Common use of Subsequent Closing Clause in Contracts

Subsequent Closing. If the Company determines that a subsequent closing (the “Subsequent Closing”) shall occur, then the Company shall promptly notify the Purchaser regarding such determination and shall conduct a Subsequent Closing on a date mutually agreed by the Company and the Purchaser (the “Subsequent Closing Date”) that is within ten (10) days of the date of such determination. In the event of a Subsequent Closing: (i) the sale of the Notes and Warrants at the Subsequent Closing shall be made on the terms and conditions set forth in this Agreement; (ii) the representations and warranties of the Company set forth in Section 2 hereof shall speak only as of the Initial Closing Date; and (iii) the representations and warranties of the Purchaser in Section 3 hereof shall speak as of such Subsequent Closing Date. At the Subsequent Closing: (x) the Purchaser shall deliver to the Company, via wire transfer of immediately available funds, cash in the amount of (1) the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A, plus (2) the Warrant Purchase Price for the Subsequent Closing; and (y) the Company shall issue and deliver to the Purchaser (1) a Note in favor of the Purchaser representing an initial principal balance equal to the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A and (2) a corresponding Warrant.

Subsequent Closing. If Subject in each case to the Company determines that a subsequent closing satisfaction or waiver of the conditions set forth in Sections 6.2, 6.3 and 6.4, the Subsequent Closings may take place on such date or dates prior to the two-year anniversary of the date hereof (the “Subsequent ClosingInvestment Deadline”) shall occuras may be determined by WLR from time to time (each, then the Company shall promptly notify the Purchaser regarding such determination and shall conduct a Subsequent Closing on a date mutually agreed by the Company and the Purchaser (the “Subsequent Closing Date”) ); provided, however, that, if at any time prior to the 90th calendar day after the Initial Closing, the Company gives WLR written notice as hereafter provided that is within ten (10) days it intends to consummate a Qualifying Transaction in accordance with this Agreement and reasonably believes, based on the circumstances as of the date of such determination. In written notice, that such Qualifying Transaction can be consummated prior to the event first anniversary of the date hereof, the Investors will consummate, simultaneously with the closing of the Qualifying Transaction (which must occur no later than the first anniversary of the date hereof), a Subsequent Closing with respect to up to all of the Subsequent Shares that have not, as of such time, previously been purchased by the Investors pursuant to this Section 2.2 (such remaining Subsequent Shares, at any applicable time, the “Remaining Subsequent Shares”), provided that the total investment in Subsequent Shares does not exceed $46.875 million and, in the case of a Subsequent Closing: (i) Qualifying Transaction, the sale Company has arranged debt financing for the balance, if any, of the Notes and Warrants at total purchase price payable by the Company Group in the Qualifying Transaction on terms reasonably satisfactory to WLR. With respect to any Subsequent Closing shall be made on the terms and conditions set forth in this Agreement; (ii) the representations and warranties of requested by WLR or the Company set forth in prior to the Investment Deadline pursuant to this Section 2 hereof shall speak only 2.2, WLR or the Company, as of applicable, will provide the Initial Closing Date; and (iii) the representations and warranties of the Purchaser in Section 3 hereof shall speak as Company or WLR, respectively, with written notice of such Subsequent Closing at least (i) ten Business Days prior to the applicable Subsequent Closing Date, in the case of a Subsequent Closing requested by WLR, and (ii) 20 Business Days prior to the applicable Subsequent Closing Date, in the case of a Subsequent Closing in respect of a Qualifying Transaction, provided that in the case of a Subsequent Closing relating to a Qualifying Transaction, the Company shall have received, not fewer than 15 Business Days prior the relevant Subsequent Closing Date, written confirmation from WLR that it has received such information as WLR shall have determined in good faith was reasonably necessary for it to consider the transaction to which such Subsequent Closing relates; provided, however, that WLR will, at the Company’s request, use its commercially reasonable efforts to act as promptly as practicable in connection with the actions required to be performed by or within the foregoing time periods. At the each Subsequent Closing: (x) the Purchaser shall deliver to the Company, via each Investor will pay, by wire transfer of immediately available funds, cash in funds to bank accounts designated by the amount of (1) the Purchaser’s Loan Amount for the Company at least three Business Days prior to such Subsequent Closing, an amount equal to its pro rata share of the aggregate purchase price payable for the portion of the Subsequent Shares being purchased at such Subsequent Closing as set forth under the heading “Investor Percentage” on Exhibit AB, plus (2) the Warrant Purchase Price for the Subsequent Closing; and (y) the Company shall issue and deliver subject to the Purchaser (1) a Note in favor of the Purchaser representing an initial principal balance equal any adjustments pursuant to the Purchaser’s Loan Amount for the Section 2.3. At each Subsequent Closing, as set forth on Exhibit A and (2) a corresponding Warrantthe Company will issue to each Investor the portion of its applicable Subsequent Shares that reflects such Investor’s proportionate funding in connection with such Subsequent Closing, assuming all Subsequent Shares have equal value.

