Common use of Subsequent Installments Clause in Contracts

Subsequent Installments. After the sale and purchase of Common Stock pursuant to Section 2.1 and subject to the terms and conditions of this Agreement, the Company shall sell and issue to the Investors and the Investors shall be obligated to purchase from the Company the Additional Commitment Shares at the Share Purchase Price. Additional closings shall be held from time to time after the Initial Closing with respect to the Additional Commitment Shares on the terms and conditions set forth in this Section 2.2. (a) In the event any one of the Milestones is achieved, the Company shall promptly give written notice to the Investors in the form attached hereto as Appendix B (the “Installment Notice”). (b) On the 20th Business Day following the date on which an Installment Notice is given to the Investors, a closing (a “Subsequent Closing”) shall take place at the offices of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (i) at 1:00 p.m. local time on that date, or (ii) at such other time and place or on such date as the Investors and the Company may agree upon (a “Subsequent Closing Date”), and at each such Subsequent Closing the Company shall deliver or cause to be delivered to the Investors the Installment Shares, and the Investors shall deliver or cause to be delivered to the Company by wire transfer to an account designated in writing by the Company prior to each Subsequent Closing the Installment Payment. (c) The obligation of the Investors to purchase any of the Additional Commitment Shares not previously purchased under this Section 2.2 shall terminate in accordance with the terms set forth in Appendix A.

Subsequent Installments. After Each of the sale and purchase of Common Stock pursuant to Section 2.1 and Purchasers shall, subject to the terms and conditions hereof, make one or more additional advances to the Company in the aggregate amount up to (and not to exceed) the amount set forth opposite such Purchaser’s name on Schedule 1 hereto under the heading “Subsequent Installment Amount,” in one or more fundings from time to time from the Closing Date through July 31, 2005 (each such advance, a “Subsequent Installment” and, collectively, the “Subsequent Installments”). If the Company desires the Purchasers to make a Subsequent Installment, it shall deliver a written request to the Purchasers, which request shall specify the amount of such Subsequent Installment, the intended use of such Subsequent Installment funds and shall certify that the none of the events specified in clauses (i) through (iii) in the subsequent sentence shall have occurred (the “Funding Request Notice”). No Purchaser shall be obligated to fund any Subsequent Installment if (i) any representation or warranty by the Company contained herein shall be untrue or incorrect in any way on the date of such Subsequent Installment, (ii) that certain letter of intent dated June 29, 2005 between an affiliate of the Purchasers and the Company (the “Letter of Intent”) shall have been terminated or the conditions to the payment of the termination fee contemplated by paragraph 5(c) of the Letter of Intent shall have occurred (the date any termination fee becomes due being deemed a termination thereof even if no formal written termination notice has been given), or (iii) any breach or default (including an Event of Default (defined below)) shall have occurred and be continuing under this Agreement, any Note, the Guaranty, the Security Agreement, the Subordination Agreement or the Letter of Intent (collectively, the “Bridge Loan Documents”). The funding of any Subsequent Installment shall occur within five business days after the receipt of the applicable Funding Request Notice by delivery by Purchasers to the Company via wire transfer of immediately available United States funds, the amount listed in the Funding Request Notice delivered to such Purchaser. All Installment Amounts and all payments of principal and interest under each Note (or any portion, installment or drawdown thereon) shall be recorded by the applicable Purchaser and endorsed on the grid which is part of such Purchaser’s Note. The entries on the grid which is part of such Note shall be prima facie evidence of amounts outstanding thereunder. The failure to make any such endorsement or any error in any such endorsement shall not affect the obligations of the Company or the Guarantor in respect of the First Installment or any Subsequent Installment. In no event shall the aggregate amount of all Subsequent Installments advanced by any Purchaser exceed the amount set forth opposite such Purchaser’s name on Schedule 1 hereto under the heading “Subsequent Installment Amount.” On or before the date of any Subsequent Installment, the Company shall sell and issue deliver to the Investors and the Investors shall Purchasers such documents as may be obligated to purchase from the Company the Additional Commitment Shares at the Share Purchase Price. Additional closings shall be held from time to time after the Initial Closing with respect to the Additional Commitment Shares on the terms and conditions set forth in this Section 2.2requested by them. (a) In the event any one of the Milestones is achieved, the Company shall promptly give written notice to the Investors in the form attached hereto as Appendix B (the “Installment Notice”). (b) On the 20th Business Day following the date on which an Installment Notice is given to the Investors, a closing (a “Subsequent Closing”) shall take place at the offices of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (i) at 1:00 p.m. local time on that date, or (ii) at such other time and place or on such date as the Investors and the Company may agree upon (a “Subsequent Closing Date”), and at each such Subsequent Closing the Company shall deliver or cause to be delivered to the Investors the Installment Shares, and the Investors shall deliver or cause to be delivered to the Company by wire transfer to an account designated in writing by the Company prior to each Subsequent Closing the Installment Payment. (c) The obligation of the Investors to purchase any of the Additional Commitment Shares not previously purchased under this Section 2.2 shall terminate in accordance with the terms set forth in Appendix A.

