Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of the Company by wire transfer of immediately available funds (x) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal to the lesser of the Available Closing Expense Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than two (2) Business Days prior to the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstanding.
Appears in 2 contracts
Sources: Employment Agreement (AutoWeb, Inc.), Merger Agreement (AutoWeb, Inc.)
Closing Payments. Part 1.11 At the Closing, Parent shall:
(i) deliver to each holder of the Company’s Indebtedness set forth in the Payment Schedule, by wire transfer in accordance with the wire instructions set forth in the applicable payoff letter delivered pursuant to Section 7.3(i)(vi), cash in an amount equal to the applicable payoff amount;
(ii) deliver to each Person to whom Transaction Expenses of the Company Disclosure Schedule sets forth: are owed, as set forth in the Payment Schedule, by wire transfer in accordance with the wire instructions set forth in the applicable payoff letter delivered pursuant to Section 7.3(i)(vi), cash in an amount equal to the applicable payoff amount;
(aiii) deposit the Company’s good faith estimate of Escrow Amount in the amount Escrow Fund by wire transfer in accordance with the wire instructions set forth in the Escrow Agreement;
(iv) deposit the Representative Reimbursement Amount in the Representative Reimbursement Fund by wire transfer in accordance with the wire instructions set forth in the Escrow Agreement;
(v) deliver to the Exchange Agent by wire transfer in accordance with the wire instructions set forth in the Exchange Agent Agreement, the Closing Merger Consideration (less the portion thereof that represents the aggregate Closing Options Payout Amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the ClosingCompany Options, including the identity of each payee and which will be paid through the Company’s good faith estimate of payroll); and
(vi) deliver to the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of the Company Company’s payroll account by wire transfer of immediately available funds (x) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal to the lesser of the Available Closing Expense Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection accordance with the consummation of wire instructions set forth in the transactions contemplated hereby)Payment Schedule, and (y) to each Person who is owed a the portion of the Closing Transaction Expenses, as specified in Merger Consideration that represents the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available aggregate Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Options Payout Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any the holder of Company Options, which will be paid through the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and Company’s payroll. No interest shall be paid at Closing or shall accrue on any cash payable to Company Securityholders pursuant to the extent provisions of Available Cashthis Article II. No less than two (2) Business Days prior Any cash deposited with the Exchange Agent shall hereinafter be referred to the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (as the “Debt Payoff LetterExchange Fund.”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstanding.
Appears in 2 contracts
Sources: Merger Agreement (Volcano Corp), Merger Agreement (Volcano Corp)
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of Buyer will, or will cause Merger Sub to, deposit with the Company Paying Agent the aggregate Closing Class A Common Unit Payment and Closing Class B Unit Payment, payable to the Class A Common Unitholders and Class B Unitholders, respectively, as set forth in the Estimated Closing Statement by wire transfer of immediately available funds (x) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal to the lesser of account designated by the Available Paying Agent no later than two (2) Business Days prior to the Closing Expense Date.
(b) At the Closing, Buyer will, or will cause Merger Sub to, deliver to the Escrow Agent (i) the Purchase Price Adjustment Escrow Deposit Amount and (ii) the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Pride Utility Escrow Amount, subject in each case, by wire transfer of immediately available funds to a maximum of separate escrow account designated by the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less Escrow Agent no later than two (2) Business Days prior to the Closing Date (the account to which the Purchase Price Adjustment Escrow Deposit Amount is funded, the "Purchase Price Adjustment Escrow Account" and the account to which the Pride Utility Escrow Amount is funded, the "Pride Utility Escrow Account") and established pursuant to the terms of the escrow agreement to be dated as of the Closing Date and substantially in the form of Exhibit C attached hereto (the "Escrow Agreement"), by and among Buyer, the Representative and the Escrow Agent.
(c) At the Closing, Buyer will pay, or will cause Merger Sub to pay, to the Representative, the Representative Holdback Amount, by wire transfer of immediately available funds to an account designated by the Representative at least two (2) Business Days prior to the Closing Date.
(d) At the Closing, Buyer will pay, or will cause Merger Sub to pay, on behalf of the Company and its Subsidiaries, all Estimated Transaction Expenses to such Persons as they are owed by wire transfer of immediately available funds to accounts designated by the Company at least two (2) Business Days prior to the Closing Date.
(e) At the Closing, Buyer will pay, or will cause Merger Sub to pay, on behalf of the Company and its Subsidiaries, all amounts required to be paid under the payoff letters delivered pursuant to Section 5.08 to fully discharge the Indebtedness owed to the Persons thereunder, as described therein, by wire transfer of immediately available funds to the accounts designated in such payoff letters.
(f) In accordance with the paying agent agreement to be dated on or prior to the Closing Date and substantially in the form of Exhibit D attached hereto (the "Paying Agent Agreement"), the Paying Agent will act as the Representative's agent in delivering to each Class A Common Unitholder and Class B Unitholder its respective Closing Class A Common Unit Payment or Closing Class B Unit Payment, as applicable, as well as any amounts owed to such Class A Common Unitholders or Class B Unitholders pursuant to Section 1.07(e). At or after the Effective Time, upon delivery by a Class A Common Unitholder or Class B Unitholder of a duly executed letter of transmittal substantially in the form of Exhibit E attached hereto (the "Letter of Transmittal") to the Paying Agent, (i) the Company shall obtain and provide Paying Agent will pay each such Class A Common Unitholder or Class B Unitholder the Closing Class A Common Unit Payment or Closing Class B Unit Payment to Parent a payoff letter in customary form and which shall contemplate such Class A Common Unitholder or Class B Unitholder is entitled under Section 1.05 as set forth on the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”), Estimated Closing Statement and (ii) each Class A Common Unitholder and Class B Unitholder will be irrevocably entitled to receive the portion of any amount payable under Section 1.07(e) with respect to such Class A Common Units or Class B Units held by such Class A Common Unitholder or Class B Unitholder immediately prior to the Effective Time. The Closing Class A Common Unit Payment or Closing Class B Unit Payment payable to a Class A Common Unitholder or Class B Unitholder will be made by wire transfer of immediately available funds to an account designated in writing by such Class A Common Unitholder or Class B Unitholder in the Letter of Transmittal, unless alternative arrangements are specified by such holder in the Letter of Transmittal, to the extent permitted by the Letter of Transmittal. Each such Class A Common Unitholder or Class B Unitholder that makes the deliveries to the Paying Agent required by this Agreement and the Paying Agent Agreement prior to the Closing Date will be paid his, her or its applicable Closing Class A Common Unit Payment or Closing Class B Unit Payment on the same Business Day as the Effective Time, or as soon as possible thereafter. Each such Class A Common Unitholder or Class B Unitholder that makes the deliveries to the Paying Agent required by this Agreement and the Paying Agent Agreement on or after the Closing Date will be paid his, her or its applicable Closing Class A Common Unit Payment or Closing Class B Unit Payment as soon as possible after delivery thereof is made (but in any event no later than two (2) Business Days after the date such delivery thereof is made).
(g) At any time that is more than one (1) year after the Effective Time, Buyer may cause the Paying Agent to pay over to the Surviving Company shall provide to Parent documentation setting forth an itemized list any portion of the Closing Transaction Expenses owed by Class A Common Unit Payment or Closing Class B Unit Payment that had been delivered to the Target Companies, Paying Agent (including the identity any interest received thereon) and that has not been disbursed to Class A Common Unitholders or Class B Unitholders as of each payee, dollar such date (other than any amounts owed, bank wire instructions and any other information necessary then subject to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”dispute). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment After the Paying Agent makes such payments to the CIT Loan Agreement Surviving Company, all former Class A Common Unitholders and Class B Unitholders will be entitled to permit look only to the Surviving Company (subject to any applicable abandoned property, escheat and other similar Laws) as general creditors thereof with respect to the cash payable pursuant to this Agreement. None of the Surviving Company, Buyer, Merger Sub, the Representative or the Paying Agent will be liable to any Person in respect of amounts thereunder paid to remain outstandinga Governmental Body to the extent required under any applicable abandoned property, escheat or similar Law.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Primoris Services Corp)
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent Purchaser shall deliver on behalf of pay, or cause to be paid, the Company following amounts by wire transfer of immediately available funds funds:
(xi) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreementeach holder of Repaid Indebtedness, an amount equal in cash set forth opposite such Person’s name in the Estimated Closing Date Statement to the lesser of the Available Closing Expense Amount and the Closing Debt Amount account or accounts designated by such Person therein;
(unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (yii) to each Person who is owed a portion Change of Control Payment, an amount in cash set forth opposite such Person’s name in the Estimated Closing Date Statement to the account or accounts designated by such Person therein;
(iii) to each Person owed Company Transaction Expenses, as specified an amount in the Transaction Expenses Payoff Instructions, cash set forth opposite such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described name in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Estimated Closing Date Statement to the extent of Available Cash. No less than two account or accounts designated by such Person therein;
(2iv) Business Days prior to the Closing Date Escrow Agent: (iA) the Company shall obtain and provide to Parent a payoff letter an amount in customary form and which shall contemplate the termination and release of all Encumbrances relating cash equal to the CIT Loan Agreement upon receipt of Adjustment Escrow Amount to the amount indicated in such payoff letter (Adjustment Escrow Account designated by the “Debt Payoff Letter”)Escrow Agent pursuant to the Escrow Agreement, and (iiB) an amount in cash equal to the Indemnity Escrow Amount to the Indemnity Escrow Account designated by the Escrow Agent pursuant to the Escrow Agreement;
(v) to the Sellers’ Representative (on behalf of the Sellers on a Pro Rata Share basis), an amount in cash equal to the Holdback Amount to the account designated by the Sellers’ Representative in the Estimated Closing Date Statement; and
(vi) to the Sellers’ Representative (on behalf of the Sellers on a Pro Rata Share basis), an amount in cash equal to (A) the Company shall provide Estimated Purchase Price as set forth in the Estimated Closing Date Statement minus (B) the Adjustment Escrow Amount minus (C) the Indemnity Escrow Amount minus (D) the Holdback Amount, to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed account designated by the Target Companies, including Sellers’ Representative in the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingEstimated Closing Date Statement.
Appears in 1 contract
Closing Payments. Part 1.11 of (i) As soon as practicable following the Company Disclosure Schedule sets forth: Effective Time, and in no event later than 5:00pm California time on the first (a1st) Business Day following the Company’s good faith estimate of Business Day on which the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the ClosingEffective Time occurs, Parent shall deliver on behalf of an amount equal to (A) the Company Adjusted Merger Consideration less (B) the Base Escrow Amount, less (C) the Sales Tax Escrow Amount less (D) the Securityholder Representative Expenses Reserve to a paying agent, selected by Parent in its sole discretion, by wire transfer of immediately available funds to an account designated by the paying agent.
(xii) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal to the lesser of the Available Closing Expense Amount and Following the Closing Debt Amount Date, Parent or its paying agent shall mail a letter of transmittal in Parent’s standard form (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation “Letter of the transactions contemplated hereby), and (yTransmittal”) to each Person who is owed Company Stockholder, and, to the extent such Company Stockholder has not already executed and delivered a Joinder Agreement and Stockholder Waiver to Parent, a Joinder Agreement and Stockholder Waiver to each Company Stockholder, in each case at the address set forth opposite such Company Stockholder’s name on the Closing Date Spreadsheet.
(iii) Upon surrender of a certificate representing their respective shares of Company Capital Stock (the “Company Stock Certificates”) for cancellation to Parent or its paying agent, together with the Letter of Transmittal and any other instruments that Parent or its paying agent may reasonably require (the “Exchange Documents”), duly completed and validly executed in accordance with the instructions thereto, the holder of such Company Stock Certificate shall be entitled to receive from Parent’s paying agent in exchange therefor, that portion of the Closing Transaction ExpensesAdjusted Merger Consideration into which the shares of Company Capital Stock represented by such Company Stock Certificate have been converted pursuant to Section 2.7 hereof (determined, solely for purposes of this Section 2.10(b), as specified in if the Transaction Adjusted Merger Consideration equaled the Adjusted Merger Consideration less the Base Escrow Amount less the Sales Tax Escrow Amount and less the Securityholder Representative Expenses Payoff InstructionsReserve). Upon the surrender of any such Company Stock Certificate, such Person’s pro rata share the Company Stock Certificate so surrendered shall thereupon be cancelled. Until so surrendered, each Company Stock Certificate outstanding after the Effective Time will be deemed, for all corporate purposes thereafter, to evidence only the right to receive the portion of the Available Closing Advisory Expense AmountAdjusted Merger Consideration payable in exchange for shares of Company Capital Stock (without interest) into which such shares of Company Capital Stock shall have been converted pursuant to Section 2.7 hereof.
(iv) Promptly following the Effective Time, subject Parent shall cause the paying agent to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than two (2) Business Days prior to the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of deliver the amount indicated provided for in such payoff letter (the “Debt Payoff Letter”), and (iiSection 2.7(f) the to each holder of Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees Warrants that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingexecuted a Warrant Termination Agreement.
Appears in 1 contract
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf Buyer will deliver, or cause to be delivered, an amount in cash equal to: (i) the Estimated Purchase Price minus (ii) the Adjustment Escrow Deposit Amount, minus (iii) the Maximum Retention Bonus Amount, minus (iv) the Representative Expense Fund (the “Closing Payment”) to NewCo Seller by wire transfer of immediately available funds in accordance with the Company Seller Payment Instructions.