Subsequent Closing. If the Company determines that a The subsequent closing of the transactions contemplated hereby (the “"Subsequent Closing”") shall occurtake place beginning at 10:00 a.m., then Chicago time, on the Company shall promptly notify the Purchaser regarding such determination and shall conduct a Subsequent Closing on a Date (which date mutually agreed shall be June __, 1996 unless another date is specified in the Notice of Delivery) at the offices of Neal, Xxrber & Eisexxxxx, Xxo Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 xx at such other place or time as the parties hereto shall agree. Upon receipt by the Company Indenture Trustee on the Subsequent Closing Date of the full amount of the Owner Participant's Commitment in respect of the Units delivered on the Subsequent Closing Date and the Purchaser (Loan Participant's Commitment in respect of the “Units delivered on the Subsequent Closing Date”) that is within ten (10) days , the Indenture Trustee on behalf of the date Owner Trustee shall, subject to the conditions set forth in Sections 4.1 and 4.3 having been fulfilled to the satisfaction of such determination. In the event of a Owner Participant or waived by the Owner Participant, pay to the Lessee from the funds then held by it, in immediately available funds, an amount equal to the Equipment Cost for the Units delivered on the Subsequent Closing: Closing Date, and simultaneously therewith, (i) the sale of Lessee shall deliver such Units to the Notes and Warrants at the Subsequent Closing shall be made on the terms and conditions set forth in this Agreement; Owner Trustee, (ii) the representations Owner Trustee shall, pursuant to the Lease, lease and warranties deliver the Equipment delivered on the Subsequent Closing Date to the Lessee, and the Lessee, pursuant to the Lease, shall accept delivery of such Units under the Lease, such lease, delivery and acceptance of the Company set forth in Section 2 hereof Units under the Lease shall speak only as be conclusively evidenced by the execution and delivery by the Lessee and Owner Trustee of the Initial Closing Date; and (iii) the representations and warranties of the Purchaser in Section 3 hereof shall speak as of such Subsequent Closing Date. At the Subsequent Closing: (x) the Purchaser shall deliver to the Company, via wire transfer of immediately available funds, cash in the amount of (1) the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A, plus (2) the Warrant Purchase Price for the Subsequent Closing; and (y) the Company shall issue and deliver to the Purchaser (1) a Note in favor of the Purchaser representing an initial principal balance equal to the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A and (2) a corresponding Warrant.Lease Supplement covering

Subsequent Closing. If Subject to the Company determines that terms and conditions of this Agreement, after the Closing and at any time on or prior to thirty (30) days following the Closing, at a subsequent closing (the a “Subsequent Closing”) shall occur), then the Company may issue and sell to one or more individuals and entities approved by the Company’s Board of Directors (each an “Additional Buyer” and collectively, the “Additional Buyers”) an aggregate principal amount of Notes up to an aggregate of $5,000,000, including all previously issued Notes, at the Purchase Price. All Buyers at previous closings shall promptly notify be given the Purchaser regarding such determination option to rescinding their purchase of Notes and shall conduct have their money returned by the Company or to have their Notes and other purchase documents amended to the terms set forth herein and in the Transaction Document contemplated hereby. At a Subsequent Closing on a date mutually agreed by the Company and the Purchaser (the “Subsequent Closing Date”) that is within ten (10) days of the date of such determination. In the event of a Subsequent Closing: (i) the sale of the Notes and Warrants at the Subsequent Closing shall be made on the terms and conditions set forth in this Agreement; (ii) the representations and warranties of the Company set forth in Section 2 3 hereof shall speak only as of the Initial date of the Subsequent Closing Date; (subject to any updates to the Disclosure Schedules as may be made by the Company), and (iii) the representations and warranties of the Purchaser in Section 3 hereof Additional Buyers shall speak as of such the date of the respective Subsequent Closing DateClosing. At the Subsequent Closing: (x) the Purchaser shall deliver to the Company, via wire transfer of immediately available funds, cash in the amount of (1) the Purchaser’s Loan Amount for the a Subsequent Closing, as set forth on Exhibit A(i) each Additional Buyer and the Company shall execute a counterpart signature page hereto and to the relevant Transaction Documents, plus (2) the Warrant Purchase Price for the Subsequent Closing; and (yii) the Company shall issue cause the Schedule of Buyers hereto to be updated to reflect the purchases made by the Additional Buyers, (iii) each Additional Buyer shall become a “Buyer” hereunder and the Notes purchased by such Additional Buyer shall be deemed “Notes”, for purposes of this Agreement and the other Transaction Documents, and (iv) subject to the terms and conditions hereof, the Company will deliver to the Purchaser (1) a Note in favor each of the Purchaser representing an initial principal balance equal Additional Buyers purchasing Notes at a Subsequent Closing the applicable Notes registered in the name of such Additional Buyer, against payment to the Purchaser’s Loan Amount for Company of the Subsequent ClosingPurchase Price therefor in cash by wire transfer, as set forth on Exhibit A and (2) a corresponding Warrantcheck or other method acceptable to the Company.

