NO CONSENT TO THE APPLICATION OF SECTION 341(F)(2) OF THE IRC HAS
BEEN FILED WITH RESPECT TO ANY PROPERTY OR ASSETS HELD, ACQUIRED, OR TO BE
ACQUIRED BY PARENT OR THE COMPANY.
ALL TAXES THAT EACH OF PARENT AND THE
COMPANY IS OR WAS REQUIRED BY LEGAL REQUIREMENTS TO WITHHOLD OR COLLECT HAVE
BEEN DULY WITHHELD OR COLLECTED AND, TO THE EXTENT REQUIRED, HAVE BEEN PAID TO
THE PROPER GOVERNMENTAL BODY OR OTHER PERSON.
37
(D)
ALL TAX RETURNS FILED BY EACH OF PARENT AND
THE COMPANY ARE TRUE, CORRECT, AND COMPLETE.
THERE IS NO TAX SHARING AGREEMENT
THAT WILL REQUIRE ANY PAYMENT BY PARENT OR THE COMPANY AFTER THE DATE OF THIS
AGREEMENT.
NEITHER PARENT NOR THE COMPANY IS, NOR WITHIN THE FIVE-YEAR PERIOD
PRECEDING THE CLOSING DATE HAS BEEN, AN "S" CORPORATION.
(E)
NEITHER PARENT NOR THE COMPANY HAS MADE A
CHANGE IN METHOD OF ACCOUNTING FOR A TAXABLE YEAR BEGINNING ON OR BEFORE THE
CLOSING DATE, WHICH WOULD REQUIRE IT TO INCLUDE ANY ADJUSTMENT UNDER
SECTION 481(A) OF THE CODE OR OTHERWISE IN TAXABLE INCOME FOR ANY TAXABLE YEAR
BEGINNING ON OR AFTER THE CLOSING DATE.
(F)
NEITHER PARENT NOR THE COMPANY HAS EVER
BEEN A MEMBER OF AN AFFILIATED GROUP OF CORPORATIONS (WITHIN THE MEANING OF
SECTION 1504 OF THE CODE), OTHER THAN THE GROUP OF WHICH PARENT IS THE COMMON
PARENT.
(G)
NEITHER PARENT NOR THE COMPANY IS A PARTY
TO, IS BOUND BY, OR HAS ANY OBLIGATION UNDER ANY TAX SHARING, TAX INDEMNITY OR
SIMILAR AGREEMENTS.
(H)
EACH OF PARENT AND THE COMPANY HAS DISCLOSED
ON ITS INCOME TAX RETURNS ALL POSITIONS TAKEN THEREIN THAT COULD GIVE RISE TO A
SUBSTANTIAL UNDERSTATEMENT OF FEDERAL INCOME TAX WITHIN THE MEANING OF CODE
SECTION 6662.
(I)
NEITHER PARENT NOR THE COMPANY HAS MADE
NOR IS OBLIGATED TO MAKE A PAYMENT THAT WOULD NOT BE DEDUCTIBLE BY PARENT OR THE
COMPANY BY REASON OF SECTIONS 162 AND 280G OF THE CODE.
(J)
NEITHER PARENT NOR THE COMPANY HAS
CONSTITUTED EITHER A "DISTRIBUTING CORPORATION" OR A "CONTROLLED CORPORATION" IN
A DISTRIBUTION OF STOCK QUALIFYING FOR TAX-FREE TREATMENT UNDER SECTION 355 OF
THE CODE IN THE PAST TWO (2) YEARS.
3.12
NO MATERIAL ADVERSE CHANGE.
SINCE THE DATE OF
THE INTERIM PARENT BALANCE SHEET AND THE INTERIM COMPANY BALANCE SHEET, THERE
HAS NOT BEEN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS, OPERATIONS,
PROPERTIES, PROSPECTS, ASSETS, OR CONDITION OF PARENT OR THE COMPANY,
RESPECTIVELY, AND, TO THE KNOWLEDGE OF MAJORITY OWNERS, NO EVENT HAS OCCURRED OR
CIRCUMSTANCE EXISTS THAT MAY RESULT IN SUCH A MATERIAL ADVERSE CHANGE.
3.13
EMPLOYEE BENEFITS.
(A)
AS USED IN THIS SECTION 3.13, THE FOLLOWING
TERMS HAVE THE MEANINGS SET FORTH BELOW.
"Company Other Benefit Obligation" means an Other Benefit Obligation owed,
adopted, followed by or enforceable against the Company or an ERISA Affiliate of
the Company.
"Company Plan" means all Plans of which the Company or an ERISA Affiliate of the
Company is or was a Plan Sponsor, or to which the Company or