Common use of First Closing Clause in Contracts

First Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(c), the first closing (the “First Closing”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), at the offices of Malizia Spidi & Fi▇▇▇, ▇▇ located ▇▇ ▇▇27 25th Street, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te or location as agreed by the parties in writing. The date of the First Closing is referred to as the “First Closing Date.” (2) Subject to the satisfaction of the conditions described in Section 1.2(c), at the First Closing, the Company will deliver to the Investors certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 1,885,500 shares of Common Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the First Closing (the “Initial Purchased Shares”) against payment by the Investors of $7,542,000 (the “Initial Purchase Price”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided, that if the Initial Purchased Shares would cause an Investor or its Affiliates to be deemed for purposes of the Bank Holding Company Act of 1956, as amended (the “BHC Act”), or the Change in Bank Control Act of 1978, as amended (the “CBC Act”), to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

First Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(c), the first closing (the “"First Closing”") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), at the offices of Malizia Spidi & Fi▇▇▇Skadden, ▇▇ located ▇▇ ▇▇27 25th StreetArps, ▇.▇.Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP located at 4 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te , or such other date or location as agreed by the parties in writing. The date of the First Closing is referred to as the “"First Closing Date.”" (2) Subject to the satisfaction of the conditions described in Section 1.2(c), at the First Closing, the Company will deliver to the Investors Investor one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 1,885,500 1,812,500 shares of Common Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the First Closing (the “"Initial Purchased Shares”") against payment by the Investors Investor of $7,542,000 7,250,000 (the “"Initial Purchase Price”") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided, that if the Initial Purchased Shares would cause an the Investor or its Affiliates to be deemed for purposes of the Bank Holding Company Act of 1956, as amended (the “"BHC Act”"), or the Change in Bank Control Act of 1978, as amended (the “"CBC Act”"), to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

First Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(c1.2 (c), the first closing (the “"First Closing”") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), at by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Malizia M▇▇▇▇▇▇ Spidi & FiF▇▇▇▇, PC located at 1▇▇ located ▇▇ ▇▇27 25th Street▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te or such other date or location as agreed by the parties in writing. The date of the First Closing is referred to as the “"First Closing Date.”" (2) Subject to the satisfaction of the conditions described in Section 1.2(c), at the First Closing, the Company will deliver to the Investors each Investor one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 1,885,500 720,500 shares of Common Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the First Closing (the “"Initial Purchased Shares”") against payment by each Investor of its pro rata share of the Investors of $7,542,000 2,882,000 (the “"Initial Purchase Price”") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided, that if the Initial Purchased Shares would cause an Investor the Investors or its their Affiliates to be deemed for purposes of the Bank Holding Company Act of 1956, as amended (the “"BHC Act”"), or the Change in Bank Control Act of 1978, as amended (the “"CBC Act”"), to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the Investor Investors shall severally purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor Investors will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

First Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(c), the first closing (the “First Closing”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), at the offices of Malizia M▇▇▇▇▇▇ Spidi & FiF▇▇▇▇, PC located at 1▇▇ located ▇▇ ▇▇27 25th Street▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te or such other date or location as agreed by the parties in writing. The date of the First Closing is referred to as the “First Closing Date.” (2) Subject to the satisfaction of the conditions described in Section 1.2(c), at the First Closing, the Company will deliver to the Investors certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 1,885,500 shares of Common Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the First Closing (the “Initial Purchased Shares”) against payment by the Investors of $7,542,000 (the “Initial Purchase Price”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided, that if the Initial Purchased Shares would cause an Investor or its Affiliates to be deemed for purposes of the Bank Holding Company Act of 1956, as amended (the “BHC Act”), or the Change in Bank Control Act of 1978, as amended (the “CBC Act”), to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

