Deliveries at Closing (a) At or prior to the Closing, the Company, TopCo, or the Members’ Representative shall deliver, or cause to be delivered, to Buyer:
(i) evidence of the issuance of the Purchased Units in a form reasonably acceptable to Buyer, vesting all right, title and interest in such Purchased Units in Buyer;
(ii) the Transaction Documents executed by the Company, TopCo, and the Members, as applicable, and all other agreements, documents, instruments or certificates required to be delivered by the Company, TopCo, and the Members at or prior to the Closing pursuant to Article VII;
(iii) the Escrow Agreement, duly executed by the Members’ Representative and TopCo;
(iv) the Payment Agent Agreement, duly executed by the Members’ Representative, TopCo, and the Payment Agent;
(v) the Company Closing Certificate;
(vi) written certification by the Chief Executive Officer of each of the Company and Pearl of the closing of the acquisition of the assets of Pearl in accordance with the Pearl Acquisition Agreement on the Closing Date (such acquisition, the “Pearl Acquisition”), including, without limitation, the execution and delivery of all documents required for closing and the satisfaction of all other conditions to closing subject only to funding of the Pearl Purchase Price on the Closing Date pursuant to this Agreement;
(vii) the Payoff Letters and evidence in form satisfactory to Buyer that all Liens relating to the Company and Company Assets shall have been released in full, other than Permitted Liens;
(viii) a written acknowledgement by TopCo in form satisfactory to Buyer that the Company Note is to be satisfied in full upon the payment of the Purchase Price;
(ix) an IRS Form W-9 (or other proof of exemption from withholding under Section 1445 and 1446(f) of the Code in connection with the Transactions reasonably satisfactory to Buyer) validly executed by each Member and TopCo;
(x) evidence reasonably satisfactory to Buyer that all security interests and other Liens, other than Permitted Liens, in any assets of the Company have been released prior to or shall be released simultaneously with the Closing;
(xi) evidence of termination of the agreements listed on Schedule 7.9;
(xii) the deliverables of the Company and Members set forth in Article VII;
(xiii) completion of the RSM Xxxxxxxx-Xxxxx audit and delivery of the RSM report;
(xiv) a finalized forgiveness application in the form prescribed by the PPP Lender (the “PPP Forgiveness Application”) with all supporting documentation including, but not limited to, evidence of each of the amounts used in the forgiveness amount calculation therein, together with a certificate executed by the Chief Executive Officer of the Company, in form and substance reasonably satisfactory to Purchaser, certifying that the PPP Loan Forgiveness Application was submitted to the PPP Lender and attaching a copy of each of the PPP Forgiveness Application and the resolutions of the Managers of the Company approving the PPP Forgiveness Application (such resolutions the “PPP Forgiveness Board Authorization”).
(b) At or prior to the Closing, Buyer shall deliver or cause to be delivered the following:
(i) by wire transfer of immediately available funds to the account of the Payment Agent on behalf of the Company for further payment to the Members on behalf of TopCo pursuant to the Redemption, cash in an amount equal to the Estimated Cash Consideration, less the sum of (y) the Escrow Funds, plus (z) the Representative Expense Fund (the “Closing Cash Consideration”), and less the Pearl Purchase Price;
(ii) to the Exchange Agent the Buyer Shares for the account of the Company for immediate distribution to TopCo in connection with the Company Note Repayment, and then to the Members pursuant to the Redemptions (the “Closing Buyer Shares Consideration” and, together with the Closing Cash Consideration, the “Closing Payment”), which Buyer Shares will be delivered in book entry (electronic form);
(iii) cash in an amount equal to the Pearl Purchase Price to Pearl on behalf of the Company, by wire transfer of immediately available funds as set forth in the Initial Consideration Spreadsheet;
(iv) cash in an amount equal to the Representative Expense Fund to the Members’ Representative, by wire transfer of immediately available funds as set forth in the Initial Consideration Spreadsheet;
(v) cash in an amount equal to the Company Transaction Expenses set forth in the Initial Consideration Spreadsheet, by wire transfer of immediately available funds, to each of the payees set forth in such Initial Consideration Spreadsheet;
(vi) cash in an amount equal to the Closing Indebtedness Amount set forth in the Initial Consideration Spreadsheet each of the payees set forth in such Initial Consideration Spreadsheet, to the extent applicable;
(vii) cash in an amount equal to the PPP Loan Escrow Amount, by wire transfer of immediately available funds, to the PPP Lender as set forth in the Initial Consideration Spreadsheet;
(viii) the Buyer Closing Certificate to the Members’ Representative;
(ix) the Escrow Agreement, duly executed by Buyer and the Escrow Agent, to the Members’ Representative and TopCo;
(x) the Payment Agent Agreement, duly executed by Buyer, to the Members’ Representative; and
(xi) to the Members’ Representative and TopCo, the Transaction Documents executed by Buyer, as applicable, including all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Article VIII.
