Prorations and Adjustments. The Purchase Price shall be increased or decreased as required to effectuate the proration of revenues and expenses as provided for herein. All revenues and all expenses arising from the operation of the Station, including tower rental, business and license fees (including FCC regulatory fees), utility charges, real and personal property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for taxes arising from the transfer of the Assets under this Agreement), employee compensation, including wages, salaries, commissions, accrued vacation pay and personal days, music license fees and similar prepaid and deferred items, shall be prorated between Purchaser and Sellers in accordance with generally accepted accounting principles and to effect the principle that Sellers shall receive all revenues and shall be responsible for all expenses, costs and liabilities allocable to the operations of the Station for the period prior to 12:01 a.m. on the Closing Date, and Purchaser shall receive all revenues and shall be responsible for all expenses, costs and obligations allocable to the operations of the Station for the period after 12:01 a.m. on the Closing Date, subject to the following: (1) There shall be no adjustment for, and Sellers shall remain solely liable with respect to, any Contract that is included in the Retained Assets and any other obligation or liability not being assumed by Purchaser in accordance with Section 2.02. (2) No adjustment or proration to the Purchase Price shall be made in favor of Sellers or Purchaser for the amount, if any, by which the value of the goods or services to be received by the Station under its trade or barter agreements as of Closing for the Station exceeds, or is less than, the value of any advertising time remaining to be run by the Station as of Closing. (3) There shall be no adjustment or proration to the Purchase Price for program barter. Sellers shall be responsible for payment of all film or programming license fees for periods prior to Closing, and Purchaser shall be responsible for payment of all such fees for periods after Closing. (4) There shall be no adjustment or proration for sick days accrued on or prior to Closing by any employee of Sellers, all of which shall be assumed by Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Gray Communications Systems Inc /Ga/)
Prorations and Adjustments. The Purchase Price shall be increased or decreased (a) Except as required to effectuate the proration of revenues otherwise provided herein, all deposits, reserves and expenses as provided for herein. All revenues prepaid and all deferred income and expenses arising from the operation conduct of the Station, including tower rental, business and license fees (including FCC regulatory fees), utility charges, real and personal property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for taxes arising from the transfer operations of the Assets under this Agreement), employee compensation, including wages, salaries, commissions, accrued vacation pay Clear Channel Stations and personal days, music license fees and similar prepaid and deferred items, Exchange Party Stations shall be prorated between Purchaser and Sellers in accordance with generally accepted accounting principles and to effect as of 11:59 p.m. on the principle that Sellers shall receive all revenues and shall be responsible for all expenses, costs and liabilities allocable to the operations of the Station for the period prior to 12:01 a.m. on date immediately preceding the Closing Date. Such prorations shall include, without limitation, business and Purchaser shall receive all revenues license fees, music and other license fees (including any retroactive adjustments thereof), utility expenses, amounts due or to become due under contracts, rents, lease payments and similar prepaid and deferred items. The prorations and adjustments contemplated by this Section 3.2 shall be responsible for all expenses, costs and obligations allocable to the operations made within ninety (90) calendar days of the Station for the period after 12:01 a.m. on the Closing Date. In the event of any disputes between the parties as to such adjustments, subject the amounts not in dispute shall nonetheless be paid at the time provided herein and such disputes shall be determined by an independent certified public accountant mutually acceptable to the following:
(1) There parties, and the fees and expenses of such accountant shall be no adjustment for, paid one-half by Clear Channel and Sellers shall remain solely liable with respect to, any Contract that is included in the Retained Assets and any other obligation or liability not being assumed one-half by Purchaser in accordance with Section 2.02Exchange Party.
(2b) No adjustment or proration With respect to the Purchase Price shall be made in favor of Sellers or Purchaser for the amountExchange Party Trade Agreements assumed by Clear Channel pursuant to Section 2.1, if any, if there exists on the date of assumption an aggregate negative barter balance (i.e., the amount by which the value of air time (based upon the Exchange Party Stations' then prevailing rates) to be provided exceeds the fair market value of goods or services to be received therefor), then such excess will be treated as prepaid time sales and adjusted for as a proration in Clear Channel's favor. If, however, there exists on such date an aggregate positive barter balance (i.e., the amount by the Station under its trade or barter agreements as of Closing for the Station exceeds, or is less than, which the value of any advertising time remaining airtime (based upon the Exchange Party Stations' then prevailing rates) to be run provided is less than the fair market value of goods or services to be received therefor) with respect to Exchange Party Trade Agreements assumed by the Station as of ClosingClear Channel, there shall be no proration in Exchange Party's favor.
(3c) There With respect to Clear Channel Trade Agreements assumed by Exchange Party pursuant to Section 2.3, if any, if there exists on the date of assumption an aggregate negative barter balance (i.e., the amount by which the value of air time (based upon the Clear Channel Stations' then prevailing rates) to be provided exceeds the fair market value of goods or services to be received therefor), then such excess will be treated as prepaid time sales and adjusted for as a proration in Exchange Party's favor. If, however, there exists on such date an aggregate positive barter balance (i.e., the amount by which the value of airtime (based upon the Clear Channel Stations' then prevailing rates) to be provided is less than the fair market value of goods or services to be received therefor) with respect to Clear Channel Trade Agreements assumed by Exchange Party, there shall be no adjustment or proration to the Purchase Price for program barter. Sellers shall be responsible for payment of all film or programming license fees for periods prior to Closing, and Purchaser shall be responsible for payment of all such fees for periods after Closingin Clear Channel's favor.
(4d) There Payment of the Cash Amount at Closing shall be no adjustment or proration for sick days accrued on or prior subject to any offsets of amounts due Buyer by Seller under the Asset Purchase Agreement dated September 6, 2000, as amended, and the Phase II Closing and Post Closing Agreement dated October 2, 2000, by any employee of Sellers, all of which shall be assumed by Purchaserand between Seller and Buyer.
Appears in 1 contract
Prorations and Adjustments. The Purchase Price shall be increased or decreased as required to effectuate the proration of revenues (a) All prepaid and deferred income and expenses as provided for herein. All revenues relating to the Station Assets and all expenses arising from the operation of the StationStation shall be prorated between Buyer and Seller in accordance with accounting principles generally accepted in the United States (“GAAP”) as of 12:01 a.m. on the day of Closing (the “Effective Time”). Such prorations shall include without limitation all music and other license fees, including tower rentalemployee performance incentives set forth in employment agreements or annual compensation plans, business and license fees any vacation for Transferred Employees (including FCC regulatory feesas defined below) (except accruals for the fiscal year of Seller in which Closing occurs for which there shall be no adjustment), utility chargesexpenses, real rent and personal property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for taxes arising from the transfer of the Assets amounts under this Agreement), employee compensation, including wages, salaries, commissions, accrued vacation pay and personal days, music license fees Station Contracts and similar prepaid and deferred items. Seller shall receive a credit for all of the Station’s deposits and prepaid expenses. Sales commissions related to the sale of advertisements broadcast on the Station prior to the Effective Time shall be the responsibility of Seller, and sales commissions related to the sale of advertisements broadcast on the Station after the Effective Time shall be the responsibility of Buyer. All Taxes, other than transfer taxes, related to the Station Assets accrued or accruable with respect to events occurring on or prior to the Effective Time shall be borne by Seller. All Taxes related to the Station Assets accrued or accruable with respect to events occurring after the Effective Time, including any transfer taxes, shall be prorated between Purchaser borne by Buyer. Ad valorem, real estate and Sellers in accordance other property Taxes (except transfer taxes as provided by Section 11.1), if any, with generally accepted accounting principles and respect to effect the principle that Sellers shall receive all revenues and Station Assets shall be responsible pro-rated on a per diem basis.
(b) With respect to trade, barter or similar agreements for all expensesthe sale of time for goods or services assumed by Buyer pursuant to Section 1.1(d), costs if at Closing the Station has an aggregate negative or positive barter balance (i.e., the amount by which the value of air time to be provided by the Station after the Effective Time exceeds, or conversely, is less than, the fair market value of corresponding goods and liabilities allocable to services), there shall be no proration or adjustment, unless the operations negative or positive barter balance of the Station as an aggregate exceeds $10,000, in which event such excess or deficiency, as the case may be, shall be treated either as prepaid time sales or a receivable of Seller, and adjusted for as a proration in Buyer’s or Seller’s favor, as applicable. In determining barter balances, the period prior to 12:01 a.m. on value of air time shall be based upon Seller’s rates as of the Closing Date, and Purchaser corresponding goods and services shall receive all revenues and shall be responsible for all expenses, costs and obligations allocable to the operations of the Station for the period after 12:01 a.m. on the Closing Date, subject to the following:
(1) There shall be no adjustment for, and Sellers shall remain solely liable with respect to, any Contract that is included in the Retained Assets and any other obligation or liability not being assumed by Purchaser in accordance with Section 2.02.
(2) No adjustment or proration to the Purchase Price shall be made in favor of Sellers or Purchaser for the amount, if any, by which the value of the goods or services include those to be received by the Station under its trade or barter agreements after Closing plus those received by the Station before Closing to the extent conveyed by Seller to Buyer as a part of the Station Assets.
(c) No later than three (3) business days prior to the Closing Date, Seller shall provide Buyer with a statement setting forth a reasonably detailed computation of Seller’s reasonable and good faith estimate of the Adjustment Amount (as defined below) as of Closing for (the Station exceeds, or is less than“Preliminary Adjustment Report”). As used herein, the value of any advertising time remaining to be run “Adjustment Amount” means the net amount by the Station as of Closing.
