Common use of Tax Returns, Audits and Liabilities Clause in Contracts

Tax Returns, Audits and Liabilities. (a) Except as set forth in Section 3.18 of the Disclosure Schedule, each of the Company and its Subsidiaries has (i) timely filed in accordance with all applicable laws, all Returns (as defined below) required to be filed by them, (ii) paid all Taxes (as defined below) shown to have become due pursuant to such Returns, and (iii) paid all Taxes (other than those being contested in good faith, all of which are disclosed in Section 3.18 of the Disclosure Schedule) for which a notice of, or assessment or demand for, payment has been received or which are otherwise due and payable, in each case other than failures to file or pay that would not, in the aggregate, have a Material Adverse Effect on the Company. All Returns filed by each of the Company and each of its Subsidiaries with respect to Taxes were true and correct in all material respects as of the date on which they were filed or as subsequently amended to the date hereof. Except as set forth in Section 3.18 of the Disclosure Schedule, complete copies of (i) consolidated federal Income Tax Returns (as defined below) for the Company and its Subsidiaries and (ii) state and local Income Tax and other Tax Returns of the Company and its Subsidiaries for each of the years ended April 30, 1995 and 1996, have heretofore been delivered or made available to Transworld. Except as set forth in Section 3.18 of the Disclosure Schedule, (A) there is no action, suit, proceeding, investigation, audit, claims or assessment pending or proposed with respect to any liability for Tax that relates to the Company or any of its Subsidiaries for which a material amount of Tax is at issue, (B) all material amounts required to be collected or withheld by the Company and each of its Subsidiaries with respect to Taxes have been duly collected or withheld and any such amounts that are required to be remitted to any taxing authority have been duly remitted, (C) no extension of time within which to file any material Return that relates to the Company or any of its Subsidiaries has been requested which Return has not since been filed, (D) there are no waivers or extensions of any applicable statute of limitations for the assessment or collection of Taxes with respect to any material Return that relates to the Company or any of its Subsidiaries which remain in effect, (E) there are no tax rulings, requests for rulings, or closing agreements relating to the Company or any of its Subsidiaries which could materially affect their liability for Taxes for any period after the Effective Time, (F) all material Federal, state, and local Income Tax Returns of the Company and each of its Subsidiaries with respect to taxable periods through the year ended April 30, 1992 have been examined and closed or are Returns with respect to which the applicable statute of limitations has expired without extension or waiver, (G) no power of attorney has been granted by the Company or any of its Subsidiaries with respect to any matter relating to Taxes of the Company and its Subsidiaries which is currently in force, (H) no excess loss account (as referred to in Treasury Regulation Section 1.1502-19) exists with respect to any Subsidiary of the Company, (I) neither the Company nor any of its Subsidiaries has any deferred gain or loss (i) arising from deferred intercompany transactions (as referred to in Treasury Regulation Sections 1.1502-13 and 1.1502-13T), or (ii) with respect to the stock or obligations of any other member of the Company's affiliated group (as described in Treasury Regulation Sections 1.1502-14 and 1.1502-14T) and (J) neither the Company nor any Subsidiary has filed a consent under Section 341(f) of the Code or any comparable provision of state revenue statutes. The Company has filed a consolidated Return for Federal Income Tax purposes on behalf of itself and other members of the affiliated group (within the meaning of Section 1504 of the Code) of which it is the parent corporation since at least the date on which each was incorporated. The accruals for deferred Federal income taxes reflected in the audited financial statements of the Company for the year ended April 30, 1996 are adequate in all material respects to cover any deferred Federal Income Tax liability of the Company and its Subsidiaries determined in accordance with generally accepted principles through the date thereof. The accruals and reserves for Taxes in such financial statements are adequate in all material respects to cover any liability of the Company and its Subsidiaries for Taxes for periods through the date thereof.

