Common use of Allocation of the Consideration Clause in Contracts

Allocation of the Consideration. The Parties agree that Seller shall prepare a draft IRS Form 8594 allocating the Closing Cash Consideration, the Monthly Payments, the Assumed Liabilities and other relevant items comprising the purchase price (as determined for U.S. federal income tax purposes and as adjusted pursuant to the terms of this Agreement) (and all Liabilities and other capitalizable costs for Tax purposes), among the Transferred Assets in accordance with the rules under Section 1060 of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations promulgated thereunder. Seller shall deliver the draft IRS Form 8594 to Purchaser for review and comment within [***] after the Closing Date. Purchaser shall deliver its comments to Seller within [***] thereafter and Seller shall consider Purchaser’s comments in good faith and incorporate any reasonable comments from Purchaser in such draft Form 8594. If Seller objects to any comment made by Purchaser with respect to the draft Form 8594 (i.e., on the basis that such comment is not reasonable), the parties shall proceed in good faith to determine mutually the appropriate resolution of the issues in dispute. Each of the Purchaser and Seller shall timely file the final IRS Form 8594 in accordance with the agreed upon draft Form 8594. None of Purchaser, Seller or their respective Affiliates shall take any Tax position (whether in Tax audits, Tax Returns or otherwise) that is inconsistent with the final IRS Form 8594 unless required to do so by applicable Law. To the extent required under the Code and the applicable Treasury Regulations, any amendments to the final IRS Form 8594 shall be prepared by Seller, submitted to Purchaser for its review, and otherwise filed and treated in a manner consistent with the draft IRS Form 8594 as provided in this Section 3.04.

Allocation of the Consideration. The Parties agree parties have agreed that Seller shall Buyer will prepare a draft IRS Form 8594 allocating an initial allocation of the Closing Cash Consideration, the Monthly PaymentsPurchase Price, the Assumed Liabilities and other relevant items comprising the purchase price (as determined for U.S. federal income tax purposes and as adjusted pursuant to the terms of this Agreement) (and all Liabilities and other capitalizable costs for Tax purposes), among the Transferred Assets in accordance with the rules under Section 1060 methodologies set forth in Schedule 1.6, for Seller’s review, comment and approval. Buyer will accept all comments of Seller on the allocation of the Internal Revenue Code of 1986Purchase Price, as amended (the “Code”), Assumed Liabilities and other relevant items. In the Treasury Regulations promulgated thereunder. Seller shall deliver the draft IRS Form 8594 to Purchaser for review and comment within [***] after the Closing Date. Purchaser shall deliver its comments to Seller within [***] thereafter and Seller shall consider Purchaser’s comments in good faith and incorporate any reasonable comments from Purchaser in such draft Form 8594. If Seller objects to any comment made by Purchaser with respect event an adjustment to the draft Form 8594 Purchase Price is made pursuant to Section 1.3 or otherwise under this Agreement (i.e., on the basis that such comment is not reasonableand any refunds and/or other payments are made in connection therewith), the parties shall proceed in good faith to determine mutually the appropriate resolution allocation of the issues Purchase Price shall be revised by Buyer (subject to the review, comment and approval of Seller) to allocate such adjustment to the Transferred Assets based upon the item to which such adjustment is attributable. The parties acknowledge and agree that (a) the Purchase Price, the Assumed Liabilities and other relevant items shall be allocated among the Selling Affiliates and across such assets or jurisdictions on Schedule 1.6 as Seller determines in dispute. Each its reasonable discretion, (b) except as required in connection with a determination within the meaning of Section 1313(a) of the Purchaser Code (or equivalent provision of state, local, or foreign Law), (i) this allocation shall be binding on the parties for federal, state, local, foreign and Seller other Tax reporting purposes, (ii) no party will assert or maintain a Tax position inconsistent with this allocation and (iii) the applicable Tax Returns to be filed by any of the parties or their subsidiaries shall timely file reflect this allocation and (c) for financial accounting purposes, Buyer may allocate the final IRS Form 8594 Purchase Price, the Assumed Liabilities and other relevant items among the Transferred Assets in accordance with the agreed upon draft Form 8594. None of Purchaser, Seller or their respective Affiliates shall take any Tax position (whether in Tax audits, Tax Returns or otherwise) that is inconsistent with the final IRS Form 8594 unless required to do so a valuation study performed by applicable Law. To the extent required under the Code and the applicable Treasury Regulations, any amendments to the final IRS Form 8594 shall be prepared an independent third party engaged by Seller, submitted to Purchaser for its review, and otherwise filed and treated in a manner consistent with the draft IRS Form 8594 as provided in this Section 3.04Buyer.

