Common use of Certain Tax Matters Clause in Contracts

Certain Tax Matters. (i) Within 60 days following to the Closing, the Buyer shall allocate the Purchase Price in accordance with Section 1060 of the Code (the “Allocation”) among the assets of the Company and any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”), and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner consistent with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale of the Company and its Subsidiaries and the determination by the Buyer of its tax basis with respect to the Company and its Subsidiaries. Neither Buyer nor the Seller shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable law.

Certain Tax Matters. During the period from the date of this Agreement to the Effective Time, (i) Within 60 days following to the Closing, the Buyer shall allocate the Purchase Price in accordance with Section 1060 of the Code (the “Allocation”) among the assets of the Company and any each of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes shall timely file all tax returns (“Disregarded SubsidiariesPost-Signing Returns”) required to be filed by or on behalf of each such entity before the Closing (after taking into account any extensions), and all Post-Signing Returns shall deliver the Allocation (along with be complete and correct and shall be prepared on a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner basis consistent with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale past practices of the Company and its Subsidiaries and in a manner that does not distort taxable income (e.g., by deferring income or accelerating deductions); provided that no Post-Signing Returns shall be filed with any taxing authority without Parent’s prior written consent (which consent shall not be unreasonably delayed or withheld); (ii) the determination Company and each of its Subsidiaries shall timely pay all taxes due and payable owed by each such entity other than any taxes being contested in good faith through appropriate proceedings and for which adequate reserves in accordance with GAAP have been established on the Company’s books and records; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with GAAP and past practice for all taxes payable by the Buyer Company or any of its Subsidiaries for which no Post-Signing Return is due prior to the Effective Time; (iv) the Company shall promptly notify Parent of any suit, claim, action, assessment, investigation, proceeding or audit (collectively, “tax basis actions”) pending against or with respect to the Company or any of its Subsidiaries in respect of any tax and will not settle or compromise any such tax action without Parent’s prior written consent (which consent shall not be unreasonably delayed or withheld); (v) none of the Company or any of its Subsidiaries. Neither Buyer nor Subsidiaries will make, revoke or change any material tax election without Parent’s prior written consent (which consent shall not be unreasonably delayed or withheld); and (vi) the Seller shall file any Tax Returns orCompany and each of its Subsidiaries will retain all books, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or documents and records necessary for the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable lawpreparation of tax returns and reports and tax audits.

Certain Tax Matters. (i) Within 60 days following The taxable year of the Company shall be the same as its Fiscal Year. The Tax Matters Member or any officer designated by the Tax Matters Member shall cause to be prepared all federal, state and local, and ad valorem tax returns of the Company for each year for which such returns are required to be filed and shall cause such returns to be timely filed. The Tax Matters Member or any officer designated by the Tax Matters Member shall determine the appropriate treatment of each item of income, gain, loss, deduction and credit of the Company and the accounting methods and conventions under the tax Laws of the United States, the several states and other relevant jurisdictions as to the Closingtreatment of any such item or any other method or procedure related to the preparation of such tax returns. The Tax Matters Member or any officer designated by the Tax Matters Member shall make the election provided for in Section 754 of the Code, if, and only if the Buyer Member who or which has acquired any Membership Interests or a distribution of Company property with respect to which the election is made will have provided to the Tax Matters Member or any officer designated by the Tax Matters Member concurrently, or within 30 calendar days after the Transfer of such Membership Interests, its undertaking to the effect that it, and its successors in interest hereunder, will reimburse the Company annually for its additional administrative costs incurred by reason of such election as determined by an accountant employee of the Tax Matters Member. The Tax Matters Member or any officer designated by the Tax Matters Member may also make any election to deduct or amortize organizational expenses pursuant to Code Section 709 and the regulation promulgated thereunder. It is the intention of the Parties that the Company be treated as a partnership for tax purposes and no Member shall allocate the Purchase Price in accordance with take an inconsistent position on any tax return or otherwise. The “tax matters partner” for purposes of Section 1060 6231(a)(7) of the Code (the “AllocationTax Matters Member”) among shall be OGE Sub. If a dispute as to the assets content of a tax return cannot be resolved to the reasonable satisfaction of all Members prior to the required filing date therefor, the Tax Matters Member shall have the right to direct the accountant employee of the Company Tax Matters Member to cause the Company’s tax return to be filed as reasonably approved by the Tax Matters Member. Each Member shall give prompt notice to each Member of any and all notices or other communications it receives from the Internal Revenue Service concerning the Company, including any notice of audit, any notice of action with respect to a revenue agent’s report, any notice of a 30-day appeal letter and any notice of a deficiency in tax concerning any Company tax return. Each Member will be entitled, at its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes own expense, to attend all meetings with the Internal Revenue Service and to review in advance any material written information (“Disregarded Subsidiaries”)including without limitation any pleadings, and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is basedmemoranda or similar items) to the Seller. The Buyer and the Seller agree to consult in good faith with regard be submitted to the Allocation, provided that Internal Revenue Service. Without first obtaining the Seller shall accept the Buyer’s final determination Consent of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Sellera Member, which consent shall not be unreasonably withheld withheld, the Tax Matters Member will not, with respect to any proposed adjustment of a Company item which materially and adversely affects such Member (provideda) enter into a settlement agreement which purports to bind Members other than the Tax Matters Member (including without limitation, however that any stipulation consenting to an entry of decision by the parties acknowledge Tax Court) or (b) enter into an agreement or stipulation extending the time of limitations. Upon request, the Tax Matters Member shall furnish each Member with status reports regarding any negotiation between the Internal Revenue Service or any other taxing authority and agree that the Seller’s failure to consent Company. The Tax Matters Member shall not be deemed unreasonable if such failure is supported by a third-party appraisal have all of the inventory and/or the tangible propertyrights, plant duties, powers and equipment obligations provided for in Sections 6221 through 6232 of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner consistent with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale of the Company and its Subsidiaries and the determination by the Buyer of its tax basis Code with respect to the Company and its Subsidiaries. Neither Buyer nor the Seller shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable lawCompany.

Certain Tax Matters. (i) Within 60 days following to the Closing, the Buyer shall allocate the Purchase Price in accordance with Section 1060 None of the Code Company, Parent, Merger Sub, Merger Sub II, or the Surviving Corporation shall knowingly take, agree to take or fail to take any action that would reasonably be expected to prevent or impede the Mergers from qualifying for the Intended Tax Treatment (the “Allocation”) among the assets of the Company and any of its Subsidiaries that is characterized including by causing Opco to be treated as other than a disregarded entity for U.S. federal income Tax tax purposes (“Disregarded Subsidiaries”or by causing or permitting any Person other than Parent to own any interests in Opco), and . Each Party shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult cooperate in good faith with regard reasonable requests made by the other Parties to determine the Allocation, provided that the Seller shall accept the Buyer’s final determination qualification of the Allocation Mergers for the Intended Tax Treatment, including in connection with the preparation and filing of the Joint Proxy Statement or the Form S-4. Such cooperation shall include, if applicable, providing a certificate executed by an officer of the applicable Party with applicable representations and warranties reasonably requested by another Party’s tax advisors in connection with the delivery of an opinion regarding the qualification of the Mergers for the Intended Tax Treatment (but only to the extent that the Proposed Allocation is reasonable applicable Party believes in good faith such representations and consistent with applicable lawwarranties are true and correct). The parties acknowledge that In addition, as promptly as reasonably practicable after the fair market value date hereof, the Parties shall consider in good faith whether it would be advisable to convert Merger Sub II to a limited liability company (or to assign Merger Sub II’s rights and obligations under this Agreement to a limited liability company) prior to the Effective Time, including whether such conversion or assignment would reasonably be expected to facilitate the qualification of the inventory and tangible property, plant and equipment Mergers for the Intended Tax Treatment. If the Company (acting upon the recommendation of the Company Special Committee) and its Disregarded Subsidiaries Parent mutually agree that such conversion (or assignment) is approximately equal advisable, Parent shall take all actions necessary or appropriate to effect such conversion (or assignment) and, to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be extent required by applicable lawLaw, rule the Parties shall negotiate and cooperate in good faith to enter into an appropriate amendment to this Agreement to give effect to such conversion (or regulationassignment) and provide for other changes necessitated thereby; provided that Parent shall not cause such a conversion (or assignment) if it would reasonably be expected to impose material adverse consequences to any Party (or the stockholders of any Party), and any comparable state or local income tax form, in a manner consistent with including if it would reasonably be expected to delay the AllocationEffective Time. The Seller provisions of this Section 7.16 shall no longer apply if the Parties determine in good faith, after consultation with their respective tax advisors, that the Mergers should not qualify for the Intended Tax Treatment. For the avoidance of doubt, each Party acknowledges and agrees that their respective obligations to effect the Buyer shall adhere Mergers are not subject to the Allocation for all Tax-related purposes including any federal, foreign, state, county condition or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale of the Company and its Subsidiaries and the determination by the Buyer of its tax basis contingency with respect to (a) the Company and its Subsidiaries. Neither Buyer nor qualification of the Seller shall file Mergers for the Intended Tax Treatment or (b) the delivery of any Tax Returns or, certificate or opinion described in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable lawSection 7.16.

