Common use of Tranche B Closing Clause in Contracts

Tranche B Closing. After the Initial Closing, the Company shall have the right (the “Company Funding Right”) to require Purchaser, subject to Section 4 hereof, to purchase up to that number of newly issued shares of Preferred Stock having an aggregate purchase price (based on the Per Share Purchase Price) of $10,000,000 (the “Tranche B Preferred Stock”); provided, however, that the Company Funding Right shall not be exercisable by the Company earlier than December 1, 2014, nor later than December 29, 2014 (and no Tranche B Closing may take place thereafter), and then only to the extent that the holders of the Existing Secured Convertible Notes have not given and do not give notice of conversion to the Company pursuant to Section 3(b) of the Existing Secured Convertible Notes; provided, further, that the Company’s right to exercise the Company Funding Right is contingent upon the Company using the proceeds of such issuance and sale solely for purposes of redeeming the Company’s outstanding Existing Secured Convertible Notes. The Company Funding Right shall expire upon the earlier of (i) December 29, 2014, and (ii) the date that the Existing Secured Convertible Notes are no longer outstanding (the “Company Funding Right Expiration”). The Closing described in this Section 2.3(b), shall be referred to herein as the “Tranche B Closing.” The Tranche B Closing shall take place at the offices of Kxxxxxxx & Exxxx LLP located at 300 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx at 10:00 a.m. local time on the second Business Day following full satisfaction or due waiver of all of the closing conditions set forth in Section 4 hereof, or at such other place or on such other date as may be mutually agreeable to the Company and Purchaser. At the Tranche B Closing, the Company shall cause its transfer agent to deliver to Purchaser stock certificates evidencing the Tranche B Preferred Stock to be purchased by Purchaser, registered in Purchaser’s or its nominee’s name, upon payment of the purchase price thereof by wire transfer of immediately available funds to the Company’s account, which such account shall be specified in writing by the Company not less than two Business Days prior to such Tranche B Closing, in the aggregate amount equal to the number of shares of Tranche B Preferred Stock purchased by Purchaser at the Tranche B Closing times the Per Share Purchase Price.

Tranche B Closing. After On the Initial Closing, the Company shall have the right (the “Company Funding Right”) to require Purchaser, subject to Section 4 hereof, to purchase up to that number of newly issued shares of Preferred Stock having an aggregate purchase price (based on the Per Share Purchase Price) of $10,000,000 (the “Tranche B Preferred Stock”); provided, however, that the Company Funding Right shall not be exercisable by the Company earlier than December 1, 2014, nor later than December 29, 2014 (and no Tranche B Closing may take place thereafter)Date, and then only to provided the extent that the holders of the Existing Secured Convertible Notes have not given and do not give notice of conversion to the Company pursuant to Section 3(b) of the Existing Secured Convertible Notes; provided, further, that the Company’s right to exercise the Company Funding Right is contingent upon the Company using the proceeds of such issuance and sale solely for purposes of redeeming the Company’s outstanding Existing Secured Convertible Notes. The Company Funding Right shall expire upon the earlier of (i) December 29, 2014, and (ii) the date that the Existing Secured Convertible Notes are no longer outstanding (the “Company Funding Right Expiration”). The Closing described conditions set out in this Section 2.3(b)4.4 below have been fulfilled or waived on or before such date, the Issuer shall be referred promptly deliver to herein as Purchaser’s counsel, in trust, the “Tranche B Closing.” The Debenture, registered in the name of the Purchaser, with instructions that such Tranche B Closing shall take place at Debenture is to be held in escrow for release to the offices of Kxxxxxxx & Exxxx LLP located at 300 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx at 10:00 a.m. local time on the second Business Day following full satisfaction or due waiver of all Purchaser only upon payment of the closing conditions set forth in Section 4 hereofTranche B Subscription Amount to the Issuer, or at and confirmation of receipt of such payments by the Issuer. Upon receipt of the Tranche B Debenture by counsel to the Purchaser and the execution and/or delivery of such other place documents contemplated hereby to be executed and/or delivered on or on such other date as may be mutually agreeable prior to the Company and Purchaser. At the Tranche B Closing, the Company Purchaser shall promptly cause its a wire transfer agent to deliver to Purchaser stock certificates evidencing the Tranche B Preferred Stock in same day funds to be purchased by Purchaser, registered in Purchaser’s or its nominee’s name, upon payment sent to the account of the purchase price thereof by wire transfer of immediately available