Common use of Conditions to the Closing Clause in Contracts

Conditions to the Closing. Section 7.01 Conditions to the Obligations of Each Party. The obligations of the Parties to proceed with the Closing are subject to the satisfaction on or prior to the Closing Date of all of the following conditions, any one or more of which may be waived in writing, in whole or in part, as to a Party by such Party: (a) (i) no judgment, injunction, order or decree of a court or other Governmental Authority of competent jurisdiction shall be in effect which has the effect of making the transactions contemplated by this Agreement illegal or otherwise restraining or prohibiting the consummation of the transactions contemplated by this Agreement (each Party agreeing to use its reasonable best efforts, including appeals to higher courts, to have any judgment, injunction, order or decree lifted) and (ii) no material legal proceedings shall have been instituted against Seller, the Companies or Buyer seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby; provided that, Seller and Buyer shall use their reasonable best efforts to have dismissed, settle or otherwise resolve such legal proceedings; (b) (i) any waiting period applicable to consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired or been terminated, and (ii) all Seller Governmental Approvals and Buyer Governmental Approvals shall have been filed, made or obtained, as the case may be; provided, however, that a Party whose breach of its obligations under this Agreement caused a failure to so file, make or obtain such Seller Governmental Approvals or Buyer Governmental Approvals, as the case may be, shall be deemed to have waived this condition to the extent of such failure; and (c) all consents, waivers and approvals listed on Schedule 7.01(c) shall have been obtained.

Conditions to the Closing. Section 7.01 Conditions to the Obligations of Each Party. The obligations obligation of the Parties Company hereunder to proceed with issue and sell the Series B Shares and Series B Warrants comprising the Units to a Purchaser at the Closing are is subject to the satisfaction on or prior to satisfaction, as of the Closing Date date of all the Closing, of each of the following conditions, any one or more of which provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in writing, in whole or in part, as to a Party by such Partyits sole discretion: (a) (i) no judgmentSuch Purchaser shall have executed the signature page to this Agreement, injunctionthe Registration Rights Agreement, order the Shareholder Agreement and the Escrow Agreement and shall have delivered the same. (ii) Such Purchaser shall have delivered the Initial Payment and its Promissory Note, if applicable, in the aggregate amount of the Subscription Amount. (iii) The representations and warranties of such Purchaser shall be true and correct as of each date when made as though made at that time, and such Purchaser shall have performed, satisfied and complied in all material respects with the covenants and agreements required by this Agreement to be performed or decree complied with by such Purchaser at or prior to the Closing. Completion of a the Closing shall constitute certification of these matters by such Purchaser. (iv) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or other Governmental Authority governmental authority of competent jurisdiction shall be in effect or any self-regulatory organization having authority over the matters contemplated hereby which has the effect of making the transactions contemplated by this Agreement illegal restricts or otherwise restraining or prohibiting prohibits the consummation of any of the transactions contemplated by this Agreement (each Party agreeing to use its reasonable best efforts, including appeals to higher courts, to have any judgment, injunction, order or decree lifted) and (ii) no material legal proceedings shall have been instituted against Seller, the Companies or Buyer seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby; provided that, Seller and Buyer shall use their reasonable best efforts to have dismissed, settle or otherwise resolve such legal proceedings; (b) (i) any waiting period applicable to consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired or been terminated, and (ii) all Seller Governmental Approvals and Buyer Governmental Approvals shall have been filed, made or obtained, as the case may be; provided, however, that a Party whose breach of its obligations under this Agreement caused a failure to so file, make or obtain such Seller Governmental Approvals or Buyer Governmental Approvals, as the case may be, shall be deemed to have waived this condition to the extent of such failure; and (c) all consents, waivers and approvals listed on Schedule 7.01(c) shall have been obtainedAgreement.

