Purchase Price and Assumption of Liabilities. 3.1 In consideration of and in exchange for the Assets, Purchaser shall: (a) pay to Sellers an amount equal to $5,225,129.00 ("Purchase Price"); and (b) assume, perform and in due course pay and discharge the obligations and liabilities of Sellers which are being assumed by Purchaser pursuant to Section 3.3 hereof. 3.2 The Purchase Price shall be paid by Purchaser to Sellers at the Closing on the Closing Date by a certified or cashier's check payable to the order of Sellers, or at the option of Sellers, by transfer of immediately available funds for credit to Sellers, at a bank account designated by Sellers in writing prior to the Closing. 3.3 As additional consideration for the purchase of the Assets, Purchaser shall, at the Closing on the Closing Date, assume, agree to perform, and in due course pay and discharge, the following debts, obligations and liabilities of Sellers (collectively the "Assumed Liabilities"): (a) The obligations and liabilities of Sellers with respect to the Business arising after the Closing Date under (i) the leases, contracts, agreements and commitments set forth in the Disclosure Schedule which Purchaser specifically agrees to assume; and (ii) any leases, contracts, agreements and commitments which are not required to be listed in the Disclosure Schedule pursuant to Section 7.15(a) of this Agreement; and (b) The obligations and liabilities of Sellers with respect to the Business for product warranty work with respect to buildings and improvements constructed by the Business or services performed on or prior to the Closing Date by the Business to the extent specifically provided in Section 3.5 of this Agreement. 3.4 Purchaser shall not assume or pay, and Sellers shall continue to be responsible for, any debt, obligation or liability, of any kind or nature (fixed or contingent, known or unknown) of Sellers, not expressly assumed by Purchaser in Section 3.3 of this Agreement (collectively the "Excluded Liabilities"). Specifically, without limiting the foregoing, Purchaser shall not assume: (a) any claim, action, suit or proceeding pending as of the Closing Date or any subsequent claim, action, suit or proceeding arising out of or relating to such pending matters or arising out of or relating to any such other event occurring or, with respect to the manner in which Sellers conducted the Business, on or prior to the Closing Date; (b) any liability arising out of or relating to the Retained Assets; (c) any liability of the Sellers for any federal, state, local or foreign income taxes for any periods prior to or subsequent to the Closing; (d) any obligation or liability arising from claims, proceedings or causes of action resulting from property damage or personal injuries (including death) caused by buildings or improvements constructed by Sellers prior to the Closing Date; (e) the fees, costs and expenses of any person, firm, corporation or other entity acting on behalf of, or representing Sellers or their shareholders, as broker, finder, investment banker, financial advisor or in any similar capacity; or (f) any debt, obligation or liability of Sellers to their shareholders. 3.5 It is possible that on the Closing Date, the Assets may include contracts ("Construction Contracts") which (i) require COL to construct or remodel certain office space or related facilities and (ii) have not then been completely performed by COL. Schedule 3.5 attached hereto identifies those Construction Contracts to be assumed by Purchaser (the "Assumed Construction Contracts") and those to be retained by Sellers. (a) If the Construction Contract is not an Assumed Construction Contract, COL shall be responsible for completing the work and collecting the payments from the tenant who has contracted for such work. COL shall reimburse Purchaser for the costs of any employees of Purchaser who act for COL in completing the work after the Closing Date. Any profit on such jobs, therefore, shall be the property of COL. (b) If the Construction Contract is an Assumed Construction Contract, Purchaser shall be responsible for completing the work and collecting the payments required by such Contracts from the tenant. At the Closing, Purchaser shall assume COL's obligations to subcontractors and suppliers in connection with such Contracts and shall reimburse COL for all amounts it has paid in connection with the work (including employee wages and fringes) less all payments COL has received. Any profit on such jobs, therefore, shall be the property of Purchaser. 3.6 Sellers shall pay the cost of all transfer, sales, purchase, use, value added, excise or similar tax imposed under the laws of the United States, or any state or political subdivision thereof, which arises out of the transfer of any of the Assets. All prepaid expenses and management and other fees with respect to the Assumed Contracts (other than Assumed Construction Contracts) shall be prorated as of the Closing Date. 3.7 Sellers and Purchaser mutually agree to negotiate in good faith an allocation of the Purchase Price among the Assets transferred to Purchaser prior to the Closing. Sellers and Purchaser agree that for income tax purposes, they shall respect the transaction contemplated by this Agreement in accordance with such allocation agreed to by the parties, and to the extent allowed by law, all tax returns and reports filed by Sellers and/or Purchaser (and their respective affiliates) and all reporting positions taken publicly or with any taxing authority and in any tax audit, review or litigation with respect to the transactions contemplated hereby shall be consistent with such allocation. Consistent with the preceding sentence, Purchaser and each Seller shall file IRS Form 8594 with its respective federal income tax return for the taxable year in which the Closing occurs, containing the information agreed upon by the parties pursuant to the immediately preceding sentence. Purchaser and each Seller shall deliver to the other a copy of the IRS Form 8594 as filed with their respective federal income tax return within 30 days of the filing of such return.
