Proration; Adjustments to Purchase Price. (a) For the purposes of (i) identifying the Purchased Assets, Retained Assets, Assumed Liabilities and Retained Liabilities, (ii) determining the adjustment to the Purchase Price, if any, to be made pursuant to this Section 2.4, and (iii) identifying the Pre-TBA Receivables for the purpose of Section 2.9, all prepaid or deferred revenue, prepaid expenses, accrued income and accrued expenses of the Station as of 12:01 a.m., Joplin, Missouri time on the date hereof (the "Adjustment Time") shall, except as otherwise expressly provided herein, be adjusted and allocated between Sellers and Buyer to reflect the principle that all revenue, income and expenses (including, without limitation, accrued liabilities for vacation pay, sick pay, compensatory pay and similar amounts, and amounts that may become payable in respect of unlicensed software, whether or not Sellers' normally accrue such amounts) arising from the operation of the Station or relating to the Purchased Assets before the Adjustment Time shall be for the account of Sellers, and all revenue, income and expenses arising from the operation of the Station or relating to the Purchased Assets from and after the Adjustment Time shall be for the account of Buyer (under this Agreement or the TBA Agreement). Any and all rebates which, under any agreements in effect as of the Adjustment Time, may be payable after such date to any advertiser or other user of the Station's facilities, based in part on business, advertising or services prior to the Closing Date, shall be borne by Sellers and Buyer ratably in proportion to revenues received or volume of business done by each during the applicable period. Any and all agency commissions which are subject to adjustment after the Adjustment Time based on revenue, volume of business done or services rendered in part before the Adjustment Time and in part after the Adjustment Time shall be shared by Sellers, on the one hand, and Buyer, on the other hand, ratably in proportion to the revenue, volume of business done or services rendered, as the case may be, by each during the applicable period.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Nexstar Finance Holdings LLC)
Proration; Adjustments to Purchase Price. (a) For the purposes of (i) identifying the Purchased Primary Assets, Retained Assets, Assumed Liabilities and Retained Liabilities, (ii) determining the adjustment to the First Closing Purchase Price, if any, to be made pursuant to this Section 2.4, and (iii) identifying the Pre-TBA Closing Receivables for and the purpose of Section 2.9Pre-Closing Payables, all prepaid or deferred revenue, prepaid expenses, accrued income and accrued expenses of the Station as of 12:01 a.m., JoplinRockford, Missouri Illinois time on the date hereof First Closing Date (the "“Adjustment Time"”) shall, except as otherwise expressly provided herein, be adjusted and allocated between Sellers Seller and Buyer to reflect the principle that all revenue, income and expenses (including, without limitation, accrued liabilities for vacation pay, sick pay, compensatory pay and similar amounts, and amounts that may become payable in respect of unlicensed software, whether or not Sellers' Seller’s normally accrue such amounts) arising from the operation of the Station or relating to the Purchased Primary Assets before the Adjustment Time shall be for the account of SellersSeller, and all revenue, income and expenses arising from the operation of the Station or relating to the Purchased Primary Assets from and after the Adjustment Time shall be for the account of Buyer (under this Agreement or the TBA Agreement). Any and all rebates which, under any agreements in effect as of the Adjustment Time, may be payable after such date to any advertiser or other user of the Station's ’s facilities, based in part on business, advertising or services prior to the First Closing Date, shall be borne by Sellers Seller and Buyer ratably in proportion to revenues received or volume of business done by each during the applicable period. Any and all agency commissions which are subject to adjustment after the Adjustment Time based on revenue, volume of business done or services rendered in part before the Adjustment Time and in part after the Adjustment Time shall be shared by SellersSeller, on the one hand, and Buyer, on the other hand, ratably in proportion to the revenue, volume of business done or services rendered, as the case may be, by each during the applicable period.
