AND IN EACH CASE, PROPER
PROVISION SHALL BE MADE SO THAT THE SUCCESSOR AND ASSIGN OF PURCHASER OR THE
COMPANY, AS THE CASE MAY BE, HONOR THE OBLIGATIONS SET FORTH WITH RESPECT TO
PURCHASER OR THE COMPANY, AS THE CASE MAY BE, IN THIS SECTION 5.7.
33
(D)
NOTHING IN THIS AGREEMENT IS INTENDED TO,
SHALL BE CONSTRUED TO OR SHALL RELEASE, WAIVE OR IMPAIR ANY RIGHTS OF THE
COMPANY INDEMNIFIED PARTIES TO DIRECTORS' AND OFFICERS' INSURANCE CLAIMS UNDER
ANY POLICY OF THE SELLER, THE COMPANY OR ANY OF THEIR AFFILIATES IN EXISTENCE ON
OR PRIOR TO THE CLOSING DATE, IT BEING UNDERSTOOD AND AGREED THAT THE
INDEMNIFICATION PROVIDED FOR IN THIS SECTION 5.7 IS NOT PRIOR TO OR IN
SUBSTITUTION FOR ANY SUCH CLAIMS UNDER SUCH POLICY.
(E)
NOTWITHSTANDING ANY PROVISION OF THIS
SECTION 5.7 TO THE CONTRARY, NONE OF THE COMPANY, THE PURCHASER OR ANY AFFILIATE
OF EITHER SHALL BE OBLIGATED TO SELLER PURSUANT TO THIS AGREEMENT TO INDEMNIFY,
OR MAINTAIN INSURANCE FOR THE BENEFIT OF, ANY COMPANY INDEMNIFIED PARTY IN
RESPECT OF ANY CLAIM BROUGHT AGAINST ANY SUCH COMPANY INDEMNIFIED PARTY BY THE
SELLER OR ANY AFFILIATE OR STOCKHOLDER OF THE SELLER, SOLELY IN HIS OR HER
CAPACITY AS A STOCKHOLDER OF SELLER, WITH RESPECT TO MATTERS OCCURRING PRIOR TO
THE CLOSING DATE.
5.8
TAX COVENANTS.
(A)
SELLER SHALL PREPARE AND FILE WHEN DUE, OR
CAUSE TO BE PREPARED AND FILED WHEN DUE, ALL TAX RETURNS OF THE COMPANY AND ANY
OF ITS SUBSIDIARIES OR, IN THE CASE OF CONSOLIDATED INCOME TAX RETURNS UNDER
FEDERAL, STATE OR FOREIGN LAW, THAT INCLUDE THE COMPANY OR ANY OF ITS
SUBSIDIARIES, FOR ALL TAX PERIODS ENDING ON OR PRIOR TO THE CLOSING DATE (A
"PRE-CLOSING TAX PERIOD").
PURCHASER SHALL COOPERATE WITH AND ASSIST, AND SHALL
CAUSE THE COMPANY, ITS SUBSIDIARIES AND THEIR RESPECTIVE OFFICERS, EMPLOYEES AND
REPRESENTATIVES TO COOPERATE WITH AND ASSIST, SELLER WITH RESPECT TO THE
PREPARING AND FILING OF TAX RETURNS FOR ALL PRE-CLOSING TAX PERIODS.
SELLER
SHALL PREPARE SUCH TAX RETURNS BY TREATING ITEMS ON SUCH TAX RETURNS IN A MANNER
CONSISTENT WITH PAST PRACTICE WITH RESPECT TO SUCH ITEMS, UNLESS OTHERWISE
REQUIRED BY A LEGAL REQUIREMENT.
(B)
PURCHASER SHALL (OR SHALL CAUSE THE COMPANY
TO) PREPARE AND FILE WHEN DUE, OR CAUSE TO BE PREPARED AND FILED WHEN DUE, ALL
TAX RETURNS REQUIRED TO BE FILED BY THE COMPANY AND ANY OF ITS SUBSIDIARIES
RELATING TO ANY TAXABLE PERIOD THAT BEGINS BEFORE, AND ENDS AFTER, THE CLOSING
DATE (A "STRADDLE PERIOD") AND THE COMPANY SHALL REMIT (OR CAUSE TO BE REMITTED)
ANY TAXES DUE IN RESPECT OF SUCH TAX RETURNS. PURCHASER SHALL PROVIDE SELLER
WITH A WRITTEN NOTICE OF THE AMOUNT OWED BY SELLER PURSUANT TO SECTION 7.8(A)
WITH RESPECT TO THE TAXABLE PERIODS COVERED BY SUCH TAX RETURNS 15 DAYS BEFORE
SUCH TAXES ARE DUE AND SELLER SHALL REMIT TO PURCHASER (OR THE COMPANY) SUCH
AMOUNT NO LATER THAN FIVE (5) DAYS BEFORE SUCH TAXES ARE DUE AND SHALL PROMPTLY
PROVIDE SELLER WITH COPIES