Prorations and Adjustments. (a) Expect as otherwise expressly set forth in this Agreement, the operation of the Station and the income and normal operating expenses, including, without limitation, accrued liabilities and prepaid expenses, attributable thereto through the Valuation Date shall be for the account of Sellers and thereafter for the account of Buyer. Expenses for goods or services received both before and after the Valuation Date, real and personal property Taxes and assessments, power and utilities charges, and rents and similar prepaid and deferred items shall be prorated between Sellers and Buyer as of the Valuation Date (the "Closing Date Adjustments"). All special assessments and similar charges or liens imposed against the Purchased Assets in respect of any period of time through the Valuation Date, whether payable in installments or otherwise, shall be the responsibility of Sellers, and amounts with respect to such special assessments, charges or liens in respect of any period of time after the Valuation Date shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three (3) days prior to the Closing Date, Sellers shall estimate in good faith, all apportionments pursuant to this Section 3.6 and shall deliver a certified statement of its estimates to Buyer (which statement shall set forth in reasonable detail the basis for those estimates) (the "Estimated Prorations Certificate"). At the Closing, Buyer shall pay to Sellers (through an increase in the Closing Date Payment), or Sellers shall pay to Buyer (through a reduction in the Closing Date Payment), as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Within forty-five (45) days after the Closing, Buyer shall deliver to Sellers a statement of any adjustments to Sellers' estimate of the apportionments, and Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute Buyer's determinations, or if at any time after delivery of Buyer's statement of determinations, Buyer or Sellers determine that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date"), they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alone, whose decision on the matter shall be made within 30 days of their selection and shall be binding and whose fees and expenses shall be borne by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountant. If the amount of Taxes which are to be prorated pursuant to this Section is not known by forty-five (45) days after the Closing Date, then the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is known, Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, the net amount due as a result of the actual apportionment of such Taxes. (b) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect to the Purchased Assets and the Station, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated by this Section 3.6.
Appears in 1 contract
Prorations and Adjustments. (a) Expect as otherwise expressly set forth in this AgreementCurrent real estate taxes, rent, utilities and all other normal income and expense items related to the Assets shall be apportioned between the parties to reflect the principle that all expenses and income arising from the operation of the Station and Assets up through 11:59 p.m. Eastern Standard Time ("EST") of the income and normal operating expenses, including, without limitation, accrued liabilities and prepaid expenses, attributable thereto through day prior to the Valuation Closing Date (the "Adjustment Time") shall be for the account of Sellers Seller, and thereafter all expenses and income arising from the operation of the Assets after the Adjustment Time shall be for the account of Buyer. Expenses for goods or services received both before and after the Valuation Date, real and personal property Taxes and assessments, power and utilities charges, and rents and similar prepaid and deferred items shall be prorated between Sellers and Buyer as of the Valuation Date (the "Closing Date Adjustments"). All special assessments and similar charges or liens liens, imposed against the Purchased Assets in respect of any period of time through up until the Valuation DateAdjustment Time, whether payable in installments or otherwise, shall be the responsibility of SellersSeller, and amounts payable with respect to such special assessments, charges or liens imposed in respect of any period of time after the Valuation Date Adjustment Time shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three (3) days prior to the Closing Date, Sellers Date Seller shall estimate in good faith, all apportionments pursuant to this Section 3.6 Article IV and shall deliver a certified statement of its estimates to Buyer (which statement shall set forth in reasonable detail the basis for those estimates). To the extent that, as of the Closing Date, the aggregate value of the unfulfilled obligations under Trade Agreements or Barter Agreements exceeds the aggregate value of consideration to be received by the Stations under such Trade Agreements or Barter Agreements (determined as of the Closing Date) by Fifteen Thousand Dollars ($15,000), Buyer shall be entitled to a positive cash adjustment in an amount equal to the "Estimated Prorations Certificate")excess, if any, over such Fifteen Thousand Dollar ($15,000) amount. At the Closing, Buyer shall pay to Sellers (through an increase in the Closing Date Payment)Seller, or Sellers shall pay to Buyer (through a reduction in the Closing Date Payment), as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Within forty-five (45) days after the Closing, Buyer shall deliver to Sellers a statement of any adjustments to Sellers' estimate of the apportionments, and Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute Buyer's determinations, or if at any time after delivery of Buyer's statement of determinations, Buyer or Sellers determine that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date"), they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alone, whose decision on the matter shall be made within 30 days of their selection and shall be binding and whose fees and expenses shall be borne by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountant. If the amount of Taxes which are to be prorated pursuant to this Section is not known by forty-five (45) days after the Closing Date, then the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is known, Buyer shall pay to Sellers, or Sellers Seller shall pay to Buyer, as the case may be, the net amount due as a result of the actual apportionment of such Taxes.
(b) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect to the Purchased Assets and the Station, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated by this Section 3.6.estimated apportionments
Appears in 1 contract
Sources: Asset Purchase Agreement (Beasley Broadcast Group Inc)
Prorations and Adjustments. (a) Expect Except as otherwise expressly set forth in this Agreementprovided herein, all income and expenses arising from the operation conduct of the business and operations of the AMFM Station and Bison Station shall be prorated between AMFM and Bison and an appropriate adjustment shall be made in accordance with the income principle that each party (i) shall receive all revenues and normal operating expensesshall be responsible for all expenses relating to the business and operations of its respective station for the period ending at 11:59 p.m. on the day prior to the Closing Date, includingand (ii) shall receive all revenues and shall be responsible for all expenses relating to the business and operations of the acquired Station thereafter. Such prorations and adjustments shall include, without limitation, accrued music and other license fees, deposits, liabilities and prepaid expensesobligations under the AMFM Contracts and the Bison Contracts, attributable thereto through the Valuation Date shall be for the account all ad valorem and applicable property taxes (but excluding sales taxes covered by Section 10.2 of Sellers this Agreement), business and thereafter for the account of Buyer. Expenses for goods or services received both before and after the Valuation Datelicense fees, real and personal property Taxes and assessmentsannual FCC regulatory fees, power and utilities chargesutility expenses, and rents (excluding amounts paid as capital expenditures in connection with real property, whether leased or owned), and similar prepaid and deferred items attributable to the ownership and operation of the Stations. Trade and Barter Agreements shall be prorated between Sellers and Buyer as of to the Valuation Date (the "Closing Date Adjustments"extent provided in Section 3.4(f). All special assessments The parties shall provide each other a list of all known proratable items and similar charges or liens imposed against payables for the Purchased Assets Stations at least five (5) business days before the Closing Date.
(b) The prorations and adjustments contemplated by this Section 3.4 shall be determined in respect of any period of time through accordance with GAAP, consistently applied, and, to the Valuation Date, whether payable in installments or otherwiseextent practicable, shall be made on the responsibility Closing Date. Those prorations and adjustments not reasonably capable of Sellers, and amounts with respect to such special assessments, charges or liens in respect of any period of time after the Valuation Date shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three (3) days prior to being ascertained on the Closing Date, Sellers shall estimate be made in good faithaccordance with the procedures set forth in Sections 3.4(c) and 3.4(d).
(c) No later than ninety (90) days after the Closing Date, all apportionments pursuant to this Section 3.6 and AMFM shall deliver to Bison a certified statement schedule of its estimates proposed prorations with respect to Buyer the Bison Station (which statement the "Bison Proration Schedule"), and Bison shall deliver to AMFM a schedule of its proposed prorations with respect to 18 the AMFM Station (the "AMFM Proration Schedule," and together with the Bison Proration Schedule, the "Proration Schedules"). Each of the Proration Schedules shall set forth in reasonable detail the basis for those estimatesthe determinations proposed therein.
