Common use of Intended Tax Treatment; Allocation Clause in Contracts

Intended Tax Treatment; Allocation. (a) The Parties acknowledge and agree that, for U.S. federal (and, where applicable, state and local) income Tax purposes pursuant to Revenue Ruling 99-6, 1999-1 C.B. 432, the purchase of the Units pursuant to this Agreement shall be treated by the Purchaser as a purchase of the assets of the Target Company, subject to the liabilities of the Target Company as of the Closing Date, and by the Sellers as a sale of their respective Units. Furthermore, with the consideration for the redemption of the Motley Perforator Class B Units and the Motley Coil Class B Units under the Motley Perforator Redemption Agreements and Motley Coil Redemption Agreements effectively coming from Purchaser, the Parties acknowledge and agree that, for U.S. federal (and, where applicable, state and local) income Tax purposes, the acquisition of each of such Motley Perforator Class B Units and Motley Coil Class B Units shall also be treated as a transaction pursuant to Revenue Ruling 99-6, 1999-1 C.B. 432, whereby the redemption of such Motley Perforator Class B Units and Motley Coil Class B Units shall be treated by Purchaser as a purchase of an undivided interest in the assets of Motley Perforator or Motley Coil, subject to the liabilities thereof, as the case may, and by such Motley Perforator Class B Unitholders or Motley Coil Class B Unitholders, as a sale of their respective Motley Perforator Class B Units and/or Motley Coil Class B Units. (b) On, or prior to, the Closing, the Purchaser shall prepare and provide the Seller Representative with the Purchaser’s best estimate of the allocation, prepared in accordance with Section 1060 of the Code, of the Cash Consideration (plus any other relevant items) and the liabilities of the Target Group Companies (plus other relevant items) to the assets of each of the Target Group Companies (the Estimated Allocation). Within sixty (60) days of the Closing, the Seller Representative shall provide the Purchaser with written comments on the Estimated Allocation. Within ninety (90) days of the Closing, the Purchaser shall prepare and provide to the Seller Representative, taking into account reasonable written comments of the Sellers, a final version of that allocation (the Final Allocation). The Seller Representative shall notify the Purchaser if the Sellers disagree with the Final Allocation within fifteen (15) days of receipt. In the event the Seller Representative notifies the Purchaser of the Sellers’ disagreement with the Final Allocation, the disagreement shall be resolved by a mutually agreed upon nationally recognized accounting firm, whose determination shall be final and binding on the Parties, with fees of such accounting firm borne fifty percent (50%) by the Sellers and fifty percent (50%) by the Purchaser. The Parties and their respective Affiliates shall prepare and file all Tax Returns in a manner not inconsistent with this Section 2.05, and shall not take any position for Tax purposes (including in any audit or other examination or proceeding relating to Taxes) inconsistent with this Section 2.05 unless required to do so by Applicable Law.

Intended Tax Treatment; Allocation. (a) The Parties acknowledge and agree that, for For U.S. federal (and, where applicablefederal, state and local) income local Income Tax purposes pursuant to Revenue Ruling 99-6, 1999-1 C.B. 432purposes, the purchase and sale of the Units pursuant to this Agreement Purchased Interests described in Section 2.1 shall be treated by treated, with respect to the Purchaser Purchase Price, as a purchase of a partnership interest in the Company by the Buyer that is subject to the adjustments provided for under Section 743(b) of the Code, reflecting the election to be made under Section 754 of the Code by the Company for the tax period including Closing Date. Consistent with such election, the Buyer will prepare a draft allocation schedule (as finally determined in accordance with this Section 2.5, the “Allocation”) allocating the sum of the Purchase Price, the Buyer’s allocable share of the liabilities of the Company and other amounts constituting consideration for U.S. federal, state and local Income Tax purposes (the “Tax Purchase Price”) among the Buyer’s allocable share of the assets of the Target Company, subject to the liabilities of the Target Company as of the Closing Date, and by the Sellers as a sale of their respective Units. Furthermore, with the consideration for the redemption of the Motley Perforator Class B Units and