BE SUFFICIENT TO ALLOW SELLER TO MAKE A
DETERMINATION AS TO THE ACCURACY OF THE CALCULATION.
BUYER AND SELLER WILL
ENDEAVOR IN GOOD FAITH TO RESOLVE ANY DIFFERENCES WITH RESPECT TO SUCH
CALCULATION.
(D)
FOR PURPOSES OF THIS AGREEMENT, INCOME,
DEDUCTIONS AND OTHER ITEMS IN RESPECT OF A STRADDLE PERIOD WILL BE ALLOCATED
BETWEEN THE PRE-CLOSING PORTION OF SUCH STRADDLE PERIOD AND THE POST-CLOSING
PORTION OF SUCH STRADDLE PERIOD BASED ON AN ACTUAL CLOSING OF THE BOOKS OF SUCH
ENTITY AS OF THE END OF THE CLOSING DATE.
SECTION 8.04.
Tax Covenants.
(A)
BUYER COVENANTS THAT IT WILL NOT CAUSE OR
PERMIT THE COMPANY OR ANY SUBSIDIARY OR AFFILIATE OF BUYER TO (I) TAKE ANY
ACTION ON THE CLOSING DATE OTHER THAN IN THE ORDINARY COURSE OF BUSINESS,
INCLUDING, WITHOUT LIMITATION, THE DISTRIBUTION OF ANY DIVIDEND OR THE
EFFECTUATION OF ANY REDEMPTION, THAT COULD GIVE RISE TO ANY TAX LIABILITY OF THE
SELLER GROUP OR ANY LOSS OF SELLER OR THE SELLER GROUP UNDER THIS AGREEMENT OR
(II) MAKE OR CHANGE ANY TAX ELECTION, AMEND ANY TAX RETURN, TAKE ANY TAX
POSITION ON ANY TAX RETURN, TAKE ANY ACTION, OMIT TO TAKE ANY ACTION OR ENTER
INTO ANY TRANSACTION, IN EACH CASE THAT RESULTS IN ANY INCREASED TAX LIABILITY
OR REDUCTION OF ANY TAX ASSET OF SELLER IN RESPECT OF ANY PRE-CLOSING TAX
PERIOD.
BUYER AGREES THAT SELLER IS TO HAVE NO LIABILITY FOR ANY TAX RESULTING
FROM ANY ACTION, REFERRED TO IN THE PRECEDING SENTENCE, OF THE COMPANY, BUYER OR
ANY AFFILIATE OF BUYER ON THE CLOSING DATE.
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(B)
BUYER AND SELLER AGREE TO REPORT ALL
TRANSACTIONS NOT IN THE ORDINARY COURSE OF BUSINESS OCCURRING ON THE CLOSING
DATE AFTER BUYER'S PURCHASE OF THE SHARES ON BUYER'S TAX RETURNS TO THE EXTENT
PERMITTED BY TREASURY REGULATIONS SECTION 1.1502-76(B)(1)(II)(B) AND ANY SIMILAR
STATE, LOCAL AND FOREIGN LAW PROVISIONS.
(C)
ALL TRANSFER, DOCUMENTARY, SALES, USE,
STAMP, REGISTRATION AND OTHER SUCH TAXES AND FEES (INCLUDING ANY PENALTIES AND
INTEREST) INCURRED IN CONNECTION WITH THIS AGREEMENT SHALL BE BORNE AND PAID BY
BUYER, AND BUYER WILL, AT ITS OWN EXPENSE, FILE ALL NECESSARY TAX RETURNS AND
OTHER DOCUMENTATION WITH RESPECT TO ALL SUCH TAXES AND FEES, AND, IF REQUIRED BY
APPLICABLE LAW, SELLER WILL, AND WILL CAUSE ITS AFFILIATES TO, JOIN IN THE
EXECUTION OF ANY SUCH TAX RETURNS AND OTHER DOCUMENTATION.
SECTION 8.05.
Control.
(A)
SELLER WILL HAVE THE EXCLUSIVE RIGHT TO
FILE ANY AMENDED TAX RETURNS AND TO CONTROL ANY AUDIT OR OTHER ADMINISTRATIVE OR
JUDICIAL PROCEEDING WITH RESPECT TO THE CONSOLIDATED UNITED STATES FEDERAL
INCOME TAX LIABILITY OF THE SELLER AFFILIATED GROUP AND/OR THE TAX LIABILITY OF
SELLER OR AN AFFILIATE OF SELLER UNDER ANY COMBINED INCOME TAX RETURN AND THE
PORTION OF ANY OTHER AUDIT OR OTHER ADMINISTRATIVE OR JUDICIAL PROCEEDING
REGARDING ANY OTHER MATTER THAT MAY RESULT IN ANY TAX LIABILITY WITH RESPECT TO
WHICH SELLER PROVIDES INDEMNIFICATION UNDER THIS AGREEMENT.
(b)
Except as provided in Section 8.05(a), Buyer
will have the exclusive right to control