LAST DAY OF SUCH FISCAL
QUARTER(S) BALANCE SHEETS FOR THE SERVICE PROVIDERS AS AT THE LAST DAY OF SUCH
FISCAL QUARTER(S) AND UNAUDITED CONSOLIDATED STATEMENTS OF INCOME, CHANGES IN
OWNERS' EQUITY AND CASH FLOWS FOR SUCH QUARTER(S) AND THE YEAR-TO-DATE PERIOD
THEN ENDED (EACH, AN "UNAUDITED SUPPLEMENTAL FINANCIAL STATEMENT").
(B)
IF NECESSARY OR REQUIRED TO PERMIT IWEST TO COMPLY WITH APPLICABLE LAW IN
CONNECTION WITH OBTAINING THE IWEST STOCKHOLDERS' RATIFICATION OR OTHERWISE, AND
TO THE EXTENT NOT PREVIOUSLY PROVIDED BY THE SERVICE PROVIDERS PURSUANT TO THIS
AGREEMENT, IREIC AND THE AGENT SHALL CAUSE EACH SERVICE PROVIDER TO DELIVER TO
IWEST, AT SUCH SERVICE PROVIDER'S EXPENSE, AUDITED AND UNAUDITED BALANCE SHEETS
AND AUDITED STATEMENTS OF INCOME, CHANGES IN OWNERS' EQUITY, AND CASH FLOWS FOR
THE PERIODS REQUIRED BY APPLICABLE LAW (THE "REQUIRED SUPPLEMENTAL FINANCIAL
STATEMENTS"; AND, TOGETHER WITH THE UNAUDITED SUPPLEMENTAL FINANCIAL STATEMENTS,
THE "SUPPLEMENTAL FINANCIAL STATEMENTS"), TOGETHER WITH A REPORT WITHOUT
QUALIFICATION OR EXCEPTION WITH RESPECT THERETO IN THE CASE OF AUDITED FINANCIAL
STATEMENTS.
57
SECTION 6.15
DIRECTOR AND OFFICER LIABILITY.
(A)
FROM AND AFTER THE CLOSING, AND SUBJECT TO IWEST'S RIGHT TO
INDEMNIFICATION PURSUANT TO ARTICLE IX, IWEST WILL INDEMNIFY AND HOLD HARMLESS,
AS AND TO THE EXTENT SET FORTH IN THE APPLICABLE CHARTER, BYLAWS AND INDEMNITY
AGREEMENTS IN EFFECT ON THE DATE OF THIS AGREEMENT EACH INDIVIDUAL WHO IS NOW,
OR WHO BECOMES PRIOR TO THE CLOSING, A DIRECTOR OR OFFICER OF ANY OF THE SERVICE
PROVIDERS (THE "DIRECTOR AND OFFICER INDEMNIFIED PARTIES") AGAINST ANY DAMAGES
TO WHICH SUCH DIRECTOR AND OFFICER INDEMNIFIED PARTY IS, OR IS THREATENED TO BE,
MADE A PARTY BASED IN WHOLE OR IN PART ON, OR ARISING IN WHOLE OR IN PART OUT
OF, OR PERTAINING TO (I) THE FACT THAT SUCH INDIVIDUAL IS OR WAS A DIRECTOR OR
OFFICER OF ANY OF THE SERVICE PROVIDERS OR (II) THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER ASSERTED OR ARISING BEFORE
OR AFTER THE CLOSING; PROVIDED, HOWEVER, THAT IWEST SHALL NOT BE OBLIGATED TO
INDEMNIFY OR HOLD HARMLESS ANY SUCH DIRECTOR AND OFFICER INDEMNIFIED PARTY
PURSUANT HERETO IN RESPECT OF ANY CLAIM BY ANY SERVICE PROVIDER, IWEST OR ANY OF
IWEST'S AFFILIATES.
(B)
THE PROVISIONS OF THIS SECTION 6.15 WILL SURVIVE THE CLOSING AND ARE
INTENDED TO BE FOR THE BENEFIT OF, AND WILL BE ENFORCEABLE BY, EACH DIRECTOR AND
OFFICER INDEMNIFIED PARTY AND HIS OR HER HEIRS AND REPRESENTATIVES.
SECTION 6.16
ESTIMATED SERVICE PAYMENT.
(A)
ON THE SECOND BUSINESS DAY IMMEDIATELY PRECEDING THE CLOSING DATE, IWEST
SHALL PAY OR CAUSE TO BE PAID (BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS)
TO EACH SERVICE PROVIDER AN AMOUNT EQUAL TO THE TOTAL FEES, EXPENSES AND OTHER
AMOUNTS PAYABLE (BUT NOT PREVIOUSLY PAID) TO SUCH SERVICE PROVIDER PURSUANT TO
THE IWEST/SERVICE PROVIDER AGREEMENTS (AS ESTIMATED IN GOOD FAITH BY IWEST)
THROUGH AND INCLUDING THE CLOSING DATE (THE "ESTIMATED SERVICE PAYMENT").
(B)
TO THE EXTENT THAT THE ADVISOR RECEIVES AN ESTIMATED SERVICE PAYMENT MORE
THAN TEN (10) DAYS IN ADVANCE OF THE