(b) At the Closing, Buyer will deliver, or cause to be delivered, by wire transfer of immediately available funds (xi) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal to the lesser of the Available Closing Expense Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Adjustment Escrow Deposit Amount, subject to a maximum of an escrow account designated by the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less Escrow Agent no later than two (2) Business Days prior to the Closing Date (ithe “Adjustment Escrow Account”) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating established pursuant to the CIT Loan Agreement upon receipt terms of an escrow agreement to be dated as of the amount indicated Closing Date and in such payoff letter the form attached as Exhibit C (the “Debt Payoff LetterEscrow Agreement”), among Buyer, Seller Representative and the Escrow Agent and (ii) the Company shall provide Maximum Retention Bonus Amount, to Parent documentation setting forth an itemized list of escrow account designated by the Escrow Agent no later than two Business Days prior to the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof Date (the “Retention Bonus Escrow Account”) and established pursuant to the terms of the Escrow Agreement. The Adjustment Escrow Account will be maintained separately from other funds held by the Escrow Agent and will be Buyer’s sole and exclusive source of recovery for any amounts owing to Buyer under Section 1.04.
(c) At the Closing, Buyer will pay, or cause to be paid, on behalf of the Company and its Subsidiaries, all Estimated Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment (excluding the Retention Bonuses) in cash by wire transfer of immediately available funds to the CIT Loan Agreement accounts designated by the Company at least two Business Days prior to permit the amounts thereunder Closing Date.
(d) At the Closing, Buyer will pay, or cause to remain outstandingbe paid, to the Seller Representative, on behalf of Sellers, the Representative Expense Fund in cash by wire transfer of immediately available funds to the accounts designated by the Company at least two Business Days prior to the Closing Date.
(e) At the Closing, Buyer will pay, or cause to be paid, the Estimated Closing Indebtedness set forth on Schedule 1.03(e) in cash by wire transfer of immediately available funds to the accounts designated in any payoff or other customary documentation evidencing the repayment or redemption of the Estimated Closing Indebtedness delivered in accordance with Section 6.08.
Appears in 1 contract
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) At the Company’s good faith estimate Closing, Purchaser shall pay to Seller, in exchange for the Purchased Equity, an amount (the “Closing Payment”) equal to the total of the amount payable Purchase Price less the Escrow Amount less 50% of the Escrow Fees less Transaction Expenses, such Transaction Expenses to the holder of Debt outstanding under the CIT Loan Agreement be evidenced by written invoices with respect thereto, dated as of the Closing Date or within a reasonable period of time prior to the Closing Date and including the aggregate amount fully to discharge such obligations as of the Closing Date (the “Invoices”).
(b) an itemized list No later than one (1) Business Day prior to the Closing Date, Seller will deliver to Purchaser a schedule of all the Transaction Expenses owed supported by the Target Companies as Invoices and including wire instructions for Seller and those Persons to whom the Transaction Expenses will be paid.
(c) Upon the terms and subject to the conditions of this Agreement, at the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the ClosingPurchaser shall pay, Parent shall deliver on behalf of the Company by wire transfer of immediately available funds (x) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal to the lesser of the Available Closing Expense Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection accordance with the consummation of wire instructions provided by Seller pursuant to Section 2.2(b) above, the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than two (2) Business Days prior to the Closing Date following:
(i) the Company shall obtain and provide Closing Payment, to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating Seller, to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”), and account designated by Seller;
(ii) the Company shall provide Escrow Fees and Escrow Amount to Parent documentation setting forth an itemized list Escrow Agent, in each case, to the account designated by Escrow Agent and, in the latter case to be held or disbursed in accordance with the terms of the Closing Escrow Agreement and Section 10.8(b); and
(iii) cash in the amounts required to pay the Transaction Expenses owed in full as of the Closing, in accordance with the Invoices, to the accounts designated by each Person to whom such expenses are to be paid.
(d) The Escrow Funds will be governed by the Target CompaniesEscrow Agreement. The Escrow Amount (and any interest thereon) will be held in escrow for a period of twelve (12) months following the Closing for the purpose of addressing Seller’s indemnification obligations to Purchaser under Article X hereof, including without limitation the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment special indemnity in full thereof (the “Transaction Expenses Payoff Instructions”Section 10.2(a)(v). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstanding.
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (HG Holdings, Inc.)
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of pay or cause to be paid (by an exchange agent reasonably acceptable to the Company Company, if Parent so elects at Parent’s sole cost and expenses), or shall deposit or cause to be deposited, as the case may be, the following amounts by wire transfer of immediately available funds pursuant to wire transfer instructions confirmed by the applicable payment recipient in writing, or other applicable payment methods as may be authorized by any particular Securityholder pursuant to a Letter of Transmittal, Option Cancellation Agreement and/or Warrant Cancellation Agreement, as applicable, as follows:
(xi) to CIT Northbridge Credit LLC each lender (if any) under Company Debt, to an account designated by such lender in writing, the amount of Debt specified in such lender’s Pay Off Letter (collectively, the sum of such Debt amounts for all such payees being hereinafter referred to as the “Debt Pay-Off Amount”);
(ii) the Escrow Amount plus the Working Capital Escrow Amount with the Escrow Agent;
(iii) all Company Transaction Costs that remain outstanding as of the Closing Date to such account or accounts as are designated by the Company in accordance with Section 5.14 (collectively, the sum of such payments for all payees of Company Transaction Costs being hereinafter referred to as the “Paid Company Transaction Costs”);
(iv) such account as is designated by the Representative in writing, the Representative Holdback;
(v) to each Stockholder that delivers a completed and duly executed Letter of Transmittal and all applicable Certificates for cancellation (or an affidavit of loss and indemnity agreement as contemplated by the Letter of Transmittal and who complies with the requirement of such affidavit of loss and indemnity agreement) to Parent or its exchange agent on or prior to the Closing Date, an amount equal to the Stockholder’s Applicable Percentage of the Closing Merger Consideration. Notwithstanding anything to the contrary in this Agreement, with respect to any payments due to a Stockholder as a result of the net exercise and cancellation at the Effective Time of any Non-Company Warrants held (but not issued) by such Stockholder, such amounts (including, without limitation, any amounts which are payable by the Representative or the Escrow Agent hereunder) shall be remitted to and processed by the Surviving Corporation or its agent, and paid to such Stockholder in the amounts and at the times set forth in this Agreement, net of all required withholdings as set forth in Section 2.15. The Surviving Corporation or its agent shall pay, or cause to be paid, to such Stockholder any amounts received from the Representative or the Escrow Agent pursuant to the preceding sentence as soon as practicable and not later than five (5) Business Days following receipt of such amounts.
(vi) through the Company’s payroll system (or, at the option of Parent for the lenders under the CIT Loan any particular Optionholder, through Parent’s exchange agent) to each Optionholder that delivers a completed and duly executed Option Cancellation Agreement, an amount equal to (I) the lesser excess of (x) such Optionholder’s Applicable Percentage of the Available Closing Expense Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and Merger Consideration over (y) the aggregate exercise price for all outstanding vested Options held by such Optionholder and (II) the amounts, if any, that may become payable in respect of such Options in the future pursuant to Section 2.12 and/or Section 2.13. Notwithstanding anything to the contrary in this Agreement, with respect to any payments which become due in respect of Options from and after the Closing, such amounts (including, without limitation, any amounts which are payable by the Representative or the Escrow Agent hereunder) shall be remitted to and processed by the Surviving Corporation or its payroll agent, and paid to the respective Optionholders in the amounts and at the times set forth in this Agreement, net of all required withholdings as set forth in Section 2.15. The Surviving Corporation or its payroll agent shall pay, or cause to be paid, to Optionholders any amounts received from the Representative or the Escrow Agent pursuant to the preceding sentence as soon as practicable and not later than five (5) Business Days following receipt of such amounts. Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Securities and Exchange Commission.
(vii) to each Person who is owed Warrantholder that delivers a portion completed and duly executed Warrant Cancellation Agreement an amount equal to (I) the excess of (x) such Warrantholder’s Applicable Percentage of the Closing Transaction ExpensesMerger Consideration over (y) the aggregate exercise price for all outstanding Warrants held by such Warrantholder and (II) the amounts, as specified in the Transaction Expenses Payoff Instructionsif any, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (that may become payable in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and such Warrants in the HL Cap Amount (future pursuant to Section 2.12 and/or Section 2.13. Notwithstanding anything to the contrary in this Agreement, with respect to any payments which become due in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CapitalWarrants from and after the Closing, Inc.). Any such amounts remaining (including, without limitation, any amounts which are payable to any of by the Persons described in Representative or the foregoing clause (yEscrow Agent hereunder) in excess of the amounts funded by Parent pursuant hereto shall be obligations of remitted to and processed by the Surviving Corporation or its agent, and shall be paid at Closing to the extent respective Warrantholders in the amounts and at the times set forth in this Agreement, net of Available Cashall required withholdings as set forth in Section 2.15. No less The Surviving Corporation or its agent shall pay, or cause to be paid, to Warrantholders any amounts received from the Representative or the Escrow Agent pursuant to the preceding sentence as soon as practicable and not later than two five (25) Business Days prior to the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon following receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingamounts.
Appears in 1 contract
Closing Payments. Part 1.11 of At the Company Disclosure Schedule sets forth: Closing:
(a) Purchaser shall pay or cause to be paid, by means of wire transfer of immediately available funds, the Indebtedness set forth on the Indebtedness Schedule, in the amounts and otherwise in accordance with the terms set forth in the Payoff Letters and the Indebtedness Schedule, such payment to be made by the Purchaser to an account designated by the Paying Agent for further distribution by the Paying Agent in accordance with the Payoff Letters.
(b) Purchaser shall pay or cause to be paid, by means of wire transfer of immediately available funds, the Expense Fund to an account designated by the Paying Agent for distribution by the Paying Agent into an account designated by the Sellers’ Representative.
(c) Purchaser shall pay or cause to be paid, by means of wire transfer of immediately available funds, the Closing Date Option Consideration, to an account designated by the Paying Agent for further distribution by the Paying Agent to the Optionholders in accordance with the Allocation Schedule and subject to the provisions of this Agreement and the Paying Agent Agreement (it being understood that the Exercise Price shall be deducted from the payment made to the Optionholders and transferred by the Paying Agent to the Company’s good faith estimate of the amount payable account).
(d) Purchaser shall pay to the holder of Debt outstanding under the CIT Loan Agreement as of Sellers an amount equal to (i) the Closing and Date Purchase Price less (bii) an itemized list of all Transaction Expenses owed by the Target Companies as of Retained Closing Amount less (iii) the ClosingAdjustment Holdback Amount, including the identity of each payee Expense Fund and the Company’s good faith estimate Closing Date Option Consideration, by means of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of the Company by wire transfer of immediately available funds to an account designated by the Paying Agent, for distribution by the Paying Agent to the Sellers in accordance with the Allocation Schedule, and subject to the provisions of this Agreement and the Paying Agent Agreement.
(xe) Notwithstanding anything to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan contrary in this Agreement, an amount equal any consideration which a holder of (i) Company 102 Shares, Company 102 Options or Company 3(i) Options has the right to the lesser of the Available Closing Expense Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan receive pursuant to this Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPsuch Company 102 Shares, Company 102 Options or Company 3(i) Options shall be transferred by Purchaser, to the Paying Agent, who shall transfer such consideration directly to the Section 102 Trustee to be held in trust and further distributed in accordance with the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any applicable provisions of the Persons described in Israeli Tax Ordinance, the foregoing clause Israeli Tax Ruling (y) in excess of if obtained), or the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than two Israeli Interim Tax Ruling (2) Business Days prior to the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”if obtained), as applicable, and (ii) Company Options that are not Company 102 Options or Company 3(i) Options has the right to receive pursuant to this Agreement in respect of such Company Options shall provide be transferred by Purchaser to Parent documentation setting forth an itemized list the Paying Agent for payment to the holders of such Company Options in accordance with the Allocation Schedule and subject to the provisions of this Agreement and the Paying Agent Agreement.
(f) The payment of the Closing Transaction Expenses owed by amounts of cash set forth in this Section 2.7 to the Target Companies, including Paying Agent shall be deemed the identity discharge of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any Purchaser’s obligation to pursue any amendment pay such amounts to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingrelevant parties.
Appears in 1 contract
Closing Payments. Part 1.11 Subject to the full satisfaction (or waiver in accordance with ARTICLE VIII) of the Company Disclosure Schedule sets forth: closing conditions set forth in ARTICLE VIII (other than the conditions that by their nature only can be satisfied by actions taken at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing), at the Closing, Buyer will make the payments set forth below:
(a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall Buyer will deliver on behalf of an amount equal to the Company Estimated Purchase Price minus the Adjustment Escrow Deposit Amount to Seller by wire transfer of immediately available funds (x) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal to the lesser of the Available Closing Expense Amount and account designated by Seller no later than two (2) Business Days prior to the Closing Debt Date.
(b) At the Closing, Buyer will deliver the Adjustment Escrow Deposit Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent Escrow Agent by wire transfer of Available Cash. No less immediately available funds to an escrow account designated by the Escrow Agent no later than two (2) Business Days prior to the Closing Date (ithe “Adjustment Escrow Account”) and established pursuant to the terms of an escrow agreement to be dated as of the Closing Date and substantially in the form attached as Exhibit A (the “Adjustment Escrow Agreement”), among Buyer, Seller and the Escrow Agent. The Adjustment Escrow Account will be maintained separately from other funds held by the Escrow Agent and will be Buyer’s sole and exclusive source of recovery for any amounts owing to Buyer or, following the Closing, the Company shall obtain or its Subsidiaries under Section 1.04.
