Common use of Apportionment Clause in Contracts

Apportionment. For purposes of this Agreement, in order to apportion Taxes relating to a Straddle Period, the Parties hereto shall, to the extent permitted or required under applicable Law, treat the Closing Date (as of the end of the Closing Date) as the last day of the taxable year or period of the Acquired Companies for all Tax purposes. In any case where applicable Law does not permit the Acquired Companies to treat the Closing Date as the last day of the taxable year or period, the portion of any Taxes that are allocable to the Pre-Closing Tax Period shall be (x) in the case of Taxes that are imposed on a periodic basis, the amount of such Taxes for the entire period (or, in the case of such Taxes determined on an arrears basis (such as real property taxes), the amount of such Taxes for the immediately preceding period) multiplied by a fraction the numerator of which is the number of calendar days in the Straddle Period ending on (and including) the Closing Date (as of the end of the Closing Date) and the denominator of which is the number of calendar days in the entire relevant Straddle Period; and (y) in the case of Taxes not described in (x), the amount that would be payable if the taxable year or period ended on the Closing Date (as of the end of the Closing Date) based on an interim closing of the books (and for such purpose, the taxable period of any entity in which the Acquired Companies hold a beneficial interest will be deemed to terminate at such time). For purposes of clause (y) of the preceding sentence, any exemption, deduction, credit or other item that is calculated on an annual basis shall be allocated to the portion of the Straddle Period ending on the Closing Date on a pro rata basis, determined by multiplying the entire amount of such item allocated to the Straddle Period by a fraction, the numerator of which is the number of calendar days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period. 138

Apportionment. For purposes of this Agreement, in order to apportion appropriately any Taxes relating to a Straddle Period, the Parties hereto shall, to the extent permitted or required under applicable Law, treat the Closing Date (as of the end close of the Closing Datebusiness) as the last day of the taxable year or period of the Acquired Companies Entities for all Tax purposes. In any case where applicable Law does not permit the Acquired Companies any Entity to treat the Closing Date as the last day of the taxable year or period, the portion of any Taxes that are allocable to the Pre-Closing Tax Straddle Period shall be (x) in the case of Taxes that are imposed on a periodic basis, the amount of such Taxes for the entire period (or, in the case of such Taxes determined on an arrears basis (such as real property taxes), the amount of such Taxes for the immediately preceding period) multiplied by a fraction the numerator of which is the number of calendar days in the Straddle Period ending on (and including) the Closing Date (as of the end close of the Closing Datebusiness) and the denominator of which is the number of calendar days in the entire relevant Straddle Period; and (y) in the case of Taxes not described in (x), the amount that would be payable if the taxable year or period ended on the Closing Date (as of the end close of the Closing Datebusiness) based on an interim closing of the books (and for such purpose, the taxable period of any entity in which the Acquired Companies hold an Entity holds a beneficial interest will be deemed to terminate at such time). For purposes of clause (y) of the preceding sentence, any exemption, deduction, credit or other item that is calculated on an annual basis shall be allocated to the portion of the Straddle Period ending on the Closing Date on a pro rata basis, determined by multiplying the entire amount of such item allocated to the Straddle Period by a fraction, the numerator of which is the number of calendar days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period. 138In the case of any Tax based upon or measured by capital (including net worth or long-term debt) or intangibles, any amount thereof required to be allocated under this Section 12.2 shall be computed by reference to the level of such items on the Closing Date.