(b) Notwithstanding anything to the contrary set forth in Section 2.4(a) above, as between Buyer and Seller with respect to all Contracts relating to Program Rights (“Program Contracts”), obligations to make cash payments of license and usage fees pursuant to each such Program Contract will be prorated between Seller and Buyer based on the number of days during the term of such Program Contract elapsed as of the Adjustment Time vis a vis the number of days during the term of such Program Contract occurring after the Adjustment Time.
(c) The First Closing Purchase Price shall further be:
(i) increased by an amount equal to 95% of the Pre-Closing Receivables;
(ii) decreased by the amount of all Pre-Closing Payables;
(iii) decreased by the amount, if any, by which Tradeout Payables as of the Adjustment Time exceed Tradeout Receivables as of the Adjustment Time by more than $25,000; and
(iv) decreased by the amount of all liabilities under Financing Leases, if any, existing as of the Adjustment Time.
(d) To the extent not inconsistent with the express provisions of this Agreement, the allocations and adjustments made pursuant to Sections 2.4(a), (b) and (c) above shall be made in accordance with generally accepted accounting principles. Prior to the First Closing Date, Seller and Buyer shall agree upon an estimate as of the Adjustment Time of such allocations and adjustments, which allocations and adjustments shall be made at the First Closing.
(e) As soon as practicable following the First Closing Date, and in any event within ninety (90) days thereafter, or at such other time as the parties mutually agree, Buyer shall deliver to Seller Buyer’s certificate setting forth as of the Adjustment Time, all of the allocations and adjustments made pursuant to Sections 2.4(a), (b) and (c). Buyer shall deliver to Seller or Seller’s representatives copies of all books and records as Seller may reasonably request for purposes of verifying such adjustments. Buyer’s certificate shall be final and conclusive unless objected to by Seller in writing within sixty (60) days after delivery. Seller and Buyer shall attempt jointly to reach agreement as to the amount of such adjustments and allocations within thirty (30) days after receipt by Buyer of such written objection by Seller, which agreement, if achieved, shall be binding upon all parties to this Agreement and not be subject to dispute or review. If Seller and Buyer cannot reach agreement as to the amount of such adjustments and allocations within such sixty (60) day period, Seller and Buyer shall promptly submit any disputed adjustments to a mutually satisfactory independent certified public accounting firm of national stature which has not been employed by any party hereto for a period of two (2) years prior to the date of such referral. The determination of such firm shall be final and binding upon all parties to this Agreement and not subject to dispute or review. The fees of such firm shall be paid one-half by Seller and one-half by Buyer. Any amounts due Buyer or Seller for such adjustments and allocations (after taking into account the adjustments and allocations made at First Closing) shall be paid by wire transfer of immediately available funds within five (5) Business Days after final determination.
(f) Buyer and Seller agree that to the extent the types of allocations and adjustments described in the Section 2.4 are applicable to the Second Closing, they shall cooperate in good faith to make such allocations and adjustments as of 12:01 A.M. on the Second Closing Date in accordance with the terms of this Section 2.4 as if this Section 2.4 expressly applied to the Second Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mission Broadcasting Inc)
Proration; Adjustments to Purchase Price. (a) For the purposes of (i) identifying the Purchased Assets, Retained Assets, Assumed Liabilities and Retained Liabilities, (ii) determining the adjustment to the Purchase Price, if any, to be made pursuant to this Section 2.4, and (iii) identifying the Pre-TBA Receivables for the purpose of Section 2.9, all prepaid or deferred revenue, prepaid expenses, accrued income and accrued expenses of the Station Stations as of 12:01 a.m., JoplinForth Xxxxx, Missouri Arkansas time on the date hereof October 16, 2003 (the "“Adjustment Time"”) shall, except as otherwise expressly provided herein, be adjusted and allocated between Sellers Seller and Buyer to reflect the principle that all revenue, income and expenses (including, without limitation, accrued liabilities for vacation