(c) At the Closing, Buyer will pay, on behalf of the Company and provide its Subsidiaries, all Estimated Transaction Expenses to Parent a payoff letter such Persons as they are owed by wire transfer of immediately available funds to accounts designated in customary form and which shall contemplate invoices delivered by the termination and release of all Encumbrances relating Company at least two (2) Business Days prior to the CIT Loan Agreement upon receipt Closing Date.
(d) At the Closing, Buyer will pay, on behalf of the amount indicated Company and its Subsidiaries, all amounts required to be paid under the payoff letters delivered pursuant to Section 6.08 in order to fully discharge the Indebtedness owed to the Persons thereunder, by wire transfer of immediately available funds to the accounts designated in such payoff letter (the “Debt Payoff Letter”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingletters.
Appears in 1 contract
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) Not less than five (5) Business Days prior to the Company’s good faith estimate Closing Date, Seller shall deliver to Buyer (x) a written statement in form and substance reasonably acceptable to Buyer and signed by the Chief Financial Officer of the amount payable to Seller (the holder of Debt outstanding under “Closing Estimated Statement”) setting forth the CIT Loan Agreement (i) the estimated Working Capital as of the date of the Closing Date (the “Estimated Working Capital”), (ii) (A) the amount, if any, by which the Estimated Working Capital is greater than the Working Capital Target (a “Closing Date Working Capital Surplus”), or (B) the amount, if any, by which the Working Capital Target is greater than the Estimated Working Capital (a “Closing Date Working Capital Deficiency”), (iii) the amount of Indebtedness of Seller, (iv) the amount of the Transaction Expenses, and (v) the resulting estimated Closing Payment (the “Estimated Closing Payment”) based on the estimates described in clauses (i) – (iv). The “Closing Payment” shall be a U.S. Dollar amount equal to the Purchase Price, plus the Closing Date Working Capital Surplus, if any, or minus the Closing Date Working Capital Deficiency, if any (as applicable), minus the Indebtedness of Seller, minus the Transaction Expenses. The Closing Estimated Statement, and each component thereof, shall be prepared in good faith and in a manner consistent with the Working Capital Principles and the applicable definitions of this Agreement and methodologies contained therein. The Closing Estimated Statement shall contain reasonably detailed support for each calculation set forth therein. After delivery of the Closing Estimated Statement, the Seller shall, and shall cause its officers and representatives to, (i) provide reasonable access to the Buyer and its representatives to the books and records and work papers used in the preparation of the Closing Estimated Statement and (ii) cooperate with and assist the Buyer and its representatives in connection with their review of the Closing Estimated Statement and the materials described in clause (i), including (without limitation) making available their senior management employees, accountants and other personnel who were involved in the preparation of the Closing Estimated Statement. Seller shall consider in good faith any revisions Buyer proposes in writing to the Closing Estimated Statement and make appropriate revisions agreed to by Seller to the Closing Estimated Statement in its good faith determination; provided, that each Party acknowledges and agrees that ▇▇▇▇▇’s proposal of revisions or failure to propose any revisions to the Closing Estimated Statement shall not be deemed to waive or otherwise impair any rights of Buyer pursuant to this Agreement.
(b) an itemized list Subject to the delivery of all Transaction Expenses owed by the Target Companies as of items set forth in Section 11.2(d), at the Closing, including Buyer shall pay, or cause to be paid, the identity Purchase Price as follows:
(i) to each holder of each payee and Indebtedness of Seller pursuant to the Company’s good faith estimate of Payoff Letters, the amount required to be repay in full all Indebtedness owed as of to each such holder on the Closing. At the ClosingClosing Date, Parent shall deliver on behalf of the Company in cash by wire transfer of immediately available funds in accordance with the wire instructions set forth in the applicable Payoff Letters;
(xii) to CIT Northbridge Credit LLC as agent for each creditor of Transaction Expenses described in subparts (a) through (c) and subpart (f) within the lenders under definition of Transaction Expenses the CIT Loan Agreementamount required to pay in full all Transaction Expenses owed to such creditor on the Closing Date, an in cash by wire transfer of immediately available funds in accordance with the wire instructions set forth in the applicable Invoice;
(iii) to Seller, the amount attributable to the Transaction Expenses described in subparts (d) through (e) within the definition of Transaction Expenses;
(iv) to Seller, the aggregate amount equal to the lesser Estimated Closing Payment. The Estimated Closing Payment shall be payable, in cash by wire transfer of the Available Closing Expense Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement immediately available funds in connection accordance with the consummation of the transactions contemplated hereby), and (y) wire instructions delivered by Seller to each Person who is owed a portion of the Closing Transaction Expenses, as specified Buyer in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid writing at Closing to the extent of Available Cash. No less than least two (2) Business Days prior to the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingDate.
Appears in 1 contract
Sources: Asset Purchase Agreement (Eastern Bankshares, Inc.)
Closing Payments. Part 1.11 Each of the Company Disclosure Schedule sets forth: payments and issuances detailed in this Section 1.3 (the “Closing Payments”) shall be made in the amounts and as set forth in the Pre-Closing Statement delivered pursuant to Section 1.4(a) (provided, however, that notwithstanding anything herein to the contrary, any such Closing Payment for which compensatory Tax withholding is required by Law shall be paid via the payroll system of the Company):
(a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent Purchaser shall deliver on behalf of the Company pay or cause to be paid, by wire transfer of immediately available funds (x) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal to the lesser of bank accounts designated in writing by each Seller or the Available Closing Expense Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction ExpensesSellers’ Representative, as specified in the Transaction Expenses Payoff Instructionsapplicable, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount at least three (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than two (23) Business Days prior to the Closing Date the following payments:
(i) to each Seller, such Seller’s Pro Rata Percentage of the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating Closing Cash Consideration less such Seller’s Related Party Pay-off Amount;
(ii) to the CIT Loan Agreement upon receipt Escrow Agent, the sum of the amount indicated in such payoff letter Adjustment Escrow Amount and the Indemnification Escrow Amount (collectively, the “Debt Payoff LetterEscrow Amount”), to the accounts designated by the Escrow Agent in writing to Purchaser at least three (3) Business Days prior to the Closing, which Adjustment Escrow Amount and Indemnification Escrow Amount shall be held in separate accounts by the Escrow Agent in accordance with the terms and conditions of this Agreement and the Escrow Agreement; and
(iiiii) on behalf of the Company, to the payees thereof, a cash amount equal to the amount of all Estimated Closing Date Indebtedness of the types set forth in clause (i) and clause (v) of the definition of Indebtedness and all Estimated Unpaid Company Transaction Expenses due and payable as of the Closing.
(b) At the Closing, Purchaser shall provide deliver to Parent documentation setting each Seller a copy of the instructions issued by Purchaser to its transfer agent instructing such transfer agent to issue and deliver to each Seller its Pro Rata Percentage of the Stock Consideration in such securities accounts as are designated in writing by the Sellers’ Representative at least three (3) Business Days prior to the Closing Date, subject to the terms and conditions set forth an itemized list in Section 7.16, and such issuance and delivery of the Stock Consideration shall be effective as of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingDate.
Appears in 1 contract
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing:
(i) Buyer shall pay the Adjustment Escrow Amount to the Escrow Agent in accordance with the Funds Flow Memorandum.
(ii) Buyer shall pay $250,000 (the “Seller Administrative Expense Fund”) to an account designated by the Seller Representative in accordance with the Funds Flow Memorandum.
(iii) Buyer shall pay, Parent shall deliver on behalf of the Company, all Closing Indebtedness included in the Estimated Indebtedness Amount and described in the Payoff Letters in accordance with the Payoff Letters.
(iv) Buyer shall pay, on behalf of the Company, all Seller Transaction Expenses included in Estimated Seller Transaction Expenses and described in the Invoices in accordance with the Invoices; provided that, in addition, any Seller Transaction Expenses to be paid at the Closing and treated as wages to a current or former employee of the Company shall be paid to the Company, which shall pay the applicable payee such amount, less applicable withholding Taxes, through the Company’s payroll system. Buyer shall cause the 2021 Annual Bonuses and the Special Transaction Bonuses to be paid by wire transfer of immediately available funds the Company to its employees, in the amounts approved in the Bonus Authorizing Resolutions, no later than December 31, 2021.
(xv) to CIT Northbridge Credit LLC as agent for Buyer shall pay the lenders under Sellers in accordance with the CIT Loan Agreement, Funds Flow Memorandum an aggregate amount equal to the lesser Base Purchase Price, minus [a] the Adjustment Escrow Amount, minus [b] the amount of the Available Seller Administrative Expense Fund, plus [c] the Estimated Cash Amount, minus [d] the Estimated Indebtedness Amount, minus [e] the Estimated Seller Transaction Expenses, plus [f] the amount, if any, by which the Estimated Closing Expense Amount and Net Working Capital is greater than the Net Working Capital Target, minus [g] the amount, if any, by which the Estimated Closing Debt Net Working Capital is less than the Net Working Capital Target, minus [h] the Rollover Amount (unless Parent and CIT Northbridge Credit LLC as agent for collectively, the lenders under “Closing Date Purchase Price Payments”). Notwithstanding anything in the CIT Loan Agreement otherwise agree contrary in this Agreement, Buyer shall have no liability or other obligation to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement any Person (including any Seller) in connection with the consummation respect of the transactions contemplated hereby), and (y) to each Person who is owed a portion allocation of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing Date Purchase Price Payments to the extent of Available Cash. No less than two (2) Business Days prior to paid in accordance with the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingFunds Flow Memorandum.
Appears in 1 contract
Sources: Unit Purchase Agreement (CNL Strategic Capital, LLC)
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of Buyer will, or will cause Merger Sub to, deposit with the Company Paying Agent the aggregate Closing Stock Payments payable to the Stockholders as set forth in the Estimated Closing Statement by wire transfer of immediately available funds (x) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal to the lesser account designated by the Paying Agent no later than two (2) Business Days prior to the Closing Date.
(b) At the Closing, Buyer will, or will cause Merger Sub to, deliver the aggregate Closing Option Payments payable to the Optionholders, as set forth in the Estimated Closing Statement, by wire transfer of immediately available funds to an account designated by the Company at least two (2) Business Days prior to the Closing Date. No later than three (3) Business Days following the Closing, the Company will distribute to the Optionholders through a special payroll of the Available Company, their respective Closing Expense Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense AmountOption Payments, subject to a maximum of any applicable Tax withholding pursuant to Section 1.10. After the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CapitalClosing, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto Buyer shall be obligations of cause the Surviving Corporation and shall be paid at Closing to make payment to the extent appropriate taxing authority or authorities of Available Cash. No less any amounts withheld from payment to the Optionholders in accordance with Section 1.10.
(c) At the Closing, Buyer will, or will cause Merger Sub to, deliver the Adjustment Escrow Deposit Amount to the Escrow Agent by wire transfer of immediately available funds to an escrow account designated by the Escrow Agent no later than two (2) Business Days prior to the Closing Date (ithe “Adjustment Escrow Account”) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating established pursuant to the CIT Loan Agreement upon receipt terms of an escrow agreement to be dated as of the amount indicated Closing Date and substantially in such payoff letter the form attached as Exhibit C (the “Debt Payoff LetterAdjustment Escrow Agreement”), among Buyer, the Representative and the Escrow Agent. The Adjustment Escrow Account will be maintained separately from other funds held by the Escrow Agent and will be Buyer’s and Merger Sub’s sole and exclusive source of recovery for any amounts owing to Buyer, Merger Sub or, following the Closing, the Surviving Corporation pursuant to Section 1.08 and shall be released in accordance with the terms thereof.
(iid) At the Closing, Buyer will pay, or will cause Merger Sub to pay, to the Representative, the Representative Holdback Amount, by wire transfer of immediately available funds to an account designated by the Representative at least two (2) Business Days prior to the Closing Date.
(e) At the Closing, Buyer will pay, or will cause Merger Sub to pay, on behalf of the Company shall provide and its Subsidiaries, all Estimated Transaction Expenses to Parent documentation setting forth an itemized list such Persons as they are owed by wire transfer of immediately available funds to accounts designated by the Company at least two (2) Business Days prior to the Closing Date.
(f) At the Closing, Buyer will pay, or will cause Merger Sub to pay, on behalf of the Closing Transaction Expenses owed by Company and its Subsidiaries, all amounts required to be paid under the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary payoff letters delivered pursuant to effect the final payment in full thereof Section 5.10 (the “Transaction Expenses Payoff InstructionsLetters”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment ) at least two (2) Business Days prior to the CIT Loan Agreement Closing Date in order to permit fully discharge the amounts thereunder Indebtedness owed to remain outstandingthe Persons thereunder, by wire transfer of immediately available funds to the accounts designated in such Payoff Letters.
Appears in 1 contract
Sources: Merger Agreement (PTC Inc.)
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of Buyer will deliver, or cause to be delivered, an amount in cash equal to: (i) the Company Estimated Purchase Price minus (ii) the Adjustment Escrow Deposit Amount minus (iii) the Receivables Escrow Deposit Amount minus (iv) the Representative Expense Fund (the “Closing Payment”) to Sellers, in accordance with their respective Closing Percentages, by wire transfer of immediately available funds in accordance with the Seller Payment Instructions. Each Seller agrees that (A) Buyer shall be entitled to rely on the Seller Payment Instructions in making payments under this Section 1.03, Section 1.04 and any other payments to Sellers pursuant to this Agreement, and (B) Buyer shall not be responsible for the calculations or the determinations regarding such calculations in the Seller Payment Instructions.
