Investment Unit Allocation. The Company agrees, and by acceptance of any Warrant, each initial Holder is deemed to have agreed, (i) that the Term Loans and the Warrants issued on the Closing Date, taken together, comprise an “investment unit” for purposes of Section 1273(c)(2) of the Internal Revenue Code, (ii) to treat the investment unit as issued by the Company for U.S. federal income tax purposes and (iii) to allocate the purchase price of such investment unit among the Term Loans and the Warrants in proportion to their fair market value as of the Closing Date, in accordance with Treasury Regulations Section 1.1273-2(h). The 2024 Term Loan Lenders shall determine in good faith the fair market value of the Warrants for purposes of allocating the issue price of the investment unit between the Term Loan and the Warrants, as described in clause (iii) above, notice of which shall be provided in writing to the Company; provided, however, that if the Company objects in writing to the fair market value as determined by the Lenders within ten (10) Business Days after the Lenders give written notice thereof, the Company shall engage an independent, reputable appraiser selected jointly by the Company and the Lenders, to determine such fair market value. The fees and expenses of such appraiser shall be paid by the Company. Furthermore, the Company agrees, and by acceptance of any Warrant, each initial Holder is deemed to have agreed, to treat the amendments of warrants pursuant to the Warrant Agreement Amendment and the Additional Warrant Agreement Amendment, as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended. Unless otherwise required by applicable law, the Company agrees, and, by acceptance of any Warrant, each initial Holder is deemed to have agreed, to file all tax returns in a manner consistent with this Section 4.10. For purposes of this Section 4.10, the Defined terms used but not defined herein shall have the meanings given to them in the Loan Agreement.
Investment Unit Allocation. Borrower and each Lender hereby agree that the Term Loan made on the Funding Date and the Closing Date Warrant, taken together, comprise an “investment unit” for purposes of Section 1273(c)(2) of the Internal Revenue Code and to allocate the issue price of such investment unit among the Term Loan and the Closing Date Warrant in proportion to their fair market value as of the Closing Date, in accordance with Treasury Regulations Section 1.1273-2(h). Within 90 days following the First Amendment Effective Date, Borrower shall deliver to each Lender a proposed allocation of the issue price allocated between the Term Loan and the Closing Date Warrant. Each Lender shall have 30 days following delivery of such proposed allocation to review. In the event that any Lender objects in writing to such proposed allocation within such 30-day period, Borrower and each Lender (i) shall negotiate in good faith to resolve any disagreement relating to the proposed allocation and (ii) in the event that any such disagreement cannot be resolved, shall engage a mutually- agreed accounting firm (the “Accounting Firm”) to resolve such dispute as promptly as practicable but in any event within 15 Business Days, with the costs of such Accounting Firm borne equally by Borrower, on the one hand, and the Lenders, on the other hand. Borrower and each Lender agree to file all tax returns in a manner consistent with the agreed allocation or the allocation determined by the Accounting Firm, as the case may be.
Investment Unit Allocation. The Company agrees, and by acceptance of any Warrant, each initial Holder is deemed to have agreed, (i) that the Term Loan (as defined under the Loan Agreement) disbursed to the Borrower on the Closing Date and the Warrants issued on the Closing Date, taken together, comprise an “investment unit” for purposes of Section 1273(c)(2) of the Internal Revenue Code, (ii) to treat the investment unit as issued by the Company for U.S. federal income tax purposes and (iii) to allocate the issue price of such investment unit among the Term Loan and the Warrants in proportion to their fair market value as of the Closing Date, in accordance with Treasury Regulations Section 1.1273-2(h). The Lenders shall determine in good faith the fair market value of the Warrants for purposes of allocating the issue price of the investment unit between the Term Loan and the Warrants, as described in clause (iii) above, notice of which shall be provided in writing to the Company; provided, however, that if the Company objects in writing to the fair market value as determined by the Lenders within ten (10) Business Days after the Lenders give written notice thereof, the Company shall engage an independent, reputable appraiser selected jointly by the Company and the Lenders, to determine such fair market value. The fees and expenses of such appraiser shall be paid by the Company. Unless otherwise required by applicable law, the Company agrees, and, by acceptance of any Warrant, each initial Holder is deemed to have agreed, to file all tax returns in a manner consistent with this Section 4.10.
Investment Unit Allocation. Each Loan Party and each Lender hereby agree (i) that the Term Loan disbursed to the Borrower on the Closing Date and the Warrants issued on the Closing Date, taken together, comprise an “investment unit” for purposes of Section 1273(c)(2) of the Internal Revenue Code, (ii) to treat the investment unit as issued by the Parent for U.S. federal income tax purposes and (iii) to allocate the issue price of such investment unit among the Term Loan and the Warrants in proportion to their fair market value as of the Closing Date, in accordance with Treasury Regulations Section 1.1273-2(h). The Lenders shall determine in good faith the fair market value of the Warrants for purposes of allocating the issue price of the investment unit between the Term Loan and the Warrants, as described in clause (iii) above, notice of which shall be provided in writing to the Borrower; provided, however, that if the Borrower objects in writing to the fair market value as determined by the Lenders within ten (10) Business Days after the Lenders give written notice thereof, the Borrower shall engage an independent, reputable appraiser selected jointly by the Borrower and the Lenders, to determine such fair market value. The fees and expenses of such appraiser shall be paid by the Borrower. Unless otherwise required by Applicable Law, Borrower each Loan Party and each Lender agree to file all tax returns in a manner consistent with this Section 2.12.
