General Proration. (a) All Station Assets that would be classified as current assets in accordance with GAAP, and all Assumed Liabilities that would be classified as current liabilities in accordance with GAAP, shall be prorated between Buyer and the Seller as of the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “Prorated Station Assets” and the “Prorated Assumed Liabilities”). Such Prorated Station Assets and Prorated Assumed Liabilities relating to the period prior to the Effective Time shall be for the account of the Seller and those relating to the period on and after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to the Seller the amount of any Prorated Station Asset previously paid for by the Seller or the LIN Companies, to the extent Buyer will receive a current benefit on and after the Effective Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) the Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of either or both of the Stations prior to the Effective Time and are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) The prorations contemplated by this section shall include all FCC regulatory fees, utility expenses, liabilities and obligations under Contracts (including all Contracts relating to Program Rights), rents and similar prepaid and deferred items, reimbursable expenses and all other expenses and obligations, such as deferred revenue and prepayments and sales commissions, attributable to the ownership and holding of the Station Assets or the operation of either or both of the Stations that straddles the period before and after the Effective Time. Notwithstanding anything in this Section 2.09, (i) there shall be no proration with respect to Tradeout Agreements for the sale of time for goods or services assumed by Buyer, and (ii) proration with respect to Taxes shall be governed exclusively by Section 9.05. (c) Thirty percent of accrued vacation and personal time for Transferred Employees that is assumed by Buyer and actually granted to Transferred Employees shall be included as a credit to Buyer in the prorations. There shall be no proration for sick leave. (d) At least three (3) Business Days prior to the Closing Date, the Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to the Seller a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof. (f) The Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the sixty (60)-day period following the receipt of the Settlement Statement, the Seller and its independent auditors shall be permitted to review and make copies reasonably required of (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement Statement, and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (h) The Settlement Statement shall become final and binding upon the parties (and thereby deemed to be the “Final Settlement Statement”) on the 120th day following delivery thereof, unless the Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer within such 120-day period, then the Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become the Final Settlement Statement on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting Firm as provided herein. (i) Within ten (10) Business Days after the Settlement Statement becomes the Final Settlement Statement, (i) Buyer shall be required to pay to the Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) the Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to the date of actual payment. (j) Notwithstanding the foregoing, in the event that the Seller delivers a Notice of Disagreement, the Seller or Buyer, as applicable, shall within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by the Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and the Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and the Seller and its independent auditors, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements reflecting the operation of the Stations, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) the Seller, in the case of Buyer, and Buyer, in the case of the Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (l) If, at the end of such thirty (30)-day period, Buyer and the Seller have not resolved such differences, Buyer and the Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and the Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and the Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The determination of the Accounting Firm shall be final and binding on the parties and enforceable in any court of competent jurisdiction. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determination. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of the Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by the Seller.

Appears in 3 contracts

Samples: Asset Purchase Agreement (LIN Media LLC), Asset Purchase Agreement (Mercury New Holdco, Inc.), Asset Purchase Agreement (Media General Inc)

General Proration. (a) All Station Assets that would be classified as current assets in accordance with GAAP, and all Assumed Liabilities that would be classified as current liabilities in accordance with GAAP, shall be prorated between Buyer and the Seller as of the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “Prorated Station Assets” and the “Prorated Assumed Liabilities”). Such Prorated Station Assets and Prorated Assumed Liabilities relating to the period prior to the Effective Time shall be for the account of the Seller and those relating to the period on and after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to the Seller the amount of any Prorated Station Asset previously paid for by the ~~Seller or the LIN Companies~~Seller, to the extent Buyer will receive a current benefit on and after the Effective Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) the Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of ~~either or both of~~ the ~~Stations~~ Station prior to the Effective Time and are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) The prorations contemplated by this section shall include all FCC regulatory fees, utility expenses, liabilities and obligations under Contracts (including all Contracts relating to Program Rights), rents and similar prepaid and deferred items, reimbursable expenses and all other expenses and obligations, such as deferred revenue and prepayments and sales commissions, attributable to the ownership and holding of the Station Assets or the operation of ~~either or both of~~ the ~~Stations~~ Station that straddles the period before and after the Effective Time. Notwithstanding anything in this Section 2.09, (i) there shall be no proration with respect to Tradeout Agreements for the sale of time for goods or services assumed by Buyer, and (ii) proration with respect to Taxes shall be governed exclusively by Section 9.05. (c) Thirty percent of accrued vacation and personal time for Transferred Employees that is assumed by Buyer and actually granted to Transferred Employees shall be included as a credit to Buyer in the prorations. There shall be no proration for sick leave. (d) At least three (3) Business Days prior to the Closing Date, the Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to the Seller a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof. (f) The Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the sixty (60)-day period following the receipt of the Settlement Statement, the Seller and its independent auditors shall be permitted to review and make copies reasonably required of (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement Statement, and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (h) The Settlement Statement shall become final and binding upon the parties (and thereby deemed to be the “Final Settlement Statement”) on the 120th day following delivery thereof, unless the Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer within such 120-day period, then the Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become the Final Settlement Statement on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting Firm as provided herein. (i) Within ten (10) Business Days after the Settlement Statement becomes the Final Settlement Statement, (i) Buyer shall be required to pay to the Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) the Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to the date of actual payment. (j) Notwithstanding the foregoing, in the event that the Seller delivers a Notice of Disagreement, the Seller or Buyer, as applicable, shall within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by the Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and the Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and the Seller and its independent auditors, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements reflecting the operation of the ~~Stations~~Station, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) the Seller, in the case of Buyer, and Buyer, in the case of the Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (l) If, at the end of such thirty (30)-day period, Buyer and the Seller have not resolved such differences, Buyer and the Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and the Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and the Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The determination of the Accounting Firm shall be final and binding on the parties and enforceable in any court of competent jurisdiction. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determination. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of the Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by the Seller.

Appears in 3 contracts

Samples: Asset Purchase Agreement (Media General Inc), Asset Purchase Agreement (Media General Inc), Asset Purchase Agreement (Media General Inc)

General Proration. (a) All Station Assets that would be classified as current assets in accordance with GAAP, and all Assumed Liabilities that would be classified as current liabilities in accordance with GAAP, shall be prorated between Buyer and the Seller as of the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “Prorated Station Assets” and the “Prorated Assumed Liabilities”). Such Prorated Station Assets and Prorated Assumed Liabilities relating to the period prior to the Effective Time shall be for the account of the Seller and those relating to the period on and after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to the Seller the amount of any Prorated Station Asset previously paid for by WTGS TV, the Seller or the LIN ~~Companies~~Companies (or any of their Affiliates), to the extent Buyer will receive a current benefit on and after the Effective Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) the Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of ~~either or both of~~ the ~~Stations~~ Station prior to the Effective Time and are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) The prorations contemplated by this section shall include all FCC regulatory fees, utility expenses, liabilities and obligations under Contracts (including all Contracts relating to Program Rights), rents and similar prepaid and deferred items, reimbursable expenses and all other expenses and obligations, such as deferred revenue and prepayments and sales commissions, attributable to the ownership and holding of the Station Assets or the operation of ~~either or both of~~ the ~~Stations~~ Station that straddles the period before and after the Effective Time. Notwithstanding anything in this Section 2.09, (i) there shall be no proration with respect to Tradeout Agreements for the sale of time for goods or services assumed by Buyer, and (ii) proration with respect to Taxes shall be governed exclusively by Section 9.05. (c) Thirty percent of accrued vacation and personal time for Transferred Employees that is assumed by Buyer and actually granted to Transferred Employees shall be included as a credit to Buyer in the prorations. There shall be no proration for sick leave. (d) At least three (3) Business Days prior to the Closing Date, the Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to the Seller a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof. (f) The Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the sixty (60)-day period following the receipt of the Settlement Statement, the Seller and its independent auditors shall be permitted to review and make copies reasonably required of (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement Statement, and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (h) The Settlement Statement shall become final and binding upon the parties (and thereby deemed to be the “Final Settlement Statement”) on the 120th day following delivery thereof, unless the Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer within such 120-day period, then the Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become the Final Settlement Statement on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting Firm as provided herein. (i) Within ten (10) Business Days after the Settlement Statement becomes the Final Settlement Statement, (i) Buyer shall be required to pay to the Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) the Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to the date of actual payment. (j) Notwithstanding the foregoing, in the event that the Seller delivers a Notice of Disagreement, the Seller or Buyer, as applicable, shall within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by the Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and the Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and the Seller and its independent auditors, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements reflecting the operation of the ~~Stations~~Station, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) the Seller, in the case of Buyer, and Buyer, in the case of the Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (l) If, at the end of such thirty (30)-day period, Buyer and the Seller have not resolved such differences, Buyer and the Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and the Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and the Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The determination of the Accounting Firm shall be final and binding on the parties and enforceable in any court of competent jurisdiction. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determination. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of the Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by the Seller.

Appears in 2 contracts

Samples: Asset Purchase Agreement (LIN Media LLC), Asset Purchase Agreement (Media General Inc)

General Proration. (a) All ~~Station~~ Purchased Assets that would be classified as current assets in accordance with GAAP, and all Assumed Liabilities that would be classified as current liabilities in accordance with GAAP, shall be prorated between Buyer and ~~the Seller~~ Tribune as of the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “Prorated ~~Station~~ Purchased Assets” and the “Prorated Assumed Liabilities”). Such Prorated ~~Station~~ Purchased Assets and Prorated Assumed Liabilities relating to the period prior to the Effective Time shall be for the account of ~~the Seller~~ Tribune and those relating to the period on and after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section ~~2.09~~2.08, (i) Buyer shall be required to pay to ~~the Seller~~ Tribune the amount of any Prorated ~~Station~~ Purchased Asset previously paid for by ~~the Seller~~ Tribune, Xxxxxxxx or ~~the LIN Companies~~any of their respective Affiliates, to the extent Buyer will receive a current benefit on and after the Effective Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) ~~the Seller~~ Tribune shall be required to ~~pay~~ pay, or Xxxxxxxx shall be required to cause to be paid, to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of ~~either or both~~ any of the Stations prior to the Effective Time and are not assumed or paid for by ~~the Seller~~ Xxxxxxxx, Tribune or any of their respective Affiliates (the “Seller Prorated Amount”). Such payment by or on behalf of Buyer or ~~the Seller~~Tribune or Xxxxxxxx, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) The prorations contemplated by this ~~section~~ Section 2.08 shall include all FCC regulatory fees, utility expenses, liabilities and obligations under Contracts (including ~~all~~ Contracts relating to Program Rights), rents and similar prepaid and deferred items, reimbursable expenses and all other expenses and obligations, such as deferred revenue and prepayments and sales commissions, attributable to the ownership and holding of the ~~Station~~ Purchased Assets or the operation of ~~either or both~~ any of the Stations that straddles the period before and after ~~the~~ Effective Time. The prorations contemplated by this Section 2.08 shall also include proration with respect to certain matters set forth on Section 2.08(b) of the Disclosure Schedules. Notwithstanding anything in this Section ~~2.09~~2.08 to the contrary, (i) if, at the Effective Time, the Stations (on an aggregate basis, and not on a Station by Station basis) have an aggregate negative barter balance (i.e., the amount by which the value of air time to be provided by all of the Stations after the Effective Time exceeds the fair market value of corresponding goods and services to be received after such date), there shall be no proration or adjustment, unless the aggregate negative barter balance of all of the Stations exceeds Three Hundred Fifty Thousand Dollars ($350,000), in which event such excess shall be treated as prepaid time sales of Tribune, and adjusted for as a proration in Buyer’s favor (in determining barter balances, the value of air time shall be based upon Tribune’s average cash rates in respect of the Stations as of the Effective Time, and corresponding goods and services shall include those to be received by the Stations after the Effective Time plus those received by the Stations before the Effective Time to the extent conveyed by Tribune to Buyer as part of the Purchased Assets); (ii) there shall be no proration under this Section 2.08 to the extent there is an aggregate positive barter balance with respect to the Tradeout ~~Agreements~~ Agreements; (iii) there shall be no proration under this Section 2.08 for Program Rights agreements except to the ~~sale of time for goods~~ extent that any payments or ~~services assumed by Buyer,~~ performance due under such Program Rights agreements relate to a payment period that straddles the Effective Time; and (iiiv) proration with respect to Taxes shall be governed exclusively by Section ~~9.05~~9.04(d). (c) ~~Thirty percent~~ The portion of accrued vacation and personal time for Transferred Employees in Non-Payout States that is ~~assumed~~ accrued by ~~Buyer and actually granted~~ Tribune or Xxxxxxxx (or any Affiliate, respectively) for periods on or prior to ~~Transferred Employees~~ the Closing Date shall be included in prorations under this Section 2.08. The portion of the annual bonuses for the Transferred Employees in respect of service during the year during which the Closing occurs required to be accrued by Tribune or Xxxxxxxx (or any Affiliate thereof) in accordance with GAAP for periods on or prior to the Closing Date (the “Accrued Bonus Amount”) (which for the avoidance of doubt, shall exclude (x) those severance, retention, performance or stay bonuses payable in connection with the consummation of the transactions contemplated hereby or contemplated by the Merger Agreement that are due and payable prior to or at the Effective Time or the Employment Commencement Date, whichever is later, or (y) those retention or stay bonuses or similar payments to which any Transferred Employee is entitled as of the Closing Date that will become due and payable following the Closing Date or the Employment Commencement Date (whether or not the employment of a ~~credit to Buyer in the prorations. There~~ Transferred Employee is terminated following either such date), each of which shall be ~~no proration for sick leave~~an Excluded Liability) shall be included in prorations under this Section 2.08. (d) At least ~~three~~ two (32) Business Days prior to the Closing Date, ~~the Seller~~ Xxxxxxxx shall provide Buyer with a statement setting forth the Estimated Prorations Adjustment, together with a schedule setting forth, in reasonable detail, the components thereof, which shall be a good faith estimate of the prorations contemplated by this Section ~~2.09~~ 2.08 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to ~~the Seller~~ Tribune (or its designee) the amount equal to the Estimated Prorations Adjustment if the Estimated Prorations Adjustment is a positive number or (ii) the ~~Seller~~ Purchase Price to be paid by Buyer to Tribune shall be ~~required to pay to Buyer~~ reduced by the amount equal to the absolute value of the Estimated Prorations Adjustment if the Estimated Prorations Adjustment is a negative number. (e) Within ~~ninety~~ one hundred twenty (90120) days after the Closing Date, (i) Buyer shall prepare and deliver to Xxxxxxxx a statement setting forth the ~~Seller a~~ proposed proration of assets and liabilities in the manner described in this Section ~~2.09~~ 2.08 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof, and (ii) Xxxxxxxx shall prepare and deliver a certificate setting forth the calculation of Net Repack Costs subject to reimbursement by Buyer in accordance with Section 7.10(b). (f) ~~The Seller~~ Xxxxxxxx shall provide reasonable access (upon reasonable advance notice and during normal business hours) to such employees, books, records, financial statements, and its independent auditors as Buyer or its Affiliates reasonably ~~believes~~ believe is necessary ~~or desirable~~ in connection with its preparation of the Settlement ~~Statement~~Statement (it being understood and agreed that any such access will not unreasonably disrupt the normal business of Xxxxxxxx). (g) During the ~~sixty~~ ninety (~~60)-day~~ 90) day period following the receipt of the Settlement Statement, ~~the Seller and~~ Xxxxxxxx’x or its Affiliates’ independent auditors shall be permitted to review and make copies reasonably required of (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement Statement, and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. Without limitation of the foregoing, Buyer shall provide reasonable access (upon reasonable advance notice and during normal business hours) to such employees, books, records, financial statements, and its independent auditors as Xxxxxxxx or its Affiliates reasonably believe is necessary in connection with its review of the Settlement Statement (it being understood and agreed that any such access will not unreasonably disrupt the normal business of Buyer). (h) ~~The~~ Prior to the date that is ninety (90) days following Buyer’s delivery of the Settlement Statement, Xxxxxxxx shall provide written notice to Buyer of its agreement or of its disagreement with the Settlement Statement (the “Notice of Disagreement”). If Xxxxxxxx delivers a notice of its agreement with the Settlement Statement delivered by Buyer or fails to deliver a Notice of Disagreement within such ninety (90) day period, the Settlement Statement shall become final and binding upon the parties (and thereby deemed to be the “Final Settlement Statement”~~) on the 120th day following delivery thereof, unless the Seller gives written notice of its disagreement with the Settlement Statement (the “~~). If Xxxxxxxx delivers a Notice of Disagreement~~”) to Buyer prior to such date. The~~ , the Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so ~~asserted~~asserted (including the item and amount of, and reason for, such disagreement). If a Notice of Disagreement is ~~given to Buyer within such 120-day period~~delivered hereunder, then the Settlement Statement (as revised in accordance with ~~clause~~ the following clauses (i) or (ii) below) shall become the Final Settlement Statement on the earlier of (i) the date Buyer and ~~Seller~~ Xxxxxxxx resolve in writing any differences they have with respect to the matters specified ~~in the Notice of Disagreement~~ or (ii) the date any disputed matters are finally resolved in writing by the Accounting Firm as provided herein. (i) Within ten (10) Business Days after the Settlement Statement becomes the Final Settlement Statement, (i) Buyer shall be required to pay to the Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) the Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to the date of actual payment. (j) Notwithstanding the foregoing, in the event that the Seller delivers a Notice of Disagreement, the Seller or Buyer, as applicable, shall within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by the Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (~~30)-day~~ 30) day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and ~~the Seller~~ Xxxxxxxx shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and ~~the Seller~~ Xxxxxxxx and its independent auditors, at ~~Seller’s~~ Xxxxxxxx’x sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements reflecting the operation of the Stations, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Xxxxxxxx, relating to the Notice of Disagreement, (x) the working papers of ~~the Seller~~Xxxxxxxx, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Xxxxxxxx, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of ~~the Seller~~Xxxxxxxx, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Xxxxxxxx, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) ~~the Seller~~Xxxxxxxx, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Xxxxxxxx, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary ~~or desirable~~ in connection with its review of the Notice of ~~Disagreement~~Disagreement (it being understood and agreed that any such access will not unreasonably disrupt the normal business of the party providing such access). (lj) If, at the end of such thirty (~~30)-day~~ 30) day period, Buyer and ~~the Seller~~ Xxxxxxxx have not resolved such differences, Buyer and ~~the Seller~~ Xxxxxxxx shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and ~~the Seller~~ Xxxxxxxx shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and ~~the Seller~~ Xxxxxxxx shall use ~~commercially~~ reasonable best efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The determination of the Accounting ~~Firm~~ Firm, absent fraud or manifest error of the Accounting Firm, shall be final and binding on the parties and enforceable in any court of competent jurisdiction. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section ~~2.09~~ 2.08 shall be borne by Buyer and ~~the Seller~~ Xxxxxxxx in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determination. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of ~~the Seller’s~~ Xxxxxxxx’x independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by Xxxxxxxx. (k) Within ten (10) Business Days after the ~~Seller~~Settlement Statement becomes the Final Settlement Statement, (i) Buyer shall be required to pay to Xxxxxxxx (or its designee) the amount, if any, by which the Final Prorations Adjustment is higher than the Estimated Prorations Adjustment or (ii) Xxxxxxxx shall pay or cause to be paid to Buyer the amount, if any, by which the Estimated Prorations Adjustment is higher than the Final Prorations Adjustment, as the case may be. All payments made pursuant to this Section 2.08(k) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Closing to the date of actual payment. (l) Notwithstanding the foregoing, in the event that Xxxxxxxx delivers a Notice of Disagreement, Xxxxxxxx shall pay or cause to be paid to Buyer or Buyer shall pay to Xxxxxxxx, as applicable, within ten (10) Business Days of the receipt of the Notice of Disagreement, by wire transfer in immediately available funds, any undisputed amount owed by Xxxxxxxx or Buyer to the other, as the case may be, together with interest thereto, calculated as described in Section 2.08(k).

