Common use of Determination of Amount Clause in Contracts

Determination of Amount. Subject to the provisions of Section 3.3.4.3, all determinations required to be made under this Agreement, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by an accounting firm (the “Accounting Firm”), which shall provide detailed supporting calculations both to NMHC and the Executive within 15 business days of the receipt of notice from the Executive that there has been or the Executive reasonably believes there may have been a Payment, or such earlier time as is requested by NMHC. The Accounting Firm shall be jointly selected by NMHC and the Executive and shall not, during the two years preceding the date of its selection, have acted in any way on behalf of NMHC or its affiliated companies. If NMHC and the Executive cannot agree on the firm to serve as the Accounting Firm, then NMHC and the Executive shall each select an accounting firm and those two firms shall jointly select an accounting firm to serve as the Accounting Firm. All fees and expenses of the Accounting Firm shall be borne solely by NMHC. Any Gross-Up Payment, as determined pursuant to this Agreement, shall be paid by NMHC to the Executive as provided in Section 3.3.4.6. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion of its determination. Any determination by the Accounting Firm shall be binding upon NMHC and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by NMHC should have been made (the “Underpayment”), consistent with the calculations required to be made hereunder. In the event that NMHC exhausts its remedies pursuant to Section 3.3.4.3 and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by NMHC to or for the benefit of the Executive, together with interest at the rate provided in section 1274(b)(2)(B) of the Code, at the time provided in Section 3.3.4.6.

Determination of Amount. Subject to the provisions of this Section 3.3.4.34(b), all determinations required to be made under this AgreementSection 4(a), including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinationdeterminations, shall be made by an the public accounting firm that is engaged by the Corporation for general audit purposes as of the date immediately prior to the Change of Control (the “Accounting Firm”), which shall provide detailed supporting calculations both to NMHC and . In the Executive within 15 business days of event that the receipt of notice from the Executive that there has been or the Executive reasonably believes there may have been a Payment, or such earlier time as is requested by NMHC. The Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Corporation shall be jointly selected by NMHC and the Executive and shall not, during the two years preceding the date of its selection, have acted in any way on behalf of NMHC or its affiliated companies. If NMHC and the Executive cannot agree on the appoint another nationally recognized public accounting firm to serve make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm, then NMHC and Firm hereunder). The Corporation shall bear all expenses with respect to the Executive shall each select an accounting firm and those two firms shall jointly select an accounting firm to serve as determinations by the Accounting FirmFirm required to be made hereunder. All fees and expenses Any good faith determinations of the Accounting Firm made hereunder shall be borne solely by NMHC. Any Gross-Up Paymentfinal, as determined pursuant to this Agreement, shall be paid by NMHC to binding and conclusive upon the Executive as provided in Section 3.3.4.6. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion of its determination. Any determination by the Accounting Firm shall be binding upon NMHC Corporation and the ExecutiveEmployee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderFirm, it is possible that Gross-Up Payments that which will not have been made by NMHC the Corporation should have been made (the “Underpayment”) or Gross-Up Payments are made by the Corporation which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that NMHC exhausts its remedies pursuant to Section 3.3.4.3 and Executive the Employee thereafter is required to make a payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest, to the extent not already within the Excise Tax, at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by NMHC the Corporation to or for the benefit of the ExecutiveEmployee. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Employee for his or her Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in section 1274(b)(2)(BSection 1274(b)(2) of the Code) shall be promptly paid by the Employee (to the extent he has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Corporation. The Employee shall cooperate, at to the time provided extent his or her expenses are reimbursed by the Corporation, with any reasonable requests by the Corporation in Section 3.3.4.6connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax.

