Risk of Loss; Government Taking. (a) Each Transferor shall bear the risk of any loss or damage to Transferred Assets to be directly or indirectly transferred by such Transferor in an Exchange resulting from fire, theft or other casualty (except reasonable wear and tear) at all times prior to the Closing (or, in respect of the Adelphia Assets, prior to the Closing but after the Adelphia Closing). In the event any such loss or damage occurs, the applicable Transferor shall (at its expense) use its commercially reasonable efforts to replace or restore such lost or damaged property as soon as practicable and in any event prior to Closing (or, if such damaged property is not replaced or restored prior to Closing, Transferor shall indemnify Transferee for any Losses arising out of such unrepaired damage or unrestored property). If any loss or damage described in the first sentence of this Section 11.16(a) would result in such losses or damage of all Affiliated Transferors being equal to or exceeding $100,000,000 and is sufficiently substantial so as to preclude and prevent resumption of normal operations of any material portion of any Transferred System by the Outside Closing Date, Transferor Parent shall, to the extent reasonably practical, immediately notify Transferee Parent in writing of that fact (which notice shall, to the extent reasonably practical, specify with reasonable particularity the loss or damage incurred, the cause thereof if known or reasonably ascertainable, and the insurance coverage related thereto), and Transferee Parent, at any time within ten days after receipt of such notice, may elect by written notice to Transferor Parent, to either (i) waive such defect and proceed toward consummation in accordance with the terms of this Agreement (provided, that any such waiver shall also be deemed to be a waiver of any right to indemnification pursuant to the first sentence of this Section 11.16(a) or pursuant to Section 10.1 or 10.2, as applicable, for any breach of any (x) representation or warranty of Transferor Parent set forth in Article 4 or 5, as applicable, resulting from any such loss or damage or (y) covenant hereunder to the extent that compliance therewith is frustrated or made commercially impracticable as a result of such loss or damage) or (ii) terminate this Agreement, subject to Section 9.2. If Transferee Parent elects to so terminate this Agreement, Transferor Parent shall be discharged of any and all obligations hereunder, subject to Section 9.2. If Transferee elects to consummate the transactions contemplated by this Agreement notwithstanding such loss or damage and does so, there shall be no adjustment in the consideration payable to or by Transferee Parent on account of such loss or damage, but all insurance proceeds received or receivable by Transferor or its Affiliates as a result of the occurrence of the event resulting in such loss or damage, including any such proceeds received or receivable by Transferor Parent or its Affiliates pursuant to the TWC/Adelphia Purchase Agreement or the Comcast/Adelphia Purchase Agreement (as applicable), to the extent not already expended by the applicable Transferor or its Affiliates to restore or replace the lost or damaged Transferred Assets, except for any proceeds from business interruption insurance relating to the loss of revenue for any period through and including the Closing Date, shall be delivered by the applicable Transferor or its Affiliates to the applicable Transferee, or the rights to such proceeds shall be assigned by the applicable Transferor or its Affiliates to the applicable Transferee if not yet paid to the applicable Transferor or its Affiliates. The applicable Transferor shall pay any deductible required and/or the self-insured portion of any such loss with respect to all such insurance proceeds payable under any insurance policy held by Transferor or its Affiliates. Any amounts received or receivable hereunder shall not be included in the Net Liabilities Adjustment Amount. (b) If, prior to Closing in respect of Native Assets, or prior to Closing but after the Adelphia Closing in respect of Adelphia Assets, any material part of or interest in such Transferred Assets is taken or condemned as a result of the exercise of the power of eminent domain, or if a Governmental Authority having such power informs Transferor or any of its Affiliates that it intends to condemn or take all or any material part of the Transferred Assets of Transferor or any of its Affiliates (such event being called, in either case, a “Taking”), then Transferee Parent may terminate this Agreement. If Transferee Parent does not elect to terminate this Agreement, (i) Transferee and its Affiliates shall have the sole right, in the name of Transferor and its Affiliates, if Transferee Parent so elects, to negotiate for, claim, contest and, subject to the Closing occurring, have Transferee receive all damages with respect to the Taking, (ii) Transferor shall be relieved of its obligation to convey directly or indirectly to Transferee such Transferor’s Transferred Assets or interests that of the Taking if the Taking has occurred, (but shall convey to Transferee Parent any interest therein still held by