Rolling Stock The Recipient agrees that any procurement for rolling stock will comply with 49 U.S.C. § 5325 (Contract Requirements), 49 U.S.C. § 5323(j) (Buy America Requirements), 49 U.S.C. § 5323(m) (Pre-Award and Post Delivery Requirements), and 49 U.S.C. § 5318(e) (Bus Testing Requirements), and their implementing regulations.
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Closing Consideration (a) At the Closing, Buyer shall pay to Seller or its designee, and Seller or its designee shall receive on behalf of the Affiliate Sellers and Asset Sellers, in consideration for the purchase of the Shares and the Purchased Assets pursuant to Section 2.1, an amount of cash (the “Closing Consideration”) equal to $1,978,151,867 (the “Base Purchase Price”) plus any Adjusted Statutory Book Value Surplus, minus any Adjusted Statutory Book Value Deficit, plus any Other Acquired Companies Shareholders Equity Surplus, minus any Other Acquired Companies Shareholders Equity Deficit, minus the Adjustment for PRIAC IMR Tax Gross-up, in each case, determined by reference to the Estimated Closing Statement in accordance with Section 2.6 (such aggregate amount, as adjusted in accordance with Section 2.7, the “Purchase Price”).
(b) At the Closing, in accordance with the PICA FSS Reinsurance Agreements:
(i) Seller shall transfer for deposit into the applicable PICA FSS Trust Account Investment Assets (PICA) that are Authorized Investments selected and valued in accordance with the Valuation Methodologies with an aggregate fair market value equal to the Net Initial Reinsurance Settlement Amount for the applicable PICA FSS Reinsurance Agreement as reflected on the Estimated Reinsurance Settlement Statement (“Transferred Investment Assets”) in accordance with Section 2.3(d); provided, if (A) the amount of the Initial Reinsurance Premium is greater than the Required Balance (as defined in the PICA FSS Reinsurance Agreements) as of the Effective Time for the applicable PICA FSS Reinsurance Agreement as reflected on the Estimated Reinsurance Settlement Statement (such excess amount with respect to the applicable PICA FSS Reinsurance Agreement, the “Overfunding Amount”) and (B) the applicable Overfunding Amount is greater than the applicable portion of the Ceding Commission, then Seller shall transfer directly to the applicable Reinsurer Transferred Investment Assets with an aggregate fair market value, determined in accordance with the Valuation Methodologies, equal to the amount by which the applicable Overfunding Amount exceeds such portion of the Ceding Commission, and only the remainder of the Transferred Investment Assets shall be deposited into the applicable PICA FSS Trust Account;
(ii) The applicable Reinsurer shall transfer to the applicable PICA FSS Trust Account Authorized Investments such that, after giving effect to the transfers contemplated by Section 2.3(b)(i), the aggregate Book Value (as defined in the PICA FSS Reinsurance Agreements) in each such PICA FSS Trust Account is equal to the Required Balance (as defined in the PICA FSS Reinsurance Agreements) as of the Effective Time for the applicable PICA FSS Reinsurance Agreement as reflected on the Estimated Reinsurance Settlement Statement; and
(iii) Seller shall credit to the applicable Modco Account the applicable Separate Account Assets (as such terms are defined in the PICA FSS Reinsurance Agreements).
(c) Buyer shall cause to be prepared and delivered to Seller at least five (5) Business Days prior to the anticipated Closing Date a statement setting forth an allocation of the full amount of the Ceding Commission between each of the PICA FSS Reinsurance Agreements.
(d) Seller shall undertake its ordinary course process consistent with past practice for determining any credit-related impairments or credit-related losses in value as of the Closing Date for the Transferred Investment Assets and reflect any credit- related impairments or credit-related losses in value from such process in the Transferred Investment Assets. Following the Closing, Seller shall provide reasonable documentation reasonably requested by Buyer for purposes of Xxxxx’s assessment of any credit-related impairments or credit-related losses as of the Closing Date. Seller shall sell, convey, assign, transfer and deliver to the applicable Reinsurer free and clear of all Encumbrances (other than Permitted Encumbrances or Encumbrances imposed under the applicable PICA FSS Trust Agreements) good and marketable title to the Transferred Investment Assets in respect of the PICA FSS Reinsurance Agreements (for the avoidance of doubt, together with all of Seller’s rights, title and interest thereto, including with respect to the investment income due and accrued thereon) and deposit on their behalf to the applicable PICA FSS Trust Account pursuant to Section 2.3(b)(i). Any investment assets to be transferred to a PICA FSS Trust Account shall be transferred in the manner set forth in the applicable PICA FSS Trust Agreement. All third-party costs or expenses incurred (whether prior to, on or following the Closing Date), including reasonable attorneys’ fees, in connection with the transfers of assets to the PICA FSS Trust Accounts or the Reinsurers (including any re-registrations or re-titling thereof) as contemplated by Section 2.3(b)(i) and this Section 2.3(d) shall be borne fifty percent (50%) by Seller and fifty percent (50%) by Buyer.
