Common use of Allocation of Aggregate Merger Consideration Clause in Contracts

Allocation of Aggregate Merger Consideration. The Aggregate Merger Consideration (the value of which shall equal the sum of (i) the value of the Aggregate Share Consideration (based upon the closing price per share of a share of Buyer Common Stock on December 14, 2007) plus (ii) the value of the Notes (excluding any Notes described in the first proviso of the last paragraph of Section 3.3(b)(iii) for which cash was paid in lieu of Notes) based on a fair market value equal to the amount set forth on Section 3.3(b) of the Company Disclosure Letter plus (iii) the aggregate principal amount of any Notes excluded from clause (ii) above), as adjusted, plus the amount of any liabilities of the Company and its Subsidiaries for Tax purposes as of the Effective Time shall be allocated consistent with past practice among the assets of the Company and its Subsidiaries (including the Management Agreement) as reasonably proposed by the Sellers’ Representative in good faith and shall be set forth in a schedule produced by the Sellers’ Representative and delivered to the Buyer within seventy-five (75) days following the Closing Date (the “Allocation Schedule”). The Buyer shall have an opportunity to review the proposed Allocation Schedule for a period of 20 days after receipt of the proposed Allocation Schedule. If the Buyer disagrees with any aspect of the proposed Allocation Schedule, the Buyer shall notify the Sellers’ Representative, in writing, prior to the end of such 20-day period (an “Allocation Objection Notice”), setting forth the Buyer’s proposed Allocation Schedule and specifying, in reasonable detail, any good faith dispute as to the Sellers’ Representative’s Allocation Schedule. If prior to the conclusion of such 20-day period, the Buyer notifies the Sellers’ Representative in writing that it will not provide any Allocation Objection Notice or if the Buyer does not deliver an Allocation Objection Notice within such 20-day period, then the proposed Allocation Schedule shall be deemed final and conclusive and binding upon each of the parties hereto (a “Final Allocation Schedule”). The Sellers’ Representative and the Buyer shall use commercially reasonable efforts to resolve any objection by the Buyer to the proposed Allocation Schedule and to agree upon a Final Allocation Schedule. If within 10 days after the Sellers’ Representative receives an Allocation Objection Notice the Buyer and the Sellers’ Representative have not resolved all objections and agreed upon a Final Allocation Schedule, the Buyer and the Sellers’ Representative shall engage a mutually acceptable independent accounting firm of national recognition (the “Independent Accounting Firm”) to determine whether the Sellers’ Representative’s position with respect to any remaining disputed items, as set forth in the proposed Allocation Schedule, are reasonable. Any disputed items that are so determined by the Independent Accounting Firm to be reasonable shall be included in the Final Allocation Schedule as proposed by the Sellers’ Representative. Any disputed items that are so determined by the Independent Accounting Firm not to be reasonable shall be adjusted by the Independent Accounting Firm to be reasonable, and such adjusted amounts shall be included in the Final Allocation Schedule. The Buyer and the Sellers’ Representative shall have the opportunity to present their position with respect to any disputed items to the Independent Accounting Firm and shall use commercially reasonable efforts to cause the Independent Accounting Firm, within 20 days after its selection, to make the above-described determinations and to prepare a Final Allocation Schedule in accordance therewith. Unless the Buyer and the Sellers’ Representative otherwise agree, such Final Allocation Schedule shall not modify items previously agreed. The fees and disbursements of the Independent Accounting Firm shall be shared equally by the Buyer, on the one hand, and the Members that held issued and outstanding Membership Interests as of immediately prior to the Effective Time (pro rata in proportion to the respective amounts paid to such Members pursuant to Section 3.2(a)), on the other hand, which amounts payable by the Members shall be paid solely from the Sellers’ Representative Expense Fund. The parties shall, and shall cause their respective Affiliates to, use the allocations set forth in the Final Allocation Schedule for all Tax purposes, file all Tax Returns in a manner consistent with such Final Allocation Schedule and take no position contrary thereto, in each case, unless required to do so by a change in applicable Tax Laws or a good faith resolution of a Tax contest.