Certain Tax Matters. (ia) Within 60 days following to At the Closing, the Buyer Company (or, as applicable, the Subsidiaries) shall allocate the Purchase Price in accordance with Section 1060 withhold from that portion of the Code (the “Allocation”) among the assets amount of Net Transaction Consideration allocable to each of the Company participants in the Company's Management Benefit Plan (each a "Manager" and any collectively the "Managers") which is in excess of its Subsidiaries that $32.40 for each Share held directly by such Manager (i.e., excluding unallocated Shares held by Franx X. Xxxxx, xx Trustee under the Trust dated September 7, 1990, as of the date hereof) and purchased hereunder (with respect to each Manager, such excess portion being referred to as such Manager's "Compensation Portion") such amount as is characterized required to be withheld from such Compensation Portion (treating such Compensation Portion as a disregarded entity compensation for U.S. federal income Tax purposes (“Disregarded Subsidiaries”)such Manager's services to the Company) under applicable tax laws, and shall deliver deposit the Allocation (along amounts so withheld with a copy of the appraisals, if any, on which the Allocation is based) to the Sellerappropriate taxing authorities. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided Company currently estimates that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess Compensation Portion required to be withheld consists of 11028% thereof for federal income tax purposes, 7.35 % thereof for New York state income tax purposes, 0.45 % thereof for New York City local income tax purposes, and the Managers' portions of applicable social security, medicare and other payroll taxes; provided, that it is understood that Gordxx Xxxxxxxx xx a citizen and resident of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall United Kingdom who has not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure provided services to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner consistent with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale of the Company and its Subsidiaries within the United States and the determination by the Buyer that, subject to his submission of its tax basis appropriate statements to avoid withholding with respect to his Compensation Portion, no amounts are expected to be required to be withheld from his Compensation Portion. For all tax purposes, the Buyer, the Company and its Subsidiaries, and the Managers shall report the payment and receipt of such Compensation Portion as the payment of compensation expense to, and the receipt of compensation income by, such Managers, and will treat the remainder of the Net Transaction Consideration allocable to the Managers (i.e., $32.40 per Share) as payment by the Buyer for their Shares, and each will use its, his or her best efforts to adhere to and defend such tax reporting and treatment in any examinations by the applicable taxing authorities. Neither Each Manager shall promptly notify the Buyer nor of any examination or proposed examination of such Manager's tax returns for 1998 or any other year in which such treatment is reflected, and the Seller subsequent results of any such examination. The Buyer shall file promptly notify the Managers of any Tax Returns orexamination of the tax returns of the Buyer, in a judicial the Company or administrative proceedingits Subsidiaries that reflect such treatment, assert or maintain and of any Tax reporting position adjustment required upon such examination that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable lawsuch treatment.

Certain Tax Matters. (ia) Within 60 days following to the Closing, the Buyer shall allocate In consideration for the Purchase Price and the Assumed Liabilities, within sixty (60) days after the Purchase Price is finally determined pursuant to Section 2.05, Purchaser shall prepare and deliver to Sellers an allocation statement (the “Allocation”) allocating the Purchase Price (and the Assumed Liabilities to the extent properly taken into account under the Code) among the Purchased Assets in accordance with Section 1060 of the Code and the Treasury Regulations promulgated thereunder (and any similar provision of state, local or foreign Law, as appropriate). Sellers shall provide the “Allocation”) among Allocation to NRG for review and comment and shall send Purchaser a written notice of any objections to the assets Allocation within a commercially reasonable period of time following Purchaser’s delivery of the Company Allocation. Sellers, NRG and any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”), and Purchaser shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult work in good faith with regard to resolve any disputes relating to the Allocation. If Sellers, provided that the Seller NRG and Purchaser are unable to resolve any such dispute within twenty (20) days after Purchaser’s receipt of objections by Sellers and/or NRG, any remaining disputes shall accept the Buyer’s final determination of the Allocation be submitted to the extent that the Proposed Allocation is reasonable a nationally recognized independent public accounting firm as mutually agreed to by Sellers, NRG and consistent with applicable lawPurchaser. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price as finally determined hereunder, shall mean an amount equal be adjusted to reflect any adjustment to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated provided under this Agreement as assumed liabilities for U.S. federal income mutually agreed by Purchaser and Sellers (and agreed to by NRG). Purchaser and Sellers shall file all Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Returns (including, but not limited to, Internal Revenue Service Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner 8594) consistent with the Allocation, as finally determined hereunder (as adjusted in accordance with this Section 7.03(a)). The Seller and the Buyer Neither Purchaser nor Sellers shall adhere take any Tax position inconsistent with such Allocation (as adjusted in accordance with this Section 7.03(a)) except as required, after using good faith efforts to support the Allocation for all Tax-related purposes including in any federalapplicable challenge by a Governmental or Regulatory Authority, foreign, state, county to settle a dispute with a Governmental or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale of the Company and its Subsidiaries and the determination by the Buyer of its tax basis Regulatory Authority with respect to the Company and its Subsidiaries. Neither Buyer nor the Seller shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable lawAllocation.

Certain Tax Matters. (i) Within 60 days following The Shareholders shall file, or cause to the Closingbe ------------------- filed, the Buyer shall allocate the Purchase Price in accordance with Section 1060 of the Code (the “Allocation”) among the assets all tax returns of the Company required to be filed with respect to any periods ending on or before the Effective Time (and any of its Subsidiaries that is characterized the Surviving Corporation shall designate a Shareholder as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”), and shall deliver the Allocation (along with a copy an authorized person of the appraisals, if any, on which Surviving Corporation for purposes of signing and filing the Allocation is based) to the Sellerreturns). The Buyer and Shareholders shall make available for review, by the Seller agree to consult in good faith with regard to the AllocationParent, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property20 business days before filing, plant and equipment all returns of the Company required to be filed with respect to any periods ending on or before the Effective Time. Parent shall prepare and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory file any and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities all tax returns of the Company or the Disregarded Subsidiaries that Surviving Corporation which are treated required to be filed with respect to any periods ending after the Effective Time. Parent, Merger Sub, Surviving Corporation, and the Shareholders shall cooperate fully, as assumed liabilities and to the extent reasonably requested by the other party, in connection with the preparation of any tax return, any audit, litigation or other proceeding with respect to taxes. Such cooperation shall include particularly the preparation and timely filing of the final Subchapter S corporate tax return for U.S. federal income Tax purposesthe taxable period ending as of the Effective Time and the retention and (upon the other party's request) the provision of records and information which includes but is not limited to hardcopy and microfiche copy of financial statements, general ledger detail, accounts payable records (including any expense invoices located on premises or at third party storage locations), customer sales invoices, payroll records, book and tax fixed asset records, and state apportionment records (which includes sales, payroll, property, inventory and rent expense by location), which are reasonably relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Seller parties agree (i) to retain all books and records with respect to tax matters pertinent to the Buyer agree Company relating to prepare and file an IRS Form 8594 for or such any taxable period beginning before the Effective Time until the expiration of the statute of limitations (and, to the extent notified by the other form or statement as may be required by applicable lawparty, rule or regulationany extensions thereof) of the respective taxable periods, and to abide by all record retention agreements, entered into with any comparable state taxing authority, and (ii) to give the other party reasonable written notice prior to transferring, destroying or local income discarding any such books and records and, if the other party so requests, it shall be allowed to take possession of such books and records. Each Shareholder agrees that he shall not, without Parent's prior written consent, make any retroactive tax form, in a manner consistent election or other amendment or supplement to any of the Company's or the Shareholders' tax returns with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreignlocal, state, county Federal or local income and franchise Tax Return filed by them after foreign governmental authority following the Closing DateMerger that could reasonably be expected to have an adverse financial impact on Parent or the Surviving Corporation following the Effective Time. Parent agrees that it shall not, including without the determination by Shareholders' prior written consent, make any retroactive tax election or other amendment or supplement to any of the Seller of taxable gain Surviving Corporation's tax returns with any local, state, Federal or loss foreign governmental authority following the Merger that could reasonably be expected to have an adverse financial impact on the sale Shareholders following the Effective Time. Parent shall (i) promptly notify the Shareholders of the Company and its Subsidiaries and the determination by the Buyer commencement of its tax basis any examination with respect to the tax liability of the Company for any taxable year that includes any period prior to the Effective Time, (ii) promptly provide the Shareholders with copies of all correspondence with any taxing authority with respect to that tax liability, (iii) solely at the Shareholders' expense, permit the Shareholders to control the defense with respect to such examination and its Subsidiaries. Neither Buyer nor any administrative and court proceedings resulting therefrom to the Seller shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement extent such proceedings affect the tax liability of the Shareholders or the Allocation agreed tax liability of the Company with respect to in accordance which the Shareholders may be liable to indemnify Parent; provided, if Parent reasonably determines that such examination or proceedings could have an adverse effect on Parent or the Surviving Corporation, Parent shall have the right to control the defense of such examination or proceeding and the Shareholders shall be permitted to participate therein at their own expense, and (iv) not enter into any settlement of tax liability of the Shareholders or the tax liability of the Company with this Agreementrespect to which the Shareholders may be liable to indemnify Parent without the written approval of the Shareholders (which approval shall not be unreasonably withheld). If the Shareholders are controlling the defense of any such examination or proceeding pursuant to the foregoing sentence, unless required to do so by applicable lawthe Shareholders shall not enter into any settlement of tax liability of the Company without Parent's prior written approval (which approval shall not be unreasonably withheld).