pay, sick pay, compensatory pay and similar amounts, and amounts that may become payable in respect of unlicensed software, whether or not Sellers' Seller’s normally accrue such amounts) arising from the operation of the Station Stations or relating to the Purchased Assets before the Adjustment Time shall be for the account of SellersSeller, and all revenue, income and expenses arising from the operation of the Station Stations or relating to the Purchased Assets from and after the Adjustment Time shall be for the account of Buyer (under this Agreement or the TBA Agreement)TBA. Any and all rebates which, under any agreements in effect as of the Adjustment Time, may be payable after such date to any advertiser or other user of the Station's Stations’ facilities, based in part on business, advertising or services prior to the Closing Date, shall be borne by Sellers Seller and Buyer ratably in proportion to revenues received or volume of business done by each during the applicable period. Any and all agency commissions which are subject to adjustment after the Adjustment Time based on revenue, volume of business done or services rendered in part before the Adjustment Time and in part after the Adjustment Time shall be shared by SellersSeller, on the one hand, and Buyer, on the other hand, ratably in proportion to the revenue, volume of business done or services rendered, as the case may be, by each during the applicable period. Notwithstanding anything else herein to the contrary, for purposes of this Section 2.4(a), the expenses of the Stations for the month of October shall be allocated 50% to Seller and 50% to Buyer, provided that all such expenses must have been incurred in the ordinary course of business consistent with the past practices of the Stations.
(b) Notwithstanding anything to the contrary set forth in Section 2.4(a) above, as between Buyer and Seller with respect to all Contracts relating to Program Rights (“Program Contracts”), obligations to make cash payments of license and usage fees pursuant to each such Program Contract will be prorated between Seller and Buyer based on the number of days during the term of such Program Contract elapsed as of the Adjustment Time vis a vis the number of days during the term of such Program Contract occurring after the Adjustment Time.
(c) To the extent not inconsistent with the express provisions of this Agreement, the allocations made pursuant to Sections 2.4(a) and (b) above shall be made in accordance with generally accepted accounting principles.
(d) Net settlement of the adjustments contemplated under Section 2.4(e) shall be made at the Closing by increasing or decreasing the Purchase Price appropriately, if feasible based on Seller’s and Buyer’s good faith estimates. For items not readily subject to ascertainment at the Closing, the following procedures shall apply. Buyer shall prepare and deliver to Seller within thirty (30) business days following the Closing Date, or such earlier or later date as shall be mutually agreed to by Seller and Buyer, an itemized list (the “Adjustment List”) of all sums which, as described in Section 2.4(e) below, shall increase or decrease the Purchase Price, with a brief explanation thereof. Such list shall show the net amount of the increase or decrease to the Purchase Price (the “Adjustment Amount”). If the Adjustment Amount is a decrease to the Purchase Price, Seller shall pay such amount without interest to Buyer. If the Adjustment Amount is an increase to the Purchase Price, Buyer shall pay such amount without interest to Seller. Except as provided otherwise in Section 2.4(f), payment of the Adjustment Amount shall be made not later than fifteen (15) business days following the delivery of the Adjustment List.
(e) The items set forth on the Adjustment List and the calculation of the Adjustment Amount shall each reflect the understanding that the Purchase Price shall be:
(i) decreased by the amount of all Accounts Payable existing as of the Adjustment Time actually paid or assumed by Buyer under this Agreement or otherwise or reimbursed by Buyer to Seller under the TBA;
(ii) decreased by the amount, if any, by which Tradeout Payables as of the Adjustment Time exceed Tradeout Receivables as of the Adjustment Time by more than $5,000 or increased by that amount, if any, by which Tradeout Receivables as of the Adjustment Time exceed Tradeout Payables as of the Adjustment Time by more than $5,000; and
(iii) decreased by the amount of all liabilities under Financing Leases, if any, existing as of the Adjustment Time.
