Common use of Tax Treatment; Allocation of Purchase Price Clause in Contracts

Tax Treatment; Allocation of Purchase Price. The Parties acknowledge and agree that, the purchase and sale of the Interests shall be treated as the purchase by the Purchaser and sale by the Seller of all of the assets of the Company Group for U.S. federal (and applicable state and local) income Tax purposes. The Purchase Price (plus any assumed liabilities and other items, to the extent properly taken into account under the Code) shall be allocated among the assets of the Company Group in accordance with Section 1060 of the Code and the Treasury Regulations promulgated thereunder (and any similar provision of state, local or foreign Tax Law, as applicable) (the “Allocation Statement”), which Allocation Statement is consistent with the allocation methodology set forth on Schedule 9.2 hereof; provided, that none of the Purchase Price or other items taken into account shall be allocated to the Assumed Railcar Leases. The Allocation Statement shall be delivered by the Purchaser to the Seller within ninety (90) days after the Closing Date. The Seller shall have thirty (30) days to review and notify the Purchaser in writing of any reasonable disagreement with the Allocation Statement. If the Seller does not timely notify the Purchaser of any such disagreement with the Allocation Statement, the Seller shall be conclusively deemed to have accepted and agreed to the Allocation Statement. If the Seller notifies the Purchaser within thirty (30) days of any such disagreement, the Seller and the Purchaser shall use Commercially Reasonable Efforts to resolve such dispute within thirty (30) days. In the event that the Seller and the Purchaser are unable to resolve such dispute within thirty (30) days, then the Seller and the Purchaser shall each be entitled to adopt their own position regarding the Allocation Statement. If the Seller and the Purchaser agree (or are deemed to agree) to the Allocation Statement, then the Seller and the Purchaser shall, and shall cause their respective Affiliates to, (i) prepare and file all Tax Returns (including Internal Revenue Service Form 8594) in accordance with the agreed Allocation Statement, (ii) not take any position for Tax purposes (whether in any audit, Tax Return, or otherwise) that is inconsistent with the agreed Allocation Statement except as required by a “determination” within the meaning of Section 1313(a) of the Code, and (iii) use Commercially Reasonable Efforts to update the agreed Allocation Statement to reflect adjustments to the Purchase Price; provided, however, that nothing contained herein shall prevent the Seller or the Purchaser from reasonably settling any proposed deficiency or adjustment by any Governmental Body based upon or arising out of the agreed Allocation Statement or the tax treatment described above, and neither the Seller nor the Purchaser shall be required to litigate before any court any proposed deficiency or adjustment by any Governmental Body challenging the agreed Allocation Statement or the tax treatment described above.

Tax Treatment; Allocation of Purchase Price. (a) The Parties acknowledge and agree that, the purchase and sale of the Interests shall be treated for U.S. federal income tax purposes as the purchase by the Purchaser and a sale by the Seller of all of the assets and an assumption of all of the Company Group for U.S. federal (and applicable state and local) income Tax purposes. The Purchase Price (plus any assumed liabilities and other items, to the extent properly taken into account under the Code) shall be allocated among the assets of the Company Group in accordance with Section 1060 Companies and their respective Subsidiaries (other than, for the avoidance of doubt, the Code and the Treasury Regulations promulgated thereunder (and any similar provision of state, local or foreign Tax Law, as applicableExcluded Liabilities) (the “Allocation StatementTransaction Tax Treatment”), which Allocation Statement is consistent with the allocation methodology set forth on Schedule 9.2 hereof; provided, that none of the Purchase Price or other items taken into account shall be allocated to the Assumed Railcar Leases. The Allocation Statement shall be delivered by the Purchaser to the Seller within ninety (90) days after the Closing Date. The Seller shall have thirty (30) days to review and notify the Purchaser in writing of any reasonable disagreement with the Allocation Statement. If the Seller does not timely notify the Purchaser of any such disagreement with the Allocation Statement, the Seller shall be conclusively deemed to have accepted and agreed to the Allocation Statement. If the Seller notifies the Purchaser within thirty (30) days of any such disagreement, the Seller and the Purchaser