Appears in 2 contracts

Samples: Asset Purchase Agreement (Tribune Media Co), Asset Purchase Agreement (Sinclair Broadcast Group Inc)

General Proration. (a) All ~~Station~~ Purchased Assets that would be classified as current assets in accordance with GAAP, and all Assumed Liabilities that would be classified as current liabilities in accordance with GAAP, shall be prorated between Buyer and ~~the~~ Seller as of the earlier of the LMA Commencement Date and the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the LMA Commencement Date or the Effective ~~Time~~ Time, as the case may be, occurs (respectively, the “Prorated ~~Station~~ Purchased Assets” and the “Prorated Assumed Liabilities”). Such Prorated ~~Station~~ Purchased Assets and Prorated Assumed Liabilities relating to the period prior to the earlier of the LMA Commencement Date and the Effective Time shall be for the account of ~~the~~ Seller and those relating to the period on and after the earlier of the LMA Commencement Date and the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to ~~the~~ Seller the amount of any Prorated ~~Station~~ Purchased Asset previously paid for by ~~the Seller or the LIN Companies~~Seller, to the extent Buyer will receive a current benefit on and after the earlier of the LMA Commencement Date and the Effective ~~Time with the understanding~~ Time, provided that such amount should not have been recognized as an expense in accordance with GAAP prior to the earlier of the LMA Commencement Date and the Effective Time (the “Buyer Prorated Amount”); and (ii) ~~the~~ Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of ~~either or both~~ the Business prior to the earlier of the ~~Stations prior to~~ LMA Commencement Date and the Effective Time and are not assumed or paid for by ~~the~~ Seller (the “Seller Prorated Amount”). Such payment by Buyer or ~~the~~ Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) ~~The~~ Such prorations ~~contemplated by this section~~ shall include all ad valorem and other property Taxes, FCC regulatory fees, utility expenses, liabilities and obligations under ~~Contracts (including all Contracts relating to Program Rights)~~Contracts, rents and similar prepaid and deferred items, reimbursable expenses and all other expenses and obligations, such as deferred revenue and prepayments and sales commissions, attributable to the ownership and ~~holding of the Station Assets or the~~ operation ~~of either or both~~ of the Stations that ~~straddles~~ straddle the period before and after the Effective Time. Notwithstanding anything in this Section ~~2.09~~2.09 to the contrary, (i) ~~there shall be no proration~~ except as set forth in this clause (b), with respect to Tradeout Agreements for the sale of time for goods or services assumed by Buyer, if at the earlier of the Effective Time or the LMA Commencement Date, the Stations have an aggregate negative barter balance (i.e., the amount by which the value of air time to be provided by the Stations after the earlier of the Effective Time or LMA Commencement Date exceeds the fair market value of corresponding goods and services to be received after such date), there shall be no proration or adjustment, unless the aggregate negative barter balance of the Stations exceeds $150,000, in which event such excess shall be treated as prepaid time sales of Seller, and adjusted for as a proration in Buyer’s favor. In determining barter balances, the value of air time shall be based upon Seller’s rates as of the earlier of the Effective Time or LMA Commencement Date, and corresponding goods and services shall include those to be received by the Stations after the earlier of the Effective Time or LMA Commencement Date plus those received by the Stations before the earlier of the Effective Time or LMA Commencement Date to the extent conveyed by Seller to Buyer as part of the Purchased Assets, (ii) there shall be no proration under this Section 2.09 to the extent there is an aggregate positive barter balance with respect to ~~Taxes~~ Tradeout Agreements and (iii) there shall be ~~governed exclusively by~~ no proration under this Section ~~9.05~~2.09 for Program Rights agreements except to the extent that any payments or performance due under such Program Rights agreements relate to a payment period that straddles the Effective Time. (c) ~~Thirty percent of accrued~~ Accrued vacation and ~~personal time~~ sick leave for ~~Transferred Employees that is assumed by Buyer and actually granted to~~ Transferred Employees shall be included ~~as a credit to Buyer~~ in the prorations~~. There shall be no proration for sick leave~~. (d) At least ~~three~~ five (35) Business Days prior to the Closing Date, ~~the Seller~~ Operating Company shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith, absent manifest error. ~~The Seller~~ Operating Company will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify ~~the Seller~~ Operating Company of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to ~~the~~ Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) ~~the~~ Seller shall be required to pay to Buyer the amount equal to ~~the absolute value of~~ the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ~~ninety~~ sixty (9060) days after the Closing Date, Buyer shall prepare and deliver to ~~the Seller~~ Operating Company a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof. (f) ~~The Seller~~ Operating Company shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the ~~sixty~~ thirty (~~60)-day~~ 30)-day period following the receipt of the Settlement Statement, ~~the Seller~~ Operating Company and its independent auditors shall be permitted to review and make copies reasonably required of of, (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement ~~Statement~~Statement and, ~~and~~ (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (h) The Settlement Statement shall become final and binding ~~upon the parties~~ (~~and thereby deemed to be~~ the “Final Settlement Statement”) upon the parties on the ~~120th~~ 45th day following delivery thereof, unless ~~the Seller~~ Operating Company gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer ~~within such 120-day period~~in the period specified, then the Final Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become final and binding upon the ~~Final Settlement Statement~~ parties on the earlier of (i) the date Buyer and ~~Seller~~ Operating Company resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting ~~Firm as provided herein~~Firm. (i) Within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the ~~Final Settlement Statement~~parties, (i) Buyer shall be required to pay to ~~the~~ Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) ~~the~~ Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported ~~therein~~thereby, by another ~~mutually-agreeable~~ authoritative source) as in effect from time to time from the Effective Time to the date of actual payment. (j) Notwithstanding the foregoing, in the event that ~~the Seller~~ Operating Company delivers a Notice of Disagreement, Seller or Buyer shall be required to make a payment of any undisputed amount to the other regardless of the resolution of the disputed items contained in the Notice of Disagreement. Seller or Buyer, as applicable, shall within ten ~~(10)~~ Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by ~~the~~ Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and ~~the Seller~~ Operating Company shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and ~~the Seller~~ Operating Company and its independent auditors, at ~~Seller~~Operating Company’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements ~~reflecting the operation~~ of the ~~Stations~~Business, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Operating Company, relating to the Notice of Disagreement, (x) the working papers of ~~the Seller~~Operating Company, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Operating Company, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of ~~the Seller~~Operating Company, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Operating Company, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) ~~the Seller~~Operating Company, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Operating Company, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (l) If, at the end of such thirty (30)-day period, Buyer and ~~the Seller~~ Operating Company have not resolved such differences, Buyer and ~~the Seller~~ Operating Company shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and ~~the Seller~~ Operating Company shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and ~~the Seller~~ Operating Company shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. ~~The~~ Buyer and Operating Company agree that judgment may be entered upon the determination of the Accounting Firm ~~shall be final and binding on the parties and enforceable~~ in any court ~~of competent jurisdiction~~having jurisdiction over the party against which such determination is to be enforced. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and ~~the Seller~~ Operating Company in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time ~~it renders its determination~~the determination of the Accounting Firm is rendered on the matters submitted. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of ~~the Seller~~Operating Company’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by ~~the Seller~~Operating Company.

Appears in 1 contract

Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc)

General Proration. (a) All Station Assets that would be classified as current assets in accordance with GAAP, and all Assumed Liabilities that would be classified as current liabilities in accordance with GAAP, shall be prorated between Buyer and the Seller as of the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “Prorated Station ~~Assets”~~ Assets and the “Prorated Assumed Liabilities”). Such Prorated Station Assets and Prorated Assumed Liabilities relating to the period prior to the Effective Time shall be for the account of the Seller and those relating to the period on and after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to the Seller the amount of any Prorated Station Asset previously paid for by WTGS TV, the Seller or the LIN ~~Companies~~Companies (or any of their Affiliates), to the extent Buyer will receive a current benefit on and after the Effective Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) the Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of ~~either or both of~~ the ~~Stations~~ Station prior to the Effective Time and are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) The prorations contemplated by this section shall include all FCC regulatory fees, utility expenses, liabilities and obligations under Contracts (including all Contracts relating to Program Rights), rents and similar prepaid and deferred items, reimbursable expenses and all other expenses and obligations, such as deferred revenue and prepayments and sales commissions, attributable to the ownership and holding of the Station Assets or the operation of ~~either or both of~~ the ~~Stations~~ Station that straddles the period before and after the Effective Time. Notwithstanding anything in this Section 2.09, (i) there shall be no proration with respect to Tradeout Agreements for the sale of time for goods or services assumed by Buyer, and (ii) proration with respect to Taxes shall be governed exclusively by Section 9.05. (c) Thirty percent of accrued vacation and personal time for Transferred Employees that is assumed by Buyer and actually granted to Transferred Employees shall be included as a credit to Buyer in the prorations. There shall be no proration for sick leave. (d) At least three (3) Business Days prior to the Closing Date, the Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to the Seller a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof. (f) The Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the sixty (60)-day period following the receipt of the Settlement Statement, the Seller and its independent auditors shall be permitted to review and make copies reasonably required of (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement Statement, and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (h) The Settlement Statement shall become final and binding upon the parties (and thereby deemed to be the “Final Settlement Statement”) on the 120th day following delivery thereof, unless the Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer within such 120-day period, then the Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become the Final Settlement Statement on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting Firm as provided herein. (i) Within ten (10) Business Days after the Settlement Statement becomes the Final Settlement Statement, (i) Buyer shall be required to pay to the Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) the Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to the date of actual payment. (j) Notwithstanding the foregoing, in the event that the Seller delivers a Notice of Disagreement, the Seller or Buyer, as applicable, shall within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by the Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and the Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and the Seller and its independent auditors, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements reflecting the operation of the ~~Stations~~Station, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) the Seller, in the case of Buyer, and Buyer, in the case of the Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (l) If, at the end of such thirty (30)-day period, Buyer and the Seller have not resolved such differences, Buyer and the Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and the Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and the Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The determination of the Accounting Firm shall be final and binding on the parties and enforceable in any court of competent jurisdiction. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determination. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of the Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by the Seller.

Appears in 1 contract

Samples: Asset Purchase Agreement (Mercury New Holdco, Inc.)

General Proration. (a) All Station Assets that would be classified as ~~current~~ assets in accordance with GAAP, and all Assumed ~~Liabilities~~ Obligations that would be classified as ~~current~~ liabilities in accordance with ~~GAAP~~GAAP (including accrued but unpaid commissions, but excluding equity non-cash compensation), shall be prorated between Buyer and ~~the~~ Seller as of the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “Prorated Station Assets” and the “Prorated Assumed ~~Liabilities~~Obligations”). Such Prorated Station Assets and Prorated Assumed ~~Liabilities~~ Obligations relating to the period prior to the Effective Time shall be for the account of ~~the~~ Seller and those relating to the period on ~~and~~ or after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to the Seller the amount of any Prorated Station Asset previously paid for by the Seller or the LIN Companies, to the extent Buyer will receive a current benefit on and after the Effective Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) the Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of either or both of the Stations prior to the Effective Time and are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) ~~The~~ Such prorations ~~contemplated by this section~~ shall include all ~~FCC regulatory fees~~ad valorem and other property taxes, utility expenses, liabilities and obligations under ~~Contracts (including all Contracts relating to Program Rights)~~Station Contracts, rents and similar prepaid and deferred ~~items, reimbursable expenses~~ items and all other expenses and obligations, such as accrued but unpaid commissions, deferred revenue and ~~prepayments and sales commissions~~prepayments, attributable to the ownership and ~~holding of the Station Assets or the~~ operation ~~of either or both~~ of the Stations that ~~straddles~~ straddle the period before and after the Effective Time. ~~Notwithstanding anything in this Section 2.09, (i) there shall be no proration with respect to Tradeout Agreements for the sale of time for goods or services assumed~~ If such amounts were prepaid by Buyer, and (ii) proration with respect to Taxes shall be governed exclusively by Section 9.05. (c) Thirty percent of accrued vacation and personal time for Transferred Employees that is assumed by Buyer and actually granted to Transferred Employees shall be included as a credit to Buyer in the prorations. There shall be no proration for sick leave. (d) At least three (3) Business Days Seller prior to the ~~Closing Date~~Effective Time and Buyer will receive a benefit after the Effective Time, ~~the~~ then Seller shall ~~provide Buyer with~~ receive a ~~good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”)~~credit for such amounts. ~~Any payment required~~ If Seller was entitled to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is receive a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to the Seller a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof. (f) The Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the sixty (60)-day period following the receipt of the Settlement Statement, the Seller and its independent auditors shall be permitted to review and make copies reasonably required of (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement Statement, and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (h) The Settlement Statement shall become final and binding upon the parties (and thereby deemed to be the “Final Settlement Statement”) on the 120th day following delivery thereof, unless the Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer benefit prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer within such 120-day period, then the Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become the Final Settlement Statement on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting Firm as provided herein. (i) Within ten (10) Business Days after the Settlement Statement becomes the Final Settlement Statement, (i) Buyer shall be required to pay to the Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) the Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to and such amounts will be paid by Buyer after the date of actual payment. (j) Notwithstanding the foregoing, in the event that the Seller delivers a Notice of Disagreement, the Seller or Buyer, as applicable, shall within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by the Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphsEffective Time, Buyer will receive a credit for such amounts. To the extent not known, real estate and the Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and the Seller and its independent auditors, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements reflecting the operation of the Stations, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) the Seller, in the case of Buyer, and Buyer, in the case of the Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (l) If, at the end of such thirty (30)-day period, Buyer and the Seller have not resolved such differences, Buyer and the Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and the Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and the Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The determination of the Accounting Firm personal property taxes shall be ~~final and binding~~ apportioned on the ~~parties and enforceable in any court~~ basis of ~~competent jurisdiction. Except as specified in~~ Taxes assessed for the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determination. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of the Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by the Seller.preceding

