Subsequent Closing Clause Samples

Subsequent Closing. Section 2.2 of the Agreement hereby is deleted and replaced in its entirety with the following (a) The initial sale of the Preferred Stock shall occur in three stages on three purchase dates, the first being the "Subsequent Closing", the second being the "Second Preferred Closing" and the third being the "Third Preferred Closing", each of which respective dates shall be determined as set forth below and shall be subject to the conditions set forth herein; provided, that additional sales of any remaining Commitments in excess of $150 million may occur after the Third Preferred Closing as set forth below. Each sale of the Preferred Stock shall take place at the location as agreed to by the Purchasers and the Company, or in the absence of such agreement, then at the offices of counsel for the single largest Purchaser of Preferred Stock. In connection with the funding of the first $150 million of the Commitment Amount (as defined below) to complete the purchase of Preferred Stock, the Purchasers shall be obligated to remit to the Company funds for their purchase of Preferred Stock on the following funding dates: (i) $25 million of the Commitment Amount shall be remitted no later than on the third (3rd) Business Day after the Subsequent Closing; (ii) up to $25 million of the Commitment Amount shall be remitted no later than on the tenth (10th) Business Day after the Second Preferred Closing, which amount and purchase date shall be determined by the Board of Directors; provided, however, that the date of such remittance for the Second Preferred Closing shall occur no earlier than January 2, 2001; and (iii) up to $100 million of the Commitment Amount (plus, any amount of the $25 million that has not been funded in connection with the Second Preferred Closing) shall be remitted no later than on the tenth (10th) Business Day after the Third Preferred Closing, which amount and purchase date shall be determined by the Board of Directors; provided, however, that the date of such remittance for the Third Preferred Closing shall occur no earlier than January 2, 2001. In connection with the Third Preferred Closing, each Purchaser's obligation to purchase and pay for the Preferred Stock to be sold to such Purchaser at the Third Preferred Closing is subject to the satisfaction or waiver, prior to or at the Commitment Revocation Date, of the conditions set forth in Sections 3A.1, 3A.2, 3A.3, 3A.10 and 3A.12; provided that each such Section is applied by substituting the "Co...

Subsequent Closing. On the Subsequent Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and each Purchaser agrees to purchase, that number of Shares and Warrants equaling its respective Subscription Amount. Each Purchaser shall deliver to the Company, via wire transfer or a check, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by the Purchaser and the Company shall deliver to each Purchaser its respective Shares and Warrants, and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at each Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Subsequent Closing shall occur at such location as the parties shall mutually agree, including the delivery to the Company of immediately available funds comprising the aggregate Subscription Amounts for such Subsequent Closing.

Subsequent Closing. In any subsequent closing (each, a “Subsequent Closing”), the Company may sell additional Notes subject to the terms of this Agreement to any Lender as it shall select; provided that such sale shall not take place later than July 31, 2024, and the aggregate amount of Consideration does not exceed $3 million. Any subsequent purchasers of Notes shall become a party to, and shall be entitled to receive Notes in accordance with this Agreement. Each Subsequent Closing shall take place at such locations and at such times as shall be mutually agreed upon orally or in writing by the Company and such purchasers of additional Notes.

Subsequent Closing. The subsequent closing of the purchase and sale of 4,765,248 Shares shall take place at the offices of HLG at 10:00 a.m. on or before June , 2012 (which time, date and place are referred to in this Agreement as the “Subsequent Closing” and, together with the Initial Closing, each, a “Closing”). At the Subsequent Closing, the Company shall deliver to the New Investor a certificate representing the Shares that such New Investor is purchasing against payment of the aggregate Series C-1 Purchase Price therefor by check or wire transfer. The New Investor shall become a party to, and become bound by, this Agreement, the Investors’ Rights Agreement, the Confidential treatment has been requested with respect to portions of this agreement as indicated by “[***]” and such confidential portions have been deleted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Voting Agreement and the First Refusal and Co-Sale Agreement as an “Investor” thereunder without, except as otherwise agreed with the Company, the need for an amendment to this Agreement, the Investors’ Rights Agreement, the Voting Agreement and the First Refusal and Co-Sale Agreement except to add such New Investor as a signatory thereto and to add such New Investor’s name to the appropriate schedule to such agreement (including supplementing Schedule A with the name and address of each New Investor, the number of Shares to be purchased by such New Investor at the Subsequent Closing and the total Series C-1 Purchase Price payable by such New Investor at the Subsequent Closing) and each New Investor shall have the rights and obligations hereunder and thereunder as an “Investor”, in each case as of the date of the Subsequent Closing.

Subsequent Closing. The Company may, in its sole discretion, provide for deferred closings hereunder (a "Subsequent Closing"), to be held at the offices of the Company, at such time and dates as the Company may determine (the date of any such Subsequent Closing being referred to as a "Subsequent Closing Date"). Any Subsequent Closing(s) will take place as promptly as possible following the initial Closing hereunder. The number of shares of Series D Preferred which any Subsequent Investor shall be entitled to purchase, shall be determined within the sole discretion of the Company, but in no event shall the total number of shares of Series D Preferred sold pursuant to this Agreement be more than three million (3,000,000) shares. Upon completion of any Subsequent Closing, if any, all additional purchasers of shares of Series D Preferred shall be considered "Investors" within the meaning of this Agreement.