Transferor Parent or its Affiliates and any replacement property acquired by Transferor Parent or its Affiliates), (iii) at Closing, such Transferor and its Affiliates shall assign to Transferee all of such Transferor’s and its Affiliates’ rights to all payments received or receivable with respect to such Taking, including any such payments received or receivable by Transferor or its Affiliates pursuant to the TWC/Adelphia Purchase Agreement or the Comcast/Adelphia Purchase Agreement (as applicable), and shall pay to such Transferee all such payments previously paid to such Transferor or any of its Affiliates with respect to the Taking (to the extent not already expended by Transferor or its Affiliates to restore or replace the Assets taken), and (iv) following Closing, Transferor and its Affiliates shall give Transferee and its Affiliates such further assurances of such rights and assignment with respect to the Taking as Transferee or its Affiliates may from time to time reasonably request. Any amounts received or receivable hereunder shall not be included in the Net Liabilities Adjustment Amount.
Appears in 2 contracts
Samples: Exchange Agreement (Comcast Corp), Amendment Number 1 (Time Warner Inc)
Risk of Loss; Government Taking. (a) Each Transferor shall bear the risk of any loss or damage to Transferred Assets to be directly or indirectly transferred by such Transferor in an Exchange resulting from fire, theft or other casualty (except reasonable wear and tear) at all times prior to the Closing (or, in respect of the Adelphia Assets, prior to the Closing but after the Adelphia Closing). In the event any such loss or damage occurs, the applicable Transferor shall (at its expense) use its commercially reasonable efforts to replace or restore such lost or damaged property as soon as practicable and in any event prior to Closing (or, if such damaged property is not replaced or restored prior to Closing, Transferor shall indemnify Transferee for any Losses arising out of such unrepaired damage or unrestored property). If any loss or damage described in the first sentence of this Section 11.16(a) would result in such losses or damage of all Affiliated Transferors being equal to or exceeding $100,000,000 and is sufficiently substantial so as to preclude and prevent resumption of normal operations of any material portion of any Transferred System by the Outside Closing Date, Transferor Parent shall, to the extent reasonably practical, immediately notify Transferee Parent in writing of that fact (which notice shall, to the extent reasonably practical, specify with reasonable particularity the loss or damage incurred, the cause thereof if known or reasonably ascertainable, and the insurance coverage related thereto), and Transferee Parent, at any time within ten days after receipt of such notice, may elect by written notice to Transferor Parent, to either (i) waive such defect and proceed toward consummation in accordance with the terms of this Agreement (provided, that any such waiver shall also be deemed to be a waiver of any right to indemnification pursuant to the first sentence of this Section 11.16(a) or pursuant to Section 10.1 or 10.2, as applicable, for any breach of any (x) representation or warranty of Transferor Parent set forth in Article 4 or 5, as applicable, resulting from any such loss or damage or (y) covenant hereunder to the extent that compliance therewith is frustrated or made commercially impracticable as a result of such loss or damage) or (ii) terminate this Agreement, subject to Section 9.2. If Transferee Parent elects to so terminate this Agreement, Transferor Parent shall be discharged of any and all obligations hereunder, subject to Section 9.2. If Transferee elects to consummate the transactions contemplated by this Agreement notwithstanding such loss or damage and does so, there shall be no adjustment in the consideration payable to or by Transferee Parent on account of such loss or damage, but all insurance proceeds received or receivable by Transferor or its Affiliates as a result of the occurrence of the event resulting in such loss or damage, including any such proceeds received or receivable by Transferor Parent or its Affiliates pursuant to the TWC/Adelphia Purchase Agreement or the Comcast/Adelphia Purchase Agreement (as applicable), to the extent not already expended by the applicable Transferor or its Affiliates to restore or replace the lost or damaged Transferred Assets, except for any proceeds from business interruption insurance relating to the loss of revenue for any period through and including the Closing Date, shall be delivered by the applicable Transferor or its Affiliates to the applicable Transferee, or the rights to such proceeds shall be assigned by the applicable Transferor or its Affiliates to the applicable Transferee if not yet paid to the applicable Transferor or its Affiliates. The applicable Transferor shall pay any deductible required and/or the self-insured portion of any such loss with respect to all such insurance proceeds payable under any insurance policy held by Transferor or its Affiliates. Any amounts received or receivable hereunder shall not be included in the Net Liabilities Adjustment Amount.