Appears in 1 contract

Samples: Asset Purchase Agreement (Entercom Communications Corp)

General Proration. (a) All ~~Station~~ Purchased Assets that would be classified as a current ~~assets~~ asset in accordance with ~~GAAP,~~ GAAP and all Assumed Liabilities (other than Assumed Liabilities and Purchased Assets that ~~would be classified as current liabilities in accordance with GAAP,~~ are the subject of Section 2.10 and 5.07) shall be prorated between Buyer on the one hand and Sellers on the ~~Seller~~ other hand as of 12:01 A.M. local California time, on the Closing Date (the "Effective Time"), including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the ~~“Prorated Station Assets” and the “~~"Prorated Assumed Liabilities”" and the "Prorated Current Purchased Assets"). Such Prorated ~~Station~~ Current Purchased Assets and Prorated Assumed Liabilities relating to the period prior to the Effective Time shall be for the account of ~~the Seller~~ Sellers and those relating to the period on and after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, : (iA) Buyer shall be required to pay to ~~the Seller~~ Sellers the amount of any Prorated ~~Station Asset~~ Current Purchased Asset, previously paid for by ~~the Seller or the LIN Companies~~either Seller, to the extent Buyer will receive a current benefit on and after the Effective ~~Time with the understanding~~ Time, provided that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective ~~Time (the “Buyer Prorated Amount”)~~Time; and (iiB) ~~the Seller~~ Sellers shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of ~~either or both of~~ the ~~Stations~~ Station prior to the Effective Time and are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the partiesTime. (b) ~~The~~ Such prorations ~~contemplated by this section~~ shall include all ~~FCC regulatory fees~~ad valorem and other property taxes, utility expenses, liabilities and obligations under ~~Contracts (including all Contracts relating to Program Rights)~~Contracts, rents and similar prepaid and deferred ~~items, reimbursable expenses~~ items and all other expenses and obligations, such as deferred revenue and ~~prepayments and sales commissions~~prepayments, attributable to the ownership and ~~holding~~ operation of the Station ~~Assets or the operation of either or both of the Stations~~ that ~~straddles~~ straddle the period before and after the Effective Time. ~~Notwithstanding anything in this Section 2.09~~If such amounts were prepaid by Seller prior to the Effective Time and Buyer will receive a benefit after the Effective Time, ~~(i) there~~ then Seller shall receive a credit for such amounts. If Seller was entitled to receive a benefit prior to the Effective Time and such amounts will be paid by Buyer after the Effective Time, Buyer will receive a credit for such amounts. To the extent not known, real estate and personal property taxes shall be ~~no proration with respect to Tradeout Agreements~~ apportioned on the basis of Taxes assessed for the ~~sale of time for goods or services assumed by Buyer~~preceding year, with a reapportionment as soon as the new tax rate and ~~(ii) proration with respect to Taxes shall~~ valuation can be ~~governed exclusively by Section 9.05~~ascertained even if such is ascertained after the Final Settlement Statement is so determined. (c) Thirty percent of accrued vacation and personal time for Transferred Employees that is assumed by Buyer and actually granted to Transferred Employees shall be included as a credit to Buyer in the prorations. There shall be no proration for sick leave. Within sixty (d) At least three (3) Business Days prior to the Closing Date, the Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ninety (9060) days after the Closing Date, Buyer shall prepare and deliver to ~~the Seller~~ Sellers a proposed ~~proration~~ pro rata adjustment of assets and liabilities in the manner described in ~~this Section 2.09~~ Sections 2.09(a) and 2.09(b) as the case may be, for the Station, as of the Effective Time (the “"Settlement Statement”") setting forth the ~~Seller~~ Prorated ~~Amount~~ Assumed Liabilities and the ~~Buyer~~ Prorated ~~Amount,~~ Current Purchased Assets together with a schedule setting forth, in reasonable detail, the components thereof. (f) The Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (gd) During the ~~sixty (60)-day~~ 30-day period following the receipt of the Settlement ~~Statement~~Statement (A) Sellers and their independent auditors, ~~the Seller and its independent auditors~~ if any, shall be permitted to review and make copies reasonably required of (i) the financial statements of Buyer relating to the Settlement ~~Statement,~~ Statement (ii) the working papers of Buyer and its independent auditors, if any, relating to the Settlement ~~Statement,~~ Statement (iii) the books and records of Buyer relating to the Settlement ~~Statement,~~ Statement and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement and (B) Buyer shall provide reasonable access to such employees of Sellers and their independent auditors, if any, as Sellers reasonably believe is necessary or desirable in connection with their review of the Settlement Statement. Each of the parties agrees that for purposes of Sections 2.09, 2.10, 2.11 and 2.12, any reference to such party's independent auditors shall mean, as to such party, one and the same firm to be used for the review, if any, of each Adjustment Statement. (he) The Settlement Statement shall become final and binding (the "Final Settlement Statement") upon the parties ~~(and thereby deemed to be the “Final Settlement Statement”)~~ on the ~~120th~~ forty-fifth (45th) day following delivery thereof, unless ~~the Seller gives~~ Sellers give written notice of ~~its~~ their disagreement with the Settlement Statement (the “"Settlement Statement Notice of Disagreement”") to Buyer prior to such date. The Settlement Statement Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Settlement Statement Notice of Disagreement is given to Buyer ~~within such 120-day period~~in the period specified, then the Final Settlement Statement (as revised in accordance with clause (iA) or (iiB) below) shall become final and binding upon the ~~Final Settlement Statement~~ parties on the earlier of (iA) the date Buyer and ~~Seller~~ Sellers resolve in writing any differences they have with respect to the matters specified in the Settlement Statement Notice of Disagreement or (iiB) the date any disputed matters are finally resolved in writing by the Accounting ~~Firm as provided herein~~Firm. (if) Within ~~ten (10)~~ 10 Business Days after the Settlement Statement becomes final and binding upon the ~~Final Settlement Statement~~parties, (iA) Buyer shall be required to pay to the ~~Seller~~ Young Entities the amount, if any, by which (w) the ~~Final Adjustment is higher than~~ Prorated Current Purchased Assets exceed the ~~Estimated Adjustment~~ Prorated Assumed Liabilities or (iiB) ~~the Seller~~ Sellers shall be required to pay to Buyer the amount, if any, by which (y) the ~~Estimated Adjustment is higher than~~ Prorated Assumed Liabilities exceed the ~~Final Adjustment, as the case may be~~Prorated Current Purchased Assets. All payments made pursuant to this Section ~~2.09(i~~2.09(f) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by ~~The~~ the Wall Street Journal or, if not reported ~~therein~~thereby, by another ~~mutually-agreeable~~ authoritative source) as in effect from time to time from the Effective Time to the date of actual payment. (jg) Notwithstanding the foregoing, in the event that Sellers deliver a Settlement Statement Notice of Disagreement and either Sellers on the ~~Seller delivers~~ one hand or Buyer on the other hand shall be required to make a payment of any undisputed amount to the other regardless of the resolution of the items contained in the Settlement Statement Notice of Disagreement, ~~the Seller~~ then Sellers or Buyer, as applicable, shall within ~~ten (10)~~ 10 Business Days of the receipt of the Settlement Statement Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by ~~the Seller~~ Sellers or Buyer to the other, as the case may be, pending resolution of the Settlement Statement Notice of Disagreement together with interest thereon, calculated as described above. (kh) During the ~~thirty (30)-day~~ 30-day period following the delivery of a Settlement Statement Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and ~~the Seller~~ Sellers shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Settlement Statement Notice of Disagreement. During such ~~period~~ period: (iA) Buyer and its independent auditors, if any, at Buyer’s 's sole cost and expense, shall be, and ~~the Seller~~ Sellers and ~~its~~ their independent auditors, if any, at ~~Seller’s~~ Sellers' sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of of: (wi) the financial statements ~~reflecting the operation~~ of the ~~Stations~~Sellers, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Sellers, relating to the Settlement Statement Notice of Disagreement, ; (xii) the working papers of the ~~Seller~~Sellers, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Sellers, and such other party’s 's auditors, if any, relating to the Settlement Statement Notice of Disagreement, ; (yiii) the books and records of the ~~Seller~~Sellers, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Sellers, relating to the Settlement Statement Notice of Disagreement, ; and (ziv) any supporting schedules, analyses and documentation relating to the Settlement Statement Notice of Disagreement; and (iiB) ~~the Seller~~Sellers, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Sellers, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s 's independent auditors, if any, as such first party reasonably believes is necessary or desirable in connection with its review of the Settlement Statement Notice of Disagreement. (li) If, at the end of such ~~thirty (30)-day~~ 30-day period, Buyer and ~~the Seller~~ Sellers have not so resolved such differences, Buyer and ~~the Seller~~ Sellers shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Settlement Statement Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and ~~the Seller~~ Sellers shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and ~~the Seller~~ Sellers shall use ~~commercially~~ reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. ~~The~~ Buyer and Sellers agree that judgment may be entered upon the determination of the Accounting Firm ~~shall be final and binding on the parties and enforceable~~ in any court ~~of competent jurisdiction~~having jurisdiction over the party against which such determination is to be enforced. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne equally by Buyer on the one hand and Sellers on the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determinationother hand. The fees and expenses (if any) of Buyer’s 's independent auditors and attorneys incurred in connection with the review of the Settlement Statement Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of ~~the Seller’s~~ Sellers' independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by ~~the Seller~~Sellers.

Appears in 1 contract

Samples: Asset Purchase Agreement (Young Broadcasting Inc /De/)

General Proration. ~~(a)~~ All ~~Station Assets that would be classified as~~ current assets ~~in accordance with GAAP~~(excluding Cash, Accounts Receivable and any Taxes) and all ~~Assumed Liabilities that would be classified as~~ current liabilities ~~in accordance with GAAP~~(including accounts payable, bonus and other incentive payments payable, other payables, accrued liabilities for talent, accrued salaries and wages, accrued employee benefits, accrued expenses and accrued deferred income or compensation and excluding any Taxes) arising from the conduct of the business or operations of KEYE shall be prorated between Granite and Buyer ~~and the Seller~~ as of the Effective Time, ~~including by~~ taking into account the elapsed time or consumption of an asset during the ~~month~~ relevant time period in which the ~~Effective Time occurs (respectively, the “Prorated Station Assets” and the “Prorated Assumed Liabilities”)~~Closing occurs. Such ~~Prorated Station Assets~~ current assets and ~~Prorated Assumed Liabilities~~ current liabilities relating to the period prior to the Effective Time shall be for the account of ~~the Seller~~ Granite and those relating to the period ~~on and~~ after the Effective Time shall be for the account of ~~Buyer~~ Buyer, and shall be prorated accordingly. ~~In accordance with this Section 2.09, (i)~~ Buyer shall be required to pay ~~to the Seller~~ the amount of any ~~Prorated Station Asset~~ current assets, previously paid for by ~~the Seller or the LIN Companies~~a Seller, ~~to the extent~~ for which Buyer will receive a ~~current~~ benefit ~~on and~~ after the ~~Effective Time with~~ Closing and which do not relate to the ~~understanding that such amount should not have been recognized as an expense in accordance with GAAP~~ period prior to the ~~Effective Time (the “Buyer Prorated Amount”); and (ii) the Seller~~ Closing. Granite shall be required to pay ~~to Buyer~~ the amount of any ~~Prorated Assumed Liabilities~~ current liabilities assumed by Buyer for which a Seller received a benefit prior to the Closing and which do not relate to the period after the Closing. Payments due under film or programming license agreements for the month in which the Closing occurs shall be prorated based on the number of days in such month on or before the Closing Date and the number of days in such month after the Closing Date. Notwithstanding the foregoing, Sellers shall be responsible for (a) any overdue amounts under film or programming license agreements to the extent ~~they arise with respect~~ relating to ~~the operation of either or both of the Stations~~ periods prior to the ~~Effective Time~~ Closing, and are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) The prorations contemplated by this section shall include all FCC regulatory fees, utility expenses, liabilities and obligations under Contracts (including all Contracts relating to Program Rights), rents and similar prepaid and any payments that contractually have been deferred ~~items, reimbursable expenses and all other expenses and obligations, such as deferred revenue and prepayments and sales commissions, attributable to~~ but for which a Seller has already received the ~~ownership and holding~~ benefit of the ~~Station Assets or the operation of either or both of the Stations that straddles the period before and after the Effective Time~~asset to which they relate prior to Closing. ~~Notwithstanding anything in this Section 2.09~~In addition, (i) there shall be no ~~proration with respect to Tradeout Agreements~~ adjustment for any difference between the ~~sale~~ value of ~~time for~~ the goods or services ~~assumed~~ to be received by ~~Buyer~~Sellers as of the Effective Time under Trade Agreements relating to KEYE and the value of any advertising time remaining to be run by Sellers as of the Effective Time under Trade Agreements relating to KEYE, and (ii) proration with respect to Taxes shall be governed exclusively by Section 9.05. (c) Thirty percent of accrued vacation and personal time for Transferred Employees that is assumed by Buyer and actually granted to Transferred Employees shall be included as a credit to Buyer in the prorations. There there shall be no proration for accrued employee sick ~~leave. (d) At least three (3) Business Days prior~~ leave and accrued employee vacation time. The items included in the current assets and current liabilities referred to the Closing Date, the Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate above shall be ~~made by~~ the ~~appropriate party at~~ same items included in the ~~Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records~~ line items "Current assets" and ~~work papers used in preparing~~ "Current liabilities" on the ~~Estimated Settlement Statement~~balance sheet as of March 31, 1999 set forth on SCHEDULE 4.9 and ~~Buyer shall notify the Seller of any good faith disagreement with~~ such ~~calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer~~ items shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to the Seller a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof. (f) The Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the sixty (60)-day period following the receipt of the Settlement Statement, the Seller and its independent auditors shall be permitted to review and make copies reasonably required of (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement Statement, and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (h) The Settlement Statement shall become final and binding upon the parties (and thereby deemed to be the “Final Settlement Statement”) on the 120th day following delivery thereof, unless the Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer within such 120-day period, then the Settlement Statement (as revised calculated in accordance with clause (i) or (ii) below) shall become the Final Settlement Statement on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing GAAP as consistently applied by ~~the Accounting Firm as provided herein~~Sellers. (i) Within ten (10) Business Days after the Settlement Statement becomes the Final Settlement Statement, (i) Buyer shall be required to pay to the Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) the Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to the date of actual payment. (j) Notwithstanding the foregoing, in the event that the Seller delivers a Notice of Disagreement, the Seller or Buyer, as applicable, shall within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by the Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and the Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and the Seller and its independent auditors, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements reflecting the operation of the Stations, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) the Seller, in the case of Buyer, and Buyer, in the case of the Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (l) If, at the end of such thirty (30)-day period, Buyer and the Seller have not resolved such differences, Buyer and the Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and the Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and the Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The determination of the Accounting Firm shall be final and binding on the parties and enforceable in any court of competent jurisdiction. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determination. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of the Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by the Seller.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Granite Broadcasting Corp)