Payments at Closing At the Closing:
(a) Company shall pay, through its payroll system, (i) all Company Severance Expenses that are unpaid as of the Closing (the “Closing Company Severance Expenses), (ii) all Parent Severance Expenses that are known and unpaid as of the Closing (the “Closing Parent Severance Expenses”) and (iii) all change in control payments to any current or former employee, consultant or contractor of Company that are unpaid as of the Closing that do not constitute Closing Company Severance Expenses or Closing Parent Severance Expenses (the “Closing Company CIC Payments”), in each case, as specified in the Closing Allocation Schedule;
(b) Parent shall, on behalf of Company, pay to such account or accounts as Company specifies in the Closing Statement the aggregate amount of all Estimated Third Party Expenses as of the Closing by wire transfer of immediately available funds;
(c) Parent shall, on behalf of Company, pay to the applicable creditors, by wire transfer of immediately available funds, the amount of Indebtedness of Company set forth in the Payoff Letters with respect to such lender delivered by Company in accordance with Section 7.2(e);
(d) Parent shall deliver to the Escrow Agent, by wire transfer of immediately available funds, an amount equal to the Escrow Amount;
(e) Parent shall pay to the Stockholder Representative Fund, by wire transfer of immediately available funds, an amount equal to the Stockholder Representative Fund Amount; and
(f) Parent shall pay to (i) the Depository Agent by wire transfer of immediately available funds, an amount equal to the Initial Merger Consideration (less the applicable portion of the Initial Merger Consideration constituting Employee Option Consideration) to pay the amounts contemplated by Section 1.6 hereof; and (ii) Company by wire transfer of immediately funds the applicable portion of the Initial Merger Consideration constituting Employee Option Consideration pursuant to Section 1.6, which shall be distributed to the Company Option Holders through the Surviving Corporation’s payroll system on a special payroll run on the Closing Date.
Deliveries at the Closing At the Closing, (i) Seller will deliver to Purchaser the various agreements, certificates, instruments, and documents referred to in Section 8.1 below; (ii) Purchaser will deliver to Seller the various certificates, instruments, and documents referred to in Section 8.2 below; (iii) Seller, and Intervener, where applicable, will execute, acknowledge (if appropriate), and/or deliver to Purchaser (A) a xxxx of sale substantially in the form attached hereto as Exhibit “A”, (B) a real estate limited warranty deed executed by 1245 Properties in substantially the form attached hereto as Exhibit “F” (C) an assignment of Intellectual Property rights in substantially the forms attached hereto as Exhibit “B”, (D) a counterpart of the shared services agreement in substantially the form attached hereto as Exhibit “C” (the “Shared Services Agreement”), (E) a Seller non-compete and non-solicitation agreement in substantially the form attached hereto as Exhibit “D”, (F) a counterpart to an assignment and assumption agreement in substantially the form attached hereto as Exhibit “E” (the “Assignment and Assumption”), (G) an assignment of each Real Property Lease in substantially the form of Exhibit “O” attached hereto, (H) to the extent required under Section 6.2(b), a counterpart to the management agreement in substantially the form attached hereto as Exhibit “R” and (I) such other instruments of sale, transfer, conveyance, and assignment as Purchaser and its counsel reasonably may request, including assignments of all domain names involved; (iv) Purchaser will execute, acknowledge (if appropriate), and deliver to Seller (A) a counterpart of the Assignment and Assumption, (B) a counterpart of the Shared Services Agreement, (C) to the extent required under Section 6.2(b), a counterpart to the management agreement in substantially the form attached hereto as Exhibit “R” and (D) such other instruments of assumption as Seller and its counsel reasonably may request; and (v) Purchaser will deliver to Seller the Purchase Price,
Additional Deposits and Payments (a) On the date specified in Section 3.6 hereof or Section 3.4 of the Purchase Agreement, as applicable, the Servicer and Santander Consumer, as applicable, will deposit into the Collection Account the aggregate Repurchase Price with respect to Repurchased Receivables purchased or repurchased by the Servicer or Santander Consumer, respectively, on such date, and on the Payment Date specified in Section 8.1, the Servicer will deposit into the Collection Account all amounts, if any, to be paid under Section 8.1. All such deposits with respect to any such date which is a Payment Date will be made, in immediately available funds by noon, New York City time, on the Business Day immediately preceding such Payment Date related to such Collection Period.
