The Optional Shares; Option Closing Date In addition, on the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of [•] Optional Shares from the Company at the purchase price per share to be paid by the Underwriters for the Firm Shares. The option granted hereunder may be exercised at any time and from time to time in whole or in part upon notice by the Representatives to the Company, which notice may be given at any time within 30 days from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Shares as to which the Underwriters are exercising the option and (ii) the time, date and place at which the Optional Shares will be delivered (which time and date may be simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date are simultaneous with the First Closing Date, the term “First Closing Date” shall refer to the time and date of delivery of the Firm Shares and such Optional Shares). Any such time and date of delivery, if subsequent to the First Closing Date, is called an “Option Closing Date,” and shall be determined by the Representatives and shall not be earlier than two or later than five full business days after delivery of such notice of exercise. If any Optional Shares are to be purchased, each Underwriter agrees, severally and not jointly, to purchase the number of Optional Shares (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the total number of Optional Shares to be purchased as the number of Firm Shares set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm Shares. The Representatives may cancel the option at any time prior to its expiration by giving written notice of such cancellation to the Company.
Subsequent Closing The sale, contribution and transfer of the Drag-Along Shares by the Drag-Along Sellers to Purchaser (the "Subsequent Closing") shall take place at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx, 00 xxx xx Xxxxxxxx Xxxxx-Xxxxxx, 00000 Xxxxx, at 10:00 a.m. and at the offices of Lexence N.V., Xxxxx Van Anrooystraat, 1076 AD Amsterdam; The Netherlands, as soon as possible after the Initial Closing. In view of the Subsequent Closing, Purchaser undertakes to implement the drag-along provided in the Former Shareholders Agreement.
(a) At the Subsequent Closing, each of the Drag-Along Sellers shall deliver to Purchaser:
(i) a joinder to this Agreement as a Drag-Along Seller;
(ii) a transfer order (ordre de mouvement) for the transfer to Purchaser of the Shares duly executed by such Drag-Along Seller in favor of Purchaser;
(iii) a copy of a confirmation letter from such Drag-Along Seller, sent by facsimile to the Notary, that (i) the Drag-Along Shares of such Drag-Along Seller have been transferred and (ii) the Deed of Issuance may be executed;
(iv) a power of attorney in favor of Purchaser authorizing Purchaser to terminate the Former Shareholders' Agreement and all ancillary agreements relating thereto as of the Subsequent Closing Date;
(v) the New Shareholders' Agreement from each of the Drag-Along Sellers; and
(vi) all other previously undelivered documents required to be delivered by each of the Drag-Along Sellers, to Purchaser at or prior to the Subsequent Closing in connection with the Transactions.
(b) At the Subsequent Closing, Purchaser shall deliver to each of the Drag-Along Sellers:
(i) the Per Share Amount due to the Drag-Along Sellers in respect of the Drag-Along Shares;
Initial Closing Date (a) A meeting has taken place on the Initial Closing Date at the offices of Xxxxx & Xxxxx LLP, 00 Xxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx X00 0XX at which the Seller delivered to the Mortgages Trustee or its representative the following documents:
(i) two originals of the power of attorney dated as at the Initial Closing Date and substantially in the form set out in Schedule 5 hereto, duly executed by the Seller;
(ii) a duly executed assignment of all applicable insurance contracts dated as at the Initial Closing Date and in the form of the Assignment of Insurance Contracts substantially in the form set out in Schedule 8;
(iii) a certificate of a duly authorised officer of the Seller dated as at the Initial Closing Date attaching a copy of the board minute of the Seller authorising its duly appointed representatives to agree the sale of the Portfolio and authorising execution and performance of this Agreement, the Servicing Agreement, the other Transaction Documents to which the Seller is a party (in any capacity) and all of the documentation to be entered into pursuant to this Agreement and confirming that the resolutions referred to therein are in full force and effect and have not been amended or rescinded as at the date of the certificate;
(iv) a duly executed assignment and assignation of rights against third parties comprised in the Initial Portfolio dated as at the Initial Closing Date and in the form of the Assignment of Third Party Rights substantially in the form set out in Schedule 7;
(v) a solvency certificate from an authorised signatory of the Seller dated the Initial Closing Date in a form acceptable to the Mortgages Trustee, Funding 1 and the Funding 1 Security Trustee (each acting reasonably);
(vi) an updated, complete and accurate list of the Loans and their Related Security in the Initial Portfolio which may be provided in a document stored upon electronic media (including, but not limited to, a CD-ROM) in a form acceptable to the Mortgages Trustee, Funding 1 and the Funding 1 Security Trustee (each acting reasonably);
(vii) a Scottish Declaration of Trust in respect of the Scottish Loans and their Related Security in the Initial Portfolio in the form set out in Schedule 13 and with the annexure thereto duly completed, duly executed by the Seller, the Mortgages Trustee and Funding 1; and
(viii) a duly executed data transfer agreement.