(d) For purposes of this Section 3.4(d) and Section 3.4(e), the party delivering a Proration Schedule is referred to as the "Proponent" and the party receiving a Proration Schedule is referred to as the "Recipient." A Proration Schedule shall be conclusive and binding upon the Recipient unless the Recipient provides the Proponent with written notice of objection (the "Estimated Prorations CertificateNotice of Disagreement") within thirty (30) days after the Recipient's receipt of the Proration Schedule, which notice shall state the prorations of expenses proposed by the Recipient ("Recipient's Proration Amount"). At The Proponent shall have fifteen (15) days from receipt of a Notice of Disagreement to accept or reject Recipient's Proration Amount. If the ClosingProponent rejects Recipient's Proration Amount, Buyer and the amount in dispute exceeds $5,000 with respect to any Station, the dispute shall pay be submitted within ten (10) days to Sellers PricewaterhouseCoopers L.L.P., an independent certified public accounting firm, for resolution, such resolution to be made within thirty (through an increase 30) days after submission to the accounting firm and to be final, conclusive and binding on the Proponent and the Recipient. The Proponent and the Recipient agree to share equally the fees and expenses incurred by PricewaterhouseCoopers L.L.P., but each party shall bear its own legal fees and other expenses, if any. If the amount in dispute is equal to or less than $5,000 with respect to any single Station, such amount shall be divided equally between the Closing Date Payment), Proponent and the Recipient.
(e) Payment by AMFM or Sellers shall pay to Buyer (through a reduction in the Closing Date Payment)Bison, as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in dispute) (proration amounts determined pursuant to this Section 3.4 shall be made as follows: The proration amounts due from AMFM shall be netted against the "Estimated Prorations"). Within forty-five (45) days after the Closing, Buyer shall deliver proration amounts due from Bison with respect to Sellers a statement of any adjustments to Sellers' estimate each of the apportionmentsStations, and Buyer shall pay to Sellers, AMFM or Sellers shall pay to BuyerBison, as the case may be, pursuant to Section 3.7 any shall pay such net amount due as a result of the adjustment fifteen (or, if there is any dispute, the undisputed amount). If Sellers dispute Buyer's determinations, or if at any time after delivery of Buyer's statement of determinations, Buyer or Sellers determine that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date"), they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alone, whose decision on the matter shall be made within 30 days of their selection and shall be binding and whose fees and expenses shall be borne by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountant. If the amount of Taxes which are to be prorated pursuant to this Section is not known by forty-five (4515) days after the Closing Date, then last of the following events has occurred with respect to the AMFM Station and the Bison Station: (i) the Recipient's acceptance of the Proration Schedule or failure to give the Proponent a timely Notice of Disagreement; (ii) the Proponent's acceptance of Recipient's Proration Amount or failure to reject Recipient's Proration Amount within fifteen (15) days of receipt of a Notice of Disagreement; (iii) the Proponent's rejection of the Recipient's Proration Amount in the event the amount in dispute equals or is less than $5,000; and (iv) notice to the Proponent and the Recipient of such Taxes will be estimated as the resolution of such date and once the disputed amount by PricewaterhouseCoopers L.L.P. in the event that the amount of such Taxes is known, Buyer shall pay to Sellers, in dispute exceeds $5,000. Any payment required by AMFM or Sellers shall pay to BuyerBison, as the case may be, under this Section 3.4(e) shall be paid by wire transfer of immediately available funds to the net amount due as a result account of the actual apportionment payee with a financial institution in the United States as designated by such payee in the Proration Schedule or the Notice of Disagreement (or by separate notice in the event a Notice of Disagreement is not sent). If either AMFM or Bison fails to pay when due any amount under this Section 3.4(e), interest on such amount will accrue from the date payment was due to the date such payment is made at a per annum rate equal to the "prime rate" as published daily in the Money Rates column of the Wall Street Journal (or average of such Taxes.
rates if more than one rate is indicated) plus two percent (b) Consistent with Sections 2.2(g2%), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect to the Purchased Assets and the Station, have been cancelled prior to the Closing and interest shall not be taken into account in the adjustments contemplated by this Section 3.6payable upon demand.
Appears in 1 contract
Sources: Asset Exchange Agreement (Salem Communications Corp /De/)
Prorations and Adjustments. (a) Expect as otherwise provided in the TBA or as otherwise expressly set forth in this Agreement, the operation of the Station Stations and the income and normal operating expenses, including, without limitation, accrued assumed liabilities and prepaid expenses, attributable thereto through 11:59 p.m. on the Valuation Closing Date (the “Adjustment Date”) shall be for the account of Sellers Tribune Denver and thereafter for the account of BuyerOptionee. Expenses Except as otherwise provided in the TBA, expenses for goods or services received both before and after the Valuation Adjustment Date, real and personal property Taxes taxes and assessments, power and utilities charges, and rents and similar prepaid and deferred items shall be prorated between Sellers Tribune Denver and Buyer Optionee as of the Valuation Adjustment Date (the "“Closing Date Adjustments"”). All Except as otherwise provided in the TBA, all special assessments and similar charges or liens imposed against the Purchased Assets in respect of any period of time through the Valuation Adjustment Date, whether payable in installments or otherwise, shall be the responsibility of SellersTribune Denver, and amounts with respect to such special assessments, charges or liens in respect of any period of time after the Valuation Adjustment Date shall be the responsibility of BuyerOptionee, and such charges shall be adjusted as required hereunder. Three (3) days prior to the Closing Date, Sellers Optionee shall estimate estimate, in good faith, all apportionments pursuant to this Section 3.6 3.10 and shall deliver a certified statement of its estimates to Buyer Tribune Denver (which statement shall set forth in reasonable detail the basis for those estimates) (the "Estimated Prorations Certificate"). At the Closing, Buyer Optionee shall pay to Sellers (through an increase in the Closing Date Payment)Tribune Denver, or Sellers Tribune Denver shall pay to Buyer (through a reduction in the Closing Date Payment)Optionee, as the case may be, the net amount due as a result of the estimated apportionments (excluding any Table of Contents item that is in dispute) (the "Estimated Prorations"). Within forty-five sixty (4560) days after the ClosingClosing (the “Payment Date”), Buyer Tribune Denver shall deliver to Sellers Optionee a statement of any adjustments to Sellers' Optionee’s estimate of the apportionments, and Buyer Optionee shall pay to SellersTribune Denver, or Sellers Tribune Denver shall pay to BuyerOptionee, as the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute Buyer's Optionee disputes Tribune Denver’s determinations, or if at any time after delivery of Buyer's Tribune Denver’s statement of determinations, Buyer Optionee or Sellers Tribune Denver determine that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date")matter, they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alonematter, whose decision on the matter shall be made within 30 days of their selection and shall be binding and whose fees and expenses shall be borne equally by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountantparties). If the amount of Taxes which are to be prorated pursuant to this Section is not known by forty-five sixty (4560) days after the Closing Date, then the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is known, Buyer Optionee shall pay to SellersTribune Denver, or Sellers Tribune Denver shall pay to BuyerOptionee, as the case may be, the net amount due as a result of the actual apportionment of such Taxes.
(b) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect to the Purchased Assets and the Station, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated by this Section 3.6.