(b) If, prior to Closing in respect of Native Assets, or prior to Closing but after the Adelphia Closing in respect of Adelphia Assets, any material part of or interest in such Transferred Assets is taken or condemned as a result of the exercise of the power of eminent domain, or if a Governmental Authority having such power informs Transferor or any of its Affiliates that it intends to condemn or take all or any material part of the Transferred Assets of Transferor or any of its Affiliates (such event being called, in either case, a “Taking”), then Transferee Parent may terminate this Agreement. If Transferee Parent does not elect to terminate this Agreement, (i) Transferee and its Affiliates shall have the sole right, in the name of Transferor and its Affiliates, if Transferee Parent so elects, to negotiate for, claim, contest and, subject to the Closing occurring, have Transferee receive all damages with respect to the Taking, (ii) Transferor shall be relieved of its obligation to convey directly or indirectly to Transferee such Transferor’s Transferred Assets or interests that of the Taking if the Taking has occurred, (but shall convey to Transferee Parent any interest therein still held by Transferor Parent or its Affiliates and any replacement property acquired by Transferor Parent or its Affiliates), (iii) at Closing, such Transferor and its Affiliates shall assign to Transferee all of such Transferor’s and its Affiliates’ rights to all payments received or receivable with respect to such Taking, including any such payments received or receivable by Transferor or its Affiliates pursuant to the TWC/Adelphia Purchase Agreement or the Comcast/Adelphia Purchase Agreement (as applicable), and shall pay to such Transferee all such payments previously paid to such Transferor or any of its Affiliates with respect to the Taking (to the extent not already expended by Transferor or its Affiliates to restore or replace the Assets taken), and (iv) following Closing, Transferor and its Affiliates shall give Transferee and its Affiliates such further assurances of such rights and assignment with respect to the Taking as Transferee or its Affiliates may from time to time reasonably request. Any amounts received or receivable hereunder shall not be included in the Net Liabilities Adjustment Amount.130
Appears in 1 contract
Samples: Exchange Agreement (Time Warner Inc)
Risk of Loss; Government Taking. (a) Each Transferor shall bear the risk of any loss or damage to Transferred Assets to be directly or indirectly transferred by such Transferor in an Exchange resulting from fire, theft or other casualty (except reasonable wear and tear) at all times prior to the Closing (or, in respect of the Adelphia Assets, prior to the Closing but after the Adelphia Closing). In the event any such loss or damage occurs, the applicable Transferor shall (at its expense) use its commercially reasonable efforts to replace or restore such lost or damaged property as soon as practicable and in any event prior to Closing (or, if such damaged property is not replaced or restored prior to Closing, Transferor shall indemnify Transferee for any Losses arising out of such unrepaired damage or unrestored property). If any loss or damage described in the first sentence of this Section 11.16(a) would result in such losses or damage of all Affiliated Transferors being equal to or exceeding $100,000,000 and is sufficiently substantial so as to preclude and prevent resumption of normal operations of any material portion of any Transferred System by the Outside Closing Date, Transferor Parent shall, to the extent reasonably practical, immediately notify Transferee Parent in writing of that fact (which notice shall, to the extent reasonably practical, specify with reasonable particularity the loss or damage incurred, the cause thereof if known or reasonably ascertainable, and the insurance coverage related thereto), and Transferee Parent, at any time within ten days after receipt of such notice, may elect by written notice to Transferor Parent, to either (i) waive such defect and proceed toward consummation in accordance with the terms of this Agreement (provided, that any such waiver shall also be deemed to be a waiver of any right to indemnification pursuant to the first sentence of this Section 11.16(a) or pursuant to Section 10.1 or 10.2, as applicable, for any breach of