Determination of Amount. Subject to the provisions of Section 3.3.4.3paragraph 3, below, all determinations required to be made under this AgreementExhibit B, including whether and when an Excise Tax or a Gross-Up Payment is required and required, the amount of such the Excise Tax and Gross-Up Payment and the assumptions to be utilized used in arriving at such determinationdeterminations, shall will be made made, at our option, by an accounting Xxxx’x independent auditors or a nationally recognized executive compensation consulting firm (the “Accounting Firm”), which shall will provide detailed supporting calculations both to NMHC Dole and the Executive you within 15 business days of after the receipt of notice from the Executive you that there has been or the Executive reasonably believes there may have been a Payment, or such earlier time as is requested by NMHCDole. The If the Accounting Firm shall be jointly selected by NMHC and is serving as accountant or auditor for the Executive and shall notPerson effecting the Change of Control, during the two years preceding the date of its selection, have acted in any way on behalf of NMHC or its affiliated companies. If NMHC and the Executive cannot agree on the Dole will appoint another nationally recognized accounting firm to serve make these required determinations (which accounting firm will then be referred to as the Accounting Firm, then NMHC and the Executive shall each select an accounting firm and those two firms shall jointly select an accounting firm to serve as the Accounting Firm). All fees and expenses of the Accounting Firm shall will be borne solely by NMHCDole. Any GrossXxxxx-Up Payment, as determined pursuant to under this AgreementExhibit B, shall will be paid by NMHC Dole to you within five days after our receipt of the Executive as provided in Section 3.3.4.6Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executiveyou, it shall will furnish the Executive you with a written opinion that failure to report the Excise Tax on your applicable federal income tax return will not result in the imposition of its determinationa negligence or other penalty. Any determination by the Accounting Firm shall will be binding upon NMHC Dole and the Executiveyou. As If, as a result of a federal tax audit, the uncertainty in Internal Revenue Service asserts that the application of Section 4999 of the Code at the time of the initial determination Excise Tax determined by the Accounting Firm hereunderin its calculation of the Gross Up Payment is understated, it is possible that Gross-and thereby the Gross Up Payments that will not have been Payment made by NMHC should have been made to you may also be understated (the “Underpayment”), consistent with then you must notify Dole as provided in paragraph 3 below, and Dole has the calculations required right to be made hereundercontest the asserted Excise Tax underpayment as provided in paragraph 3. In the event that NMHC Dole exhausts its remedies pursuant to Section 3.3.4.3 under paragraph 3, below, and Executive you thereafter is are required to make a payment of any an additional Excise TaxTax payment, the Accounting Firm shall will determine the amount of the Underpayment that has occurred and any such Underpayment shall will be promptly paid by NMHC Dole to you or for the benefit of the Executive, together with interest at the rate provided in section 1274(b)(2)(B) of the Code, at the time provided in Section 3.3.4.6your benefit.

Determination of Amount. Subject to the provisions of this Section 3.3.4.34(b), all determinations required to be made under this AgreementSection 4(a), including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinationdeterminations, shall be made by an the public accounting firm that is engaged by the Corporation for general audit purposes as of the date immediately prior to the Change of Control (the “"Accounting Firm”"), which shall provide detailed supporting calculations both to NMHC and . In the Executive within 15 business days of event that the receipt of notice from the Executive that there has been or the Executive reasonably believes there may have been a Payment, or such earlier time as is requested by NMHC. The Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Corporation shall be jointly selected by NMHC and the Executive and shall not, during the two years preceding the date of its selection, have acted in any way on behalf of NMHC or its affiliated companies. If NMHC and the Executive cannot agree on the appoint another nationally recognized public accounting firm to serve make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm, then NMHC and Firm hereunder). The Corporation shall bear all expenses with respect to the Executive shall each select an accounting firm and those two firms shall jointly select an accounting firm to serve as determinations by the Accounting FirmFirm required to be made hereunder. All fees and expenses Any good faith determinations of the Accounting Firm made hereunder shall be borne solely by NMHC. Any Gross-Up Paymentfinal, as determined pursuant to this Agreement, shall be paid by NMHC to binding and conclusive upon the Executive as provided in Section 3.3.4.6. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion of its determination. Any determination by the Accounting Firm shall be binding upon NMHC Corporation and the ExecutiveEmployee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderFirm, it is possible that Gross-Up Payments that which will not have been made by NMHC the Corporation should have been made ("Underpayment") or Gross-Up Payments are made by the “Underpayment”Corporation which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that NMHC exhausts its remedies pursuant to Section 3.3.4.3 and Executive the Employee thereafter is required to make a payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest, to the extent not already within the Excise Tax, at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by NMHC the Corporation to or for the benefit of the ExecutiveEmployee. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Employee for his or her Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in section 1274(b)(2)(BSection 1274(b)(2) of the Code) shall be promptly paid by the Employee (to the extent he has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Corporation. The Employee shall cooperate, at to the time provided extent his or her expenses are reimbursed by the Corporation, with any reasonable requests by the Corporation in Section 3.3.4.6connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax.