Certain Tax Matters. (i) Within 60 days following Notwithstanding anything herein to the Closingcontrary, the Buyer Company shall allocate have the Purchase Price in accordance with Section 1060 of the Code (the “Allocation”) among the assets of the Company right to deduct and withhold from any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”)payment, and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company dividend or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner consistent with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale of the Company and its Subsidiaries and the determination by the Buyer of its tax basis distribution made with respect to the Preferred Shares (or upon the redemption of the Preferred Shares or Alternative Preference Shares or the issuance of Class A Shares or Alternative Preference Shares upon conversion of the Preferred Shares) such amounts as are required to be deducted or withheld with respect to the making of such payment or distribution (or issuance) under any applicable Tax law; provided that, prior to making any such deduction or withholding the Company shall provide notice to Purchaser of its intent to withhold and its Subsidiariesshall provide Purchaser with a reasonable opportunity to eliminate, reduce or otherwise mitigate any such deduction or withholding requirement and shall cooperate with the Purchaser in obtaining any available treaty relief. Neither Buyer nor To the Seller extent that any amounts are so deducted or withheld, such deducted or withheld amounts shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction or withholding was made. In the event the Company previously remitted any amounts to a Governmental Entity on account of Taxes required to be deducted or withheld in respect of any payment or distribution (or deemed distribution) on any shares without making a corresponding deduction or withholding from amounts distributable in respect of the applicable shares, the Company shall be entitled to offset any such amounts against any amounts otherwise payable in respect of such shares (or the Allocation agreed issuance of Class A Shares or Alternative Preference Shares upon conversion of the Preferred Shares). Notwithstanding anything herein or in the Articles of Amendment to the contrary, the Company has no intent under applicable law (including publicly available administrative statements) in accordance effect on the date hereof to make any deduction or withholding for Taxes in respect of a conversion of the Preferred Shares into Class A Shares pursuant to Sections 5(a) and 5(c) of the Series 4 Articles of Amendment. The Company further agrees to cooperate with this Agreement, unless required the Purchaser with regard to do so any other tax reporting or compliance matters reasonably requested by applicable lawthe Purchaser in connection with the investment contemplated hereby.

Certain Tax Matters. (i) Within 60 days following to Regardless of any action taken by the ClosingCompany or, if different, the Buyer shall allocate Affiliate employing the Purchase Price in accordance with Section 1060 of Grantee or to which the Code Grantee is otherwise providing services (the “Allocation”) among the assets of the Company and any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded SubsidiariesService Recipient”), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to the Grantee’s participation in the Plan and shall deliver legally applicable to the Allocation Grantee or deemed by the Company or the Service Recipient, in their discretion, to be an appropriate charge to the Grantee even if legally applicable to the Company or the Service Recipient (along with a copy of “Tax-Related Items”) is and remains the appraisalsGrantee’s responsibility and may exceed the amount actually withheld, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposesService Recipient. The Seller Grantee further acknowledges that the Company and/or the Service Recipient (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the SARs, including, but not limited to, the grant, vesting or exercise of the SARs and the Buyer agree receipt of any cash payment in settlement of the SARs; and (ii) donot commit to prepare and file an IRS Form 8594 are under no obligation to structure the terms of the grant or any aspect of the SARs to reduce or eliminate the Grantee’s liability for Tax-Related Items or such other form achieve any particular tax result. Further, if the Grantee is subject to Tax-Related Items in more than one jurisdiction, the Company and/or the Service Recipient (or statement former service recipient, as applicable) may be required by applicable law, rule to withhold or regulation, and any comparable state or local income tax form, account for Tax-Related Items in a manner consistent with the Allocationmore than one jurisdiction. The Seller and the Buyer shall adhere Grantee agrees to make adequate arrangements satisfactory to the Allocation for Company and/or the Service Recipient, as applicable, prior to any relevant tax withholding event, to satisfy all Tax-related purposes including Related Items. In this regard, the Grantee authorizes the Company and/or the Service Recipient, or their respective agents, at their discretion, to satisfy any federal, foreign, state, county applicable withholding obligations with regard to all Tax-Related Items by one or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale a combination of the Company and its Subsidiaries and the determination by the Buyer of its tax basis with respect to the Company and its Subsidiaries. Neither Buyer nor the Seller shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable law.following:

Certain Tax Matters. (i) Within 60 days following Notwithstanding anything to the Closingcontrary in this Agreement, the Buyer Stockholders shall allocate the Purchase Price in accordance have no Liability or other obligation with Section 1060 of the Code (the “Allocation”) among the assets respect to Taxes of the Company and or any of its Subsidiaries that is characterized as attributable (determined on a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”), and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is basedor without” basis) to the SellerDivestiture/Spinoff Transactions. The Buyer Further, (i) any Liability of the Stockholders hereunder with respect to Taxes and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination right of the Allocation Stockholders to any Tax Refunds (including pursuant to clause (ii)) shall be based on the Calculation Principles and (ii) to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld a Tax Refund for a Pre-Closing Period (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and portion of any Straddle Period through the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner consistent with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after end of the Closing Date) would be available (including by way of an amended Tax Return, including a carryback claim or otherwise) if the Divestiture/Spinoff Transactions did not occur, the Purchaser shall promptly pay the amount of such Tax Refund to the Stockholder Representative (or its designee) upon determination by that such Tax Refund would be available. Purchaser shall provide the Seller Stockholder Representative with information and cooperation necessary to make such determination. With respect to the sale, distribution or other disposition of taxable gain or loss on (x) the sale Retained Dialysis Centers and Divested Dialysis Centers, the Tax Returns of the Company and its Subsidiaries shall report an amount realized based on the purchase price for the Retained Dialysis Centers and Divested Dialysis Centers and (y) the determination by Spinoff Subsidiaries, the Buyer Tax Returns of the Company and its tax basis Subsidiaries shall report an amount realized treating the gross fair market value of the assets acquired in the Spinoff as equal to the Spinoff Amount with respect to the Company and its Subsidiariesrelevant Spinoff Subsidiary. Neither Buyer nor The Stockholders shall have no Liability or other obligation under this Agreement if a Tax Proceeding determines that the Seller amount realized with respect thereto should be treated as a higher amount. The Pre-Closing Benefits shall file any Tax Returns or, not be reported in a judicial or administrative proceeding, assert or maintain any post-Closing Tax reporting position that is inconsistent with this Agreement period and shall be reported in Pre-Closing Periods (or the Allocation agreed portion of any Straddle Period ending on the Closing Date). Notwithstanding anything to the contrary in accordance with this Agreement, unless required any items of income or gain and Liability for Taxes attributable to do so actions taken by applicable lawthe Company or its Affiliates on the Closing Date but after the Closing shall be treated as occurring in a post-Closing Tax period.

Certain Tax Matters. Regardless of any action taken by the Company or, if different, the Related Entity employing the Grantee or to which the Grantee is otherwise providing services (i) Within 60 days following the "Service Recipient"), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to the Closing, Grantee's participation in the Buyer shall allocate Plan and legally applicable to the Purchase Price in accordance with Section 1060 of the Code (the “Allocation”) among the assets of Grantee or deemed by the Company or the Service Recipient, in their discretion, to be an appropriate charge to the Grantee even if legally applicable to the Company or the Service Recipient ("Tax-Related Items") is and any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”), remains the Grantee's responsibility and shall deliver may exceed the Allocation (along with a copy of the appraisalsamount actually withheld, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposesService Recipient. The Seller Grantee further acknowledges that the Company and/or the Service Recipient (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the SARs, including, but not limited to, the grant, vesting or exercise of the SARs and the Buyer agree receipt of any cash payment in settlement of the SARs; and (ii) do not commit to prepare and file an IRS Form 8594 are under no obligation to structure the terms of the grant or any aspect of the SARs to reduce or eliminate the Grantee's liability for Tax-Related Items or such other form achieve any particular tax result. Further, if the Grantee is subject to Tax-Related Items in more than one jurisdiction, the Company and/or the Service Recipient (or statement former service recipient, as applicable) may be required by applicable law, rule to withhold or regulation, and any comparable state or local income tax form, account for Tax-Related Items in a manner consistent with the Allocationmore than one jurisdiction. The Seller and the Buyer shall adhere Grantee agrees to make adequate arrangements satisfactory to the Allocation for Company and/or the Service Recipient, as applicable, prior to any relevant tax withholding event, to satisfy all Tax-related purposes including Related Items. In this regard, the Grantee authorizes the Company and/or the Service Recipient, or their respective agents, at their discretion, to satisfy any federal, foreign, state, county applicable withholding obligations with regard to all Tax-Related Items by one or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale a combination of the Company and its Subsidiaries and the determination by the Buyer of its tax basis with respect to the Company and its Subsidiaries. Neither Buyer nor the Seller shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable law.following:

Certain Tax Matters. (ia) Within 60 days following All real property taxes, personal property taxes and similar ad valorem obligations levied with respect to the ClosingAssets for a taxable period which includes (but does not end on) the Closing Date (collectively, the Buyer “Apportioned Obligations”) shall allocate the Purchase Price in accordance with Section 1060 be apportioned between Celarix and GXS Holdings or its designee as of the Code (Closing Date based on the “Allocation”) among number of days of such taxable period included in the assets Tax period ending on the Closing Date and the number of days of such taxable period beginning on the Company and any Closing Date. Celarix shall be liable for the proportionate amount of its Subsidiaries such Taxes that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”), and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) attributable to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner consistent with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after period ending on the Closing Date, including and GXS Holdings or its designee shall be liable for the determination by proportionate amount of such Taxes that is attributable to the Seller of taxable gain or loss Tax period beginning on the sale Closing Date. Concurrently with the provision of the Company and statement of Working Capital delivered pursuant to Section 2.3(b), Celarix shall present a statement to GXS Holdings setting forth the amount of reimbursement to which GXS Holdings or its Subsidiaries and designee or Celarix is entitled under this Section together with such supporting evidence as is reasonably necessary to calculate the determination by proration amount. Such amount shall be applied to further adjust the Buyer of its tax basis with respect Purchase Price pursuant to the Company provisions of Section 2.3(b). Thereafter, Celarix shall notify GXS Holdings upon receipt of any bxxx for real or personal property taxes relating to the Assets, part or all of which are attributable to the Tax period beginning on the Closing Date, and shall promptly deliver such bxxx to GXS Holdings, which shall pay the same to the appropriate Taxing authority, provided that if such bxxx covers any portion of the Tax period ending on the Closing Date Celarix shall also remit prior to the due date of assessment to GXS Holdings or its Subsidiaries. Neither Buyer nor designee payment for the Seller shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position proportionate amount of such bxxx that is inconsistent attributable to the pre-Closing Tax period. In the event that either Celarix or GXS Holdings shall thereafter make a payment for which it is entitled to reimbursement under this Section, the other party shall make such reimbursement promptly but in no event later than 30 days after the presentation of a statement setting forth the amount of reimbursement to which the presenting party is entitled along with such supporting evidence as is reasonably necessary to calculate the amount of reimbursement. Any payment required under this Agreement or Section shall be made in cash and, if not made within 10 days of delivery of the Allocation agreed statement shall bear interest at the rate per annum determined, from time to in accordance with this Agreementtime, unless required to do so by applicable lawunder the provisions of Section 6621(a) (2) of the Code for each day until paid.

Certain Tax Matters. (i) Within 60 days following Anything in this Agreement to the Closingcontrary notwithstanding, in the event it shall be determined that any Payment would be subject to the Excise Tax, then the Executive shall be entitled to receive an additional payment (the "Gross-Up Payment") in an amount such that, after payment by the Executive of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Buyer shall allocate the Purchase Price in accordance with Section 1060 of the Code (the “Allocation”) among the assets of the Company and any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”), and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate Executive retains an amount of the Purchase Price Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company's obligation to make Gross-Up Payments under this Section 7 shall not be conditioned upon the Executive's termination of employment. Subject to the provisions of Section 7(c), all determinations required to be made under this Section 7, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in excess of 110% of arriving at such determination, shall be made by KPMG Peat Marwick, or such other nationally recognized certified public accounting firm as may be designated by the net book value of inventory and tangible property, plant and equipment of Executive (the "Accounting Firm"). The Accounting Firm shall provide detailed supporting calculations both to the Company and its Disregarded Subsidiaries without the prior written consent Executive within 15 business days of the Seller, which consent shall not be unreasonably withheld (provided, however receipt of notice from the Executive that there has been a Payment or such earlier time as is requested by the Company. In the event that the parties acknowledge Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal expenses of the inventory and/or Accounting Firm shall be borne solely by the tangible propertyCompany. Any Gross-Up Payment, plant and equipment as determined pursuant to this Section 7, shall be paid by the Company to the Executive within 5 days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon 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 will not have been made by the Company should have been made (the "Underpayment"), consistent with the calculations required to be made hereunder. In the event the Company exhausts its Disregarded Subsidiariesremedies pursuant to Section 7(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 the Company to or for the benefit of the Executive. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than 10 business days after the Executive is informed in writing of such claim. The Executive shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). For purposes If the Company notifies the Executive in writing prior to the expiration of such period that the Company desires to contest such claim, the Executive shall: give the Company any information reasonably requested by the Company relating to such claim, take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, cooperate with the Company in good faith in order effectively to contest such claim, and permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 7(c), the Company shall control all proceedings taken in connection with such contest, and, at its sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole discretion, either pay the tax claimed to the appropriate taxing authority on behalf of the AllocationExecutive and direct the Executive to xxx for a refund or contest the claim in any permissible manner, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree Executive agrees to prepare and file an IRS Form 8594 for or prosecute such other form or statement as may be required by applicable law, rule or regulation, and contest to a determination before any comparable state or local income tax formadministrative tribunal, in a manner consistent court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that, if the Company pays such claim and directs the Executive to xxx for a refund, the Company shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties) imposed with respect to such payment or with respect to any imputed income in connection with such payment; and provided, further, that any extension of the Allocationstatute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. The Seller Furthermore, the Company's control of the contest shall be limited to issues with respect to which the Gross-Up Payment would be payable hereunder, and the Buyer Executive shall adhere be entitled to settle or contest, as the Allocation for all Tax-related purposes including case may be, any federalother issue raised by the Internal Revenue Service or any other taxing authority. If, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination receipt by the Seller Executive of taxable gain a Gross-Up Payment or loss payment by the Company of an amount on the sale of Executive's behalf pursuant to Section 7(c), the Company and its Subsidiaries and the determination by the Buyer of its tax basis Executive becomes entitled to receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 7(c), if applicable) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after payment by the Company of an amount on the Executive's behalf pursuant to Section 7(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its Subsidiariesintent to contest such denial of refund prior to the expiration of 30 days after such determination, then the amount of such payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. Neither Buyer nor Notwithstanding any other provision of this Section 7, the Seller shall file any Tax Returns orCompany may, in a judicial its sole discretion, withhold and pay over to the Internal Revenue Service or administrative proceedingany other applicable taxing authority, assert for the benefit of the Executive, all or maintain any Tax reporting position that is inconsistent with this Agreement or portion of any Gross-Up Payment, and the Allocation agreed Executive hereby consents to in accordance with this Agreement, unless required to do so by applicable lawsuch withholding.