Conditions to the Closing. Section 7.01 Conditions to the Obligations of Each Party. The obligations obligation of the Parties Purchaser to proceed with purchase the Closing are Transferred VBC's is subject to (i) compliance by the satisfaction Seller with all the provisions of this Purchase Agreement to be performed on or prior to the Closing Date of all of the following conditionsDate, any one or more of which may be waived in writing, in whole or in part, as to a Party by such Party: (a) (i) no judgment, injunction, order or decree of a court or other Governmental Authority of competent jurisdiction shall be in effect which has the effect of making the transactions contemplated by this Agreement illegal or otherwise restraining or prohibiting the consummation of the transactions contemplated by this Agreement (each Party agreeing to use its reasonable best efforts, including appeals to higher courts, to have any judgment, injunction, order or decree lifted) and (ii) no the accuracy of the representations and warranties of the Seller herein set forth and (iii) satisfaction of the conditions hereinafter set forth as of the Closing Date. Should any condition not be fulfilled on or before the Closing Date to the satisfaction of the Purchaser, the Purchaser shall at its option be relieved of all obligations under this Purchase Agreement. The representations and warranties made by the Seller herein shall be true and correct in all material legal proceedings respects. The Seller shall have been instituted against Seller, performed and complied with all agreements and conditions in Section 6.04 of the Companies Pooling Agreement and Section 6.3 of the Amended Series 2000-1 Supplement required to be performed or Buyer seeking to restrain or prohibit or to obtain substantial damages complied with by it with respect to the consummation transfer and sale of the transactions contemplated hereby; provided thatTransferred VBC's on or before the Closing Date. No event shall have occurred and be continuing and no condition shall exist which would constitute an Early Amortization Event as defined in the Agreement either with or without notice or lapse of time, Seller and Buyer or both. The Purchaser shall use their reasonable best efforts to have dismissed, settle or otherwise resolve such legal proceedings; (b) (i) any waiting period applicable to consummation received copies of the transactions contemplated by this Agreement under Pooling Agreement, the HSR Act shall have expired or been terminated, Amended 2000-1 Series Supplement and (ii) all Seller Governmental Approvals and Buyer Governmental Approvals shall have been filed, made or obtainedthe Receivables Purchase Agreement, as well as one or more certificates evidencing the case may be; provided, however, that a Party whose breach of its obligations under this Agreement caused a failure to so file, make or obtain such Seller Governmental Approvals or Buyer Governmental Approvals, Transferred VBC's executed and authenticated as provided in the case may be, shall be deemed to have waived this condition to the extent of such failure; and (c) all consents, waivers and approvals listed on Schedule 7.01(c) shall have been obtainedAgreement.

Conditions to the Closing. Section 7.01 9.1 Conditions to the Obligations of Each Party's Obligations. The respective obligations of each party to effect the Parties transactions to proceed with be performed by such party at the Closing are are, at the option of such party, subject to the satisfaction on at or prior to the Closing Date of all of the following conditions, any one or more of which may be conditions (unless waived in writing, in whole or in part, as to a Party writing if permitted by such Party:applicable law): (a) This Agreement, the Merger and the other transactions contemplated hereby shall have been duly approved by the shareholders of OptaPhone in the manner required under the California Law. (b) No order shall have been entered, and not vacated, by a court or administrative agency of competent jurisdiction, in any action or proceeding which enjoins, restrains or prohibits the consummation of the Merger. (c) There shall be no litigation pending or threatened by any regulatory body or private party in which (i) no judgment, injunction, order an injunction is or decree of a court or other Governmental Authority of competent jurisdiction shall may be in effect which has the effect of making sought against the transactions contemplated by the Transaction Documents, or (ii) relief is or may be sought against any party hereto as a result of this Agreement illegal and in which, in the good faith judgment of the Board of Directors of either OptaPhone or otherwise restraining Zhone (relying on the advice of their respective legal counsel), such regulatory body or prohibiting the private party has a reasonable likelihood of prevailing. (d) All authorizations, consents, permits and approvals of all federal, state and local governmental agencies and authorities required to be obtained in order to permit consummation of the transactions contemplated by this Agreement (each Party agreeing to use its reasonable best efforts, including appeals to higher courts, to have any judgment, injunction, order or decree lifted) and (ii) no material legal proceedings shall have