(3) There shall be no adjustment or proration to which the Purchase Price for program barteris to be increased or decreased in accordance with this Section 1.6. Sellers If the Adjustment Amount reflected on the Preliminary Adjustment Report is a credit to Buyer, then the Purchase Price payable at Closing shall be responsible for payment reduced by the amount of all film or programming license fees for periods prior the preliminary Adjustment Amount, and if the Adjustment Amount reflected on the Preliminary Adjustment Report is a charge to Buyer, then the Purchase Price payable at Closing shall be increased by the amount of such preliminary Adjustment Amount. For a period of ninety (90) days after Closing, Seller and Purchaser its auditors and Buyer and its auditors may review the Preliminary Adjustment Report and the related books and records of Seller with respect to the Station, and Buyer and Seller will in good faith seek to reach agreement on the final Adjustment Amount. If agreement is reached within such 90-day period, then, within five (5) business days thereafter, Seller shall be responsible for payment pay to Buyer or Buyer shall pay to Seller, as the case may be, an amount equal to the difference between (i) the agreed Adjustment Amount and (ii) the preliminary Adjustment Amount indicated in the Preliminary Adjustment Report. If agreement is not reached within such 90-day period, then the dispute resolutions of all such fees for periods after ClosingSection 1.6(d) shall apply.
(4) There shall be no adjustment or proration for sick days accrued on or prior to Closing by any employee of Sellers, all of which shall be assumed by Purchaser.
Appears in 1 contract
Prorations and Adjustments. The Purchase Price shall be increased or decreased as required to effectuate the proration of revenues (a) All prepaid and deferred income and expenses as provided for herein. All revenues relating to the Station Assets and all expenses arising from the operation of the Station, including tower rental, business Station shall be prorated between Buyer and license fees Seller in accordance with accounting principles generally accepted in the United States (including FCC regulatory fees“GAAP”) as of 12:01 a.m. on the day of Closing (the “Effective Time”), utility charges. Such prorations shall include without limitation all ad valorem, real estate and personal other property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for transfer taxes arising from the transfer of the Assets under this Agreementas provided by Section 11.1), employee compensationmusic and other license fees, including wagesutility expenses, salaries, commissions, accrued vacation pay rent and personal days, music license fees other amounts under Station Contracts and similar prepaid and deferred items, shall be prorated between Purchaser and Sellers in accordance with generally accepted accounting principles and to effect the principle that Sellers . Seller shall receive all revenues and shall be responsible a credit for all expenses, costs and liabilities allocable to the operations of the Station for the period prior to 12:01 a.m. on the Closing Date, Station’s deposits and Purchaser shall receive all revenues and shall be responsible for all prepaid expenses, costs and obligations allocable to the operations of the Station for the period after 12:01 a.m. on the Closing Date, subject to the following:
(1) There shall be no adjustment for, and Sellers shall remain solely liable with respect to, any Contract that is included in the Retained Assets and any other obligation or liability not being assumed by Purchaser in accordance with Section 2.02.
(2b) No adjustment With respect to trade, barter or proration to the Purchase Price shall be made in favor of Sellers or Purchaser similar agreements for the amountsale of time for goods or services assumed by Buyer pursuant to Section 1.1(d), if anyat Closing the Station has an aggregate negative or positive barter balance (i.e., the amount by which the value of air time to be provided by the Station after the Effective Time exceeds, or conversely, is less than, the fair market value of corresponding goods and services), there shall be no proration or adjustment, unless the negative or positive barter balance of the Station as an aggregate exceeds $5,000 for the Station or $5,000 for WWVR, in which event such excess or deficiency, as the case may be, shall be treated either as prepaid time sales or a receivable of Seller, and adjusted for as a proration in Buyer’s or Seller’s favor, as applicable. In determining barter balances, the value of air time shall be based upon Seller’s rates as of Closing, and corresponding goods and services shall include those to be received by the Station under its trade or barter agreements after Closing plus those received by the Station before Closing to the extent conveyed by Seller to Buyer as a part of the Station Assets.
(c) No later than three (3) business days prior to the scheduled Closing date, Seller shall provide Buyer with a statement setting forth a reasonably detailed computation of Seller’s reasonable and good faith estimate of the Adjustment Amount (defined below) as of Closing for (the Station exceeds, or is less than“Preliminary Adjustment Report”). As used herein, the value of any advertising time remaining “Adjustment Amount” means the net amount by which the Purchase Price is to be run increased or decreased in accordance with this Section 1.7. If the Adjustment Amount reflected on the Preliminary Adjustment Report is a credit to Buyer, then the Purchase Price payable at Closing shall be reduced by the Station amount of the preliminary Adjustment Amount, and if the Adjustment Amount reflected on the Preliminary Adjustment Report is a charge to Buyer, then the Purchase Price payable at Closing shall be increased by the amount of such preliminary Adjustment Amount. For a period of ninety (90) days after Closing, Seller and its auditors and Buyer and its auditors may review the Preliminary Adjustment Report and the related books and records of Seller with respect to the Station, and Buyer and Seller will in good faith seek to reach agreement on the final Adjustment Amount. If agreement is reached within such 90-day period, then promptly thereafter Seller shall pay to Buyer or Buyer shall pay to Seller, as the case may be, an amount equal to the difference between (i) the agreed Adjustment Amount and (ii) the preliminary Adjustment Amount indicated in the Preliminary Adjustment Report. If agreement is not reached within such 90-day period, then the dispute resolutions of ClosingSection 1.7(d) shall apply.
(3d) There If the parties do not reach an agreement on the Adjustment Amount within the 90-day period specified in Section 1.7(c), then Seller and Buyer shall select an independent accounting firm (the “Arbitrating Firm”) to resolve the disputed items. If Seller and Buyer do not agree on the Arbitrating Firm within five (5) calendar days after the end of such 90-day period, then the Arbitrating Firm shall be no adjustment a regionally or proration state-wide recognized independent accounting firm selected by lot (after excluding one firm designated by Seller and one firm designated by Buyer). Buyer and Seller shall each inform the Arbitrating Firm in writing as to their respective positions with respect to the Purchase Price Adjustment Amount, and each shall make available to the Arbitrating Firm any books and records and work papers relevant to the preparation of the Arbitrating Firm’s computation of the Adjustment Amount. The Arbitrating Firm shall be instructed to complete its analysis within thirty (30) days from the date of its engagement and upon completion to inform the parties in writing of its own determination of the Adjustment Amount, the basis for program barterits determination. Sellers Any determination by the Arbitrating Firm in accordance with this Section shall be final and binding on the parties. Within five (5) calendar days after the Arbitrating Firm delivers to the parties its written determination of the Adjustment Amount, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, an amount equal to the difference between (i) the Adjustment Amount as determined by the Arbitrating Firm and (ii) the preliminary Adjustment Amount indicated in the Preliminary Adjustment Report. Buyer and Seller shall each pay one-half of the fees and expenses of the Arbitrating Firm, and each of Buyer and Seller shall be responsible for payment its own fees and expense of all film or programming license fees for periods prior to Closing, and Purchaser shall be responsible for payment of all such fees for periods after Closingarbitration.
(4) There shall be no adjustment or proration for sick days accrued on or prior to Closing by any employee of Sellers, all of which shall be assumed by Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emmis Communications Corp)
Prorations and Adjustments. The Purchase Price shall be increased or decreased as required to effectuate the proration of revenues (a) All prepaid and deferred income and expenses as provided for herein. All revenues relating to the Station Assets and all expenses arising from the operation of the StationStation shall be prorated between Buyer and Seller in accordance with accounting principles generally accepted in the United States ("GAAP") as of 12:01 a.m. on the day of Closing (the "Effective Time"). Such prorations shall include without limitation all ad valorem, including tower rentalreal estate and other property taxes (except transfer taxes as provided by Section 11.1), business music and other license fees fees, make good advertising to be provided by Buyer, employee performance incentives set forth in employment agreements or annual compensation plans, any vacation for Transferred Employees (including FCC regulatory feesdefined below) (except accruals for the fiscal year of Seller in which Closing occurs for which there shall be no adjustment), utility chargesexpenses, real rent and personal property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for taxes arising from the transfer of the Assets amounts under this Agreement), employee compensation, including wages, salaries, commissions, accrued vacation pay and personal days, music license fees Station Contracts and similar prepaid and deferred items, . Seller shall receive a credit for the unapplied portion of all of the Station's deposits and prepaid expenses. Sales commissions related to the sale of advertisements broadcast on the Station prior to the Effective Time shall be prorated the responsibility of Seller, and sales commissions related to the sale of advertisements broadcast on the Station after the Effective Time shall be the responsibility of Buyer. All revenue and operating expenses of the Station shall be further adjusted and allocated between Purchaser Seller and Sellers in accordance with generally accepted accounting principles and Buyer to the extent necessary to effect the principle that Sellers shall receive all revenues such income and shall be responsible for all expenses, costs and liabilities allocable expenses attributable to the operations operation of the Station on and after the Closing Date shall be for the period prior to 12:01 a.m. on the Closing Date, account of Buyer and Purchaser shall receive all revenues such income and shall be responsible for all expenses, costs and obligations allocable expenses attributable to the operations operation of the Station prior to the Closing Date shall be for the period after 12:01 a.m. on the Closing Date, subject to the following:account of Seller
(1b) There shall be no adjustment forWith respect to trade, and Sellers shall remain solely liable with respect to, any Contract that is included in barter or similar agreements for the Retained Assets and any other obligation sale of time for goods or liability not being services assumed by Purchaser in accordance with Buyer pursuant to Section 2.02.