Allocation of Aggregate Merger Consideration. The Aggregate Merger Consideration (the value of which shall equal the sum of (i) the value of the Aggregate Share Consideration (based upon the closing price per share of a share of Buyer Common Stock on December 14, 2007) plus (ii) the value of the Notes (excluding any Notes described in the first proviso of the last paragraph of Section 3.3(b)(iii) for which cash was paid in lieu of Notes) based on a fair market value equal to the amount set forth on Section 3.3(b) of the Company Disclosure Letter plus (iii) the aggregate principal amount of any Notes excluded from clause (ii) above)Consideration, as adjusted, plus the amount of any liabilities of the Company and its Subsidiaries for Tax purposes as of the Effective Time shall be allocated consistent with past practice among the assets of the Company and its Subsidiaries (including the Management Agreement) as reasonably proposed by the Sellers’ ' Representative in good faith and shall be set forth in a schedule produced by the Sellers’ ' Representative and delivered to the Buyer within seventy-five (75) days following the Closing Date (the “Allocation Schedule”"ALLOCATION SCHEDULE"). The Buyer shall have an opportunity to review the proposed Allocation Schedule for a period of 20 days after receipt of the proposed Allocation Schedule. If the Buyer disagrees with any aspect of the proposed Allocation Schedule, the Buyer shall notify the Sellers’ ' Representative, in writing, prior to the end of such 20-day period (an “Allocation Objection Notice”"ALLOCATION OBJECTION NOTICE"), setting forth the Buyer’s 's proposed Allocation Schedule and specifying, in reasonable detail, any good faith dispute as to the Sellers’ ' Representative’s 's Allocation Schedule. If prior to the conclusion of such 20-day period, the Buyer notifies the Sellers’ ' Representative in writing that it will not provide any Allocation Objection Notice or if the Buyer does not deliver an Allocation Objection Notice within such 20-day period, then the proposed Allocation Schedule shall be deemed final and conclusive and binding upon each of the parties hereto (a “Final Allocation Schedule”"FINAL ALLOCATION SCHEDULE"). The Sellers’ ' Representative and the Buyer shall use commercially reasonable efforts to resolve any objection by the Buyer to the proposed Allocation Schedule and to agree upon a Final Allocation Schedule. If within 10 days after the Sellers’ ' Representative receives an Allocation Objection Notice the Buyer and the Sellers’ ' Representative have not resolved all objections and agreed upon a Final Allocation Schedule, the Buyer and the Sellers’ ' Representative shall engage a mutually acceptable independent accounting firm of national recognition (the “Independent Accounting Firm”"INDEPENDENT ACCOUNTING FIRM") to determine whether the Sellers’ ' Representative’s 's position with respect to any remaining disputed items, as set forth in the proposed Allocation Schedule, are reasonable. Any disputed items that are so determined by the Independent Accounting Firm to be reasonable shall be included in the Final Allocation Schedule as proposed by the Sellers’ ' Representative. Any disputed items that are so determined by the Independent Accounting Firm not to be reasonable shall be adjusted by the Independent Accounting Firm to be reasonable, and such adjusted amounts shall be included in the Final Allocation Schedule. The Buyer and the Sellers’ ' Representative shall have the opportunity to present their position with respect to any disputed items to the Independent Accounting Firm and shall use commercially reasonable efforts to cause the Independent Accounting Firm, within 20 days after its selection, to make the above-described determinations and to prepare a Final Allocation Schedule in accordance therewith. Unless the Buyer and the Sellers’ ' Representative otherwise agree, such Final Allocation Schedule shall not modify items previously agreed. The fees and disbursements of the Independent Accounting Firm shall be shared equally by the Buyer, on the one hand, and the Members that held issued and outstanding Membership Interests as of immediately prior to the Effective Time (pro rata PRO RATA in proportion to the respective amounts paid to such Members pursuant to Section 3.2(a)), on the other hand; PROVIDED, which amounts payable by HOWEVER, that the Buyer may (but shall not be obligated to) elect, at any time, to withdraw all (but not less than all) of the aggregate amount of such fees and disbursements allocable to such Members shall be paid solely from the Sellers’ Representative Expense FundIndemnity Escrow Fund in accordance with the Escrow Agreement. The parties shall, and shall cause their respective Affiliates to, use the allocations set forth in the Final Allocation Schedule for all Tax purposes, file all Tax Returns in a manner consistent with such Final Allocation Schedule and take no position contrary thereto, in each case, unless required to do so by a change in applicable Tax Laws or a good faith resolution of a Tax contest.