the Motley Coil Class B Units under the Motley Perforator Redemption Agreements and Motley Coil Redemption Agreements effectively coming from Purchaser, the Parties acknowledge and agree that, for U.S. federal (and, where applicable, state and local) income Tax purposes, the acquisition of each of such Motley Perforator Class B Units and Motley Coil Class B Units shall also be treated as a transaction pursuant to Revenue Ruling 99-6, 1999-1 C.B. 432, whereby the redemption of such Motley Perforator Class B Units and Motley Coil Class B Units shall be treated by Purchaser as a purchase of an undivided interest in the assets of Motley Perforator or Motley Coil, subject to the liabilities thereof, as the case may, and by such Motley Perforator Class B Unitholders or Motley Coil Class B Unitholders, as a sale of their respective Motley Perforator Class B Units and/or Motley Coil Class B Units. (b) On, or prior to, the Closing, the Purchaser shall prepare and provide the Seller Representative with the Purchaser’s best estimate of the allocation, prepared in accordance with Section 1060 755 of the Code, of the Cash Consideration (plus any other relevant items) Code and the liabilities Treasury Regulations promulgated thereunder (and any corresponding or similar provision of the Target Group Companies (plus other relevant items) to the assets of each of the Target Group Companies (the Estimated Allocation). Within sixty (60) days of the Closing, the Seller Representative shall provide the Purchaser with written comments on the Estimated Allocation. Within ninety (90) days of the Closing, the Purchaser shall prepare and provide to the Seller Representative, taking into account reasonable written comments of the Sellers, a final version of that allocation (the Final Allocationstate or local Law). The Seller Representative shall notify Buyer or the Purchaser if Company will deliver a copy of the Sellers disagree with the Final Allocation within fifteen (15) days of receipt. In the event the Seller Representative notifies the Purchaser of to the Sellers’ disagreement with Representative for its review and comment within 60 days following the Final final determination of the Purchase Price Adjustment pursuant to Section 2.4. The Allocation delivered by the Buyer shall become final and binding to the Parties 30 days after the Buyer or the Company provides such schedule to the Sellers’ Representative, unless the Sellers’ Representative, prior the 30th-day following receipt of the Buyer’s draft of the Allocation, delivers a notice to the disagreement Buyer stating that the Sellers’ Representative disagrees with such calculation and specifying in reasonable detail those items or amounts as to which the Sellers’ Representative disagrees and the basis therefor. If the Sellers’ Representative does provide such written notice, the Buyer and the Sellers’ Representative shall in good faith attempt to resolve the dispute within 15 days of receipt by the Buyer of the written notice. Any such resolution shall be resolved by a mutually agreed upon nationally recognized accounting firmfinal and binding on the Parties hereto. Any unresolved disputes shall be promptly submitted to the Independent Accountant for determination of the Allocation in accordance with Section 2.4(d), whose which determination shall be final and binding on the Parties, with fees of such accounting firm borne fifty percent (50%) by the Sellers and fifty percent (50%) by the PurchaserParties hereto. The Parties shall cooperate with each other and their respective Affiliates shall prepare the Independent Accountant in connection with the matters contemplated by this Section 2.5, including by furnishing such information and file all Tax Returns access to books, records (including accountants work papers), personnel and properties as may be reasonably requested. The Independent Accountant will determine the allocation of the cost of its review and report in a manner not inconsistent as described in Section 2.4(d). The Parties shall report the purchase and sale of the Purchased Interests consistent with the treatment set forth in this Section 2.05, 2.5 and report an allocation of the Tax Purchase Price for all Tax purposes in a manner consistent with the Allocation and shall not take any position for Tax purposes (including in any audit or other examination or proceeding relating to Taxes) inconsistent with this Section 2.05 unless required 2.5 in the filing of any Tax Returns or in the course of any Tax Audit by any Taxing Authority relating to do so by Applicable Lawany Tax Returns.

