Common use of Third Closing Clause in Contracts

Third Closing. The third closing (the “Third Closing”) shall take place at the offices of the Purchaser on the fourteenth business day following the satisfaction or waiver of the conditions set forth in this section 4.3. (a) The obligation of the Purchaser to consummate the Third Closing is subject to the fulfillment or waiver by the Purchaser of the following conditions on the date of the Third Closing: (i) on or before December 14, 2010, the Second Condition Precedent was completed; (ii) all the Company’s representations and warranties in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement shall be true and correct in all material respects at the Third Closing as if made again at and as of that time save for any matter incorrect because of subsequent action by the Purchaser since First Closing; (iii) the Company and the Shareholders shall have performed and carried out all the covenants and other provisions in this agreement, required to have been performed and carried out by it prior to the Third Closing (except that breach thereof which is not material breach shall not prevent the performance of the Third Closing); (iv) there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) the Company shall have delivered to the Purchaser a certificate of an executive officer or certificate signed by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified in clauses (ii) through (v) above have been fulfilled. (b) At the Third Closing, the Purchaser shall issue to the Company or its Permitted Transferees the Second Debenture. (c) The obligations to consummate the Third Closing may be terminated at any time prior to the Third Closing: (i) by a written agreement between the Company or its Permitted Transferees and the Purchaser; or (ii) by the Purchaser, if any condition specified in section 4.3 shall not have been satisfied or waived in writing by the Purchaser on or before December 14, 2010.

Third Closing. The third closing (the “Third Closing”) shall take place at the offices of the Purchaser on the fourteenth business day following the satisfaction or waiver of the conditions set forth in this section 4.3. (a) The obligation of the Company to issue and sell the Units to Purchaser to consummate at the Third Closing as contemplated by Section 2.3 is subject to the fulfillment satisfaction, at or waiver by before the Purchaser Third Closing Date, of each of the following conditions, provided that these conditions on are for the date of Company’s sole benefit and may be waived by the Third ClosingCompany at any time in its sole discretion by providing Purchaser with prior written notice thereof: (i) on or before December 14, 2010, Each of the Initial Closing and the Second Condition Precedent was completed;Closing shall have occurred. (ii) all Purchaser shall have delivered to the Company the Third Closing Purchase Price (less any amounts withheld pursuant to Section 4.11 and less the outstanding principal amount of, and accrued interest on, the Notes being converted) by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company’s , and shall deliver the Notes to the Company for cancellation against delivery of the Conversion Units; provided that, if Purchaser shall have lost one or more of the Notes, Purchaser shall deliver an affidavit of loss in a form reasonably acceptable to the Company. (iii) The representations and warranties in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement Purchaser shall be true and correct in all material respects at as of the date when made and as of the Third Closing Date as if though originally made again at that time (except for representations and warranties that speak as of that time save for any matter incorrect because a specific date, which shall be true and correct as of subsequent action by the such specific date), and Purchaser since First Closing; (iii) the Company and the Shareholders shall have performed performed, satisfied and carried out complied in all material respects with the covenants covenants, agreements and other provisions in conditions required by this agreementAgreement to be performed, required to have been performed and carried out satisfied or complied with by it Purchaser at or prior to the Third Closing (except that breach thereof which is not material breach shall not prevent the performance of the Third Closing);Date. (iv) there Purchaser shall not be have executed and delivered to the Company definitive agreements with respect to the Senior Secured Credit Facility substantially on the terms set forth in effect any injunction the Credit Facility Term Sheet and other customary terms and conditions acceptable to the Company and Purchaser or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) the Company shall have delivered obtained an alternative credit facility reasonably acceptable to the Purchaser a certificate of an executive officer or certificate signed by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified in clauses (ii) through (v) above have been fulfilledPurchaser. (b) At the Third Closing, the Purchaser shall issue to the Company or its Permitted Transferees the Second Debenture. (c) The obligations to consummate the Third Closing may be terminated at any time prior to the Third Closing: (i) by a written agreement between the Company or its Permitted Transferees and the Purchaser; or (ii) by the Purchaser, if any condition specified in section 4.3 shall not have been satisfied or waived in writing by the Purchaser on or before December 14, 2010.