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Sources: Asset Purchase Agreement (Prime Group Realty Trust)
Purchase Price and Assumption of Liabilities. 3.1 In consideration of and in exchange 1.2.1 The purchase price for the Assets, Purchaser shall:
Purchased Assets (aincluding all Gaming Devices) pay to Sellers an amount equal to will be $5,225,129.00 58,200,000 (the "Purchase Price"); and
. Within two business days after the execution of this Agreement by all the parties hereto, Seller and Purchaser shall execute the form of escrow agreement attached hereto as Exhibit H (b) assumethe "Escrow Agreement"). By 5:00 p.m. central standard time on the first business day after the date on which the parties have executed this Agreement, perform and Purchaser will deposit into escrow, by wire transfer in immediately available funds to the account or accounts designated by Escrow Agent, a deposit of three million five hundred dollars ($3,500,000). Upon Closing, the Deposit will be applied toward the payment of the Purchase Price. At Closing, Purchaser will pay to Seller the Purchase Price (less the Deposit less any amounts due course pay and discharge the obligations and liabilities of Sellers which are being assumed by to Purchaser pursuant to Section 3.3 hereof.
3.2 The Purchase Price shall be paid 1.6 plus any amounts due to Seller pursuant to Section 1.6) by Purchaser to Sellers at the Closing on the Closing Date by a certified or cashier's check payable to the order of Sellers, or at the option of Sellers, by wire transfer of immediately available funds for credit to Sellers, at a bank the account or accounts designated by Sellers in writing prior Seller.
1.2.2 In addition to the Closing.
3.3 As additional consideration for the purchase payment of the Assets, Purchaser shallPurchase Price, at the Closing on the Closing DateClosing, Purchaser will assume, agree and agrees to perform, discharge and in due course pay and dischargeperform when due, the following debts, obligations and Assumed Liabilities but no other liabilities of Sellers (collectively Seller. Without limiting the "Assumed Liabilities"):generality of the foregoing, to the extent applicable:
(ai) The Purchaser will use its Best Efforts to obtain for the benefit of Seller and its affiliates unconditional releases and discharges of Seller from obligations arising on and liabilities of Sellers with respect to the Business arising after the Closing Date under (i) each of the leasesLeases and the Operator's Contract, contracts, agreements and commitments set forth in the Disclosure Schedule which Purchaser specifically agrees to assume; and or
(ii) any leasesif unable to obtain the foregoing after the use of its Best Efforts, contracts, agreements Purchaser agrees to indemnify Seller for Seller's financial obligations arising on and commitments which are not required to be listed in the Disclosure Schedule pursuant to Section 7.15(a) of this Agreement; and
(b) The obligations and liabilities of Sellers with respect to the Business for product warranty work with respect to buildings and improvements constructed by the Business or services performed on or prior to after the Closing Date by the Business pursuant to the extent specifically provided in Section 3.5 of this Agreement.