(2) No adjustment or proration to the Purchase Price shall be made in favor of Sellers or Purchaser for the amount1.1(d), if anyat Closing the Station has an aggregate negative or positive barter balance (I.E., the amount by which the value of air time to be provided by the Station after the Effective Time exceeds, or conversely, is less than, the fair market value of corresponding goods and services), there shall be no proration or adjustment, unless the negative or positive barter balance of the Station as an aggregate exceeds $20,000, in which event such excess or deficiency, as the case may be, shall be treated either as prepaid time sales or a receivable of Seller, and adjusted for as a proration in Buyer's or Seller's favor, as applicable. In determining barter balances, the value of air time shall be based upon Seller's rates as of Closing, and corresponding goods and services shall include those to be received by the Station under its trade or barter agreements after Closing plus those received by the Station before Closing to the extent conveyed by Seller to Buyer as a part of the Station Assets.
(c) No later than three (3) Business Days prior to the scheduled Closing date, Seller shall provide Buyer with a statement setting forth a reasonably detailed computation of Seller's reasonable and good faith estimate of the Adjustment Amount (defined below) as of Closing for (the Station exceeds, or is less than"Preliminary Adjustment Report"). As used herein, the value of any advertising time remaining to be run "Adjustment Amount" means the net amount by the Station as of Closing.
(3) There shall be no adjustment or proration to which the Purchase Price for program barteris to be increased or decreased in accordance with this Section 1.6. Sellers If the Adjustment Amount reflected on the Preliminary Adjustment Report is a credit to Buyer, then the Purchase Price payable at Closing shall be responsible for payment reduced by the amount of all film or programming license fees for periods prior the preliminary Adjustment Amount, and if the Adjustment Amount reflected on the Preliminary Adjustment Report is a charge to Buyer, then the Purchase Price payable at Closing shall be increased by the amount of such preliminary Adjustment Amount. For a period of ninety (90) days after Closing, Seller and Purchaser its auditors and Buyer and its auditors may review the Preliminary Adjustment Report and the related books and records of Seller with respect to the Station, and Buyer and Seller will in good faith seek to reach agreement on the final Adjustment Amount. If agreement is reached within such 90-day period, then promptly thereafter Seller shall be responsible for payment pay to Buyer or Buyer shall pay to Seller, as the case may be, an amount equal to the difference between (i) the agreed Adjustment Amount and (ii) the preliminary Adjustment Amount indicated in the Preliminary Adjustment Report. If agreement is not reached within such 90-day period, then the dispute resolutions of all such fees for periods after ClosingSection 1.6(d) shall apply.
(4) There shall be no adjustment or proration for sick days accrued on or prior to Closing by any employee of Sellers, all of which shall be assumed by Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emmis Communications Corp)
Prorations and Adjustments. The Purchase Price shall be increased or decreased as required to effectuate the proration of revenues (a) All prepaid and deferred income and expenses as provided for herein. All revenues relating to the Station Assets and all expenses arising from the operation of the StationStation shall be prorated between Buyer and Seller in accordance with accounting principles generally accepted in the United States (“GAAP”) as of 12:01 a.m. on the day of Closing (the “Effective Time”). Such prorations shall include without limitation all ad valorem, including tower rentalreal estate and other property taxes (except transfer taxes as provided by Section 11.1), business music and other license fees fees, make good advertising to be provided by Buyer, employee performance incentives set forth in employment agreements or annual compensation plans, any vacation for Transferred Employees (including FCC regulatory feesdefined below) (except accruals for the fiscal year of Seller in which Closing occurs for which there shall be no adjustment), utility chargesexpenses, real rent and personal property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for taxes arising from the transfer of the Assets amounts under this Agreement), employee compensation, including wages, salaries, commissions, accrued vacation pay and personal days, music license fees Station Contracts and similar prepaid and deferred items, . Seller shall receive a credit for the unapplied portion of all of the Station’s deposits and prepaid expenses. Sales commissions related to the sale of advertisements broadcast on the Station prior to the Effective Time shall be prorated the responsibility of Seller, and sales commissions related to the sale of advertisements broadcast on the Station after the Effective Time shall be the responsibility of Buyer. All revenue and operating expenses of the Station shall be further adjusted and allocated between Purchaser Seller and Sellers in accordance with generally accepted accounting principles and Buyer to the extent necessary to effect the principle that Sellers shall receive all revenues such income and shall be responsible for all expenses, costs and liabilities allocable expenses attributable to the operations operation of the Station on and after the Closing Date shall be for the period prior to 12:01 a.m. on the Closing Date, account of Buyer and Purchaser shall receive all revenues such income and shall be responsible for all expenses, costs and obligations allocable expenses attributable to the operations operation of the Station prior to the Closing Date shall be for the period after 12:01 a.m. on the Closing Date, subject to the following:account of Seller
(1b) There shall be no adjustment forWith respect to trade, and Sellers shall remain solely liable with respect to, any Contract that is included in barter or similar agreements for the Retained Assets and any other obligation sale of time for goods or liability not being services assumed by Purchaser in accordance with Buyer pursuant to Section 2.02.
(2) No adjustment or proration to the Purchase Price shall be made in favor of Sellers or Purchaser for the amount1.1(d), if anyat Closing the Station has an aggregate negative or positive barter balance (i.e., the amount by which the value of air time to be provided by the Station after the Effective Time exceeds, or conversely, is less than, the fair market value of corresponding goods and services), there shall be no proration or adjustment, unless the negative or positive barter balance of the Station as an aggregate exceeds $20,000, in which event such excess or deficiency, as the case may be, shall be treated either as prepaid time sales or a receivable of Seller, and adjusted for as a proration in Buyer’s or Seller’s favor, as applicable. In determining barter balances, the value of air time shall be based upon Seller’s rates as of Closing, and corresponding goods and services shall include those to be received by the Station under its trade or barter agreements after Closing plus those received by the Station before Closing to the extent conveyed by Seller to Buyer as a part of the Station Assets.
(c) No later than three (3) Business Days prior to the scheduled Closing date, Seller shall provide Buyer with a statement setting forth a reasonably detailed computation of Seller’s reasonable and good faith estimate of the Adjustment Amount (defined below) as of Closing for (the Station exceeds, or is less than“Preliminary Adjustment Report”). As used herein, the value of any advertising time remaining “Adjustment Amount” means the net amount by which the Purchase Price is to be run increased or decreased in accordance with this Section 1.6. If the Adjustment Amount reflected on the Preliminary Adjustment Report is a credit to Buyer, then the Purchase Price payable at Closing shall be reduced by the Station amount of the preliminary Adjustment Amount, and if the Adjustment Amount reflected on the Preliminary Adjustment Report is a charge to Buyer, then the Purchase Price payable at Closing shall be increased by the amount of such preliminary Adjustment Amount. For a period of ninety (90) days after Closing, Seller and its auditors and Buyer and its auditors may review the Preliminary Adjustment Report and the related books and records of Seller with respect to the Station, and Buyer and Seller will in good faith seek to reach agreement on the final Adjustment Amount. If agreement is reached within such 90-day period, then promptly thereafter Seller shall pay to Buyer or Buyer shall pay to Seller, as the case may be, an amount equal to the difference between (i) the agreed Adjustment Amount and (ii) the preliminary Adjustment Amount indicated in the Preliminary Adjustment Report. If agreement is not reached within such 90-day period, then the dispute resolutions of ClosingSection 1.6(d) shall apply.
(3d) There If the parties do not reach an agreement on the Adjustment Amount within the 90-day period specified in Section 1.6(c), then Seller and Buyer shall be no adjustment or proration select an independent accounting firm of recognized national standing (the “Arbitrating Firm”) to resolve the Purchase Price for program barter. Sellers shall be responsible for payment of all film or programming license fees for periods prior to Closing, and Purchaser shall be responsible for payment of all such fees for periods after Closing.
(4) There shall be no adjustment or proration for sick days accrued on or prior to Closing by any employee of Sellers, all of which shall be assumed by Purchaser.disputed
Appears in 1 contract
Sources: Asset Purchase Agreement (Hearst Argyle Television Inc)
Prorations and Adjustments. The Purchase Price shall be increased or decreased as required to effectuate the proration of revenues (a) All prepaid and deferred income and expenses as provided for herein. All revenues relating to the Station Assets and all expenses arising from the operation of the Station, including tower rental, business Stations shall be prorated between Buyer and license fees Seller in accordance with accounting principles generally accepted in the United States (including FCC regulatory fees“GAAP”) as of 12:01 a.m. on the day of Closing (the “Effective Time”), utility charges. Such prorations shall include without limitation all ad valorem, real estate and personal other property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for transfer taxes arising from the transfer of the Assets under this Agreementas provided by Section 11.1), employee compensation, including wages, salaries, commissions, accrued vacation pay music and personal days, music other license fees through the date of Closing, utility expenses, rent and other amounts under Station Contracts and similar prepaid and deferred items, shall be prorated between Purchaser and Sellers in accordance with generally accepted accounting principles and to effect the principle that Sellers . Seller shall receive all revenues and shall be responsible a credit for all expenses, costs and liabilities allocable to the operations of the Station for the period prior to 12:01 a.m. on the Closing Date, Stations’ deposits and Purchaser shall receive all revenues and shall be responsible for all prepaid expenses, costs and obligations allocable to the operations of the Station for the period after 12:01 a.m. on the Closing Date, subject to the following:
(1) There shall be no adjustment for, and Sellers shall remain solely liable with respect to, any Contract that is included in the Retained Assets and any other obligation or liability not being assumed by Purchaser in accordance with Section 2.02.