First Closing. (1i) Subject to the satisfaction (or, where permissible, waiver) The consummation of the conditions to closing set forth purchase and sale of the Series B-1 12.75% Preferred Stock and Warrants in accordance with Section 1.2(c), ‎1.2(a) and the other transactions contemplated hereby at the first closing hereunder (the “First Closing”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), at the offices of Malizia Spidi ▇▇▇▇▇▇ & Fi▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ located ▇▇ ▇▇27 25th Street, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te at 10:00 a.m. New York City time, as promptly as practicable (but no more than three (3) Business Days) following the first date on which all conditions set forth in Section ‎4 hereof have been satisfied or location as agreed waived (other than those conditions that by the parties in writing. The date of their nature are to be satisfied by actions taken at the First Closing is referred to Closing), or at such other time and place as the “First Closing DateCompany and the Investors shall mutually agree.” (2ii) Subject to the satisfaction of the conditions described in Section 1.2(c), at At the First Closing, the Company will shall deliver to each Investor: (A) a certificate or certificates representing the shares of Series B-1 12.75% Preferred Stock and Warrants to be issued to such Investor at the First Closing, as set forth in Section ‎1.2(a) of this Agreement, (B) each Transaction Document to be executed by the Company other than this Agreement, the Strategic Relationship Agreement and Transaction Documents to be executed at the Second Closing or the Third Closing, executed by the Company, and (C) such other documents and instruments to be delivered by the Company to the Investors at the First Closing pursuant to Section ‎4. (iii) At the First Closing, each Investor shall deliver to the Investors certificates bearing Company: (A) the appropriate legends herein provided purchase price for and free and clear of all Liens representing an aggregate 1,885,500 the shares of Common Series B-1 12.75% Preferred Stock and Warrants issued to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to such Investor at the First Closing (the “Initial Purchased Shares”) against payment by the Investors of $7,542,000 (the “Initial Purchase Price”) Closing, by wire transfer of immediately available United States funds to a bank account designated or such other form of payment as may be approved by the Company; provided, that if the Initial Purchased Shares would cause an Investor or its Affiliates ; (B) each Transaction Document to be deemed for purposes of executed by such Investor other than this Agreement, the Bank Holding Company Act of 1956, as amended (Strategic Relationship Agreement and Transaction Documents to be executed at the “BHC Act”), Second Closing or the Change in Bank Control Act of 1978Third Closing, as amended executed by such Investor; and (the “CBC Act”), C) such other documents and instruments to own 10% or more of the outstanding shares of any class of voting securities of be delivered by such Investor to the Company or at the First Closing pursuant to otherwise control the Company, then the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesSection ‎4.

First Closing. (1i) Subject to the satisfaction (or, where permissible, waiver) The closing of the conditions to closing set forth in Section 1.2(c), purchase of the first closing First Tranche Purchased Shares (the “First Closing”) shall will take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), at the offices of Malizia Spidi & FiK&L Gates LLP, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ located ▇▇▇▇ ▇▇27 25th Street▇▇, ▇.▇.▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te on January 30, 2009 or location at such other place, time, and date as agreed by the parties in writingCompany and the Investors may agree. The time and date of on which the First Closing occurs is referred to in this Agreement as the “First Closing Date”.” (2ii) Subject to the satisfaction fulfillment or waiver of the conditions described to the First Closing in this Section 1.2(c1.2(a), at the First Closing, the Company will deliver to the Investors First Tranche Purchased Shares, as evidenced by one or more certificates bearing the appropriate legends herein provided for and free and clear dated as of all Liens representing an aggregate 1,885,500 shares of Common Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the First Closing Date and bearing appropriate legends as provided for in this Agreement, in exchange for payment in full from each Investor of the amount set forth next to the respective Investor’s name on Annex 1.1 (the “Initial Purchased Shares”) against payment by the Investors for an aggregate amount of $7,542,000 (the “Initial Purchase Price”) 100,000,000). Each Investor will pay by wire transfer of immediately available United States funds to a bank account that has been designated by the Company; provided, that if Company at least two business days before the Initial First Closing Date. (iii) The respective obligations of each Investor and the Company to consummate the purchase of the First Tranche Purchased Shares are subject to the fulfillment (or waiver by the Investors or the Company, as applicable) before the First Closing of the conditions that: (A) any approvals or authorizations of any governmental or regulatory authorities, including those of the Republic of the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, and the United States (collectively, “Governmental Entities”), the absence of which would cause reasonably be expected to make the Purchase unlawful, will have been obtained or made in form and substance reasonably satisfactory to each party and will be in full force and effect; and (B) no provision of any applicable Republic of the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, or other law and no judgment, injunction, order, or decree of any Governmental Entity will prohibit the purchase and sale of the Purchased Shares. (iv) The obligation of the Company to consummate the First Closing is also subject to the fulfillment (or waiver by the Company) at or before the First Closing of each of the following conditions: (A) the representations and warranties of each of the Investors set forth in this Agreement will be true and correct as though made on and as of the First Closing Date (other than representations and warranties that by their terms speak as of another date, which will be true and correct as of the applicable date), except to the extent that the failure of an Investor or its Affiliates Investor’s representations and warranties to be deemed for purposes so true and correct will not, and would not be reasonably likely to, materially impair that Investor’s ability to consummate the transactions contemplated by this Agreement (an “Investor Material Adverse Effect”); and (B) each Investor will have performed in all material respects all obligations required to be performed by it under this Agreement at or before the First Closing. (v) The obligation of the Bank Holding Investors to consummate the First Closing is also subject to the fulfillment (or waiver by the Investors) at or before the First Closing of each of the following conditions: (A) the representations and warranties of the Company Act set forth in this Agreement will be true and correct as though made on and as of 1956the First Closing Date (other than representations and warranties that by their terms speak as of another date, which will be true and correct as amended of the applicable date), except to the extent that the failure of the Company’s representations and warranties to be so true and correct (1) will not result in, or would not reasonably be likely to result in, individually or in the aggregate, a material adverse effect on the financial condition, business, assets, or results of operations of Company and its subsidiaries, taken as a whole, except to the extent that the material adverse effect arises solely out of or relates solely to (x) changes in general economic or political conditions or the securities markets in general (whether as a result of acts of terrorism, war, armed conflict, or otherwise), (y) changes in laws, regulations, rules, ordinances or other requirement of any Government Entity binding upon the Company, or (z) changes in United States generally accepted accounting principles (“GAAP”), and, in each of the case of (x), (y), and (z), only to the extent they do not disproportionately affect the Company or (2) will not, or would not be reasonably likely to, materially impair the Company’s ability to consummate the transactions contemplated by this Agreement (a “ Company Material Adverse Effect”); (B) the Company will have performed in all material respects all obligations required to be performed by it under this Agreement at or before the Closing; (C) the Company will have filed with the Registrar of Corporations of the Republic of the ▇▇▇▇▇▇▇▇ Islands, and the Registrar of Corporations will have accepted, the Statement of Designation in respect of the Company’s 12% Cumulative Senior Preferred Stock–Series A in substantially the form attached as Exhibit A (the “BHC ActStatement of Designation”), ; (D) the Company will have duly executed and delivered to the Investors or the Change in Bank Control Act of 1978, as amended their designees a Registration Rights Agreement (the “CBC ActRegistration Rights Agreement”)) in substantially the form attached as Exhibit B; (E) the Company will have amended the Shareholders Rights Agreement, dated as of August 8, 2005, by and between the Company and American Stock Transfer & Trust Company, as rights agent (the “Shareholders Rights Agreement”) to exempt from the provisions of the Shareholders Rights Agreement the transactions contemplated by this Agreement, including the payment of any dividends (whether of Common Stock, Preferred Stock, or otherwise) in respect of the Purchased Shares and the conversion of the Purchased Shares into Common Stock, which amendment shall be in the form attached as Exhibit C; (F) The Manager will have caused Seaspan Ship Management Ltd., a company organized under the laws of British Columbia, to own 10% or more have entered into an amendment to the employment agreement with its chief executive officer, ▇▇. ▇▇▇▇▇ ▇▇▇▇, in substantially the form attached as Exhibit D and (G) the Investors will have received a legal opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., Republic of the outstanding shares of any class of voting securities of the Company or to otherwise control ▇▇▇▇▇▇▇▇ Islands counsel for the Company, then in substantially the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesform attached as Exhibit E-1.