Apportionment. For purposes of this Agreementsection, in order to apportion the case of any Taxes relating to that are payable for a Straddle Period, the Parties hereto shall, portion of such Tax that relates to the extent permitted or required under applicable Law, treat portion of such taxable period ending on the Closing Date shall (as of the end of the Closing Date) as the last day of the taxable year or period of the Acquired Companies for all Tax purposes. In any case where applicable Law does not permit the Acquired Companies to treat the Closing Date as the last day of the taxable year or period, the portion of any Taxes that are allocable to the Pre-Closing Tax Period shall be (xi) in the case of the Taxes that are imposed other than Taxes based on a periodic basisor related to income or receipts, be deemed to be the amount of such Taxes Tax for the entire taxable period (or, in the case of such Taxes determined on an arrears basis (such as real property taxes), the amount of such Taxes for the immediately preceding period) multiplied by a fraction fraction, the numerator of which is the number of calendar days in the Straddle Period taxable period ending on (and including) the Closing Date (as of the end of the Closing Date) and the denominator of which is the number of calendar days in the entire relevant Straddle Periodtaxable period; and (yii) in the case of Taxes not described in (x), any Tax based upon or related to income or receipts be deemed equal to the amount that which would be payable if the relevant taxable year or period ended on the Closing Date Date, provided that (as of the end of x) other than with respect to property placed in service after the Closing Date) based on an interim closing of the books (and for such purpose, the taxable period of any entity in which the Acquired Companies hold a beneficial interest will be deemed to terminate at such time). For purposes of clause (y) of the preceding sentenceexemptions, any exemptionallowances, deduction, credit credits or other item deductions that is are calculated on an annual basis (including depreciation and amortization deductions) shall be allocated between the period ending on the Closing Date and the period after the Closing Date in proportion to the number of days in each such period, (y) all income, gain or profit arising after the Closing at the Purchaser’s direction and outside of the ordinary course of business, shall be allocated to the portion of the Straddle Period beginning after the Closing Date (for the avoidance of doubt, the foregoing shall not apply to income, gain or profit arising from any Election), and (z) all Transaction Tax Deductions shall be allocated to the portion of the Straddle Period ending on the Closing Date in the manner agreed and stated on Schedule 7.4(a)(ii)(C)(ii). Any credits relating to a pro rata basisStraddle Period shall be taken into account as though the relevant taxable period ended at the Closing Date, determined by multiplying and the entire amount foregoing provisions are not intended to alter any obligation in respect of such item allocated Taxes for which Purchaser is expressly responsible for or otherwise obligated to pay under this Agreement (including Section 7.4(a)(i)). As and to the Straddle Period by extent applicable, Purchaser and Sellers agree to cause a fraction, the numerator of which is the number of calendar days in the portion termination of the Straddle Period ending on Company’s taxable year at the end of the Closing Date and shall not use any proration or per-share, per-day (or similar) method of allocating any amount ratably over the denominator of which is year that the number of calendar days in the entire Straddle Period. 138Closing occurs.

Apportionment. For purposes the sole purpose of this Agreement, in order to apportion appropriately apportioning any Taxes relating to a Straddle Periodperiod that includes (but that would not end on) the Closing Date, the Parties parties hereto shallwill, to the extent permitted or required under by applicable Lawlaw, elect with the relevant taxing authority to treat for all purposes the Closing Date (as of the end of the Closing Date) as the last day of the a taxable year or period of the Acquired Companies for all Tax purposesCompany. In any the case where applicable Law law does not permit the Acquired Companies Company to treat the Closing Date as the last day of the a taxable year or period, then for purposes of this Agreement, the portion of any Taxes such Tax that are allocable is attributable to the Pre-Company for the part of such taxable period that ends on the Closing Tax Period Date shall be (xa) in the case of Taxes a Tax that are imposed is not based on a periodic basisnet income, the total amount of such Taxes Tax for the entire full taxable period (or, in the case of such Taxes determined on an arrears basis (such as real property taxes), the amount of such Taxes for the immediately preceding period) multiplied by a fraction the numerator of which is the number of calendar days in the Straddle Period ending on (and including) that includes the Closing Date (as of the end of the Closing Date) and the denominator of which is the number of calendar days in the entire relevant Straddle Period; and (y) in the case of Taxes not described in (x), the amount that would be payable if the taxable year or period ended on the Closing Date (as of the end of the Closing Date) based on an interim closing of the books (and