FOUNDING MEMBER 630 CLASS A UNITS, WHICH
ISSUANCES SHALL BE DULY AUTHORIZED AND WHICH CLASS A UNITS SHALL BE, ON THE
CLOSING DATE, VALIDLY ISSUED AND FREE AND CLEAR OF ALL LIENS AND ENCUMBRANCES
(OTHER THAN THOSE ARISING PURSUANT TO THIS AGREEMENT AND THE COMPANY OPERATING
AGREEMENT).
(C)
AT THE CLOSING, THE COMPANY SHALL DELIVER (I) TO NCN EVIDENCE OF
THE ISSUANCE OF THE CLASS A UNITS ISSUED PURSUANT TO SECTION 2.6(A) AND (II) TO
THE REGAL FOUNDING MEMBER EVIDENCE OF THE ISSUANCE OF THE CLASS A UNITS ISSUED
PURSUANT TO SECTION 2.6(B).
2.7
Assumption of Liabilities by the Company.
On the Closing Date, the
Parties shall cause the Company to deliver to each of the Parties an undertaking
(the "Assumption Agreement"), pursuant to which the Company shall, on and as of
the Closing Date, assume and agree to perform, pay and discharge when due and
after obtaining consents as required for such assignment, all the NCN Assumed
Liabilities and Regal Assumed Liabilities (collectively, the "Assumed
Liabilities").
The Company will not assume, and shall not be deemed to have
assumed, any liability or obligation of any Party or any of its Affiliates, or
any current or former employee of any Party or any of its Affiliates, of any
kind or nature whatsoever, except as expressly provided in the Assumption
Agreement and this Agreement.
9
2.8
Proration Adjustments.
(A)
ITEMS OF INCOME AND EXPENSE OR ASSET OR LIABILITY, AS THE CASE MAY
BE, SHALL BE PRORATED AS OF THE CLOSING DATE, SO THAT EACH PARTY SHALL BEAR ALL
SUCH INCOME AND EXPENSE WITH RESPECT TO ITS RESPECTIVE CONTRIBUTED ASSETS AND
ASSUMED LIABILITIES THAT IT ACCRUES OR INCURS THROUGH AND INCLUDING THE PERIOD
PRECEDING THE CLOSING DATE, AND THE COMPANY SHALL BEAR ALL SUCH INCOME AND
EXPENSE WITH RESPECT TO THE CONTRIBUTED ASSETS AND ASSUMED LIABILITIES THAT IT
ACCRUES OR INCURS ON AND AFTER THE CLOSING DATE.
PRORATIONS AND THE ESTIMATED
AMOUNT OF EACH PARTIES' RESPECTIVE TERMINATION EXPENSES SHALL BE MADE PURSUANT
TO A PRELIMINARY SETTLEMENT STATEMENT (THE "PRELIMINARY SETTLEMENT STATEMENT")
PREPARED IN GOOD FAITH AND DELIVERED BY EACH OF NCN AND REGAL TO EACH OTHER
PRIOR TO CLOSING, TOGETHER WITH SUCH SUPPLEMENTAL CALCULATIONS AND INFORMATION
AS SHALL BE REASONABLY NECESSARY OR APPROPRIATE TO ENABLE THE OTHER PARTY TO
DETERMINE THE ACCURACY THEREOF.
THE PRELIMINARY SETTLEMENT STATEMENT SHALL BE
BASED UPON THE MOST CURRENT AND RELIABLE INFORMATION REASONABLY AVAILABLE TO
SUCH PARTY AT THE TIME OF ITS DELIVERY, AND MAY BE BASED UPON ESTIMATES WHERE
ACTUAL AMOUNTS ARE IMPRACTICAL TO OBTAIN OR VERIFY.
THE AMOUNTS SET FORTH ON
THE PRELIMINARY SETTLEMENT STATEMENTS SHALL BE SUBJECT TO ADJUSTMENT OR
CORRECTION ON THE POST-CLOSING SETTLEMENT STATEMENT.
(B)
EACH PRELIMINARY SETTLEMENT STATEMENT SHALL INCLUDE AN ESTIMATE OF
THE TERMINATION EXPENSES ATTRIBUTABLE TO EACH RESPECTIVE TERMINATED EMPLOYEE AS
WELL AS THE FOLLOWING INFORMATION AS A CREDIT OR DEBIT TO SUCH PARTY OR THE
COMPANY AS APPLICABLE:
(I)
PAYMENTS AND CHARGES UNDER CONTRACTS (TO THE EXTENT SUCH PAYMENTS
AND CHARGES ARE INCLUDED IN THE CONTRIBUTED ASSETS