Determination of Amount. Subject to the provisions of this Section 3.3.4.35(b), all determinations required to be made under this AgreementSection 5(a), including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinationdeterminations, shall be made by an the public accounting firm that is engaged by the Corporation for general audit purposes as of the date immediately prior to the Change of Control (the “"Accounting Firm”"), which shall provide detailed supporting calculations both to NMHC and . In the Executive within 15 business days of event that the receipt of notice from the Executive that there has been or the Executive reasonably believes there may have been a Payment, or such earlier time as is requested by NMHC. The Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Corporation shall be jointly selected by NMHC and the Executive and shall not, during the two years preceding the date of its selection, have acted in any way on behalf of NMHC or its affiliated companies. If NMHC and the Executive cannot agree on the appoint another nationally recognized public accounting firm to serve make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm, then NMHC and Firm hereunder). The Corporation shall bear all expenses with respect to the Executive shall each select an accounting firm and those two firms shall jointly select an accounting firm to serve as determinations by the Accounting FirmFirm required to be made hereunder. All fees and expenses Any good faith determinations of the Accounting Firm made hereunder shall be borne solely by NMHC. Any Gross-Up Paymentfinal, as determined pursuant to this Agreement, shall be paid by NMHC to binding and conclusive upon the Executive as provided in Section 3.3.4.6. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion of its determination. Any determination by the Accounting Firm shall be binding upon NMHC Corporation and the ExecutiveEmployee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderFirm, it is possible that Gross-Up Payments that which will not have been made by NMHC the Corporation should have been made ("Underpayment") or Gross-Up Payments are made by the “Underpayment”Corporation which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that NMHC exhausts its remedies pursuant to Section 3.3.4.3 and Executive the Employee thereafter is required to make a payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest, to the extent not already within the Excise Tax, at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by NMHC the Corporation to or for the benefit of the ExecutiveEmployee. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Employee for his or her Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in section 1274(b)(2)(BSection 1274(b)(2) of the Code) shall be promptly paid by the Employee (to the extent he has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Corporation. The Employee shall cooperate, at to the time provided extent his or her expenses are reimbursed by the Corporation, with any reasonable requests by the Corporation in Section 3.3.4.6connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax.