for such purpose, the taxable period of any entity in which the Acquired Companies hold a beneficial interest will be deemed to terminate at such time). For purposes of clause (y) of the preceding sentence, any exemption, deduction, credit or other item that is calculated on an annual basis shall be allocated to the portion of the Straddle Period ending on the Closing Date on a pro rata basis, determined by multiplying the entire amount of such item allocated to the Straddle Period multiplied by a fraction, the numerator of which is the number of calendar days in from the portion beginning of the Straddle Period ending on such taxable period to and including the Closing Date and the denominator of which is the total number of calendar days in such full taxable period, and (b) in the case of a Tax that is based on net income, the Tax that would be due with respect to such partial period, if such partial period were a full taxable period, A-22 28 apportioning income, gain, expenses, loss, deductions and credits equitably based on an interim closing of the books. The benefits of lower tax brackets and other similar benefits shall be apportioned in making the calculation of such allocated portions on the basis of the number of days in the entire Straddle Periodrespective Purchaser's and the Seller's holding periods for the taxable period beginning before and ending after the Closing Date. 138Within thirty days after the actual liability for such Taxes has been determined, the Purchaser and Seller shall jointly prepare a schedule detailing the calculation of the actual liability, including the allocations required under this Section 11.6. Promptly thereafter, the Purchaser or the Seller, as the case may be, shall make a payment to the other party reflecting the allocations. 11.7

Apportionment. For purposes All Taxes and Tax liabilities with respect to the income, property or operations of the Companies that relate to a Straddle Tax Period shall be apportioned to the Pre-Closing Tax Period as follows: (i) in the case of Taxes that are either (A) based upon or related to income, receipts, capital or net worth, or (B) imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible) (other than conveyances pursuant to this Agreement, in order to apportion which shall be governed by Section 5.07(b)), such Taxes relating to a Straddle Period, the Parties hereto shall, to the extent permitted or required under applicable Law, treat the Closing Date (as of the end of the Closing Date) as the last day of the taxable year or period of the Acquired Companies for all Tax purposes. In any case where applicable Law does not permit the Acquired Companies to treat the Closing Date as the last day of the taxable year or period, the portion of any Taxes that are allocable apportioned to the Pre-Closing Tax Period shall be deemed equal to the amount that would be payable based on an interim closing of the books as of the close of business on the Closing Date; and (xii) in the case of Taxes that are imposed on a periodic basisbasis other than those described in clause (i), including but not limited to property taxes and similar ad valorem obligations, such Taxes shall be deemed to be the amount of such Taxes for the entire period Straddle Tax Period (or, in the case of such Taxes determined on an arrears basis (such as real property taxes)basis, the amount of such Taxes for the immediately preceding period) ), multiplied by a fraction the numerator of which is the number of calendar days in the Straddle Period ending on (and including) the Closing Date (as of the end of the Closing Date) and the denominator of which is the number of calendar days in the entire relevant Straddle Period; and (y) in the case of Taxes not described in (x), the amount that would be payable if the taxable year or period ended on the Closing Date (as of the end of the Closing Date) based on an interim closing of the books (and for such purpose, the taxable period of any entity in which the Acquired Companies hold a beneficial interest will be deemed to terminate at such time). For purposes of clause (y) of the preceding sentence, any exemption, deduction, credit or other item that is calculated on an annual basis shall be allocated to the portion of the Straddle Period ending on the Closing Date on a pro rata basis, determined by multiplying the entire amount of such item allocated to the Straddle Period by a fraction, the numerator of which is the number of calendar days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of calendar days in the entire period. Section 5.07(b) shall control the allocation of the Taxes thereunder. Seller and its Affiliates shall be liable for the payment of all Taxes of the Companies shown on any Tax Return prepared pursuant to Section 8.01(b) and Section 8.01(c) that are attributable to any Pre-Closing Tax Period or the pre-closing portion of any Straddle Period. 138Purchaser shall be liable for the payment of all Taxes that are attributable to any Post-Closing Tax Period or the post-closing portion of any Straddle Period. Upon payment of any Straddle Period Taxes, Purchaser shall present a statement to Seller setting forth the amount of reimbursement to which Purchaser is entitled under this Section 8.01, together with such supporting evidence as is reasonably necessary to calculate the amount to be reimbursed. Seller shall make such reimbursement promptly but in no event later than 30 days after the presentation of such statement.