been instituted against Seller, the Companies or Buyer seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby; provided that, Seller and Buyer shall use their reasonable best efforts to have dismissed, settle or otherwise resolve such legal proceedings; (b) (i) any waiting period applicable to consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired or been terminated, and (ii) all Seller Governmental Approvals and Buyer Governmental Approvals shall have been filed, made or obtained, as the case may be; provided, however, that a Party whose breach of its obligations under this Agreement caused a failure to so file, make or obtain such Seller Governmental Approvals or Buyer Governmental Approvals, as the case may be, shall be deemed to have waived this condition to the extent of such failure; and (c) all consents, waivers and approvals listed on Schedule 7.01(c) shall have been obtained. 9.2 Conditions to Obligations of OptaPhone. The obligations of OptaPhone to effect the transactions to be performed by it at the Closing are, at the option of OptaPhone, subject to the satisfaction at or prior to the Closing of the following additional conditions: (a) All of the representations and warranties of Zhone and Sub set forth in Section 4 hereof shall be true in all material respects on and as of the Closing Date, except for representations and warranties which are as of a certain date which shall be true in all material respects as of such date, with the same force and effect as if they had been made at the Closing, except for changes contemplated by this Agreement, and Zhone and Sub shall have delivered to OptaPhone certificates to such effect dated the Closing Date and signed by authorized representatives of Zhone and Sub, respectively. (b) All of the terms, covenants and conditions of this Agreement to be complied with and performed by Zhone and Sub at or prior to the Closing shall have been duly complied with and performed in all material respects, and Zhone and Sub shall have delivered to OptaPhone certificates to such effect dated the Closing Date and signed by authorized representatives of Zhone and Sub, respectively. (c) There shall not have occurred a Material Adverse Effect on Zhone.

Conditions to the Closing. Section 7.01 Conditions to the Obligations of Each Party. The obligations obligation of the Parties Company hereunder to proceed with issue and sell the Series B Shares and Series B Warrants comprising the Units to a Purchaser at the Closing are is subject to the satisfaction on or prior to satisfaction, as of the Closing Date date of all the Closing, of each of the following conditions, any one or more of which provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in writingits sole discretion: ( i ) Such Purchaser shall have executed the signature page to this Agreement, the Registration Rights Agreement, the Shareholder Agreement and the Escrow Agreement and shall have delivered the same. ( ii ) Such Purchaser shall have delivered the Initial Payment and its Promissory Note, if applicable, in whole the aggregate amount of the Subscription Amount. ( iii ) The representations and warranties of such Purchaser shall be true and correct as of each date when made as though made at that time, and such Purchaser shall have performed, satisfied and complied in all material respects with the covenants and agreements required by this Agreement to be performed or in part, as to a Party complied with by such Party:Purchaser at or prior to the Closing. Completion of the Closing shall constitute certification of these matters by such Purchaser. (a( iv ) (i) no judgmentNo statute, injunctionrule, order regulation, executive order, decree, ruling or decree of a injunction shall have been enacted, entered, promulgated or endorsed by any court or other Governmental Authority governmental authority of competent jurisdiction shall be in effect or any self-regulatory organization having authority over the matters contemplated hereby which has the effect of making the transactions contemplated by this Agreement illegal restricts or otherwise restraining or prohibiting prohibits the consummation of any of the transactions contemplated by this Agreement (each Party agreeing to use its reasonable best efforts, including appeals to higher courts, to have any judgment, injunction, order or decree lifted) and (ii) no material legal proceedings shall have been instituted against Seller, the Companies or Buyer seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby; provided that, Seller and Buyer shall use their reasonable best efforts to have dismissed, settle or otherwise resolve such legal proceedings; (b) (i) any waiting period applicable to consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired or been terminated, and (ii) all Seller Governmental Approvals and Buyer Governmental Approvals shall have been filed, made or obtained, as the case may be; provided, however, that a Party whose breach of its obligations under this Agreement caused a failure to so file, make or obtain such Seller Governmental Approvals or Buyer Governmental Approvals, as the case may be, shall be deemed to have waived this condition to the extent of such failure; and (c) all consents, waivers and approvals listed on Schedule 7.01(c) shall have been obtainedAgreement.