Subsequent Installments. After (a) Each of the sale and purchase of Common Stock pursuant to Section 2.1 and Purchasers shall, subject to the terms and conditions of this Agreementhereof, make one or more additional advances to the Company shall sell in the aggregate amount up to (and issue not to exceed) the Investors and amount set forth opposite such Purchaser’s name on Schedule 1 hereto under the Investors shall be obligated to purchase from the Company the Additional Commitment Shares at the Share Purchase Price. Additional closings shall be held heading “Subsequent Installment Amount,” in one or more fundings from time to time after from the Initial Closing with respect to Date through the Additional Commitment Shares on business day immediately preceding the terms and conditions set forth in this Section 2.2. Maturity Date (aas defined below) In the event any one of the Milestones is achieved(each such advance, a “Subsequent Installment” and, collectively, the Company shall promptly give written notice to the Investors in the form attached hereto as Appendix B (the “Installment NoticeSubsequent Installments”). (b) On If the 20th Business Day following Company desires the date on which an Installment Notice is given Purchasers to make a Subsequent Installment, it shall deliver a written request to the InvestorsPurchasers, a closing which request shall specify the amount of such Subsequent Installment (a “which shall be in minimum increments of no less than $100,000), the intended use of such Subsequent Closing”) Installment funds and shall take place at certify that the offices none of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ the events specified in clauses (i) at 1:00 p.m. local time on through (iv) in Section 4(c) below shall have occurred (the “Funding Request Notice”); provided, however, that datein no event shall the Company make a request for a Subsequent Installment sooner than fifteen (15) days following the funding of the most recent First Installment or any Subsequent Installment, or (ii) at such other time and place or on such date as the Investors and the Company case may agree upon (a “Subsequent Closing Date”), and at each such Subsequent Closing the Company shall deliver or cause to be delivered to the Investors the Installment Shares, and the Investors shall deliver or cause to be delivered to the Company by wire transfer to an account designated in writing by the Company prior to each Subsequent Closing the Installment Paymentbe. (c) The obligation of the Investors No Purchaser shall be obligated to purchase fund any Subsequent Installment if any of the Additional Commitment Shares following shall have occurred: (i) any representation or warranty by the Company contained in the Bridge Loan Documents or in the Acquisition Documents shall be untrue or incorrect in any way on the date of such Subsequent Installment; (ii) the Company has not previously purchased under this Section 2.2 shall terminate in accordance with performed or has otherwise breached the terms covenants set forth in Appendix A.the Acquisition Documents required to be performed on or before the date of such Subsequent Installment; (iii) any breach or default (including an Event of Default (defined below)) shall have occurred and be continuing under this Agreement or any of the Bridge Loan Documents, or (iv) the Company shall have received any proposal or expression of interest relating to an Acquisition Proposal (as defined in the Asset Purchase Agreement) which Acquisition Proposal has not been rejected by the Company within five (5) business days of receipt (or prior to delivery of the Funding Request Notice (if earlier)). (d) Subject to the satisfaction of the conditions contained in this Section 4, the funding of any Subsequent Installment shall occur within five business days after the receipt of the applicable Funding Request Notice by delivery by Purchasers to the Company via wire transfer of immediately available United States funds, the amount listed in the Funding Request Notice delivered to such Purchaser. All Installment Amounts and all payments of principal and interest under each Note (or any portion, installment or drawdown thereon) shall be recorded by the applicable Purchaser and endorsed on the grid which is part of such Purchaser’s Note. The entries on the grid which is part of such Note shall be prima facie evidence of amounts outstanding thereunder. The failure to make any such endorsement or any error in any such endorsement shall not affect the obligations of the Company or the Guarantors in respect of the First Installment or any Subsequent Installment. In no event shall the aggregate amount of all Subsequent Installments advanced by any Purchaser exceed the amount set forth opposite such Purchaser’s name on Schedule 1 hereto under the heading “Subsequent Installment Amount.” On or before the date of any Subsequent Installment, the Company shall deliver to the Purchasers such documents as may be requested by them.