Apportionment. For purposes of this Agreement, in order to apportion Taxes relating to a Straddle Period, the Parties hereto shall, to the extent permitted or required under applicable Law, treat the Closing Date (as of the end of the Closing Date) as the last day of the taxable year or period of the Acquired Companies for all Tax purposes. In any case where applicable Law does not permit the Acquired Companies to treat the Closing Date as the last day of the taxable year or period, the portion of any Taxes that are allocable to the Pre-Closing Tax Period shall be (x) in the case of Taxes that are imposed on a periodic basis, the amount of such Taxes for real property, personal property, and similar taxes (not based on income, profits or gains) relating to the entire period Assets (or, in the case of such Taxes determined on an arrears basis (such as real property taxes“Property Taxes”), the amount of and any Tax refunds relating to such Taxes for the immediately preceding period) multiplied by a fraction the numerator of which is the number of calendar days in the Straddle Period ending on (and including) the Closing Date (as of the end of the Closing Date) and the denominator of which is the number of calendar days in the entire relevant Straddle Period; and (y) in the case of Taxes not described in (x)Property Taxes, the amount that would be payable if the taxable year or period ended on the Closing Date (as of the end of the Closing Date) based on an interim closing of the books (and for such purpose, the taxable period of any entity in which the Acquired Companies hold a beneficial interest will be deemed to terminate at such time). For purposes of clause (y) of the preceding sentence, any exemption, deduction, credit or other item that is calculated on an annual basis shall be allocated attributable to the portion of the Straddle Period ending on the day before the Closing Date on a pro rata basis, determined by multiplying shall equal the Taxes for the entire amount of such item allocated to the Straddle Period multiplied by a fraction, the numerator of which is the number of calendar days in the portion of the Straddle Period period ending on the day before the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period; provided, however, if as a result of the purchase of the Assets, the value of any Asset is reassessed for purposes of determining the amount of any Property Tax, any resulting increase in Tax for such Straddle Period shall be treated as being solely with respect to the portion of the Straddle Period beginning on the Closing Date. 138For any Taxes other than Property Taxes (such as franchise Taxes, Taxes that are based upon or related to income or receipts or net income, Taxes based upon production or occupancy or imposed in connection with any sale or other transfer or assignment of property) for a Straddle Period the amount of any such Taxes attributable to the pre-Closing portion such Straddle Period shall be determined based upon a hypothetical closing of the taxable year on such Closing Date with the Closing Date being included in the pre-Closing portion of such Straddle Period. Notwithstanding any provision in this Agreement to the contrary, the Buyer shall not be required to make any payment or disbursal to Parent, any Seller, or any Governmental Authority relating to any Taxes attributable to the Assets or the Business for a taxable year (or portion thereof) ending on or before the Closing Date. Each Party agrees to cooperate with each other Party in paying or reimbursing their respective Tax obligations in accordance with this Section 8.12.