Tax Returns, Audits and Liabilities. (a) Except as set forth in Section 3.18 4.21 of the APHI Disclosure Schedule, each of the Company APHI and its Subsidiaries has (i) timely filed in accordance with all applicable laws, all Returns (as defined below) required to be filed by them, (ii) paid all Taxes (as defined below) shown to have become due pursuant to such Returns, and (iii) paid all Taxes (other than those being contested in good faith, all of which are disclosed in Section 3.18 4.21 of the APHI Disclosure Schedule) for which a notice of, or assessment or demand for, payment has been received or which are otherwise due and payable, in each case other than failures to file or pay that would not, in the aggregate, have a an APHI Material Adverse Effect on the CompanyEffect. All Income Tax and other material Tax Returns filed by each of the Company APHI and each of its Subsidiaries with respect to Taxes were true and correct in all material respects as of the date on which they were filed or as subsequently amended to the date hereof. Except as set forth in Section 3.18 4.21 of the APHI Disclosure Schedule, complete copies of (i) consolidated federal Income Tax Returns (as defined below) for the Company APHI and its Subsidiaries and (ii) state and local Income Tax and other Tax Returns of the Company APHI and its Subsidiaries for each of the years ended April 30December 31, 1994, 1995 and 1996, have heretofore been delivered or made available to TransworldAlpine and Refraco. Except as set forth in Section 3.18 4.21 of the APHI Disclosure Schedule, (A) there is no action, suit, proceeding, investigation, audit, claims claim or assessment pending or proposed with respect to any liability for Tax that relates to the Company APHI or any of its Subsidiaries for which a material amount of Tax is at issue, (B) all material amounts required to be collected or withheld by the Company APHI and each of its Subsidiaries with respect to Taxes have been duly collected or withheld and any such amounts that are required to be remitted to any taxing authority have been duly remitted, (C) no extension of time within which to file any material Return that relates to the Company APHI or any of its Subsidiaries has been requested which Return has not since been filed, (D) there are no waivers or extensions of any applicable statute of limitations for the assessment or collection of Taxes with respect to any material Return that relates to the Company APHI or any of its Subsidiaries which remain in effect, (E) there are no tax rulings, requests for rulings, or closing agreements or changes of accounting method relating to the Company APHI or any of its Subsidiaries which could materially affect their liability for Taxes for any period after the Effective Time, (F) all material Federalfederal, state, and local Income Tax Returns of the Company APHI and each of its Subsidiaries with respect to taxable periods through the year ended April 30December 31, 1992 1990 have been examined and closed or are Returns with respect to which the applicable statute of limitations has expired without extension or waiver, (G) no power of attorney has been granted by the Company APHI or any of its Subsidiaries with respect to any matter relating to Taxes of the Company APHI and its Subsidiaries which is currently in force, (H) no excess loss account (as referred to in Treasury Regulation Section 1.1502-19) exists with respect to any Subsidiary of APHI determined after giving effect to the CompanySplit-Off and immediately prior to the Effective Time, (I) neither the Company APHI nor any of its Subsidiaries has any deferred gain or loss (i) arising from deferred intercompany transactions (as referred to in Treasury Regulation Sections 1.1502-13 and Section 1.1502-13T), or (ii) with respect to the stock or obligations of any other member of the CompanyAPHI's affiliated group (as described in Treasury Regulation Sections 1.1502-14 and Section 1.1502-14T) and ), (J) neither the Company APHI nor any Subsidiary has filed a consent under Section 341(f) of the Code or any comparable provision of state revenue statutes. The Company has filed a consolidated Return for Federal Income Tax purposes on behalf of itself and other members of the affiliated group , (K) no property or APHI or its Subsidiaries is "tax-exempt use property" within the meaning of Section 1504 168(h) of the Code; (L) neither APHI nor its Subsidiaries is a party to any lease made pursuant to Section 168(f) of which it is the parent corporation since at least Code; (M) none of APHI or its Subsidiaries will be required to include in a taxable period ending after the date on which each Effective Time taxable income attributable to a prior taxable period that was incorporated. The accruals for deferred Federal income taxes reflected not recognized in the audited financial statements that prior taxable period as a result of the Company for installment method of accounting, the year ended April 30completed contract method of accounting, 1996 are adequate in all material respects to cover any deferred Federal Income Tax liability the long-term contract method of accounting, the cash method of accounting or Section 481 of the Company Code or comparable provisions of state or local or foreign tax law, (N) to the extent applicable, APHI and its Subsidiaries determined have properly and in accordance a timely manner documented their transfer pricing methodology in compliance with generally accepted principles through the date thereof. The accruals Section 482 and reserves for Taxes in such financial statements are adequate in all material respects to cover any liability related provisions of the Company Code; and (O) any amount or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of any of the transactions contemplated by this Agreement by any employee, officer or director of APHI or any of its Subsidiaries for Taxes for periods through who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any APHI Employee Plans or other compensation arrangement entered into or in effect prior to the date thereofClosing would not be characterized as an "excess parachute payment" or a "parachute payment" (as such terms are defined in Section 280G(b)(1) of the Code).