(b) The Indenture Trustee will, on or before the Payment Date relating to each Collection Period, withdraw from the Reserve Account the Reserve Account Draw Amount and deposit such amounts in the Collection Account in accordance with the Servicer’s Certificate.
(c) The Indenture Trustee will, on each Payment Date, withdraw from the Reserve Account (i) all investment earnings (net of investment losses and expenses on funds on deposit in the Reserve Account during the related Collection Period) and distribute such investment earnings to the Servicer and (ii) the Reserve Account Excess Amount, if any, for such Payment Date and deposit such amount in the Collection Account.
(d) On the Closing Date the Seller will cause the amount available in the Reserve Account to equal the Initial Reserve Account Deposit Amount through a cash deposit from proceeds of the sale of the Notes.
(e) On or prior to the third Business Day preceding each Determination Date, the Relevant Trustee shall send a written notice, or make such information available electronically, to the Servicer stating the amount of investment income earned, if any, during the related Collection Period on each Trust Account maintained at the Relevant Trustee.
Price and Payments 4.1. Prices are as stated in NEVION’s acknowledgement. All quotations are on ex works (factory) terms (as defined in INCOTERMS ®2010) and are exclusive of carriage, insurance, VAT or other charges and duties and also exclude any applicable fees or royalties. The price will include the licence fee for the Customer’s right to use any Software where a software licence is included with the Equipment unless otherwise stated in a quote or licence agreement.
4.2. The Customer is responsible for arranging transport and providing NEVION with timeous transport instructions.
4.3. Unless expressly stated in the order confirmation, receipt of payment in full in cleared funds is a condition precedent to NEVION’s obligation to ship Equipment or supply Services under a Contract.
4.4. Where payment terms require a letter of credit to be issued in favour of NEVION, the Customer shall arrange for an unconditional irrevocable letter of credit to be issued, and if required by NEVION, confirmed, by a first class bank or financial institution approved by NEVION and otherwise on terms as NEVION shall specify.
4.5. Where credit terms have been agreed, should the Customer fail to make payment in full by the due date, without prejudice to any other right or remedy available to NEVION, NEVION may:
(a) terminate the Contract or suspend any further deliveries (whether under the same Contract or not) in accordance with condition 11;
(b) appropriate any payment made by the Customer as it sees fit;
(c) charge a monthly fee of 1.5%;
(d) charge storage for any undelivered Equipment at its current rates;
Seller’s Deliveries at Closing At the Closing and unless otherwise waived in writing by the Buyer, the Sellers shall deliver to the Buyer the following, each of which shall be in a form reasonably acceptable to the Buyer (collectively, "Sellers' Closing Documents"):
(a) The Bill of Sale, duly executed and notarized by XeQute;
(b) All Third Party Consents and the release of all Liens on the Assets by the Lien Holders, together with the Instruments of Assignment and Assumption, duly executed by XeQute;
(c) The Sellers' Officer's Certificates, duly executed on behalf of Vertex and XeQute;
(d) Certified copies of any resolutions required to duly authorize and approve the Contemplated Transaction and the execution, performance and delivery of this Agreement, Sellers' Closing Documents and of all of the other documents to be executed and performed by the Sellers in connection with the Contemplated Transaction;
(e) The duly executed opinion of the Sellers' counsel, dated as of the Closing Date and addressed to the Buyer ("Sellers' Opinion"), in form and substance as set forth in the form annexed to this Agreement as Exhibit C and subject to the standard exceptions set forth in Sellers' Opinion. In rendering Sellers' Opinion, the Sellers' counsel may rely upon certificates of governmental officials and may place reasonable reliance upon certificates of the Sellers; and
(f) Such other instrument and documents, as the Buyer and the Buyer's counsel reasonably deem necessary or desirable in order to consummate the Contemplated Transaction, including without limitation evidence of the Sellers having taken all steps required to be taken by them prior to or at Closing under Article VI and Article VII hereof, including evidence of having obtained directors and officers liability insurance with the coverage described therein and paid the premium for same at the Closing.