any (x) representation or warranty of Transferor Parent set forth in Article 4 or 5, as applicable, resulting from any such loss or damage or (y) covenant hereunder to the extent that compliance therewith is frustrated or made commercially impracticable as a result of such loss or damage) or (ii) terminate this Agreement, subject to Section 9.2. If Transferee Parent elects to so terminate this Agreement, Transferor Parent shall be discharged of any and all obligations hereunder, subject to Section 9.2. If Transferee elects to consummate the transactions contemplated by this Agreement notwithstanding such loss or damage and does so, there shall be no adjustment in the consideration payable to or by Transferee Parent on account of such loss or damage, but all insurance proceeds received or receivable by Transferor or its Affiliates as a result of the occurrence of the event resulting in such loss or damage, including any such proceeds received or receivable by Transferor Parent or its Affiliates pursuant to the TWC/Adelphia Purchase Agreement or the Comcast/Adelphia Purchase Agreement (as applicable), to the extent not already expended by the applicable Transferor or its Affiliates to restore or replace the lost or damaged Transferred Assets, except for any proceeds from business interruption insurance relating to the loss of revenue for any period through and including the Closing Date, shall be delivered by the applicable Transferor or its Affiliates to the applicable Transferee, or the rights to such proceeds shall be assigned by the applicable Transferor or its Affiliates to the applicable Transferee if not yet paid to the applicable Transferor or its Affiliates. The applicable Transferor shall pay any deductible required and/or the self-insured portion of any such loss with respect to all such insurance proceeds payable under any insurance policy held by Transferor or its Affiliates. Any amounts received or receivable hereunder shall not be included in the Net Liabilities Adjustment Amount.
(b) If, prior to Closing in respect of Native Assets, or prior to Closing but after the Adelphia Closing in respect of Adelphia Assets, any material part of or interest in such Transferred Assets is taken or condemned as a result of the exercise of the power of eminent domain, or if a Governmental Authority having such power informs Transferor or any of its Affiliates that it intends to condemn or take all or any material part of the Transferred Assets of Transferor or any of its Affiliates (such event being called, in either case, a “Taking”), then Transferee Parent may terminate this Agreement. If Transferee Parent does not elect to terminate this Agreement, (i) Transferee and its Affiliates shall have the sole right, in the name of Transferor and its Affiliates, if Transferee Parent so elects, to negotiate for, claim, contest and, subject to the Closing occurring, have Transferee receive all damages with respect to the Taking, (ii) Transferor shall be relieved of its obligation to convey directly or indirectly to Transferee such Transferor’s Transferred Assets or interests that of the Taking if the Taking has occurred, (but shall convey to Transferee Parent any interest therein still held by Transferor Parent or its Affiliates and any replacement property acquired by Transferor Parent or its Affiliates), (iii) at Closing, such Transferor and its Affiliates shall assign to Transferee all of such Transferor’s and its Affiliates’ rights to all payments received or receivable with respect to such Taking, including any such payments received or receivable by Transferor or its Affiliates pursuant to the TWC/Adelphia Purchase Agreement or the Comcast/Adelphia Purchase Agreement (as applicable), and shall pay to such Transferee all such payments previously paid to such Transferor or any of its Affiliates with respect to the Taking (to the extent not already expended by Transferor or its Affiliates to restore or replace the Assets taken), and (iv) following Closing, Transferor and its Affiliates shall give Transferee and its Affiliates such further assurances of such rights and assignment with respect to the Taking as Transferee or its Affiliates may from time to time reasonably request. Any amounts received or receivable hereunder shall not be included in the Net Liabilities Adjustment Amount.any
Appears in 1 contract
Samples: Exchange Agreement