(b) At the Closing, Buyer will deliver, or cause to be delivered, to the Escrow Agent by wire transfer of immediately available funds the (x) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal to the lesser of the Available Closing Expense Adjustment Escrow Deposit Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Receivables Escrow Deposit Amount, subject to a maximum of separate escrow accounts designated by the GDC Cap Amount Escrow Agent no later than five (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than two (25) Business Days prior to the Closing Date (ithe “Escrow Accounts”) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating established pursuant to the CIT Loan Agreement upon receipt terms of an escrow agreement to be dated as of the amount indicated Closing Date and in such payoff letter the form attached as Exhibit C (the “Debt Payoff LetterEscrow Agreement”), among Buyer, Seller Representative and the Escrow Agent. The Escrow Agent shall (i) maintain the Adjustment Escrow Funds separately from other funds held by the Escrow Agent (including the Receivables Escrow Funds) in the Adjustment Escrow Account, and (ii) maintain the Receivables Escrow Funds separately from other funds held by the Escrow Agent (including the Adjustment Escrow Funds) in the Receivables Escrow Account, and such Receivables Escrow Funds shall be Buyer’s sole and exclusive source of recovery for any amounts owing to Buyer or, following the Closing, the Company shall provide or its Subsidiaries pursuant to Parent documentation setting forth an itemized list Section 10.06.
(c) At the Closing, Buyer will pay, or cause to be paid, on behalf of the Closing Company and its Subsidiaries, all Estimated Transaction Expenses owed in cash by wire transfer of immediately available funds in accordance with the applicable Transaction Expenses Invoices.
(d) At the Closing, Buyer will pay, or cause to be paid, to the Seller Representative, on behalf of Sellers, the Representative Expense Fund in cash by wire transfer of immediately available funds to the accounts designated by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof Company at least five (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment 5) Business Days prior to the CIT Loan Agreement Closing Date.
(e) At the Closing, Buyer will pay, or cause to permit be paid, to each holder of Payoff Indebtedness in cash by wire transfer of immediately available funds in accordance with the amounts thereunder to remain outstandingapplicable Payoff Letters.
Appears in 1 contract
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver in full payment for the Acquired Units, Purchaser will pay to, or on behalf of, the Sellers, by wire transfer of immediately available funds, the Company Closing Purchase Price, minus (i) the Indemnity Escrow Amount by wire transfer of immediately available funds to an escrow account (xthe “Indemnity Escrow Account”) to CIT Northbridge Credit LLC be established by the Purchaser with United Bank, a state banking association (the “Escrow Agent”), to be held by the Escrow Agent pursuant to the terms of an escrow agreement in the form attached hereto as agent for Exhibit B (the lenders under “Escrow Agreement”), (ii) the CIT Loan Working Capital Escrow Amount by wire transfer of immediately available funds to an escrow account (the “Working Capital Escrow Account”) to be established by the Purchaser with the Escrow Agent, to be held by the Escrow Agent pursuant to the terms of the Escrow Agreement, (iii) the BCA Earnout Escrow Amount by wire transfer of immediately available funds to an amount equal escrow account (the “BCA Earnout Escrow Account”) to be established by the Purchaser with the Escrow Agent, to be held by the Escrow Agent pursuant to the lesser terms of the Available Closing Expense Amount Escrow Agreement and (iv) the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree Seller Representative Fund; provided, that, solely with respect to amend the CIT Loan Agreement Sellers who are makers of Seller Subscription Note(s), each such that no amounts are due under the CIT Loan Agreement in connection with the consummation Seller’s respective portion of the transactions contemplated hereby), and (y) to each Person who is owed a Seller Subscription Notes Pay-off Amount shall be withheld from such Seller’s portion of the Closing Purchase Price in full repayment of each such Seller’s Seller Subscription Note(s), and the Company shall distribute the Seller Subscription Notes Pay-off Amount to the Sellers in accordance with the Consideration Waterfall.
(b) At the Closing, Purchaser will pay to the Company (or, in the case of the Estimated Indebtedness Amount or Estimated Company Party Transaction Expenses, such other party as specified directed by the Company in the Transaction Expenses Payoff InstructionsFlow of Funds Memorandum), such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid Company will pay at Closing to the extent of Available Cash. No less than two (2) Business Days prior to the Closing Date Closing: (i) the Estimated Indebtedness Amount as set forth in any payoff letters in respect of such Estimated Indebtedness Amount, if any; (ii) the Redemption Payment Amount to be made to each of the Preferred Unit Holders and the Junior Preferred Unit Holders; (iii) the amount of the unpaid Estimated Company shall obtain Party Transaction Expenses, if any; and provide (iv) the Closing Bonus Payments (together with the Company’s share of required withholding Taxes).
(c) At the Closing, Purchaser also will pay to Parent a payoff letter in customary form (i) the Escrow Agent the Indemnity Escrow Amount, the Working Capital Escrow Amount and which shall contemplate the termination and release of all Encumbrances relating BCA Earnout Escrow Amount, plus any fees due to the CIT Loan Agreement upon receipt Escrow Agent under the Escrow Agreement; it being understood that one-half of the amount indicated in any such payoff letter (the “Debt Payoff Letter”), fees shall be a Company Party Transaction Expense and (ii) the Company shall provide to Parent documentation setting forth an itemized list of Seller Representative the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingSeller Representative Fund.
Appears in 1 contract
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of Purchaser will, or will cause Merger Sub to, deposit with the Exchange Agent the aggregate Closing Common Stock Payment payable to the Company Shareholders as set forth in the Closing Statement by wire transfer of immediately available funds to the account designated by the Exchange Agent; provided, however, with respect to holders of Company Restricted Shares, such Closing Common Stock Payments shall be instead be disbursed in accordance with the Alternative Payment Procedure.
(xb) At the Closing, Purchaser will, or will cause Merger Sub to, deliver the Adjustment Escrow Amount to CIT Northbridge Credit LLC as agent the Escrow Agent by wire transfer of immediately available funds to the Adjustment Escrow Account to secure any Shortfall Amount owed to Purchaser pursuant to Section 1.7.
(c) At the Closing, Purchaser will, or will cause Merger Sub to, deliver the Indemnification Escrow Amount and the Losses Escrow Amount to the Escrow Agent by wire transfer of immediately available funds to the Indemnification Escrow Account to secure any indemnification obligations of the Company Indemnifying Parties pursuant to Section 8.1.
(d) At the Closing, Purchaser will pay, or will cause Merger Sub to pay, on behalf of the Company Group, all amounts required to be paid under the Payoff Letters delivered pursuant to Section 6.2(w) in order to fully discharge the Indebtedness owed to the Persons thereunder, by wire transfer of immediately available funds to the accounts designated in such Payoff Letters and the Closing Statement.
(e) At the Closing, Purchaser will pay, or will cause Merger Sub to pay, to the account of the Surviving Corporation, for the lenders under benefit of and further payment by the CIT Loan AgreementSurviving Corporation to the Transaction-Related Payments Recipients, an amount equal to the lesser Aggregate Transaction-Related Payments Amount, as set forth on the Closing Statement and the Compensation Acknowledgement and Release Agreements. On the next regularly scheduled payroll date of the Available Closing Expense Amount and Surviving Corporation, the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for Surviving Corporation will distribute to the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense AmountTransaction-Related Payments Recipients their respective Transaction-Related Payments, subject to a maximum any applicable Tax withholding pursuant to Section 1.10.
(f) At the Closing, Purchaser will pay, or will cause Merger Sub to pay, on behalf of the GDC Cap Amount (in respect Company and its Subsidiaries, all Transaction Expenses to such Persons as they are owed by wire transfer of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and immediately available funds to the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described accounts set forth in the foregoing clause Closing Statement.
(yg) in excess of At Closing Purchaser will, or will cause Merger Sub to, deliver the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing Shareholder Representative Expense Amount to the extent Shareholder Rep Escrow Agent by wire transfer of Available Cash. No less than two (2) Business Days prior immediately available funds to the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed Shareholder Representative Expense Escrow Account for use by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment Shareholder Representative in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingaccordance with Section 8.11.
Appears in 1 contract
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) At or promptly following the Company’s good faith estimate of Effective Time, but in any event within one (1) business day following the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the ClosingEffective Time, Parent shall deliver make (or shall cause to be made) the following payments:
(i) on behalf of the Company Company, by wire transfer of immediately available funds (x) funds, to CIT Northbridge Credit LLC as agent for the lenders under account designated in writing by the CIT Loan AgreementTransaction Expense Recipient and Indebtedness Recipient who has delivered a Payoff Letter, an amount equal to the lesser of Transaction Expenses or Indebtedness owing to such Transaction Expense Recipient or Indebtedness Recipient, as applicable, each as set forth in the Available Payment Spreadsheet;
(ii) to the Company or its payroll agent as appropriate to process such payments through the Company’s normal payroll procedure, the MIP Closing Expense Amount and Payment as set forth in the Closing Debt Amount Payment Spreadsheet, which the Company shall cause to be promptly paid through its normal payroll procedures to the Persons receiving such payments as set forth in the Payment Spreadsheet;
(unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (yiii) to each Person Effective Time Holder who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject has delivered to a maximum of the GDC Cap Amount Parent at least one (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP1) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than two (2) Business Days business day prior to the Closing Date a fully executed Letter of Transmittal and Company Stock Certificates, with respect to such Effective Time Holder’s shares of Series AA Preferred Stock, by wire transfer of immediately available funds, to such accounts designated in writing by each such Effective Time Holder, an amount equal to, less any applicable withholding, the sum of: (A) (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release number of all Encumbrances relating shares of Series AA Preferred Stock held by such Effective Time Holder immediately prior to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”)Effective Time, and multiplied by (ii) the Company Per Share Amount.
(b) Parent shall provide to Parent documentation setting forth an itemized list retain the portion of the Closing Transaction Expenses owed by and Indebtedness payable to Transaction Expense Recipients and Indebtedness Recipients, as applicable, who fail to deliver fully executed Payoff Letters prior to the Target CompaniesEffective Time. After the Effective Time, including following the identity delivery of each payeeapplicable Payoff Letters, dollar amounts owedParent shall, bank wire instructions and any other information necessary to effect as promptly as practicable, pay the final payment in full thereof (the “applicable Transaction Expenses Payoff Instructions”). The to such Transaction Expense Recipients and Indebtedness to such Indebtedness Recipients by check or wire transfer of immediately available funds.
(c) If any Effective Time Holder fails to deliver a fully executed Letter of Transmittal and Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment Stock Certificates in respect of his Series AA Preferred Stock at least one (1) business day prior to the CIT Loan Agreement Closing, Parent shall retain the aggregate Per Share Amount payable to permit such Effective Time Holder. After the amounts thereunder Effective Time and following the delivery of Letters of Transmittal and Company Stock Certificates as applicable, Parent shall, as promptly as practicable but in any event within ten (10) business days following such delivery, pay the applicable aggregate Per Share Amount (less any applicable withholding), to remain outstandingsuch Effective Time Holder, by check or wire transfer of immediately available funds.
Appears in 1 contract
Sources: Merger Agreement (Rovi Corp)
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of the Company by wire transfer shall (i) pay, or cause to be paid, the Company Indebtedness, (ii) except as otherwise agreed in writing among the Parent, the Company and any holder (each, a "Unit Holder") of immediately available funds a phantom stock unit (xa "Unit") to CIT Northbridge Credit LLC as agent for the lenders issued under the CIT Loan AgreementPhantom Stock Plan, an amount equal pay to the lesser of Disbursement Agent for distribution to the Available Closing Expense Amount and Unit Holders the aggregate amount owed on the Closing Debt Amount Date under each vested and unvested Unit that is outstanding immediately prior to the Effective Time (unless Parent and CIT Northbridge Credit LLC as agent for the lenders "Phantom Deferred Compensation"), (iii) pay, or cause to be paid, the aggregate amount owed under the CIT Loan Agreement otherwise agree Company's value creation pool (the "Other Deferred Compensation" and together with the Phantom Deferred Compensation, the "Deferred Compensation") and (iv) pay, or cause to amend be paid, all fees and expenses incurred by the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement Company in connection with the consummation of the transactions contemplated hereby), and (y) by this Agreement including without limitation the fees payable to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇Mor▇▇▇ ▇▇▇▇ & ▇▇▇▇a▇▇▇▇ LLP) & Co. Incorporated (the "Closing Fees" and, collectively with the Company Indebtedness and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CapitalDeferred Compensation, Inc.the "Closing Date Payments"). Any amounts remaining payable to any The amount of the Persons described in Closing Date Payments shall be transferred on the foregoing clause (y) in excess Closing Date from Parent to the Company on behalf of and for the benefit of the Common Stockholders or, at the Representatives' option, Parent shall satisfy the Company's obligations set forth in this Section 2.5 by paying such amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing directly to the extent of Available Cashrecipients thereof on the Closing Date. No Not less than two (2) Business Days prior to the Closing, the Company shall deliver to Parent a statement (the "Closing Payment Statement") setting forth the amount of the Closing Date Payments.
(b) At the Closing, Parent shall deposit cash in the amount of Fifteen Million Dollars ($15,000,000) (the "Escrow Amount") in an escrow account to be maintained with Wilmington Trust Company (the "Escrow Agent"), which shall be held in connection with (i) the Company shall obtain and provide any potential payments to Parent a payoff letter in customary form and which shall contemplate by the termination and release Common Stockholders pursuant to Section 2.7 of all Encumbrances relating to the CIT Loan this Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”), and (ii) any potential reimbursement of Parent from the Company Escrow Fund pursuant to Section 9.1 of this Agreement. The Escrow Amount shall provide to Parent documentation setting forth be held under the terms of an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof escrow agreement (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to "Escrow Agreement") substantially in the CIT Loan Agreement to permit the amounts thereunder to remain outstandingform of Exhibit 2 attached hereto.