(2b) No adjustment With respect to trade, barter or proration to the Purchase Price shall be made in favor of Sellers or Purchaser similar agreements for the amountsale of time for goods or services assumed by Buyer pursuant to Section 1.1(d), if anyat Closing the Stations have an aggregate negative or positive barter balance (i.e., the amount by which the value of air time to be provided by the Stations after the Effective Time exceeds, or conversely, is less than, the fair market value of corresponding goods and services), there shall be no proration or adjustment, unless the negative or positive barter balance of the Stations as an aggregate exceeds $5,000 per Station, in which event such excess or deficiency, as the case may be, shall be treated either as prepaid time sales or a receivable of Seller, and adjusted for as a proration in Buyer’s or Seller’s favor, as applicable. In determining barter balances, the value of air time shall be based upon Seller’s rates as of Closing, and corresponding goods and services shall include those to be received by the Stations after Closing plus those received by the Stations before Closing to the extent conveyed by Seller to Buyer as a part of the Station under its trade or barter agreements Assets.
(c) No later than three (3) business days prior to the scheduled Closing date, Seller shall provide Buyer with a statement setting forth a reasonably detailed computation of Seller’s reasonable and good faith estimate of the Adjustment Amount (defined below) as of Closing for (the Station exceeds, or is less than“Preliminary Adjustment Report”). As used herein, the value of any advertising time remaining “Adjustment Amount” means the net amount by which the Purchase Price is to be run increased or decreased in accordance with this Section 1.7. If the Adjustment Amount reflected on the Preliminary Adjustment Report is a credit to Buyer, then the Purchase Price payable at Closing shall be reduced by the Station amount of the preliminary Adjustment Amount, and if the Adjustment Amount reflected on the Preliminary Adjustment Report is a charge to Buyer, then the Purchase Price payable at Closing shall be increased by the amount of such preliminary Adjustment Amount. For a period of ninety (90) days after Closing, Seller and its auditors and Buyer and its auditors may review the Preliminary Adjustment Report and the related books and records of Seller with respect to the Stations, and Buyer and Seller will in good faith seek to reach agreement on the final Adjustment Amount. If agreement is reached within such 90-day period, then promptly thereafter Seller shall pay to Buyer or Buyer shall pay to Seller, as the case may be, an amount equal to the difference between (i) the agreed Adjustment Amount and (ii) the preliminary Adjustment Amount indicated in the Preliminary Adjustment Report. If agreement is not reached within such 90-day period, then the dispute resolutions of ClosingSection 1.7(d) shall apply.
(3d) There If the parties do not reach an agreement on the Adjustment Amount within the 90-day period specified in Section 1.7(c), then Seller and Buyer shall select an independent accounting firm (the “Arbitrating Firm”) to resolve the disputed items. If Seller and Buyer do not agree on the Arbitrating Firm within five (5) calendar days after the end of such 90-day period, then the Arbitrating Firm shall be no adjustment a regionally or proration state-wide recognized independent accounting firm selected by lot (after excluding one firm designated by Seller and one firm designated by Buyer). Buyer and Seller shall each inform the Arbitrating Firm in writing as to their respective positions with respect to the Purchase Price Adjustment Amount, and each shall make available to the Arbitrating Firm any books and records and work papers relevant to the preparation of the Arbitrating Firm’s computation of the Adjustment Amount. The Arbitrating Firm shall be instructed to complete its analysis within thirty (30) days from the date of its engagement and upon completion to inform the parties in writing of its own determination of the Adjustment Amount, the basis for program barterits determination. Sellers Any determination by the Arbitrating Firm in accordance with this Section shall be final and binding on the parties. Within five (5) calendar days after the Arbitrating Firm delivers to the parties its written determination of the Adjustment Amount, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, an amount equal to the difference between (i) the Adjustment Amount as determined by the Arbitrating Firm and (ii) the preliminary Adjustment Amount indicated in the Preliminary Adjustment Report. Buyer and Seller shall each pay one-half of the fees and expenses of the Arbitrating Firm, and each of Buyer and Seller shall be responsible for payment its own fees and expense of all film or programming license fees for periods prior to Closing, and Purchaser shall be responsible for payment of all such fees for periods after Closingarbitration.
(4) There shall be no adjustment or proration for sick days accrued on or prior to Closing by any employee of Sellers, all of which shall be assumed by Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emmis Communications Corp)
Prorations and Adjustments. The Purchase Price shall be increased or decreased as required to effectuate the proration of revenues and expenses as provided for herein. All revenues and all expenses arising from the operation of the any Station, including tower rental, business and license fees (including FCC regulatory fees), utility charges, real and personal property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for taxes arising from the transfer of the Assets under this Agreement), employee compensation, including wages, salaries, commissions, accrued vacation pay and personal days, music license fees and similar prepaid and deferred items, shall be prorated between Purchaser Buyer and Sellers Seller in accordance with generally accepted accounting principles and to effect the principle that Sellers Seller shall receive all revenues and shall be responsible for all expenses, costs and liabilities allocable to the operations of the any Station for the period prior to 12:01 a.m. on the Closing DateEffective Time, and Purchaser Buyer shall receive all revenues and shall be responsible for all expenses, costs and obligations allocable to the operations of the any Station for the period after 12:01 a.m. on the Closing DateEffective Time, subject to the following:
(1) There shall be no adjustment for, and Sellers Seller shall remain solely liable with respect to, any Contract that is included in the Retained Assets Excluded Contracts and any other obligation or liability not being assumed by Purchaser Buyer in accordance with Section 2.022.7.
(2) No adjustment or proration to the Purchase Price shall be made in favor of Sellers Seller or Purchaser Buyer for the amount, if any, by which the value of the goods or services to be received by the any Station under its trade or barter agreements as of Closing the Effective Time for the such Station exceeds, or is less than, the value of any advertising time remaining to be run by the such Station as of Closingthe Effective Time.
(3) There shall be no adjustment or proration to the Purchase Price for program barter. Sellers shall be responsible for payment of all film or programming license fees for periods prior to Closing, and Purchaser shall be responsible for payment of all such fees for periods after Closing.
(4) There shall be no adjustment or proration for sick days accrued on to the Purchase Price of the payments due under the film or prior to Closing by any employee of Sellers, all of which shall be assumed by Purchaser.programming license agreements except as expressly specified in this Section 2.5(a)
Appears in 1 contract
Prorations and Adjustments. The Purchase Price shall be increased or decreased as required to effectuate the proration of revenues (a) All prepaid and deferred income and expenses as provided for herein. All revenues relating to the Station Assets and all expenses arising from the operation of the StationStation shall be prorated between Buyer and Seller in accordance with accounting principles generally accepted in the United States (“GAAP”) as of 12:01 a.m. on the day of Closing (the “Effective Time”), including tower rentalsuch that all revenue, business income and expenses relating to the operation of the Station and the ownership of the Station Assets prior to the Effective Time shall be for the account of Seller and all revenue, income and expenses relating to the operation of the Station and the ownership of the Station Assets after the Effective Time shall be for the account of Buyer. Such prorations shall include all ad valorem, real estate and other property taxes (except transfer taxes as provided by Section 11.1), music and other license fees fees, employee performance incentives set forth in employment agreements or annual compensation plans (including FCC regulatory feesexcluding any stock or stock option incentives), any vacation for Transferred Employees (except accruals for the fiscal year of Seller in which Closing occurs for which there shall be no adjustment), utility chargesexpenses, real rent and personal property taxes and assessments levied against the Assetsother amounts under Station Contracts, property and equipment rentals, applicable copyright or other FCC annual regulatory fees, including program license payments, sales and service charges, taxes (except for taxes arising from the transfer of the Assets under this Agreement), employee compensation, including wages, salaries, commissions, accrued vacation pay and personal days, music license fees and similar prepaid and deferred items, . Seller shall receive a credit for all of the Station’s deposits and prepaid expenses. Sales commissions related to the sale of advertisements broadcast on the Station prior to the Effective Time shall be prorated between Purchaser the responsibility of Seller, and Sellers in accordance with generally accepted accounting principles and sales commissions related to effect the principle that Sellers shall receive all revenues and sale of advertisements broadcast on the Station after the Effective Time shall be responsible for all expensesthe responsibility of Buyer. To the extent not known, costs real estate and liabilities allocable to personal property taxes shall be apportioned on the operations basis of the Station taxes assessed for the period prior to 12:01 a.m. on preceding year, with a reapportionment as soon as the Closing Date, new tax rate and Purchaser shall receive all revenues and shall valuation can be responsible for all expenses, costs and obligations allocable to ascertained even if such is ascertained after the operations of the Station for the period after 12:01 a.m. on the Closing Date, subject to the following:
(1) There shall be no adjustment for, and Sellers shall remain solely liable with respect to, any Contract that Adjustment Amount is included in the Retained Assets and any other obligation or liability not being assumed by Purchaser in accordance with Section 2.02finally determined.
