Common use of Third Closing Clause in Contracts

Third Closing. The obligation of a Third Closing Investor to purchase Series B Units at the Third Closing is subject to the fulfillment to the satisfaction of such Third Closing Investor, at or prior to the Third Closing of each of the following conditions: (a) Each of the representations and warranties of the Company contained in Article VII (other than Section 7.25 (Projections), which is hereby excluded) shall be true, correct and complete in all material respects on and as of the Third Closing Date as though then made, except for (i) such representations and warranties which expressly speak as of a certain date, which representations and warranties shall be true, correct and complete in all material respects as of the date specified and (ii) for purposes of the representations and warranties contained in Sections 7.5, 7.6, 7.7 and 7.8, the date of the Latest Balance Sheet shall be deemed to be March 31, 2008 (the date of the most recent unaudited financial statements provided to the Third Closing Investors); (b) All covenants, agreements and conditions contained in this Agreement to be performed or complied with by the Company on or prior to, or in connection with, the Third Closing Date shall have been performed or complied with; (c) No Event of Noncompliance (as defined in Series A Certificate of Designations), or event which with notice or lapse of time or both would constitute such an event, shall have occurred; (d) Since March 31, 2008 (the date of the most recent unaudited financial statements provided to the Third Closing Investors), there shall not have been any effect, change or development that, individually or in the aggregate with such other effects, changes or developments, has had, or could reasonably be expected to have, a Material Adverse Effect; (e) The Company shall have delivered to Sidley Austin LLP each of the following: (i) copy of the Certificate of Incorporation, as amended, certified as of a recent date by the Secretary of State of Delaware, including evidence of the filing of the Series A Designations Amendment relating to the Series A Preferred Stock, the Series B Designations Amendment relating to the Series B Preferred Stock and the Series C Designations Amendment relating to the Series C Preferred Stock; (ii) certificates of good standing and certificate of status of the Company, as applicable, issued as of a recent date by the Secretaries of State of Delaware and Florida; (iii) certificate of the Chief Executive Officer or the President of the Company, dated the Third Closing Date, to the effect that the conditions specified in Sections 3.2A(a) through 3.2A(d) have been satisfied fully; (iv) certificate of the Secretary or an Assistant Secretary of the Company, dated the Third Closing Date, in form and substance reasonably satisfactory to Sidley Austin LLP, as to: (1) no amendments to the Certificate of Incorporation since the date of certification referenced in subparagraph (i) above; (2) the By-laws; (3) the resolutions duly adopted by the Board and shareholders authorizing and approving, as appropriate, the execution, delivery and performance of this Agreement and each of the Transaction Documents to which the Company is a party and the transactions contemplated hereby and thereby, including the authorization, issuance, sale and delivery of the Series B Units and the Series C Units and the reservation for issuance of the Conversion Common Shares; and (4) complete and accurate copies of the Series B Warrant Agreement, the Series C Warrant Agreement, the Amended and Restated Shareholders Agreement and the Registration Rights Agreement; (v) stock certificates, duly executed by the Company and registered in the names of the Third Closing Investors (or their nominees) for the respective number of Series B Preferred Shares set forth on Appendix I-C; (vi) its executed counterpart to this Amendment; (vii) executed copies of each of the Series B Warrant Amendment and the Series C Warrant Amendment; (viii) the Warrant Certificates (as defined in the Series B Warrant Agreement), duly executed by the Company and registered in the names of the Third Closing Investors (or their nominees) for the respective number of Warrants set forth on Appendix I-C; (ix) its executed counterpart to the Securityholders Agreement Amendment; (x) satisfactory evidence that this Amendment, the Series A Designations Amendment, the Series B Designations Amendment, the Series C Designations Amendment, the Series B Warrant Amendment, the Series C Warrant Amendment and the Securityholders Agreement Amendment have been approved as required by law, the Company’s charter documents and, in cases of amendments to agreements, the provisions of the underlying agreements; (xi) if a Third Closing Investor is not currently a party to the Amended and Restated Shareholders Agreement and the Registration Rights Agreement, a joinder agreement providing that such Third Closing Investor shall be a party to such agreements, signed by the Company; (xii) legal opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. P.A., counsel for the Company, dated the Third Closing Date, addressed to the Third Closing Investors and substantially in the form attached hereto as Exhibit M; and

Third Closing. (a) Subject to Section 2.4(b), the Third Closing shall occur on May 29, 1997. (b) The obligation of a Third Closing Investor the Investors to purchase Series B Units the Preferred Shares set forth opposite each Investor's name in Schedule 2.1 at the Third Closing is and to pay the purchase price therefor at the Third Closing shall be subject to the fulfillment to satisfaction, or waiver by a Consent of the satisfaction of such Third Closing InvestorInvestors, at or prior to the Third Closing of each of the following conditionsconditions on the date of the Third Closing: (ai) Each of the The representations and warranties of the Company contained in Article VII (other than Section 7.25 (Projections), which is hereby excluded) 3 hereof shall be true, true and correct and complete in all material respects on and as of the date of the Third Closing Date as though then made, except for if made at and on such date. (iii) such representations The Company shall have performed and warranties which expressly speak as of a certain date, which representations and warranties shall be true, correct and complete complied in all material respects as with all of the date specified and (ii) for purposes of the representations and warranties contained in Sections 7.5, 7.6, 7.7 and 7.8, the date of the Latest Balance Sheet shall be deemed to be March 31, 2008 (the date of the most recent unaudited financial