Determination of Amount. Subject to the provisions of Section 3.3.4.3paragraph 3, below, all determinations required to be made under this AgreementExhibit B, including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up Payment and the assumptions to be utilized used in arriving at such determinationdeterminations, shall will be made made, at our option, by an accounting Xxxx'x independent auditors or a nationally recognized executive compensation consulting firm (the “Accounting Firm”"ACCOUNTING FIRM"), which shall will provide detailed supporting calculations both to NMHC Xxxx and the Executive you within 15 business days of after the receipt of notice from the Executive you that there has been or the Executive reasonably believes there may have been a Payment, or such earlier time as is requested by NMHCXxxx. The If the Accounting Firm shall be jointly selected by NMHC and is serving as accountant or auditor for the Executive and shall notPerson effecting the Change of Control, during the two years preceding the date of its selection, have acted in any way on behalf of NMHC or its affiliated companies. If NMHC and the Executive cannot agree on the Xxxx will appoint another nationally recognized accounting firm to serve make these required determinations (which accounting firm will then be referred to as the Accounting Firm, then NMHC and the Executive shall each select an accounting firm and those two firms shall jointly select an accounting firm to serve as the Accounting Firm). All fees and expenses of the Accounting Firm shall will be borne solely by NMHCXxxx. Any GrossXxxxx-Up Payment, as determined pursuant to under this AgreementExhibit B, shall will be paid by NMHC Xxxx to you within five days after our receipt of the Executive as provided in Section 3.3.4.6Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executiveyou, it shall will furnish the Executive you with a written opinion that failure to report the Excise Tax on your applicable federal income tax return would not result in the imposition of its determinationa negligence or other penalty. Any determination by the Accounting Firm shall will be binding upon NMHC Xxxx and the Executiveyou. As a result of the uncertainty in the application of Section 4999 of the United States Internal Revenue Code at the time of the initial determination by the Accounting Firm hereunderFirm, it is possible that Gross-Up Payments that which will not have been made by NMHC Xxxx should have been made (the “"Underpayment”"), consistent with the calculations required to be made hereunder. under this Exhibit B. In the event that NMHC Xxxx exhausts its remedies pursuant to Section 3.3.4.3 under paragraph 3, below, and Executive you thereafter is are required to make a payment of any Excise Tax, the Accounting Firm shall will determine the amount of the Underpayment that has occurred and any such Underpayment shall will be promptly paid by NMHC Xxxx to you or for the benefit of the Executive, together with interest at the rate provided in section 1274(b)(2)(B) of the Code, at the time provided in Section 3.3.4.6your benefit.

Determination of Amount. Subject to the provisions Provisions of Section 3.3.4.36(c), all determinations required to be made under this AgreementSection 6, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment or Parachute Value and the assumptions to be utilized in arriving at such determinationdeterminations, shall be made by an accounting firm PriceWaterhouseCoopers LLP (the “"Accounting Firm”), ") which shall provide detailed supporting calculations both to NMHC the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been or the Executive reasonably believes there may have been a Payment, or such earlier time as is requested by NMHCthe Company. The If the Accounting Firm shall be jointly selected by NMHC and is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive and shall not, during the two years preceding the date of its selection, have acted in any way on behalf of NMHC or its affiliated companies. If NMHC and the Executive cannot agree on the appoint another nationally recognized accounting firm to serve make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm, then NMHC and the Executive shall each select an accounting firm and those two firms shall jointly select an accounting firm to serve as the Accounting FirmFirm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by NMHCthe Company. Any Gross-Up Payment, as determined pursuant to and payable under this AgreementSection 6, shall be paid by NMHC the Company to the Executive as provided in Section 3.3.4.6within five days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of its determinationa negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon NMHC the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that which will not have been made by NMHC the Company should have been made (the “"Underpayment”"), consistent with the calculations required to be made hereunder. In If the event that NMHC Company exhausts its remedies pursuant to Section 3.3.4.3 6(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by NMHC the Company to or for the benefit of the Executive, together with interest at the rate provided in section 1274(b)(2)(B) of the Code, at the time provided in Section 3.3.4.6.