Subsequent Closing. If the Company determines that a The subsequent closing of the transactions contemplated hereby (the “"Subsequent Closing”") shall occurtake place beginning at 10:00 a.m., then Chicago time, on the Company shall promptly notify the Purchaser regarding such determination and shall conduct a Subsequent Closing on a Date (which date mutually agreed shall be June 8, 1998 unless another date is specified in the Notice of Delivery) at the offices of Neal, Xxrbxx & Xisexxxxx, Xxo Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 xx at such other place or time as the parties hereto shall agree. Upon receipt by the Company Indenture Trustee on the Subsequent Closing Date of the full amount of the Owner Participant's Commitment in respect of the Units delivered on the Subsequent Closing Date and the Purchaser (Loan Participant's Commitment in respect of the “Units delivered on the Subsequent Closing Date”) that is within ten (10) days , the Indenture Trustee on behalf of the date Owner Trustee shall, subject to the conditions set forth in Sections 4.1 and 4.3 having been fulfilled to the satisfaction of such determination. In the event of a Owner Participant or waived by the Owner Participant, pay to the Lessee from the funds then held by it, in immediately available funds, an amount equal to the Equipment Cost for the Units delivered on the Subsequent Closing: Closing Date, and simultaneously therewith, (i) the sale of Lessee shall, pursuant to the Notes and Warrants at Bill xx Sale, deliver such Units to the Subsequent Closing shall be made on the terms and conditions set forth in this Agreement; Owner Trustee, (ii) the representations Owner Trustee shall, pursuant to the Lease, lease and warranties deliver the Equipment delivered on the Subsequent Closing Date to the Lessee, and the Lessee, pursuant to the Lease, shall accept delivery of such Units under the Lease, such lease, delivery and acceptance of the Company set forth in Section 2 hereof Units under the Lease shall speak only as of be conclusively evidenced by the Initial Closing Date; execution and (iii) delivery by the representations Lessee and warranties of the Purchaser in Section 3 hereof shall speak as of such Subsequent Closing Date. At the Subsequent Closing: (x) the Purchaser shall deliver to the Company, via wire transfer of immediately available funds, cash in the amount of (1) the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A, plus (2) the Warrant Purchase Price for the Subsequent Closing; and (y) the Company shall issue and deliver to the Purchaser (1) a Note in favor of the Purchaser representing an initial principal balance equal to the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A and (2) a corresponding Warrant.Owner Trustee of

Subsequent Closing. If On or before the Subsequent Closing Date, upon the terms and subject to the conditions set forth herein, the Company determines that a subsequent closing (agrees to sell, and the “Purchaser agrees to purchase, the Amended and Restated Notes. Simultaneously with the issuance of the Amended and Restated Notes, the Initial Note shall be cancelled. On the Subsequent Closing”) shall occurClosing Date, then the Company shall promptly notify deliver to the Purchaser regarding such determination its Amended and shall conduct a Restated Notes and Subsequent Closing on a date mutually agreed by Warrant, as determined pursuant to Section 2.4(b)(i), and the Company and the Purchaser (shall deliver the “other items set forth in Section 2.4(b) deliverable on the Subsequent Closing Date”) that is within ten (10) days . If the initial Purchaser has assigned all or a portion of the date of such determination$1,000,000, the additional Purchasers shall execute the Purchaser’s signature page to this Agreement and complete and execute Exhibit F to this Agreement. In the event of a Subsequent Closing: (i) the sale Upon receipt of the original manually signed Amended and Restated Notes and Warrants at Subsequent, the Subsequent Closing Purchaser shall be made on cause his attorneys to wire transfer $800,000 to the terms Company that day or if the wire deadline has passed the next business day. Upon satisfaction of the covenants and conditions set forth in Sections 2.4 and 2.5, the Closing shall occur at the offices of Ruskin Moscou Faltischek, P.C., 1425 RXR Plaza, 00xx Xxxxx, Xxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, or such other location as the parties shall mutually agree. Provided, however, that if the Subsequent Closing Date does not take place on or prior to February 27, 2015, neither the Company nor the Purchaser shall have any further obligations or liability with respect to this Agreement; (ii) , and the representations and warranties Initial Note shall remain outstanding as an unsecured obligation of the Company set forth in Section 2 hereof shall speak only as of the Initial Closing Date; and (iii) the representations and warranties of the Purchaser in Section 3 hereof shall speak as of such Subsequent Closing Date. At the Subsequent Closing: (x) the Purchaser shall deliver to the Company, via wire transfer of immediately available funds, cash in the amount of (1) the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A, plus (2) the Warrant Purchase Price for the Subsequent Closing; and (y) the Company shall issue and deliver to the Purchaser (1) a Note in favor of the Purchaser representing an initial principal balance equal to the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A and (2) a corresponding Warrantaccordance with its terms.

