Investment Unit Allocation. Each Loan Party and each Lender hereby agree (i) that the Term Loan disbursed to the Borrower on the Closing Date and the Warrants issued on the Closing Date, taken together, comprise an “investment unit” for purposes of Section 1273(c)(2) of the Internal Revenue Code, (ii) to treat the investment unit as issued by the Parent for U.S. federal income tax purposes and (iii) to allocate the issue price of such investment unit among the Term Loan and the Warrants in proportion to their fair market value as of the Closing Date, in accordance with Treasury Regulations Section 1.1273-2(h). The Lenders shall determine in good faith the fair market value of the Warrants for purposes of allocating the issue price of the investment unit between the Term Loan and the Warrants, as described in clause (iii) above, notice of which shall be provided in writing to the Borrower; provided, however, that if the Borrower objects in writing to the fair market value as determined by the Lenders within ten (10) Business Days after the Lenders give written notice thereof, the Borrower shall engage an independent, reputable appraiser selected jointly by the Borrower and the Lenders, to determine such fair market value. The fees and expenses of such appraiser shall be paid by the Borrower. Unless otherwise required by Applicable Law, Borrower each Loan Party and each Lender agree to file all tax returns in a manner consistent with this Section 2.12.
Investment Unit Allocation. Borrower and each Lender hereby agree that the Term Loan made on the Funding Date and the Closing Date Warrant, taken together, comprise an “investment unit” for purposes of Section 1273(c)(2) of the Internal Revenue Code and to allocate the issue price of such investment unit among the Term Loan and the Closing Date Warrant in proportion to their fair market value as of the Closing Date, in accordance with Treasury Regulations Section 1.1273-2(h). Within 90 days following the First Amendment Effective Date, Borrower shall deliver to each Lender a proposed allocation of the issue price allocated between the Term Loan and the Closing Date Warrant. Each Lender shall have 30 days following delivery of such proposed allocation to review. In the event that any Lender objects in writing to such proposed allocation within such 30-day period, Borrower and each Lender (i) shall negotiate in good faith to resolve any disagreement relating to the proposed allocation and (ii) in the event that any such disagreement cannot be resolved, shall engage a mutually- agreed accounting firm (the “Accounting Firm”) to resolve such dispute as promptly as practicable but in any event within 15 Business Days, with the costs of such Accounting Firm borne equally by Borrower, on the one hand, and the Lenders, on the other hand. Borrower and each Lender agree to file all tax returns in a manner consistent with the agreed allocation or the allocation determined by the Accounting Firm, as the case may be.
Investment Unit Allocation. The Purchaser and the Company shall treat and report the Series A Preferred Stock and the Common Stock issued to the Purchaser hereunder as having been issued as part of an “investment unit” within the meaning of Code Section 1273(c)(2) and Treasury Regulations Section 1.1273-2(h), with (x) a portion of the total amount paid for such Series A Preferred Stock and Common Stock equal to the aggregate fair market value of such Common Stock (which shall be determined based on the applicable trading price of the Company’s Common Stock) being allocated to such Common Stock (the “Common Stock Allocation”) and (y) the remainder being allocated to such Series A Preferred Stock (the “Series A Preferred Allocation”). Within thirty (30) days after the Initial Closing II Date and each subsequent Closing Date, the Company shall prepare and deliver to the Purchaser a draft valuation setting forth in reasonable detail the Common Stock Allocation and the Series A Preferred Allocation with respect to the Purchased Shares issued on such Closing Date (in the case of the Initial Closing II Date, with respect to the Purchased Shares issues on the Initial Closing Date and the Initial Closing II Date) (such draft valuation, the “Draft Purchased Shares Valuation”) for the Purchaser’s review. If the Purchaser does not agree with the Draft Purchased Shares Valuation, then within ten (10) days of receipt of the Draft Purchased Shares Valuation the Purchaser shall determine and deliver to the Company a proposed valuation of the Common Stock Allocation and the Series A Preferred Allocation (the “Purchaser’s Proposed Valuation”). If the Purchaser and the Company are not able to come to an agreement as to the final valuation of the Common Stock Allocation and the Series A Preferred Allocation within ten (10) days thereafter, the Purchaser and the Company shall agree in good faith on an independent nationally recognized valuation or financial advisory firm (the “Valuation Firm”) to determine the final valuation of the Common Stock Allocation and the Series A Preferred Allocation, which valuation must be within the range of the Purchaser’s Proposed Valuation and the Draft Purchased Shares Valuation. All fees and expenses of the Valuation Firm relating to the work, if any, to be performed by the Valuation Firm hereunder shall be borne in inverse proportion to the relative extent to which the Company, on the one hand, and the Purchaser, on the other hand, prevail on the disagreements resolved...
Investment Unit Allocation. The Company agrees, and by acceptance of any Warrant, each initial Holder is deemed to have agreed, (i) that the Term Loan (as defined under the Loan Agreement) disbursed to the Borrower on the Closing Date and the Warrants issued on the Closing Date, taken together, comprise an “investment unit” for purposes of Section 1273(c)(2) of the Internal Revenue Code, (ii) to treat the investment unit as issued by the Company for U.S. federal income tax purposes and (iii) to allocate the issue price of such investment unit among the Term Loan and the Warrants in proportion to their fair market value as of the Closing Date, in accordance with Treasury Regulations Section 1.1273-2(h). The Lenders shall determine in good faith the fair market value of the Warrants for purposes of allocating the issue price of the investment unit between the Term Loan and the Warrants, as described in clause (iii) above, notice of which shall be provided in writing to the Company; provided, however, that if the Company objects in writing to the fair market value as determined by the Lenders within ten (10) Business Days after the Lenders give written notice thereof, the Company shall engage an independent, reputable appraiser selected jointly by the Company and the Lenders, to determine such fair market value. The fees and expenses of such appraiser shall be paid by the Company. Unless otherwise required by applicable law, the Company agrees, and, by acceptance of any Warrant, each initial Holder is deemed to have agreed, to file all tax returns in a manner consistent with this Section 4.10.