shall use Commercially Reasonable Efforts to resolve such dispute within thirty (30) days. In the event that the Seller and the Purchaser are unable to resolve such dispute within thirty (30) days, then the Seller and the Purchaser shall each be entitled to adopt their own position regarding the Allocation Statement. If the Seller and the Purchaser agree (or are deemed to agree) to the Allocation Statement, then the Seller and the Purchaser shall, and shall cause their respective Affiliates to, ) (i) prepare and file all federal, state, local and non-U.S. Tax Returns (including Internal Revenue Service Form 8594) Returns, in accordance a manner consistent with the agreed Allocation StatementTransaction Tax Treatment, and (ii) not take any position for Tax purposes (whether in any audit, Tax Return, or otherwise) that is inconsistent with the agreed Allocation Statement except as unless otherwise required by applicable Law or otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the CodeCode (or any similar provision of applicable state, local or foreign Law), not take any position inconsistent therewith on any Tax Return, in connection with any Tax Proceeding or otherwise in respect of Taxes. (b) No later than 120 days after the Purchase Price is finally determined hereunder, or, if later, 90 days prior to the extended due date of the earlier of Purchaser’s or Seller’s federal income tax return for the tax year for which Form 8594 is required to be filed, Purchaser will prepare and deliver an allocation of the Purchase Price (and other relevant amounts) among the individual assets deemed purchased for U.S. federal income tax purposes, in accordance with Code Sections 338 and 1060 and the Treasury Regulations thereunder, as applicable (and any similar provisions of state, local or non-U.S. Law, as appropriate) - 21 - (“Purchaser’s Draft Allocation”). Within 30 days after Seller receives Purchaser’s Draft Allocation, if Seller disagrees with Purchaser’s Draft Allocation, Seller will provide Purchaser with a notice (the “Seller’s Allocation Notice”) to such effect, specifying those items as to which Seller disagrees and setting forth Seller’s proposed allocation of the Purchase Price (and other relevant amounts). If the Seller’s Allocation Notice is duly delivered, during the 20 days following such delivery, the Parties shall make their reasonable best efforts to negotiate in good faith in order to mutually agree upon the disputed items or amounts and to determine the allocation of the Purchase Price (and other relevant amounts). The Purchaser’s Draft Allocation, as prepared by Purchaser if no Seller’s Allocation Notice has been given, or as adjusted if Seller and Purchaser reach mutual agreement regarding the disputed items or amounts (the “Allocation”), will be binding upon the Parties, and (i) Seller, Seller Parent, Parent and Purchaser and their respective Affiliates will report and file Tax Returns (including, but not limited to, Internal Revenue Service Form 8594) in all respects and for all purposes consistent with such Allocation; (ii) each Party will timely and properly prepare, execute, file and deliver all such documents, forms and other information as any other Party may reasonably request in preparing such allocation; and (iii) use Commercially Reasonable Efforts none of Seller, Seller Parent, Parent, Purchaser, or any of their Affiliates will take any position (whether in any Tax Proceeding, on any Tax Return, or otherwise in respect of Taxes) that is inconsistent with such Allocation unless required to update do so pursuant to a “determination” within the agreed Allocation Statement meaning of Section 1313(a) of the Code (or any similar provision of applicable state, local or foreign Law). If, after their reasonable best efforts to reflect adjustments to negotiate in good faith, the Parties cannot mutually agree regarding the disputed items or amounts, each Party may separately determine the allocation of the Purchase Price; providedPrice (and other relevant amounts), however, that nothing contained herein shall prevent the Seller or the Purchaser from reasonably settling and no Party nor any proposed deficiency or adjustment of its Affiliates will be bound by any Governmental Body based upon comments or arising out disagreements of the agreed Allocation Statement any other Party with respect to such disputed items or the tax treatment described above, and neither the Seller nor the Purchaser shall be required to litigate before any court any proposed deficiency or adjustment by any Governmental Body challenging the agreed Allocation Statement or the tax treatment described above.amounts. 2.12