Subsequent Closing. If The closing of the Company determines that a subsequent closing sale and purchase of the Subsequent Purchased Shares (the “Subsequent Closing”"SUBSEQUENT CLOSING") pursuant to Section 2.2(b)(i) shall occurtake place at the offices of Xxxx, then Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, at 10:00 a.m., local time, on the Company second Business Day following the date upon which the conditions set forth in Articles V and VI shall promptly notify the Purchaser regarding be satisfied or waived in accordance with this Agreement, or at such determination other time, place and shall conduct a Subsequent Closing on a date mutually agreed by that the Company and the Purchaser (the “may agree in writing. The Subsequent Closing Date”pursuant to Section 2.2(b)(ii) that is within ten (10) days shall take place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, at 10:00 a.m., local time, on the tenth Business Day following the date the purchase price per share is finally determined, PROVIDED THAT if the conditions set forth in Articles V (other than Section 5.14) and VI shall not have be satisfied or waived in accordance with this Agreement as of such determination. In the event of a Subsequent Closing: (i) the sale of the Notes and Warrants at date, the Subsequent Closing shall be made on take place the terms and second Business Day following the date upon which the conditions set forth in Articles V (other than Section 5.14) and VI shall be satisfied or waived in accordance with this Agreement; (ii) the representations , or at such other time, place and warranties of date that the Company set forth in Section 2 hereof shall speak only as of the Initial Closing Date; and (iii) the representations and warranties of the Purchaser may agree in Section 3 hereof writing. The "SUBSEQUENT CLOSING DATE" shall speak as of such be the date the Subsequent Closing occurs. On the Subsequent Closing Date. At , the Subsequent Closing: (x) the Purchaser Company shall deliver to the CompanyPurchaser a certificate or certificates in definitive form and registered in the name of the Purchaser, via representing the Subsequent Purchased Shares, against delivery by the Purchaser to the Company of the aggregate purchase price therefor by wire transfer of in immediately available funds, funds or certified or clearinghouse check representing the cash in the amount of (1) the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A, plus (2) the Warrant Purchase Price for the Subsequent Closing; and (y) the Company shall issue and deliver to the Purchaser (1) a Note in favor portion of the Purchaser representing an initial principal balance equal to the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A and (2) a corresponding Warrantpurchase price.

Subsequent Closing. If Upon the Company determines that a subsequent closing execution of this Agreement, each Partner, as applicable, shall make Capital Contributions to the Partnership, in the amount set forth opposite such Partner's name on Schedule A-1 hereto under the column captioned "Capital Contributions at Subsequent Closing" and shall commit to make Capital Contributions to the Partnership in the total amount set forth opposite such Partner's name on Schedule A-1 hereto under the column captioned "Remaining Capital Commitment" in accordance with the written capital demands ("Capital Call") made by the General Partner as provided below in this Section 3.1.B for the purpose of the Partnership making capital contributions to ACCH with respect to its organization and operations. The General Partner may, from time to time prior to June 30, 1997, deliver written notice (the “Subsequent Closing”"Capital Call Notice") shall occurto each Partner, then who at such time has a Remaining Capital Commitment, to make Capital Contributions of immediately available funds to the Company shall promptly notify the Purchaser regarding Partnership in an amount equal to such determination and shall conduct a Subsequent Closing on a date mutually agreed Partner's proportionate share of any such Capital Call by the Company and the Purchaser date (the “Subsequent Closing "Capital Call Date”") and time specified in, and as otherwise provided by, such Capital Call Notice. The Capital Call Notice shall (i) be delivered by the General Partner to each Partner who on the date of such notice has a Remaining Capital Commitment; (ii) call for contribution to the Partnership of the amount of immediately available funds determined in accordance with clause (iii) below as may be determined in the reasonable discretion of the General Partner to be needed to fund organizational and operating expenses of ACCH; (iii) state each Partner's proportion- ate share of the Capital Call, which, for each Partner, shall be the amount that bears the same ratio to the aggregate of the amounts payable by all Partners by the applicable Capital Call Date with respect to the same Capital Call as such Partner's Remaining Capital Commitment on such date bears to the aggregate of the Remaining Capital Commitment of all Partners on such date; (iv) state, in reasonable detail, the nature and amount or anticipated nature of the expenses or costs of ACCH for which the Capital Call is within made; (v) specify the Capital Call Date which shall be no less than ten (10) days of before and no more than sixty (60) days after the date of such determinationCapital Call Notice and (vi) shall not be delivered after June 30, 1997. In No Partner shall be required to make Capital Contributions pursuant to this Section 3.1.B pursuant to any Capital Call in excess of such Partner's Remaining Capital Commitment. Upon the event receipt of Capital Contributions made pursuant to a Subsequent Closing: Capital Call, the General Partner shall promptly (ia) amend Schedule A and Schedule A-1 to reflect the sale receipt by the Partnership of such Capital Contributions and the concomitant adjustment to the contributing Partner's Remaining Capital Commitment and (b) provide a copy of such revised schedules, and the effective date of each, to each of the Notes and Warrants at Partners; provided, however, the Subsequent Closing shall be made on the terms and conditions set forth in this Agreement; (ii) the representations and warranties failure of the Company set forth in Section 2 hereof General Partner to amend Schedules A and A-1 or provide a revised copy thereof to the Partners shall speak only as not prevent the effectiveness of, or otherwise affect the underlying adjustments that would be reflected in, such amendments nor affect the obligations of the Initial Closing Date; and (iii) the representations and warranties of the Purchaser in Section 3 hereof shall speak as of such Subsequent Closing Date. At the Subsequent Closing: (x) the Purchaser shall deliver Partners with respect to the Company, via wire transfer of immediately available funds, cash in the amount of (1) the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A, plus (2) the Warrant Purchase Price for the Subsequent Closing; and (y) the Company shall issue and deliver to the Purchaser (1) a Note in favor of the Purchaser representing an initial principal balance equal to the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A and (2) a corresponding WarrantCapital Calls.