First Closing. (1i) Subject to the satisfaction (or, where permissible, waiver) The consummation of the conditions to closing set forth purchase and sale of the Series B-1 12.75% Preferred Stock and Warrants in accordance with Section 1.2(c), 1.2(a) and the other transactions contemplated hereby at the first closing hereunder (the “First Closing”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), at the offices of Malizia Spidi ▇▇▇▇▇▇ & Fi▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ located ▇▇ ▇▇27 25th Street, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te at 10:00 a.m. New York City time, as promptly as practicable (but no more than three (3) Business Days) following the first date on which all conditions set forth in Section 4 hereof have been satisfied or location as agreed waived (other than those conditions that by the parties in writing. The date of their nature are to be satisfied by actions taken at the First Closing is referred to Closing), or at such other time and place as the “First Closing DateCompany and the Investors shall mutually agree.” (2ii) Subject to the satisfaction of the conditions described in Section 1.2(c), at At the First Closing, the Company will shall deliver to each Investor: (A) a certificate or certificates representing the shares of Series B-1 12.75% Preferred Stock and Warrants to be issued to such Investor at the First Closing, as set forth in Section 1.2(a) of this Agreement, (B) each Transaction Document to be executed by the Company other than this Agreement, the Strategic Relationship Agreement and Transaction Documents to be executed at the Second Closing or the Third Closing, executed by the Company, and (C) such other documents and instruments to be delivered by the Company to the Investors at the First Closing pursuant to Section 4. (iii) At the First Closing, each Investor shall deliver to the Investors certificates bearing Company: (A) the appropriate legends herein provided purchase price for and free and clear of all Liens representing an aggregate 1,885,500 the shares of Common Series B-1 12.75% Preferred Stock and Warrants issued to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to such Investor at the First Closing (the “Initial Purchased Shares”) against payment by the Investors of $7,542,000 (the “Initial Purchase Price”) Closing, by wire transfer of immediately available United States funds to a bank account designated or such other form of payment as may be approved by the Company; provided, that if the Initial Purchased Shares would cause an Investor or its Affiliates ; (B) each Transaction Document to be deemed for purposes of executed by such Investor other than this Agreement, the Bank Holding Company Act of 1956, as amended (Strategic Relationship Agreement and Transaction Documents to be executed at the “BHC Act”), Second Closing or the Change in Bank Control Act of 1978Third Closing, as amended executed by such Investor; and (the “CBC Act”), C) such other documents and instruments to own 10% or more of the outstanding shares of any class of voting securities of be delivered by such Investor to the Company or at the First Closing pursuant to otherwise control the Company, then the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesSection 4.