Appears in 1 contract
Prorations and Adjustments. (a) Expect as otherwise expressly set forth in this Agreement, the The operation of the Station and the income and normal operating all expenses, including, including without limitation, accrued limitation assumed liabilities and prepaid expenses, attributable thereto through 11:59 p.m. on the Valuation Closing Date (the "Adjustment Time") shall be for the account of Sellers Seller and thereafter for the account of BuyerPurchaser. Expenses for goods or services received both before and after the Valuation DateAdjustment Time, real and personal property Taxes taxes and assessments, power and utilities charges, and rents and similar prepaid and deferred items shall be prorated between Sellers Seller and Buyer Purchaser as of the Valuation Date Adjustment Time (the "Closing Date Adjustments"). All special assessments and similar charges or liens imposed against the Purchased Assets in respect of any period of time through up to the Valuation DateAdjustment Time, whether then due or are payable thereafter (in installments or otherwise), shall be the responsibility of SellersSeller, and amounts payable with respect to such special assessments, charges or liens in respect of any period of time after the Valuation Date Adjustment Time shall be the responsibility of BuyerPurchaser, and such charges shall be adjusted as required hereunder. Three Five (35) days prior to the Closing Date, Sellers shall estimate in good faith, all apportionments pursuant to this Section 3.6 and Date Seller shall deliver a certified statement of its estimates all known proratable items and the net amount due one party to Buyer the other as a result thereof (which statement shall set forth in reasonable detail the basis for those estimates) (the "Estimated Prorations Certificate"amounts). At the Closing, Buyer Purchaser shall pay to Sellers (through an increase in the Closing Date Payment)Seller, or Sellers Seller shall pay to Buyer (through a reduction in the Closing Date Payment)Purchaser, as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Within forty-five thirty (4530) days after the ClosingClosing (the "Payment Date"), Buyer Purchaser shall deliver to Sellers Seller a statement of any adjustments to Sellers' estimate of additional proratable items, together with the apportionments, apportionments for any such additional proratable items and Buyer Purchaser shall pay to SellersSeller, or Sellers Seller shall pay to BuyerPurchaser, as the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute BuyerSeller disputes Purchaser's determinations, or if at any time after delivery of BuyerPurchaser's statement of determinations, Buyer or Sellers determine either party determines that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties party shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties. If the parties (or, if they are unable to resolve the matter, the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date"), they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alonebe resolved by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, whose decision on the matter shall be made rendered in writing within 30 thirty (30) days following submission of their selection and shall be binding the dispute to them and whose fees and expenses shall be borne equally by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, parties. Such decision shall be binding upon the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountantparties. If the amount of Taxes which are to be prorated All amounts due pursuant to this Section is subsection that are not known paid by forty-the Payment Date shall bear interest from the Payment Date until paid at a rate per annum equal to generally prevailing prime interest rate (as reported by The Wall Street Journal) plus five percent (45) days after the Closing Date, then the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is known, Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, the net amount due as a result of the actual apportionment of such Taxes.
(b) Consistent with Sections 2.2(g5%), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect to the Purchased Assets and the Station, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated by this Section 3.6.. Notwithstanding the
Appears in 1 contract
Sources: Asset Purchase Agreement (Chancellor Broadcasting Co /De/)
Prorations and Adjustments. (a) Expect as otherwise expressly set forth in this AgreementCurrent real estate taxes, rent, utilities and all other normal income and expense items related to the Assets shall be apportioned between the parties to reflect the principle that all expenses and income arising from the operation of the Station and Assets up through 11:59 p.m. Eastern Standard Time ("EST") of the income and normal operating expenses, including, without limitation, accrued liabilities and prepaid expenses, attributable thereto through day prior to the Valuation Closing Date (the "Adjustment Time") shall be for the account of Sellers Seller, and thereafter all expenses and income arising from the operation of the Assets after the Adjustment Time shall be for the account of Buyer. Expenses for goods or services received both before and after the Valuation Date, real and personal property Taxes and assessments, power and utilities charges, and rents and similar prepaid and deferred items shall be prorated between Sellers and Buyer as of the Valuation Date (the "Closing Date Adjustments"). All special assessments and similar charges or liens liens, imposed against the Purchased Assets in respect of any period of time through up until the Valuation DateAdjustment Time, whether payable in installments or otherwise, shall be the responsibility of SellersSeller, and amounts payable with respect to such special assessments, charges or liens imposed in respect of any period of time after the Valuation Date Adjustment Time shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three (3) days prior to the Closing Date, Sellers Date Seller shall estimate in good faith, all apportionments pursuant to this Section 3.6 Article IV and shall deliver a certified statement of its estimates to Buyer (which statement shall set forth in reasonable detail the basis for those estimates) ). To the extent that, as of the Closing Date, the aggregate value of the unfulfilled obligations under Trade Agreements or Barter Agreements, including any "time bank" provision thereof, exceeds the aggregate value of consideration to be received by the Stations related to such Trade Agreements or Barter Agreements (determined as of the "Estimated Prorations Certificate"Closing Date), Buyer shall be entitled to a positive cash adjustment in the amount equal to the excess, if any. At the Closing, Buyer shall pay to Sellers (through an increase in the Closing Date Payment)Seller, or Sellers Seller shall pay to Buyer (through a reduction in the Closing Date Payment)Buyer, as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in good faith in dispute) (the "Estimated Prorations"). Within forty-five sixty (4560) days after the Closing, Buyer shall deliver to Sellers Seller a statement (the "Buyer Statement") of any adjustments to Sellers' Seller's estimate of the apportionments, and within twenty (20) days of the delivery to Seller of the Buyer Statement (the "Payment Date"), Buyer shall pay to SellersSeller, or Sellers Seller shall pay to Buyer, as the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). Except with respect to items that Seller notifies Buyer that it objects to within such twenty (20) day period, the adjustments set forth in the Buyer Statement shall be final and binding on the parties effective on the expiration of such twenty (20) day period. If Sellers dispute Seller disputes Buyer's determinations, or if at any time after delivery of Buyer's statement of determinations, Buyer or Sellers determine either party determines that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date")matter, they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alonematter, whose decision on the matter shall be made within 30 days of their selection and shall be binding and whose fees and expenses shall be borne equally by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountantparties). If the amount of Taxes which are to be prorated All amounts due pursuant to this Section is subsection that are not known by forty-five (45) days after paid on the Closing DatePayment Date or such later date when any disputed amounts are finally determined, then the amount of such Taxes will be estimated as of applicable, shall bear interest from such date and once the amount of such Taxes is known, Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, the net amount due as until paid at a result of the actual apportionment of such Taxes.
(b) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect rate per annum equal to the Purchased Assets and the Station, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated generally prevailing prime interest rate (as reported by this Section 3.6The Wall Street Journal) plus five percent (5%).
Appears in 1 contract
Sources: Asset Purchase Agreement (Beasley Broadcast Group Inc)
Prorations and Adjustments. (a) Expect 3.5.1 Except as otherwise expressly set forth provided in this AgreementSection 3.3 or in Section 7.3, the operation of the Station and the income and normal operating expensesall taxes (other than taxes based on income), including, without limitation, accrued liabilities and prepaid expenses, attributable thereto through the Valuation Date shall be for the account of Sellers and thereafter for the account of Buyer. Expenses for goods or services received both before and after the Valuation Date, real and personal property Taxes and assessments, power and utilities chargesutilities, and rents and similar prepaid other expenses and deferred items revenues arising out of or relating to the Subject Property shall be prorated between Sellers Seller and Buyer as of 12:01 a.m. on the Valuation Date (Closing Date. Buyer and Seller hereby agree to fully cooperate, following the "Closing, in the distribution of any such expense(s) and/or revenue(s) the amount of which is unknown as of the Closing Date Adjustments")Date. Seller will deliver to Buyer, within 90 days of the Closing Date, a report showing the distribution of any such expenses and/or revenues as of the Closing Date. Within 10 days of the date of delivery of the report, Buyer will notify Seller of any disagreement with said report with details of the disagreement. Failure to notify Seller within said 10 days will constitute Buyer's agreement with the report. If the Parties cannot resolve the disagreement within an additional 10 days, either party may submit Seller's report and Buyer's notification, together with any material deemed relevant by the Parties, to Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇'s New York, New York office, with a request to resolve the disagreement as soon as practicable. The Parties will cooperate with Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇ the resolution of the disagreement and each party shall pay for 50% of Arth▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇▇s and expenses. All special assessments amounts of funds which are either undisputed or for which any dispute has been resolved shall be paid to the Party entitled thereto within five (5) days of the earliest date that such funds are determined to be undisputed or that any dispute respecting such funds is resolved. The decision of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇l be final and similar charges non-appealable to any court or liens imposed other judicial or non-judicial body. Arth▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇▇ermination shall be in writing and the Party which is determined to owe funds to the other Party shall pay all such funds within 10 days of such determination.
