WHICH IN ANY CASE ARE MATERIAL
TO AND NECESSARY FOR THE CONDUCT OF THE BUSINESS AS A WHOLE AS PRESENTLY
CONDUCTED, FREE AND CLEAR OF ALL ENCUMBRANCES, EXCEPT FOR PERMITTED ENCUMBRANCES
AND EXCEPT FOR PROPERTIES AND ASSETS DISPOSED OF IN THE ORDINARY COURSE OF
BUSINESS SINCE THE BALANCE SHEET DATE.
(C)
SINCE MAY 1, 2005, COMPANY HAS NOT REDUCED
IN ANY MATERIAL RESPECT ITS ORDINARY COURSE PRACTICES WITH RESPECT TO THE
MAINTENANCE AND REPAIR OF ITS MATERIAL OPERATING ASSETS.
5.19
TAX MATTERS.
NOTWITHSTANDING THE GENERALITY OF ANY
OTHER REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT, THIS SECTION 5.19 SHALL
BE DEEMED TO CONTAIN THE ONLY REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT
OR ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREIN WITH RESPECT TO TAXES.
EXCEPT AS WOULD NOT REASONABLY BE EXPECTED TO HAVE A COMPANY MATERIAL ADVERSE
EFFECT:
25
(A)
COMPANY AND ANY AFFILIATED COMBINED OR
UNITARY GROUP OF WHICH COMPANY IS A MEMBER, AS THE CASE MAY BE ("TAX
AFFILIATES") HAVE FILED WITHIN THE TIME AND IN THE MANNER PRESCRIBED BY LAW ALL
TAX RETURNS REQUIRED TO BE FILED BY IT OR ANY COMPANY SUBSIDIARY.
ALL SUCH TAX
RETURNS ARE TRUE AND COMPLETE.
COMPANY AND ITS TAX AFFILIATES HAVE PAID OR WILL
PAY ALL TAXES WHICH ARE DUE AND PAYABLE WITH RESPECT TO SUCH TAX RETURNS AND
COMPANY HAS SET UP IN ITS FINANCIAL RECORDS ADEQUATE RESERVES FOR ALL TAXES IN
DISPUTE OR NOT YET DUE AND PAYABLE.
(B)
THERE ARE NO LIENS FOR TAXES OUTSTANDING
AGAINST COMPANY, ANY COMPANY SUBSIDIARY, THEIR RESPECTIVE ASSETS OR AGAINST THE
SHARES, EXCEPT FOR PERMITTED ENCUMBRANCES.
(C)
ALL TAXES AND ASSESSMENTS THAT COMPANY OR A
COMPANY SUBSIDIARY IS REQUIRED TO WITHHOLD OR TO COLLECT HAVE BEEN DULY WITHHELD
OR COLLECTED, AND ALL SUCH WITHHOLDINGS AND COLLECTIONS HAVE EITHER BEEN DULY
AND TIMELY PAID OVER TO THE APPROPRIATE TAXING AUTHORITIES OR ARE, TOGETHER WITH
THE PAYMENTS DUE OR TO BECOME DUE IN CONNECTION THEREWITH, DULY REFLECTED IN
COMPANY'S FINANCIAL RECORDS IN ACCORDANCE WITH GAAP.
(D)
THERE ARE NO OUTSTANDING WAIVERS OR
COMPARABLE CONSENTS REGARDING THE APPLICATION OF THE STATUTE OF LIMITATIONS WITH
RESPECT TO ANY TAXES THAT HAVE BEEN GIVEN BY COMPANY OR ANY COMPANY SUBSIDIARY.
(E)
NO FEDERAL, STATE, LOCAL OR FOREIGN AUDITS
OR OTHER ADMINISTRATIVE OR COURT PROCEEDINGS ARE PRESENTLY PENDING AGAINST
COMPANY OR ANY COMPANY SUBSIDIARY WITH REGARD TO ANY TAXES OR TAX RETURNS.
NO
DEFICIENCY FOR ANY TAXES HAS BEEN PROPOSED, ASSERTED OR ASSESSED AGAINST COMPANY
OR ANY COMPANY SUBSIDIARY WHICH HAS NOT BEEN RESOLVED AND PAID IN FULL.
(F)
NEITHER COMPANY NOR ANY COMPANY
SUBSIDIARY HAS ANY LIABILITY FOR TAXES IN A JURISDICTION WHERE IT DOES NOT FILE
A RETURN, NOR HAS COMPANY OR ANY COMPANY SUBSIDIARY RECEIVED NOTICE FROM A
TAXING AUTHORITY IN SUCH A JURISDICTION THAT IT IS OR MAY BE SUBJECT TO TAXATION
BY THAT JURISDICTION.
(G)
NEITHER COMPANY NOR ANY SUBSIDIARY
CONSTITUTES EITHER A "DISTRIBUTING CORPORATION" OR A "CONTROLLED CORPORATION"
(WITHIN THE MEANING OF SECTION 355(A)(1)(A) OF THE CODE) IN A DISTRIBUTION OF
SHARES QUALIFYING FOR