Expenses of the Selling Stockholders The Selling Stockholders, jointly and severally, will pay all expenses incident to the performance of their respective obligations under, and the consummation of the transactions contemplated by, this Agreement, including (i) any stamp and other duties and stock and other transfer taxes, if any, payable upon the sale of the Securities to the Underwriters and their transfer between the Underwriters pursuant to an agreement between such Underwriters, and (ii) the fees and disbursements of their respective counsel and other advisors.
Post-Closing Items (a) The Loan Parties shall take all necessary actions to satisfy the items described on Schedule 5.16 within the applicable periods of time specified in such Schedule (or such longer periods as the Administrative Agent may agree in its sole discretion).
(b) In connection with each of the Mortgaged Properties, within ninety (90) days of the Closing Date (or such longer period as the Administrative Agent may reasonably allow) (i) each of the Mortgages, in form and substance reasonably satisfactory to the Administrative Agent, relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect; except for the Deed of Mortgage, which the Loan Parties represent has been filed and recorded in the corresponding Section of the Puerto Rico Registry of Property and the Deed of Amendment, which the Loan Parties represent has been filed and is pending recordation in the corresponding Section of the Puerto Rico Registry of Property, (ii) each of such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section 6.02 and (iii) (A) each of such Mortgages shall have been filed and recorded in the corresponding recording office (except for the Deed of Mortgage, which the Loan Parties represent has been filed and recorded in the corresponding Section of the Puerto Rico Registry of Property and the Deed of Amendment which the Loan Parties represent has been filed and is pending recordation in the corresponding Section of the Puerto Rico Registry of Property) and, in connection therewith, the Collateral Agent shall have received evidence reasonably satisfactory to it of each such filing and recordation and (B) the Collateral Agent shall have received such other documents, including a policy or policies of title insurance issued by a nationally recognized title insurance company in an amount not to exceed the fair market value of such mortgaged property (as determined in good faith by the Lead Borrower), together with such endorsements, coinsurance and reinsurance as may be reasonably requested by the Collateral Agent and the Lenders, insuring the Mortgages as valid first liens on the Mortgaged Properties, free of Liens other than those permitted under Section 6.02, together with such flood determinations, surveys and legal opinions required to be furnished pursuant to the terms of the Mortgages or as reasonably requested by the Collateral Agent or the Administrative Agent.
Expenses of the Selling Shareholders The Selling Shareholders, jointly and severally, will pay all expenses incident to the performance of their respective obligations under, and the consummation of the transactions contemplated by, this Agreement, including (i) any stamp and other duties and stock and other transfer taxes, if any, payable upon the sale of the Securities to the Underwriters and their transfer between the Underwriters pursuant to an agreement between such Underwriters, and (ii) the fees and disbursements of their respective counsel and other advisors.
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.
Post-Closing Capitalization At, and immediately after, the Closing, the authorized capitalization, and the number of issued and outstanding shares of the capital stock of the Company and the Parent, on a fully-diluted basis, as indicated on a schedule to be delivered by the Parties at or prior to the Closing, shall be acceptable to the Parent in its sole and absolute discretion.
Private Placement Warrants and Working Capital Warrants The Private Placement Warrants and the Working Capital Warrants shall be identical to the Public Warrants, except that so long as they are held by the Sponsor or any Permitted Transferees (as defined below), as applicable, the Private Placement Warrants and the Working Capital Warrants: (i) may be exercised for cash or on a cashless basis, pursuant to subsection 3.3.1(c) hereof, (ii) may not be transferred, assigned or sold until thirty (30) days after the completion by the Company of an initial Business Combination (as defined below), and (iii) shall not be redeemable by the Company; provided, however, that in the case of (ii) the Private Placement Warrants and the Working Capital Warrants and any shares of Common Stock held by the Sponsor or any Permitted Transferees, as applicable, and issued upon exercise of the Private Placement Warrants and the Working Capital Warrants may be transferred by the holders thereof:
(a) to the Company’s officers or directors, any affiliate or family member of any of the Company’s officers or directors, any affiliate of the Sponsor or to any member(s) of the Sponsor or any of their affiliates, officers, directors and direct and indirect equityholders;
(b) in the case of an individual, by gift to a member such individual’s immediate family or to a trust, the beneficiary of which is a member of such individual’s immediate family, an affiliate of such individual or to a charitable organization;
(c) in the case of an individual, by virtue of the laws of descent and distribution upon death of such person;
(d) in the case of an individual, pursuant to a qualified domestic relations order;
(e) by private sales or transfers made in connection with the consummation of an initial Business Combination at prices no greater than the price at which the Warrants were originally purchased;
(f) in the event of the Company’s liquidation prior to consummation of the Company’s Business Combination; or
(g) by virtue of the laws of the State of Delaware or the Sponsor’s limited liability company agreement upon dissolution of the Sponsor; provided, however, that, in each case these permitted transferees (the “Permitted Transferees”) must enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Agreement.
Closing Purchase Price Buyer shall have delivered the Closing Purchase Price in accordance with Section 2.5.