Tax Treatment; Allocation of Purchase Price. The Parties acknowledge For federal income Tax purposes (and agree thatfor applicable state and local income Taxes), the Parties agree and acknowledge that purchase and sale of the Membership Interests shall be treated as the a taxable purchase by the Purchaser and sale by the Seller of all of the assets of the Company Group for U.S. federal (and applicable state and local) income Tax purposesAcquired Entities. The Purchase Price (plus the value of the liabilities assumed together with any assumed liabilities and other items, to the extent properly taken into account under the Codeamounts included in purchase price for income Tax purposes) shall be allocated among the assets of the Company Group Acquired Entities for Tax purposes in accordance with the allocation methodology set forth in Schedule 6.2(k), which schedule shall be consistent with Section 1060 of the Code and the Treasury Regulations promulgated thereunder (and any similar provision provisions of state, local or foreign Tax Law, as applicable) (the “Allocation Statement”), which Allocation Statement is consistent with the allocation methodology set forth on Schedule 9.2 hereof; provided, that none of the Purchase Price or other items taken into account shall be allocated to the Assumed Railcar Leases. The Allocation Statement shall be delivered by the Purchaser to the Seller within Within ninety (90) days after the Closing Date, the Buyer shall provide the Seller Parties with a purchase price allocation consistent with the methodology set forth on Schedule 6.2(k) (“Allocation”). The Seller Parties shall have thirty (30) days review such Allocation and provide any proposed revisions to review and notify the Purchaser in writing of any reasonable disagreement with the Allocation Statement. If the Seller does not timely notify the Purchaser of any such disagreement with the Allocation Statement, the Seller shall be conclusively deemed to have accepted and agreed to the Allocation Statement. If the Seller notifies the Purchaser Buyer within thirty (30) days of any such disagreement, following receipt by the Seller and the Purchaser Parties. The Parties shall use Commercially Reasonable Efforts good faith reasonable efforts to resolve negotiate with respect to such dispute within thirty (30) daysproposed revisions. In If the event that the Seller and the Purchaser Parties are unable to resolve reach agreement with respect to such dispute Allocation within thirty sixty (3060) days, then days after delivery by the Seller Parties of its proposed revisions, any disputed items shall be resolved by RSM US LLC or another independent accounting firm reasonably satisfactory to the Buyer and the Purchaser Seller Parties (the “Independent Accountant”). The costs and expenses of the Independent Accountant shall each be entitled to adopt their own position regarding the Allocation Statement. If borne 50% by the Seller Parties and 50% by the Purchaser agree (Buyer. The Allocation, including all information that has been agreed to or are deemed finally determined by the Independent Accountant, shall be referred to agree) as the “Final Allocation.” Any adjustments to the Purchase Price after the date the allocation is determined pursuant to this Section 6.2(k) shall also be allocated among the Acquired Entities’ assets in a manner consistent with this Section 6.2(k). The Final Allocation Statement, then shall be binding upon the Seller Parties and the Purchaser shalltheir Affiliates for all Tax purposes, and shall cause their respective Affiliates to, each (i) prepare and file shall file, or cause to be filed, all applicable Tax Returns Returns, in accordance with such Final Allocation (including Internal Revenue Service on Form 8594) in accordance with the agreed Allocation Statement, and (ii) shall not take or permit its Affiliates to take any Tax position for Tax purposes (whether in any audit, Tax Return, or otherwise) that is inconsistent with the agreed such Final Allocation Statement except as unless required to do so by a “determination” within the meaning Taxing Authority. Buyer and Seller shall promptly advise each other of Section 1313(a) of the Code, and (iii) use Commercially Reasonable Efforts to update the agreed Allocation Statement to reflect adjustments any Tax audit or other legal proceeding relating to the Purchase Price; provided, however, that nothing contained herein shall prevent the Seller or the Purchaser from reasonably settling any proposed deficiency or adjustment by any Governmental Body based upon or arising out of the agreed Allocation Statement or the tax treatment described above, and neither the Seller nor the Purchaser shall be required to litigate before any court any proposed deficiency or adjustment by any Governmental Body challenging the agreed Allocation Statement or the tax treatment described abovecharacterization set forth in this Section 6.2(k).