General Proration. (a) All Station Assets that would be classified as ~~current~~ assets in accordance with GAAP, and all Assumed ~~Liabilities~~ Obligations that would be classified as ~~current~~ liabilities in accordance with ~~GAAP~~GAAP (including accrued but unpaid commissions), shall be prorated between Buyer and ~~the~~ Seller as of the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “"Prorated Station Assets” " and the “"Prorated Assumed ~~Liabilities”~~Obligations"), to reflect the principle that Seller shall be entitled to all income and be responsible for all expenses arising from the operation of the Stations prior to the Effective Time and Buyer shall be entitled to all income and be responsible for all expenses arising from the operation of the Stations on or after the Effective Time. Such Prorated Station Assets and Prorated Assumed ~~Liabilities~~ Obligations relating to the period prior to the Effective Time shall be for the account of ~~the~~ Seller and those relating to the period on ~~and~~ or after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to the Seller the amount of any Prorated Station Asset previously paid for by the Seller or the LIN Companies, to the extent Buyer will receive a current benefit on and after the Effective Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) the Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of either or both of the Stations prior to the Effective Time and are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) ~~The~~ Such prorations ~~contemplated by this section~~ shall include all ~~FCC regulatory fees~~ad valorem and other property taxes, utility expenses, liabilities and obligations under ~~Contracts (including all Contracts relating to Program Rights)~~Station Contracts, rents and similar prepaid and deferred ~~items, reimbursable expenses~~ items and all other expenses and obligations, such as accrued but unpaid commissions, deferred revenue and ~~prepayments and sales commissions~~prepayments, attributable to the ownership and ~~holding of the Station Assets or the~~ operation ~~of either or both~~ of the Stations that ~~straddles~~ straddle the period before and after the Effective Time. If such amounts were prepaid by Seller prior to the Effective Time and Buyer will receive a benefit after the Effective Time, then Seller shall receive a credit for such amounts. If Seller was entitled to receive a benefit prior to the Effective Time and such amounts will be paid by Buyer after the Effective Time, Buyer will receive a credit for such amounts. To the extent not known, real estate and personal property taxes shall be apportioned on the basis of Taxes assessed for the preceding year, with a reapportionment as soon as the new tax rate and valuation can be ascertained even if such is ascertained after the Settlement Statement is so determined. (c) Notwithstanding anything in this Section ~~2.09~~1.7 to the contrary, ~~(i)~~ there shall be no proration ~~with respect to~~ under this Section 1.7 for Tradeout Agreements ~~for~~ except as provided in this subsection. In the ~~sale~~ event that the value of ~~time for~~ the aggregate liability of the Stations under the Tradeout Agreements as of the Effective Time exceeds the sum of (A) One Hundred Thousand Dollars ($100,000.00) plus (B) the aggregate fair value of the goods or services ~~assumed~~ to be received by ~~Buyer~~the Buyer on or after the Effective Time under such Tradeout Agreements, ~~and (ii) proration with respect to Taxes~~ such excess shall be ~~governed exclusively~~ treated as a Prorated Assumed Obligation. For purposes of this subsection, the liability of the Stations for unperformed time on or after the Effective Time shall be valued according to the fair market value of the goods or services received or to be received by ~~Section 9.05~~the Stations for such time under such agreements. (cd) ~~Thirty percent of accrued~~ Accrued vacation ~~and personal time~~ liabilities for ~~Transferred Employees that is assumed by Buyer and actually granted to~~ Transferred Employees shall be included ~~as a credit to Buyer~~ in the prorations~~. There~~ , but there shall be no proration under this Section 1.7 for sick leave. (d) At least three (3) Business Days prior to the Closing Date, the Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative numberleave for Transferred Employees. (e) Within ~~ninety~~ forty-five (9045) days after the Closing Date, Buyer shall prepare and deliver to ~~the~~ Seller a proposed ~~proration~~ pro rata adjustment of assets and liabilities in the manner described in ~~this~~ Section ~~2.09~~ 1.7(a) and Section 1.7(b), for the Stations, as of the Effective Time (the “"Settlement Statement”") setting forth the ~~Seller~~ Prorated ~~Amount~~ Assumed Obligations and the ~~Buyer~~ Prorated ~~Amount,~~ Station Assets together with a schedule setting forth, in reasonable detail, the components thereof. (f) The Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the ~~sixty (60)-day~~ 30-day period following the receipt of the Settlement ~~Statement, the~~ Statement (A) Seller and its independent ~~auditors~~ auditors, if any, shall be permitted to review and make copies reasonably required of (i) the financial statements of Buyer relating to the Settlement ~~Statement,~~ Statement (ii) the working papers of Buyer and its independent auditors, if any, relating to the Settlement ~~Statement,~~ Statement (iii) the books and records of Buyer relating to the Settlement ~~Statement,~~ Statement and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement and (B) Buyer shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of Seller and its independent auditors, if any, as Seller reasonably believes is necessary or desirable in connection with its review of the Settlement Statement. (hg) The Settlement Statement shall become final and binding upon the parties ~~(and thereby deemed to be the “Final Settlement Statement”)~~ on the ~~120th~~ thirtieth (30th) day following delivery thereof, unless ~~the~~ Seller gives written notice of its disagreement with the Settlement Statement (the “"Notice of Disagreement”") to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer ~~within such 120-day period~~in the period specified, then the Settlement Statement (as revised in accordance with clause (iA) or (iiB) below) shall become final and binding upon the ~~Final Settlement Statement~~ parties on the earlier of (iA) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (iiB) the date any disputed matters are finally resolved in writing by the Accounting ~~Firm as provided herein~~Firm. (ih) Within ten (10) Business Days after the Settlement Statement becomes final and binding upon the ~~Final Settlement Statement~~parties, (iA) Buyer shall be required to pay to ~~the~~ Seller the amount, if any, by which the ~~Final Adjustment is higher than~~ Prorated Station Assets exceeds the ~~Estimated Adjustment~~ Prorated Assumed Obligations or (iiB) ~~the~~ Seller shall be required to pay to Buyer the amount, if any, by which the ~~Estimated Adjustment is higher than~~ Prorated Assumed Obligations exceeds the ~~Final Adjustment, as the case may be~~Prorated Station Assets. All payments made pursuant to this Section ~~2.09(i~~1.7(h) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported ~~therein~~thereby, by another ~~mutually-agreeable~~ authoritative source) as in effect from time to time from the Effective Time to the date of actual payment. (ji) Notwithstanding the foregoing, in the event that ~~the~~ Seller delivers a Notice of Disagreement, Seller or Buyer shall be required to make a payment of any undisputed amount to the other regardless of the resolution of the items contained in the Notice of Disagreement, and Seller or Buyer, as applicable, shall within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by ~~the~~ Seller or Buyer to the other, as the case may be, pending resolution of the Notice of Disagreement together with interest thereon, calculated as described above. (kj) During the ~~thirty (30)-day~~ 30-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and ~~the~~ Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such ~~period~~ period: (iA) Buyer and its independent auditors, if any, at Buyer’s 's sole cost and expense, shall be, and ~~the~~ Seller and its independent auditors, if any, at Seller’s 's sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of of: (wi) the financial statements ~~reflecting the operation of the Stations, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers~~ of the Seller, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller~~, and such other party’s auditors, if any~~, relating to the Notice of Disagreement, ; (yii) the ~~books and records~~ working papers of ~~the~~ Seller, in the case of Buyer, and Buyer, in the case of Seller, and such other party's auditors, if any, relating to the Notice of Disagreement; (iii) the books and records of Seller, in the case of Buyer, and Buyer, in the case of Seller, relating to the Notice of Disagreement, ; and (ziv) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (iiB) ~~the~~ Seller, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s 's independent auditors, if any, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (lk) If, at the end of such ~~thirty (30)-day~~ 30-day period, Buyer and ~~the~~ Seller have not resolved such differences, Buyer and ~~the~~ Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and ~~the~~ Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and ~~the~~ Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. ~~The~~ Buyer and Seller agree that judgment may be entered upon the determination of the Accounting Firm ~~shall be final and binding on the parties and enforceable~~ in any court ~~of competent jurisdiction~~having jurisdiction over the party against which such determination is to be enforced. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section ~~2.09~~ 1.7 shall be borne by Buyer and ~~the~~ Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time ~~it renders its determination~~the determination of the Accounting Firm is rendered on the matters submitted. The fees and expenses (if any) of Buyer’s 's independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of ~~the~~ Seller’s 's independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by ~~the~~ Seller.

Appears in 1 contract

Samples: Asset Purchase Agreement (Nextmedia Operating Inc)

General Proration. (a) All Station Assets that would be classified as current assets in accordance with GAAP, and all Assumed Liabilities that would be classified as current liabilities in accordance with GAAP, shall be prorated between Buyer and ~~the~~ Seller as of the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “Prorated Station Assets” and the “Prorated Assumed Liabilities”). Such Prorated Station Assets and Prorated Assumed Liabilities relating to the period prior to the Effective Time shall be for the account of ~~the~~ Seller and those relating to the period on and after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to ~~the~~ Seller the amount of any Prorated Station Asset previously paid for by ~~the~~ Seller or ~~the LIN Companies~~Xxxxxxxxxx Company, to the extent Buyer will receive a current benefit on and after the Effective Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) ~~the~~ Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of ~~either or both of~~ the ~~Stations~~ Station prior to the Effective Time and are not assumed or paid for by ~~the~~ Seller (the “Seller Prorated Amount”). Such payment by Buyer or ~~the~~ Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) The prorations contemplated by this section shall include all FCC regulatory fees, utility expenses, liabilities and obligations under Contracts (including all Contracts relating to Program Rights), rents and similar prepaid and deferred items, reimbursable expenses and all other expenses and obligations, such as deferred revenue and prepayments and sales commissions, attributable to the ownership and holding of the Station Assets or the operation of ~~either or both of~~ the ~~Stations~~ Station that straddles the period before and after the Effective Time. Notwithstanding anything in this Section 2.09, (i) there shall be no proration with respect to Tradeout Agreements for the sale of time for goods or services assumed by Buyer, and (ii) proration with respect to Taxes shall be governed exclusively by Section 9.05. (c) Thirty percent of accrued vacation and personal time for Transferred Employees that is assumed by Buyer and actually granted to Transferred Employees shall be included as a credit to Buyer in the prorations. There shall be no proration for sick leave. (d) At least three (3) Business Days prior to the Closing Date, ~~the~~ Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. ~~The~~ Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify ~~the~~ Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to ~~the~~ Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) ~~the~~ Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to ~~the~~ Seller a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof. (f) ~~The~~ Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the sixty (60)-day period following the receipt of the Settlement Statement, ~~the~~ Seller and its independent auditors shall be permitted to review and make copies reasonably required of (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement Statement, and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (h) The Settlement Statement shall become final and binding upon the parties (and thereby deemed to be the “Final Settlement Statement”) on the 120th day following delivery thereof, unless ~~the~~ Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer within such 120-day period, then the Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become the Final Settlement Statement on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting Firm as provided herein. (i) Within ten (10) Business Days after the Settlement Statement becomes the Final Settlement Statement, (i) Buyer shall be required to pay to ~~the~~ Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) ~~the~~ Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to the date of actual payment. (j) Notwithstanding the foregoing, in the event that ~~the~~ Seller delivers a Notice of Disagreement, ~~the~~ Seller or Buyer, as applicable, shall within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by ~~the~~ Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and ~~the~~ Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and ~~the~~ Seller and its independent auditors, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements reflecting the operation of the ~~Stations~~Station, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller, relating to the Notice of Disagreement, (x) the working papers of ~~the~~ Seller, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of ~~the~~ Seller, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) ~~the~~ Seller, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (l) If, at the end of such thirty (30)-day period, Buyer and ~~the~~ Seller have not resolved such differences, Buyer and ~~the~~ Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and ~~the~~ Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and ~~the~~ Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The determination of the Accounting Firm shall be final and binding on the parties and enforceable in any court of competent jurisdiction. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and ~~the~~ Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determination. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of ~~the~~ Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by ~~the~~ Seller.

Appears in 1 contract

Samples: Asset Purchase Agreement (Media General Inc)

General Proration. ~~(a) All Station Assets that would be classified~~ Except as ~~current assets~~ otherwise expressly specified in ~~accordance with GAAP~~this Agreement, ~~and all Assumed Liabilities that would be classified as current liabilities in accordance with GAAP, shall be prorated between Buyer~~ the operation of the Business and the ~~Seller as of the Effective Time~~income and normal operating expenses, including ~~by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs~~ accrued liabilities (~~respectively~~including any accrued payment obligations under Contracts) and prepaid expenses, ~~the “Prorated Station Assets” and the “Prorated Assumed Liabilities”). Such Prorated Station Assets and Prorated Assumed Liabilities relating to the period prior to~~ attributable thereto through the Effective Time shall be for the account of ~~the Seller~~ Sellers and ~~those relating to the period on and after the Effective Time~~ thereafter for the account of Buyer ~~and shall be prorated accordingly. In accordance with~~ (for purposes of this Section ~~2.09~~2.5, ~~(i) Buyer shall~~ all unused vacation leave pursuant to Section 9.3 will be ~~required to pay to the Seller the amount of any Prorated Station Asset previously paid~~ treated as accrued liabilities). Expenses for ~~by the Seller~~ goods or ~~the LIN Companies, to the extent Buyer will receive a current benefit on~~ services received both before and after the Effective ~~Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”);~~ Time, real and (ii) the Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of either or both of the Stations prior to the Effective Time personal property Taxes and ~~are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller~~assessments, ~~as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final~~ power and ~~binding upon the parties. (b) The prorations contemplated by this section shall include all FCC regulatory fees, utility expenses, liabilities~~ utilities charges and ~~obligations under Contracts (including all Contracts relating to Program Rights),~~ rents and similar prepaid and deferred ~~items~~items shall be prorated, ~~reimbursable expenses~~ based on the number of days, between Sellers and ~~all other expenses and obligations, such~~ Buyer as ~~deferred revenue and prepayments and sales commissions, attributable to the ownership and holding~~ of ~~the Station Assets or the operation of either or both of the Stations that straddles the period before and after~~ the Effective Time. ~~Notwithstanding anything~~ All special assessments and similar charges or liens imposed against the Broadcasting Assets and/or the WDWB Licenses in ~~this~~ respect of any period of time through the Effective Time, whether payable in installments or otherwise, shall be the responsibility of Sellers, and amounts with respect to such special assessments, charges or liens in respect of any period of time after the Effective Time shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. No adjustment or proration shall be made in favor of Sellers for any amount by which the fair market value of the goods or services to be received by the Station under any Trade Agreements or Barter Agreements as of the Effective Time exceeds the fair market value of any advertising time remaining to be run by the Station. An adjustment and proration shall be made in favor of Buyer to the extent that the amount of any advertising time remaining to be run by the Station under any Trade Agreements or Barter Agreements as of the Effective Time exceeds by more than Fifty Thousand Dollars ($50,000.00) in the aggregate the fair market value of the goods or services to be received by the Station as of the Effective Time. For purposes of the Aggregate Consideration adjustment procedure set forth in Section ~~2.09~~2.5.2, (ia) the aggregate total of the amounts allocable to the conduct of the Business prior to the Effective Time but payable after the Closing (and not paid prior to the Closing) shall be referred to as the “Seller Pro Rata Amount” and (b) the aggregate total of the amounts allocable to the conduct of the Business following the Effective Time but paid prior to the Closing shall be referred to as the “Buyer Pro Rata Amount.” Notwithstanding the foregoing, there shall be no ~~proration with respect to Tradeout Agreements for the sale of time for goods or services assumed by Buyer~~adjustment for, and ~~(ii) proration with respect to Taxes~~ Sellers shall be ~~governed exclusively by Section 9.05.~~ responsible for (ca) ~~Thirty percent of accrued vacation and personal time for Transferred Employees that is assumed by Buyer and actually granted~~ any overdue amounts under any Contracts relating to ~~Transferred Employees shall be included as a credit~~ Program Rights to ~~Buyer in~~ the ~~prorations. There shall be no proration for sick leave. (d) At least three (3) Business Days~~ extent relating to periods prior to the Closing Date, the Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (ib) ~~Buyer~~ any payments that contractually have been deferred but for which a Seller has received the benefit of the asset to which they relate prior to Closing and (c) any Retained Liabilities. The items included in the revenues and expenses referred to above shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to the Seller a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof. (f) The Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the sixty (60)-day period following the receipt of the Settlement Statement, the Seller and its independent auditors shall be permitted to review and make copies reasonably required of (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement Statement, and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (h) The Settlement Statement shall become final and binding upon the parties (and thereby deemed to be the “Final Settlement Statement”) on the 120th day following delivery thereof, unless the Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer within such 120-day period, then the Settlement Statement (as revised calculated in accordance with clause (i) or (ii) below) shall become the Final Settlement Statement on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing GAAP as consistently applied by ~~the Accounting Firm as provided herein~~Sellers. (i) Within ten (10) Business Days after the Settlement Statement becomes the Final Settlement Statement, (i) Buyer shall be required to pay to the Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) the Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to the date of actual payment. (j) Notwithstanding the foregoing, in the event that the Seller delivers a Notice of Disagreement, the Seller or Buyer, as applicable, shall within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by the Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and the Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and the Seller and its independent auditors, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements reflecting the operation of the Stations, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) the Seller, in the case of Buyer, and Buyer, in the case of the Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (l) If, at the end of such thirty (30)-day period, Buyer and the Seller have not resolved such differences, Buyer and the Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and the Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and the Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The determination of the Accounting Firm shall be final and binding on the parties and enforceable in any court of competent jurisdiction. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determination. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of the Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by the Seller.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Granite Broadcasting Corp)