Tax Returns, Audits and Liabilities. (a) Except as set forth in Section 3.18 3.21 of the Alpine Disclosure Schedule, each of the Company Alpine, Refraco and its Refraco's Subsidiaries has (i) timely filed in accordance with all applicable laws, all Returns (as defined belowin Section 4.21(c)) required to be filed by them, (ii) paid all Taxes (as defined belowin Section 4.21(c)) shown to have become due pursuant to such Returns, and (iii) paid all Taxes (other than those being contested in good faith, all of which are disclosed in Section 3.18 3.21 of the Alpine Disclosure Schedule) for which a notice of, or assessment or demand for, payment has been received or which are otherwise due and payable, in each case other than failures to file or pay that would not, in the aggregate, have a an Alpine Material Adverse Effect on the CompanyEffect. All Income Tax (as defined in Section 4.21(c)) and other material Tax Returns filed by each of the Company Alpine, Refraco and each of its Refraco's Subsidiaries with respect to Taxes were true and correct in all material respects as of the date on which they were filed or as subsequently amended to the date hereof. Except as set forth in Section 3.18 3.21 of the Disclosure Schedule, complete copies of (i) consolidated federal Income Tax Returns (as defined below) for the Company and its Subsidiaries and (ii) state and local Income Tax and other Tax Returns of the Company and its Subsidiaries for each of the years ended April 30, 1995 and 1996, have heretofore been delivered or made available to Transworld. Except as set forth in Section 3.18 of the Alpine Disclosure Schedule, (A) there is no action, suit, proceeding, investigation, audit, claims claim or assessment pending or proposed with respect to any liability for Tax that relates to the Company Alpine, Refraco or any of its Refraco's Subsidiaries for which a material amount of Tax is at issue, issue and (B) all material amounts required to be collected or withheld by the Company Alpine, Refraco and each of its Refraco's Subsidiaries with respect to Taxes have been duly collected or withheld and any such amounts that are required to be remitted to any taxing authority have been duly remitted, (C) no extension of time within which to file any material Return that relates to the Company or any of its Subsidiaries has been requested which Return has not since been filed, (D) there are no waivers or extensions of any applicable statute of limitations for the assessment or collection of Taxes with respect to any material Return that relates to the Company or any of its Subsidiaries which remain . Except as set forth in effect, (E) there are no tax rulings, requests for rulings, or closing agreements relating to the Company or any of its Subsidiaries which could materially affect their liability for Taxes for any period after the Effective Time, (F) all material Federal, state, and local Income Tax Returns Section 3.21 of the Company and each of its Subsidiaries with respect to taxable periods through the year ended April 30Alpine Disclosure Schedule, 1992 have been examined and closed or are Returns with respect to which the applicable statute of limitations has expired without extension or waiver, (G) no power of attorney has been granted by the Company or any of its Subsidiaries with respect to any matter relating to Taxes of the Company and its Subsidiaries which is currently in force, (H) no excess loss account (as referred to in Treasury Regulation Section 1.1502-19) exists with respect to any Subsidiary of the Company, (I) neither the Company Refraco nor any of its Subsidiaries has any deferred gain or loss (i) arising from deferred intercompany transactions (as referred to in Treasury Regulation Sections 1.1502-13 and Section 1.1502-13T), or (ii) with respect to the stock or obligations of any other member of the Company's affiliated group (as described in Treasury Regulation Sections 1.1502-14 and 1.1502-14T) and (J) neither the Company nor any Subsidiary has filed a consent under Section 341(f) of the Code or any comparable provision of state revenue statutes. The Company has filed a consolidated Return for Federal Income Tax purposes on behalf of itself and other members of the affiliated group (within the meaning of Section 1504 of the Code) of which it is the parent corporation since at least the date on which each was incorporated. The accruals for deferred Federal income taxes reflected in the audited financial statements of the Company for the year ended April 30, 1996 are adequate in all material respects to cover any deferred Federal Income Tax liability of the Company and its Subsidiaries determined in accordance with generally accepted principles through the date thereof. The accruals and reserves for Taxes in such financial statements are adequate in all material respects to cover any liability of the Company and its Subsidiaries for Taxes for periods through the date thereof.