(b) The parties hereto acknowledge that completion on the Initial Closing Date of the sale to the Mortgages Trustee of all of the Seller's rights, titles, interests and benefits in and to the Loans and their Related Security comprised in the Initial Portfolio subject to the terms and provisions of the Mortgages Trust Deed shall occur as indicated in this Clause 3, provided that the matters described in Clause 6 and Clause 7.4 shall not occur until the relevant time indicated in Clause 6 or, as applicable, Clause 7.4.
3.2 The Seller undertakes that from the Initial Closing Date until the perfection of the sale in accordance with Clause 6, the Seller shall hold the Title Deeds and Customer Files relating to the Portfolio that are in its possession or under its control or held to its order to the order of the Mortgages Trustee.
3.3 The Seller shall, as soon as reasonably practicable after the sale of the Initial Portfolio on the Initial Closing Date procure that the interest of the Mortgages Trustee is noted by the relevant insurers in relation to each Seller Insurance Policy (applicable at such time).
3.4 Subject to fulfilment of the conditions referred to in Clauses 2.2 and 3.1, the Seller was paid the Initial Purchase Price of £2,505,373,309 by CHAPS transfer (or as the Seller otherwise directed) by the Mortgages Trustee on the Initial Closing Date.
Subsequent Closings Subject to the satisfaction (or waiver by the Agent in its sole discretion) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.
Second Closing The obligation of the Company to issue, sell and deliver the Series B Preferred Shares at the Second Closing is subject to the fulfillment to the reasonable satisfaction of the Company at or prior to the Second Closing of the following conditions:
(a) The Second Closing Investors shall have delivered the Second Purchase Price in accordance with Section 2.4(b);
(b) Each Second Closing Investor shall have delivered its executed counterpart signature page to this Agreement;
(c) The Amended and Restated Shareholders Agreement, duly executed by the New Series B Investors and the holders of at least a majority of the outstanding shares of Common Stock on a fully-diluted basis, including a majority of the Series A Preferred Stock voting as a separate class and on a fully-diluted and as converted basis;
(d) The First Amendment to Registration Rights Agreement, duly executed by a majority of the holders of Registrable Securities (as defined the Original Registration Rights Agreement);
(e) Each of the representations and warranties of the Investors contained in Article VIII shall be true, correct and complete in all material respects on and as of the Second Closing Date as though then made, except for such representations and warranties which expressly speak as of a certain date, which representations and warranties shall be true, correct and complete in all material respects as of the date specified.