Certain Tax Matters. (i) Within 60 days following Parent shall continue at least one significant historical business line of Target, or shall use at least a significant portion of Target's historical business assets in a business, in each case within the meaning of Treasury Regulation Section 1.368-1(d). ARTICLE VIII CONDITIONS PRECEDENT 8.1 Conditions to Obligations of Each Party to Effect the Merger. The respective obligations of each party hereto to consummate and effect this Agreement and the transactions contemplated hereby shall be subject to the Closing, satisfaction at or prior to the Buyer shall allocate the Purchase Price in accordance with Section 1060 Effective Time of each of the Code (the “Allocation”) among the assets following conditions, any of which may be waived, in writing, by agreement of the Company parties hereto: (a) This Agreement and the Merger shall have been approved and adopted by the requisite vote of the holders of Parent Common Stock and by the requisite vote of the holders of Target Common Stock. (b) No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger, nor any proceeding brought by an administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, seeking any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”)the foregoing, and shall deliver be pending; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Allocation (along with a copy Merger, which makes the consummation of the appraisalsMerger illegal. (c) Parent, Target and Merger Sub and their respective subsidiaries, if any, on which shall have timely obtained from each Governmental Entity all approvals, waivers and consents, if any, necessary for consummation of or in connection with the Allocation is based) to the Seller. The Buyer Merger and the Seller agree to consult in good faith with regard to the Allocationseveral transactions contemplated hereby, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable including such approvals, waivers and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement consents as may be required by applicable lawunder the federal securities and state Blue Sky laws. (d) Simultaneous with the occurrence of the Closing hereunder, rule the Closing shall have occurred under the Share Purchase Agreement, dated as of January 15, 1997, among Parent and the shareholders of CEWI (the "Purchase Agreement"). 8.2 Additional Conditions to Obligations of Target to Effect the Merger. The obligations of Target to consummate and effect this Agreement and the transactions contemplated hereby shall be subject to the satisfaction at or regulationprior to the Effective Time of each of the following conditions, and any comparable state or local income tax formof which may be waived, in a manner consistent writing, by Target: (a) Parent and Merger Sub shall have performed and complied in all material respects with all covenants, obligations and conditions of this Agreement required to be performed and complied with by them on A-23 123 or prior to the Allocation. The Seller Effective Time and the Buyer representations and warranties of Parent and Merger Sub in this Agreement shall adhere be true and correct in all material respects (or in all respects in the case of any representation or warranty that is qualified by its terms by a reference to Material Adverse Effect or otherwise the concept of materiality) when made and on and as of the Effective Time as though such representations and warranties were made on and as of such date. (b) Target shall have received a certificate executed on behalf of Parent by its Chief Financial Officer certifying that the conditions specified in Section 8.2(a) have been fulfilled. (c) Target shall have received a legal opinion of Holme Roberts & Owen LLP, counsel to Parent, substantially in the xxxm attached hereto as Exhibit 8.2(c). (d) The guaranties given by Messrs. Charles E. Hewitson, Greg Hewitson and Matthew J. Hxxxxxxx xx xxxxxxxxated by xxxx cexxxxx Xxxx Agreement between First Interstate Bank of Oregon, N.A. and Target, dated May 30, 1996 shall have been terminated or Messrs. Charles E. Hewitson, Greg Hewitson and Maxxxxx X. Xxxxxxxx xxxxx xxxx bexx xxxxxxxx xxxx xxx xxxxxxxxx thereunder as a result of repayment of the related credit facilities or otherwise. (e) Parent shall have executed and delivered to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller holders of taxable gain or loss on the sale of the Company and its Subsidiaries and the determination by the Buyer of its tax basis Target Common Stock an agreement with respect to demand and piggyback registration rights of such holders (the Company "Registration Rights Agreement"), which Registration Rights Agreement shall be substantially in the form of Exhibit 8.2(e) attached hereto. (f) Parent shall have granted to the members of Target's management identified on Schedule 8.2(f) the employee stock options specified in such schedule. 8.3 Additional Conditions to the Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to consummate and effect this Agreement and the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Effective Time of each of the following conditions, any of which may be waived, in writing, by Parent: (a) Target shall have performed and complied in all material respects with all covenants, obligations and conditions of this Agreement required to be performed and complied with by it on or prior to the Effective Time and the representations and warranties of Target in this Agreement shall be true and correct in all material respects (or in all respects in the case of any representation or warranty that is qualified by its terms by a reference to Material Adverse Effect or otherwise by the concept of materiality) when made and on and as of the Effective Time as though such representations and warranties were made on and as of such time. (b) Parent shall have received a certificate, dated as of the Effective Time, executed on behalf of Target by its President and its SubsidiariesChief Financial Officer certifying that the conditions specified in Section 8.3(a) have been fulfilled. Neither Buyer nor (c) Parent shall have received a legal opinion from Hershner, Hunter, Andrews, Neill & Smith, LLP, legal counsel to Xxxxxx, xxxxtantially in form attached hereto as Exhibit 8.3(c). (d) Parent shall have been furnished with evidence satisfactory to it of the Seller consent or approval of those persons whose consent or approval shall file be required in connection with the Merger under any Tax Returns ormaterial contract of Target otherwise. (e) There shall not have occurred any Material Adverse Effect on Target. A-24 124 (f) Parent shall have received letters of resignation, in a judicial or administrative proceedingeffective as of the Effective Time, assert or maintain any Tax reporting position that is inconsistent with this Agreement or executed and tendered by each of the Allocation agreed to in accordance with this then incumbent directors of Target. (g) The Voting Agreement, unless dated the date hereof (the "Voting Agreement"), among Messrs. Charles E. Hewitson, Greg Hewitson and Xxxxxxx X. Xxxxxson and Xxxxxx xxxxx xx xx xxxl force and xxxxxx as of the Effective Time and Messrs. Charles E. Hewitson, Greg Hewitson and Matthew X. Xxxxxsox xxxxx xxxx xxxxxrmed and complixx xx xxx xxxxxxxx respects with all covenants, obligations and conditions of the Voting Agreement required to do so be performed or complied with by applicable lawthem.

Certain Tax Matters. (ia) Within 60 days following Equityholder shall prepare and file, or cause to be prepared and filed, all Tax Returns for each Alta Company which are due on or prior to the ClosingClosing Date (collectively, the Buyer shall allocate the Purchase Price in accordance with Section 1060 of the Code (the “Allocation”) among the assets of the Company and any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded SubsidiariesEquityholder Prepared Returns”), and shall deliver the Allocation (along with a copy of the appraisals, if any, pay any Taxes shown as due on which the Allocation is based) any Equityholder Prepared Return to the Sellerapplicable Taxing Authority. The Buyer and the Seller agree Equityholder shall cause each Equityholder Prepared Return to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, prepared in a manner consistent with the AllocationCompany’s past practice. The Seller Parent shall prepare and file, or cause to be prepared and filed, at Parent’s sole cost and expense, all Tax Returns of the Buyer shall adhere Alta Companies that are required to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return be filed by them after the Closing DateDate (the “Parent Prepared Returns”), including and shall pay any Taxes shown as due on any Parent Prepared Return that is not a Pass-Through Tax Return. To the determination extent that an Equityholder Prepared Return or a Parent Prepared Return is a Pass-Through Tax Return, such Tax Return shall be prepared on a basis consistent with existing procedures and practices and accounting methods, unless otherwise required by Law; provided that any such Tax Return shall only be permitted to include any “bonus depreciation” under Code Section 168(k) in such a manner as to minimize the Seller of taxable gain or loss on the sale Tax liability of the members of the Alta Company as a result of the taxable income of the Alta Company; provided, further, that any Alta Company that is classified as a partnership for U.S. federal income tax purposes shall use the interim closing of the books method for purposes of allocating income, gain, loss, deduction and its Subsidiaries credit for a taxable period that includes, but does not end on, the Closing Date. Each Parent Prepared Return that is a Pass-Through Tax Return shall be submitted to Equityholder for Equityholder’s review and the determination by the Buyer of its tax basis with respect comment at least thirty (30) days prior to the due date of the Tax Return (taking into account applicable extensions). Parent shall in good faith consider all reasonable comments received from Equityholder no later than ten (10) days prior to the due date for filing any such Tax Return (taking into account applicable extensions). Notwithstanding any other provision of this Section 6.6(a), Equityholder, at its sole cost and expense, shall be solely responsible for filing any and all of the Tax Returns required to be filed by Equityholder and paying all of the Taxes due and owing by Equityholder (including to the extent attributable to income of any Alta Company and its Subsidiariesthat flows up to Equityholder). Neither Buyer nor the Seller The parties hereto shall file any all Tax Returns or, in consistently with the Intended Tax Treatment unless otherwise required by a judicial or administrative proceeding, assert or maintain any Tax reporting position determination of a Taxing Authority that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable lawfinal.

Certain Tax Matters. (ia) Within 60 days following to the Closing, the Buyer shall allocate In consideration for the Purchase Price and the Assumed Liabilities, on or before June 30, 2022, Purchaser shall prepare and deliver to Seller an allocation statement (the “Allocation”) allocating the Purchase Price (and the Assumed Liabilities to the extent properly taken into account under the Code) among the Purchased Assets (and further allocated, as determined necessary by the Purchaser, with respect to some or all of the assets of any entity of which equity interests of such entity are included in the Purchased Assets) in accordance with Section 1060 of the Code and the Treasury Regulations promulgated thereunder (and any similar provision of state, local or foreign Law, as appropriate) as determined based upon an independent appraisal or valuation performed by a qualified expert reasonably agreeable to the “Allocation”Seller Representative. Purchaser shall (i) among the assets provide to Seller an estimate of the Company allocation statement on or before December 31, 2021; and any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”), ii) permit the Seller Representative to review and provide comments on the Allocation and shall deliver consult with the Seller Representative with respect to any such comments. However, the Allocation (along with a copy of shall be final as reasonably determined by Purchaser based on the appraisals, if any, on which the Allocation is based) to the Sellerabove. The Buyer Purchaser and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare report and file an IRS Form 8594 all Tax Returns (including amended Tax Returns and claims for or such other form or statement as may be required by applicable law, rule or regulation, refund) in all respects and any comparable state or local income tax form, for all purposes in a manner consistent with the Allocation. The Seller Purchaser, Seller, and Acquired Subsidiaries shall cooperate in the Buyer shall adhere to the Allocation for all Tax-related purposes filing of any forms (including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale Form 8594 under Section 1060 of the Company and its Subsidiaries and the determination by the Buyer of its tax basis Code) with respect to the Company and its SubsidiariesAllocation. The Allocation, as finally determined hereunder, shall be adjusted to reflect any adjustment to the Purchase Price provided under this Agreement. Neither Buyer Purchaser, Seller nor the Seller any Acquired Subsidiary shall file take any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the such Allocation agreed to (as adjusted in accordance with this AgreementSection 8.03(a)) except as required, unless required after using good faith efforts to do so support the Allocation in any applicable challenge by applicable lawa Governmental Authority, to settle a dispute with a Governmental Authority with respect to the Allocation.