Conditions to the Closing. Section 7.01 8.1 Sequoia's Conditions to the Obligations of Each PartyConsolidation and the Liquidation. The obligations of the Parties Sequoia to proceed with consummate the Closing are of the Consolidation and the Liquidation shall be subject to the satisfaction on at or prior to the Closing Date of all of the following conditions, any one or more of which may be waived in writingwaived, in whole or in part, as to a Party by such PartySequoia: (a) FNB shall have complied in all material respects with each of its covenants and agreements contained herein to be performed at or prior to the Closing Date, and each of the representations and warranties of FNB contained in this Agreement shall be true and correct in all material respects as if made at and as of the Closing Date; (b) FNB shall have delivered to Sequoia a duly authorized and signed officer's certificate, dated as of the Closing Date, certifying (i) no judgmentas to the matters specified in Section 8.1(a), injunctionand that (ii) FNB, order or decree to and including the Closing Date, has performed such review of a court or other Governmental Authority the books, records, files, documentation and accounts of competent jurisdiction shall the Branches as FNB has deemed appropriate; (c) All consents, approvals and authorizations required to be obtained prior to the Closing from governmental and regulatory authorities in effect which has connection with the effect execution and delivery of making the transactions contemplated by this Agreement illegal or otherwise restraining or prohibiting and the consummation of the transactions contemplated by this Agreement (each Party agreeing hereby to use its reasonable best effortsbe consummated at the Closing, including appeals to higher courtsthe Consolidation, to have any judgmentthe Liquidation, injunctionthe Stock Purchase, order or decree lifted) the Bank Merger and (ii) no material legal proceedings the Branch Authorization, shall have been instituted against Sellermade or obtained, the Companies or Buyer seeking to restrain or prohibit or to obtain substantial damages with respect and shall remain in full force and effect, all waiting periods applicable to the consummation of the transactions contemplated hereby; provided that, Seller and Buyer shall use their reasonable best efforts to have dismissed, settle or otherwise resolve such legal proceedings; (b) (i) any waiting period applicable to consummation of the transactions contemplated by this Agreement under the HSR Act hereby shall have expired or been terminated, terminated and (ii) all Seller Governmental Approvals and Buyer Governmental Approvals required regulatory filings shall have been filed, made or obtained, as the case may bemade; provided, however, that no governmental or regulatory consent, approval or authorization shall have imposed any condition or requirement that Sequoia in good faith determines to be materially burdensome upon the business of Sequoia or upon the consummation of the transactions contemplated hereby (the satisfaction of all of the foregoing with respect to any such transaction, a Party whose breach "Regulatory Clearance"), and provided further that notwithstanding the foregoing, if a Regulatory Clearance is obtained with respect to the Consolidation and the Liquidation on or before April 15, 2005, Sequoia shall be willing, upon request, to waive each other Regulatory Clearance; (d) There shall not be in effect any nonappealable final order, decree or judgment of its obligations under this Agreement caused a failure to so fileany court or governmental body having competent jurisdiction that would be violated by consummation of the transactions contemplated hereby, make nor any material pending or obtain threatened action, proceeding or investigation, the adverse determination of which would result in such Seller Governmental Approvals order, decree or Buyer Governmental Approvalsjudgment; provided, as that in the case may be, shall be deemed to have waived this condition to the extent of such failurematerial pending or threatened action, proceeding or investigation, no party shall decline to proceed with the Closing pending final resolution thereof without exercising its commercial best efforts promptly to determine jointly with the other party the merit thereof and the likelihood of an adverse determination in such proceeding; (e) Shareholders of Sequoia holding in the aggregate no more than fifteen percent (15%) of the outstanding Shares at the Effective Time shall have voted such Shares against the Consolidation and delivered a written notice of dissent from the Consolidation; and (cf) all consents, waivers and approvals listed on Schedule 7.01(c) The Sequoia Board of Directors shall have received an opinion of Keefe, Bruyette & Woods, Inc., dated the date of this Agreement and th▇ ▇▇▇e ▇▇ ▇▇▇▇▇ng (▇▇ ▇ date within three (3) business days prior to the date of mailing) the shareholder meeting materials contemplated by Section 5.1(d), to the effect that the Merger Consideration in the Merger is fair, from a financial point of view, to Sequoia shareholders, and such opinion shall not have been obtainedwithdrawn by the Effective Time of the Merger.