Subsequent Closing. Following the initial Closing, the Company may sell additional notes (the “Additional Notes”) and additional warrants (the “Additional Warrants”) to the same or other investors (the “Additional Investors”) on the same terms set forth in this Agreement. The Company shall revise Schedule I to this Agreement to reflect such additional sales. The closing of the purchases and sales of the Additional Notes and Additional Warrants shall take place at such times and places as the Company and the Additional Investor(s) shall mutually agree (each closing a “Subsequent Closing”). At the Subsequent Closing, the Company will deliver to each of the Additional Investors the respective Note and Warrant to be purchased by such Additional Investor, against receipt by the Company of the corresponding purchase price set forth on Schedule I hereto (also, the “Purchase Price”). Each of the Notes and Warrants will be registered in such Additional Investor’s name in the Company’s records. Unless the context requires otherwise, the Closing and any Subsequent Closing is generally referred to as a “Closing”, and each Investor and each Additional Investor is generally referred to as an “Investor.” Each Additional Investor under this Section 1(c) shall be deemed to be an Investor under this Agreement subject to the terms and conditions hereunder, and any Additional Notes and Additional Warrants purchased and sold in a Subsequent Closing shall be deemed respectively to be “Notes” and “Warrants” (as defined in Section 1(a) of this Agreement).

Subsequent Closing. Section 1.3 of the Original Agreement is hereby amended to read as follows:

Subsequent Closing. On the Subsequent Closing Date, (i) each Subsequent Purchaser shall pay such amount as set forth opposite such Purchaser’s name in column (5) on the Subsequent Schedule of Purchasers attached hereto (the “Subsequent Subscription Amount” and together with the Initial Subscription Amount, the “Subscription Amount”) to the Company for the Subsequent Notes and the Subsequent Warrants to be issued and sold to such Subsequent Purchaser at the Subsequent Closing (less, in the case of the Lead Investor, the amounts withheld pursuant to Section 5.2) by wire transfer of immediately available funds in accordance with the Company’s written wire instructions or a certified check, (ii) the Company shall deliver to each Subsequent Purchaser the Subsequent Notes which such Subsequent Purchaser is then purchasing hereunder along with the Subsequent Warrants which such Subsequent Purchaser is purchasing hereunder, in each case duly executed on behalf of the Company and registered in the name of such Subsequent Purchaser or its designee and (iii) the Company and each Subsequent Purchaser shall deliver the other items set forth in Section 2.2(b) at the Subsequent Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2(b), 2.3(c) and 2.3(d), the Subsequent Closing shall take place remotely by electronic transfer of the Subsequent Closing documentation.

Subsequent Closing. At each Subsequent Closing, if appropriate, the Buyer shall deliver to or at the direction of each of the Remaining Sellers participating at such Closing, duly executed and properly acknowledged, relating to the Ownership Shares being sold, assigned or transferred at such Closing: (i) the Relevant Facility Purchase Price, the Relevant Fuel Purchase Price, the Relevant Unit 2 Purchase Price and amounts due from the Buyer, if any for the Estimated Adjustment pursuant to Section 2.6(d); (ii) an Assignment and Assumption Agreement; (iii) a certificate from an authorized officer of the Buyer, dated such Closing Date, to the effect that the conditions set forth in Sections 6.2(a), 6.2(b), 6.2(d), 6.2(e), 6.2(f), 6.2(g), 6.2(h), 6.2(i) and 6.2(l) have been satisfied; (iv) a copy, certified by an authorized officer of the Buyer, of resolutions authorizing the execution and delivery of this Agreement and Related Agreements to which the Buyer is a party and instruments attached as exhibits hereto and thereto, and the consummation of the transactions contemplated hereby and thereby; (v) a certificate of an authorized officer of the Buyer which shall identify by name and title and bear the signature of the officers of the Buyer authorized to execute and deliver this Agreement and the Related Agreements to which the Buyer is a party and instruments attached as exhibits hereto and thereto; (vi) an opinion or opinions from one or more counsel to the Buyer (who shall be reasonably satisfactory to the Remaining Sellers), dated such Closing Date and reasonably satisfactory in form to the Remaining Sellers and their counsel, covering substantially the matters set forth in SCHEDULE 2.12; (vii) a certificate of good standing with respect to the Buyer (dated as of a recent date prior to such Closing Date) issued by the Secretary of State of Delaware; (viii) a certificate of good standing with respect to the Buyer (dated as of a recent date prior to such Closing Date) issued by the Secretary of State of New Hampshire; (ix) such other agreements, consents, documents, instruments and writings as are reasonably required to be delivered by the Buyer at or prior to such Closing Date pursuant to this Agreement or the Related Agreements or otherwise reasonably required in connection herewith or therewith, including all such other instruments of assumption as the Remaining Sellers or their counsel may reasonably request in connection with the purchase of the Acquired Assets or the trans...