Payment of the Purchase Price 4.2.1 At least three (3) Business Days prior to the Closing Date, Seller or Altor shall deliver to Buyers a statement that sets forth:
(a) its good faith and reasonable best estimates of:
(i) the Net Working Capital as of the Closing Date, as calculated and presented on Schedule 4.2.1(a)(i) attached hereto (the “Estimated Net Working Capital”); and
(ii) the Cash as of the Closing Date, as calculated and presented on Schedule 4.2.1(a)(ii) attached hereto (the “Estimated Cash”); and
(b) the allocation between the Altor Note and the SHB Note of the aggregate initial principal balance in the amount of USD 30 million less an amount equal to the difference between the Estimated Net Working Capital and the Normalized Net Working Capital on a USD by USD basis if the Estimated Net Working Capital is less than the Normalized Net Working Capital (the “Aggregate Initial Principal Balance”).
4.2.2 The cash purchase price to be paid by Buyers to Seller on Closing for the Transferred Shares (the “Cash Purchase Price”) shall be an amount in USD corresponding to the Preliminary Purchase Price
(a) less the sum of the Consideration Shares multiplied by the Applicable Ampco Stock Price; and
(b) less the Aggregate Initial Principal Balance of the Notes.
4.2.3 The amount to be repaid by Buyers to SHB on Closing as repayment on behalf of ÅAB of the outstanding principal, interest and other amounts due and owing with respect to the Existing Facilities (the “Bank Pay-Off Amount”) shall be an amount in USD corresponding to the Cash Amount
(a) plus an amount equal to the difference between the Estimated Net Working Capital and the Normalized Net Working Capital on a USD by USD basis if the Estimated Net Working Capital exceeds the Normalized Net Working Capital provided that such amount shall not exceed SEK 20,000,000;
(b) plus the Estimated Cash;
(c) less the Unpaid Transaction Expenses;
(d) less the Cash Purchase Price;
(e) less the lower of (i) the R&W Insurance Premium and (ii) USD 300,000; and
(f) plus any other amounts to be paid by Buyers to Seller pursuant to this Agreement.
4.2.4 The Bank Pay-Off Amount and the Aggregate Initial Principal Balance are adjusted in accordance with the provisions of Clause 8.
4.2.5 Any amounts to be paid by Buyers to Seller after Closing pursuant to this Agreement shall be added to the Bank Pay-Off Amount and be paid to SHB as compensation for cancellation of bank debt.
4.2.6 On the Closing Date, the Cash Purchase Price shall be paid by Buyer to SHB and the Converting Note and the Notes shall be issued by Buyer to SHB, in each case as repayment of bank debt on behalf of Seller and for the benefit of US Buyer, and the Bank Pay-Off Amount shall be paid by Buyer to SHB as repayment of bank debt on behalf of ÅAB and for the benefit of US Buyer.
4.2.7 For purposes of determining the Bank Pay-Off Amount pursuant to Clause 4.2.3 amounts in other currencies shall be translated into USD at the Exchange Rates as at four (4) Business Days prior to the Closing Date.
The Purchase Price If the sale of the Property is not subject to HST, Seller agrees to certify on or before (included in/in addition to) closing, that the sale of the Property is not subject to HST. Any HST on chattels, if applicable, is not included in the Purchase Price.
Purchase Price; Deposit (a) The purchase price for the Property is AND 00/100 DOLLARS ($ ) (the “Purchase Price”), payable as follows:
(i) TEN PERCENT (10%) of the Purchase Price (which is equal to $ ) (the “Initial Deposit”, and together with the Additional Deposit (as hereinafter defined), if any and to the extent delivered by Purchaser, collectively, the “Deposit”) shall, within five (5) business days after the Effective Date, be deposited by Purchaser with the Title Company (as hereinafter defined), as escrow agent (in such capacity, the “Escrow Agent”) by wire transfer of immediately available funds. Failure by Purchaser to timely deliver the Deposit in accordance with this Section 2(a)(i) shall constitute a material default by Purchaser hereunder and Seller shall be entitled to terminate this Agreement by written notice to Purchaser. The Deposit shall be refundable to Purchaser only to the extent expressly set forth in this Agreement. The Deposit shall be held in a non-interest-bearing, federally-insured account by Escrow Agent in accordance with this Agreement pending the consummation of the Settlement (as defined below). At Settlement, the Deposit shall be paid to Seller on account of the Purchase Price and credited to Purchaser. The giving of the Deposit hereunder shall not be considered to be xxxxxxx money.
(ii) Subject to the prorations and adjustments set forth in this Agreement, the balance of the Purchase Price shall be paid to Seller at Settlement by wire transfer of immediately available federal funds.