Conditions to the Closing. Section 7.01 Conditions to the Obligations of Each Party. The obligations obligation of the Parties Purchaser hereunder ------------------------- to proceed with purchase the Shares of Common Stock and the Warrant to be purchased by it on the Closing are Date is subject to the satisfaction of each of the following conditions, provided that these conditions are for the Purchaser's sole benefit and may be waived by the Purchaser at any time in the Purchaser's sole discretion: (a) The Company shall have executed this Agreement, the Warrant and the Registration Rights Agreement and delivered the same to the Purchaser. (b) The Company shall have delivered at the Closing one or more duly executed certificates representing the Shares of Common Stock, in such denominations as the Purchaser shall request. (c) The Common Stock shall be eligible for quotation on the OTCBB, suspension of such quotation by the SEC shall not be threatened or reasonably likely in the judgment of the Purchaser for the foreseeable future. (d) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing (except for those that address matters as of a particular date, which need only be true as of such date) as though made at that time and the Company shall have performed, satisfied and complied with the covenants and agreements required by this Agreement to be performed or complied with by the Company at or prior to the Closing, except where the breach of such representation, warranty or covenant would not have a Material Adverse Effect. The Purchaser shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Closing to the foregoing effect and as to such other matters as may be reasonably requested by the Purchaser. (e) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (f) The Purchaser shall have received an opinion of the Company's counsel, dated as of the Closing, in the form attached hereto as Exhibit C. --------- (g) On or prior to the Closing Date of all Date, there shall not have occurred any of the following conditions, any one or more of which may be waived in writing, in whole or in part, as to a Party by such Party: (a) following: (i) no judgmenta suspension or material limitation in the trading of securities generally on the Nasdaq National Market or the New York Stock Exchange; (ii) a general moratorium on commercial banking activities in New York declared by the applicable banking authorities; (iii) the outbreak or escalation of hostilities involving the United States, injunction, order or decree the declaration by the United States of a court national emergency or other Governmental Authority of competent jurisdiction shall be war; or (iv) a material change in effect which has international, political, financial or economic conditions, if the effect of making any such event, in the transactions judgment of the Purchaser, makes it impracticable or inadvisable to proceed with the purchase of the Purchased Shares and the Warrant on the terms and in the manner contemplated by in this Agreement illegal or otherwise restraining or prohibiting and in the consummation of other Investment Agreements. (h) On the Closing Date, the Company shall have reimbursed the Purchaser for the Purchaser's Expenses incurred in connection with the transactions contemplated by this Agreement (each Party agreeing including reasonable fees and disbursements of the Purchaser's legal counsel) as provided in Section 4.9 hereof. (i) On the Closing Date, the Purchaser shall have received a six month lock-up agreement, dated the Closing Date, from ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ in substantially the form as attached in Exhibit D. --------- (j) On the Closing Date, the Company shall have (i) repurchased the Initial Repurchased Shares and shall have paid to use its reasonable best effortsthe holder thereof in cash or by wire transfer of immediately available funds, including appeals the aggregate redemption price therefor (which, at Purchaser's election, may be effected by reducing the amount paid by Purchaser pursuant to higher courtsSection 6.1(b) above), which price shall be an amount equal to have any judgmentthe number of Redeemed Shares multiplied by an amount equal to the sum of $1,000 plus all accrued and unpaid dividends on a share of Series A Preferred Stock from August 14, injunction, order or decree lifted) 2000 to the Closing Date; and (ii) no material legal proceedings shall issued to Purchaser a new certificate evidencing the shares of Series A Preferred Stock that have not been instituted against Seller, the Companies or Buyer seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby; provided that, Seller and Buyer shall use their reasonable best efforts to have dismissed, settle or otherwise resolve such legal proceedings; (b) (i) any waiting period applicable to consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired or been terminated, and (ii) all Seller Governmental Approvals and Buyer Governmental Approvals shall have been filed, made or obtained, as the case may be; provided, however, that a Party whose breach of its obligations under this Agreement caused a failure to so file, make or obtain such Seller Governmental Approvals or Buyer Governmental Approvals, as the case may be, shall be deemed to have waived this condition to the extent of such failure; and (c) all consents, waivers and approvals listed on Schedule 7.01(c) shall have been obtainedrepurchased.