3.5.2 That portion of real estate, personal property, and other ad valorem taxes assessed for all years prior to 2000 against the Purchased Assets in respect of any period of time through the Valuation Date, whether payable in installments or otherwise, Subject Property shall be the responsibility of SellersSeller. That portion of real estate, personal property, and amounts with respect to such special assessments, charges or liens in respect of any period of time after other ad valorem taxes assessed for the Valuation Date year 2000 against the Subject Property which is payable by Seller shall be prorated between the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three (3) days prior Parties to the Closing Date, Sellers shall estimate in good faithwith Seller being responsible for the prorated portion of such taxes up to the Closing Date, all apportionments pursuant to this Section 3.6 and shall deliver a certified statement Buyer being responsible for its prorated portion of its estimates to Buyer (which statement shall set forth in reasonable detail the basis for those estimates) (the "Estimated Prorations Certificate"). At the Closing, Buyer shall pay to Sellers (through an increase in such taxes on the Closing Date Payment)and thereafter. In the event such taxes are payable in arrears, or Sellers shall Seller will pay to Buyer (through a reduction in the Closing Date Payment)Buyer, as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Within forty-five (45) days after the at Closing, Buyer shall deliver to Sellers a statement Seller's estimated proportionate share of any adjustments to Sellers' 2000 real estate, personal property, and ad valorem taxes, such estimate of being based on the apportionments, latest assessment and Buyer shall pay be responsible for payment of all such taxes for the 2000 tax year and upon payment thereof, necessary corrections to Sellers, or Sellers shall pay the estimated 2000 amount paid at Closing by Seller will be paid promptly by the appropriate Party to Buyer, as the case may be, pursuant to Section 3.7 any amount due as a result of other Party. In the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute Buyer's determinations, or if at any time after delivery of Buyer's statement of determinationsevent that such taxes are payable in advance, Buyer or Sellers determine that any item included in the apportionments is inaccuratewill reimburse to Seller, or that an additional item should be included in the apportionmentsat Closing, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date"), they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alone, whose decision on the matter shall be made within 30 days of their selection and shall be binding and whose fees and expenses shall be borne by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, the numerator of prepaid taxes which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission attributable to the independent accountant period on and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountant. If the amount of Taxes which are to be prorated pursuant to this Section is not known by forty-five (45) days after the Closing Date, then the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is known, .
3.5.3 Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, the net amount due as a result of the actual apportionment of such Taxes.
at Closing: (a) all recording fees; (b) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, fifty percent (50%) of all intercompany obligations survey fees; (c) one hundred percent (100%) of any ACME Entity or its Affiliates and all costs related to any required environmental assessment(s); (d) fifty percent (50%) of all fees charged by the Title Company related to preparing the title commitment on the Land and all premiums charged by the Title Company for title insurance policies and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect endorsements thereto desired by Buyer related to the Purchased Assets Land; and the Station(e) fifty percent (50%) of escrow agent fees, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated by this Section 3.6if any.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Williams Energy Partners L P)
Prorations and Adjustments. (a) Expect as otherwise expressly set forth in this Agreement, the The operation of the Station and the income and normal operating all expenses, including, including without limitation, accrued limitation assumed liabilities and prepaid expenses, attributable thereto through 11:59 p.m. on the Valuation Closing Date (the "Adjustment Time") shall be for the account of Sellers Seller and thereafter for the account of BuyerPurchaser. Expenses for goods or services received both before and after the Valuation DateAdjustment Time, real and personal property Taxes taxes and assessments, power and utilities charges, and rents and similar prepaid and deferred items shall be prorated between Sellers Seller and Buyer Purchaser as of the Valuation Date Adjustment Time (the "Closing Date Adjustments"). All special assessments and similar charges or liens imposed against the Purchased Assets in respect of any period of time through up to the Valuation DateAdjustment Time, whether then due or are payable thereafter (in installments or otherwise), shall be the responsibility of SellersSeller, and amounts payable with respect to such special assessments, charges or liens in respect of any period of time after the Valuation Date Adjustment Time shall be the responsibility of BuyerPurchaser, and such charges shall be adjusted as required hereunder. Three Five (35) days prior to the Closing Date, Sellers shall estimate in good faith, all apportionments pursuant to this Section 3.6 and Seller shall deliver a certified statement of its estimates all known proratable items and the net amount due one party to Buyer the other as a result thereof (which statement shall set forth in reasonable detail the basis for those estimates) (the "Estimated Prorations Certificate"amounts). At the Closing, Buyer Purchaser shall pay to Sellers (through an increase in the Closing Date Payment)Seller, or Sellers Seller shall pay to Buyer (through a reduction in the Closing Date Payment)Purchaser, as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Within forty-five thirty (4530) days after the ClosingClosing (the "Payment Date"), Buyer Purchaser shall deliver to Sellers Seller a statement of any adjustments to Sellers' estimate of additional proratable items, together with the apportionments, apportionments for any such additional proratable items and Buyer Purchaser shall pay to SellersSeller, or Sellers Seller shall pay to BuyerPurchaser, as the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute BuyerSeller disputes Purchaser's determinations, or if at any time after delivery of BuyerPurchaser's statement of determinations, Buyer or Sellers determine either party determines that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties party shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties. If the parties (or, if they are unable to resolve the matter, the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date"), they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alonebe resolved by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, whose decision on the matter shall be made rendered in writing within 30 thirty (30) days following submission of their selection and shall be binding the dispute to them and whose fees and expenses shall be borne equally by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, parties. Such decision shall be binding upon the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountantparties. If the amount of Taxes which are to be prorated All amounts due pursuant to this Section is subsection that are not known paid by forty-five (45) days after the Closing Date, then the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is known, Buyer Payment Date shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, the net amount due as a result of the actual apportionment of such Taxes.
(b) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect to the Purchased Assets and the Station, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated by this Section 3.6.bear interest from
Appears in 1 contract
Sources: Asset Purchase Agreement (Chancellor Media Corp of Los Angeles)
Prorations and Adjustments. (a) Expect On the Closing Date, or as otherwise expressly set forth promptly as practicable following the Closing Date, but in this Agreementno event later than ninety (90) calendar days thereafter, the operation of water, gas, electricity and other utilities, local business or other license fees to the Station extent assigned and other similar periodic charges payable with respect to the income and normal operating expenses, including, without limitation, accrued liabilities and prepaid expenses, attributable thereto through the Valuation Date shall be for the account of Sellers and thereafter for the account of Buyer. Expenses for goods or services received both before and after the Valuation Date, real and personal property Taxes and assessments, power and utilities charges, and rents and similar prepaid and deferred items Purchased Assets shall be prorated between Sellers the Seller, on the one hand, and Buyer the Purchaser, on the other hand, effective as of the Valuation Date (Effective Time with the "Closing Date Adjustments")Seller being responsible for amounts related to the period ending as of the Effective Time and the Purchaser being responsible for amounts related to the period after the Effective Time. All special assessments The Parties shall use commercially reasonable efforts to cause utility meter readings to be determined as of the Effective Time or as close thereto as reasonably practicable; provided, however, that if a Party’s proration for a particular amount owed under this Section 1.6 cannot be determined due to the unavailability of the necessary information on the appropriate invoice or remittance statement, then the proration shall be calculated on a per day basis using the number of days in the respective Party’s period. If either Party fails to pay any utility bill for the period in which they are responsible under this Section 1.6 and similar charges or liens imposed against payment is demanded in writing from the Purchased Assets in respect other Party, and the other Party pays the utility bill, then the deficient Party shall promptly reimburse the other Party for payment of any period such utility bill. If the Purchaser fails to effect the transfer to it of time through the Valuation Date, whether payable in installments or otherwise, shall be the responsibility of Sellers, utility services within one hundred and amounts with respect to such special assessments, charges or liens in respect of any period of time after the Valuation Date shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three twenty (3120) days following Closing, the Seller shall then have the option, in the Seller’s discretion and following at least five (5) days prior written notice to the Purchaser, to inform the utility provider to discontinue the utility service, without any Liability to the Seller for such discontinuance. The provisions of this Section 1.6 shall survive the Closing.
