TO SUCH THIRD PARTY CLAIM THROUGH THE DATE OF ITS
REJECTION OF THE SETTLEMENT OFFER OR (Y) THE AGGREGATE LOSSES OF THE INDEMNITEE
WITH RESPECT TO SUCH CLAIM.
THE PARTY CONTROLLING ANY DEFENSE SHALL KEEP THE
OTHER PARTY ADVISED OF THE STATUS OF SUCH ACTION, SUIT, PROCEEDING OR CLAIM AND
THE DEFENSE THEREOF AND SHALL CONSIDER IN GOOD FAITH ALL REASONABLE
RECOMMENDATIONS MADE BY THE OTHER PARTY WITH RESPECT THERETO.
(B)
DIRECT CLAIMS. ANY CLAIM BY AN INDEMNITEE FOR LOSSES THAT DO NOT
RESULT FROM A THIRD PARTY CLAIM (EACH, A "DIRECT CLAIM") SHALL BE ASSERTED BY
GIVING THE INDEMNITOR PROMPT WRITTEN NOTICE THEREOF, BUT IN ANY EVENT NOT LATER
THAN 60 CALENDAR DAYS AFTER THE INCURRENCE THEREOF OR SUCH INDEMNITEE'S ACTUAL
KNOWLEDGE OF SUCH EVENT (WHICHEVER IS LATER), PROVIDED, HOWEVER, THAT THE
FAILURE OF AN INDEMNITEE TO NOTIFY THE INDEMNITOR WITHIN THE TIME PERIOD SET
FORTH HEREIN SHALL ONLY RELIEVE THE INDEMNITOR FROM ITS OBLIGATION TO INDEMNIFY
TO THE EXTENT THAT THE INDEMNITOR IS MATERIALLY PREJUDICED BY SUCH FAILURE OR
DELAY (WHETHER AS A RESULT OF THE FORFEITURE OF SUBSTANTIVE RIGHTS OR DEFENSES
OR OTHERWISE), AND THE INDEMNITOR WILL HAVE A PERIOD OF 30 CALENDAR DAYS WITHIN
WHICH TO RESPOND IN WRITING TO SUCH DIRECT CLAIM.
IF THE INDEMNITOR DOES NOT SO
RESPOND WITHIN SUCH 30 CALENDAR DAY PERIOD, THE INDEMNITOR WILL BE DEEMED TO
HAVE ACCEPTED SUCH CLAIM.
IF THE INDEMNITOR REJECTS SUCH CLAIM, THE INDEMNITEE
WILL BE FREE TO PURSUE SUCH REMEDIES AS MAY BE AVAILABLE TO THE INDEMNITEE ON
THE TERMS AND SUBJECT TO THE PROVISIONS OF THIS ARTICLE XVI.
16.5
SURVIVING LIABILITY.
(A)
AS OF THE DATE HEREOF AND UNTIL THE CLOSING, FAIRPOINT SHALL BE
LIABLE FOR ANY AMOUNTS OWED TO SUPPLIER AND ITS AFFILIATES PURSUANT TO THIS
AGREEMENT.
(B)
AS OF THE CLOSING AND THEREAFTER, SURVIVING CORPORATION AND BUYERS
SHALL BE JOINTLY AND SEVERALLY LIABLE FOR ANY AMOUNTS OWED TO SUPPLIER AND ITS
AFFILIATES PURSUANT TO THIS AGREEMENT.
30
ARTICLE XVII
TAXES
17.1
TAXES.
THE BUYERS SHALL PAY SUPPLIER OR ITS
AFFILIATES FOR ANY TAX (EXCEPT INCOME TAXES) LEVIED UPON ANY TRANSITION SERVICE
OR SCHEDULE B SERVICE OR ON SUPPLIER OR AN AFFILIATE WITH RESPECT TO ANY
TRANSITION SERVICE OR SCHEDULE B SERVICE; PROVIDED, HOWEVER, TO THE EXTENT TAX
IS NOT COLLECTED AND REMITTED BY SUPPLIER OR ITS AFFILIATES, BUYERS MAY REMIT
SUCH TAX DIRECTLY TO THE APPROPRIATE GOVERNMENTAL AUTHORITY.
IF THE BUYERS
DETERMINE THAT ANY TRANSITION SERVICE OR SCHEDULE B SERVICE IS EXEMPT FROM A
TAX, THE BUYERS SHALL PROVIDE SUPPLIER WITH A PROPERLY COMPLETED AND TIMELY
EXEMPTION CERTIFICATE FOR EACH JURISDICTION FOR WHICH THE BUYERS ARE CLAIMING AN
EXEMPTION BEFORE SUPPLIER MAY EXCLUDE THE RESPECTIVE TAX FROM THE AMOUNTS
CHARGED THE BUYERS.
SUPPLIER WILL INVOICE THE BUYERS FOR APPLICABLE TAXES WITH
RESPECT TO THE TRANSITION SERVICES IN THE MANNER PROVIDED IN ARTICLE VI.
IF THE
BUYERS DISPUTE ANY INVOICE FOR TAXES OWING IN GOOD FAITH, IT SHALL IMMEDIATELY
NOTIFY SUPPLIER IN WRITING, GIVING THE REASONS FOR THE DISPUTE.
THE BUYERS
SHALL