(f) Section 7.4(a) of the Series A Preferred Stock Purchase Agreement shall be amended to read in its entirety as follows:
(a) (i) As of the First Closing, the authorized capital stock of the Company consisted solely of (1) ten million (10,000,000) shares of Common Stock, of which 1,696,284 shares were issued and outstanding; and (2) three million (3,000,000) shares of preferred stock, $.0001 par value per share, of which 2,250,000 shares had been designated as Series A Preferred Stock and 962,101 shares were issued and outstanding. The Company had reserved for issuance (x) sufficient shares of Common Stock for issuance upon conversion or redemption of all outstanding or authorized Series A Preferred Shares and (y) 2,100,000 shares of Common Stock upon exercise of options pursuant to its 2004 Stock Option Incentive Plan. Immediately after the First Closing, the capitalization of the Company was as set forth in the Capitalization Schedule attached to Schedule 7.4, which Capitalization Schedule and Schedule 7.4 (A) reflected the capitalization of the Company both on an actual shares outstanding basis and on a fully diluted basis assuming conversion of all convertible securities and the exercise of all outstanding options and warrants and all options reserved for future grant under any stock option plans and (B) set forth (I) each outstanding option, warrant or other right to purchase shares of capital stock of the Company or any of its Subsidiaries and (II) for each such option, warrant or right, the holder thereof, the date of grant, the exercise price and the number of shares subject thereto.
Initial Closing In consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.
The First Closing Date Delivery of certificates for the Firm Shares to be purchased by the Underwriters and payment therefor shall be made at the offices of Xxxxxxxxx & Xxxxxxx LLP (or such other place as may be agreed to by the Company and the Representatives) at 9:00 a.m. New York City time, on [•], or such other time and date not later than 1:30 p.m. New York City time, on [•] as the Representatives shall designate by notice to the Company (the time and date of such closing are called the “First Closing Date”). The Company hereby acknowledges that circumstances under which the Representatives may provide notice to postpone the First Closing Date as originally scheduled include, but are not limited to, any determination by the Company or the Representatives to recirculate to the public copies of an amended or supplemented Prospectus or a delay as contemplated by the provisions of Section 11.
Additional Closing To the extent that, upon the First Tranche Closing, the First Tranche Financing Amount is less than the Financing Amount, then the Company shall be permitted, at any time during the sixty (60) day period following the First Tranche Closing, to offer and sell 2015 Notes equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this Agreement, (b) the representations and warranties of the Company set forth in Section 3 hereof shall speak as of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreement.
Third Closing At any time sixty one (61) to ninety (90) days following the Second Closing Date, subject to the mutual agreement of the Buyer and the Company, for the “Third Closing Date” and subject to satisfaction of the conditions set forth in Sections 7 and 8, (A) the Company shall deliver to the Buyer the following: (i) the Third Debenture; (ii) an amendment to the Transfer Agent Instruction Letter instructing the Transfer Agent to reserve that number of shares of Common Stock as is required under Section 4(g) hereof, if necessary; and (iii) an officer’s certificate of the Company confirming, as of the Third Closing Date, the accuracy of the Company’s representations and warranties contained herein and updating Schedules 3(b), 3(c) and 3(k) as of the Third Closing Date, and (B) the Buyer shall deliver to the Company the Third Purchase Price.
Sale and Purchase of the Shares On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a price of $_____ per share (the "Initial Price"), the number of Firm Shares set forth opposite the name of such Underwriter under the column "Number of Firm Shares to be Purchased from the Company" on Schedule I to this Agreement, subject to adjustment in accordance with Section 10 hereof.
(b) The Company grants to the several Underwriters an option to purchase, severally and not jointly, all or any part of the Option Shares at the Initial Price. The number of Option Shares to be purchased by each Underwriter shall be the same percentage (adjusted by the Representatives to eliminate fractions) of the total number of Option Shares to be purchased by the Underwriters as such Underwriter is purchasing of the Firm Shares. Such option may be exercised only to cover over-allotments in the sales of the Firm Shares by the Underwriters and may be exercised in whole or in part at any time on or before 12:00 noon, New York City time, on the business day before the Firm Shares Closing Date (as defined below), and from time to time thereafter within 30 days after the date of this Agreement, in each case upon written, facsimile or telegraphic notice, or verbal or telephonic notice confirmed by written, facsimile or telegraphic notice, by the Representatives to the Company no later than 12:00 noon, New York City time, on the business day before the Firm Shares Closing Date or at least two business days before the Option Shares Closing Date (as defined below), as the case may be, setting forth the number of Option Shares to be purchased and the time and date (if other than the Firm Shares Closing Date) of such purchase.
