with outside legal
counsel, such action to be required by law or by the rules of any applicable
self-regulatory organization, in which event such party will use its
commercially reasonable efforts to allow the other parties hereto reasonable
time to comment on such press release or public announcement in advance of its
issuance.
5.4
No Solicitation.
Except as otherwise
provided herein, unless and until this Agreement shall have been terminated in
accordance with its terms, each Company and Sellers agree and covenant that
neither Sellers nor any Company will, directly or indirectly, initiate, solicit
or encourage any inquiries or the making or implementation of any proposal or
offer with respect to a merger, acquisition, or similar transaction involving
the purchase of the Companies, the Subsidiaries or the Portfolios, all or
substantially all of the Companies' or the Subsidiaries' assets, or the
Membership Interests, except for the sale of loans of the Portfolios, or assets
derived from such loans, in the ordinary course of business.
5.5
Preparation of Tax Returns; Payment of
Taxes; Refunds.
(A)
RESPONSIBILITY FOR FILING TAX RETURNS.
(I)
SELLERS SHALL PREPARE OR CAUSE TO BE
PREPARED AT THEIR OWN COST, ALL FEDERAL AND STATE INCOME TAX RETURNS FOR THE
COMPANIES THAT ARE REQUIRED TO BE FILED AFTER THE CLOSING DATE WITH RESPECT TO
PERIODS THAT END ON OR PRIOR TO THE CLOSING DATE.
SELLERS SHALL PROVIDE DRAFT
VERSIONS OF SUCH TAX RETURNS TO THE BUYER NOT LATER THAN THIRTY (30) DAYS PRIOR
TO THE EXTENDED DUE DATE FOR FILING SUCH TAX RETURNS.
THE BUYER SHALL NOTIFY
SELLERS OF ANY PROPOSED CHANGES NOT LATER THAN FIFTEEN (15) DAYS AFTER DELIVERY
OF SUCH DRAFT TAX RETURNS PURSUANT TO THE PRECEDING SENTENCE.
SELLERS SHALL
MAKE CHANGES TO SUCH DRAFT TAX RETURNS THAT ARE REASONABLY REQUESTED BY THE
BUYER TO THE EXTENT THAT SUCH CHANGES (A) ARE WITH RESPECT TO A POSITION OR ITEM
THAT WAS INITIALLY REPORTED ON SUCH DRAFT TAX RETURNS IN A MANNER INCONSISTENT
WITH THE PAST PRACTICES OF THE APPLICABLE COMPANY, (B) IF ACCEPTED, WOULD CAUSE
SUCH POSITION OR ITEM TO BE CONSISTENT WITH THE PAST PRACTICES OF SUCH COMPANY.
TO THE EXTENT THAT BUYER PREPARES AND FILES (OR CAUSES TO BE PREPARED AND FILED)
TAX RETURNS THAT INCLUDE A PRE-CLOSING PERIOD AND WHICH SHOWS OR COULD SHOW AN
AMOUNT OF TAXES DUE ON SUCH TAX RETURN FOR WHICH SELLERS MAY BE LIABLE
THEREUNDER, BUYER SHALL CAUSE SUCH TAX RETURNS TO BE PREPARED IN A MANNER
CONSISTENT WITH PAST PRACTICES.
(II)
SELLERS (AND THEIR SUBSIDIARIES AND
AFFILIATES) SHALL NOT AMEND ANY TAX RETURNS OF ANY COMPANY OR ANY SUBSIDIARY FOR
ANY PRE-CLOSING PERIOD WITHOUT THE PRIOR WRITTEN CONSENT OF BUYER, WHICH SHALL
BE WITHHELD ONLY IF SUCH AMENDMENT COULD REASONABLY BE
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EXPECTED TO HAVE AN ADVERSE EFFECT ON THE TAX LIABILITY OR A TAX POSITION OF ANY
OF BUYER, THE COMPANIES, THE SUBSIDIARIES AND THEIR AFFILIATES WITH RESPECT TO A
PERIOD AFTER THE CLOSING DATE.
(B)
TAX REFUNDS.
ANY REFUND RECEIVED BY A