Subsequent Closing. If Section 2.2 of the Company determines that a subsequent closing 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 occurbe 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 “Commitment Revocation Date” for any references to the “Subsequent Closing”. After the Third Preferred Closing, any remaining Commitment Amount in excess of $150 million shall be remitted to the Company by the Purchasers no later than ten (10) Business Days after receipt of a demand for funding from the Company to purchase Preferred Stock up to the remaining Commitment Amount. After the Third Preferred Closing, any demand from the Company to the Purchasers to fund up to the remaining Commitment Amount shall be authorized by the Board of Directors and approved by the Company in the same manner as provided in section 3.1 of the Stockholders Agreement regarding “Supermajority Voting Rights.” In each of the preceding cases, funding shall be made pro-rata, based on the Commitment Amount for each Purchaser (inclusive of the original principal amount of the Notes), subject to subsections (f) and (k)(iii) below. Each purchase of Preferred Stock shall be at a price of $100 per share. All remittances of funds for the Commitment Amounts by the Purchasers shall be made by wire transfer in immediately available funds to the account specified by the Company. Subject to the provisions of this Section 2.2, each Purchaser’s Commitment shall remain in full force and effect for three years from the date of the Subsequent Closing and, to the extent not drawn, shall then terminate. (b) The Purchasers (which, subject to Section 2.2(i), shall include any Affiliate assignee thereof) may deliver to the Company commitment letters to purchase Preferred Stock up to an aggregate liquidation preference not to exceed the amounts set forth opposite such Purchaser’s name on Schedule 1 hereto, stating the amount of liquidation preference thereof (the “Commitment Amount”) in the form of Exhibit C hereto (the “Commitments”), beginning on the date of the written order of the U.S. Court of Appeals for the Fifth Circuit relating to the FCC Litigation (the “FCC Decision Date”). If any Purchaser does not deliver its Commitment to the Company by the close of business on the Commitment Determination Date (as defined below) then such Purchaser’s right to purchase Preferred Stock hereunder shall be rescinded and terminated and any rights, benefits, warranties, duties and covenants hereunder relating to the Preferred Stock of such Purchaser shall be terminated, nullified and of no further force and effect, except with respect to, and only to the extent of, the Preferred Stock acquired by such Purchaser through the conversion of its Notes (if any) into Preferred Stock. (c) Each Purchaser and the Company shall make any necessary filings for approvals under the Xxxx/Xxxxx/Xxxxxx Antitrust Improvement Act (the “HSR Act”) not later than the fifth Business Day following the Initial Closing and each Purchaser shall simultaneously provide the Company with notice and a copy of such filing; provided that the New Purchasers and the Company shall make any necessary filings for approvals under the HSR Act not later than five (5) Business Days after the Commitment Determination Date. Each Purchaser shall immediately notify the Company upon receipt of the applicable approvals under the HSR Act. In the event that the New Purchasers have not obtained the applicable approval under the HSR Act on the date of the Subsequent Closing or the Second Preferred Closing, then the New Purchasers shall fund the appropriate portion of its Commitment Amount into an escrow account and the Company shall promptly notify deliver their respective shares of Preferred Stock to the Purchaser regarding escrow agent, in each case subject to an escrow agreement to be mutually agreed on by Pacific and the Company, and such determination funds shall be released to the Company and such shares shall conduct a be released to the New Purchasers upon the receipt of notice of such approval. For the purposes of calculating dividends and distributions with respect to any shares of Preferred Stock placed in an escrow account pursuant to this Section 2.2(c), such shares of Preferred Stock will be deemed to have been purchased by the New Purchasers on the same date as the other Purchasers. (d) If as of the close of business on the (15th) fifteenth Business Day following the FCC Decision Date (such fifteenth Business Day, the “Commitment Determination Date”) the aggregate Commitment Amount is at least $295 million, the Subsequent Closing shall occur on a date mutually agreed determined by the Company as soon as practicable after all necessary approvals under the HSR Act (other than with respect to the purchase of Preferred Stock by the New Purchasers) are received by the Company and each Purchaser. No later than 10:00 a.m. New York time on the Business Day following the Commitment Determination Date, the Company shall notify each Purchaser of the aggregate Commitment Amount as of the close of business on the Commitment Determination Date. (e) If as of the close of business on the Commitment Determination Date the aggregate Commitment Amount is less than $295 million, the following shall occur: (i) Each Purchaser shall have the right to terminate its Commitment and rescind its purchase of Preferred Stock by notice delivered to the Company no later than 5:00 p.m. New York time