Transactions at Closing At the Closing, subject to the terms and conditions hereof:
Transactions at the Closing The closing of the transactions set forth herein (the "Closing") shall take place at York Gate, 000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxx, within ten business days after the date on which all conditions to the Closing shall have been satisfied and all legally required regulatory approvals (including the approval of the Controller of Restrictive Trade Practices, which approval shall not include any conditions or restrictions (the “Anti-trust Approval”)) shall have been obtained, or thereafter at such other time, date and place as may be agreed by the Parties (the time and date of the Closing being herein referred to as the “Closing Date”). In the event that the Closing does not take place within 90 days of the Effective Date, each Party shall be entitled to terminate this Agreement without giving rise to any right or claim by the other Party hereto, excluding claims for breaches of obligations or representations by any Party hereto prior to such termination; provided, however, that no Party may terminate this Agreement pursuant to this Section 3 if such Party's failure to fulfill any of its obligations under this Agreement shall have been a principal reason that the Closing shall not have occurred within the 90-day period of the date hereof. At the Closing, the following transactions shall occur, which transactions shall be deemed to take place simultaneously and no transaction shall be deemed to have been completed or any document delivered until all such transactions have been completed and all required documents have been delivered:
(1) Seller shall transfer to the Purchaser the Purchased Shares, free and clear of any and all Encumbrances.
(2) Seller shall deliver to Purchaser duly executed irrevocable instructions from the Seller to the broker holding the Purchased Shares or to the holder registered as holding the Purchased Shares with any registration company or otherwise, instructing the electronic transfer of the Purchased Shares to the respective accounts of the Purchaser, as shall be provided to Seller by Purchaser.
(3) The Purchaser shall transfer to the bank account of the Seller the Purchase Price. The Purchase Price shall be paid in US$ by wire transfer of immediately available funds. Any tax due by Seller with respect to the Seller's sale of the Purchased Shares shall be borne exclusively by the Seller and Seller shall indemnify the Purchaser in the event that any taxing authority requires Purchaser to pay the tax liability of Seller with respect to the sale of the Purchased Shares hereunder. The Purchaser shall deliver to the Seller, promptly following its receipt, any notice, demand or claim it receives from any taxing authority in respect of any tax due with respect to the Seller and its sale of the Purchased Shares. Without derogating from Seller's indemnification obligations as set forth above and the Purchaser's right to timely comply with any requirement made to it by a taxing authority, the Seller shall have the right (at its sole discretion and expense) to directly negotiate and settle any such tax requirement with the relevant taxing authority.
Transactions to be Effected at the Closing (a) Seller shall be entitled to receive immediately 8,785,819 of the Purchase Price Shares (the “Initial Purchase Price Shares”); the remaining 1,500,000 of the Purchase Price Shares (the “Escrow Purchase Price Shares”), shall be deposited in escrow pursuant to Section 2.3(d) and shall be held and disposed of in accordance with the terms of the Escrow Agreement.
(b) At the Closing, Buyer shall deliver to Seller (i) an original certificate or certificates representing the Initial Purchase Price Shares, (ii) all other documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to this Agreement, and (iii) the Estimated Closing Cash Amount, to be paid by wire transfer of immediately available funds to an account designated in writing by Seller.
(c) At the Closing, Buyer, Seller and Xxxxxx Jan Xxxxx Lijdsman, civil law notary in Amsterdam, the Netherlands (the “Escrow Agent”) shall execute and deliver the Escrow Agreement in substantially the form attached hereto as Exhibit C (the “Escrow Agreement”).
(d) At the Closing, Seller shall deliver to Buyer (or if Buyer so elects, to a Subsidiary of Buyer) (i) certificates for the Acquired Shares duly endorsed or accompanied by stock powers duly endorsed in blank (or if the Acquired Shares are not certificated, (ii) a duly executed instrument of assignment thereof in proper form under the laws of Luxembourg, (iii) a certified copy of the share register of the Acquired Company), with any required transfer stamps affixed thereto, (iv) all other documents and instruments necessary to vest in Buyer (or its Subsidiary) all of Seller’s right, title and interest in and to the Acquired Shares, free and clear of all Liens, and (v) all other documents, instruments or certificates required to be delivered by Seller at or prior to the Closing pursuant to this Agreement.
(e) At the Closing, Buyer and Seller shall also close on the transactions specified in the Subscription Agreement.
Conditions to the Closing Date The obligations of the Lenders to make Loans and of the Issuing Bank to make LC Credit Extensions hereunder shall become effective on the first date when each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent shall have received the following, each of which shall be originals, telecopies or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated a date on or prior to the Closing Date and each in form and substance satisfactory to the Administrative Agent and the Arrangers:
(i) executed counterparts of this Agreement from the Borrower;
(ii) a promissory note executed by the Borrower in favor of each Lender requesting three Business Days in advance a promissory note evidencing the Loan provided by such Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(iv) a certificate of good standing for the Borrower from its jurisdiction of organization;
(v) a certificate signed by the Chief Financial Officer of the Borrower certifying (A) as to the solvency of the Borrower and its Subsidiaries (on a consolidated basis) after giving effect to the Transaction and the incurrence of all Indebtedness related thereto, (B) as to the Debt Rating then in effect and (C) that the conditions specified in Section 4.02(a) and (b) have been satisfied;
(vi) a favorable opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Borrower, and the general counsel of the Borrower, addressed to the Administrative Agent and each Lender, in form set forth on Exhibit C and substance reasonably satisfactory to the Administrative Agent; and
(vii) evidence that the Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being released (the “Refinancing”).