(f) Not later than fifteen (15) business days following the delivery of the Adjustment List, Seller may furnish Buyer with written notification of any dispute concerning any items shown thereon or omitted therefrom together with a detailed explanation in support of Seller’s position in respect thereof. If Seller does not furnish Buyer such a written notification during such fifteen (15) business day period, then Buyer’s determination of the Adjustment Amount (as set forth in the Adjustment List) will be final and binding on Buyer and Seller as of the last day of such fifteen (15) business day period. If Seller does furnish Buyer such a written notification during such fifteen (15) business day period, then Buyer and Seller shall consult to resolve any such dispute for a period of fifteen (15) business days following the notification thereof. In the event of any such dispute, that portion of the Adjustment Amount that is not in dispute shall be paid to the party entitled to receive the same on the day for payment provided in Section 2.4(d). If such fifteen (15) business day consultation period expires and the dispute has not been resolved, the matter shall be referred to an independent “Big Five” public accounting firm mutually agreed upon by Seller and Buyer (the “Accountants”), which shall resolve the dispute and shall render its decision (together with a brief explanation of the basis therefor) to Buyer and Seller not later than twenty (20) business days following submission of the dispute to it; provided, however, if Buyer and Seller are unable to mutually agree upon an independent public accounting firm, then Buyer and Seller shall each choose an independent public accounting firm and those firms shall appoint a third independent public accounting firm to act as the Accountants. The Accountants’ determination of the disputed portion of the Adjustment Amount (the “Disputed Amount”) will become final and binding on Buyer and Seller on the business day after the date upon which a written report setting forth such determination is delivered to Seller and Buyer. The Disputed Amount shall be paid by the party required to pay the same without interest within five (5) business days after the delivery of a copy of such decision to Seller and Buyer. The fees and expenses of the Accountants shall be shared equally by Seller, on the one hand, and Buyer on the other hand.
(g) The Adjustment List to the extent not disputed within the specified period by Seller, any mutually agreed written settlement of any such dispute concerning the Adjustment List and any determination of disputed items by the Accountants shall be final, conclusive and binding on the parties hereto absent manifest error.
Appears in 1 contract
Proration; Adjustments to Purchase Price. (a) For the purposes of (i) identifying the Purchased Assets, Retained Assets, Assumed Liabilities and Retained Liabilities, (ii) determining the adjustment to the Purchase Price, if any, to be made pursuant to this Section 2.4, and (iii) identifying the Pre-TBA Receivables and Pre-TBA Payables for the purpose of Section 2.9, all prepaid or deferred revenue, prepaid expenses, accrued income and accrued expenses of the Station as of 12:01 a.m., JoplinSan Angelo, Missouri Texas time on the date hereof June 1, 2004 (the "“Adjustment Time"”) shall, except as otherwise expressly provided herein, be adjusted and allocated between Sellers Seller and Buyer to reflect the principle that all revenue, income and expenses (including, without limitation, accrued liabilities for vacation pay, sick pay, compensatory pay and similar amounts, and amounts that may become payable in respect of unlicensed software, whether or not Sellers' Seller’s normally accrue such amounts) arising from the operation of the Station or relating to the Purchased Assets before the Adjustment Time shall be for the account of SellersSeller, and all revenue, income and expenses arising from the operation of the Station or relating to the Purchased Assets from and after the Adjustment Time shall be for the account of Buyer (under this Agreement or the TBA Agreement)TBA. Any and all rebates which, under any agreements in effect as of the Adjustment Time, may be payable after such date to any advertiser or other user of the Station's ’s facilities, based in part on business, advertising or services prior to the Closing Date, shall be borne by Sellers Seller and Buyer ratably in proportion to revenues received or volume of business done by each during the applicable period. Any and all agency commissions which are subject to adjustment after the Adjustment Time based on revenue, volume of business done or services rendered in part before the Adjustment Time and in part after the Adjustment Time shall be shared by SellersSeller, on the one hand, and Buyer, on the other hand, ratably in proportion to the revenue, volume of business done or services rendered, as the case may be, by each during the applicable period.
Appears in 1 contract
Samples: Asset Purchase Agreement (Nexstar Broadcasting Inc)