General Proration. (a) All ~~Station~~ Purchased Assets that would be classified as a current ~~assets~~ asset in accordance with ~~GAAP,~~ GAAP and all Assumed Liabilities (other than Assumed Liabilities and Purchased Assets that ~~would be classified as current liabilities in accordance with GAAP,~~ are the subject of Section 2.10 and Section 5.07) shall be prorated between Buyer on the one hand and Sellers on the ~~Seller~~ other hand as of 12:01 A.M. local California time, on the Closing Date (the “Effective Time”), including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “Prorated ~~Station Assets~~Assumed Liabilities” and the “Prorated ~~Assumed Liabilities~~Current Purchased Assets”). Such Prorated ~~Station~~ Current Purchased Assets and Prorated Assumed Liabilities relating to the period prior to the Effective Time shall be for the account of ~~the Seller~~ Sellers and those relating to the period on and after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, : (iA) Buyer shall be required to pay to ~~the Seller~~ Sellers the amount of any Prorated ~~Station Asset~~ Current Purchased Asset, previously paid for by ~~the Seller or the LIN Companies~~either Seller, to the extent Buyer will receive a current benefit on and after the Effective ~~Time with the understanding~~ Time, provided that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective ~~Time (the “Buyer Prorated Amount”)~~Time; and (iiB) ~~the Seller~~ Sellers shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of ~~either or both of~~ the ~~Stations~~ Station prior to the Effective Time and are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the partiesTime. (b) ~~The~~ Such prorations ~~contemplated by this section~~ shall include all ad valorem and other property taxes, utility expenses, FCC regulatory fees~~, utility expenses~~, liabilities and obligations under ~~Contracts (including all Contracts relating to Program Rights)~~Contracts, rents and similar prepaid and deferred ~~items, reimbursable expenses~~ items and all other expenses and obligations, such as deferred revenue and ~~prepayments and sales commissions~~prepayments, attributable to the ownership and ~~holding~~ operation of the Station ~~Assets or the operation of either or both of the Stations~~ that ~~straddles~~ straddle the period before and after the Effective Time. ~~Notwithstanding anything in this Section 2.09~~If such amounts were prepaid by Sellers prior to the Effective Time and Buyer will receive a benefit after the Effective Time, ~~(i) there~~ then Sellers shall receive a credit for such amounts. If Sellers were entitled to receive a benefit prior to the Effective Time and such amounts will be paid by Buyer after the Effective Time, Buyer will receive a credit for such amounts. To the extent not known, FCC regulatory fees, real estate and personal property taxes shall be ~~no proration with respect to Tradeout Agreements~~ apportioned on the basis of FCC regulatory fees, Taxes assessed for the ~~sale of time for goods or services assumed by Buyer~~preceding year, with a reapportionment as soon as the new FCC regulatory fees, tax rate and ~~(ii) proration with respect to Taxes shall~~ valuation can be ~~governed exclusively by Section 9.05~~ascertained even if such is ascertained after the Final Settlement Statement is so determined. (c) Thirty percent of accrued vacation and personal time for Transferred Employees that is assumed by Buyer and actually granted to Transferred Employees shall be included as a credit to Buyer in the prorations. There shall be no proration for sick leave. Within sixty (d) At least three (3) Business Days prior to the Closing Date, the Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ninety (9060) days after the Closing Date, Buyer shall prepare and deliver to ~~the Seller~~ Sellers a proposed ~~proration~~ pro rata adjustment of assets and liabilities in the manner described in ~~this~~ Section ~~2.09~~ 2.09(a) and Section 2.09(b) as the case may be, for the Station, as of the Effective Time (the “Settlement Statement”) setting forth the ~~Seller~~ Prorated ~~Amount~~ Assumed Liabilities and the ~~Buyer~~ Prorated ~~Amount,~~ Current Purchased Assets together with a schedule setting forth, in reasonable detail, the components thereof. (f) The Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (gd) During the ~~sixty (60)-day~~ 30-day period following the receipt of the Settlement ~~Statement~~Statement (A) Sellers and their independent auditors, ~~the Seller and its independent auditors~~ if any, shall be permitted to review and make copies reasonably required of (i) the financial statements of Buyer relating to the Settlement ~~Statement,~~ Statement (ii) the working papers of Buyer and its independent auditors, if any, relating to the Settlement ~~Statement,~~ Statement (iii) the books and records of Buyer relating to the Settlement ~~Statement,~~ Statement and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement and (B) Buyer shall provide reasonable access to such employees of Sellers and their independent auditors, if any, as Sellers reasonably believe is necessary or desirable in connection with their review of the Settlement Statement. Each of the parties agrees that for purposes of Section 2.09, Section 2.10, Section 2.11 and Section 2.12, any reference to such party’s independent auditors shall mean, as to such party, one and the same firm to be used for the review, if any, of each Adjustment Statement. (he) The Settlement Statement shall become final and binding ~~upon the parties~~ (~~and thereby deemed to be~~ the “Final Settlement Statement”) upon the parties on the ~~120th~~ forty-fifth (45th) day following delivery thereof, unless ~~the Seller gives~~ Sellers give written notice of ~~its~~ their disagreement with the Settlement Statement (the “Settlement Statement Notice of Disagreement”) to Buyer prior to such date. The Settlement Statement Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Settlement Statement Notice of Disagreement is given to Buyer ~~within such 120-day period~~in the period specified, then the Final Settlement Statement (as revised in accordance with clause (iA) or (iiB) below) shall become final and binding upon the ~~Final Settlement Statement~~ parties on the earlier of (iA) the date Buyer and ~~Seller~~ Sellers resolve in writing any differences they have with respect to the matters specified in the Settlement Statement Notice of Disagreement or (iiB) the date any disputed matters are finally resolved in writing by the Accounting ~~Firm as provided herein~~Firm. (if) Within ~~ten (10)~~ 10 Business Days after the Settlement Statement becomes final and binding upon the ~~Final Settlement Statement~~parties, (iA) Buyer shall be required to pay to the ~~Seller~~ Sellers the amount, if any, by which (w) the ~~Final Adjustment is higher than~~ Prorated Current Purchased Assets exceed the ~~Estimated Adjustment~~ Prorated Assumed Liabilities or (iiB) ~~the Seller~~ Sellers shall be required to pay to Buyer the amount, if any, by which (y) the ~~Estimated Adjustment is higher than~~ Prorated Assumed Liabilities exceed the ~~Final Adjustment, as the case may be~~Prorated Current Purchased Assets. All payments made pursuant to this Section ~~2.09(i~~2.09(f) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by ~~The~~ the Wall Street Journal or, if not reported ~~therein~~thereby, by another ~~mutually-agreeable~~ authoritative source) as in effect from time to time from the Effective Time to the date of actual payment. (jg) Notwithstanding the foregoing, in the event that Sellers deliver a Settlement Statement Notice of Disagreement and either Sellers on the ~~Seller delivers~~ one hand or Buyer on the other hand shall be required to make a payment of any undisputed amount to the other regardless of the resolution of the items contained in the Settlement Statement Notice of Disagreement, ~~the Seller~~ then Sellers or Buyer, as applicable, shall within ~~ten (10)~~ 10 Business Days of the receipt of the Settlement Statement Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by ~~the Seller~~ Sellers or Buyer to the other, as the case may be, pending resolution of the Settlement Statement Notice of Disagreement together with interest thereon, calculated as described above. (kh) During the ~~thirty (30)-day~~ 30-day period following the delivery of a Settlement Statement Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and ~~the Seller~~ Sellers shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Settlement Statement Notice of Disagreement. During such ~~period~~ period: (iA) Buyer and its independent auditors, if any, at Buyer’s sole cost and expense, shall be, and ~~the Seller~~ Sellers and ~~its~~ their independent auditors, if any, at ~~Seller’s~~ Sellers’ sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of of: (wi) the financial statements ~~reflecting the operation~~ of the ~~Stations~~Sellers, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Sellers, relating to the Settlement Statement Notice of Disagreement, ; (xii) the working papers of the ~~Seller~~Sellers, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Sellers, and such other party’s auditors, if any, relating to the Settlement Statement Notice of Disagreement, ; (yiii) the books and records of the ~~Seller~~Sellers, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Sellers, relating to the Settlement Statement Notice of Disagreement, ; and (ziv) any supporting schedules, analyses and documentation relating to the Settlement Statement Notice of Disagreement; and (iiB) ~~the Seller~~Sellers, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Sellers, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, if any, as such first party reasonably believes is necessary or desirable in connection with its review of the Settlement Statement Notice of Disagreement. (li) If, at the end of such ~~thirty (30)-day~~ 30-day period, Buyer and ~~the Seller~~ Sellers have not so resolved such differences, Buyer and ~~the Seller~~ Sellers shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Settlement Statement Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and ~~the Seller~~ Sellers shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and ~~the Seller~~ Sellers shall use ~~commercially~~ reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. ~~The~~ Buyer and Sellers agree that judgment may be entered upon the determination of the Accounting Firm ~~shall be final and binding on the parties and enforceable~~ in any court ~~of competent jurisdiction~~having jurisdiction over the party against which such determination is to be enforced. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne equally by Buyer on the one hand and Sellers on the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determinationother hand. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Settlement Statement Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of ~~the Seller’s~~ Sellers’ independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by ~~the Seller~~Sellers.

Appears in 1 contract

Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc)

General Proration. (a) All ~~Station~~ Purchased Assets that would be classified as current assets in accordance with GAAP, and all Assumed Liabilities that would be classified as current liabilities in accordance with GAAP, shall be prorated between Buyer and ~~the~~ Seller as of the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “Prorated ~~Station~~ Purchased Assets” and the “Prorated Assumed Liabilities”). Such Prorated ~~Station~~ Purchased Assets and Prorated Assumed Liabilities relating to the period prior to the Effective Time shall be for the account of ~~the~~ Seller and those relating to the period on and after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to ~~the~~ Seller the amount of any Prorated ~~Station~~ Purchased Asset previously paid for by ~~the~~ Seller or ~~the LIN Companies~~a High Plains Entity, to the extent Buyer will receive a current benefit on and after the Effective ~~Time with the understanding~~ Time, provided that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) ~~the~~ Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of ~~either or both of~~ the ~~Stations~~ Business prior to the Effective Time and are not assumed or paid for by ~~the~~ Seller (the “Seller Prorated Amount”). Such payment by Buyer or ~~the~~ Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) ~~The~~ Such prorations ~~contemplated by this section~~ shall include all ad valorem and other property Taxes, FCC regulatory fees, utility expenses, liabilities and obligations under ~~Contracts (including all Contracts relating to Program Rights)~~Contracts, rents and similar prepaid and deferred items, reimbursable expenses and all other expenses and obligations, such as deferred revenue and prepayments and sales commissions, attributable to the ownership and ~~holding of the Station Assets or the~~ operation ~~of either or both~~ of the Stations that ~~straddles~~ straddle the period before and after the Effective Time. Notwithstanding anything in this Section ~~2.09~~2.09 to the contrary, (i) ~~there shall be no proration~~ except as set forth in this clause (b), with respect to Tradeout Agreements for the sale of time for goods or services assumed by Buyer, if at the Effective Time, the Stations have an aggregate negative barter balance (i.e., the amount by which the value of air time to be provided by the Stations the Effective Time exceeds the fair market value of corresponding goods and services to be received after such date), there shall be no proration or adjustment, unless the aggregate negative barter balance of the Stations exceeds $150,000, in which event such excess shall be treated as prepaid time sales of Seller, and adjusted for as a proration in Buyer’s favor. In determining barter balances, the value of air time shall be based upon Seller’s rates as of the Effective Time, and corresponding goods and services shall include those to be received by the Stations after the Effective Time plus those received by the Stations before the Effective Time to the extent conveyed by Seller to Buyer as part of the Purchased Assets, (ii) there shall be no proration under this Section 2.09 to the extent there is an aggregate positive barter balance with respect to ~~Taxes~~ Tradeout Agreements and (iii) there shall be ~~governed exclusively by~~ no proration under this Section ~~9.05~~2.09 for Program Rights agreements except to the extent that any payments or performance due under such Program Rights agreements relate to a payment period that straddles the Effective Time. (c) ~~Thirty percent~~ Accrued vacation and 10% of accrued ~~vacation and personal time~~ sick pay for ~~Transferred Employees that is assumed by Buyer and actually granted to~~ Transferred Employees shall be included ~~as a credit to Buyer~~ in the prorations~~. There shall be no proration for sick leave~~. (d) At least ~~three~~ five (35) Business Days prior to the Closing Date, ~~the Seller~~ Newport shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith, absent manifest error. ~~The Seller~~ Newport will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify ~~the Seller~~ Newport of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to ~~the~~ Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) ~~the~~ Seller shall be required to pay to Buyer the amount equal to ~~the absolute value of~~ the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ~~ninety~~ sixty (9060) days after the Closing Date, Buyer shall prepare and deliver to ~~the Seller~~ Newport a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof. (f) ~~The Seller~~ Newport shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the ~~sixty~~ thirty (~~60)-day~~ 30)-day period following the receipt of the Settlement Statement, ~~the Seller~~ Newport and its independent auditors shall be permitted to review and make copies reasonably required of of, (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement ~~Statement~~Statement and, ~~and~~ (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (h) The Settlement Statement shall become final and binding ~~upon the parties~~ (~~and thereby deemed to be~~ the “Final Settlement Statement”) upon the parties on the ~~120th~~ 45th day following delivery thereof, unless ~~the Seller~~ Newport gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer ~~within such 120-day period~~in the period specified, then the Final Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become final and binding upon the ~~Final Settlement Statement~~ parties on the earlier of (i) the date Buyer and ~~Seller~~ Newport resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting ~~Firm as provided herein~~Firm. (i) Within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the ~~Final Settlement Statement~~parties, (i) Buyer shall be required to pay to ~~the~~ Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) ~~the~~ Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported ~~therein~~thereby, by another ~~mutually-agreeable~~ authoritative source) as in effect from time to time from the Effective Time to the date of actual payment. (j) Notwithstanding the foregoing, in the event that ~~the Seller~~ Newport delivers a Notice of Disagreement, Seller or Buyer shall be required to make a payment of any undisputed amount to the other regardless of the resolution of the disputed items contained in the Notice of Disagreement. Seller or Buyer, as applicable, shall within ten ~~(10)~~ Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by ~~the~~ Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and ~~the Seller~~ Newport shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and ~~the Seller~~ Newport and its independent auditors, at ~~Seller~~Newport’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements ~~reflecting the operation~~ of the ~~Stations~~Business, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Newport, relating to the Notice of Disagreement, (x) the working papers of ~~the Seller~~Newport, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Newport, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of ~~the Seller~~Newport, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Newport, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) ~~the Seller~~Newport, in the case of Buyer, and Buyer, in the case of ~~the Seller~~Newport, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (l) If, at the end of such thirty (30)-day period, Buyer and ~~the Seller~~ Newport have not resolved such differences, Buyer and ~~the Seller~~ Newport shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and ~~the Seller~~ Newport shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and ~~the Seller~~ Newport shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. ~~The~~ Buyer and Newport agree that judgment may be entered upon the determination of the Accounting Firm ~~shall be final and binding on the parties and enforceable~~ in any court ~~of competent jurisdiction~~having jurisdiction over the party against which such determination is to be enforced. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and ~~the Seller~~ Newport in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time ~~it renders its determination~~the determination of the Accounting Firm is rendered on the matters submitted. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of ~~the Seller~~Newport’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by ~~the Seller~~Newport.