Appears in 1 contract
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent Buyer shall deliver on behalf of the Company pay, or shall cause to be paid, in cash by wire transfer of immediately available funds funds, as follows:
(i) to the Escrow Agent, (x) the Adjustment Escrow Amount to CIT Northbridge Credit LLC as agent be deposited by the Escrow Agent into the Adjustment Escrow Account and (y) the Post-Closing Escrow Amount to be deposited by the Escrow Agent into the Post-Closing Escrow Account, in each case, to be held and disbursed in accordance with the terms of this Agreement and the Escrow Agreement;
(ii) to Seller, the Estimated Closing Consideration set forth on the Preliminary Closing Statement minus the Adjustment Escrow Amount minus the Post-Closing Escrow Amount, minus the Closing Company Incentive Equity Consideration;
(iii) to the Company, for the lenders under benefit of the CIT Loan AgreementCompany Award Holders, an amount equal to the lesser Closing Company Incentive Equity Consideration to be paid by the Company to each Company Award Holder in accordance with Section 2.4(a)(i) and Section 2.4(c)(i)(A); and
(iv) (A) the entire amount of all Repaid Indebtedness as set forth on executed payoff letters from the Available Closing Expense Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree Credit Facility (the “Credit Facility Payoff Amount”) and other applicable lenders of Repaid Indebtedness pursuant to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby)wire instructions set forth therein, and (yB) to each Person who is owed a portion the Seller Expenses in the amounts set forth in the calculation of the Estimated Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount Consideration delivered hereunder (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent such Seller Expenses are due and payable at the time of Available Cashthe Closing) pursuant to wire instructions provided to Buyer by the Company prior to the Closing. No less than two Promptly, after the Closing, the Buyer shall pay or cause to be paid, any remaining Seller Expenses, in cash by wire transfer of immediately available funds. At least three (23) Business Days prior to the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”)Date, and (ii) the Company Seller shall provide to Parent documentation Buyer with a flow of funds setting forth an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank to be paid pursuant to this Section 2.2(b) along with wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingtherefor.
Appears in 1 contract
Sources: Share Purchase Agreement (PTC Inc.)
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) Schedule 2.3(a) (the Company’s good faith estimate of “Payments Schedule”) sets forth:
(i) the amount payable Outstanding Debt (the “Debt Payment Schedule”) owed to the holder of each Person listed on such Debt outstanding under the CIT Loan Agreement as of the Closing and Payment Schedule (bA) an itemized list of all Transaction Expenses owed by the Target Companies to be paid as of the Closing, including together with wire transfer instructions for each such Person, and (B) to remain outstanding;
(ii) the identity amount necessary to fully discharge the Transaction Expenses (the “Transaction Expenses Schedule”), together with wire transfer instructions for each Person who is owed payment therefor;
(iii) the NWMI Sellers’ good faith calculations of each payee the NWMI Net Working Capital and the CompanyNWMI NWC Adjustment; and
(iv) Valley Seller’s good faith estimate calculations of the amount to be owed as of Valley Net Working Capital and the Closing. Valley NWC Adjustment.
(b) At the Closing, Parent Holdco shall deliver on behalf of pay or cause to be paid to NWMI Corbel Seller, an amount in cash equal to the Company NWMI Corbel Cash Amount, which amount will be paid by wire transfer of immediately available funds to an account designated by NWMI Manager Seller in writing.
(xc) At the Closing, Holdco shall cause Newco to CIT Northbridge Credit LLC as agent for pay or cause to be paid by wire transfer of immediately available funds to:
(i) each Person listed on the lenders under the CIT Loan AgreementDebt Payment Schedule with respect to which Outstanding Debt is to be repaid, an amount in cash equal to the lesser amount set forth opposite such Person’s name on the Debt Payment Schedule, on behalf of the Available Closing Expense Amount Acquired Companies and Sellers, which amount will be paid in accordance with the instructions set forth on the Debt Payment Schedule and the Closing Debt Amount applicable payoff letters delivered pursuant to Section 2.5(a)(vii);
(unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (yii) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in listed on the Transaction Expenses Payoff InstructionsSchedule, an amount in cash equal to the amount set forth opposite such Person’s pro rata share name on the Transaction Expenses Schedule, on behalf of the Available Closing Advisory Expense Acquired Companies and Sellers, which amount will be paid in accordance with the instructions set forth on the Transaction Expenses Schedule;
(iii) the Escrow Agent, an amount in cash equal to the sum of (A) the Valley Escrow Amount, subject to a maximum which amount will be paid by wire transfer of immediately available funds in accordance with the wire transfer instructions of the GDC Cap Escrow Agent and held in the Valley Escrow Account in accordance with the terms of the Escrow Agreement plus (B) the NWMI Manager Escrow Amount, which amount will be paid by wire transfer of immediately available funds in accordance with the wire transfer instructions of the Escrow Agent and held in the NWMI Manager Escrow Account in accordance with the terms of the Escrow Agreement;
(iv) NWMI Manager Seller, an amount in cash equal to the NWMI Manager Cash Amount (calculated based on the Payments Schedule) less the NWMI Manager Escrow Amount, which amount will be paid by wire transfer of immediately available funds to an account designated by NWMI Manager Seller in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPwriting; and
(v) and Valley Seller, an amount in cash equal to the HL Cap Valley Cash Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capitalcalculated based on the Payments Schedule) less the Valley Escrow Amount, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall which amount will be paid at Closing by wire transfer of immediately available funds to the extent of Available Cash. No less than two (2) Business Days prior to the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter an account designated by Valley Seller in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingwriting.
Appears in 1 contract
Sources: Transaction Agreement (Great Elm Capital Group, Inc.)
Closing Payments. Part 1.11 (i) Not less than two (2) business days prior to the Closing, the Company shall deliver to Parent a reasonably detailed statement (based on the balance sheet and other financial statements of the Company Disclosure Schedule sets forth: (aand its Subsidiaries as of October 31, 2016, plus all known changes and adjustments occurring since October 31, 2016) setting forth the Company’s good faith estimate estimates of (i) the Closing Date Net Working Capital (“Estimated Closing Date Net Working Capital”), and (ii) the Transaction Expenses (the “Estimated Transaction Expenses”).
(ii) Such statement (the “Estimated Closing Statement”) also shall set forth the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed Date Indebtedness, if applicable. The Estimated Closing Statement shall be certified by the Target Companies Seller and shall be accompanied by such supporting documentation as Parent shall reasonably request. The Company shall make its Representatives available to Parent during the two (2) business days referenced in the first sentence of subsection (a)(i) to respond to any questions or requests that Parent may have with respect to the ClosingEstimated Closing Statement.
(iii) For purposes of this Agreement, including the identity of each payee and “Estimated Purchase Price” shall be a cash payment equal to the Company’s good faith estimate of Base Amount, plus (i) the amount to be owed as of by which the Closing. Estimated Closing Date Net Working Capital exceeds the Closing Date Net Working Capital Target, if applicable, minus (ii) the amount by which the Closing Date Net Working Capital Target exceeds the Estimated Closing Date Net Working Capital, if applicable, minus (iii) the Closing Date Indebtedness, and minus (iv) the Estimated Transaction Expenses.
(iv) At the Closing, Parent shall deliver on behalf of pay to the Company Seller, by wire transfer of immediately available funds into accounts designated in writing by the Seller not less than three (x3) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal business days prior to the lesser of Closing Date, (i) the Available Closing Expense Amount and Estimated Purchase Price, minus (ii) the Closing Debt Escrow Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under “Adjusted Estimated Purchase Price”).
(v) Subject to the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation receipt of the transactions contemplated hereby)customary payoff letters, and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent the Company has not previously made such payment on or prior to the Closing, at the Closing, (i) Parent shall cause wire transfers of Available Cash. No less than immediately available funds to be made to an account designated by the Bank Lender under the Loan Agreement at least two (2) Business Days prior to the Closing Date (i) Date, in an amount equal to the Company shall obtain total Indebtedness under the Loan Agreement, together with all other amounts then due and provide to Parent a payoff letter payable thereunder in customary form and which shall contemplate connection with the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”), thereof and (ii) at the Company shall provide to Parent documentation setting forth an itemized list direction of the Seller, Parent shall cause wire transfers of immediately available funds to be made to one or more accounts designated by the Sellers at least two (2) business days prior to the Closing Date in payment of the Transaction Expenses owed by that are reflected on the Target Companies, Estimated Closing Statement (including the identity of each payee, dollar amounts owed, bank wire instructions that may be due and any other information necessary owing to effect the final payment in full thereof Lazard (the “Transaction Expenses Payoff Instructions”as defined hereinafter). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstanding).
Appears in 1 contract
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) At the Company’s good faith estimate Closing and effective as of the amount payable immediately prior to the holder of Debt outstanding under Effective Time:
(i) Seller shall, or shall cause the CIT Loan Agreement applicable Business Entities to, in a manner set forth in the LPT Trust Agreements, transfer for deposit into the LPT Trust Accounts such Investment Assets selected from the Available Portfolio in accordance with the Transferred Investment Asset Procedures and valued in accordance with the Transferred Investment Asset Procedures with an aggregate Fair Market Value as of the Effective Time equal to (A) the Initial Reinsurance Premium (LPT) as reflected in the Estimated Closing Statement, minus (B) in the event that the Pre-Closing Continuing XOL Recoverables exceed $33,369,000, the Pre-Closing XOL Allowance, minus (C) the Excise Tax to be withheld and paid to the applicable Governmental Entity by Seller in accordance with Section 14.1 of the LPT Reinsurance Agreement, and minus, for the sake of operational efficiency and ease of Closing funds flow only, and notwithstanding that there will be no ceding commission with respect to the LPT Reinsurance Agreement, (D) the Purchase Price (such calculation, the “LPT Transfer Amount” and such Investment Assets, the “Transferred Investment Assets (LPT)”); provided, however, that after the Transferred Investment Assets (as defined below) are selected, Seller shall, or shall cause the applicable Business Entities to, transfer the Transferred Investment Assets into the LPT Trust Accounts and the New Business Trust Account in accordance with the allocation directed by ▇▇▇▇▇ in a notice delivered to Seller in compliance with Section 2.3(c), unless no such notice has been delivered to Seller;
(ii) Buyer shall cause LPT Reinsurer to transfer to the LPT Trust Accounts Investment Assets such that, after giving effect to the transfer contemplated by Section 2.3(a)(i), (A) the aggregate Fair Market Value (as defined in the LPT Reinsurance Agreement) in the Statutory Trust Account (as defined in the LPT Reinsurance Agreement) as of the Effective Time is not less than the Statutory Trust 50213729.30 Required Balance (as defined in the LPT Reinsurance Agreement) and (B) the aggregate Fair Market Value across both LPT Trust Accounts as of the Effective Time is not less than the Combined Required Balance (as defined in the LPT Reinsurance Agreement), in each case, as of the Effective Time, as estimated by Seller in good faith in accordance with SAP and as reflected in the Estimated Closing Statement;
(iii) Seller shall, or shall cause the applicable Business Entities to, in a manner set forth in the New Business Trust Agreement, transfer for deposit into the New Business Trust Account such Investment Assets selected from the Available Portfolio in accordance with the Transferred Investment Asset Procedures and valued in accordance with the Transferred Investment Asset Procedures with an aggregate Fair Market Value as of the Effective Time equal to the Initial Payment (New Business) as reflected in the Estimated Closing Statement (the “Transferred Investment Assets (New Business)” and together with the Transferred Investment Assets (LPT), the “Transferred Investment Assets”); provided, however, that after the Transferred Investment Assets are selected, Seller shall, or shall cause the applicable Business Entities to, transfer the Transferred Investment Assets into the LPT Trust Accounts and the New Business Trust Account in accordance with the allocation directed by ▇▇▇▇▇ in a notice delivered to Seller in compliance with Section 2.3(c), unless no such notice has been received by Seller; and
(iv) Buyer shall cause New Business Reinsurer to transfer to the New Business Trust Account Investment Assets such that, after giving effect to the transfer contemplated by Section 2.3(a)(iii), the aggregate Fair Market Value (as defined in the New Business Reinsurance Agreement) in the New Business Trust Account as of the Effective Time is equal to the Required Balance (as defined in the New Business Reinsurance Agreement) as of the month-end immediately prior to the anticipated Effective Time, as estimated by Seller in good faith in accordance with SAP and as reflected on the Estimated Closing Statement.
(b) an itemized list For the avoidance of all Transaction Expenses owed by doubt, notwithstanding the Target Companies as netting of the ClosingPurchase Price from the Initial Reinsurance Premium (LPT), including which the identity of each payee and the Company’s good faith estimate of the amount parties agree is to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of the Company by wire transfer of immediately available funds (x) to CIT Northbridge Credit LLC as agent effected for the lenders under the CIT Loan Agreementsake of operational efficiency and ease of Closing funds flow only, an amount equal there is no ceding commission paid with respect to the lesser of the Available Closing Expense Amount and the Closing Debt Amount LPT Reinsurance Agreement.