funds to the Company’s accountIssuer, which such account shall be specified as instructed in writing by the Company not less than two Business Days prior to such Tranche B ClosingIssuer, in the aggregate an amount equal to the number of shares of Tranche B Preferred Stock purchased by Subscription Amount. On the date that the Issuer confirms to the Purchaser’s counsel that such funds have been received (which shall occur promptly following receipt of the Tranche B Subscription Amount), the Tranche B Debenture shall be released to the Purchaser at (and the date of receipt of such funds shall be deemed the Tranche B Closing times Date). The Tranche B Closing Date shall occur upon the Per Share Purchase Pricefulfillment (or waiver by Purchaser) of the following conditions: (a) the actual and proposed capital expenditures and other expenses of the Company and the Issuer shall be in material compliance with the projections and planned expenditures set out in the NorthMet Project Budget and each of the Company and the Issuer shall have delivered an officer’s certificate to the Purchaser to such effect; (b) the representations and warranties set forth in Section 5.1 shall be true and correct in all respects on and as of the Tranche B Closing Date, by reference to the facts and circumstances then existing (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties will have been true and correct in all respects as of that date) and each of the Company and the Issuer shall have delivered an officer’s certificate to the Purchaser to such effect; (c) the Company and the Issuer shall have executed and delivered to the Purchaser (or to the Purchaser’s counsel in escrow as contemplated by Section 4.4): (i) the Tranche B Debenture, duly executed by the Issuer; (ii) a certificate of an officer of the Company and the Issuer respectively confirming that the resolutions referred to in Sections 4.2(d) and 4.2(e) have not been rescinded or modified by the Company or the Issuer, respectively, and a certificate of status, good standing or like certificate with respect to the Issuer and to the Company and issued by appropriate government officials of the jurisdiction of its organization; and (iii) written confirmation of the Company that its obligations under the Parent Guarantee remain in full force and effect following the issuance of the Tranche B Debenture; (d) the Issuer shall have executed and registered the Erie Plant Mortgage Amendment in accordance with Section 3.3(c), and delivered a copy of such registered Erie Plant Mortgage Amendment to the Purchaser, and shall have paid the mortgage registration fee payable in connection therewith; (e) the Purchaser shall have received a signed binding commitment to issue title insurance in respect of the lands and premises described in, and that are the subject of, the 2006 Contracts for Deed providing for insurance of the Erie Plant Mortgage, as amended by the Erie Plant Mortgage Amendment in the amount of US$50,000,000 and otherwise in form and on terms satisfactory to the Purchaser, and shall have paid the title insurance premium payable in connection therewith; (f) the Purchaser shall have received opinions of counsel to the Company and of counsel to the Issuer, addressed to the Purchaser, substantially in the forms attached hereto as Exhibits K-1 through K-3, but limited to the Tranche B Debenture, the Erie Plant Mortgage as amended by the Erie Plant Mortgage Amendment the documents executed and delivered by the Issuer in respect of the confirmation of the Company referred to in Section 4.4(c)(iii) above; (g) the Company and the Issuer shall be in compliance with their covenants hereunder and their covenants in the Ancillary Agreements and the Security Documents, and each of the Company and the Issuer shall have delivered an officer’s certificate to the Purchaser to such effect; (h) no Event of Default shall have occurred and be continuing, and each of the Company and the Issuer shall have delivered an officer’s certificate to the Purchaser to such effect; (i) all interest and other payments then payable under the Tranche A Debenture shall have been paid on a timely basis and no such payments shall be late or outstanding; (j) no event has occurred or failed to occur since July 31, 2008 which has had or could reasonably be expected to have a Material Adverse Effect; (k) the Purchaser shall be satisfied, acting reasonably, that all registrations and other actions necessary to perfect the security interest created by the Security Documents and maintain the priority of the Encumbrances in favour of the Purchaser have been made or taken; (l) none of the assets of the Company or the Issuer shall be subject to any Encumbrances other than Permitted Encumbrances; and (m) the Purchaser being satisfied that there is no pending or threatened judicial, administrative or other proceedings, investigations or litigation which seek to adjourn, delay, enjoin, prohibit or impose material limitations on any aspect of the transactions contemplated by this Agreement, the Ancillary Agreements or the Security Documents or which has, or could reasonably be expected to have a Material Adverse Effect.