Appears in 1 contract

Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc)

General Proration. (a) All ~~Station~~ Purchased Assets that would be classified as current assets in accordance with ~~GAAP~~GAAP or assets under Program Rights agreements regardless of how classified, and all Assumed Liabilities that would be classified as current liabilities in accordance with ~~GAAP~~GAAP or liabilities under Program Rights agreements regardless of how classified, shall be prorated between Buyer and ~~the~~ Seller as of the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “Prorated ~~Station~~ Purchased Assets” and the “Prorated Assumed Liabilities”). Such Prorated ~~Station~~ Purchased Assets and Prorated Assumed Liabilities relating to the period at or prior to the Effective Time shall be for the account of ~~the~~ Seller and those relating to the period ~~on and~~ after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to ~~the~~ Seller the amount of any Prorated ~~Station~~ Purchased Asset previously paid for by ~~the Seller or the LIN Companies~~Seller, to the extent Buyer will receive a current benefit ~~on and~~ after the Effective ~~Time with the understanding~~ Time, provided that such amount should not have been recognized as an expense in accordance with GAAP at or prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) ~~the~~ Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of ~~either or both of~~ the Stations at or prior to the Effective Time and are not assumed or paid for by ~~the~~ Seller (the “Seller Prorated Amount”). Such payment by Buyer or ~~the~~ Seller, as the case may be, shall be made as provided in Section 2.09(j) below, within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) ~~The~~ Such prorations ~~contemplated by this section~~ shall include all ad valorem and other property Taxes, FCC regulatory fees, utility expenses, retransmission consent payments, liabilities and obligations under Contracts (including ~~all Contracts relating to~~ Program ~~Rights~~Rights Agreements), rents and similar prepaid and deferred items, reimbursable expenses and all other expenses and obligations, such as deferred revenue and prepayments and sales commissions, attributable to the ownership and ~~holding of the Station Assets or the~~ operation ~~of either or both~~ of the Stations that ~~straddles~~ straddle the period before and after the Effective Time. To the extent not known, FCC regulatory fees, real estate and personal property Taxes shall be apportioned on the basis of FCC regulatory fees, real estate and personal property Taxes assessed for the preceding year. (c) Notwithstanding anything in this Section ~~2.09~~2.09 to the contrary, (i) ~~there shall be no proration~~ except as set forth in this clause (c), with respect to Tradeout Agreements for the sale of time for goods or services assumed by Buyer, if at the Effective Time, the Stations have an aggregate negative barter balance (i.e., the amount by which the value of air time to be provided by the Stations after the Effective Time exceeds the fair market value of corresponding goods and services to be received after such date), there shall be no proration or adjustment, unless the aggregate negative barter balance of the Stations exceeds Twenty Thousand Dollars ($20,000.00), in which event such excess shall be treated as prepaid time sales of Seller, and adjusted for as a proration in Buyer’s favor (in determining barter balances or otherwise for the purposes of this Section 2.09, the value of air time shall be calculated based upon Seller’s average cash rates actually charged by the applicable Station as of the Effective Time, and corresponding goods and services shall include those to be received by the Stations after the Effective Time plus those received by the Stations before the Effective Time to the extent conveyed by Seller to Buyer as part of the Purchased Assets), (ii) there shall be no proration under this Section 2.09 to the extent there is an aggregate positive barter balance with respect to ~~Taxes~~ Tradeout Agreement; provided, however, notwithstanding any other provision to the contrary in this Agreement, Seller shall have the right to use, gift or otherwise dispose of any or all positive trade in any manner Seller deems appropriate prior to Closing and (iii) there shall be ~~governed exclusively by~~ no proration under this Section ~~9.05~~2.09 for Program Rights agreements except to the extent that any payments or performance due under such Program Rights agreements relate to a payment period that straddles the Effective Time, in which case the amount payable in the payment period will be prorated based on the number of days in such periods. (cd) ~~Thirty percent of~~ Notwithstanding anything in this Section 2.09 to the contrary, accrued vacation ~~and personal time~~ for Transferred Employees that is assumed by Buyer and actually granted to Transferred Employees shall be included ~~as a credit to Buyer~~ in the prorations. There shall be no proration of sick leave for ~~sick leave~~the Transferred Employees. (de) At least ~~three~~ five (35) Business Days prior to the Closing Date, ~~the~~ Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith, absent manifest error. ~~The~~ Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify ~~the~~ Seller of any good faith disagreement with such calculation within ~~two~~ three (23) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to ~~the~~ Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) ~~the~~ Seller shall be required to pay to Buyer the amount equal to ~~the absolute value of~~ the Estimated Adjustment if the Estimated Adjustment is a negative number. (ef) Within ~~ninety~~ sixty (9060) days after the Closing Date, Buyer shall prepare and deliver to ~~the~~ Seller a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth ~~the~~ Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof. (fg) ~~The~~ Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (gh) During the ~~sixty~~ thirty (~~60)-day~~ 30)-day period following the receipt of the Settlement Statement, ~~the~~ Seller and its independent auditors shall be permitted to review and make copies reasonably required of of, (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement ~~Statement~~Statement and, ~~and~~ (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (hi) The Settlement Statement shall become final and binding ~~upon the parties~~ (~~and thereby deemed to be~~ the “Final Settlement Statement”) upon the parties on the ~~120th~~ forty-fifth (45th) day following delivery thereof, unless ~~the~~ Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer ~~within such 120-day period~~in the period specified, then the Final Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become final and binding upon the ~~Final Settlement Statement~~ parties on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting ~~Firm as provided herein~~Firm. (ij) Within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the ~~Final Settlement Statement~~parties, (i) Buyer shall be required to pay to ~~the~~ Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) ~~the~~ Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section ~~2.09(i)~~ 2.09 must be made via wire transfer in immediately available funds to an account designated by the ~~recipient party~~recipient. If either party fails to timely pay any amounts required pursuant to this Section 2.09, ~~together with~~ such amount shall bear interest ~~thereon~~ at the prime rate (as reported by The Wall Street ~~Journal~~ Journal, Eastern Edition or, if not reported ~~therein~~thereby, by another ~~mutually-agreeable~~ authoritative source) as in effect from time to time from the ~~Effective Time to~~ date any such amount was due until the date of actual payment. (jk) Notwithstanding the foregoing, in the event that ~~the~~ Seller delivers a Notice of Disagreement, Seller or Buyer shall be required to make a payment of any undisputed amount to the other regardless of the resolution of the disputed items contained in the Notice of Disagreement. Seller or Buyer, as applicable, shall within ten (10) Business Days of following the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by ~~the~~ Seller or Buyer to the other, as the case may be~~, together with interest thereon, calculated as described above~~. (kl) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and ~~the~~ Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and ~~the~~ Seller and its independent auditors, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements ~~reflecting the operation~~ of the Stations, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller, relating to the Notice of Disagreement, (x) the working papers of ~~the~~ Seller, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of ~~the~~ Seller, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) ~~the~~ Seller, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (lm) If, at the end of such thirty (30)-day period, Buyer and ~~the~~ Seller have not resolved such differences, Buyer and ~~the~~ Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and ~~the~~ Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and ~~the~~ Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. ~~The~~ Buyer and Seller agree that judgment may be entered upon the determination of the Accounting Firm ~~shall be final and binding on the parties and enforceable~~ in any court ~~of competent jurisdiction~~having jurisdiction over the party against which such determination is to be enforced. Except as specified in the following sentence, the cost of any ~~arbitration~~ dispute resolution (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and ~~the~~ Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time ~~it renders its determination~~the determination of the Accounting Firm is rendered on the matters submitted. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of ~~the~~ Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by ~~the~~ Seller.

Appears in 1 contract

Samples: Asset Purchase Agreement

General Proration. (a) All ~~Station~~ Purchased Assets that would be classified as current assets in accordance with GAAP, and all Assumed Liabilities that would be classified as ~~current~~ liabilities in accordance with GAAP, shall be prorated between Buyer and ~~the~~ Seller as of the earlier of the LMA Commencement Date and the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the LMA Commencement Date or the Effective ~~Time~~ Time, as the case may be, occurs (respectively, the “Prorated ~~Station~~ Purchased Assets” and the “Prorated Assumed Liabilities”). Such Prorated ~~Station~~ Purchased Assets and Prorated Assumed Liabilities relating to the period prior to the earlier of the LMA Commencement Date and the Effective Time shall be for the account of ~~the~~ Seller and those relating to the period on and after the earlier of the LMA Commencement Date and the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to ~~the~~ Seller the amount of any Prorated ~~Station~~ Purchased Asset previously paid for by ~~the Seller or the LIN Companies~~Seller, to the extent Buyer will receive a current benefit on and after the earlier of the LMA Commencement Date and the Effective ~~Time with the understanding~~ Time, provided that such amount should not have been recognized as an expense in accordance with GAAP prior to the earlier of the LMA Commencement Date and the Effective Time (the “Buyer Prorated Amount”); and (ii) ~~the~~ Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of ~~either or both~~ the Business prior to the earlier of the ~~Stations prior to~~ LMA Commencement Date and the Effective Time and are not assumed or paid for by ~~the~~ Seller (the “Seller Prorated Amount”). Such payment by Buyer or ~~the~~ Seller, as the case may be, shall be made within ~~ten (10)~~ 10 Business Days after the Final Settlement Statement (as defined below) becomes final and binding upon the parties. (b) ~~The~~ Such prorations ~~contemplated by this section~~ shall include all ad valorem and other property Taxes, FCC regulatory fees, utility expenses, liabilities and obligations under ~~Contracts (including all Contracts relating to Program Rights)~~Contracts, rents and similar prepaid and deferred items, reimbursable expenses and all other expenses and obligations, such as deferred revenue and prepayments and sales commissions, attributable to the ownership and ~~holding of the Station Assets or the~~ operation ~~of either or both~~ of the Stations that ~~straddles~~ straddle the period before and after the Effective Time. Notwithstanding anything in this Section ~~2.09~~2.09 to the contrary, (i) ~~there shall be no proration~~ except as set forth in this clause (b), with respect to Tradeout Agreements for the sale of time for goods or services assumed by Buyer, if at the earlier of the Effective Time or the LMA Commencement Date, the Stations have an aggregate negative barter balance (i.e., the amount by which the value of air time to be provided by the Stations after the earlier of the Effective Time or LMA Commencement Date exceeds the fair market value of corresponding goods and services to be received after such date), there shall be no proration or adjustment, unless the aggregate negative barter balance of the Stations (including any in-kind obligation required under the SLC Debt) exceeds $100,000, in which event such excess shall be treated as prepaid time sales of Seller, and adjusted for as a proration in Buyer’s favor. In determining barter balances, the value of air time shall be based upon Seller’s rates as of the earlier of the Effective Time or LMA Commencement Date, and corresponding goods and services shall include those to be received by the Stations after the earlier of the Effective Time or LMA Commencement Date plus those received by the Stations before the earlier of the Effective Time or LMA Commencement Date to the extent conveyed by Seller to Buyer as part of the Purchased Assets, (ii) there shall be no proration under this Section 2.09 to the extent there is an aggregate positive barter balance with respect to ~~Taxes~~ Tradeout Agreements and (iii) there shall be ~~governed exclusively by~~ no proration under this Section ~~9.05~~2.09 for Program Rights agreements except to the extent that any payments or performance due under such Program Rights agreements relate to a payment period that straddles the Effective Time. (c) ~~Thirty percent of accrued~~ Accrued vacation and ~~personal time~~ sick leave for ~~Transferred Employees that is assumed by Buyer and actually granted to~~ Transferred Employees shall be included ~~as a credit to Buyer~~ in the prorations~~. There shall be no proration for sick leave~~. (d) ~~At least three (3) Business Days prior~~ There shall be a proration in Buyer’s favor to the ~~Closing Date~~extent that Buyer assumes any remaining liability under the SLC Debt and/or the Capital Leases; provided that, except as provided in clause (b) of this Section 2.09, with respect to the SLC Debt, the ~~Seller~~ proration in Buyer’s favor shall ~~provide Buyer~~ only be with ~~a good faith estimate of the prorations contemplated by this Section 2.09~~ respect to any cash amounts outstanding and shall not include or reflect any payments in kind (~~the “Estimated Settlement Statement”). Any payment required to be made by~~ such as advertising spots) either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) ~~Buyer shall be required to pay to~~ made after the ~~Seller~~ earlier of the ~~amount equal to~~ LMA Commencement Date and the ~~Estimated Adjustment if the Estimated Adjustment is a positive number~~ Effective Time or (ii) ~~the Seller shall be required to pay to Buyer the amount equal to the absolute value~~ which remain outstanding as of the ~~Estimated Adjustment if~~ earlier of such dates in connection with the ~~Estimated Adjustment is a negative number~~SLC Debt. (e) ~~Within ninety~~ There shall be a proration in Buyer’s favor with respect to a pro rata portion of any Inducement Payments made to Seller and FPMG LLC by TeleRep LLC pursuant to (90and as such term is defined in) ~~days after~~ the ~~Closing Date~~letter agreement between such parties dated as of June 25, Buyer shall prepare and deliver to the Seller a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof2007. (f) ~~The Seller~~ There shall ~~provide reasonable access~~ be a proration in Buyer’s favor to ~~such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation~~ the extent that the value of the ~~Settlement Statement. (g) During the sixty (60)-day period following the receipt~~ commercial spots for bonus weight advertising and ADUs as of the ~~Settlement Statement,~~ end of business of the ~~Seller and its independent auditors shall be permitted to review and make copies reasonably required~~ date immediately preceding the LMA Commencement Date as set forth in a report generated as of ~~(i)~~ the ~~financial statements relating to~~ end of business on such date is greater than 125% of the ~~Settlement Statement, (ii)~~ value of such commercial spots set forth in the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement Statement, and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (h) The Settlement Statement shall become final and binding upon the parties (and thereby deemed to be the “Final Settlement Statement”) on the 120th day following delivery thereof, unless the Seller gives written notice of its disagreement with the Settlement Statement schedule (the “~~Notice of Disagreement~~Commercial Spots Threshhold”) delivered by Seller to Buyer ~~prior to such date. The Notice~~ in conjunction with the execution of ~~Disagreement~~ this Agreement, which proration shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer within such 120-day period, then the Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become the Final Settlement Statement on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have be with respect to the ~~matters specified~~ value of the commercial spots in excess of the Commercial Spots Threshold. For purposes of this Section 2.09(f), commercial spots shall be valued at the Average Unit Rate realized by Seller in the ~~Notice~~ applicable market for the year to date through the end of ~~Disagreement or~~ October 2011 as measured as of the close of business on the last day of October 2011. “Average Unit Rate” means 75% of a number equal to (iia) the ~~date any disputed matters are finally resolved~~ total booked net revenue for commercial spots in ~~writing~~ a period divided by ~~the Accounting Firm as provided herein.~~ (i) Within ten (10) Business Days after the Settlement Statement becomes the Final Settlement Statement, (i) Buyer shall be required to pay to the Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (iib) the Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer total number of commercial spots booked (including in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to the date of actual payment. (j) Notwithstanding the foregoing, in the event that the Seller delivers a Notice of Disagreement, the Seller or Buyer, as applicable, shall within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by the Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and the Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and the Seller and its independent auditors, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements reflecting the operation of the Stations, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) the Seller, in the case of Buyer, and Buyer, in the case of the Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable number bonus weight advertising spots granted in connection with ~~its review of the Notice of Disagreement~~such booked commercial spots) by third party advertising customers in such period. (l) If, at the end of such thirty (30)-day period, Buyer and the Seller have not resolved such differences, Buyer and the Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and the Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and the Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The determination of the Accounting Firm shall be final and binding on the parties and enforceable in any court of competent jurisdiction. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determination. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of the Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by the Seller.