(unless Parent and CIT Northbridge Credit LLC c) Buyer may direct, upon written notice to Seller delivered as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, promptly as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of practicable after ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any ’s receipt of the Persons described Estimated Closing Statement and in the foregoing clause any event at least three (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than two (23) Business Days prior to the Closing Date Date, that Seller allocate the Transferred Investment Assets to the LPT Trust Accounts and the New Business Trust Account in a manner determined by Buyer (notwithstanding whether such Transferred Investment Assets are Transferred Investment Assets (New Business) or Transferred Investment Assets (LPT)), subject to the terms and conditions of the LPT Trust Agreements and the New Business Trust Agreement. Any Investment Assets to be transferred to any Trust Account shall be transferred in the manner set forth in the applicable Trust Agreement, free and clear of all Encumbrances (other than Permitted Encumbrances (solely with respect to clauses (b) and (i) of the Company shall obtain definition thereof) and provide to Parent a payoff letter Encumbrances created under the Reinsurance Agreements and the Trust Agreements). All third- 50213729.30 party costs or expenses incurred (whether prior to, on or following the Closing Date), including reasonable attorneys’ fees, in customary form and which shall contemplate connection with the termination and release transfers of all Encumbrances relating assets to the CIT Loan Agreement upon receipt of LPT Trust Accounts, New Business Trust Account or the amount indicated in such payoff letter Reinsurers (the “Debt Payoff Letter”), and (iiincluding any re-registrations or re-titling thereof) the Company as contemplated by Section 2.3(a) shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed be borne by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary party required to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingmake such transfer.
Appears in 1 contract
Sources: Master Transaction Agreement (Arch Capital Group Ltd.)
Closing Payments. Part 1.11 of Buyer shall make the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of the Company following payments by wire transfer of immediately available funds at the following times:
(xi) at the Closing, pay the Estimated Unpaid Seller Expenses (if any) to CIT Northbridge Credit LLC each applicable third party payee to whom Estimated Unpaid Seller Expenses will be owing as agent of the Closing, in accordance with the terms of a payoff letter from each such third party payee;
(ii) at the Closing, pay the Estimated Closing Indebtedness (if any) to each applicable creditor to whom Estimated Closing Indebtedness will be owing as of the Closing, in accordance with the terms of a payoff letter from each such creditor (provided that Estimated Closing Indebtedness that is in the form of accounts payable, trade payables or customer deposit balances shall not be paid at the Closing);
(iii) at the Closing, transfer the Seller Representative Amount to the Payment Agent, pursuant to the terms of the Payment Agent Agreement, for further distribution to the lenders under Seller Representative;
(iv) at the CIT Loan Closing, transfer to the Payment Agent an amount (in cash) equal to the cash portion of the Total Optionholder Closing Amount, less (A) any cash amounts owed to any Non-Israeli Optionholders who are not employees of the Company or any of its Subsidiaries as of the date hereof (as set forth in Section 1.4(f)(v)) and (B) any amounts described in Section 1.4(f)(vi), which amount shall be transferred by the Payment Agent to the Company, pursuant to the terms of the Payment Agent Agreement, for payment to all Non-Israeli Optionholders who are employees of the Company or any of its Subsidiaries as of the date hereof on the first practicable date it can be processed through payroll following the Closing, in accordance with Section 1.5(b) and the Proceeds Allocation Schedule;
(v) at the Closing, transfer to the Payment Agent, pursuant to the Payment Agent Agreement, an amount (in cash) equal to the lesser cash portion of the Available Total Optionholder Closing Expense Amount owing to each Non-Israeli Optionholder that is not an employee of the Company or any of its Subsidiaries, in accordance with Section 1.5(b) and the Proceeds Allocation Schedule;
(vi) at the Closing, transfer to the Payment Agent, in accordance with the Payment Agent Agreement, any consideration described in Section 1.5(b) with respect to Company 102 Shares and Company 102 Options held by the 102 Trustee, and with respect to payment to Israeli Optionholders that do not hold Company 102 Securities, to be paid to the 102 Trustee and held and released by the 102 Trustee in accordance with the Company’s agreement with the 102 Trustee, applicable Law (including the provisions of Section 102 of the Israeli Tax Ordinance and the regulations and rules promulgated thereunder, including, where applicable, the completion of any required 102 Trust Period) and the Israeli 102 Tax Ruling (or any other approval from the ITA received either by the Company, prior to Closing, or by Buyer or the Company after Closing with the consent of the Seller Representative);
(vii) at the Closing, transfer the IIA Holdback Amount and the WSP Holdback Amount to the Escrow Agent, in accordance with the Escrow Agreement;
(viii) at the Closing, transfer to the Payment Agent, pursuant to the terms of the Payment Agent Agreement, an amount (in cash) equal to the cash portion of the Total Warrantholder Closing Debt Amount, in accordance with Section 1.6(b) and the Proceeds Allocation Schedule; and
(ix) at the Closing, pay (A) the Estimated Closing Purchase Price (less the amounts set forth in clauses (i) – (viii) above) and (B) the non-cash portion of each of the Total Optionholder Closing Amount and the Total Warrantholder Closing Amount, in each case, by transfer of such amounts to the Payment Agent, pursuant to the provisions of the Payment Agent Agreement. Buyer shall cause the Payment Agent to deliver to each: (x) Seller for each Company Share sold by such Seller consideration equal to the amount in cash and Buyer Common Stock as set forth opposite such Seller’s name in the Proceeds Allocation Schedule, in each case, less (A) applicable Tax withholding with respect to such Seller (to the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the such Seller) and (B) such Seller’s respective portion, in cash, of the Seller Representative Amount (unless Parent and CIT Northbridge Credit LLC such amount transferred to the Payment Agent, the “Closing Payment Fund”); provided, however, that any such amounts payable in consideration for Company 102 Securities shall be paid as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement set forth in connection with the consummation of the transactions contemplated herebySection 1.4(f)(vi), ; and (y) Optionholder and Warrantholder the amount of Buyer Common Stock as set forth opposite such Optionholder’s or Warrantholder’s name in the Proceeds Allocation Schedule. For purposes of this Agreement and for the avoidance of doubt, the parties hereto acknowledge and agree that the Seller Representative Amount shall be treated as having been paid to each Person who is owed a portion of the Equityholders at the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than two (2) Business Days prior to the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of for all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingapplicable Tax purposes.
Appears in 1 contract
Closing Payments. Part 1.11 At the Closing on the Closing Date, upon the terms and subject to the conditions of this Agreement:
(a) Parent shall make any payments required to be made by Parent in connection with the Parent Stockholder Redemption (the “Parent Stockholder Redemption Payments”);
(b) the Company shall pay the Parent Class B Common Stock Purchase Price to Parent pursuant to the Parent Class B Common Stock Subscription Agreement;
(c) Parent shall pay to the Company the Parent Subscribed Units Purchase Price pursuant to the Parent Subscribed Units Subscription Agreement;
(d) the Company shall pay to the applicable Convertible Noteholders the applicable payoff amounts in respect of the Convertible Notes held by such Convertible Noteholders pursuant to the payoff elections in respect thereof;
(e) if, and to the extent, applicable, the Company shall pay to the applicable Cash Electing ILPs the repurchase amounts in respect of the limited partnership interests of the Company Disclosure Schedule sets forth: being repurchased from such Cash Electing ILPs pursuant to the repurchase elections in respect thereof (ain each case net of applicable withholding Taxes, which Taxes will be timely paid to the relevant Governmental Entity);
(f) if, and to the extent, applicable, the Company shall pay to the applicable Cash Electing Legacy Partners the repurchase amounts in respect of the limited partnership interests of the Company and the capital stock of Parent (following receipt by such Cash Electing Legacy Partners of such securities upon redemption of such Cash Electing Legacy Partners’ corresponding limited partnership interests of Professionals) being repurchased from such Cash Electing Legacy Partners pursuant to the repurchase elections in respect thereof (in each case net of applicable withholding Taxes, which Taxes will be timely paid to the relevant Governmental Entity);
(g) the Company’s good faith estimate of the amount payable Company shall pay to the holder of Debt outstanding agent under the CIT Loan Existing Credit Agreement or any refinancing thereof, as applicable, the outstanding principal amount of indebtedness under the Existing Credit Agreement or any refinancing thereof, as applicable, (together with accrued interest thereon) as of the Closing and Date; and
(b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of the Company by wire transfer of immediately available funds (x) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal to the lesser of the Available Closing Expense Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than two (2) Business Days prior to the Closing Date (ih) the Company shall obtain and provide (on its own behalf, or on behalf of Parent, as applicable) pay, or, cause to Parent a payoff letter in customary form and which shall contemplate the termination and release of be paid, all Encumbrances relating Estimated Transaction Costs to the CIT Loan Agreement upon receipt of applicable payees as set forth in the amount indicated in such payoff letter (Funds Flow Memorandum; provided, that the “Debt Payoff Letter”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list of Estimated Transaction Costs may be paid promptly after the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information Date as necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingor appropriate.
Appears in 1 contract
Sources: Business Combination Agreement (FinTech Acquisition Corp. IV)
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (ai) the Company’s good faith estimate of the amount payable Prior to the holder of Debt outstanding under Effective Time, Parent shall enter into an agreement with the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the ClosingExchange Agent. At the ClosingEffective Time, Parent shall deliver on behalf deposit or cause to be deposited with the Exchange Agent (i) certificates representing the number of shares of Parent Common Stock sufficient to deliver, and Parent shall instruct the Exchange Agent to deliver, the Base Aggregate Stock Consideration minus the shares of Parent Common Stock included in the Escrow Amount and (ii) an amount of cash equal to the Estimated Adjusted Cash Consideration minus the cash portion of the Company Escrow Amount by wire transfer of immediately available funds funds.
(xii) As soon as practicable following the Closing Date, Parent or the Exchange Agent shall mail the Letter of Transmittal to CIT Northbridge Credit LLC each Company Securityholder at the address set forth opposite each such Company Securityholder’s name on the Spreadsheet.
(iii) Upon surrender of the Company Stock Certificates or Company Warrants representing their respective shares of Company Capital Stock for cancellation to Parent or the Exchange Agent, together with the Letter of Transmittal and the Exchange Documents, duly completed and validly executed in accordance with the instructions thereto, the holder of such Company Stock Certificate shall be entitled to receive from Parent or its agent in exchange therefor, the Merger Consideration into which the shares of Company Capital Stock represented by such Company Stock Certificate or underlying such Company Warrant have been converted pursuant to Section 2.7 less the Pro Rata Portion of the Escrow Amount attributable to such shares of Company Capital Stock including shares underlying any Company Warrant, based upon such holder’s Pro Rata Portion of the Escrow Amount contributed with the Escrow Agent on such holder’s behalf pursuant to Section 2.9(a). Upon the surrender of any such Company Stock Certificate, the Company Stock Certificate so surrendered shall thereupon be cancelled. Until so surrendered, each Company Stock Certificate outstanding after the Effective Time will be deemed, for all corporate purposes thereafter, to evidence only the right to receive the Merger Consideration payable in exchange for shares of Company Capital Stock (without interest) into which such shares of Company Capital Stock shall have been converted pursuant to Section 2.7.
(iv) As soon as agent for reasonably practicable following the lenders under determination of the CIT Loan AgreementFinal Adjusted Cash Consideration pursuant to Section 2.10, if the Final Adjusted Cash Consideration is less than the Estimated Adjusted Cash Consideration (such amount, the “Shortfall Amount”), then Parent and the Stockholder’s Representative shall instruct the Escrow Agent to promptly release the Shortfall Amount from the Escrow Fund. As soon as reasonably practicable following the determination of the Final Adjusted Cash Consideration pursuant to Section 2.10, if the Final Adjusted Cash Consideration is greater than the Estimated Adjusted Cash Consideration (such amount, the “Excess Amount”), then Parent shall deposit an amount of cash equal to the lesser of the Available Closing Expense Excess Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of Exchange Agent for distribution to the transactions contemplated hereby)Company Securityholders in accordance with their Pro Rata Portions.
(v) Notwithstanding anything in this Agreement to the contrary, and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than two (2) Business Days prior to the Closing Date that either (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt payment of the amount indicated in such payoff letter (the “Debt Payoff Letter”), and Excess Amount pursuant to Section 2.9(b)(iv) or (ii) any payment resulting from the Company shall provide to Parent documentation setting forth an itemized list Estimated Adjusted Cash Consideration or the Base Aggregate Cash Consideration being in excess of Sixty-Two Million Dollars ($62,000,000) would result (absent this provision) in the cash portion of the Closing Transaction Expenses owed Merger Consideration (excluding, for the purposes of this Section 2.9(v), the Escrow Amount and the Deferred Merger Consideration) payable by Parent pursuant to this Agreement comprising more than sixty percent (60%) of the Target Companiestotal consideration paid in the Merger (as determined pursuant to Treasury Regulations Section 1.368-1T(e)(2)), including Parent shall substitute a sufficient number of shares of Parent Common Stock (valued at the identity per share closing price as of each payee, dollar amounts owed, bank wire instructions the date prior to the date hereof) for cash to satisfy its obligations under Sections 2.9(b)(iv) and any other information necessary payment resulting from the Estimated Adjusted Cash Consideration or the Base Adjusted Cash Consideration being in excess of Sixty-Two Million Dollars ($62,000,000)) as applicable.