on the Business Day following the Commitment Determination Date (provided that the Company has delivered its notice pursuant to paragraph (d) above), and such Purchaser’s Commitment shall terminate. (ii) Each Purchaser’s Commitment (including, subject to Section 2.2(i), any Affiliate assignee thereof), which has not been terminated pursuant to paragraph (e)(i) above, shall become irrevocable, subject to revocation, cancellation and/or termination pursuant to subsections 2.2(h), 2.2(j) and/or 2.2(k)(v) below. During the seven (7) Business Days following the Commitment Determination Date, each such Purchaser shall have an exclusive right of first refusal to commit to purchase additional shares of Preferred Stock that were not subject to Commitments by delivering the corresponding additional Commitments to the Company. Such right of first refusal shall be exercisable pro-rata, based on the Purchaser’s respective share of the total Commitment Amount (inclusive of the original principal amount of the Notes) as of the close of business on the Business Day following the Commitment Determination Date. (f) If as of the close of business on the seventh (7th) Business Day after the Commitment Determination Date the aggregate Commitment Amount is still less than $295 million, the Company shall have the right, during the eighth (8th) through the twentieth (20th) Business Days following the Commitment Determination Date, to accept Commitments from additional purchasers of Preferred Stock, subject to the same terms and conditions as the Purchasers, in order to reach the $295 million aggregate amount. If any additional purchasers deliver a Commitment to purchase Preferred Stock pursuant to this subsection (f), then such additional purchaser shall fund its purchase of Preferred Stock in respect of a purchase date in a manner that results, after such funding, in such additional purchaser having funded the same percentage of its Commitment Amount as the other Purchasers have funded of their Commitment Amounts (inclusive of the original principal amount of the Notes). (g) Notwithstanding paragraph (f) above, if as of 12:00 p.m., New York time, on the fourth (4th) Business Day after the Commitment Determination Date or any Business Day thereafter subject to subsection 2.2(h) the aggregate Commitment Amount is at least $150 million, the Subsequent Closing involving the purchase of $25 million of Preferred Stock shall occur on the fourth (4th) Business Day following the Commitment Determination Date or a later date determined by the Company, provided that all necessary approvals under the HSR Act (other than with respect to the purchase of Preferred Stock by the New Purchasers) have been received by the Company and the Purchaser applicable Purchasers. After the Subsequent Closing, the Second Preferred Closing involving the purchase of the next $25 million of Preferred Stock shall occur on a date as determined by the Board of Directors; provided that the Purchasers receive at least three (the “Subsequent Closing Date”3) Business Days prior notice of such date; provided, however, that is within ten (10) days of the date of such determination. In remittance for the event Second Preferred Closing shall occur no earlier than January 2, 2001, and that all necessary approvals under the HSR Act (other than with respect to the purchase of a Subsequent ClosingPreferred Stock by the New Purchasers) have been received by the Company and the applicable Purchasers. (h) If as of the close of business on the twentieth (20th) Business Day after the Commitment Determination Date the aggregate Commitment Amount is less than $150 million, the purchase of the Preferred Stock shall be cancelled in its entirety, and the Commitments shall terminate. (i) Any Purchaser may purchase Preferred Stock hereunder in conjunction with only the following: (i) the sale any of the Notes and Warrants at the Subsequent Closing shall be made on the terms and conditions set forth in this Agreement; its Affiliates, (ii) any of its partners, limited partners or members of such Purchaser that are transferees of Preferred Stock pursuant to distributions in accordance with the representations and warranties partnership agreement or operating agreement of the Company set forth in Section 2 hereof shall speak only as of the Initial Closing Date; such Purchaser or its Affiliates and (iii) the representations and warranties of the Purchaser in Section 3 hereof shall speak as of such Subsequent Closing Date. At the Subsequent Closing: (x) the Purchaser shall deliver to the Company, via wire transfer of immediately available funds, cash in the amount case of Pacific, GC Dev. Co., Inc. (and, if it purchases Preferred Stock, shall also constitute a “New Purchaser”); provided, in the case of (1i) the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A, plus (2) the Warrant Purchase Price for the Subsequent Closing; and (yii) above, that such Purchaser retains the Company shall issue and deliver voting rights relating to such Preferred Stock, other than with respect to any transfers by Pacific to its Affiliate, Pacific Capital Partners I, L.P. (also known as Pacific Colony V, L.P.), or to GC Dev. Co., Inc., pursuant to which the Purchaser (1) a Note in favor of the Purchaser representing an initial principal balance equal to the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A and (2) a corresponding Warrantvoting rights will also be transferred.