3.4 Purchaser shall not assume or pay, and Sellers shall continue to be responsible for, any debt, obligation or liability, of any kind or nature (fixed or contingent, known or unknown) of Sellers, not expressly assumed by Purchaser in Section 3.3 of this Agreement (collectively the "Excluded Liabilities"). Specifically, without limiting the foregoing, Purchaser shall not assume:
(a) any claim, action, suit or proceeding pending as terms of the Closing Date or any subsequent claimLeases and the Operator's Contract. Seller (and not Purchaser) will remain liable for all of the Excluded Liabilities (which shall include, actionbut not be limited to, suit or proceeding arising out all obligations of or relating to such pending matters or arising out of or relating to any such other event occurring or, with respect Seller pursuant to the manner in terms of the Leases and the Operator Contract which Sellers conducted the Business, on obligations occurred or arose prior to the Closing Date;
(b) any liability arising out of or relating to ), and will pay and discharge the Retained Assets;
(c) any liability of the Sellers for any federal, state, local or foreign income taxes for any periods prior to or subsequent to the Closing;
(d) any obligation or liability arising from claims, proceedings or causes of action resulting from property damage or personal injuries (including death) caused by buildings or improvements constructed by Sellers prior to the Closing Date;
(e) the fees, costs same when due and expenses of any person, firm, corporation or other entity acting on behalf of, or representing Sellers or their shareholders, as broker, finder, investment banker, financial advisor or in any similar capacity; or
(f) any debt, obligation or liability of Sellers to their shareholders.
3.5 It is possible that on the Closing Date, the Assets may include contracts ("Construction Contracts") which (i) require COL to construct or remodel certain office space or related facilities Seller will indemnify and (ii) have not then been completely performed by COL. Schedule 3.5 attached hereto identifies those Construction Contracts to be assumed by hold Purchaser (the "Assumed Construction Contracts") and those to be retained by Sellers.
(a) If the Construction Contract is not an Assumed Construction Contract, COL shall be responsible for completing the work and collecting the payments harmless from the tenant who has contracted for such work. COL shall reimburse Purchaser for the costs of any employees of Purchaser who act for COL in completing the work after the Closing Date. Any profit on such jobs, therefore, shall be the property of COL.
(b) If the Construction Contract is an Assumed Construction Contract, Purchaser shall be responsible for completing the work and collecting the payments required by such Contracts from the tenant. At the Closing, Purchaser shall assume COL's obligations to subcontractors and suppliers in connection with such Contracts and shall reimburse COL for all amounts it has paid in connection with the work (including employee wages and fringes) less all payments COL has received. Any profit on such jobs, therefore, shall be the property of Purchaser.
3.6 Sellers shall pay the cost of all transfer, sales, purchase, use, value added, excise or similar tax imposed under the laws of the United States, or any state or political subdivision thereof, which arises out of the transfer of any of the Assets. All prepaid expenses and management and other fees with respect to the Assumed Contracts (other than Assumed Construction Contracts) shall be prorated as of the Closing Date.
3.7 Sellers and Purchaser mutually agree to negotiate in good faith an allocation of the Purchase Price among the Assets transferred to Purchaser prior to the Closing. Sellers and Purchaser agree that for income tax purposes, they shall respect the transaction contemplated by this Agreement in accordance with such allocation agreed to by the parties, and to the extent allowed by law, all tax returns and reports filed by Sellers and/or Purchaser (and their respective affiliates) and all reporting positions taken publicly or with any taxing authority and in any tax audit, review or litigation with respect to the transactions contemplated hereby shall be consistent with such allocation. Consistent with the preceding sentence, Purchaser and each Seller shall file IRS Form 8594 with its respective federal income tax return for the taxable year in which the Closing occurs, containing the information agreed upon by the parties Excluded Liabilities pursuant to the immediately preceding sentence. Purchaser and each Seller shall deliver to the other a copy of the IRS Form 8594 as filed with their respective federal income tax return within 30 days of the filing of such returnSection 8.1.
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