(b) If there is a dispute between Seller and Purchaser regarding whether the Deposit shall be returned to Purchaser or delivered to Seller, Escrow Agent shall have no obligation to either Seller or Purchaser with respect to the Deposit except to interplead (invoke a concursus of) the Deposit into an appropriate court of competent jurisdiction. Escrow Agent may act upon any instrument or other writing believed by Escrow Agent in good faith to be genuine and to be signed and presented by the proper person.
Purchase Price and Deposit 4.1 The total purchase price for all the Vessels is USD 342,000,000 (United States Dollars Three Hundred and Forty Two Million) (the “Purchase Price”).
4.2 The allocated purchase price for each of the Vessels is set out in Appendix 2 (each, an “Allocated Purchase Price”).
4.3 As security for the correct fulfilment of this Agreement Euronav shall pay on its own behalf and on behalf of the Acceding Buyers a deposit of 10% (ten per cent) of the Purchase Price, equal to USD 34,200,000 (United States Dollars Thirty Four Million Two Hundred Thousand) no later than 2 (two) Banking Days after the Effective Date (the “Deposit”). The Deposit shall be paid to the Escrow Bank no later than 2 (two) Banking Days after the Effective Date. This Deposit shall be placed as Escrow Funds with the Escrow Bank and held by it in an account in the name of the Sellers in accordance with the Escrow Agreement between the Sellers, the Buyers and the Escrow Bank attached hereto as Appendix 4 and the relevant part of the Deposit (being 10% (ten per cent) of the Allocated Purchase Price for that Vessel, each an “Allocated Deposit”) is to be released upon the Buyers and Sellers signing a protocol of delivery and acceptance in respect of that relevant Vessel or released as otherwise provided in this Agreement or the Escrow Agreement. Simultaneously with signing the protocol of delivery and acceptance the Sellers and the Buyers shall also be obliged to sign an Escrow Payment Letter under the Escrow Agreement thereby releasing the relevant Allocated Deposit. Interest on the Deposit, if any, shall be credited to the Buyers upon delivery of each Vessel by reference to the Allocated Deposit. Any fee charged for holding the Deposit shall be borne equally by the Sellers and the Buyers.
4.4 The remaining part of the Allocated Purchase Price (i.e. 90% (ninety per cent)) for a Vessel plus any other amount due under the relevant MOA shall be paid in full free of bank charges by way of conditional payments using SWIFT messages MT202 and MT199 to the Escrow Bank on delivery of the relevant Vessel or, subject to the consent of the Buyers’ financing bank, 1 (one) Banking Day prior to delivery.
4.5 When the Vessel is in every respect physically ready for delivery in accordance with the terms of the relevant MOA, the Sellers shall give the Buyers a written Notice of Readiness for delivery in accordance with the terms of this Agreement and the relevant MOA. The Buyers shall then take delivery of the Vessel promptly but not later than 3 (three) Banking Days after the date that the Notice of Readiness has been given. The Allocated Deposit shall be released from the Escrow Funds in accordance with Clause 4.3 and paid to the Sellers for the relevant Vessel, and the Buyers and Sellers shall jointly instruct the Escrow Bank to release this amount by sending the Escrow Payment Letter simultaneously with the release of the payment of the remainder of the Allocated Purchase Price by the Buyers.
4.6 The Allocated Purchase Price of each Vessel and any other amounts due from the Buyers to the Sellers under this Agreement or each MOA shall be paid by the Buyers to the Sellers in full without any set-off, counterclaim, deduction or withholding unless such right of set-off, counterclaim, deduction or withholding is specified in this Agreement or the MOA.
Purchase Price Payment The total Purchase Price for the Property is the amount of the successful bid for the parcel at public auction.
Purchase Price Payments (a) On each Payment Date, on the terms and subject to the conditions of this Agreement, the Initial Purchaser shall pay to KBK the Purchase Price for the Receivables and Related Assets to be purchased on such day by (i) making a cash payment to or at the direction of KBK to the extent that the Initial Purchaser has cash available to make such payment pursuant to SECTION 3.3, and (ii) automatically increasing the principal amount outstanding under the Purchaser Note issued to KBK by the amount of the excess, if any, of the Purchase Price to be paid to KBK for such Receivables and Related Assets OVER the amount of any payment made on such day pursuant to CLAUSE (I) next above.
(b) On each Payment Date, the Initial Purchaser shall reduce the Purchase Price payable to KBK for the Receivables and Related Assets that the Initial Purchaser is to purchase on such day by an amount (the "PURCHASE PRICE ADJUSTMENTS") equal to the difference between (i) the sum of (A) the Dilution Adjustment (as defined in SECTION 3.5(B)), if any, for the immediately preceding Business Day, PLUS (B) the Noncomplying Receivables Adjustment (as defined in SECTION 3.5(A)), if any, for the immediately preceding Business Day, MINUS (ii) the amount of any payments that the Initial Purchaser shall have received on the immediately preceding Business Day on account of Collections due with respect to Noncomplying Receivables that have been included in an Purchase Price Adjustment previously deducted or paid in accordance with this SECTION 3.1.