Certain Tax Matters. (i) Within 60 days following The Parties hereto intend for the Merger to the Closing, the Buyer shall allocate the Purchase Price in accordance with Section 1060 be treated as a taxable sale of the Code (the “Allocation”) among the assets shares of the Company by the Company Holders, it being understood and agreed that neither Buyer nor Merger Sub nor any of its Subsidiaries their Affiliates, representatives or agents, make any representations or warranties to the Company or to any Company Holder regarding the Tax treatment of the Merger, or any of the Tax consequences to the Company or any Company Holder of this Agreement, the Merger or the other transactions or the other agreements contemplated by this Agreement. The Company acknowledges that the Company and the Company Holders are relying solely on their own Tax advisors in connection with this Agreement, the Merger and the other transactions and the other agreements contemplated by this Agreement. Notwithstanding the generality of the foregoing, the Parties hereby acknowledge and agree that, in the event that any Company Option that are “incentive stock option” as set forth on Section 3.3(b) of the Company Disclosure Schedule are exercised prior to the Closing Date, the shares of Company Capital Stock transferred in respect of such exercise shall be the subject of a “disqualifying disposition” (within the meaning of Section 421(b) of the Code)as a result of the Merger, and it is characterized intended that the amount realized as a disregarded entity result of such “disqualifying disposition” attributable to such a disqualifying disposition for U.S. federal income Tax purposes (“Disregarded Subsidiaries”), and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) will be equal to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of such Company Capital Stock at the inventory and tangible property, plant and equipment time of such “disqualifying disposition,” which amount shall be reported on Form W-2 for the year in which such amounts are paid to the Company and its Disregarded Subsidiaries is approximately equal Holder pursuant to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (this Agreement; provided, however however, that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an no amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner consistent with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale of the Company and its Subsidiaries and the determination by the Buyer of its tax basis with respect to the Escrow Amount or any Contingent Payments will be reported on a Form W-2 to such Company Holder prior to actual payment of such amounts, except as otherwise expressly required by a Taxing authority. Buyer, the Surviving Corporation and its Subsidiariesthe applicable Company Holder shall file all Tax Returns consistently with the foregoing Tax treatment, except as otherwise expressly required by a Taxing authority. Neither Buyer Buyer, the Surviving Corporation, nor any of their Affiliates, agents or representatives shall have any liability to the Seller shall file Company, any Tax Returns or, in Company Holder or any of their Affiliates as a judicial or administrative proceeding, assert or maintain result of any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable lawTaxing authority taking a contrary position.

Certain Tax Matters. (i) Within 60 days following The Mortgage Loan Seller shall prepare or cause to the Closingbe prepared and shall file, the Buyer shall allocate the Purchase Price in accordance with Section 1060 or cause to be filed, all of the Code (the “Allocation”) among the assets of the Company Tax Returns for calendar years 2023 and any of its Subsidiaries 2024 that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”), and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that it determines are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner consistent with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale of the Company and its Subsidiaries and the determination by the Buyer of its tax basis with respect to the Company 1516 Motor Parkway Loan REMIC and the Centene Loan REMIC, and shall cause the Trustee to execute such Tax Returns in a timely manner. The expenses of preparing such returns shall be borne by the Mortgage Loan Seller without any right of reimbursement therefor. The Mortgage Loan Seller agrees to indemnify the Depositor, the Master Servicer (including in its Subsidiariescapacity as Companion Paying Agent, if applicable), the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor, the Asset Representations Reviewer and the Trust and any partner, director, officer, shareholder, member, manager employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs (including, without limitation, in connection with the enforcement of such indemnified party’s rights under this Agreement), judgments, and any other costs, liabilities, fees and expenses that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Mortgage Loan Seller in the performance of its obligations and duties under this Section 19 or by reason of negligent disregard by the Mortgage Loan Seller of its duties and obligations under this Section 19 or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. Neither Buyer nor The Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer or the Operating Advisor, as the case may be, will immediately notify the Mortgage Loan Seller if a claim is made by a third party with respect to this Section 19, whereupon the Mortgage Loan Seller shall file any Tax Returns orassume the defense of such claim (with counsel reasonably satisfactory to the Depositor, the Master Servicer (including in a judicial or administrative proceedingits capacity as Companion Paying Agent, assert or maintain any Tax reporting position that is inconsistent with this Agreement if applicable), the Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer or the Allocation agreed Operating Advisor) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to in accordance with so notify the Mortgage Loan Seller shall not affect any rights any of the foregoing Persons may have to indemnification under this AgreementSection 19 or otherwise, unless required to do so by applicable lawthe Mortgage Loan Seller’s defense of such claim is materially prejudiced thereby.

Certain Tax Matters. (a) Buyer and Seller recognize and agree that as between themselves, for purposes of federal, state and local tax laws only, (i) Within 60 days following Seller will, if the transactions contemplated hereby are consummated, continue to be entitled to all benefits accrued and all rights vested, and shall, as between the parties to this Agreement, remain liable for all tax obligations incurred by the Corporation of any nature whatsoever, in each case with respect to the Closingperiod ending as of the time of Closing on the Closing Date (the "Pre-Closing Period"), including without limitation rights to indemnification by Lessee for taxes relating to such Pre-Closing Period under the Lease Transaction Documents; and (ii) if the transactions contemplated hereby are consummated, the Corporation and Buyer shall allocate be entitled, respectively, to all benefits accrued and all rights vested and shall, as between the Purchase Price parties to this Agreement, be liable for all tax obligations incurred by the Corporation, in accordance each case with Section 1060 of respect to the Code period after the PreClosing Period (the “Allocation”) among the assets of the Company and any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”"Post-Closing Period"), and shall deliver the Allocation (along with a copy of the appraisalsbe entitled, without limitation, to all rights, if any, on which to indemnification for taxes relating to such Post-Closing Period under the Allocation is based) Lease Transaction Documents. Buyer and Seller agree that, in all matters relating to any such rights and obligations, each shall act in a manner consistent with, and not in derogation of, any rights of Seller, Buyer or the Corporation hereunder or under the Lease Transaction Documents with respect to the Seller. The Pre-Closing Period or the Post-Closing Period, as the case may be, and Buyer and the Seller agree to consult in good faith shall, with regard respect to the Allocation, provided that the Seller shall accept the Buyer’s final determination rights of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that cause the parties acknowledge and agree that the Seller’s failure Corporation to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, act in a manner consistent with the Allocationforegoing. The Any refunds, credits or other tax savings with respect to taxes properly attributed to the Pre-Closing Period shall be the property of the Seller and the Buyer shall adhere be paid over to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale of the Company and its Subsidiaries and the determination by the Buyer of its tax basis with respect to the Company and its Subsidiaries. Neither Buyer nor the Seller shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable lawCorporation.

Certain Tax Matters. (i) Within 60 days following The undersigned expressly acknowledges that the issuance of the Award Shares may give rise to “wages” subject to withholding. The undersigned expressly acknowledges and agrees that the undersigned’s rights hereunder are subject to the Closingundersigned promptly paying to the Company in cash or stock (or by such other means as may be acceptable to the Administrator in its discretion) all taxes required to be withheld. Unless the undersigned notifies the Company in writing thirty (30) days prior to an issuance date that the undersigned will satisfy the withholding requirement in cash, the Buyer shall allocate the Purchase Price in accordance with Section 1060 Company will withhold from delivery that number of the Code (the “Allocation”) among the assets of the Company and any of its Subsidiaries that is characterized as shares having a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”), and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of required withholding. In the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however event that the parties acknowledge and agree that the Seller’s failure to consent shall not withholding requirement will be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocationsatisfied in cash, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of undersigned authorizes the Company or its subsidiaries to withhold such amount from any amounts otherwise owed to the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposesundersigned. The Seller By acceptance of this Award, the undersigned hereby agrees upon issuance of any Award Shares to become a party to, be bound by the terms of, the Stockholders Agreement and the Buyer agree to prepare Participation and file an IRS Form 8594 for or such other form or statement Registration Rights Agreement among UGS Capital Corp., UGS Capital Corp. II, UGS Holdings, Inc., UGS Corp. and certain stockholders of UGS Capital Corp. and UGS Capital Corp. II, dated as may be required by applicable lawof May 24, rule or regulation, and any comparable state or local income tax form2004, in each case treating the undersigned as a manner consistent with the Allocation. The Seller “Manager” and the Buyer Award Shares as “Incentive Shares”. Very truly yours, Name: Date: The foregoing Deferred Stock Award Agreement is hereby accepted: UGS Capital Corp. Xxxxxxx X. Xxxxxx Chairman, CEO and President Schedule A Issuance Schedule Total number of Award Shares: Shares shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income be issued on ; Shares shall be issued on ; and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss Shares shall be issued on the sale of the Company and its Subsidiaries and the determination by the Buyer of its tax basis with respect to the Company and its Subsidiaries. Neither Buyer nor the Seller shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable law.

Certain Tax Matters. (ia) Within 60 days following to the Closing, the Buyer shall allocate the Purchase Price in accordance with Section 1060 prepare and file, or cause to be prepared and filed, all Tax Returns of the Code Acquired Entities required to be filed after the Closing Date. To the extent any Pass-Through Tax Return required to be filed after the Closing Date relates to a Pre-Closing Tax Period (the “Allocation”) among the assets of the Company and including any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”Straddle Period), and Buyer shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) cause such Tax Returns to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, prepared in a manner consistent with the Allocationapplicable Acquired Entity’s past practice and deliver a copy of each such Pass-Through Tax Return to Seller Representative for review and approval no later than thirty (30) calendar days prior to the due date for filing such Tax Return (taking into account applicable extensions). The No failure or delay of Buyer in providing such Tax Returns for Seller and Representative to review shall reduce or otherwise affect the obligations or Liabilities of Sellers pursuant to this Agreement except to the extent Sellers are actually prejudiced by such delay or failure. Buyer shall adhere incorporate all reasonable comments received from Seller Representative prior to the Allocation due date for all Tax-related purposes including filing any federal, foreign, state, county or local income and franchise such Tax Return filed by them after the Closing Date(taking into account applicable extensions); provided that, including the determination by the Seller of taxable gain or loss on the sale of the Company and its Subsidiaries shall use the “interim closing method” under Section 706 of the Code and the determination by the Buyer of its tax basis Treasury Regulations promulgated thereunder with respect to any applicable Straddle Period Tax Return of the Company and or its Subsidiaries; provided, further, that the Company (and any of its applicable Subsidiaries) shall, in Buyer’s sole discretion, make an election under Section 754 of the Code for the taxable year of the Company (or any such Subsidiaries) including the Closing Date. Neither Buyer nor Notwithstanding any other provision of this Section 7.5(a), Sellers, at their sole cost and expense, shall be solely responsible for filing all of the Seller shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so be filed by applicable lawany Seller and paying all of the Taxes due and owing by any Seller (including to the extent attributable to income of the Company Group that flows up to Sellers).