Tranche B Closing. After On the Initial Closing, the Company shall have the right (the “Company Funding Right”) to require Purchaser, subject to Section 4 hereof, to purchase up to that number of newly issued shares of Preferred Stock having an aggregate purchase price (based on the Per Share Purchase Price) of $10,000,000 (the “Tranche B Preferred Stock”); provided, however, that the Company Funding Right shall not be exercisable by the Company earlier than December 1, 2014, nor later than December 29, 2014 (and no Tranche B Closing may take place thereafter)Date, and then only to provided the extent that the holders of the Existing Secured Convertible Notes have not given and do not give notice of conversion to the Company pursuant to Section 3(b) of the Existing Secured Convertible Notes; provided, further, that the Company’s right to exercise the Company Funding Right is contingent upon the Company using the proceeds of such issuance and sale solely for purposes of redeeming the Company’s outstanding Existing Secured Convertible Notes. The Company Funding Right shall expire upon the earlier of (i) December 29, 2014, and (ii) the date that the Existing Secured Convertible Notes are no longer outstanding (the “Company Funding Right Expiration”). The Closing described conditions set out in this Section 2.3(b)4.4 below have been fulfilled or waived on or before such date, the Issuer shall be referred promptly deliver to herein as Purchaser’s counsel, in trust, the “Tranche B Closing.” The Debenture, registered in the name of the Purchaser, with instructions that such Tranche B Closing shall take place at Debenture is to be held in escrow for release to the offices of Kxxxxxxx & Exxxx LLP located at 300 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx at 10:00 a.m. local time on the second Business Day following full satisfaction or due waiver of all Purchaser only upon payment of the closing conditions set forth in Section 4 hereofTranche B Subscription Amount to the Issuer, or at and confirmation of receipt of such payments by the Issuer. Upon receipt of the Tranche B Debenture by counsel to the Purchaser and the execution and/or delivery of such other place documents contemplated hereby to be executed and/or delivered on or on such other date as may be mutually agreeable prior to the Company and Purchaser. At the Tranche B Closing, the Company Purchaser shall promptly cause its a wire transfer agent to deliver to Purchaser stock certificates evidencing the Tranche B Preferred Stock in same day funds to be purchased by Purchaser, registered in Purchaser’s or its nominee’s name, upon payment sent to the account of the purchase price thereof by wire transfer of immediately available funds to the Company’s accountIssuer, which such account shall be specified as instructed in writing by the Company not less than two Business Days prior to such Tranche B ClosingIssuer, in the aggregate an amount equal to the number of shares of Tranche B Preferred Stock purchased by Subscription Amount. On the date that the Issuer confirms to the Purchaser’s counsel that such funds have been received (which shall occur promptly following receipt of the Tranche B Subscription Amount), the Tranche B Debenture shall be released to the Purchaser at (and the date of receipt of such funds shall be deemed the Tranche B Closing times Date). The Tranche B Closing Date shall occur upon the Per Share Purchase Pricefulfillment (or waiver by Purchaser) of the following conditions: (a) the actual and proposed capital expenditures and other expenses of the Company and the Issuer shall be in material compliance with the projections and planned expenditures set out in the NorthMet Project Budget and each of the Company and the Issuer shall have delivered an officer’s certificate to the Purchaser to such effect; (b) the representations and warranties set forth in Section 5.1 shall be true and correct in all respects on and as of the Tranche B Closing Date, by reference to the facts and circumstances then existing (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties will have been true and correct in all respects as of that date) and each of the Company and the Issuer shall have delivered an officer’s certificate to the Purchaser to such effect; (c) the Company and the Issuer shall have executed and delivered to the Purchaser (or to the Purchaser’s counsel in escrow as contemplated by Section 4.4): (i) the Tranche B Debenture, duly executed by the Issuer; (ii) a certificate of an officer of the Company and the Issuer respectively confirming that the resolutions referred to in Sections 4.2(d) and 4.2(e) have not been rescinded or modified by the Company or the Issuer, respectively, and a certificate of status, good standing or like certificate with respect to the Issuer and to the Company and issued by appropriate government officials of the jurisdiction of its organization; and (iii) written confirmation of the Company that its obligations under the Parent Guarantee remain in full force and effect following the issuance of the Tranche B Debenture; (d) the Issuer shall have executed and registered the Erie Plant Mortgage Amendment in accordance with Section 3.3(c), and delivered a copy of such registered Erie Plant Mortgage Amendment to the Purchaser and shall have paid the mortgage registration fee payable in connection therewith; (e) the Purchaser shall have received a signed binding commitment to issue title insurance in respect of the lands and premises described in, and that are the subject of, the 2006 Contracts for Deed providing for insurance of the Erie Plant Mortgage, as amended by the Erie Plant Mortgage Amendment in the amount of US$50,000,000 and otherwise in form and on terms satisfactory to the Purchaser, and shall have paid the title insurance premium payable in connection therewith; (f) the Purchaser shall have received opinions of counsel to the Company and of counsel to the Issuer, addressed to the Purchaser, substantially in the forms attached hereto as Exhibits K-1 through K-3, but limited to the Tranche B Debenture, the Erie Plant Mortgage as amended by the Erie Plant Mortgage Amendment the documents executed and delivered by the Issuer in respect of the confirmation of the Company referred to in Section 4.4(c)(iii) above; (g) the Company and the Issuer shall be in compliance with their covenants hereunder and their covenants in the Ancillary Agreements and the Security Documents, and each of the Company and the Issuer shall have delivered an officer’s certificate to the Purchaser to such effect; (h) no Event of Default shall have occurred and be continuing, and each of the Company and the Issuer shall have delivered an officer’s certificate to the Purchaser to such effect; (i) all interest and other payments then payable under the Tranche A Debenture shall have been paid on a timely basis and no such payments shall be late or outstanding; (j) no event has occurred or failed to occur since July 31, 2008 which has had or could reasonably be expected to have a Material Adverse Effect; (k) the Purchaser shall be satisfied, acting reasonably, that all registrations and other actions necessary to perfect the security interest created by the Security Documents and maintain the priority of the Encumbrances in favour of the Purchaser have been made or taken; (l) none of the assets of the Company or the Issuer shall be subject to any Encumbrances other than Permitted Encumbrances; and (m) the Purchaser being satisfied that there is no pending or threatened judicial, administrative or other proceedings, investigations or litigation which seek to adjourn, delay, enjoin, prohibit or impose material limitations on any aspect of the transactions contemplated by this Agreement, the Ancillary Agreements or the Security Documents or which has, or could reasonably be expected to have a Material Adverse Effect.