(b) The Borrower shall have received not less than $1,000.0 million in gross cash proceeds from the sale of the Senior Notes.
(c) All accrued fees and expenses of the Administrative Agent and the Arrangers (including the fees and expenses of counsels for the Administrative Agent, the U.S. Lead Arrangers and the Nordic Lead Arrangers and local and special counsel for the Administrative Agent and the Arrangers) shall have been paid. The Borrower shall have paid all items then due and payable under the Fee Letter.
(d) The Administrative Agent shall have received a Borrowing Request in accordance with the requirements of Section 2.03 hereof.
Deliveries at Closing Buyers’ Parent shall have delivered or caused to be delivered to Sellers’ Representative the following documents, each properly executed and dated as of the Closing Date, and in form and substance reasonably acceptable to Sellers’ Representative:
(a) the Tredegar Brasil Deliverables set forth in Section 2 of Exhibit D;
(b) the Tredegar India Interests Purchase Agreement and the documents and instruments set forth in Section 2.4 thereunder that are required to be delivered at Closing in order to effect the purchase and sale of the Tredegar India Interests and the transfer of legal ownership of the Nominee Interest as contemplated thereby;
(c) a certificate of an authorized officer of Buyers’ Parent certifying as to the satisfaction of the closing conditions set forth in Sections 9.1 and 9.2;
(d) a certificate of the secretary or other authorized officer of Buyers’ Parent certifying as to: (i) the accuracy and completeness of attached copies of the Organizational Documents of each Buyer certified by the applicable Governmental Authority as of a recent date, and (ii) the resolutions of the equityholders of Buyers, if required, and the board of directors or the board of managers, as applicable, of Buyers authorizing and approving the execution and delivery of this Agreement by Buyer and all other agreements contemplated hereby, the performance of Buyers’ obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby;
(e) instruments necessary to effect the replacement, effective as of Closing, of the directors, managers and officers, as applicable, of the Target Companies and Target Subsidiaries set forth on Annex 8.5(h), including, as required by applicable Law, resolutions of the governing bodies of a Target Company or any Target Subsidiary and amendments to applicable Organizational Documents;
(f) the Escrow Agreement; and
(g) the Transition Services Agreement.
Conditions to the Transaction 7.1 Conditions to Obligations of Each Party to Effect the Transaction. The respective obligations of each party to this Agreement to effect the Transaction shall be subject to the satisfaction at or prior to the Closing Date of the following conditions:
Actions at Closing At the Closing, the following actions will take place:
(a) Buyer will pay to GLAR the Purchase Price as described in Section 1.3 of this Agreement by delivery of (i) stock certificates evidencing the ESP Stock, and (ii) the Consulting Agreement referenced in Section 2 of this Agreement, executed by the Buyer.
(b) GLAR will deliver to Buyer copies of necessary resolutions of the Board of Directors of GLAR authorizing the execution, delivery, and performance of this Agreement and the other agreements contemplated by this Agreement for GLAR's execution, and consummation of the transactions contemplated by this Agreement, which resolutions have been certified by an officer of GLAR as being valid and in full force and effect.
(c) Buyer will deliver to GLAR copies of corporate resolutions of the Board of Directors of Buyer authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated by this Agreement for Buyer's execution, if any, and consummation of the transactions contemplated by this Agreement, which resolutions have been certified by an officer of Buyer as being valid and in full force and effect.
(d) GLAR and the Company will each deliver to the other party true and complete copies of each party's Certificate of Incorporation and a Certificate of Good Standing from the appropriate official of each party's jurisdiction of incorporation, which certificates and certificates of good standing are dated not more than 30 days prior to the Closing Date.
(e) Each party to the Consulting Agreement shall have executed it and delivered the signed copy to the other party to the Consulting Agreement.
(f) The Board of Directors and executive officers of GLAR will appoint new members of the Board of Directors and new executive officers to replace them, as designated in writing by the Buyer, and will resign simultaneously.
(g) Immediately prior to their resignation, the then directors and executive officers of GLAR will immediately execute all documents and take all action which is necessary or appropriate in order to cause the designees of the Buyer to be the signatories on all GLAR bank accounts.
(h) Any additional documents or instruments as a party may reasonably request or as may be necessary to evidence and effect the sale, assignment, transfer and delivery of the GLAR Stock to the Buyer.
Conditions to the Closing On or before the Closing Date, the Seller shall deliver or cause to be delivered to the Trust Depositor each of the documents, certificates and other items as follows:
(a) The List of Contracts, certified by the Chairman of the Board, President or any Vice President of the Seller together with an Assignment substantially in the form attached as Exhibit A hereto.