Conditions to the Closing. Section 7.01 Conditions to the Obligations of Each Party. The obligations obligation of the Parties Purchasers hereunder to proceed with purchase the Shares and Warrants to be purchased by it on the Closing are Date is subject to the satisfaction on or prior to the Closing Date of all each of the following conditions, any one or more of which provided that these conditions are for Purchasers' sole benefit and may be waived by the Purchasers at any time in writing, in whole or in part, as to a Party by such Partythe Purchasers' sole discretion: (a) (i) the Company shall have executed the signature page to this Agreement and the Registration Rights Agreement and delivered the same to Purchaser. (ii) The Company shall have delivered duly executed certificates for the Shares (in such denominations as the Purchasers shall reasonably request) and Warrants being so purchased by Purchaser at the Closing. (iii) At or prior to the Closing, Castle Creek Technology Partners LLC shall have purchased from the Company Shares and Warrants for an aggregate consideration of Three Million Five Hundred Thousand Dollars ($3,500,000) on terms substantially similar to terms contained herein. (iv) The ADSs, including all Shares and Warrant Shares, shall be listed on the Nasdaq and trading in the ADSs shall not have been suspended by the Nasdaq, the SEC or other regulatory authority and no judgmentde-listing or suspension shall be reasonably likely for the foreseeable future. (v) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing as though made at that time and the Company shall have performed, injunctionsatisfied and complied with the covenants and agreements required by this Agreement to be performed or complied with by the Company at or prior to the Closing. The Purchasers shall have received a certificate, order executed by the Chief Executive Officer or decree Chief Financial Officer of a the Company, dated as of the Closing to the foregoing effect and as to such other matters as may be reasonably requested by the Purchasers. (vi) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or other Governmental Authority governmental authority of competent jurisdiction shall be in effect or any self-regulatory organization having authority over the matters contemplated hereby which has the effect of making the transactions contemplated by this Agreement illegal or otherwise restraining or prohibiting prohibits the consummation of any of the transactions contemplated by this Agreement Agreement. (each Party agreeing to use its reasonable best effortsvii) The Purchasers shall have received the officer's certificate described in Section 3.3, including appeals to higher courts, to have any judgment, injunction, order or decree lifted) dated as of the Closing and (ii) there shall be no material legal proceedings changes from the date of signing of this Agreement to the date of the Closing other than as a result of issuance of ADSs pursuant to options, warrants and other obligations disclosed on Schedule 3.3 as of the date of this Agreement. (viii) The Purchasers shall have been instituted against Sellerreceived opinions of the Company's counsel, dated as of the Companies or Buyer seeking Closing, in the form attached hereto as Exhibit D. (ix) The Company's Depositary shall have agreed to restrain or prohibit or to obtain substantial damages act in accordance with irrevocable instructions in the form attached hereto as Exhibit E. (x) the Company shall have filed a Form D with respect to the consummation of Securities with the transactions contemplated hereby; SEC (or shall do so following the Closing) as required under Regulation D and shall have provided that, Seller and Buyer (or shall use their reasonable best efforts provide) a copy thereof to have dismissed, settle or otherwise resolve such legal proceedings;the Purchasers. (bxi) (i) any waiting period applicable to consummation of the transactions contemplated by this Agreement under the HSR Act The Company shall have expired or been terminated, filed an Additional Listing Application (and (iino additional time is required for the effectiveness thereof) with respect to all Seller Governmental Approvals Shares and Buyer Governmental Approvals shall have been filed, made or obtained, as Warrant Shares with the case may be; provided, however, that National Association of Securities Dealers and has provided a Party whose breach of its obligations under this Agreement caused a failure to so file, make or obtain such Seller Governmental Approvals or Buyer Governmental Approvals, as the case may be, shall be deemed to have waived this condition copy thereof to the extent of such failure; and (c) all consents, waivers and approvals listed on Schedule 7.01(c) shall have been obtainedPurchasers.