(2b) No adjustment With respect to trade, barter or proration to the Purchase Price shall be made in favor of Sellers or Purchaser similar agreements for the amountsale of time in exchange for goods or services assumed by Buyer pursuant to Section 1.1(d), if anyas of the Effective Time the Station has an aggregate negative or positive barter balance (i.e., the amount by which the value of air time to be provided by the Station after the Effective Time exceeds, or conversely, is less than, the fair market value of corresponding goods and services), there shall be no proration or adjustment, unless the negative or positive barter balance of the Station as an aggregate exceeds $15,000, in which event such excess or deficiency, as the case may be, shall be treated either as prepaid time sales or a receivable of Seller, and adjusted for as a proration in Buyer’s or Seller’s favor, as applicable. In determining barter balances, the value of air time shall be based upon Seller’s rates as of Closing, and corresponding goods and services shall include those to be received by the Station under its trade or barter agreements after Closing plus those received by the Station before Closing to the extent conveyed by Seller to Buyer as a part of the Station Assets.
(c) No later than three (3) Business Days prior to the scheduled Closing Date, Seller shall provide Buyer with a statement setting forth a reasonably detailed computation of Seller’s reasonable and good faith estimate of the Adjustment Amount as of Closing for (the Station exceeds, or is less than“Preliminary Adjustment Report”). As used herein, the value of any advertising time remaining “Adjustment Amount” means the net amount by which the Purchase Price is to be run increased or decreased in accordance with this Section 1.6. If the Adjustment Amount reflected on the Preliminary Adjustment Report is a credit to Buyer, then the Purchase Price payable at Closing shall be reduced by the Station amount of the preliminary Adjustment Amount, and if the Adjustment Amount reflected on the Preliminary Adjustment Report is a charge to Buyer, then the Purchase Price payable at Closing shall be increased by the amount of such preliminary Adjustment Amount. For a period of 90 calendar days after Closing, Seller and its auditors and Buyer and its auditors may review the Preliminary Adjustment Report and the related books and records of Seller with respect to the Station, and Buyer and Seller will in good faith seek to reach agreement on the final Adjustment Amount. If agreement is reached within such 90-day period, then promptly thereafter Seller shall pay to Buyer or Buyer shall pay to Seller, as the case may be, an amount equal to the difference between (i) the agreed Adjustment Amount and (ii) the preliminary Adjustment Amount indicated in the Preliminary Adjustment Report. If agreement is not reached within such 90-day period, then the dispute resolutions of ClosingSection 1.6(d) shall apply.
(3d) There If the parties do not reach an agreement on the Adjustment Amount within the 90-day period specified in Section 1.6(c), then Seller and Buyer shall select an independent accounting firm of recognized national standing (the “Arbitrating Firm”) to resolve the disputed items. If Seller and Buyer do not agree on the Arbitrating Firm within five (5) calendar days after the end of such 90-day period, then the Arbitrating Firm shall be no adjustment or proration a nationally recognized independent accounting firm selected by lot (after excluding one firm designated by Seller and one firm designated by Buyer). Buyer and Seller shall each inform the Arbitrating Firm in writing as to their respective positions with respect to the Purchase Price for program barterAdjustment Amount, and each shall make available to the Arbitrating Firm any books and records and work papers relevant to the preparation of the Arbitrating Firm’s computation of the Adjustment Amount. Sellers The Arbitrating Firm shall be responsible instructed to complete its analysis within thirty (30) calendar days from the date of its engagement and upon completion to inform the parties in writing of its own determination of the Adjustment Amount, the basis for payment its determination and whether its determination is within the Mid-Range or if not, whether it is closer to Buyer’s or Seller’s written determination of all film or programming license fees for periods prior to Closing, and Purchaser the Adjustment Amount. Any determination by the Arbitrating Firm in accordance with this Section shall be responsible for payment final and binding on the parties. Within five (5) calendar days after the Arbitrating Firm delivers to the parties its written determination of all such fees for periods after Closingthe Adjustment Amount, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, an amount equal to the difference between (i) the Adjustment Amount as determined by the Arbitrating Firm and (ii) the preliminary Adjustment Amount indicated in the Preliminary Adjustment Report.
(4e) There If the Arbitrating Firm’s determination of the Adjustment Amount is within the Mid-Range, then Seller and Buyer shall be no adjustment each pay one-half of the fees and disbursements of the Arbitrating Firm in connection with its analysis. If not, then (i) if the Arbitrating Firm determines that the written position of Buyer concerning the Adjustment Amount is closer to its own determination, then Seller shall pay the fees and disbursements of the Arbitrating Firm in connection with its analysis, or proration for sick days accrued on or prior (ii) if the Arbitrating Firm determines that the written position of Seller concerning the Adjustment Amount is closer to Closing by any employee its own determination, then Buyer shall pay the fees and disbursements of Sellersthe Arbitrating Firm in connection with its analysis. As used herein, all the term “Mid-Range” means a range that (i) equals twenty percent (20%) of which shall be assumed by Purchaserthe absolute difference between the written positions of Buyer and Seller as to the Adjustment Amount and (ii) has a midpoint equal to the average of such written positions of Buyer and Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emmis Communications Corp)
Prorations and Adjustments. The Purchase Price shall be increased or decreased as required to effectuate the proration of revenues and expenses as provided for herein. All revenues and all expenses arising from the operation of the StationBusinesses, including tower billboard rental, business and license fees (including FCC regulatory fees), utility charges, real and personal property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for taxes arising from the transfer of the Assets under this Agreement), employee compensation, including wages, salaries, commissionsaccrued vacation, accrued vacation pay and sick leave, personal days, music and commissions for each employee of Seller who becomes an employee of Buyer, license fees and similar prepaid and deferred items, shall be prorated between Purchaser Buyer and Sellers Seller in accordance with generally accepted accounting principles GAAP and to effect the principle that Sellers Seller shall receive all revenues (other than Accounts Receivable) and shall be responsible for all expenses, costs and liabilities (including, without limitation, performance bonuses payable to the Assumed Employees allocable to the period prior to the Effective Time based on the pro rata accrual of such bonuses over the calendar year on a straight line basis) allocable to the operations of the Businesses for the period prior to the Effective Time, and Buyer shall receive all revenues and shall be responsible for all expenses, costs and liabilities (including, without limitation, performance bonuses payable to the Assumed Employees allocable to the period after the Effective Time based on the pro rata accrual of such bonuses over the calendar year on a straight line basis) allocable to the operations of the Station for the period prior to 12:01 a.m. on the Closing Date, and Purchaser shall receive all revenues and shall be responsible for all expenses, costs and obligations allocable to the operations of the Station Businesses for the period after 12:01 a.m. on the Closing DateEffective Time in accordance with GAAP, subject to the following:
(1) There shall be no adjustment for, and Sellers Seller shall remain solely liable with respect to, any Contract that is included in the Retained Assets Excluded Contracts and any other obligation or liability not being assumed by Purchaser Buyer in accordance with Section 2.022.7.
(2) No adjustment or proration to the Purchase Price shall be made in favor of Sellers or Purchaser Seller for the amount, if any, by which the value of the goods or services to be received by all the Station Stations (as defined in the Group II-V Asset Purchase Agreement) and the Businesses in the aggregate under its their trade or barter agreements as of Closing for the Station exceeds, or is less than, Effective Time exceeds the value of any advertising time remaining to be run by such Stations and the Station Businesses as of Closingthe Effective Time. For purposes of this Agreement, including, without limitation, this Section 2.5 and Section 5.1, the liability for performance obligations relating to advertising time under any trade or barter agreements shall be valued according to the applicable prevailing rates as of the Effective Time, and goods, services or other items being received shall be valued in accordance with GAAP as of the Effective Time.
(3) There shall be no An adjustment or proration shall be made in favor of Buyer to the Purchase Price for program barter. Sellers extent, if any, that (a) the value of the goods or services to be received by all the Stations and the 11 6 Businesses under their trade or barter agreements as of the Effective Time in the aggregate is more than $150,000 less than the value of any advertising time remaining to be run by such Stations and the Businesses thereunder as of the Effective Time (a "Negative Balance") and (b) Buyer has not expressly consented to the trade or barter agreements giving rise to such Negative Balance (and the allocation of such Negative Balance among the Businesses, Group II/III Stations, Group IV Stations and Group V Stations shall be responsible for payment of all film or programming license fees for periods prior to Closing, and Purchaser shall be responsible for payment of all such fees for periods after Closingmade by Seller in its sole discretion).
(4) There shall be no adjustment or proration for sick days accrued on or prior to Closing by any employee of Sellers, all of which shall be assumed by Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paxson Communications Corp)
Prorations and Adjustments. The Purchase Price shall be increased or decreased as required to effectuate the proration of revenues (a) All prepaid and deferred income and expenses as provided for herein. All revenues relating to the Station Assets and all expenses arising from the operation of the StationStation shall be prorated between Buyer and Seller in accordance with accounting principles generally accepted in the United States (“GAAP”) as of 12:01 a.m. on the day of Closing (the “Effective Time”). Such prorations shall include without limitation all ad valorem, including tower rentalreal estate and other property taxes (except transfer taxes as provided by Section 11.1), business music and other license fees fees, employee performance incentives set forth in employment agreements or annual compensation plans, any vacation for Transferred Employees (including FCC regulatory feesdefined below) (except accruals for the fiscal year of Seller in which Closing occurs for which there shall be no adjustment), utility chargesexpenses, real rent and personal property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for taxes arising from the transfer of the Assets amounts under this Agreement), employee compensation, including wages, salaries, commissions, accrued vacation pay and personal days, music license fees Station Contracts and similar prepaid and deferred items, . Seller shall receive a credit for all of the Station’s deposits and prepaid expenses. Sales commissions related to the sale of advertisements broadcast on the Station prior to the Effective Time shall be prorated between Purchaser the responsibility of Seller, and Sellers in accordance with generally accepted accounting principles and sales commissions related to effect the principle that Sellers shall receive all revenues and sale of advertisements broadcast on the Station after the Effective Time shall be responsible for all expenses, costs and liabilities allocable to the operations responsibility of the Station for the period prior to 12:01 a.m. on the Closing Date, and Purchaser shall receive all revenues and shall be responsible for all expenses, costs and obligations allocable to the operations of the Station for the period after 12:01 a.m. on the Closing Date, subject to the following:
(1) There shall be no adjustment for, and Sellers shall remain solely liable with respect to, any Contract that is included in the Retained Assets and any other obligation or liability not being assumed by Purchaser in accordance with Section 2.02Buyer.