(c) If the Purchase Price Adjustments on any Payment Date exceed the Purchase Price payable by the Initial Purchaser to KBK on such day, then the principal amount of the Purchaser Note shall be automatically reduced by the amount of such excess; PROVIDED, that if the Purchaser Note has been reduced to zero, then KBK shall pay to the Initial Purchaser in cash the amount of such Purchase Price Adjustments on the next succeeding Business Day; and PROVIDED FURTHER, HOWEVER, that at any time (y) when a Liquidation Event or Unmatured Liquidation Event exists or (z) on or after the Purchase Termination Date, the amount of any such credit shall be paid by KBK to the Initial Purchaser by deposit in immediately available funds into the Collection Account for application by Servicer to the same extent as if Collections of the applicable Receivable in such amount had actually been received on such date.
Allocation of the Purchase Price (a) Within ninety (90) days after the final determination of the Final Purchase Price pursuant to Section 2.5, the Sellers will provide the Buyer with a statement (or statements) (the “Asset Acquisition Statement”) with the Sellers’ proposed allocation of the Final Purchase Price (plus any other amounts, including Assumed Liabilities, to the extent properly taken into account as consideration for applicable Tax purposes) among the Transferred Assets and, if applicable, the Ancillary Agreements and any other rights transferred hereunder or thereunder in accordance with Section 1060 of the Code (and any other applicable state, local or non-U.S. Law). The Buyer may, within thirty (30) days after receiving such Asset Acquisition Statement, propose to the Sellers in writing any changes to such Asset Acquisition Statement that are consistent with applicable Law (the “Allocation Notice of Objection”), and if the Buyer does not deliver such a Notice of Objection within such period, the Buyer shall be deemed to have accepted such proposed Asset Acquisition Statement and it shall become final and binding on the Parties. If the Buyer delivers a Notice of Objection, then the Buyer and the Sellers will endeavor in good faith to resolve any differences with respect to the Asset Acquisition Statement within thirty (30) days after the Sellers’ receipt of the Notice of Objection. If the Buyer and the Sellers are unable to resolve such differences, the matters in dispute shall be resolved by the Accounting Firm, which determination by such Accounting Firm shall be consistent with this Agreement. The fees, costs and expenses of the Accounting Firm shall be borne by the Buyer and the Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered.
(b) The Buyer and the Sellers agree that they shall each (and shall cause their respective Affiliates to) file all Tax Returns (including amended returns and claims for refunds) and information reports in a manner consistent with the Asset Acquisition Statement (as finalized pursuant to Section 2.6(a))); provided that nothing contained in this Section 2.6(b) shall prevent any Party (or their Affiliates) from settling, or require any of them to litigate any challenge, proposed deficiency, adjustment or other similar proceeding by any Governmental Authority with respect to the Asset Acquisition Statement. Upon any adjustment to the Purchase Price in connection with an indemnification claim made pursuant to Article 13, the allocation described in the Asset Acquisition Statement (as finalized pursuant to Section 2.6(a)) shall be subject to adjustment in a manner consistent with Section 2.6(a).
Aggregate Purchase Price (a) The aggregate cash amount to be paid by the Purchaser at the Closing shall be Three Hundred Twenty Million Dollars ($320,000,000) minus the sum of (A) the amount of Net Debt, (B) the aggregate amount of all Seller Transaction Expenses to the extent not paid prior to the Closing Date that are due and payable on the Closing Date and (C) the aggregate Stock Option Adjustment Amounts (the "Preliminary Purchase Price"); provided, however, one and one-half percent (1.5%) of the sum of (x) the Preliminary Purchase Price plus (y) the aggregate Stock Option Adjustment Amounts (together, the "Escrow Amount") shall be delivered to an escrow agent (which escrow agent shall be a bank or trust company with a branch located in the City of New York) appointed prior to the Closing by the Stockholders Representative, subject to approval by the Purchaser, which approval shall not be unreasonably withheld or delayed, pursuant to an Escrow Agreement (the "Escrow Agreement") to be entered into by the Purchaser, the Stockholders Representative and the Escrow Agent. Such Escrow Amount shall be held and disbursed by the escrow agent in accordance with the terms and conditions in this Article II and in the Escrow Agreement. Prior to the Closing, the Stockholder Representative shall prepare a schedule (based upon the respective amounts payable to each Seller net of any amount payable by such Seller hereunder, but assuming that individually and in the aggregate each holder of Rollover Options held a like number of Options that were not Rollover Options in lieu of the Rollover Options so held) setting forth the respective percentages of the aggregate Escrow Amount applicable to each Seller, which schedule shall be utilized to determine any distributions to Sellers from the Escrow Amount or any other adjustments to the Purchase Price and corresponding payments to or by the Sellers (the "Pro Rata Amount").