Apportionment. For purposes To the extent permissible under applicable Legal Requirements, the parties agree to elect to have each Tax year of this Agreementthe Blocker, the Company and each Subsidiary of the Company to end on the Closing Date (provided, that the Company shall not be required to terminate as a partnership for U.S. federal and applicable state or local income tax purposes) and, if such election is not permitted or required in order a jurisdiction with respect to apportion Taxes relating a specific Tax such that the Blocker, the Company or any Subsidiary of the Company is required to file a Tax Return for a Straddle Period, to utilize the Parties hereto shall, following conventions for determining the amount of Taxes attributable to the extent permitted or required under applicable Law, treat the Closing Date (as portion of the end of Straddle Period ending on the Closing Date) as the last day of the taxable year or period of the Acquired Companies for all Tax purposes. In any case where applicable Law does not permit the Acquired Companies to treat the Closing Date as the last day of the taxable year or period, the portion of any Taxes that are allocable to the Pre-Closing Tax Period shall be : (xa) in the case of property taxes and other similar Taxes that are imposed on a periodic basis, the amount of such Taxes for the entire period (or, in the case of such Taxes determined on an arrears basis (such as real property taxes), the amount of such Taxes for the immediately preceding period) multiplied by a fraction the numerator of which is the number of calendar days in the Straddle Period ending on (and including) the Closing Date (as of the end of the Closing Date) and the denominator of which is the number of calendar days in the entire relevant Straddle Period; and (y) in the case of Taxes not described in (x), the amount that would be payable if the taxable year or period ended on the Closing Date (as of the end of the Closing Date) based on an interim closing of the books (and for such purpose, the taxable period of any entity in which the Acquired Companies hold a beneficial interest will be deemed to terminate at such time). For purposes of clause (y) of the preceding sentence, any exemption, deduction, credit or other item that is calculated on an annual basis shall be allocated attributable to the portion of the Straddle Period ending on the Closing Date on a pro rata basis, determined by multiplying shall equal the Taxes for the entire amount of such item allocated to the Straddle Period multiplied by a fraction, the numerator of which is the number of calendar days in the portion of the Straddle Period period ending on (and including) the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period; (b) in the case of all other Taxes (including Income Taxes, sales taxes, employment taxes, and withholding taxes), the amount attributable to the portion of the Straddle Period ending on the Closing Date shall be determined as if the applicable Person filed a separate Tax Return with respect to such Taxes for the portion of the Straddle Period ending as of the end of the day on the Closing Date using a “closing of the books methodology;” provided, that with respect to the Income Tax Straddle Periods of the Company, all items of taxable income and deductions and other relevant tax items will be allocated based on an interim closing of the books under Section 1.706-4 of the Treasury Regulations as of the end of the Closing Date and the adoption of the calendar day convention pursuant to Section 1.706-4(c)(1)(i) of the Treasury Regulations. 138For purposes of clause (b), any item determined on an annual or periodic basis (including amortization and depreciation deductions) shall be allocated to the portion of the Straddle Period ending on (and including) the Closing Date based on the relative number of days in such portion of the Straddle Period as compared to the number of days in the entire Straddle Period. For all purposes of this Agreement, the Parties agree that, to the extent allowed by applicable Legal Requirements by applying a “more likely than not” standard of assurance or otherwise agreed to by the Parties, each of Buyer, Blocker, the Company and its Subsidiaries agrees to report any deductions, expenses, losses or similar items resulting from any Transaction Expenses or any similar payments paid or accrued in connection with the transactions contemplated by this Agreement on or prior to the Closing Date (“Transaction Deductions”) as begin deductible for Income Tax purposes on or before the Closing Date in the Pre-Closing Tax Period or the portion of the Straddle Period ending on (and including) the Closing Date.

Apportionment. For purposes of this Agreement, in order to apportion appropriately any Taxes relating to a Straddle Period, the Parties hereto shall, to the extent permitted or required under applicable Law, treat the Closing Date (as of the end of the Closing Date) as the last day of the taxable year or period of the Acquired Companies for all Tax purposes. Any Pre-Closing Taxes shall be determined without regard to any activities or operations of the Acquired Companies outside the ordinary course of business on the Closing Date but following the Closing. In any case where applicable Law does not permit the Acquired Companies to treat the Closing Date as the last day of the taxable year or period, the portion of any Taxes that are allocable to the Pre-Closing Tax Straddle Period shall be (x) in the case of Taxes that are imposed on a periodic basis, the amount of such Taxes for the entire period (or, in the case of such Taxes determined on an arrears basis (such as real property taxes), the amount of such Taxes for the immediately preceding period) multiplied by a fraction the numerator of which is the number of calendar days in the Straddle Period ending on (and including) the Closing Date (as of the end of the Closing Date) and the denominator of which is the number of calendar days in the entire relevant Straddle Period; and (y) in the case of Taxes not described in (x), the amount that would be payable if the taxable year or period ended on the Closing Date (as of the end of the Closing Date) based on an interim closing of the books (and for such purpose, the taxable period of any entity in which the Acquired Companies hold a beneficial interest will be deemed to terminate at such time). For purposes of clause (y) of the preceding sentence, any exemption, deduction, credit or other item that is calculated on an annual basis shall be allocated to the portion of the Straddle Period ending on the Closing Date on a pro rata basis, determined by multiplying the entire amount of such item allocated to the Straddle Period by a fraction, the numerator of which is the number of calendar days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period. 138In the case of any Tax based upon or measured by capital (including net worth or long-term debt) or intangibles, any amount thereof required to be allocated under this Section 6.3(c) shall be computed by reference to the level of such items on the Closing Date.