Allocation of the Consideration. The Parties agree that (a) (i) No later than thirty (30) days prior to the Closing Date, Seller shall prepare and deliver to Buyer a draft IRS Form 8594 allocating proposed allocation for Tax, financial accounting and all other purposes that (A) allocates the Closing Cash Consideration, the Monthly Payments, the Purchase Price plus any Assumed Liabilities and other relevant items comprising the treated as purchase price (as determined for U.S. federal income tax purposes and as adjusted pursuant to the terms of this Agreement) (and all Liabilities and other capitalizable costs for Tax purposes), purposes (the “Tax Consideration”) among the Transferred Assets and the Transferred Company Equity Interests as of the Effective Time separately and on an entity-by-entity, country-by-country and asset-class-by-asset-class basis, and (B) is in accordance with the rules under Section 1060 of the Internal Revenue Code Code, the regulations promulgated thereunder and any similar, applicable provisions of 1986state, local or foreign Law (as amended (modified pursuant to this Section 2.6, the “CodeAllocation”). (ii) No later than the tenth (10th) Business Day following Buyer’s receipt of a proposed allocation pursuant to Section 2.6(a)(i), and the Treasury Regulations promulgated thereunder. Seller Buyer shall deliver the draft IRS Form 8594 to Purchaser for review and comment within [***] after the Closing DateSeller, in writing, any good faith objections to such proposed allocation. Purchaser shall If Buyer does not deliver its comments to Seller within [***] thereafter any such objections pursuant to this Section 2.6(a)(ii), the allocation proposed by Seller pursuant to Section 2.6(a)(i) shall become the Allocation. If Buyer delivers to Seller any such objections pursuant to this Section 2.6(a)(ii): (A) Buyer and Seller shall consider Purchaser’s comments in good faith and incorporate any reasonable comments from Purchaser in such draft Form 8594. If Seller objects to any comment made by Purchaser negotiate with respect to the draft Form 8594 (i.e., on the basis that such comment is not reasonable), the parties shall proceed one another in good faith to determine mutually the appropriate resolution of the issues in dispute. Each of the Purchaser and Seller shall timely file the final IRS Form 8594 agree upon an allocation that is in accordance with the Sections 2.6(a)(i)(A) and (B), and any such allocation agreed upon draft Form 8594. None by the parties in writing prior to the Closing Date shall become the Allocation (it being understood, for the avoidance of Purchaserdoubt, that reaching such agreement shall not be a condition to Closing); and (B) if Buyer and Seller or their respective Affiliates are unable to agree upon an allocation pursuant to clause (A) above, then (1) prior to the Closing Date, the parties hereto shall take any prepare a written schedule of the portions of a proposed allocation of the Tax position Consideration that they have agreed upon to date, if any, which schedule shall be final and binding on the parties and (whether in Tax audits2) subject to Section 2.6(c), Tax Returns or otherwise) that is and to the extent not inconsistent with the final IRS Form 8594 unless required Allocation (and the schedule described in clause (1), if applicable), each party hereto shall be entitled to do so by applicable Law. To use its own allocation of the Tax Consideration as such party deems appropriate. (iii) Seller and Buyer shall allocate the Net Working Capital Target among the Seller Affiliates on an entity-by-entity basis. (b) Seller (i) shall amend the Allocation (and the schedule described in Section 2.6(a)(ii)(B)(1), if applicable) on or prior to the Closing Date to reflect, to the extent required under not already reflected, (A) any Purchase Price adjustments made pursuant to Section 2.2(c) and (B) the Code Estimated Net Working Capital, Estimated Net Indebtedness and Estimated Net Funded Level, (ii) shall amend the Allocation (and the applicable Treasury Regulationsschedule described in Section 2.6(a)(ii)(B)(1), if applicable) to reflect (A) any amendments payments made pursuant to Sections 2.3 and 2.4, (B) the Net Working Capital and Net Indebtedness set forth in the Price Adjustment Statement finalized pursuant to Section 2.3 and (C) the Net Funded Level set forth in the Net Funded Level Statements finalized pursuant to Section 2.4 and (iii) may amend the Allocation (and the schedule described in Section 2.6(a)(ii)(B)(1), if applicable) to reflect any adjustments to the final IRS Form 8594 shall be prepared by SellerConsideration under this Agreement for Tax purposes not described in clause (i) or (ii), submitted to Purchaser for its review, and otherwise filed and treated in each case in a manner reasonably consistent with the draft IRS Form 8594 circumstances giving rise to such payments or adjustments (as provided applicable) and with the review and negotiation procedures set forth in this Section 3.042.6(a).