(b) A certificate of an officer of the Seller substantially in the form of Exhibit B hereto.
(c) An opinion of counsel for the Seller substantially in form and substance reasonably satisfactory to the Underwriters (and including as an addressee thereof each Rating Agency).
(d) A letter or letters from Ernst & Young LLP, or another nationally recognized accounting firm, addressed to the Seller, the Trust Depositor and the Underwriters and stating that such firm has reviewed a sample of the Contracts and performed specific procedures for such sample with respect to certain contract terms and identifying those Contracts which do not so conform.
(e) Copies of resolutions of the Board of Directors of the Seller or of the Executive Committee of the Board of Directors of the Seller approving the execution, delivery and performance of this Agreement and the transactions contemplated hereunder, certified in each case by the Secretary or an Assistant Secretary of the Seller.
(f) Officially certified recent evidence of due incorporation and good standing of the Seller under the laws of Nevada.
(g) A UCC financing statement naming the Seller as debtor, naming the Trust Depositor and the Trust as assignor secured parties, naming the Indenture Trustee as secured party and identifying the Contract Assets as collateral, in proper form for filing with the appropriate office in Nevada; a UCC financing statement naming the Trust Depositor as debtor, naming the Trust as assignor secured party, naming the Indenture Trustee as secured party and identifying the Trust Corpus as collateral, in proper form for filing with the appropriate office in Nevada; and a UCC financing statement naming the Trust as debtor, naming the Indenture Trustee, as secured party and identifying the Collateral as collateral, in proper form for filing with the appropriate office in Delaware.
(h) An Officer’s Certificate from the Seller certifying that the Seller, on or prior to the Closing Date, has indicated in its computer files, in accordance with its customary standards, policies and procedures, that the Contracts have been conveyed to the Trust Depositor pursuant to this Agreement.
(i) The documents, certificates and other items described in Section 2.02 of the Sale and Servicing Agreement, to the extent not already described above.
Cash at Closing At Closing, Purchaser shall pay to Seller, by wire transferred current federal funds, an amount equal to the Purchase Price, minus the sum of the Xxxxxxx Money which Seller receives at Closing from the Escrowee, and plus or minus, as the case may require, the closing prorations and adjustments to be made pursuant to Section 4(C) below.
Payments at Closing Upon the terms and subject to the conditions set forth in this Agreement, Parent will deliver or cause to be delivered on the Closing Date and at the Closing:
3.4.1. to the lenders (or the applicable agents therefor), by wire transfer of immediately available funds to the bank accounts designated by the Company in the Closing Statement (or bank accounts designated in any applicable payoff letters with respect to such Debt), an amount necessary to repay, on behalf of the Company, in full the outstanding amount of Debt of the Company and certain of the Company Subsidiaries pursuant to the Term Credit Agreement and Revolving Credit Agreement;
3.4.2. to the Escrow Agent, by wire transfer of immediately available funds to a bank account that has been designated in writing by the Escrow Agent at least one Business Day prior to the Closing Date, the Adjustment Escrow Amount, to be held by the Escrow Agent under the Escrow Agreement pursuant to the terms and conditions thereof;
3.4.3. to the Persons to whom such amounts are payable, by wire transfer of immediately available funds to bank accounts that have been designated in writing by the Company to Parent at least one Business Day prior to the Closing Date (or bank accounts designated in any applicable invoices with respect thereto), the amounts necessary to pay all Transaction Expenses not paid prior to the Closing Date (provided that the amount of any transaction bonus or similar payments to any employees of the Company or any Company Subsidiary shall be paid to an account of the Company designated in writing by the Company to Parent at least one Business Day prior to the Closing Date and paid to the applicable employees, in each case, subject to Section 3.9; through the Company’s payroll system in a distribution to occur on the Closing Date or as soon as practicable thereafter);
3.4.4. to the Representative, by wire transfer of immediately available funds to an account of the Representative designated by the Representative to Parent at least one Business Day prior to the Closing Date, an amount specified by the Representative to Parent as the initial funding of the Representative Expense Fund;
3.4.5. to Blocker Seller, by wire transfer of immediately available funds to a bank account of Blocker Seller that has been designated in writing to Parent by Blocker Seller at least one Business Day prior to the Closing Date, the amounts payable to Blocker Seller at the Closing under Sections 2.1(a) and 2.1(b) and, in each case, subject to Section 3.9;
3.4.6. to each of the Company Members other than Blocker, by wire transfer of immediately available funds to bank accounts thereof that have been designated in writing to Parent by the Company at least one Business Day prior to the Closing Date, the amounts payable to such Company Members at Closing pursuant to Section 3.1.1(a) and, in each case, subject to Section 3.9; and
3.4.7. to the Company, by wire transfer of immediately available funds to a bank account of the Company designated in writing to Parent by the Company at least one Business Day prior to the Closing Date, the amounts payable to the Company Optionholders in connection with the Closing pursuant to Section 3.2(b)(i) (for further distribution to each of the Company Optionholders, subject to Section 3.9, through the Company’s payroll system in a distribution to occur on the Closing Date or as soon as reasonably practicable thereafter).