Apportionment. For purposes To the extent permissible under applicable Legal Requirements, the parties agree to elect (and have the Company and each Subsidiary of this Agreementthe Company elect) to have each Tax year of the Company and each Subsidiary of the Company to end on the Closing Date and, if such election is not permitted or required in order a jurisdiction with respect to apportion Taxes relating a specific Tax such that the Company or any Subsidiary of the Company is required to file a Tax Return for a Straddle Period, to utilize the Parties hereto shall, following conventions for determining the amount of Taxes attributable to the extent permitted or required under applicable Law, treat the Closing Date (as portion of the end of Straddle Period ending on the Closing Date) as the last day of the taxable year or period of the Acquired Companies for all Tax purposes. In any case where applicable Law does not permit the Acquired Companies to treat the Closing Date as the last day of the taxable year or period, the portion of any Taxes that are allocable to the Pre-Closing Tax Period shall be : (xa) in the case of property Taxes that are and other similar Taxes imposed on a periodic basis, the amount of such Taxes for the entire period (or, in the case of such Taxes determined on an arrears basis (such as real property taxes), the amount of such Taxes for the immediately preceding period) multiplied by a fraction the numerator of which is the number of calendar days in the Straddle Period ending on (and including) the Closing Date (as of the end of the Closing Date) and the denominator of which is the number of calendar days in the entire relevant Straddle Period; and (y) in the case of Taxes not described in (x), the amount that would be payable if the taxable year or period ended on the Closing Date (as of the end of the Closing Date) based on an interim closing of the books (and for such purpose, the taxable period of any entity in which the Acquired Companies hold a beneficial interest will be deemed to terminate at such time). For purposes of clause (y) of the preceding sentence, any exemption, deduction, credit or other item that is calculated on an annual basis shall be allocated attributable to the portion of the Straddle Period ending on the Closing Date on a pro rata basis, determined by multiplying shall equal the Taxes for the entire amount of such item allocated to the Straddle Period multiplied by a fraction, the numerator of which is the number of calendar days in the portion of the Straddle Period period ending on (and including) the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period. 138; and (b) in the case of all other Taxes (including income Taxes, sales Taxes, employment Taxes, and withholding Taxes), the amount attributable to the portion of the Straddle Period ending on the Closing Date shall be determined as if the Company or Subsidiary filed a separate Tax Return with respect to such Taxes for the portion of the Straddle Period ending as of the end of the day on the Closing Date using a “closing of the books methodology.” For purposes of clause (b), (1) any item determined on an annual or periodic basis (including amortization and depreciation deductions) shall be allocated to the portion of the Straddle Period ending on (and including) the Closing Date based on the relative number of days in such portion of the Straddle Period as compared to the number of days in the entire Straddle Period; (2) Transaction Tax Deductions incurred in a Straddle Period shall be allocated to the portion of the Straddle Period ending on the Closing Date; and (3) any Taxes or items of income or gain attributable to a transaction engaged in on the Closing Date (but after the Closing) that is outside the Ordinary Course of Business and is not contemplated by the Transaction Documents shall be allocated to the portion of the Straddle Period beginning on the day after the Closing Date.