(2b) No adjustment With respect to trade, barter or proration to the Purchase Price shall be made in favor of Sellers or Purchaser similar agreements for the amountsale of time for goods or services assumed by Buyer pursuant to Section 1.1(d), if anyat Closing the Station has an aggregate negative or positive barter balance (i.e., the amount by which the value of air time to be provided by the Station after the Effective Time exceeds, or conversely, is less than, the fair market value of corresponding goods and services), there shall be no proration or adjustment, unless the negative or positive barter balance of the Station as an aggregate exceeds $50,000, in which event such excess or deficiency, as the case may be, shall be treated either as prepaid time sales or a receivable of Seller, and adjusted for as a proration in Buyer’s or Seller’s favor, as applicable. In determining barter balances, the value of air time shall be based upon Seller’s rates as of Closing, and corresponding goods and services shall include those to be received by the Station under its trade or barter agreements after Closing plus those received by the Station before Closing to the extent conveyed by Seller to Buyer as a part of the Station Assets.
(c) No later than three (3) business days prior to the scheduled Closing date, Seller shall provide Buyer with a statement setting forth a reasonably detailed computation of Seller’s reasonable and good faith estimate of the Adjustment Amount (defined below) as of Closing for (the Station exceeds, or is less than“Preliminary Adjustment Report”). As used herein, the value of any advertising time remaining “Adjustment Amount” means the net amount by which the Purchase Price is to be run increased or decreased in accordance with this Section 1.7. If the Adjustment Amount reflected on the Preliminary Adjustment Report is a credit to Buyer, then the Purchase Price payable at Closing shall be reduced by the Station amount of the preliminary Adjustment Amount, and if the Adjustment Amount reflected on the Preliminary Adjustment Report is a charge to Buyer, then the Purchase Price payable at Closing shall be increased by the amount of such preliminary Adjustment Amount. For a period of ninety (90) days after Closing, Seller and its auditors and Buyer and its auditors may review the Preliminary Adjustment Report and the related books and records of Seller with respect to the Station, and Buyer and Seller will in good faith seek to reach agreement on the final Adjustment Amount. If agreement is reached within such 90-day period, then promptly thereafter Seller shall pay to Buyer or Buyer shall pay to Seller, as the case may be, an amount equal to the difference between (i) the agreed Adjustment Amount and (ii) the preliminary Adjustment Amount indicated in the Preliminary Adjustment Report. If agreement is not reached within such 90-day period, then the dispute resolutions of ClosingSection 1.7(d) shall apply.
(3d) There If the parties do not reach an agreement on the Adjustment Amount within the 90-day period specified in Section 1.7(c), then Seller and Buyer shall select an independent accounting firm of recognized national standing (the “Arbitrating Firm”) to resolve the disputed items. If Seller and Buyer do not agree on the Arbitrating Firm within five (5) calendar days after the end of such 90-day period, then the Arbitrating Firm shall be no adjustment or proration a nationally recognized independent accounting firm selected by lot (after excluding one firm designated by Seller and one firm designated by Buyer). Buyer and Seller shall each inform the Arbitrating Firm in writing as to their respective positions with respect to the Purchase Price for program barterAdjustment Amount, and each shall make available to the Arbitrating Firm any books and records and work papers relevant to the preparation of the Arbitrating Firm’s computation of the Adjustment Amount. Sellers The Arbitrating Firm shall be responsible instructed to complete its analysis within thirty (30) days from the date of its engagement and upon completion to inform the parties in writing of its own determination of the Adjustment Amount, the basis for payment its determination and whether its determination is within the Mid-Range (defined below) or if not, whether it is closer to Buyer’s or Seller’s written determination of all film or programming license fees for periods prior to Closing, and Purchaser the Adjustment Amount. Any determination by the Arbitrating Firm in accordance with this Section shall be responsible for payment final and binding on the parties. Within five (5) calendar days after the Arbitrating Firm delivers to the parties its written determination of all such fees for periods after Closingthe Adjustment Amount, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, an amount equal to the difference between (i) the Adjustment Amount as determined by the Arbitrating Firm and (ii) the preliminary Adjustment Amount indicated in the Preliminary Adjustment Report.
(4e) There If the Arbitrating Firm’s determination of the Adjustment Amount is within the Mid-Range, then Seller and Buyer shall be no adjustment each pay one-half of the fees and disbursements of the Arbitrating Firm in connection with its analysis. If not, then (i) if the Arbitrating Firm determines that the written position of Buyer concerning the Adjustment Amount is closer to its own determination, then Seller shall pay the fees and disbursements of the Arbitrating Firm in connection with its analysis, or proration for sick days accrued on or prior (ii) if the Arbitrating Firm determines that the written position of Seller concerning the Adjustment Amount is closer to Closing by any employee its own determination, then Buyer shall pay the fees and disbursements of Sellersthe Arbitrating Firm in connection with its analysis. As used herein, all the term “Mid-Range” means a range that (i) equals twenty percent (20%) of which shall be assumed by Purchaserthe absolute difference between the written positions of Buyer and Seller as to the Adjustment Amount and (ii) has a midpoint equal to the average of such written positions of Buyer and Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emmis Communications Corp)
Prorations and Adjustments. The Purchase Price shall be increased or decreased as required (a) Except with respect to effectuate the proration of revenues those items governed by Section 1.7(c), all prepaid and expenses as provided for herein. All revenues deferred income and all expenses arising from the operation of the StationTownsquare Stations and the Cumulus Stations shall be prorated between the transferors and transferees in accordance with generally accepted accounting principles, including tower rentalconsistently applied (“GAAP”), business and license fees as of 12:01 a.m. local time in each market on the day of Closing (including the “Effective Time”). Such prorations shall include, without limitation, any proration required by Section 5.7, all FCC regulatory fees), utility chargesad valorem, real estate and personal other property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for transfer taxes arising from the transfer of the Assets under this Agreementas provided by Section 11.1), employee compensationmusic and other license fees, including wagesutility expenses, salaries, commissions, accrued vacation pay rent and personal days, music license fees other amounts under contracts and similar prepaid and deferred items, . Each conveying party shall receive a credit for deposits and prepaid expenses (other than for items which are governed by Section 1.7(c)). Sales commissions related to the sale of advertisements broadcast prior to Closing shall be prorated between Purchaser the responsibility of conveying party, and Sellers in accordance with generally accepted accounting principles and sales commissions related to effect the principle that Sellers shall receive all revenues and sale of advertisements broadcast after Closing shall be responsible the responsibility of the acquiring party. Solely for illustrative purposes, Schedule 1.7(a) sets forth a calculation of the net amount of all expenses, costs prorations and liabilities allocable adjustments pursuant to this Section 1.7 with respect to the operations Townsquare Stations and the Cumulus Stations, including, without limitation, a calculation of the Station for the period prior to 12:01 a.m. on the Closing DateNet AR Adjustment Amount (as defined below) as of June 30, and Purchaser shall receive all revenues and shall be responsible for all expenses, costs and obligations allocable to the operations of the Station for the period after 12:01 a.m. on the Closing Date, subject to the following:
(1) There shall be no adjustment for, and Sellers shall remain solely liable with respect to, any Contract that is included in the Retained Assets and any other obligation or liability not being assumed by Purchaser in accordance with Section 2.022013.
(2b) No adjustment With respect to trade, barter or proration to the Purchase Price shall be made in favor of Sellers or Purchaser similar agreements for the amountsale of time for goods or services (“Barter”) assumed by the acquiring party, if anyat Closing the Townsquare Stations or Cumulus Stations, as the case may be, have an aggregate negative or positive Barter balance (i.e., the amount by which the value of air time to be provided by such stations after the Closing exceeds, or conversely, is less than, the fair market value of corresponding goods or and services), there shall be an adjustment therefor in favor of the applicable party. In determining Barter balances, the value of air time shall be based upon the rates of the conveying party as of the date hereof, and the corresponding goods and services shall include those to be received by the Station under its trade or barter agreements as of Closing for applicable stations after the Station exceedsClosing. Notwithstanding anything herein to the contrary, in no event shall Townsquare, on the one hand, or is less thanCumulus, on the value other hand, assume any Barter obligations of any advertising the stations acquired by such party in excess of (i) $200,000 in the aggregate per market or (ii) in the case of Townsquare, $400,000 in the aggregate for all markets and in the case of Cumulus, $600,000 in the aggregate for all markets, in each case for which the goods or services provided by a third party in exchange for on-air time remaining has been provided to be run by the Station as of conveying party prior to Closing.