Conditions to the Closing. Section 7.01 Conditions The obligation of each Purchaser hereunder to purchase the Obligations of Each Party. The obligations of the Parties Shares and Warrants to proceed with be purchased by it on the Closing are Date is subject to the satisfaction on or prior to the Closing Date of all each of the following conditions, any one or more of which provided that these conditions are for each Purchaser's sole benefit and may be waived in writing, in whole or in part, as to a Party by such PartyPurchaser (with respect to it) at any time in such Purchaser's sole discretion: (a) (i) The Company shall have executed the signature page to this Agreement and the Registration Rights Agreement and delivered the same to such Purchaser. (ii) The Company shall have delivered duly executed certificates for the Shares (in such denominations as such Purchaser shall reasonably request) and Warrants being so purchased by Purchaser at the Closing. (iii) The Common Stock, including all Shares and Warrant Shares, shall be listed on the Nasdaq and trading in the Common Stock shall not have been suspended by the Nasdaq, the SEC or other regulatory authority and no judgmentde-listing or suspension shall be reasonably likely for the foreseeable future. (iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing as though made at that time and the Company shall have performed, injunctionsatisfied and complied with the covenants and agreements required by this Agreement to be performed or complied with by the Company at or prior to the Closing. Such Purchaser shall have received a certificate, order executed by the Chief Executive Officer or decree Chief Financial Officer of a the Company, dated as of the Closing to the foregoing effect. (v) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or other Governmental Authority governmental authority of competent jurisdiction shall be in effect or any self-regulatory organization having authority over the matters contemplated hereby which has the effect of making the transactions contemplated by this Agreement illegal or otherwise restraining or prohibiting prohibits the consummation of any of the transactions contemplated by this Agreement Agreement. (each Party agreeing to use its reasonable best effortsvi) Such Purchaser shall have received the officer's certificate described in Section 3.3, including appeals to higher courts, to have any judgment, injunction, order or decree lifted) dated as of the Closing and (ii) there shall be no material legal proceedings changes from the date of signing of this Agreement to the date of the Closing other than as a result of issuance of Common Stock pursuant to options, warrants and other obligations disclosed on Schedule 3.3 as of the date of this Agreement. (vii) Each other Purchaser shall have been instituted against Sellertendered payment of its applicable Purchase Price for the number of Shares set forth on such other Purchaser's signature page hereto so that the aggregate amount tendered by all of the Purchasers hereunder is no less than twelve million dollars ($12,000,000). (viii) Such Purchaser shall have received opinions of the Company's counsel, dated as of the Companies or Buyer seeking Closing, in the form attached hereto as Exhibit D. (ix) The Company's transfer agent shall have agreed to restrain or prohibit or to obtain substantial damages act in accordance with irrevocable instructions in the form attached hereto as Exhibit E. (x) The Company has filed an Additional Listing Application (and no additional time is required for the effectiveness thereof) with respect to all Shares and Warrant Shares with the consummation National Association of the transactions contemplated hereby; Securities Dealers and has provided that, Seller and Buyer shall use their reasonable best efforts to have dismissed, settle or otherwise resolve such legal proceedings; (b) (i) any waiting period applicable to consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired or been terminated, and (ii) all Seller Governmental Approvals and Buyer Governmental Approvals shall have been filed, made or obtained, as the case may be; provided, however, that a Party whose breach of its obligations under this Agreement caused a failure to so file, make or obtain such Seller Governmental Approvals or Buyer Governmental Approvals, as the case may be, shall be deemed to have waived this condition copy thereof to the extent of such failure; and (c) all consents, waivers and approvals listed on Schedule 7.01(c) shall have been obtainedPurchaser.

