IN THE TAX PERIOD ENDING ON THE CLOSING DATE AND THE
DENOMINATOR OF WHICH IS THE NUMBER OF DAYS IN THE ENTIRE STRADDLE PERIOD;
PROVIDED, THAT IN THE CASE OF ANY TAX BASED UPON INCOME OR RECEIPTS, THE PORTION
ALLOCABLE TO THE PRE-CLOSING TAX PERIOD SHALL INCLUDE OPERATIONS THROUGH THE
CLOSING DATE (I.E., WITH RESPECT TO OPERATIONS, BASED ON AN INTERIM CLOSING OF
THE BOOKS ON THE CLOSING DATE).
(E)
IF A CLAIM SHALL BE MADE BY ANY GOVERNMENTAL AUTHORITY OR ANY THIRD PARTY
WITH RESPECT TO TAXES, WHICH, IF SUCCESSFUL, MIGHT RESULT IN AN INDEMNITY
PAYMENT TO AN INDEMNIFIED PARTY PURSUANT TO SECTION 9.5, THE INDEMNIFIED PARTY
OR THE INDEMNIFYING PARTY, AS THE CASE MAY BE, SHALL PROMPTLY AND IN ANY EVENT
NO MORE THAN TWENTY (20) DAYS FOLLOWING RECEIPT OF SUCH CLAIM, GIVE WRITTEN
NOTICE TO THE INDEMNIFYING PARTY OR THE INDEMNIFIED PARTY, AS THE CASE MAY BE,
OF SUCH CLAIM (A "TAX CLAIM"); PROVIDED, HOWEVER, THAT THE FAILURE OF THE
INDEMNIFIED PARTY TO GIVE SUCH NOTICES SHALL ONLY RELIEVE THE INDEMNIFYING PARTY
FROM ITS INDEMNIFICATION OBLIGATIONS HEREUNDER TO THE EXTENT IT IS ACTUALLY
PREJUDICED BY SUCH FAILURE.
WITH RESPECT TO ANY TAX CLAIM RELATING TO A TAX
PERIOD ENDING ON OR PRIOR TO THE CLOSING DATE, IREIC OR AGENT SHALL CONTROL ALL
PROCEEDINGS AND MAY MAKE ALL DECISIONS IN CONNECTION WITH SUCH TAX CLAIM
(INCLUDING SELECTION OF COUNSEL) AT ITS OWN EXPENSE IF IREIC OR THE AGENT, AS
APPLICABLE, ACKNOWLEDGE IN WRITING WITHOUT QUALIFICATION THEIR INDEMNIFICATION
OBLIGATIONS HEREUNDER.
HOWEVER, IF THE RESOLUTION OF ANY PORTION OF SUCH TAX
CLAIM WOULD INCREASE THE TAXES OF IWEST OR OF THE SERVICE PROVIDERS FOR A TAX
PERIOD AFTER THE CLOSING DATE BY MORE THAN $100,000 IN THE AGGREGATE, IREIC OR
THE AGENT MUST OBTAIN THE CONSENT OF IWEST (AS AUTHORIZED BY THE IWEST SPECIAL
COMMITTEE).
IREIC OR THE AGENT, AS APPLICABLE, AND IWEST SHALL JOINTLY CONTROL
ALL PROCEEDINGS IN CONNECTION WITH ANY TAX CLAIM RELATING TO TAXES OF THE
SERVICE PROVIDERS FOR A STRADDLE PERIOD.
IWEST SHALL CONTROL ALL PROCEEDINGS
AND MAKE ALL DECISIONS IN CONNECTION WITH ANY TAX CLAIM RELATING TO A TAX PERIOD
BEGINNING AFTER THE CLOSING DATE.
EXCEPT AS OTHERWISE PROVIDED, A PARTY SHALL
PROMPTLY NOTIFY THE OTHER PARTY IF IT DECIDES NOT TO CONTROL THE DEFENSE OR
SETTLEMENT OF ANY TAX CLAIM WHICH IT IS ENTITLED TO CONTROL PURSUANT TO THIS
AGREEMENT, AND THE OTHER PARTY SHALL THEREUPON BE PERMITTED TO DEFEND AND SETTLE
SUCH PROCEEDING WITHOUT PREJUDICE.
(F)
IREIC AND THE AGENT, ON THE ONE HAND, AND IWEST, ON THE OTHER HAND, SHALL
COOPERATE FULLY, AS AND TO THE EXTENT REASONABLY REQUESTED BY THE OTHER, IN
CONNECTION WITH THE FILING OF TAX RETURNS AND TIGI COMBINED RETURNS PURSUANT TO
THIS SECTION 6.9 AND ANY AUDIT, LITIGATION OR OTHER PROCEEDING WITH RESPECT TO
TAXES.
SUCH COOPERATION SHALL INCLUDE, WITHOUT LIMITATION, THE FURNISHING OR
MAKING AVAILABLE OF RECORDS, BOOKS OF ACCOUNT OR OTHER
53
MATERIALS OF THE SERVICE PROVIDERS NECESSARY OR HELPFUL FOR THE DEFENSE AGAINST