Third Closing. The third closing (a) Subject to Section 2.4(b), the “Third Closing”) Closing shall take place at the offices of the Purchaser occur on the fourteenth business day following the satisfaction or waiver of the conditions set forth in this section 4.3May 29, 1997. (ab) The obligation of the Purchaser Investors to consummate purchase the Preferred Shares set forth opposite each Investor's name in Schedule 2.1 at the Third Closing is and to pay the purchase price therefor at the Third Closing shall be subject to the fulfillment satisfaction, or waiver by a Consent of the Purchaser Investors, of the following conditions on the date of the Third Closing: (i) on or before December 14, 2010, the Second Condition Precedent was completed; (ii) all the Company’s The representations and warranties of the Company contained in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement Section 3 hereof shall be true and correct in all material respects at on and as of the date of the Third Closing as if made again at and as on such date. (ii) The Company shall have performed and complied in all material respects with all of its covenants and conditions set forth herein that time save for any matter incorrect because of subsequent action are required to be performed or complied with by the Purchaser since First Company on or before the date of the Third Closing;. (iii) the Company and the Shareholders shall have performed and carried out all the covenants and other provisions in this agreement, required to have been performed and carried out by it prior to the Third Closing (except that breach thereof which is not material breach shall not prevent the performance of the Third Closing); (iv) there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) the The Company shall have delivered to the Purchaser Investors an Officer's Certificate dated as of the Third Closing as to (i) the due adoption and continuing effectiveness of the resolutions of the Board, attached thereto, approving the Transaction Documents and all transactions contemplated thereby, (ii) the accuracy and continuing effectiveness of the Certificate of Incorporation and By-laws of the Company attached thereto, and (iii) the incumbency and specimen signature of each officer executing the Transaction Documents and the other closing documents on behalf of the Company. (iv) The Investors shall have received a certificate from the Company, in form and substance reasonably satisfactory to the Investors, dated the date of an executive officer or certificate the Third Closing and signed by the Permitted Transferees Chief Executive Officer of the Company, certifying that (A) the representations and warranties of the Company contained in Section 3 hereof are true and correct in all material respects on and as of the date of the Third Closing as if made at and on such date and (B) the Company has performed and complied in all material respects with all of the covenants and conditions set forth herein that are required to be performed or their officers, as complied with by the case maybe, confirming that Company on or before the conditions specified in clauses (ii) through date of the Third Closing. (v) above The Investors shall have been fulfilledreceived an opinion of counsel to the Company, dated as of the date of the Third Closing, substantially in the form of the First Legal Opinion. (bvi) The Company shall issue to each Investor set forth below a warrant, substantially in the form attached hereto as Exhibit A (each, a "New Warrant" and collectively, the "New Warrants"), exercisable into that number of outstanding shares of Common Stock as set forth opposite such Investor's name below: Investor Shares of Common Stock -------- ---------------------- GAP 35 2,763,699 GAP Coinvestment 478,945 Dow 2,161,764 (c) At the Third Closing, the Purchaser Company shall issue and sell to each Investor, and each Investor severally and not jointly shall purchase from the Company, the number of Preferred Shares set forth opposite such Investor's name in Schedule 2.1. At the Third Closing, the following shall occur: (i) The Company shall execute and deliver to the Investors or their designated nominees certificates evidencing the Preferred Shares so purchased. (ii) The Investors shall deliver the purchase price for such Preferred Shares to the Company or its Permitted Transferees the Second Debentureby wire transfer. (ciii) The obligations Each of GAP 35, GAP Coinvestment and Dow Jone▇ shall surrender the Warrant previously issued to consummate it in connection with the Third Second Closing may be terminated at any time prior to the Third Closing: Company for cancellation." (id) by a written agreement between Schedule 2.1 to the Company or Stock Purchase Agreement is hereby deleted in its Permitted Transferees entirety and the Purchaser; or (ii) by the Purchaserreplaced with Exhibit B, if any condition specified in section 4.3 shall not have been satisfied or waived in writing by the Purchaser on or before December 14, 2010attached hereto.

Third Closing. The third closing (the “Third Closing”) shall take place at the offices of the Purchaser on the fourteenth business day following the satisfaction or waiver of the conditions set forth in this section 4.3. (a) The obligation of the Purchaser Company hereunder to consummate issue and sell the Third Preferred Shares to each Buyer at the Third Closing is subject to the fulfillment satisfaction, at or waiver by before the Purchaser Second Closing Date, of each of the following conditions, provided that these conditions on are for the date of Company’s sole benefit and may be waived by the Third ClosingCompany at any time in its sole discretion by providing each Buyer with prior written notice thereof: (ia) on or before December 14, 2010, Such Buyer and each other Buyer shall have delivered to the Second Condition Precedent was completed; (ii) all Company the Third Purchase Price for the Third Preferred Shares being purchased by such Buyer at the Third Closing by wire transfer of immediately available funds in accordance with the Company’s written wire instructions. (b) The representations and warranties in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement such Buyer shall be true and correct in all material respects at (except for those representations and warranties that are qualified by materiality or material adverse effect, which shall be true and correct in all respects) as of the Third Closing as if date when made again at and as of the Second Closing Date as though originally made at such time (except for representations and warranties that time save for any matter incorrect because speak as of subsequent action by the Purchaser since First Closing; (iii) the Company a specific date, which shall be true and the Shareholders correct as of such specific date), and such Buyer shall have performed performed, satisfied, and carried out complied in all material respects with the covenants covenants, agreements, and other provisions in conditions required by this agreementAgreement to be performed, required to have been performed and carried out satisfied, or complied with by it such Buyer at or prior to the Third Second Closing (except that breach thereof which is not material breach shall not prevent the performance of the Third Closing);Date. (ivc) there No statute, rule, regulation, executive order, decree, ruling, or injunction shall not be in effect have been enacted, entered, promulgated, or endorsed by any injunction court or restraining order issued by a court Governmental Entity of competent jurisdiction in any action that prohibits or proceeding against restrains the consummation of any of the transactions contemplated by this agreement; and (v) the Company shall have delivered to the Purchaser a certificate of an executive officer or certificate signed by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified in clauses (ii) through (v) above have been fulfilledTransaction Documents. (b) At the Third Closing, the Purchaser shall issue to the Company or its Permitted Transferees the Second Debenture. (c) The obligations to consummate the Third Closing may be terminated at any time prior to the Third Closing: (i) by a written agreement between the Company or its Permitted Transferees and the Purchaser; or (ii) by the Purchaser, if any condition specified in section 4.3 shall not have been satisfied or waived in writing by the Purchaser on or before December 14, 2010.