Determination of Amount. Subject to the provisions Provisions of Section 3.3.4.36(c), all determinations required to be made under this AgreementSection 6, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment or Parachute Value and the assumptions to be utilized in arriving at such determinationdeterminations, shall be made by an a nationally recognized accounting firm selected in the discretion of the Company immediately prior to the Change of Control (the “Accounting Firm”), ) which shall provide detailed supporting calculations both to NMHC the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been or the Executive reasonably believes there may have been a Payment, or such earlier time as is requested by NMHCthe Company. The If the Accounting Firm shall be jointly selected by NMHC and is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive and shall not, during the two years preceding the date of its selection, have acted in any way on behalf of NMHC or its affiliated companies. If NMHC and the Executive cannot agree on the may appoint another nationally recognized accounting firm to serve make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm, then NMHC and the Executive shall each select an accounting firm and those two firms shall jointly select an accounting firm to serve as the Accounting FirmFirm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by NMHC. Any Gross-Up Paymentthe Company; provided, as determined pursuant to this Agreementhowever, (i) the Company shall be paid by NMHC to pay the Executive as provided in Section 3.3.4.6. If fees and expenses of the Accounting Firm determines that no Excise Tax not later than the end of the calendar year following the calendar year in which the related work is payable performed or the expenses are incurred by the Accounting Firm, (ii) the amount of the Accounting Fees that the Company is obligated to pay in any given calendar year shall not affect the Accounting Fees that the Company is obligated to pay in any other calendar year, and (iii) the Executive, it shall furnish ’s right to have the Executive with a written opinion of its determinationCompany pay such fees and expenses may not be liquidated or exchanged for any other benefit. Any determination by the Accounting Firm shall be binding upon NMHC the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that which will not have been made by NMHC the Company should have been made (the “Underpayment”), consistent with the calculations required to be made hereunder. In If the event that NMHC Company exhausts its remedies pursuant to Section 3.3.4.3 6(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by NMHC the Company to or for the benefit of the Executive, together with interest at the rate provided in section 1274(b)(2)(B) of the Code, at the time provided in Section 3.3.4.6.

Determination of Amount. Subject to the provisions Provisions of Section 3.3.4.36(c), all determinations required to be made under this AgreementSection 6, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment or Parachute Value and the assumptions to be utilized in arriving at such determinationdeterminations, shall be made by an a nationally recognized accounting firm selected in the discretion of the Company immediately prior to the Change of Control (the “"Accounting Firm”), ") which shall provide detailed supporting calculations both to NMHC the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been or the Executive reasonably believes there may have been a Payment, or such earlier time as is requested by NMHCthe Company. The If the Accounting Firm shall be jointly selected by NMHC and is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive and shall not, during the two years preceding the date of its selection, have acted in any way on behalf of NMHC or its affiliated companies. If NMHC and the Executive cannot agree on the may appoint another nationally recognized accounting firm to serve make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm, then NMHC and the Executive shall each select an accounting firm and those two firms shall jointly select an accounting firm to serve as the Accounting FirmFirm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by NMHCthe Company. Any Gross-Up Payment, as determined pursuant to and payable under this AgreementSection 6, shall be paid by NMHC the Company to the Executive as provided in Section 3.3.4.6within five days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of its determinationa negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon NMHC the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that which will not have been made by NMHC the Company should have been made (the “"Underpayment”"), consistent with the calculations required to be made hereunder. In If the event that NMHC Company exhausts its remedies pursuant to Section 3.3.4.3 6(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by NMHC the Company to or for the benefit of the Executive, together with interest at the rate provided in section 1274(b)(2)(B) of the Code, at the time provided in Section 3.3.4.6.