Tax Returns, Audits and Liabilities. (a) Except as set forth in Section 3.18 of the Disclosure Schedule, each of the Shareholders and Company and its Subsidiaries has have: (i) timely filed in accordance with all applicable laws, all Returns material returns, statements, reports, estimates, declarations and forms (hereinafter referred to collectively as defined belowthe "Returns") required to be filed by them, them on or before the Closing Date with respect to any Taxes (as defined in Section 3.5(b) hereof); (ii) paid all Taxes (as defined below) shown to have become due pursuant to such Returns, ; and (iii) paid all Taxes (other than those being contested in good faith, all of which are disclosed in Section 3.18 of the Disclosure Schedule) for which a notice of, or assessment or demand for, payment has been received or which are otherwise due and payable, in each case other than failures to file or pay that would not, in the aggregate, have a Material Adverse Effect on the Company. All such Returns filed by each of the Company and each of its Subsidiaries with respect to Taxes were are true and correct in all material respects and reflected as of the date on which they were filed or as subsequently amended time of filing the facts regarding the income, business, assets, operations, activities and status of Company and any other information required to the date hereofbe shown therein. Except as set forth in Section 3.18 of the Disclosure Schedule, Correct and complete copies of of: (i) consolidated federal Income Tax Returns (as defined below) income tax returns for the Company and its Subsidiaries and (ii) state and local Income Tax income and other Tax Returns tax returns of the Company and its Subsidiaries for each of the three years ended April 30January 2, 1995 and 19961993, through December 31, 1994, have heretofore been delivered or made available to TransworldBuyer. Except as set forth in Section 3.18 of the Disclosure ScheduleSchedule 3.5, (A) there is no action, suit, proceeding, investigation, audit, claims claim or assessment pending or proposed with respect to Taxes with respect to any liability for Tax that relates to the Company or any of its Subsidiaries for which a material amount of Tax is at issue, Return; (B) all material amounts required to be collected or withheld by the Company and each of its Subsidiaries with respect to Taxes have been duly collected or withheld and any such amounts that are required to be remitted to any taxing authority have been duly remitted, ; (C) no extension of time within which to file any material Return that relates to the Company or any of its Subsidiaries has been requested which Return has not since been filed, ; (D) there are no security interests for federal or state Taxes upon the assets off Company; (E) there are no waivers or extensions of any applicable statute of limitations for the assessment or collection of Taxes with respect to any material Return that relates to the Company or any of its Subsidiaries which remain remains in effect, ; (EF) there are no tax rulings, requests for rulings, or closing agreements relating to the Company or any of its Subsidiaries which could materially affect their its liability for Taxes for any period after the Effective Time, Closing Date; (FG) all material Federalfederal, state, state and local Income Tax Returns income tax returns of the Company and each of its Subsidiaries with respect to taxable periods through the year ended April 30December 31, 1992 have been examined and closed or 1991 are Returns with respect to which the applicable statute of limitations has expired without extension or waiver, ; (GH) no power of attorney has been granted by the Shareholders or Company or any of its Subsidiaries with respect to any matter relating to Taxes of the Company and its Subsidiaries which is currently in force, (H) no excess loss account (as referred to in Treasury Regulation Section 1.1502-19) exists with respect to any Subsidiary of the Company, ; (I) neither no property of Company is property that Company is required to treat as being owned by another person pursuant to the Company nor any provisions of its Subsidiaries has any deferred gain or loss Section 168(f)(8) of the Internal Revenue Code of 1954, as amended (i) arising from deferred intercompany transactions (as hereinafter referred to in Treasury Regulation Sections 1.1502-13 and 1.1502-13T), as the "Code") prior to its amendment by the Tax Reform Act of 1986 or (iiis "tax exempt use property" within the meaning of Section 168(h) with