TAXES IMPOSED ON THE EARTHLINK ASSETS FOR ANY TAXABLE YEAR OR PERIOD THAT ENDS
ON OR BEFORE THE CLOSING DATE AND, WITH RESPECT TO ANY TAXABLE YEAR OR PERIOD
BEGINNING BEFORE AND ENDING AFTER THE CLOSING DATE, THE PORTION OF SUCH TAXABLE
YEAR ENDING ON AND INCLUDING THE CLOSING DATE.
4.4.2
TAXES FOR SHORT TAXABLE YEAR.
FOR
PURPOSES OF SECTION 4.4.1, WHENEVER IT IS NECESSARY TO DETERMINE THE LIABILITY
FOR TAXES FOR A PORTION OF A TAXABLE YEAR OR PERIOD THAT BEGINS BEFORE AND ENDS
AFTER THE CLOSING DATE, THE DETERMINATION OF THE TAXES OF THE RELEVANT ENTITY
FOR THE PORTION OF THE YEAR OR PERIOD ENDING ON, AND THE PORTION OF THE YEAR OR
PERIOD BEGINNING AFTER, THE CLOSING DATE SHALL BE DETERMINED BY ASSUMING THAT
THE RELEVANT ENTITY HAD A TAXABLE YEAR OR PERIOD WHICH ENDED AT THE CLOSE OF THE
CLOSING DATE, EXCEPT THAT EXEMPTIONS, ALLOWANCES OR DEDUCTIONS THAT ARE
CALCULATED ON AN ANNUAL BASIS, SUCH AS THE DEDUCTION FOR DEPRECIATION AND TAXES
ON REAL OR PERSONAL PROPERTY, SHALL BE APPORTIONED ON A DAILY BASIS.
4.4.3
TRANSFER TAXES.
THE SKT PARTIES
SHALL PAY ANY TRANSFER TAXES IMPOSED WITH RESPECT TO THE SKT CONTRIBUTION, AND
EARTHLINK SHALL PAY ANY TRANSFER TAXES IMPOSED WITH RESPECT TO THE EARTHLINK
CONTRIBUTION.
4.5
CONTROL OF OPERATIONS.
NOTHING CONTAINED IN
THIS AGREEMENT SHALL GIVE SKT OR SKTI, DIRECTLY OR INDIRECTLY, THE RIGHT TO
CONTROL OR DIRECT THE OPERATIONS OF EARTHLINK OR ITS AFFILIATES WITH RESPECT TO
THE EARTHLINK ASSETS PRIOR TO THE CLOSING.
NOTHING CONTAINED IN THIS AGREEMENT
SHALL GIVE EARTHLINK, DIRECTLY OR INDIRECTLY, THE RIGHT TO CONTROL OR DIRECT THE
OPERATIONS OF SKT, SKTI OR THEIR RESPECTIVE AFFILIATES WITH RESPECT TO THE SKT
CONTRIBUTION PRIOR TO THE CLOSING.
4.6
CONSENT OF THIRD PARTIES.
IF ANY THIRD PARTY
CONSENT OR APPROVAL IS NOT OBTAINED PRIOR TO OR ON THE CLOSING DATE, AND SUCH
CONSENT OR APPROVAL RELATES TO THE TRANSFER OR ASSIGNMENT TO OPERATING COMPANY
OF AN EARTHLINK CONTRIBUTED CONTRACT, EARTHLINK SHALL CONTINUE TO HOLD AND ACT
UNDER SUCH CONTRACT FOR THE USE AND BENEFIT OF OPERATING COMPANY SO LONG AS
OPERATING COMPANY FULLY COOPERATES WITH EARTHLINK AND PROMPTLY REIMBURSES
EARTHLINK FOR ALL PAYMENTS MADE BY EARTHLINK (WITH THE PRIOR APPROVAL OF
OPERATING COMPANY) IN
19
CONNECTION THEREWITH AND SHALL TAKE SUCH OTHER ACTION AS MAY BE REASONABLY
REQUESTED BY SKT OR OPERATING COMPANY IN ORDER TO PLACE OPERATING COMPANY IN THE
SAME POSITION AS IF SUCH CONSENTS OR APPROVALS HAD BEEN OBTAINED.
4.7
FURTHER ASSURANCES.
AT ANY TIME FOLLOWING THE
CLOSING DATE, EACH OF THE SKT PARTIES AND EARTHLINK SHALL, AND SHALL CAUSE
OPERATING COMPANY TO, PROMPTLY EXECUTE, ACKNOWLEDGE AND DELIVER ANY OTHER
ASSURANCES OR DOCUMENTS REASONABLY REQUESTED BY OPERATING COMPANY, THE SKT
PARTIES OR EARTHLINK, AS THE CASE MAY BE, AND NECESSARY FOR SUCH SKT PARTY,
EARTHLINK OR OPERATING COMPANY, AS THE CASE MAY BE, TO SATISFY ITS OBLIGATIONS
UNDER THIS AGREEMENT OR OBTAIN THE BENEFITS CONTEMPLATED BY THIS AGREEMENT.
ARTICLE V
CONDITIONS TO CLOSING
5.1
CONDITIONS TO EACH PARTY'S