statements provided to the Third Closing Investors); (b) All covenants, agreements its covenants and conditions contained in this Agreement set forth herein that are required to be performed or complied with by the Company on or prior to, or in connection with, the Third Closing Date shall have been performed or complied with; (c) No Event of Noncompliance (as defined in Series A Certificate of Designations), or event which with notice or lapse of time or both would constitute such an event, shall have occurred; (d) Since March 31, 2008 (before the date of the most recent unaudited financial statements provided to the Third Closing Investors), there shall not have been any effect, change or development that, individually or in the aggregate with such other effects, changes or developments, has had, or could reasonably be expected to have, a Material Adverse Effect;Closing. (eiii) The Company shall have delivered to Sidley Austin LLP each the Investors an Officer's Certificate dated as of the following: Third Closing as to (i) copy the due adoption and continuing effectiveness of the resolutions of the Board, attached thereto, approving the Transaction Documents and all transactions contemplated thereby, (ii) the accuracy and continuing effectiveness of the Certificate of Incorporation, as amended, certified as of a recent date by the Secretary of State of Delaware, including evidence Incorporation and By-laws of the filing Company attached thereto, and (iii) the incumbency and specimen signature of each officer executing the Series A Designations Amendment relating to the Series A Preferred Stock, the Series B Designations Amendment relating to the Series B Preferred Stock Transaction Documents and the Series C Designations Amendment relating to the Series C Preferred Stock; (ii) certificates of good standing and certificate of status other closing documents on behalf of the Company, as applicable, issued as of a recent date by the Secretaries of State of Delaware and Florida; (iii) certificate of the Chief Executive Officer or the President of the Company, dated the Third Closing Date, to the effect that the conditions specified in Sections 3.2A(a) through 3.2A(d) have been satisfied fully;. (iv) The Investors shall have received a certificate of the Secretary or an Assistant Secretary of from the Company, dated the Third Closing Date, in form and substance reasonably satisfactory to Sidley Austin LLPthe Investors, as to: (1) no amendments to the Certificate of Incorporation since dated the date of certification referenced in subparagraph the Third Closing and signed by the Chief Executive Officer of the Company, certifying that (i) above; (2A) the By-laws; representations and warranties of the Company contained in Section 3 hereof are true and correct in all material respects on and as of the date of the Third Closing as if made at and on such date and (3B) the resolutions duly adopted Company has performed and complied in all material respects with all of the covenants and conditions set forth herein that are required to be performed or complied with by the Board and shareholders authorizing and approving, as appropriate, Company on or before the execution, delivery and performance of this Agreement and each date of the Transaction Documents to which the Company is a party and the transactions contemplated hereby and thereby, including the authorization, issuance, sale and delivery of the Series B Units and the Series C Units and the reservation for issuance of the Conversion Common Shares; and (4) complete and accurate copies of the Series B Warrant Agreement, the Series C Warrant Agreement, the Amended and Restated Shareholders Agreement and the Registration Rights Agreement;Third Closing. (v) stock certificatesThe Investors shall have received an opinion of counsel to the Company, duly executed by dated as of the Company and registered in the names date of the Third Closing Investors (or their nominees) for Closing, substantially in the respective number form of Series B Preferred Shares set forth on Appendix I-C;the First Legal Opinion. (vi) its executed counterpart The Company shall issue to this Amendment; (vii) executed copies of each of the Series B Warrant Amendment and the Series C Warrant Amendment; (viii) the Warrant Certificates (as defined in the Series B Warrant Agreement), duly executed by the Company and registered in the names of the Third Closing Investors (or their nominees) for the respective number of Warrants Investor set forth on Appendix I-C; (ix) its executed counterpart to the Securityholders Agreement Amendment; (x) satisfactory evidence that this Amendmentbelow a warrant, the Series A Designations Amendment, the Series B Designations Amendment, the Series C Designations Amendment, the Series B Warrant Amendment, the Series C Warrant Amendment and the Securityholders Agreement Amendment have been approved as required by law, the Company’s charter documents and, in cases of amendments to agreements, the provisions of the underlying agreements; (xi) if a Third Closing Investor is not currently a party to the Amended and Restated Shareholders Agreement and the Registration Rights Agreement, a joinder agreement providing that such Third Closing Investor shall be a party to such agreements, signed by the Company; (xii) legal opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. P.A., counsel for the Company, dated the Third Closing Date, addressed to the Third Closing Investors and substantially in the form attached hereto as Exhibit M; andA (each, a "New Warrant" and collectively, the "New Warrants"), exercisable into that number of outstanding shares of Common Stock as set forth opposite such Investor's name below: Investor Shares of Common Stock -------- ---------------------- GAP 35 2,763,699 GAP Coinvestment 478,945 Dow 2,161,764 (c) At the Third Closing, the Company shall issue and sell to each Investor, and each Investor severally and not jointly shall purchase from the Company, the number of Preferred Shares set forth opposite such Investor's name in Schedule 2.1. At the Third Closing, the following shall occur: (i) The Company shall execute and deliver to the Investors or their designated nominees certificates evidencing the Preferred Shares so purchased. (ii) The Investors shall deliver the purchase price for such Preferred Shares to the Company by wire transfer. (iii) Each of GAP 35, GAP Coinvestment and Dow Jone▇ shall surrender the Warrant previously issued to it in connection with the Second Closing to the Company for cancellation." (d) Schedule 2.1 to the Stock Purchase Agreement is hereby deleted in its entirety and replaced with Exhibit B, attached hereto.