Common use of Valuation Methodology Clause in Contracts

Valuation Methodology. For purposes of any distribution hereunder, the value of any non-cash property, including any equity securities or debt securities (the “Non-Cash Property”) shall be equal to either the Current Market Price (as defined below) or the Fair Market Value (as defined below) of such Non-Cash Property and will be determined as follows. (1) In the event that, in accordance with the provisions hereof, Non-Cash Property is to be distributed, the Collateral Agent shall first determine whether such Non-Cash Property is a security that is listed, admitted to trading or quoted on a national securities exchange or the NASDAQ National Market System (a “Marketable Security”), and, for each Marketable Security, its Current Market Price. The “Current Market Price” of a Marketable Security shall be deemed to be the average of the daily closing prices of such Marketable Security on the principal national securities exchange on which such Marketable Security is listed or admitted to trading or, if such Marketable Security is not so listed, the average daily closing bid prices of such Marketable Security on the NASDAQ National Market System if such Marketable Security is quoted thereon, in any such case, for the 20 consecutive trading days ending on the trading day immediately preceding the record day set by the Collateral Agent for the distribution of such Non-Cash Property. (2) Upon determination by the Collateral Agent that the Non-Cash Property to be distributed is not a Marketable Security (or that it is a Marketable Security, but its Current Market Price cannot be determined pursuant to clause (1) above), the Noteholders, the Additional Senior Secured Debt Holders and the Swap Creditors representing a majority of the then outstanding Aggregate Voting Credit with respect to the Finance Obligations shall promptly, but in any case within 30 days of receipt of a notice from the Collateral Agent of such determination: (i) appoint a nationally recognized investment bank (an “Independent Financial Expert”) with experience in similar transactions (for instance, transactions of a comparable size and magnitude) to determine the Fair Market Value of the Non-Cash Property to be distributed, and (ii) cause the Independent Financial Expert so appointed by it, to prepare and to deliver to the Collateral Agent a written report (a “Value Report”) specifying such Fair Market Value. (3) The Company shall provide, and shall cause its subsidiaries to provide, the Independent Financial Expert with the same financial and operational information for conducting their valuation. The Company shall use, and shall cause its subsidiaries to use, commercially reasonable efforts to ensure that the information shall be complete and accurate in all material respects and that any forecasts shall be based on unbiased assessments made in good faith. The Company shall reasonably cooperate, and shall cause its subsidiaries to reasonably cooperate, fully with the Independent Financial Expert in the conduct of its valuation, including making management reasonably available and offering access to the premises of the Company and its subsidiaries to the Independent Financial Expert during regular business hours and on reasonable notice.

Valuation Methodology. For purposes of any distribution hereunder, the value of any non-cash property, including any equity securities or debt securities (the “Non-Cash Property”) shall be equal to either the Current Market Price (as defined below) or the Fair Market Value (as defined below) of such Non-Cash Property and will be determined as follows. (1) In the event that, in accordance with the provisions hereof, Non-Cash Property is to be distributed, the Collateral Agent shall first determine whether such Non-Cash Property is a security that is listed, admitted to trading or quoted on a national securities exchange or the NASDAQ National Market System (a “Marketable Security”), and, for each Marketable Security, its Current Market Price. The “Current Market Price” of a Marketable Security shall be deemed to be the average of the daily closing prices of such Marketable Security on the principal national securities exchange on which such Marketable Security is listed or admitted to trading or, if such Marketable Security is not so listed, the average daily closing bid prices of such Marketable Security on the NASDAQ National Market System if such Marketable Security is quoted thereon, in any such case, for the 20 consecutive trading days ending on the trading day immediately preceding the record day set by the Collateral Agent for the distribution of such Non-Cash Property. (2) Upon determination by the Collateral Agent that the Non-Cash Property to be distributed is not a Marketable Security (or that it is a Marketable Security, but its Current Market Price cannot be determined pursuant to clause (1) above), the Noteholders, the Additional Senior Secured Debt Holders and the Swap Creditors representing a majority of the then outstanding Aggregate Voting Credit with respect to the Finance Obligations shall promptly, but in any case within 30 days of receipt of a notice from the Collateral Agent of such determination: (i) appoint a nationally recognized investment bank (an “Independent Financial Expert”) with experience in similar transactions (for instance, transactions of a comparable size and magnitude) to determine the Fair Market Value of the Non-Cash Property to be distributed, and (ii) cause the Independent Financial Expert so appointed by it, to prepare and to deliver to the Collateral Agent a written report (a “Value Report”) specifying such Fair Market Value. (3) The Company shall provide, and shall cause its subsidiaries to provide, the Independent Financial Expert with the same financial and operational information for conducting their valuation. The Company shall use, and shall cause its subsidiaries to use, commercially reasonable efforts to ensure that the information shall be complete and accurate in all material respects and that any forecasts shall be based on unbiased assessments made in good faith. The Company shall reasonably cooperate, and shall cause its subsidiaries to reasonably cooperate, fully with the Independent Financial Expert in the conduct of its valuation, including making management reasonably available and offering access to the premises of the Company and its subsidiaries to the Independent Financial Expert during regular business hours and on reasonable notice. (4) “Fair Market Value” of the Non-Cash Property to be distributed, as of the date of determination, shall mean the price that a willing buyer would pay to a willing seller for the relevant Non-Cash Property, in an arm’s length transaction, with neither party being under any immediate obligation or need to consummate such transaction. The Fair Market Value shall be stated in U.S. dollars.

