ALLOCATION OF PURCHASE PRICE.
PROMPTLY
AFTER THE DATE HEREOF, BUT IN ANY EVENT WITHIN FIVE (5) BUSINESS DAYS AFTER THE
DATE HEREOF, PURCHASER SHALL ENGAGE A VALUATION OR APPRAISAL FIRM AND SHALL
INSTRUCT IT TO DELIVER TO PURCHASER AND SELLER WITHIN TWENTY (20) DAYS AFTER
15
ENGAGEMENT A STATEMENT OF THE VALUE OF THE REAL PROPERTY, REAL PROPERTY LEASES,
AND ANY MOTOR VEHICLES FOR WHICH A VALUE MUST BE STATED IN THE APPLICABLE
TRANSFER DOCUMENTS OR RELATED FILINGS TO BE MADE ON OR ABOUT THE CLOSING DATE.
BY THE LATER OF: (I) FEBRUARY 1, 2004, (II) 30 BUSINESS DAYS AFTER THE
CALCULATION OF THE WORKING CAPITAL ADJUSTMENT BECOMES CONCLUSIVE AND BINDING ON
THE PARTIES IN ACCORDANCE WITH SECTION 2.5(D) OR (III) 30 BUSINESS DAYS AFTER
THE CALCULATION OF THE FINAL CLOSING CAPITAL EXPENDITURES ADJUSTMENT BECOMES
CONCLUSIVE AND BINDING ON THE PARTIES IN ACCORDANCE WITH SECTION 2.5(F),
PURCHASER SHALL DELIVER TO SELLER A STATEMENT (THE "FINAL ALLOCATION
STATEMENT"), SUCH FINAL ALLOCATION STATEMENT TO BE SUBJECT TO SELLER'S CONSENT,
WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD ALLOCATING THE PURCHASE PRICE,
IN ACCORDANCE WITH SECTION 1060 OF THE CODE AND (WITH RESPECT TO THE REAL
PROPERTY, REAL PROPERTY LEASES AND MOTOR VEHICLES DESCRIBED THEREIN) IN
CONFORMITY WITH THE STATEMENT OF THE VALUATION OR APPRAISAL FIRM DESCRIBED
ABOVE, AMONG: (A) THE PURCHASED ASSETS, (B) THE NON-COMPETITION COVENANT
CONTAINED IN SECTION 8.3 OF THIS AGREEMENT AND (C) THE ASSUMED LIABILITIES
REQUIRED TO BE TRANSFERRED PURSUANT TO SECTION 6.3(E).
IF THE PARTIES ARE
UNABLE, DESPITE GOOD FAITH NEGOTIATIONS, TO AGREE ON SUCH ALLOCATION WITHIN
TWENTY (20) DAYS AFTER DELIVERY OF THE FINAL ALLOCATION STATEMENT, THEN THE
INDEPENDENT ACCOUNTING FIRM WILL BE RETAINED TO DETERMINE SUCH ALLOCATION (THE
FEES AND EXPENSES OF WHICH SHALL BE SHARED EQUALLY BY PURCHASER AND SELLER) AND
SHALL BE INSTRUCTED TO PROVIDE ITS DETERMINATION TO PURCHASER AND SELLER, WHICH
DETERMINATION SHALL BE FINAL AND BINDING UPON PURCHASER AND SELLER.
THE PARTIES
AGREE THAT SUCH ALLOCATION PURSUANT TO THE FINAL ALLOCATION STATEMENT SHALL BE
USED IN FILING IRS FORM 8594, ASSET ACQUISITION STATEMENT UNDER SECTION 1060 OF
THE CODE ("FORM 8594"), AND ALL TAX RETURNS (EXCEPT TO THE EXTENT SUCH FILINGS
ARE REQUIRED TO BE MADE BY SELLER PRIOR TO RECEIPT OF THE FINAL ALLOCATION
STATEMENT, IN WHICH CASE THE PARTIES SHALL AGREE ON THE APPROPRIATE ALLOCATION
FOR SUCH FILINGS).
SUBJECT TO THE REQUIREMENTS OF APPLICABLE TAX LAWS OR PRIOR
TAX ELECTIONS, NEITHER SELLER NOR PURCHASER WILL TAKE ANY POSITION INCONSISTENT
WITH SUCH ALLOCATIONS IN ANY TAX RETURN OR IN ANY EXAMINATION OF ANY TAX RETURN,
IN ANY REFUND CLAIM OR IN ANY TAX LITIGATION.
FOR AVOIDANCE OF DOUBT, SELLER
SHALL HAVE NO LIABILITY FOR INCONSISTENT TAX RETURNS OR OTHER FILINGS MADE PRIOR
TO SELLER'S RECEIPT OF THE FINAL ALLOCATION STATEMENT IF MADE IN A MANNER
CONSISTENT WITH THE PROCEDURES PROVIDED ABOVE IF AFTER RECEIPT OF THE FINAL
ALLOCATION STATEMENT SELLER TAKES SUCH STEPS AS ARE REASONABLY AVAILABLE UNDER
APPLICABLE LAW TO AMEND SUCH INCONSISTENT TAX RETURNS TO BE CONSISTENT WITH THE