(3c) There No later than five (5) business days prior to the Closing Date, Cumulus shall provide to Townsquare a statement (including reasonable detail and supporting documentation) setting forth a reasonable and good faith estimate of its calculation of the net amount of all prorations and adjustments pursuant to this Section 1.7 with respect to the Cumulus Stations, including, without limitation, its calculation of the Net AR Adjustment Amount as of the Effective Time. The Cash Consideration payable at Closing shall be no adjustment adjusted by the net amount of such estimated adjustments. For purposes hereof, “Net AR Adjustment Amount” means an amount equal to (A) the sum of (i) the accounts receivable of the Townsquare Stations or proration to the Purchase Price for program barter. Sellers shall be responsible for payment Cumulus Stations, as applicable, as of the Effective Time multiplied by (ii) the acquisition price of such accounts receivables as determined by the age of such accounts receivables as of the Effective Time as set forth on Schedule 1.7(c), less (B) the sum of all film accounts payable of the Townsquare Stations or programming license fees for periods prior the Cumulus Stations, as applicable, as of the Effective Time which remain outstanding as of such time, in each case as calculated pursuant to Closingthis Section 1.7(c) or (d), and Purchaser shall be responsible for payment of all such fees for periods after Closingas appropriate.
(4) There shall be no adjustment or proration for sick days accrued on or prior to Closing by any employee of Sellers, all of which shall be assumed by Purchaser.
Appears in 1 contract
Sources: Asset Purchase and Exchange Agreement (Townsquare Media, LLC)
Prorations and Adjustments. The Purchase Price shall be increased or decreased as required to effectuate the proration of revenues (a) All prepaid and expenses as provided for herein. All revenues deferred income and all expenses arising from the operation of the StationTownsquare Stations and the Cumulus Stations shall be prorated between the transferors and transferees in accordance with generally accepted accounting principles, including tower rentalconsistently applied (“GAAP”), business and license fees as of 12:01 a.m. local time in each market on the day of Closing (including the “Effective Time”). Such prorations shall include, without limitation, any proration required by Section 5.7, all FCC regulatory fees), utility chargesad valorem, real estate and personal other property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for transfer taxes arising from the transfer of the Assets under this Agreementas provided by Section 11.1), employee compensationmusic and other license fees, including wagesutility expenses, salaries, commissions, accrued vacation pay rent and personal days, music license fees other amounts under contracts and similar prepaid and deferred items, . Each conveying party shall receive a credit for deposits and prepaid expenses. Sales commissions related to the sale of advertisements broadcast prior to Closing shall be prorated between Purchaser the responsibility of conveying party, and Sellers in accordance with generally accepted accounting principles and sales commissions related to effect the principle that Sellers shall receive all revenues and sale of advertisements broadcast after Closing shall be responsible for all expenses, costs and liabilities allocable to the operations responsibility of the Station for the period prior to 12:01 a.m. on the Closing Date, and Purchaser shall receive all revenues and shall be responsible for all expenses, costs and obligations allocable to the operations of the Station for the period after 12:01 a.m. on the Closing Date, subject to the following:
(1) There shall be no adjustment for, and Sellers shall remain solely liable with respect to, any Contract that is included in the Retained Assets and any other obligation or liability not being assumed by Purchaser in accordance with Section 2.02acquiring party.
(2b) No adjustment With respect to trade, barter or proration to the Purchase Price shall be made in favor of Sellers or Purchaser similar agreements for the amountsale of time for goods or services (“Barter”) assumed by the acquiring party, if anyat Closing the Townsquare Stations or Cumulus Stations, as the case may be, have an aggregate negative or positive Barter balance (i.e., the amount by which the value of air time to be provided by such stations after the Closing exceeds, or conversely, is less than, the fair market value of corresponding goods or and services), there shall be an adjustment therefor in favor of the applicable party. In determining Barter balances, the value of air time shall be based upon the rates of the conveying party as of the date hereof, and the corresponding goods and services shall include those to be received by the Station under its trade or barter agreements as of Closing for applicable stations after the Station exceedsClosing. Notwithstanding anything herein to the contrary, in no event shall Townsquare, on the one hand, or is less thanCumulus, on the value other hand, assume any Barter obligations of any advertising the stations acquired by such party in excess of (i) $200,000 in the aggregate per market or (ii) $400,000 in the aggregate in the case of the Townsquare Stations and $2,200,000 in the aggregate in the case of the Cumulus Stations, in each case for which the goods or services provided by a third party in exchange for on-air time remaining has been provided to be run by the Station as of conveying party prior to Closing.
(3c) There No later than five (5) business days prior to the Closing Date, (i) Townsquare shall deliver to Cumulus a written statement (including reasonable detail and supporting documentation) setting forth a reasonable and good faith estimate of its calculation of the net amount of all prorations and adjustments pursuant to this Section 1.7 with respect to the Townsquare Stations, and (ii) Cumulus shall provide to Townsquare a statement (including reasonable detail and supporting documentation) setting forth a reasonable and good faith estimate of its calculation of the net amount of all prorations and adjustments pursuant to this Section 1.7 with respect to the Cumulus Stations. Each party’s proposed estimated adjustment shall be no adjustment or proration subject to the Purchase Price for program barterreceiving party’s reasonable consent thereto (not to be unreasonably withheld, delayed or conditioned) (to the extent that a consent is not forthcoming, the party withholding consent shall, together with notice it is not consenting, set forth its explanation of why it is withholding such consent). Sellers To the extent that the net amount of such estimated adjustments, when taken together in the aggregate, results in a credit to Townsquare, then the Cash Consideration payable at Closing shall be responsible for payment of all film or programming license fees for periods prior to Closingreduced by the Estimated Adjustment Amount, and Purchaser to the extent that the net amount of such estimated adjustments, when taken together in the aggregate, results in a credit to Cumulus, then the Cash Consideration payable at Closing shall be responsible for payment of all such fees for periods after Closingincreased by the Estimated Adjustment Amount.
(4d) There As soon as reasonably practicable, and in any event within sixty (60) calendar days after the Closing Date, (i) Cumulus shall deliver to Townsquare a written statement (including reasonable detail and supporting documentation) setting forth its calculation of the actual net amount of all prorations and adjustments pursuant to this Section 1.7 with respect to the Townsquare Stations, and (ii) Townsquare shall deliver to Cumulus a written statement (including reasonable detail and supporting documentation) setting forth its calculation of the actual net amount of all prorations and adjustments pursuant to this Section 1.7 with respect to the Cumulus Stations. Following its receipt of such statements, each party shall permit the other party and its auditors to have access during normal business hours and upon advance written notice to the books, records and other documents pertaining to or used in connection with preparation of such statements. Within thirty (30) calendar days of receipt of such statements, the receiving party shall deliver any objections to the delivering party that it may have to the calculation of the prorations and adjustments (provided, that failure of the receiving party to deliver such notice within such time period shall be no adjustment deemed to be acceptance of the statement of the delivering party by the receiving party). To the extent of any such objections, the parties shall negotiate in good faith to resolve their disputes promptly and mutually agree on the final prorations and adjustments. In the event the parties are unable to resolve any such dispute within thirty (30) calendar days of written notice of the dispute, the parties shall engage a mutually agreeable accountant or proration for sick days accrued on or prior to Closing by any employee of Sellers, all of which other third party (whose fees and expenses shall be assumed equally shared), who shall resolve such dispute and whose determination shall be final and binding on the parties.
(e) The final adjustment amount due to Townsquare or Cumulus, as determined pursuant to Section 1.7(d), shall be paid promptly by Purchasercheck or wire transfer from the party owning the final amount made payable to the party to whom the payment is due. Any adjustment pursuant to this Section 1.7 shall be deemed to be an adjustment to the Cash Consideration for all purposes.
Appears in 1 contract
Sources: Asset Purchase and Exchange Agreement (Townsquare Media, LLC)
Prorations and Adjustments. The Purchase Price shall be increased or decreased as required (a) Except with respect to effectuate the proration of revenues those items governed by Section 1.6(c), all prepaid and expenses as provided for herein. All revenues deferred income and all expenses arising from the operation of the StationStations shall be prorated between Townsquare and Cumulus in accordance with generally accepted accounting principles, including tower rentalconsistently applied (“GAAP”), business and license fees as of 12:01 a.m. local time in each market on the day of Closing (including the “Effective Time”). Such prorations shall include, without limitation, any proration required by Section 5.7, all FCC regulatory fees), utility chargesad valorem, real estate and personal other property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for transfer taxes arising from the transfer of the Assets under this Agreementas provided by Section 11.1), employee compensationmusic and other license fees, including wagesutility expenses, salaries, commissions, accrued vacation pay rent and personal days, music license fees other amounts under contracts and similar prepaid and deferred items, . Cumulus shall receive a credit for deposits and prepaid expenses (other than for items which are governed by Section 1.6(c)). Sales commissions related to the sale of advertisements broadcast prior to Closing shall be prorated between Purchaser the responsibility of Cumulus, and Sellers in accordance with generally accepted accounting principles and sales commissions related to effect the principle that Sellers shall receive all revenues and sale of advertisements broadcast after Closing shall be responsible the responsibility of Townsquare. Solely for illustrative purposes, Schedule 1.6(a) sets forth a calculation of the net amount of all expenses, costs prorations and liabilities allocable adjustments pursuant to this Section 1.6 with respect to the operations Stations, including, without limitation, a calculation of the Station for the period prior to 12:01 a.m. on the Closing DateNet AR Adjustment Amount (as defined below) as of June 30, and Purchaser shall receive all revenues and shall be responsible for all expenses, costs and obligations allocable to the operations of the Station for the period after 12:01 a.m. on the Closing Date, subject to the following:
(1) There shall be no adjustment for, and Sellers shall remain solely liable with respect to, any Contract that is included in the Retained Assets and any other obligation or liability not being assumed by Purchaser in accordance with Section 2.022013.