Allocation of Aggregate Merger Consideration. The Aggregate Merger Consideration (the value of which shall equal the sum of (i) the value of the Aggregate Share Consideration (based upon the closing price per share of a share of Buyer Common Stock on December 14, 2007) plus (ii) the value of the Notes (excluding any Notes described in the first proviso of the last paragraph of Section 3.3(b)(iii) for which cash was paid in lieu of Notes) based on a fair market value equal to the amount set forth on Section 3.3(b) of the Company Disclosure Letter plus (iii) the aggregate principal amount of any Notes excluded from clause (ii) above)Consideration, as adjusted, plus the amount of any liabilities of the Company and its Subsidiaries for Tax purposes as of the Effective Time shall be allocated consistent with past practice among the assets of the Company and its Subsidiaries (including the Management Agreement) as reasonably proposed by the Sellers’ ' Representative in good faith and shall be set forth in a schedule produced by the Sellers’ ' Representative and delivered to the Buyer within seventy-five (75) days following the Closing Date (the “Allocation Schedule”"ALLOCATION SCHEDULE"). The Buyer shall have an opportunity to review the proposed Allocation Schedule for a period of 20 days after receipt of the proposed Allocation Schedule. If the Buyer disagrees with any aspect of the proposed Allocation Schedule, the Buyer shall notify the Sellers’ ' Representative, in writing, prior to the end of such 20-day period (an “Allocation Objection Notice”"ALLOCATION OBJECTION NOTICE"), setting forth the Buyer’s 's proposed Allocation Schedule and specifying, in reasonable detail, any good faith dispute as to the Sellers’ ' Representative’s 's Allocation Schedule. If prior to the conclusion of such 20-day period, the Buyer notifies the Sellers’ ' Representative in writing that it will not provide any Allocation Objection Notice or if the Buyer does not deliver an Allocation Objection Notice within such 20-day period, then the proposed Allocation Schedule shall be deemed final and conclusive and binding upon each of the parties hereto (a “Final Allocation Schedule”"FINAL ALLOCATION SCHEDULE"). The Sellers’ ' Representative and the Buyer shall use commercially reasonable efforts to resolve any objection by the Buyer to the proposed Allocation Schedule and to agree upon a Final Allocation Schedule. If within 10 days after the Sellers’ ' Representative receives an Allocation Objection Notice the Buyer and the Sellers’ ' Representative have not resolved all objections and agreed upon a Final Allocation Schedule, the Buyer and the Sellers’ ' Representative shall engage a mutually acceptable independent accounting firm of national recognition (the “Independent Accounting Firm”"INDEPENDENT ACCOUNTING FIRM") to determine whether the Sellers’ ' Representative’s 's position with respect to any remaining disputed items, as set forth in the proposed Allocation Schedule, are reasonable. Any disputed items that are so determined by the Independent Accounting Firm to be reasonable shall be included in the Final Allocation Schedule as proposed by the Sellers’ ' Representative. Any disputed items that are so determined by the Independent Accounting Firm not to be reasonable shall be adjusted by the Independent Accounting Firm to be reasonable, and such adjusted amounts shall be included in the Final Allocation Schedule. The Buyer and the Sellers’ ' Representative shall have the opportunity to present their position with respect to any disputed items to the Independent Accounting Firm and shall use commercially reasonable efforts to cause the Independent Accounting Firm, within 20 days after its selection, to make the above-described determinations and to prepare a Final Allocation Schedule in accordance therewith. Unless the Buyer and the Sellers’ ' Representative otherwise agree, such Final Allocation Schedule shall not modify items previously agreed. The fees and disbursements of the Independent Accounting Firm shall be shared equally by the Buyer, on the one hand, and the Members that held issued and outstanding Membership Interests as of immediately prior to the Effective Time (pro rata in proportion to the respective amounts paid to such Members pursuant to Section 3.2(a)), on the other hand; provided, which amounts payable by however, that the Buyer may (but shall not be obligated to) elect, at any time, to withdraw all (but not less than all) of the aggregate amount of such fees and disbursements allocable to such Members shall be paid solely from the Sellers’ Representative Expense FundIndemnity Escrow Fund in accordance with the Escrow Agreement. The parties shall, and shall cause their respective Affiliates to, use the allocations set forth in the Final Allocation Schedule for all Tax purposes, file all Tax Returns in a manner consistent with such Final Allocation Schedule and take no position contrary thereto, in each case, unless required to do so by a change in applicable Tax Laws or a good faith resolution of a Tax contest.