Determination of Amount. Subject to the provisions of this Section 3.3.4.32(b), all determinations required to be made under this AgreementSection 2(a), including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinationdeterminations, shall be made by an the public accounting firm that is engaged by the Company for general audit purposes as of the date immediately prior to the Change of Control (the “"Accounting Firm”"), which shall provide detailed supporting calculations both to NMHC and . In the Executive within 15 business days of event that the receipt of notice from the Executive that there has been or the Executive reasonably believes there may have been a Payment, or such earlier time as is requested by NMHC. The Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall be jointly selected by NMHC and the Executive and shall not, during the two years preceding the date of its selection, have acted in any way on behalf of NMHC or its affiliated companies. If NMHC and the Executive cannot agree on the appoint another nationally recognized public accounting firm to serve make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm, then NMHC and Firm hereunder). The Company shall bear all expenses with respect to the Executive shall each select an accounting firm and those two firms shall jointly select an accounting firm to serve as determinations by the Accounting FirmFirm required to be made hereunder. All fees and expenses Any good faith determinations of the Accounting Firm made hereunder shall be borne solely by NMHC. Any Gross-Up Paymentfinal, as determined pursuant to this Agreement, shall be paid by NMHC to binding and conclusive upon the Executive as provided in Section 3.3.4.6. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion of its determination. Any determination by the Accounting Firm shall be binding upon NMHC Company and the ExecutiveEmployee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderFirm, it is possible that Gross-Up Payments that which will not have been made by NMHC the Company should have been made ("Underpayment") or Gross-Up Payments are made by the “Underpayment”Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that NMHC exhausts its remedies pursuant to Section 3.3.4.3 and Executive you thereafter is are required to make a payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest, to the extent not already within the Excise Tax, at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by NMHC the Company to or for your benefit. In the benefit event the amount of the ExecutiveGross-Up Payment exceeds the amount necessary to reimburse you for your Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in section 1274(b)(2)(BSection 1274(b)(2) of the Code) shall be promptly paid by you (to the extent you have received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. You shall cooperate, at to the time provided extent your expenses are reimbursed by the Company, with any reasonable requests by the Company in Section 3.3.4.6connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax.

Determination of Amount. Subject to the provisions of Section 3.3.4.3paragraph 3, below, all determinations required to be made under this AgreementExhibit B, including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up Payment and the assumptions to be utilized used in arriving at such determinationdeterminations, shall will be made made, at our option, by an accounting Xxxx'x independent auditors or a nationally recognized executive compensation consulting firm (the “"Accounting Firm”"), which shall will provide detailed supporting calculations both to NMHC Xxxx and the Executive you within 15 business days of after the receipt of notice from the Executive you that there has been or the Executive reasonably believes there may have been a Payment, or such earlier time as is requested by NMHCXxxx. The If the Accounting Firm shall be jointly selected by NMHC and is serving as accountant or auditor for the Executive and shall notPerson effecting the Change of Control, during the two years preceding the date of its selection, have acted in any way on behalf of NMHC or its affiliated companies. If NMHC and the Executive cannot agree on the Xxxx will appoint another nationally recognized accounting firm to serve make these required determinations (which accounting firm will then be referred to as the Accounting Firm, then NMHC and the Executive shall each select an accounting firm and those two firms shall jointly select an accounting firm to serve as the Accounting Firm). All fees and expenses of the Accounting Firm shall will be borne solely by NMHCXxxx. Any GrossXxxxx-Up Payment, as determined pursuant to under this AgreementExhibit B, shall will be paid by NMHC Xxxx to you within five days after our receipt of the Executive as provided in Section 3.3.4.6Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executiveyou, it shall will furnish the Executive you with a written opinion that failure to report the Excise Tax on your applicable federal income tax return would not result in the imposition of its determinationa negligence or other penalty. Any determination by the Accounting Firm shall will be binding upon NMHC Xxxx and the Executiveyou. As a result of the uncertainty in the application of Section 4999 of the United States Internal Revenue Code at the time of the initial determination by the Accounting Firm hereunderFirm, it is possible that Gross-Up Payments that which will not have been made by NMHC Xxxx should have been made (the “"Underpayment”"), consistent with the calculations required to be made hereunder. under this Exhibit B. In the event that NMHC Xxxx exhausts its remedies pursuant to Section 3.3.4.3 under paragraph 3, below, and Executive you thereafter is are required to make a payment of any Excise Tax, the Accounting Firm shall will determine the amount of the Underpayment that has occurred and any such Underpayment shall will be promptly paid by NMHC Xxxx to you or for the benefit of the Executive, together with interest at the rate provided in section 1274(b)(2)(B) of the Code, at the time provided in Section 3.3.4.6your benefit.