Valuation Methodology. For purposes of any distribution hereunder, the value of any non-cash property, including any equity securities or debt securities (the “Non-Cash Property”) shall be equal to either the Current Market Price (as defined below) or the Fair Market Value (as defined below) of such Non-Cash Property and will be determined as follows.: (1) In the event that, in accordance with the provisions hereof, Non-Cash Property is to be distributed, the Collateral Agent shall first determine whether such Non-Cash Property is a security that is listed, admitted to trading or quoted on a national securities exchange or the NASDAQ National Market System (a “Marketable Security”), and, for each Marketable Security, its Current Market Price. The “Current Market Price” of a Marketable Security shall be deemed to be the average of the daily closing prices of such Marketable Security on the principal national securities exchange on which such Marketable Security is listed or admitted to trading or, if such Marketable Security is not so listed, the average daily closing bid prices of such Marketable Security on the NASDAQ National Market System if such Marketable Security is quoted thereon, in any such case, for the 20 consecutive trading days ending on the trading day immediately preceding the record day set by the Collateral Agent or applicable court order for the distribution of such Non-Cash Property. (2) Upon determination by the Collateral Agent that the Non-Cash Property to be distributed is not a Marketable Security (or that it is a Marketable Security, but its Current Market Price cannot be determined pursuant to clause (1) above), the Noteholders, Collateral Agent (acting upon instructions from the Additional Senior Secured Debt Holders and Directing Creditors) shall (at the Swap Creditors representing a majority of the then outstanding Aggregate Voting Credit with respect to the Finance Obligations shall Company’s sole expense) promptly, but in any case within 30 days of receipt of a notice from the Collateral Agent of such determination: (i) appoint a nationally recognized investment bank (an “Independent Financial Expert”) with experience ex- perience in similar transactions (for instance, transactions of a comparable size and magnitude) to determine the Fair Market Value of the Non-Cash Property to be distributed, and (ii) cause the Independent Financial Expert so appointed by it, to prepare and to deliver to the Collateral Agent a written report (a “Value Report”) specifying such Fair Market Value. (3) The Company shall provide, and shall cause its subsidiaries to provide, the Independent Financial Expert with the same financial and operational information for conducting their valuation. The Company shall use, and shall cause its subsidiaries to use, commercially reasonable efforts to ensure that the information shall be complete and accurate in all material respects and that any forecasts shall be based on unbiased assessments made in good faith. The Company shall reasonably cooperate, and shall cause its subsidiaries to reasonably cooperate, fully with the Independent Financial Expert in the conduct of its valuation, including making management reasonably available and offering access to the premises of the Company and its subsidiaries to the Independent Financial Expert during regular business hours and on reasonable notice.