Intended Tax Treatment; Allocation. (a) The Parties acknowledge and agree that, for U.S. federal (and, where applicable, state and local) income Tax purposes pursuant to Revenue Ruling 99-6, 1999-1 C.B. 432, the purchase of the Units pursuant to this Agreement shall be treated by the Purchaser as a purchase of the assets of the Target Company, subject to the liabilities of the Target Company as of the Closing Date, and by the Sellers as a sale of their respective Units. Furthermore, with the consideration for the redemption of the Motley Perforator Class B Units and the Motley Coil Class B Units under the Motley Perforator Redemption Agreements and Motley Coil Redemption Agreements effectively coming from Purchaser, the Parties acknowledge and agree that, for U.S. federal (and, where applicable, state and local) income Tax purposes, the acquisition of each of such Motley Perforator Class B Units and Motley Coil Class B Units Transaction shall also be treated as a transaction pursuant to Revenue Ruling 99-6, 1999-1 C.B. 432, whereby sale of the redemption Interests by Seller and purchase by Buyer of such Motley Perforator Class B Units and Motley Coil Class B Units shall be treated by Purchaser as a purchase of an undivided interest in the assets of Motley Perforator the Company and its DRE Subsidiaries (other than any DRE Subsidiary that is owned, directly or Motley Coilindirectly, by a corporation) subject to the liabilities thereofof the Company and its DRE Subsidiaries (other than any DRE Subsidiary that is owned, directly or indirectly, by a corporation) as of the Closing Date, in each case may, in exchange for the Consideration and the distribution of the proceeds thereof by such Motley Perforator Class B Unitholders or Motley Coil Class B Unitholders, as a sale of their respective Motley Perforator Class B Units and/or Motley Coil Class B Units. (b) On, or prior to, the Closing, the Purchaser shall prepare and provide the Seller Representative with the Purchaser’s best estimate of the allocation, prepared in accordance with Section 1060 of the Code, of the Cash Consideration (plus any other relevant items) and the liabilities of the Target Group Companies (plus other relevant items) to the assets of each of the Target Group Companies (the Estimated Allocation)recipients thereof. Within sixty (60) days of the Closing, the Seller Representative shall provide the Purchaser with written comments on the Estimated Allocation. Within ninety (90) days of the Closing, the Purchaser shall prepare and provide to the Seller Representative, taking into account reasonable written comments of the Sellers, a final version of that allocation (the Final Allocation). The Seller Representative shall notify the Purchaser if the Sellers disagree with the Final Allocation within fifteen (15) days of receipt. In the event the Seller Representative notifies the Purchaser of the Sellers’ disagreement with the Final Allocation, the disagreement shall be resolved by a mutually agreed upon nationally recognized accounting firm, whose determination shall be final and binding on the Parties, with fees of such accounting firm borne fifty percent (50%) by the Sellers and fifty percent (50%) by the Purchaser. The Parties Buyer and their respective Affiliates shall report the Transaction and will prepare and file all Tax Returns in a manner not inconsistent consistent with this Section 2.051.14, and shall not take any position for Tax purposes (including in any audit Proceeding or other examination or proceeding relating to Taxesaudit) inconsistent with this Section 2.05 1.14 unless required to do so by Applicable applicable Law. Within sixty (60) days of the determination of the Final Closing Balance Sheet, Purchaser shall provide to Seller a schedule allocating the Consideration, as adjusted pursuant to ARTICLE 1, and as increased by the liabilities of the Seller and its DRE Subsidiaries (other than any DRE Subsidiary that is owned, directly or indirectly, by a corporation) as of the Closing Date (including, for the avoidance of doubt, the Debt Amount, the Permitted Indebtedness Amount, the Transaction Expenses Amount and the Redemption Amount) and other relevant items, shall be allocated among the assets of the Company and its DRE Subsidiaries (other than any DRE Subsidiary that is owned, directly or indirectly, by a corporation) (the “Allocation of Consideration Schedule”). If within the thirty (30) days of receiving the Allocation of Consideration Schedule, Seller has not objected, the Allocation of Consideration Schedule shall be final and binding. If within thirty (30) days Seller objects to the Allocation of Consideration Schedule, Seller and Buyer shall cooperate in good faith to resolve their differences, provided that if after thirty (30) days, Seller and Buyer are unable to agree, the parties shall retain Accountants to resolve their dispute. The cost of the Accountants in respect of the matters under this Section 1.14 shall be shared equally by Seller and Buyer. The parties hereto shall make appropriate adjustments to the Allocation of Consideration to reflect changes in the Consideration. The parties hereto agree for all Tax reporting purposes to report the transactions in accordance with the Allocation of Consideration Schedule, as adjusted pursuant to the preceding sentence, and to not take any position during the course of any audit or other proceeding inconsistent with such schedule unless required by a determination of the applicable Governmental Authority that is final.