respect to the stock or obligations of any other member of the Company's affiliated group (as described in Treasury Regulation Sections 1.1502-14 and 1.1502-14T) and Code; (J) neither the Company nor has not filed any Subsidiary has filed a consent under Section 341(f) of the Code or any comparable provision of state revenue statutes. The ; and (K) Company has filed a consolidated Return for Federal Income Tax purposes on behalf of itself and other members of the affiliated group (not participated in or cooperated in any international boycott, within the meaning of Section 1504 999 of the Code) , nor has Company had operations which are or may hereafter become reportable under Section 999 of which it is the parent corporation since at least the date on which each was incorporatedCode. The accruals for deferred Federal federal income taxes reflected in the audited financial statements of the Company for the year ended April 30December 31, 1996 1994 Balance Sheet are adequate in all material respects to cover any deferred Federal Income Tax federal income tax liability of the Company and its Subsidiaries determined in accordance with generally accepted accounting principles through the date thereof. The accruals and reserves for All Taxes in such financial statements are adequate in all material respects as to cover any liability of which Company may be liable which relate to periods ending on or before the Company and its Subsidiaries for Taxes for periods through Closing Date have been, or on the date thereofClosing Date will be, adequately accrued or reserved against on the Closing Date Financial Statements.

Tax Returns, Audits and Liabilities. (a) Except as set forth in Section 3.18 of the Disclosure Scheduleon Schedule 3.20, each of the Company and its Subsidiaries has (i) timely filed in accordance with all applicable lawsLaws (taking into account valid extensions), all Returns (as defined below) required to be filed by themit, (ii) paid all Taxes (as defined below) shown to have become due pursuant to such Returns, and (iii) paid all Taxes (other than those being contested in good faith, all of which are disclosed in Section 3.18 of the Disclosure Scheduleon Schedule 3.20) for which a notice of, or assessment or demand for, payment has been received or which are otherwise due and payable, in each case other than failures to file or pay that would not, in the aggregate, have a Material Adverse Effect on the Company. All Returns filed by each of the Company and each of its Subsidiaries with respect to Taxes were true true, correct and correct in all material respects complete as of the date on which they were filed or as subsequently amended to the date hereof. Except as set forth in Section 3.18 of the Disclosure Scheduleon Schedule 3.20, complete copies of (i) consolidated federal Income Tax Returns (as defined below) for the Company and its Subsidiaries and (ii) state state, local and local foreign Income Tax and other Tax Returns of the Company Company, that have been filed from and its Subsidiaries for each of after December 31, 1993 through the years ended April 30, 1995 and 1996date hereof, have heretofore been delivered or made available to Transworldthe Purchaser prior to the date hereof. Prior to the date hereof, the Company has provided to the Purchaser copies of all revenue agent's reports and other written assertions of deficiencies or other Liabilities for Taxes of the Company with respect to past periods for which the limitations period has not run. Except as set forth in Section 3.18 of the Disclosure Scheduleon Schedule 3.20, (A) there is no action, suit, proceeding, investigation, audit, claims Litigation or assessment pending or, to the knowledge of the Company or the Seller proposed or threatened with respect to any liability Liability for Tax that relates to the Company or any of its Subsidiaries for which a material amount of Tax is at issueCompany, (B) all material amounts required to be collected or withheld by the Company and each of its Subsidiaries with respect to Taxes have been duly collected or withheld and any such amounts that are required to be remitted to any taxing authority have been duly remitted, (C) no extension of time within which to file any material Return that relates to the Company or any of its Subsidiaries has been requested requested, which Return has not since been filed, (D) there are no waivers or extensions of any applicable statute of limitations for the assessment or collection of Taxes with respect to any material Return that