(vi) From and after the Effective Time, Parent shall be permitted to effect instruct the final payment in full thereof Exchange Agent to pay any holder of Company Options not exercised prior to the Effective Time the Merger Consideration into which the shares of Company Capital Stock underlying such Company Options could have been converted as of immediately prior to the Effective Time had such Company Option been exercised (such amount, the “Transaction Expenses Payoff InstructionsOption Consideration”) less (A) the exercise price of such Company Options, less (B) the Pro Rata Portion of the Escrow Amount attributable to such shares of Company Capital Stock, based on such holder’s Pro Rata Portion of the Escrow Amount contributed with the Escrow Agent on such holder’s behalf pursuant to Section 2.9(a). The Option Consideration of a Company acknowledges and agrees that neither Parent nor Purchaser has Option less the exercise price of such Company Option is referred to herein as the “Optionholder’s Portion of the Merger Consideration”. If any obligation to pursue any amendment Company Option expires prior to the CIT Loan Agreement end of the Escrow Period without having been exercised, then the Optionholder’s Portion of the Merger Consideration with respect to permit their Company Options outstanding and unexercised as of immediately prior to the amounts thereunder Effective Time shall be distributed to remain outstandingthe Company Stockholders by the Exchange Agent at the end of the Escrow Period in accordance with the distribution procedures set forth in Section 8.7(b).
Appears in 1 contract
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent Buyer shall make or cause to be made, by wire transfer of immediately available funds, the following payments (each such payment, a “Closing Payment”) and, as applicable, Buyer and Seller shall take the following actions:
(a) payment to the account(s) designated by Seller of an aggregate cash amount equal to (A) the Base Purchase Price, plus (B) whether positive or negative, the Estimated Adjustment Amount, minus (C) the Escrow Amount (the “Estimated Closing Purchase Price”), minus (D) the Initial Escrow Release Amount;
(b) Buyer and Seller shall deliver on behalf of joint written instructions to the Company Escrow Agent to release to Seller from the Escrow Account an amount equal to the Escrow Deposit plus all interest and earnings thereon, minus the Escrow Amount (the “Initial Escrow Release Amount”) by wire transfer of immediately available funds to the account designated by Seller (xfor avoidance of doubt, the Escrow Amount shall be retained in the Escrow Account to be released in accordance with Section 1.4); and
(c) payment on behalf of the Company, to CIT Northbridge Credit LLC the payees thereof (or the Company with respect to Transaction Expenses that are compensatory in nature, in which case such amounts are to be paid through the Company’s payroll system as agent for soon as practicable following the lenders under Closing Date (and in no event later than the CIT Loan Agreement, next regularly scheduled payroll run of the Company following the Closing Date)) of an aggregate cash amount equal to the lesser amount of all (i) Estimated Closing Date Indebtedness of the Available Closing Expense Amount and the Closing Debt Amount type identified in item (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation i) of the transactions contemplated herebydefinition of “Indebtedness,” in the amounts and to recipients per formal payoff letters pursuant to Section 2.2(b), and (yii) to each Person who is owed a portion of the Estimated Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject per invoices and wire support provided to a maximum of the GDC Cap Amount Buyer at least three (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than two (23) Business Days prior to the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list Date. Each of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment Payments shall be made in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder and as set forth in the Pre-Closing Statement delivered pursuant to remain outstandingSection 1.4.
Appears in 1 contract
Sources: Equity Purchase Agreement (Guardion Health Sciences, Inc.)
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of Buyer will, or will cause Merger Sub to, deposit with the Company Paying Agent the aggregate Closing Stock Payments payable to the Stockholders as set forth in the Estimated Closing Statement by wire transfer of immediately available funds (x) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal to the lesser of account designated by the Available Closing Expense Amount and Paying Agent no later than two (2) Business Days prior to the Closing Debt Amount Date.
(unless Parent and CIT Northbridge Credit LLC b) At the Closing, Buyer will, or will cause Merger Sub to, deliver the aggregate Closing Option Payments payable to the Optionholders, as agent for set forth in the lenders under Estimated Closing Statement, by wire transfer of immediately available funds to an account designated by the CIT Loan Agreement otherwise agree Company at least two (2) Business Days prior to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in Date. On the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations next regularly scheduled payroll date of the Surviving Corporation and shall be paid occurring at least ten (10) Business Days following the Closing Date, the Surviving Corporation will distribute to the extent Optionholders their respective Closing Option Payments, subject to any applicable Tax withholding pursuant to Section 1.10 and subject to receipt from the applicable Optionholder of Available Casha duly executed Option Cancellation Agreement. No less After the Closing, Buyer shall cause the Surviving Corporation to make timely payment to the appropriate taxing authority or authorities of any amounts withheld from payment to the Optionholders pursuant to Section 1.10.
(c) At the Closing, Buyer will, or will cause Merger Sub to, deliver the Adjustment Escrow Deposit Amount to the Escrow Agent by wire transfer of immediately available funds to an escrow account designated by the Escrow Agent no later than two (2) Business Days prior to the Closing Date (ithe “Adjustment Escrow Account”) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating established pursuant to the CIT Loan Agreement upon receipt terms of an escrow agreement to be dated as of the amount indicated Closing Date and substantially in such payoff letter the form attached as Exhibit C (the “Debt Payoff LetterEscrow Agreement”), among Buyer, the Representative and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed Escrow Agent. The Adjustment Escrow Account will be maintained separately from other funds held by the Target CompaniesEscrow Agent and will be Buyer’s and Merger Sub’s sole and exclusive source of recovery for any amounts owing to Buyer, Merger Sub or, following the Closing, the Surviving Corporation under this Agreement (including pursuant to Section 1.08 with respect to any Excess Amount, but excluding any amounts owing that arise out of claims for Fraud).
(d) At the identity of each payeeClosing, dollar amounts owedBuyer will, bank wire instructions and any other information necessary or will cause Merger Sub to, deliver an amount equal to effect the final payment in full thereof $1,735,000 (the “Deductible Escrow Deposit Amount”) to the Escrow Agent by wire transfer of immediately available funds to an escrow account designated by the Escrow Agent no later than two (2) Business Days prior to the Closing Date (the “Deductible Escrow Account”) and established pursuant to the terms of the Escrow Agreement. The Deductible Escrow Account will be maintained separately from other funds held by the Escrow Agent to satisfy the Stockholders’ reimbursement obligations pursuant to Section 6.08(b) hereof. The Deductible Escrow Amount shall be held in trust by the Escrow Agent for a period of twelve (12) months and shall be released in accordance with the terms thereof.
(e) At the Closing, Buyer will pay, or will cause Merger Sub to pay, to the Representative, the Representative Holdback Amount, by wire transfer of immediately available funds to an account designated by the Representative at least two (2) Business Days prior to the Closing Date.
(f) At the Closing, Buyer will pay, or will cause Merger Sub to pay, on behalf of the Company and its Subsidiaries, all Estimated Transaction Expenses Payoff Instructions”). The to such Persons as they are owed by wire transfer of immediately available funds to accounts designated by the Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment at least two (2) Business Days prior to the CIT Loan Agreement Closing Date.
(g) At the Closing, Buyer will pay, or will cause Merger Sub to permit pay, on behalf of the Company and its Subsidiaries, all amounts thereunder required to remain outstandingbe paid under the Payoff Letters delivered pursuant to Section 5.08 in order to fully discharge the Indebtedness for Borrowed Money owed to the Persons thereunder, by wire transfer of immediately available funds to the accounts designated in such Payoff Letters.
Appears in 1 contract
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of pay or cause to be paid the Company by wire transfer of immediately available funds following amounts:
(xi) Parent shall pay or cause to CIT Northbridge Credit LLC as agent for the lenders be paid to each payee under the CIT Loan AgreementAgreements, to an account designated by such payee in writing, the amount equal to the lesser of the Available Closing Expense Amount and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in such payee’s Pay-Off Letter (collectively, the Transaction Expenses Payoff Instructions, sum of such Person’s pro rata share of Debt amounts for all such payees being hereinafter referred to as the Available Closing Advisory Expense “Debt Pay-Off Amount”);
(ii) Parent shall deposit or cause to be deposited the Escrow Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇Supplemental Escrow Amount, the ▇▇▇▇▇▇▇ LLPEscrow Amount and the Mexico Lawsuit Escrow Amount with the Escrow Agent;
(iii) Parent shall pay or cause to be paid to the Representative the Representative Holdback;
(iv) Parent shall pay or cause to be paid all Company Transaction Costs that remain outstanding as of the Closing Date to such account or accounts as are designated by the Company in accordance with Section 4.1 (collectively, the sum of such payments for all payees of Company Transaction Costs being hereinafter referred to as the “Paid Company Transaction Costs”);
(v) Parent shall pay or cause to be paid, in a single lump sum payment, to each employee who is employed by the Company as of 5:00 p.m. on the date immediately preceding the Closing Date, the amount of the Employee Retention Payments set forth opposite such employee’s name on Company Disclosure Schedule 1.1 in the column entitled “Closing Retention Payment Amount”, net of any applicable withholding Taxes;
(vi) Parent shall pay or cause to be paid to each Stockholder that delivers a completed and duly executed a letter of transmittal in the form attached hereto as Exhibit E (each, a “Letter of Transmittal”) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable all applicable Certificates for cancellation to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than least two (2) Business Days prior to the Closing Date (i) Date, an amount to be set forth on the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating Closing Capitalization Schedule equal to the CIT Loan Agreement upon receipt of the amount indicated in sum of:
(A) such payoff letter (the “Debt Payoff Letter”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list Stockholder’s Applicable Percentage of the Closing Transaction Expenses owed Common Merger Consideration; plus
(B) with respect to each such Stockholder holding Outstanding Series A Preferred Shares, the product of the Series A Liquidation Preference multiplied by the Target Companiesnumber of Outstanding Series A Preferred Shares held by such Stockholder; plus
(C) with respect to each such Stockholder holding Outstanding Series B Preferred Shares, including the identity product of the Series B Liquidation Preference multiplied by the number of Outstanding Series B Preferred Shares held by such Stockholder; and
(vii) Parent shall pay or cause to be paid to each payeeOptionholder that delivers a completed and duly executed Option Surrender Agreement in the form attached hereto as Exhibit F (each, dollar amounts owed, bank wire instructions and any other information necessary an “Option Surrender Agreement”) to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment prior to the CIT Loan Agreement Closing Date, an amount to permit be set forth on the amounts thereunder Closing Capitalization Schedule equal to remain outstandingsuch Optionholder’s Applicable Percentage of the Closing Common Merger Consideration. All of the forgoing payments shall be made by wire transfer of immediately available funds, except for those payment identified in Sections 2.10(a)(v) and (vii), which shall be delivered by Parent to Payroll Agent and distributed to such recipients by the Payroll Agent in accordance with Section 2.10(c).
Appears in 1 contract
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) At least two business days prior to the Closing Date, the Company shall deliver to Purchaser a statement (the “Pre-Closing Statement”), in form and substance satisfactory to Purchaser, setting forth the Company’s good faith estimate determination of the amount payable Purchase Price, including the amounts as of immediately prior to the holder Closing of the Company Closing Debt, all accrued but unpaid Taxes of the Company and the Seller Transaction Expenses.
(b) Subject to the satisfaction of all of the conditions set forth in Section 2.2, at the Closing, Purchaser shall pay the Purchase Price as set forth in the Pre-Closing Statement to Seller or such other Persons as indicated below:
(i) an amount equal to the sum of the Company Closing Debt, all accrued but unpaid Taxes and the Seller Transaction Expenses set forth on the Pre-Closing Statement shall be withheld by Purchaser and used by Purchaser to pay, on behalf of the Company, (A) such Company Closing Debt outstanding under and Seller Transaction Expenses in accordance with payment instructions (and with respect to the CIT Loan Agreement Company Closing Debt, as set forth in a Payoff Letter) delivered by the Company to Purchaser before the Closing or, if not before the Closing, as soon as reasonably practicable thereafter and (B) such accrued but unpaid Taxes in accordance with applicable Law;
(ii) an amount equal to $3,912,000 (the “Escrow Amount”) shall be deposited into an escrow account (the “Escrow Account”) with ▇▇▇▇▇ Fargo Bank, National Association (together with its successors and permitted assigns, the “Escrow Agent”) for and on behalf of Seller, to be invested and distributed by the Escrow Agent pursuant to the terms and conditions of an escrow agreement to be entered into as of the Closing by and among Purchaser, Seller and the Escrow Agent (b) an itemized list of all Transaction Expenses owed by as amended, modified or supplemented from time to time in accordance with the Target Companies terms thereof, the “Escrow Agreement”), which shall serve as security for Seller’s performance of the Closingindemnification and other agreements, including covenants and obligations of Seller under this Agreement, any Related Agreement or otherwise; and
(iii) the identity of each payee and the Company’s good faith estimate remainder of the amount Purchase Price shall be delivered to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of the Company Seller by wire transfer of immediately available funds (x) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, an amount equal to the lesser of the Available Closing Expense Amount and the Closing Debt Amount bank account or accounts designated in writing by Seller (unless Parent and CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement otherwise agree to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of the Closing Transaction Expenses, as specified in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto which designation shall be obligations of the Surviving Corporation and shall be paid occur at Closing to the extent of Available Cash. No less than least two (2) Business Days business days prior to the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”Date), and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstanding.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver pay or shall cause to be paid, on behalf of the Company, to the accounts designated in any Payoff Letters (which such Payoff Letters shall be delivered by the Company at the Closing), by wire transfer of immediately available funds (x) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreementfunds, an amount equal to the lesser that portion of the Available Closing Expense Amount and Company Debt owing to the Closing Debt lender parties to the Credit Facility in accordance with the applicable Payoff Letter. At the Closing, (i) Parent shall pay or cause to be paid, on behalf of the Reporting Subsidiary, to the Trustee and/or a depositary under the Reporting Subsidiary Senior Notes Tender Offer, as applicable, funds in an amount equal to (x) the Reporting Subsidiary Senior Notes Tender Amount (unless Parent and CIT Northbridge Credit LLC as agent for if the lenders under Company elects to make the CIT Loan Agreement otherwise agree Reporting Subsidiary Senior Notes Tender Offer pursuant to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated herebySection 6.14), and (y) an amount necessary for the Reporting Subsidiary to redeem all of the Reporting Subsidiary Senior Notes on the redemption date (after giving effect to any purchases of Reporting Subsidiary Senior Notes on the Closing Date pursuant to the Reporting Subsidiary Senior Notes Tender Offer, if applicable), and (ii) with respect to any Reporting Subsidiary Senior Notes that will remain outstanding after the Closing Date, the Reporting Subsidiary shall deliver to the Trustee (A) an officer’s certificate stating that, at or after the Closing, the Reporting Subsidiary shall, or shall have caused the Trustee to, mail or cause to be mailed an irrevocable redemption notice in accordance with the Reporting Subsidiary Indenture to each Person who is owed a portion holder of the Closing Transaction Expensesoutstanding Reporting Subsidiary Senior Notes, as specified in stating that the Transaction Expenses Payoff Instructions, such Person’s pro rata share Reporting Subsidiary intends to irrevocably call all of the Available Closing Advisory Expense Amountoutstanding Reporting Subsidiary Senior Notes for redemption, subject to on a maximum redemption date no later than thirty (30) days after the Closing, and (B) an officer’s certificate of the GDC Cap Amount Reporting Subsidiary and opinion of counsel, in each case in accordance with Section 11.01 of the Reporting Subsidiary Indenture, to effect the satisfaction and discharge of the Reporting Subsidiary Senior Notes in accordance with the Reporting Subsidiary Indenture.