Valuation Methodology. For purposes of any distribution hereunder, the value of any non-cash property, including any equity securities or debt securities (the “Non-Cash Property”) shall be equal to either the Current Market Price (as defined below) or the Fair Market Value (as defined below) of such Non-Cash Property and will be determined as follows. (1) In the event that, in accordance with the provisions hereof, Non-Cash Property is to be distributed, the Collateral Agent shall first determine whether such Non-Cash Property is a security that is listed, admitted to trading or quoted on a national securities exchange or the NASDAQ National Market System (a “Marketable Security”), and, for each Marketable Security, its Current Market Price. The “Current Market Price” of a Marketable Security shall be deemed to be the average of the daily closing prices of such Marketable Security on the principal national securities exchange on which such Marketable Security is listed or admitted to trading or, if such Marketable Security is not so listed, the average daily closing bid prices of such Marketable Security on the NASDAQ National Market System if such Marketable Security is quoted thereon, in any such case, for the 20 consecutive trading days ending on the trading day immediately preceding the record day set by the Collateral Agent for the distribution of such Non-Cash Property. (2) Upon determination by the Collateral Agent that the Non-Cash Property to be distributed is not a Marketable Security (or that it is a Marketable Security, but its Current Market Price cannot be determined pursuant to clause (1) above), each of (a) the Noteholders, Series A-1 Noteholders and the Additional Senior Secured Debt Holders representing a majority of the then outstanding Aggregate Voting Credit with respect to the Series A-1 Notes and the Swap Additional Secured Debt on the one hand and (b) the Series A-2 Creditors representing a majority of the then outstanding Aggregate Voting Credit with respect to the Finance Obligations Series A-2 Debt on the other hand (for purposes of this Section 4.05(g), such Series A-1 Noteholders and the Additional Secured Debt Holders on the one hand and such Series A-2 Creditors on the other hand shall be referred to as “One Party” and the “Other Party” and vice versa, and together they shall be referred to as the “Parties” and each one of them a “Party”), shall promptly, but in any case within 30 days of receipt of a notice from the Collateral Agent of such determination: (i) appoint a nationally recognized investment bank (an “Independent Financial Expert”) with experience in similar transactions (for instance, transactions of a comparable size and magnitude) to determine the Fair Market Value of the Non-Cash Property to be distributed, and (ii) cause the Independent Financial Expert so appointed by it, to prepare and to deliver to the Collateral Agent and the Other Party a written report (a “Value Report”) specifying such Fair Market Value. (3) Should One Party fail to appoint an Independent Financial Expert or the Independent Financial Expert selected by such Party shall fail to deliver its Value Report within the time period specified above, then the Independent Financial Expert appointed by the Other Party shall alone determine the Fair Market Value of the Non-Cash Property to be distributed, which determination shall be conclusive for all purposes hereof. (4) If the two Value Reports delivered by each Independent Financial Expert provide Fair Market Values such that the higher one is not more than 25% greater than the lower one, the average of the two values will be taken as the Fair Market Value of the Non-Cash Property to be distributed, which average shall be conclusive for all purposes of establishing such Fair Market Value hereunder. (5) If the valuations specified in the two Value Reports differ by more than 25%, the Parties will jointly appoint an additional Independent Financial Expert (the “Third Independent Financial Expert”) to perform a third valuation and prepare a third Value Report (the “Third Value Report”). If the Parties are unable to promptly agree on the selection of the Third Independent Financial Expert, a body agreed to by both Parties or, absent such agreement, American Arbitration Association will be requested by the Collateral Agent to appoint the Third Independent Financial Expert to perform and deliver the Third Value Report, such Third Value Report to be delivered to the Collateral Agent and the Parties within 60 days of its appointment. The Third Independent Financial Expert may not be an investment bank that has performed significant work for the Company, its affiliates or any of the persons constituting Parties during the immediately preceding one year. The Third Independent Financial Expert shall not be appraised by either Party or the Collateral Agent of the two initial valuations prior to delivery of its own Value Report. (6) If the Third Value Report has been delivered, the Fair Market Value of the Non-Cash Property to be distributed, will be equal to (i) if the Fair Market Value specified in the Third Value Report is in between the valuations specified on the two initial Value Reports, an amount equal to the average of the two valuations that are closest in amount, (ii) if the Fair Market Value specified in the Third Value is equal to or greater than the highest of the two valuations specified in the two initial Value Reports, an amount equal to the highest of such two initial valuations and (iii) if the Fair Market Value specified in the Third Value is equal to or lower than the lowest of the two valuations specified in the two initial Value Reports, an amount equal to the lower of such two initial valuations. (7) The Company shall provide, and shall cause its subsidiaries to provide, the all Independent Financial Expert Experts with the same financial and operational information for conducting their valuation. The Company shall use, and shall cause its subsidiaries to use, commercially reasonable efforts to ensure that the information shall be complete and accurate in all material respects and that any forecasts shall be based on unbiased assessments made in good faith. The Company shall reasonably cooperate, and shall cause its subsidiaries to reasonably cooperate, fully with the all Independent Financial Expert Experts in the conduct of its their valuation, including making management reasonably available and offering access to the premises of the Company and its subsidiaries to the Independent Financial Expert Experts during regular business hours and on reasonable notice.