(b) As used herein, the "Net Working Capital Adjustment Amount" shall be the difference between the final Net Working Capital amount as set forth in the Final Statement minus the Target. In accordance with Sections 2.7 and 2.8, the Preliminary Purchase Price shall be (1) increased by the Net Working Capital Adjustment Amount, if the Net Working Capital Adjustment Amount is a positive integral, or (2) decreased by the Net Working Capital Adjustment Amount, if the Net Working Capital Adjustment Amount is a negative integral. The Preliminary Purchase Price as so adjusted shall constitute the "Purchase Price."
Cash Purchase Price The term "Cash Purchase Price" shall have the meaning set forth in Section 2.3(a).
Post-Closing Purchase Price Adjustment 1.9.1 Within ninety (90) days following the Closing Date, Seller shall prepare, or cause to be prepared, and deliver to Purchaser a statement (the “Closing Net Working Capital Statement”) which shall set forth the Net Working Capital of the Newsprint Business and of Apache as of the Closing Time (which shall be set forth separately for each of the Newsprint Business and Apache, but as aggregated shall be referred to as the “Closing Net Working Capital”) and shall be prepared in accordance with Seller’s past accounting methods, policies, practices and procedures and in the same manner, with consistent classification and estimation methodology, as the Financial Statements were prepared, except that the Excluded Assets and the Newsprint Retained Obligations shall be excluded. The Closing Net Working Capital Statement may not be amended by Seller after it is delivered to Purchaser.
1.9.2 Purchaser shall, within thirty (30) days after the delivery of the Closing Net Working Capital Statement to it, complete its review of the Closing Net Working Capital reflected on the Closing Net Working Capital Statement. If Purchaser wishes to dispute the Closing Net Working Capital, Purchaser shall notify Seller in writing in reasonable detail of such disagreement and any reason therefore (“Purchaser’s Objection”), setting forth a specific description of the basis of Purchaser’s Objection and the adjustments to the Closing Net Working Capital that Purchaser believes should be made, on or before the last day of such thirty (30) day period, which Purchaser’s Objection may not be amended by Purchaser after it is delivered to Seller (except to withdraw any such Purchaser’s Objection). Any items on the Closing Net Working Capital Statements not disputed in Purchaser’s Objection shall be irrevocably deemed to be accepted by Purchaser. Seller shall then have thirty (30) days to review and respond to Purchaser’s Objection. If Seller and Purchaser are unable to resolve all of their disagreements with respect to the determination of the foregoing items within thirty (30) days following Seller’s receipt of Purchaser’s Objection (the “Negotiation Period”), they shall refer their remaining differences to a mutually agreeable independent accounting firm of national recognition (other than an independent accounting firm utilized by any of Seller, Apache or Purchaser or any Affiliate of any of the foregoing within the past three (3) years) acceptable to both Seller and Purchaser or if Seller and Purchaser are unable to agree as to such third party accounting firm within ten (10) days after the conclusion of the Negotiation Period, either Seller or Purchaser may request that the Chairman of the American Arbitration Association (or the nominated representative of the Chairman) appoint a third party accounting firm meeting the aforementioned requirements to resolve the dispute (the accounting firm selected being referred to as the “CPA Firm”), who shall determine, only with respect to the remaining differences so submitted, whether and to what extent, if any, the Closing Net Working Capital requires adjustment. The procedure and schedule under which any dispute shall be submitted to the CPA Firm shall be as follows:
(a) Within ten (10) days after the later of (i) the end of the Negotiation Period and (ii) the selection of the CPA Firm, Purchaser shall submit any unresolved elements of the Purchaser’s Objection to the CPA Firm in writing (with a copy to Seller), supported by any documents and/or affidavits upon which it relies. Failure to timely do so shall constitute a withdrawal by Purchaser of the Purchaser’s Objection with respect to any unresolved element to which such failure relates.
(b) Within fifteen (15) days following Purchaser’s submission of the unresolved elements of the Purchaser’s Objection as specified in sub-clause (a) above, Seller shall submit its response to the CPA Firm in writing (with a copy to Purchaser), supported by any documents and/or affidavits upon which it relies. Failure to timely do so shall constitute an acceptance by Seller with respect to any unresolved elements to which such failure relates.
(c) The CPA Firm shall deliver its written determination to Purchaser and Seller no later than the thirtieth (30th) day after the remaining differences underlying Purchaser’s Objection are referred to the CPA Firm, or such longer period of time as the CPA Firm determines is necessary.