(b) At least ten (10) Business Days prior to the Closing Date, Sellers the Seller shall prepare, or cause to be prepared, and deliver to the Purchaser a written statement (the “Preliminary CIAC and Cash Adjustments Statement”) that sets forth a good-faith estimate of (i) Excess CIAC, and (ii) Eligible CIAC, in good faitheach case together with reasonable supporting documentation and determined as of the Closing Date (without giving effect to the transactions contemplated hereby), all apportionments pursuant calculated in accordance with the accounting Books and Records of the Business, the CAPEX Principles, and, with respect to this Section 3.6 clause (i) and shall deliver a certified statement of its estimates to Buyer (which statement shall ii), using the calculation formulae set forth in reasonable detail the basis “QVWS CIAC Exhibit” tab of the Capital Statements and Adjustments Model (utilizing the applicable actual amounts set out where appropriate in the applicable “Source file” tab thereof) where Excess CIAC is determined in the column titled “Excess CIAC,” Closing Cash CIAC is determined in the column titled “Closing Cash CIAC,” and Closing CIAC Receivables is determined in the column titled “Post close reimbursement for those estimates) Capex spent prior” therein. After its receipt of the Preliminary CIAC and Cash Adjustments Statement, the Purchaser may submit to the Seller in writing any good faith objections or proposed changes to the Seller’s draft of the Preliminary CIAC and Cash Adjustments Statement. The Parties shall in good faith attempt to agree in writing on the draft of the Preliminary CIAC and Cash Adjustments Statement as soon as possible after the Seller’s receipt of the Purchaser’s objections or proposed changes, if any. The estimates agreed to by the Seller and the Purchaser, or, absent such agreement, delivered in the Preliminary CIAC and Cash Adjustments Statement delivered by the Seller (as modified by mutual written agreement of the "Estimated Prorations Certificate"Parties, if applicable), will be the amounts used to calculate the Excess CIAC and Eligible CIAC for purposes of the Closing. At Following the Closing, Buyer shall pay to Sellers (through an increase in the event of any disputes with respect to the Excess CIAC and Eligible CIAC, Sections 1.5(c)-(f) shall apply mutatis mutandis.
(c) At least three (3) Business Days prior to the Closing Date PaymentDate, the Purchaser shall prepare, or cause to be prepared, and deliver to the Seller a statement (the “Funds Flow Statement”), or Sellers shall pay to Buyer (through a reduction utilizing the amounts set forth in the Preliminary Closing Date Payment)Statement and the Preliminary CIAC and Cash Adjustments Statement (in each case as modified by mutual written agreement of the Parties, as the case may beif applicable) setting forth (i) all amounts to be paid to, or retained by, the net amount due as a result of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Within forty-five (45) days after Seller at the Closing, Buyer shall deliver (ii) all amounts to Sellers a statement of be paid, assigned, transferred or credited to the Purchaser at the Closing, and (iii) any adjustments other payments or disbursement to Sellers' estimate be made by or on behalf of the apportionmentsSeller or the Purchaser, as applicable, at the Closing. The Parties shall work in good faith to finalize and mutually agree upon the Funds Flow Statement prior to the Closing, provided that for the avoidance of doubt, the Funds Flow Statement shall not be deemed to modify the rights and obligations of the Parties in any respect and neither the Purchaser nor the Seller shall have any Liability with respect to any amounts or calculations set forth in the Funds Flow Statement except as otherwise expressly provided in this Agreement with respect to the underlying amounts and allocations. Notwithstanding anything in this Agreement to the contrary, the Parties agree that all cash amounts payable by the Purchaser to the Seller at the Closing, and Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as by the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute Buyer's determinations, or if at any time after delivery of Buyer's statement of determinations, Buyer or Sellers determine that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard Seller to the matter Purchaser at the Closing, shall be aggregated and an appropriate adjustment and netted against each other so that only a single, net cash payment shall be made as agreed upon by at the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date"), they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alone, whose decision on the matter shall be made within 30 days of their selection and shall be binding and whose fees and expenses shall be borne by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountant. If the amount of Taxes which are to be prorated pursuant to this Section is not known by forty-five (45) days after the Closing Date, then the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is known, Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, the net amount due as a result of the actual apportionment of such TaxesClosing.
(b) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect to the Purchased Assets and the Station, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated by this Section 3.6.
Appears in 1 contract
Prorations and Adjustments. (a) Expect as otherwise expressly set forth Seller shall be entitled to all MRI generated under the Contracts for the period prior to the Closing; Buyer shall be entitled to all MRI generated under the Contracts accruing thereafter; provided, however, notwithstanding anything contained in this AgreementAgreement to the contrary with respect to prorations, Seller shall not be entitled to a credit for accrued but uncollected MRI, provided that if and to the operation extent such amounts are collected by Buyer following the date of the Station and the income and normal operating expensesclosing ("Adjustment Date"), including, without limitation, accrued liabilities and prepaid expenses, attributable thereto through the Valuation Date such sums forthwith shall be for tendered to Seller (if Buyer receives such sums in the account forms of Sellers and thereafter for the account of Buyer. Expenses for goods or services received both before checks such checks may be endorsed by Buyer from and after the Valuation Date, real Closing). All monies received by Buyer from customers under the Contracts shall first be applied to obligations incurred from and after the Closing. In the event the Seller is obligated to pay ad valorem personal property Taxes and assessmentstaxes or intangible personal property taxes with respect to the purchased Assets, power and utilities charges, and rents and similar prepaid and deferred items same shall be prorated between Sellers Seller and Buyer as of midnight on the Valuation Date (the "Closing Date Adjustments")date of Closing. All special assessments and similar charges or liens imposed against the Purchased Assets in respect of any period of time through the Valuation Date, whether payable in installments or otherwise, Such taxes shall be prorated on the responsibility basis of Sellersthe current year's tax, and amounts with respect to if known. If the Closing shall occur before the amount of current taxes can be determined, such special assessments, charges or liens in respect of any period of time after the Valuation Date taxes shall be prorated upon the responsibility basis of Buyer, the taxes for the most recent fiscal year applied to the latest assessed valuation and such charges shall be adjusted as promptly reprorated after receipt of the current year's tax statement. Payment required hereunder. Three (3) days prior by either party to the Closing Date, Sellers shall estimate in good faith, all apportionments pursuant to this Section 3.6 and shall deliver a certified statement of its estimates to Buyer (which statement shall set forth in reasonable detail the basis for those estimates) (the "Estimated Prorations Certificate"). At the Closing, Buyer shall pay to Sellers (through an increase in the Closing Date Payment), or Sellers shall pay to Buyer (through a reduction in the Closing Date Payment), as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Within forty-five (45) days after the Closing, Buyer shall deliver to Sellers a statement of any adjustments to Sellers' estimate of the apportionments, and Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute Buyer's determinations, or if at any time after delivery of Buyer's statement of determinations, Buyer or Sellers determine that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date"), they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alone, whose decision on the matter other shall be made within 30 days fifteen (15) days' notice by either party to the other when the current taxes are ascertained, and a statement to the effect of their selection and shall be binding and whose fees and expenses shall be borne by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, the numerator of which foregoing is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountant. If the amount of Taxes which are to be prorated pursuant to this Section is not known by forty-five (45) days after set forth on the Closing Date, then the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is known, Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, the net amount due as a result of the actual apportionment of such Taxesstatements.
(b) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect to the Purchased Assets and the Station, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated by this Section 3.6.
