Buyer and the. Company Group shall be responsible for, and shall have ultimate discretion with respect to, (i) the preparation and filing of all Tax Returns required to be filed by the Company Group with respect to periods that begin after the Closing Date (and the payment of all Taxes reported on any such Tax Return), and (ii) the preparation and filing of the Straddle Tax Returns, if any, and (iii) any Tax audit (including the execution of any waiver of limitation with respect to any Tax Audit) relating to any such Tax Returns; provided, however, that in the case of any Straddle Tax Return, the preparation and filing of such Return shall be subject to review and approval of Advantica (which approval shall not be unreasonably withheld), (iv) filing all employment Tax Returns including but not limited to IRS forms 940, 941, W-2 and W-3 and all similar state and local employment Tax Returns for the calendar year ended 1998 including activity required to be reported for the Pre-Closing Period, and (v) filing all information reporting Tax Returns including but not limited to IRS forms 1096 and 1099 and all similar state and local information returns for the calendar year ended 1998 including activity required to be reported for the Pre-Closing Period. Notwithstanding the foregoing, the Buyer and the Company Group shall not, without the prior written consent of the Seller, be entitled to settle either administratively or after the commencement of litigation any claim for Taxes which would adversely affect the liability for Taxes of Seller and Advantica for any Pre-Closing Periods or their portion of any Straddle Period that result from the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards. Such consent shall not be unreasonably withheld and shall not be necessary to the extent the Buyer has indemnified the Seller against the effect of any such settlement.
Buyer and the. Stockholders covenant and agree, jointly ------------ and severally, to pay to the Escrow Agent the fee determined by the Escrow Agent, from time to time, to be applicable to this escrow and bear all costs and expenses incurred by the Escrow Agent in connection therewith. The Escrow Agent's fees, as in effect on the date hereof, are attached hereto as Schedule -------- A. Without altering or limiting the joint and several liability of Buyer and the Stockholders hereunder, as between themselves, Buyer and the Stockholders shall each pay one-half of all amounts payable to the Escrow Agent pursuant to this Section 20.
Buyer and the. Buyer" under the Other Asset --------- Purchase Agreement shall have obtained financing for the Transactions and the transactions contemplated by the Other Asset Purchase Agreement having terms satisfactory to Buyer in an amount at least equal to $311,400,000 in the aggregate.
Buyer and the. Buyer Affiliate" (as hereinafter defined) are each treated as separate regarded entities for United States federal income tax purposes.
Buyer and the. Company acknowledge and agree that the estimated net total of Paragraphs 2(a) and 2(b), above, as of the date of execution of this Option Agreement, amounts to approximately fourteen million seven hundred fifty-five thousand three hundred ninety-eight and no/100 dollars (14,755,398.00), based upon the Company's PRO FORMA financial statement attached hereto as Exhibit A. Such figure, as adjusted at closing, shall be the total Consideration, to be payable as follows:
Buyer and the escrow agent designated in the Escrow Agreement shall be entitled to rely upon any document or other paper delivered by the Selling Parties Representative as (i) genuine and correct and (ii) having been duly signed or sent by the Selling Parties Representative, and neither Buyer nor such escrow agent shall be liable to either of the Shareholders or Seller for any action taken or omitted to be taken by Buyer or such escrow agent in such reliance.
Buyer and the. Buyer Parties shall at all times conduct each Inspection in a manner so as (i) to not interfere (provided that Seller shall take commercially reasonable efforts to accommodate Buyer's inspection requests) with any of Seller's activities at the Property and (ii) to not cause any damage, loss, cost or expense to Seller or the Property; including, without limitation, any damage, loss, cost or expense to any plants, equipment or improvements related to the nursery operations on the Property (collectively, "PLANTS AND EQUIPMENT"). Within a reasonable period following each Inspection, not to exceed two (2) days, Buyer shall, at its sole cost and expense, repair all damage resulting in any way from such Inspection, restore any portion of the Property and Equipment adversely affected by such Inspection to its condition existing immediately prior to such Inspection, and remove and dispose of all debris generated as a result of such Inspection. Buyer shall, if Buyer terminates this Agreement prior to the Due Diligence/Feasibility Date, within five (5) days of such termination, provide Seller with full and complete copies of any Buyer Prepared Due Diligence and Entitlement Materials, including any data, results, conclusions and reports generated as a result of or during the Inspections or any entitlement applications and Buyer shall keep all such data strictly confidential in accordance with the provisions of Section 4.4.
Buyer and the. Escrow Agent shall have executed the Escrow Agreement and Buyer shall have executed and delivered the Employment Agreements referred to in Section 6.6.
Buyer and the. Buyer Shareholders shall have executed the Shareholders Agreement in the form on Exhibit 5.15 hereto;
