than in the ordinary course of business or (vii) any
material damage, destruction or loss (whether or not covered by insurance) to
any material assets of the Company or any Subsidiary and (c) neither the Company
nor any Subsidiary has taken any of the actions set forth in Section 4.1(b)(ix)
or (xi).
10
2.6
TAXES.
(A)
DEFINITIONS. FOR THE PURPOSES OF THIS
AGREEMENT, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANING:
(I)
"TAX" OR, COLLECTIVELY, "TAXES" SHALL MEAN (I) ANY
AND ALL FEDERAL, STATE, LOCAL AND FOREIGN TAXES AND OTHER LIKE GOVERNMENTAL
CHARGES, FEES OR OTHER LIKE ASSESSMENTS OF ANY KIND WHATSOEVER, INCLUDING TAXES
BASED UPON OR MEASURED BY GROSS RECEIPTS, INCOME, PROFITS, SALES, USE AND
OCCUPATION, AND VALUE ADDED, AD VALOREM, TRANSFER, REGISTRATION, FRANCHISE,
WITHHOLDING, PAYROLL, RECAPTURE, EMPLOYMENT, EXCISE, ENVIRONMENTAL AND PROPERTY
TAXES, TOGETHER WITH ALL INTEREST, PENALTIES AND ADDITIONS IMPOSED WITH RESPECT
TO SUCH AMOUNTS, (II) ANY LIABILITY FOR THE PAYMENT OF ANY AMOUNTS OF THE TYPE
DESCRIBED IN CLAUSE (I) OF THIS SECTION 2.6 AS A RESULT OF BEING A MEMBER OF AN
AFFILIATED, CONSOLIDATED, COMBINED OR UNITARY GROUP FOR ANY PERIOD, AND (III)
ANY LIABILITY FOR THE PAYMENT OF ANY AMOUNTS OF THE TYPE DESCRIBED IN CLAUSES
(I) OR (II) OF THIS SECTION 2.6 AS A RESULT OF ANY EXPRESS OR IMPLIED OBLIGATION
TO INDEMNIFY ANY OTHER PERSON OR AS A RESULT OF ANY OBLIGATIONS UNDER ANY
AGREEMENTS OR ARRANGEMENTS WITH ANY OTHER PERSON WITH RESPECT TO SUCH AMOUNTS
AND INCLUDING ANY LIABILITY FOR TAXES OF A PREDECESSOR ENTITY.
(II)
"TAX RETURN" SHALL MEAN ANY FEDERAL, STATE, LOCAL
AND FOREIGN RETURN, ESTIMATE, INFORMATION STATEMENT OR REPORT.
(B)
TAX RETURNS AND AUDITS.
(I)
THE COMPANY AND EACH OF ITS SUBSIDIARIES HAVE
PREPARED AND FILED, OR JOINED IN THE FILING OF, WHEN DUE (TAKING INTO ACCOUNT
ALL APPLICABLE EXTENSIONS OF TIME TO FILE), ALL MATERIAL REQUIRED TAX RETURNS
AND SUCH TAX RETURNS HAVE BEEN COMPLETED IN ACCORDANCE WITH APPLICABLE LAW.
(II)
ALL MATERIAL TAXES DUE AND OWING BY THE COMPANY OR
ANY OF ITS SUBSIDIARIES OR TO WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES ARE
LIABLE UNDER TREASURY REGULATIONS SECTION 1.1502-6 BY VIRTUE OF HAVING BEEN A
MEMBER OF AN "AFFILIATED GROUP" (WITHIN THE MEANING OF SECTION 1504(A) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED ("CODE")) OF WHICH THE SELLER IS THE
COMMON PARENT, HAVE BEEN PAID AS OF THE CLOSING DATE, OR HAVE BEEN ACCRUED OR
RESERVED AS SET FORTH ON SECTIONS 1.3(C) OR 1.3(D) OF THE SELLER DISCLOSURE
LETTER.
(III)
NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES HAS
ANY MATERIAL LIABILITY FOR SUCH TAXES AS OF THE DATE OF THE COMPANY BALANCE
SHEET WHICH WERE NOT APPROPRIATELY ACCRUED OR RESERVED ON THE COMPANY BALANCE
SHEET IN ACCORDANCE WITH GAAP, AND NEITHER THE COMPANY NOR ANY OF ITS
SUBSIDIARIES HAS INCURRED OR WILL INCUR ANY MATERIAL LIABILITY FOR SUCH TAXES
AFTER THE DATE OF THE COMPANY BALANCE SHEET THROUGH THE CLOSING DATE OTHER THAN
IN THE ORDINARY COURSE OF BUSINESS.
(IV)
EACH