Appears in 1 contract
Sources: Asset Purchase Agreement (Guardian International Inc)
Prorations and Adjustments. (a) Expect as otherwise expressly set forth in this Agreement, the operation of the Station and the income and normal operating expenses, including, without limitation, accrued liabilities and prepaid expenses, attributable thereto through the Valuation Date shall be for the account of Sellers and thereafter for the account of Buyer. Expenses for goods or services received both before and after the Valuation Date, real and personal property Taxes and assessments, power and utilities charges, and rents and similar prepaid and deferred items The following shall be prorated and adjusted between Sellers Contributor and Buyer as of the Valuation Date (Closing Date, except as otherwise specified:
12.1. Buyer and Contributor shall divide the "Closing Date Adjustments")cost of any closing escrow fee charged by the Title Company hereunder equally between them;
12.2. All Buyer shall assume in full all new and special assessments (and similar charges in the nature of or liens imposed against in lieu of such assessments) that are assessed and levied with respect to any of the Purchased Assets Land as of the Closing Date. Buyer shall assume all special assessments (and charges in the nature of or in lieu of such assessments) pending with respect to any of the Land as of and levied after the Closing Date;
12.3. In the event of a discrepancy between the Closing Statement and the prorations described above, the Closing Statement shall govern in all events. For purposes of calculating prorations, Buyer shall be deemed to be in title to the Project, and therefore entitled to the income therefrom and responsible for the expenses thereof, for the entire Closing Date. Distributions in respect of any period of time through the Valuation Date, whether payable in installments or otherwise, OP Units acquired by the Contributor shall be the responsibility of Sellers, begin to accrue from and amounts with respect to such special assessments, charges or liens in respect of any period of time after the Valuation Date shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three (3) days prior to the Closing Date, Sellers shall estimate in good faith, all apportionments pursuant to this Section 3.6 and shall deliver a certified statement of its estimates to Buyer (which statement shall set forth in reasonable detail the basis for those estimates) (the "Estimated Prorations Certificate"). At the Closing, Buyer shall pay to Sellers (through an increase in the Closing Date Payment(notwithstanding the fact that such date may not be the applicable record date under the Partnership Agreement), and the amount of distributions paid or Sellers to be paid to the Contributor for any quarter shall pay to Buyer (through a reduction in be prorated accordingly. The terms of this Section 12 shall survive the Closing Date Payment)for a period of twelve (12) months and shall not merge into any conveyancing documents delivered at Closing.
12.4. Notwithstanding anything contained in this Section 12 to the contrary, as the case may beany amounts to be “paid” by Contributor, the net amount due or any amounts to which Buyer is entitled to as a result of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Within forty-five (45) days after the Closing, Buyer shall deliver to Sellers a statement of any adjustments to Sellers' estimate of the apportionments, and Buyer shall pay to Sellers, proration or Sellers shall pay to Buyer, as the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute Buyer's determinations, or if at any time after delivery of Buyer's statement of determinations, Buyer or Sellers determine that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment from Contributor shall be made as agreed upon paid by Buyer and General Partner by adjusting the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date"), they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alone, whose decision on the matter shall be made within 30 days of their selection and shall be binding and whose fees and expenses shall be borne OP Units at Closing by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees payments or adjustments. Contributor shall have no obligation to pay any sums to Buyer or any third party at closing with all such sums and expenses multiplied by a fraction, the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination adjustments treated as reduction of the independent accountant Contribution Consideration and the final position taken paid by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountant. If the amount of Taxes which are to be prorated pursuant to this Section is not known by forty-five (45) days after the Closing Date, then the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is known, Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, the net amount due as a result of the actual apportionment of such Taxes.
(b) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect to the Purchased Assets and the Station, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated by this Section 3.6.
Appears in 1 contract
Sources: Contribution Agreement (First Capital Real Estate Trust Inc)
Prorations and Adjustments. (a) Expect as otherwise expressly set forth in this Agreement, All items of income and expense which accrue up to the operation of Cut-Off Time and which relate to the Station and the income and normal operating expenses, including, without limitation, accrued liabilities and prepaid expenses, attributable thereto through the Valuation Date Assets shall be for the account of Sellers the Estate, and thereafter all items of income and expense which accrue from and after the Cut-Off Time and which relate to the Station Assets shall be for the account of Buyer. Expenses for goods or services received both before Trustee shall have the sole and exclusive right to bill ▇▇▇ collect any receivables accruing up to the Cut-Off Time with respect to the Assumed Contracts and Buyer shall have the sole and exclusive right to bill ▇▇▇ collect any receivables accruing from and after the Valuation DateCut-Off Time with respect to the Assumed Contracts. All offsets claimed by any party to the Assumed Contracts shall be attributed to the particular time period in respect of which the offset is claimed and no other period. All other income and expense items (including, real and personal property Taxes and assessmentswithout limitation, power and utilities rents, prepaids (excluding however non-cash prepayments such as prepayments arising from the performance of services), deposits, utility charges, commissions, and rents and similar prepaid and deferred items payables) shall be prorated between Sellers at the Closing and Buyer shall be an adjustment to the Purchase Price. All such prorations shall be made on the basis of the actual number of days elapsed as of the Valuation Date (the "Closing Date Adjustments"). All special assessments and similar charges or liens imposed against the Purchased Assets in respect of any period of time through the Valuation Date, whether payable in installments or otherwise, shall be the responsibility based upon a 365 day year. The amount of Sellerssuch prorations shall be subject to adjustment, and amounts with respect to such special assessmentsin cash, charges or liens in respect of any period of time after the Valuation Date Closing as and when complete and accurate information becomes available. Trustee and Buyer agree to cooperate in obtaining such information and all such adjustments shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three (3) days prior to the Closing Date, Sellers shall estimate in good faith, all apportionments pursuant to this Section 3.6 and shall deliver a certified statement of its estimates to Buyer (which statement shall set forth in reasonable detail the basis for those estimates) (the "Estimated Prorations Certificate"). At the Closing, Buyer shall pay to Sellers (through an increase in the Closing Date Payment), or Sellers shall pay to Buyer (through a reduction in the Closing Date Payment), as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Within forty-five (45) made no later than 60 days after the Closing, Buyer shall deliver to Sellers a statement of any adjustments to Sellers' estimate of the apportionments, and Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute Buyer's determinations, or if at any time after delivery of Buyer's statement of determinations, Buyer or Sellers determine that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date"), they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alone, whose decision on the matter shall be made within 30 days of their selection and shall be binding and whose fees and expenses shall be borne by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountant. If the amount of Taxes which are to be prorated pursuant to this Section is not known by forty-five (45) days after the Closing Date, then the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is known, Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, the net amount due as a result of the actual apportionment of such Taxes.
