RETURN SHALL BE PREPARED ON A
BASIS CONSISTENT WITH PAST PRACTICE (TO THE EXTENT OF PAST PRACTICE). THE
PURCHASER SHALL CONTROL (SUBJECT TO SELLER'S RIGHTS HEREUNDER) AND, UNLESS THE
SELLER CONSENTS IN WRITING FOR THE PURCHASER TO DO OTHERWISE, SHALL DILIGENTLY
PURSUE AND DEFEND (AND SHALL CAUSE A PROPERTY OWNER TO DILIGENTLY PURSUE AND
DEFEND) ANY AUDIT OF ANY STRADDLE PERIOD ("STRADDLE AUDIT"); PROVIDED, HOWEVER
THAT, WITHOUT SELLER'S PRIOR WRITTEN CONSENT (WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD, CONDITIONED OR DELAYED), PURCHASER SHALL NOT TAKE OR
CAUSE OR PERMIT TO BE TAKEN (OR NOT TAKE, OR CAUSE OR PERMIT NOT TO BE TAKEN)
ANY ACTION WHICH COULD REASONABLY BE EXPECTED TO RESULT IN AN INCREASE IN
LIABILITY FOR SELLER FOR ANY PRE-CLOSING PERIOD (INCLUDING UNDER THE FINANCIAL
AGREEMENT OR AMENDED FINANCIAL AGREEMENT), EXCEPT THAT NO SUCH CONSENT SHALL BE
REQUIRED IF THE TOTAL LIABILITY RESULTING FROM SUCH ACTION IS ALLOCABLE
PROPORTIONATELY BETWEEN SELLER AND PURCHASER AND PURCHASER IS LIABLE FOR MORE
THAN FIFTY PERCENT (50%) OF SAID LIABILITY.
PURCHASER SHALL KEEP THE SELLER
FULLY AND CONTEMPORANEOUSLY APPRISED OF ALL MATERIAL ASPECTS OF ANY STRADDLE
AUDIT AND SHALL PROMPTLY FURNISH OR CAUSE TO BE PROMPTLY FURNISHED TO THE SELLER
COPIES OF ANY AND ALL DOCUMENTS, REPORTS, CORRESPONDENCE AND OTHER WRITTEN
MATERIALS PERTAINING TO ANY STRADDLE AUDIT.
AT THE REASONABLE REQUEST OF
SELLER, THE PURCHASER SHALL USE COMMERCIALLY REASONABLE EFFORTS TO PURSUE ANY
CLAIM FOR A REFUND OR CREDIT IN RESPECT OF ANY TAXES FOR ANY STRADDLE PERIOD,
EITHER BY THE FILING OF AN AMENDED STRADDLE RETURN OR DURING A STRADDLE AUDIT,
UNLESS PURCHASER REASONABLY BELIEVES, AND IS ABLE TO ESTABLISH TO THE REASONABLE
SATISFACTION OF
60
SELLER AND ITS TAX COUNSEL AND ACCOUNTANTS, THAT THE TOTAL COST OF PURSUING SUCH
CLAIM WOULD EXCEED THE AMOUNT OF SUCH REFUND OR CREDIT.
PURCHASER SHALL PAY TO
SELLER SELLER'S PROPORTIONATE SHARE OF ANY SUCH REFUND OR CREDIT (I.E., THE
AMOUNT OF SUCH REFUND OR CREDIT MULTIPLIED BY THE FRACTION THE NUMERATOR OF
WHICH IS THE TOTAL NUMBER OF DAYS IN THE PRE-CLOSING STRADDLE PERIOD AND THE
DENOMINATOR OF WHICH IS THE TOTAL NUMBER OF DAYS IN SUCH STRADDLE PERIOD) AND
ANY INTEREST THEREON SO OBTAINED PROMPTLY AFTER RECEIPT FROM, OR ALLOWANCE
THEREOF, BY THE RELEVANT TAX AUTHORITY, LESS SELLER'S PROPORTIONATE SHARE OF THE
COST THEREOF.
THE SELLER AND PURCHASER SHALL, AND PURCHASER SHALL CAUSE ANY
PROPERTY OWNER TO, FULLY COOPERATE IN THE OBTAINING OF ANY REFUND OR CREDIT.
(III)
FOR PURPOSES OF THIS SECTION 17.16(B), THE TERM "AUDIT" SHALL
MEAN ANY AUDIT, ASSESSMENT, OR OTHER EXAMINATION OR CLAIM BY ANY TAX AUTHORITY
AND ANY JUDICIAL, ADMINISTRATIVE OR OTHER PROCEEDING OR LITIGATION (INCLUDING
ANY APPEAL OF ANY SUCH JUDICIAL, ADMINISTRATIVE OR OTHER PROCEEDING OR
LITIGATION), RELATING TO TAXES OR TAX RETURNS OR REPORTS.
FOR PURPOSES OF THIS
SECTION 17.16(B), THE TERM "PRE-CLOSING STRADDLE PERIOD" SHALL MEAN WITH RESPECT
TO ANY STRADDLE PERIOD, THE PORTION OF SUCH STRADDLE PERIOD BEGINNING ON THE
FIRST DAY THEREOF AND ENDING ON AN INCLUDING THE CLOSING DATE.
THE PURCHASER