Prices and Payments 1. The price listed by the Contractor or otherwise the price commonly charged by the Contractor for the respective service is decisive, plus statutory value-added tax insofar as such is applicable. In case of transnational services, any possibly applicable taxes, fees, customs fees, and other charges (of any kind) incurred for the transnational service shall be borne by the Principal.
2. If, within the scope of contracts for the performance of a continuing obligation and long-term contracts, the Contractor's prime costs increase and such increase is not within the Contractor's own scope of responsibility, the Contractor is authorized to an appropriate price increase commensurate with the increase of its prime costs; if the Principal does not consent to such price increase it is authorized to terminate the Agreement within four weeks after receipt of such notification of a price increase; otherwise, the increase is deemed to be mutually agreed upon. A right to a price increase pursuant to this provision does not exist if the Principal is a Consumer.
3. The Principal shall pay the remuneration owed without any cash discounts, free of charge to the Contractor, and within two weeks after receipt of the invoice, to the bank account stated by the Contractor. Credit entry at the Contractor's account is decisive for the timeliness of the payment. The Contractor reserves the right to request appropriate installment payments and appropriate advance payments.
4. If the Agreement is based on a cost estimate, and if it turns out that the costs will be significantly higher than the amount estimated vis-a-vis the Principal, then the Contractor will inform the Principal of such in text form. In this case the Principal is authorized to terminate the Agreement in writing, within two weeks after receipt of such notification. In the event of a termination, the Contractor is authorized to request partial remuneration commensurate with the services already provided. Furthermore, the Contractor is authorized to request compensation for any expenses not included in the remuneration but incurred due to the provision of services.
5. If the Principal owes interest and expenses in addition to a possibly existing principal claim, any payment by the Principal that does not fully redeem the total sum will first be credited against expenses, secondly against interest, and lastly against the principal claim.
6. The Principal is entitled to offset and retention rights only if its counterclaims are legally ascertained, undisputed, or acknowledged in writing by the Contractor. This limitation does not apply to the Principal's claims for defects arising from the same contractual relation as the Contractor's payment claim. If the contract partner is a Consumer, then in contrast to clause 1, such contract partner is on principle entitled to unlimited retention rights for claims arising from the same contractual relation.
7. If, after conclusion of the Agreement, it becomes clear that the Contractor's claims vis-a-vis the Principal are at risk due to the Principal's lack of ability to perform, the Contractor is authorized to perform outstanding services only against advance payment or provision of a security as well as settlement of possibly still outstanding receivables for partial services already provided and arising from the Agreement, and - after unsuccessful expiration of a grace period - is authorized to withdraw from the Agreement; No. 4 clause 3 of this provision applies accordingly.
8. In case of payment default, the Principal owes default interest in the amount of 9 percentage points above the base interest rate if the Principal is an Entrepreneur; in the amount of 5 percentage points above the base interest rate if the Principal is a Consumer. The Contractor is entitled to assert further claims if it can prove higher damage to the Principal. The Contractor is furthermore entitled to charge a flat rate of € 40.00 if the Principal is an Entrepreneur. This shall also apply if the payment default relates to any kind of an installment. In case the Contractor may claim further compensation for damage, the flat rate has to be credited against such claims, . If the Principal is a Consumer the Contractor is entitled to charge a flat rate of € 5.00 per reminder. The Principal is entitled to provide evidence that the Contractor did not incur any damage or incurred significantly lower damage.
Disbursements and Payments Each disbursement by the Bank and each payment by the Borrower will be:
(a) made at the Bank's branch (or other location) selected by the Bank from time to time;
(b) made for the account of the Bank's branch selected by the Bank from time to time;
(c) made in immediately available funds, or such other type of funds selected by the Bank;
(d) evidenced by records kept by the Bank. In addition, the Bank may, at its discretion, require the Borrower to sign one or more promissory notes.
Deposits and Payments A $1,000 per person deposit is required with your reservation. A second deposit in the amount of $2,000 is due 11/14/24. Final payment is due 2/13/25. All payments can be made by credit card or check.
Payment at Closing The Borrower shall have paid (A) to the Administrative Agent, the Arrangers and the Lenders the fees set forth or referenced in Section 4.3 and any other accrued and unpaid fees or commissions due hereunder, (B) all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent accrued and unpaid prior to or on the Closing Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent) and (C) to any other Person such amount as may be due thereto in connection with the transactions contemplated hereby, including all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of any of the Loan Documents.