Certain Tax Matters. (ia) Within 60 days following to The Members agree and acknowledge that the Closing, "tax matters partner" of the Buyer shall allocate Company within the Purchase Price in accordance with meaning of Section 1060 6231(a)(7) of the Code (the “Allocation”"TAX MATTERS PARTNER") among the assets shall be Triarc for all taxable years of the Company that end after the close of the 2004 Short Year, and any that Sachs (as the sole grantor of its Subsidiaries that the Gregory H. Sachs Revocable Trust under Declaration of Trust dated Aprxx 00, 0000, xxxch trust is characterized as the sole member of SCM, a disregarded entity for U.S. United States federal income Tax purposes (“Disregarded Subsidiaries”)tax purposes) has been, and shall deliver be, the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment Tax Matters Partner of the Company and its Disregarded Subsidiaries is approximately equal for all taxable years of the Company that end on or before the close of the 2004 Short Year (such taxable years, "PRE-CLOSING TAX PERIOD"). The Tax Matters Partner shall have the authority to represent the Company in connection with any audit, claim for refund or administrative or judicial proceeding involving any asserted tax liability or refund with respect to the net book value Company or the Members in their capacity as such (any such audit, claim for refund, or proceeding relating to an asserted tax liability or refund referred to herein as a "CONTEST"); PROVIDED, that, with respect to any Contest related to a Pre-Closing Tax Period, Triarc shall have the right to participate in such Contest at its own expense, and Sachs shall not be able to settle, compromise and/or concede any portion of such items. AccordinglyContest that is reasonably likely to give rise to gain or gross income (or loss of deduction or adverse effect on any tax attribute), Buyer will not allocate an amount including any timing differences, with respect to Triarc, or of the Purchase Price Company for any taxable year that ends after the close of the 2004 Short Year in excess of 110% of the net book value of inventory and tangible property$500,000, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the SellerTriarc, which consent shall not be unreasonably withheld (providedor delayed; PROVIDED, however further, that the parties acknowledge and agree that the Seller’s failure with respect to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal any Contest related to any taxable year of the inventory Company that begins after the close of the 2004 Short Year, Triarc shall consult with Sachs regarding the settlement, compromise and/or concession any portion of such Contest that is reasonably likely to have a material effect on the tangible property, plant tax liability of any Sachs Affiliated Party or any Roberts Affiliated Party. Triarc shall be entitled to be reimbursed by the Company for all costs and equipment expenses incurred by it as the Tax Matters Partner in connection with any administrative or judicial proceeding affecting tax matters of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal Members in their capacity as such and to the Purchase Price plus any liabilities of be indemnified by the Company (solely out of Company assets) with respect to any action brought against it in connection with any judgment in or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposessettlement of any such proceeding. The Seller and the Buyer agree Sachs shall not be entitled to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner consistent with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination reimbursed by the Seller of taxable gain Company for any costs or loss on expenses incurred by him as the sale Tax Matters Partner in connection with any administrative or judicial proceeding affecting tax matters of the Company and its Subsidiaries and the determination Members in their capacity as such, or to be indemnified by the Buyer of its tax basis Company with respect to any action brought against him in connection with any judgment in or settlement of any such proceeding. Any Member who enters into a settlement agreement with respect to any Company item shall notify the Company Tax Matters Partner of such settlement agreement and its Subsidiariesterms within 30 days after the date of settlement. Neither Buyer nor the Seller This provision shall file survive any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with termination of this Agreement, unless required to do so by applicable law.

Certain Tax Matters. (i) Within 60 days following Notwithstanding anything to the Closingcontrary in this Agreement, the Buyer Stockholders shall allocate the Purchase Price in accordance have no Liability or other obligation with Section 1060 of the Code (the “Allocation”) among the assets respect to Taxes of the Company and or any of its Subsidiaries that is characterized as attributable (determined on a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”), and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is basedor without” basis) to the Seller[*]. The Buyer Further, (i) any Liability of the Stockholders hereunder with respect to Taxes and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination right of the Allocation Stockholders to any Tax Refunds (including pursuant to clause (ii)) shall be based on the Calculation Principles and (ii) to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld a Tax Refund for a Pre-Closing Period (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and portion of any Straddle Period through the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner consistent with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after end of the Closing Date) would be available (including by way of an amended Tax Return, including a carryback claim or otherwise) if the [*] did not occur, the Purchaser shall promptly pay the amount of such Tax Refund to the Stockholder Representative (or its designee) upon determination by that such Tax Refund would be available. Purchaser shall provide the Seller Stockholder Representative with information and cooperation necessary to make such determination. With respect to the sale, distribution or other disposition of taxable gain or loss on (x) the sale [*] and [*], the Tax Returns of the Company and its Subsidiaries shall report an amount realized based on the purchase price for the [*] and [*] and (y) the determination by [*], the Buyer Tax Returns of the Company and its tax basis Subsidiaries shall report an amount realized treating the gross fair market value of the assets acquired in the [*] as equal to the [*] with respect to the Company and its Subsidiariesrelevant [*]. Neither Buyer nor The Stockholders shall have no Liability or other obligation under this Agreement if a Tax Proceeding determines that the Seller amount realized with respect thereto should be treated as a higher amount. The Pre-Closing Benefits shall file any Tax Returns or, not be reported in a judicial or administrative proceeding, assert or maintain any post-Closing Tax reporting position that is inconsistent with this Agreement period and shall be reported in Pre-Closing Periods (or the Allocation agreed portion of any Straddle Period ending on the Closing Date). Notwithstanding anything to the contrary in accordance with this Agreement, unless required any items of income or gain and Liability for Taxes attributable to do so actions taken by applicable lawthe Company or its Affiliates on the Closing Date but after the Closing shall be treated as occurring in a post-Closing Tax period.

Certain Tax Matters. (i) Within 60 days following The Seller shall cause to be prepared for the review of the Buyer a reasonable period of time prior to the Closingfiling due date all United States federal, the Buyer shall allocate the Purchase Price in accordance with Section 1060 of the Code (the “Allocation”) among the assets of state, foreign, or local income, franchise net-worth, value-added, excise, employee withholding or similar tax returns required or permitted to be filed by the Company and any of its the Subsidiaries for taxable periods ending prior to or on the Closing Date, including amended returns that is characterized do not reflect a claim for, or entitlement to, a refund, applications for loss carryback refunds (e.g. Forms 1139) and applications for estimated tax refunds (e.g. Forms 4466)) (all such income and franchise tax returns are referred to as a disregarded entity for U.S. federal income Tax purposes (the “Disregarded SubsidiariesCompany Returns”), and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that Company Returns so prepared by the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible propertybe prepared, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax formwhere relevant, in a manner consistent with the Allocation. The Seller Company’s and the Buyer shall adhere Subsidiaries’ past practices except as otherwise required by applicable law and not in a manner materially adverse to the Allocation Buyer or which would materially increase the Tax Liability of the Company or any Subsidiary for all Tax-related purposes including any federal, foreign, state, county period (or local income and franchise Tax Return filed by them portion thereof) beginning after the Closing DateDate (determined without regard to the Buyer’s losses, including credits or deductions). The Buyer and the determination Seller shall make available to each other (and to their accountants and attorneys) any and all books and records and other documents and information in its possession or control relating to the Company and the Subsidiaries reasonably requested by the Seller to prepare the Company Returns or which is otherwise needed in connection with the determination of taxable gain or loss on the sale liability for Taxes. The Buyer will cause a duly authorized officer of the Company and its the Subsidiaries (or any successors) timely to execute and file the determination Company Returns prepared by the Buyer Seller upon (i) the Buyer’s receipt of its tax basis with respect to the Company and its Subsidiaries. Neither Buyer nor funds from the Seller for the amount of Taxes, if any, for which the Seller is responsible on such Company Return, and (ii) the Buyer’s approval of such Company Returns, which approval shall file any Tax Returns not be unreasonably withheld. The Seller shall timely pay or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable law.

