - called check - the - box rules of Treasury RegulationSection 301.7701 - 3 ( ) . The Buyer shall promptly notify theSeller following receipt of any notice of audit or other proceeding relating toany of the Company Returns or any other Return filed on or before the ClosingDate ( together with all of the Company Returns, the ) . TheBuyer shall have the right to control, and the Seller shall have the right toparticipate, in any and all audits or other proceedings, at its expense, relating to any Prior Period Return, provided, however, that the Buyer shall notagree to the resolution of any audit or other proceeding relating to any PriorPeriod Return or file an amended Prior Period Return that would materiallyincrease the Seller 's responsibility under this Section 6.1 for Taxes withoutthe Seller 's consent, which consent shall not be unreasonably withheld ordelayed . The Buyer and the Seller shall make available to the other any and allbooks and records of the Company and the Subsidiaries and other documentsrequested by the Seller or the Buyer that are reasonably necessary to enable theSeller and the Buyer to defend, or participate in, any audit or other proceedingwith respect to any Prior Period Return and shall cooperate with each other, atthe Seller 's expense, in defense of such audits . The Buyer shall cause theCompany and the Subsidiaries to file any and all other Tax returns of theCompany and the Subsidiaries which are not Company Returns and which are to befiled after the Closing Date . Tax returns described in the immediately precedingsentence which apply to a Straddle Period shall be prepared, where relevant, ina manner consistent with the past practices of the Company and the Subsidiaries, except as otherwise required by applicable law or inconsistent with practices ofthe Buyer . The Buyer shall allow the Seller the opportunity to review andcomment on such Straddle Period Tax returns for a reasonable period of timeprior to the intended filing date . The Buyer shall cause the Company and theSubsidiaries to pay the Seller the amount of any refund or realized tax creditactually realized by Buyer and that results in actual Tax savings ( determined ona basis ) with respect to Prior Period Returns ( and not anincrease or potential increase in other periods ) and which represents a refundor credit actually realized of Seller Taxes ( other than Excluded Taxes ) paid bythe Seller after the Closing Date pursuant to this Agreement except any suchrefund or credit that is reflected on any Financial Statements or attributableto a loss or credit ( or any carryback thereof ) arising in a taxable year ( orportion thereof ) beginning after the Closing Date