(b) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect to the Purchased Assets and the Station, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated by this Section 3.6.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paxson Communications Corp)
Prorations and Adjustments. (a) Expect as otherwise expressly Prorations and adjustments shall be made between Purchaser and Seller, and shall be set forth in this Agreementthe Settlement Statement agreed to by the parties on or prior to the Closing Date, in accordance with Sections 3.3(a) through (e) below, to the extent ascertainable at or prior to Closing. To the extent not so ascertainable, Purchaser and Seller shall estimate at Closing and finalize prorations and adjustments to the Purchase Price after Closing in the case of the prorations and adjustments described in: (i) Sections 3.3(a) through (e), to the extent reasonably ascertainable, by no later than six (6) months from the date hereof, and (ii) Section 3.3(f), to the extent reasonably ascertainable, no later than one (1) year from the date hereof. Notwithstanding the foregoing, the operation parties understand and agree that finalizing prorations and adjustments to the Purchase Price as aforesaid shall not be deemed to relieve any party for obligations and liabilities retained, assumed or assigned pursuant to this Agreement or in any of the Station Conveyancing Documents, including the respective obligations and the income liabilities under this Section or Section 3.4. Unless otherwise stated hereafter, all prorations and normal operating expenses, including, without limitation, accrued liabilities and prepaid expenses, attributable thereto through the Valuation Date adjustments shall be made on a per diem basis, with Seller responsible for the account number of Sellers days in the applicable period up to the Closing Date and thereafter Purchaser responsible for the account of BuyerClosing Date and all days thereafter. Expenses for goods or services received both before and after Any amount which Purchaser is obligated to pay in accordance with the Valuation Date, real and personal property Taxes and assessments, power and utilities charges, and rents and similar prepaid and deferred items shall be prorated between Sellers and Buyer prorations provided below: (A) which has been paid by Seller as of the Valuation Date (the "Closing Date Adjustments"). All special assessments and similar charges or liens imposed against the Purchased Assets in respect of any period of time through the Valuation Date, whether payable or will be paid outside Closing by Seller in installments or otherwise, shall be the responsibility of Sellers, and amounts with respect to such special assessments, charges or liens in respect of any period of time event the invoices for same are received by Seller after the Valuation Date shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three five (35) business days prior to the Closing Date, Sellers at Seller's election, shall estimate in good faith, all apportionments pursuant to this Section 3.6 and shall deliver a certified statement of its estimates to Buyer (which statement shall set forth in reasonable detail the basis for those estimates) (the "Estimated Prorations Certificate"). At the Closing, Buyer shall pay to Sellers (through an increase in the Closing Date Payment), be reimbursed by Purchaser or Sellers shall pay to Buyer (through a reduction in the Closing Date Payment), as the case may be, the net amount due treated as a result credit in favor of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Within forty-five (45) days after the Closing, Buyer shall deliver to Sellers a statement of any adjustments to Sellers' estimate of the apportionments, and Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute Buyer's determinations, or if at any time after delivery of Buyer's statement of determinations, Buyer or Sellers determine that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date"), they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alone, whose decision Seller on the matter shall be made within 30 days of their selection and shall be binding and whose fees and expenses shall be borne by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountant. If the amount of Taxes which are to be prorated pursuant to this Section is not known by forty-five (45) days after the Closing Date, then the amount of and thereafter Seller shall be solely responsible for making such Taxes payment; or (B) which has not been and will not be estimated paid by Seller as of such date the Closing Date as set forth in this Agreement or otherwise agreed upon between Seller and once Purchaser shall be assumed by and become the sole responsibility of Purchaser and no adjustment shall be made at Closing for same. Any amount which Seller is obligated to pay in accordance with the prorations provided below which has not been paid as of such Taxes is known, Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, the net amount due Closing Date shall: (1) be treated as a result credit in favor of Purchaser on the actual apportionment of Closing Date and Purchaser shall assume and be solely responsible for making such Taxes.
payment; or (b2) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or at Seller's option in the Schedules referenced in such Sections shall, with respect to event the Purchased Assets and the Station, have been cancelled invoices for same are received by Seller after five (5) business days prior to the Closing Date, shall be paid by Seller outside Closing and Seller shall not be taken into account in solely responsible for timely making such payment. Each party agrees to provide the adjustments contemplated by this Section 3.6other with written evidence of payment of such amounts upon request.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Apple Residential Income Trust Inc)
Prorations and Adjustments. (a) Expect as otherwise expressly set forth in this AgreementCurrent real estate taxes, rent, utilities and all other normal income and expense items related to the Assets shall be apportioned between the parties to reflect the principal that all expenses and income arising from the operation of the Station Assets up through 11:59 p.m. EST of the day prior to the Closing Date (the "Adjustment Date") shall be for the account of Seller, and all expenses and income arising from the income and normal operating expenses, including, without limitation, accrued liabilities and prepaid expenses, attributable thereto through operation of the Valuation Assets acquired by Buyer after the Adjustment Date shall be for the account of Sellers and thereafter for the account of Buyer. Expenses for goods or services received both before and after the Valuation Date, real and personal property Taxes and assessments, power and utilities charges, and rents and similar prepaid and deferred items shall be prorated between Sellers and Buyer as of the Valuation Date (the "Closing Date Adjustments"). All special assessments and similar charges or liens imposed against the Purchased Assets in respect of any period of time through the Valuation Date, whether payable in installments or otherwise, shall be the responsibility of Sellers, and amounts with respect to such special assessments, charges or liens in respect of any period of time after the Valuation Date shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three (3) days prior to the Closing Date, Sellers Date Seller shall estimate in good faith, all apportionments pursuant to this Section 3.6 Article IV and shall deliver a certified statement of its estimates to Buyer (which statement shall set forth in reasonable detail the basis for those estimates) (the "Estimated Prorations Certificate"). At the Closing, Buyer shall pay to Sellers (through an increase in the Closing Date Payment)Seller, or Sellers Seller shall pay to Buyer (through a reduction in the Closing Date Payment)Buyer, as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Such payment shall be made by separate certified or cashier's check and not by credit towards or debit from the Purchase Price payable as provided in Article III hereof. Within forty-five sixty (4560) days after the ClosingClosing (the "Payment Date"), Buyer shall deliver to Sellers Seller a statement of any adjustments to Sellers' Seller's estimate of the apportionments, and Buyer shall pay to SellersSeller, or Sellers Seller shall pay to Buyer, as the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute Seller disputes Buyer's determinations, or if at any time after delivery of Buyer's statement of determinations, Buyer or Sellers determine either party determines that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date")matter, they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alonematter, whose decision on the matter shall be made within 30 days of their selection and shall be binding and whose fees and expenses shall be borne equally by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountantparties). If the amount of Taxes which are to be prorated All amounts due pursuant to this Section is subsection that are not known by forty-five (45) days after paid on the Closing Date, then Date or the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is known, Buyer Payment Date shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, the net amount due as a result of the actual apportionment of such Taxes.
(b) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect to the Purchased Assets and the Station, have been cancelled prior to bear interest from the Closing and shall not be taken into account in the adjustments contemplated Date until paid at a rate per annum equal to generally prevailing prime interest rate (as reported by this Section 3.6The Wall Street Journal) plus five percent (5%).
Appears in 1 contract
Sources: Asset Purchase Agreement (Beasley Broadcast Group Inc)
Prorations and Adjustments. (a) Expect as otherwise expressly set forth in this Agreement, the operation of the Station and the income and normal operating expenses, including, without limitation, accrued liabilities and prepaid expenses, attributable thereto through the Valuation Date shall be for the account of Sellers Seller and thereafter for the account of Buyer. Expenses for goods or services received both before and after the Valuation Date, real and personal property Taxes and assessments, power and utilities charges, and rents and similar prepaid and deferred items shall be prorated between Sellers Seller and Buyer as of the Valuation Date (the "Closing Date Adjustments")Date. All special assessments and similar charges or liens imposed against the Purchased Assets Station in respect of any period of time through the Valuation Date, whether payable in installments or otherwise, shall be the responsibility of SellersSeller, and amounts with respect to such special assessments, charges or liens in respect of any period of time after the Valuation Date shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three (3) days prior to the Closing Date, Sellers Seller shall estimate in good faith, all apportionments pursuant to this Section 3.6 and shall deliver a certified statement of its estimates to Buyer (which statement shall set forth in reasonable detail the basis for those estimates) (the "Estimated Prorations Certificate"). At the Closing, Buyer shall pay to Sellers Seller (through an increase in the Closing Date Payment), or Sellers Seller shall pay to Buyer (through a reduction in the Closing Date Payment), as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Within forty-five (45) days after the Closing, Buyer shall deliver to Sellers Seller a statement of any adjustments to Sellers' Seller's estimate of the apportionments, and Buyer shall pay to SellersSeller, or Sellers Seller shall pay to Buyer, as the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute Seller disputes Buyer's determinations, or if at any time after delivery of Buyer's statement of determinations, Buyer or Sellers Seller determine that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter within 15 days of Sellers' Seller's receipt of Buyer's statement of adjustments (the "Dispute Date"), they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alone, whose decision on the matter shall be made within 30 days of their selection and shall be binding and whose fees and expenses shall be borne by each of Sellers Seller and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' Seller's and Buyer's positions upon submission to the independent accountant. If the amount of Taxes which are to be prorated pursuant to this Section is not known by forty-five (45) days after the Closing Date, then the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is known, Buyer shall pay to SellersSeller, or Sellers Seller shall pay to Buyer, as the case may be, the net amount due as a result of the actual apportionment of such Taxes.
