OWNER, AND
WITH WHICH IT DISAGREES.
IN SUCH CASE, SELLER AND PURCHASER SHALL USE
REASONABLE BEST EFFORTS TO REACH A TIMELY AND MUTUALLY SATISFACTORY SOLUTION TO
THE DISPUTED MATTERS.
SELLER SHALL PROVIDE TO PURCHASER A COPY OF ALL SUCH TAX
RETURNS TOGETHER WITH THE WORK PAPERS AND SCHEDULES UTILIZED IN THEIR
PREPARATION.
PURCHASER, 109 WAGON WHEEL, THE PROJECT OWNER AND SELLER SHALL
COOPERATE FULLY, AS AND TO THE EXTENT REASONABLY REQUESTED, IN CONNECTION WITH
THE FILING OF TAX RETURNS AND ANY AUDIT, LITIGATION OR OTHER PROCEEDING WITH
RESPECT TO TAXES AND TAX RETURNS (WHICH SELLER SHALL CONTROL AND REMAIN
RESPONSIBLE FOR WITH RESPECT TO THE PRE-CLOSING DATE PERIODS).
SUCH COOPERATION
SHALL INCLUDE THE RETENTION, AND (UPON THE OTHER PARTY'S REQUEST) THE PROVISION,
OF RECORDS AND INFORMATION THAT ARE REASONABLY RELEVANT TO ANY SUCH AUDIT,
LITIGATION OR OTHER PROCEEDING AND MAKING EMPLOYEES AVAILABLE ON A MUTUALLY
CONVENIENT BASIS TO PROVIDE
25
ADDITIONAL INFORMATION AND EXPLANATION OF ANY MATERIAL PROVIDED HEREUNDER;
PROVIDED THAT THE PARTY REQUESTING ASSISTANCE SHALL PAY THE REASONABLE
OUT-OF-POCKET EXPENSES INCURRED BY THE PARTY PROVIDING SUCH ASSISTANCE; AND
PROVIDED FURTHER THAT NO PARTY SHALL BE REQUIRED TO PROVIDE ASSISTANCE AT TIMES
OR IN AMOUNTS THAT WOULD INTERFERE UNREASONABLY WITH THE BUSINESS AND OPERATIONS
OF SUCH PARTY.
PURCHASER AGREES TO RETAIN ALL BOOKS AND RECORDS, WITH RESPECT
TO TAX MATTERS PERTINENT TO PROJECT OWNER AND 109 WAGON WHEEL RELATING TO ANY
PRE-CLOSING DATE PERIODS, AND TO ANY TAX PERIODS BEGINNING BEFORE THE CLOSING
DATE AND ENDING AFTER THE CLOSING DATE, UNTIL THE EXPIRATION OF ANY APPLICABLE
STATUTE OF LIMITATIONS OR EXTENSIONS THEREOF.
(D)
AT LEAST TEN (10) DAYS PRIOR TO THE CLOSING DATE, PURCHASER SHALL
SUBMIT A WRITTEN SCHEDULE THAT SETS FORTH PURCHASER'S PROPOSED ALLOCATION OF THE
PURCHASE PRICE, IN RELATIVE PERCENTAGES FOR EACH TYPE OF ASSET BEING ACQUIRED,
WHICH SCHEDULE SHALL BE DELIVERED TO SELLER FOR SELLER'S CONSENT THERETO, WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
IF SELLER OBJECTS TO PURCHASER'S
WRITTEN SCHEDULE, PURCHASER AND SELLER SHALL USE REASONABLE EFFORTS TO CREATE A
WRITTEN SCHEDULE IN A FORM MUTUALLY AGREEABLE TO BOTH PARTIES.
PRIOR TO THE
CLOSING DATE, PURCHASER SHALL PREPARE INTERNAL REVENUE SERVICE FORM 8594, ASSET
ACQUISITION STATEMENT UNDER SECTION 1060 ("FORM 8594"), IN CONFORMITY WITH THE
WRITTEN SCHEDULE AS DETERMINED IN ACCORDANCE WITH THIS SECTION.
PURCHASER AND
SELLER SHALL ATTACH SUCH FORM 8594 TO THEIR RESPECTIVE TAX RETURNS FOR THE
APPLICABLE TAX YEAR, AND TO THE EXTENT THAT THE PURCHASE PRICE IS ADJUSTED,
CONSISTENTLY REVISE AND AMEND THE ALLOCATION SCHEDULE AND FORM 8594 AS
NECESSARY.
THE ALLOCATION DERIVED PURSUANT TO THIS SECTION SHALL BE BINDING ON
PURCHASER AND SELLER FOR ALL TAX REPORTING PURPOSES AND NEITHER PURCHASER NOR
SELLER (OR ANY OF THEIR RESPECTIVE AFFILIATES) SHALL TAKE ANY POSITION (WHETHER
IN TAX RETURNS, TAX AUDITS, OR OTHER ADMINISTRATIVE OR COURT PROCEEDINGS WITH
RESPECT TO TAXES) THAT IS INCONSISTENT WITH SUCH ALLOCATION UNLESS REQUIRED TO
DO SO BY APPLICABLE LAW.
4.6
Audit.
Purchaser has advised Seller that Purchaser must cause to be prepared up to
three (3)