Tax Treatment; Allocation of Purchase Price. The Parties acknowledge Buyer and Seller agree thatto treat, for U.S. federal income Tax purposes (and applicable state and local Tax purposes), the purchase and sale of all of the Interests shall be treated of the Company by Seller to Buyer pursuant to this Agreement as the purchase by the Purchaser and sale by the if Seller of sold to Buyer all of the assets of the Company Group in exchange for the amount treated as consideration for U.S. federal (and applicable state and local) income Tax purposespurposes (the “Agreed Tax Treatment”). The Within the later of (i) sixty (60) days after the Closing Date or (ii) forty-five (45) days following the final determination of the Final Adjustment Amount pursuant to Section 2.3, Buyer shall deliver to Seller a draft allocation of the Base Purchase Price (plus any assumed liabilities as adjusted pursuant to Section 2.3) and all other items, to the extent properly taken into account under the Code) shall be allocated amounts treated as consideration for federal income tax purposes among the assets of the Company Group (the “Draft Allocation”). The Draft Allocation shall be reasonable and shall be prepared in accordance with Section 1060 of the Code Code. If Seller disagrees with the Draft Allocation, Seller may deliver, within sixty (60) days after receipt of the Draft Allocation, a written notice to Buyer stating that it disagrees with the Draft Allocation, specifying those items as to which Seller disagrees and setting forth Seller’s proposed allocation in respect of those items. Buyer and Seller shall then use their commercially reasonable efforts to reach agreement on any such disputed items or amounts. If, after using commercially reasonable efforts, Buyer and Seller are unable to reach such agreement, each of Buyer and Seller may adopt separate positions on their respective Tax Returns with respect to such disputed items or amounts. The Draft Allocation, to the Treasury Regulations promulgated thereunder (extent agreed or adjusted pursuant to any agreement between Buyer and any similar provision of state, local or foreign Tax Law, as applicable) Seller (the “Allocation StatementFinal Allocation”), which Allocation Statement is consistent with the allocation methodology set forth on Schedule 9.2 hereof; provided, that none of the Purchase Price or other items taken into account shall be allocated to the Assumed Railcar Leasesconclusive and binding on all Parties. The Allocation Statement Buyer and Seller agree that they shall be delivered by the Purchaser to the Seller within ninety (90) days after the Closing Date. The Seller shall have thirty (30) days to review and notify the Purchaser in writing of any reasonable disagreement with the Allocation Statement. If the Seller does not timely notify the Purchaser of any such disagreement with the Allocation Statement, the Seller shall be conclusively deemed to have accepted and agreed to the Allocation Statement. If the Seller notifies the Purchaser within thirty (30) days of any such disagreement, the Seller and the Purchaser shall use Commercially Reasonable Efforts to resolve such dispute within thirty (30) days. In the event that the Seller and the Purchaser are unable to resolve such dispute within thirty (30) days, then the Seller and the Purchaser shall each be entitled to adopt their own position regarding the Allocation Statement. If the Seller and the Purchaser agree (or are deemed to agree) to the Allocation Statement, then the Seller and the Purchaser shall, and shall cause their respective Affiliates to, (i) prepare and file all Tax Returns (including Internal Revenue Service Form and IRS Forms 8594) in accordance a manner consistent with the Agreed Tax Treatment and the Final Allocation (if applicable), and shall file any additional information returns required to be filed to reflect any subsequent mutually agreed Allocation Statementupon adjustments to the Final Allocation, (ii) not take any position for Tax purposes (whether in any audit, Tax Return, or otherwise) that is inconsistent with the agreed Allocation Statement except as each case unless otherwise required by a “determination” within the meaning of Section 1313(a) of the Code, and (iii) use Commercially Reasonable Efforts to update the agreed Allocation Statement to reflect adjustments to the Purchase Price; provided, however, that nothing contained herein shall prevent the Seller or the Purchaser from reasonably settling any proposed deficiency or adjustment by any Governmental Body based upon or arising out of the agreed Allocation Statement or the tax treatment described above, and neither the Seller nor the Purchaser shall be required to litigate before any court any proposed deficiency or adjustment by any Governmental Body challenging the agreed Allocation Statement or the tax treatment described above.