CAPITAL OR THE CLOSING CASH AMOUNT, AS THE CASE MAY BE, IS
DETERMINED BEFORE THE OTHER, PURCHASER OR SELLER, AS THE CASE MAY BE, SHALL PAY
THE OTHER PARTY ANY AMOUNTS OWED PURSUANT TO SECTIONS 2.7(C) AND (D) IN RESPECT
OF SUCH DETERMINATION WITHIN FIVE (5) BUSINESS DAYS AFTER SUCH DETERMINATION
(NOTWITHSTANDING THAT THE OTHER HAS NOT YET BEEN DETERMINED).
ANY PAYMENT MADE
PURSUANT TO SECTIONS 2.7(C) AND (D) SHALL BE MADE WITH INTEREST (SUCH INTEREST
TO BE CALCULATED ON THE BASIS OF A YEAR OF THREE-HUNDRED SIXTY (360) DAYS AND
THE ACTUAL NUMBER OF DAYS ELAPSED) ON SUCH AMOUNT FROM (I) THE DATE OF THE
DELIVERY OF A LETTER OF DISAGREEMENT, IF THERE IS A DISAGREEMENT OR (II) 45 DAYS
FROM THE CLOSING IF THERE IS NO SUCH LETTER OF DISAGREEMENT, TO THE DATE OF SUCH
PAYMENT AT A RATE EQUAL TO EIGHT PERCENT (8%) PER ANNUM.
SECTION 2.8
PURCHASE PRICE ALLOCATION.
(A) WITHIN NINETY (90) DAYS
AFTER THE CLOSING DATE, PURCHASER SHALL PREPARE AND DELIVER TO SELLER A
STATEMENT (THE "ALLOCATION"), ALLOCATING THE GROSS PURCHASE PRICE (PLUS ASSUMED
LIABILITIES, TO THE EXTENT PROPERLY TAKEN INTO ACCOUNT UNDER SECTION 1060 OF THE
CODE) AMONG THE EQUITY INTERESTS AND THE PURCHASED ASSETS IN ACCORDANCE WITH
SECTION 1060 OF THE CODE.
SELLER SHALL NOTIFY PURCHASER OF ANY DISAGREEMENT
WITHIN FIVE (5) BUSINESS DAYS OF SELLER'S RECEIPT OF THE PROPOSED ALLOCATION.
ANY
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DISPUTE REGARDING THE ALLOCATION SHALL BE RESOLVED PURSUANT TO THE PROCEDURES
SET FORTH BELOW IN SECTION 2.8(B).
EACH OF SELLER AND THE SELLER ENTITIES ON
THE ONE HAND AND PURCHASER ON THE OTHER HAND SHALL (X) BE BOUND BY THE
ALLOCATION FOR PURPOSES OF DETERMINING ANY TAXES; (Y) PREPARE AND FILE, AND
CAUSE ITS AFFILIATES TO PREPARE AND FILE, ITS TAX RETURNS ON A BASIS CONSISTENT
WITH THE ALLOCATION; AND (Z) TAKE NO POSITION, AND CAUSE ITS AFFILIATES TO TAKE
NO POSITION, INCONSISTENT WITH THE ALLOCATION ON ANY APPLICABLE TAX RETURN OR IN
ANY PROCEEDING BEFORE ANY TAXING AUTHORITY OR OTHERWISE.
IN THE EVENT THAT THE
ALLOCATION IS DISPUTED BY ANY TAXING AUTHORITY, THE PARTY RECEIVING NOTICE OF
THE DISPUTE SHALL PROMPTLY NOTIFY THE OTHER PARTY HERETO, AND SELLER AND
PURCHASER AGREE TO USE THEIR COMMERCIALLY REASONABLE EFFORTS TO DEFEND SUCH
ALLOCATION IN ANY AUDIT OR SIMILAR PROCEEDING.
THE ADJUSTMENTS TO THE GROSS
PURCHASE PRICE DETERMINED PURSUANT TO SECTION 2.7 SHALL BE ALLOCATED TO AND
AMONG THE EQUITY INTERESTS AND THE PURCHASED ASSETS IN THE SAME PROPORTION AS
THE ORIGINAL ALLOCATION OF THE GROSS PURCHASE PRICE (PLUS ASSUMED LIABILITIES,
TO THE EXTENT PROPERLY TAKEN INTO ACCOUNT UNDER SECTION 1060 OF THE CODE) AMONG
THE EQUITY INTERESTS AND THE PURCHASED ASSETS TO THE EXTENT PERMITTED BY
APPLICABLE LAW.
Notwithstanding the foregoing, prior to Closing, Seller and Purchaser shall
agree upon a valuation for the Real Property to be used in connection with any
real estate Transfer Taxes and relevant Tax Returns.
(B)
IF SELLER AND PURCHASER FAIL TO AGREE ON THE ALLOCATION, SUCH MATTER SHALL
BE REFERRED TO A