Appears in 1 contract

Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc)

General Proration. (a) ~~All~~ Except as provided in the Local Marketing Agreement, all Station Assets that would be classified as ~~current~~ assets in accordance with GAAP, and all Assumed ~~Liabilities~~ Obligations that would be classified as ~~current~~ liabilities in accordance with ~~GAAP~~GAAP (including accrued but unpaid commissions, but excluding equity non-cash compensation), shall be prorated between Buyer and ~~the~~ Seller as of the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “Prorated Station Assets” and the “Prorated Assumed ~~Liabilities~~Obligations”). ~~Such~~ Except as provided in the Local Marketing Agreement, such Prorated Station Assets and Prorated Assumed ~~Liabilities~~ Obligations relating to the period prior to the Effective Time shall be for the account of ~~the~~ Seller and those relating to the period on ~~and~~ or after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to the Seller the amount of any Prorated Station Asset previously paid for by the Seller or the LIN Companies, to the extent Buyer will receive a current benefit on and after the Effective Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) the Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of either or both of the Stations prior to the Effective Time and are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) ~~The~~ Except as provided in the Local Marketing Agreement, such prorations ~~contemplated by this section~~ shall include all ~~FCC regulatory fees~~ad valorem and other property taxes, assessments, utility expenses, liabilities and obligations under ~~Contracts (including all Contracts relating to Program Rights)~~Station Contracts, rents and similar prepaid and deferred ~~items, reimbursable expenses~~ items and all other expenses and obligations, such as accrued but unpaid commissions, deferred revenue and ~~prepayments and sales commissions~~prepayments, attributable to the ownership and ~~holding of the Station Assets or the~~ operation ~~of either or both~~ of the Stations that ~~straddles~~ straddle the period before and after the Effective Time. If such amounts were prepaid by Seller prior to the Effective Time and Buyer will receive a benefit after the Effective Time, then Seller shall receive a credit for such amounts. If Seller was entitled to receive a benefit prior to the Effective Time and such amounts will be paid by Buyer after the Effective Time, Buyer will receive a credit for such amounts. To the extent not known, real estate and personal property taxes shall be apportioned on the basis of Taxes assessed for the preceding year, with a reapportionment as soon as the new tax rate and valuation can be ascertained even if such is ascertained after the Settlement Statement is so determined. In addition, upon the Closing Date, or as promptly thereafter as is practicable, all employee and programming bonuses and incentive compensation or fees (and the taxes related thereto) earned or accrued at or prior to the Closing Date or otherwise attributable to the fiscal or calendar year or other period during which the Closing Date falls shall be equitably prorated between Buyer and Seller, even if such amounts would not be accrued or classified as liabilities under GAAP. (c) Notwithstanding anything in this Section ~~2.09~~1.7 to the contrary, ~~(i)~~ there shall be no proration ~~with respect to~~ under this Section 1.7 for Tradeout Agreements except as follows. In the event that the value of the aggregate liability of the Stations under the Tradeout Agreements as of the Effective Time exceeds the sum of (i) $20,000 plus (ii) the aggregate fair value of the goods yet to be received and services yet to be used by the Stations under the Tradeout Agreements, such excess shall be treated as a Prorated Assumed Obligation. For the purposes of this subsection, the liability of the Stations for unperformed time on or after the ~~sale~~ Effective Time shall be valued according to the fair market value of ~~time for~~ the goods or services ~~assumed~~ received or to be received by ~~Buyer, and (ii) proration with respect to Taxes shall be governed exclusively by Section 9.05~~the Stations for such time under such Tradeout Agreements. (cd) ~~Thirty percent of accrued~~ Accrued vacation ~~and personal time~~ liabilities for ~~Transferred Employees that is assumed by Buyer and actually granted to~~ Transferred Employees shall be included ~~as a credit to Buyer~~ in the prorations~~. There~~ , but there shall be no proration under this Section 1.7 for sick leave. (d) At least three (3) Business Days prior to the Closing Date, the Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative numberleave for Transferred Employees. (e) Within ~~ninety (90)~~ 45 days after the Closing Date, Buyer shall prepare and deliver to ~~the~~ Seller a proposed ~~proration~~ pro rata adjustment of assets and liabilities in the manner described in ~~this~~ Section ~~2.09~~ 1.7(a), Section 1.7(b) and Section 1.7(c), for the Stations, as of the Effective Time (the “Settlement Statement”) setting forth the ~~Seller~~ Prorated ~~Amount~~ Assumed Obligations and the ~~Buyer~~ Prorated ~~Amount,~~ Station Assets together with a schedule setting forth, in reasonable detail, the components thereof. (f) The Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the ~~sixty (60)-day~~ 30-day period following the receipt of the Settlement ~~Statement, the~~ Statement (i) Seller and its independent ~~auditors~~ auditors, if any, shall be permitted to review and make copies reasonably required of (iA) the financial statements of Buyer relating to the Settlement Statement, ; (iiB) the working papers of Buyer and its independent auditors, if any, relating to the Settlement Statement, ; (~~iii~~C) the books and records of Buyer relating to the Settlement Statement, ; and (ivD) any supporting schedules, analyses and other documentation relating to the Settlement Statement and (ii) Buyer shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of Seller and its independent auditors, if any, as Seller reasonably believes is necessary or desirable in connection with its review of the Settlement Statement. (hg) The Settlement Statement shall become final and binding upon the parties ~~(and thereby deemed to be the “Final Settlement Statement”)~~ on the ~~120th~~ 30th day following delivery thereof, unless ~~the~~ Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer ~~within such 120-day period~~in the period specified, then the Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become final and binding upon the ~~Final Settlement Statement~~ parties on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting ~~Firm as provided herein~~Firm. (ih) Within ~~ten (10)~~ 10 Business Days after the Settlement Statement becomes final and binding upon the ~~Final Settlement Statement~~parties, (i) Buyer shall be required to pay to ~~the~~ Seller the amount, if any, by which the ~~Final Adjustment is higher than~~ Prorated Station Assets exceeds the ~~Estimated Adjustment~~ Prorated Assumed Obligations or (ii) ~~the~~ Seller shall be required to pay to Buyer the amount, if any, by which the ~~Estimated Adjustment is higher than~~ Prorated Assumed Obligations exceeds the ~~Final Adjustment, as the case may be~~Prorated Station Assets. All payments made pursuant to this Section ~~2.09(i~~1.7(h) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported ~~therein~~thereby, by another ~~mutually-agreeable~~ authoritative source) as in effect from time to time from the Effective Time to the date of actual payment. (ji) Notwithstanding the foregoing, in the event that ~~the~~ Seller delivers a Notice of Disagreement, Seller or Buyer shall be required to make a payment of any undisputed amount to the other regardless of the resolution of the items contained in the Notice of Disagreement, and Seller or Buyer, as applicable, shall within ~~ten (10)~~ 10 Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by ~~the~~ Seller or Buyer to the other, as the case may be, pending resolution of the Notice of Disagreement together with interest thereon, calculated as described above. (kj) During the ~~thirty (30)-day~~ 30-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and ~~the~~ Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such ~~period~~ period: (i) Buyer and its independent auditors, if any, at Buyer’s sole cost and expense, shall be, and ~~the~~ Seller and its independent auditors, if any, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of of: (wA) the financial statements ~~reflecting the operation of the Stations, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers~~ of the Seller, in the case of Buyer, and Buyer, in the case of Seller, relating to the Notice of Disagreement; (B) the working papers of Seller, in the case of Buyer, and Buyer, in the case of Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, ; (yC) the books and records of ~~the~~ Seller, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller, relating to the Notice of Disagreement, ; and (zD) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) ~~the~~ Seller, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, if any, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (lk) If, at the end of such ~~thirty (30)-day~~ 30-day period, Buyer and ~~the~~ Seller have not resolved such differences, Buyer and ~~the~~ Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within ~~sixty (60)~~ 60 days after selection of the Accounting Firm, Buyer and ~~the~~ Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and ~~the~~ Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within ~~thirty (30)~~ 30 days following the submission of such materials to the Accounting Firm. ~~The~~ Buyer and Seller agree that judgment may be entered upon the determination of the Accounting Firm ~~shall be final and binding on the parties and enforceable~~ in any court ~~of competent jurisdiction~~having jurisdiction over the party against which such determination is to be enforced. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section ~~2.09~~ 1.7 shall be borne by Buyer and ~~the~~ Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time ~~it renders its determination~~the determination of the Accounting Firm is rendered on the matters submitted. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of ~~the~~ Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by ~~the~~ Seller.

Appears in 1 contract

Samples: Asset Purchase Agreement (Regent Communications Inc)

General Proration. (a) ~~All~~ Except as provided in the Local Marketing Agreement, all Station Assets that would be classified as ~~current~~ assets in accordance with GAAP, and all Assumed ~~Liabilities~~ Obligations that would be classified as ~~current~~ liabilities in accordance with ~~GAAP~~GAAP (including accrued but unpaid commissions, but excluding equity non-cash compensation), shall be prorated between Buyer and ~~the~~ Seller as of the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “Prorated Station Assets” and the “Prorated Assumed ~~Liabilities~~Obligations”). ~~Such~~ Except as provided in the Local Marketing Agreement, such Prorated Station Assets and Prorated Assumed ~~Liabilities~~ Obligations relating to the period prior to the Effective Time shall be for the account of ~~the~~ Seller and those relating to the period on ~~and~~ or after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to the Seller the amount of any Prorated Station Asset previously paid for by the Seller or the LIN Companies, to the extent Buyer will receive a current benefit on and after the Effective Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) the Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of either or both of the Stations prior to the Effective Time and are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties. (b) ~~The~~ Except as provided in the Local Marketing Agreement, such prorations ~~contemplated by this section~~ shall include all ~~FCC regulatory fees~~ad valorem and other property taxes, utility expenses, liabilities and obligations under ~~Contracts (including all Contracts relating to Program Rights)~~Station Contracts, rents and similar prepaid and deferred ~~items, reimbursable expenses~~ items and all other expenses and obligations, such as accrued but unpaid commissions, deferred revenue and ~~prepayments and sales commissions~~prepayments, attributable to the ownership and ~~holding of the Station Assets or the~~ operation ~~of either or both~~ of the Stations that ~~straddles~~ straddle the period before and after the Effective Time. If such amounts were prepaid by Seller prior to the Effective Time and Buyer will receive a benefit after the Effective Time, then Seller shall receive a credit for such amounts. If Seller was entitled to receive a benefit prior to the Effective Time and such amounts will be paid by Buyer after the Effective Time, Buyer will receive a credit for such amounts. To the extent not known, real estate and personal property taxes shall be apportioned on the basis of Taxes assessed for the preceding year, with a reapportionment as soon as the new tax rate and valuation can be ascertained even if such is ascertained after the Settlement Statement is so determined. Notwithstanding anything in this Section ~~2.09~~1.7 to the contrary, ~~(i)~~ there shall be no proration with respect to Tradeout Agreements for the sale of time for goods or services assumed by Buyer, and (ii) proration with respect to Taxes shall be governed exclusively by Section 9.05. (c) Thirty percent of accrued vacation and personal time for Transferred Employees that is assumed by Buyer and actually granted to Transferred Employees shall be included as a credit to Buyer in the prorations. There shall be no proration for sick leave. (d) At least three (3) Business Days prior to the Closing Date, the Seller shall provide Buyer with a good faith estimate of the prorations contemplated by under this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to the Seller a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof. (f) The Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the sixty (60)-day period following the receipt of the Settlement Statement, the Seller and its independent auditors shall be permitted to review and make copies reasonably required of (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement Statement, and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (h) The Settlement Statement shall become final and binding upon the parties (and thereby deemed to be the “Final Settlement Statement”) on the 120th day following delivery thereof, unless the Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer within such 120-day period, then the Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become the Final Settlement Statement on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting Firm as provided herein. (i) Within ten (10) Business Days after the Settlement Statement becomes the Final Settlement Statement, (i) Buyer shall be required to pay to the Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) the Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to the date of actual payment. (j) Notwithstanding the foregoing, in the event that the Seller delivers a Notice of Disagreement, the Seller or Buyer, as applicable, shall within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by the Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and the Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and the Seller and its independent auditors, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements reflecting the operation of the Stations, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) the Seller, in the case of Buyer, and Buyer, in the case of the Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (l) If, at the end of such thirty (30)-day period, Buyer and the Seller have not resolved such differences, Buyer and the Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and the Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and the Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The determination of the Accounting Firm shall be final and binding on the parties and enforceable in any court of competent jurisdiction. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determination. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of the Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by the Seller.1.7

Appears in 1 contract

Samples: Asset Purchase Agreement (Entercom Communications Corp)

General Proration. ~~(a) All Station Assets that would be classified~~ Except as ~~current assets~~ otherwise expressly specified in ~~accordance with GAAP~~this Agreement, ~~and all Assumed Liabilities that would be classified as current liabilities in accordance with GAAP, shall be prorated between Buyer~~ the operation of the Business and the ~~Seller as of the Effective Time~~income and normal operating expenses, including ~~by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs~~ accrued liabilities (~~respectively~~including, ~~the “Prorated Station Assets”~~ any accrued payment obligations under Contracts) and ~~the “Prorated Assumed Liabilities”). Such Prorated Station Assets and Prorated Assumed Liabilities relating to the period prior to~~ prepaid expenses, attributable thereto through the Effective Time shall be for the account of ~~the Seller~~ Sellers and ~~those relating to the period on and after the Effective Time~~ thereafter for the account of Buyer ~~and shall be prorated accordingly. In accordance with~~ (for purposes of this Section ~~2.09~~2.5, ~~(i) Buyer shall~~ all unused vacation leave pursuant to Section 9.3 will be ~~required to pay to the Seller the amount of any Prorated Station Asset previously paid~~ treated as accrued liabilities). Expenses for ~~by the Seller~~ goods or ~~the LIN Companies, to the extent Buyer will receive a current benefit on~~ services received both before and after the Effective ~~Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”);~~ Time, real and (ii) the Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of either or both of the Stations prior to the Effective Time personal property Taxes and ~~are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller~~assessments, ~~as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final~~ power and ~~binding upon the parties. (b) The prorations contemplated by this section shall include all FCC regulatory fees, utility expenses, liabilities~~ utilities charges and ~~obligations under Contracts (including all Contracts relating to Program Rights),~~ rents and similar prepaid and deferred ~~items~~items shall be prorated, ~~reimbursable expenses~~ based on the number of days, between Sellers and ~~all other expenses and obligations, such~~ Buyer as ~~deferred revenue and prepayments and sales commissions, attributable to the ownership and holding~~ of ~~the Station Assets or the operation of either or both of the Stations that straddles the period before and after~~ the Effective Time. ~~Notwithstanding anything~~ All special assessments and similar charges or liens imposed against the Broadcasting Assets and/or the KBWB Licenses in ~~this~~ respect of any period of time through the Effective Time, whether payable in installments or otherwise, shall be the responsibility of Sellers, and amounts with respect to such special assessments, charges or liens in respect of any period of time after the Effective Time shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. No adjustment or proration shall be made in favor of Sellers for any amount by which the fair market value of the goods or services to be received by the Station under any Trade Agreements or Barter Agreements as of the Effective Time exceeds the fair market value of any advertising time remaining to be run by the Station. An adjustment and proration shall be made in favor of Buyer to the extent that the amount of any advertising time remaining to be run by the Station under any Trade Agreements or Barter Agreements as of the Effective Time exceeds by more than Fifty Thousand Dollars ($50,000.00) in the aggregate the fair market value of the goods or services to be received by the Station as of the Effective Time. For purposes of the Aggregate Consideration adjustment procedure set forth in Section ~~2.09~~2.5.2, (ia) the aggregate total of the amounts allocable to the conduct of the Business prior to the Effective Time but payable after the Closing (and not paid prior to the Closing) shall be referred to as the “Seller Pro Rata Amount” and (b) the aggregate total of the amounts allocable to the conduct of the Business following the Effective Time but paid prior to the Closing shall be referred to as the “Buyer Pro Rata Amount.” Notwithstanding the foregoing, there shall be no ~~proration with respect to Tradeout Agreements for the sale of time for goods or services assumed by Buyer~~adjustment for, and ~~(ii) proration with respect to Taxes~~ Sellers shall be ~~governed exclusively by Section 9.05.~~ responsible for (ca) ~~Thirty percent of accrued vacation and personal time for Transferred Employees that is assumed by Buyer and actually granted~~ any overdue amounts under any Contracts relating to ~~Transferred Employees shall be included as a credit~~ Program Rights to ~~Buyer in~~ the ~~prorations. There shall be no proration for sick leave. (d) At least three (3) Business Days~~ extent relating to periods prior to the Closing Date, the Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (ib) ~~Buyer~~ any payments that contractually have been deferred but for which a Seller has received the benefit of the asset to which they relate prior to Closing and (c) any Retained Liabilities. The items included in the revenues and expenses referred to above shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to the Seller a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth the Seller Prorated Amount and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof. (f) The Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (g) During the sixty (60)-day period following the receipt of the Settlement Statement, the Seller and its independent auditors shall be permitted to review and make copies reasonably required of (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement Statement, and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement. (h) The Settlement Statement shall become final and binding upon the parties (and thereby deemed to be the “Final Settlement Statement”) on the 120th day following delivery thereof, unless the Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer within such 120-day period, then the Settlement Statement (as revised calculated in accordance with clause (i) or (ii) below) shall become the Final Settlement Statement on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing GAAP as consistently applied by ~~the Accounting Firm as provided herein~~Sellers. (i) Within ten (10) Business Days after the Settlement Statement becomes the Final Settlement Statement, (i) Buyer shall be required to pay to the Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) the Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to the date of actual payment. (j) Notwithstanding the foregoing, in the event that the Seller delivers a Notice of Disagreement, the Seller or Buyer, as applicable, shall within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by the Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above. (k) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and the Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and the Seller and its independent auditors, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements reflecting the operation of the Stations, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) the Seller, in the case of Buyer, and Buyer, in the case of the Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (l) If, at the end of such thirty (30)-day period, Buyer and the Seller have not resolved such differences, Buyer and the Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and the Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and the Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The determination of the Accounting Firm shall be final and binding on the parties and enforceable in any court of competent jurisdiction. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determination. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of the Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by the Seller.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Granite Broadcasting Corp)