Subsequent Closing. If the Company determines that a Purchaser fails to purchase the Maximum Interest Amount at the Initial Closing, the Purchaser may, at its sole discretion, elect to purchase and require MSV LP and MSV GP to sell, as applicable, in one subsequent closing (the “"SUBSEQUENT CLOSING") (i) that number of Interests that shall not exceed, when combined with the Interests purchased at the Initial Closing, the Maximum Interest Amount, and (ii) that number of shares of the GP Common Stock necessary to maintain the Purchaser's pro rata ownership in MSV GP on a basis proportionate to its ownership in MSV LP following the Subsequent Closing”) . The Subsequent Closing shall occurtake place at the offices of Xxxxxxxxx & Xxxxxxx, then 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, on the Company shall promptly notify date and at the time the Purchaser regarding such determination notifies MSV LP and shall conduct a MSV GP that the Subsequent Closing shall occur which shall, in any event, be on a or prior to the date mutually agreed by that is two business days following the Company Initial Closing Date (the "SUBSEQUENT CLOSING DATE"). MSV LP, MSV GP and the Purchaser (may mutually agree to hold the “Subsequent Closing Date”) that is within ten (10) days of the date of such determinationat another time or place. In the event of a Subsequent Closing: (i) the sale of the Notes The Initial Closing and Warrants at the Subsequent Closing shall be made on the terms referred to herein as a "CLOSING" and conditions set forth in this Agreement; (ii) the representations and warranties of the Company set forth in Section 2 hereof shall speak only as of the Initial Closing Date; Date and (iii) the representations and warranties of the Purchaser in Section 3 hereof shall speak as of such Subsequent Closing Date. At the Subsequent Closing: (x) the Purchaser Date shall deliver be referred to the Company, via wire transfer of immediately available funds, cash in the amount of (1) the Purchaser’s Loan Amount for the Subsequent Closing, herein as set forth on Exhibit A, plus (2) the Warrant Purchase Price for the Subsequent Closing; and (y) the Company shall issue and deliver to the Purchaser (1) a Note in favor of the Purchaser representing an initial principal balance equal to the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A and (2) a corresponding Warrant"CLOSING DATE").

Subsequent Closing. If 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 determines 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 "Commitment Revocation Date" for any references to the "Subsequent Closing". After the Third Preferred Closing, any remaining Commitment Amount in excess of $150 million shall be remitted to the Company by the Purchasers no later than ten (10) Business Days after receipt of a subsequent closing demand for funding from the Company to purchase Preferred Stock up to the remaining Commitment Amount. After the Third Preferred Closing, any demand from the Company to the Purchasers to fund up to the remaining Commitment Amount shall be authorized by the Board of Directors and approved by the Company in the same manner as provided in section 3.1 of the Stockholders Agreement regarding "Supermajority Voting Rights." In each of the preceding cases, funding shall be made pro-rata, based on the Commitment Amount for each Purchaser (inclusive of the original principal amount of the Notes), subject to subsections (f) and (k)(iii) below. Each purchase of Preferred Stock shall be at a price of $100 per share. All remittances of funds for the Commitment Amounts by the Purchasers shall be made by wire transfer in immediately available funds to the account specified by the Company. Subject to the provisions of this Section 2.2, each Purchaser's Commitment shall remain in full force and effect for three years from the date of the Subsequent Closing and, to the extent not drawn, shall then terminate. (b) The Purchasers (which, subject to Section 2.2(i), shall include any Affiliate assignee thereof) may deliver to the Company commitment letters to purchase Preferred Stock up to an aggregate liquidation preference not to exceed the amounts set forth opposite such Purchaser's name on Schedule 1 hereto, stating the amount of liquidation preference thereof (the “"Commitment Amount") in the form of Exhibit C hereto (the "Commitments"), beginning on the date of the written order of the U.S. Court of Appeals for the Fifth Circuit relating to the FCC Litigation (the "FCC Decision Date"). If any Purchaser does not deliver its Commitment to the Company by the close of business on the Commitment Determination Date (as defined below) then such Purchaser's right to purchase Preferred Stock hereunder shall be rescinded and terminated and any rights, benefits, warranties, duties and covenants hereunder relating to the Preferred Stock of such Purchaser shall be terminated, nullified and of no further force and effect, except with respect to, and only to the extent of, the Preferred Stock acquired by such Purchaser through the conversion of its Notes (if any) into Preferred Stock. (c) Each Purchaser and the Company shall make any necessary filings for approvals under the Xxxx/Xxxxx/Xxxxxx Antitrust Improvement Act (the "HSR Act") not later than the fifth Business Day following the Initial Closing and each Purchaser shall simultaneously provide the Company with notice and a copy of such filing; provided that the New Purchasers and the Company shall make any necessary filings for approvals under the HSR Act not later than five (5) Business Days after the Commitment Determination Date. Each Purchaser shall immediately notify the Company upon receipt of the applicable approvals under the HSR Act. In the event that the New Purchasers have not obtained the applicable approval under the HSR Act on the date of the Subsequent Closing or the Second Preferred Closing”) shall occur, then the New Purchasers shall fund the appropriate portion of its Commitment Amount into an escrow account and the Company shall promptly notify deliver their respective shares of Preferred Stock to the Purchaser regarding escrow agent, in each case subject to an escrow agreement to be mutually agreed on by Pacific and the Company, and such determination funds shall be released to the Company and such shares shall conduct a be released to the New Purchasers upon the receipt of notice of such approval. For the purposes of calculating dividends and distributions with respect to any shares of Preferred Stock placed in an escrow account pursuant to this Section 2.2(c), such shares of Preferred Stock will be deemed to have