relates to the Company or any of its Subsidiaries which remain in effect, (E) there are no tax rulings, requests for rulings, or closing agreements relating to the Company or any of its Subsidiaries which could materially affect their its liability for Taxes for any period after the Effective TimeClosing, (F) all material Federalfederal, state, local and local foreign Income Tax Returns of the Company and each of its Subsidiaries with respect to taxable periods through the year ended April 30December 31, 1992 1993 have been examined and closed or are Returns with respect to which the applicable statute of limitations has expired without extension or waiver, (G) no power of attorney has been granted by the Company or any of its Subsidiaries with respect to any matter relating to Taxes of the Company and its Subsidiaries which is currently in force, (H) the Company is not a party to, nor is it bound by, any Tax allocation or Tax sharing agreement or arrangement and has no excess loss account (as referred current contractual obligation to in Treasury Regulation Section 1.1502-19) exists indemnify any other Person with respect to any Subsidiary of the CompanyTaxes, (I) neither no taxing authority in a jurisdiction where the Company nor or any shareholder of its Subsidiaries the Company does not file Returns has made a claim, assertion or threat that the Company is or may be subject to taxation by such jurisdiction, (J) the states, territories and jurisdictions (whether foreign or domestic) in which the Company has filed income, franchise, sales and use Tax Returns for taxable periods ending after December 31, 1993 are set forth on Schedule 3.20, (K) the Company and the Seller do not have knowledge of any deferred gain fact or loss condition which, if known to any taxing authority having jurisdiction, would likely result in the issuance of a notice of proposed deficiency or similar notice of intention to assess Taxes against the Company, and no issue has arisen in any examination of the Company by any taxing authority that if raised with respect to the period so examined would result in a material deficiency for any other period not so examined, if upheld, (iL) arising from deferred intercompany transactions any adjustment of Taxes of the Company made by the IRS in any examination which is required to be reported to the appropriate state, local or foreign taxing authorities has been reported, and any additional Taxes due with respect thereto have been paid except for amounts that the Company is contesting in good faith, as set forth on Schedule 3.20, and (M) none of the assets of the Company (1) is property that is required to be treated as referred being owned by any other person pursuant to in Treasury Regulation Sections 1.1502the "safe harbor lease" provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, (2) is "tax-13 and 1.1502-13Texempt use property" within the meaning of Code Section 168(h), or (ii3) with respect to directly or indirectly secures any debt the stock or obligations interest of any other member of the Company's affiliated group (as described in Treasury Regulation Sections 1.1502-14 and 1.1502-14T) and (J) neither which is tax exempt under Code Section 103(a). For federal Income Tax purposes, the Company nor any Subsidiary is, since its formation has filed a consent been, and will be until the Closing Date, properly qualified as an "S corporation" under Code Section 341(f) of 1361(a), and the Code or any comparable provision of Company is, since its formation has been, and will be until the Closing Date so properly qualified for state revenue statutes. The Company has filed a consolidated Return for Federal and local Income Tax purposes on behalf of itself and other members of the affiliated group (within the meaning of Section 1504 of the Code) of which it is the parent corporation since at least the date on which each was incorporated. The accruals for deferred Federal income taxes reflected pursuant to analogous state or local provisions in the audited financial statements of the Company for the year ended April 30, 1996 are adequate in all material respects to cover any deferred Federal Income Tax liability of the Company and its Subsidiaries determined in accordance with generally accepted principles through the date thereof. The accruals and reserves for Taxes in such financial statements are adequate in all material respects to cover any liability of the Company and its Subsidiaries for Taxes for periods through the date thereofjurisdictions set forth on Schedule 3.20.