Certain Tax Matters. (i) Within 60 days following Notwithstanding anything herein to the Closingcontrary, the Buyer Company shall allocate have the Purchase Price in accordance with Section 1060 of the Code (the “Allocation”) among the assets of the Company right to deduct and withhold from any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”)payment, and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company dividend or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner consistent with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale of the Company and its Subsidiaries and the determination by the Buyer of its tax basis distribution made with respect to the Shares (or upon the redemption of the Shares or Alternative Preference Shares or the issuance of Class A Shares or Alternative Preference Shares upon conversion of the Preferred Shares) such amounts as are required to be deducted or withheld with respect to the making of such payment or distribution (or issuance) under any applicable Tax law; provided that, prior to making any such deduction or withholding the Company shall provide notice to Purchaser of its intent to withhold and its Subsidiariesshall provide Purchaser with a reasonable opportunity to eliminate, reduce or otherwise mitigate any such deduction or withholding requirement and shall cooperate with the Purchaser in obtaining any available treaty relief. Neither Buyer nor To the Seller extent that any amounts are so deducted or withheld, such deducted or withheld amounts shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction or withholding was made. In the event the Company previously remitted any amounts to a Governmental Entity on account of Taxes required to be deducted or withheld in respect of any payment or distribution (or deemed distribution) on any shares without making a corresponding deduction or withholding from amounts distributable in respect of the applicable shares, the Company shall be entitled to offset any such amounts against any amounts otherwise payable in respect of such Shares (or the Allocation agreed issuance of Class A Shares or Alternative Preference Shares upon conversion of the Preferred Shares). Notwithstanding anything herein or in the Articles of Amendment to the contrary, the Company has no intent under applicable law (including publicly available administrative statements) in accordance effect on the date hereof to make any deduction or withholding for Taxes in respect of a conversion of the Preferred Shares into Class A Shares pursuant to Sections 5(a) and 5(c) of the Series 6 Articles of Amendment. The Company further agrees to cooperate with this Agreement, unless required the Purchaser with regard to do so any other tax reporting or compliance matters reasonably requested by applicable lawthe Purchaser in connection with the investment contemplated hereby.

Certain Tax Matters. (ia) Within 60 days following Payment of Taxes on the Sale of the Purchased Assets. All sales, recording, title transfer and registration and other transfer Taxes payable by reason of the sale or transfer of the Purchased Assets (collectively, "Transfer Taxes") shall be paid by the Responsible Party, as herein defined; provided, however, that notwithstanding the foregoing, Buyer shall pay any transfer fees or sales taxes for any titled vehicles included in the Purchased Assets. As used herein, the Responsible Party shall be Buyer, except with respect to Transfer Taxes which are solely the responsibility of the seller of assets as a matter of law, in which case the Responsible Party shall be NSC. To the extent that a party other than the Responsible Party is required to file tax returns relating to Transfer Taxes (the "Filing Party"), the Filing Party shall prepare such tax returns and provide copies thereof to the ClosingResponsible Party prior to filing such tax returns. Upon filing such tax returns relating to Transfer Taxes, the Buyer Filing Party shall allocate make payment of such Transfer Taxes, whereupon the Purchase Price in accordance with Section 1060 of Responsible Party shall reimburse the Code (Filing Party for the “Allocation”) among the assets of the Company and any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”), and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocationamount so paid, provided that the Seller Responsible Party may elect to make payment directly to the applicable Governmental Body, in which case the parties shall accept cooperate to coordinate the Buyer’s final determination filing of the Allocation to applicable tax returns and payment of the corresponding Transfer Taxes. To the extent that any Governmental Body seeks to collect Transfer Taxes from any party other than the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge Responsible Party, the Responsible Party shall pay, or reimburse such other party for payment of, such Transfer Taxes, provided that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal such other party shall give prompt notice to the net book value Responsible Party of any such itemscollection efforts and shall permit the Responsible Party to control any proceedings contesting any such Transfer Taxes. Accordingly, Buyer will not allocate an amount of Each party agrees to cooperate with the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure other to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus qualify for any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities exemptions for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulationTransfer Taxes, and to execute any comparable state and all resale certificates or local income tax form, in a manner consistent with the Allocation. The Seller and the Buyer shall adhere other documents or other forms reasonably necessary to the Allocation qualify for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale of the Company and its Subsidiaries and the determination by the Buyer of its tax basis with respect to the Company and its Subsidiaries. Neither Buyer nor the Seller shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable lawsuch exemptions.

Certain Tax Matters. (i) Within 60 days following to the After Closing, the Buyer shall allocate be ------------------- responsible for causing the Purchase Price Acquired Companies to file on a timely basis all Tax Returns required to be filed by the Acquired Companies at any time after Closing, including Tax Returns that relate in accordance with Section 1060 of the Code (the “Allocation”) among the assets of the Company and any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Tax purposes (“Disregarded Subsidiaries”)whole or in part to periods prior to Closing, and to cause the Acquired Companies to pay all Taxes shown as due therein. Prior to filing Tax Returns that relate in whole or in part to periods prior to Closing, Buyer shall deliver the Allocation (along copies thereof to Sellers and give Sellers an opportunity to provide Buyer with comments with respect thereto. Buyer shall prepare such Tax Returns on a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, in a manner basis consistent with the AllocationTax Returns prepared for prior taxable periods. The Seller and In the event Buyer shall adhere to the Allocation for all Tax-related purposes including or any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by the Seller of taxable gain or loss on the sale of the Company and its Subsidiaries and the determination by the Buyer of its tax basis Acquired Companies receives any communication regarding any pending or Threatened examination, claim, adjustment or other Proceeding with respect to the liability of any Acquired Company for Taxes (a) for any period prior to Closing and its Subsidiaries(b) for which Buyer seeks indemnification under Article 10 hereof, in addition to the notice provision of Section 10.6, ---------- ------------ Buyer shall promptly notify Sellers in writing thereof. Neither Buyer nor shall, and shall cause the Seller Acquired Companies to, keep Sellers apprised of the negotiations of any settlement of any proceedings described in this Section 7.4, and, without ----------- Sellers' prior written consent, Buyer shall file not, and shall not permit the Acquired Companies to, pay or settle any such proceeding which would give rise to a claim of indemnification against Sellers under Article 10 of this ---------- Agreement. Buyer shall cause the Acquired Companies to preserve and retain all Tax Returns, work papers and other documents relating to such Tax Returns oror proceedings until the expiration of the statutory period of limitations (with regard to waivers and extensions) of the taxable periods to which such documents relate, in a judicial or administrative proceedingand shall make such documents available to Sellers and their representatives and advisers upon reasonable notice and at reasonable times, assert or maintain any Tax reporting position it being understood that is inconsistent with this Agreement or the Allocation agreed Sellers and such representatives and advisers shall be entitled to in accordance with this Agreement, unless required to do so by applicable lawmake copies of such books and records.

Certain Tax Matters. (ia) The sum of the Purchase Price and the Assumed Liabilities shall be allocated among the Purchased Assets and the covenants contained in Sections 5.7 and 5.8 as of the Closing (the “Allocation”). Within 60 days following to ten (10) Business Days after the Closing, the Buyer shall allocate provide Company with a proposed Allocation for Company’s review and comment. If Company does not provide any comments to Buyer in writing within ten (10) Business Days following delivery by Buyer of the proposed Allocation, then the Allocation proposed by Buyer shall be deemed to be final and binding absent manifest error. If, however Company submits comments to Buyer within such ten (10) Business Day period, Buyer and Company shall negotiate in good faith to resolve any differences within ten (10) Business Days. If Company and Buyer are unable to reach a resolution within such ten (10) Business Day period, then all remaining disputed items shall be submitted for resolution by an internationally-recognized, independent accounting firm mutually selected by Buyer and Company (the “Allocation Accounting Firm”), which shall make a final determination as to the disputed items within ten (10) Business Days after such submission, and such determination shall be final, binding and conclusive on Company and Buyer. The fees and disbursements of the Allocation Accounting Firm shall be shared equally between Company and Buyer. Any subsequent adjustments to the sum of the Purchase Price and Assumed Liabilities shall be reflected in accordance the Allocation in a manner consistent with Section 1060 of the Code (and the “Allocation”) among the assets of the Company and any of its Subsidiaries that is characterized as a disregarded entity for U.S. federal income Regulations thereunder. For all Tax purposes (“Disregarded Subsidiaries”)purposes, and shall deliver the Allocation (along with a copy of the appraisals, if any, on which the Allocation is based) to the Seller. The Buyer and the Seller agree to consult in good faith with regard to the Allocation, provided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to the net book value of such items. Accordingly, Buyer will not allocate an amount of the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to consent transactions contemplated in this Agreement shall not be deemed unreasonable if such failure is supported by a third-party appraisal of the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income tax form, reported in a manner consistent with the Allocation. The Seller and the Buyer shall adhere to the Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Dateterms of this Agreement, including the determination by the Seller Allocation, and that none of taxable gain them will take any position inconsistent therewith in any Tax Return, in any refund claim, in any litigation, or loss on the sale otherwise. Each of the Company and Buyer agrees to cooperate with the other in preparing IRS Form 8594, and to furnish the other with a copy of such Form prepared in draft form within a reasonable period before its Subsidiaries and the determination by the Buyer of its tax basis with respect to the Company and its Subsidiaries. Neither Buyer nor the Seller shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to in accordance with this Agreement, unless required to do so by applicable lawfiling due date.