(b) Consistent with Sections 2.2(g), 2.3(b)(iii)6.16, 7.7 and 7.8 herein, all intercompany obligations of between the Company, on the one hand, and any ACME Entity or its Affiliates (other than the Company), on the other hand, and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect to the Purchased Assets Company and the Station, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated by this Section 3.6.
Appears in 1 contract
Prorations and Adjustments. (a) Expect All revenues and expenses arising from the Company’s business shall be prorated between Seller and Buyer in accordance with the principle that, except as expressly otherwise expressly set forth in this AgreementAgreement or the LMA, (a) Seller shall be entitled to the operation benefit of all revenues, and shall be responsible for all expenses, relating to the business and operations of the Station and the income and normal operating expenses, including, without limitation, accrued liabilities and prepaid expenses, attributable thereto through the Valuation Date shall be Company for the account of Sellers and thereafter for period ending at 11:59 p.m. on the account of Buyer. Expenses for goods or services received both before and after the Valuation Date, real and personal property Taxes and assessments, power and utilities charges, and rents and similar prepaid and deferred items shall be prorated between Sellers and Buyer as of the Valuation Date (the "Closing Date Adjustments"). All special assessments and similar charges or liens imposed against the Purchased Assets in respect of any period of time through the Valuation Date, whether payable in installments or otherwise, shall be the responsibility of Sellers, and amounts with respect to such special assessments, charges or liens in respect of any period of time after the Valuation Date shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three (3) days day prior to the Closing Date, Sellers and (b) Buyer shall estimate be entitled to the benefit of all revenues, and be responsible for all expenses, relating to the business and operations of the Company thereafter. The outstanding debts of the Company (if any) at Closing, associated with the Liens identified in good faith, all apportionments pursuant to this Section 3.6 and shall deliver a certified statement of its estimates to Buyer (which statement shall set forth in reasonable detail the basis for those estimates) Schedule 5.10 hereto (the "Estimated Prorations Certificate"). At “Closing Liens”) shall be discharged and paid at the Closing, Buyer shall pay and the funds transferred to Sellers (through an increase in the Closing Date Payment), or Sellers shall pay to Buyer (through a reduction in the Closing Date Payment), as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Within forty-five (45) days after the Closing, Buyer shall deliver to Sellers a statement of any adjustments to Sellers' estimate of the apportionments, and Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, Seller pursuant to Section 3.7 any amount due 2.2(b) will be reduced by the Payoff Amount (if applicable) pursuant to Section 13.2(a). Except as a result of the adjustment (or, if there is any disputeotherwise provided herein, the undisputed amount). If Sellers dispute Buyer's determinationsprorations and adjustments contemplated by this Section, or if at any time after delivery of Buyer's statement of determinations, Buyer or Sellers determine that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment extent practicable, shall be made as agreed upon by the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date"), they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alone, whose decision on the matter Closing Date. As to those prorations and adjustments not capable of being ascertained on the Closing Date, an adjustment and proration shall be made within 30 ninety (90) calendar days of their selection the Closing Date. In the event of any disputes between the parties as to such prorations and adjustments, the amounts not in dispute shall nonetheless be paid at the time provided herein and such disputes shall be binding determined by an independent certified public accountant mutually acceptable to the parties, and whose the fees and expenses of such accountant shall be borne paid one half by each of Sellers Buyer and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied one half by a fraction, the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountant. If the amount of Taxes which are to be prorated pursuant to this Section is not known by forty-five (45) days after the Closing Date, then the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is known, Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, the net amount due as a result of the actual apportionment of such TaxesSeller.
(b) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect to the Purchased Assets and the Station, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated by this Section 3.6.
Appears in 1 contract
Sources: Stock Purchase Agreement (Fisher Communications Inc)
Prorations and Adjustments. (a) Expect as otherwise expressly set forth in this AgreementCurrent real estate taxes, rent, utilities and all other normal income and expense items related to the Assets shall be apportioned between the parties to reflect the principal that all expenses and income arising from the operation of the Station and Assets up through 11:59 p.m. Eastern Standard Time ("EST") of the income and normal operating expenses, including, without limitation, accrued liabilities and prepaid expenses, attributable thereto through day prior to the Valuation Closing Date (the "Adjustment Time") shall be for the account of Sellers Seller, and thereafter all expenses and income arising from the operation of the Assets acquired by Buyer after the Adjustment Time shall be for the account of Buyer. Expenses for goods or services received both before and after the Valuation Date, real and personal property Taxes and assessments, power and utilities charges, and rents and similar prepaid and deferred items shall be prorated between Sellers and Buyer as of the Valuation Date (the "Closing Date Adjustments"). All special assessments and similar charges or liens liens, imposed against the Purchased Assets in respect of any period of time through the Valuation DateAdjustment Time, whether payable in installments or otherwise, shall be the responsibility of SellersSeller, and amounts payable with respect to such special assessments, charges or liens imposed after the Adjustment Time in respect of any period of time after the Valuation Date Adjustment Time shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three (3) days prior to the Closing Date, Sellers Date Seller shall estimate in good faith, all apportionments pursuant to this Section 3.6 Article IV and shall deliver a certified statement of its estimates to Buyer (which statement shall set forth in reasonable detail the basis for those estimates) ). To the extent that, as of the Closing Date, the value of the unfulfilled obligations under Sales Agreements, Trade Agreements or Barter Agreements, including any "time bank" provision thereof, exceeds the value of consideration to be received by the Station (determined as of the "Estimated Prorations Certificate"Closing Date), Buyer shall be entitled to a positive cash adjustment. At the Closing, Buyer shall pay to Sellers (through an increase in the Closing Date Payment)Seller, or Sellers Seller shall pay to Buyer (through a reduction in the Closing Date Payment)Buyer, as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in dispute) (the "Estimated Prorations"). Within forty-five sixty (4560) days after the ClosingClosing (the "Payment Date"), Buyer shall deliver to Sellers Seller a statement of any adjustments to Sellers' Seller's estimate of the apportionments, and Buyer shall pay to SellersSeller, or Sellers Seller shall pay to Buyer, as the case may be, pursuant to Section 3.7 any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Sellers dispute Seller disputes Buyer's determinations, or if at any time after delivery of Buyer's statement of determinations, Buyer or Sellers determine either party determines that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter within 15 days of Sellers' receipt of Buyer's statement of adjustments (the "Dispute Date")matter, they shall within 15 days of the Dispute Date mutually select a firm of independent certified public accountants to resolve the items of disagreement alonematter, whose decision on the matter shall be made within 30 days of their selection and shall be binding and whose fees and expenses shall be borne equally by each of Sellers and Buyer, proportionately, in an amount equal the amount of such fees and expenses multiplied by a fraction, the numerator of which is the difference (with such difference being deemed in all cases hereunder to be a positive number without regard to whether such difference is a positive or negative amount) between the final determination of the independent accountant and the final position taken by such party upon submission to the independent accountant and the denominator of which is the difference between the Sellers' and Buyer's positions upon submission to the independent accountantparties). If the amount of Taxes which are to be prorated All amounts due pursuant to this Section is subsection that are not known by forty-five (45) days after paid on the Closing Date or the Payment Date, then the amount of such Taxes will be estimated as of such date and once the amount of such Taxes is knownapplicable, Buyer shall pay to Sellers, or Sellers shall pay to Buyer, as the case may be, the net amount due as bear interest until paid at a result of the actual apportionment of such Taxes.
(b) Consistent with Sections 2.2(g), 2.3(b)(iii), 7.7 and 7.8 herein, all intercompany obligations of any ACME Entity or its Affiliates and any of the other agreements referenced in such Sections or in the Schedules referenced in such Sections shall, with respect rate per annum equal to the Purchased Assets and the Station, have been cancelled prior to the Closing and shall not be taken into account in the adjustments contemplated generally prevailing prime interest rate (as reported by this Section 3.6The Wall Street Journal) plus five percent (5%).
Appears in 1 contract
Sources: Asset Purchase Agreement (Beasley Broadcast Group Inc)