been purchased by the New Purchasers on the same date as the other Purchasers. (d) If as of the close of business on the (15th) fifteenth Business Day following the FCC Decision Date (such fifteenth Business Day, the "Commitment Determination Date") the aggregate Commitment Amount is at least $295 million, the Subsequent Closing shall occur on a date mutually agreed determined by the Company as soon as practicable after all necessary approvals under the HSR Act (other than with respect to the purchase of Preferred Stock by the New Purchasers) are received by the Company and each Purchaser. No later than 10:00 a.m. New York time on the Business Day following the Commitment Determination Date, the Company shall notify each Purchaser of the aggregate Commitment Amount as of the close of business on the Commitment Determination Date. (e) If as of the close of business on the Commitment Determination Date the aggregate Commitment Amount is less than $295 million, the following shall occur: (i) Each Purchaser shall have the right to terminate its Commitment and rescind its purchase of Preferred Stock by notice delivered to the Company no later than 5:00 p.m. New York time on the Business Day following the Commitment Determination Date (provided that the Company has delivered its notice pursuant to paragraph (d) above), and such Purchaser's Commitment shall terminate. (ii) Each Purchaser's Commitment (including, subject to Section 2.2(i), any Affiliate assignee thereof), which has not been terminated pursuant to paragraph (e)(i) above, shall become irrevocable, subject to revocation, cancellation and/or termination pursuant to subsections 2.2(h), 2.2(j) and/or 2.2(k)(v) below. During the seven (7) Business Days following the Commitment Determination Date, each such Purchaser shall have an exclusive right of first refusal to commit to purchase additional shares of Preferred Stock that were not subject to Commitments by delivering the corresponding additional Commitments to the Company. Such right of first refusal shall be exercisable pro-rata, based on the Purchaser's respective share of the total Commitment Amount (inclusive of the original principal amount of the Notes) as of the close of business on the Business Day following the Commitment Determination Date. (f) If as of the close of business on the seventh (7th) Business Day after the Commitment Determination Date the aggregate Commitment Amount is still less than $295 million, the Company shall have the right, during the eighth (8th) through the twentieth (20th) Business Days following the Commitment Determination Date, to accept Commitments from additional purchasers of Preferred Stock, subject to the same terms and conditions as the Purchasers, in order to reach the $295 million aggregate amount. If any additional purchasers deliver a Commitment to purchase Preferred Stock pursuant to this subsection (f), then such additional purchaser shall fund its purchase of Preferred Stock in respect of a purchase date in a manner that results, after such funding, in such additional purchaser having funded the same percentage of its Commitment Amount as the other Purchasers have funded of their Commitment Amounts (inclusive of the original principal amount of the Notes). (g) Notwithstanding paragraph (f) above, if as of 12:00 p.m., New York time, on the fourth (4th) Business Day after the Commitment Determination Date or any Business Day thereafter subject to subsection 2.2(h) the aggregate Commitment Amount is at least $150 million, the Subsequent Closing involving the purchase of $25 million of Preferred Stock shall occur on the fourth (4th) Business Day following the Commitment Determination Date or a later date determined by the Company, provided that all necessary approvals under the HSR Act (other than with respect to the purchase of Preferred Stock by the New Purchasers) have been received by the Company and the Purchaser applicable Purchasers. After the Subsequent Closing, the Second Preferred Closing involving the purchase of the next $25 million of Preferred Stock shall occur on a date as determined by the Board of Directors; provided that the Purchasers receive at least three (the “Subsequent Closing Date”3) Business Days prior notice of such date; provided, however, that is within ten (10) days of the date of such determination. In remittance for the event Second Preferred Closing shall occur no earlier than January 2, 2001, and that all necessary approvals under the HSR Act (other than with respect to the purchase of a Subsequent ClosingPreferred Stock by the New Purchasers) have been received by the Company and the applicable Purchasers. (h) If as of the close of business on the twentieth (20th) Business Day after the Commitment Determination Date the aggregate Commitment Amount is less than $150 million, the purchase of the Preferred Stock shall be cancelled in its entirety, and the Commitments shall terminate. (i) Any Purchaser may purchase Preferred Stock hereunder in conjunction with only the following: (i) the sale any of the Notes and Warrants at the Subsequent Closing shall be made on the terms and conditions set forth in this Agreement; its Affiliates, (ii) any of its partners, limited partners or members of such Purchaser that are transferees of Preferred Stock pursuant to distributions in accordance with the representations and warranties partnership agreement or operating agreement of the Company set forth in Section 2 hereof shall speak only as of the Initial Closing Date; such Purchaser or its Affiliates and (iii) the representations and warranties of the Purchaser in Section 3 hereof shall speak as of such Subsequent Closing Date. At the Subsequent Closing: (x) the Purchaser shall deliver to the Company, via wire transfer of immediately available funds, cash in the amount case of Pacific, GC Dev. Co., Inc. (and, if it purchases Preferred Stock, shall also constitute a "New Purchaser"); provided, in the case of (1i) the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A, plus (2) the Warrant Purchase Price for the Subsequent Closing; and (yii) above, that such Purchaser retains the Company shall issue and deliver voting rights relating to such Preferred Stock, other than with respect to any transfers by Pacific to its Affiliate, Pacific Capital Partners I, L.P. (also known as Pacific Colony V, L.P.), or to GC Dev. Co., Inc., pursuant to which the Purchaser (1) a Note in favor of the Purchaser representing an initial principal balance equal to the Purchaser’s Loan Amount for the Subsequent Closing, as set forth on Exhibit A and (2) a corresponding Warrantvoting rights will also be transferred.