General Proration. (a) All ~~Station~~ Purchased Assets that would be classified as current assets in accordance with ~~GAAP~~GAAP or assets under Program Rights agreements regardless of how classified, and all Assumed Liabilities that would be classified as current liabilities in accordance with GAAP, shall be prorated between Buyer and the Seller as of the Effective Time, including by taking into account the elapsed time or consumption of an asset during the month in which the Effective Time occurs (respectively, the “Prorated Station Assets” and the “Prorated Assumed Liabilities”). Such Prorated Station Assets and Prorated Assumed Liabilities relating to the period prior to the Effective Time shall be for the account of the Seller and those relating to the period on and after the Effective Time for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to the Seller the amount of any Prorated Station Asset previously paid for by the Seller or the LIN Companies, to the extent Buyer will receive a current benefit on and after the Effective Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) the Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of either or both of the Stations prior to the Effective Time and are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the parties.accordan... (b) ~~The~~ Such prorations ~~contemplated by this section~~ shall include all ad valorem and other property Taxes, FCC regulatory fees, utility expenses, retransmission consent payments, liabilities and obligations under Contracts (including ~~all Contracts relating to~~ Program ~~Rights~~Rights Agreements), rents and similar prepaid and deferred items, reimbursable expenses and all other expenses and obligations, such as deferred revenue and prepayments and sales commissions, attributable to the ownership and holding of the Station Assets or the operation of either or both of the Stations that straddles the period before and after the Effective Time. pre... (c) Notwithstanding anything in this Section ~~2.09~~2.09 to the contrary, (i) ~~there shall be no proration~~ except as set forth in this clause (c), with respect to Tradeout Agreements for the sale of time for goods or services assumed by Buyer, ~~and (ii) proration with respect to Taxes shall be governed exclusively by Section 9.05.~~if at the Effective Time, the Stations have... (cd) ~~Thirty percent of~~ Notwithstanding anything in this Section 2.09 to the contrary, accrued vacation ~~and personal time~~ for Transferred Employees that is assumed by Buyer and actually granted to Transferred Employees shall be included ~~as a credit to Buyer~~ in the prorations. There shall be no proration ~~for sick leave.~~of s... (de) At least ~~three~~ five (35) Business Days prior to the Closing Date, ~~the~~ Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number.... (ef) Within ~~ninety~~ sixty (9060) days after the Closing Date, Buyer shall prepare and deliver to ~~the~~ Seller a proposed proration of assets and liabilities in the manner described in this Section 2.09 (the “Settlement Statement”) setting forth ~~the~~ Seller Prorated Amount ~~and the Buyer Prorated Amount, together with a schedule setting forth, in reasonable detail, the components thereof.~~... (fg) ~~The~~ Seller shall provide reasonable access to such employees, books, records, financial statements, and its independent auditors as Buyer reasonably believes is necessary or desirable in connection with its preparation of the Settlement Statement. (gh) During the ~~sixty~~ thirty (~~60)-day~~ 30)-day period following the receipt of the Settlement Statement, ~~the~~ Seller and its independent auditors shall be permitted to review and make copies reasonably required of of, (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the books and records relating to the Settlement Statement, and (iv) any supporting schedules, analyses and other documentation relating to the Settlement Statement.S... (hi) The Settlement Statement shall become final and binding ~~upon the parties~~ (~~and thereby deemed to be~~ the “Final Settlement Statement”) upon the parties on the ~~120th~~ forty-fifth (45th) day following delivery thereof, unless ~~the~~ Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer within such 120-day period, then the Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become the Final Settlement Statement on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting Firm as provided herein.Statem... (ij) Within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the ~~Final Settlement Statement~~parties, (i) Buyer shall be required to pay to ~~the~~ Seller the amount, if any, by which the Final Adjustment is higher than the Estimated Adjustment or (ii) the Seller shall be required to pay to Buyer the amount, if any, by which the Estimated Adjustment is higher than the Final Adjustment, as the case may be. All payments made pursuant to this Section 2.09(i) must be made via wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to the date of actual payment.o... (jk) Notwithstanding the foregoing, in the event that ~~the~~ Seller delivers a Notice of Disagreement, ~~the~~ Seller or ~~Buyer, as applicable,~~ Buyer shall ~~within ten (10) Business Days~~ be required to make a payment of ~~the receipt of the Notice of Disagreement make payment~~ any undisputed amount to the other ~~by wire transfer~~ regardless of the resolution of the disputed items contained in ~~immediately available funds of such undisputed amount owed by the Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described above.~~th... (kl) During the thirty (30)-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and ~~the~~ Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period (i) Buyer and its independent auditors, at Buyer’s sole cost and expense, shall be, and the Seller and its independent auditors, at Seller’s sole cost and expense, shall be, in each case permitted to review and make copies reasonably required of (w) the financial statements reflecting the operation of the Stations, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, and such other party’s auditors, if any, relating to the Notice of Disagreement, (y) the books and records of the Seller, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, and (z) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) the Seller, in the case of Buyer, and Buyer, in the case of the Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of such other party and such other party’s independent auditors, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement.t... (lm) If, at the end of such thirty (30)-day period, Buyer and ~~the~~ Seller have not resolved such differences, Buyer and ~~the~~ Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were properly included in the Notice of Disagreement. Within sixty (60) days after selection of the Accounting Firm, Buyer and the Seller shall submit their respective positions to the Accounting Firm, in writing, together with any other materials relied upon in support of their respective positions. Buyer and the Seller shall use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The determination of the Accounting Firm shall be final and binding on the parties and enforceable in any court of competent jurisdiction. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.09 shall be borne by Buyer and the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determination. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of the Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by the Seller.in...

Appears in 1 contract

Samples: Asset Purchase Agreement

General Proration. (a) All income and expenses from the ownership or holding of the Station Assets ~~that would be classified as current assets in accordance with GAAP, and all Assumed Liabilities that would be classified as current liabilities in accordance with GAAP,~~ shall be prorated between Seller and Buyer ~~and the Seller~~ as of Commencement or the Effective Time, ~~including by taking into account the elapsed time~~ as applicable, with all expenses incurred or ~~consumption of an asset during the month in which~~ income earned prior to Commencement or the Effective ~~Time occurs (respectively~~Time, ~~the “Prorated Station Assets” and the “Prorated Assumed Liabilities”). Such Prorated Station Assets and Prorated Assumed Liabilities relating to the period prior to the Effective Time shall be~~ as applicable, for the account of Seller (including income earned from advertising which has been broadcast on the ~~Seller and those relating~~ Station prior to ~~the period on and after~~ Commencement or the Effective ~~Time~~ Time, as applicable, but not yet billed), and all income earned and expenses incurred after Commencement or the Effective Time, as applicable, for the account of Buyer and shall be prorated accordingly. In accordance with this Section 2.09, (i) Buyer shall be required to pay to the Seller the amount of any Prorated Station Asset previously paid for by the Seller or the LIN Companies, to the extent Buyer will receive a current benefit on and after the Effective Time with the understanding that such amount should not have been recognized as an expense in accordance with GAAP prior to the Effective Time (the “Buyer Prorated Amount”); and (ii) the Seller shall be required to pay to Buyer the amount of any Prorated Assumed Liabilities to the extent they arise with respect to the operation of either or both of the Stations prior to the Effective Time and are not assumed or paid for by the Seller (the “Seller Prorated Amount”). Such payment by Buyer or the Seller, as the case may be, shall be made within ten (10) Business Days after the Final Settlement Statement becomes final and binding upon the partiesBuyer. (b) The prorations ~~contemplated by this section~~ shall ~~include~~ account for all ad valorem and other property Taxes, business and license fees, including FCC regulatory fees, utility expenses, liabilities and obligations under the Station Contracts ~~(including all Contracts relating to Program Rights)~~and Real Estate Leases, rents and similar prepaid and deferred ~~items, reimbursable expenses~~ items and all other expenses and obligations, such as deferred revenue and prepayments ~~and sales commissions,~~ attributable to the ownership ~~and~~ or holding of the Station Assets ~~or the~~ and operation of ~~either or both of~~ the ~~Stations~~ Station that ~~straddles~~ straddle the period before and after Commencement or the Effective Time, as applicable. If such amounts were prepaid by Seller prior to Commencement or the Effective Time, as applicable, and Buyer will receive a benefit after Commencement or the Effective Time, as applicable, then Seller shall receive a credit for such amounts (which would include security deposits made by Seller but assumed by Buyer). If Seller received a benefit prior to Commencement or the Effective Time, as applicable, and such amounts will be paid by Buyer after Commencement or the Effective Time, as applicable, Buyer will receive a credit for such amounts. To the extent not known, real estate and personal property Taxes shall be apportioned on the basis of Taxes assessed for the preceding year. Notwithstanding anything in this Section ~~2.09~~1.7 to the contrary, ~~(i)~~ there shall be no proration ~~with respect to Tradeout Agreements~~ under this Section 1.7 for any contracts or agreements not included in the ~~sale of time for goods or services assumed by Buyer, and (ii) proration with respect to Taxes shall be governed exclusively by Section 9.05~~Station Contracts. (c) Thirty percent of accrued vacation and personal time for Transferred Employees that is assumed by Buyer and actually granted to Transferred Employees shall be included as a credit to Buyer in the prorations. There shall be no proration for sick leave. Within forty-five (d) At least three (3) Business Days prior to the Closing Date, the Seller shall provide Buyer with a good faith estimate of the prorations contemplated by this Section 2.09 (the “Estimated Settlement Statement”). Any payment required to be made by either party pursuant to such preliminary estimate shall be made by the appropriate party at the Closing in accordance therewith. The Seller will afford Buyer reasonable access to all records and work papers used in preparing the Estimated Settlement Statement, and Buyer shall notify the Seller of any good faith disagreement with such calculation within two (2) Business Days of receiving the Estimated Settlement Statement. At the Closing, (i) Buyer shall be required to pay to the Seller the amount equal to the Estimated Adjustment if the Estimated Adjustment is a positive number or (ii) the Seller shall be required to pay to Buyer the amount equal to the absolute value of the Estimated Adjustment if the Estimated Adjustment is a negative number. (e) Within ninety (9045) days after the Closing Date, Buyer shall prepare and deliver to ~~the~~ Seller a proposed ~~proration~~ pro rata adjustment of ~~assets~~ income and ~~liabilities~~ expenses in the manner described in ~~this~~ Section ~~2.09~~ 1.7(a) and Section 1.7(b) for the Station as of the Effective Time (the “Settlement Statement”~~) setting forth the Seller Prorated Amount and the Buyer Prorated Amount~~), together with a schedule setting forth, in reasonable detail, the components thereof~~. (f) The Seller~~ . During such 45-day period, Buyer and its representatives shall ~~provide~~ be provided reasonable ~~access~~ access, upon reasonable advance notice and during normal business hours, to such ~~employees~~books and records of Seller, ~~books, records, financial statements,~~ and to employees of Seller and its independent ~~auditors~~ auditors, if any, as Buyer may reasonably ~~believes is necessary or desirable~~ request in connection with its preparation of the Settlement Statement. (gd) During the ~~sixty (60)-day~~ 30-day period following the receipt of the Settlement Statement, ~~the~~ Buyer shall provide Seller and its ~~independent auditors shall be permitted~~ representatives reasonable access, upon reasonable advance notice and during normal business hours, to ~~review and make copies reasonably required of (i) the financial statements relating to the Settlement Statement, (ii) the working papers relating to the Settlement Statement, (iii) the~~ such books and records ~~relating to the Settlement Statement~~of Buyer, and ~~(iv) any supporting schedules~~to employees of Buyer and its independent auditors, ~~analyses and other documentation relating to~~ if any, as Seller may reasonably request in connection with its review of the Settlement Statement. (he) The Settlement Statement shall become final and binding upon the parties ~~(and thereby deemed to be the “Final Settlement Statement”)~~ on the ~~120th~~ 30th day following delivery ~~thereof~~thereof to Seller, unless ~~the~~ Seller gives written notice of its disagreement with the Settlement Statement (the “Notice of Disagreement”) to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer ~~within such 120-day period~~in the period specified, then the Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become final and binding upon the ~~Final Settlement Statement~~ parties on the earlier of (i) the date Buyer and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting Firm as provided herein. (if) Within ten (10) Business Days after the Settlement Statement becomes final and binding upon the ~~Final Settlement Statement~~parties, (i) Buyer shall ~~be required to~~ pay to ~~the~~ Seller the amount, if any, by which the ~~Final Adjustment is higher than~~ prorated income allocated to Seller exceeds the ~~Estimated Adjustment~~ prorated expenses allocated to Seller or (ii) ~~the~~ Seller shall ~~be required to~~ pay to Buyer the amount, if any, by which the ~~Estimated Adjustment is higher than~~ prorated expenses allocated to Seller exceed the ~~Final Adjustment, as the case may be~~prorated income allocated to Seller. All payments made pursuant to this Section ~~2.09(i~~1.7(f) ~~must~~ shall be made ~~via~~ by wire transfer in immediately available funds to an account designated by the recipient party, together with interest thereon at the prime rate (as reported by The Wall Street Journal or, if not reported therein, by another mutually-agreeable source) as in effect from time to time from the Effective Time to the date of actual payment. (jg) Notwithstanding any statement in this section to the ~~foregoing~~contrary, ~~in the event that the~~ if Seller delivers a Notice of Disagreement, ~~the~~ Seller or Buyer, as applicable, shall make a payment to the other party in immediately available funds of any undisputed amount within ten (10) Business Days of the receipt of the Notice of Disagreement make payment to the other by wire transfer in immediately available funds of such undisputed amount owed by the Seller or Buyer to the other, as the case may be, together with interest thereon, calculated as described aboveDisagreement. (kh) During the ~~thirty (30)-day~~ 30-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and ~~the~~ Seller shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such ~~period~~ period: (i) each of Buyer and ~~its~~ Seller, and their respective independent auditors, if any, and at each of Buyer’s ~~sole cost~~ and ~~expense, shall be, and the Seller and its independent auditors, at~~ Seller’s sole cost and expense, shall ~~be, in each case~~ be permitted to review and make copies reasonably required of of; (wA) the financial statements ~~reflecting the operation~~ of ~~the Stations, in the case of Buyer, and Buyer, in the case of the Seller, relating to the Notice of Disagreement, (x) the working papers of the~~ Seller, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller~~, and such other party’s auditors, if any~~, relating to the Notice of Disagreement, (yB) the books and records of ~~the~~ Seller, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller, relating to the Notice of Disagreement, and (zC) any supporting schedules, analyses and documentation relating to the Notice of Disagreement; and (ii) ~~the~~ Seller, in the case of Buyer, and Buyer, in the case of ~~the~~ Seller, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of ~~such~~ the other party and such other party’s independent auditors, if any, as such first party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement. (li) If, at the end of such ~~thirty (30)-day~~ 30-day period, Buyer and ~~the~~ Seller have not resolved ~~such~~ their differences, Buyer and ~~the~~ Seller shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were ~~properly~~ included in the Notice of Disagreement. Within ~~sixty~~ thirty (6030) days after selection of the Accounting Firm, Buyer and ~~the~~ Seller shall submit their respective positions to the Accounting ~~Firm,~~ Firm in writing, together with any other materials relied upon in support of their respective positions. Buyer and ~~the~~ Seller shall cooperate with each other and otherwise use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The ~~determination~~ decision of the Accounting Firm shall be final and binding on each of the ~~parties~~ parties, and ~~enforceable~~ judgment upon the determination of the Accounting Firm may be entered in any court of competent ~~jurisdiction~~jurisdiction (but subject to Section 10.8 hereof). ~~Except as specified in the following sentence, the cost of any arbitration (including the~~ The fees and expenses of the Accounting ~~Firm) pursuant to this Section 2.09~~ Firm shall be ~~borne by Buyer~~ divided equally between Seller and the Seller in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportional allocations shall also be determined by the Accounting Firm at the time it renders its determinationBuyer. The fees and expenses (if any) of Buyer’s independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of ~~the~~ Seller’s independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by ~~the~~ Seller.

Appears in 1 contract

Samples: Asset Purchase Agreement (Emmis Communications Corp)

Common use of General Proration Clause in Contracts