(in b) At the Closing, Parent shall pay, or cause to be paid, with respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) to each Company Stockholder who shall have delivered to the Company (and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CapitalCompany shall deliver to Parent), Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than least two (2) Business Days prior to the Closing Date a completed letter of transmittal substantially in the form of Exhibit B hereto (“Letter of Transmittal”) and certificate(s) representing the Common Shares (other than the Rollover Shares and subject to Section 3.5(g) (Lost Certificates)) held by such Company Stockholder, an amount equal to the product of the number of Common Shares (other than the Rollover Shares) held by such Company Stockholder and the Closing Date Per Share Cash Merger Consideration, which amount shall be payable by wire transfer of immediately available funds on the Closing Date to the account designated in such Company Stockholder’s Letter of Transmittal.
(c) At the Closing, Parent shall pay, or cause to be paid, to the Company, for the benefit of and for payment to each Company Optionholder in accordance with normal payroll practices, by wire transfer of immediately available funds to one or more accounts designated by the Company to Parent at least two (2) Business Days prior to the Closing Date, the aggregate amount of all In-the-Money Option Cancellation Payments. Promptly (but in no event later than the next regularly scheduled payroll date) following the Closing, Parent shall cause the Surviving Corporation to pay to the Company Optionholders, in consideration of the cancellation of each In-the-Money Option held by such Company Optionholder immediately prior to the Effective Time, the applicable In-the-Money Option Cancellation Payment, less any required withholding Taxes and without interest thereon.
(d) At the Closing, Parent shall pay, or cause the Company to pay, by wire transfer of immediately available funds, the portion of the Estimated Company Transaction Expenses Amount (together with the Initial Transaction Expenses) to the applicable recipients thereof as set forth on the Estimated Closing Statement; provided that any recipient of such payment in excess of $100,000 shall have delivered a final invoice to the Company; provided, further, that the Performance Transaction Bonus shall be deposited by Parent in accordance with Section 3.5(i) (Closing Payments) and distributed in accordance with Section 3.8(b) (Post-Closing Matters).
(e) At the Closing, Parent shall deliver, or cause to be delivered, to the Escrow Agent, by wire transfer of immediately available funds, the Escrow Amount, for the Escrow Agent to hold in an account (the “Escrow Account”) and disburse solely in accordance with the terms of an escrow agreement to be executed at the Closing by Parent, the Escrow Agent and the Representative in the form attached hereto as Exhibit C (the “Escrow Agreement”).
(f) At the Closing, Parent shall deposit, or cause to be deposited, by wire transfer of immediately available funds to an account designated in writing by the Representative at least two (2) Business Days prior to the Closing Date, the Representative Holdback Amount with the Representative. The Representative Holdback Amount will be used to pay costs, fees and expenses incurred by or for the benefit of the Company Securityholders on or after the Closing Date and shall be paid or distributed at the direction of the Representative as provided in the Letter of Transmittal and in accordance with Section 10.15 (Representative).
(g) In the event that any certificates representing Common Shares have been lost, stolen or destroyed, upon the making of a customary affidavit of that fact by the Company Stockholder claiming such certificate to be lost, stolen or destroyed, the Surviving Corporation will pay, in exchange for the Common Shares represented by such lost, stolen or destroyed certificate, the Final Per Share Merger Consideration and all other amounts otherwise payable hereunder.
(h) Any remaining cash unclaimed by holders of Common Shares as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Authority shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.
(i) At the Closing, Parent shall deposit, or cause to be deposited, by wire transfer of immediately available funds to an account designated in writing by the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating at least two (2) Business Days prior to the CIT Loan Agreement upon receipt Closing Date, $1,000,000 in respect of the Performance Transaction Bonus, if any, which amount indicated in such payoff letter (the “Debt Payoff Letter”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed subsequently be distributable by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment Surviving Corporation in full thereof accordance with Section 3.8(b) (the “Transaction Expenses Payoff Instructions”Post-Closing Matters). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstanding.
Appears in 1 contract
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) At the Company’s good faith estimate of Closing:
(i) only if a Debt Merger Notice has been timely delivered and if the amount payable to the holder of Debt outstanding under the CIT Loan Agreement Financing is funded in full as of the date that the Closing and (b) an itemized list of all Transaction Expenses owed by is required to occur pursuant to Section 2.1, then immediately following the Target Companies as of the ClosingDebt Merger, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent shall deliver on behalf of the Company shall distribute to the Sellers an aggregate amount equal to the Cash Distribution Amount based on each Seller’s Pro Rata Portion, by wire transfer of immediately available funds to the account or accounts set forth in the Payment Spreadsheet;
(xii) Buyer shall pay to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreement, Sellers an aggregate amount equal to the lesser Funded Closing Consideration, by wire transfer of immediately available funds to the account or accounts set forth in the Payment Spreadsheet;
(iii) immediately following the Debt Merger if the Debt Financing is funded in full as of the Available date that the Closing Expense is required to occur pursuant to Section 2.1, the Company shall pay, or if the Debt Financing is not so funded, Buyer shall pay in accordance with the Payment Spreadsheet, to the Company’s lenders and other creditors referred to in the Estimated Company Closing Statement (as defined below), cash in amounts set forth in the Estimated Company Closing Statement with respect to any Indebtedness for Borrowed Money to be paid off at Closing, in each case in accordance with the applicable Payoff Letter;
(iv) immediately following the Debt Merger if the Debt Financing is funded in full as of the date that the Closing is required to occur pursuant to Section 2.1, the Company shall pay, or if the Debt Financing is not so funded, Buyer shall pay in accordance with the Payment Spreadsheet, to the payees of Company Transaction Expenses which are being paid as of the Closing as contemplated by the Estimated Company Closing Statement and in accordance with the Payment Spreadsheet (each as defined below), cash in amounts set forth in the Payment Spreadsheet by wire transfer of immediately available funds to the respective accounts set forth in the Payment Spreadsheet; and
(v) Buyer shall pay to the Sellers’ Representative the Sellers’ Representative Holdback Amount by wire transfer of immediately available funds to the account or accounts set forth on the Payment Spreadsheet.
(b) The Sellers and the Closing Debt Amount (unless Parent and CIT Northbridge Credit LLC as agent for Buyer agree that the lenders under the CIT Loan Agreement otherwise agree amounts referred to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated herebySections 1.7(a)(i), 1.7(a)(ii) and (y2.4(f) and any other amounts due or owing to each Person who is owed a the Sellers under this Agreement shall be paid to the applicable Seller based on such Seller’s pro rata portion of the Closing Transaction Expenses, Transferred Securities as specified in identified on Exhibit A (the Transaction Expenses Payoff Instructions, such Person’s pro rata share of the Available Closing Advisory Expense Amount, subject to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP“Pro Rata Portion”) and the HL Cap Amount Payment Spreadsheet. Each Seller and the Buyer agrees that any amount due or owing by the Sellers under this Agreement, including under Section 2.4(f), will be made on a several (in respect and not joint) basis based on each Seller’s Pro Rata Portion. For the avoidance of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capitaldoubt, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) sentence shall not limit in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less than two (2) Business Days prior to the Closing Date (i) the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release of all Encumbrances relating to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”), and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement to permit the amounts thereunder to remain outstandingway TAO Parent’s Shortfall Guaranty.
Appears in 1 contract
Sources: Transaction Agreement (Madison Square Garden Entertainment Corp.)
Closing Payments. Part 1.11 of the Company Disclosure Schedule sets forth: (a) the Company’s good faith estimate of the amount payable to the holder of Debt outstanding under the CIT Loan Agreement as of the Closing and (b) an itemized list of all Transaction Expenses owed by the Target Companies as of the Closing, including the identity of each payee and the Company’s good faith estimate of the amount to be owed as of the Closing. At the Closing, Parent Purchaser shall, or shall deliver cause the Merger Sub to pay on behalf of the Company Company, to such accounts designated in any Payoff Letter with respect to the Credit Facility delivered at least two (2) Business Days prior to Closing, the amount(s) set forth therein.
(b) At the Closing, Purchaser shall, or shall cause the Merger Sub to, pay out of the Closing Date Class A Merger Consideration to the Paying Agent, by wire transfer of immediately available funds (x) to CIT Northbridge Credit LLC as agent for the lenders under the CIT Loan Agreementfunds, an amount equal to the lesser sum of (i) the Available Aggregate Common Stock Closing Expense Payment Amount and plus (ii) the Aggregate Preferred Stock Closing Debt Payment Amount (unless Parent and CIT Northbridge Credit LLC as agent for payable to the lenders under the CIT Loan Agreement otherwise agree Stockholders entitled to amend the CIT Loan Agreement such that no amounts are due under the CIT Loan Agreement in connection with the consummation of the transactions contemplated hereby), and (y) to each Person who is owed a portion of such amount, as set forth in the Pre-Closing Statement, to the account designated to Purchaser by the Paying Agent no later than two (2) Business Days prior to the Closing.
(c) At the Closing, Purchaser shall, or shall cause the Merger Sub to, pay the Class B Merger Consideration and the Class C Merger Consideration, in each case, by wire transfer of immediately available funds, to the accounts designated to Purchaser by the Company no later than two (2) Business Days prior to the Closing.
(d) At the Closing, Purchaser shall, or shall cause the Merger Sub to, pay out of the Closing Transaction ExpensesDate Class A Merger Consideration to the Company, by wire transfer of immediately available funds, an amount equal to the Aggregate Option Closing Payment Amount payable to the Optionholders entitled to a portion of such amount, as specified set forth in the Transaction Expenses Payoff Instructions, such Person’s pro rata share of Pre-Closing Statement to an account designated by the Available Closing Advisory Expense Amount, subject Company to a maximum of the GDC Cap Amount (in respect of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) and the HL Cap Amount (in respect of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc.). Any amounts remaining payable to any of the Persons described in the foregoing clause (y) in excess of the amounts funded by Parent pursuant hereto shall be obligations of the Surviving Corporation and shall be paid at Closing to the extent of Available Cash. No less Purchaser no later than two (2) Business Days prior to the Closing Date.
(e) At the Closing, Purchaser shall pay, or shall cause the Surviving Company to pay, by wire transfer of immediately available funds, the Estimated Transaction Expenses to the account(s) designated by the Company on the Pre-Closing Statement.
(f) At the Closing, Purchaser shall, or shall cause the Merger Sub to, deposit out of the Closing Date Class A Merger Consideration, by wire transfer of immediately available funds, an amount equal to the Adjustment Escrow Amount, to be held in the Adjustment Escrow Account in accordance with the terms of the Escrow Agreement.
(ig) At the Closing, Purchaser shall, or shall cause the Merger Sub to, transfer, out of the Closing Date Class A Merger Consideration, by wire transfer of immediately available funds, an amount equal to the Stockholder Representative Expense Amount, to the Stockholder Representative Expense Account as designated by the Stockholder Representative on the Pre- Closing Statement, to be held, used and disbursed by the Stockholder Representative in accordance with the terms of Section 11.15.
(h) At the Closing, the Company shall obtain and provide to Parent a payoff letter in customary form and which shall contemplate the termination and release transfer, by wire transfer of all Encumbrances relating immediately available funds, an amount equal to the CIT Loan Agreement upon receipt of the amount indicated in such payoff letter (the “Debt Payoff Letter”)Special Escrow Amount, and (ii) the Company shall provide to Parent documentation setting forth an itemized list of the Closing Transaction Expenses owed by the Target Companies, including the identity of each payee, dollar amounts owed, bank wire instructions and any other information necessary to effect the final payment in full thereof (the “Transaction Expenses Payoff Instructions”). The Company acknowledges and agrees that neither Parent nor Purchaser has any obligation to pursue any amendment to the CIT Loan Agreement Special Escrow Account, to permit be held, used and disbursed by Purchaser in accordance with the amounts thereunder to remain outstandingterms of Article 10.
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Sources: Merger Agreement (Deluxe Corp)