Intended Tax Treatment; Allocation. (a) The Parties acknowledge For U.S. federal, state, and agree that, for U.S. federal (and, where applicable, state and local) local income Tax purposes pursuant to Revenue Ruling 99-6purposes, 1999-1 C.B. 432, Buyer and Seller shall treat the sale and purchase of the Units pursuant to this Agreement shall be treated by the Purchaser Membership Interests as contemplated herein as a purchase deemed sale by Seller to Buyer of the assets of the Target Company. The Final Closing Consideration, subject to the liabilities of the Target Company together with all other items treated as of the Closing Date, and by the Sellers as a sale of their respective Units. Furthermore, with the consideration for the redemption of the Motley Perforator Class B Units and the Motley Coil Class B Units under the Motley Perforator Redemption Agreements and Motley Coil Redemption Agreements effectively coming from Purchaserfederal income Tax purposes (collectively, the Parties acknowledge and agree that“Tax Consideration”), for U.S. federal (and, where applicable, state and local) income Tax purposes, the acquisition of each of such Motley Perforator Class B Units and Motley Coil Class B Units shall also be treated as a transaction pursuant to Revenue Ruling 99-6, 1999-1 C.B. 432, whereby the redemption of such Motley Perforator Class B Units and Motley Coil Class B Units shall be treated by Purchaser as a purchase of an undivided interest in allocated among the assets of Motley Perforator or Motley Coil, subject to the liabilities thereof, as the case may, and by such Motley Perforator Class B Unitholders or Motley Coil Class B Unitholders, as a sale of their respective Motley Perforator Class B Units and/or Motley Coil Class B Units. (b) On, or prior to, the Closing, the Purchaser shall prepare and provide the Seller Representative with the Purchaser’s best estimate of the allocation, prepared Company in accordance with Section 1060 of the Code, the Treasury Regulations thereunder, and the methodology set forth on Exhibit E (the “Allocation Methodology”). Buyer shall prepare an initial draft allocation of the Cash Tax Consideration applying the Allocation Methodology (plus any other relevant itemsthe “Purchase Price Allocation”) and the liabilities of the Target Group Companies deliver a copy thereof to Seller within thirty (plus other relevant items) to the assets of each of the Target Group Companies (the Estimated Allocation). Within sixty (6030) days of the Closingfinalization of the Final Closing Consideration pursuant to Section 1.02 for Seller’s review. If, the Seller Representative shall provide the Purchaser with written comments on the Estimated Allocation. Within ninety within thirty (9030) days of the Closing, the Purchaser shall prepare and provide to the Seller Representative, taking into account reasonable written comments receipt of the Sellers, a final version of that allocation (the Final Allocation). The Seller Representative shall notify the Purchaser if the Sellers disagree with the Final Allocation within fifteen (15) days of receipt. In the event the Seller Representative notifies the Purchaser of the Sellers’ disagreement with the Final Purchase Price Allocation, Seller has not objected to such Purchase Price Allocation, then the disagreement shall be resolved Purchase Price Allocation, as delivered by a mutually agreed upon nationally recognized accounting firmBuyer, whose determination shall be final and binding on all of the Parties. If Seller objects to the Purchase Price Allocation within thirty (30) days of receipt of the Purchase Price Allocation, with fees Seller and Buyer shall negotiate in good faith to resolve any disputed items. If, after thirty (30) days of negotiation Buyer and Seller fail to resolve any such accounting firm borne fifty percent (50%) disputed items, such disputed items shall be resolved by the Sellers Accountant using the procedures set forth in Sections 1.02(d)(iii)-(iv), applied mutatis mutandis. In resolving such dispute, the Accountant shall be instructed to apply the Allocation Methodology. The allocation of the Tax Consideration, as finally determined under this Section 8.05, shall be final and fifty percent (50%) by binding on all of the PurchaserParties. The Parties and their respective Affiliates (a) shall prepare and file all Tax Returns (including IRS Form 8594, amended Tax Returns and claims for refund) in a manner not inconsistent consistent with this Section 2.05the Purchase Price Allocation, as finally determined, (b) shall not, and shall cause their respective Affiliates not to, take any position for Tax purposes (including in any audit or other examination or proceeding relating to Taxes) inconsistent with this Section 2.05 the Purchase Price Allocation, as finally determined, on any filing or election or upon examination of any such filing or election unless required to do so by Applicable Lawa final “determination” within the meaning of Section 1313(a) of the Code, and (c) shall provide the other Party promptly with any other information required to complete IRS Form 8594. If any Governmental Authority disputes the Purchase Price Allocation as provided pursuant to this Section 8.05, the Party receiving notice of the dispute shall promptly notify the other Parties of such dispute. The Purchase Price Allocation as determined hereunder shall be revised in accordance with this Agreement to take into account any subsequent adjustment to the Tax Consideration.