(2b) No adjustment With respect to trade, barter or proration to the Purchase Price shall be made in favor of Sellers or Purchaser similar agreements for the amountsale of time for goods or services (“Barter”) assumed by Townsquare, if anyat Closing the Stations have an aggregate negative or positive Barter balance (i.e., the amount by which the value of air time to be provided by such stations after the Closing exceeds, or conversely, is less than, the fair market value of corresponding goods or and services), there shall be an adjustment therefor in favor of the applicable party. In determining Barter balances, the value of air time shall be based upon the rates of Stations as of the date hereof, and the corresponding goods and services shall include those to be received by the Station under its trade applicable stations after the Closing. Notwithstanding anything herein to the contrary, in no event shall Townsquare, assume any Barter obligations of the stations acquired by Townsquare in excess of (i) $200,000 in the aggregate per market or barter agreements as of Closing (ii) $2,800,000 in the aggregate for all markets, in each case for which the Station exceeds, goods or is less than, the value of any advertising services provided by a third party in exchange for on-air time remaining has been provided to be run by the Station as of Cumulus prior to Closing.
(3c) There No later than five (5) business days prior to the Closing Date, Cumulus shall provide to Townsquare a statement (including reasonable detail and supporting documentation) setting forth a reasonable and good faith estimate of its calculation of the net amount of all prorations and adjustments pursuant to this Section 1.6 with respect to the Stations, including, without limitation, its calculation of the Net AR Adjustment Amount as of the Effective Date. The Cash Consideration payable at Closing shall be no adjustment or proration adjusted by the net amount of such estimated adjustments. For purposes hereof, “Net AR Adjustment Amount” means an amount equal to (A) the Purchase Price for program barter. Sellers shall be responsible for payment sum of (i) the accounts receivable of the Stations as of the Effective Time multiplied by (ii) the acquisition price of such accounts receivables as determined by the age of such accounts receivables as of the Effective Time as set forth on Schedule 1.6(c), less (B) the sum of all film accounts payable of the Stations as of the Effective Time which remain outstanding as of such time, in each case as calculated pursuant to this Section 1.6(c) or programming license fees for periods prior to Closing(d), and Purchaser shall be responsible for payment of all such fees for periods after Closingas appropriate.
(4) There shall be no adjustment or proration for sick days accrued on or prior to Closing by any employee of Sellers, all of which shall be assumed by Purchaser.
Appears in 1 contract
Prorations and Adjustments. The Purchase Price shall be increased or decreased as required to effectuate the proration of revenues (a) All prepaid and deferred revenue and expenses as provided for herein. All revenues relating to the Station Assets and all expenses arising from the operation of the StationStation shall be prorated between Buyer and Seller in accordance with accounting principles generally accepted in the United States, including tower rentalconsistently applied (“GAAP”) as of 12:01 a.m. on the day of Closing (the “Effective Time”) in accordance with the principle that Seller will be allocated such revenues, business expenses, costs and liabilities attributable to the operation of the Station prior to the Effective Time, and Buyer will be allocated such revenues, expenses, costs and liabilities attributable to the operation of the Station after the Effective Time. Such prorations shall include without limitation all ad valorem, real estate and other property taxes (except transfer taxes as provided by Section 11.1), music and other license fees fees, employee performance incentives set forth in employment agreements or annual compensation plans, any vacation for Transferred Employees (including FCC regulatory feesdefined below) (except accruals for the fiscal year of Seller in which Closing occurs for which there shall be no adjustment), utility chargesexpenses, real rent and personal property taxes and assessments levied against the Assets, property and equipment rentals, applicable copyright or other fees, including program license payments, sales and service charges, taxes (except for taxes arising from the transfer of the Assets amounts under this Agreement), employee compensation, including wages, salaries, commissions, accrued vacation pay and personal days, music license fees Station Contracts and similar prepaid and deferred items, . Seller shall receive a credit for all of the Station’s deposits and prepaid expenses. Sales commissions related to the sale of advertisements broadcast on the Station prior to the Effective Time shall be prorated between Purchaser the responsibility of Seller, and Sellers in accordance with generally accepted accounting principles and sales commissions related to effect the principle that Sellers shall receive all revenues and sale of advertisements broadcast on the Station after the Effective Time shall be responsible for all expenses, costs and liabilities allocable to the operations responsibility of the Station for the period prior to 12:01 a.m. on the Closing Date, and Purchaser shall receive all revenues and shall be responsible for all expenses, costs and obligations allocable to the operations of the Station for the period after 12:01 a.m. on the Closing Date, subject to the following:
(1) There shall be no adjustment for, and Sellers shall remain solely liable with respect to, any Contract that is included in the Retained Assets and any other obligation or liability not being assumed by Purchaser in accordance with Section 2.02Buyer.
(2b) No adjustment With respect to trade, barter or proration to the Purchase Price shall be made in favor of Sellers or Purchaser similar agreements for the amountsale of time for goods or services assumed by Buyer pursuant to Section 1.1(d), if anyas of the Effective Time the Station has an aggregate negative or positive barter balance (i.e., the amount by which the value of air time to be provided by the Station after the Effective Time exceeds, or conversely, is less than, the fair market value of corresponding goods and services), there shall be no proration or adjustment, unless the negative or positive barter balance of the Station as an aggregate exceeds $25,000, in which event such excess or deficiency over $25,000 only, as the case may be, shall be treated either as prepaid time sales or a receivable of Seller, and adjusted for as a proration in Buyer’s or Seller’s favor, as applicable. In determining barter balances, the value of air time shall be based upon Seller’s standard rates as of the Effective Time, and corresponding goods and services shall include those to be received by the Station under its trade or barter agreements as of Closing for after the Station exceeds, or is less than, the value of any advertising time remaining to be run Effective Time plus those received by the Station before the Effective Time to the extent conveyed by Seller to Buyer as a part of Closingthe Station Assets.
(c) No later than three (3) There business days prior to the scheduled Closing Date, Seller shall be no adjustment or proration to provide Buyer with a statement setting forth a reasonably detailed computation of Seller’s reasonable and good faith estimate of the Adjustment Amount (defined below) as of the Effective Time (the “Preliminary Adjustment Report”). As used herein, the “Adjustment Amount” means the net amount by which the Purchase Price for program barteris to be increased or decreased in accordance with this Section 1.7. Sellers If the Adjustment Amount reflected on the Preliminary Adjustment Report is a credit to Buyer, then the Purchase Price payable at Closing shall be responsible for payment reduced by the amount of all film or programming license fees for periods prior such Adjustment Amount, and if the Adjustment Amount reflected on the Preliminary Adjustment Report is a charge to Buyer, then the Purchase Price payable at Closing shall be increased by the amount of such Adjustment Amount. For a period of ninety (90) days after Closing, Seller and Purchaser its auditors and Buyer and its auditors may review the Preliminary Adjustment Report and the related books and records of Seller with respect to the Station, and Buyer and Seller will in good faith seek to reach agreement on the final Adjustment Amount. If agreement in writing between Buyer and Seller is reached within such 90-day period, then promptly thereafter Seller shall be responsible for payment pay to Buyer or Buyer shall pay to Seller, as the case may be, an amount equal to the difference between (i) the Adjustment Amount as so determined and (ii) the Adjustment Amount indicated in the Preliminary Adjustment Report. If such an agreement is not reached within such 90-day period, then the dispute resolution procedures of all such fees for periods after ClosingSection 1.7(d) shall apply.
(4d) There If the parties do not reach an agreement in writing on the Adjustment Amount within the 90-day period specified in Section 1.7(c), then Seller and Buyer shall select any of KPMG, PricewaterhouseCoopers or Deloitte & Touche (the “Arbitrating Firm”) to resolve the disputed items. Buyer and Seller shall each inform the Arbitrating Firm in writing as to their respective positions with respect to the Adjustment Amount, and each shall make available to the Arbitrating Firm any books and records and work papers relevant to the preparation of the Arbitrating Firm’s computation of the Adjustment Amount. The Arbitrating Firm shall be no adjustment instructed to complete its analysis within thirty (30) days from the date of its engagement and upon completion to inform the parties in writing of its own determination of the Adjustment Amount, the basis for its determination and whether its determination is within the Mid-Range (defined below) or proration for sick days accrued on if not, whether it is closer to Buyer’s or prior to Closing Seller’s written determination of the Adjustment Amount. Any determination by any employee of Sellers, all of which the Arbitrating Firm in accordance with this Section shall be assumed final and binding on the parties. Within five (5) calendar days after the Arbitrating Firm delivers to the parties its written determination of the Adjustment Amount, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, an amount equal to the difference between (i) the Adjustment Amount as determined by Purchaserthe Arbitrating Firm and (ii) the Adjustment Amount indicated in the Preliminary Adjustment Report.
(e) If the Arbitrating Firm’s determination of the Adjustment Amount is within the Mid-Range, then Seller and Buyer shall each pay one-half of the fees and disbursements of the Arbitrating Firm in connection with its analysis. If not, then (i) if the Arbitrating Firm determines that the written position of Buyer concerning the Adjustment Amount is closer to its own determination, then Seller shall pay the fees and disbursements of the Arbitrating Firm in connection with its analysis, or (ii) if the Arbitrating Firm determines that the written position of Seller concerning the Adjustment Amount is closer to its own determination, then Buyer shall pay the fees and disbursements of the Arbitrating Firm in connection with its analysis. As used herein, the term “Mid-Range” means a range that (i) equals twenty percent (20%) of the absolute difference between the written positions of Buyer and Seller as to the Adjustment Amount and (ii) has a midpoint equal to the average of such written positions of Buyer and Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emmis Communications Corp)