Conditions to the Closing. Section 7.01 Conditions The obligation of a Purchaser hereunder to purchase the Obligations of Each Party. The obligations of Series B Shares and Series B Warrants comprising the Parties to proceed with Units at the Closing are is subject to the satisfaction on or prior to the Closing Date of all each of the following conditions, any one or more of which provided that these conditions are for each Purchaser's sole benefit and may be waived by a Purchaser at any time in writing, in whole or in part, as to a Party by such PartyPurchaser's sole discretion: (a) (i) no judgmentThe Company shall have executed the signature page to this Agreement, injunctionthe Registration Rights Agreement and the Escrow Agreement and delivered the same. (ii) The Company shall have delivered to such Purchaser and the Escrow Agent the Series B Shares and Series B Warrants comprising the Units being purchased by such Purchaser at the Closing, order registered in the name of such Purchaser. (iii) The representations and warranties of the Company shall be true and correct as of each date when made as though made at that time and the Company shall have performed, satisfied and complied with the covenants and agreements required by this Agreement to be performed or decree complied with by the Company at or prior to the Closing. Completion of a the Closing shall constitute certification of these matters by the Company. (iv) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or other Governmental Authority governmental authority of competent jurisdiction shall be in effect or any self-regulatory organization having authority over the matters contemplated hereby which has the effect of making the transactions contemplated by this Agreement illegal or otherwise restraining or prohibiting prohibits the consummation of any of the transactions contemplated by this Agreement (each Party agreeing to use its reasonable best efforts, including appeals to higher courts, to have any judgment, injunction, order or decree lifted) and (ii) no material legal proceedings shall have been instituted against Seller, the Companies or Buyer seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby; provided that, Seller and Buyer shall use their reasonable best efforts to have dismissed, settle or otherwise resolve such legal proceedings; (b) (i) any waiting period applicable to consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired or been terminated, and (ii) all Seller Governmental Approvals and Buyer Governmental Approvals shall have been filed, made or obtained, as the case may be; provided, however, that a Party whose breach of its obligations under this Agreement caused a failure to so file, make or obtain such Seller Governmental Approvals or Buyer Governmental Approvals, as the case may be, shall be deemed to have waived this condition to the extent of such failure; and (c) all consents, waivers and approvals listed on Schedule 7.01(c) shall have been obtainedAgreement.

Conditions to the Closing. Section 7.01 Conditions to the Obligations of Each Party. The obligations of the Parties to proceed with the Closing are Seller and Purchaser hereunder shall be subject to the satisfaction on or written waiver at or prior to the Closing Date of all of the following conditions, any one or more of which may be waived in writing, in whole or in part, as to a Party by such Party: (a) (i) no judgment, injunction, order or decree of a court or other Governmental Authority of competent jurisdiction shall be in effect which has the effect of making the transactions contemplated by this Agreement illegal or otherwise restraining or prohibiting the consummation of the transactions contemplated by this Agreement (each Party agreeing to use its reasonable best efforts, including appeals to higher courts, to have any judgment, injunction, order or decree lifted) and (ii) no material legal proceedings shall have been instituted against Seller, the Companies or Buyer seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby; provided that, Seller and Buyer shall use their reasonable best efforts to have dismissed, settle or otherwise resolve such legal proceedings; (b) (i) any The waiting period (and any extension thereof), if any, applicable to consummation of the transactions contemplated by this Agreement under the HSR Act, shall have been terminated or shall have expired, and no restrictive order or other requirements pursuant to the HSR Act shall have expired been placed on the Parties. (b) The FCC shall have approved the Assignment Application (and such other applications as may be required by applicable law, rule or been terminatedregulation to permit the transfer to the Seller of the assets of the Company, as contemplated by the recitals of this Agreement) to be filed with respect to the transactions contemplated by this Agreement (the "FCC APPLICATIONS"). (c) No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the sale of the Station Assets shall be in effect, nor shall any proceeding by or with any Governmental Authority or third party seeking any of the foregoing be pending (excluding, in each case, any such matter initiated by Seller, Purchaser or any of their affiliates). There shall not be any Action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the sale of the Station Assets, which makes the consummation of the sale of the Assets illegal (excluding, in each case, any such matter initiated by Seller, Purchaser or any of their affiliates). (d) Purchaser and Seller shall have entered into an Unwind Agreement, substantially in the form attached hereto as EXHIBIT 3.02(e). (e) The delivery by (i) Seller to Purchaser of the items set forth in Section 3.03 and (ii) all Purchaser to Seller Governmental Approvals and Buyer Governmental Approvals of the items set forth in Section 3.04. (f) Seller shall have been filed, made or obtained, as consummated its acquisition of the case may be; provided, however, that a Party whose breach of its obligations under this Agreement caused a failure to so file, make or obtain such Seller Governmental Approvals or Buyer Governmental Approvals, as the case may be, shall be deemed to have waived this condition company at least two days prior to the extent of such failure; and (c) all consents, waivers and approvals listed on Schedule 7.01(c) shall have been obtainedClosing Date.